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EXHIBIT 10.13
SECOND AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement, entered into on this 14th day of November, 2000 and
made effective as of August 25, 2000, by and between AZURIX CORP., a Delaware
corporation ("Employer") having its headquarters at 000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxx 00000, and XXXX X. XXXXXXXX ("Employee"), an individual residing at 0000
Xxxx Xxx Xxxx, Xxxxxxx, Xxxxx 00000, is an amendment to that certain Executive
Employment Agreement between the Employer and Employee entered into the 26th day
of April, 1999, and made effective as of April 26, 1999 (the "Employment
Agreement").
WHEREAS, the parties desire to amend the Employment Agreement as
provided herein;
NOW, THEREFORE, in consideration thereof and of the mutual covenants
contained herein, the parties agree as follows:
1. Article 1, Section 1.2 is hereby deleted in its entirety and
the following is inserted in its place:
"1.2 Employee initially shall be employed in the position set
forth on Exhibit A. Subject to the provisions of Article 3,
Section 3.2(i), Employer may subsequently assign Employee to
a different position or modify Employee's duties and
responsibilities. Moreover, Employer may assign this
Agreement and Employee's employment to Employer, Enron, or
any affiliates of Employer or Enron. Employee agrees to serve
in the assigned position and to perform diligently and to the
best of Employee's abilities the duties and services
appertaining to such position as determined by Employer, as
well as such additional or different duties and services
appropriate to such position which Employee from time to time
may be reasonably directed to perform by Employer. Employee
shall at all times comply with and be subject to such
policies and procedures as Employer may establish from time
to time."
2. Article 3, Section 3.2 is hereby deleted in its entirety and
the following is inserted in its entirety:
"3.2 Employee shall have the right to terminate the
employment relationship under this Agreement at any
time prior to the expiration of the Term of
employment for any of the following reasons:
(i) Employee is required by Employer to be
permanently relocated to a city more than 50
miles from the Houston area or Employee is
transferred or assigned from Employee's
present position to a position which
involves an overall substantial and material
reduction in the nature or scope of
Employee's duties and responsibilities as
President and Chief Executive Officer of
Employer and within sixty
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days after such relocation or transfer or
assignment Employee provides Employer with a
written notice that such relocation or
transfer or assignment has occurred and that
Employee intends to terminate the employment
relationship under this provision, and
thereafter such relocation or transfer or
assignment is not corrected by Employer
within thirty days;
(ii) notice from Employee to Employer within
sixty (60) days after the date on which a
Change of Control occurs. For the purposes
of this Agreement, Change of Control means:
(a) the Employer merges or consolidates with
any other entity and (except as part of a
re-incorporation or other re-organization)
is not the surviving entity (or survives
only as a subsidiary of another entity), (b)
the Employer sells all or substantially all
its assets or operating companies to another
person or entity, (c) the Employer is
dissolved, or (d) if any third person or
entity (other than Enron or Atlantic Water
Trust or their successors) together with its
affiliates shall become, directly or
indirectly, the Beneficial Owner of more
than 50% of the voting stock of the
Employer. "Beneficial Owner" shall be
defined by reference to Rule 13d-3 under the
Securities Exchange Act of 1934, as amended,
or any successor rule or regulation;
provided, however, and without limitation,
any individual, corporation, partnership,
group, association or other person or entity
which has the right to acquire any capital
stock of the Employer at any time in the
future, whether such right is contingent or
absolute, pursuant to any agreement,
arrangement or understanding or upon
exercise of conversion rights, warrants or
options, or otherwise, shall be the
Beneficial Owner of such capital stock. In
this event, at Employer's discretion,
Employee will provide transition services of
six (6) months after providing notice to
Employer under this Section 3.2 (ii);
(iii) any other material breach by Employer of any
material provision of this Agreement which
remains uncorrected for 30 days following
written notice of such breach by Employee to
Employer; or
(iv) for any other reason whatsoever, in the sole
discretion of Employee.
The termination of Employee's employment by Employee
prior to the expiration of the Term shall constitute
an "Involuntary Termination" if made pursuant to
Section 3.2(i), Section 3.2 (ii), or Section 3.2
(iii), the effect of such termination is specified in
Section 3.5. The termination of Employee's employment
by Employee prior to the expiration of the Term shall
constitute a "Voluntary Termination" if made pursuant
to Section 3.2(iv); the effect of such termination is
specified in Section 3.3."
