EXHIBIT 10.4
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT ("Agreement") is made and effective as of the
14th day of January, 2003, by and between RELIANT RESOURCES, INC., a Delaware
corporation having its principal place of business in Houston, Xxxxxx County,
Texas, and Xxxxx X. Xxxx, an individual currently residing in Xxxxxx County,
Texas ("Executive").
WHEREAS, the Company considers it essential to the best interests of
its stockholders to xxxxxx the continued employment of key management personnel;
and
WHEREAS, the Board recognizes that, as is the case with many publicly
held corporations, the possibility of a Change of Control exists and that such
possibility, and the uncertainty and questions which it may raise among
management, may result in the departure or distraction of management personnel
to the detriment of the Company and its stockholders; and
WHEREAS, the Board has determined that appropriate steps should be
taken to reinforce and encourage the continued attention and dedication of
members of the Company's management to their assigned duties without distraction
in the face of potentially disturbing circumstances arising from the possibility
of a Change of Control;
NOW, THEREFORE, the Company and Executive have entered into this
Agreement, on the terms and conditions hereinafter stated.
1. DEFINITIONS: The following terms shall have the meanings set
forth below.
"AFFILIATE" means any company controlled by, controlling or under
common control with the Company within the meaning of Section 414 of the
Internal Revenue Code of 1986, as amended (the "Code").
"BOARD" means the board of directors of the Company.
"CAUSE" means Executive's (a) gross negligence in the performance of
Executive's duties, (b) intentional and continued failure to perform Executive's
duties, (c) intentional engagement in conduct which is materially injurious to
the Company or its Affiliates (monetarily or otherwise) or (d) conviction of a
felony, which, in the case of clauses (a), (b) or (c) has not been cured within
30 days after a written demand for substantial performance is delivered to
Executive by the Board, which demand specifically identifies the conduct which
the Board asserts to constitute Cause. For purposes of the definition of Cause,
an act or failure to act on the part of Executive will be deemed "intentional"
only if done or omitted to be done by Executive not in good faith and without
reasonable belief that his/her action or omission was in the best interest of
the Company, and no act or failure to act on the part of Executive will be
deemed "intentional" if it was due primarily to an error in judgment or
negligence.
A "CHANGE OF CONTROL" shall be deemed to have occurred upon the
occurrence of any of the following events:
-1-
(a) 30% OWNERSHIP CHANGE: Any Person, other than an
ERISA-regulated pension plan established by the Company or an
Affiliate, makes an acquisition of Outstanding Voting Stock and is,
immediately thereafter, the beneficial owner of 30% or more of the then
Outstanding Voting Stock, unless such acquisition is made directly from
the Company in a transaction approved by a majority of the Incumbent
Directors; or any group is formed that is the beneficial owner of 30%
or more of the Outstanding Voting Stock; or
(b) BOARD MAJORITY CHANGE: Individuals who are Incumbent
Directors cease for any reason to constitute a majority of the members
of the Board; or
(c) MAJOR MERGERS AND ACQUISITIONS: Consummation of a Business
Combination unless, immediately following such Business Combination,
(i) all or substantially all of the individuals and entities that were
the beneficial owners of the Outstanding Voting Stock immediately prior
to such Business Combination beneficially own, directly or indirectly,
more than 70% of the then outstanding shares of voting stock of the
parent corporation resulting from such Business Combination in
substantially the same relative proportions as their ownership,
immediately prior to such Business Combination, of the Outstanding
Voting Stock, (ii) if the Business Combination involves the issuance or
payment by the Company of consideration to another entity or its
shareholders, the total fair market value of such consideration plus
the principal amount of the consolidated long-term debt of the entity
or business being acquired (in each case, determined as of the date of
consummation of such Business Combination by a majority of the
Incumbent Directors) does not exceed 50% of the sum of the fair market
value of the Outstanding Voting Stock plus the principal amount of the
Company's consolidated long-term debt (in each case, determined
immediately prior to such consummation by a majority of the Incumbent
Directors), (iii) no Person (other than any corporation resulting from
such Business Combination) beneficially owns, directly or indirectly,
30% or more of the then outstanding shares of voting stock of the
parent corporation resulting from such Business Combination and (iv) a
majority of the members of the board of directors of the parent
corporation resulting from such Business Combination were Incumbent
Directors of the Company immediately prior to consummation of such
Business Combination; or
(d) MAJOR ASSET DISPOSITIONS: Consummation of a Major Asset
Disposition unless, immediately following such Major Asset Disposition,
(i) individuals and entities that were beneficial owners of the
Outstanding Voting Stock immediately prior to such Major Asset
Disposition beneficially own, directly or indirectly, more than 70% of
the then outstanding shares of voting stock of the Company (if it
continues to exist) and of the entity that acquires the largest portion
of such assets (or the entity, if any, that owns a majority of the
outstanding voting stock of such acquiring entity) and (ii) a majority
of the members of the board of directors of the Company (if it
continues to exist) and of
-2-
the entity that acquires the largest portion of such assets (or the
entity, if any, that owns a majority of the outstanding voting stock of
such acquiring entity) were Incumbent Directors of the Company
immediately prior to consummation of such Major Asset Disposition.
