EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement ('Agreement'), including the
attached Exhibit 'A' and Exhibit 'B', are entered into
between Enron International Inc., ('Employer'), a Delaware
corporation and subsidiary of Enron Corp. ('Enron'), having
offices at 1400 Smith Street, Houston, Texas 77573, and
Rodney L. Gray, an individual currently residing at 4146
Marquette, Houston, Texas 77005 ('Employee'), to be
effective as of July 1, 1993 (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 the employ of 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 and continuing until the date set forth on
Exhibit 'A' (the 'Term'), subject to the terms and
conditions of this Agreement.
1.2. Employee initially shall be employed in the
position set forth on Exhibit 'A'. Employer may
subsequently assign Employee to a different position or
modify Employee's duties and responsibilities. Moreover,
Employer may assign this Agreement and Employee's employment
to Enron or any affiliates of Enron. 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 Enron, or requires any significant portion of Employee's
business time.
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. It is agreed that any direct
or indirect interest in, connection with, or benefit from
any outside activities, particularly commercial activities,
which interest might in any way adversely affect Employer,
Enron, or any of their affiliates, involves a possible
conflict of interest. In keeping with Employee's fiduciary
duties to Employer, Employee agrees that Employee shall not
knowingly become involved in a conflict of interest with
Employer, Enron, or their affiliates, or upon discovery
thereof, allow such a conflict to continue. Moreover,
Employee agrees that Employee shall disclose to Employer's
General Counsel any facts which might involve such a
conflict of interest that has not been approved by
Employer's President.
1.5. Employer and Employee recognize that it is impos-
sible to provide an exhaustive list of actions or interests
which constitute a 'conflict of interest.' Moreover,
Employer and Employee recognize there are many borderline
situations. In some instances, full disclosure of facts by
the Employee to Employer's General Counsel may be all that
is necessary to enable Employer, Enron, or their affiliates
to protect its interests. In others, if no improper
motivation appears to exist and the interests of Employer,
Enron, or their affiliates have not suffered, prompt
elimination of the outside interest will suffice. In still
others, it may be necessary for Employer to terminate the
employment relationship. Employer and Employee agree that
Employer's determination as to whether a conflict of
interest exists shall be conclusive. Employer reserves the
right to take such action as, in its judgment, will end the
conflict.
ARTICLE 2: COMPENSATION AND BENEFITS:
2.1. Employee's base salary during the Term shall be
not less than the amount set forth under the heading 'Base
Salary' on Exhibit 'A', which shall be paid in semimonthly
installments in accordance with Employer's standard payroll
practice.
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, health, and dental care, life
insurance, disability protection, and pension plans. Except
that Employee shall not be entitled to any annual bonus,
unless approved by the Compensation Committee of the Board
of Directors of Enron Corp. in its sole discretion. 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.
2.3. 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
are similarly applicable to covered employees generally.
Moreover, unless specifically provided for in a written plan
document adopted by the Board of Directors of either
Employer or Enron, 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.
2.4. Employer may withhold from any compensation,
benefits, or amounts payable under this Agreement all
federal, state, city, or other taxes as may be required
pursuant to any law or governmental regulation or ruling.
2.5. Employee has received a grant of an Option (which
does not constitute an Incentive Stock Option), under and
pursuant to the terms and provisions of the Enron Corp. 1991
Stock Plan, as made by such Plan's Committee at its meeting
on June 21, 1993, to purchase Sixty-Four Thousand (64,000)
shares of common stock of Company. Such grant was approved
and made in the form of a Non-Qualified Stock Option
Agreement which is attached hereto as Exhibit 'B'.
2.6. On the condition that Employee is in the position
set forth on Exhibit 'A' hereto on the last day of the
calendar year for which a grant, as provided in the granting
schedule in paragraph A below, is scheduled to be made the
following February, Employee shall be entitled to receive
under and pursuant to the terms and provisions of the 1991
Enron Corp. Stock Plan, a grant of shares of Restricted
Stock in amounts designated in paragraph A below if, and
only if, Enron International Inc. meets the earnings target
set for it by the Board of Directors of Enron Corp., in its
sole discretion, for such year (the 'Earnings Target'). The
Restricted Stock will be granted as follows:
A. Granting Schedule. Restricted Stock will be
granted pursuant to written grant agreements on
the condition that Enron International Inc. meets
the Earnings Target for the previous calendar year
according to the following granting schedule:
February, 1994 - 4,700 shares, if 1993 Earnings Target met.
