EXECUTIVE SEVERANCE AGREEMENT
by and between
Midcoast Energy Resources, Inc.
and
X. X. Xxxxxxxxx XX
Effective August 15, 1997
TABLE OF CONTENTS
Article
Section Page
1 Definitions 1
2 Severance Benefits
2.1 Right to Severance Benefits 5
2.2 Description of Severance Benefits 5
2.3 Termination for Total and Permanent Disability
6
2.4 Termination for Retirement or Death 6
2.5 Termination for Cause or by the Executive Other
7
Than for Good Reason
2.6 Notice of Termination 7
3 Form and Timing of Severance Benefits
3.1 Form and Timing of Severance Benefits 7
3.2 Withholding of Taxes 7
4 Golden Parachute Tax Gross-Up and Tax Indemnity
4.1 Severance Benefits to be Grossed-Up by the
Company 7
4.2 Procedure for Establishing the Tax Gross-Up
Payment 8
4.3 Subsequent Imposition of Excise Tax 8
5 The Company's Payment Obligation
5.1 Payment Obligations Absolute 8
5.2 Contractual Rights to Benefits 9
6 Term of Agreement 9
7 Legal Remedies
7.1 Payment of Legal Fees 9
7.2 Arbitration 9
8 Successors
8.1 Company's Successors 10
8.2 Executive's Successors 10
TABLE OF CONTENTS (Cont'd)
Article
Section Page
9 Miscellaneous
9.1 Employment Status 10
9.2 Beneficiaries 10
9.3 Entire Agreement 10
9.4 Gender and Number 11
9.5 Severability 11
9.6 Modification 11
9.7 Applicable Law 11
EXECUTIVE SEVERANCE AGREEMENT
THIS AGREEMENT is made and entered into this 15th day of August,
1997, by and between Midcoast Energy Resources Inc., a Nevada
corporation with its principal office at 0000 Xxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxx 00000 (the "Company") and X. X.
Xxxxxxxxx XX (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company believes there is the possibility that a
Change-in-Control of the Company may arise in the future;
WHEREAS, in the event of a prospective Change-in-Control of the
Company, the Company believes it imperative that it be able to
rely on the Executive to continue in the Executive's position,
provide advice that is in the best interests of the Company, and
act without being distracted by the personal uncertainties and
risks created by the possibility of a Change-in-Control;
WHEREAS, the Company and the Executive desire to enter into this
Agreement whereby severance benefits will be paid to the
Executive if a Change-in-Control of the Company occurs and the
Executive's employment is consequently actually or constructively
terminated by the Company or its successor under the
circumstances described herein;
NOW, THEREFORE, to induce the Executive to remain in the employ
of the Company, and for other good and valuable consideration,
the Company and the Executive agree as follows:
Article 1. Definitions
Whenever used in this Agreement, the following capitalized terms
shall have the meanings set forth below:
(a) "Agreement" means this Executive Severance Agreement.
(b) "Base Salary" means the salary of record paid to the
Executive as annual salary, excluding amounts received under
incentive or other bonus plans, whether or not deferred.
(c) "Beneficial Owner" shall have the meaning ascribed to
such term in Rule 13d-3 of the General Rules and Regulations
under the Exchange Act.
(d) "Beneficiary" means the persons or entities
designated or deemed designated by the Executive pursuant to
Section 9.2.
(e) "Board" means the Board of Directors of the Company.
(f) "Cause" shall be determined by the Board (by the
affirmative vote of not less than three-quarters (3/4) of
the entire membership of the Board on the terms described
below), in good faith, and shall mean the occurrence of any
one or more of the following:
(i) The willful and continued failure by the
Executive to substantially perform the Executive's
duties (other than any such failure resulting from the
Executive's Disability) after a written demand for
substantial performance has been delivered by the Board
to the Executive that specifically identifies the
manner in which the Board believes that the Executive
has not substantially performed the Executive's duties,
and the Executive fails to remedy such failure within
thirty (30) calendar days after receiving such notice;
or
(ii) The Executive's conviction (including by
trial, plea of guilty or plea of nolo contendere) for
committing an act of fraud, embezzlement, theft, or
other act constituting a felony; or
(iii) The Executive's willful engaging in
misconduct which is demonstrably and materially
injurious to the Company. No act, or failure to act,
on the Executive's part shall be considered "willful"
unless done, or omitted to be done, by the Executive
not in good faith and without reasonable belief that
the Executive's action or omission was in the best
interest of the Company.
