EXHIBIT 10.1
May 15, 2002
Mr. Xxx Xxx Xxxxxxx
00000 Xxxxxxxxxx
Xxxxxxx, XX 00000
Re: Separation from Employment
Dear Xxx Xxx:
The purpose of this letter agreement ("Agreement") is to set forth our
understanding of the terms and conditions of your separation from Reliant
Resources, Inc. (the "Company") on May 15, 2002 ("Termination Date").
In consideration for entering into this Agreement and agreeing to abide
by the terms and conditions hereof, the Company will pay you severance benefits
as specified herein.
1. Termination and Accrued Compensation. Your employment with the
Company is terminated effective as of the Termination Date. On or before June 3,
2002, you will be paid your base salary earned up to the Termination Date plus
the value of your accrued but unused vacation, as well as a lump sum cash
payment equal to $206,250. In addition, on or before June 3, 2002, the Company
will pay to you all compensation which you have deferred under the Company's
1989 Deferred Compensation Plan including earnings as provided under the terms
of the plan.
2. Severance. In exchange for your release of claims as provided in
Section 10 and your agreement to certain other obligations as described below,
the Company will pay to you, as a severance payment, a lump sum cash payment
equal to $550,000 on or before the third business day following the expiration
of the revocation period provided in Section 10 (without your revoking the
waiver and release).
3. Contingent Payment if Not Reemployed. If you have not accepted a
Comparable Position (as defined below) by November 15, 2002 and are in
compliance with the other provisions of this Agreement set forth below, the
Company will pay to you a lump sum cash payment equal to $550,000 on January 2,
2003.
If you accept a Comparable Position prior to November 15,
2002, then you shall have no right to receive the payment set forth in this
Section 3. For purposes of this Agreement, "Comparable Position" means
employment as an employee or engagement as an independent contractor by any
person or entity (other than the Company) in a position or capacity is a
position comparable to or better than your position with the Company, including,
without
1
limitation, size of business, rank, reporting relationships and which will pay
you a base salary equal to or greater than your highest base salary with the
Company and offer you the opportunity to earn other compensation and benefits
which in the aggregate are substantially comparable to or better than your base
salary and other compensation and benefits with the Company immediately prior to
the Termination Date. You agree to promptly inform the Company of any employment
or engagement as a consultant that occurs during the period from the Termination
Date until November 15, 2002, together with sufficient details to allow the
Company to evaluate your aggregate compensation and benefits from such
employment or engagement, and you agree to reimburse the Company for any payment
made under this Section 3 (i) after you have secured Comparable Employment,
and/or (ii) after you were in breach of this Agreement.
4. If you meet the COBRA eligibility requirements, you are eligible for
continuation of medical, dental and vision benefits for the applicable period
required by federal law. The required employee premium for the 18 month COBRA
period will be at the active employee contribution rate. Under the Company's
Executive Life Insurance Plan, the Company will pay the premium on your life
insurance policy that will be due in September, 2002 which will provide coverage
for you for one year from that date. In September, 2003, you will be offered the
opportunity to take over the policy (including any cash value thereunder) by
continuing to make payments directly to MetLife. Under the Company's Group Life
Insurance Plan, you may convert the supplemental life, spousal life, and
personal accident coverage you currently have to a personal policy with the
insurance provider, CIGNA, per their guidelines. You will be responsible for all
notifications, correspondence, and premium payments to CIGNA. Conversion
insurance will become effective on the 15th day after you have been notified of
your conversion right if your application is received by CIGNA and the required
premium is paid by that date.
5. Commencing as soon as practicable after the Termination Date, the
Company will pay for senior executive outplacement services through your choice
of either (i) the Spherion Flagship Service Program (unlimited duration) or (ii)
the Drake Beam Xxxxx Center for Executive Options Program (18 consecutive months
of coverage).
6. You understand and agree that you are not otherwise entitled to the
payments provided for under Sections 2 or 3 of this Agreement (the "Payments").
The Company is providing this benefit in consideration and return for the
promises and covenants you agree to herein. The Company will withhold any taxes
required by federal or state law from the payments described above.
