EXHIBIT 10.4
EMPLOYEE SEVERANCE
AGREEMENT AND RELEASE
This Severance Agreement and Release ("Agreement") is made and entered
into January 5, 2004 (the "Effective Date"), by and between DUKE ENERGY FIELD
SERVICES, LP ("Field Services"), a limited partnership with its principal
executive offices in Denver, Colorado, and Xxxxxxx X. Xxxxxx, III (the
"Employee").
W I T N E S S E T H:
WHEREAS, Field Services has determined that it is in the best interests of
Field Services, its affiliates and its partners to assure that Field Services
will have the continued undivided time, attention, loyalty and dedication of the
Employee, notwithstanding the possibility or anticipation of a termination of
employment;
WHEREAS, Field Services believes it is imperative to diminish the
inevitable distraction of the Employee by virtue of the personal uncertainties
and risks created by any pending or threatened termination of employment and to
encourage the Employee's full undivided time, attention, loyalty, and dedication
to Field Services currently and in the event of any pending or threatened
termination of employment; and
WHEREAS, it is Field Services' intention that the Employee be assured of
compensation and benefit arrangements if his employment terminates which are
competitive with those similarly situated Duke Energy Corporation peer business
unit heads, such group specifically excluding the Named Executive Officers
appearing on the Summary Compensation Table in the Duke Energy Corporation proxy
statement and the Employee is willing to enter into an agreement to that end,
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. TERM OF AGREEMENT. The term of this Agreement (the "Agreement Term")
shall commence on January 5, 2004 (the "Commencement Date") and shall terminate
on January 5, 2006, in the event a termination of the Employee's employment by
Duke Energy Field Services Corporation, Duke Energy Field Services LLC, Duke
Energy Field Services, LP or any of their respective subsidiaries (a "Field
Services' Affiliate") or Field Services shall not have occurred by such date. In
the event Employee's employment is terminated (so that the Employee is no longer
employed by Field Services or any Field Services' Affiliate) prior to the
expiration of the Agreement Term, this Agreement will continue in force and
effect until the satisfaction of all of the parties' obligations hereunder.
Except as otherwise provided in this Agreement, Employee shall be an
employee-at-will whose employment can be terminated at any time for any reason
by Field Services, or any Field Services' Affiliate or the Employee.
2. SEVERANCE BENEFITS.
(a) General. In the event the Employee's employment by Field Services or a
Field Services' Affiliate is terminated during the Agreement Term (so that the
Employee is no longer employed by Field Services or any Field Services'
Affiliate), the Employee shall be entitled to the compensation and termination
benefits set forth in this Section 2; provided, however, that the obligations of
Field Services under Section 2(c) hereof shall be subject to the forfeiture and
repayment provisions of Section 3(e) hereof and to the requirements regarding a
release of claims under Section 16 hereof. Any lump-sum payments required under
this Section 2 will be made by Field Services within thirty (30) days after the
effective date of the Employee's termination of employment. In the event of
Employee's death, any lump-sum payments required under this Section 2 will be
made by Field Services as soon as administratively feasible after the effective
date of the Employee's termination of employment to his estate. This Agreement
does not grant the Employee any right or entitlement to be retained by Field
Services or any Field Services' Affiliate and shall not affect or prejudice the
right of Field Services or any Field Services' Affiliate to terminate the
employment of the Employee at any time for any reason, subject to the payment
and benefit provisions of this Section 2. In the event of the termination of
Employee's employment with Field Services and all Field Services' Affiliates,
the Employee agrees to immediately resign all of his positions as an officer or
director of Field Services and any Field Services' Affiliates.
