1
EXECUTION COPY
EXHIBIT 10.12
January 11, 2000
Xxxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Dear Xxx:
Set forth below are the terms of your employment (the "Agreement") with
Dynegy Inc. (hereinafter referred to as "Dynegy" or the "Company").
1. TITLE AND DUTIES
Your title shall be General Counsel. You will be responsible for
Legal, Regulatory and Legislative Affairs and shall have such other duties as
may be delegated from time to time by your immediate supervisor. You will be
employed at Dynegy's headquarters in Houston, Texas. You shall devote your full
time, energy and skill to the performance of your duties for Dynegy, and will
exercise due diligence and reasonable care in the performance of such duties.
During the Term (as defined below) of this Agreement, you shall report to the
Company's Chief Executive Officer.
2. TERM
(a) Unless earlier terminated as provided for herein, the term of
this Agreement will be for two (2) years, beginning on the Effective Date and
ending on the second anniversary of the Effective Date (such period, as extended
pursuant to the next succeeding sentence, if applicable, the "Term"). The Term
shall automatically be extended for additional one (1) year periods unless
either the Company or you provides written notice at least sixty (60) days prior
to the date on which this Agreement would otherwise be automatically extended
that such party is electing not to so extend the Term. The term "Effective Date"
means the date of closing of the proposed merger of Dynegy Inc. and Illinova
Corporation pursuant to that certain Merger Agreement dated as of June 14, 1999,
as amended.
(b) If your employment with Dynegy 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
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provisions of Paragraphs 5 and 6), 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) your refusal to implement or adhere to lawful policies or lawful
directives of the Board of Directors of Dynegy (the "Board of Directors") or
your immediate supervisor; (ii) serious misconduct, dishonesty or disloyalty,
directly related to the performance of your duties for the Company or gross
negligence in the performance of your duties for the Company; (iii) your being
convicted (or entering into a plea bargain admitting or not contesting criminal
guilt) in any criminal felony proceeding; (iv) drug or alcohol abuse; (v)
continued failure to perform your duties under this Agreement which is not cured
within ten (10) days after written notice of such failure is provided to you by
Dynegy; or (vi) any other material breach of this Agreement by you that is not
cured within ten (10) days after written notice of such breach is delivered to
you from 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
in lieu of further payments to you pursuant to Paragraph 3 hereof: (i) a lump
sum amount equal to the product of (x) 2.99 and (y) the greater of (a) the
average annual Base Salary and incentive compensation, whether payable in cash
or stock options, you were paid by the Company for the highest three (3)
calendar years preceding the calendar year in which your employment is
terminated (or such shorter period as you have actually been employed by the
Company), or (b) your Base Salary and target bonus amount for the year in which
your employment is terminated; (ii) a lump sum amount equal to the net present
value, as determined by the Board of Directors in its sole and absolute
discretion, of the benefits to be provided to you in Paragraphs 3(e) and 3(f) of
this Agreement and such other perquisites (if any) being provided to you on the
date of your termination, as if you were still employed for the remainder of the
Term of this Agreement, with regard to those benefits to be provided to you
during the Term of this Agreement, and as if you had completed the Term of this
Agreement with regard to those benefits to be provided to you upon completion of
the Term of this Agreement; (iii) any employee stock options granted to you
prior to or during the Term of this Agreement shall become vested as of the date
of your resignation due to such constructive termination or discharge not for
cause, and you shall have the right to exercise any such vested options through
the end of the Term of this Agreement or one year from the date of termination,
whichever is later; and (iv) for a period of thirty-six (36) months from the
date of such termination, all health and welfare benefits the Company was
maintaining for you and your family as of the date of such resignation or
discharge.
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), target range of annual
option grants under Paragraph 3(c)
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or other compensation as described in Paragraphs 3(e) and 3(f) is reduced; (ii)
a significant diminution in your responsibilities, authority or scope of duties
is effected by the Board of Directors, and such diminution is made without your
written consent (without regard to whether or not any change is made to your
title); (iii) the Company materially breaches this Agreement; or (iv) the
relocation of the Company's principal executive offices to a location, or the
Company requires you to be based, outside a fifty (50) mile radius from the city
limits of Houston, Texas. Any resignation by you as a result of assertion of a
constructive termination shall be communicated by delivery to the Board of
Directors within thirty (30) days from the commencement of such constructive
termination by written notice setting forth 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
(30) period, such resignation shall take effect upon the expiration of thirty
(30) days from the date of the delivery of such notice. Any other resignation
by you shall be communicated by thirty (30) days' advance written notice.