7. Your rights under any benefit or compensation plan, program or
agreement of the Company not specifically provided for herein are controlled by
the terms and conditions of such plan, program or arrangement. With respect to
your rights under the Company's incentive plans, all of your options to purchase
shares of stock in the Company or Reliant Energy, Incorporated (the "Parent"),
other than outstanding options under the Company's Employee Stock Purchase Plan,
shall be fully vested and exercisable and shall remain exercisable for a period
of 3 years following the Termination Date.
8. The Company agrees to retain you commencing May 16, 2002 (the
"Effective Date"), as an independent consultant, and you agree to render
consulting services for the period described in Section 8(a) hereof and upon the
other terms and conditions herein provided.
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(a) The period your engagement as a consultant shall commence
on the Effective Date and continue until the date 18 months following
the Effective Date unless terminated earlier pursuant to Section 8(g)
hereof; provided, however, that the term of this engagement shall be
automatically extended for an additional year upon expiration of the
original term and each anniversary of such expiration (until the third
such anniversary) unless the Company gives written notice six months in
advance of such expiration or anniversary, as applicable, that it
intends not to extend the term.
(b) The Company hereby engages you to provide during the term
of this engagement such services of a consulting or advisory nature as
the Company may reasonably request with respect to matters arising out
of the conduct of the Company's business during the period that you
were an employee of the Company. You will provide consulting services
with respect to matters including but not limited to assisting the
Company in responding to (i) investigations, inquiries or any other
proceeding relating to the Company's activities by the Federal Energy
Regulatory Commission, the Securities Exchange Commission, the
Commodity Futures Trading Commission, any state or federal legislative
committee or subcommittee or any other governmental agency or entity or
(ii) disputes or litigation in California or elsewhere involving the
Company or any of its subsidiaries. Subject to your obligations and
responsibilities with respect to any other employment you obtain, you
will devote your efforts and time as shall be reasonably necessary to
perform your duties and to advance the interests of the Company. You
will act solely in a consulting capacity hereunder and in consequence
shall not have authority to act for the Company or to give instructions
or orders on behalf of the Company or otherwise to make commitments for
or on behalf of the Company. You will not be an employee of the Company
during the term of this engagement, but shall act in the capacity of an
independent contractor. The Company shall not exercise control over the
detail, manner or methods of the performance of the services by you as
a consultant under this Agreement.
(c) Compensation. The Company shall pay you at the rate of
$530.00 per hour for consulting services actually performed under this
Agreement, but the Company is committed to utilizing your services at a
level such that the total of all such payments shall not be less than
$275,000 for the initial 18-month term of this Agreement.
(d) The Company shall reimburse you for reasonable expenses
incurred in the performance of services hereunder, including travel and
the cost of necessary office equipment or supplies.
(e) Your sole compensation for the services rendered pursuant
to this Agreement following the Termination Date shall be the rate
provided for above in Section 8(c). You will not be entitled to
participate in any employee benefit or compensation plan or arrangement
of the Company with respect to the work done under this Agreement as a
consultant, and no service pursuant to this Agreement shall be credited
as service for any purposes under any employee benefit or compensation
plan or arrangement of the Company. You hereby waive any rights to
benefits under any
3
employee benefit or compensation plan or arrangement should any
judicial or administrative determination conclude that you were
otherwise eligible for such plan or arrangement.
(f) You will submit monthly invoices for charges and
reimbursements due for services as a consultant under this Agreement to
P. O. Box 1384, Houston, Texas 77251-1384, Attention: General Counsel.
Each invoice must detail any reasonable and necessary reimbursable
expenses incurred in performing your obligation under this Agreement
and include any other information the Company reasonably requests.
Payment for said invoiced amounts shall be payable by the Company
within 15 days after receipt of invoice by the Company. Should the
Company dispute any portion of your monthly invoice, the Company shall
pay the undisputed portion of the invoice and advise you in writing of
the disputed portion.
(g) Your engagement as a consultant will terminate
automatically upon your death, or upon your disability rendering you
unable to perform services hereunder for a period of 90 days. The
Company may terminate your engagement as a consultant hereunder upon
five days written notice at any time. You may terminate this engagement
at any time upon five days written notice to the Company. In the event
of a termination of the engagement under this Section 8, the Company
shall continue to be obligated to pay you amounts owed under Section
8(c) (for services performed prior to the date of termination of the
consulting engagement), and reimburse you for all expenses described in
Section 8(d) (to the extent incurred prior to the termination of the
consulting agreement); provided that if you terminate the engagement,
you shall not be guaranteed the minimum total payment described in
Section 8(c). Upon any termination or expiration of your engagement
hereunder, you shall continue to be subject to the provisions of
Section 9 hereof (it being understood and agreed that such provisions
shall survive any termination or expiration of your engagement
hereunder for any reason).
