EXHIBIT 10.3
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 Xxxxxxx X. Xxxxx, 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 identities 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:
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(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) and (ii) a majority of the members
of the board of directors of the Company (if it continues to exist) and of
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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 Assets 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 of 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
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(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
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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.
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"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) three 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
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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 twenty four months of the date of Executive's Covered
Termination in connection with Executive's efforts to obtain new
employment, up to a maximum of $100,000.
(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
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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
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may, at it sole option, either direct Executive to pay the tax claimed and xxx
for 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 of
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
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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 judgement 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 agreement, 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 judgement 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
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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
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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: Xxxxxxx X. Xxxxx
0000 Xxxxxxx Xxxxxxx
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.
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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.
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16. CONFLICTS: This Agreement constitutes the entire understanding of the
parties with respect to its subject matter and supersedes 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 of 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/ Xxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxx X. Xxxxx
-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 BENEFITS, I MUST
SIGN AND RETURN THIS WAIVER AND RELEASE TO THE COMPANY'S GENERAL COUNSEL. I
ACKNOWLEDGE THAT I HAVE BEEN GIVEN AT LEASE 21 DAYS TO CONSIDER WHETHER TO
EXECUTE THIS WAIVER AND RELEASE.
In exchange for the payment to me and 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 to 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 his 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 sets forth the entire
understanding and agreement between me and the Company concerning the subject
matter of this Waiver and Release and supersedes any prior or contemporaneous
oral and/or written agreements or representations, if any, between me and
the 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
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Signature Date
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