EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into this 31
day of May, 2004 by and between Mirant Services, LLC (hereinafter
"Mirant"), and Xxxx Xxxxxxxx Xxxxxxx (hereinafter "Xxxxxxx").
W I T N E S S E T H:
WHEREAS, Mirant desires to secure the services of Xxxxxxx as an executive
of Mirant; and
WHEREAS, Xxxxxxx desires to be employed by Mirant in this capacity; and
WHEREAS, Mirant and Xxxxxxx wish to enter into this Employment 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. Mirant hereby agrees to employ Xxxxxxx as its
Senior Vice President - Governmental and Regulatory Affairs and Xxxxxxx hereby
agrees to accept such employment upon the conditions set forth in this
Agreement. Mirant will obtain all necessary bankruptcy court approvals, if and
to the extent required, for the authorization and implementation of this
Agreement and shall bear all associated costs. During the term of this
Agreement, Xxxxxxx 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. WORK STANDARD. Xxxxxxx hereby agrees that he will at all times
comply with and abide by all terms and conditions set forth in this
Agreement, and all applicable policies, procedures, and rules as may be
issued by Employer, including the Code of Ethics and Business Conduct.
3. TERM. The term of this Agreement is for three years from your
official start date, tentatively scheduled for June 21, 2004 or earlier if
Xxxxxxx and the Company mutually agree.
At the end of the term of this Agreement, if it has not been terminated earlier
pursuant to Section 6, Xxxxxxx will become an at-will employee of Mirant.
4. COMPENSATION.
(a) Base SALARY. At the commencement of this Agreement,
Mirant shall pay Xxxxxxx a salary of $250,000 per year, minus all normal and
customary withholdings, paid in accordance with Employer's normal payroll
practices, on a biweekly basis to equal 26 pay periods per calendar year. Mirant
shall evaluate the compensation provided to Xxxxxxx on an annual basis and shall
make such adjustments as Mirant deems appropriate, with the understanding that
Xxxxxxx'x salary will not be reduced during the term of this Agreement without
his consent.
(b) ANNUAL SHORT-TEM INCENTIVE BONUS. Xxxxxxx is eligible to
participate in a discretionary performance-based bonus plan, maintained by
Mirant, for the 3-year initial term of the Agreement, for the purpose of paying
bonuses to qualified employees ("Short Term Incentive Plan"). Under the terms of
the Short Term Incentive Plan, Xxxxxxx shall have a target bonus of 55%, which
will be tied to the same goals as those of other participants in the Short Term
Incentive Plan, and will pay out according to those goals. The target bonus of
55% will adjust to fall within 0% to 110% in accordance with the Short Term
Incentive Plan. For the performance year 2004, Xxxxxxx shall receive a bonus of
his short-term incentive target, given actual individual and corporate
performance, which shall not be pro-rated. Xxxxxxx shall be eligible to
participate in the Short Term Incentive Plan for the performance year 2004 and
each year thereafter, payable in a manner consistent with all eligible
employees.
(c) SIGN-ON/ADDITIONAL BONUS. Within fifteen (15) business days
of your start date, Mirant will pay Xxxxxxx a lump sum signing bonus in cash
equal to $150,000. If Xxxxxxx terminates employment within one year of the
start, Xxxxxxx will be responsible to repay Mirant a prorated amount of this
sign-on bonus. If during the bankruptcy process in 2005 or later, the Company
petitions the court for additional retention (subsequent to the 2004 Key
Employee Retention Program) Xxxxxxx will be eligible to participate in a manner
consistent with executives at Xxxxxxx'x level or receive similar benefits.
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(d) PERQUISITE ALLOWANCE. During the Term, for the purpose of
reimbursing Xxxxxxx for certain perquisites not otherwise provided, Mirant will
provide Xxxxxxx with a perquisite allowance of $18,000 per year, consistent with
Mirant's requirements that supporting documentation be provided, which shall be
pro-rated based on the number of days Xxxxxxx was employed by Mirant during each
calendar year.
5. FRINGE BENEFITS.
(a) EMPLOYEE BENEFITS. Xxxxxxx shall be entitled,during the term
of this Agreement, to participate in all employee benefit programs maintained by
Mirant for the benefit of its employees, according to the terms of such plans.
(b) VACATION. Xxxxxxx shall be entitled to four (4) weeks of
vacation each year during the term of this Agreement. These days will be
pro-rated in 2004 based on your hire date.
6. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. In the event of Xxxxxxx'x death or
total disability, this Agreement shall terminate immediately. Xxxxxxx shall be
deemed totally 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, Xxxxxxx or his estate will be entitled to such
benefits, if any, as are provided under the terms of various Mirant health
insurance, life insurance, pension and disability plans.
(b) TERMINATION FOR CAUSE. Mirant may terminate this Agreement
and Xxxxxxx'x 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 Xxxxxxx 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 Xxxxxxx
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 6(b), Xxxxxxx will be entitled to payment for all
compensation and benefits earned up to and including his date of termination
(not including the Short Term Incentive for the measurement period during which
his
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termination occurs or has not yet been paid) otherwise, he is not eligible for
further benefits or compensation under this Agreement except to the extent
mandated by law or as otherwise agreed to at the time by Mirant and Xxxxxxx.
(c) TERMINATION BY MIRANT BY NOTICE. Mirant shall have the
additional right to terminate this Agreement and Xxxxxxx'x employment without
cause by giving Xxxxxxx written notice of termination. Such termination shall be
effective immediately upon receipt of notice by Xxxxxxx. In the event of a
termination within 1 year of start date, pursuant to this subsection, Xxxxxxx
will be entitled to a lump sum payment, minus required withholdings, equal to 24
months multiplied by $32,292. This amount represents Xxxxxxx'x monthly base
salary and target bonus at the time of initial employment. The dollar amount
will not change during the term of this Agreement. After the first year of
employment, through the term of the agreement, in the event of a termination
pursuant to this subsection, Xxxxxxx will be entitled to a lump sum payment,
minus required withholdings, equal to 12 months, multiplied by $32,292. This
amount represents Xxxxxxx'x monthly base salary and target bonus at the time of
initial employment. The dollar amount used in this calculation will not change
during the term of this Agreement. If the company institutes a severance program
(excluding any retention or severance associated with the court approved 2004
Key Employee Retention Program) with greater benefits for executives equivalent
to Xxxxxxx'x level, Xxxxxxx, at his option, will be eligible to participate in
such program and will not receive the benefits defined in Section 6 (c).
(d) TERMINATION BY XXXXXXX. Xxxxxxx may resign on sixty (60)
days written notice to Mirant. During any notice period, Mirant may relieve
Xxxxxxx of his duties, but this shall not relieve Mirant of its obligations to
pay Xxxxxxx his entire salary for the entire notice period. At the conclusion of
such notice period, he will not be entitled to any further compensation or
benefits hereunder, other than previously accrued and vested benefits.
(e) TERMINATION AFTER TERM OF AGREEMENT. To avoid confusion, the
parties agree that after the term of this Agreement, Xxxxxxx will be an at-will
employee of Mirant and may be terminated by Mirant for any reason, or no reason,
in accordance with the termination procedures then in effect at Mirant.
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7. COVENANT NOT TO SOLICIT
(a) DEFINITIONS.
(i) "ENTITY" shall mean any business, individual,
partnership, joint venture, agency, governmental subdivision, association, firm,
corporation or other entity.
(ii) "AFFILIATE" shall mean the following Entities: (A)
any Entity which owns an Interest (as defined below) in Mirant or Mirant
Corporation either directly or indirectly through any other Entity, (B) any
Entity an Interest in which is owned directly or indirectly by any Entity which
owns directly or indirectly an Interest in Mirant, (C) any Entity in which
Mirant owns an Interest either directly or indirectly through any other Entity,
or (D) any Entity which owns an Interest either directly or indirectly in an
Entity an Interest in which is owned either directly or indirectly by Mirant.
For purposes of this Agreement the term "Interest" shall include any equity
interest in an Entity in an amount equal to or greater than 10% of the Entity's
total outstanding equity interests.
(b) NON-SOLICITATION OF EMPLOYEES. For a period of two years
following the termination of Xxxxxxx'x employment with Mirant, Xxxxxxx shall not
solicit or attempt to solicit, directly or indirectly by assisting others, any
employees of Mirant, its Entities or Affiliates in order to induce such
employees to leave Mirant, its Entities or Affiliates to become employed or
affiliated with any other person, company or entity.
(c) INJUNCTIVE RELIEF. Xxxxxxx acknowledges that the covenant
not to solicit is a reasonable means of protecting and preserving Mirant's, its
Entities and Affiliates investment in its business and in Xxxxxxx'x employment.
Xxxxxxx agrees that any breach of this covenant will result in irreparable
damage and injury to Mirant, its Entities and Affiliates and that Mirant will be
entitled to injunctive relief in any court of competent jurisdiction without the
necessity of posting any bond.
