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EXHIBIT 10.17
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), including the attached Exhibit
"A," is entered into between AZURIX CORP., a Delaware corporation ("Employer")
and for the purposes of this Agreement, an affiliate of ENRON CORP., ("Enron")
an Oregon corporation, having offices at 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxx 00000,
and J. XXXXXXX XXXXXXXX, an individual currently residing at 00 Xxxxxxxxx Xxxx,
Xxx Xxxxxxxxx, Xxxxx 00000 ("Employee"), to be effective as of March 23, 2000
(the "Effective Date").
WITNESSETH:
WHEREAS, Employer is desirous of employing Employee pursuant to the
terms and conditions and for the consideration set forth in this Agreement, and
Employee is desirous of entering the employ of Employer pursuant to such terms
and conditions and for such consideration.
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants, and obligations contained herein, Employer and Employee agree as
follows:
ARTICLE 1: EMPLOYMENT AND DUTIES:
1.1 Employer agrees to employ Employee, and Employee agrees to be
employed by Employer, beginning as of the Effective Date and continuing until
the date set forth on Exhibit "A" (the "Term"), subject to the terms and
conditions of this Agreement.
1.2 Employee initially shall be employed in the position set forth on
Exhibit A. Employer may subsequently assign Employee to a different position or
modify Employee's duties and responsibilities, provided that no such assignment
or modification shall result in a substantial reduction of Employee's duties and
responsibilities. Moreover, Employer may assign this Agreement and Employee's
employment to Enron or any affiliates of Enron, provided that Employee shall not
be required to relocate from Houston, Texas. 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.
1.3 Employee shall, during the period of Employee's employment by
Employer, devote Employee's full business time, energy, and best efforts to the
business and affairs of Employer. Employee may not engage, directly or
indirectly, in any other business, investment, or activity that interferes with
Employee's performance of Employee's duties hereunder, is contrary to the
interests of Employer or Enron, or requires any significant portion of
Employee's business time.
1.4 In connection with Employee's employment by Employer, Employer
shall endeavor to provide Employee access to such confidential information
pertaining to the business and services of Employer as is appropriate for
Employee's employment responsibilities. Employer also shall
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endeavor to provide to Employee the opportunity to develop business
relationships with those of Employer's clients and potential clients that are
appropriate for Employee's employment responsibilities.
1.5 Employee acknowledges and agrees that, at all times during the
employment relationship Employee owes fiduciary duties to Employer, including
but not limited to the fiduciary duties of the highest loyalty, fidelity and
allegiance to act at all times in the best interests of the Employer, to make
full disclosure to Employer of all information that pertains to Employer's
business and interests, to do no act which would knowingly injure Employer's
business, its interests, or its reputation, and to refrain from using for
Employee's own benefit or for the benefit of others any information or
opportunities pertaining to Employer's business or interests that are entrusted
to Employee or that he learned while employed by Employer. Employee acknowledges
and agrees that upon termination of the employment relationship, Employee shall
continue to refrain from using for his own benefit or the benefit of others any
information or opportunities pertaining to Employer's business or interests that
were entrusted to Employee during the employment relationship or that he learned
while employed by Employer. Employee agrees that while employed by Employer and
thereafter he shall not knowingly take any action which interferes with the
internal relationships between Employer and its employees or representatives or
interferes with the external relationships between Employer and third parties.
