SEPARATION AND TRANSITION AGREEMENT
Exhibit 10.3
SEPARATION AND TRANSITION AGREEMENT
This SEPARATION AND TRANSITION AGREEMENT and Exhibits (collectively, this “Agreement”) is entered into on November 3, 2021 (the “Execution Date”) by and between Xxxxxx X. Xxxxxxxxx (“Executive”), on the one hand, and Evolve Transition Infrastructure GP LLC (formerly known as Xxxxxxx Midstream Partners GP LLC), a Delaware limited liability company (the “Company”) and general partner of Evolve Transition Infrastructure LP (formerly known as Xxxxxxx Midstream Partners LP), a Delaware limited partnership (“Partnership” and, together with the Company, the “Employer Parties”), on the other hand. Executive, the Company and the Partnership are collectively referred to herein as the “Parties,” and individually as a “Party.” Unless otherwise defined herein, all capitalized terms used in this Agreement that are not otherwise defined herein shall have the meanings assigned to them in certain Amended and Restated Executive Services Agreement for Realignment by and between Executive, the Company and the Partnership, dated April 15, 2021 (the “Employment Agreement”).
WHEREAS, Executive has served as a member of the Board of Directors of the Company (the “Board”) and Chief Executive Officer of the Company pursuant to the Employment Agreement;
WHEREAS, Executive previously agreed to be bound by certain restrictive covenants in Section 7 of the Employment Agreement, which restrictive covenants remain enforceable as provided herein;
WHEREAS, Executive has previously received the Deferred Award and Legacy Award, the vesting of which is subject to the terms and conditions set forth in the Employment Agreement and the governing plan document and award agreements that are applicable to the Deferred Award and Legacy Award;
WHEREAS, the Parties mutually desire to transition Executive’s duties and responsibilities with respect to the Employer Parties;
WHEREAS, Executive wishes to voluntarily resign from any and all employment, board and other positions with respect to the Employer Parties; and
WHEREAS, in connection with Executive’s voluntarily resignation described above, the Parties desire to settle all outstanding potential disputes between the Employer Parties and Executive as set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual promises contained herein, the Parties, intending to be legally bound, agree as follows:
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[Execution page Follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the date written below.
Dated: November 3, 2021_________/s/ Xxxxxx X. Willinger_______________________
Xxxxxx X. Xxxxxxxxx
[Execution Page to Separation Agreement]
Dated: November 3, 2021_________COMPANY
Evolve Transition Infrastructure GP LLC
By: /s/ Xxxx Steen___________________
Name: Xxxx Xxxxx
Title: Chairman of the Board
Dated: November 3, 2021_________PARTNERSHIP
Evolve Transition Infrastructure LP
By: Evolve Transition Infrastructure GP LLC, its general partner
By: /s/ Xxxxxxx X. Ward__________
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
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EXHIBIT 1
November 3, 2021
Via Email
Evolve Transition Infrastructure GP LLC
c/o Evolve Transition Infrastructure LP
(f/k/a Xxxxxxx Midstream Partners LP)
Attn: Xxxx Xxxxx
0000 Xxxx Xxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Re: | Notice of Voluntary Resignation |
Xxxx:
I hereby provide notice of my voluntary resignation from my employment from Evolve Transition Infrastructure GP LLC (formerly known as Xxxxxxx Midstream Partners GP LLC) (the “Company”) and from any and all positions with the Company, Evolve Transition Infrastructure LP (formerly known as Xxxxxxx Midstream Partners LP), a Delaware limited partnership, or any of their affiliates, including but not limited to my position on the board of the Company, as of November 30, 2021, and at such time that is immediately prior to December 1, 2021, Central Time.
