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Exhibit 10.64(b)
FIRST AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement, entered into on this 12th of March, 1999, and made
effective as of February 1, 1999, by and between ENRON OIL & GAS COMPANY
("Company" or "Employer") and XXXX X. XXXX ("Employee") is an amendment to that
certain Employment Agreement made effective as of November 1, 1997 (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 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 (the "Plan") shall constitute an Involuntary Termination
under this Agreement. In the event of such Involuntary
Termination which entitles Employee to severance benefits
under the 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 the Plan, if any, shall be determined
according to the provisions thereof. 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
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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 following sentence shall be inserted at the end of Article
6, Section 6.1:
"However, 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."
3. The following new Article 8 shall be inserted at the end of
the Employment Agreement:
"ARTICLE 8: U.S. EXCISE TAX INDEMNIFICATION
8.1 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 8) (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 (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.
8.2 Determination of Amount. Subject to the
provisions of Section 8.3, all determinations required to be
made under this Article 8, 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
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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 8.3 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.
8.3 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.
8.4 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 8.4, 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 8.4, 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 First Amendment to the Employment Agreement, and
the parties agree that all other terms, conditions and stipulations contained in
the
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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/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Chairman
This 11th day of March, 1999
XXXX X. XXXX
/s/ Xxxx X. Xxxx
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This 12th day of March, 1999
