NON-SOLICITATION, COOPERATION AND GENERAL RELEASE AND WAIVER AGREEMENT
EXHIBIT
10.1
NON-SOLICITATION,
COOPERATION
AND
GENERAL
RELEASE AND WAIVER AGREEMENT
THIS
AGREEMENT
("Agreement") is made and entered into this 1st day of January 2006, by and
between ▇▇▇▇▇
ROSPUT
▇▇▇▇▇▇▇▇
(the "Executive")
and AGL
RESOURCES INC.,
(the "Company"),
on behalf of itself and its wholly-owned subsidiary AGL Services Company,
together with its successors and assigns.
RECITALS
WHEREAS,
the
Executive and the Company have previously entered into that certain Continuity
Agreement effective as of December 1, 2003 (the "Continuity Agreement") with
respect to Executive's employment with the Company; and
WHEREAS,
the
Executive tendered her resignation as an employee and director of the Company
effective as of December 31, 2005;
WHEREAS,
the Company
accepted such resignation; and
WHEREAS,
the parties
wish to settle all matters between the Executive and the Company.
NOW
THEREFORE, in
consideration of the mutual covenants contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Executive and the Company agree as follows:
AGREEMENT
1. Employment
and Directorship Termination.
The parties agree
and acknowledge that, as a result of Executive’s resignation: (i) Executive's
employment and directorship with the Company terminated effective December
31,
2005 (the "Termination Date") and (ii) on the Termination Date, the Continuity
Agreement terminated and is no longer in effect.
2. Payment.
As soon as
practicable, but no later than January 31, 2006, the Company will pay, or will
cause to be paid, to the Executive the sum of $281,000, less any applicable
withholding and other customary deductions, as (i) consideration for the
covenants contained in this Agreement and (ii) a full and final settlement
of
all amounts to which the Executive may claim to be entitled for any and all
employment with, and services to, the Company or any of its subsidiaries or
affiliates other than amounts due the Executive under the Company's compensation
and employee benefit plans.
3. Cooperation.
The Executive
agrees that she will be available to assist in an orderly transition for a
period of up to twenty-four (24) months following the Termination Date as
determined necessary, and as requested, by the Company. Additionally, the
Executive shall provide to the Chief Executive Officer and to the Chief
Financial Officer of the Company, certifications in the form attached hereto
as
Exhibits A and B, respectively, in connection with the filing by the Company
with the Securities and Exchange Commission of the Company’s annual report on
Form 10-K for the year ended December 31, 2005. Such certifications shall be
provided by Executive after she has had a reasonable opportunity to review
the
Form 10-K in substantially the form that the Company intends to file it.
4. Confidentiality;
Non-Disparagement; Non-Solicitation.
Without the prior
written consent of the Company, the Executive agrees hereby not to disclose
or
use, directly or indirectly (except as may be required by a court of competent
jurisdiction), any trade secret or other confidential information pertaining
to
the conduct of the Company's business, unless and until such trade secret or
confidential information is in the public domain. The Company's business, as
that term is used herein, includes, but is not limited to, the Company's and
any
of its subsidiaries' records, processes, methods, data, reports, information,
documents, equipment, training manuals, customer lists and business secrets.
Executive further agrees that, during the twenty-four (24) month period
following the Termination Date, the Executive shall not, without the prior
written consent of the Company: (i) initiate contact with employees of the
Company or any of its subsidiaries for employment outside the Company or one
of
its subsidiaries or (ii) hire or knowingly allow Executive’s then current
employer to hire any employee of the Company or any of its subsidiaries for
employment outside the Company or one of its subsidiaries. Except as may be
compelled by a court of competent jurisdiction or as may otherwise by required
by law, Executive shall take no action (including without limitation the making
of any oral or written statement) which damages the reputation of the Company
or
any of its subsidiaries or any of their respective employees, officers or
directors.
