EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), including the attached Exhibit
"A," is entered into between NORTHERN PLAINS NATURAL GAS ("Employer") and XXXXX
X. XXXXXX ("Employee"), to be effective as of April 1, 2002 (the "Effective
Date"). Employer and Employee agree as follows:
ARTICLE 1: EMPLOYMENT, COMPENSATION AND BENEFITS
1.1 Term and Position. Employer agrees to employ Employee, and Employee
agrees to be employed by Employer for the Term (the "Term") described in Exhibit
"A." Employer may assign Employee to a different position or modify Employee's
duties and responsibilities.
1.2 Compensation. Employee shall be paid as set forth in Exhibit "A".
1.3 Benefits. Employee shall be allowed to participate, on the same basis
generally as other employees employed in the same or similar positions, in all
general employee benefit plans and programs that Employer has made available to
Employer's employees on or after the Effective Date. Nothing in this Agreement
is to be construed to provide greater rights, participation, coverage, or
benefits than provided to similarly situated employees pursuant to the terms of
such benefit plans and programs. Employer is not obligated to institute,
maintain, or refrain from changing, amending, or discontinuing any such benefit
program or plan, so long as such actions are similarly applicable to covered
employees generally. Copies of benefit plans will be made available to Employee
upon request. Additionally, compensation and benefits payable under this
agreement shall be offset by any amounts, which Employee owes Employer,
including the value of Employer's property, upon the termination of Employee's
employment under this agreement.
ARTICLE 2: TERMINATION BEFORE THE TERM EXPIRES AND EFFECTS OF SUCH TERMINATION
2.1. Termination By Employer. Employer may terminate Employee's employment
before the Term expires for the following reasons:
a. Cause. For "cause" upon the determination by Employer that "cause"
exists to terminate the Employee. "Cause" means (i) Employee's gross
negligence, willful misconduct, or neglect in the performance of the duties
and services as an employee; (ii) Employee's final conviction of a felony
by a trial court; (iii) Employee's breach of any provision of this
Agreement; (iv) Employee's violation of any material policy of Employer or
Enron; or (v) Employee's violation of any federal, state, or local law or
regulation in the performance of his or her duties for Employer. If
Employer terminates Employee's employment for Cause, Employee shall be
entitled only to his or her pro rata salary through the date of such
termination, and all future compensation and benefits, other than benefits
to which Employee is entitled under the terms of Employer or Enron
compensation and/or benefit plans, shall cease.
b. Involuntary Termination. Involuntary Termination at Employer's
option may occur for any reason whatsoever, including termination without
cause, in the sole discretion of Employer. Upon an Involuntary Termination
before the Term expires, Employee is entitled to receive the amount of one
year's annual base salary and performance bonus and any benefits to which
Employee is entitled to under the terms of the Employer and/or Enron
compensation and/or benefit plans. This amount will be calculated by taking
the average of Employee's annual base salary and performance bonus for the
last two years of Employee's employment with Employer or another Enron
affiliate. Fifty percent of the amount shall be paid in six (6)
installments each month during the first six (6) months following
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the Involuntary Termination; the remaining fifty percent will be paid in a
single lump-sum payment at the end of that six-month period. This amount
supercedes any payments contemplated under the Employers' Severance Plan
and Employee shall not be eligible to receive benefits under Employer's
Severance Plan in the event of an Involuntary Termination during the Term
of this Agreement.
c. Death/Disability. Upon Employee's (i) death, or (ii) becoming
incapacitated or disabled so as to entitle Employee to benefits under
Employer's long-term disability plan, or (iii) becoming permanently and
totally unable to perform Employee's duties for Employer as a result of any
physical or mental impairment as confirmed by a written opinion by a
physician selected by Employer, and upon termination of employment under
this paragraph, Employee or Employee's heirs shall be entitled only to
Employee's pro rata salary through the date of such termination, and all
future compensation and benefits, other than benefits to which Employee is
entitled under the terms of Employer or Enron compensation and/or benefit
plans including the Stay Bonus on Exhibit A, shall cease.