Sincerely,
Xxxxxx X. Xxxxxxxxx
EXHIBIT 2
GENERAL RELEASE
This GENERAL RELEASE OF CLAIMS (this “Release”) is made as of _______________ ____, 2021 and effective as of the Effective Date (defined below) by Xxxxxx X. Xxxxxxxxx (“Executive”) in favor of Evolve Transition Infrastructure GP LLC (formerly known as Xxxxxxx Midstream Partners GP LLC), a Delaware limited liability company (the “Company”) and general partner of Evolve Transition Infrastructure LP (formerly known as Xxxxxxx Midstream Partners LP), a Delaware limited partnership (the “Partnership” and, together with Company, the “Employer Parties”), and the other Releasees (as defined herein) in connection with the Separation and Transition Agreement entered into by and among Executive, the Company and the Partnership, dated as of November __, 2021 (the “Separation Agreement”). Unless otherwise defined herein, all capitalized terms used in this Release that are defined in the Separation Agreement and are not otherwise defined herein shall have the meanings assigned to them in the Separation Agreement.
WHEREAS, the Employer Parties wish to obtain a final general release of all claims as of the Effective Date by Executive; and
WHEREAS, Executive is willing to execute and deliver this Release to the Employer Parties, as specifically provided herein.
NOW, THEREFORE, in consideration of the promises, covenants and undertakings set forth herein, and in full compromise, release and settlement, accord and satisfaction and discharge of all claims or causes of action, known or unknown, the Parties agree as follows:
1.Consideration. Following Executive’s execution and return of this Release, provided this Release is not timely revoked by Executive, Executive shall be eligible to receive the applicable benefits described in, and subject to, Section 2(b) of the Separation Agreement. Executive acknowledges that Executive is not entitled to, and will not receive, any other compensation or benefits from the Employer Parties except as specified herein.
2.Waiver and Release of Claims.
(a)General Release by Executive. In consideration of the foregoing, including the payment described in Section 1 above, which Executive hereby expressly acknowledges as good and sufficient consideration for the releases provided below, Executive hereby unconditionally and irrevocably releases, acquits and forever discharges, to the fullest extent permitted by applicable law, (i) the Company, the Partnership and all of their predecessors, successors and assigns, (ii) all of the Company’s and the Partnership’s past, present and future affiliates, parent entities, subsidiaries, divisions and joint venture entities and all of their respective predecessors, successors and assigns, and (iii) all of the past, present and future officers, directors, managers, partners, members, shareholders, investors, employee benefit plan administrators, employees, agents, insurers, attorneys and other representatives of each of the entities described in the immediately preceding clauses (i) and (ii), individually and in their respective representative capacities (the persons or entities referred to in the immediately preceding clauses (i), (ii) and (iii) being, individually, a “Releasee” and, collectively, the “Releasees”), from any and every action, cause of action, complaint, claim, demand, administrative charge, legal right, compensation, obligation, damages (including consequential, exemplary and punitive damages), liability, cost or expense (including attorney’s fees) that Executive has, may have or may be entitled to from or against any of the Releasees, whether legal, equitable or administrative, in any forum or jurisdiction, whether known or unknown, foreseen or unforeseen, matured or unmatured, accrued or not accrued, of any kind or nature whatsoever
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arising from the beginning of time to the Effective Date (defined below), including but not limited to those that arise directly or indirectly out of, or are based on or related in any way to Executive’s employment with any Employer Party or any of its affiliates, including any such matter arising in respect of that certain Original Employment Agreement, the Employment Agreement, or from the negligence, gross negligence or reckless, willful or wanton misconduct of any of the Releasees (together, the “Released Claims”).