For purposes of the foregoing definition,
(1) the term "Person" means an individual, entity or group;
(2) the term "group" is used as it is defined for purposes of
Section 13(d)(3) of the Securities Exchange Act of 0000 (xxx "Xxxxxxxx
Xxx");
(3) the term "beneficial owner" is used as it is defined for
purposes of Rule 13d-3 under the Exchange Act;
(4) the term "Outstanding Voting Stock" means outstanding
voting securities of the Company entitled to vote generally in the
election of directors; and any specified percentage or portion of the
Outstanding Voting Stock (or of other voting stock) shall be determined
based on the combined voting power of such securities;
(5) the term "Incumbent Director" means a director of the
Company (x) who was a director of the Company on January 1, 2003 or (y)
who becomes a director subsequent to such date and whose election, or
nomination for election by the Company's shareholders, was approved by
a vote of a majority of the Incumbent Directors at the time of such
election or nomination, except that any such director shall not be
deemed an Incumbent Director if his or her initial assumption of office
occurs as a result of an actual or threatened election contest or other
actual or threatened solicitation of proxies by or on behalf of a
Person other than the Board;
(6) the term "election contest" is used as it is defined for
purposes of Rule 14a-11 under the Exchange Act;
(7) the term "Business Combination" means (x) a merger or
consolidation involving the Company or its stock or (y) an acquisition
by the Company, directly or through one or more subsidiaries, of
another entity or its stock or assets;
(8) the term "parent corporation resulting from a Business
Combination" means the Company if its stock is not acquired or
converted in the Business Combination and otherwise means the entity
which as a result of such Business Combination owns the Company or all
or substantially all the Company's assets either directly or through
one or more subsidiaries; and
-3-
(9) the term "Major Asset Disposition" means the sale or other
disposition in one transaction or a series of related transactions of
70% or more of the assets of the Company and its subsidiaries on a
consolidated basis; and any specified percentage or portion of the
assets of the Company shall be based on fair market value, as
determined by a majority of the Incumbent Directors.
"COMPANY" means Reliant Resources, Inc., and, except for purposes of
determining whether a Change of Control has occurred, any successor thereto.
"COVERED TERMINATION" means any termination of Executive's employment
with the Company or any Affiliate thereof during the term of this Agreement that
does not result from any of the following:
(i) death;
(ii) disability entitling Executive to benefits under the
Company's long-term disability plan;
(iii) termination for Cause; or
(iv) termination by Executive.
Notwithstanding the foregoing, a Covered Termination shall also include a
termination by Executive for Good Reason that occurs following a Change of
Control.