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3. Article 3, Section 3.5 is hereby deleted in its entirety and
the following inserted in its place:
"Upon an Involuntary Termination of the employment
relationship by either Employer or Employee prior to
the expiration of the Term, Employee shall be
entitled, in consideration of Employee's continuing
obligations hereunder after such termination
(including, without limitation, Employee's
non-competition obligations), to receive the greater
of one hundred twenty-five percent (125%) of the then
current Monthly Base Salary as if Employee's
employment (which shall cease on the date of such
Involuntary Termination) had continued for the full
Term of this Agreement or two (2) years annual base
salary plus two times his target bonus. In addition,
Employer shall reimburse Employee for 75% of the cost
of medical insurance for Employee and Employee's
family members covered immediately prior to the date
of Involuntary Termination through the Term of this
Agreement and Employee shall have full discretion to
determine the provider of said medical insurance for
Employee and his family. Employee shall not be under
any duty or obligation to seek or accept other
employment following Involuntary Termination and the
amounts due Employee hereunder shall not be reduced
or suspended if Employee accepts subsequent
employment. Employee's rights under this Section 3.5
are Employee's sole and exclusive rights against
Employer, Enron, or their affiliates, and Employer's
sole and exclusive liability to Employee under this
Agreement, in contract, tort, or otherwise, for any
Involuntary Termination of the employment
relationship. Employee covenants not to xxx or lodge
any claim, demand or cause of action against Employer
for any sums for Involuntary Termination other than
those sums specified in this Section 3.5. If Employee
breaches this covenant, Employer shall be entitled to
recover from Employee all sums expended by Employer
(including costs and attorneys fees) in connection
with such suit, claim, demand or cause of action."
4. Article 7, Section 7.1(iii) is hereby deleted in its entirety
and the following is inserted in its entirety:
induce any employee of Employer or Enron or any of
their affiliates to terminate his or her employment
with Employer, Enron, or their affiliates, or hire or
assist in the hiring of any such employee by person,
association, or entity not affiliated with Enron.
These non-competition obligations shall extend until
the latter of (a) expiration of the Term or (b) two
years after termination of the employment
relationship.
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5. Exhibit "A" to the Employment Agreement is hereby deleted in
its entirety and the attached Exhibit "A" is inserted in its entirety.
This Amendment is a Second Amendment to the Employment Agreement, and
the parties agree that all other terms, conditions and stipulations contained in
the Employment Agreement, and any amendments thereto, shall remain in full force
and effect and without any change or modification, except as provided herein.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
AZURIX CORP.
By: /S/ XXXXXXX X. XXXXXXX, XX.
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Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Chairman
This 14th day of November, 2000
XXXX X. XXXXXXXX
/S/ XXXX X. XXXXXXXX
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This 14th day of November, 2000
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EXHIBIT "A" TO
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN AZURIX CORP. AND XXXX X. XXXXXXXX
Term: Five years from the Effective Date of this Agreement
Position: President and Chief Executive Officer
Location: Houston, Texas
Reporting Relationship: Reports to Chairman
Monthly Base Salary: Effective May 1, 2000, Employee's Monthly Base
Salary shall be Thirty-Seven Thousand Five Hundred
Dollars ($37,500.00).
Bonus: Employee shall be eligible to participate in the
Azurix Corp. Annual Incentive Plan ("Plan") or any
replacement plan of Employer. All bonuses shall be
paid in accordance with the terms and provisions of
the Plan, a portion of which may be paid in cash and
a portion of which may be paid in stock options
and/or restricted stock. Employee's annual bonus
target is 100% of Employee's annual base salary,
subject to both Employer's performance and Employee's
performance.
Long Term Incentive Plan: Employee shall be eligible to participate in the
Azurix Corp Stock Plan.
AZURIX CORP.
By: /S/ XXXXXXX X. XXXXXXX, XX
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Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Chairman
This 14th day of November, 2000
XXXX X. XXXXXXXX
/S/ XXXX X. XXXXXXXX
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This 14th day of November, 2000
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