Exhibit 10(h)
EMPLOYMENT AGREEMENT
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This Employment Agreement is entered into this 28th day of February,
2003, by and between TXU Business Services Company, a Texas corporation (the
"Company") and H. Xxx Xxxxxx, an individual (the "Employee").
1. Employment. The Company hereby agrees to employ Employee, and
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Employee hereby agrees to serve the Company as its employee, subject to the
terms and conditions set forth herein.
2. Term. This Employment Agreement shall commence as of the date first
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set forth above and, unless terminated earlier pursuant to the provisions
hereof, shall expire on the third anniversary of the date first set forth above
("Term").
3. Title and Duties. Employee shall serve as Chief Financial Officer
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and will perform such duties and tasks as he may be called upon by the Company
to perform from time to time, such duties to be consistent with those described
generally herein or other duties consistent with Employee's title as set forth
above. Employee will endeavor to promote the business affairs and interests of
the Company and will devote all of his working time and attention to the
Company.
4. Compensation.
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(a) Base Salary. As compensation for his services hereunder,
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Employee shall receive the base salary currently in effect for Employee as of
the date of this Agreement, payable in equal installments at such periods as
shall from time to time be established by the Company as regular payroll
periods. Employee's base salary shall be subject to review and modification from
time to time at the discretion of the Company; provided that Employee's base
salary may be increased, but not decreased, during the Term.
(b) Employee Benefits. Employee shall be entitled to
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participate in all of the Company's employee benefit plans, programs,
arrangements and fringe benefit policies to the extent he is qualified to do so
by virtue of his employment with the Company, subject to the terms, conditions
and limitations of such plans, arrangements and policies, as they may be
amended, altered or terminated from time to time.
5. Severance Benefits. If Employee is terminated by the Company without
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Cause (as defined below) during the Term, Employee shall be entitled to receive
the compensation and benefits described in (a), (b), and (c) hereinbelow:
(a) A one-time cash severance payment, which shall be payable
as soon as reasonably practical following such termination, but in any event
within ten (10) business days thereafter, in an aggregate amount equal to the
sum of the following:
(i) The greater of: (a) the amount of base salary (as
in effect on the date of the termination) plus annual incentive awards (at the
highest previous target level and assuming performance satisfying a target
payout) that Employee would have received had he continued in the employment of
the Company hereunder through the expiration of the Term; or (b) twelve months'
base salary (as in effect on the date of the termination) plus Employee's target
annual incentive award for the year of the termination;
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(ii) An amount equal to the sum of: (a) the value (as
of the date of termination)of all unvested and otherwise unpayable restricted
stock (or alternative) awards previously granted to Employee under the Long
Term Incentive Compensation Plan ("LTICP") (as if performance criteria had been
met to permit payment of 100% of the award), and (b) the forfeited portion of
Employee's accounts under the TXU Deferred and Incentive Compensation Plan
("DICP") and the TXU Salary Deferral Program ("SDP") (valued in accordance with
the relevant provisions of the DICP and SDP, respectively); and
(iii) An amount equal to the difference between (a)
the aggregate required monthly premium for continuation coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") under the TXU
Medical (including prescription drugs), Dental and Group Life Insurance Plans,
and (b) the aggregate monthly employee contribution rate in effect for Employee
under such plans immediately prior to such termination, multiplied by eighteen
(18).
(b) In addition to such severance payment, Employee shall be
entitled to outplacement services, at the Company's expense through a
third-party outplacement consultant selected by the Company, for up to one
hundred eighty (180) days after such termination.
(c) In the event that the foregoing payments, or any portion
thereof, constitute an "excess parachute payment" under Section 4999 of the
Code, or any successor provision, the Company shall, in addition to providing
the foregoing payments and benefits, pay Employee a tax gross-up cash payment(s)
in an amount agreed upon by Employee to be sufficient to fully offset the excise
tax which Employee is, or may be, required to pay as a result thereof. Such tax
gross-up payment shall be paid to Employee concurrently with the cash payments
provided for hereinabove; provided that if the amount of such tax gross-up
payment cannot be finally determined by such date, the Company shall pay
Employee concurrently with such other payments an estimate, determined in good
faith by the Company, of the minimum amount of the required tax gross-up
payment. Thereafter, the Company shall promptly (but in any event within
forty-five (45) days of Employee's termination) determine in good faith the
total amount of the tax gross-up payment and seek to obtain Employee's approval
thereof. The remaining portion of the tax gross-up payment shall be paid to
Employee promptly after Employee approves the total amount.
