EXHIBIT 10(i)
SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE (this "Agreement") is made by and
between Xxxxxx Drilling Company ("Company") and Xxx Xxxxxxxxx ("Employee").
PURPOSE
Company has informed Employee that his employment will terminate on
September 30, 2003 ("the Termination Date"). Consistent with the terms,
conditions and limitations of the Employment Agreement between Company and
Employee dated November 1, 2002 as amended and restated ("Employment
Agreement"), Employee is eligible to receive certain payments and benefits
subject to the execution of this Agreement. Employee agrees that all such
payments and benefits described herein are in full and complete satisfaction of
any and all obligations the Company has or may have to Employee and that the
payments represent something of value beyond anything that he is entitled to. To
achieve a final and amicable resolution of the employment relationship in all
its aspects and in consideration of the mutual covenants and promises herein
contained and other good and valuable consideration, the receipt and
sufficiently of which is hereby acknowledged, the parties hereto agree as
follows:
COVENANTS AND OBLIGATIONS OF COMPANY
Payment of Separation Benefits: The Company shall pay to Employee a
severance payment in a lump sum amount of $491,809 and provide the following
benefits, subject to the Employee satisfying all specified conditions described
herein:
- Group Health/Dental Plan ("Health Plan") coverage for 18
months for Employee and spouse at no monthly contribution cost
to Employee, subject to the terms and limitations contained in
the Employment Agreement and further subject to the terms of
the Health Plan. Spouse will only be eligible for this
provision if she remains married to Employee throughout the
time period.
- Outplacement Services (capped at $15,000). Company will select
the outplacement firm.
- Company will extend the vesting dates for stock option grants
through September 30, 2005 and the expiration dates for such
stock option grants will remain in effect
consistent with the information contained in the optionee
statement dated December 31, 2002. Both of these benefits are
subject to Board approval.
- The Company agrees to waive, in its entirety, and without
reservation, Section 17 of the Employment Agreement. Section
17 specifically pertains to a one year restrictive covenant
imposed against the Employee, effective on the termination
date, for performing any similar duties as those performed
while at the company, either directly or indirectly, for
customers of the company, or any affiliate or any business
entity that sells, provides or develops products or services
competitive with any products or services sold, provided or
developed by the company or any affiliate. Notwithstanding the
waiving of Section 17 in its entirety, all other restrictions
contained in the Employment Agreement remain in full force and
effect.
Payment of the lump sum will be subject to normal payroll taxes and
shall be mailed to Employee as soon as administratively feasible after his
employment is terminated.
Other Benefits: Neither this Agreement nor the release contained herein
shall waive Employee's right to any vested, accrued benefit under a Company
stock option plan or benefit plan in which Employee is a qualified participant,
including, but not limited to, any benefits under a pension or retirement plan.
COVENANTS AND OBLIGATIONS OF EMPLOYEE
In consideration of the promises and covenants of Company contained in
this Agreement, Employee agrees to the following:
Waiver of Reinstatement and Future Employment: Employee forever waives
and relinquishes any right or claim to reinstatement to active employment with
Company, its affiliates, subsidiaries, divisions, successors and parent
companies. Employee further acknowledges that Company has no obligation to
rehire or return Employee to active duty at any time in the future.
RELEASE: EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, EMPLOYEE
FULLY AND FOREVER RELIEVES, RELEASES AND DISCHARGES COMPANY, ITS PREDECESSORS,
SUCCESSORS, SUBSIDIARIES, OPERATING UNITS, AFFILIATES, DIVISIONS, AND PARENT
COMPANIES AND THE AGENTS, REPRESENTATIVES,
OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND ATTORNEYS OF EACH OF THE
FOREGOING, FROM ALL CLAIMS, DEBTS, LIABILITIES, DEMANDS, OBLIGATIONS, PROMISES,
ACTS, AGREEMENTS, COSTS, EXPENSES, DAMAGES, ACTIONS AND CAUSES OF ACTION WHETHER
IN LAW OR IN EQUITY, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, ARISING
FROM EMPLOYEE'S EMPLOYMENT WITH AND TERMINATION BY COMPANY, INCLUDING, BUT NOT
LIMITED TO, ANY AND ALL CLAIMS PURSUANT TO TITLE VII OF THE CIVIL RIGHTS ACT OF
1964, 42 U.S.C. SECTION 2000e, ET SEQ., AS AMENDED BY THE CIVIL RIGHTS ACT OF
1991, WHICH PROHIBITS DISCRIMINATION IN EMPLOYMENT BASED ON RACE, COLOR,
NATIONAL ORIGIN, RELIGION OR SEX; THE CIVIL RIGHTS ACT OF 1866, 42 U.S.C.