(h) Since you will not be an employee of the Company during
the term of this Agreement, but shall act in the capacity of an
independent contractor, the Company will not withhold from any amounts
payable for your services as a consultant under this Agreement federal,
state, city or any other taxes. It is your responsibility to pay all
such taxes that shall be required pursuant to any law or governmental
regulation or ruling and you agree to indemnify and hold the Company
harmless from any liability for such taxes. If the Internal Revenue
Service makes a claim, which, if successful, would require the Company
to make a payment or withhold any such taxes, you agree to cooperate in
good faith with the Company concerning the contest of the claim.
(i) In the event of your death or disability, all unpaid
amounts described in Sections 2, 3, 8(c) or 8(d) shall become
immediately due and payable in full.
9. Post-Employment Obligations:
(a) The Company has provided you with Confidential Information
regarding the Company and the Company's business and will continue to
provide you with such
4
Confidential Information, and has agreed to make certain payments to
which you are not otherwise entitled. In return for this and the other
consideration provided under this Agreement, you agree that you will
not disclose or make available to any other person or entity, or use
for your own personal gain, any Confidential Information, except for
such disclosures consented to by the Company or as required (i) by law
or legal process, (ii) in connection with the enforcement of your
rights under this Agreement, or (iii) in connection with the defense or
settlement of any claim, suit or action brought against you.
Furthermore, you agree that, if compelled by process of law to disclose
Confidential Information pursuant to clause (i) of the prior sentence,
you will provide prior written notice to the Company of the nature of
the Confidential Information proposed to be disclosed and the
circumstances which purportedly justify its disclosure so as to permit
the Company to seek a protective order or other protective measure, and
you agree to provide such notice as soon as reasonably practicable and
with all due diligence recognizing that disclosure of Confidential
Information could be harmful to the Company. For purposes of this
Agreement, "Confidential Information" shall mean any and all
information, data and knowledge that has been created, discovered,
developed or otherwise become known to the Company or in which property
rights have been assigned or otherwise conveyed to the Company, which
information, data or knowledge has commercial value in the business in
which the Company is engaged, except such information, data or
knowledge as is or becomes known to the public without violation of the
terms of this Agreement. By way of illustration, but not limitation,
Confidential Information includes business trade secrets, secrets
concerning the Company's plans and strategies, nonpublic information
concerning pending investigations, disputes or litigation involving the
Company, market information pertaining to the Company or its
operations, material market opportunities, technical trade secrets,
processes, formulas, know-how, improvements, discoveries, developments,
designs, inventions, techniques, marketing plans, manuals, records of
research, reports, memoranda, computer software, strategies, forecasts,
new products, unpublished financial statements or parts thereof,
budgets or other financial information, projections, licenses, prices,
costs, and employee, customer information, customer lists and supplier
lists or parts thereof.
(b) You agree that as of the Termination Date you will deliver
to the Company (and will not keep in your possession, recreate or
deliver to anyone else) all Confidential Information as well as all
other devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings, blueprints, sketches,
materials, equipment, customer or client lists or information, or any
other documents or property (including all reproductions of the
aforementioned items) belonging to the Company, regardless of whether
such items were prepared by you.
(c) Additionally, for consideration provided to you pursuant
to this Agreement, including the provision of Confidential Information,
you agree to be bound by the following restrictive covenants:
1. You agree that for a period of one year following
the Termination Date that you will not directly or indirectly,
acting alone or in conjunction with others: (a) solicit,
encourage or take any action that is
5
intended, directly or indirectly, to induce any other employee
of the Company to terminate employment with the Company; (b)
interfere in any manner with the contractual or employment
relationship between the Company and any other employee of the
Company; or (c) use Confidential Information to solicit,
directly or indirectly, any customer of the Company.