2.2 Termination By Employee. Employee may terminate the employment
relationship before the Term expires for the following reasons:
a. Breach by Employer. A material breach by Employer of any material
provision of this Agreement, which remains uncorrected for 30 days
following Employee's written notice to Employer of such breach. Upon such a
termination, Employee shall be entitled to receive the amount of one year's
annual base salary and performance bonus ("Amount"). This Amount will be
calculated by taking the average of Employee's annual base salary and
performance bonus for the last two years of Employee's employment with
Employer or another Enron affiliate. Fifty percent of the Amount shall be
paid in six (6) equal installments each month during the first six (6)
months following the Involuntary Termination; the remaining fifty percent
will be paid in a single lump-sum payment at the end of that six-month
period.
b. Voluntary Termination. For any other reason whatsoever, in
Employee's sole discretion. Upon a Voluntary Termination before the Term
expires, all of Employee's future compensation and benefits, other than
benefits to which Employee is entitled under the terms of Employer or Enron
compensation and/or benefit plans, shall cease as of the date of
termination, and Employee shall be entitled only to pro rata salary through
the termination date.
2.3 Offset. The compensation and benefits payable to Employee under this
Agreement upon termination of employment shall offset any amounts to which
Employee otherwise may be entitled under the Employer's Severance Pay Plan, or
amounts (including the value of Employer's property) that Employee owes to
Employer.
2.4 Continuing Obligations. Neither termination of employment nor
expiration of the Term terminates the continuing obligations of this Agreement,
including obligations under Articles 3 and 4.1.
2.5 Employment Beyond Term. Should Employee remain employed by Employer
after the Term expires, such employment shall convert to an employment-at-will
relationship, terminable at any time by either Employer or Employee for any
reason whatsoever, with or without cause.
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ARTICLE 3: CONFIDENTIAL INFORMATION; POST-EMPLOYMENT OBLIGATIONS
3.1 This Agreement. The terms of this Agreement constitute confidential
information, which Employee shall not disclose to anyone other than Employee's
spouse, attorneys, tax advisors, or as required by law. Disclosure of these
terms is a material breach of this Agreement and could subject Employee to
disciplinary action, including without limitation, termination of employment for
cause.
3.2 Confidential Information: Non-Disclosure. Employee acknowledges that
the business of Employer, Enron, and their affiliates is highly competitive and
that Employer has agreed to provide and immediately will provide Employee with
access to Confidential Information relating to the business of Employer, Enron,
and their affiliates. "Confidential Information" means and includes Employer's
confidential and/or proprietary information and/or trade secrets that have been
developed or used and/or will be developed and that cannot be obtained readily
by third parties from outside sources. Confidential Information includes, by way
of example and without limitation, the following: information regarding
customers, employees, contractors, and the industry not generally known to the
public; strategies, methods, books, records and documents; technical information
concerning products, equipment, services, and process; procurement procedures
and pricing techniques; the names of and other information concerning customers,
investors, and business affiliates (such as contact name, service provided,
pricing for that customer, type and amount of services used, credit and
financial data, and/or other information relating to Employer's relationship
with that customer); pricing strategies and price curves; positions; plans and
strategies for expansion, acquisitions or divestitures; budgets; customers
lists; research; financial and sales data; trading methodologies and terms;
evaluations, opinions, and interpretations of information and data; marketing
and merchandising techniques; prospective customers' names and marks; grids and
maps; electronic databases; models; specifications; computer programs; internal
business records; contracts benefiting or obligating Employer; bids or proposals
submitted to any third party; technologies and methods; training methods and
training processes; organizational structure; personnel information, including
salaries of personnel; payment amounts or rates paid to consultants or other
service providers; and other such confidential or proprietary information.
