EXHIBIT 10.62
SEVERANCE AGREEMENT
This Severance Agreement (this "Agreement"), dated as of April 9, 1999, is
made and entered into by and among Triton Energy Limited, a Cayman Islands
company ("Triton"), Triton Exploration Services, Inc., a Delaware corporation
(the "Company"), and Xxxxx Xxxx ("Employee").
WITNESSETH:
WHEREAS, Employee is an employee of the Company and/or certain other
subsidiaries or affiliates of Triton; and
WHEREAS, the Company and Employee have reached agreement on the terms of
the termination of Employee's employment with the Company; and
WHEREAS, Triton, the Company and Employee desire that this Agreement set
forth the provisions regarding Employee's termination of employment with the
Company;
NOW, THEREFORE, in consideration of the premises and mutual promises
contained herein, the Company and Employee agree as follows:
1. TERMINATION OF EMPLOYMENT.
(a) As of April 15, 1999, Employee hereby resigns as an officer
and director of Triton, the Company and any and all subsidiaries or affiliates
of Triton, but not as an employee of the Company. Employee agrees to sign and
deliver a resignation from all positions as an officer and director of Triton
and its subsidiaries in the form attached to this Agreement, and to execute and
deliver such additional documents and take such further action as the Company
may reasonably request to evidence such resignation and elect his successor(s).
Effective as of June 15, 1999, Employee hereby resigns Employee's employment
with the Company and any and all subsidiaries or affiliates of Triton and the
Company. Triton, the Company and Employee agree that, except with respect to the
Consulting and Non-Compete Agreement between the Company and Employee of even
date herewith (the "Consulting and Non-Compete Agreement") and the Surviving
Company Obligations (as defined in Section 4(a)(ii) hereof), any and all
employment agreements, or similar understandings or arrangements, written or
oral, express or implied, between or among Employee and Triton, the Company and
any other subsidiary or affiliate of Triton are hereby terminated and of no
further force or effect.
(b) Employee represents and warrants that Employee has not removed
any property of the Company or any of its affiliates, except for any such
property that Employee has returned to the Company prior to the date of this
Agreement. In the event Employee discovers any property of the Company in
Employee's possession or control, Employee agrees to promptly return such
property to the Company.
2. COMPENSATION.
(a) The Company agrees to pay, or cause to be paid, Employee an
amount equal to $1,743,292.61 in the aggregate (being the sum of (1)
$1,000,000.00 and (2) the amount (determined by Milliman & Xxxxxxxxx) equal to
the net present value of Employee's benefits under the Supplemental Executive
Retirement Plan (the "SERP") that are vested by years of service in satisfaction
of its obligations to Employee under the SERP and (3) the compensation that
would be payable to Employee for the period from the date hereof through June
15, 1999), payable no later than one business day following the Effective Date
(as defined below), subject to any holdbacks or deductions required as a matter
of law, and provided that the payment in respect of the SERP shall be made as
soon as practicable after the Effective Date (but no later than three business
days following the Effective Date) from the trust. The term "Effective Date"
shall mean the date immediately following the expiration of the seven-day period
following the execution of this Agreement in duplicate originals.
(b) The Company agrees to pay the cost of continued health care
coverage as provided under the Consolidated Omnibus Reconciliation Act of 1985
(COBRA) through the earlier of (i) the date Employee becomes ineligible for
COBRA coverage or (ii) April 14, 2001. Employee agrees to notify the Company
upon Employee's becoming eligible for participation in a health plan sponsored
by a third party.
(c) On the Effective Date, the Company will cause all stock
options held by Employee as of the date of this Agreement to become
exercisable, and to remain exercisable until April 19, 2002.