Notwithstanding the foregoing, the Executive shall not
be deemed to have been terminated for Cause unless and until
there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less
than three-quarters (3/4) of the entire membership of the
Board at a meeting of the Board called and held for the
purpose of making a determination of whether Cause for
termination exists (after reasonable notice to the Executive
and an opportunity for the Executive to be heard before the
Board), finding in the good faith that Cause exists and
specifying the particulars thereof in detail.
(g) "Change-in-Control" of the Company shall be deemed to
have occurred as of the first day that any one or more of
the following events occurs on or following the Effective
Date of this Agreement:
(i) Any Person (other than those Persons in
control of the Company on the Effective Date of this
Agreement, a trustee or other fiduciary holding
securities under an employee benefit plan of the
Company, or a corporation owned directly or indirectly
by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the
Company) becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing
twenty percent (20%) or more of the combined voting
power of the Company's then outstanding securities; or
(ii) During any period of two (2) consecutive
years (not including any period prior to the Effective
Date of this Agreement), individuals who were members
of the Board at the beginning of such period (and any
new Director whose election by the Company's
stockholders was approved by a vote of at least
two-thirds (2/3) of the Directors then still in office
who either were Directors at the beginning of such
period or whose election or nomination for election was
so approved) cease for any reason to constitute a
majority thereof; or
(iii) The stockholders of the Company approve: (A)
a plan of complete liquidation of the Company, (B) an
agreement for the sale or disposition of all or
substantially all the Company's assets, or (C) a
merger, consolidation, or reorganization of the Company
with or involving any other corporation, other than a
merger, consolidation, or reorganization that would
result in the voting securities of the Company
outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being
converted into voting securities of the surviving
entity) at least fifty percent (50%) of the combined
voting power of the securities of the Company (or such
surviving entity) outstanding immediately after such
merger, consolidation, or reorganization; or
(iv) The Board determines in its sole and
absolute discretion that there has been a
Change-in-Control of the Company.
(h) "Code" means the Internal Revenue Code of 1986, as
amended, and shall include regulations promulgated under the
Code.
(i) "Committee" means the Compensation Committee of the
Board or any other committee appointed by the Board to
perform the functions of the Compensation Committee.
(j) "Company" means Midcoast Energy Resources, Inc., a
Nevada corporation (including any and all subsidiaries), or
any successor thereto as provided in Article 8.
(k) "Disability" means:
(i) The mental or physical disability, either
occupational or non-occupational in cause, which
satisfies the definition of "total and permanent
disability" in the disability policy or plan provided
by the Corporation covering the Executive; or
(ii) If no such policy or plan is then covering
the Executive, a physical or mental infirmity which, as
determined by the Committee, in good faith, upon
receipt of and in reliance on sufficient competent
medical advice from one or more individuals, selected
by the Committee, who are qualified to give
professional medical advice, prevents the Executive
from substantially performing his duties.
(l) "Effective Date" means the date this Agreement is
approved by the Board or by the Committee if duly empowered
by the Board to so act, or such other date as shall
designate in its resolution approving this Agreement.
(m) "Effective Date of Termination" means the date on
which a Qualifying Termination occurs which causes the
payment of Severance Benefits hereunder.
(n) "Exchange Act" means the Securities Exchange Act of
1934, as amended.
(o) "Executive" means X. X. Xxxxxxxxx XX.
