EXHIBIT 10.4
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), including the attached Exhibit
"A", is entered into between EOTT ENERGY LLC, a Delaware corporation, having
offices at 0000 X. Xxx Xxxxxxx Xxxxxxx X., Xxxxx 000, Xxxxxxx, Xxxxx 00000
("Employer" and "Company"), and Xxxx X. Xxxxx, an individual currently residing
at 00000 Xxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxx 00000 ("Employee"), to be effective
as of July 1, 2003 (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 employment with the 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. This Agreement will expire by its own
terms and the Employee will automatically become an employee at will and be
included in all general employment and benefit arrangements at the end of the
Term unless the Company notifies Employee of its intention to extend the Term
(such notice to include the length of the intended extension) at least sixty
(60) days prior to the expiration of the Term and Employee accepts such
extension within ten (10) days of receipt of such notice.
1.2. Employee 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. The activities described as "permitted activities," on Exhibit A
attached hereto shall not be deemed a violation of this Section 1.3.
- Page 1 -
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 comply with the
policies and procedures as described and contained in the Employer's Code of
Ethics policy, a copy of which has been provided to Employee.
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.
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, 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, except as may be approved by Employer's compensation committee and
Board of Directors.
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 or inactions 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 by law.
- Page 2 -
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 determination by the Company's
Chief Executive Officer and the Employer's
Independent Directors of the Board who are neither
employees of nor Affiliated with Employer or any
subsidiary of Employer apart from his or her capacity
as a member of the Board and any Board committee and
who otherwise have no interest in such determination
("Independent Directors") 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 Sections 1.3 and 1.4 with respect to which
Employer makes a good faith 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 Independent Directors of the Board of Employer
for determination;
(ii) for any other reason whatsoever, with or without
cause, in the sole discretion of the Employer's
Independent Directors of the Board;
(iii) upon Employee's death; or
(iv) to the extent allowed by law, 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, as determined in good
faith 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(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 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
- Page 3 -
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 8.5, 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 or the occurrence of an Involuntary Termination
as defined in Section 3.5 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 and accrued benefits 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 and accrued benefits 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), to the
sum of two years annual base salary payable as follows: one year's annual base
salary shall be paid within thirty (30) days of the termination date; the
remaining one year's annual base salary shall be paid at the end of the twelve
(12) month period following the termination date. As used in this Agreement,
"Involuntary Termination" shall also mean termination of Employee's employment
with Employer if such termination results from:
- Page 4 -
(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
as such duties are constituted as of the effective
date of this Agreement or later agreed to by Employee
and Employer, or if Employee is no longer an
executive officer of the Company as defined as
Section 16b in SEC regulations, 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;
(ii) termination by Employee within one (1) year of Change of
Control Date:
(a) "Change of Control" of Company shall mean
(i) Company merges or consolidates with any
other entity (other than one of EOTT Energy
LLC's majority owned subsidiaries) and the
shareholders of EOTT Energy LLC own less
than 50% of the surviving entity,
(ii) Company sells all or substantially all of
its assets to any other person or entity
(other than (i) a sale of equity interests
in EOTT Energy LLC or (ii) a sale of assets
to another majority owned subsidiary of EOTT
Energy LLC and in connection therewith
Employee becomes employed by such
subsidiary, EOTT Energy LLC or a partnership
in which EOTT Energy LLC is the general
partner),
(iii) Company is dissolved,
(iv) any third person or entity together with its
Affiliates shall become, directly or
indirectly, the Beneficial Owner of greater
than 50% of the voting stock of Company
(except as the result of a distribution of
the voting securities of the Company to the
shareholders), or if
(v) during such time as Company has a class of
Voting Securities 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
- Page 5 -
whose election or nomination for election by
Company stockholders was approved by a vote
of at least two thirds (2/3) of the
directors comprising the Incumbent Board
(either by a specific vote or by approval of
the proxy statement of the Company in which
such person is named as a nominee for
director, without objection to such
nomination) shall be, for purposes of this
clause (v), considered as though such person
were a member of the Incumbent Board.
