Case No. 01-16034 (AJG), Jointly Administered.United States Bankruptcy Court, S.D. New York.
January 20, 2005
ORDER PURSUANT TO SECTION 363(b)(1) OF THE BANKRUPTCY CODE APPROVING MODIFICATION OF LIQUIDATION INCENTIVE POOL AND KEY EMPLOYEE RETENTION PROGRAMS
ARTHUR GONZALEZ, Bankruptcy Judge
Upon the motion, dated December 9, 2004 (the “Motion”), of Enron Corp. and its affiliated reorganized debtor entities in the above-captioned chapter 11 cases (collectively, the “Reorganized Debtors”), for an order, pursuant to section 363(b)(1) of title 11 of the United States Code (the “Bankruptcy Code”), approving and authorizing the modification of the Enron Corp. Key Employee Retention and Severance Plans I and III (collectively “KERP”) and the implementation of the Liquidation Incentive Pool II (“LIP II”); and the Court having jurisdiction to consider the Motion and the relief requested therein in accordance with 28 U.S.C. § 1334; and due notice of the Motion having been provided, and it appearing that no other or further notice need be provided; and no objections to the Motion or the relief requested therein having been interposed; and the Court having jurisdiction and having held a hearing on January 20, 2005 (the “Hearing”) to consider the Motion; and the Court having determined that the implementation of the relief requested in the Motion represents a sound exercise of the Reorganized Debtors’ business judgment and is necessary and in the best interests of the
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Reorganized Debtors’ estates; and the Court having determined that payments due under KERP, as amended, and LIP II are actual, necessary costs of preserving the Reorganized Debtors’ estates; and after due deliberation and good and sufficient cause appearing therefor, it is
ORDERED that the implementation of the modifications to KERP and the LIP, as described in the Motion and annexed hereto as Exhibits “A” and “B”, respectively, are authorized and approved in all respects; and it is further
ORDERED that the implementation of LIP II, as described in the Motion, is authorized and approved in all respects;
ORDERED that the Reorganized Debtors are authorized to take all actions necessary or desirable to fully implement the relief requested in the Motion; provided, however, (i) no payments provided under KERP or LIP II shall be made to any participant who does not execute an agreement representing that he or she has not sold the Reorganized Debtors’ shares in violation of the insider trading rules provided under Section 10(b)-5 of the Securities Exchange Act of 1934 and agreeing to disgorge any amounts paid under KERP or LIP II should such representation later be proved false; (ii) no person named as a defendant in the pending consolidated actions of Newby, et al. v. Enron Corp., etal. and The Regents of the University of California, et al. v.Lay, et al. Civil Action No. H-01-3624 (S.D. Tex.) shall be permitted to participate KERP or LIP II; (iii) no person identified as a wrongful actor in the “Report of Investigation by the Special Investigative Committee of the Board of Directors of Enron Corp.”, dated February 1, 2002, shall be permitted to participate in KERP or LIP II; and (iv) KERP and LIP II participants shall continue to be required to disgorge all payments made under
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KERP and/or LIP II and any preference waiver provided thereunder shall be void to the extent that any participant is later adjudged by a court of competent jurisdiction to have engaged in acts of dishonesty or other willful misconduct detrimental to the interests of the Reorganized Debtors; and it is further
ORDERED that any officers of the Company who are designated to participate as members of any committee responsible for the oversight, operation and administration of KERP and/or LIP II, and any Managing Director or Vice President of the Company designated to take action by a member of any such committee, is authorized and empowered to take any and all action as may be necessary or desirable to effectuate the relief requested in the Motion, as each such officer shall determine in his or her sole discretion; and it is further
ORDERED that the allocation of costs associated with KERP to each of the Reorganized Debtors shall be determined in accordance with this Court’s Order Approving and Authorizing Debtors’ Allocation Formula for Shared Overhead Expenses, dated November 21, 2002, or as required in accordance with the Reorganized Debtors’ confirmed Supplemental Fifth Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code, dated July 2, 2004; and it is further
ORDERED that any obligations of the Reorganized Debtors under or in connection with KERP or LIP II, as amended in accordance with the Motion and the exhibits annexed hereto, shall be deemed allowed administrative expense claims under section 503(b)(1)(A) of the Bankruptcy Code; and it is further
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ORDERED that any conflict between the terms and provisions of this Order and the documents setting forth KERP and LIP II shall be resolved in favor of this Order.
