EXHIBIT 10(m)
AGREEMENT AND GENERAL RELEASE
Exhibit 10(m)
AGREEMENT AND GENERAL RELEASE
THIS AGREEMENT is made and entered into as of this
5th day of December, 1996 by and between XXXXXXX X. XXXXXXXX (the
"Executive") and THE LOUISIANA LAND AND EXPLORATION COMPANY, a
Maryland corporation (the "Company").
W I T N E S S E T H :
WHEREAS, the Executive has been employed by the Company;
and
WHEREAS, the Executive has resigned all officer positions
with the Company and its subsidiaries, and resigned his membership
on the Boards of Directors and all Committees of the Company and
its subsidiaries and will terminate his status as an employee and
retire from the Company as an early retiree effective January 1,
1997; and
WHEREAS, the Executive and the Company desire to settle
fully and finally all matters between them to date, including, but
in no way limited to, any issues that might arise out of the
Executive's employment or the termination of his employment;
NOW, THEREFORE, in consideration of the mutual covenants
and promises contained herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Effective upon his early retirement on January 1,
1997, the Executive shall become entitled to all of the benefits
provided to retirees under the terms of the Company's employee
benefit plans, including without limitation full vesting in all
outstanding restricted stock and all outstanding stock options
becoming fully exercisable until their respective expiration dates
in accordance with their terms and subject to the conditions set
forth in such options. The Executive's benefits under the
Compensatory Benefits Agreement and under The LL&E Compensatory
Benefits and Supplemental Excess Plan shall be distributed in ten
annual installments commencing in January 2000 (with the amount of
each annual installment to be determined by dividing the amount
then credited to the Executive's accounts by the number of
installments remaining to be paid).
2. The Company will provide the Executive with a
furnished office and part-time secretarial support in the United
States city of his choosing for such reasonable period of time as
the Chief Executive Officer of the Company may determine, it being
understood that such period shall in no event be less than one
year.
3. The Company shall pay to the Executive, at such
times and otherwise in accordance with the Company's standard
payroll practices, periodic amounts at an annual rate equal to the
Executive's annual base salary in effect on the date hereof, until
June 30, 1999.
4. The Executive shall receive a cash bonus pursuant to
the Company's Incentive Bonus Program for each of 1996 and 1997, in
each case only if such cash bonus is earned in accordance with the
terms of the Incentive Bonus Program for such year (deeming, for
this purpose only, that the Executive had continued as an executive
officer of the Company through the end of such year). Each such
bonus shall be paid at the time Incentive Bonuses are scheduled to
be paid with respect to the applicable year. If there is a change
in control of the Company as that term is defined with Company's
Pension Plan and the Executive continues to be in compliance with
the terms of this Agreement, the Incentive Bonus payable with
respect to 1997 shall not be less than the target level bonus
applicable to the 1996 Incentive Bonus Program. The Company shall
provide the Executive with information available to all Program
participants relative to the achievement of Program goals at the
end of each Program.
5. With respect to any performance shares granted by
the Company to the Executive and for which the Performance Cycle
has not expired on the date hereof, the Executive shall remain
entitled to receive the percentage of performance shares earned in
accordance with the terms of such grant (determined without regard
to any reduction that would otherwise occur solely by reason of the
termination of Executive's employment). Any outstanding
performance share award agreements with the Executive are deemed
amended to the extent necessary to conform with this Section 5.
The Company shall provide Executive with information available to
all holders of performance shares with respect to the achievement
of performance goals relative to each applicable Performance Cycle
at the end of each Cycle.
6. Any payments and benefits provided for under this
Agreement shall be paid net of any applicable withholding required
under Federal, state or local law and any debts or other
obligations owed to the Company by the Executive.
7. The Executive understands and agrees that the
consideration described in Sections 3, 4 and 5 of this Agreement is
more than the Executive would otherwise be entitled to under the
Company's existing plans and policies and that such excess
constitutes consideration to the Executive for his undertaking and
performing the obligations specified in this Agreement. Except as
otherwise expressly provided in this Agreement, the Executive after
January 1, 1997 shall be entitled to none of the benefits or other
perquisites of employment extended to employees of the Company, and
the Executive shall have no right to any benefits under any plan,
program, policy or arrangement of the Company which otherwise might
be available if his employment had continued after January 1, 1997.
8. The Executive, to the best of his knowledge, has
returned or will as soon as practicable (but in any event no later
than 30 days after his resignation as an executive officer of the
Company) return to the Company all Company Information and related
reports, files, memoranda, and records; credit cards, cardkey
passes; door and file keys; computer access codes; software; and
other physical or personal property which the Executive received or
prepared or helped prepare in connection with his employment and
which are in his actual possession or control on or after the date
of his resignation as an executive officer of the Company. The
Executive has not, to the best of his knowledge, retained and will
not intentionally retain any copies, duplicates, reproductions, or
excerpts thereof. The term "Company Information" as used in this
Agreement means all information relating to the Company or any of
its subsidiaries which is not already in the public domain and
which is regarded by the Company as confidential, proprietary or
private in nature, including, without limitation, information
received from third parties under confidential conditions,
technical, business, or financial information, and other
information concerning the business, contemplated future business
prospects, and other affairs of the Company.