(b)Release to be Full and Complete; Waiver of Claims, Rights and Benefits. The Parties intend this Release to cover any and all Released Claims, whether they are contract claims, equitable claims, fraud claims, tort claims, discrimination claims, harassment claims, whistleblower or retaliation claims, personal injury claims, constructive or wrongful discharge claims, emotional distress claims, pain and suffering claims, public policy claims, claims for debts, claims for expense reimbursement, wage claims, claims with respect to any other form of compensation, claims for attorneys’ fees, other claims or any combination of the foregoing, and whether they may arise under any employment contract (express or implied), policies, procedures, practices or by any acts or omissions of any of the Releasees or whether they may arise under any state, local or federal law, statute, ordinance, rule or regulation, including all Texas employment discrimination laws, Chapter 21 of the Texas Labor Code, the Texas Payday Act, all U.S. federal discrimination laws, including the Age Discrimination in Employment Act of 1967, the Employee Retirement Income Security Act of 1974, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Equal Pay Act, the National Labor Relations Act, the Older Workers Benefit Protection Act, the Worker Adjustment and Retraining Notification Act, the Family and Medical Leave Act, the Xxxxxxxx-Xxxxx Act of 2002 or common law, without exception. As such, it is expressly acknowledged and agreed that this Release is a general release, representing a full and complete disposition and satisfaction of all of any Releasee’s real or alleged legal obligations to Executive, with the only exceptions being as expressly stated Section 2(c) below. Executive understands and agrees, in compliance with any law, statute, ordinance, rule or regulation which requires a specific release of unknown claims or benefits, that this Release includes a release of unknown claims, and Executive hereby expressly waives and relinquishes any and all Released Claims and any associated rights or benefits that Executive may have, including any that are unknown to Executive at the time of the execution of this Release.
(c)Notwithstanding the foregoing, the Release does not apply to, and the Released Claims do not include: (x) any claim arising from any breach or failure to perform any provision of the Realignment Agreement or this Release; (y) any claim for worker’s compensation benefits; or (z) any other claim that cannot be waived by a general release. In addition, nothing herein waives any claims that Executive may have: (i) to vested benefits pursuant to any plan governed by ERISA; (ii) to any insurance protections or benefits or indemnification rights; or (iii) to any claims first arising, and under circumstances first occurring, after the time that Executive signs this Release.
(d)Certain Representations and Acknowledgements of Executive. Executive represents and warrants that: (x) Executive is the sole and lawful owner of all rights, titles and interests in and to all Released Claims; and (y) Executive has the fully legal right, power, authority and capacity to execute and deliver this Release. Executive acknowledges that Executive has been given a reasonable period of time of twenty-one (21) days, in which to consider this Release and has been advised to discuss the terms of this Release with legal counsel of Executive’s own choosing and has had the opportunity to do so. Executive represents that: (i) Executive has relied on Executive’s own knowledge and judgment and on the advice of independent legal counsel of Executive’s choosing and has consulted with such other independent advisors as Executive and Executive’s counsel deemed appropriate in connection with Executive’s review of this Release; (ii) based on Executive’s review, Executive acknowledges that Executive fully and completely understands and accepts all the terms of this Release and their legal effects; (iii) Executive is entering into this Release voluntarily and of Executive’s own free will, with full consideration of any and all rights which Executive may currently have; (iv) Executive is not relying on
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any representations or statements made by the Company, the Partnership or any of their affiliates, or by any of their respective officers, directors, employees, affiliates, agents, attorneys or other representatives, regarding this Release, except to the extent such representations are expressly set forth in this Release; (v) Executive has made Executive’s own investigation of the facts and is relying solely upon Executive’s own knowledge in entering into this Release; (vi) Executive is not relying upon a legal duty, if one exists, on the part of the Company, the Partnership or any of their affiliates, or any of their respective officers, directors, employees, subsidiaries, affiliates, agents, attorneys or other representatives, to disclose any information in connection with the execution of this Release or its preparation, it being expressly understood that Executive shall never assert any failure to disclose information on the part of any such person or entity as a ground for challenging this Release or any provision hereof; and (vii) Executive knowingly waives any claim that this Release was induced by any misrepresentation or nondisclosure and any right to rescind or avoid this Release based upon presently existing facts, known or unknown.
