{"id":39130,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-enron-corp-enron-capital-trade2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-enron-corp-enron-capital-trade2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-enron-corp-enron-capital-trade2.html","title":{"rendered":"Employment Agreement &#8211; Enron Corp., Enron Capital Trade &#038; Resources Corp. and Jeffrey K. Skilling"},"content":{"rendered":"<pre>                    EMPLOYMENT AGREEMENT\n\n     This Employment Agreement ('Agreement') is entered into\nbetween Enron Capital Trade &amp; Resources Corp., a Delaware\ncorporation and subsidiary of Enron Corp. ('Enron'), having\noffices at 1400 Smith Street, Houston, Texas 77573\n('Employer'), and Jeffrey K. Skilling, an individual\ncurrently residing at 2238 Albans Road, Houston, Texas 77005\n('Employee'), to be effective as of 1st day of January, 1996\n(the 'Effective Date').\n\n     Employer presently employs Employee pursuant to an\nEmployment Agreement dated August 1, 1990 entered into\nbetween Enron Finance Corp. and Employee. Employer is\ndesirous of continuing to employ Employee pursuant to the\nterms and conditions and for the consideration set forth in\nthis Agreement, and Employee is desirous of continuing in\nthe employ of Employer pursuant to such terms and conditions\nand for such consideration.  As such, this Agreement shall\ncancel and supersede Employee's existing August 1, 1990\nAgreement.\n\n     Employee also has been granted rights under Employer's\nexisting Enron Capital Trade &amp; Resources Corp. Second\nAmended and Restated Compensation Plan (the 'Existing\nCompensation Plan').  This Agreement does not cancel or\nsupersede such rights, but it is intended that in the future\nEmployer shall create a new Retail Phantom Equity Plan\npursuant to which Employee shall be granted the interest\nspecified herein and that Employee's rights under the\nExisting Compensation Plan shall be subject to a separate\nfuture waiver and consent agreement.\n\n     Now, therefore, for and in consideration of the mutual\npromises, covenants, and obligations contained herein,\nEmployer and Employee agree as follows:\n\nArticle 1:  Employment and Duties:\n\n     1.1. The term of employment under this Agreement shall\nbe for five years, from January 1, 1996 through December 31,\n2000 (the 'Term'). Employer agrees to employ Employee, and\nEmployee agrees to be employed by Employer, beginning as of\nJanuary 1, 1996, and continuing through December 31, 2000,\nsubject to the terms and conditions of this Agreement.\n\n     1.2. Employee initially shall be employed in the\nposition of Chairman and Chief Executive Officer of\nEmployer.  Employer may subsequently assign Employee to a\ndifferent position or modify Employee's duties and\nresponsibilities.  Moreover, Employer may assign this\nAgreement and Employee's employment to Enron or any\naffiliates of Enron.  It is agreed, however, that Employee\nshall not be permanently relocated to a city more than 50\nmiles from the Houston area and shall not be demoted from\nthe position of Chairman and Chief Executive Officer of\nEmployer.  Employee agrees to serve in the assigned position\nand to perform diligently and to the best of Employee's\nabilities the duties and services appertaining to such\nposition as determined by Employer, as well as such\nadditional or different duties and services appropriate to\nsuch position which Employee from time to time may be\nreasonably directed to perform by Employer.  Employee shall\nat all times comply with and be subject to such policies and\nprocedures as Employer may establish from time to time.\n\n     1.3. Employee shall, during the period of Employee's\nemployment by Employer, devote Employee's full business\ntime, energy, and best efforts to the business and affairs\nof Employer.  Employee may not engage, directly or\nindirectly, in any other business, investment, or activity\nthat interferes with Employee's performance of Employee's\nduties hereunder, is contrary to the interests of Employer\nor Enron, or requires any significant portion of Employee's\nbusiness time.\n\n     1.4. Employee acknowledges and agrees that Employee\nowes a fiduciary duty of loyalty, fidelity and allegiance to\nact at all times in the best interests of the Employer and\nto do no act which would injure Employer's business, its\ninterests, or its reputation.  It is agreed that any direct\nor indirect interest in, connection with, or benefit from\nany outside activities, particularly commercial activities,\nwhich interest might in any way adversely affect Employer,\nEnron, or any of their affiliates, involves a possible\nconflict of interest.  In keeping with Employee's fiduciary\nduties to Employer, Employee agrees that Employee shall not\nknowingly become involved in a conflict of interest with\nEmployer, Enron, or their affiliates, or upon discovery\nthereof, allow such a conflict to continue.  Moreover,\nEmployee agrees that Employee shall disclose to or discuss\nwith Enron's General Counsel any facts or circumstances\nwhich might involve such a conflict of interest that has not\nbeen discussed or approved by Enron's Office of the\nChairman.\n\n     1.5. Employer and Employee recognize that it is\nimpossible to provide an exhaustive list of actions or\ninterests which constitute a 'conflict of interest.'\nMoreover, Employer and Employee recognize there are many\nborderline situations.  In some instances, full disclosure\nof facts by the Employee to Enron's General Counsel may be\nall that is necessary to enable Employer, Enron, or their\naffiliates to protect its interests.  In others, if no\nimproper motivation appears to exist and the interests of\nEmployer, Enron, or their affiliates have not suffered,\nprompt elimination of the outside interest will suffice.  In\nstill others, it may be necessary for Employer to terminate\nthe employment relationship.  Employer and Employee agree\nthat Employer's determination as to whether a conflict of\ninterest exists shall be conclusive.  Employer reserves the\nright to take such action as, in its judgment, will end the\nconflict.  Employer's termination of the employment\nrelationship solely because Employee violates this Section\n1.5 shall be an Involuntary Termination, and subject to the\nprovisions of Section 3.5 hereof.