9. The Executive agrees that in the course of his
employment with the Company, he has acquired Company Information as
defined in Section 8. The Executive understands and agrees that
such Company Information has been disclosed to the Executive in
confidence and for Company use only. The Executive understands and
agrees that he (i) will keep Company Information confidential at
all times following his resignation as an executive officer of the
Company, (ii) will not disclose or communicate Company Information
to any third party, and (iii) will not make use of Company
Information on the Executive's own behalf, or on behalf of any
third party. In view of the nature of the Executive's employment
and the nature of Company Information which the Executive has
received during the course of his employment, the Executive agrees
that any unauthorized disclosure to third parties of Company
Information or other violation, or threatened violation, of this
Agreement would cause irreparable damage to the trade secret status
of Company Information and to the Company, and that, therefore, the
Company shall be entitled to an injunction prohibiting the
Executive from any such disclosure, attempted disclosure,
violation, or threatened violation. When Company Information
becomes generally available to the public other than by the
Executive's acts or omissions, it is no longer subject to these
restrictions. The undertakings set forth in this Section 9 shall
survive the termination of this Agreement or other arrangements
contained in this Agreement without limitation.
10. The Executive agrees and promises that, unless
legally required, he will not make any oral or written statements
or reveal any information to any person, company, or agency which
may be construed to be negative, disparaging or damaging to the
reputation or business of the Company, its subsidiaries, directors,
officers or affiliates, which would interfere in any way with the
business relations between the Company or any of its subsidiaries
or affiliates and any of their customers, suppliers or joint
venture partners or potential customers, suppliers or joint venture
partners or which would adversely affect or conflict with the
interests of the Company.
11. In consideration of the payments and benefits to the
Executive under this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by the Executive, the Executive shall not, during the
Noncompetition Period (as hereinafter defined), directly or
indirectly, (a) act as a director, officer, employee, manager,
trustee, agent, partner, advisor, joint venturer, or consultant of,
with or to, or otherwise engage in, any business or businesses that
engage in direct competition with those businesses in which the
Company and its subsidiaries engaged or proposed to be engaged on
January 1, 1997 without the prior written consent of the Company,
it being understood that an activity or circumstance shall be
deemed to constitute direct competition for purposes of this
Section 11(a) only if such activity or circumstance involves or
relates to any of the prospects, plays or asset developments
contemplated in the Company's 1997 Budget Summaries, or (b) solicit
for employment any of the current employees of the Company. For
purposes of this Section 11, the "Noncompetition Period" shall mean
the period beginning November 24, 1996 and ending on December 31,
1998.
12. For a period of ten years from the date of this
Agreement (the "Restricted Period"), except as specifically
requested in writing by the Company, the Executive, singly or with
any other person or directly or indirectly, shall not propose,
enter into, or agree to enter into, or encourage any other person
to propose, enter into, or agree to enter into (a) any form of
business combination, acquisition or other transaction relating to
the Company, (b) any form of restructuring, recapitalization or
similar transaction with respect to the Company, or (c) any demand,
request or proposal to amend, waive or terminate any provision of
this Section 12 of this Agreement. Furthermore, during the
Restricted Period, except as specifically requested in writing by
the Company, the Executive shall not, singly or with any other
person or directly or indirectly, (1) acquire, or offer, propose or
agree to acquire, by tender offer, purchase or otherwise, any
voting securities of the Company except through the exercise of
options, (2) make, or in any way participate in, encourage, advise
or otherwise facilitate any solicitation of proxies or written
consents with respect to voting securities of the Company (it being
understood that the mere execution by the Executive of a proxy or
written consent shall not be treated as constituting participation
in such a solicitation), (3) become a participant in any election
contest with respect to the Company, (4) seek to influence any
person with respect to the voting or disposition of any voting
securities of the Company, (5) demand a copy of the Company's list
of stockholders or its other books and records, (6) participate in,
encourage, advise with regard to, or otherwise facilitate the
formation of any partnership, syndicate or other group that owns or
seeks or offers to acquire beneficial ownership of any voting
securities of the Company or that seeks to affect control of the
Company or for the purpose of circumventing any provision of this
Agreement or (7) otherwise act to seek or to offer to control or
influence, in any manner, the management, Board of Directors or
policies of the Company.
