EXHIBIT 10.17
EMPLOYMENT AGREEMENT
This Employment Agreement ("AGREEMENT") is made and entered into as of
February 7, 2005 (the "EFFECTIVE DATE"), by and between MARINER ENERGY, INC., a
Delaware corporation (hereafter "COMPANY"), and XXXXXX XXXXXXX (hereafter
"EXECUTIVE").
1. EMPLOYMENT. During the Employment Period (as defined in Section 4
hereof), the Company shall employ Executive, and Executive shall serve, as Vice
President and General Counsel, reporting to the President or Chief Executive
Officer of the Company.
2. DUTIES AND RESPONSIBILITIES OF EXECUTIVE.
(a) During the Employment Period, Executive shall devote her full
time and attention during normal business hours to the business of the
Company, will act in the best interests of the Company and will perform
with due care her duties and responsibilities. Executive's duties will
include those normally incidental to the position of Vice President and
General Counsel as well as whatever additional duties may be assigned to
her by the Board of Directors of the Company (the "BOARD") or the Chief
Executive Officer of the Company. Executive agrees to cooperate fully with
the Board and the Chief Executive Officer of the Company and not to engage
in any activity that materially interferes with the performance of
Executive's duties hereunder. During the Employment Period, Executive will
not hold outside employment without the advance written approval of the
Board. Provided that it shall not be a violation of this Agreement for
Executive to (1) serve on corporate, civic, or charitable boards or
committees (except for boards or committees of a business organization
that competes with the Company in any business in which the Company is
regularly engaged), which are listed on EXHIBIT A so long as such service
does not materially interfere with the performance of Executive's duties
and responsibilities under this Agreement, as determined in the good faith
opinion of the Board, (2) manage personal investments, or (3) take
vacation days and reasonable absences due to injury or illness, as set
forth herein and/or permitted by the general policies of the Company.
(b) Executive represents and covenants to the Company that she is
not subject or a party to any employment agreement, noncompetition
covenant, nondisclosure agreement, or any other agreement, covenant,
understanding, or restriction that would prohibit Executive from executing
this Agreement and fully performing her duties and responsibilities
hereunder, or would in any manner, directly or indirectly, limit or affect
the duties and responsibilities that may now or in the future be assigned
to Executive hereunder.
(c) Executive acknowledges and agrees that Executive owes the
Company a duty of loyalty and that the obligations described in this
Agreement are in addition to, and not in lieu of, the obligations
Executive owes the Company under the common law.
3. COMPENSATION.
(a) During the Employment Period (as defined in Section 4 hereof),
the Company shall pay to Executive an annualized base salary of $200,000
(the "BASE SALARY") in consideration for Executive's services under this
Agreement, payable on a not less than semi-monthly basis, in conformity
with the Company's customary payroll practices for executive salaries. For
all purposes of this Agreement, Executive's Base Salary shall include any
portion thereof which is deferred under any nonqualified plan or
arrangement. Each year, the Board shall review Executive's salary based on
market survey data, corporate performance, and performance of Executive.
If, in its sole and complete discretion, the Board determines that an
increase in Executive's salary is appropriate, the Board may make such
adjustment, and such adjusted salary shall thereafter be Executive's Base
Salary for purposes of this Agreement. Executive's Base Salary may not be
reduced except as part of a general reduction of salaries paid to
management employees that is necessitated by business conditions, as
determined by the Board.
(b) Executive may be eligible for an annual discretionary
performance bonus with respect to each calendar year during the Employment
Period (the "ANNUAL BONUS"). The amount, if any, of Executive's Annual
Bonus will be determined by the Board in its sole and complete discretion
based on market survey data, corporate performance, and performance of
Executive. Bonus determinations will be made by the Board at a time
convenient to the Board but typically within 60 calendar days of the end
of each calendar year. The Board will, on an annual basis (at or near the
beginning of each calendar year in the Employment Period) establish a
target bonus for Executive for the upcoming year, and will communicate
such target to Executive. If the Board determines to award Executive an
Annual Bonus, it will be payable in conformity with the Company's
customary payroll practices for executive bonuses. The Board may also
award additional bonuses or other compensation to Executive at any time in
its sole and complete discretion.