1.6 It is agreed that any direct or indirect interest in, connection
with, or benefit from any outside activities, particularly commercial
activities, which interest might in any way adversely affect Employer or any of
its affiliates, involves a possible conflict of interest. In keeping with
Employee's fiduciary duties to Employer, Employee agrees that during the
employment relationship Employee shall not knowingly become involved in a
conflict of interest with Employer or its affiliates, or upon discovery thereof,
allow such a conflict to continue. Moreover, Employee agrees that Employee shall
disclose to Employer's Chairman any facts which might involve such a conflict of
interest that has not been approved by Employer's Chairman. Employer and
Employee recognize that it is impossible to provide an exhaustive list of
actions or interests which constitute a "conflict of interest." Moreover,
Employer and Employee recognize there are many borderline situations. In some
instances, full disclosure of facts by the Employee to Employer's Chairman may
be all that is necessary to enable Employer or its affiliates to protect its
interests. In others, if no improper motivation appears to exist and the
interests of Employer or its affiliates have not suffered, prompt elimination of
the outside interest will suffice. In still others, it may be necessary for
Employer to terminate the employment relationship. Employer and Employee agree
that Employer's determination as to whether a conflict of interest exists shall
be conclusive. Employer reserves the right to take such action as, in its
judgment, will end the conflict.
1.7 Employee understands and acknowledges that the terms and conditions
of this Agreement constitute confidential information. Employee shall keep
confidential the terms of this Agreement and shall not disclose this
confidential information to anyone other than Employee's attorneys, tax
advisors, or as required by law. Employee acknowledges and understands that
disclosure of the terms of this Agreement constitutes a material breach of this
Agreement and could subject Employee to disciplinary action, including without
limitation, termination of employment.
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ARTICLE 2: COMPENSATION AND BENEFITS:
2.1 Employee's monthly base salary during the Term shall be not less
than the amount set forth under the heading "Monthly Base Salary" on Exhibit A,
subject to increase at the sole discretion of the Employer, which shall be paid
in semimonthly installments in accordance with Employer's standard payroll
practice. Any calculation to be made under this Agreement with respect to
Employee's Monthly Base Salary shall be made using the then current Monthly Base
Salary in effect at the time of the event for which such calculation is made.
2.2 While employed by Employer (both during the Term and thereafter),
Employee shall be allowed to participate, on the same basis generally as other
executives of Employer, in all general employee benefit plans and programs,
including improvements or modifications of the same, which on the effective date
or thereafter are made available by Employer to all or substantially all of
Employer's employees. Such benefits, plans, and programs may include, without
limitation, medical, health, and dental care, life insurance, disability
protection, and pension plans. Nothing in this Agreement is to be construed or
interpreted to provide greater rights, participation, coverage, or benefits
under such benefit plans or programs than provided to similarly situated
employees pursuant to the terms and conditions of such benefit plans and
programs.
2.3 Employer shall not by reason of this Article 2 be obligated to
institute, maintain, or refrain from changing, amending, or discontinuing, any
such incentive compensation or employee benefit program or plan, so long as such
actions are similarly applicable to covered executives generally. Moreover,
unless specifically provided for in a written plan document adopted by the Board
of Directors of either Employer or Enron, none of the benefits or arrangements
described in this Article 2 shall be secured or funded in any way, and each
shall instead constitute an unfunded and unsecured promise to pay money in the
future exclusively from the general assets of Employer.
2.4 Employer may withhold from any compensation, benefits, or amounts
payable under this Agreement all federal, state, city, or other taxes as may be
required pursuant to any law or governmental regulation or ruling.