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EXHIBIT A1
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FIRST AMENDMENT TO ENRON CORP. KEY EMPLOYEE RETENTION, LIQUIDATION INCENTIVE AND SEVERANCE PLAN WHEREAS, Enron Corp. adopted the Enron Corp. Key Employee Retention, Liquidation Incentive and Severance Plan effective as of March 1, 2002 (the “Plan”); and
WHEREAS, Enron Corp. desires to amend the Plan;
NOW, THEREFORE, the Plan shall be amended as follows:
1. Section VII.D of the Plan shall be amended by adding the following sentence at the end thereof, effective as of January 1, 2005:
Any portion of (i) a LIP Participant’s Liquidation Bonus that is forfeited under the terms of this Plan and that has not been reallocated to other LIP participants and (ii) the Liquidation Incentive Pool that has not been allocated to a LIP Participant (collectively, the “LIP Excess Funds”), up to seven million dollars may be used to satisfy the retention and severance (but not completion bonus) payments awarded by the Company under the Enron Corp. Key Employee Retention, Liquidation Incentive and Severance Plan III (“KERP III”). In addition, subject to the approval of the Company’s Board of Directors, any portion of the LIP Excess Funds in excess of seven million dollars ($7,000,000) may be used to satisfy the retention and severance (but not completion bonus) payments awarded by the Company under KERP III.
2. As amended hereby, the Plan is specifically ratified and affirmed.
IN WITNESS WHEREOF, the parties have caused these presents to be executed this ____ day of ____, 2005.
ENRON CORP.
By:________________
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EXHIBIT A2
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FIRST AMENDMENT TO ENRON CORP. KEY EMPLOYEE RETENTION, LIQUIDATION INCENTIVE AND SEVERANCE PLAN III WHEREAS, Enron Corp. adopted the Enron Corp. Key Employee Retention, Liquidation Incentive and Severance Plan III effective as of February 28, 2004 (the “Plan”); and
WHEREAS, Enron Corp. desires to amend the Plan;
NOW, THEREFORE, The Plan shall be amended as follows:
1. Effective as of January 1, 2005, the following shall be added to Section V of the Plan:
D. Use of KERP I and LIP II Excess Funds.
(1) Any portion of (i) a LIP Participant’s Liquidation Bonus awarded under KERP I or under the Enron Corp. Liquidation Incentive Plan II (“LIP II”) that is forfeited and that has not been reallocated to other LIP Participants under the terms of KERP I or LIP II and (ii) the Liquidation Incentive Pool under KERP I or LIP II that has not been allocated to LIP Participants under the terms of KERP I or LIP II (collectively, “LIP Excess Funds”), up to seven million dollars ($7,000,000) may be used to provide retention and severance (but not completion bonus) payments awarded to eligible participants hereunder, and the dollar thresholds in Section V. A and B, above, shall be deemed adjusted accordingly. In addition, subject to the approval of the Company’s Board of Directors, any portion of the LIP Excess Funds in excess of seven million dollars ($7,000,000) may be used to provide retention and severance (but not completion bonus) payments awarded to eligible participants hereunder, and the dollar thresholds in Section V. A and B (as adjusted by the first sentence of this Section V. D) shall be deemed further adjusted accordingly.
2. As amended hereby, the Plan is specifically ratified and affirmed.
IN WITNESS WHEREOF, the parties have caused these presents to be executed this ____ day of ___, 2005.
ENRON CORP.