SECTION 1981, 1983 AND 1985, WHICH PROHIBITS VIOLATIONS OF CIVIL RIGHTS; THE AGE
DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED, AND AS FURTHER AMENDED BY
THE OLDER WORKERS BENEFIT PROTECTION ACT, 29 U.S.C. SECTION 621, ET SEQ., WHICH
PROHIBITS AGE DISCRIMINATION IN EMPLOYMENT; THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, 29 U.S.C. SECTION 1001, ET SEQ., WHICH
PROTECTS CERTAIN EMPLOYEE BENEFITS; THE AMERICANS WITH DISABILITIES ACT OF 1990,
AS AMENDED, 42 U.S.C. SECTION 12101, ET SEQ., WHICH PROHIBITS DISCRIMINATION
AGAINST THE DISABLED; THE FAMILY AND MEDICAL LEAVE ACT OF 1993, 29 U.S.C.
SECTION 2601, ET SEQ., WHICH PROVIDES MEDICAL AND FAMILY LEAVE; THE FAIR LABOR
STANDARDS ACT, 29 U.S.C. SECTION 201, ET SEQ., INCLUDING THE WAGE AND HOUR LAWS
RELATING TO PAYMENT OF WAGES; STATE STATUTES WHICH PROHIBIT DISCHARGE IN
RETALIATION FOR EXERCISING RIGHTS UNDER WORKERS COMPENSATION LAWS; AND ALL OTHER
FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS PROHIBITING EMPLOYMENT
DISCRIMINATION. THIS RELEASE ALSO INCLUDES, BUT IS NOT LIMITED TO, A RELEASE BY
EMPLOYEE OF ANY CLAIMS FOR BREACH OF CONTRACT, MENTAL PAIN, SUFFERING AND
ANGUISH, EMOTIONAL UPSET, IMPAIRMENT OF ECONOMIC OPPORTUNITIES, UNLAWFUL
INTERFERENCE WITH EMPLOYMENT RIGHTS, DEFAMATION, INTENTIONAL OR NEGLIGENT
INFLICTION OF EMOTIONAL DISTRESS, FRAUD, WRONGFUL TERMINATION, WRONGFUL
DISCHARGE IN VIOLATION OF PUBLIC POLICY, CONSTRUCTIVE DISCHARGE, BREACH OF ANY
EXPRESS OR IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING, THAT THE COMPANY HAS
DEALT WITH EMPLOYEE UNFAIRLY OR IN BAD FAITH, AND ALL OTHER COMMON LAW CONTRACT
AND TORT CLAIMS. EMPLOYEE IS NOT WAIVING ANY RIGHTS OR CLAIMS THAT MAY ARISE
AFTER THIS AGREEMENT IS SIGNED BY EMPLOYEE, NOR IS EMPLOYEE WAIVING ANY RIGHTS
OR CLAIMS TO WORKERS' COMPENSATION MEDICAL AND DISABILITY BENEFITS ARISING FROM
AN INDUSTRIAL INJURY OR OCCUPATIONAL DISEASE. EMPLOYEE REPRESENTS THAT EMPLOYEE
HAS NOT GIVEN OR SOLD ANY PORTION OF ANY CLAIM DISCUSSED IN THIS AGREEMENT TO
ANYONE.