(b) "Change of Control Date" shall mean the day on which
a Change of Control becomes effective.
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, to the extent permitted by law, 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.
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 for the remaining term of contract.
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 for the remaining term of contract.
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 (including expiration of the Term) 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. Upon termination, Employee shall
promptly return all property of the Company to the Company, including books,
records, computer files, etc.
- Page 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, subject to the terms and conditions hereof.
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, and its
Affiliates is highly competitive and that its strategies, methods, books,
records, and documents, its technical information concerning its products,
equipment, services, and processes, procurement procedures and pricing
techniques, the names of and other information (such as credit and financial
data) concerning its customers and business affiliates, all comprise
confidential business information and trade secrets which are valuable, special,
and unique assets which Employer, or its Affiliates use in its business to
obtain a competitive advantage over its 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, and its Affiliates in maintaining its competitive position. Employee
acknowledges that under this Agreement, Employee is being given access to
Employer's confidential business information and trade secrets, and 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, or its Affiliates, or make
any use thereof, except in the carrying out of his or her employment
responsibilities hereunder, or as may be required by law. EOTT Energy LLC 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, and its
Affiliates. Employee also
- Page 7 -
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 a sufficient remedy for
any breach of this Article 5 by Employee, and Employer shall be entitled to
enforce the provisions of this Article 5 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, and in particular Employer's agreement to the
protections contained in Section 3.5, Employer and Employee agree to the
non-competition provisions of this Article 6 during the term of this Agreement.
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 or its Affiliates;
(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 its Affiliates; 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 or its Affiliates.
These non-competition obligations shall continue for a period of one year after
involuntary termination of this employment relationship.
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 owed to Employee under
- Page 8 -
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: INDEMNIFICATION:
7.1 If, at any time during or after the Term of this Agreement,
the Employee is made a party to, or is threatened to be made a party in, any
civil, criminal or administrative action, suit or proceeding by reason of the
fact that the Employee is or was a director, officer, employee or agent of the
Company, or of any other corporation or any partnership, joint venture, trust or
other enterprise for which the Employee served as such at the request of the
Company, then the Employee shall be indemnified by the Company, to the fullest
extent permitted under applicable law, against expenses actually and reasonably
incurred by the Employee or imposed on the Employee in connection with, or
resulting from, the defense of such action, suit or proceeding, or in connection
with, or resulting from, any appeal therein if the Employee acted in good faith
and in a manner the Employee reasonably believed to be in or not opposed to the
best interest of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the Employee's conduct was
unlawful, except with respect to matters as to which it is adjudged that the
Employee is liable to the Company or to such other corporation, partnership,
joint venture, trust or other enterprise for gross negligence or willful
misconduct in the performance of the Employee's duties. As used herein, the term
"expenses" shall include all obligations actually and reasonably incurred by the
Employee for the payment of money, including, without limitation, attorney's
fees, judgments, awards, fines, penalties and amounts paid in satisfaction of a
judgment or in settlement of any such action, suit or proceeding, except amounts
paid to the Company or such other corporation, partnership, joint venture, trust
or other enterprise by the Employee. The foregoing indemnification provisions
shall be in addition to any other rights to indemnification to which the
Employee may be entitled.
- Page 9 -
ARTICLE 8: MISCELLANEOUS:
8.1. 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 Employer.
(b) "Involuntary Termination Date" shall mean Employee's last date
of employment by reason of an Involuntary Termination.
8.2. 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 LLC
Xxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Vice President Human Resources
If to Employee, to:
Xx. Xxxx X. Xxxxx
00000 Xxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
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.
8.3. 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.
8.4. 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.
