EXHIBIT 10.12A
Dynegy Inc
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Phone 000-000-0000
xxx.xxxxxx.xxx
July 1, 1997
[LOGO OF DYNEGY APPEARS HERE]
Xx. Xxx Xxxxx
0000 Xxx Xxxxx
Xxxxxxxx, XX 00000
Dear Xxx:
Subject to the ratification of this Agreement by the Compensation,
Corporate Governance and Human Resources Committee ("Compensation Committee") of
the Board of Directors of NGC Corporation, set forth below are the terms of your
employment by NGC Corporation (hereinafter referred to collectively as "NGC" or
the "Company").
1. TITLE AND DUTIES
Your title shall be President and Chief Operating Officer of Destec
Energy, Inc., soon to be a wholly-owned subsidiary of NGC and Senior Vice
President of NGC Corporation. You shall have such other duties as may be
delegated from time to time by your immediate supervisor. You shall devote your
full time, energy and skill to the performance of your duties for NGC, and will
exercise due diligence and reasonable care in the performance of such duties.
2. TERM
(a) Unless earlier terminated as provided for herein, the term of this
Agreement will be for three years, beginning on July 1, 1997 (the "Term").
(b) If your employment with NGC is terminated due to your voluntary
resignation or by the Company for "cause", this Agreement shall terminate
immediately (except for the confidentiality, non-competition and non-
solicitation provisions of Paragraph 4), and the Company shall have no further
obligation to you except for the payment of amounts due before the date of such
termination. You further agree that the benefits which you have received from
the execution of this Agreement through the date of such termination constitute
sufficient consideration for your obligations pursuant to Paragraph 4,
notwithstanding the fact that the Company has no further obligation to you
except for the payment of amounts due before the date of such termination. For
purposes of this Agreement, you may be terminated for "cause" as a result of (i)
refusal to implement or adhere to policies or directives of the Board of
Directors of NGC; (ii) serious misconduct, dishonesty or disloyalty, directly
related to the performance of duties for the Company, which results from a
willful act or omission or from gross negligence, and which is materially or is
likely to be materially injurious to the operations, financial condition or
business reputation of the Company or any significant subsidiary thereof; (iii)
your being convicted (or entering into a plea bargain
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July 1, 1997
Page 2
admitting criminal guilt) in any criminal proceeding that may have an adverse
impact on the Company's reputation and standing in the community; (iv) drug or
alcohol abuse; (v) willful and continued failure to perform your duties under
this Agreement; or (vi) any other material breach of this Agreement by you that
is not cured within thirty days after written notice of such breach is delivered
to you from the Company. For these purposes, no act or failure to act shall be
considered "willful" unless it is done, or omitted to be done, in bad faith
without reasonable belief that the action or omission was in the best interest
of the Company.
(c) If your employment is terminated during the Term of this Agreement
due to resignation following "constructive termination" (as defined below) or
for any other reason other than your voluntary resignation, death, disability,
or discharge for cause, you shall receive as your sole compensation (i) your
Base Salary as described in Paragraph 3(a), guaranteed bonus as described in
Paragraph 3(b) and company medical and life insurance coverage, all for the
remainder of the Term, or for two years from the date of actual termination of
employment, whichever provides the longer period of payment and coverage
provided, and (ii) any employee stock options granted to you during the Term of
this Agreement shall become vested as of the date of resignation due to such
constructive termination or discharge not for cause, but only up to the
percentage that would have been vested had you remained in regular employment to
the end of the Term of this Agreement.
For purposes of this Agreement a "constructive termination" shall be
deemed to have occurred in the event that (i) your Base Salary as defined in
Paragraph 3(a), bonus compensation under Paragraph 3(b), option grants under
Paragraph 3(c) or other compensation as described in Paragraph 3(d) and 3(e) is
reduced; (ii) a significant diminution in your responsibilities, authority or
scope of duties is effected by the Board of Directors or as the result of the
change in control of the Company, and such diminution is made without your
written consent (without regard to whether or not any change is made to your
title); or (iii) the Company materially breaches this Agreement. For purposes of
this Agreement, a "change in control of the Company" means the occurrence of any
of the following events: (a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) is or becomes the "beneficial owner" (as defined in Rule l3d-3
under the Exchange Act), directly or indirectly, of more than 50% of the total
voting stock of the Company; (b) the Company is merged with or into or
consolidated with another person and, immediately after giving effect to the
merger or consolidation, (A) less than 50% of the total voting power of the
outstanding voting stock of the surviving or resulting person is then
"beneficially owned" (within the meaning of Rule l3d-3 under the Exchange Act)
in the aggregate by (x) the stockholders of the Company immediately prior to
such merger or consolidation, or (y) if a record date has been set to determine
the stockholders of the Company entitled to vote with respect to such merger or
consolidation, the stockholders of the Company as of such record date and (B)
any "person" or "group" (as defined in Section 13(d)(3) or 14(d)(2) of the
Exchange Act) has become the direct or indirect "beneficial owner" (as defined
in Rule l3d-3 under the Exchange Act) of more than 50% of the voting power of
the voting stock of the surviving or
Xx. Xxx Xxxxx
July 1, 1997
Page 3
resulting person; (c) the Company, either individually or in conjunction with
one or more of its subsidiaries, sells, assigns, conveys, transfers, leases or
otherwise disposes of, or the subsidiaries sell, assign, convey, transfer, lease
or otherwise dispose of, all or substantially all of the properties and assets
of the Company and the subsidiaries, taken as a whole (either in one transaction
or a series of related transactions), to any person (other than the Company or a
wholly owned subsidiary); or (d) the liquidation or dissolution of the Company.