(c) Any salary, bonus, and other compensation payments hereunder
shall be subject to such payroll and other taxes, withholdings, and
deductions as may be required by applicable law or with respect to
Executive's coverage in the Company's insurance and other employee benefit
plans.
4. TERM OF EMPLOYMENT. The initial term of this Agreement shall be for the
period beginning on the Effective Date and ending at midnight (EST) on March 2,
2006 (the "INITIAL TERM"); provided, however, that if the Company consummates an
initial public offering of its common stock prior to March 3, 2006, the Initial
Term shall end on March 2, 2007. For all purposes of this Agreement, the
consummation of a sale under Rule 144A and/or Regulation D of equity securities
of the Company shall be treated as the consummation of an initial public
offering by the Company. On March 3, 2006 (or 2007, if applicable) and on March
3 of each succeeding year (each such date being referred to as a "RENEWAL
DATE"), this Agreement shall automatically renew and extend for a period of 12
months (a "RENEWAL TERM") unless written notice of non-renewal is delivered from
one party to the other at least 90 days prior to such
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Renewal Date (in which case the Termination Date shall be the day immediately
prior to such Renewal Date). Notwithstanding any other provision of this
Agreement, this Agreement may be terminated at any time during the Initial Term
or the Renewal Term (if any) in accordance with Section 6. The period from the
Effective Date through the Termination Date of this Agreement, regardless of the
time or reason for such termination, shall be referred to herein as the
"EMPLOYMENT PERIOD." In the event that this Agreement is not renewed, Executive
shall become an at-will employee of the Company and the Company shall have the
right to terminate Executive's employment with the Company at any time.
5. BENEFITS. Subject to the terms and conditions of this Agreement,
Executive shall be entitled to the following benefits during the Employment
Period:
(a) REIMBURSEMENT OF BUSINESS EXPENSES. The Company agrees to
reimburse Executive for reasonable business-related expenses incurred in
the performance of Executive's duties under this Agreement.
(b) BENEFIT PLANS AND PROGRAMS. To the extent permitted by
applicable law and subject to the terms and eligibility requirements of
any such plan or program, Executive will be eligible to participate in all
benefit plans and programs, including improvements or modifications of the
same, that are maintained by the Company generally for executive employees
of the Company, subject to the eligibility requirements and other terms
and conditions of those plans and programs. The Company will not, however,
by reason of this Section 5(b) be obligated either (1) to institute,
maintain, or refrain from changing, amending, or discontinuing any such
benefit plan or program, or (2) to provide Executive with all benefits
provided to any other person or individual employed by the Company or any
of its affiliates.
6. TERMINATION OF EMPLOYMENT.
(a) COMPANY'S RIGHT TO TERMINATE. At any time during the Initial
Term or any Renewal Term, the Company shall have the right to terminate
this Agreement and Executive's employment with the Company for any of the
following reasons:
(1) Upon Executive's death (in which case the Termination Date
shall be the date of Executive's death);
(2) Upon Executive's Disability (as defined below);
(3) For Cause (as defined in Section 7); or
(4) For any other reason whatsoever, in the sole and complete
discretion of the Company.
(b) EXECUTIVE'S RIGHT TO TERMINATE. At any time during the Initial
Term or any Renewal Term, Executive will have the right to terminate this
Agreement and Executive's employment with the Company for:
(1) Good Reason (as defined in Section 7); or
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(2) For any other reason whatsoever, in the sole and complete
discretion of Executive.
(c) "DISABILITY." For purposes of this Agreement, "Disability" means
that Executive has sustained sickness or injury that renders Executive
incapable of performing the duties and services required of Executive
hereunder for a period of 90 consecutive calendar days or a total of 120
calendar days during any 12 month period.