(b) Termination on Account of Death, Disability, Cause, Voluntary Quit or
Offer of Employment by Field Services Parent or Affiliated Company. In the event
that the Employee's employment hereunder is terminated:
(i) due to the death of the Employee,
(ii) by Field Services or any Field Services' Affiliate due to any
mental or physical impairment which prevents the Employee from performing
the essential functions of his position with Field Services or any Field
Services' Affiliate, or which has resulted in the Employee's becoming
eligible for benefits under any long-term disability income program
maintained by Field Services or any Field Services' Affiliate,
(iii) by Field Services or any Field Services' Affiliate for
"Cause," which is defined as the occurrence of any one of the following
(provided the Employee receives written notice from Field Services
identifying the acts or omissions constituting Cause and is given a 30-day
opportunity to cure, if such acts or omissions are capable of cure): (A) a
final conviction of a felony; (B) an egregious act of dishonesty
(including, without limitation, theft or embezzlement), or a malicious
action by the Employee toward the customers or employees of Field Services
or any Field Services' Affiliate; (C) a violation of the provisions of
Section 3 or Section 4 hereof; or (D) material failure to carry out, or
malfeasance or gross insubordination in carrying out, reasonably assigned
duties or instructions consistent with his position (provided that
material failure to carry out reasonably assigned duties shall be deemed
to constitute Cause only after a finding by the Duke Energy Field
Services, LLC Board of Directors of material
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failure on the part of the Employee),
(iv) voluntarily by the Employee, or
(v) in conjunction with Employee being offered employment with Duke
Energy Corporation or ConocoPhillips, or one of their respective
subsidiaries,
then the Employee shall be entitled only to salary amounts payable in the normal
course for service through the date of his termination of employment and any
rights or payments that have become vested or that are otherwise due in
accordance with the terms of any employee benefit, incentive or compensation
plan or arrangement maintained by Field Services or any Field Services'
Affiliate that the Employee participated in at the time of his termination of
employment (together, the "Accrued Rights").
(c) Termination by Field Services other than for Cause. In the event that
the Employee's employment is terminated by Field Services or the applicable
Field Services' Affiliate other than as described in clauses (b)(i), (ii),
(iii), (iv) or (v) above, the Employee will be paid and entitled to the
following:
(i) the payments and benefits representing the Employee's Accrued
Rights;
(ii) a lump-sum payment equal to (A) the Employee's annual bonus
payment under any Bonus Plan (as defined below) earned for any completed
bonus year prior to termination of employment, if not previously paid,
plus (B) a pro-rata amount of the Employee's target bonus under any Bonus
Plan for the bonus year in which the termination occurs, determined as if
all program goals had been met at target (the "Target Bonus"), pro-rated
based on the number of days of service during the bonus year occurring
prior to termination of employment;
(iii) a lump-sum payment equal to two (2) times the sum of the
Employee's then-current Base Salary and Target Bonus;
(iv) a lump-sum payment in an amount equal to the aggregate cost of
coverage that would apply for the Severance Period (as defined below)
under the medical and dental (but not medical spending account or employee
assistance plan ) and basic life insurance plans that the Employee
participated in at the time of his termination, or their equivalent, under
the same terms to the Employee as though the Employee had not terminated
employment, which cost shall be deemed equal to the premium costs being
utilized for the provision of such medical and dental coverage to former
employees under COBRA at the time of the Employee's termination of
employment and Field Services' assumed costs for such basic life insurance
coverage for internal accounting purposes at the time of the Employee's
termination of employment;
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(v) a lump-sum payment equal to the present value (determined based
on a six (6) percent interest rate assumption and, in the case of any
pension plan accrual, the applicable mortality table for calculating
optional forms of benefits under such plan) of any employer contribution
(other than a contribution under section 401(k) of the Internal Revenue
Code of 1986, as amended), benefit accrual or employer-financed account
allocation that would have been made or accrued during the Severance
Period under any qualified or non-qualified pension or savings plan
maintained by Field Services or any Field Services' Affiliate in which the
Employee participated at the time of his termination, determined using the
Employee's Base Salary and Target Bonus (if relevant) at the time of
termination and assuming the maximum elective deferral by the Employee
permitted by such plans, if applicable;
(vi) notwithstanding the terms of any award agreement or plan
document to the contrary, continued vesting for the duration of the
Severance Period of any long term incentive awards, including awards of
stock options held by the Employee at the time of his termination of
employment that are not vested or exercisable on such date, in accordance
with their terms, as if the Employee's employment had not terminated, with