ARTICLE 3: TERMINATION PRIOR TO EXPIRATION OF TERM AND EFFECTS OF SUCH
TERMINATION:
3.1. Notwithstanding any other provisions of this Agreement, Employer
shall have the right to terminate Employee's employment under this Agreement at
any time prior to the expiration of the Term for any of the following reasons:
(i) For "cause" upon the determination by the Employer's Board of
Directors or management committee (or, if there is no
management committee, the highest applicable level of
Employer's management) that "cause" exists for the termination
of the employment relationship. As used in this Section
3.1(i), the term "cause" shall mean [a] Employee's gross
negligence or willful misconduct in the performance of the
duties and services required of Employee pursuant to this
Agreement; [b] Employee has been convicted of a felony; [c]
Employee has willfully refused without proper legal reason to
perform the duties and responsibilities required of
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Employee under this Agreement which remains uncorrected for
thirty (30) days following written notice to Employee by
Employer of such breach; [d] Employee's involvement in a
conflict of interest as referenced in Section 1.6 for which
Employer makes a determination to terminate the employment of
Employee which remains uncorrected for thirty (30) days
following written notice to Employee by Employer of such
breach; [e] Employee has willfully engaged in conduct that
Employee knows or should know is materially injurious to
Employer, Enron, or any of their respective subsidiaries; [f]
Employee's material breach of any material provision of this
Agreement or corporate code or policy which remains
uncorrected for thirty (30) days following written notice to
Employee by Employer of such breach; or [g] Employee violates
the Foreign Corrupt Practices Act or other applicable United
States law as proscribed by Section 5.1. It is expressly
acknowledged and agreed that the decision as to whether
"cause" exists for termination of the employment relationship
by Employer is delegated to the Employer's management
committee (or, if there is no management committee, the
highest applicable level of Employer's management) for
determination. If Employee disagrees with the decision reached
by Employer's management committee (or, if there is no
management committee, the highest applicable level of
Employer's management), the dispute will be limited to whether
Employer's management committee (or, if there is no management
committee, the highest applicable level of Employer's
management) reached its decision in good faith;
(ii) for any other reason whatsoever, with or without cause, in the
sole discretion of the management committee (or, if there is
no management committee, the highest applicable level of
management) of Employer;
(iii) upon Employee's death; or
(iv) upon Employee's becoming disabled so as to entitle Employee to
benefits under Enron's long-term disability plan or, if
Employee is not eligible to participate in such plan, then
Employee is permanently and totally unable to perform
Employee's duties for Employer as a result of any medically
determinable physical or mental impairment as supported by a
written medical opinion to the foregoing effect by a physician
selected by Employer.
The termination of Employee's employment by Employer prior to the expiration of
the Term shall constitute a "Termination for Cause" if made pursuant to Section
3.1(i); the effect of such termination is specified in Section 3.4. The
termination of Employee's employment by Employer prior to the expiration of the
Term shall constitute an "Involuntary Termination" if made pursuant to Section
3.1(ii); the effect of such termination is specified in Section 3.5. The effect
of the employment relationship being terminated pursuant to Section 3.1(iii) as
a result of Employee's death is specified in Section 3.6. The effect of the
employment relationship being terminated pursuant to Section 3.1(iv) as a result
of the Employee becoming incapacitated is specified in Section 3.7.
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3.2 Notwithstanding any other provisions of this Agreement except
Section 8.6, 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) a 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;
(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: (i) 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), (ii) the Employer sells all or substantially
all its assets to another person or entity, (iii) the Employer
is dissolved, or (iv) 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; or
(iii) 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
Sections 3.2(i) and 3.2(ii); 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(iii); the effect of such termination is specified in
Section 3.3.
3.3 Upon a "Voluntary Termination" of the employment relationship by
Employee prior to expiration of the Term, all future compensation to which
Employee is entitled and all future benefits for which Employee is eligible
shall cease and terminate as of the date of termination. Employee shall be
entitled to pro rata salary through the date of such termination, but Employee
shall not be entitled to any individual bonuses or individual incentive
compensation not yet paid at the date of such termination.
3.4 If Employee's employment hereunder shall be terminated by Employer
for Cause prior to expiration of the Term, all future compensation to which
Employee is entitled and all future benefits for which Employee is eligible
shall cease and terminate as of the date of termination. Employee shall be
entitled to pro rata salary through the date of such termination, but Employee
shall not be entitled to any individual bonuses or individual incentive
compensation not yet paid at the date of such termination.
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 one year's annual base pay plus full
100% target bonus payable in cash on a monthly basis. Employee shall not be
under any duty or obligation to seek or accept other employment following
Involuntary Termination and the amounts
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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.