"GOOD REASON" shall mean any one or more of the following which occurs
following a Change of Control:
(a) a significant reduction in the duties or responsibilities
of Executive from those applicable to him/her immediately prior to the
date on which a Change of Control occurs;
(b) a reduction by the Company in Executive's annual base
salary as in effect on the date hereof or as the same may be increased
from time to time;
(c) the failure by the Company to continue in effect any
compensation plan in which Executive participates immediately prior to
the Change of Control which is material to Executive's total
compensation, unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect to such
plan, or the failure by the Company to continue Executive's
participation therein (or in such substitute or alternative plan) on a
basis not materially less favorable, both in terms of the amount or
timing of payment of benefits provided and the level of Executive's
participation relative to other participants, as existed immediately
prior to the Change of Control;
(d) the failure by the Company to continue to provide
Executive with benefits substantially similar to those enjoyed by
Executive under any of the
-4-
Company's pension, savings, life insurance, medical, health and
accident, or disability plans in which Executive was participating
immediately prior to the Change of Control, the taking of any other
action by the Company which would directly or indirectly materially
reduce any of such benefits or deprive Executive of any material fringe
benefit enjoyed by Executive at the time of the Change of Control or
the failure by the Company to provide Executive with paid vacation on
the same basis as was applicable to Executive immediately prior to the
Change of Control; or
(e) a change in the location of Executive's principal place of
employment with the Company by more than 50 miles from the location
where Executive was principally employed immediately prior to the date
on which a Change of Control occurs or the Company requiring Executive
to be based in a location other than that of the Company's principal
executive offices.
"PERFORMANCE SHARES" means an award issued to the Executive under the
Company's Long-Term Incentive Plan or any successor plan, in the form of shares
of common stock of the Company or any successor, or units denominated in shares
of Common Stock of the Company or any successor the vesting of which is subject
to the attainment of one or more performance objectives.
"RESTRICTED SHARES" means an award issued to the Executive under the
Company's Long-Term Incentive Plan, the 1994 Houston Industries Incorporated
Long-Term Incentive Compensation Plan, as amended, the Reliant Energy,
Incorporated Long-Term Incentive Plan, the Reliant Resources, Inc. Transition
Stock Plan or any successor plan in the form of shares of common stock of the
Company or of CenterPoint Energy, Incorporated or any successor or units
denominated in shares of Common Stock of the Company or of CenterPoint Energy,
Incorporated or any successor that is subject to a time-based vesting schedule.
"SALARY" means Executive's base salary as in effect immediately prior
to the termination of his employment or, if higher, the base salary in effect
immediately prior to the first occurrence of an event or circumstance
constituting Good Reason.
"STOCK OPTION" means a right to purchase a specified number of shares
of common stock of the Company or of Reliant Energy, Incorporated at a specified
price issued to Executive under the 1994 Houston Industries Incorporated
Long-Term Incentive Compensation Plan, as amended, the Company's 2001 and 2002
Long-Term Incentive Plans, the Company's 2002 Stock Plan, the Reliant Energy,
Incorporated Long-Term Incentive Plan, or any successor plan.
"TARGET BONUS PERCENTAGE" means Executive's target incentive award
opportunity under the Reliant Resources, Inc. Annual Incentive Compensation Plan
(or any successor plan) in effect immediately prior to the termination of his
employment or, if higher, immediately prior to the first event or circumstance
constituting Good Reason.
-5-
"WAIVER AND RELEASE" means a legal document, in the form attached
hereto as Exhibit A or such other form as may be prescribed by the Company, but
which form may not be altered, amended or modified after execution of a binding
agreement to effect a Change of Control without the consent of the Executive.
"WELFARE BENEFIT COVERAGE" shall mean each of life insurance, medical,
dental and vision benefits.
2. SEVERANCE BENEFITS: If Executive (a) experiences a Covered
Termination, (b) executes and returns to the Company a Waiver and Release within
the time period prescribed in the Waiver and Release following the date of
Executive's Covered Termination, and (c) does not revoke such Waiver and Release
within the time period prescribed in the Waiver and Release, then Executive
shall be entitled to receive, as additional compensation for services rendered
to the Company (including its Affiliates), the following severance benefits:
(a) CASH SEVERANCE PAYMENTS: Executive will receive an amount
equal to the product of (1) two and (2) the sum of (a) the Salary and
(b) the product of the Salary multiplied by the Target Bonus
Percentage, in one lump sum payment, within 15 days after the
expiration of the Waiver and Release revocation period.
