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EXHIBIT 10.66(c)
SECOND AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement, entered into on this 15th of March, 1999, and made
effective as of February 1, 1999, by and between ENRON OIL & GAS COMPANY
("Company" or "Employer") and XXXXX XXXXXXXX, XX. ("Employee") is an amendment
to that certain Employment Agreement made effective as of September 1, 1998 (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 3, Section 3.5 of the Employment Agreement is hereby
deleted in its entirety and the following is substituted
therefor:
"3.5 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 a) 12 months of the then current Monthly Base
Salary or b) 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. Notwithstanding any other provisions of this
Agreement, a termination of the employment relationship by
either the Employer or Employee which meets the definition of
Involuntary Termination under the Company's Change of Control
Severance Plan shall constitute an Involuntary Termination
under this Agreement. In the event of such Involuntary
Termination which entitles Employee to severance benefits
under said Plan, but for the following severance payment by
the Company to the Employee, Employee shall receive from the
Company a severance benefit under this Agreement equal to the
sum of Employee's then current Monthly Base Salary times 12
times 2.99 plus two times the Employee's annual bonus target
award under the Company's annual bonus program for the year in
which the Change of Control Date occurs. Employee's severance
benefit payable under said Plan, if any, shall be determined
according to the provisions thereof. Further, in the event of
Involuntary Termination, if Employee's eligibility for COBRA
coverage expires, Employer shall provide to Employee the
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cost difference between COBRA coverage and a personal
medical/dental policy paid by Employee for the six (6) months
following the COBRA coverage or Employee's gainful employment,
whichever comes first. 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."
2. The last paragraph of Article 7, Section 7.1 is hereby deleted
in its entirety and the following is substituted therefor:
"These non-competition obligations shall extend until the
earlier of (a) expiration of the Term or (b) one year after
termination of the employment relationship; provided, however,
that upon an Involuntary Termination as defined in the
Company's Change of Control Severance Plan, which entitles
Employee to severance benefits under said Plan, these
non-competition obligations shall expire immediately and have
no further force and effect. For purposes of this Section, it
is specifically understood that Employee may return to private
legal practice, and may represent companies which compete with
Employer in such private legal practice, without breaching the
provisions of this Section."
3. The following new Article 9 shall be inserted at the end of
the Employment Agreement:
"ARTICLE 9: U.S. EXCISE TAX INDEMNIFICATION
9.1 Indemnification. In the event it shall be determined
that any payment or distribution by the Company to or for the
benefit of Employee (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement, the
Company's Change of Control Severance Plan or otherwise, but
determined without regard to any additional payments required
under this Article 9) (a "Payment") would be subject to the
excise tax imposed by Section 4999 of the United States
Internal Revenue Code of 1986, as amended (the "Code"), or any
interest or penalties are incurred by Employee with respect to
such excise tax
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(such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the
"Excise Tax"), then Employee shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such
that after payment by Employee of all taxes (including any
interest or penalties imposed with respect to such taxes),
including, without limitation, any income and employment taxes
(and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, Employee
retains an amount of the Gross-Up Payment equal to the Excise
Tax imposed upon the Payments.
9.2 Determination of Amount. Subject to the provisions
of Section 9.3, all determinations required to be made under
this Article 9, including whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the
assumptions to be utilized in arriving at such determination,
shall be made by a public accounting firm chosen by the
Company (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and Employee if
requested by either the Company or Employee. All fees and
expenses of the Accounting Firm shall be borne solely by the
Company. Any determination by the Accounting Firm shall be
binding upon the Company and Employee. As a result of the
uncertainty in the application of Section 4999 of the Code at
the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will
not have been made by the Company should have been made
("Underpayment"), consistent with the calculations required to
be made hereunder. In the event that the Company exhausts its
remedies pursuant to Section 9.3 and Employee thereafter is
required to make a payment of any additional Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly
paid by the Company to or for the benefit of Employee.
9.3 Contest of Claims. If the Company elects to contest
a claim by the Internal Revenue Service that Excise Tax is due
from Employee, Employee shall cooperate fully with the Company
in order to effectively contest such claim, including, but not
limited to providing information reasonably requested by the
Company relating to such claim, accepting legal representation
with respect to such claim by an attorney reasonably selected
by the Company and permitting the Company to participate in
any proceedings relating to such claim. The Company shall bear
and pay directly all costs and expenses (including additional
interest and penalties) incurred in connection with such
contest and shall indemnify and hold Employee harmless, on an
after-tax basis, for any Excise Tax or other tax (including
interest and penalties with respect thereto) imposed as a
result of such representation and payment of costs and
expenses.
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9.4 Advances and Refunds. If the Company directs
Employee to pay a claim by the Internal Revenue Service and
xxx for a refund, the Company shall advance the amount of such
payment to Employee on an interest-free basis and shall
indemnify and hold Employee harmless, on an after-tax basis,
from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such
advance or with respect to any imputed income with respect to
such advance. If, after the receipt by Employee of an amount
advanced by the Company pursuant to this Section 9.4, Employee
becomes entitled to receive, and receives, any refund with
respect to such claim, Employee shall promptly pay to the
Company the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto). If,
after the receipt by Employee of an amount advanced by the
Company pursuant to this Section 9.4, a determination is made
that Employee is not entitled to any refund with respect to
such claim, then such advance shall not be required to be
repaid and the amount of such advance shall offset, to the
extent thereof, the amount of Gross-Up Payment required to be
paid."
This Agreement is the 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.
ENRON OIL & GAS COMPANY
By: /s/ XXXXXXXX XXXXXXX
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Name: Xxxxxxxx Xxxxxxx
Title: V.P. Human Resources & Administration
This 15th day of March, 1999
XXXXX XXXXXXXX, XX.
/s/ XXXXX XXXXXXXX, XX.
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This 15th day of March, 1999
