Exhibit 10(m)
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of the 1st day of July,
2000, by and between TXU Corp. f/k/a Texas Utilities Company, a Texas
corporation (the "Company") and X. X. Xxxxxx, an individual (the "Employee").
RECITALS
WHEREAS, Employee currently serves as the President - Generation
Division of the Company's indirect wholly-owned subsidiary, TXU Electric Company
("Employer"); and
WHEREAS, the Company and Employer currently desire Employee to continue
in such capacity, and the parties desire to evidence their understanding and
agreement regarding the terms and conditions of Employee's continued employment,
all as set forth herein.
NOW, THEREFORE, the parties agree as follows.
1. Employment. The Company shall cause Employer to employ Employee.
Employee hereby agrees to serve the Company and Employer, subject to the terms
and conditions set forth herein.
2. Term. This Employment Agreement shall commence as of the date
first set forth above and, unless terminated earlier pursuant to the provisions
hereof, shall expire on June 30, 2003 ("Term").
3. Initial Title and Duties. Employee shall initially serve Employer
as its President - Generation Division, and shall perform such duties and tasks
as he may be called upon by Employer to perform from time to time. Employee will
endeavor to promote the business affairs and interests of Employer and will
devote all of his working time and attention to Employer.
4. Compensation.
(a) Base Salary. As compensation for his services hereunder,
Employee shall initially receive a base salary of $35,833.34 per month, payable
in equal installments at such periods as shall from time to time be established
by Employer as regular payroll periods. Employee's base salary shall be subject
to review and modification from time to time at the discretion of Employer;
provided that Employee's base salary may be increased, but not decreased, during
the Term.
(b) Annual Bonus. Employee shall be entitled to receive
incentive bonus awards subject to, and in accordance with the provisions of, the
Company's Annual Incentive Plan ("AIP").
(c) Restricted Stock Awards. Following, and in connection with,
the executive officer annual review by the Organization and Compensation
Committee of the Board of Directors of the Company ("O&C Committee") in each
year during the Term, Employee shall be entitled to receive an award of at least
10,000 shares of restricted stock under the TXU Long-Term Incentive Compensation
Plan ("LTICP"). Each such award shall be subject to terms, conditions and
restrictions comparable to those contained in contemporaneous awards granted to
comparably situated officers within the TXU Corp. System. In the event that no
awards of restricted stock are made under the LTICP at one or more of the
above-referenced times to any other officer or key employee, Employee shall, in
lieu of receiving an award of restricted stock, receive at such time(s) an award
of a type comparable to that awarded to other officers of similar rank having a
value reasonably comparable to an award of at least 10,000 shares of restricted
stock (taking into consideration performance targets and vesting periods
applicable to restricted stock awards heretofore granted under the LTICP, and
assuming that performance goals and targets would have been attained so that
100% of the restricted stock would have become payable). In the event that no
awards of any type are awarded under the LTICP at one or more of the
above-referenced times, Employee will be entitled to receive at such time(s)
cash in an amount equal to the present value of an award of at least 10,000
shares of restricted stock (taking into consideration performance targets and
vesting periods applicable to restricted stock awards heretofore granted under
the LTICP and assuming that performance goals and targets would have been
attained so that 100% of the restricted stock would have become payable).
(d) Employee Benefits. Employee shall be entitled to
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 Employer, 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. For purposes of Employee's
participation in certain of the Company's executive compensation plans, Employee
shall be deemed to be a "corporate officer" of Employer.
(e) Provision for Company Automobile. Employee shall be entitled
to participate in the Company's executive automobile policy on the same basis as
other executives of Employer subject to the terms and conditions of such
automobile policy as it may be amended, altered or terminated from time to time.
5. Severance Benefits. If Employee is terminated without Cause (as
defined in Section 8 below) during the Term, Employee shall be entitled to
receive the compensation and benefits described in (a), (b), (c) and (d)
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 Employer 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 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);
(iii) Employer (or the Company) shall (a) to the extent such
benefits are not continued, or (b) Employee's
termination would constitute an Early Termination under
the provisions of the TXU Split-Dollar Life Insurance
Program ("Split-Dollar Life Insurance Program"),
provide Employee with the benefits contemplated under
the Split-Dollar Life Insurance Program, as in effect
on the effective date of this Agreement, 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 on the effective date of this
Agreement as if Employee's termination had not
occurred.