(e)Covenant Not to Xxx. Executive expressly agrees that neither Executive nor any person acting on Executive’s behalf will file or bring or permit to be filed or have brought any lawsuit or other action before any court, agency or other governmental authority for legal or equitable relief against any of the Releasees involving any of the Released Claims. Notwithstanding the foregoing, Executive acknowledges that nothing contained in this Release limits Executive’s ability to file a charge or complaint with a federal, state or local governmental agency or commission. Executive further acknowledges that this Release does not limit Executive’s ability to communicate with any government agencies or otherwise participate in any investigation or proceeding that may be conducted by any government agency, including providing documents or other information, without notice to the Company. While nothing in this Release limits Executive’s ability to file a charge or complaint with any federal, state or local governmental agency or commission, should Executive file a charge or complaint with any governmental agency, or should any governmental entity, agency or commission file a charge, action, complaint or lawsuit against any of the Releasees based on any Released Claim, Executive agrees not to seek or accept any resulting payment from the Releasees. This Release does not limit or prohibit Executive’s right to receive an award for information provided to any federal, state or local governmental agency or commission to the extent that such limitation or prohibition is a violation of law.
(f)Covenants. Executive reaffirms the covenants set forth in Section 7 of the Employment Agreement and Section 3 of the Separation Agreement and represents that he is in full compliance with such terms. Executive further represents that he has returned all property as required by Section 3(b) of the Separation Agreement.
(g)Parties in Interest. This Release is for the benefit of the Releasees and shall be binding on Executive and his or her heirs, successors and assigns.
3.Amendment; Revocation. This Release may not be clarified, modified, changed or amended except in writing signed by Executive and the Employer Parties. Notwithstanding any other provision in this Release to the contrary, Executive may revoke this Release, in writing, for up to seven days following the date of Executive’s execution of this Release, by delivering a written notice of Executive’s revocation of this Release to the Company. Any such notice of revocation shall be (a) addressed to Evolve Transition Infrastructure GP LLC c/o Evolve Transition Infrastructure LP (f/k/a Xxxxxxx Midstream Partners LP), 0000 Xxxx Xxx Xxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attention: Chief Financial Officer or via email (email: xxxxx@xxxxxxxxxxxxxxxx.xxx); and (b) deemed given, delivered and effective on the earliest of: (i) in the case of delivery by email, on the date of transmission, if such notice is delivered, and confirmation of receipt is received, by Executive, prior to 5:00 p.m. (Central Time) on a business day, and, otherwise, on the first business day after the date of transmission (provided that Executive has received confirmation of receipt of such transmission); (ii) one business day after when sent,
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if sent by nationally recognized overnight courier service (charges prepaid); or (iii) upon actual receipt. Executive acknowledges and agrees that if Executive (x) fails to timely sign this Release prior to the close of the twenty-one (21)-day consideration period described in Section 2(d) above or (y) timely revokes this Release, this Release will be null and void and of no effect, and the Company will not have any obligation to pay Executive the consideration described in Section 1 above. If no such revocation occurs, the Release shall become effective on the eighth (8th) day following execution of this Release (the “Effective Date”).
4.Severability. If any provision of this Release is held to be illegal, invalid or unenforceable under applicable law, that provision shall be severable and this Release shall be construed and enforced as if that illegal, invalid or unenforceable provision never comprised a part hereof, and the remaining provisions of this Release shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision, and there shall be added automatically as part of this Release a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. This Release should be construed by limiting and reducing it only to the minimum extent necessary to be enforceable under then applicable law.
5.Section Headings. Titles and headings to Sections and subsections hereof are for the purpose of reference only and shall in no way limit, define or otherwise affect the provisions of this Release.
6.Applicable Law. This Release shall be interpreted and construed in accordance with the substantive laws of the State of Texas, without giving effect to any conflicts of laws provisions thereof that would result in the application of the laws of any other jurisdiction.
7.Dispute Resolution. The Parties agree to submit any dispute arising out of or relating to this Release to the arbitration procedure as described in Section 4 of the Separation Agreement.
8.Successors and Heirs. This Release shall bind and inure to the benefit of the Employer Parties’ successors and to Executive’s heirs and devisees.
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IN WITNESS WHEREOF, the Parties hereto have duly executed this Release as of the Determination Date.
PARTNERSHIP | ||
By: | Evolve Transition Infrastructure GP LLC, its general partner | |
By: | /s/ Xxxxxxx X. Xxxx | |
EXECUTIVE |
/s/ Xxxxxx X. Xxxxxxxxx |
Xxxxxx X. Xxxxxxxxx |
[Execution Page to Release]