\n\nArticle 2:  Compensation and Benefits:\n\n     2.1. Employee's initial monthly base salary during the\nTerm shall be Thirty Three Thousand Three Hundred and Thirty\nThree Dollars and 33\/100 ($33,333.33), which shall be paid\nin semi-monthly installments in accordance with Employer's\nstandard payroll practice.  Employee's base salary shall be\nreviewed annually and may be changed annually and from time\nto time (but not less than his initial base salary) by\nEmployer in its discretion and, after any such change,\nEmployee's new level of base monthly salary shall be\nEmployee's base monthly salary for purposes of this\nAgreement until the effective date of any subsequent change.\n\n     2.2. Employee shall be eligible for an annual bonus in\naccordance with the terms of Enron's Annual Incentive Plan\nor any appropriate replacement bonus plan of Enron or\nEmployer, which bonus may be paid in any combination of\ncash, stock, or stock options.  Whether Employee is entitled\nto a bonus, the amount of the bonus, and the manner of\npayment of the bonus are within the sole discretion of the\nOffice of the Chairman of Enron.\n\n     2.3. (a)  It is intended that Employer shall adopt a\nnew Retail Phantom Equity Plan (referred to herein as the\n'Plan') providing to certain employees additional economic\nbenefits with respect to certain aspects of Employer's\nbusiness, pursuant to which it is intended that Employer and\nEmployee shall execute an Award Agreement.  Employee shall\nhave no rights under the Plan unless and until Employer and\nEmployee execute a written Award Agreement pursuant to the\nPlan, at which time the Plan and the Award Agreement shall\nbecome effective as to Employee.  Employer and Employee\nshall enter into a separate written Award Agreement pursuant\nto which Employee shall be granted a five (5%) percent full\nvalue grant under the Plan.  The written Award Agreement\nshall provide that twenty-five (25%) percent of such full\nvalue grant shall, subject to the terms and conditions of\nthe Plan and the Award Agreement, vest on January 1, 1997,\nand that an additional twenty-five (25%) percent of the full\nvalue grant shall vest on each of January 1, 1998, January\n1, 1999, and January 1, 2000.  Provided, however, that the\nentirety of such full value grant shall vest immediately\nupon the employment relationship being Involuntarily\nTerminated by Employer pursuant to Section 3.1(ii) or by\nEmployee pursuant to Section 3.2(i) or (ii) and Employer\nshall at that time buy-out Employee's vested interest in the\nPlan. Provided further, however, it is agreed that if the\nemployment relationship has not been terminated Employer\nshall have the option to buy-out one-fifth of such grant\n(i.e., one percentage point of the five percentage points\ngranted to Employee) exercisable during the thirty-one day\nperiod of time from January 1, 1998 to January 31, 1998 by\nproviding to Employee a written notice during such thirty-\none day period of time.  The one percentage point shall be\nacquired pro rata from Employee's vested and non-vested\ninterests, and, if Employer exercises such buy-out option,\nthereafter the twenty-five (25%) percent that vests on each\nof January 1, 1999 and January 1, 2000 shall apply against\nthe reduced percent of the full value grant, that is, 25% of\na four (4%) full value grant.  The Plan or Employee's award\nagreement under the Plan shall provide that Employer's buy-\nout price for such one percentage point shall be as follows:\nIf Employer has created a subsidiary corporation and\ntransferred to such subsidiary the retail aspects of\nEmployer's business and an initial public offering ('IPO')\nof the common stock of such retail subsidiary has occurred\nprior to January 1, 1998, the buy-out price shall be based\nupon the average trading price of the common stock of such\nretail subsidiary of Employer during all trading days [but\nnot to exceed 30 trading days] preceding January 1, 1998,\nless the value of Access Energy and Enron Energy Concepts,\nL.P. as of year end 1995.  If no such IPO occurred prior to\nJanuary 1, 1998, the buy-out price shall be as determined by\nan investment banker under the terms and conditions of the\nPlan, which shall provide that the buy-out price shall be\nthe then current value of the retail subsidiary less the\nvalue of Access Energy and Enron Energy Concepts, L.P. as of\nyear end 1995.  The Plan or Employee's award agreement under\nthe Plan shall provide that if Employee disagrees with the\ndetermination of the investment banker, Employee shall have\nthe right to submit the issue of buy-out price to\narbitration in accordance with the terms and conditions of\nthe agreement to arbitrate contained in the Plan or\nEmployee's award agreement under the Plan.  The purchase\nprice for the buy-out shall be paid by Employer to Employee\nas soon as reasonably possible.  The purchase price for the\nbuy-out may be paid in cash, shares of Enron's stock, or\nshares of common stock of the IPO company, or combination\nthereof, at Employer's option.\n\n     (b)  The Plan or Employee's award agreement under the\nPlan shall provide that Employer's retail business shall\ninclude the direct sales of gas and electricity to small\nindustrial, commercial, and residential customers and all\nfuture business activities related thereto as well as the\nbusiness activities of Access Energy and Enron Energy\nConcepts, L.P.\n\n     (c)  The Plan or Employee's award agreement under the\nPlan shall specify the buy-out process and the buy-out price\nfor any other right [other than Employer's right under the\noption specified in Section 2.3(a)] or obligation on the\npart of Employer to buy-out Employee's interest in the Plan.\nThe Plan, as modified by Employee's award under the Plan,\nshall be modeled after the rights and obligations of the\nEnron Gas Services Group and Employee under the Enron Gas\nServices Group Phantom Equity Plan signed by Employee on\nNovember 8, 1991, provided, however, that the valuation\nprocess shall in all cases deduct the value of Access Energy\nand Enron Energy Concepts, L.P. as of year end 1995.\n\n     2.4. On August 29, 1994, Enron and Employee entered\ninto an agreement pursuant to which Employee was granted the\noption (the 'Option') to acquire 500,000 shares of Enron\ncommon stock ('Enron Stock') subject to the terms and\nconditions of the Enron Corp. 1991 Stock Plan (As Amended\nand Restated Effective May 3, 1994).  