5. Release
and
Waiver. The
Executive, for
the Executive and the Executive's predecessors, successors, assigns, and heirs,
hereby agrees to discharge and release the Company and, as applicable, each
of
its direct and indirect subsidiaries or affiliated corporations, organizations,
and representatives, and their respective successors, assigns, present or former
owners, employees, officers, directors, consultants, partners, shareholders,
clients and counsel from all claims or demands the Executive may have based
on
the Executive's employment or directorship with the Company or with any
subsidiary or affiliate of the Company or the termination of any such employment
or directorship. This includes a release of any rights or claims the Executive
may have based on any facts or events, whether known or unknown by the
Executive, that occurred on or before the effective date of this Agreement,
or
events that are contemplated by this Agreement, including,
without limitation,
a release of any
rights or claims the Employee may have based on:
a. the
Civil Rights Act
of 1866, as amended, Title VII of the Civil Rights Act of 1964, as amended,
and
the Civil Rights Act of 1991, as amended; the Age Discrimination in Employment
Act of 1967, as amended; the Americans with Disabilities Act of 1990; the
Rehabilitation Act of 1973; the Equal Pay Act of 1963; the Employee Retirement
Income Security Act of 1974, as amended;
b. the
laws of the
State of Georgia concerning wages, employment and discharge or any other law,
rule, regulation or ordinance pertaining to employment, terms and conditions
of
employment, or termination of employment;
c. claims
arising out
of any legal restrictions of the right to terminate the Company’s employees such
as wrongful or unlawful discharge or related causes of action;
d. intentional
infliction of emotional distress; and/or
e. violations
of any
contract express or implied.
No
reference to the
aforementioned causes of action or claims is intended to limit the scope of
the
release and waiver provisions of this Agreement.
6. No
Future
Grievances.
The Executive
promises never to file, or cause to be filed, any petitions, charges,
complaints, grievances, lawsuits, or related documents with any judicial or
administrative agency or union relating to any matter released herein.
7. Period
of
Acceptance.
The Executive
acknowledges that she has been advised that the terms of this Agreement shall
be
open for acceptance by the Executive for a period of at least 21 days during
which time the Executive may consider whether or not to accept this Agreement
and seek counsel to advise the Executive regarding the same. The Executive
agrees that changes to this Agreement, whether material or immaterial, will
not
restart this acceptance period, and that she may use as much or as little of
this period as she wishes prior to signing. The Executive also acknowledges
that
she may revoke this Agreement within seven days after signing it. To be
effective, notice of such revocation must be received in writing by the Company.
Notice of such revocation may also be made by hand delivery or by
facsimile.
8. Complete
Understanding.
This Agreement
contains the parties' complete understanding and there are no other agreements,
oral or written, pertaining to the subject matter of this Agreement. Any
amendment or modification of this Agreement must be made in writing and signed
by all parties hereto. Any prior separation or release agreements or
understandings are hereby revoked unless specifically incorporated into this
Agreement.
9. Voluntary
Agreement.
The Executive
acknowledges that she is entering into this Agreement voluntarily and of her
own
free will, and that there were no inducements or representations leading to
the
execution of this document, except as described in this Agreement.
10. Consultation
with Counsel.
The Executive
acknowledges that before signing this Agreement, the Executive was advised
to
consult with an attorney prior to executing this Agreement and the Executive
had
an adequate opportunity to review the Agreement with persons of her choosing,
including her attorney, and the Executive signed the Agreement knowingly and
voluntarily.
11. Binding
Effect.
The parties
expressly agree that this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, successors and
assigns.
12. Severability.
In the event any
provision of the Agreement shall be held illegal or invalid for any reason,
the
illegality or invalidity shall not affect the remaining parts of the Agreement,
and the Agreement shall be construed and enforced as if the illegal or invalid
provision had not been included.
13. Counterparts.
This Agreement may
be executed in any number of counterparts each of which, taken together, shall
constitute one Agreement.
14. Governing
Law.
This Agreement
shall be governed by and construed in accordance with the laws of the State
of
Georgia, excluding any conflicts or choice of law rule or principle that might
otherwise refer construction or interpretation of this Agreement to the
substantive law of another jurisdiction.
IN
WITNESS WHEREOF,
the Executive and the Company have caused this Agreement to be executed as
of
the day and year first above written.
EXECUTIVE
/s/
▇▇▇▇▇ Rosput
▇▇▇▇▇▇▇▇
▇▇▇▇▇
Rosput
▇▇▇▇▇▇▇▇
/s/
▇▇▇▇ ▇.