By:___________________
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EXHIBIT B
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ENRON CORP. LIQUIDATION INCENTIVE PLAN II I. Purpose
This Liquidation Incentive Plan II (the “Plan”) is intended to supplement the liquidation incentive portion of the Enron Corp. Key Employee Retention, Liquidation Incentive and Severance Plan (“KERP I”) which expired on November 17, 2004, and to allow Enron Corp. and its subsidiaries and affiliated companies which filed voluntary petitions for relief under chapter 11 of title 11 of the United States Bankruptcy Code on or since December 2, 2001 and emerged from bankruptcy on November 17, 2004 (collectively, the “Company”) to retain a select group of employees who will contribute to maximizing the value of the Company by expeditiously and economically liquidating assets and certain of the Company’s non-core businesses. This Plan will provide a financial incentive by offering a liquidation incentive bonus to such employees who continue their employment with the Company, subject to the terms and conditions of this Plan.
II. Effective Date; Term of Plan
The Plan shall be effective November 17, 2004 (the “EffectiveDate”). The Plan shall commence as of the Effective Date and, unless sooner terminated pursuant to Section XVII shall terminate on the date on which the Company determines not to sell any of the Company assets, when all assets and non-core businesses have been sold or liquidated or, if the liquidation incentive pool generated under this Plan totals forty five million dollars ($45,000,000), the date the Company has distributed all benefits awarded under this Plan or decided in its sole discretion not to distribute any more benefits awarded hereunder.
III. Eligibility
Employees of the Company designated by the Office of the Chief Executive of Enron Corp. (the “Committee”), in its sole discretion, will be eligible to participate in the Plan. Such employees shall be notified in writing of such participation, subject to the terms of this Plan (each Plan participant shall be referred to herein generally as a “Participant”). In no event, however, shall an employee be an eligible Participant without first executing the required LIP II Participant Certification form provided by the Company regarding insider trading and other matters (the “Certification”), which shall be substantially in the form annexed hereto as Schedule A.
IV. Administration
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A. Powers of the Committee. The Plan shall be administered by the Committee or its designee, which shall have the power to do all things necessary or convenient to effect the intent and purposes of the Plan, including the sole and absolute discretion to construe and interpret the Plan; provide rules for the management, operation and administration of the Plan; reasonably construe the Plan in good faith to the fullest extent permitted by law, which shall be final and conclusive upon all persons; correct any defect, supply any omission, or reconcile any inconsistency in the Plan in such manner and to such extent as it shall deem appropriate in its sole discretion to carry the same into effect; make determinations as to a Participant’s eligibility for benefits under the Plan, including determinations as to “Cause” (as defined herein); set conditions for receipt of any payment under the Plan; approve the amount of payments made under the Plan; and determine who shall receive any payment under the Plan.
For purposes of this Plan, “Cause” shall be as determined by the Committee in its sole discretion.
B. All decisions and determinations of the Committee on all matters relating to the Plan shall be conclusive. Members of the Committee shall not be liable for any action taken, or refrained from, or any decision made relating to the Plan or any award hereunder. Only the Committee shall determine who shall receive an award under the Plan and make decisions concerning the timing and amount of any payment under the Plan.
V. Plan Payments
The amounts payable under the Liquidation Incentive Pool (as defined below) as determined in accordance with Section VII shall not exceed forty-five million dollars ($45,000,000).
VI. Termination of Participation
An employee’s participation in the Plan shall automatically terminate, and all eligibility for further payments under any section of this Plan shall cease, without notice to or consent of such employee, upon the first to occur of the following with respect to such employee: (A) termination of employment for Cause, or (B) voluntary termination of employment by the employee, for any reason.
VII. Liquidation Incentive Pool
A. Creation of Liquidation Incentive Pool. The Company shall establish a “Liquidation Incentive Pool” or “LIP” based on cash collected from the liquidation of certain of the Company’s assets and non-core businesses to be identified by the
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Committee simultaneously with the adoption of this Plan by the Committee (the “Assets”). The Committee shall determine, in its sole discretion, the portions of the Liquidation Incentive Pool to be awarded to each LIP Participant (the “LiquidationBonus”), and the fact that a LIP Participant may previously have been awarded a Liquidation Bonus will not obligate the Committee to award such LIP Participant any future Liquidation Bonus.