The exercise price per\nshare of the Option was $30.25. The First Amendment to the\nAugust 29, 1994 agreement is attached hereto as Exhibit 'A.'\n\n     2.5. The Office of the Chairman of Enron and Employee\nshall endeavor in good faith to agree upon an enhanced\nposition and job title for Employee that is commensurate\nwith and accurately reflects Employee's job responsibilities\nfor Employer or its affiliates.  If a mutually satisfactory\nenhanced position and job title have not been agreed to by\nEmployee and the Office of the Chairman of Enron by February\n1, 1997, then Employee shall be entitled to a payment equal\nto two and one-half (2.5) times his annualized base monthly\nsalary then in effect on such date pursuant to Section 2.1.\n\n     2.6. While employed by Employer during the Term of this\nAgreement, Employee shall also be allowed to participate, on\nthe same basis generally as other employees of Employer, in\nall general employee benefit plans and programs, including\nimprovements or modifications of the same, which on the\neffective date or thereafter are made available by Employer\nto all or substantially all of Employer's employees.  Such\nbenefits, plans, and programs may include, without\nlimitation, medical, health, and dental care, life\ninsurance, disability protection, and pension plans.  Unless\nspecifically set out herein, nothing in this Agreement is to\nbe construed or interpreted to provide greater rights,\nparticipation, coverage, or benefits under such benefit\nplans or programs than provided to similarly situated\nemployees pursuant to the terms and conditions of such\nbenefit plans and programs.\n\n     2.7. Employer shall not by reason of this Article 2 be\nobligated to institute, maintain, or refrain from changing,\namending, or discontinuing, any such incentive compensation\nor employee benefit program or plan, so long as such actions\nare similarly applicable to covered employees generally.\nMoreover, unless specifically provided for in a written plan\ndocument adopted by the Board of Directors of either\nEmployer or Enron, none of the benefits or arrangements\ndescribed in this Article 2 shall be secured or funded in\nany way, and each shall instead constitute an unfunded and\nunsecured promise to pay money in the future exclusively\nfrom the general assets of Employer.\n\n     2.8. Employer may withhold from any compensation,\nbenefits, or amounts payable under this Agreement all\nfederal, state, city, or other taxes as may be required\npursuant to any law or governmental regulation or ruling.\n\nArticle 3: Termination Prior to Expiration of\n           Term and Effects of such Termination:\n\n     3.1. Notwithstanding any other provisions of this\nAgreement, Employer shall have the right to terminate\nEmployee's employment under this Agreement at any time prior\nto the expiration of the Term for any of the following\nreasons:\n\n     (i)  For 'cause' upon the determination by Employer's\n          Board of Directors or Enron's management committee\n          (or, if there is no Enron management committee,\n          the highest applicable level of Enron management)\n          that 'cause' exists for the termination of the\n          employment relationship.  As used in this Section\n          3.1(i), the term 'cause' shall mean [a] Employee\n          has been convicted of a felony (which, through\n          lapse of time or otherwise, is not subject to\n          appeal); [b] Employee has willfully refused\n          without proper legal reason to perform the duties\n          and responsibilities required of Employee under\n          this Agreement which remains uncorrected for\n          thirty (30) days following written notice to\n          Employee by Employer of such breach; [c] Employee\n          has willfully engaged in conduct that Employee\n          knows or should know is materially injurious to\n          Employer, Enron, or any of their respective\n          subsidiaries; or [d] Employee violates the Foreign\n          Corrupt Practices Act or other applicable United\n          States law as proscribed by Section 4.1.  It is\n          expressly acknowledged and agreed that the\n          decision as to whether 'cause' exists for\n          termination of the employment relationship by\n          Employer is delegated to Employer's Board of\n          Directors or Enron's management committee (or, if\n          there is no Enron management committee, the\n          highest applicable level of Enron management) for\n          determination. If Employee disagrees with the\n          decision reached by Employer's Board of Directors\n          or Enron's management committee (or, if there is\n          no Enron management committee, the highest\n          applicable level of Enron management), the dispute\n          will be limited to whether Employer's Board of\n          Directors or Enron's management committee (or, if\n          there is no Enron management committee, the\n          highest applicable level of Enron management)\n          reached its decision in good faith; or\n\n     (ii) for any other reason whatsoever, with or without\n          cause, in the sole discretion of Employer's Board\n          of Directors or Enron's management committee (or,\n          if there is no Enron management committee, the\n          highest applicable level of Enron management); or\n\n     (iii) upon Employee's death; or\n\n     (iv) upon Employee's becoming disabled so as to entitle\n          him to benefits under Enron's long-term disability\n          plan.\n\nThe termination of Employee's employment by Employer prior\nto the expiration of the Term shall constitute a\n'Termination for Cause' if made pursuant to Section 3.1(i);\nthe effect of such termination is specified in Section 3.4.\nThe termination of Employee's employment by Employer prior\nto the expiration of the Term shall constitute an\n'Involuntary Termination' if made pursuant to Section\n3.1(ii); the effect of such termination is specified in\nSection 3.5.  The effect of the employment relationship\nbeing terminated pursuant to Section 3.1(iii) as a result of\nEmployee's death is specified in Section 3.6.  The effect of\nthe employment relationship being terminated pursuant to\nSection 3.1(iv) as a result of the Employee becoming\ndisabled is specified in Section 3.7.