▇▇▇▇▇▇▇
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its:
Executive Vice
President, General Counsel and Chief Ethics and Compliance
Officer
EXHIBIT
“A”
CERTIFICATION
PURSUANT TO SECTION 302 OF THE
▇▇▇▇▇▇▇▇-▇▇▇▇▇
ACT OF 2002
I,
▇▇▇▇▇ Rosput ▇▇▇▇▇▇▇▇, certify that:
1. I
have reviewed the
Annual Report on Form 10-K of AGL Resources Inc. for the fiscal year ended
December 31, 2005 (the “Report”);
2. Based
on my
knowledge, the Report does not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in
light
of the circumstances under which such statements were made, not misleading
with
respect to the period covered by the Report;
3.
Based
on my
knowledge, the financial statements and other financial information included
in
the Report fairly present in all material respects the financial condition,
results of operations and cash flows of the registrant as of, and for, the
periods presented in the Report;
4.
The
registrant's
chief financial officer and I were responsible for establishing and maintaining
adequate disclosure controls and procedures (as defined in Exchange Act Rules
13a-15(e) and 15d-15(e)) and adequate internal control over financial reporting
(as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant
for the fiscal year ended December 31, 2005 and we:
(a)
Designed
such
disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under our supervision, to ensure that material
information relating to the registrant, including its consolidated subsidiaries,
is made known to the registrant’s chief executive officer and chief financial
officer by others within those entities, particularly during the period in
which
the report was being prepared; and
(b) Designed
such
internal control over financial reporting, or caused such internal control
over
financial reporting to be designed under our supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally
accepted accounting principles;
5. I
evaluated the
effectiveness of the registrant’s disclosure controls and procedures as of the
end of the period covered by the Report and concluded that the registrant’s
disclosure controls and procedures were effective as of December 31, 2005 in
providing a reasonable level of assurance that information the registrant is
required to disclose in reports that it files or submits under the Exchange
Act
is recorded, processed, summarized and reported within the time periods in
SEC
rules and forms, including a reasonable level of assurance that information
required to be disclosed by the registrant in such reports is accumulated and
communicated to the registrant’s management, including the principal executive
officer and the principal financial officer, as appropriate to allow timely
decisions regarding required disclosures;
6. I
evaluated the
effectiveness of the registrant’s internal control over financial reporting as
of the end of the period covered by the Report based on the framework in
Internal
Control-Integrated Framework
issued by the
Committee of Sponsoring Organizations of the ▇▇▇▇▇▇▇▇ Commission and concluded
that the registrant’s internal control over financial reporting was effective as
of December 31, 2005;
and
7. I
have disclosed to
the registrant’s chief financial officer and to the audit committee of the
registrant’s board of directors any change in the registrant’s internal control
over financial reporting that occurred during the registrant’s fiscal quarter
ended December 31, 2005 that has materially affected, or is reasonably likely
to
materially affect, the registrant’s internal control over financial reporting;
and
8. I
have disclosed,
based on my most recent evaluation of internal control over financial reporting,
to the registrant's auditors and the audit committee of the registrant's board
of directors:
(a)
All
significant
deficiencies and material weaknesses in the design or operation of internal
control over financial reporting which are reasonably likely to adversely affect
the registrant's ability to record, process, summarize and report financial
information; and
(b)
Any
fraud, whether
or not material, that involves management or other employees who have a
significant role in the registrant's internal control over financial
reporting.
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Date:
February
__, 2006
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/s/
▇▇▇▇▇
Rosput ▇▇▇▇▇▇▇▇
|
|
|
Former
Chairman, President and Chief Executive Officer
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EXHIBIT
“B”
CERTIFICATION
PURSUANT TO SECTION 906 OF THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇ ACT OF 2002
The
undersigned, as the chief executive officer of AGL Resources Inc. during the
fiscal year ended December 31, 2005, certifies, pursuant to 18 U.S.C. Section
1350, as adopted pursuant to Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002,
that
to my knowledge:
(1) the
Annual Report on
Form 10-K of AGL Resources Inc. for the annual period ended December 31, 2005
(the “Report”) fully complies with the requirements of Section 13(a) or 15(d),
as applicable, of the Securities Exchange Act of 1934; and
(2) the
information
contained in the Report fairly presents, in all material respects, the financial
condition and results of operations of AGL Resources Inc.
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Date:
February
__, 2006
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/s/
▇▇▇▇▇
Rosput ▇▇▇▇▇▇▇▇
|
|
|
Former
Chairman, President and Chief Executive Officer
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