3.6 Upon termination of the employment relationship as a result of
Employee's death, Employee's heirs, administrators, or legatees shall be
entitled to Employee's pro rata salary through the date of such termination, but
Employee's heirs, administrators, or legatees shall not be entitled to any
individual bonuses or individual incentive compensation not yet paid to Employee
at the date of such termination.
3.7 Upon termination of the employment relationship as a result of
Employee's incapacity, Employee shall be entitled to his or her pro rata salary
through the date of such termination, but Employee shall not be entitled to any
individual bonuses or individual incentive compensation not yet paid to Employee
at the date of such termination.
3.8 In all cases, the compensation and benefits payable to Employee
under this Agreement upon termination of the employment relationship shall be
offset against any amounts to which Employee may otherwise be entitled under any
and all severance plans, and policies of Employer, Enron, or its affiliates.
3.9 Termination of the employment relationship does not terminate those
obligations imposed by this Agreement which are continuing obligations,
including, without limitation, Employee's obligations under Articles 6 and 7.
ARTICLE 4: CONTINUATION OF EMPLOYMENT BEYOND TERM; TERMINATION AND EFFECTS OF
TERMINATION:
4.1 Should Employee remain employed by Employer beyond the expiration
of the Term specified on Exhibit "A," such employment shall convert to a
month-to-month relationship terminable at any time by either Employer or
Employee for any reason whatsoever, with or without cause. Upon such termination
of the employment relationship by either Employer or Employee for any reason
whatsoever, all future compensation to which Employee is entitled and all future
benefits for which Employee is eligible shall cease and terminate. Employee
shall be entitled to pro rata salary through the date of such termination, but
Employee shall not be entitled to any individual bonuses or individual incentive
compensation not yet paid at the date of such termination.
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ARTICLE 5: UNITED STATES FOREIGN CORRUPT PRACTICES ACT AND OTHER LAWS:
5.1. Employee shall at all times comply with United States laws
applicable to Employee's actions on behalf of Employer, including specifically,
without limitation, the United States Foreign Corrupt Practices Act, generally
codified in 15 USC 78 (FCPA), as the FCPA may hereafter be amended, and/or its
successor statutes. If Employee pleads guilty to or nolo contendere or admits
civil or criminal liability under the FCPA or other applicable United States
law, or if a court finds that Employee has personal civil or criminal liability
under the FCPA or other applicable United States law, or if a court finds that
Employee committed an action resulting in any Enron entity having civil or
criminal liability or responsibility under the FCPA or other applicable United
States law with knowledge of the activities giving rise to such liability or
knowledge of facts from which Employee should have reasonably inferred the
activities giving rise to liability had occurred or were likely to occur, such
action or finding shall constitute "cause" for termination under this Agreement
unless Employer's management committee (or, if there is no management committee,
the highest applicable level of Employer's management) determines that the
actions found to be in violation of the FCPA or other applicable United States
law were taken in good faith and in compliance with all applicable policies of
Employer and Enron.
ARTICLE 6: OWNERSHIP AND PROTECTION OF INFORMATION; COPYRIGHTS:
6.1 All information, ideas, concepts, improvements, discoveries, and
inventions, whether patentable or not, which are conceived, made, developed or
acquired by Employee, individually or in conjunction with others, during
Employee's employment by Employer (whether during business hours or otherwise
and whether on Employer's premises or otherwise) which relate to Employer's
business, products or services (including, without limitation, all such
information relating to corporate opportunities, research, financial and sales
data, pricing and trading terms, evaluations, opinions, interpretations,
acquisition prospects, the identity of customers or their requirements, the
identity of key contacts within the customer's organizations or within the
organization of acquisition prospects, or marketing and merchandising
techniques, prospective names, and marks) shall be disclosed to Employer and are
and shall be the sole and exclusive property of Employer. Moreover, all
drawings, memoranda, notes, records, files, correspondence, drawings, manuals,
models, specifications, computer programs, maps and all other writings or
materials of any type embodying any of such information, ideas, concepts,
improvements, discoveries, and inventions are and shall be the sole and
exclusive property of Employer.