Notwithstanding any other provision of this Agreement seemingly to the
contrary, Employee shall not be entitled to any of the payments or benefits
provided for under this Section 5 if Employee's termination is for Cause, or if
the circumstances of Employee's termination entitle him to the payments and
benefits provided for in Section 6 below.
6. Change In Control. If, during the Term: (i) Employee voluntarily
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terminates his employment with the Company (or its successor) within six (6)
months following a Change in Control (as defined below), or (ii) Employee's
employment is terminated by the Company (or its successor) without Cause, or
Employee terminates his employment for Good Reason (as defined below), in either
case within twenty-four (24) months following a Change in Control, Employee
shall be entitled to receive the compensation and benefits described in (a),
(b), (c) and (d) hereinbelow:
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(a) A one-time cash payment, which shall be payable as soon as
reasonably practical following such termination, but in any event within ten
(10) business days thereafter, in an aggregate amount equal to the sum of the
following:
(i) An amount equal to three (3) times the aggregate
of Employee's annualized base salary as in effect immediately prior to the
Change in Control plus Employee's target annual incentive award for the year in
which the Change in Control occurs;
(ii) An amount equal to the sum of: (a) the value (as
of the date of termination)of all unvested and otherwise unpayable restricted
stock (or alternative) awards previously granted to Employee under the LTICP
(as if performance criteria had been met to permit payment of 100% of the
award), and (b) the forfeited portion of Employee's accounts under the DICP and
SDP (valued in accordance with the relevant provisions of the DICP and SDP,
respectively);
(iii) An amount equal to the sum of: (a) the matching
contributions which would have been made under the DICP had Employee continued
to defer salary thereunder at the rate in effect as of the effective date of the
Change in Control, for an additional three years following the termination of
employment; and (b) the matching contributions which would have been made under
the SDP had Employee continued to defer salary thereunder at the rate in effect
as of the effective date of the Change in Control, for an additional three years
following the termination of employment; and
(iv) An amount equal to the difference between (a)
the monthly COBRA premium for coverage under the Company's medical (including
prescription drugs), dental and group life insurance plans, and (b) the monthly
employee contribution under such plans in effect for Employee immediately prior
to the termination, multiplied by eighteen (18).
(b) In addition to such payment, Employee shall be entitled to
the following benefits:
(i) The Company shall fully secure the benefit
provided for under the Split-Dollar Life Insurance Program by making irrevocable
contributions to the trust established thereunder ("Trust") as contemplated in
Section 11 of the Split-Dollar Life Insurance Program. Additionally, Employee's
participation in the Split-Dollar Life Insurance Program shall continue
notwithstanding the termination of employment as if the Participation Agreement
between the Company and Employee entered into under the Split-Dollar Life
Insurance Program continued in accordance with its terms as in effect prior to
Employee's termination and as if Employee's termination had not occurred. In the
event the Company terminates the Split-Dollar Life Insurance Program, the
Company shall nonetheless provide Employee with the benefits contemplated under
the Split-Dollar Life Insurance Program, as in effect on the effective date of
this Agreement, and shall fully secure such benefits through irrevocable
contributions to the Trust;
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(ii) Employee shall, at the Company's cost, be
entitled to financial planning services equivalent to services available under
the Company's executive financial planning program for three years from the date
of the termination; and
(iii) The Company shall pay on behalf of Employee, or
shall reimburse Employee for, the physician fees for one physical examination of
Employee per year for three years from the date of the termination.
