EXHIBIT 10.65
RETENTION AGREEMENT
This Retention Agreement ("Agreement") is made and entered into
effective October 1, 2002 by and between Mirant Services, LLC. (hereinafter
"Mirant"), and Xxxxx X. Xxxxx (hereinafter "Xxxxx").
WITNESSETH:
WHEREAS, Mirant desires to continue to secure the services of Xxxxx X.
Xxxxx as an executive of Mirant; and
WHEREAS, Xxxxx X. Xxxxx desires to continue to be employed by Mirant
in this capacity; and
WHEREAS, Mirant and Xxxxx wish to enter into this Retention Agreement
setting forth the terms and conditions of such employment,
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereby agree as follows:
1. Employment Duties. During the term of this Agreement, Xxxxx
agrees to be a full-time employee of Mirant and devote his full and exclusive
business time, energy and skill to the business and affairs of Mirant. He shall
perform all of his duties properly and faithfully in the best interest of
Mirant and will not intentionally become involved in any personal matters which
adversely affect or reflect on Mirant.
2. Term. The term of this Agreement is for five years from
October 1, 2002. At the end of the term of this Agreement, if it has not been
terminated earlier pursuant to paragraph 4, Xxxxx will become an at-will
employee of Mirant.
3. Retention Benefits.
In consideration for Xxxxx' agreement to remain employed with
Mirant during the term of this Agreement, Mirant agrees to provide the
following payments and benefits to Xxxxx on the Schedule set forth below:
Date Cash Payment Restricted Stock Units (RSUs)
---- ------------ -----------------------------
October 1, 2003 $300,000 - 0 -
October 1, 2004 $300,000 75,000 shares vest
October 1, 2005 $ -0- 100,000 shares vest
October 1, 2006 $ -0- 125,000 shares vest
Restricted Stock Units will be granted on November 5, 2002 and will be
paid in stock on the day they vest. Restricted Stock Units shall have a
guaranteed value of $3.00 per share on the vesting date. If the stock price is
under $3.00 on the date of vesting, a cash payment will be made to account for
the difference. Xxxxx must be employed on the payment date to receive cash
payment or shares. Payment of the award amounts will not be considered wages,
salary or compensation under any other Mirant Benefit Plan. Appropriate
withholdings will be made at time of payment.
4. Change In Control. In the event of a Change In Control, all
remaining Cash Payments will vest and be paid to Xxxxx as soon as practical
following the Change In Control and any unvested Restricted Stock Units shall
be treated as prescribed by the Mirant Corporation Change In Control Benefit
Determination Policy. Change In Control shall have the meaning of such term as
set forth in the Mirant Corporation Change in Control Benefit Plan
Determination Policy, as approved by the Board of Directors of Mirant, as such
policy may be amended from time to time in accordance with the provisions
therein.
5. Termination of Employment.
(a) Death or Disability. In the event of Xxxxx' death or
total disability, this Agreement shall terminate immediately. Xxxxx shall be
deemed totally
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disabled if he is eligible to receive long-term disability benefits under
Mirant's then existing long-term disability Plan. In the event of his death or
disability, Xxxxx or his estate will be entitled to a pro rata share of the
next retention benefits tranche (cash or RSUs) to be paid in the year that the
death or disability occurs. Any future years benefits will be forfeited. For
example, if Xxxxx becomes disabled on September 1, 2003, he would only be
entitled to 11/12 of $300,000 and all amounts to vest in 2004, 2005, and 2005
will be forfeited.
(b) Termination for Cause. Mirant may terminate this
Agreement and Xxxxx' employment immediately hereunder for: 1) any nonapproved
absence from work, unrelated to illness or physical incapacity, in excess of
thirty (30) continuous days; 2) any acts or conduct by Xxxxx involving moral
turpitude that could reasonably be expected to interfere with his ability to
perform the functions of his job; 3) any material dishonesty in the performance
of his duties as an employee of Mirant; 4) any willful or gross negligence by
Xxxxx in complying with the terms of this Agreement or in performing his duties
for Mirant; 5) any material breach of this Agreement; 6) any unauthorized
disclosure of confidential information regarding Mirant. In the event of a
termination pursuant to this subparagraph (5(b)), Xxxxx will not be entitled to
any further retention benefits under this Agreement except to the extent
mandated by law or as otherwise agreed to at the time by Mirant and Xxxxx.
(c) Termination by Mirant by Notice. Mirant shall have
the additional right to terminate this Agreement and Xxxxx' employment without
cause by giving Xxxxx written notice of termination. Such termination shall be
effective immediately
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upon receipt of notice by Xxxxx. In the event of a termination pursuant to this
subsection, Xxxxx will be entitled only to the pro rata share of the next
retention benefits tranche (cash or RSUs), to be paid only in the year the
termination occurs. Any future years benefits will be forfeited. Mirant will
guarantee a minimum total payment of $300,000. If this minimum has already been
satisfied over the course of the contract, the pro rata share will be
calculated as above for the contract year.