B. Accrual and Distribution of Liquidation Bonuses. A LIP Participant’s Liquidation Bonus shall accrue and be distributed as follows.
1. The Liquidation Incentive Pool shall be distributed to LIP Participants as soon as practicable following each five hundred million dollars ($500,000,000) the Company actually collects from the sales of the Assets (each $500,000,000, a “Collection Milestone”). Each time a Collection Milestone is achieved (each, a “LIP Accrual Date”), the Committee shall allocate amounts accrued and undistributed under the Liquidation Incentive Pool among such LIP Participants as it determines in its sole discretion and in accordance with the terms and conditions of this Plan. Collection Milestones shall continue to be able to be achieved until the earlier of: (a) the date on which all Assets are sold or liquidated, (b) the date the Company determines in its sole discretion not to sell any such Assets, and (c) the date on which the aggregate Liquidation Incentive Pool generated under this Plan (whether or not distributed) equals forty five million dollars ($45,000,000), provided, however, that in the event that any LIP Participants have taken substantial steps (as determined by the Committee in its sole discretion) to conclude a transaction involving the sale of any Assets prior to the termination of the Plan but the closing date for the transaction follows the termination of the Plan, the Committee may, in its sole discretion, consider the proceeds therefrom in determining whether a Collection Milestone has been achieved.
2. With respect to any Liquidation Bonus allocated to a LIP Participant on a LIP Accrual Date, (a) fifty percent (50%) of such Liquidation Bonus shall be distributed as soon as practicable following the respective LIP Accrual Date, and (b) fifty percent (50%) of such Liquidation Bonus shall be deferred and shall be distributed as soon as practicable following the earlier of (i) the date on which all Assets are sold or liquidated, (ii) the date the CompanyPage 13
determines in its sole discretion not to sell any such Assets, (iii) the LIP Participant’s death, disability or involuntary termination of employment by the Company without Cause, or (iv) the date that is six (6) months following each respective LIP Accrual Date (or any intermediate milestone date as determined in Section VII.E, below) (each of the foregoing, a “Deferred LIP Payment Date”).
In the event of a LIP Participant’s death, payment shall be made to the LIP Participant’s estate or designated beneficiary pursuant to the laws of descent and distribution.
C. Forfeitures. Notwithstanding the above, in the event that a LIP Participant’s employment with the Company is terminated voluntarily by the LIP Participant or by the Company for Cause following a LIP Accrual Date but prior to the Deferred LIP Payment Date, the LIP Participant shall forfeit any amounts deferred pursuant to Section VII.B.2.
D. Reallocation of Forfeited Amounts. Any portion of a LIP Participant’s Liquidation Bonus that is forfeited under the terms of this Plan may be reallocated in such amounts, at such times and among such other LIP Participants (or to a replacement LIP Participant) as determined by the Committee in its sole discretion. Once such amounts are reallocated to other LIP Participants, such amounts shall be deemed part of their Liquidation Bonus and shall be subject to the terms of this Section VII. In connection with any reallocation hereunder, the Committee shall notify in writing the Creditors’ Committee of the terms of such proposed reallocation.
Subject to the approval of the Company’s Board of Directors, any portion of (i) a LIP Participant’s Liquidation Bonus that is forfeited under the terms of this Plan and that has not been reallocated to other LIP Participants and (ii) the Liquidation Bonus that has not been allocated to a LIP Participant (collectively, “LIP Excess Funds”), may be used to satisfy the retention and/or severance benefits payments (but not completion bonuses) awarded by the Company under the Enron Corp. Key Employee Retention and Severance Plan III (“KERP III”) (to the extent such payments have not been satisfied by amounts generated under KERP III or KERP I.
E. Intermediate Milestones; Substantial Contribution.
1. Notwithstanding the above, prior to attaining any Collection Milestone, the Committee in its sole discretion may create intermediate milestones based on amounts the Company actually collects from the sales of Assets (each, an “Intermediate Milestone”) and provide for pro rata distribution of a Liquidation Bonus based on such Intermediate Milestone in accordance with Section VII.B.2; provided, however, any amounts distributed under an Intermediate Milestone shall reduce on a dollar-for-dollar basis amounts due under the next succeeding Collection Milestone.