(b) PRO RATED BONUS: Executive will receive an amount equal to
the product of (1) the Salary and (2) the Target Bonus Percentage, with
the product of (1) and (2) prorated based on the number of days
Executive was employed during the bonus year in which his employment
terminated. Such bonus shall be paid within 15 days after the
expiration of the Waiver and Release revocation period.
(c) WELFARE BENEFIT COVERAGE: Continued Welfare Benefit
Coverage for Executive and his/her eligible dependents at the active
employee rate for a period of (1) 3 years following the date of
Executive's Covered Termination which occurs following a Change of
Control or (2) 18 months following any other Covered Termination. Such
entitlement shall apply only to those Welfare Benefit Coverages that
the Company has in effect from time to time for active employees. If
Executive's employment is terminated following a Change of Control and
Executive would have become entitled to benefits under the Company's
post-retirement health care or life insurance plans, as in effect
immediately prior to the termination or of his employment (or, if more
favorable to Executive, as in effect immediately prior to the first
occurrence of an event or circumstance constituting Good Reason), had
the Executive's employment terminated at any time during the period of
three years following the date upon which Executive's employment was
terminated, the Company shall provide such post-retirement health care
or life insurance benefits to Executive and Executive's dependents
commencing on the later of (i) the date on which such coverage would
have first become available and (ii) the date on which benefits
described in the first sentence of this paragraph 2(c) terminate.
Benefits otherwise receivable by Executive pursuant to this Section
-6-
2(c) shall be reduced to the extent Executive becomes eligible to
receive benefits pursuant to a government-sponsored health insurance or
health care program.
(d) OUTPLACEMENT: Reimbursement for fees incurred for
outplacement services within eighteen months of the date of Executive's
Covered Termination in connection with Executive's efforts to obtain
new employment, up to a maximum of $50,000.
(e) FINANCIAL PLANNING: Continued access, for the remainder of
the calendar year in which the Covered Termination occurs or for 60
days (if greater), to the financial planning services available to
executive employees at the time of Covered Termination.
3. CHANGE OF CONTROL EQUITY-BASED BENEFITS: Immediately upon any
Change of Control or, if earlier, immediately upon a Covered Termination,
Executive shall be entitled to receive, as additional compensation for services
rendered to the Company (including its Affiliates), benefits with respect to any
equity based compensation in accordance with the applicable plans and
agreements.
4. CERTAIN ADDITIONAL PAYMENTS: Anything in this Agreement to the
contrary notwithstanding, in the event it shall be determined that any payment
or distribution by the Company to or for the benefit of Executive (whether paid
or payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Section 4 (a "Payment")) would be subject to the excise tax
imposed by Section 4999 of the Code or any interest or penalties incurred by
Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then Executive shall be entitled to receive an additional payment
(a "Gross-Up Payment") in an amount such that after payment (whether through
withholding at the source or otherwise) by Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties imposed with
respect thereto), employment taxes and Excise Tax imposed upon the Gross-Up
Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise
Tax imposed upon the Payments.
Subject to the provisions of this Section 4, all determinations
required to be made under this Section 4, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by Deloitte &
Touche (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and Executive within 15 business days of the
receipt of notice from Executive that there has been a Payment, or such earlier
time as is requested by the Company. In the event that the Accounting Firm is
serving as accountant or auditor for the individual, entity or group effecting
the Change of Control, the Executive may appoint another nationally recognized
accounting firm to make the determinations required hereunder (which accounting
firm shall then be referred to as the Accounting Firm hereunder). All fees and
expenses of the Accounting Firm shall be borne solely by the Company. Any
Gross-Up Payment, as determined pursuant to this Section 4, shall be paid by the
Company to
-7-
Executive within five days of the receipt of the Accounting Firm's
determination. If the Accounting Firm determines that no Excise Tax is payable
by Executive, it shall furnish Executive with a written opinion that failure to
report the Excise Tax on Executive's applicable federal income tax return would
not result in the imposition of negligence or similar penalty. Any determination
by the Accounting Firm shall be binding upon the Company and Executive. As a
result of the uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the Company
should have been made ("Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts its
remedies pursuant to the following provisions of this Section 4 and the
Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be promptly paid by the Company to or for the
benefit of Executive.
Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after Executive is informed in
writing of such claim and shall apprise the Company of the nature of such claim
and the date on which such claim is requested to be paid. Executive shall not
pay such claim prior to the expiration of the 30-day period following the date
on which it gives such notice to the Company (or such shorter period ending on
the date that any payment of taxes with respect to such claim is due). If the
Company notifies Executive in writing prior to the expiration of such period
that it desires to contest such claim, Executive shall:
(a) give the Company any information reasonably requested by
the Company relating to such claim;
(b) take such action in connection with contesting such claim
as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Company;
(c) cooperate with the Company in good faith in order to
effectively contest such claim; and
(d) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold Executive harmless, on an
after-tax basis, for any Excise Tax, employment tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation of the
foregoing provisions of this Section 4, the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and
-8-
may, at its sole option, either direct Executive to pay the tax claimed and xxx
for a refund or contest the claim in any permissible manner, and Executive
agrees to prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however, that if the Company
directs Executive to pay such claim and xxx for a refund, the Company shall
advance the amount of such payment to Executive, on an interest-free basis and
shall indemnify and hold Executive harmless, on an after-tax basis, from any
Excise Tax, employment tax or income tax (including interest or penalties with
respect thereto) imposed with respect to such advance or with respect to any
imputed income with respect to such advance; and further provided that any
extension of the statute of limitations relating to payment of taxes for the
taxable year of Executive with respect to which such contested amount is claimed
to be due is limited solely to such contested amount. Furthermore, the Company's
control of the contest shall be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder and Executive shall be entitled to
settle or contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority.
If, after the receipt by Executive of an amount advanced by the Company
pursuant to the foregoing provisions of this Section 4, Executive becomes
entitled to receive any refund with respect to such claim, Executive shall
(subject to the Company complying with the requirements of this Section 4)
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the
receipt by Executive of an amount advanced by the Company pursuant to the
foregoing provisions of this Section 4, a determination is made that Executive
shall not be entitled to any refund with respect to such claim and the Company
does not notify Executive in writing of its intent to contest such denial of
refund prior to the expiration of 30 days after such determination, then such
advance shall be forgiven and shall not be required to be repaid and the amount
of such advance shall offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid.
If the Company is obligated to provide the Executive with one or more
Welfare Benefit Coverages pursuant to Section 2(c), and the amount of such
benefits or the value of such benefit coverage (including without limitation any
insurance premiums paid by the Company to provide such benefits) is subject to
any income, employment or similar tax imposed by federal, state or local law, or
any interest or penalties with respect to such tax (such tax or taxes, together
with any such interest and penalties, being hereafter collectively referred to
as the "Income Tax") because such benefits cannot be provided under a
nondiscriminatory health plan described in Section 105 of the Code or for any
other reason, the Company will pay to the Executive an additional payment or
payments (collectively, an "Income Tax Payment"). The Income Tax Payment will be
in an amount such that, after payment by the Executive of all taxes (including
any interest or penalties imposed with respect to such taxes), the Executive
retains an amount of the Income Tax Payment equal to the Income Tax imposed with
respect to such welfare benefits or such welfare benefit coverage.
5. LEGAL FEES AND EXPENSES: It is the intent of the Company that
Executive not be required to incur legal fees and the related expenses
associated with the interpretation, enforcement or defense of Executive's rights
under this Agreement by litigation or otherwise
-9-
because the cost and expense thereof would detract from the benefits intended to
be extended to Executive hereunder. Accordingly, if it should appear to
Executive that the Company has failed to comply with any of its obligations
under this Agreement or in the event that the Company or any other person takes
or threatens to take any action to declare this Agreement void or unenforceable,
or institutes any litigation or other action or proceeding designed to deny, or
to recover from, the Executive the benefits provided or intended to be provided
to Executive hereunder, the Company irrevocably authorizes the Executive from
time to time to retain counsel of Executive's choice, at the expense of the
Company as hereafter provided, to advise and represent Executive in connection
with any such interpretation, enforcement or defense, including without
limitation the initiation or defense of any litigation or other legal action,
whether by or against the Company or any director, officer, stockholder or other
person affiliated with the Company, in any jurisdiction. Notwithstanding any
existing or prior attorney-client relationship between the Company and such
counsel, the Company irrevocably consents to Executive entering into an
attorney-client relationship with such counsel, and in that connection the
Company and Executive agree that a confidential relationship will exist between
Executive and such counsel. Without regard to whether Executive prevails, in
whole or in part, in connection with any of the foregoing, the Company will pay
and be solely financially responsible for any and all attorneys' fees and
related expenses incurred by Executive in connection with any of the foregoing
except to the extent that a final judgment no longer subject to appeal finds
that a claim or defense asserted by Executive was frivolous. In such a case, the
portion of such fees and expenses incurred by Executive as a result of such
frivolous claim or defense shall become Executive's sole responsibility and any
funds advanced by the Company or by a trust created to secure such payment shall
be repaid.
