Common use of Section 4999 Clause in Contracts

Section 4999. (A) If, by reason of, or in connection with, any transaction that occurs after the Effective Date, Executive would be subject to the imposition of the excise tax imposed by Section 4999 of the Code related to Executive’s employment with Holdings or the Company, whether before or after termination of Executive’s employment, but the imposition of such tax could be avoided by approval of shareholders described in Section 280G(b)(5)(B) of the Code, then Executive may cause the Company or Holdings to seek such approval, in which case the Company and Holdings will use their reasonable best efforts to cause such approval to be obtained and Executive will cooperate and execute such waivers as may be necessary so that such approval avoids imposition of any excise tax under Section 4999. If Executive fails to cause the Company or Holdings to seek such approval, or if Executive does cause the Company or Holdings to seek such approval, but fails to cooperate and execute such waivers as may be necessary in the approval process, Exhibit IV shall not apply and Executive shall not be entitled to any gross-up payment for any resulting tax under Section 4999. If such approval, even if sought and obtained, would not avoid imposition of the excise tax imposed under Section 4999, then the provisions of Exhibit IV attached hereto shall apply without any precedent obligation of Executive to seek such approval. (B) In the event of the imposition of the excise tax imposed by Section 4999 of the Code arising by reason of or in connection with the Closing, whether before or after termination of Executive’s employment, Executive shall be entitled to the payments and benefits set forth on Exhibit IV. Following Executive’s termination of employment without Cause (other than by reason of Executive’s death or Disability) or upon Executive’s resignation for Good Reason, in either case, within twenty-four (24) months following a Change in Control, except as set forth in this Section 7(e), and for any rights to indemnification and claims for liability insurance coverage under officer and director policies, Executive shall have no further rights to any compensation or any other benefits under this Agreement.

Section 4999. (A) If, by reason of, or in connection with, any transaction that occurs after the Effective Date, Executive would be subject to the imposition of the excise tax imposed by Section 4999 of the Code related to Executive’s employment with Holdings or the Company, whether before or after termination of Executive’s employment, but the imposition of such tax could be avoided by approval of shareholders described in Section 280G(b)(5)(B) of the Code, then Executive may cause the Company or Holdings to seek such approval, in which case the Company and Holdings will use their its reasonable best efforts to cause such approval to be obtained and Executive will cooperate and execute such waivers as may be necessary so that such approval avoids imposition of any excise tax under Section 4999. If Executive fails to cause the Company or Holdings to seek such approval, or if Executive does cause the Company or Holdings to seek such approval, but fails to cooperate and execute such waivers as may be necessary in the approval process, Exhibit IV V shall not apply and Executive shall not be entitled to any gross-up payment for any resulting tax under Section 4999. If such approval, even if sought and obtained, would not avoid imposition of the excise tax imposed under Section 4999, then the provisions of Exhibit IV V attached hereto shall apply without any precedent obligation of Executive to seek such approval. (B) In the event of the imposition of the excise tax imposed by Section 4999 of the Code arising by reason of or in connection with the Closing, whether before or after termination of Executive’s employment, Executive shall be entitled to the payments and benefits set forth on Exhibit IV. V. Following Executive’s termination of employment without Cause (other than by reason of Executive’s death or Disability) or upon Executive’s resignation for Good Reason, in either case, within twenty-four (24) months following a Change in Control, except as set forth in this Section 7(e), and for any rights to indemnification and claims for liability insurance coverage under officer and director policies, Executive shall have no further rights to any compensation or any other benefits under this Agreement.

Section 4999. (A) If, by reason of, or in connection with, any transaction that occurs after the Effective Date, Executive would be subject to the imposition of the excise tax imposed by Section 4999 of the Code related to Executive’s employment with Holdings or the Company, whether before or after termination of Executive’s employment, but the imposition of such tax could be avoided by approval of shareholders described in Section 280G(b)(5)(B) of the Code, then Executive may cause the Company or Holdings to seek such approval, in which case the Company and Holdings will use their its reasonable best efforts to cause such approval to be obtained and Executive will cooperate and execute such waivers as may be necessary so that such approval avoids imposition of any excise tax under Section 4999. If Executive fails to cause the Company or Holdings to seek such approval, or if Executive does cause the Company or Holdings to seek such approval, but fails to cooperate and execute such waivers as may be necessary in the approval process, Exhibit IV shall not apply and Executive shall not be entitled to any gross-up payment for any resulting tax under Section 4999. If such approval, even if sought and obtained, would not avoid imposition of the excise tax imposed under Section 4999, then the provisions of Exhibit IV attached hereto shall apply without any precedent obligation of Executive to seek such approval. (B) In the event of the imposition of the excise tax imposed by Section 4999 of the Code arising by reason of or in connection with the Closing, whether before or after termination of Executive’s employment, Executive shall be entitled to the payments and benefits set forth on Exhibit IV. Following Executive’s termination of employment without Cause (other than by reason of Executive’s death or Disability) or upon Executive’s resignation for Good Reason, in either case, within twenty-four (24) months following a Change in Control, except as set forth in this Section 7(e), Section 5(d), and for any rights to indemnification and claims for liability insurance coverage under officer and director policies, Executive shall have no further rights to any compensation or any other benefits under this Agreement.