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2. Notwithstanding the above, the Committee in its sole discretion may award a Liquidation Bonus (in whole or in part) to any Participant who makes a substantial contribution (as determined by the Committee in its sole discretion) to the attainment of a Collection Milestone or Intermediate Milestone, but whose employment is involuntarily terminated by the Company without Cause prior to the LIP Accrual Date attributable to such Collection Milestone or Intermediate Milestone.
VIII. Conditions to Receipt of Final Payments
No final payment under the Plan, regardless of whether based on a Liquidation Bonus or a deferred Liquidation Bonus, will be made pursuant to this Plan unless and until the Participant has executed a general release in a form determined by the Company (“General Release”) which shall be in substantially the form annexed hereto on Schedule B, and the same becomes effective pursuant to its terms. The deferred Liquidation Bonus payment shall constitute a final payment and will require execution of a separate General Release.
IX. Unfunded Nature of Plan
This Plan shall constitute an unfunded mechanism for the Company to pay Liquidation Bonuses to participants from its general assets. No fund or trust is created with respect to the Plan, and no Participant shall have any security or other interest in the assets of the Company.
X. Compensation for Benefit Plan Purposes
Benefits paid under this Plan shall not be used to determine benefit amounts under the Company’s employee benefit programs.
XI. Prohibition Against Assignment or Encumbrance
No right, title, interest, or benefit hereunder shall ever be used to satisfy any of the tort liabilities or any other obligations of a Participant, or be subject to seizure by any creditor of a Participant or any person claiming rights under a Participant. No Participant or any person claiming rights under a Participant shall have the power to sell, transfer, pledge, anticipate, or dispose of any right, title, interest, or benefit hereunder in any manner until the same shall have been actually distributed free and clear pursuant to the
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terms of the Plan.
XII. Plan Not an Employment Contract
The Plan does not constitute an employment contract, nor does it give any Participant the right to continued employment with the Company or any of its Affiliates. All Participants remain subject to change of salary, transfer, change of job, discipline, layoff, discharge or any other change of employment status. Nothing herein shall be deemed to effect an assumption by the Company of any obligation of the Company under any existing employment agreement.
XIII. Severability
In the event any provision of the Plan shall be held invalid or illegal for any reason, any such illegality or invalidity shall not affect the remaining parts of the Plan, but the Plan shall be construed and enforced as if the illegal or invalid provision had never been inserted, and the Company shall have the privilege and opportunity to correct and remedy such provision or illegality or invalidity by amendment as provided in the Plan.
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XIV. Form of Payment; Withholding of Taxes
Payments of Liquidation Bonuses under this Plan shall be made in a lump sum cash payment. The Company shall have the right to deduct from any payments made under the Plan any federal, state, or local taxes required by law to be withheld with respect to such payments.
XV. Applicable Law
The Plan shall be governed and construed in accordance with the Federal laws and the laws of the State of Texas, notwithstanding any conflict of law principles. Venue for all claims and actions related to or arising under the Plan shall be exclusively in the Bankruptcy Court.
XVI. Effective Date of Plan
The Plan shall become effective as of November 17, 2004, subject to the approval of the U.S. Bankruptcy Court.
XVII. Amendment and Termination of the Plan
This Plan may be amended, modified or terminated at any time, and from time to time, and without prior notice to or consent of the Participants, by a written instrument executed by a duly authorized officer of the Company; provided, however, that any such amendment, modification or termination shall be subject to the approval of the U.S. Bankruptcy Court. No further payments shall be made upon termination of the Plan.
ENRON CORP.
