Exhibit 10(m)
EMPLOYMENT AGREEMENT
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This Employment Agreement is entered into as of the 1st day of June, 2001,
by and between TXU Corp., a Texas corporation ("Employer") and H. Xxxxxxx Xxxxx,
an individual ("Employee").
RECITALS
WHEREAS, Employee currently serves the Employer as its President; and
WHEREAS, Employer currently desires 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. Employer hereby agrees to employ Employee and Employee
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hereby agrees to serve Employer, 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 earlier of May 31, 2003 or Employee's retirement
with Employer ("Term").
3. Initial Title and Duties. Employee shall initially serve as the
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President of Employer, 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.
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(a) Base Salary. As compensation for his services hereunder, Employee
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shall initially receive a base salary of $48,333.33 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
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bonus awards subject to, and in accordance with the provisions of, the
Employer's Annual Incentive Plan ("AIP").
(c) Restricted Stock Awards. Following, and in connection with, the
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executive officer annual review by the Organization and Compensation Committee
of the Board of Directors of Employer ("O&C Committee") in each year during the
Term, Employee shall be entitled to receive an award of at least 15,000 shares
of restricted stock under the TXU Long-Term Incentive Compensation Plan
("LTICP"). Each such award shall be subject to terms, conditions and
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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 15,000 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 15,000
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
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all of Employer'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 Employer'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
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participate in Employer'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
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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
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termination) plus Employee's target annual incentive award
for the year of the termination;
(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 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 Employer 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:
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(i) Employer 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
Employer'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
(ii) Employee shall, at Employer'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 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.
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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.
6. Change In Control.
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(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 two (2) 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 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 Employer 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
two (2) 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);
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(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 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 cost, be entitled to financial
planning services equivalent to services available under
Employer's executive financial planning program for two (2)
years from the date of the termination; and
(7) Employer shall pay on behalf of Employee, or shall reimburse
Employee for, the physician fees for one physical
examination of Employee per year for two (2) 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 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.
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(d) For purposes of this Agreement, "Change in Control" shall mean a
change in control of the Employer 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
Employer representing 20% or more of the combined voting power of Employer's
then outstanding securities having the right to vote at elections of directors
of Employer ("Voting Securities"); (ii) individuals who constitute the board of
directors of Employer 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 Employer's shareholders,
was approved by at least three-quarters of Employer's directors comprising the
Incumbent Board (either by a specific vote or by approval of the proxy statement
of Employer 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 Employer are liquidated or transferred to an unrelated party;
or (v) Employer is a party to a merger, consolidation, reorganization or similar
transaction pursuant to which Employer 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
Employer, a subsidiary of Employer or any employee benefit plan(s) sponsored or
maintained by Employer or any subsidiary thereof, and the term "Independent
Shareholder" shall mean any shareholder of Employer except any employee(s) or
director(s) of Employer or any employee benefit plan(s) sponsored or maintained
by Employer 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)
Employer (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 its
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successor) 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 Employer 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"
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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
Employer and/or its shareholders in his capacity as an officer and/or director
of Employer or its affiliates; (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 without limitation Employee's breach of Employer's Code of Conduct or
an express employment policy of Employer.
8. 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 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
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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
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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
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
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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
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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
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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
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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
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
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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.
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14. Severability. If any provision in this Agreement is held by a court of
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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
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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 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
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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. Employer 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.
17. 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.
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18. 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 effective as of the 1st day of June, 2001.
TXU CORP.
By: /s/ Xxxx Xxx
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Xxxx Xxx, Chairman of the Board
and Chief Executive
EMPLOYEE:
/s/ H. Xxxxxxx Xxxxx
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H. Xxxxxxx Xxxxx
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