Any resignation by you as a result of assertion of a constructive termination
shall be communicated by delivery to the Board of Directors of the Company
thirty days' advance written notice of such constructive termination and the
grounds therefor, during which period the Company shall be entitled to cure or
remedy the matters set forth in such notice to your reasonable satisfaction.
Unless you withdraw such notice prior to the expiration of such thirty day
period, such resignation shall take effect upon the expiration of thirty days
from the date of the delivery of such notice. Any other resignation by you shall
be communicated by thirty days' advance written notice.
(d) If you die, or become disabled and cannot perform your duties, you
(or your estate) shall be entitled to the Base Salary (as defined in Paragraph 3
(a)) payable to you hereunder for three months following the month in which you
die or become disabled, plus the amount of any guaranteed bonus as described in
Paragraph 3(b) guaranteed pursuant to Paragraph 3(b) for the year of death or
disability, prorated through the date of death or disability. For purposes of
this Agreement, you shall be disabled as of the first date on which you become
eligible to receive disability benefits under the Company's long-term disability
plan (or Social Security disability benefits at a time when the Company does not
maintain a long-term disability plan or such plan is not available to you).
3. COMPENSATION
(a) Each year during the Term hereof, you will be paid a base salary
of $220,000 per annum ("Base Salary"), payable in accordance with the Company's
payroll guidelines. Increases may be made to your Base Salary at the discretion
of the Board of Directors based upon your individual performance.
(b) You shall be a participant in the Company's Incentive Compensation
Plan. The target bonus level for your position is $150,000 per annum. You shall
receive a guaranteed bonus of at least $75,000 per annum during the three year
Term. As part of NGC's incentive compensation program, you will have the
opportunity to earn Additional Compensation, dependent upon NGC's financial
performance and other personal strategic objectives, determined in accordance
with such program.
(c) Each year during the Term of this Agreement, commencing December,
1997 you will receive stock option grants, with an exercise price equal to
market price on date of grant,
Xx. Xxx Xxxxx
July 1, 1997
Page 4
under the NGC Corporation Amended & Restated 1991 Stock Option Plan, with a
present value of the projected five year gain ("Projected Value") of at least
$220,000. You recognize that the projected value is subject to the future market
performance of the company stock and that there is no guarantee that the actual
value of such options will achieve that value. "Projected Value" means that, at
the end of five years from the date of grant, assuming an increase in market
price of 15% per annum during the five years, the stock option may be exercised
to obtain stock having a present value of $220,000 over the exercise price. Then
options are subject to the three year vesting, forfeiture and other terms and
conditions of the NGC Corporation Amended & Restated 1991 Stock Option Plan.
(d) You will be entitled to participate in NGC's benefits programs for
senior management executives, including, without limitation, NGC's deferred
compensation plan for executives, and NGC's Alternative Benefits for Senior
Executives Plan.
(e) The Company will pay an additional $5,000 per year on your behalf
to provide you with additional life insurance and disability coverage in excess
of the death benefit or disability coverage under NGC's standard executive
employee and benefit plans. You shall select such coverage and shall own the
insurance policies providing such coverage. You will be responsible for coverage
and effectiveness of the policies, the Company's only obligation being to pay
such amounts.
(f) You shall be entitled to participate in such other plans and
receive such other perquisites as the Board of Directors of the Company in its
sole discretion determines.