(p) "Good Reason" means any event or condition described
in Subsections (i) through (ix) below which occurs
simultaneous with or after a Change-in-Control:
(i) A change in the Executive's status, title,
position or responsibilities (including reporting
responsibilities) which, in the Executive's reasonable
judgment, represents an adverse change from his status,
title, position or responsibilities as in effect
immediately prior thereto; the assignment to the
Executive of any duties or responsibilities which, in
the Executive's reasonable judgment, are inconsistent
with his status, title, position or responsibilities;
or any removal of the Executive from or failure to
reappoint or reelect the Executive to any of such
offices or positions held by the Executive prior to
such Change-in-Control, except in connection with the
termination of his employment for Disability,
Retirement, Cause, as a result of his death or by the
Executive other than for Good Reason;
(ii) A reduction in the Executive's Base Salary
or any failure to pay the Executive any compensation or
benefits to which the Executive is entitled within five
(5) days of the date due;
(iii) A failure to increase the Executive's Base
Salary at least annually at a percentage of Base Salary
no less than the average percentage increase (other
than increases resulting from the Executive's
promotion) granted to the Executive during the three
(3) full years ended prior to a Change-in-Control (or
such lesser number of full years during which the
Executive was employed), unless such failure occurs in
connection with the failure of the Company and the
acquiring company to increase the base salary for the
fiscal year in which such failure occurs for all
executive-level employees;
(iv) The Company's requiring the Executive to be
based at any place outside the City of Houston, Texas;
(v) The failure by the Company to (A) continue
in effect (without reduction in benefit level and/or
reward opportunities) any material compensation or
employee benefit plans in which the Executive was
participating immediately prior to the
Change-in-Control, unless a substitute or replacement
plan has been implemented which provides substantially
identical compensation and benefits to the Executive;
(vi) The insolvency or the filing (by any party,
including the Company) of a petition for the bankruptcy
of the Company;
(vii) Any material breach by the Company of any
provision of this Agreement or any employment agreement
between the Executive and the Company;
(viii) Any purported termination of the
Executive's employment for Cause by the Company which
is not for Cause; or
(ix) The failure of the Company to obtain an
agreement, satisfactory to the Executive, from any
successor or assign of the Company to assume and agree
to perform this Agreement.
Additionally, any event described in Subsections (i)
through (ix) above which occurs prior to a
Change-in-Control, but which the Executive reasonably
demonstrates (A) was at the request of a third party who has
indicated an intention or taken steps reasonably calculated
to effect a Change-in-Control (a "Third Party"), or (B)
otherwise arose in connection with, or in anticipation of a
Change-in-Control, shall constitute Good Reason for purposes
of this Agreement notwithstanding that it occurred prior to
the Change-in-Control.
(q) "Person" shall have the meaning ascribed to such term
in Section 3(a)(9) of the Exchange Act and used in Sections
13(d) and 14(d) thereof, including a "group" as defined in
Section 13(d).
(r) "Qualifying Termination" means the termination of the
Executive's employment with the Company for either of the
following reasons:
(i) The Executive resigns for Good Reason; or
(ii) The Company terminates the Executive for any
reason other than for Cause.
(s) "Retirement" means:
(i) The Executive's voluntary termination of
employment with the Company at or following "normal
retirement age" (as defined in the Company's retirement plan
covering the Executive) or,
(ii) If there is no such plan, the Executive's
voluntary termination of employment with the Company at or
following age 65.
(t) "Severance Benefits" means the compensation described
in Section 2.2 and Article 4.
Article 2. Severance Benefits
2.1. Right to Severance Benefits.
(a) The Executive shall be entitled to receive from the
Company the Severance Benefits described in Section 2.2 if
there has been a Change-in-Control of the Company and if,
within eighteen (18) calendar months thereafter (except as
provided in the flush language at the end of Section 1(p)),
the Executive's employment with the Company shall end by
reason of a Qualifying Termination.
(b) The Executive shall not be entitled to receive such
Severance Benefits if the Executive is terminated for Cause,
if the Executive resigns other than for Good Reason, or if
his employment with the Company ends due to his death,
Retirement or Disability (refer to Sections 2.3 to 2.5 for a
summary of severance compensation payable to the Executive
in connection with a termination of employment for any such
reason).
2.2. Description of Severance Benefits. If the Executive becomes
entitled to receive Severance Benefits, as provided in
Sections 2.1, the Company shall pay to or provide the
Executive with the following:
(a) An amount equal to three (3) times the highest rate
of the Executive's annual Base Salary in effect at any time
up to and including the Effective Date of Termination.
(b) An amount equal to three (3) times the greater of:
(i) the Executive's average annual bonus earned over the
last three (3) years as reflected, or as would have been
reflected, in the Executive Compensation table of the
Company's annual proxy statement, or (ii) the Executive's
target bonus established for the bonus plan year in which
the Executive's Effective Date of Termination occurs.
(c) An amount equal to the Executive's unpaid Base Salary
and accrued, unused vacation through the Effective Date of
Termination.