3. CONFIDENTIALITY.
Employee represents that Employee has not removed, and agrees that Employee
will not (without the Company's prior written consent) remove, from the premises
of Triton, the Company or any other subsidiary or affiliate of Triton any
documents or copies thereof that constitute or contain any Confidential
Information (as hereinafter defined). Without limiting the generality of the
foregoing, Employee agrees that Employee shall (a) keep confidential all
Confidential Information at any time known to Employee, (b) not use any
Confidential Information for Employee's benefit or to the detriment of Triton,
the Company or any other subsidiary or affiliate of Triton or disclose any
Confidential Information to any third persons (except pursuant to a validly
issued subpoena or court order, and then only if the Company shall have been
promptly advised thereof and consulted with regarding an appropriate response
thereto), (c) not make copies of documents embodying any Confidential
Information, (d) exercise reasonable care to prevent dissemination of
Confidential Information to third persons, and (e) return to the Company any
documents which contain Confidential Information and which are or come into
Employee's possession. "Confidential Information" shall include any information
concerning any matters affecting or relating to the businesses, operations and
financial affairs of Triton, the Company or any other subsidiary or affiliate of
Triton that are of a special or unique nature or the disclosure of which could
cause harm to Triton, the Company or any other subsidiary or affiliate of
Triton, and this Agreement (including its existence and its contents) regardless
of whether any such Confidential Information is labeled or otherwise treated as
confidential, material, or important, but shall not include information that is
or becomes publicly known or enters the public domain other than through the act
or omission of Employee or any of Employee's legal or financial advisors or
through an act of any other party that is subject to another confidentiality
agreement with the Company.
4. GENERAL RELEASES; CERTAIN COVENANTS; NO DISPARAGEMENT.
(a) (i) As a material inducement to Triton and the Company to enter
into this Agreement, Employee hereby irrevocably and unconditionally releases,
acquits, and forever discharges Triton, the Company or any other subsidiary or
affiliate of Triton, and their respective directors, officers, employees,
shareholders, successors, assigns, agents, independent auditors and accountants,
representatives, and attorneys, and all persons acting by, through, under, or in
concert with them, or any of them (collectively, including Triton and the
Company, the "Company Releasees"), from any and all charges, complaints, claims,
liabilities, obligations, promises, controversies, damages, actions, suits,
rights, demands, costs, losses, debts and expenses (including attorneys' fees
and costs actually incurred), of any nature, known or unknown ("Claim" or
"Claims") and to the extent permitted by state and federal law, which Employee
has, owns, or holds, or claims to have, own or hold or which Employee at any
time hereafter may have, own or hold, or claim to have, own or hold, against
each or any of the Company Releasees based on any facts, circumstances, actions
or omissions existing or occurring on or before the Effective Date, including
but not limited to, any Claims involving securities or securities transactions,
any Claims based on harassment or hostile work environment based on race, sex,
religion, national origin, color, disability or age, any Claims involving
contracts, agreements or obligations related thereto (including, without
limitation, any Claims relating to any express or implied employment agreement
and any benefit plans of Triton, the Company or any other subsidiary or
affiliate of Triton, except for Claims for benefits accrued under the terms of
any such benefit plans through the date of this Agreement), any Claims involving
libel, slander or defamation, any Claims under federal, state or local law, any
Claims under federal, state or local law of discrimination on the basis of age,
sex, race, national origin, color, religion, disability, such as Claims under
the Age Discrimination in Employment Act of 1967, the Employee Retirement Income
Security Act, the Americans With Disabilities Act, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the retaliation provisions of the
Texas Workers' Compensation Act and the Texas Commission on Human Rights Act,
and any action related to Employee's employment, separation from, or affiliation
with Triton, the Company and any other Company Releasee, and excepting only any
claims based on a breach of this Agreement. This release shall be binding on
Employee's heirs, dependents, successors and assigns.
(ii) Notwithstanding the foregoing clause (i) of this Section 4(a), in
no event shall Employee be deemed to have released the Company Releasees from
any obligation they, or any one of them, have or may have (A) under the
Indemnity Agreement between Triton and Employee dated as of September 16, 1998,
(B) in respect of any benefits accrued in favor of Employee through the
Effective Date under the Company's Retirement Income Plan and 401(k) Savings
Plan, or (C) the indemnity obligations of the Company, Triton or any of their
affiliates to employee under their respective governing documents (collectively,
the "Surviving Company Obligations"); provided that Employee acknowledges that
the payments received pursuant to this Agreement will satisfy all obligations to
Employee under the SERP.
