INTEREST IN ANY OF THE COMPANY'S SUPPLIERS,
VENDORS, CUSTOMERS, PARTNERS, SUBCONTRACTORS OR COMPETITORS THAT WOULD BE
CONSIDERED A CONFLICT OF INTEREST UNDER THE COMPANY'S GLOBAL COMPLIANCE POLICY
RELATING TO CONFLICTS OF INTEREST AND (IV) ON THE COMMENCEMENT DATE, THIS
AGREEMENT SHALL BE THE VALID AND BINDING OBLIGATION OF EXECUTIVE, ENFORCEABLE IN
ACCORDANCE WITH ITS TERMS. EXECUTIVE HEREBY ACKNOWLEDGES AND REPRESENTS THAT HE
HAS CONSULTED WITH INDEPENDENT LEGAL COUNSEL REGARDING HIS RIGHTS AND
OBLIGATIONS UNDER THIS AGREEMENT AND THAT HE FULLY UNDERSTANDS THE TERMS AND
CONDITIONS CONTAINED HEREIN.
11. NOTICES. ALL NOTICES OR COMMUNICATIONS HEREUNDER SHALL BE IN WRITING,
ADDRESSED AS FOLLOWS:
To the Company:
Mirant Corporation
Chief Executive Officer
1155 Perimeter Center West
Atlanta, GA 30338-5416
with a copy to:
Legal Department
Mirant Services, LLC
1155 Perimeter Center West
Atlanta, GA 30338-5416
Fax: 678-579-5589
To Executive:
To the address on file with Company
All such notices shall be conclusively deemed to be received and shall be
effective (i) if sent by hand delivery, upon receipt or (ii) if sent by
electronic mail or facsimile, upon confirmation of receipt by the sender of such
transmission.
12. SEVERABILITY. IN THE EVENT ANY PROVISION OR PART OF THIS AGREEMENT IS FOUND
TO BE INVALID OR UNENFORCEABLE, ONLY THAT PARTICULAR PROVISION OR PART SO FOUND,
AND NOT THE ENTIRE AGREEMENT, WILL BE INOPERATIVE.
14
13. COMPLETE AGREEMENT. THIS AGREEMENT, THE LTIP AWARD AGREEMENTS AND THOSE
DOCUMENTS EXPRESSLY REFERRED TO HEREIN EMBODY THE COMPLETE AGREEMENT AND
UNDERSTANDING AMONG THE PARTIES AND SUPERSEDE AND PREEMPT ANY PRIOR
UNDERSTANDINGS, AGREEMENTS OR REPRESENTATIONS BY OR AMONG THE PARTIES, WRITTEN
OR ORAL, WHICH MAY HAVE RELATED TO THE SUBJECT MATTER HEREOF IN ANY WAY.
14. NO STRICT CONSTRUCTION. THE LANGUAGE USED IN THIS AGREEMENT SHALL BE DEEMED
TO BE THE LANGUAGE CHOSEN BY THE PARTIES HERETO TO EXPRESS THEIR MUTUAL INTENT,
AND NO RULE OF STRICT CONSTRUCTION SHALL BE APPLIED AGAINST ANY PARTY.
15. COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN SEPARATE COUNTERPARTS, EACH
OF WHICH IS DEEMED TO BE AN ORIGINAL AND ALL OF WHICH TAKEN TOGETHER CONSTITUTE
ONE AND THE SAME AGREEMENT.
16. SUCCESSORS AND ASSIGNS. THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO
THE BENEFIT OF THE BENEFICIARIES, HEIRS AND REPRESENTATIVES OF EXECUTIVE AND THE
SUCCESSORS AND ASSIGNS OF THE COMPANY. THE COMPANY SHALL REQUIRE ANY SUCCESSOR
(WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER, REORGANIZATION, CONSOLIDATION,
ACQUISITION OF PROPERTY OR STOCK, LIQUIDATION, OR OTHERWISE) TO ALL OR A
MAJORITY OF ITS ASSETS, BY AGREEMENT IN FORM AND SUBSTANCE SATISFACTORY TO
EXECUTIVE, EXPRESSLY TO ASSUME AND AGREE TO PERFORM THIS AGREEMENT IN THE SAME
MANNER AND TO THE SAME EXTENT THAT THE COMPANY WOULD BE REQUIRED TO PERFORM THIS
AGREEMENT IF NO SUCH SUCCESSION HAD TAKEN PLACE. EXECUTIVE MAY NOT ASSIGN HIS
RIGHTS (EXCEPT BY WILL OR THE LAWS OF DESCENT AND DISTRIBUTION) OR DELEGATE HIS
DUTIES OR OBLIGATIONS HEREUNDER. EXCEPT AS PROVIDED BY THIS SECTION 16, THIS
AGREEMENT IS NOT ASSIGNABLE BY ANY PARTY AND NO PAYMENT TO BE MADE HEREUNDER
SHALL BE SUBJECT