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EXHIBIT 10.21
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), including the attached Exhibit
"A," is entered into between EOTT ENERGY CORP., a Delaware corporation and
indirect subsidiary of Enron Corp. ("Enron"), having offices at 0000 Xxxx Xxx
Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 ("Employer" or "Company"), and XXXXXXX
X. XXXXX, an individual currently residing at Houston, Texas ("Employee"), to
be effective as of May 16, 1998 (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 shall be employed in the position set forth on Exhibit
A.
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 materially
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 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 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 injure Employer's business,
its interests, or its reputation, and to refrain from using for Employee's own
benefit or for the benefit
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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 of the Board any facts which
might involve such a conflict of interest that has not been approved by
Employer's Chairman of the Board. 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 of the Board 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 reasonable 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.
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.
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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
employees 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. In addition, Employee shall be entitled to participate in the
incentive compensation programs and to received the benefits listed on Exhibit
A. Notwithstanding anything to the contrary herein, upon termination of
Employee's employment with Employer for any reason, Employee (or his heirs,
administrators or legatees) shall be entitled to receive benefits, bonuses and
incentive compensation accrued, earned or payable to Employee with respect to
Employee's service prior to such termination of employment according to the
provisions of such benefit and compensatory plans and programs.
Notwithstanding the preceding sentence, if Employee remains employed with
Employer for the full Term of this Agreement, Employee shall be entitled to
receive an annual incentive compensation award for calendar year 2001.
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 employees 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:
a. For "cause" upon the good faith determination by the
Employer's board of directors that "cause" exists for the termination of
the employment relationship. As used in this Section 3.1.a, the term
"cause" shall mean (i) Employee's gross negligence or willful misconduct
in the performance of the duties and services required of Employee
pursuant to this Agreement; (ii) Employee's final conviction of a
felony; (iii) Employee's involvement in a conflict of interest as
referenced in Sections 1.5-1.6 for which Employer makes a determination
to terminate the employment of Employee which remains
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uncorrected for thirty (30) days following written notice to Employee by
Employer; or (iv) Employee's material breach of any material provision
of this Agreement which remains uncorrected for thirty (30) days
following written notice to Employee by Employer of such breach. 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 board of directors of Employer for
determination as to whether a reasonable basis for cause exists;
b. for any other reason whatsoever, including termination
without cause, in the sole discretion of Employer's Chairman of the
Board;
c. upon Employee's death; or
d. upon Employee's becoming disabled so as to entitle
Employee to benefits under Employer'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.a; 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.b; the effect of such termination is specified in Section 3.5. The effect
of the employment relationship being terminated pursuant to Section 3.1.c as a
result of Employee's death is specified in Section 3.7. The effect of the
employment relationship being terminated pursuant to Section 3.1.d as a result
of the Employee becoming incapacitated is specified in Section 3.8.
3.2 Notwithstanding any other provisions of this Agreement except
Section 7.6, 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:
a. either (i) without Employee's prior consent, a
permanent change in relocation from the city in which Employee was
serving immediately prior to the time of such change to a place which is
more than one hundred fifty (150) miles away from such location measured
from old job site to new job site, (ii) a material breach by Employer of
any material provision of this Agreement, (iii) a material breach by
Enron of its obligations to EOTT Operating Limited Partnership (the
"OLP") under (a) the credit agreement between them dated as of January
3, 1996, as amended from time to time, and (b) a credit agreement
between them dated as of June 30, 1995, as amended from time to time,
and/or charge to Employer by Enron for capital which results in the OLP
not being able to generate sufficient cash flow necessary for the OLP to
meet quarterly distributions to all common unit holders of the OLP, or
(iv) failure by Enron to provide or cause another party to credit
support on substantially similar terms and provisions during the Term of
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this Agreement, which in any event remains uncorrected for 30 days
following written notice of such breach by Employee to Employer;
provided, however, to correct a breach described in the preceding clause
(iii) or a failure described in the preceding clause (iv), Employer in
its sole discretion can elect to make Employee whole from an incentive
compensation standpoint as though such breach or failure had no adverse
compensatory impact on Employee under the provisions of this Agreement;
b. a "Change of Control" of Employer followed by either an
Involuntary Termination of Employee by Employer or a material reduction
in Employee's duties and responsibilities under this Agreement which
remains uncorrected for 30 days following written notice of such
reduction by Employee to Employer; or
c. 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
Section 3.2.a; the effect of such termination is specified in Section 3.5. The
termination of Employee's employment prior to the expiration of the Term shall
constitute a "Change of Control Termination" if made pursuant to Section 3.2.b;
the effect of such termination is specified in Section 3.6. 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.c; 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,
with the exception of any and all statutory rights and benefits, 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, with the exception of any and all statutory rights and benefits,
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 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 a single sum payment in the amount of Employee's
annualized Base Salary and payment of a pro-rata amount of Employee's bonus
opportunity for the year of termination based on the higher of the target bonus
amount for such year or the amount of bonus paid to Employee for the preceding
year.