(c) In addition to such severance payments and benefits,
Employee shall be entitled to additional retirement compensation ("Additional
Severance Retirement Compensation") in an amount equal to the difference
between: (i) the benefit Employee is entitled to receive under the TXU
Retirement Plan ("Retirement Plan") and the TXU Second Supplemental Retirement
Plan ("Supplemental Retirement Plan"), and (ii) the amount of the retirement
benefit Employee would have been entitled to receive under the Retirement Plan
and the Supplemental Retirement Plan had Employee continued in the employment of
the Company, and continued participating in the Retirement Plan, through the
expiration of the Term. The calculation of the Additional Severance Retirement
Compensation shall assume: (x) an annual increase in base salary (effective as
of the normal effective date for executive salary adjustments under the
Company's standard practice in effect as of the termination) equal to Employee's
greatest base salary increase during the Term, and (y) an annual bonus payment
(payable at the normal time under the AIP, or successor plan) equal to the
highest annual bonus payment previously paid to Employee. The Additional
Severance Retirement Compensation shall be payable in the form elected by
Employee with respect to benefits under the Retirement Plan. The amount of the
Additional Severance Retirement Compensation shall be determined by the actuary
for the Retirement Plan using the assumptions set forth above and other
reasonable and consistent actuarial assumptions substantially similar to those
used in connection with the determination of benefits payable under the
Retirement Plan. The Additional Severance Retirement Compensation is not
intended to meet the qualification requirements of Section 401 of the Internal
Revenue Code of 1986, as amended ("Code"); however the Additional Severance
Retirement Compensation shall be funded and payable under the rabbi trust
established under the Supplemental Retirement Plan.
(d) In the event that the foregoing payments, or any portion
thereof, constitute an "excess parachute payment" under Section 4999 of the
Code, or any successor provision, the Company shall, in addition to providing
the foregoing payments and benefits, pay Employee a tax gross-up cash payment(s)
in an amount agreed upon by Employee to be sufficient to fully offset the excise
tax which Employee is, or may be, required to pay as a result thereof. Such tax
gross-up payment shall be paid to Employee concurrently with the cash payments
provided for hereinabove; provided that if the amount of such tax gross-up
payment cannot be finally determined by such date, the Company shall pay
Employee concurrently with such other payments an estimate, determined in good
faith by the Company, of the minimum amount of the required tax gross-up
payment. Thereafter, the Company shall promptly (but in any event within
forty-five (45) days of Employee's termination) determine in good faith the
total amount of the tax gross-up payment and seek to obtain Employee's approval
thereof. The remaining portion of the tax gross-up payment shall be paid to
Employee promptly after Employee approves the total amount.
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(e) For purposes of this Agreement, "Change in Control" shall
mean a change in control of TXU Corp. of a nature that would be required to be
reported in response to Item 1(a) of the Securities and Exchange Commission Form
8-K, as in effect on the date hereof, pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended ("Exchange Act), or would have been
required to be so reported but for the fact that such event had been "previously
reported" as that term is defined in Rule 12b-2 of Regulation 12B under the
Exchange Act; provided that, without in any way limiting the foregoing, a Change
in Control shall be deemed to have occurred if any one or more of the following
events occurs: (i) any Person is or becomes the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of TXU
Corp. representing 20% or more of the combined voting power of TXU Corp.'s then
outstanding securities having the right to vote at elections of directors of TXU
Corp. ("Voting Securities"); (ii) individuals who constitute the board of
directors of TXU Corp. on the effective date of this Agreement (the "Incumbent
Board") cease for any reason to constitute at least a majority thereof, provided
that any person becoming a director subsequent to the effective date of this
Agreement whose election, or nomination for election by TXU Corp.'s
shareholders, was approved by at least three-quarters of TXU Corp.'s directors
comprising the Incumbent Board (either by a specific vote or by approval of the
proxy statement of TXU Corp. in which such person is named as a nominee for
director, without objection to such nomination) shall, for purposes of this
clause (ii), be considered as though such person were a member of the Incumbent
Board; (iii) a recapitalization or reclassification of the Voting Securities of
TXU Corp. , which results in either (a) a decrease by 33% or more in the
aggregate percentage ownership of Voting Securities held by Independent
Shareholders (on a primary basis or on a fully diluted basis after giving effect
to the exercise of stock options and warrants), or (b) an increase in the
aggregate percentage ownership of Voting Securities held by non-Independent
Shareholders (on a primary basis or on a fully diluted basis after giving effect
to the exercise of stock options and warrants) to greater than 50%; (iv) all or
substantially all of the assets of TXU Corp. are liquidated or transferred to an
unrelated party; or (v) TXU Corp. is a party to a merger, consolidation,
reorganization or similar transaction pursuant to which TXU Corp. is not the
surviving ultimate parent entity. For purposes of this definition, the term
"Person" shall mean and include any individual, corporation, partnership, group,
association or other "person", as such term is used in Section 14(d) of the
Exchange Act, other than TXU Corp., a subsidiary of TXU Corp. or any employee
benefit plan(s) sponsored or maintained by TXU Corp. or any subsidiary thereof,
and the term "Independent Shareholder" shall mean any shareholder of TXU Corp.