(d) A continuation of any Company-provided or sponsored
life insurance and healthcare-related benefits under which
the Executive and/or the Executive's family is covered as of
the effective date of the Change-in-Control. These benefits
shall be provided by the Company to the Executive
immediately upon the Effective Date of Termination and shall
continue to be provided for thirty-six (36) months from the
Effective Date of Termination; such benefit shall be
provided to the Executive at the same premium cost, and at
the same coverage level, as in effect as of the Executive's
Effective Date of Termination; and any such benefit shall be
discontinued prior to the end of the thirty-six (36) month
period if the Executive receives a substantially similar
benefit from a subsequent employer, as determined by the
Committee in good faith.
2.3. Termination for Total and Permanent Disability. Following a
Change-in-Control of the Company, if the Executive's
employment is terminated due to Disability, the Company
shall pay the Executive the Executive's full Base Salary and
accrued, unused vacation through the Effective Date of
Termination, at the rate then in effect, plus the
Executive's additional compensation and benefits, if any,
shall be determined in accordance with the Company's
retirement, insurance, and other applicable plans and
programs then in effect, and the Company shall have no
further obligations to the Executive under this Agreement.
2.4. Termination for Retirement or Death. Following a
Change-in-Control of the Company, if the Executive's
employment is terminated by reason of Retirement or death,
the Company shall pay the Executive the Executive's full
Base Salary and accrued, unused vacation through the
Effective Date of Termination, at the rate then in effect,
plus the Executive's additional compensation and benefits,
if any, shall be determined in accordance with the Company's
retirement, survivor's benefits, insurance, and other
applicable programs of the Company then in effect, and the
Company shall have no further obligations to the Executive
under this Agreement.
2.5. Termination for Cause or by the Executive Other Than for
Good Reason. Following a Change-in-Control of the Company,
if the Executive's employment is terminated either (i) by
the Company for Cause, or (ii) by the Executive for any
reason other than Good Reason, the Company shall pay the
Executive the Executive's full Base Salary and accrued,
unused vacation through the Effective Date of Termination,
at the rate then in effect, plus all other amounts to which
the Executive is entitled under any compensation and benefit
plans of the Company, at the time such payments are due, and
the Company shall have no further obligations to the
Executive under this Agreement.
2.6. Notice of Termination. Any termination by the Executive for
any reason or by the Company for Cause shall be communicated
by Notice of Termination to the other party. For purposes of
this Agreement, a "Notice of Termination" shall mean a
written notice which shall indicate the specific termination
provision in this Agreement relied upon, and shall set forth
in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's
employment under the provision so indicated.
Article 3. Form and Timing of Severance Benefits
3.1. Form and Timing of Severance Benefits. The Severance
Benefits described in Sections 2.2(a), (b), and (c) shall be
paid in cash to the Executive in a single lump sum as soon
as practicable following the Effective Date of Termination,
but in no event beyond fifteen (15) days from such Date.
3.2. Withholding of Taxes. The Company shall withhold from any
amounts payable under this Agreement all Federal, state,
city, or other taxes as legally shall be required.
Article 4. Golden Parachute Tax Gross-Up and Tax Indemnity
4.1. Severance Benefits to be Grossed-Up by the Company.
(a) When Severance Benefits Are to be Grossed-Up. If
Severance Benefits payable to the Executive plus any other
benefits realized by the Executive in connection with the
Change-in-Control of the Company (in the aggregate "Total
Payments") would, in whole or in part, constitute an "excess
parachute payment" the Company shall pay to the Executive in
cash an amount equal to the "tax gross-up" as determined
below with respect to the Executive's Severance Benefits.
The term "excess parachute payment" shall have the meaning,
and shall be valued, as provided in the Code.
(b) "Tax Gross-Up" Defined. The term "tax gross-up"
means the sum of the (i) excise tax imposed on the
Executive's Severance Benefits pursuant to Sections 280G and
4999 of the Code, plus (ii) federal, state and local income
taxes payable by the Executive with respect to the Company's
payment of such excise tax, plus (iii) federal, state and
local employment taxes payable by the Executive with respect
to the Company's payment of such excise tax, plus (iv)
iterations of income and employment taxes on (ii) plus
(iii).
(c) Guidance for Interpreting and Applying Article 4.
The objective of Article 4 is for the Company to pay the
Executive a cash payment to place the Executive in the same
net after-tax position as if no portion of the Executive's
Severance Benefits were subject to the excise tax imposed by
Sections 280G and 4999 of the Code. This Article 4 shall be
interpreted and applied accordingly.