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Conditioned upon Employee's compliance with the provisions of this Agreement,
Employee shall be entitled to receive on the first anniversary of such
Involuntary Termination a single sum payment in the amount of Employee's
annualized Base Salary at the time of such Involuntary Termination. 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 a Change of Control Termination of the employment
relationship prior to 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 an amount equal to the sum of Employee's annualized
monthly base pay plus Employee's bonus factor described below, multiplied by
2.99 ((p+b) x 2.99; "Change of Control Termination Payment"). Until Employee
receives an annual bonus, the bonus factor shall be the amount of Employee's
target bonus. After Employee receives an annual bonus, the bonus factor shall
be the greater of the target bonus for the year in which a Change of Control
Termination occurs or the actual amount of Employee's previous annual bonus.
If the Change of Control Termination Payment provided for Employee under this
Agreement and, whether or not Employee's employment is terminated, any other
payments and benefits that Employee may have a right to receive from the
Company and/or any other person or entity, would result in "excess parachute
payments" (as defined in Section 280(G) of the Internal Revenue Code of 1986,
as amended (the "Code")) attributable to Employee's employment with the
Company, and Employee would be required to pay an excise tax pursuant to
Section 4999 (or any successor section) of the Code in respect of such excess
parachute payments, the Company shall pay Employee an additional amount (the
"Reimbursement Amount") such that, after the payment by Employee of such excise
tax, and all federal, state and local taxes and any and all excise taxes that
may be imposed on the receipt by Employee of such Reimbursement Amount,
Employee would retain the amount of each excess parachute payments (subject to
payment of applicable federal, state and local income taxes thereon) as if such
excise tax had not been payable thereon. Such Reimbursement Amount shall be
reasonably determined by Employer. "Change of Control" shall mean (i) the
Company merges or consolidates with the any other entity (other than one of
Enron Corp.'s majority owned subsidiaries) and is not the surviving entity (or
survives only as the subsidiary of another entity), (ii) the Company sells all
or substantially all of its assets to any other person or entity (other than
(1) a sale of limited partner interests in EOTT Energy Partners, L.P. or (2)
the sale of assets to another majority owned subsidiary of Enron Corp. and in
connection therewith Employee becomes employed by such a subsidiary, EOTT
Energy Partners, L.P. or another partnership in which EOTT Energy Partners,
L.P. is the limited partner), or (iii) the Company is dissolved, or if (iv) any
third person or entity (other than Enron Corp. or one of its majority owned
subsidiaries or the trustee or committee of any qualified employee benefit plan
of Company or Enron Corp.) together with its affiliates shall become, directly
or indirectly, the Beneficial Owner of the least 51% of the Voting Stock of the
Company (except as a result of a distribution of the Voting Stock of the
Company to the shareholders of Enron Corp.), or if
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(v) during such time as the Company has a class of Voting Stock registered
under the Securities Exchange Act of 1934, the individuals who constituted the
members of the Company's Board of Directors ("Incumbent Board") upon the
effective date of such registration cease for any reason to constitute at least
a majority thereof, provided that any person becoming a director whose election
or nomination for election by Company stockholders was approved by a vote of at
least eighty percent (80%) of the directors comprising the Incumbent Board
(either by the specific vote or approval of the proxy statement of the Company
in which such person is named as a nominee for director, without objection to
such a nomination) shall be, for purposes of this clause (v), considered as
though such person were a member of the Incumbent Board. "Voting Stock" shall
mean all the outstanding shares of capital stock of Company entitled to vote
generally in elections for directors, considered as one class; provided,
however, that if Company has shares of Voting Stock entitled to more or less
than one vote for any such share, each reference to a proportion of shares of
Voting Stock shall be deemed to refer to such proportion of the Votes entitled
to be cast by such shares.
3.7 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,
and Employee's heirs, administrators, or legatees shall be entitled to a pro
rata individual bonus through the date of such termination.
3.8 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, and Employee shall be entitled to a pro
rata individual bonus through the date of such termination.
3.9 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.
3.10 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 5 and 6.
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
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termination. After the second anniversary of the Effective Date the parties
will enter into non-binding discussions regarding extending the Term of this
Agreement by amendment.
ARTICLE 5: OWNERSHIP AND PROTECTION OF INFORMATION; COPYRIGHTS:
5.1 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.
5.2 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, investors 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 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
actual and potential customers, suppliers, partners, joint venturers,
investors, financing sources 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 5 by Employee, and Employer
shall be entitled to enforce the provisions of this Article 5 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
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exclusive remedies for a breach of this Article 5, 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.
5.3 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.
5.4 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 audio-visual 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.
5.5 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, 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.