Section 4999. (A) If, by reason of, or in connection with, any transaction that occurs after the Effective Date, Executive would be subject to the imposition of the excise tax imposed by Section 4999 of the Code related to Executive’s employment with Holdings or the Company, whether before or after termination of Executive’s employment, but the imposition of such tax could be avoided by approval of shareholders described in Section 280G(b)(5)(B) of the Code, then Executive may cause the Company or Holdings to seek such approval, in which case the Company and Holdings will use their reasonable best efforts to cause such approval to be obtained and Executive will cooperate and execute such waivers as may be necessary so that such approval avoids imposition of any excise tax under Section 4999. If Executive fails to cause the Company or Holdings to seek such approval, or if Executive does cause the Company or Holdings to seek such approval, but fails to cooperate and execute such waivers as may be necessary in the approval process, Exhibit IV shall not apply and Executive shall not be entitled to any gross-up payment for any resulting tax under Section 4999. If such approval, even if sought and obtained, would not avoid imposition of the excise tax imposed under Section 4999, then the provisions of Exhibit IV attached hereto shall apply without any precedent obligation of Executive to seek such approval. (B) In the event of With respect to the imposition of the excise tax imposed by Section 4999 of the Code arising by reason of or in connection with the Closing, whether before or after termination of Executive’s employment, Section 4.6 of the Employment Agreement between Executive and Holdings dated as of October 11, 2004, as amended on September 28, 2007 (the “Prior Agreement”) shall apply and such provision is herein incorporated by reference. The Gross-up Payment, as defined in the Prior Agreement, that is attributable to the amount by which the LTIP Payment, as defined in Section 2.1 of the Deferred Share Agreement dated October 9, 2007 between Executive and Texas Energy Future Holdings Limited Partnership (the “Deferred Share Agreement”), is reduced pursuant to Section 2.1 of the Deferred Share Agreement (the “Deferred Share Gross-Up”), was paid to Executive on January 2, 2008, subject to withholding for federal income taxes, FICA taxes, and Section 4999 excise taxes. The parties agree that the Deferred Share Gross-Up, after application of the Additional Payment Agreement between Executive, the Company and Holdings dated October 10, 2007 (the “Additional Payment Agreement”), was in the amount of $437,575, subject to federal income tax withholding of $153,151.25, FICA withholding of $6,344.84, and Section 4999 withholding of $80,803. Any Gross-Up Payment otherwise due by reason of distributions pursuant to the Deferred Share Agreement shall be entitled to reduced by the payments and benefits set forth on Exhibit IVamount of the Deferred Share Gross-Up. Following Executive’s termination of employment without Cause (other than by reason of Executive’s death or Disability) or upon Executive’s resignation for Good Reason, in either case, within twenty-four (24) months following a Change in Control, except as set forth in this Section 7(e), and for any rights to indemnification and claims for liability insurance coverage under officer and director policies, Executive shall have no further rights to any compensation or any other benefits under this Agreement.

Section 4999. (A) If, by reason of, or in connection with, any transaction that occurs after the Effective Date, Executive would be subject to the imposition of the excise tax imposed by Section 4999 of the Code related to Executive’s employment with Holdings or the Company, whether before or after termination of Executive’s employment, but the imposition of such tax could be avoided by approval of shareholders described in Section 280G(b)(5)(B) of the Code, then Executive may cause the Company or Holdings to seek such approval, in which case the Company and Holdings will use their reasonable best efforts to cause such approval to be obtained and Executive will cooperate and execute such waivers as may be necessary so that such approval avoids imposition of any excise tax under Section 4999. If Executive fails to cause the Company or Holdings to seek such approval, or if Executive does cause the Company or Holdings to seek such approval, but fails to cooperate and execute such waivers as may be necessary in the approval process, Exhibit IV shall not apply and Executive shall not be entitled to any gross-up payment for any resulting tax under Section 4999. If such approval, even if sought and obtained, would not avoid imposition of the excise tax imposed under Section 4999, then the provisions of Exhibit IV attached hereto shall apply without any precedent obligation of Executive to seek such approval. (B) In the event of the imposition of the excise tax imposed by Section 4999 of the Code arising by reason of or in connection with the Closing, whether before or after termination of Executive’s employment, Executive shall be entitled to the payments and benefits set forth on Exhibit IV. Following Executive’s termination of employment without Cause (other than by reason of Executive’s death or Disability) or upon Executive’s resignation for Good Reason, in either case, within twenty-four (24) months following a Change in Control, except as set forth in Section 5 and this Section 7(e)8(e) and, and for any rights to indemnification and claims for liability insurance coverage under officer and director policies, Executive shall have no further rights to any compensation or any other benefits under this Agreement.