2. You acknowledge that these restrictive covenants
under this Agreement, for which you received consideration
from the Company as provided in this Agreement, are ancillary
to otherwise enforceable provisions of this Agreement and that
these restrictive covenants contain limitations as to time,
geographical area, and scope of activity to be restrained that
are reasonable and do not impose a greater restraint than is
necessary to protect the goodwill or other business interests
of the Company, such as the Company's need to protect its
Confidential Information.
(d) As a material inducement to the Company to enter into this
Agreement, you agree that you will not (i) publicly criticize or
disparage the Company or any Related Party (as defined below), or
privately criticize or disparage the Company or any Related Party in a
manner intended or reasonably calculated to result in public
embarrassment to, or injury to the reputation of, the Company or any
Related Party; (ii) commit damage to the property of the Company or any
Related Party or otherwise engage in any misconduct which is injurious
to the business or reputation of the Company or any Related Party; or
(iii) take any other action, or assist any person in taking any other
action, that is materially adverse to the interests of the Company or
any Related Party or inconsistent with fostering the goodwill of the
Company or any Related Party. In addition, you agree not to make any
public statements regarding the Company or its business without prior
written consent of the Company. As used in this section, the term
"Related Party" means the Company, any officer, director or executive
of the Company, and any former officer, director or executive of the
Company.
(e) As a material inducement to you to enter into this
Agreement, the Company agrees that neither it or any of its affiliates,
officers, directors or executives will publicly criticize or disparage
you or privately criticize or disparage you in a manner intended or
reasonably calculated to result in public embarrassment to, or injury
to your reputation in any community in which you are employed or
conduct business.
(f) In addition to your obligations under your engagement as a
consultant pursuant to Section 8, you agree to furnish such information
and proper assistance as may be reasonably necessary in connection with
any inquiry, investigation, dispute, litigation, regulatory proceeding
or other action in which the Company is or may become involved insofar
as it relates to matters arising out of your employment, and if you are
called upon to serve as a witness or provide assistance in or with
respect to any such proceeding, you agree to cooperate with the Company
to the full extent permitted by law, and the Company agrees that any
such call shall be with reasonable notice, shall not unreasonably
6
interfere with your later employment, and shall provide for payment for
your time and costs incurred in such matters at the rates set forth in
Section 8. Furthermore, you will promptly give written notice to the
Company of any inquiry, approach or other notice you receive or are
informed of by or from any governmental entity regarding any inquiry,
investigation, dispute, litigation, regulatory proceeding or other
action involving the Company. The foregoing procedural requirements
represent important provisions of this Agreement, but they shall not be
construed so as to prevent or limit your right and duty and that of the
Company to produce evidence and give testimony truthfully in the course
of a proceeding before any court or agency or when otherwise duly
required to do so by lawful authority. The provisions of this Agreement
shall not apply to or restrict in any way the communication of
information by you to any state or federal law enforcement agency or
require notice to the Company thereof.
(g) The Company agrees to indemnify you for any claims,
including associated legal fees and expenses, that may be asserted
against you on account of your good-faith execution of (i) your
employment duties with the Company and (ii) your consulting services
under this Agreement, but only to the extent that and under the
conditions that you were indemnified by the Company against such claims
during your employment with the Company. In the event you require
separate individual legal representation related to the performance of
your duties while employed by the Company, any arrangement relating to
the cost of such representation shall be the subject of a separate
agreement.
(h) If it is determined by a court of competent jurisdiction
in Texas that any restriction in this Section 9 is excessive in
duration or scope or is unreasonable or unenforceable under the laws of
Texas, it is the intention of the parties that such restriction may be
modified or amended by the court to render it enforceable to the
maximum extent permitted by the laws of Texas.
(i) You acknowledge that in the event of a breach by you of
the provisions of this Agreement, money damages will not be a
sufficient remedy, and the covenants may be enforced by temporary
restraining order, preliminary or temporary injunction, and permanent
injunction. In that connection, you acknowledge that, in the event of a
breach, the Company will suffer irreparable injury for which there is
no adequate legal remedy, in part because damages caused by the breach
may be difficult to prove with any reasonable degree of certainty.