Employee acknowledges that this Confidential Information constitutes a valuable,
special, and unique asset used by Employer, Enron, or their affiliates in their
businesses to obtain a competitive advantage over their competitors. Employee
further acknowledges that protection of such Confidential Information against
unauthorized disclosure and use is of critical importance to Employer, Enron,
and their affiliates in maintaining their competitive position. Employee also
will have access to, or knowledge of, Confidential Information of third parties,
such as actual and potential customers, suppliers, partners, joint ventures,
investors, financing sources and the like, of Employer, Enron, and their
affiliates. Employer also agrees to provide Employee with immediate access to
Confidential Information and specialized training regarding Employer's
methodologies and business strategies, which will enable Employee to perform his
or her job at Employer
Employee agrees that Employee will not, at any time during or after
Employee's employment with Employer make any unauthorized disclosure of any
Confidential Information or specialized training of Employer, Enron, or their
affiliates, or make any use thereof, except in the carrying out of his or her
employment responsibilities hereunder. Employee also agrees to preserve and
protect the confidentiality of third party Confidential Information to the same
extent, and on the same basis, as Employer's Confidential Information.
3.3 Employer's Property. All written materials, records, data, and other
documents prepared or possessed by Employee during Employee's employment by
Employer are Employer's property. All information, ideas, concepts,
improvements, discoveries, and inventions that are conceived, made, developed,
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or acquired by Employee individually or in conjunction with others during
Employee's employment (whether during business hours and whether on Employer's
premises or otherwise) which relate to Employer's business, products, or
services are Employer's sole and exclusive property. All memoranda, notes,
records, files, correspondence, drawings, manuals, models, specifications,
computer programs, maps, and all other documents, data, or materials of any type
embodying such information, ideas, concepts, improvements, discoveries, and
inventions are Employer's property. At the termination of Employee's employment
with Employer for any reason, Employee shall return all of Employer's documents,
data, or other Employer property to Employer.
3.4 Non-Competition Obligations. Employer agrees to and shall provide
Employee with immediate access to Confidential Information. Ancillary to the
rights provided to Employee following Involuntary Termination, Employer's
provision of Confidential Information to Employee, and Employee's agreement not
to disclose Confidential Information, and in order to protect the Confidential
Information described above, Employer and Employee agree to the following
non-competition provisions. Employee agrees that during the Period of
Post-Employment Non-Competition Obligations defined in Exhibit "A," Employee
will not, directly or indirectly, for Employee or for others, in the Geographic
Region of Responsibility described on Exhibit "A" (or, if Employee's Geographic
Region has changed, in any and all geographic regions in which Employee has
worked during the 12-month period immediately preceding Employee's termination
of Employment):
a. engage in any business competitive with the business conducted by
Employer;
b. 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.
Employee understands that the foregoing restrictions may limit his or her
ability to engage in certain businesses in the geographic region and during the
period provided for above, but acknowledges that these restrictions are
necessary to protect the Confidential Information Employer has provided to
Employee.
3.5 Non-Solicitation of Customers. For the Period of Non-Solicitation of
Customers described on Exhibit "A," Employee will not call on, service, or
solicit competing business from customers of Employer, Enron, or their
affiliates whom that Employee, within the previous twelve (12) months, (i) had
or made contact with, or (ii) had access to information and files about.
3.6 Non-Solicitation of Employees. During Employee's employment, and for a
period of twelve (12) months following Employee's termination date, Employee
will not, either directly or indirectly, call on, solicit, or induce any other
employee or officer of Employer, Enron, or their affiliates with whom Employee
had contact, knowledge of, or association with in the course of employment with
Employer to terminate his or her employment, and will not assist any other
person or entity in such a solicitation.
