Exhibit 10(g)(4)
RELEASE AND SETTLEMENT AGREEMENT
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This Agreement is between Norman B. Johnsen (hereinafter "Employee") and
TUCSON ELECTRIC POWER COMPANY (hereinafter "the Company"). Employee has been
employed by the Company, most recently as Vice President-System Planning and
Pricing. The Company and Employee have mutually agreed that the employment
relationship between Employee and the Company will cease, effective September
1, 1994. The Company and Employee desire to enter into the within agreement
to compromise, release and settle those claims described herein relating to
Employee's employment with the Company or the cessation thereof and any
circumstances leading thereto.
The Company and Employee hereby agree as follows:
1. (a) Employee shall receive from the Company, in cash, payable by
the close of business on September 7, 1994, the sum of ($ ), less
required withholdings.
(b) Employee shall receive from the Company, in cash, payable on
the first regular business day following January 1, 1995, the sum
of ($ ), less required withholdings.
(c) Employee shall receive from the Company, in cash, payable on
the first regular business day following January 1, 1996, the sum
of ($ ), less required withholdings.
(d) Employee shall receive from the Company, in cash, payable on
the first regular business day following January 1, 1997, the sum
of ($ ), less required withholdings.
2. Employee will also have the opportunity to purchase the automobile
(as presently equipped) previously furnished to Frederic N. Finney by the
Company during his period of employment with the Company for current low blue
book value, by tendering the low blue book value of the automobile in cash to
the Company by September 7, 1994.
3. Employee is a participant in the Company's Salaried Employment
Retirement Plan (the "Plan"). He has elected to retire under the Plan as of
September 1, 1994 (the "Retirement Date"). As an additional inducement, the
Company agrees to pay Employee a "Supplemental Pension" which shall be paid
as follows:
(a) Employee shall receive from the Company, in cash, payable by the
close of business on September 7, 1994, the sum of ($ ), less required
withholdings.
(b) Employee shall receive from the Company, in cash, payable on the
first regular business day following January 1, 1995, the sum of ($ ),
less required withholdings.
(c) Employee shall receive from the Company, in cash, payable on the
first regular business day following January 1, 1996, the sum of ($ ),
less required withholdings.
(d) Employee shall receive from the Company, in cash, payable by the
close of business on January 1, 1997, the sum of ($ ), less required
withholdings.
4. Up until and including August 31, 1997, Employee shall have the
right, under the Tucson Electric Power Company 1994 Stock and Incentive Plan,
to exercise any Options he holds on the Retirement Date, pursuant to the
vesting schedule of such Options.
5. For and in consideration of the mutual covenants herein, including
the cash payment to Employee, the opportunity to purchase the Company
automobile, and the Supplemental Pension, all of which are described above,
Employee agrees to compromise, release and fully and forever discharge the
Company, including, but not in limitation thereof, all directors, officers,
employees, agents, or attorneys thereof, from any and all claims of whatever
kind or nature, and however arising, including, but not in limitation
thereof, all claims for personal injury (including all claims for medical
treatment related thereto), pain and suffering, mental anguish, humiliation
or embarrassment, loss or diminution of self or professional esteem,
reputation, or any and all claims of whatever kind or nature, arising out of,
resulting from or concerning Employee's employment with the Company or
Employee's cessation of employment with the Company or the circumstances
leading thereto.
6. This compromise, release and discharge shall specifically include,
and shall constitute a knowing and voluntary waiver of, any and all claims,
of whatever kind or nature, and however arising, Employee has or may have
pursuant to or under the Age Discrimination in Employment Act of 1967
(hereinafter "ADEA"), 29 U.S.C. Section 621, et seq., the Civil Rights Act of
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1964, 42 U.S.C. 2000e, et seq., the Civil Rights Restoration Act, 20 U.S.C.