6.2 Employee acknowledges that the business of Employer, Enron, and
their affiliates is highly competitive and that their strategies, methods,
books, records, and documents, their technical information concerning their
products, equipment, services, and processes, procurement procedures and pricing
techniques, the names of and other information (such as credit and financial
data) concerning their customers and business affiliates, all comprise
confidential business information and trade secrets which are valuable, special,
and unique assets which Employer, Enron, or their affiliates use in their
business to obtain a competitive advantage over their competitors. Employee
further acknowledges that protection of such confidential business information
and trade secrets against unauthorized disclosure and use is of critical
importance to Employer, Enron, and their
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affiliates in maintaining their competitive position. Employee hereby agrees
that Employee will not, at any time during or after his or her employment by
Employer, make any unauthorized disclosure of any confidential business
information or trade secrets of Employer, Enron, or their affiliates, or make
any use thereof, except in the carrying out of his or her employment
responsibilities hereunder. Enron and its affiliates shall be third party
beneficiaries of Employee's obligations under this Section. As a result of
Employee's employment by Employer, Employee may also from time to time have
access to, or knowledge of, confidential business information or trade secrets
of third parties, such as customers, suppliers, partners, joint venturers, and
the like, of Employer, Enron, and their affiliates. Employee also agrees to
preserve and protect the confidentiality of such third party confidential
information and trade secrets to the same extent, and on the same basis, as
Employer's confidential business information and trade secrets. Employee
acknowledges that money damages would not be sufficient remedy for any breach of
this Article 6 by Employee, and Employer shall be entitled to enforce the
provisions of this Article 6 by terminating any payments then owing to Employee
under this Agreement and/or to specific performance and injunctive relief as
remedies for such breach or any threatened breach. Such remedies shall not be
deemed the exclusive remedies for a breach of this Article 6, but shall be in
addition to all remedies available at law or in equity to Employer, including
the recovery of damages from Employee and his or her agents involved in such
breach.
6.3 All written materials, records, and other documents made by, or
coming into the possession of, Employee during the period of Employee's
employment by Employer which contain or disclose confidential business
information or trade secrets of Employer, Enron, or their affiliates shall be
and remain the property of Employer, Enron, or their affiliates, as the case may
be. Upon termination of Employee's employment by Employer, for any reason,
Employee promptly shall deliver the same, and all copies thereof, to Employer.
6.4 If, during Employee's employment by Employer, Employee creates any
original work of authorship fixed in any tangible medium of expression which is
the subject matter of copyright (such as videotapes, written presentations on
acquisitions, computer programs, drawings, maps, architectural renditions,
models, manuals, brochures, or the like) relating to Employer's business,
products, or services, whether such work is created solely by Employee or
jointly with others (whether during business hours or otherwise and whether on
Employer's premises or otherwise), Employee shall disclose such work to
Employer. Employer shall be deemed the author of such work if the work is
prepared by Employee in the scope of his or her employment; or, if the work is
not prepared by Employee within the scope of his or her employment but is
specially ordered by Employer as a contribution to a collective work, as a part
of a motion picture or other audiovisual work, as a translation, as a
supplementary work, as a compilation, or as an instructional text, then the work
shall be considered to be work made for hire and Employer shall be the author of
the work. If such work is neither prepared by the Employee within the scope of
his or her employment nor a work specially ordered and is deemed to be a work
made for hire, then Employee hereby agrees to assign, and by these presents does
assign, to Employer all of Employee's worldwide right, title, and interest in
and to such work and all rights of copyright therein.
