FIRST AMENDMENT TO SEVERANCE AND SERVICES AGREEMENT
This First Amendment to Severance and Services Agreement (this "Amendment")
dated as of February 14, 1997, is by and between Destec Energy, Inc., a
Delaware corporation (the "Company"), and Xxxxxxx X. Xxxxxxxxx ("Employee").
W I T N E S S E T H
WHEREAS, the Company and Employee entered that certain Severance and
Services Agreement (the "Agreement") dated as of May 3, 1994, pursuant to which
the Company agreed to provide certain severance benefits to Employee in the
event Employee's employment with the Company is terminated subsequent to Change
in Control (as defined in the Agreement) under certain circumstances; and
WHEREAS, the Company and Employee wish to modify the Agreement in certain
respects.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. The text of Subsection 4(D)(ii) be deleted in its entirety, and the
following be substituted in its place:
(ii) SEVERANCE PAYMENT. In lieu of any further salary payments to you
for periods subsequent to the Date of Termination, the Company shall
pay as severance pay to you, not later than the fifth (5th) day
following the Date of Termination, a lump sum severance payment (the
"Severance Payment") equal to 1.30 times the sum of:
(1) the greater of (a) your annual rate of base salary in effect
on the Date of Termination, and (b) your annual rate of base
salary in effect immediately prior to the Change in Control,
(such greater amount being referred to herein as the "Salary
Factor"), plus
(2) an amount (the "Bonus Factor") calculated by multiplying the
Salary Factor by a percentage equal to the greater of (a) the
average percentage bonus (annualized in the case of any bonus
paid with respect to a partial year) paid to you in respect of
the three years preceding the Date of Termination, (or the period
of your employment, if less than three (3) years) determined for
each such year as a percentage of the base salary paid to you in
respect of the relevant year, and (b) the average percentage
bonus (annualized in the case of any bonus paid with respect to a
partial year) paid to you in respect of the three years preceding
the Change in Control, (or the period of your
employment, if less than three (3) years determined for each such
year as a percentage of the base salary paid to you in respect of
the relevant year.
2. The text of Section 5 be deleted in its entirety, and the
following be substituted in its place:
5. ADVISORY ARRANGEMENT. If your employment by the Company
shall be terminated by the Company other than for Cause,
Retirement or Disability or by you for Good Reason, then for a
period of four (4) months following the date of such termination
of employment (the "Advisory Period"), you shall be engaged by
the Company as an advisor on the following terms and conditions:
(A) ADVISORY SERVICES. During the Advisory Period you will
perform advisory services for the Company and its subsidiaries as
the Board may reasonably request from time to time, it being
understood that you will be expected to provide at least 60 days
of advisory services. You agree to make yourself available on a
reasonable basis during the Advisory Period to provide such
services. Advisory services will be performed at times and
places mutually convenient to you and the Company.
(B) INDEPENDENT CONTRACTOR. As an advisor to the Company you
will act in the capacity of an independent contractor and not as
an employee of the Company. The Company will not exercise
discretion or control over you in the performance of your
advisory services, nor shall it require your compliance with
orders or instructions. You will act solely in an advisory
capacity and in consequence will not have authority to act for
the Company or to give instructions or orders on behalf of the
Company or to make any decisions or commitments for or on behalf
of the Company.
(C) COMPENSATION. The Company will pay you, in consideration
for the advisory services to be provided hereunder, an aggregate
amount equal to 0.7 times the sum of the Salary Factor and the
Bonus Factor, plus reimbursement of your reasonable out of pocket
expenses. Such amount shall be paid in equal monthly
installments over the term of the Advisory Period. The Company
retains the right to withhold and deduct from any such payment
all sums which it may be required to deduct or withhold pursuant
to applicable law.
3. The Agreement, as hereby amended, is and shall remain the binding
obligation of the Company and, except to the extent amended by this
Amendment, all the terms, provisions, conditions, agreements, covenants,
representations, warranties, and powers contained in the Agreement shall be
and remain in full force and effect and the same are hereby ratified and
confirmed.
4. All references in the Agreement to "this Agreement" and any other
reference of similar import shall henceforth mean the Agreement as amended
by this Amendment.
5. In the event of any inconsistency or conflict between this Amendment
and the Agreement, the terms, provisions and conditions of this Amendment
shall govern and control.
6. Capitalized terms used herein shall have the meanings described in the
Agreement unless otherwise defined herein.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed on the date first written above.
DESTEC ENERGY, INC.
By: /s/ X. X. XXXX
---------------------------------------
X. X. Xxxx
President and Chief Executive Officer
/s/ XXXXXXX X. XXXXXXXXX
------------------------------------------
Xxxxxxx X. Xxxxxxxxx