3.7 Statements About Employer. Employee shall refrain, both during and
after Employee's employment, from publishing any oral or written statements
about Employer, Enron or any of its subsidiaries or affiliates, or any of such
entities' officers, employees, agents, or representatives that are disparaging,
slanderous, libelous, or defamatory; or that disclose private or confidential
information about their business affairs; or that constitute an intrusion into
their seclusion or private lives; or that give rise to unreasonable publicity
about their private lives; or that place them in a false light before the
public; or that constitute a misappropriation of their names or likeness.
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3.8 Early Resolution Conference/Arbitration. The parties are entering into
this Agreement with the express understanding that this Agreement is clear and
fully enforceable as written. If Employee ever decides to contend that any
restriction on activities imposed by this Agreement are no longer enforceable as
written or do not apply to an activity Employee intends to engage, Employee
first will notify Employer's Chief Executive Officer in writing and meet with a
company representative at least fourteen (14) days before engaging in any
activity that foreseeably could fall within the questioned restriction to
discuss resolution of such claims (an "Early Resolution Conference"). Should the
parties not be able to resolve disputes at the Early Resolution Conference, the
parties agree to use confidential, binding arbitration to resolve the disputes.
The arbitration shall be conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association before an arbitrator licensed to
practice law in Texas. Either party may seek a temporary restraining order,
injunction, specific performance, or other equitable relief regarding the
provisions of this Section if the other party fails to comply with obligations
stated herein. The parties' agreement to arbitrate applies only to the matters
subject to an Early Resolution Conference.
3.9 Warranty and Indemnification. Employee warrants that Employee is not a
party to any restrictive agreement limiting Employee's activities in his/her
employment by Employer. Employee further warrants that at the time of the
signing of this Agreement, Employee knows of no written or oral contract or of
any other impediment that would inhibit or prohibit employment with Employer,
and that Employee will not knowingly use any trade secret, confidential
information, or other intellectual property right of any other party in the
performance of Employee's duties hereunder. Employee shall hold Employer
harmless from any and all suits and claims arising out of any breach of such
restrictive agreement or contracts.
ARTICLE 4: MISCELLANEOUS
4.1 Notices. Notices and all other communications 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. Notices to Employer shall be sent
to NORTHERN PLAINS NATURAL GAS, 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000,
Attention: Corporate Secretary. Notices and communications to Employee shall be
sent to the address Employee most recently provided to Employer in writing.
4.2 No Waiver. Other than as described in Section 2.2 a, no failure by
either party 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 any provisions or conditions of this Agreement.
4.3 Mediation. If a dispute arises out of or related to Employee's
employment with Employer, other than a dispute regarding Employee's obligations
under Articles 3 and 4.1 of this Agreement, and if the dispute cannot be settled
through direct discussions, then Employer and Employee agree to try to settle
the dispute in an amicable manner by confidential mediation before having
recourse to any other proceeding or forum.
4.4 Venue/Jurisdictions. This Agreement shall be governed by Texas law. No
conflict of laws analysis will be used to make any other law apply for any
reason. Any litigation that may be brought by either party involving the
enforcement of this Agreement or the rights, duties, or obligations of this
Agreement, shall be brought exclusively in the State or federal courts sitting
in Houston, Xxxxxx County, Texas.
4.5 Assignment. This Agreement shall be binding upon and inure to the
benefit of Employer and any other person, association, or entity that may
acquire or succeed to all or substantially all of the business or assets of
Employer. Employer may assign this Agreement to any affiliate or other entity.
Employee's rights
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and obligations under this Agreement are personal, and they shall not be
assigned or transferred without Employer's prior written consent.
4.6 Other Agreements. Other agreements exist between Employer and Employee
relating to the employment relationship (e.g., obligations contained in Enron's
Code of Ethics booklet and benefit plans). Company incorporates by reference all
of the terms of "Type B" Agreement and/or the Confidentiality and Intellectual
Property Rights Agreement dated February 18, 1985 between Employee and Employer.