(d) "NOTICES." Any termination of this Agreement by the Company
under Section 6(a) (other than termination due to the death of Executive),
or by Executive under Section 6(b) shall be communicated by a Notice of
Termination to the other party. A "Notice of Termination" means a written
notice that (1) indicates the specific termination provision in this
Agreement relied upon and (2) if the termination is by the Company for
Cause or by Executive for Good Reason, sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated. The Notice of
Termination must specify the Termination Date. In the case of a
termination by the Company for Cause or due to Executive's Disability, or
by Executive for Good Reason, the Termination Date may be as early as the
date notice is given but no later than 30 calendar days after notice is
given, unless otherwise agreed to in writing by both parties. In the case
of a termination by the Company or by Executive for any other reason, the
Termination Date may be as early as 14 calendar days after notice is given
but no later than 60 calendar days after notice is given, unless otherwise
agreed to by the parties in writing.
7. SEVERANCE PAYMENTS.
(a) TERMINATION BY the Company. If (1) the Company terminates this
Agreement and Executive's employment with the Company and its affiliates
during the Initial Term or the Renewal Term (if any) pursuant to Section
6(a)(4), (2) Executive signs and does not revoke a waiver and release
agreement substantially similar to Exhibit B, and (3) Executive continues
to comply with Executive's ongoing obligations under Sections 11 and 12 of
this Agreement, then, subject to Section 7(h), the Company shall pay
Executive severance in accordance with Section 7(c). Such severance
payments shall be in addition to payment by the Company of all previously
unpaid amounts (including, without limitation, salary, bonuses, equity
plans, incentive compensation plans, fringe benefits, and expense
reimbursements) owed to Executive under this Agreement with respect to
periods prior to the Termination Date.
(b) TERMINATION BY EXECUTIVE. If (1) Executive terminates this
Agreement and Executive's employment with the Company and its affiliates
during the Initial Term or the Renewal Term (if any) pursuant to Section
6(b)(1), (2) Executive signs and does not revoke a waiver and release
agreement substantially similar to Exhibit B, and (3) Executive continues
to comply with Executive's ongoing obligations under Sections 11 and 12 of
this Agreement, then, subject to Section 7(h), the Company shall pay
Executive severance in accordance with Section 7(c). Such severance
payments shall be in addition to payment by the Company of all previously
unpaid amounts (including, without limitation, salary, bonuses, equity
plans, incentive compensation plans, fringe benefits,
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and expense reimbursements) owed to Executive under this Agreement with
respect to periods prior to the Termination Date.
(c) SEVERANCE AMOUNT. If the Company is required to pay Executive
severance by the express terms of Section 7(a) or 7(b), the Company shall
pay Executive the following as severance:
(1) Executive's Base Salary at the highest rate in effect
prior to the Termination Date as salary continuation for a period of
eighteen months commencing on the date on which Executive's
employment with the Company is terminated (the "TERMINATION DATE")
(the "SEVERANCE PERIOD"), payable in equal monthly installments
pursuant to the Company's customary payroll practices for executive
salaries; provided, however, that, at the option of the Company, the
amounts payable under this Section 7(c) may be paid by the Company
in one lump sum.
(2) Executive, Executive's spouse, and Executive's dependents
will continue to be eligible for coverage under the Company's group
health plan or any successor plan on the same basis as active
executive employees of the Company, their spouses, and their
dependents for the duration of the Severance Period. If and when
group health coverage under another employer's plan is made
available to Executive, Executive's spouse, or Executive's
dependents, the Company's obligations under this paragraph will
cease with respect to each person to whom such coverage is made
available, notwithstanding that such person may not in fact become
covered under such other employer's plan. Executive's portion of the
premium for such coverage shall be withheld from the salary
continuation payments described in paragraph (1) immediately above
or, if salary continuation has been paid in a lump sum, Executive
shall reimburse the Company for Executive's portion of the premium
on a monthly basis.
(3) An amount equal to the sum of amounts paid or payable to
Executive as bonuses by the Company for the year prior to the year
in which the Termination Date occurs. This amount will be payable in
one lump sum, to Executive within 30 days after the end of the
Severance Period.
(4) Executive shall become 100% vested in all of the shares of
restricted stock granted to Executive under the Mariner Energy, Inc.
Equity Participation Plan to the extent Executive is less than 100%
vested in such shares as of the Termination Date.