4.2. Procedure for Establishing the Tax Gross-Up Payment.
(a) Within sixty (60) days following
delivery of the Notice of Termination (as described in
Section 2.6) or notice by the Company to the Executive
of its belief that there is a payment or benefit due
the Executive which will result in a "excess parachute
payment" as defined in Section 280G of the Code, the
Executive and the Company, at the Company's expense,
shall obtain the opinion of such legal counsel, which
need not be unqualified, as the Executive may choose,
which sets forth: (i) the amount of the Executive's
"annualized includible compensation for the base
period" (as defined in Code Section 280G(d)(1)); (ii)
the present value of the Total Payments; (iii) the
amount and present value of any "excess parachute
payment"; (iv) the amount of the Code Section 4999
excise tax payable with respect to the Executive's
Severance Benefits, and (v) the amount of the "tax
gross-up" payment as defined above. The opinion of
such legal counsel shall be supported by the opinion of
a certified public accounting firm and, if necessary, a
firm of recognized executive compensation consultants.
Such opinion shall be binding upon the Company and the
Executive.
(b) The provisions of this Section 4.2(b),
including the calculations, notices, and opinion
provided for herein shall be based upon the conclusive
presumption that: (i) the compensation and benefits
provided for in Section 2.2 and (ii) any other
compensation earned prior to the Effective Date of
Termination by the Executive pursuant to the Company's
compensation programs (if such payments would have been
made in the future in any event, even though the timing
of such payment is triggered by the Change-in-Control),
are reasonable.
4.3. Subsequent Imposition of Excise Tax. If, notwithstanding
compliance with the provisions of Sections 4.1 and 4.2, it
is ultimately determined by a court or pursuant to a final
determination by the Internal Revenue Service that any
portion of the Total Payments is considered to be a
"parachute payment," subject to excise tax under Section
4999 of the Code, which was not contemplated to be a
"parachute payment" at the time of payment, the Executive
shall be entitled to receive a lump sum cash payment
sufficient to place the Executive in the same net after-tax
position, computed by using the Executive's marginal total
tax rate for the year in which the payment contemplated
under this Section 4.3 is made.
Article 5. The Company's Payment Obligation
5.1. Payment Obligations Absolute.
(i) The Company's obligation to make the
Severance Payments and the arrangements provided for
herein shall be absolute and unconditional, and shall
not be affected by any circumstances, including,
without limitation, any offset, counterclaim,
recoupment, defense, or other right which the Company
may have against the Executive or anyone else. All
amounts payable by the Company shall be final, and the
Company shall not seek to recover all or any part of
such payment from the Executive or from whomsoever may
be entitled thereto, for any reasons whatsoever, except
as may be consistent with Section 2.2(d).
(ii) The Executive shall not be obligated to
seek other employment in mitigation of the amounts
payable or arrangements made under any provision of
this Agreement, and the obtaining of any such other
employment shall in no event effect any reduction of
the Company's obligations to make the Severance
Payments and arrangements required to be made under
this Agreement, except to the extent provided in
Section 2.2(d).
5.2. Contractual Rights to Severance Benefits. This Agreement
establishes and vests in the Executive a contractual right
to the Severance Benefits to which the Executive is entitled
hereunder. However, nothing herein contained shall require
or be deemed to require, or prohibit or be deemed to
prohibit, the Company to segregate, earmark, or otherwise
set aside any funds or other assets, in trust or otherwise,
to provide for any payments to be made or required
hereunder.
Article 6. Term of Agreement
6.1 Term. This Agreement will commence on the Effective Date
and shall continue in effect for eighteen (18) months, the
last day of which shall be the "Expiration Date". However,
at the end of such eighteen (18) month period and, if
extended, at the end of each additional year thereafter, the
term of this Agreement shall be extended automatically for
one (1) additional year, unless the Board or the Committee
(as is consistent with Section 1(i)) delivers written notice
three (3) months prior to the end of such term, or extended
term, to the Executive, that the Agreement will not be
extended. In such case, the Agreement will terminate at the
end of the term, or extended term, then in progress.
However, in the event a Change-in-Control occurs during
the original or any extended term, this Agreement will
remain in effect for the longer of: (i) eighteen (18)
months beyond the month in which such Change-in-Control
occurred; or (ii) until all obligations of the Company
hereunder have been fulfilled, and until all Severance
Benefits required hereunder have been paid to the Executive.