In the event a Change of Control occurs, the performance of the
Company's obligations under this Section 5 will be funded by amounts deposited
or which may be deposited in trust pursuant to certain trust agreements to which
the Company may be a party providing that the fees and expenses of counsel
selected from time to time by Executive pursuant to this Section 5 will be paid,
or reimbursed to Executive if paid by Executive, either in accordance with the
terms of such trust agreements, or, if not so provided, on a regular, periodic
basis upon presentation by Executive to the Company or to the trustee of a
statement or statements prepared by such counsel in accordance with its
customary practices. In order to be eligible for payment of expenses directly
from the Company, Executive must first exhaust all rights to payment under the
trust agreements, if any, contemplated immediately above. The pendency of a
claim by the Company that a claim or defense of Executive is frivolous or
otherwise lacking merit shall not excuse the Company (or the trustee of a Trust
contemplated by this Section 5) from making periodic payments of legal fees and
expenses until a final judgment is rendered as hereinabove provided. Any failure
by the Company to satisfy any of its obligations under this Section 5 will not
limit the rights of Executive hereunder. Subject to the foregoing, Executive
will have the status of a general unsecured creditor of the Company and will
have no right to, or security interest in, any assets of the Company or any
Affiliate.
6. CONFIDENTIALITY: Executive acknowledges that pursuant to this
Agreement, the Company agrees to provide to him Confidential Information
regarding the Company and the Company's business and has previously provided him
other such Confidential Information. In
-10-
return for this and other consideration provided under this Agreement, Executive
agrees that he will not, while employed by the Company and thereafter, disclose
or make available to any other person or entity, or use for his own personal
gain, any Confidential Information, except for such disclosures as required in
the performance of his duties hereunder as may otherwise be required by law or
legal process (in which case Executive and shall notify the Company of such
legal or judicial proceeding as soon as practicable following his receipt of
notice of such a proceeding, and permit the Company to seek to protect its
interests and information). 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
any of its affiliates or ventures or in which property rights have been assigned
or otherwise conveyed to the Company or any of its affiliates or ventures, 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 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 information, projections, licenses, prices, costs, and employee,
customer and supplier lists or parts thereof.
7. RETURN OF PROPERTY: Executive agrees that at the time of
leaving the Company's employ, he will deliver to the Company (and will not keep
in his 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 or any of its affiliates or ventures, regardless
of whether such items were prepared by Executive.
8. NON-SOLICITATION AND NON-COMPETITION:
(a) For consideration provided under this Agreement, including
but not limited to the Company's agreement to provide Executive with
Confidential Information regarding the Company and the Company's
business, Executive agrees that while employed by the Company and for
one year following a Covered Termination that does not occur following
a Change of Control, he shall not, without the prior written consent of
the Company, directly or indirectly, (i) hire or induce, entice or
solicit (or attempt to induce entice or solicit) any employee of the
Company or any of its affiliates or ventures to leave the employment of
the Company or any of its affiliates or ventures or (ii) solicit or
attempt to solicit the business of any customer or acquisition prospect
of the Company or any of its affiliates or ventures with whom Executive
had any actual contact while employed at the Company.
(b) Additionally, for consideration provided under this
Agreement, including but not limited to the Company's agreement to
provide Executive with
-11-
Confidential Information regarding the Company and the Company's
business, Executive agrees that while employed by the Company and for
one year following a Covered Termination that does not occur following
a Change of Control, he will not, without the prior written consent of
the Company, acting alone or in conjunction with others, either
directly or indirectly, engage in any business that is in competition
with the Company or accept employment with or render services to such a
business as an officer, agent, employee, independent contractor or
consultant, or otherwise engage in activities that are in competition
with the Company.