8.5. If a dispute arises out of or related to this Agreement, other
than a dispute regarding Employee's obligations under Article 5, Section 5.2, or
Article 6, Section 6.1, and if the dispute cannot be settled through direct
discussions, then Employer and Employee agree to first endeavor to
- Page 10 -
settle the dispute in an amicable manner by mediation, before having recourse to
any other proceeding or forum. Employer shall pay all costs of such mediation
and binding arbitration, exclusive of Employee's legal fees. Thereafter, the
matter shall be submitted to binding arbitration as follows:
ANY DISPUTE, CLAIM, OR CONTROVERSY ARISING OUT OF OR RELATED IN ANY WAY
TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ITS ENFORCEABILITY,
VALIDITY, OR INTERPRETATION, OR RELATED IN ANY WAY TO EMPLOYEE'S
EMPLOYMENT WITH EMPLOYER THAT IS NOT FIRST RESOLVED BY AGREEMENT OR
MEDIATION AS PROVIDED ABOVE, SHALL BE SUBMITTED TO AND RESOLVED BY
BINDING ARBITRATION WITH THE AMERICAN ARBITRATION ASSOCIATION ("AAA")
IN HOUSTON, TEXAS, IN ACCORDANCE WITH THE AAA'S APPLICABLE RULES TO THE
RESOLUTION OF EMPLOYMENT DISPUTES. JUDGMENT UPON THE AWARD RENDERED BY
THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. IT
IS SPECIFICALLY AGREED THAT THE ARBITRATION PROVISION SHALL BE BINDING
ON EMPLOYEE'S HEIRS, ADMINISTRATORS, AND PERSONAL REPRESENTATIVES. THE
PARAGRAPH SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT. NOTHING
CONTAINED IN THE AGREEMENT SHALL PREVENT EMPLOYER FROM SEEKING
INJUNCTIVE RELIEF AGAINST EMPLOYEE FOR VIOLATION OF ANY AGREEMENT
PERTAINING TO NON-COMPETITION, TRADE SECRETS, OR CONFIDENTIALITY.
8.6. 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.
8.7. 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 EOTT Energy LLC. Employee's rights and obligations under
this 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.
8.8. There exist other agreements between Employer and Employee
relating to the employment relationship between them, e.g., the agreement with
respect to Employer policies contained in Employer's Code of Ethics policy and
agreements with respect to benefit plans. This Agreement replaces and merges
previous agreements and discussions pertaining to the following
- Page 11 -
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 LLC
By: /s/ X.X. Xxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman and CEO
This 14 day of July, 2003
XXXX X. XXXXX
/s/ Xxxx X. Xxxxx
--------------------------------------------
This 10th day of July, 2003
- Page 12 -
EXHIBIT "A" TO
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN
EOTT ENERGY LLC AND XXXX X. XXXXX
Employee Name: Xxxx X. Xxxxx
Term: Three (3) years (June 30, 2006)
Position: President and Chief Commercial Officer
Reporting Relationship: Chief Executive Officer
Location: Houston, Texas
Monthly Base Salary: Employee's monthly base salary shall not be less
than twenty-two thousand eighty-three dollars and
thirty cents ($22,083.30).
Bonus: Employee is eligible to participate in the EOTT
Energy LLC 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.
The annual targeted incentive is fifty percent (50%)
of the annual base salary.
Long Term Incentives: Employee is eligible to participate in any long term
incentive plans as recommended and approved by the
Board of Directors of EOTT Energy LLC. Employee's
2003 award under the EOTT Energy LLC Equity Plan is
85,000 LLC units. In the event of Involuntary
Termination as a result of Change of Control as
defined in Article 3, Section 3.5(ii), accelerated
vesting shall occur on the termination date for all
unvested units under any award grants.
Vacation Benefits: Employee shall receive four (4) weeks of vacation per
year accrued on a monthly basis.
EOTT ENERGY LLC XXXX X. XXXXX
By: /s/ X.X. Xxxxxxxx /s/ Xxxx X. Xxxxx
-------------------------------------- ----------------------------------
Name: X.X. Xxxxxxxx This 10th day of July, 2003
Title: Chairman & CEO
This 10 day of July, 2003