(d) If you die, or become disabled and cannot perform your duties,
your employment hereunder shall be terminated immediately (except that the
confidentiality, noncompetition and nonsolicitation provisions of Paragraph 4
and the provisions of Paragraphs 5 and 6 shall survive the termination of your
employment) and: (i) you (or your estate) shall be entitled to the Base Salary
(as defined in Paragraph 3(a)) payable to you hereunder for twelve (12) months
following the month in which you die or become disabled, plus the amount of any
target bonus as described in Paragraph 3(b) for the year of death or disability,
prorated for the portion of the twelve-month period (12) elapsed in which the
death or disability occurs; (ii) you (or your estate) shall receive, for a
period of twenty-four (24) months from the date of your death or disability, all
health insurance and health benefits that the Company was maintaining for you
and/or your estate and for your family as of the date of your death or
disability; and (iii) any employee stock options granted to you during the Term
of this Agreement shall become vested as of the date of your death or disability
on the same terms as provided for the vesting of stock options in Paragraph 2(c)
above. 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).
(e) Unless otherwise specified herein, all payments under this
Agreement shall be paid in a lump sum, less applicable withholding taxes, within
thirty (30) days following the date of your termination.
3. COMPENSATION
(a) Each year during the Term hereof, you will be paid a base
salary of $350,000 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.
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(b) You shall be a participant in the Company's Incentive Compensation
Plan. As part of Dynegy's incentive compensation program, you will have the
opportunity to earn a target bonus in an amount equal to 100% of your Base
Salary and a maximum cash award in an amount equal to 200% of your Base Salary,
dependent upon certain financial or performance objectives, determined in
accordance with such program and by the Board of Directors. To the extent any
incentive compensation in excess of the maximum cash amount referenced above is
payable under the Incentive Compensation Plan in any year to you, the Company
will pay you any such amounts in noncash equivalents (e.g., stock options or
restricted securities of the Company) of equal value, as determined by the Board
of Directors in its sole and absolute discretion. At your election, in lieu of
paying you all or part of such incentive compensation bonus, the Company will
allow you to direct that all or part of such incentive compensation shall be
allocated by the Company to, or expended directly for, charitable contributions
of your selection.
(c) Upon the Effective Date, you will receive (x) stock option grants
pursuant to the Company's Long-Term Incentive Plan ("LTIP") with a projected
value equal to 225% of your Base Salary and (y) discounted stock option grants
under the Employee Equity Option Plan ("EEOP"; and, together with LTIP, the
"Stock Option Plans") with an in-the-money value equal to $250,000. Your EEOP
options shall become 40% vested and exercisable on the second anniversary of the
Effective Date provided you are employed by the Company on such date. The
aforementioned options will vest in accordance with the vesting provisions of
each of the Stock Option Plans. Each year during the Term of this Agreement, you
will be eligible to receive stock option grants in accordance with the
requirements and provisions of the Company's LTIP. The current target range for
annual option grants for your position is a median of 150% and a 75th percentile
of 225% of your Base Salary. You recognize that any value of an award of
"market" options under the LTIP is a projected value, which is subject to the
future 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 the 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 the stated value in excess of the exercise price. These
options are subject to the vesting, forfeiture and other terms and conditions of
the respective Stock Option Plan, except as specifically provided to the
contrary in this Agreement.
(d) Upon the Effective Date, any EEOP or other options granted to you
prior to November 1,1999 shall become vested.
(e) You will be entitled to participate in Dynegy's benefits programs
for senior management executives, including, without limitation, Dynegy's
deferred compensation plan for executives. Without limiting the foregoing, you
will be entitled to participate in such other plans and receive such other
perquisites as the Board of Directors in its sole discretion determines,
including, but not limited to, reserved parking, club memberships, use of
aircraft owned or leased by the Company, annual physical examination, financial
and/or federal income tax planning and tax return preparation, the allocable
cost of which plans and perquisites to you are not to exceed $25,000 annually.
Pursuant to the terms of Dynegy's vacation policy you will be entitled to four
(4) weeks per year of paid vacation.
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(f) 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 Dynegy'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.
(g) Upon the Effective Date, the Company shall pay you a signing bonus
in the amount of $100,000. You and the Company acknowledge and agree that: (i)
as of the Effective Date, that certain Employment Agreement (as the same may
have been amended, modified or supplemented from time to time, the "Employment
Agreement"), dated as of January 1, 1997, between you and NGC Corporation, is
hereby terminated and of no further force and effect and (ii) the payment
granted to you pursuant to this Paragraph 3(g) is in full satisfaction of all of
the Company's remaining duties and obligations under the Employment Agreement.