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Section 1681, et seq., and any and all statutes of a similar nature or
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import, or concerning the same subject matter, whether federal statutes or
those of the State of Arizona, including specifically, but not in limitation
thereof, the Arizona Civil Rights Act, A.R.S. Section 41-1441 et seq.
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7. In connection with any waiver of any potential claims under the
ADEA, Employee further expressly acknowledges and agrees:
(a) Employee's waiver only extends to rights or claims under the ADEA
that have arisen on or before the date of this Agreement;
(b) In return for this Agreement, Employee will receive compensation
beyond that which he was already entitled to receive before entering
into this Agreement;
(c) Employee was orally advised by Doug Douglas and is hereby advised
in writing by this Agreement to consult with an attorney of his choice
before signing this Agreement;
(d) Employee was given a copy of this Agreement on August 31, 1994, and
informed that he had 21 days within which to consider the Agreement; and
(e) Employee was informed that he has seven days following the date of
execution of the Agreement in which to revoke the Agreement and the
Agreement will not be effective or enforceable until the revocation
period has expired.
8. This compromise, release and discharge shall also specifically
include any and all claims, of whatever kind or nature, and however arising,
and however characterized, for wrongful discharge or breach of any express or
implied employment agreement, whether arising under the law of the United
States, the State of Arizona, or otherwise.
9. This compromise, release and discharge shall also specifically
include, and shall constitute a knowing and voluntary waiver of, any and all
claims, of whatsoever kind or nature, and however arising, Employee has or
may have pursuant to or under the Employment Security Laws of the State of
Arizona, A.R.S. Section 23-601 et seq., and Employee specifically
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acknowledges and agrees that the payment to him of the amounts as set forth
above adequately and fully compensates him for his cessation of employment
from the Company and that he will not file for or make any claim for
unemployment compensation benefits under A.R.S. Section 23-772, or otherwise.
10. Employee further acknowledges, agrees and warrants that the release
and settlement given by him herein, is done knowingly, and voluntarily, that
he has had the opportunity to fully consider and understand the terms of this
release and settlement, and does fully understand the terms of this release
and settlement. Employee further acknowledges that no representations or
coercion of any kind have been made or used to induce him to enter into this
release and settlement, and that the mutual considerations herein for this
release and settlement are fair and are fully satisfactory to him. Employee
further acknowledges that he freely, voluntarily and knowingly executes this
release and settlement, fully realizing that he hereby compromises, releases
and settles all aforementioned claims which he may have against the Company.
11. This release and settlement shall be binding upon, and the benefits
shall accrue to the heirs, representatives, successors and assigns of the
parties hereto.
12. Employee understands that this release and settlement shall not be
effective until seven days from the date written below, and that he may
change his mind and revoke this release and settlement within that seven day
period, but that after that seven day period, or no later than September 7,
1994, this release and settlement shall be fully binding and effective.
13. The parties hereto hereby sign and execute this release and
settlement agreement this 31st day of August, 1994.
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Norman B. Johnsen
TUCSON ELECTRIC POWER COMPANY
By___
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Its
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STATE OF ARIZONA)
) ss.
COUNTY OF PIMA )
The foregoing instrument was acknowledged before me by Norman B. Johnsen
this 31st day of August, 1994.
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Notary Public
My Commission Expires:
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STATE OF ARIZONA)
) ss.
COUNTY OF PIMA )
The foregoing instrument was acknowledged before me this day of
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, 1994, by
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(Name), (Title) of Tucson Electric Power Company, an
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Arizona corporation, on behalf of the corporation.
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Notary Public
My Commission Expires:
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ENDORSEMENT
I, Norman B. Johnsen, hereby acknowledge that I was given 21 days to
consider the foregoing Agreement and voluntarily chose to sign the Agreement
prior to the expiration of the 21-day period.
I declare under penalty of perjury under the laws of the State of
Arizona that the foregoing is true and correct.
EXECUTED this 31st day of August, 1994, at Pima County, Arizona.
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Norman B. Johnsen