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EXHIBIT 10.68(b)
FIRST AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement, entered into on this 12 of March, 1999, and made
effective as of February 1, 1999, by and between ENRON OIL & GAS COMPANY
("Company" or "Employer") and XXXX X. XXXXXX ("Employee") is an amendment to
that certain Employment Agreement made effective as of September 1, 1998 (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 shall
constitute an Involuntary Termination under this Agreement. In
the event of such Involuntary Termination which entitles
Employee to severance benefits under said 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 said 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
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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 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
7, Section 7.1:
"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 9 shall be inserted at the end of
the Employment Agreement:
"ARTICLE 9: U.S. EXCISE TAX INDEMNIFICATION
9.1 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 9) (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.
9.2 Determination of Amount. Subject to the provisions
of Section 9.3, all determinations required to be made under
this Article 9,
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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 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 9.3 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.
9.3 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.
9.4 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
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Employee of an amount advanced by the Company pursuant to this
Section 9.4, 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
9.4, 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 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/ XXXXXXXX XXXXXXX
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Name: Xxxxxxxx Xxxxxxx
Title: V.P. Human Resources & Administration
This 15th day of March, 1999
XXXX X. XXXXXX
/s/ XXXX X. XXXXXX
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This 12 day of March, 1999