\n\n     3.2. Notwithstanding any other provisions of this\nAgreement, Employee shall have the right to terminate the\nemployment relationship under this Agreement at any time\nprior to the expiration of the Term of employment for any of\nthe following reasons:\n\n     (i)  Employee is required by Employer to be permanently\n          relocated to a city more than 50 miles from the\n          Houston area or is demoted from the position of\n          Chairman and Chief Executive Officer of Employer,\n          within sixty days after such relocation or\n          demotion Employee provides Employer with a written\n          notice that such relocation or demotion has\n          occurred and that Employee intends to terminate\n          the employment relationship under this provision,\n          and thereafter such relocation or demotion is not\n          corrected by Employer within thirty days.\n\n     (ii) any other material breach by Employer of any\n          material provision of this Agreement which remains\n          uncorrected for 30 days following written notice\n          of such breach by Employee to Employer; or\n\n     (iii) for any other reason whatsoever, in the\n           sole discretion of Employee.\n\nThe termination of Employee's employment by Employee prior\nto the expiration of the Term shall constitute an\n'Involuntary Termination' if made pursuant to Sections\n3.2(i) or 3.2(ii); the effect of such termination is\nspecified in Section 3.5.  The termination of Employee's\nemployment by Employee prior to the expiration of the Term\nshall constitute a 'Voluntary Termination' if made pursuant\nto Section 3.2(iii); the effect of such termination is\nspecified in Section 3.3.\n\n     3.3. Upon a 'Voluntary Termination' of the employment\nrelationship by Employee prior to expiration of the Term,\nall future compensation to which Employee is entitled and\nall future benefits for which Employee is eligible shall\ncease and terminate as of the date of termination.  Employee\nshall be entitled to pro rata salary through the date of\nsuch termination, but Employee shall not be entitled to any\nindividual bonuses or individual incentive compensation not\nyet paid at the date of such termination.  The Plan or\nEmployee's award agreement under the Plan shall provide that\nupon Voluntary Termination of the employment relationship by\nEmployee, Employee shall be entitled only to such percentage\nof the grant as had vested prior to such termination.\n\n     3.4. Upon a 'Termination for Cause' of the employment\nrelationship by Employer prior to expiration of the Term,\nall future compensation to which Employee is entitled and\nall future benefits for which Employee is eligible shall\ncease and terminate as of the date of termination.  Employee\nshall be entitled to pro rata salary through the date of\nsuch termination, but Employee shall not be entitled to any\nindividual bonuses or individual incentive compensation not\nyet paid at the date of such termination.  The Plan or\nEmployee's award agreement under the Plan shall provide that\nupon termination of the employment relationship for Cause\nthen all of Employee's interests under the Plan shall be\ncanceled effective as of the date of such termination of\nemployment and no amounts (including without limitation Plan\npayments that may be payable on or before the date of such\ntermination of employment) shall be payable under the Plan\nto Employee from and after the date of such termination of\nemployment.\n\n     3.5. Upon an Involuntary Termination of the employment\nrelationship by either Employer or Employee prior to\nexpiration of the Term, Employee shall be entitled, in\nconsideration of Employee's continuing obligations hereunder\nafter such termination (including, without limitation,\nEmployee's non-competition obligations), to receive the\nfollowing as if Employee's employment (which shall cease on\nthe date of such Involuntary Termination) had continued for\nthe full Term of this Agreement: One Million Three Hundred\nThousand ($1,300,000) Dollars per calendar year (to be\nprorated in the calendar year in which the Involuntary\nTermination occurs if such termination occurs on any date\nother than January 1st), payable annually, monthly, or bi-\nweekly at the option of Employer.  Employee shall not be\nunder any duty or obligation to seek or accept other\nemployment following Involuntary Termination and, subject to\nEmployee complying with his continuing obligations\n(including non-competition obligations), the amounts due\nEmployee hereunder shall not be reduced or suspended if\nEmployee accepts subsequent employment.  Employee's rights\nunder this Section 3.5 are Employee's sole and exclusive\nrights against Employer, Enron, or their affiliates, and\nEmployer's sole and exclusive liability to Employee under\nthis Agreement, in contract, tort, or otherwise, for any\nInvoluntary Termination of the employment relationship.\nEmployee covenants not to sue or lodge any claim, demand, or\ncause of action against Employer based on Involuntary\nTermination for any monies other than those specified in\nthis Section 3.5.  If Employee breaches this covenant,\nEmployer shall be entitled to recover from Employee all sums\nexpended by Employer (including costs and attorneys fees) in\nconnection with such suit, claim, demand, or cause of\naction.  The Plan or Employee's award agreement under the\nPlan shall provide that upon Involuntary Termination of the\nemployment relationship by either Employer or Employee, the\nentirety of Employee's full value grant referenced in\nSection 2.3 shall vest immediately upon such termination of\nthe employment relationship and Employer shall at that time\nbuy-out Employee's vested interest in the Plan as specified\nin Plan or Employee's award agreement under the Plan.\n\n     3.6. Upon termination of the employment relationship as\na result of Employee's death, Employee's heirs,\nadministrators, or legatees shall be entitled to Employee's\npro rata salary through the date of such termination, but\nEmployee's heirs, administrators, or legatees shall not be\nentitled to any individual bonuses or individual incentive\ncompensation not yet paid to Employee at the date of such\ntermination.  The Plan or Employee's award agreement under\nthe Plan shall provide that upon Employee's death,\nEmployee's heirs, administrators, or legatees shall be\nentitled only to such percentage of the grant as had vested\nprior to Employee's death.