except any employee(s) or director(s) of TXU Corp. or any employee benefit
plan(s) sponsored or maintained by TXU Corp. or any subsidiary thereof.
(f) For purposes of this Agreement, "Good Reason" shall mean
any one or more of the following occurrences: (i) Employee's base salary as in
effect immediately prior to the Change in Control, or as it may be increased
subsequent to the Change in Control, is reduced; (ii) Employee's status or
responsibilities with the Company immediately prior to the Change in Control are
materially reduced, or Employee is assigned duties which are inconsistent with
such status or responsibilities, or Employee's business location is materially
changed; (iii) the Company (or its successor) fails to continue in effect any
pension, health care or executive compensation plan or arrangement in which
Employee was participating immediately prior to the Change in Control, or
Employer or the Company (or their successors) takes some action which materially
reduces Employee's benefits under any such plan or program, without (in either
such case) providing Employee with substantially similar benefits; or (iv) any
successor to the Company in connection with the Change in Control does not,
prior to the Change in Control, expressly assume this Agreement.
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7. Definition of Cause. For purposes of this Agreement, the term Cause
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shall mean any one or more of the following: (a) the material breach by the
Employee of this Agreement; (b) Employee's breach of his fiduciary duty to the
Company and/or its shareholders in his capacity as an officer of the Company;
(c) any action or failure to act on the part of Employee which results in
material injury to the assets, business prospects or reputation of the Company
or any affiliate of the Company; (d) the appropriation of a material business
opportunity of the Company or any affiliate of the Company, including attempting
to secure or securing any personal profit in connection with any transaction
entered into on behalf of the Company; or (e) Employee's failure to
substantially perform his duties and responsibilities hereunder, including
without limitation Employee's breach of the Company's Code of Conduct or an
express employment policy of the Company.
8. Severance/Change in Control Benefits Contingent Upon Full Release.
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Employee acknowledges and agrees that the benefits and payments provided for in
Section 5 or 6, as applicable, constitute the exclusive remedy of Employee upon
termination of employment under the circumstances described in Section 5 or 6,
as the case may be. Notwithstanding any other provision of this Agreement, as a
condition to receiving such benefits and payments, Employee shall be required to
execute a release of claims in favor of the Company in a form reasonably
acceptable to the Company.
9. Confidentiality and Nondisclosure.
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(a) Employee understands and agrees that he will be given
Confidential Information (as defined below) and Training (as defined below)
during his employment with the Company relating to the business of the Company
and/or its Affiliates (as defined below), in exchange for his agreement herein.
Employee hereby expressly agrees to maintain in strictest confidence and not to
use in any way (including without limitation in any future business relationship
of Employee), publish, disclose or authorize anyone else to use, publish or
disclose in any way, any Confidential Information relating in any manner to the
business or affairs of the Company and/or its Affiliates. Employee agrees
further not to remove or retain any figures, calculations, letters, documents,
lists, papers, or copies thereof, which embody Confidential Information of the
Company and/or its Affiliates, and to return, prior to Employee's termination of
employment, any such information in Employee's possession. If Employee
discovers, or comes into possession of, any such information after his
termination he shall promptly return it to the Company. Employee acknowledges
that the provisions of this paragraph are consistent with the Company's Code of
Conduct with which Employee, as an employee of the Company, is bound.