any options or similar rights to remain exercisable (to the extent
exercisable at the end of the Severance Period) for a period of 90 days
following the close of the Severance Period, but not beyond the maximum
original term of such options or rights. Any award that is designated by
Duke Energy Corporation as a "Chairman's Award" and the stock award
provided to Employee pursuant to the February 1, 2004 Restricted Stock
Award Agreement between Employee and Duke Energy Corporation are
specifically excluded from this section and nothing in this section shall
impact the terms of such awards; and
(vii) in the event that the Employee would have satisfied the
eligibility requirements of any retiree medical plan or program maintained
by Field Services or any Field Services' Affiliate generally for its
retirees (a "Retiree Plan") within two years after the date of his or her
termination of employment, the provision of such retiree medical benefits
to the Employee from and after the date he would have satisfied such
requirements (assuming continued employment) on a basis substantially
equivalent to the retiree medical benefits provided generally under the
Retiree Plan, subject to such terms and conditions and requirements for
participation as apply under the Retiree Plan from time to time and as
such Retiree Plan may be amended or terminated by Field Services or any
Field Services' Affiliate, as the case may be, at any time.
(d) Termination by Field Services other than for Cause after the
expiration of the Agreement Term. In the event that Employee is terminated by
Field Services, or the applicable Field Services Affiliate other than for Cause
after the expiration of the Agreement Term, then the Employee shall be eligible
to receive severance benefits comparable to those provided to similarly situated
Duke Energy Corporation peer business unit heads during the period of time from
January 5, 2004 through the date of Employee's termination of employment with
Field Services, or the applicable Field Services Affiliate, such group
specifically excluding
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the Named Executive Officers appearing on the Summary Compensation Table in the
Duke Energy Corporation proxy statement. The Employee agrees that any dispute of
any kind arising under or relating to this clause shall be resolved according to
the process set forth in Section 14 below.
(e) Definitions. For purposes of this Agreement, the terms below shall
have the following definitions:
(1) "Bonus Plan" shall mean any bonus plan, program or arrangement
in which the Employee participates where bonus payments are based upon
achievement of performance targets by Field Services, a Field Services'
Affiliate, any respective business unit thereof, Duke Energy Corporation,
or the Employee.
(2) "Base Salary" shall mean the annualized amount of the Employee's
regular salary during any payroll period, prior to any reductions for
elective deferrals or salary reductions but excluding any overtime,
incentive or other special compensation.
(3) "Severance Period" shall be the 24-month period following the
Employee's termination of employment.
3. RESTRICTIVE COVENANTS.
(a) Noncompetition and Nonsolicitation. The Employee agrees that he shall
not, during the "Restricted Period" (as defined below), without Field Services'
prior written consent, for any reason, directly or indirectly, either as
principal, agent, manager, employee, partner, shareholder, director, officer,
consultant or otherwise (A) become engaged or involved in any business (other
than as a less-than 3% equity owner of any corporation traded on any national,
international or regional stock exchange or in the over-the-counter market) that
competes with Field Services or any Field Services' Affiliate in the business of
(i) gathering, compression, treating, processing, transportation, trading,
marketing or storage of natural gas or an component thereof, (ii) fractionation,
transportation, trading, marketing or storage of natural gas liquids, (iii)
gathering, transportation, trading, marketing or storage of crude oil, (iv)
distribution of specialty chemicals, (v) transportation and storage of refined
products, liquefied petroleum gases and petrochemicals, and (vi) any other
business engaged in by Field Services or Field Services' Affiliate after the
date of this Agreement and prior to the date of termination; or (B) induce or
attempt to induce any customer, client, supplier, employee, agent or independent
contractor of Field Services or any Field Services' Affiliate to reduce,
terminate, restrict or otherwise alter its business relationship with Field
Services or any Field Services' Affiliate. The provisions of this Section 3(a)
shall be limited in scope and effective only within the following geographical
areas: (i) any country in the world where Field Services or any Field Services'
Affiliate has $25 million in capital deployed as of the date of termination;
(ii) the Continent of North America; (iii) the United States of America; (iv)
Canada; (v) the states of Arkansas, California, Colorado, Connecticut, Illinois,
Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts,
Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New
York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, Texas, Utah,
Vermont, Virginia, West Virginia, Wyoming; and (vi) British Columbia and
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Alberta. The parties intend the above geographical areas to be completely
severable and independent, and any invalidity or unenforceability of this
Agreement with respect to any one area shall not render this Agreement
unenforceable as applied to any one or more of the other areas.