(d) Termination by Xxxxx. Xxxxx may resign or retire on
thirty (30) days written notice to Mirant. However, in the event of such a
resignation or retirement, he will not be entitled to any further retention
benefits hereunder.
6. Covenant Not To Solicit Employees
(a) Non-Solicitation of Employees. For a period of two
years following the termination of Xxxxx' employment with Mirant, Xxxxx shall
not solicit or attempt to solicit, directly or indirectly by assisting others,
any individuals who were employees of Mirant at the time of Xxxxx' termination
of employment for purposes of inducing them to leave Mirant's employment or to
accept employment or engagement with another company or entity.
(b) Injunctive Relief. Xxxxx acknowledges that the
covenant not to solicit is a reasonable means of protecting and preserving
Mirant's investment in its business and its employees. Xxxxx agrees that any
breach of this covenant will result in irreparable damage and injury to Mirant
and that Mirant will be entitled to injunctive relief in any court of competent
jurisdiction without the necessity of posting any bond.
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(c) Enforceability of Covenant. Mirant and Xxxxx agree
that Xxxxx' obligation under the covenant not to solicit is separate and
distinct from other provisions of this Agreement, and the failure or alleged
failure of Mirant to perform its obligations under any other provisions of this
Agreement shall not constitute a defense to the enforceability of this covenant
not to solicit. The parties also agree that Mirant will be entitled to provable
damages in addition to injunctive relief in the event of a breach of this
covenant by Xxxxx.
7. Nondisclosure of Trade Secrets and Confidential Information.
(a) Trade Secrets Defined. As used in this Agreement,
the term "Trade Secret" shall mean any and all information not generally known
to persons not employed by Mirant, the disclosure or knowledge of which would
permit these persons to derive actual or potential economic value therefrom or
to cause economic or financial harm to Mirant. Such information shall include,
but not be limited to, any customer lists, customer billing information,
technical information regarding Mirant products sold by Mirant, sales
techniques and information concerning personnel assignments, and matters
concerning the financial affairs and management of Mirant.
(b) Nondisclosure of Trade Secrets. Throughout the term
of this Agreement and at all times following the expiration or termination of
this Agreement, Xxxxx shall not directly or indirectly transmit or disclose any
trade secret of Mirant to any person, concern or entity.
(c) Confidential Information Defined. As used in this
Agreement, the term "Confidential Information" shall mean all information that
does not rise to the level
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of a trade secret and that is not generally disclosed or known to persons not
employed by Mirant.
(d) Nondisclosure of Confidential Information.
Throughout the term of Xxxxx' employment with Mirant and for a period of two
years following the termination of Xxxxx' employment with Mirant, Xxxxx shall
not, either directly or indirectly, transmit or disclose any confidential
information to any person, concern or entity.
(e) Injunctive Relief. Xxxxx acknowledges that these
nondisclosure covenants are a reasonable means of protecting and preserving
Mirant's interests in the confidentiality of this information. Xxxxx agrees
that any breach of these covenants will result in irreparable damage and injury
to Mirant and that Mirant will be entitled to injunctive relief in any court of
competent jurisdiction without the necessity of posting any bond.
(f) Enforceability of Covenants. Mirant and Xxxxx agree
that Xxxxx' obligations under these nondisclosure covenants are separate and
distinct from other provisions of this Agreement, and the failure or alleged
failure of Mirant to perform its obligations under any provision of this
Agreement shall not constitute a defense to the enforceability of these
nondisclosure covenants. The parties also agree that the nondisclosure
covenants survive the expiration or termination of this Agreement.
8. Miscellaneous.
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(a) Waiver. The waiver by any party to this Agreement of
a breach of any of the provisions of this Agreement shall not operate or be
construed as a waiver of any subsequent breach.
(b) Severability. The invalidity or unenforceability of
any particular provision of this Agreement shall not affect the other
provisions of this Agreement, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted.
(c) Assignment and Successors. This Agreement may be
assigned by Mirant without Xxxxx' consent to an affiliated entity of Mirant,
including one of Mirant's affiliates, any survivor entity or other successor in
interest, but no such assignment shall relieve Mirant of its full
responsibilities hereunder. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and upon their respective legal representatives
and successors in interest.
(d) Entire Agreement. This Agreement constitutes the
entire Agreement between the parties with respect to the subject matter hereof
and supersedes any prior agreements, except any Confidential Agreements signed
by Xxxxx, which shall remain in full force and effect.
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(e) Governing Law. This Agreement shall be governed by
the laws of the State of Georgia.
IN WITNESS WHEREOF, the parties hereto having duly executed and
delivered this Employment Agreement as of the date first written above.
Mirant SERVICES, LLC
By: /s/ Xxxxx Xxxxxx [SEAL]
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/s/ Xxxxx X. Xxxxx [SEAL]
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Xxxxx X. Xxxxx
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Witness
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