\n\n     3.7. Upon termination of the employment relationship as\na result of Employee becoming disabled, Employee shall be\nentitled to his or her pro rata salary through the date of\nsuch termination and rights under any disability insurance\nor program then in effect, but Employee shall not be\nentitled to any individual bonuses or individual incentive\ncompensation not yet paid to Employee at the date of such\ntermination.  The Plan or Employee's award agreement under\nthe Plan shall provide that upon Employee becoming disabled,\nEmployee shall be entitled only to such percentage of the\ngrant as had vested prior to Employee's disability.\n\n     3.8. In all cases, the compensation and benefits\npayable to Employee under this Agreement upon termination of\nthe employment relationship shall be offset against any\namounts to which Employee may otherwise be entitled under\nany and all severance plans and policies of Employer, Enron,\nor its affiliates.\n\n     3.9. Termination of the employment relationship does\nnot terminate those obligations imposed by this Agreement\nwhich are continuing obligations, including, without\nlimitation, Employee's obligations under Articles 5 and 6.\n\n     3.10. Should Employee remain employed by Employer\nbeyond the expiration of the Term, such employment shall\nconvert to a month-to-month relationship terminable at any\ntime by either Employer or Employee for any reason\nwhatsoever, with or without cause.  Upon such termination of\nthe employment relationship by either Employer or Employee\nfor any reason whatsoever, Employee shall be entitled to pro\nrata salary through the date of such termination, but\nEmployee shall not be entitled to any individual bonuses or\nindividual incentive compensation not yet paid at the date\nof such termination and all other future compensation to\nwhich Employee is entitled and all future benefits for which\nEmployee is eligible shall cease and terminate.\n\n4.   United States Foreign Corrupt Practices Act and Other\n     Laws:\n\n     4.1. Employee shall at all times comply with United\nStates laws applicable to Employee's actions on behalf of\nEmployer, including specifically, without limitation, the\nUnited States Foreign Corrupt Practices Act, generally\ncodified in 15 USC 78 (FCPA), as the FCPA may hereafter be\namended, and\/or its successor statutes.  If Employee pleads\nguilty to or nolo contendere or admits civil or criminal\nliability under the FCPA, or if a court finds that Employee\nhas personal civil or criminal liability under the FCPA, or\nif a court finds that Employee personally committed an\naction resulting in any Enron entity having civil or\ncriminal liability or responsibility under the FCPA with\nknowledge of the activities giving rise to such liability or\nknowledge of facts from which Employee should have\nreasonably inferred the activities giving rise to liability\nhad occurred or were likely to occur, such action or finding\nshall constitute 'cause' for termination under this\nAgreement unless (i) such action or finding was based on the\nactivities of others and Employee had no personal\ninvolvement or knowledge of such activities, or\n(ii) Employer's Board of Directors or Enron's management\ncommittee (or, if there is no Enron management committee,\nthe highest applicable level of Enron management) determines\nthat the actions found to be in violation of the FCPA were\ntaken in good faith and in compliance with all applicable\npolicies of Employer and Enron.\n\nArticle 5:  Ownership and Protection of Information; Copyrights:\n\n     5.1. Employer shall disclose to Employee, or place\nEmployee in a position to have access to or develop, trade\nsecrets or confidential information of Employer, Enron, or\ntheir affiliates; and\/or  shall entrust Employee with\nbusiness opportunities of Employer, Enron, or their\naffiliates; and\/or shall place Employee in a position to\ndevelop business good will on behalf of Employer, Enron, or\ntheir affiliates.\n\n     5.2. All information, ideas, concepts, improvements,\ndiscoveries, and inventions, whether patentable or not,\nwhich are conceived, made, developed or acquired by\nEmployee, individually or in conjunction with others, during\nEmployee's employment by Employer (whether during business\nhours or otherwise and whether on Employer's premises or\notherwise) which relate to Employer's business, products or\nservices (including, without limitation, all such\ninformation relating to corporate opportunities, research,\nfinancial and sales data, pricing and trading terms,\nevaluations, opinions, interpretations, acquisition\nprospects, the identity of customers or their requirements,\nthe identity of key contacts within the customer's\norganizations or within the organization of acquisition\nprospects, or marketing and merchandising techniques,\nprospective names, and marks) shall be disclosed to Employer\nand are and shall be the sole and exclusive property of\nEmployer.  Moreover, all documents, drawings, memoranda,\nnotes, records, files, correspondence, manuals, models,\nspecifications, computer programs, E-mail, voice mail,\nelectronic databases, maps and all other writings or\nmaterials of any type embodying any of such information,\nideas, concepts, improvements, discoveries, and inventions\nare and shall be the sole and exclusive property of\nEmployer.\n\n     5.3. If, during Employee's employment by Employer,\nEmployee creates any original work of authorship fixed in\nany tangible medium of expression which is the subject\nmatter of copyright (such as videotapes, written\npresentations on acquisitions, computer programs, drawings,\nmaps, architectural renditions, models, manuals, brochures,\nor the like) relating to Employer's business, products, or\nservices, whether such work is created solely by Employee or\njointly with others (whether during business hours or\notherwise and whether on Employer's premises or otherwise),\nEmployee shall disclose such work to Employer.  Employer\nshall be deemed the author of such work if the work is\nprepared by Employee in the scope of his or her employment;\nor, if the work is not prepared by Employee within the scope\nof his or her employment but is specially ordered by\nEmployer as a contribution to a collective work, as a part\nof a motion picture or other audio-visual work, as a\ntranslation, as a supplementary work, as a compilation, or\nas an instructional text, then the work shall be considered\nto be work made for hire and Employer shall be the author of\nthe work.  