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EXHIBIT 10.1
SECOND AMENDMENT
TO
EMPLOYMENT AGREEMENT
This Second Amendment to Employment Agreement (this "Amendment"), dated
effective as of March 1, 2001, is entered into by and between Duke Energy Field
Services, LP, a Delaware limited partnership ("DEFS") and Xxxxxxx X. Xxxxxxxx
("Executive").
WHEREAS, Executive and DEFS (formerly known as Duke Energy Field Services
Assets, LLC) entered into that certain Employment Agreement dated April 1, 2000
(the "Employment Agreement") (capitalized terms used but not defined herein
shall have the meaning given thereto in the Employment Agreement), and
subsequently entered into the First Amendment to Employment Agreement dated June
28, 2000; and
WHEREAS, at Executive's request, Executive's employment with DEFS will
terminate effective March 31, 2001; and
WHEREAS, as a result of such termination of employment, Executive and DEFS
desire to further amend the Employment Agreement, which amendment is intended to
describe the terms of all final payments and other obligations between Executive
and DEFS and represents the entire agreement of the parties with respect to the
Employment Agreement;
NOW, THEREFORE, for and in consideration of the mutual benefits to be
derived from the Employment Agreement as amended by this Amendment and the First
Amendment, and intending to be legally bound hereby, the parties hereto hereby
agree as follows:
1. Amendment to Employment Agreement. The Employment Agreement is hereby
amended as follows:
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(a) Section 3 of the Employment Agreement is amended by inserting, "one (1)
year" to replace the words "two (2) years" in the first sentence thereof.
(b) Section 5 of the Employment Agreement is amended by inserting the
sentence, "No subsequent award will be granted following the annual bonus award
which was paid February 9, 2001. ", after the third sentence thereof.
(c) Section 6 of the Employment Agreement is amended and restated to read
as follows:
6. Long Term Incentive. As of May 26, 2000, Executive shall be granted
a right to receive a cash award of $844,800.00 (the "Cash Award"). The Cash
Award, plus accrued but unpaid interest, shall be payable on April 1, 2001
(the "Vesting Date"), and shall be subject to applicable state and federal
income tax and social security tax withholding requirements. The Cash Award
shall earn simple interest from the grant date to the date of payment at a
rate of six percent (6%) per annum, which the parties agree shall be
$43,188.95. If Executive violates any restrictive covenants as provided in
Sections 9 or 10 of this Agreement, during the term of employment specified
in Section 3 of the Agreement, or within a six-month period following
termination of employment for any reason, Executive will repay to DEFS the
Cash Award granted under this Section 6, including all interest paid, in
its entirety.
(d) Section 7 of the Employment Agreement is amended and restated to read
as follows:
7. Retention Award. As of May 26, 2000, Executive shall be granted a
right to receive a retention cash award of $960,000.00 (the "Retention
Award"). The Retention Award and interest earned thereon
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shall be payable on April 1, 2001, and shall be subject to applicable state
and federal income tax and social security tax withholding requirements.
The Retention Award shall earn simple interest from the grant date to the
payment date at a rate of six percent (6%) per annum, which the parties
agree shall be $49,078.36. If Executive violates any restrictive covenants
as provided in Sections 9 or 10 of this Agreement, during the term of
employment specified in Section 3 of this Agreement or within a six-month
period following termination of employment for any reason, Executive will
repay to DEFS the Retention Award granted under this Section 7, including
all interest paid, in its entirety.
(e) Section 11 of the Employment Agreement is amended and restated to read as
follows:
11. Consultation Services. In exchange for the consideration to be paid
pursuant to this Amendment, and to contribute to the continued
effectiveness of DEFS, including the effectiveness of its discussions with
potential investors in DEFS, Executive shall provide up to 10 days of
consultation services during the period of six (6) months following the
termination of Executive's employment.
(f) Section 12 of the Employment Agreement is amended and restated to read as
follows:
12. Complete Agreement. The parties agree that the Retention Award and Cash
Award shall constitute all payments due Executive upon termination of his
employment, and Executive shall not be entitled to any further payments,
benefits or compensation from DEFS, including payments related to accrued
annual bonus awards, vacation, sick pay, stock awards, health or welfare
benefits or any other form of compensation.
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(g) Section 13 of the Employment Agreement is hereby deleted and Executive
and DEFS agree that no obligations or payments which are described in
Sections 13 shall be owing or due.
4. Ratification. Except as amended hereby and by the First Amendment, the
Employment Agreement shall remain in full force and effect as previously
executed by the parties, and the parties hereby ratify the Employment Agreement
as amended hereby.
5. Waiver of Breach. The waiver by any party to a breach of any provision
in this Amendment cannot operate or be construed as a waiver of any subsequent
breach by a party.
6. Severability. The invalidity or unenforceability of any particular
provision of this Amendment shall not affect the other provisions hereof, and
this Amendment shall be construed in all respects as if the invalid or
unenforceable provision were omitted.
7. Entire Agreement. Except as otherwise provided herein, this Amendment
and the Employment Agreement contain the entire understanding of the parties as
to the employment of Executive, superseding all prior understandings and
agreements, and no modifications or amendments of the terms and conditions set
forth or referred to herein shall be effective unless in writing and signed by
the parties or their respective duly authorized agents.
8. Governing Law. This Amendment shall be interpreted, construed and
governed according to the laws of the State of Colorado, without reference to
conflicts of law principles thereof.
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9. Dispute Resolution. In the event any dispute arises concerning the
provisions of this Amendment, the parties agree that such dispute shall be
resolved in accordance with the Employment Dispute Resolution procedures of the
American Arbitration Association and that any arbitration pursuant to such
procedures shall be held in Denver, Colorado.
10. Consent to Jurisdiction. Employee hereby consents to the nonexclusive
jurisdiction of any state court within Denver, Colorado or any federal court
located within the same city for any proceeding instituted hereunder or arising
out of or in connection with this Amendment.
11. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their permitted successors, assigns,
legal representatives and heirs, but neither this Amendment nor any rights
hereunder shall be assignable by Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the 15th day of March, 2001.
DUKE ENERGY FIELD SERVICES, LP
By: /s/ Xxx X. Xxxx
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Xxx X. Xxxx
Chairman of the Board, President
and Chief Executive Officer
EXECUTIVE
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
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