(b) Restricted Period. For purposes hereof, the "Restricted Period" shall
be the period of the Employee's employment during the Agreement Term and, in the
event of a termination of the Employee's employment that is covered by Section
2(c) hereof, the twelve-month period following the such termination of
employment.
(c) Severability. If any provision or part of this Section 3 is held to be
unenforceable because of the duration of such provision or the area covered
thereby, the parties hereto agree to modify such provision, or that the court
making such determination shall have the power to modify such provision, to
reduce the duration or area of such provision or both, or to delete specific
words or phrases therefrom ("blue-penciling"), and in its reduced or
blue-penciled form, such provision shall then be enforceable and shall be
enforced. The parties intend the above restrictions on competition to be
completely severable and independent, and any invalidity or unenforceability of
any one or more of such restrictions shall not render invalid or unenforceable
any one or more of the other restrictions.
(d) Enforcement. The Employee acknowledges that Field Services may have no
adequate means to protect its rights under this Section 3 other than by securing
an injunction (a court order prohibiting the Employee from violating this
Agreement). The Employee agrees that Field Services may enforce this Agreement
by obtaining a preliminary and permanent injunction and any other appropriate
equitable relief in any court of competent jurisdiction. The Employee
acknowledges that the recovery of damages will not be an adequate means to
redress a breach of this Agreement, but nothing in this Section 3 shall prohibit
Field Services from pursuing any remedies in addition to injunctive relief,
including recovery of damages and/or any forfeiture or repayment obligations
provided for herein.
(e) Forfeitures and Repayments. The Employee agrees that, in the event he
violates the provisions of Section 3(a) hereof during the Restricted Period, he
will forfeit and not be entitled to any cash severance payments or any non-cash
benefits or rights (including, without limitation, stock option rights), other
than Accrued Rights, to which he would otherwise be entitled to under Section
2(c) hereof (together, the "Termination Benefits"). The Employee further agrees
that, in the event he violates the provisions of Section 3(a) hereof following
the payment or commencement of any Termination Benefits, (i) he will forfeit and
not be entitled to any further Termination Benefits, and (ii) he will be
obligated to repay to Field Services an amount in respect of the cash payments
previously made to him under Section 2(c) hereof (the "Repayment Amount"). The
Repayment Amount shall be determined by aggregating the cash severance payments
made to the Employee under Sections 2(c)(ii), 2(c)(iii),2(c)(iv) and 2(c)(v)
hereof, and multiplying the resulting amount by a fraction, the numerator of
which is the number of full and partial calendar months remaining in the
Severance Period at the time of the violation (rounded to the nearest quarter of
a month), and the denominator of which is twenty-four (24). The Repayment Amount
shall be paid to Field Services in cash in a single sum within ten (10) business
days after the first date of the violation, whether or not Field Services has
knowledge of the violation or has made a demand for payment. Any such payment
made following such date
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shall bear interest at a rate equal to six (6) percent. Furthermore, in the
event the Employee violates the provisions of Section 3(a) hereof, and
notwithstanding the terms of any award agreement or plan document to the
contrary (which shall be considered to be amended to the extent necessary to
reflect the terms hereof), the Employee shall immediately forfeit the right to
exercise any stock option or similar rights that are outstanding at the time of
the violation, and the Repayment Amount, calculated as provided above, shall be
increased by the amount of any gains (measured by the difference between the
aggregate fair market value on the date of exercise of shares underlying the
stock option or similar right and the aggregate exercise price of such stock
option or similar right) realized by the Employee upon the exercise of stock
options or similar rights within the one-year period prior to the first date of
the violation.