(iv) An amount equal to the sum of: (a) matching
contributions which would have been made under the DICP
and SDP had Employee continued to defer salary under
such plans at the rate in effect as of the date of such
termination for the remainder of the Term, plus (b) the
value of restricted stock (or alternative) awards which
had not theretofore been made to Employee under
paragraph 4(c) hereof (valued on the basis of the
assumption that the performance criteria which would
have been applicable to such awards had been met so
that 100% of the award(s) would have been payable); and
(v) 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 special severance payment, Employee
shall be entitled to the following benefits:
(i) Employer (or the Company) shall pay on behalf of
Employee, or shall reimburse Employee for, the
physician fees for one physical examination of Employee
under the general parameters of the Company's executive
physical program for each year during the period equal
to the greater of the remainder of the Term or one (1)
year following Employee's termination; and
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(ii) Employee shall, at Employer's (or the Company's) cost,
be entitled to financial planning services equivalent
to services available under the TXU executive financial
planning program during the period equal to the greater
of the remainder of the Term or twelve months following
Employee's termination.
(c) In addition to such severance payments and benefits,
Employee shall be entitled to additional retirement compensation ("Additional
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 earned additional Accredited Service
(as defined in the Retirement Plan) through the expiration of the Term. The
Additional Retirement Compensation shall be payable in periodic installments in
the form elected by Employee with respect to benefits under the Retirement Plan.
The amount of each such periodic installment shall be determined by the actuary
for the Retirement Plan using reasonable actuarial assumptions substantially
similar to those used in connection with the determination of benefits payable
under the Retirement Plan. The Additional 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 Retirement
Compensation shall be fully 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, Employer (or 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, Employer shall
pay Employee concurrently with such other payments an estimate, determined in
good faith by Employer, of the minimum amount of the required tax gross-up
payment. Thereafter, Employer 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, each of the benefits provided for in paragraph (b) above shall be
provided to Employee if and only to the extent that a similar type of benefit is
not provided to Employee through his subsequent employment with another
employer. Additionally, 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.
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6. Change In Control.
(a) If, during the Term: (i) Employee voluntarily terminates
his employment with Employer (or its successor) within six (6) months following
a Change in Control (as defined below), or (ii) Employee's employment is
terminated by Employer (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 will be entitled
to receive the following payments and benefits which shall be paid as soon as
reasonably practical following such termination but in any event within ten (10)
business days thereafter:
(1) A one-time cash payment equal to three (3) times the
aggregate of Employee's annualized base salary 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;
(2) Employer (or the Company) shall, to the extent such
benefits are not continued under the provisions of the
Split-Dollar Life Insurance Program, provide Employee
with the benefits contemplated under the Split-Dollar
Life Insurance Program, as in effect on the effective
date of this Agreement, 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 on the
effective date of this Agreement as if Employee's
termination had not occurred.
(3) A one-time cash payment equal to the aggregate of (a)
Employer matching contributions which would have been
made under the DICP and SDP had Employee continued to
defer salary under such plans 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, plus (b) an amount equal to the value of
restricted stock (or alternative) awards which had not
theretofore been made to Employee under paragraph 4(c)
hereof (valued on the basis of the assumption that the
performance criteria which would have been applicable
to such award(s) had been met so that 100% of the award
would have been payable);
(4) A one-time cash payment equal to the aggregate of (a)
the value (as of the date 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);
(5) A one-time cash payment equal to the difference between
(a) the monthly COBRA premium for coverage under the
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TXU 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);
(6) Employee shall, at Employer's (or 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
(7) Employer (or 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.
(b) In addition to such severance payments and benefits,
Employee shall be entitled to the Additional Retirement Compensation as
calculated and payable under the provisions of paragraph 5(c) above.
(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, Employer (or 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, Employer shall
pay Employee concurrently with such other payments an estimate, determined in
good faith by Employer, of the minimum amount of the required tax gross-up
payment. Thereafter, Employer 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.
(d) For purposes of this Agreement, "Change in Control" shall
mean a change in control of the Company 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 the
Company representing 20% or more of the combined voting power of the Company's
then outstanding securities having the right to vote at elections of directors
of the Company ("Voting Securities"); (ii) individuals who constitute the board
of directors of the Company on the effective date of this Agreement (the
"Incumbent Board") cease for any reason to constitute at least a majority
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thereof, provided that any person becoming a director subsequent to the
effective date of this Agreement whose election, or nomination for election by
the Company's shareholders, was approved by at least three-quarters of the
Company's directors comprising the Incumbent Board (either by a specific vote or
by approval of the proxy statement of the Company 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 Employer , 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 the Company are
liquidated or transferred to an unrelated party; or (v) the Company is a party
to a merger, consolidation, reorganization or similar transaction pursuant to
which the Company 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 the Company, a subsidiary
of the Company or any employee benefit plan(s) sponsored or maintained by the
Company or any subsidiary thereof, and the term "Independent Shareholder" shall
mean any shareholder of the Company except any employee(s) or director(s) of
Employer or any employee benefit plan(s) sponsored or maintained by the Company
or any subsidiary thereof.