Article 7. Legal Remedies
7.1. Payment of Legal Fees. To the extent permitted by law and
except as provided in Section 7.2, the Company shall pay all
legal fees, costs of litigation, prejudgment interest, and
other expenses incurred in good faith by the Executive as a
result of the Company's refusal to provide the Severance
Benefits to which the Executive becomes entitled under this
Agreement.
7.2. Arbitration. The Executive shall have the right and option
to elect (in lieu of litigation) to have any dispute or
controversy arising under or in connection with this
Agreement settled be arbitration, conducted before a panel
of three (3) arbitrators sitting in a location selected by
the Executive within two hundred (200) miles from the
location of his job with the Company, in accordance with the
rules of the American Arbitration Association then in
effect. Judgment may be entered on the award of the
arbitrator in any court having proper jurisdiction. All
expenses of such arbitration, including the fees and
expenses of the counsel for the Executive, shall be borne by
the Company.
Article 8. Successors
8.1 Company's Successors. The Company will require any
successor (whether direct or indirect, by purchase, merger,
consolidation, or otherwise) of all or substantially all of
the business and/or assets of the Company or of any division
or subsidiary thereof to expressly assume and agree to
perform the Company's obligations under this Agreement in
the same manner and to the same extent that the Company
would be required to perform them if no such succession had
taken place. Failure of the Company to obtain such
assumption and agreement prior to the effective date of any
such succession shall be a breach of this Agreement and
shall entitle the Executive to compensation from the Company
or successor entity in the same amount and on the same terms
as the Executive would be entitled to hereunder if the
Executive had terminated his employment with the Company
voluntarily for Good Reason. For the purposes of
implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Effective
Date of Termination.
8.2 Executive's Successors. This Agreement shall inure to the
benefit of and be enforceable by the Executive's personal or
legal representatives, executors, administrators,
successors, heirs, distributees, devisees, and legatees. If
the Executive should die while any amount would still be
payable to the Executive hereunder had the Executive
continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms
of this Agreement, to the Executive's Beneficiary. If the
Executive has not named a Beneficiary, then such amounts
shall be paid to the Executive's devisee, legatee, or other
designee, or if there is no such designee, to the
Executive's estate.
Article 9. Miscellaneous
9.1. Employment Status. The Executive and the Company
acknowledge that, except as may be provided under any other
agreement between the Executive and the Company, the
employment of the Executive by the Company is "at will,"
and, prior to the effective date of a Change-in-Control
(except as provided in the flush language at the end of
Section 1(p)), may be terminated by either the Executive or
the Company at any time.
9.2. Beneficiaries. The Executive may designate one or more
persons or entities as the primary and/or contingent
Beneficiaries of any Severance Benefits owing to the
Executive under this Agreement. Such designation must be in
the form of a signed writing acceptable to the Committee.
The Executive may make or change such designation at any
time.
9.3. Entire Agreement. This Agreement contains the entire
understanding of the Company and the Executive with respect
to the subject matter hereof.
9.4. Gender and Number. Except where otherwise indicated by the
context, any masculine term used herein also shall include
the feminine, the plural shall include the singular, and the
singular shall include the plural.
9.5. Severability. In the event any provision of this Agreement
shall be held illegal or invalid for any reason, the
illegality or invalidity shall not affect the remaining
parts of the Agreement, and the Agreement shall be construed
and enforced as if the illegal or invalid provision had not
been included. Further, the captions of this Agreement are
not part of the provisions hereof and shall have no force
and effect.
9.6. Modification. No provision of this Agreement may be
modified, waived, or discharged unless such modification,
waiver, or discharge is agreed to in writing and signed by
the Executive and by authorized member of the Committee, or
by the respective parties' legal representatives and
successors.
9.7. Applicable Law. To the extent not preempted by the laws of
the United States, the laws of the state of Texas shall be
the controlling law in all matters relating to this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
on this 15th day of
August, 1997.
Executive:
Midcoast Energy Resources, Inc.:
By:
X. X. Xxxxxxxxx XX
Xxx X. Xxxxxxx, President & CEO
ATTEST:Midcoast Energy Resources, Inc.
(Corporate Seal)
By:
Xxxxx X. Xxxxxx, Secretary