(b) For purposes of this Agreement, "Confidential Information"
includes, but is not limited to, information in the possession of, prepared by,
obtained by, compiled by, or that is used by the Company or any of its
Affiliates or customers and (1) is proprietary to, about, or created by the
Company or its Affiliates or customers; (2) gives the Company or its Affiliates
or customers some competitive business advantage, the opportunity of obtaining
such advantage, or disclosure of which might be detrimental to the interest of
the Company or its Affiliates or customers; and (3) is not typically disclosed
by the Company or its Affiliates or customers, or known by persons who are not
employed by the Company or its Affiliates or customers. Without in any way
limiting the foregoing and by way of example, Confidential Information shall
include: information not generally available to the general public pertaining to
the Company's business operations such as financial and operational information
and data, operational plans and strategies, business and marketing strategies
and plans for various products and services, global operational planning, and
acquisition and divestiture planning.
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(c) For purposes of this Agreement, "Training" includes, but
is not limited to, specialized and valuable training regarding Confidential
Information.
(d) For purposes of this Agreement, "Affiliate" shall mean any
person, or entity (or sub-unit of an entity) that, directly or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with the Company.
10. Non-Compete and Non-Solicitation. Employee acknowledges and agrees
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that: (1) in order to perform his obligations and job duties for the Company,
Employee will gain Training and access to Confidential Information regarding the
Company and/or its Affiliates or customers; (2) use of such Confidential
Information in competition with the Company and/or its Affiliates or customers
would be detrimental to the business interests of the Company and/or its
Affiliates or customers; and (3) Employee would not have been allowed to gain
access to Confidential Information, or to provide the obligations and job duties
contemplated under this Agreement without his promises and agreements contained
in the following paragraph. Employee acknowledges and agrees further that the
Company is a diverse energy company and that, based on the nature and size of
the Company and the scope of its operations, the areas in which the Company
competes are not limited. Employee also acknowledges and agrees that the
services he will be performing for the Company, and the Confidential Information
and Training he will be provided, relate to the world-wide operations of the
Company and its Affiliates, and will not be limited to any specific geographic
location within which the Company, or any of its Affiliates, conducts business.
Employee agrees that, during his employment with the Company, and for a
period of one (1) year thereafter, Employee shall not, directly or indirectly,
either as an employee, employer, independent contractor, consultant, agent,
principal, partner, stockholder, officer, director, or in any other individual
or representative capacity, either for his own benefit or the benefit of any
other person or entity: (i) engage or participate in a business which competes
in a material manner with the Company or any of its Affiliates in any geographic
location in which the Company conducts business; (ii) contact, solicit or
attempt to solicit the business or patronage of any of the Company's (or
Affiliate's) customers, or prospective customers, or any person, firm,
corporation, company, partnership, association or entity which was contacted or
whose business was solicited, serviced or maintained by the Company (or its
Affiliates) during the term of Employee's employment with the Company; or (iii)
solicit, recruit, induce, encourage or in any way cause any employee of the
Company (or an Affiliate) to terminate his/her employment with the Company (or
such Affiliate). Notwithstanding the foregoing, the restriction provided in (i)
above shall apply following the termination of this Agreement only if Employee
receives the payments and benefits provided for in Section 5 or 6 above.
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11. Injunctive Relief. Because of the unique nature of the business to
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be conducted by the Company and its Affiliates and the Confidential Information
relating thereto, Employee acknowledges, understands and agrees that the Company
and/or its Affiliates will suffer immediate and irreparable harm if Employee
fails to comply with any of his obligations under Sections 9 and 10 of this
Agreement, and that monetary damages alone will be inadequate to compensate the
Company or its Affiliates for such breach. Accordingly, Employee agrees that the
Company and/or its Affiliates shall, in addition to any other remedies available
to it at law or in equity, be entitled to temporary, preliminary, and permanent
injunctive relief and specific performance to enforce the terms of Sections 9
and 10 without the necessity of proving inadequacy of legal remedies or
irreparable harm or posting bond.
12. Deductions and Nonalienation of Benefits. Employee shall be
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required to pay promptly on demand, by payroll deduction or otherwise, the
amount required to be withheld by the Company for income and employment taxes in
respect of amounts paid under this Agreement. No right, benefit or payment
hereunder shall be subject to anticipation, alienation, sale, assignment,
pledge, encumbrance or charge, and any attempt to anticipate, alienate, sell,
assign, pledge, encumber or charge the same shall be null and void. No right,
benefit or payment hereunder shall in any manner be subject to, voluntarily or
involuntarily, the debts, contracts, liabilities or torts of Employee or be
otherwise subject to any execution, garnishment, attachment, insolvency,
bankruptcy or legal proceedings of any character or legal sequestration, levy or
sale. If Employee or any other beneficiary hereunder shall become bankrupt or
attempt to anticipate, alienate, sell, assign, pledge, encumber or charge any
right, benefit or payment hereunder, such right, benefit or payment may be
terminated at any time by the Company without liability or further obligation.
