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EXHIBIT 10.33
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), including the attached Exhibit
"A", is entered into between EOTT ENERGY CORP., a Delaware corporation and
subsidiary of Enron Corp., having offices at 0000 Xxxx Xxx Xxxx., Xxxxx
0000, Xxxxxxx, Xxxxx 00000 ("Employer" and "Company"), and XXXXXXXX
XXXXXXX, XX., an individual currently residing at 000 Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx 00000 ("Employee"), to be effective as of August 28, 2000
(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 of this Agreement and
continuing until the date set forth on Exhibit "A" (the "Term"), subject to the
terms and conditions of this Agreement.
1.2. Employee initially shall be employed in the position set forth on
Exhibit "A". Employee agrees to serve in the assigned position and to perform
diligently and to the best of Employee's abilities the duties and services
appertaining to such position as determined by Employer, as well as such
additional or different duties and services appropriate to such position which
Employee from time to time may be reasonably directed to perform by Employer.
Employee shall at all times comply with and be subject to such policies and
procedures as Employer may establish from time to time.
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 interferes with
Employee's performance of Employee's duties hereunder, is contrary to the
interests of Employer, or requires any significant portion of Employee's
business time.
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1.4. Employee acknowledges and agrees that Employee owes a fiduciary
duty of loyalty, fidelity and allegiance to act at all times in the best
interests of the Employer and to do no act which would injure Employer's
business, its interests, or its reputation. Employee agrees to be in compliance
with the policies and procedures as described and contained in the EOTT Energy
Corp. and Enron Corp. Code of Ethics booklets.
ARTICLE 2: COMPENSATION AND BENEFITS:
2.1. Employee shall be paid as set forth on Exhibit "A." Employee's
monthly base salary shall be paid in semimonthly installments in accordance with
Employer's standard payroll practice, and (as with all other payments made to
Employee by Employer) is subject to withholding of all federal, state, city, or
other taxes as may be required by law. Employee's annual salary shall be
eligible for an annual review, subject to the recommendation of the Office of
the Chairman and approval by the Employer's Board of Directors.
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 qualified 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.
2.3. Employee shall be eligible to participate in the Employer's
long-term incentive plans and Employer's annual incentive plan currently
maintained or hereafter maintained by Employer for its officers as a group.
2.4. 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 Employer, 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.
2.5. 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.
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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:
(i) For "cause" upon the good faith determination by the
Employer's Chairman of the Board and President that "cause"
exists for the termination of the employment relationship.
As used in this Section 3.1(i), the term "cause" shall mean
[a] Employee's gross negligence or willful misconduct in
the performance of the duties and services required of
Employee pursuant to this Agreement; or [b] Employee's
final conviction of a felony or of a misdemeanor involving
moral turpitude; [c] Employee's involvement in a conflict
of interest as referenced in Section 1.4 for which Employer
makes a determination to terminate the employment of
Employee; or [d] 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 Chairman of the Board and President of
Employer for determination. If Employee disagrees with the
decision reached by the Chairman of the Board and President
of Employer, the dispute will be limited to whether the
Chairman of the Board and President of Employer reached
their decision in good faith;
(ii) for any other reason whatsoever, with or without cause, in
the sole discretion of the Employer's Chairman of the Board
and President;
(iii) upon Employee's death; or
(iv) upon Employee's becoming incapacitated by accident,
sickness, or other circumstance which renders him or her
mentally or physically incapable of performing the duties
and services required of Employee.
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(i); 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
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made pursuant to Section 3.1(ii); the effect of such termination is specified in
Section 3.5. The effect of the employment relationship being terminated pursuant
to Section 3.1(iii) as a result of Employee's death is specified in Section 3.6.
The effect of the employment relationship being terminated pursuant to Section
3.1(iv) as a result of the Employee becoming incapacitated is specified in
Section 3.7.
3.2. Notwithstanding any other provisions of this Agreement except
Section 7.5, 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:
(i) a material breach by Employer of any material provision of
this Agreement which remains uncorrected for 30 days
following written notice of such breach by Employee to
Employer; or
(ii) 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(i); the effect of such termination is specified in Section 3.5. 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(ii); 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
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 bonuses or 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
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 bonuses or 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, after execution of a Waiver and Release Agreement, in consideration of
Employee's continuing obligations hereunder after such termination (including,
without limitation, Employee's non-competition obligations), if Employee's
employment ceases within one year of employment, Employee shall receive one
year's annual base salary. In the event Employee's employment ceases after the
first year of this Agreement, Employee shall receive the greater of the sum of
the remainder of monthly installments due under this Agreement or one year's
annual base salary. Said amount shall be paid in monthly installments within
thirty (30) days of the
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Involuntary Termination Date. As used in this Agreement, "Involuntary
Termination" shall also mean termination of Employee's employment with Employer
if such termination results from:
(i) termination by Employee within 90 days of and in connection with
or based upon any of the following:
(a) a substantial and/or material reduction in the nature or
scope of Employee's duties and/or responsibilities, which
results in Employee not having an officer position and
results in an overall material and substantial reduction
from the duties and stature of the Officer Position as such
duties are constituted as of the effective date of this
Agreement or later agreed to by Employee and Employer,
which reduction remains in place and uncorrected for
thirty(30) days following written notice of such breach to
Employer by Employee;
(b) a reduction in Employee's base pay or an exclusion from a
benefit plan or programs (except as part of a general
cutback for all employees or officers);
(c) a change in the location for the primary performance of
Employee's services under this Agreement from the city in
which Employee was serving at the time of notification to a
city which is more than 100 miles away from such location,
which change is not approved by Employee;
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, or its 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 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,
provided however, Employee's heirs, administrators, or legatees shall be
entitled to any bonuses or incentive compensation earned and accrued but not yet
paid to Employee at the date of such termination.