(f) Permissive Release. The Employee may request that Field Services
release him from the restrictive covenants of Section 3(a) hereof upon the
occurrence of the forfeiture and repayment of termination benefits and rights
provided for in Section 3(e) hereof. Field Services may, in its sole discretion,
grant such a release in whole or in part, or may reject such request and
continue to enforce its rights under this Section 3.
(g) Consideration; Survival. The Employee acknowledges and agrees that the
compensation and benefits provided in this Agreement constitute adequate and
sufficient consideration for the covenants made by the Employee in this Section
3 and in the remainder of this Agreement. The Employee's obligations under this
Section 3 shall survive any termination of his employment as specified herein.
4. CONFIDENTIALITY. The Employee acknowledges that during the Employee's
employment with Field Services or any Field Services' Affiliate, the Employee
will acquire, be exposed to and have access to, material, data and information
of Field Services and the Field Services' Affiliates and/or their customers or
clients that is confidential, proprietary, and/or a trade secret. At all times,
both during and after the Agreement Term, the Employee shall keep and retain in
confidence and shall not disclose, except as required and authorized in the
course of the Employee's employment with Field Services or any Field Services'
Affiliate, to any person, firm or corporation, or use for his own purposes, any
of this proprietary, confidential or trade secret information. For purposes of
this paragraph, such information shall include, but shall not be limited to:
sales methods, information concerning principals or customers, prospects or
suppliers, advertising methods, financial affairs or methods of procurement,
marketing and business plans, acquisitions or merger targets, strategies,
projections, business opportunities, client, prospect or supplier lists, sales
and cost information and financial results and performance. The Employee
acknowledges that the obligations pertaining to the confidentiality and
non-disclosure of information shall remain in effect for a period of two (2)
years after termination of employment, or until Field Services or a Field
Services' Affiliate has released any such information into the public domain, in
which case the Employee's obligation hereunder shall cease with respect only to
such information so released into the public domain. The Employee's obligations
under this Section 4 shall survive any termination of his employment. If the
Employee receives a subpoena or other legal process requiring that he produce,
provide or testify about information that is confidential property and/or a
trade secret, the Employee shall notify Field Services within two business days
of his notice or receipt of such subpoena or legal process and cooperate fully
with Field Services in resisting disclosure of confidential information. Field
Services at its expense has the right either in the name of the Employee or in
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its own name to oppose or move to quash any subpoena or other legal process
directed to the Employee regarding confidential information. If Field Services
does not successfully oppose or move successfully to quash any subpoena or other
legal process directed to the Employee after being notified of it by him, he
shall be free to respond to the subpoena as he determines to be appropriate.
5. POST-EMPLOYMENT OBLIGATIONS.
(a) Field Services Property. All records, files, lists, including,
computer generated lists, drawings, documents, equipment and similar items
relating to the business of Field Services and the Field Services' Affiliates
which the Employee shall prepare or receive from Field Services or the Field
Services' Affiliates shall remain the sole and exclusive property of Field
Services and the Field Services' Affiliates. Upon termination of the Employee's
employment for any reason, the Employee shall promptly return all property of
Field Services or any Field Services' Affiliate in his possession. The Employee
further represents that he will not copy or cause to be copied, print out or
cause to be printed out any software, documents or other materials originating
with or belonging to Field Services or any Field Services' Affiliate. The
Employee additionally represents that, upon termination of his employment with
Field Services or a Field Services' Affiliate, he will not retain in his
possession any such software, documents or other materials.