February, 1995 - 9,400 shares, if 1994 Earnings Target met.
February, 1996 - 9,400 shares, if 1995 Earnings Target met.
December 30, 1996 - 9,400 shares, if 1996 Earnings Target met.
The number of shares of Restricted Stock granted
according to this granting schedule shall be
adjusted for splits or consolidations occurring
after July 1, 1993.
B. Carry Back of Earnings Target Overages. In the
event that a grant is not made because Enron
International Inc. failed to meet the previous
year's Earnings Target, the grant will be made in
a following February if the Earnings Target for
that year is exceeded by at least the amount of
the underage from the previous year. Earnings
must be applied to the current year's Earnings
Target first, before being carried back to meet a
previous year's Earnings Target. For example, if
the Earnings Target for 1994 is $100 million and
actual earnings for 1994 are $80 million (under by
$20 million), no grant will be made in February,
1995. However, if the Earnings Target for 1995 is
$120 million and actual earnings for 1995 are $140
million (Earnings Target for 1995 exceeded by $20
million) then a grant for 18,800 shares (9,400 for
1995 earnings and 9,400 carried forward from 1994)
will be made in February, 1996. Multiple future
years' actual earnings in excess of Earnings
Targets may be used to make up for a previous
year's missed Earnings Target. However, actual
earnings in excess of an Earnings Target cannot be
banked for potential future missed Earnings
Targets.
C. Vesting. All shares granted pursuant to the
granting schedule will vest on December 31, 1996.
D. Value of Stock at Vesting. If on the vesting
date of December 31, 1996, the value of the shares
of Restricted Stock, including accrued dividends,
granted to Employee under this Section 2.6 is less
than $3,000,000, then the difference between the
actual value of the shares of Restricted Stock
including accrued dividends and Three Million
Dollars ($3,000,000.00) will be paid by Company
(the 'Payment'), provided, however, if for any
reason Employee has not been granted a total
32,900 shares, as adjusted for stock splits or
consolidations, of Restricted Stock pursuant to
the granting schedule, then the amount of the
Payment will be decreased to reflect the
percentage (rounded to 3 decimal points) of 32,900
shares, as adjusted for stock splits or
consolidations, which the actual number of shares
of Restricted Stock granted to Employee
represents. For example, if Employee is granted a
total of 14,100 shares of Restricted Stock, and on
the vesting date said shares and accrued dividends
are worth One Million Dollars ($1,000,000) then
Employee would receive a Payment in the amount of
Two Hundred Eighty Seven Thousand and No/100
Dollars ($287,000.00). [Example Calculation:
($3,000,000.00 x 14,100/32,900) - $1,000,000.00 =
$287,000.00]. Payment will be made either in cash
or Enron common stock ('Enron Stock'; such stock
will be issued pursuant to the terms described in
Section 2.7), at Company's option.
2.7. Stock issued as the Payment referenced at Section
2.6D above, if any, will be issued according to the
following terms and conditions:
A. Employee Representations. With respect to
Employee's agreement to accept and receive shares of
Enron Stock as provided for in Section 2.6D above,
Employee represents and warrants that:
(i) Employee is an 'accredited investor' within
the meaning of Rule 501 of the General Rules and
Regulations under the Securities Act of 1933, as
amended;
(ii) Employee has sufficient knowledge and
experience in financial and investment matters so
that Employee is able to evaluate the risks and
merits of Employee's investment in Enron Stock and
is able financially to bear the economic risks
thereof;
(iii) Employee will acquire the shares of Enron
Stock for Employee's own account and not with a
view to or for sale in connection with any
distribution thereof in violation of any
securities laws, and Employee has no present or
future intention of selling or distributing any of
such securities in violation of any securities
laws; and
(iv) Employee is familiar with the business and
financial condition, properties and operations and
prospects of Enron, has received copies of Enron's
1992 Annual Report to Stockholders, Annual Report
on Form 10-K for the year ended December 31, 1992
and Proxy Statement with respect to the 1993
Annual Meeting of Stockholders, and has read
carefully and understands the information
contained in such documents, and has been afforded
the opportunity to ask questions and receive
answers from Enron's officers and directors
concerning the business and financial condition,
properties, operations and prospects of Enron, and
has asked such questions as Employee desires to
ask and all such questions have been answered to
Employee's full satisfaction.
