EXHIBIT 10.1
THIRD AMENDMENT TO
CONTRACT FOR
SERVICES BETWEEN
X.X. XXXXXXXXX & XXXX ENERGY FIELD SERVICES, LP
This Third Amendment to Contract for Services Between X.X. Xxxxxxxxx
and Duke Energy Field Services Assets, LLC (this "Amendment"), dated as of April
16, 2003, is entered into by and between Duke Energy Field Services, LP, a
Delaware limited partnership (formerly known as Duke Energy Field Services
Assets, LLC) ("DEFS"), and Xxxxxxx X. Xxxxxxxxx ("Contractor").
WHEREAS, Contractor and DEFS entered into that Contract for Services
dated as of April 1, 2000, as amended by that First Amendment to Contract for
Services dated as of June 29, 2000 and as further amended by that Second
Amendment to Contract for Services dated as of June 28, 2002 (collectively
referred to herein as 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 desire to hereby 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(b) of the Consulting Agreement is amended and
restated in its entirety to read as follows:
5. Compensation
b. Coincident with the granting of stock options by
Duke Energy Corporation for the second quarter of 2002,
Contractor shall be granted a long term incentive award for
2002 in the form of the financial equivalent of Duke Energy
Corporation ("Duke Energy") stock options valued at
$387,500.00 (the "2002 Award"). On February 25, 2003,
Contractor shall be granted a long term incentive award for
2003 in the form of the financial equivalent of Duke Energy
stock-based incentives valued at $406,875.00 (the "2003
Award"). The 2002 Award shall consist of phantom stock options
and the 2003 Award shall be split equally between phantom
stock options and phantom performance shares. The granted
phantom stock options (the "Option Awards") shall be evidenced
by a Phantom Stock Option Agreement, substantially in the form
of attached Exhibit A, and the granted phantom performance
shares (the "Performance Award") shall be evidenced by a
Phantom Performance Award Agreement, substantially in the form
of attached Exhibit B. The Option Awards shall vest on
December 31, 2003 and shall be exercisable for thirty-six
months thereafter. The Performance Award
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shall vest and be payable provided Duke Energy meets certain
performance criteria as set forth in the Phantom Performance
Award Agreement. If it is determined that such performance
criteria are met, the Performance Award shall be payable in
four yearly installments commencing February 25, 2005 through
February 25, 2008. The Option 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.
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.
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 Consulting 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
DUKE ENERGY FIELD SERVICES, LP
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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