(c) The restrictions contained in this Paragraph 8 are limited
to a 50-mile radius around any geographical area in which the Company
engages (or has definite plans to engage) in operations or the
marketing of its products or services at the time of a Covered
Termination.
(d) Executive acknowledges that these restrictive covenants
under this Agreement, for which Executive received valuable
consideration from the Company as provided in this Agreement, including
but not limited to the Company's agreement to provide Executive with
Confidential Information regarding the Company and the Company's
business are ancillary to otherwise enforceable provisions of this
Agreement that the consideration provided by the Company gives rise to
the Company's interest in restraining Executive from competing and that
the restrictive covenants are designed to enforce Executive's
consideration or return promises under this Agreement. Additionally,
Executive acknowledges 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 legitimate business
interests of the Company, including but not limited to the Company's
need to protect its Confidential Information.
9. NOTICES: For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to Company: Reliant Resources, Inc.
0000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
ATTENTION: Chairman of the Board
If to Executive: Xxxxx X. Xxxx
P. O. Xxx 000000
Xxxxxxx, Xxxxx 00000
or to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
-12-
10. APPLICABLE LAW: The validity, interpretation, construction and
performance of this Agreement will be governed by and construed in accordance
with the substantive laws of the State of Texas, including the Texas statute of
limitations, but without giving effect to the principles of conflict of laws of
such State.
11. SEVERABILITY: If a court of competent jurisdiction determines
that any provision of this Agreement is invalid or unenforceable, then the
invalidity or unenforceability of that provision shall not affect the validity
or enforceability of any other provision of this Agreement and all other
provisions shall remain in full force and effect.
12. WITHHOLDING OF TAXES: The Company may withhold from any
payments payable under this Agreement all federal, state, city or other taxes as
may be required pursuant to any law or governmental regulation or ruling.
13. NO ASSIGNMENT; SUCCESSORS: Executive's right to receive
payments or benefits hereunder shall not be assignable or transferable, whether
by pledge, creation or a security interest or otherwise, whether voluntary,
involuntary, by operation of law or otherwise, other than a transfer by will or
by the laws of descent or distribution, and in the event of any attempted
assignment or transfer contrary to this Section 13 the Company shall have no
liability to pay any amount so attempted to be assigned or transferred. This
Agreement shall inure to the benefit of and be enforceable by Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
This Agreement shall be binding upon and inure to the benefit of the
Company, its successors and assigns (including, without limitation, any company
into or with which the Company may merge or consolidate).
14. PAYMENT OBLIGATIONS ABSOLUTE: Except for the requirement of
the Executive to execute and return to the Company the Waiver and Release in
accordance with Section 2, the Company's obligation to pay (or cause one of its
Affiliates to pay) Executive the amounts and to make the arrangements provided
herein shall be absolute and unconditional and shall not be affected by any
circumstances, including, without limitation, any set-off, counter-claim,
recoupment, defense or other right which the Company (including its Affiliates)
may have against him/her or anyone else. All amounts payable by the Company
(including its Affiliates hereunder) shall be paid without notice or demand.
Executive shall not be obligated to sign an agreement not to compete with the
Company or to seek other employment in mitigation of the amounts payable or
arrangements made under any provision of this Agreement, and the obtaining of
any other employment shall in no event effect any reduction of the Company's
obligations to make (or cause to be made) the payments and arrangements required
to be made under this Agreement.
15. NUMBER AND GENDER: Wherever appropriate herein, words used in
the singular shall include the plural and the plural shall include the singular.
The masculine gender where appearing herein shall be deemed to include the
feminine gender.
-13-
16. CONFLICTS: Except as otherwise provided in Exhibit B to this
Agreement, this Agreement constitutes the entire understanding of the parties
with respect to its subject matter and supercedes any other agreement or other
understanding, whether oral or written, express or implied, between them
concerning, related to or otherwise in connection with, the subject matter
hereof.