13. In consideration of the payments and benefits to the
Executive under this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by the Executive, the Executive knowingly, voluntarily
and unconditionally hereby forever waives, releases and discharges,
and covenants never to xxx on, any and all claims, liabilities,
causes of actions, judgments, orders, assessments, penalties,
fines, expenses and costs (including without limitation attorneys'
fees) and/or suits of any kind arising out of any actions, events
or circumstances before the date of execution of this Agreement
("Claims") which the Executive has, ever had or may have,
including, without limitation, any Claims arising in whole or in
part from the Executive's employment or the termination of the
Executive's employment with the Company or the manner of said
termination; provided, however, that this Section 13 shall not
apply to any of the obligations of the Company specifically
provided for in this Agreement. This Agreement is intended as a
full and final settlement and compromise of each, every and all
Claims of every kind and nature, whether known or unknown, which
have been or could be asserted against the Company and/or any of
its subsidiaries, shareholders, officers, directors, agents, and
employees, past or present, and their respective heirs, successors
and assigns (collectively, the "Releasees"), including, without
limitation --
(1) any Claims arising out of any employment agreement or
other contract, side-letter, resolution, promise or
understanding of any kind, whether written or oral or
express or implied;
(2) any Claims arising under the Age Discrimination in
Employment Act ("ADEA"), as amended, 29 U.S.C. Section
621 et seq.; and
(3) any Claims arising under any federal, state, or local
civil rights, human rights, anti-discrimination, labor,
employment, contract or tort law, rule, regulation, order
or decision, including, without limitation, the Americans
with Disabilities Act of 1990, 42 U.S.C. Section 12101 et
seq., and Title VII of the Civil Rights Act of 1964,
42 U.S.C. Section 2000e et seq., and as each of these
laws have been or will be amended,
except to the extent that any governmental authority or other third
party, i.e., other than one of the Releasees, files a charge or
institutes an investigation, lawsuit or any proceeding against the
Executive based on any event, occurrence or omission during the
period of the Executive's employment with the Company, in which
case the Executive will be permitted to implead or bring a court
action against the Company and/or any of the Releasees for
indemnification of any liability or other appropriate remedy,
provided such impleader or court action would be available but for
this Agreement.
Notwithstanding anything to the contrary in this
Section 13, the Executive does not release (i) any claim he may
have under any employee benefit plan in which he was a participant
during his employment with the Company for the payment of a benefit
thereunder to which he would be entitled upon his termination of
employment on January 1, 1997 in accordance with the terms of such
plan or (ii) any claim that he may have under this Agreement.
14. The Executive understands that this Agreement
affects significant rights and represents and agrees that he has
carefully read and fully understands all of the provisions of this
Agreement, that he is voluntarily entering into this Agreement, and
that he has been advised to consult with and has in fact consulted
with legal counsel before entering into this Agreement. In
particular, the Executive acknowledges that he has been given
twenty-one (21) days to carefully consider and voluntarily approve
the terms of this Agreement. The Executive understands that,
pursuant to the provisions of the ADEA, he shall have a period of
seven (7) days from the date of execution of this Agreement during
which he may revoke this Agreement via hand delivery of a notice of
revocation to the Company's offices to the attention of Xxxxxxxxx
X. Xxxxxxx, XX, General Counsel. This Agreement shall not become
effective or enforceable until the revocation period has expired.
15. In the event of any breach by the Executive of this
Agreement, the Executive shall relinquish and forfeit (to the
fullest extent permitted by law) all payments and benefits
hereunder (including, without limitation, payments and benefits
already received) to the extent in excess of the payments and
benefits he would have received following termination of his
employment on January 1, 1997 in the absence of this Agreement,
such excess constituting consideration paid and promised to be paid
to the Executive for his performing his obligations under this
Agreement. To the extent that any payments or benefits have
already been received, the Executive shall promptly pay all such
relinquished and forfeited payments and benefits to the Company.
In addition, the parties acknowledge that money damages will not be
an adequate remedy in respect of a breach by the Executive of his
obligations under this Agreement and, accordingly, the Executive
agrees that the Company shall be entitled to equitable relief to
enforce the provisions of this Agreement.
16. This Agreement constitutes the entire understanding
and agreement between the Company and the Executive with regard to
all matters herein and supersedes all prior oral and written
agreements and understandings of the parties with respect to such
matters, whether express or implied. There are no other
agreements, conditions, or representations, oral or written,
express or implied, with regard thereto. This Agreement may be
amended only in a writing of even or subsequent date, signed by all
parties hereto.
17. If any term or provision of this Agreement, or the
application thereof to any person or circumstances, will to any
extent be invalid or unenforceable, the remainder of this
Agreement, or the application of such terms to persons or
circumstances other than those as to which it is invalid or
unenforceable, will not be affected thereby, and each term of this
Agreement will be valid and enforceable to the fullest extent
permitted by law.
18. This Agreement shall be construed and enforced in
accordance with the laws of the State of Maryland without reference
to its choice of law provisions and shall be binding upon the
parties and their respective heirs, executors, successors and
assigns. The parties hereto (a) agree that any litigation with
respect to this Agreement will be brought only in the Federal
District Court in New Orleans or in any court of competent
jurisdiction in the State of Maryland, and (b) consent to the
personal jurisdiction of such courts.
19. This Agreement does not constitute any admission of
wrongdoing, or evidence thereof, on the part of any parties hereto
or the Releases. Except as required by court order, or to enforce
the terms of this Agreement, this Agreement may not be used in any
court or administrative proceeding.
20. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Executive have
caused this Agreement to be executed as of the date first above
written.
THE LOUISIANA LAND AND
EXPLORATION COMPANY
By:______________________________
/s/ H. Xxxxxxxx Xxxxxxx
Chairman and Chief
Executive Officer
WITNESS:
_____________________________ ______________________________
/s/ Xxxxxxx X. Xxxx /s/ Xxxxxxx X. Xxxxxxxx