4. CONFIDENTIALITY
You recognize and acknowledge that:
(a) You will have access to certain information concerning the Company
that is confidential and proprietary and constitutes valuable and unique
property of the Company. You agree that you will not at any time, either during
or after your employment, disclose to others, use, copy or permit to be copied,
except pursuant to your duties on behalf of the Company or its successors,
assigns or nominees, any secret or confidential information of the Company
(whether or not developed by you) without the prior written consent of the Board
of Directors of the Company. The term "secret or confidential information of the
Company" (sometimes referred to herein as "Confidential Information") shall
include, without limitation, the Company's plans, strategies, potential
acquisitions, costs, prices, systems for buying, selling, and/or trading natural
gas, natural gas liquids, crude oil, coal, and electricity, client lists,
pricing policies, financial information, the names of and pertinent information
regarding suppliers, computer programs, policy or procedure manuals, training
and recruiting procedures, accounting procedures, the status and content of the
Xx. Xxx Xxxxx
July 1, 1997
Page 5
Company's contracts with its suppliers or clients, or servicing methods and
techniques at any time used, developed, or investigated by the Company, before
or during your tenure of employment to the extent any of the foregoing are (i)
not generally available to the public and (ii) maintained as confidential by the
Company. You further agree to maintain in confidence any confidential
information of third parties received as a result of your employment and duties
with the Company.
(b) At the termination of your employment you will deliver to the
Company, as determined appropriate by the Company, all correspondence,
memoranda, notes, records, client lists, computer systems, programs, or other
documents and all copies thereof made, composed or received by you, solely or
jointly with others, and which are in your possession, custody, or control at
such date and which are related in any manner to the past, present, or
anticipated business of the Company.
(c) To protect and safeguard the Company's trade secrets and
Confidential Information and also the Company's goodwill with its suppliers and
clients, for a period of twenty-four months following the termination of your
employment for any reason you will not, within a 50 mile radius of any location
where the Company had an office at any time during the Term hereof or any
location where a client or supplier of the Company (which is a material client
or supplier at any time during the Term hereof) had an office at any time during
the Term hereof, without the prior written consent of the Board of Directors of
the Company, directly or indirectly, engage in or be interested in (as owner,
partner, shareholder, employee, director, agent, consultant or otherwise), any
business which is a competitor of the Company, as hereinafter defined. For
purposes of this Agreement, a "competitor of the Company" is any entity,
including without limitation a corporation, sole proprietorship, partnership,
joint venture, syndicate, trust or any other form of organization or a parent,
subsidiary or division of any of the foregoing, which, during such period or the
immediately preceding fiscal year of such entity, was engaged in the development
of electric power generation projects, unregulated marketing, gathering,
transportation or processing of natural gas or derivatives of natural gas or
other hydrocarbons or electricity. For purposes of this paragraph, the following
entities shall not be deemed to be competitors of the Company: (i) a Local
Distribution Company ("LDC") to the extent that any purchases or sales by such
LDC are only for consumption on its system; (ii) a natural gas producer to the
extent that such producer sells only its own production or production of other
working interest owners in xxxxx in which it owns an interest; (iii) a natural
gas pipeline company in the jurisdictional aspects of its business, i.e., other
than a nonjurisdictional marketing affiliate or production affiliate (except as
to such production affiliates own production as described in clause (ii) of this
Paragraph 4(c)). The terms of this Paragraph 4(c) shall not apply to your
present or future investments in the securities of companies listed on a
national securities exchange or traded on the over-the-counter market to the
extent such investments do not exceed one percent (1%) of the total outstanding
shares of such company.
Xx. Xxx Xxxxx
July 1, 1997
Page 6
(d) For a period of twenty-four months after the expiration or
termination of your employment for whatever reason, you shall not induce or
otherwise entice any employee of the Company to leave the Company, nor shall you
attempt to hire any of the Company's employees.
(e) You agree that the foregoing restrictions contain reasonable
limitations as to the time, geographical area, and scope of activity to be
restrained and that these restrictions do not impose any greater restraint than
is necessary to protect the goodwill and other legitimate business interests of
the Company, including but not limited to the protection of Confidential
Information. You also agree that the general public shall not be harmed by
enforcement of this Paragraph 4. Should any provision in this Paragraph 4 be
held unreasonably broad with respect to the restrictions as to time,
geographical area, or scope of activity to be restrained, any such restriction
shall be construed by limiting and reducing it to the extent necessary to render
it reasonable, and as so construed, such provision shall be enforced.
5. INDEMNIFICATION
If, at any time during or after the Term of this Agreement, you are
made a party to, or are threatened to be made a party in, any civil, criminal or
administrative action, suit or proceeding by reason of the fact that you are or
were a director, officer, employee, or agent of the Company, or of any other
corporation or any partnership, joint venture, trust or other enterprise for
which you served as such at the request of the Company, then you shall be
indemnified by the Company against expenses actually and reasonably incurred by
you or imposed on you in connection with, or resulting from, the defense of such
action, suit or proceeding, or in connection with, or resulting from, any appeal
therein if you acted in good faith and in a manner you reasonably believed to be
in or not opposed to the best interest of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe your conduct
was unlawful, except with respect to matters as to which it is adjudged that you
are liable to the Company or to such other corporation, partnership, joint
venture, trust or other enterprise for gross negligence or willful misconduct in
the performance of your duties. As used herein, the term "expenses" shall
include all obligations actually and reasonably incurred by you for the payment
of money, including, without limitation, attorney's fees, judgments, awards,
fines, penalties and amounts paid in satisfaction of a judgment or in settlement
of any such action, suit or proceeding, except amounts paid to the Company or
such other corporation, partnership, joint venture, trust or other enterprise by
you.