If such work relating to Employer's business is\nneither prepared by the Employee within the scope of his or\nher employment nor a work specially ordered and is deemed to\nbe a work made for hire, then Employee hereby agrees to\nassign, and by these presents does assign, to Employer all\nof Employee's worldwide right, title, and interest in and to\nsuch work and all rights of copyright therein.  If such work\nhas no relation to Employer's business, then the title and\nrights of copyright related thereto will belong to Employee.\n\n     5.4. Employee acknowledges that the business of\nEmployer, Enron, and their affiliates is highly competitive\nand that their strategies, methods, books, records, and\ndocuments, their technical information concerning their\nproducts, equipment, services, and processes, procurement\nprocedures and pricing techniques, the names of and other\ninformation (such as credit and financial data) concerning\ntheir customers and business affiliates, all comprise\nconfidential business information and trade secrets which\nare valuable, special, and unique assets which Employer,\nEnron, or their affiliates use in their business to obtain a\ncompetitive advantage over their competitors.  Employee\nfurther acknowledges that protection of such confidential\nbusiness information and trade secrets against unauthorized\ndisclosure and use is of critical importance to Employer,\nEnron, and their affiliates in maintaining their competitive\nposition.  Employee hereby agrees that Employee will not, at\nany time during or after his or her employment by Employer,\nmake any unauthorized disclosure of any confidential\nbusiness information or trade secrets of Employer, Enron, or\ntheir affiliates, or make any use thereof, except in the\ncarrying out of his or her employment responsibilities\nhereunder; provided, however, that these restrictions shall\nnot apply to (i) such portions of any information treated as\nconfidential information or trade secrets by Employer, Enron\nor their affiliates which in fact become publicly available\nother than through the action of Employee, or (ii) such\nportions of information which, although it was treated as\nconfidential or a trade secret at the time of its creation,\nis no longer confidential or a trade secret at the time of\ntermination of Employee's employment by Employer, and\nprovided further that such restrictions shall not apply to\nthe portions of such information which is or becomes part of\nEmployee's general business knowledge or experience.  Enron\nand its affiliates shall be third party beneficiaries of\nEmployee's obligations under this Section.  As a result of\nEmployee's employment by Employer, Employee may also from\ntime to time have access to, or knowledge of, confidential\nbusiness information or trade secrets of third parties, such\nas customers, suppliers, partners, joint venturers, and the\nlike, of Employer, Enron, and their affiliates.  Employee\nalso agrees to preserve and protect the confidentiality of\nsuch third party confidential information and trade secrets\nto the same extent, and on the same basis, as Employer has\nagreed to protect and preserve such third party confidential\ninformation and trade secrets.  These obligations of\nconfidence apply irrespective of whether the information has\nbeen reduced to a tangible medium of expression (e.g., is\nonly maintained in the minds of Enron's employees) and, if\nit has been reduced to a tangible medium, irrespective of\nthe form or medium in which the information is embodied\n(e.g., documents, drawings, memoranda, notes, records,\nfiles, correspondence, manuals, models, specifications,\ncomputer programs, E-mail, voice mail, electronic databases,\nmaps and all other writings or materials of any type).\n\n     5.5. Upon termination of Employee's employment with\nEmployer, for any reason, Employee promptly shall deliver to\nEmployer all written materials, records, videotape, computer\nprograms, drawings, maps, architectural renditions, models,\nmanuals, brochures, and other documents made by, or coming\ninto the possession of, Employee during the period of\nEmployee's employment by Employer which are owned by\nEmployer, Enron, or their affiliates or which contain or\ndisclose confidential business information or trade secrets\nof Employer, Enron, or their affiliates, and all copies\nthereof.\n\n     5.6. Both during the period of Employee's employment by\nEmployer and thereafter, Employee shall assist Employer and\nits nominee, at any time, at Employer's cost, in the\nprotection of Employer's worldwide right, title, and\ninterest in and to information, ideas, concepts,\nimprovements, discoveries, and inventions, and its\ncopyrighted works, including without limitation, the\nexecution of all formal assignment documents requested by\nEmployer or its nominee and the execution of all lawful\noaths and applications for applications for patents and\nregistration of copyright in the United States and foreign\ncountries.\n\n     5.7. Employee acknowledges that money damages would not\nbe sufficient remedy for any breach of this Article 5 by\nEmployee.  After provision of fifteen (15) days advance\nwritten notice specifying Employer's basis for belief that\nEmployee may have violated the provisions of Article 5, and\nif Employee fails to remedy such alleged breach within such\nfifteen (15) period of time, Employer shall be entitled to\nenforce the provisions of this Article 5 by terminating any\npayments then owing to Employee under this Agreement and\/or\nto specific performance and injunctive relief as remedies\nfor such breach or any threatened breach.  Such remedies\nshall not be deemed the exclusive remedies for a breach of\nthis Article 5, but shall be in addition to all remedies\navailable at law or in equity to Employer, including the\nrecovery of damages from Employee and his or her agents\ninvolved in such breach and remedies available to Enron or\nEmployer pursuant to other agreements with Employee.\n\nArticle 6:  Non-competition Obligations:\n\n     6.1. Employer shall disclose to Employee, or place\nEmployee in a position to have access to or develop, trade\nsecrets or confidential information of Employer, Enron, or\ntheir affiliates; and\/or  shall entrust Employee with\nbusiness opportunities of Employer, Enron, or their\naffiliates; and\/or shall place Employee in a position to\ndevelop business good will on behalf of Employer, Enron, or\ntheir affiliates.