This Agreement replaces and merges other, previous agreements, and constitutes
the entire agreement of the parties with respect to such subject matters. No
representation, inducement, promise, or agreement has been made by either party
with respect to such subject matters, and no agreement, statement, or promise
relating to the employment of Employee by Employer 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.
4.7 Invalidity. Should any provision(s) in this Agreement be held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall be unaffected and shall continue in full force and
effect, and the invalid, void or unenforceable provision(s) shall be deemed not
to be part of this Agreement.
IN WITNESS WHEREOF, Employer and Employee have executed this Agreement in
multiple originals to be effective on the first date of the Term.
NORTHERN PLAINS NATURAL GAS XXXXX X. XXXXXX
By: /s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
------------------------------- -----------------------------------------
Name: Xxxxxxx Xxxxxx This 22nd day of April, 2002
------------------------- ---- -----
Title: Chairman of the Board
------------------------
This 23rd day of April, 2002
---- -----------
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EXHIBIT "A" TO
EMPLOYMENT AGREEMENT BETWEEN
NORTHERN PLAINS NATURAL GAS AND XXXXX X. XXXXXX
Employee Name: Xxxxx X. Xxxxxx
Term: April 1, 2002 through March 31, 2003
Position: Vice President Finance
Location: Omaha, Nebraska
Monthly Base Salary: Employee's Monthly Base Salary shall be $13,306.00.
Payment is to be made in semi-monthly installments subject
to applicable withholding of taxes as required by law.
Performance Bonus: Employee may be eligible to participate in the annual
incentive plan ("Plan") of Employer. All Performance
Bonuses are discretionary and shall be paid in accordance
with the terms and provisions of the Plan and other
criteria established by Employer.
Stay Bonus: Employee shall receive a Stay Bonus in the amount of
$95,803.00. The Stay Bonus Amount shall be paid to
Employee as follows:
o 25% of the Stay Bonus Amount will be paid to Employee
on or about 6 months following implementation of the
Employment Agreement;
o The remaining 75% of the Stay Bonus Amount will be paid
to the Employee upon completion of the Term of this
Agreement.
In the event Employee's termination is due to Employee's
death or disability prior to the expiration term of this
Agreement, Employee or Employee's heirs shall be eligible
to receive 100% of any Stay Bonus Amount outstanding. The
outstanding Stay Bonus Amount is payable in a lump sum to
Employee within thirty (30) days of Employee's termination
date due to Employee's death or disability.
In the event Employee is Involuntarily Terminated by
Employer, for reasons other than "cause", Employee shall
be eligible to receive 100% of any Stay Bonus amount
outstanding. However, this accelerated Stay Bonus payment
shall represent an offset against any payments made under
Section 2.1(b).
Any unpaid Stay Bonus payments are forfeited upon
voluntary termination or termination for "cause", or if
Employee retires or voluntarily ceases to report to active
employment (unless the law otherwise requires payment).
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Xxxxxxxxxx Xxxxxx xx Xxxxxx Xxxxxx of America
Responsibility:
Period of Post-Employment Employee's obligations in paragraph 3.4,
Non-Compete Obligations Non-Competition Obligations and paragraph 3.5,
and Non-Solicitation of Non-Solicitation of Customers, shall extend for
Customers six (6) months following Employee's Voluntary
Termination, Involuntary Termination due to
failure to meet performance obligations or
termination for Cause, if such termination occurs
during the Agreement Term, but shall not extend
beyond the Agreement Term. In the event of an
Involuntary Termination due to business
reorganization during the Agreement Term, employee
has no non-compete or non-solicitation of
customers' requirement that needs to be fulfilled.
NORTHERN PLAINS NATURAL GAS XXXXX X. XXXXXX
By: /s/Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
------------------------------- ------------------------------------
Name: Xxxxxxx Xxxxxx This 22nd day of April, 2002
------------------------- ---- -----
Title: Chairman of the Board
------------------------
This 23rd day of April, 2002
---- -----
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