6.5 Both during the period of Employee's employment by Employer and
thereafter, Employee shall assist Employer and its nominee, at any time, in the
protection of Employer's worldwide right, title, and interest in and to
information, ideas, concepts, improvements, discoveries,
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and inventions, and its copyrighted works, including without limitation, the
execution of all formal assignment documents requested by Employer or its
nominee and the execution of all lawful oaths and applications for applications
for patents and registration of copyright in the United States and foreign
countries. Employer will reimburse Employee for any reasonable out-of-pocket
costs Employee incurs in providing this assistance at Employer's request.
ARTICLE 7: POST-EMPLOYMENT NON-COMPETITION OBLIGATIONS:
7.1 As part of the consideration for the compensation and benefits to
be paid to Employee hereunder, in keeping with Employee's duties as a fiduciary
and in order to protect Employer's interests in the confidential information of
Employer and the business relationships developed by Employee with the clients
and potential clients of Employer, and as an additional incentive for Employer
to enter into this Agreement, Employer and Employee agree to the non-competition
provisions of this Article 7. Employee agrees that during the period of
Employee's non-competition obligations hereunder, Employee will not, directly or
indirectly for Employee or for others, in any geographic area or market where
Employer or any of its affiliated companies related to the water business, are
conducting any business as of the date of termination of the employment
relationship or have during the previous twelve months conducted any business:
(i) engage in any business competitive with the water business
conducted by Employer during the term of the employment relationship;
(ii) render advice or services to, or otherwise assist, any other
person, association, or entity who is engaged, directly or indirectly, in any
business competitive with the water business conducted by Employer during the
term of the employment relationship;
(iii) 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 described at Sections 7.1(i) and (ii) shall
extend until one year after termination of the employment relationship. The
non-competition obligations described at Section 7.1(iii) shall extend
throughout the Term of this Agreement.
7.2 Employee understands that the foregoing restrictions may limit his
or her ability to engage in certain businesses anywhere in the world during the
period provided for above, but acknowledges that Employee will receive
sufficiently high remuneration and other benefits (e.g., the right to receive
compensation under Section 3.5 for the remainder of the Term upon Involuntary
Termination) under this Agreement to justify such restriction. Employee
acknowledges that money damages would not be sufficient remedy for any breach of
this Article 7 by Employee, and Employer shall be entitled to enforce the
provisions of this Article 7 by terminating any payments then owing to Employee
under this Agreement and/or to specific performance and injunctive relief as
remedies for such breach or any threatened breach. Such remedies shall not be
deemed the exclusive remedies for a breach of this Article 7, but shall be in
addition to all remedies available at law or in equity to Employer, including,
without limitation, the recovery of damages from Employee and his or her agents
involved in such breach.
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7.3 It is expressly understood and agreed that Employer and Employee
consider the restrictions contained in this Article 7 to be reasonable and
necessary to protect the proprietary information of Employer. Nevertheless, if
any of the aforesaid restrictions are found by a court having jurisdiction to be
unreasonable, or overly broad as to geographic area or time, or otherwise
unenforceable, the parties intend for the restrictions therein set forth to be
modified by such courts so as to be reasonable and enforceable and, as so
modified by the court, to be fully enforced.
ARTICLE 8: MISCELLANEOUS:
8.1 For purposes of this Agreement the terms "affiliates" or
"affiliated" means an entity who directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with
Enron or Employer.
8.2 Employee shall refrain, both during the employment relationship and
after the employment relationship terminates, from publishing any oral or
written statements about Employer, Enron, any of their respective subsidiaries
or affiliates, or any of such entities' officers, employees, agents or
representatives that are slanderous, libelous, or defamatory; or that disclose
private or confidential information about Employer, Enron, any of their
respective subsidiaries or affiliates, or any of such entities' business
affairs, officers, employees, agents, or representatives; or that constitute an
intrusion into the seclusion or private lives of Employer, Enron, any of their
respective subsidiaries or affiliates, or such entities' officers, employees,
agents, or representatives; or that give rise to unreasonable publicity about
the private lives of Employer, Enron, any of their respective subsidiaries or
affiliates, or any of such entities' officers, employees, agents, or
representatives; or that place Employer, Enron, any of their respective
subsidiaries or affiliates, or any of such entities' or its officers, employees,
agents, or representatives in a false light before the public; or that
constitute a misappropriation of the name or likeness of Employer, Enron, any of
their respective subsidiaries or affiliates, or any of such entities' or its
officers, employees, agents, or representatives. A violation or threatened
violation of this prohibition may be enjoined by the courts. The rights afforded
the Enron entities and affiliates under this provision are in addition to any
and all rights and remedies otherwise afforded by law. Any public statement
issued by the Employer shall not be slanderous, libelous, or defamatory toward
Employee.