(b) As a material inducement to Employee to enter into this
Agreement, each of Triton and the Company, on its own behalf and on behalf of
its respective subsidiaries and affiliates, hereby irrevocably and
unconditionally releases, acquits and forever discharges Employee, and
Employee's heirs, dependents, successors and assigns, or any of them
(collectively, including Employee, the "Employee Releasees") from any Claims
which Triton, the Company or any other subsidiary or affiliate of Triton has,
owns, or holds or claims to have, own or hold or which Triton, the Company or
any other subsidiary or affiliate of Triton at any time hereafter may have, own
or hold, or claim to have, own or hold, or claim to have, own or hold, against
each of the Employee Releasees, excepting only any Claims based on a breach of
the terms of this Agreement, intentional injury to the property of Triton, the
Company or any other subsidiary or affiliate of Triton, fraud, theft,
embezzlement or misappropriation of corporate assets.
(c) Employee acknowledges and agrees that each Company Releasee
(other than Triton and the Company, which are direct contractual beneficiaries)
is expressly intended to be, and is hereby made, a third party beneficiary of
Employee's covenants and releases contained in this Agreement. The Company
acknowledges and agrees that each Employee Releasee (other than Employee, who is
a direct contractual beneficiary) is expressly intended to be, and is hereby
made, a third party beneficiary of Triton's and the Company's covenants and
releases contained in this Agreement.
(d) Each of the above releasors agrees to indemnify the releasees
described herein for all loss, cost, damage and expense, including, but not
limited to, attorneys' fees, incurred by such releasees described herein or any
one of them, arising out of any breach of the provisions of the releases as set
forth in Sections 4(a), (b) and (c) above.
(e) Neither Employee nor any corporation or other entity
controlled by Employee shall make or cause to be made, directly or indirectly,
any disparaging, negative or other similar remarks concerning the Company or any
subsidiary or affiliate of the Company to any third person.
5. OLDER WORKER BENEFIT PROTECTION ACT CLAUSES.
(a) "Knowing and Voluntary" Waiver. You may revoke this Agreement
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within seven days after execution. By your signature below, you confirm that
you: (1) have read this Agreement carefully and completely; (2) have been given
a period of at least 45 days to consider and review this Agreement; (3) are
aware of your right to consult with legal counsel and acknowledge that you have
had ample opportunity to do so if you choose; and (4) understand all of the
provisions contained in the Agreement.
(b) Notice About Affected Employees. All employees of Triton
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Energy Limited who are subject to the mass layoff will be terminated and offered
this additional severance package. In accordance with the Older Workers Benefit
Protection Act, attached is a chart showing the job titles and ages of the
employees.
6. NO ADMISSION.
This Agreement (or its offer and negotiation) is not an admission by any of
Triton, the Company or Employee of any wrongdoing or liability.
7. NO REINSTATEMENT.
Employee agrees that Employee waives any right to reinstatement or future
employment with the Company following Employee's separation from the Company.
8. NON-DISCLOSURE; COOPERATION.
(a) Employee agrees that Employee will not disclose, or cause to be
disclosed the terms of this Agreement, or the fact that this Agreement exists,
except to Employee's attorneys, or to the extent otherwise required by law.
Employee agrees that Employee will cooperate in good faith with the Company in
connection with any civil or criminal litigation or governmental inquiry or
investigation involving the Company or any of its subsidiaries or affiliates, or
its or their properties, assets or businesses, or to which any of them may be a
party or a subject. Employee shall not in any way cooperate or lend assistance
to any parties that are now, or may in the future be, involved in legal
proceedings adverse to the Company except as may be required by applicable law.
(b) Employee and the Company acknowledge their mutual belief that the
excise tax (the "Excise Tax"), imposed by Section 4999 of the Internal Revenue
Code of 1986, as amended, will not apply to the payments contemplated by this
Agreement and the Consulting and Non-Compete Agreement (the "Payments"). In the
event that the Internal Revenue Service asserts that an Excise Tax is due in
respect of the Payments, however, Employee will promptly notify the Company of
such claim. Upon receipt of such notice, the Company will have the right to
require that Employee either pay the claim, in which case (if Employee did not
theretofore file a personal income tax return reflecting the application of the
Excise Tax) the Company will pay the amount of the Excise Tax payable in respect
of the Payments, or contest the claim, in which case the Company will pay
directly all costs and expenses (including, but not limited to, additional
interest and penalties and related legal, consulting or other similar fees)
incurred in connection with such contest, and if such contest is unsuccessful,
the Company will pay any Excise Tax or other tax (including interest and
penalties with respect thereto) imposed in respect of the Payments as a result
of such contest. The Company will have the right to control all proceedings
taken in connection with such contest and Employee agrees to take such action in
connection with contesting such claim as the Company shall reasonably request,
including, without limitation, accepting legal representation by an attorney
selected by the Company (who shall be reasonably satisfactory to Employee).