13. The Company's Right to Modify Employee Benefit Plans. Nothing in
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this Agreement shall be construed as a limitation on the absolute right of the
Company, at any time and from time to time at its sole discretion, to amend or
modify, in whole or in part, or to terminate, any employee benefit plan, program
or policy sponsored or maintained by the Company; provided, however, that no
such amendment or termination shall eliminate or reduce the payments and
benefits provided for in Sections 5 and 6 hereof, it being understood that, if
from and after the date hereof, any plan or program referenced in Section 5 or 6
hereof is terminated or amended and such termination or amendment would reduce
the payments or benefits provided for under Section 5 or 6, such terminated or
amended plan or program shall, for purposes of calculating the payments and
benefits under Section 5 or 6 hereof be deemed to be in effect as of the
effective date of this Agreement. Any plan or program which is specifically
referenced herein shall be deemed to include any successor plan or program or
any similar plan or program adopted and maintained by the Company to provide
Employee with the same or similar benefits provided for under such specifically
referenced plan or program.
14. Entire Agreement. This Agreement contains the complete
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understanding and agreement between the parties and supersedes any and all other
agreements, understandings, or communications of any kind, either oral or in
writing, between the parties hereto with respect to the subject matter hereof.
Each party to this Agreement acknowledges that no representations, inducements,
promises, or agreements, orally or otherwise, have been made by any party, or
anyone acting on behalf of any party, which are not embodied herein, and that no
other agreement, statement, or promise with respect to the subject matter of
this Agreement shall be valid or binding. Subject to the provisions of Section 5
and 6 hereof regarding certain payments and benefits upon a termination
satisfying the criteria set forth in such sections, nothing in this Agreement
shall be construed as conferring any right upon Employee to continued employment
by the Company. Any modification of this Agreement will be effective only if it
is in writing signed by both of the parties hereto.
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15. Severability. If any provision in this Agreement is held by a court
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of competent jurisdiction to be invalid, void, or unenforceable, the remaining
provisions shall nevertheless continue in full force without being impaired or
invalidated in any way.
16. Survival. The parties hereby acknowledge and agree that certain
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provisions of this Agreement are, by their nature, intended to survive this
Agreement and the parties agree that all of such provisions shall survive
Employee's termination of employment, regardless of the reason for such
termination. Employee acknowledges and agrees that the covenants and
restrictions in Sections 9 and 10 of this Agreement are reasonable and necessary
due to the highly competitive, confidential and proprietary nature of the
services to be performed by Employee hereunder.
17. Successors. This Agreement shall be binding upon and inure to the
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benefit of Employee, his heirs, beneficiaries and personal representatives, and
the Company and any successor or assignee of the Company, but neither this
Agreement, nor any of the rights or obligations of either party hereunder may be
assigned, in whole or in part, except the Company may assign this Agreement to
any affiliate of the Company. The Company will seek to obtain the written
acknowledgment and assumption of this agreement by any successor of the Company
prior to any transaction or event pursuant to which such successor becomes the
successor to the Company. Whether or not such written acknowledgment and
assumption is given, this Agreement shall be binding on such successor and its
assignees.
18. Notices. Any notices to be given hereunder by either party to the
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other may be effected by personal delivery in writing, by facsimile or by mail,
registered or certified, postage prepaid to the current address of the other
party with return receipt requested. Notices delivered personally or by
facsimile shall be deemed communicated as of actual receipt; mailed notices
shall be deemed communicated as of three (3) days after mailing.
19. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Texas.
EXECUTED on the date first set forth above.
TXU BUSINESS SERVICES COMPANY EMPLOYEE:
By: /s/Xxxx Xxx /s/ H. Xxx Xxxxxx
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Xxxx Xxx, Chairman of the Board H. Xxx Xxxxxx
and Chief Executive
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