8.3 For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to Employer:
Azurix Corp.
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Corporate Secretary
If to Employee, to the address shown on the first page hereof.
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Either Employer or Employee may furnish a change of address to the other in
writing in accordance herewith, except that notices of changes of address shall
be effective only upon receipt.
8.4 This Agreement shall be governed in all respects by the laws of the
State of Texas, excluding any conflict-of-law rule or principle that might refer
the construction of the Agreement to the laws of another State or country.
8.5 No failure by either party hereto at any time to give notice of any
breach by the other party of, or to require compliance with, any condition or
provision of this Agreement shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
8.6 If a dispute arises out of or related to this Agreement, other than
a dispute regarding Employee's obligations under Article 6, or Article 7, and if
the dispute cannot be settled through direct discussions, then Employer and
Employee agree to first endeavor to settle the dispute in an amicable manner by
mediation, before having recourse to any other proceeding or forum.
8.7 Each of Employer and Employee is a citizen of the State of Texas.
Employer's principal place of business is in Houston, Xxxxxx County, Texas.
Employee resides in Xxxxxx County, Texas. This Agreement was negotiated and
signed in Houston, Texas. This Agreement shall be performed in Houston, Texas.
Any litigation that may be brought by either Employer or Employee involving the
enforcement of this Agreement or the rights, duties, or obligations of this
Agreement, shall be brought exclusively in the State or federal courts sitting
in Houston, Xxxxxx County, Texas. In the event that service of process cannot be
effected upon a party, each party hereby irrevocably appoints the Secretary of
State for the State of Texas as its or his agent for service of process to
receive the summons and other pleadings in connection with any such litigation.
8.8 It is a desire and intent of the parties that the terms,
provisions, covenants, and remedies contained in this Agreement shall be
enforceable to the fullest extent permitted by law. If any such term, provision,
covenant, or remedy of this Agreement or the application thereof to any person,
association, or entity or circumstances shall, to any extent, be construed to be
invalid or unenforceable in whole or in part, then such term, provision,
covenant, or remedy shall be construed in a manner so as to permit its
enforceability under the applicable law to the fullest extent permitted by law.
In any case, the remaining provisions of this Agreement or the application
thereof to any person, association, or entity or circumstances other than those
to which they have been held invalid or unenforceable, shall remain in full
force and effect.
8.9 This Agreement shall be binding upon and inure to the benefit of
Employer and any other person, association, or entity which may hereafter
acquire or succeed to all or substantially all of the business or assets of
Employer by any means whether direct or indirect, by purchase, merger,
consolidation, or otherwise. Employee's rights and obligations under Agreement
hereof are personal and such rights, benefits, and obligations of Employee shall
not be voluntarily or involuntarily assigned, alienated, or transferred, whether
by operation of law or otherwise, without the prior written consent of Employer.