(b) Cooperation. The Employee agrees to cooperate with and provide
assistance to Field Services and the Field Services' Affiliates and their legal
counsel in connection with any litigation (including arbitration or
administrative hearings) or investigation affecting Field Services or any Field
Services' Affiliate, in which, in the reasonable judgment of the counsel of
Field Services or any Field Services' Affiliate, the Employee's assistance or
cooperation is needed. The Employee shall, when requested by Field Services or
any Field Services' Affiliate, provide testimony or other assistance and shall
travel at the request of Field Services or any Field Services' Affiliate in
order to fulfill this obligation; provided, however, that, in connection with
such litigation or investigation, Field Services or the Field Services'
Affiliate, as the case may be, shall attempt to accommodate the Employee's
schedule, shall provide him with reasonable notice in advance of the times in
which his cooperation or assistance is needed, and shall reimburse the Employee
for any reasonable expenses incurred in connection with such matters, as well as
for any actual lost wages suffered as a result from absences from employment.
6. TAX WITHHOLDING. Field Services may withhold from any amounts payable
under this Agreement such federal, state, local or foreign taxes or other
withholdings as shall be required to be withheld pursuant to any applicable law
or regulation.
7. NOTICE. Any notices to be given hereunder by either party to the other
may be effectuated either by personal delivery in writing or by mail, registered
or certified, postage prepaid, with return receipt requested. Mailed notices
shall be addressed to the parties at the following addresses:
If to Field Services or any other
Field Services' Affiliate: Xxxx X. Xxxxxx,
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President and Chief Operating Officer
Duke Energy Corporation
000 Xxxxx Xxxxxx Xxxxxx - XX0XX
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Cc: Xxxxx X Xxxxxx
Duke Energy Field Service - General Counsel
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
8. WAIVER OF BREACH. The waiver by any party to a breach of any provision
in this Agreement cannot operate or be construed as a waiver of any subsequent
breach by a party. Any waiver or consent from Field Services with respect to any
term or provision of this Agreement or any other aspect of the Employee's
conduct or employment shall be effective only in the specific instance and for
the specific purpose for which given and shall not be deemed, regardless of
frequency given, to be a further or continuing waiver or consent. The failure or
delay of Field Services at any time or times to require performance of, or to
exercise any of its powers, rights or remedies with respect to, any term or
provision of this Agreement or any other aspect of the Employee's conduct or
employment shall in no manner (except as otherwise expressly provided herein)
affect Field Services' right at a later time to enforce any such term or
provision.
9. SEVERABILITY. The validity or unenforceability of any particular
provision in this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if the invalid or
unenforceable provision were omitted.
10. ENTIRE AGREEMENT. Except as otherwise provided herein, this Agreement
covers the entire understanding of the parties with respect to the subject
matter hereof, superseding all prior understandings and agreements. No
modifications or amendments of the terms and conditions herein shall be
effective unless in writing and signed by the parties or their respective duly
authorized agents.
11. APPLICABILITY OF CHANGE IN CONTROL AGREEMENT. Notwithstanding anything
to the contrary in this Agreement, if a termination of employment by the
Employee shall be covered by a "Change in Control Agreement" (or similar change
in control severance agreement) between the Employee and Field Services, the
provisions of such Change in Control Agreement shall be controlling and this
Agreement shall cease to be of any further effect.
12. GOVERNING LAW. This Agreement shall be interpreted, construed and
governed according to the laws of the State of Colorado, without reference to
conflicts of law principles thereof.
13. SUCCESSORS AND ASSIGNS. Neither this Agreement, nor any of the
parties' respective rights, powers, duties or obligations hereunder, may be
assigned by either party without the prior written consent of the other party.
