Exhibit 10.1
CONSULTING AGREEMENT
BY AND BETWEEN
ENERGY PARTNERS, LTD.
AND
XXXXX X. XXXXXX
THIS CONSULTING AGREEMENT (the "Agreement"), entered into in Houston, Texas
on this 26th day of October, 2004, by and between Xxxxx X. Xxxxxx, an individual
of the full age of majority domiciled in Xxxxxx County, State of Texas
(hereinafter called "Consultant") and Energy Partners, Ltd., a corporation
organized and existing under the laws of the State of Delaware (hereinafter
called "Company"), represented herein by its duly authorized President, Xxxxxxx
X. Xxxxxxxx.
1. TERMS AND CONDITIONS OF CONSULTING.
1.1 Length Of Consulting Period. In consideration for the compensation and
other benefits set forth in Section 1.2 and other provisions of this
Agreement, the Company agrees to retain and Consultant agrees to be
retained by the Company as a consultant for the period beginning on
November 1, 2004 and ending on March 31, 2005 (the "Term").
During the Term, Consultant shall act as advisor to the Company and
its subsidiaries with respect to the Company's ongoing exploration
efforts and shall provide such advisory services with respect thereto
to the Company and its subsidiaries as the Board of Directors or
officers of the Company and its subsidiaries shall request from time
to time. Consultant shall promptly and faithfully report to the
Company with respect to the services provided from time to time as the
Board of Directors and officers of the Company and its subsidiaries
shall request.
1.2 Consideration. As compensation, Consultant will receive a monthly
retainer fee of $15,000 payable monthly in arrears. In addition, if
Consultant elects COBRA continuation coverage under any of the
Company's group medical and dental plans pursuant to Part 6 of
Subtitle B of Title I of the Employee Retirement Income Security Act
of 1974, as amended, the Company shall pay during the Term the
difference between the full amount of Consultant's premiums for such
continuation coverage and the amount Consultant would have been
required to pay for coverage if he had remained an employee of the
Company. The Consultant shall not participate in any other employee
plans, programs or arrangements of the Company. The Company will also
provide transitional email access to Consultant during the Term. The
Consultant shall be entitled to reimbursement of all reasonable and
documented out-of-pocket expenses incurred in connection with the
per-
formance of this Agreement. The Company agrees to pay such amounts
promptly upon request therefor with appropriate documentation.
1.3 Vested Stock Options. On the date hereof, Consultant owns vested stock
options to purchase an aggregate of 75,556 shares of common stock of
the Company. The Company and Consultant agree that that such options
may be exercised in accordance with the terms thereof until December
31, 2004, subject to approval by the Compensation Committee.
1.4 Termination of Employment. The employment relationship between
Consultant and the Company will terminate on October 31, 2004.
Effective as of October 31, 2004, Consultant hereby resigns all
director, officer and employee positions with the Company, its
subsidiaries and its affiliates, and will cease to act as "Earnout
Representative" (as defined in the Earnout Agreement dated January 15,
2002, as amended). Consultant and the Company acknowledge and agree
that the termination of Consultant's employment with the Company is a
voluntary termination without "Good Reason" within the meaning of
Section 1.5 of the Consultant's Employment and Stock Ownership
Agreement with the Company, dated January 15, 2002, as amended in
March 2004 (the "Employment Agreement").
1.5 Non Solicitation. During the Term, Consultant shall not employ or
otherwise engage the services of any person who is an employee of the
Company or any of its subsidiaries or affiliates on the date hereof.
For the avoidance of doubt, Consultant acknowledges and agrees that he
will continue to be bound by, and will comply with, Sections 1.8 and
1.9 of the Employment Agreement relating to non-competition and
non-solicitation covenants and agreements.
1.6 Certain Limitations. Consultant shall not represent that he has the
direct or indirect power or ability to bind, or make any decision on
behalf of, the Company or any of its subsidiaries. The parties
acknowledge that none of the terms or provisions set forth herein,
expressly or by implication, in any way permit Consultant to bind (or
hold himself out as having, or imply that he has, the right or power
to bind) the Company or any of its subsidiaries with respect to any
matter. Consultant shall have no power or authority other than as
expressly granted and set forth herein and no other or greater power
shall be implied from the grant or denial of powers specifically
mentioned herein, including no binding power or authority. Nothing
contained in this Agreement shall be construed to create the relation
of employer and employee between Consultant and the Company.
2. MISCELLANEOUS.
2.1 Entire Agreement. This Agreement embodies the entire agreement between
the parties hereto regarding the subject matter hereof, and will be
binding upon Consultant and Consultant's heirs, legatees, legal
representatives, successors, donees, transferees and assigns, and
Consultant does hereby authorize and obligate Con-
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sultant's executors, heirs and legatees to comply with the terms of
this Agreement. The parties will not be bound by or be liable for any
statement, representation, promise, inducement or understanding of any
kind or nature regarding the subject matter hereof which is not set
forth herein. No changes, amendments or modifications of any of the
terms or conditions of this document will be valid unless reduced to
writing and signed by all parties hereto, the Company being
represented by its President or his designee.
2.2 Severability. Each provision of this Agreement is intended to be
severable. In the event that any one or more of the provisions
contained in this Agreement will for any reason be held to be invalid,
illegal, or unenforceable, such holding will not affect the validity
or enforceability of any other provision of this Agreement, and this
Agreement will be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein; provided,
however, that no provision will be severed if it is clearly apparent
under the circumstances that the parties would not have entered into
this Agreement without such provision.
2.3 Independent Contractor Status. Consultant acknowledges that his
engagement under this Agreement is as an independent contractor and
not as an employee of the Company or any of its subsidiaries and
affiliates. Accordingly, Consultant will be solely responsible for the
payment of all income taxes and other taxes on amounts payable to him
under Section 1.2 of this Agreement, and the Company will not be
obligated to withhold any amounts from such payments.
2.4 APPLICABLE LAW. THIS DOCUMENT WILL BE CONSTRUED FOR ALL PURPOSES AS A
TEXAS DOCUMENT AND WILL BE INTERPRETED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAW.
2.5 Number and Gender. As used herein, the singular will include the
plural and vice versa and words used in one gender will include all
others as appropriate.
2.6 Additional Documents. The parties hereto agree to execute whatever
documents or instruments and to perform whatever acts may be
reasonably required to fulfill the requirements and/or intents hereof.
2.7 Legal Assistance. The parties hereto have each consulted with legal
counsel or have had the opportunity to consult with legal counsel
regarding the terms and conditions of this Agreement.
2.8 Headings. Section headings and other headings contained in this
Agreement are for reference purposes only and will not affect in any
way the meaning or interpretation of this Agreement.
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2.9 Amendments. This Agreement may be amended or modified in all respects
at any time but only by an instrument in writing executed by the
parties hereto.
2.10 Waiver. The failure by any party to enforce any of its rights
hereunder will not be deemed to be a waiver of such rights, unless
such waiver is an express written waiver which has been signed by the
waiving party. Waiver of any one breach will not be deemed to be a
waiver of any other breach.
2.11 Counterpart Execution. This Agreement may be executed in separate
counterparts, with the same effect as if the parties hereto had signed
the same document. Counterparts so executed and delivered shall be
deemed to be an original, shall be construed together and shall
constitute one Agreement.
[Signatures Follow]
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IN WITNESS WHEREOF, the parties hereto have set forth their hands on the
day, month and year first above written in multiple originals, each of which
shall have the same force and effect as if it were the sole original.
ENERGY PARTNERS, LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxx
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Consultant: Xxxxx X. Xxxxxx
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