Exhibit 10.1
SECOND AMENDMENT TO
CONTRACT FOR
SERVICES BETWEEN
X.X. XXXXXXXXX & XXXX ENERGY FIELD SERVICES, LP
This Second Amendment to Contract for Services Between X.X. Xxxxxxxxx
and Duke Energy Field Services Assets, LLC (this "Amendment"), dated as of June
28, 2002, is entered into by and between Duke Energy Field Services, LP, a
Delaware limited partnership (formerly known as Duke Energy Field Services
Assets, LLC) ("DEFS"), and Xxxxxxx X. Xxxxxxxxx ("Contractor").
WHEREAS, Contractor and DEFS entered into that Contract for Services
dated as of April 1, 2000, as amended by that First Amendment to Contract for
Services dated as of June 29, 2000 (together referred to herein as the
"Consulting Agreement") (capitalized terms used but not defined herein shall
have the meaning given thereto in the Consulting Agreement); and
WHEREAS, Contractor and DEFS desire to amend the Consulting Agreement.
NOW, THEREFORE, for and in consideration of the mutual benefits to be
derived from this Amendment, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
1. Amendment to Consulting Agreement. The Consulting Agreement is
hereby amended as follows:
(a) Section 2(a) of the Consulting Agreement is amended and
restated in its entirety to read as follows:
a. This Contract shall commence on April 1, 2000 and
shall terminate on December 31, 2003.
(b) Sections 5(a) and 5(b) of the Consulting Agreement are amended
and restated in their entirety to read as follows:
5. Compensation
a. Effective as of July 1, 2002, DEFS shall pay
Contractor for services under this Contract at the
rate of $1,272.00 for each day services are performed
through December 31, 2002. Effective January 1, 2003,
DEFS shall pay Contractor for services under this
Contract at the rate of $1,335.00 for each day
services are performed through the termination of the
Contract. It is expected that Contractor shall not
xxxx for more than 230 days in any calendar year. In
addition, Contractor shall be eligible to receive a
bonus with a target opportunity of $137,500.00 for
calendar year 2002 and $144,375.00 for calendar year
2003. The timing of payout, terms of payout and the
final amount of any bonus payable to Contractor under
this
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provision will be determined in accordance with the
DEFS Short Term Incentive Plan formula as applied to
DEFS employees.
b. Coincident with the granting of stock options by Duke
Energy Corporation for the second quarter of 2002,
Contractor shall be granted the financial equivalent
of Duke Energy Corporation ("Duke Energy") stock
options in an aggregate amount of $387,500.00 for
2002 (the "2002 Award"). On the date the Duke Energy
Board of Directors meets in December 2002, Contractor
shall be granted the financial equivalent of Duke
Energy stock options in the aggregate amount of
$406,875.00 for 2003 (the "2003 Award" and together
with the 2002 Award referred to herein as the "Option
Awards"). The Option Awards shall be evidenced by a
Phantom Stock Option Agreement substantially in the
form of Exhibit A attached hereto. The Option Awards
shall vest on December 31, 2003 and shall be
exercisable for thirty-six months after termination
of this Contract. The Awards shall only track the
performance of Duke Energy common stock and shall not
entitle Contractor to any of the voting rights of a
shareholder of Duke Energy. If Parent Company shall
commence an initial public offering of its common
stock prior to the termination of this Contract as
provided for in Section 2(a), the Option Awards shall
be automatically exchanged for stock options of the
new public company (in the same proportion and with
the same vesting as originally granted) that provides
Contractor with the economic equivalent in the new
public company's common equity.
(c) Section 7 of the Consulting Agreement is amended and restated
in its entirety to read as follows:
7. Invoices
Within a reasonable time after the last day of the
calendar quarter, Contractor shall submit an invoice
to DEFS setting forth the number of calendar days
worked in such quarter, the services performed, and
eligible expenses incurred as defined in paragraph 6.
2. Ratification. Except as amended hereby, the Consulting
Agreement shall remain in full force and effect as previously executed by the
parties, and the parties hereby ratify the Consulting Agreement as amended
hereby.
3. 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.
4. 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.
5. Entire Agreement. Except as otherwise provided herein, this
Amendment and the Consulting Agreement contain the entire understanding of the
parties as to the agreement
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with Contractor, 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.
6. 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.
7. 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 Consulting Dispute Resolution procedures of the
American Arbitration Association and that any arbitration pursuant to such
procedures shall be held in Denver, Colorado.
8. 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.
9. 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 Contractor.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
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
CONTRACTOR
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
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