This Agreement shall be binding upon and inure to the benefit of the Employee
and his heirs and legal representatives of Field Services and
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its successors. Successors of Field Services shall include, without limitation,
any company or companies acquiring, directly or indirectly, all or substantially
all of the assets of Field Services, whether by merger, consolidation, purchase,
lease or otherwise, and such successor shall thereafter be deemed "Field
Services" for the purpose hereof.
14. FORUM SELECTION. The Employee agrees that any claim against Field
Services or any Field Services' Affiliate arising out of or relating in any way
to this Agreement or to the Employee's employment or termination of employment
with Field Services or any Field Services' Affiliate (including without
limitation any claim for compensation or claim arising under the federal civil
rights statutes) shall be brought exclusively in the District Court for the City
and County of Denver, Colorado, or the United States District Court for the
District of Colorado, and in no other forum. The Employee hereby consents to the
personal and subject matter of jurisdiction of these courts for the purpose of
adjudicating any claims subject to this forum selection clause. The Employee
also agrees that any dispute of any kind arising out of or relating to this
Agreement or to the Employee's employment or termination of employment
(including without limitation any claim for compensation or claim arising under
the federal civil rights statutes) shall at the sole election or demand of Field
Services or the applicable Field Services' Affiliate be submitted to final,
conclusive and binding arbitration before and according to the rules then
prevailing of the American Arbitration Association in Denver, Colorado ("AAA"),
which election or demand may be made by Field Services or the applicable Field
Services' Affiliate at any time. The dispute shall be heard and determined by
one mutually acceptable arbitrator selected by the parties from a panel of seven
arbitrators provided to the parties by AAA. The parties shall select the
arbitrator by alternatively striking one name off the panel list until only one
name remains and that person shall be the arbitrator. The results of any such
arbitration proceeding shall be final and binding both upon Field Services or
the applicable Field Services' Affiliate and upon the Employee, and shall be
subject to judicial confirmation as provided by the Federal Arbitration Act or
the Colorado Uniform Arbitration Act, C.R.S. Section 00-00-000, et. seq., which
are incorporated herein by reference.
15. CONFIRMATION OF D&O COVERAGE AND THE RIGHT TO INDEMNIFICATION. In
addition to any indemnification to which Employee may be entitled to from Duke
Energy Corporation, Field Services agrees to indemnify Employee against
liabilities and contingencies to the extent permitted by law. To the extent such
directors and officers insurance coverage is being provided to other present or
former officers or directors of Field Services, Employee shall be entitled to
directors and officers insurance coverage, through the sixth anniversary of the
date on which he leaves Field Services' employ, on terms and conditions
(including scope, amount of coverage, dollar limitations, etc.) no less
favorable to Employee than the coverage (if any) provided to any other present
or former officers or directors of Field Services.
16. LEGAL FEES. To provide the Employee with reasonable assurance that the
purposes of this Agreement will not be frustrated by the cost of enforcement,
Field Services shall pay and be solely responsible for reasonable attorneys'
fees and expenses incurred by the Employee as a result of a claim that Field
Services has breached or otherwise failed to perform its obligations under this
Agreement or any provision hereof, regardless of which party, if any, prevails
in the contest; provided, however, that Field Services shall not be responsible
for such fees and expenses to the extent incurred in connection with a claim
made by the Employee that the trier of fact in any such contest finds to be
frivolous.
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17. RELEASE OF CLAIMS. In consideration of the obligations of Field
Services under this Agreement, the Employee agrees to execute and honor the
release of claims in the form attached as Exhibit A hereto upon a termination of
employment that is covered by Section 2(c) hereof. The obligations of Field
Services under Section 2(c) hereof shall be contingent upon the execution,
nonrevocation and continued compliance by the Employee with this release of
claims.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
July 19, 2004.
DUKE ENERGY FIELD SERVICES, LP
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxxx,
President and Chief Operating Officer
Duke Energy Corporation
EMPLOYEE
/s/ X. X. Xxxxxx III
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