3.7. 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, provided however, Employee shall be
entitled to any bonuses or incentive compensation earned and accrued but not yet
paid to Employee at the date of such termination.
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3.8. In all cases, the payments payable to Employee under Section 3.5
of 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, or its affiliates.
3.9. 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 of this Agreement, and this Agreement has not been extended by
Employer, the Employer-Employee relationship shall be Employment at Will,
terminable at any time by either Employer or Employee for any reason whatsoever,
with or without cause.
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 Corp.,
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 and business affiliates, all comprise
confidential business information and trade secrets which are valuable, special,
and unique assets which Employer, Enron Corp., 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 Corp., and their affiliates in maintaining their
competitive position. Employee hereby agrees that Employee will not, at any time
during or
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after his or her employment by Employer, make any unauthorized disclosure of any
confidential business information or trade secrets of Employer, Enron Corp., or
their affiliates, or make any use thereof, except in the carrying out of his or
her employment responsibilities hereunder. Enron Corp. 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 customers, suppliers, partners, joint
venturers, and the like, of Employer, Enron Corp., 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 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.
ARTICLE 6: POST-EMPLOYMENT NON-COMPETITION OBLIGATIONS:
6.1. As part of the consideration for the compensation and benefits to
be paid to Employee hereunder, and as an additional incentive for Employer to
enter into this Agreement, Employer and Employee agree to the non-competition
provisions of this Article 6. Employee agrees that during the period of
Employee's non-competition obligations hereunder, Employee will not, directly or
indirectly for Employee or for others, in any geographic area or market where
Employer or any of its affiliated companies are conducting any business as of
the date of termination of the employment relationship or have during the
previous twelve months conducted any business:
(i) engage in any business competitive with the business conducted by
Employer;
(ii) 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; or
(iii) induce any employee of Employer or any of its affiliates to terminate his
or her employment with Employer or its affiliates, or hire or assist in
the hiring of any such employee by person, association, or entity not
affiliated with Employer.
These non-competition obligations shall continue for a period of one year after
termination of this employment relationship.
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6.2. Employee understands that the foregoing restrictions may limit his
or her ability to engage in certain businesses during the twelve (12) month
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 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.
ARTICLE 7: MISCELLANEOUS:
7.1. For purposes of this Agreement the following terms shall have the
meanings ascribed to them below:
(a) "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 Corp. or Employer.
(b) "Involuntary Termination Date" shall mean Employee's last date of
employment by reason of an Involuntary Termination.
7.2. 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.
Xxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Vice President Human Resources
If to Employee, to the address shown on the first page hereof.
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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.
7.3. 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.
7.4. 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.
7.5. 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. Thereafter, if either party to this Agreement brings legal action to
enforce the terms of this Agreement, the party who prevails in such legal
action, whether plaintiff or defendant, in addition to the remedy or relief
obtained in such legal action shall be entitled to recover its, his, or her
expenses incurred in connection with such legal action, including, without
limitation, costs of Court and attorneys fees.
7.6. 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.
7.7. 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. Employer may assign this Agreement to any affiliate
or any other entity of Enron Corp. 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.
7.8. There exist other agreements between Employer and Employee
relating to the employment relationship between them, e.g., the agreement with
respect to company policies
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contained in Employer's Code of Ethics 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.
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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.
By: /s/ XXXXXXX XXXXXX
-------------------------------------
Chairman and Chief Executive Officer
This 14th day of September, 2000
XXXXXXXX XXXXXXX, XX.
/s/ XXXXXXXX XXXXXXX, XX.
---------------------------------------
Name: Xxxxxxxx Xxxxxxx, Xx.
---------------------------------
This 18th day of August, 2000
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EXHIBIT "A" TO
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN
EOTT ENERGY CORP. AND XXXXXXXX XXXXXXX, XX.
Employee Name: Xxxxxxxx Xxxxxxx, Xx.
Term: August 28, 2000 through August 27, 2003
Position: Senior Vice President and Chief Financial Officer
Reporting Relationship: Reports to Xxxxxxx X. Xxxxxx, Chief Executive
Officer and Xxxx Xxxxx, President and Chief
Operating Officer
Location: Houston, Texas
Monthly Base Salary: Employee's monthly base salary shall be Eighteen
Thousand Seven Hundred Fifty Dollars and No Cents
($18,750.00).
Bonus: Employee may be eligible to participate in the EOTT
Energy Corp. Annual Incentive Plan ("Plan") or any
appropriate replacement bonus plan of Employer. All
bonuses are discretionary and shall be paid in
accordance with the terms and provisions of the
Plan. Employee's annual bonus for calendar year
2000, payable in the first quarter of 2001, shall be
a minimum amount of $75,000 provided Employee meets
the identified objectives of Employer. Effective
January 1, 2001, Employee's annual bonus target
shall be 100% of Employee's annual base salary.
Long Term Incentives: Employee shall be eligible to receive the following:
80,000 EOTT Energy L.P. Subordinated Unit Options
30,000 EOTT Phantom Units
5000 Enron options
All of the above terms are subject to Board Approval upon recommendation from
the Officer of the Chairman, EOTT Energy Corp.
EOTT ENERGY CORP. XXXXXXXX XXXXXXX, XX.
By: /s/ XXXXXXX X. XXXXXX /s/ XXXXXXXX XXXXXXX, XX.
-------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxxx This 18th day of August, 2000
-------------------------
Title: Chairman and CEO
-------------------------
This 14th day of September, 2000
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