By: _________________________ Title:
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RESOLUTION FOR ESTABLISHMENT AND ADOPTION OF ENRON CORP. LIQUIDATION INCENTIVE PLAN II
WHEREAS, it is the desire of Enron Corp. (the “Company”) to establish and adopt a, liquidation incentive plan (the “LIPII”) to retain a select group of employees who will contribute to maximizing the value of the Company by expeditiously and economically liquidating assets and certain of the Company’s non-core businesses;
NOW, THEREFORE, IT IS RESOLVED that the Chairman, the President (including interim), the Chief Financial Officer (including interim), the Executive Vice President, any Managing Director, or any Vice President of the Company (each, a “Proper Officer”), as appropriate be, and each of them hereby is, authorized, empowered and directed to prepare and execute a Plan document substantially in the form presented at this meeting;
RESOLVED FURTHER, that upon execution of such Plan document, the Plan shall be deemed adopted by this Board and is hereby ratified and approved;
RESOLVED FURTHER, that the Proper Officers of the Company and its counsel are hereby authorized, empowered and directed to take all such further action, to amend, execute and deliver all such instruments and documents, for and in the name and on behalf of the Company, under its corporate seal or otherwise, and to pay all such expenses, as in their judgment may be necessary, appropriate or advisable in order fully to carry into effect the purposes and intentions of this and the foregoing resolutions, including the execution of any further amendments, forms or documents recommended by counsel or required by any governmental agency, and to do anything necessary to effect compliance with applicable law or regulation; and
RESOLVED FURTHER, that non-debtor affiliates of the Company shall be required to reimburse the Company for amounts paid pursuant to the Plan in proportion to the services provided to such affiliates by participants in the Plan.
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Schedule A LIP II Participant Certification
1. I hereby certify, under the penalties of perjury, to the following:
(a) I have not sold the stock of Enron Corp., or any of its affiliates, (collectively “Enron”), in violation of the insider trading rules provided under Section 10(b)-5 of the Securities Exchange Act of 1934.
(b) I am not a named defendant in the lawsuits commonly known as Newby, et al. v. Enron Corp., et al., and The Regents of the University of California, et al. v. Lay, et al.
(c) I have not been identified as a wrongful actor in the “Report of Investigation by the Special Investigative Committee of the Board of Directors of Enron Corp.” dated February 1, 2002.
2. Further, I acknowledge and agree that I will disgorge any and all payments I receive under the Enron Corp. Liquidation Incentive Plan II (“LIP II”) if the certifications I have made in Paragraph 1 are later proved to be false, or if I am later adjudged by a court of competent jurisdiction to have engaged in acts of dishonesty or other willful misconduct detrimental to the interests of Enron.
3. I acknowledge and agree that, if I am identified by the Enron Corp. examiner appointed by the United States Bankruptcy Court for the Southern District of New York (the “BankruptcyCourt”), in any written report to the Bankruptcy Court, as having engaged in acts of dishonesty, or other willful misconduct, detrimental to the interests of Enron, my future payments under LIP II shall be suspended and held by Enron, pending further order of the Court.
4. In the event I am required to disgorge LIP II payments, I agree that Enron may withhold payments in those amounts from my wages and/or paycheck, or any other amounts I may be owed by Enron.
_____________________ _______________ Employee Signature P Number
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___________________________ ________________________ Employee Name Printed Social Security Number
___________________________ Date
Schedule B DO NOT SIGN BELOW UNLESS AND UNTIL ENRON CORP. HAS ADVISED YOU THAT YOU HAVE BEEN AWARDED A FINAL PAYMENT AND THE AMOUNT OF THE PAYMENT AWARDED As a condition of receiving your final payment under the EnronCorp. Liquidation Incentive Plan II (the “Plan”), you arerequired to sign the General Release below. At such time as youare advised that you have been awarded a final payment (that is,that you have been awarded the final payment permitted under thePlan and/or your employment is being terminated without cause)and the amount of that payment, you will be required to return anexecuted copy of the General Release.