(d) ENFORCEABILITY OF COVENANT. Mirant and Xxxxxxx agree that
Xxxxxxx'x 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
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not to solicit. The parties also agree that the covenant not to solicit survives
the expiration or termination of this Agreement.
8. NONDISCLOSURE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION.
(a) TRADE SECRETS DEFINED. As used in this Agreement, the term
"Trade Secret" shall mean information constituting trade secrets under
applicable law. Such information shall include, but not be limited to, any
non-public customer lists, customer billing information, technical information
regarding products sold, sales techniques and information concerning personnel
assignments, and matters concerning the financial affairs and management of
Mirant, its Entities or Affiliates.
(b) NONDISCLOSURE OF TRADE SECRETS. Throughout the term of this
Agreement and at all times following the expiration or termination of this
Agreement, Xxxxxxx shall not directly or indirectly transmit or disclose any
trade secret of Mirant, its Entities or Affiliates 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 of a trade secret and that is not generally disclosed or known
to persons not employed by Mirant, its Entities or Affiliates. Confidential
Information shall not, however, include any information that (i) was publicly
known and made generally available in the public domain prior to the time of
disclosure to Xxxxxxx by Mirant; (ii) becomes publicly known and made generally
available after disclosure to Xxxxxxx by Mirant through no action or inaction of
Xxxxxxx; or (iii) is in the possession of Xxxxxxx, without confidentiality
restrictions, at the time of disclosure by Mirant to Xxxxxxx
(d) NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Throughout the
term of Xxxxxxx'x employment with Mirant and for a period of three years
following the termination of Xxxxxxx'x employment with Mirant, Xxxxxxx shall
not, either directly or indirectly, transmit or disclose any confidential
information to any person, concern or entity. Notwithstanding the preceding
sentence, in the event that disclosure by Xxxxxxx of Confidential Information is
required by a governmental authority or applicable by law, Xxxxxxx may disclose
such information to the extent required, but Xxxxxxx shall notify Mirant of the
disclosure and shall
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cooperate (consistent with Xxxxxxx'x legal obligations) with Mirant's efforts to
obtain protective orders or similar restraints with respect to such disclosure,
at the sole expense of Mirant.
(e) NOTIFICATION OF UNAUTHORIZED DISCLOSURE. Xxxxxxx shall
exercise his best efforts to ensure the continued confidentiality of all Trade
Secrets and Confidential Information known by, disclosed or made available to
Xxxxxxx. Xxxxxxx shall immediately notify Mirant of any unauthorized disclosure
or use of any Trade Secrets or Confidential Information of which Xxxxxxx becomes
aware. Xxxxxxx shall assist Mirant, to the extent necessary, in the procurement
or protection of Mirant's or its Entities' or Affiliates' rights to or in any
Intellectual Property, Trade Secrets or Confidential Information and, upon
Mirant's request, shall assist, to the extent necessary, in the procurement or
protection of any third party's rights to or in any Intellectual Property, Trade
Secrets or Confidential Information.
(f) INJUNCTIVE RELIEF. Xxxxxxx acknowledges that these
nondisclosure covenants are a reasonable means of protecting and preserving
Mirant's, its Entities or Affiliates interests in the confidentiality of this
information. Xxxxxxx agrees that any breach of these covenants will result in
irreparable damage and injury to Mirant, its Entities or Affiliates and that
Mirant will be entitled to injunctive relief in any court of competent
jurisdiction without the necessity of posting any bond.
(g) ENFORCEABILITY OF COVENANTS. Mirant and Xxxxxxx agree that
Xxxxxxx'x 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.
9. INTELLECTUAL PROPERTY.
(a) DEFINITION. "Intellectual Property" shall mean all work
product, property, data, documentation, know-how, concepts or plans, inventions,
discovery, compositions, innovations, computer programs, improvements,
techniques, processes, designs, article of manufacture or information of any
kind, or any new or useful improvements of any of the foregoing and any Trade
Secrets, patents, copyrights, Confidential Information, mask work,
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trademark or service xxxx, relating in any way to Mirant, its Entities or its
Affiliates and its or their business prepared, conceived, revised, discovered,
developed, or created by Xxxxxxx for Mirant, its Entities or its Affiliates or
by using Mirant's, it Entities' or its Affiliates' time, personnel, facilities,
or material.