17. TERM: The effective date of the Agreement is January 14, 2003.
The term of this Agreement shall be for a period of three years after such
effective date; provided, however, upon each anniversary of the effective date,
the term shall be extended automatically for an additional one-year period
unless the Company shall have delivered to Executive written notice of
non-renewal prior to the applicable anniversary. Upon the occurrence of a Change
of Control, the term shall be automatically extended to a date which is three
years from the date upon which the Change of Control occurs. If Executive's
employment is terminated prior to the occurrence of a Change of Control this
Agreement shall immediately terminate, except that terms of this Agreement,
which must survive the termination this Agreement in order to be effectuated
(including the provisions of Sections 2, 5, 6, 7 and 8) shall survive.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered this 3rd day of February 2003, but effective as of
the day and year first above written.
RELIANT RESOURCES, INC.
By /s/ R. Xxxxx Xxxxxxxxx
-------------------------------------
R. Xxxxx Xxxxxxxxx,
Chairman and Chief Executive Officer
EXECUTIVE
/s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx X. Xxxx
-14-
EXHIBIT A
WAIVER AND RELEASE
In exchange for the payment to me of the severance benefits described
in Section 2 of the Severance Agreement between Reliant Resources, Inc. (the
"Company") and me effective as of _______, 200__ (the "Agreement") and of other
remuneration and consideration provided for in the Agreement (the "Benefits"),
which is in addition to any remuneration or benefits to which I am already
entitled, I agree not to xxx and to release and forever discharge the Company
and all of its parents, subsidiaries, affiliates and unincorporated divisions,
and its or their 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") 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 the Company, under any employee benefit plan or claims for
indemnity arising as a result of my being an officer or fiduciary of the
Corporate Group. 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 THE BENEFITS,
I MUST SIGN AND RETURN THIS WAIVER AND RELEASE TO THE COMPANY'S GENERAL COUNSEL.
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 the Benefits, which is in addition
to any remuneration or benefits to which I am already entitled, (1) I agree not
to xxx in any local, state or federal court regarding or relating in any way to
my employment with or separation from the Company or 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 the Company or 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 Corporate Group arising as a result of
being an officer or fiduciary of the Corporate Group, and except with respect to
such rights or claims as may arise after the date this Waiver and Release is
executed. Except for the matters identified above that are not the subject of
this Waiver and Release, 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; the Age Discrimination in Employment Act of 1967, as amended,
including the Older Workers Benefit Protection Act of 1990; the Civil Rights Act
of 1866, as amended; the Civil Rights Act of 1991; the Americans with
Disabilities Act of 1990; 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
-15-
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; the Xxxxxxxx-Xxxxx Act of 2002; claims in connection with workers'
compensation or "whistle blower" statutes; and claims for breach of contract
(whether written or oral, expressed or implied), tort, personal injury,
defamation, negligence or wrongful termination; and any other claims under the
statutory, regulatory, administrative, constitutional or common law of any
nation, state, locality or any other jurisdiction.
Further, I expressly represent that no promise or agreement which is
not expressed in 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 Company will withhold any taxes required by
federal or state law from the Benefits otherwise payable to me.
I understand that for a period of seven calendar days following the
Company's receipt of this Waiver and Release executed by me, I may revoke my
acceptance of the offer of the Benefits by delivering a written statement to the
Company's General Counsel, 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 Company shall have no obligation to provide me the
Benefits. 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 except as required by
law by me or my agents, representatives, heirs, spouse, employees or
spokespersons shall be a breach of this Waiver and Release.
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 acknowledge that payment of the Benefits 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 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
-16-
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 Sections 6 or 8 of the Agreement, or threatened breach, by me, the
Company, in its discretion, may initiate appropriate action as provided in those
Sections and may recover all lawful damages which it may prove by a
preponderance of the evidence in accordance with the law specified in those
Sections.
I acknowledge that this Waiver and Release set forth the entire
understanding and agreement between me and the Company 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.
---------------------------------
Name
---------------------------------
Social Security Number
---------------------------------
Signature Date
-17-
EXHIBIT B
Two weeks vacation annually in addition to vacation provided by Company policy.
-18-