\n\n     6.2. As part of the consideration for the compensation\nand benefits to be paid to Employee hereunder; to protect\nthe trade secrets and confidential information of Employer,\nEnron, or their affiliates that will be disclosed or\nentrusted to Employee, the business good will of Employer,\nEnron, or their affiliates that will be developed in\nEmployee, or the business opportunities that will be\ndisclosed or entrusted to Employee by Employer, Enron, or\ntheir affiliated companies; and as an additional incentive\nfor Employer to enter into this Agreement, Employer and\nEmployee agree to the non-competition provisions of this\nArticle 6.  Employee agrees that during the period of\nEmployee's non-competition obligations hereunder, Employee\nwill not, directly or indirectly for Employee or for others,\nin any geographic area or market where Employer or Enron or\nany of their affiliated companies are conducting any\nbusiness as of the date of termination of the employment\nrelationship or have during the previous twelve months\nconducted any business:\n\n     (i)  engage in any business competitive with the\n          business conducted by Employer;\n\n     (ii) render advice or services to, or otherwise\n          assist, any other person, association, or\n          entity who is engaged, directly or\n          indirectly, in any business competitive with\n          the business conducted by Employer;\n\n    (iii) induce any employee of Employer or Enron\n          or any of their affiliates to terminate his\n          or her employment with Employer, Enron, or\n          their affiliates, or hire or assist in the\n          hiring of any such employee by any person,\n          association, or entity not affiliated with\n          Enron.\n\nThese non-competition obligations shall extend for so long\nas Employee is employed by Employer or, if the employment\nrelationship terminates prior to the expiration of the Term,\nuntil the expiration of the Term.\n\n     6.3. Employee understands that the foregoing\nrestrictions may limit his or her ability to engage in\ncertain businesses anywhere in the world during the period\nprovided for above, but acknowledges that Employee will\nreceive sufficiently high remuneration and other benefits\n(e.g., the right to receive compensation under Section 3.5\nfor the remainder of the Term upon Involuntary Termination)\nunder this Agreement to justify such restriction.  Employee\nacknowledges that money damages would not be sufficient\nremedy for any breach of this Article 6 by Employee, and\nEmployer shall be entitled to enforce the provisions of this\nArticle 6 by terminating any payments then owing to Employee\nunder this Agreement and\/or to specific performance and\ninjunctive relief as remedies for such breach or any\nthreatened breach.  Such remedies shall not be deemed the\nexclusive remedies for a breach of this Article 6, but shall\nbe in addition to all remedies available at law or in equity\nto Employer, including, without limitation, the recovery of\ndamages from Employee and his or her agents involved in such\nbreach and remedies available to Employer or Enron pursuant\nto other agreements with Employee.\n\n     6.4. It is expressly understood and agreed that\nEmployer and Employee consider the restrictions contained in\nthis Article 6 to be reasonable and necessary to protect the\nproprietary information of Employer.  Nevertheless, if any\nof the aforesaid restrictions are found by a court having\njurisdiction to be unreasonable, or overly broad as to\ngeographic area or time, or otherwise unenforceable, the\nparties intend for the restrictions therein set forth to be\nmodified by such courts so as to be reasonable and\nenforceable and, as so modified by the court, to be fully\nenforced.\n\nArticle 7:  Miscellaneous:\n\n     7.1. For purposes of this Agreement the terms\n'affiliates' or 'affiliated' means an entity who directly,\nor indirectly through one or more intermediaries, controls,\nis controlled by, or is under common control with Enron or\nEmployer.\n\n     7.2. Employee shall refrain, both during the employment\nrelationship and after the employment relationship\nterminates, from publishing any oral or written statements\nabout Employer, Enron, any of their respective subsidiaries\nor affiliates, or any of such entities' officers, employees,\nagents or representatives that are slanderous, libelous, or\ndefamatory; or that disclose private or confidential\ninformation about Employer, Enron, any of their respective\nsubsidiaries or affiliates, or any of such entities'\nbusiness affairs, officers, employees, agents, or\nrepresentatives; or that constitute an intrusion into the\nseclusion or private lives of Employer, Enron, any of their\nrespective subsidiaries or affiliates, or any of such\nentities' officers, employees, agents, or representatives;\nor that give rise to unreasonable publicity about the\nprivate lives of Employer, Enron, any of their respective\nsubsidiaries or affiliates, or any of such entities'\nofficers, employees, agents, or representatives; or that\nplace Employer, Enron, any of their respective subsidiaries\nor affiliates, or any of such entities' officers, employees,\nagents, or representatives in a false light before the\npublic; or that constitute a misappropriation of the name or\nlikeness of Employer, Enron, any of their respective\nsubsidiaries or affiliates, or any of such entities'\nofficers, employees, agents, or representatives.  A\nviolation or threatened violation of this prohibition may be\nenjoined by the courts.  The rights afforded the Enron\nentities and affiliates under this provision are in addition\nto any and all rights and remedies otherwise afforded by\nlaw.\n\n     7.3. For purposes of this Agreement, notices and all\nother communications provided for herein shall be in writing\nand shall be deemed to have been duly given when personally\ndelivered or when mailed by United States registered or\ncertified mail, return receipt requested, postage prepaid,\naddressed as follows:\n\n     If to Employer, to:\n\n          Enron Capital Trade &amp; Resources Corp.\n          1400 Smith Street\n          Houston, Texas 77002\n          Attention:  Managing Director, Control and Legal\n          With a copy to:\n\n          Enron Corp.