(j) Notwithstanding any provision of this Agreement to the
contrary, for purposes of your obligations under this Agreement,
"Company" means the Company or an Affiliate or any successor to the
Company or an Affiliate and "employment" means employment as an
employee with the Company, any Affiliate or any such successor. For
purposes of this Agreement, the term "Affiliate" means (i) any
corporation or other entity in which the shares or other measure of
ownership owned or controlled directly or indirectly by the Company
shall represent 10% or more of the voting power of the issued and
outstanding stock or other measure of ownership of such corporation or
entity and (ii) any other company or organization controlled by,
controlling or under common
7
control with the Company within the meaning of Section 414 of the
Internal Revenue Code of 1986, as amended.
10. As a condition precedent to the receipt of the benefits under this
Agreement, you must execute a waiver and release of claims, in the form attached
to this Agreement as Exhibit A, and allow for the expiration of the seven day
revocation period without revoking such waiver and release.
11. All payments provided in this Agreement shall, unless the plan or
program pursuant to which they are made provides otherwise, be paid in cash from
the general funds of the Company, and no special or separate funds shall be
established and no other segregation of assets shall be made to assure payment.
You will have no right, title or interest whatever in or to any investments
which the Company may make to aid the Company in meeting its obligations
hereunder. Nothing contained in this Agreement, and no action taken pursuant to
this provision, shall create or be construed to create a trust of any kind, or a
fiduciary relationship, between the Company and you or any other person. To the
extent that any person acquires a right to receive payments from the Company
hereunder, such right shall be no greater than the right of an unsecured
creditor of the Company.
12. Miscellaneous:
A. This Agreement shall be governed by and construed in accordance with
the laws of the State of Texas, without reference to principles of conflict of
laws. Except with respect to injunctive relief as provided in paragraph 9(i),
any dispute, controversy, or claim arising out of or relating to this Agreement
shall be settled by final and binding arbitration before a single arbitrator in
Houston, Xxxxxx County, Texas, conducted in accordance with the procedures of
the Center for Public Resources of New York ("CPR"). The decision of the
arbitrator will be final and binding on the parties, and judgment thereon may be
had and will be enforceable in any court having jurisdiction over the parties.
Arbitration awards will bear interest at an annual rate of the Prime Rate plus
2% per annum, subject to any maximum amount permitted by Texas law. To the
extent that the provisions of this Agreement and the prevailing rules of the CPR
conflict, the provisions of this Agreement shall govern. The arbitrator shall be
selected by mutual agreement of the parties, if possible. If the parties fail to
reach agreement regarding appointment of an arbitrator within 30 days following
receipt by one party of the other party's notice of desire to arbitrate, the
arbitrator shall be selected in accordance with CPR rules except that, if the
parties continue to fail to select an arbitrator, CPR shall not have the power
to make the appointment but shall continue to attempt to locate a mutually
acceptable arbitrator until an arbitrator has been selected. All legal, witness
and other fees and expenses of the arbitration other than the fees and expenses
of the arbitrator shall be borne by the Company, including (1) all litigation
fees for work done outside the arbitration that is directly related to such
arbitration, and (2) a written transcript and statement of facts if requested.
The fees and expenses of the arbitrator will be borne by the losing party. Any
action to enforce or vacate the arbitrator's award shall be governed by the
Federal Arbitration Act if applicable, and otherwise by Texas state law. The
captions of this Agreement are not part of the provisions hereof and shall have
no force or effect. This Agreement may not be amended or modified otherwise than
by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
8
B. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
C. Except as specifically contemplated by this Agreement, this
Agreement constitutes the entire agreement between us with respect to the
subject matter hereof and supersedes any and all prior written or oral
agreements, arrangements or understandings between you and the Company.
D. Within 30 days after the date of this Agreement, the Company will
reimburse your legal and accounting fees and expenses incurred in the review and
negotiation of this Agreement.
E. All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified-mail, return receipt requested, postage prepaid, addressed as follows:
If to you: Xxx Xxx Xxxxxxx
[Address Intentionally Omitted]
If to the Company: Reliant Resources, Inc.
0000 Xxxxxxxxx
Xxxxxxx, XX 00000
-or-
P.O. Box 1384
Houston, TX 77251-1384
ATTENTION: Xxxx Xxxx Xxxxx,
Senior Vice President, General
Counsel and Corporate Secretary
9
Please sign both copies of this Agreement to indicate your
agreement to the foregoing, and return one original signed copy to me.
