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EXHIBIT 10.9(b)
FIRST AMENDMENT TO
CONTRACT FOR
SERVICES BETWEEN
X.X. XXXXXXXXX & XXXX ENERGY FIELD SERVICES ASSETS, LLC
This First Amendment to Contract for Services Between X.X. Xxxxxxxxx &
Duke Energy Field Services Assets, LLC (this "Amendment"), dated as of June 29,
2000, is entered into by and between Duke Energy Field Services Assets, LLC, a
Delaware limited liability company ("DEFS Assets") and Xxxxxxx X. Xxxxxxxxx
("Contractor").
WHEREAS, Contractor and DEFS Assets entered into that Contract for
Services Dated as of April 1, 2000 (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 Assets 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 5(c) of the Consulting Agreement is amended
and restated in its entirety to read as follows:
(c) As of June 29, 2000, Contractor shall be
granted the financial equivalent of Duke Energy Corporation
("Duke Energy") stock options ("Duke Tracking Option") and
restricted stock ("Duke Tracking Restricted Stock") to
compensate Contractor in an aggregate amount of $360,000 (the
"Awards"). The Awards shall be divided as follows: $247,500 of
the Awards shall be attributable to the Duke Tracking Option,
which shall vest in two equal increments on each of May 26,
2001 and May 26, 2002 and which shall be exercisable for
thirty-six months after termination of this Contract; and
$112,500 of the Awards shall be attributable to the Duke
Tracking Restricted Stock, which shall vest in two equal
increments on each of May 26, 2001 and May 26, 2002, and which
shall accrue quarterly dividends, until vested, in the same
amount per share as dividends actually paid on Duke Energy
common stock. 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 while the Awards are outstanding, the Awards
shall be automatically exchanged for a stock option and
restricted stock 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.
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.
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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 Agreement contain the entire understanding of the parties as
to the agreement 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 ASSETS, LLC
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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