B. Enron Representations. Enron hereby represents to
Employee that:
(i) the shares of Enron Stock which may be issued
to Employee hereunder, if and when issued, will be
validly authorized and duly issued shares of Enron
and will be fully paid and nonassessable and upon
issuance will be free and clear of any pledge,
lien, charge, encumbrance or other adverse claim;
and
(ii) Enron has the requisite power and authority
to execute this Agreement and to enter into the
transactions contemplated hereby.
C. Stock Certificate Legend. Enron may, at its
option, cause to conspicuously appear on all stock
certificates representing Enron Stock which are issued
and delivered to Employee pursuant to the provisions of
this Section 2.7, the legend set forth below, the
provisions of which are agreed to by Employee:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE 'SECURITIES
ACT'), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
(I) SUCH OFFERING AND SALE OR OTHER TRANSFER HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT, OR (II) THE HOLDER
HEREOF PROVIDES THE CORPORATION WITH (A) A WRITTEN
OPINION OF LEGAL COUNSEL, WHICH COUNSEL AND OPINION (IN
FORM AND SUBSTANCE) SHALL BE REASONABLY SATISFACTORY TO
THE CORPORATION, TO THE EFFECT THAT THE PROPOSED
TRANSFER OF SUCH SECURITY MAY BE EFFECTED WITHOUT
REGISTRATION UNDER THE SECURITIES ACT, OR (B) SUCH
OTHER EVIDENCE AS MAY BE REASONABLY SATISFACTORY TO THE
CORPORATION THAT THE PROPOSED TRANSFER OF THIS SECURITY
MAY BE EFFECTED WITHOUT REGISTRATION UNDER THE
SECURITIES ACT.
D. Employee's Put Rights. Employee shall have the
following put rights ('Put Rights') for the shares of
Enron Stock (the 'Shares') which are issued to Employee
under this Agreement unless otherwise provided in the
following paragraph E, or unless there is an effective
registration statement covering such Shares, or unless
Employee is entitled to sell such Shares pursuant to
Rule 144 under the Securities Act of 1933, as amended.
At any time after June 30, 1997, and from time to time
when Employee has Put Rights, at Employee's sole
option, Enron agrees, upon receipt of a written request
of Employee, together with duly endorsed stock
certificates representing the Shares to be repurchased
by Enron, for the account of and charge to Employer, to
repurchase any or all of the Shares (provided that
Employee must tender and make such a request for at
least the lesser of (i) 3,000 of the Shares or (ii) all
of the Shares then held by Employee) at a purchase
price per share equal to the closing sales price on the
New York Stock Exchange for Enron Stock on the date
such written request and such stock certificates are
received by Enron. Enron shall pay the purchase price
for such Shares to Employee within five (5) business
days after the date Enron receives the written request
and the duly endorsed stock certificates representing
the Shares to be repurchased by Enron.
E. Registration of Enron Stock. Enron may, at its
option, file and cause to become effective with the
Securities and Exchange Commission one or more
registration statements under the Securities Act of
1933 relating to the offering and sale of the Shares by
Employee from time to time on the New York Stock
Exchange at prevailing market prices. In the event
Enron elects to effect such registration, Employee,
with respect to Employee's Shares covered by the
registration statement or statements, shall have no Put
Rights following the effectiveness of such registration
statement or statements if (a) Enron has filed with the
New York Stock Exchange the number of copies of the
final prospectus or final prospectuses included therein
required by the New York Stock Exchange rules to permit
such offering and sale to occur and (b) such prospectus
or prospectuses contain such information as shall
permit such offering and sale to occur. Employee shall
have no Put Rights with respect to Shares that Employee
elects not to be offered or sold pursuant to such
registration statement. In the event the information
in any such registration statement or prospectus is
required to be revised or updated in order to permit
such offering and sale to occur, Employee shall have no
Put Rights during the thirty day period following the
first day on which such registration statement or
prospectus is required to be revised or updated in
order to permit such offering and sale to occur.