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EMPLOYEE AGREES THAT SHOULD EMPLOYEE ASSERT ANY CLAIM(S) ENCOMPASSED BY
THE RELEASE AGAINST THE COMPANY OR ANY RELEASED PARTY AND SHOULD ANY PORTION OR
ASPECT OF THE RELEASE BE HELD VOID OR UNENFORCEABLE AS TO THE CLAIM(S), THE
COMPANY SHALL BE ENTITLED TO AN OFFSET AGAINST THE EMPLOYEE'S CLAIM(S) FOR THE
ENTIRE AMOUNT OF THE MONETARY CONSIDERATION PAID HEREUNDER.
Non-Solicitation and Non-Disclosure Agreement: For a period of twelve
(12) months following execution of this Agreement, Employee agrees not to offer
employment to any employee of Company or induce, or attempt to induce, any
employee of Company to leave the employ of Company. Employee further agrees that
he/she will not directly or indirectly, use for Employee's benefit or the
benefit of any third party, or disclose and/or release to any person, firm,
corporation, association or other entity, except as may be compelled through
legal process, any confidential information of Company which includes, without
limitation, the following:
a. any systems, techniques and methods of operation of Company,
and
b. any sales prospects, customer lists, accounts, projects,
plans, activities, analysis, evaluations, research or data of
any kind, and
c. patented processes and engineered products, terms and
conditions of this Agreement, customer contracts and
information on the needs of customers, or any information
relating to its business, strategic plans, sales costs, books
and records, profits or the financial condition of Company or
any of its customers or prospective customers, which are not
generally known to the public or recognized as standard
practice in the industries in which the Company is engaged.
REPRESENTATIONS OF PARTIES
The parties represent and warrant to and agree as follows:
Employee acknowledges that the sum to be paid by Company hereunder is
consideration to which Employee is not otherwise entitled under any Company
plan, program or prior agreement.
This Agreement has been carefully read by each of the parties and the
contents hereof are known and understood by each of the parties. It is signed
freely by each party executing this Agreement.
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Employee acknowledges that Employee has been extended a period of
twenty-one (21) days within which to consider this Agreement.
For a period of seven (7) days following Employee's execution of the
Agreement, Employee may revoke the Agreement by notifying Company, in writing,
of Employee's desire to do so. After the seven (7) day period has elapsed, this
Agreement shall become effective and enforceable.
Employee acknowledges Employee has been advised by the Company to
consult with an attorney before executing this Agreement.
GENERAL PROVISIONS
No Admission of Liability: This Agreement and compliance with this
Agreement shall not be construed as an admission by Company of any liability
whatsoever, or as an admission by Company of any violation of the rights of
Employee or any other person, or any violation of any order, law, statute, duty
or contract.
Governing Law: This Agreement will be interpreted and enforced in
accordance with the laws of the State of Texas.
Entirety and Integration: Upon the execution hereof by all the parties,
this Agreement shall constitute a single, integrated contract expressing the
entire agreement of the parties relative to the subject matter hereof and,
except as otherwise provided herein, shall supersede all prior negotiations,
understandings and/or agreements, if any, of the parties. Except as otherwise
referenced herein, no covenants, agreements, representations, or warranties of
any kind whatsoever have been made by any party hereto, except as specifically
set forth in this Agreement.
Authorization: Each person signing this Agreement as a party or on
behalf of a party represents that he or she is duly authorized to sign this
Agreement on such party's behalf, and is executing this Agreement voluntarily,
knowingly, and without any duress or coercion.
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Dated: 9-25-03 /s/ Xxxxxx X. Xxxxxxxxx
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EMPLOYEE
Dated: 10-3-03 XXXXXX DRILLING COMPANY
By: /s/ Xxxxxx Xxxx
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Its:
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THIS AGREEMENT IS VOID UNLESS EXECUTED BY EMPLOYEE AND RETURNED TO XXXXXX
DRILLING WITHIN 21 DAYS OF ITS RECEIPT
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