(b) OWNERSHIP. To the greatest extent possible, any and all
Intellectual Property shall be deemed to be "work made for hire" (as defined in
the Copyright Act, 17 U.S.C.A. Sections 101 ET SEQ.), and Xxxxxxx hereby
unconditionally and irrevocably transfers and assigns to Mirant, its Entities or
its Affiliates all rights, title and interest Xxxxxxx currently has or in the
future may have by operation of law or otherwise in or to any Intellectual
Property, including, without limitation, all patents, copyrights, trademarks,
service marks and other Intellectual Property rights and agrees that Mirant, its
Entities or its Affiliates shall have the exclusive world-wide ownership of such
Intellectual Property, and that no Intellectual Property shall be treated as or
deemed to be a "joint work" (as defined by the Copyright Act) of Xxxxxxx and
Mirant, its Entities, its Affiliates or otherwise. Xxxxxxx agrees to execute and
deliver to Mirant, its Entities or its Affiliates any transfers, assignments,
documents or other instruments which Mirant, its Entities or its Affiliates may
deem necessary or appropriate to vest complete title and ownership of any
Intellectual Property, and all rights therein, exclusively in Mirant, its
Entities or its Affiliates, as the case may be.
(c) RETURN OF MATERIALS. Immediately upon termination of this
Agreement, or at any point prior to or after that time upon the specific request
of Mirant, Xxxxxxx shall return to Mirant all written or descriptive materials
of any kind belonging or relating to Mirant, its Entities or its Affiliates,
including, without limitation, any Intellectual Property, Confidential
Information and Trade Secrets, in Xxxxxxx'x possession.
10. MISCELLANEOUS.
(a) PUBLIC STATEMENTS. Mirant shall issue all public statements
concerning the work hereunder; Xxxxxxx shall not issue any
public statements concerning such work without prior written
authorization from Mirant.
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(b) NOTICES.
(i) All notices and all other communications provided
for herein shall be in writing and delivered personally to the other designated
party, faxed, or mailed by certified or registered mail, return receipt
requested, or delivered by a recognized national overnight courier service, as
follows:
If to Employer to: Chief Executive Officer
Mirant Corporation
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000-0000
with a copy to: Legal Department
Mirant Services, LLC
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000-0000
If sent to Xxxxxxx, to the address in the personnel
records of Mirant at the time of notice.
If Xxxxxxx has provided notice to Mirant that
counsel represents him, Mirant shall copy Xxxxxxx'x counsel at the address
specified. Xxxxxxx agrees and understands that any legal fees or expenses
incurred by him in connection with this Agreement (other than those fees and
expenses incurred in a dispute under this Agreement and the ruling is in
Xxxxxxx'x favor) are his sole responsibility and Mirant shall not reimburse
Xxxxxxx for any portion of such fees or expenses.
ii) All notices sent under this Paragraph shall be
deemed given twenty-four (24) hours after sent by facsimile or courier and
seventy-two (72) hours after sent by certified or registered mail.
iii) Either party hereto may change the address to which
notice is to be sent hereunder by written notice to the other party in
accordance with the provisions of this Paragraph.
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(c) 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.
(d) 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.
(e) ASSIGNMENT AND SUCCESSORS. This Agreement may be assigned by
Mirant without Xxxxxxx'x 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.
(f) ENTIRE AGREEMENT. This Agreement constitutes the entire
Agreement between the parties with respect to the subject matter hereof and
supersedes any prior agreements. This Agreement supercedes Mirant's letter offer
dated May 27, 2004 ("Letter Offer"). In the event of a conflict between the
terms of this Agreement and the Letter Offer, the terms of the Agreement shall
govern.
(g) GOVERNING LAW. This Agreement shall be governed by the laws
of the State of Georgia, without regard to its principles of conflicts of laws.
(h) VOLUNTARY AGREEMENT. Xxxxxxx and Mirant represent and agree
that each has reviewed all aspects of this Agreement, has carefully read and
fully understands all provisions of this Agreement, and is voluntarily entering
into this Agreement. Each party represents and agrees that the judicial body
interpreting this Agreement shall not more strictly construe the terms of this
Agreement against one party, it being agreed that the Parties had the
opportunity to review any and all aspects of this Agreement with legal, tax or
other adviser(s) of such party's choice before executing this Agreement.
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IN WITNESSES 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 X. Xxxxxx [SEAL]
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/s/ Xxxx Xxxxxxxx Xxxxxxx [SEAL]
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Xxxx Xxxxxxxx Xxxxxxx
/s/ Xxxx Xxxxxxx
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Witness
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