Sincerely,
/s/ X. Xxxxx Xxxxxxxxx
----------------------
X.X. Xxxxxxxxx
Chairman of the Board and Chief Executive Officer
Agreed to and Accepted this 2nd day of
July, 2002.
/s/ Xxx Xxx Xxxxxxx
-------------------
Xxx Xxx Xxxxxxx
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EXHIBIT A
WAIVER AND RELEASE
In exchange for the payment to me of a severance payment and
certain other consideration (the "Benefits") pursuant to that certain letter
agreement between Reliant Resources, Inc. (the "Company") and me dated as of May
15, 2002 (the "Agreement"), which are in addition to any remuneration or
benefits to which I am already entitled, I agree not to sue and to release and
forever discharge the Company and all of its parents, subsidiaries, affiliates
and unincorporated divisions, and its respective officers, directors, agents,
servants, employees, successors, assigns, insurers, employee benefit plans and
fiduciaries, and agents of any of the foregoing (collectively, the "Corporate
Group"), and any and all other persons, firms, organizations, and corporations,
from any and all damages, losses, causes of action, expenses, demands,
liabilities, and claims on behalf of myself, my heirs, executors,
administrators, and assigns with respect to all matters relating to or arising
out of my employment with or separation from any member of the Corporate Group,
other than claims arising under the Agreement, under any employee benefit plan
or claims for indemnity arising as a result of my being an officer of the
Company. The release does not apply to claims or causes of action accruing after
the date hereof.
I ACKNOWLEDGE THAT SIGNING THIS WAIVER AND RELEASE IS AN
IMPORTANT LEGAL ACT AND THAT I HAVE BEEN ADVISED IN WRITING TO CONSULT AN
ATTORNEY PRIOR TO EXECUTION. I ALSO UNDERSTAND THAT, IN ORDER TO BE ELIGIBLE FOR
BENEFITS UNDER THE AGREEMENT, I MUST SIGN AND RETURN THIS WAIVER AND RELEASE TO
XXXX XXXX XXXXX. I ACKNOWLEDGE THAT I HAVE BEEN GIVEN AT LEAST 21 DAYS TO
CONSIDER WHETHER TO EXECUTE THIS WAIVER AND RELEASE.
In exchange for the payment to me of Benefits pursuant to the
Agreement, which is in addition to any remuneration or benefits to which I am
already entitled, (1) I agree not to sue in any local, state and/or federal
court regarding or relating in any way to my employment with or separation from
any member of the Corporate Group, and (2) I knowingly and voluntarily waive all
claims and release the Corporate Group from any and all claims, demands,
actions, liabilities, and damages, whether known or unknown, arising out of or
relating in any way to my employment with or separation from any member of the
Corporate Group, except to the extent that my rights are vested under the terms
of employee benefit plans sponsored by the Corporate Group rights described in
the Agreement, claims for indemnity from the Company arising as a result of
being an officer of the Company and except with respect to such rights or claims
as may arise after the date this Waiver and Release is executed. This Waiver and
Release includes, but is not limited to, claims and causes of action under:
Title VII of the Civil Rights Act of 1964, as amended ("Title VII"); the Age
Discrimination in Employment Act of 1967, as amended, including the Older
Workers Benefit Protection Act of 1990 ("ADEA"); the Civil Rights Act of 1866,
as amended; the Civil Rights Act of 1991; the Americans with Disabilities Act of
1990 ("ADA"); the Energy Reorganization Act, as amended, 42 U.S.C. Section 5851;
the Workers Adjustment and Retraining Notification Act of 1988; the Pregnancy
Discrimination Act of 1978; the Employee Retirement Income Security Act of 1974,
as amended; the Family and Medical Leave Act of 1993; the Fair Labor Standards
Act; the Occupational Safety and Health Act; the Texas Labor Code Section 21.001
et. seq.; the Texas Labor Code; claims in connection with workers' compensation
or "whistle blower" statutes; and/or contract, tort, defamation, slander,
11
wrongful termination or any other state or federal regulatory, statutory or
common law. Further, I expressly represent that no promise or agreement which is
not expressed in the Agreement or this Waiver and Release has been made to me in
executing this Waiver and Release, and that I am relying on my own judgment in
executing this Waiver and Release, and that I am not relying on any statement or
representation of any member of the Corporate Group or any of their agents. I
agree that this Waiver and Release is valid, fair, adequate and reasonable, is
with my full knowledge and consent, was not procured through fraud, duress or
mistake and has not had the effect of misleading, misinforming or failing to
inform me. I acknowledge and agree that the Corporate Group will withhold any
taxes required by federal or state law from the Benefits otherwise payable to
me.