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8.10 There exist other agreements between Employer and Employee
relating to the employment relationship between them with respect to matters not
addressed in this Agreement, e.g., the agreement with respect to company
policies contained in Employer's Conduct of Business Affairs booklet and
agreements with respect to benefit plans. This Agreement replaces and merges
previous agreements and discussions pertaining to the following subject matters
covered herein: the nature of Employee's employment relationship with Employer
and the term and termination of such relationship. This Agreement constitutes
the entire agreement of the parties with regard to such subject matters, and
contains all of the covenants, promises, representations, warranties, and
agreements between the parties with respect such subject matters. Each party to
this Agreement acknowledges that no representation, inducement, promise, or
agreement, oral or written, has been made by either party with respect to such
subject matters, which is not embodied herein, and that no agreement, statement,
or promise relating to the employment of Employee by Employer that is not
contained in this Agreement shall be valid or binding. Any modification of this
Agreement will be effective only if it is in writing and signed by each party
whose rights hereunder are affected thereby, provided that any such modification
must be authorized or approved by the Board of Directors of Employer.
IN WITNESS WHEREOF, Employer and Employee have duly executed this
Agreement in multiple originals to be effective on the date first stated above.
AZURIX CORP.
By: /s/ XXXXXX X. XXXXXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Director Human Resources
& Admin.
This 26th day of April, 2000
J. XXXXXXX XXXXXXXX
/s/ J. XXXXXXX XXXXXXXX
---------------------------------------------
This 26th day of April, 2000
July 11, 2000
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EXHIBIT "A" TO
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN AZURIX CORP. AND J. XXXXXXX XXXXXXXX
Employee Name: J. Xxxxxxx Xxxxxxxx
Term: March 23, 2000 through March 22, 2003
Position: Chief Financial Officer
Location: Houston, Texas
Monthly Base Salary: Twenty-Five Thousand Dollars ($25,000.00) per month.
Bonus: Employee shall be eligible to participate in the
Enron 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 and may be paid in any combination of cash,
stock options 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: Subject to and effective upon approval by the
Compensation Committee of the Board of Directors of
Azurix Corp. after the Agreement has been executed
and become effective, Employee shall receive 200,000
stock options. The options to vest 100% six years
from date of grant. Vesting will be accelerated
33 1/3% per year based on Azurix meeting or exceeding
annual Board-approved pre-established financial
performance measures in any year prior to the
six-year vesting date. For the year 2000, the
Board-approved pre-established financial performance
measure is $40mm of Net Income. If an annual
financial performance measure is not met, the
employee may
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receive that 33 1/3% unvested amount prior to the
six-year vesting date if in a future year the
cumulative Board-approved annual financial
performance measures have been met or exceeded.
AZURIX CORP.
By: /s/ XXXXXX X. XXXXXXXXX
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Director Human Resources
& Admin.
This 26th day of April, 2000
J. XXXXXXX XXXXXXXX
/s/ J. XXXXXXX XXXXXXXX
-----------------------
This 26th day of April, 2000
July 11, 2000
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FIRST AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement, entered into on this 10th of October, 2000 and made
effective as of September 19, 2000, by and between AZURIX CORP., a Delaware
corporation ("Employer") having its headquarters at 000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxx 00000, and J. XXXXXXX XXXXXXXX ("Employee"), an individual residing at 00
Xxxxxxxxx Xxxx, Xxx Xxxxxxxxx, Xxxxx 00000, is an amendment to that certain
Executive Employment Agreement between the Employer and Employee entered into
the 23rd day of March, 2000, and made effective as of March 23, 2000 (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 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 under Section 3.1(ii) or
Section 3.2(i), 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 one year's annual base pay plus his full
100% target bonus payable in cash on a monthly basis
for twelve months. Upon an Involuntary Termination of
the employment relationship by Employee prior to the
expiration of the Term under Section 3.2(ii),
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
two years annual base pay plus two times his full
100% target bonus payable in cash on a monthly basis
for twenty-four months. 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
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and attorneys fees) in connection with such suit,
claim, demand or cause of action."
This Amendment is a First 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/ XXXXXX X. XXXXXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Director Human Resources &
Administration
This 10th day of October, 2000
J. XXXXXXX XXXXXXXX
/S/ J. XXXXXXX XXXXXXXX
--------------------------------------------
This 10th day of October, 2000
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