(e) 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 Employer 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.
7. Definition of Cause. For purposes of this Agreement, the term
"Cause" 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
Employer and/or its shareholders in his capacity as an officer and/or director
of Employer; (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
Employer or any affiliate of Employer; (d) the appropriation of a material
business opportunity of Employer or any affiliate of Employer, including
attempting to secure or securing any personal profit in connection with any
transaction entered into on behalf of Employer; or (e) Employee's failure to
substantially perform his duties and responsibilities hereunder, including
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without limitation Employee's breach of Employer's Code of Conduct or an express
employment policy of Employer.
8. Confidentiality and Nondisclosure.
(a) Employee understands and agrees that he will be given
Confidential Information (as defined below) and Training (as defined below)
during his employment with Employer relating to the business of Employer and/or
its Affiliates (as defined below). 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 Employer 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 Employer 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 Employer.
Employee acknowledges that the provisions of this paragraph are consistent with
Employer's Code of Conduct with which Employee, as an employee of Employer, 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 Employer or any of its Affiliates
or customers and (1) is proprietary to, about, or created by Employer or its
Affiliates or customers; (2) gives Employer 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 Employer or its
Affiliates or customers; and (3) is not typically disclosed by Employer or its
Affiliates or customers, or known by persons who are not employed by Employer 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 Employer'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.
(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 Employer.
9. Non-Compete and Non-Solicitation. Employee acknowledges and agrees
that: (1) in order to perform his obligations and job duties for Employer,
Employee will gain Training and access to Confidential Information regarding
Employer and/or its Affiliates or customers; (2) use of such Confidential
Information in competition with Employer and/or its Affiliates or customers
would be detrimental to the business interests of Employer and/or its Affiliates
or customers; and (3) Employee would not have been allowed to gain access to
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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 agrees that, during his employment with Employer, 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 Employer or any of its Affiliates; (ii) contact,
solicit or attempt to solicit the business or patronage of any of Employer'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 Employer (or its
Affiliates) during the term of Employee's employment with Employer; or (iii)
solicit, recruit, induce, encourage or in any way cause any employee of Employer
(or an Affiliate) to terminate his/her employment with Employer (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.
10. Injunctive Relief. Because of the unique nature of the business to
be conducted by Employer and its Affiliates and the Confidential Information
relating thereto, Employee acknowledges, understands and agrees that Employer
and/or its Affiliates will suffer immediate and irreparable harm if Employee
fails to comply with any of his obligations under Sections 8 and 9 of this
Agreement, and that monetary damages alone will be inadequate to compensate
Employer or its Affiliates for such breach. Accordingly, Employee agrees that
Employer 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 8 and 9 without the necessity of proving inadequacy of legal remedies
or irreparable harm or posting bond.
11. Deductions and Nonalienation of Benefits. Employee shall be
required to pay promptly on demand, by payroll deduction or otherwise, the
amount required to be withheld by Employer 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 Employer without liability or further obligation.
12. Employer's Right to Modify Employee Benefit Plans. Nothing in this
Agreement shall be construed as a limitation on the absolute right of Employer,
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 Employer; provided, however, that no such amendment
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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 Section5 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 Employer to provide Employee with the same or similar benefits
provided for under such specifically referenced plan or program.
13. Entire Agreement. This Agreement contains the complete
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 Employer. Any modification of this Agreement will be effective only if it is
in writing signed by both of the parties hereto.
14. Severability. If any provision in this Agreement is held by a
court 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.
15. Survival. The parties hereby acknowledge and agree that certain
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 8 and 9 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.
16. Successors. This Agreement shall be binding upon and inure to the
benefit of Employee, his heirs, beneficiaries and personal representatives, and
Employer and any successor or assignee of Employer, but neither this Agreement,
nor any of the rights or obligations of either party hereunder may be assigned,
in whole or in part, except Employer may assign this Agreement to any affiliate
of Employer. Employee will seek to obtain the written acknowledgment and
assumption of this agreement by any successor of Employer prior to any
transaction or event pursuant to which such successor becomes the successor to
Employer. Whether or not such written acknowledgment and assumption is given,
this Agreement shall be binding on such successor and its assignees.
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17. Notices. Any notices to be given hereunder by either party to the
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.
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18. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas.
EXECUTED effective as of the 1st day of July, 2000.
TXU CORP.
By: /s/ Xxxx Xxx
-----------------------------------------
Xxxx Xxx, Chairman of the Board
and Chief Executive
EMPLOYEE:
/s/ X.X. Xxxxxx
-----------------------------------------
X.X. Xxxxxx
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AMENDMENT
TO
EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement is entered into as of the 28th
day of February, 2001, by and between TXU Corp., a Texas corporation (the
"Company") and X. X. Xxxxxx, an individual ("Employee").