4. CONFIDENTIALITY/NONCOMPETE/NONSOLICITATION
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
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.
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(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 that period of time following the termination of your employment
for any reason other than pursuant to Paragraph 2(c) above (i.e., in the event
of a termination pursuant to the first paragraph of Paragraph 2(c), the
non-compete obligations of this Paragraph 4(c) shall terminate) through the
expiration of the Term, 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 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 affiliate's own
production as described in clause (ii) of this Paragraph 4(c)); or (iv) an
integrated regulated electric and/or gas utility as long as such utility does
not engage in the unregulated marketing of its generation or power trading other
than that related to the generation or power marketing allocated to its own
service areas. 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.
(d) For a period of twenty-four (24) months after the expiration or
termination of your employment for whatever reason other than pursuant to
Paragraph 2(c) above or for a period of twelve months following the termination
of your employment pursuant to Paragraph 2(c) above, you shall not solicit,
raid, entice, encourage or induce any person who at the time of such expiration
or termination of employment is an employee of the Company, or any of its
subsidiaries or affiliated companies, to become employed by any person, firm or
corporation, and you shall not approach any such employee for such purpose or
authorize or knowingly approve the taking of such actions by any other person,
firm or corporation or assist any such person, firm or corporation in taking
such action.
(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
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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.
Accordingly, you consent and agree that if you violate any of the
provisions of this Paragraph 4, the Company and its subsidiaries and affiliated
companies would sustain irreparable harm and, therefore, in addition to any
other remedies which the Company may have under this Agreement or otherwise, the
Company shall be entitled to an injunction from any court of competent
jurisdiction restraining you from committing or continuing any such violation
of this Paragraph 4. You acknowledge that damages at law would not be an
adequate remedy for violation of this Paragraph 4, and you therefore agree that
the provisions of this Paragraph 4 may be specifically enforced against you in
any court of competent jurisdiction. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies available to the
Company for such breach or threatened breach, including the recovery of damages
from you.
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, to the fullest extent permitted under applicable
law, 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.
The foregoing indemnification provisions shall be in addition to any other
rights to indemnification to which you may be entitled.
6. ARBITRATION
The parties hereto may attempt to resolve any dispute hereunder
informally via mediation or other means. Otherwise, any controversy or claim
arising out of or relating to this Agreement, or any breach thereof, shall,
except as provided in Paragraph 4, be adjudged only by
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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 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 expenses reasonably incurred by you;
provided further, 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) All payments to you under this Agreement will be subject to the
withholding of all applicable employment taxes and income taxes; provided,
however, that at your request the parties hereto will use reasonable efforts to
explore alternatives to allow the Company to make charitable contributions on
behalf of the employee by redirecting a portion of your annual bonuses to
charitable organization(s) chosen by you in accordance with Paragraph 3(b) of
this Agreement.
(e) 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 of Directors. 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
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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.
(f) 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:
Xxxxxxx X. Xxxxxxxx Dynegy Inc.
9537 Bayou Brook 0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Chief Executive Officer
(g) 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.
(h) Neither you nor the Company will make or authorize any public
statement disparaging the other in its or his business interests and affairs.
Notwithstanding the foregoing, neither party shall be (i) required to make any
statement which it or he believes to be false or inaccurate, or (ii) restricted
in connection with any litigation, arbitration or similar proceeding or with
respect to its response to any legal process. The provisions in this Paragraph
7(h) shall survive the termination of your employment hereunder, irrespective of
the reason therefor.
(i) The waiver by the Company of breach of any provision of this
Agreement by you shall not operate or be construed as a waiver of any subsequent
breach by you. The waiver by you of a breach of any provision of this Agreement
by the Company shall not operate or be construed as a waiver of any subsequent
breach by the Company.
(j) 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.
(k) If any provision of this Agreement as applied to either party or
to any circumstances shall be adjudged by a court of competent jurisdiction to
be void or unenforceable,
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the same shall in no way affect any other provision of this Agreement or the
validity or enforceability of this Agreement.
(l) The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(m) This Agreement may be executed in one or more counterparts, which
shall, collectively and separately, constitute one agreement.
(n) Notwithstanding anything to the contrary set forth in this
Agreement, the Company may cause any of its subsidiaries for which you render
services to pay or otherwise satisfy, in whole or in part, some or all of the
Company's obligations hereunder.
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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.
DYNEGY INC.
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman & CEO
AGREED AND ACCEPTED this
____ day of January, 2000
----------------------------
Xxxxxxx X. Xxxxxxxx