8. REVOCATION.
It is further understood that for the seven-day period commencing upon the
execution of this Agreement in duplicate originals and ending on the day
immediately preceding the Effective Date, Employee may revoke this Agreement by
providing written notice to the Company, and this Agreement shall not become
effective or enforceable until such revocation period has expired. Moreover, if
Employee revokes this Agreement, any and all originals or copies of this
Agreement must be returned to the Company at the time of revocation.
10. NO DURESS.
This Agreement has been entered into voluntarily and not as a result of
coercion, duress, or undue influence. Employee agrees that Employee has read and
fully understands the terms of this Agreement and has been advised to consult
with an attorney before executing this Agreement. Additionally, Employee agrees
that Employee has been given at least twenty-one days to consider this
Agreement.
11. SEVERABILITY.
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws effective during the term hereof,
such provision shall be fully severable and this Agreement shall be construed
and enforced as if such illegal, invalid or unenforceable provision never
comprised a part hereof; and the remaining provisions hereof shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid or unenforceable provision, there shall be added
automatically as part of this Agreement a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
12. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Texas. This Agreement is performable in Dallas County,
Texas.
13. ARBITRATION.
The parties agree that any controversy or claim arising out of or relating
to this Agreement, including any questions relating to its existence, validity
or termination, which cannot be resolved amicably by the parties within 30 days
after either party has notified the other, in writing, of the existence of a
dispute, will be settled exclusively by final and binding arbitration, before
three arbitrators. Arbitration will be governed by the Federal Arbitration Act
and administered by the Judicial Arbitration and Mediation Services Rules for
the Resolution of Employment Disputes (JAMS). The arbitrator is empowered to
award all appropriate remedies under Texas or federal law. The arbitrator shall
have exclusive authority to resolve any dispute relating to the validity,
interpretation, application and enforcement of this Agreement. Judgment on the
arbitrator's award may be enforced in any court with proper jurisdiction. Each
party will equally bear all costs and legal fees of arbitration, unless
otherwise required by law. The parties further agree that the arbitration will
occur in Dallas, Texas.
14. ENTIRE AGREEMENT.
This Agreement contains the entire understanding and agreement between or
among the Company, Triton and Employee with respect to the subject matter
herein, and supersedes all prior oral or written agreements between the parties
with respect to that subject matter.
15. NOTICE.
Any notice or communication hereunder must be in writing and given by
depositing the same in the United States mail, addressed to the party to be
notified, postage prepaid and registered or certified with return receipt
requested, by transmitting the same by facsimile transmission followed by United
States mail as aforesaid, or by delivering the same by overnight delivery
service or in person. Notice shall be deemed received on the date on which it is
delivered or transmitted by facsimile, or on the third business day following
the date on which it is so mailed. For purposes of notice, the addresses of
Employee shall be 0 Xxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000, and the address of
Triton or the Company shall be:
c/o Triton Energy
0000 X. Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Attention: Legal Department
Any party may change its address for notice by written notice given to the other
parties in accordance with this Section.
16. PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT INCLUDES A
RELEASE OF ALL KNOWN OR UNKNOWN CLAIMS AGAINST TRITON ENERGY LIMITED, TRITON
EXPLORATION SERVICES, INC. AND THE OTHER SUBSIDIARIES AND AFFILIATES OF TRITON
ENERGY LIMITED, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES,
SHAREHOLDERS, SUCCESSORS, ASSIGNS, AGENTS, INDEPENDENT AUDITORS AND ACCOUNTANTS,
REPRESENTATIVES, AND ATTORNEYS.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
____________________________
Xxxxx Xxxx
TRITON ENERGY LIMITED
By: __________________________
TRITON EXPLORATION SERVICES, INC.
By: __________________________
April 15, 1999
To Triton Energy Limited and all of its direct and indirect subsidiaries
and affiliates
Gentlemen:
I hereby resign as a director and/or officer of Triton Energy Limited and
each of its direct and indirect subsidiaries and affiliates, including without
limitation those on the attached list.
Very truly yours,
Xxxxx Xxxx