WHEREAS, the Company and Employee entered into that certain Employment
Agreement dated as July 1, 2000 ("Employment Agreement"); and
WHEREAS, the parties now desire to amend the Employment Agreement as
set forth herein.
NOW, THEREFORE, the parties agree as follows:
1. Additional Circumstance Constituting Change in Control.
Subsection 6 (d) of the Employment Agreement is hereby amended
to add the following provision at the end of such subsection.
"In addition to, and not in limitation of, the foregoing, a
Change in Control shall also be deemed to have occurred if, at
any time during the Term: (I) the current Chairman of the
Board and Chief Executive of the Company no longer serves the
Company in either of such capacities."
2. Defined Terms. Except as otherwise defined herein, each of the
capitalized terms used herein shall have the meaning given
thereto in the Employment Agreement.
3. Continued Effectiveness of Employment Agreement. Except as
expressly amended hereby, the Employment Agreement shall
remain in full force and effect.
4. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas.
[Remainder of Page Intentionally Left Blank - Signatures on Page 2]
This Amendment to Employment Agreement is executed effective as of the
28th day of February 2001.
TXU CORP.
By: /s/ Xxxx Xxx
-------------------------------------
Xxxx Xxx, Chairman of the Board
and Chief Executive
EMPLOYEE:
/s/ X.X. Xxxxxx
----------------------------------------
X.X. Xxxxxx
2
AMENDMENT
TO
EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement is entered into effective as of
the 11th day of May, 2001, by and between TXU Corp., a Texas corporation (the
"Company"), and X. X. Xxxxxx, an individual ("Employee").`
WHEREAS, the Company and Employee entered into that certain Employment
Agreement dated as of July 1, 2000, as amended pursuant to that certain
Amendment to Employment Agreement dated as of February 28, 2001 ("Employment
Agreement"); and
WHEREAS, the parties now desire to amend the Employment Agreement to
extend the Term thereof by one (1) year such that the Term shall expire on June
30, 2004.
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein and in the Employment Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Extension of Term. Section 2 of the Employment Agreement is
hereby amended by replacing the date "June 30, 2003" with the
date "June 30, 2004", and, as amended, said Section 2 shall be
and read in full as follows:
"2. Term: This Employment Agreement shall commence as
of the date first set forth above and, unless
terminated earlier pursuant to the provisions hereof,
shall expire on June 30, 2004 ("Term")."
2. Continued Effectiveness of Employment Agreement. Except as
expressly amended hereby, the Employment Agreement shall
remain in full force and effect.
3. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas.
Executed effective as of the 11th day of May, 2001.
TXU CORP. EMPLOYEE:
By: /s/ Xxxx Xxx /s/ X.X. Xxxxxx
----------------------------- ----------------------------
Xxxx Xxx, Chairman of the Board X.X. Xxxxxx
and Chief Executive
AMENDMENT
TO
EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement is entered into effective as of
the 18th day of February, 2003, by and between TXU Corp., a Texas corporation
(the "Company"), and X. X. Xxxxxx, an individual ("Employee").
WHEREAS, the Company and Employee entered into that certain Employment
Agreement dated as of July 1, 2000, as amended pursuant to that certain
Amendment to Employment Agreement dated as of February 28, 2001, and that
certain Amendment to Employment Agreement dated as of May 11, 2001 ("Employment
Agreement"); and
WHEREAS, the parties now desire to amend the Employment Agreement to
extend the Term thereof such that the Term shall expire on the third anniversary
of the effective date of this Amendment to Employment Agreement.
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein and in the Employment Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Extension of Term. Section 2 of the Employment Agreement is
hereby amended by replacing the date "June 30, 2004" with the
date "the third anniversary of the effective date of the
Amendment to Employment Agreement dated in February 2003,"
and, as amended, said Section 2 shall be and read in full as
follows:
"2. Term: This Employment Agreement shall commence as of
the date first set forth above and, unless terminated
earlier pursuant to the provisions hereof, shall expire on
the third anniversary of the effective date of the
Amendment to Employment Agreement dated in February 2003
("Term")."
2. Continued Effectiveness of Employment Agreement. Except as
expressly amended hereby, the Employment Agreement shall
remain in full force and effect.
3. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas.
Executed effective as of the 28th day of February, 2003.
TXU CORP. EMPLOYEE:
By: /s/ Xxxx Xxx /s/ X.X. Xxxxxx
---------------------------- ---------------------------
Xxxx Xxx, Chairman of the Board X.X. Xxxxxx
and Chief Executive