6. ARBITRATION
Any controversy or claim arising out of or relating to this Agreement, or any
breach thereof, shall, except as provided in Paragraph 4, be adjusted only by
arbitration in accordance with the rules of the American Arbitration
Association, and judgment upon such award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The arbitration shall be held
in the City of
Xx. Xxx Xxxxx
July 1, 1997
Page 7
Houston, Texas, or such other place as may be agreed upon at the time by the
parties to the arbitration. The arbitrator(s) shall, in their award, allocate
between the parties the costs of arbitration, which shall include reasonable
attorneys' fees of the parties, as well as the arbitrators' fees and expenses,
in such proportions as the arbitrator(s) deem just; provided however,
notwithstanding the above, in the event you are the prevailing party, then the
Company agrees to reimburse you for all such costs of arbitration, including but
not limited to attorneys' fees and arbitrators' fees and expenses reasonably
incurred by you; provided further, however, notwithstanding the above, in the
event the Company is the prevailing party, then the total costs of arbitration,
including but not limited to attorneys' fees reasonably incurred by the Company
and arbitrators' fees and expenses, that may be allocated to you by the
arbitrator(s) shall not in any event exceed Twenty-Five Thousand Dollars
($25,000). Notwithstanding the foregoing, you shall be entitled to seek specific
performance in a court of competent jurisdiction of your right to be paid your
full compensation until your separation from employment, during the pendency or
dispute of any controversy arising under or in connection with this Agreement.
7. OTHER PROVISIONS
(a) THIS AGREEMENT WILL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCLUDING ANY CONFLICTS OF LAW,
RULE OR PRINCIPLE THAT MIGHT OTHERWISE REFER TO THE SUBSTANTIVE LAW OF ANOTHER
JURISDICTION.
(b) Except as otherwise indicated, this Agreement is not assignable
without the written authorization of both parties; provided that the Company may
assign this Agreement to any entity to which the Company transfers substantially
all of its assets or to any entity which is a successor to the Company by
reorganization, incorporation, merger or similar business combination.
(c) Except as otherwise provided herein, the provisions of Paragraphs
4, 5 and 6 of this Agreement shall survive the termination of this Agreement.
(d) This Agreement supersedes all previous employment agreements,
written or oral, between the Company and you. This Agreement may be amended only
by written amendment duly executed by both parties or their legal
representatives and authorized by action of the Board. Except as otherwise
specifically provided in this Agreement, no waiver by either party hereto of any
breach by the other party hereto of any condition or provision of this Agreement
to be performed by such other party shall be deemed a waiver of a subsequent
breach of such condition or provision or a waiver of a similar or dissimilar
provision or condition at the same or at any prior or subsequent time.
Xx. Xxx Xxxxx
July 1, 1997
Page 8
(e) Any notice or other communication required or permitted pursuant
to the terms of this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by United States mail, first class,
postage prepaid and registered with return receipt requested, addressed to the
intended recipient at his or its address set forth below and, in the case of a
notice or other communication to the Company, directed to the attention of the
Board of Directors with a copy to the Secretary of the Company, or to such other
address as the intended recipient may have theretofore furnished to the sender
in writing in accordance herewith, except that until any notice of change of
address is received, notices shall be sent to the following addresses:
IF TO YOU: IF TO THE COMPANY:
Xxx Xxxxx NGC Corporation
4803 Big Falls 0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000 Xxxxxxx, XX 00000-0000
(f) If any one or more of the provisions or parts of a provision
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity or unenforceability shall not
affect any other provision or part of a provision of this Agreement, but this
Agreement shall be reformed and construed as if such invalid or illegal or
unenforceable provision or part of a provision had never been contained herein
and such provisions or part thereof shall be reformed so that it would be valid,
legal and enforceable to the maximum extent permitted by law.
(g) You shall not be required to mitigate damages (or the amount of
any compensation provided under this Agreement to be paid) following your
termination of employment, by seeking employment or otherwise.
If the foregoing reflects your understanding of the terms of your
employment with the Company, please execute each copy of this letter in the
space provided below.
NGC CORPORATION
By: _________________________________
X. X. Xxxxxxxx
AGREED AND ACCEPTED this
______ day of September, 1997,
and effective as of July 1, 1997
________________________________
Xxx Xxxxx