Employee agrees that, at the time of any sale pursuant
to any such registration statement, Employee will
obtain from Enron confirmation that the prospectus or
prospectuses on file with the New York Stock Exchange
contain such information as shall permit such offering
and sale to occur. Enron will bear all expenses
incurred by it in connection with the filing of the
registration statements pursuant to this paragraph E
(other than underwriting discounts and commissions and
brokerage commissions and fees and expenses, if any,
payable with respect to Shares sold by Employee and
fees and expenses of counsel for Employee).
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 good faith
determination by the Employer's
management committee (or, if there is no
management committee, the highest
applicable level of management) of
Employer 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 1.5-1.6 for which
Employer makes a 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 management committee (or, if there
is no management committee, the highest
applicable level of management) of
Employer for determination. If Employee
disagrees with the decision reached by
Employer, the dispute will be limited to
whether the management committee (or, if
there is no management committee, the
highest applicable level of management)
of Employer reached its decision in good
faith;
(ii) for any other reason whatsoever, with or
without cause, in the sole discretion of
the management committee (or, if there
is no management committee, the highest
applicable level of management) of
Employer;
(iii) upon Employee's death; or
(iv) upon Employee's becoming incapacitated
by accident, sickness, or other circum-
stance which renders him or her mentally
or physically incapable of performing
the duties and services required of
Employee.
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 'Involun-
tary 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 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 7.5, 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 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 through the date of
such termination, but Employee shall not be entitled to any
individual bonuses or individual 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 through the date of
such termination, but Employee shall not be entitled to any
individual bonuses or individual 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, in
consideration of Employee's continuing obligations hereunder
after such termination (including, without limitation,
Employee's non-competition obligations), to receive the
compensation specified in Section 2.1 and an amount equal to
twenty-five percent (25%) of the amount specified in Section
2.1 as if Employee's employment (which shall cease on the
date of such Involuntary Termination) had continued for the
full Term of this Agreement. 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, Enron, or their 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 covenants not to sue or lodge any claim, demand or
cause of action against Employer for any sums for Involun-
tary Termination other than those sums specified in this
Section 3.5. If Employee breaches this covenant, Employer
shall be entitled to recover from Employee all sums expended
by Employer (including costs and attorneys fees) in
connection with such suit, claim, demand or cause of action.
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 through the date of such termination, but
Employee's heirs, administrators, or legatees shall not be
entitled to any individual bonuses or individual incentive
compensation not yet paid to Employee at the date of such
termination.
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 through the date of
such termination, but Employee shall not be entitled to any
individual bonuses or individual incentive compensation not
yet paid to Employee at the date of such termination.
3.8. In all cases, the compensation and benefits
payable to Employee under 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,
Enron, or its affiliates.
3.9. Termination 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.
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 specified on Exhibit 'A,' such
employment shall convert to a month-to-month relationship
terminable at any time by either Employer or Employee for
any reason whatsoever, with or without cause. Upon such
termination of the employment relationship by either
Employer or Employee for any reason whatsoever, all future
compensation to which Employee is entitled and all future
benefits for which Employee is eligible shall cease and
terminate. Employee shall be entitled to pro rata salary
through the date of such termination, but Employee shall not
be entitled to any individual bonuses or individual
incentive compensation not yet paid at the date of such
termination.
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 Employ-
ee, 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, evalua-
tions, 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, Enron, and their affiliates is highly competitive
and that their strategies, methods, books, records, and
documents, their technical information concerning their
products, equipment, services, and processes, procurement
procedures and pricing techniques, the names of and other
information (such as credit and financial data) concerning
their customers and business affiliates, all comprise
confidential business information and trade secrets which
are valuable, special, and unique assets which Employer,
Enron, or their affiliates use in their business to obtain a
competitive advantage over their competitors. Employee
further acknowledges that protection of such confidential
business information and trade secrets against unauthorized
disclosure and use is of critical importance to Empl