I affirm and agree that my employment relationship will end on
my Termination Date as defined in the Agreement and I then will withdraw
unequivocally, completely and finally from my employment and waive all rights in
connection with such relationship except to vested benefits and the payments and
benefits described in the Agreement. I acknowledge that no member of the
Corporate Group has promised me continued employment or represented to me that I
will be rehired in the future. I acknowledge that my employer and I contemplate
an unequivocal, complete and final dissolution of my employment relationship. I
acknowledge that this Waiver and Release does not create any right on my part to
be rehired by any member of the Corporate Group and I hereby waive any right to
future employment by any member of the Corporate Group.
I agree that this Waiver and Release is valid. I agree that
this Waiver and Release is fair, adequate and reasonable. I agree that my
consent to this Waiver and Release was with my full knowledge and was not
procured through fraud, duress or mistake.
I have read the Agreement and it is incorporated herein by
reference.
I understand that for a period of seven calendar days
following my signing this Waiver and Release, I may revoke my acceptance of the
offer of Agreement benefits by delivering a written statement to Xxxx Xxxx
Xxxxx, by hand or by registered-mail, in which case the Waiver and Release will
not become effective. In the event I revoke my acceptance of this offer, the
Corporate Group shall have no obligation to provide me benefits under the
Agreement. I understand that failure to revoke my acceptance of the offer within
seven days after the date I sign this Waiver and Release will result in this
Waiver and Release being permanent and irrevocable.
I agree that the terms of this Waiver and Release are
CONFIDENTIAL and that any disclosure to anyone for any purpose whatsoever (save
and except disclosure to my spouse, to financial institutions as part of a
financial statement, to immediate family members and/or heirs, financial, tax
and legal advisors, outplacement, executive search and/or legal placement
advisors, or as required by law) by me or my agents, representatives, heirs,
spouse, employees or spokespersons shall be a breach of this Waiver and Release.
The above is not intended to restrict me from seeking or engaging in other
employment and, in that connection, from making confidential disclosure to
potential employers of such facts or opinions as I may elect to convey,
(consistent with any obligations under Section 9 of the Agreement).
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I acknowledge that payment of Benefits pursuant to the
Agreement is not an admission by any member of the Corporate Group that they
engaged in any wrongful or unlawful act or that any member of the Corporate
Group violated any federal or state law or regulation. I understand that nothing
in this Waiver and Release is intended to prohibit, restrict or otherwise
discourage me from engaging in any activity related to matters of public or
employee health or safety, specifically to include activity protected under 42
U.S.C. Section 5851 and 10 C.F.R. Section 50.7, including, but not limited to,
providing information to the Nuclear Regulatory Commission ("NRC") regarding
nuclear safety or quality concerns, potential violations or other matters within
the NRC's jurisdiction. Similarly, nothing herein is intended to prohibit,
restrict or otherwise discourage me or any other individual from making reports
of unsafe, wrongful or illegal conduct to any agency or branch of the local,
state or federal government, including law enforcement authorities, public
utility commissions, energy regulatory commissions or any other lawful
authority.
I understand and agree that in the event of any breach of the
provisions of the Agreement, or threatened breach, by me, any member of the
Corporate Group may, in their discretion, initiate appropriate action as
provided in the Separation Agreement for any alleged breach by you and may
recover all lawful damages which it may prove by a preponderance of the evidence
in accordance with the law specified in that paragraph.
I acknowledge that this Waiver and Release and the Agreement
set forth the entire understanding and agreement between me and the Corporate
Group concerning the subject matter of this Waiver and Release and supersede any
prior or contemporaneous oral and/or written agreements or representations, if
any, between me and Company or any other member of the Corporate Group. The
invalidity or enforceability of any provisions hereof shall in no way affect the
validity or enforceability of any other provision.
/s/ Xxx Xxx Xxxxxxx
---------------------------
Xxx Xxx Xxxxxxx
[Intentionally Omitted]
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Social Security Number
July 2, 2002
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Signature Date
13