GENERAL RELEASE
1. In consideration of the final payment to be paid pursuant to the Enron Corp. Liquidation Incentive Plan II (the “Plan”) of which I am a participant, I, ____, do, as of the Release Date (as defined below), release and forever discharge Enron Corp. and its subsidiaries and affiliated companies (the “Company”) (including all of its offices, branches, parents, subsidiaries and affiliates) and its present and former directors, officers, agents, attorneys, representatives, employees, successors, investors, shareholders, and assigns, from any and all actions, causes of action, covenants, contracts, claims and demands whatsoever, which I ever had, now have or which my respective heirs, family members, executors, agents and assigns, or any of them hereafter can, shall or may have by reason of my employment, or the termination of my employment, with the Company.
2. Claims Released. By signing this General Release, I am providing a complete waiver of all rights and claims that may have arisen, whether known or unknown, up until the date this General Release is signed (the “Release Date”), except as expressly excluded in Paragraph 3 or as specifically provided otherwise by law. This includes, but is not limited to, the following:
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(a) Any and all claims under the law of any jurisdiction relating to employment or the termination of employment, including, but not limited to, wrongful discharge of employment; constructive discharge from employment; termination in violation of public policy; breach of contract, both express and implied; any plans or policies providing for severance payments upon the termination of employment except as contained in the Plan, and any and all claims arising out of any other laws and regulations relating to employment or employment discrimination; and
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(b) Any and all claims for violation of any federal, state or municipal statute, including, but not limited to, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967 (including the Older Workers Benefit Protection Act), the Americans with Disabilities Act of 1990, the Fair Labor Standards Act, the Worker Adjustment and Retraining Notification Act, the Texas Commission on Human Rights Act, and any other applicable state and local fair employment laws.
3. Claims Not Released. This General Release shall be and remain in effect in all respects as a complete General Release as to the matters released. This General Release does not extend to any of the following:
(a) any obligations incurred by the Company under the Plan;
(b) any rights or claims I may have under any “employee benefit plans” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) maintained by the Company in the course of my employment or any rights under any of the Company’s deferred compensation plans or sales incentive plans and the EES Phantom Equity Plan;
(c) any claim for benefits under state workers’ compensation laws and state unemployment insurance laws,
(d) my right to any compensation (including wages, salary, commissions, bonus and paid time off) earned during the course of my employment with the Company on or after December 2, 2001; and
(e) my rights under any Directors and Officers insurance policies or any agreement of indemnification as a director or officer.
4. I represent that I have no lawsuits, claims, or actions pending in my name, or on behalf of any other person or entity, against the Company or any other person or entity referred to herein arising out of the rights I am releasing in Paragraph 2, above. I also represent that I do not intend to bring any claims on my own behalf or on behalf of any other person or entity against the Company or any other person or entity referred to herein, except as permitted by Paragraph 3, above.
5. By signing this General Release, I agree that I will not file any lawsuit or claim related to the claims and rights reserved in Paragraph 3(a), (b) and (d), above, other than by filing a proof of bankruptcy claim in the United States Bankruptcy Court for the Southern District of New York in connection with the Company’s bankruptcy proceedings.
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This Paragraph 6 only applies to employees who are at least 40 years old.
6. Acknowledgement of Waiver of Claims Under ADEA. The provisions of this Paragraph 6 only apply if I am at least 40 years old, as of the date I execute this General Release.
If I am 40 years of age or older as of the date I execute this General Release, I acknowledge that by signing this General Release I am waiving and releasing any rights I may have under the Age Discrimination in Employment Act of 1967 (“ADEA”) and that I have done so knowingly and voluntarily. This General Release does not apply to any rights or claims that may arise under ADEA after the Release Date. I acknowledge that I am required to execute this General Release as a condition of receiving this final payment.
I further acknowledge that I have been advised by this writing:
(a) To consult with an attorney prior to executing this General Release;
(b) I have up to twenty-one (21) days within which to consider this General Release;
(c) I have seven (7) days following my execution of this General Release to revoke my acceptance of the General Release; and
(d) This General Release shall not be effective until the revocation period has expired, and I acknowledge that I shall not receive the final payment under the Plan until after expiration of the seven (7) day revocation period.
I acknowledge, agree to and accept all the terms of thisGeneral Release.
________________________________ __________________________ _________________Employee’s Name (Print) Employee’s Signature Date