ARTICLE 6: POST-EMPLOYMENT NON-COMPETITION OBLIGATIONS:
6.1 As part of the consideration for the compensation and benefits to
be paid to Employee thereunder, in keeping with Employee's duties as a
fiduciary, and in order to protect Employer's interest in the trade secrets 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. Employee agrees that during the period of Employee's non-
competition obligations thereunder, Employee will not, directly or indirectly,
for Employee or for others, in any State of
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the United States in which Employer is qualified to do business or in any
foreign country in which Employer has an office as of the date of termination
of the employment relationship:
a. engage in any business competitive with the business conducted by
Employer;
b. 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 business
conducted by Employer;
c. 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 any person, association, or entity not
affiliated with Enron.
The non-competition obligations in Section 6.1.a., and b. shall extend
throughout the Term of this Agreement, provided, however, in the event of an
Involuntarily Termination or a Change of Control Termination of Employee, such
non-competition obligations shall extend for a period of twelve (12) months
after the date of such Involuntary Termination or Change of Control
Termination, but in no event shall such obligations extend past the Term.
The non-competition obligations in Section 6.1.c. shall extend
throughout the Term of this Agreement and for a period of one (1) year after
the expiration of the Term of this Agreement, provided, however, in the event
of an Involuntarily Termination or a Change of Control Termination of Employee,
such non-competition obligations shall extend for a period of twelve (12)
months after the date of such Involuntary Termination or Change of Control
Termination.
6.2 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 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,
without limitation, the recovery of damages from Employee and his or her agents
involved in such breach.
6.3 It is expressly understood and agreed that Employer and Employee
consider the restrictions contained in this Article 6 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.
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ARTICLE 7: MISCELLANEOUS:
7.1 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.
7.2 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.
7.3 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, to:
EOTT Energy Corp.
0000 Xxxx Xxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Chairman of the Board
With a copy to:
Enron Corp.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Corporate Secretary
If to Employee, to the address shown on the first page hereof.
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.
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7.4 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.
7.5 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.
7.6 If a dispute arises out of or related to this Agreement, other
than a dispute regarding Employee's obligations under Sections 5.2, Article 5,
or Section 6.1, 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.
7.7 During the term of this Agreement, each of Employer and Employee
will be a citizen of the State of Texas. Employer's principal place of
business is in Houston, Xxxxxx County, 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.
7.8 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.
7.9 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. Employer shall not assign this Agreement without the prior written
consent of Employee.
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7.10 There exist other agreements between Employer and Employee
relating to the employment relationship between them, 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.
EOTT ENERGY CORP. XXXXXXX X. XXXXX
By: /s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxx
------------------------------ ------------------------------
Title: This 15 day of May, 1998
This 15 day of May, 1998
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EXHIBIT "A" TO
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN EOTT ENERGY CORP.
AND XXXXXXX X. XXXXX
Employee Name: Xxxxxxx X. Xxxxx
Term: From Effective Date through December 31, 2001
Position: Chief Executive Officer, President, and Director
Location: Houston
Reporting Relationship: Chairman
Monthly Base Salary: $28,333.33 (Twenty Eight Thousand Three Hundred
Thirty Three and 33/100 Dollars)
Annual Incentive Target: 100% of Base Pay subject to individual and company
performance as established and measured by the
Company's Compensation Committee of the Board of
Directors.
LTI Plan: Subject to approval of Company's Compensation
Committee of the Board of Directors at its next
scheduled meeting following the Effective Date,
Employee shall be granted 90,828 SAR Units under
the EOTT Energy Corp. Long Term Incentive Plan
("LTI Plan") based on the following formula for
1998:
Base Pay ($340,000) X 3
(75th market percentile)
----------------------------- = 90,828 units
Phantom Unit Price of $11.23
Stock Option Grant: Subject to approval by the Compensation Committee
of the Enron Corp. Board of Directors, Employee
shall be granted an option to purchase 50,000
shares of Enron Corp. common stock pursuant to an
Enron Corp. stock plan, with a term of 5 years,
vesting 25% upon grant and an additional 25% on
each anniversary date of
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grant. Said grant will be considered and reviewed
at the scheduled May 4, 1998 meeting of the
Compensation Committee of the Enron Corp. Board of
Directors. The grant will include accelerated
vesting provisions in the event of a Change of
Control.
Unit Option Plan: Subject to approval of the Company's Compensation
Committee of the Board of Directors at its next
scheduled meeting following the Effective Date,
Employee shall be granted 400,000 Subordinated
Units of EOTT Energy Partners, L.P. under the EOTT
Energy Corp. 1994 Unit Option Plan at an option
price of $15 per unit.
Relocation Benefits: Employee shall be entitled to receive the standard
relocation benefits provided by Company to its
relocated employees. Employee shall be reimbursed
his reasonable expenses, as determined by the
Chairman, for temporary living and weekend
commuting for six months after the Effective Date.
Vacation Benefit: Four (4) weeks per annum.
EOTT ENERGY CORP.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Title:
This 15 day of May, 1998
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
------------------------------------
This 15 day of May, 1998
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