\n          1400 Smith Street\n          Houston, Texas 77002\n          Attention:  Corporate Secretary\n\n     If to Employee, to:\n\n          Jeffrey K. Skilling\n          2238 Albans Road\n          Houston, Texas 77005\n\nEither Employer or Employee may furnish a change of address\nto the other in writing in accordance herewith, except that\nnotices of changes of address shall be effective only upon\nreceipt.\n\n     7.4. This Agreement shall be governed in all respects\nby the laws of the State of Texas, excluding any conflict-of-\nlaw rule or principle that might refer the construction of\nthe Agreement to the laws of another State or country.\n\n     7.5. No failure by either party hereto at any time to\ngive notice of any breach by the other party of, or to\nrequire compliance with, any condition or provision of this\nAgreement shall be deemed a waiver of similar or dissimilar\nprovisions or conditions at the same or at any prior or\nsubsequent time.\n\n     7.6. If a dispute arises out of or related to this\nAgreement, other than a dispute regarding Employee's\nobligations under Articles 5 or 6, and if the dispute cannot\nbe settled through direct discussions, then Employer and\nEmployee agree to first endeavor to settle the dispute in an\namicable manner by mediation, before having recourse to any\nother proceeding or forum.  Thereafter, if either party to\nthis Agreement brings legal action to enforce the terms of\nthis Agreement, the party who prevails in such legal action,\nwhether plaintiff or defendant, in addition to the remedy or\nrelief obtained in such legal action shall be entitled to\nrecover its, his, or her expenses incurred in connection\nwith such legal action, including, without limitation, costs\nof Court and attorneys fees.\n\n     7.7. It is a desire and intent of the parties that the\nterms, provisions, covenants, and remedies contained in this\nAgreement shall be enforceable to the fullest extent\npermitted by law.  If any such term, provision, covenant, or\nremedy of this Agreement or the application thereof to any\nperson, association, or entity or circumstances shall, to\nany extent, be construed to be invalid or unenforceable in\nwhole or in part, then such term, provision, covenant, or\nremedy shall be construed in a manner so as to permit its\nenforceability under the applicable law to the fullest\nextent permitted by law.  In any case, the remaining\nprovisions of this Agreement or the application thereof to\nany person, association, or entity or circumstances other\nthan those to which they have been held invalid or\nunenforceable, shall remain in full force and effect.\n\n     7.8. This Agreement shall be binding upon and inure to\nthe benefit of Employer and any other person, association,\nor entity which may hereafter acquire or succeed to all or\nsubstantially all of the business or assets of Employer by\nany means whether direct or indirect, by purchase, merger,\nconsolidation, or otherwise.  Employee's rights and\nobligations under Agreement hereof are personal and such\nrights, benefits, and obligations of Employee shall not be\nvoluntarily or involuntarily assigned, alienated, or\ntransferred, whether by operation of law or otherwise,\nwithout the prior written consent of Employer.\n\n     7.9. Except as provided in (1) written company policies\npromulgated by Employer or Enron dealing with issues such as\nsecurities trading, business ethics, governmental affairs\nand political contributions, consulting fees, commissions or\nother payments, compliance with law, investments and outside\nbusiness interests as officers and employees, reporting\nresponsibilities, administrative compliance, and the like,\n(2) the written benefits, plans, and programs referenced in\nSection 2.6, the August 29, 1994 agreement pursuant to Enron\nCorp.'s 1991 Stock Plan, and Employee's existing rights\nunder the Existing Compensation Plan (which it is\ncontemplated shall be the subject of a separate waiver and\nconsent agreement), or (3) any signed written agreements\ncontemporaneously or hereafter executed by Employer and\nEmployee (including the Plan), this Agreement constitutes\nthe entire agreement of the parties with regard to such\nsubject matters, and contains all of the covenants,\npromises, representations, warranties, and agreements\nbetween the parties with respect to Employee's employment\nrelationship with Employer and the term and termination of\nsuch relationship, and replaces and merges previous\nagreements and discussions pertaining to the employment\nrelationship between Employer and Employee.  Specifically,\nbut not by way of limitation, the Employment Agreement dated\nAugust 1, 1990 between Enron Finance Corp. and Employee is\nhereby canceled and Employee hereby irrevocably waives and\nrenounces all of Employee's rights and claims under such\nAugust 1, 1990 Employment Agreement.  Any modification of\nthis Agreement will be effective only if it is in writing\nand signed by each party whose rights hereunder are affected\nthereby, provided that any such modification must be\nauthorized or approved by the Board of Directors of Employer\nand the Office of the Chairman of Enron.\n\n     IN WITNESS WHEREOF, Employer and Employee have duly\nexecuted this Agreement in multiple originals to be\neffective on the date first stated above.\n\n                         ENRON CAPITAL TRADE &amp; RESOURCES CORP.\n\n\n                         By:  PEGGY B. MENCHACA\n                         Title:  Vice President &amp; Secretary\n                         This 4th day of March, 1996\n\n\n                         JEFFREY K. SKILLING\n                         JEFFREY K. SKILLING\n                         This 4th day of March, 1996\n\n\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7454],"corporate_contracts_industries":[9535],"corporate_contracts_types":[9539,9544],"class_list":["post-39130","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-enron-corp","corporate_contracts_industries-utilities__gas","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39130","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39130"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39130"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39130"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39130"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}