(5) Executive shall become 50% vested in all of the rights and
interests granted to Executive under the Company's stock and other
equity plans (other than the Mariner Energy, Inc. Equity
Participation Plan), including without limitation any stock options,
restricted stock, restricted stock units, performance units, and/or
performance shares to the extent Executive is less than 50% vested
in such award as of the Termination Date.
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(6) Notwithstanding any other provision hereof, if the Company
incurs an obligation to pay severance under this Section 7(c) in
connection with the termination of Executive's employment after the
consummation of an initial public offering by the Company, then,
subject to Section 7(h), Executive shall be entitled to receive the
amounts specified in Section 8(a) in lieu of the amounts specified
in Sections 7(c)(1) and 7(c)(3).
(7) Payments under this Section 7(c) shall be in lieu of any
severance benefits otherwise due to Executive under any severance
pay plan or program maintained by the Company that covers its
employees or executives generally. If Executive receives payment
under Section 8(a), payments otherwise payable under Section 7(c)(1)
shall terminate.
(d) TERMINATION IN EVENT OF EXECUTIVE'S DISABILITY. If (1) the
Company terminates Executive's employment with the Company and its
affiliates during the Initial Term or the Renewal Term (if any) pursuant
to Section 6(a)(2), (2) Executive signs and does not revoke a waiver and
release agreement substantially similar to Exhibit B, and (3) Executive
continues to comply with Executive's ongoing obligations under Section 11
and 12 of this Agreement, then, subject to Section 7(h), the Company shall
pay Executive the severance described in accordance with Section 7(e).
Such severance payments shall be in addition to payment by the Company of
all previously unpaid amounts (including, without limitation, salary,
bonuses, equity plans, incentive compensation plans, fringe benefits, and
expense reimbursements) owed to Executive under this Agreement with
respect to periods prior to the Termination Date.
(e) DISABILITY SEVERANCE. If the Company is required to pay
Executive severance by the express terms of Section 7(d), the Company
shall pay Executive the following as severance:
(1) Executive's Base Salary at the highest rate in effect
prior to the Termination Date as salary continuation for the
duration of the Severance Period, payable in equal monthly
installments pursuant to the Company's customary payroll practices
for executive salaries; provided, however, that, at the option of
the Company, the amounts payable under this Section 7(e) may be paid
by the Company in one lump sum.
(2) Executive, Executive's spouse, and Executive's dependents
will continue to be eligible for coverage under the Company's group
health plan or any successor plan on the same basis as active
executive employees of the Company, their spouses, and their
dependents for the duration of the Severance Period. Executive's
portion of the premium for such coverage shall be withheld from the
salary continuation payments described in paragraph (1) immediately
above or, if salary continuation has been paid in a lump sum,
Executive shall reimburse the Company for Executive's portion of the
premium on a monthly basis. If and when group health coverage under
another employer's plan is made available to Executive, Executive's
spouse, or Executive's dependents, the Company's obligations under
this paragraph will cease with respect to each
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person to whom such coverage is made available, notwithstanding that
such person may not in fact become covered under such other
employer's plan.
(3) An amount equal to the sum of amounts paid or payable to
Executive as bonuses awarded by the Company for the calendar year
prior to the calendar year in which the Termination Date occurs.
This amount will be payable in one lump sum to Executive within 30
days after the end of the Severance Period.
(4) Executive shall become 100% vested in all of the shares of
restricted stock granted to Executive under the Mariner Energy, Inc.
Equity Participation Plan to the extent Executive is less than 100%
vested in such shares as of the Termination Date.
(5) Executive shall become 50% vested in all of the rights and
interests granted to Executive under the Company's stock and other
equity plans (other than the Mariner Energy, Inc. Equity
Participation Plan), including without limitation any stock options,
restricted stock, restricted stock units, performance units, and/or
performance shares to the extent Executive is less than 50% vested
in such award as of the Termination Date.
(6) Notwithstanding any other provision hereof, if the Company
incurs an obligation to pay severance under this Section 7(e) in
connection with termination of Executive's employment after the
consummation of an initial public offering by the Company, then,
subject to Section 7(h), Executive shall be entitled to receive the
amounts specified in Section 8(a) in lieu of the amounts specified
in Sections 7(e)(1) and 7(e)(3).
(7) Payments under this Section 7(e) shall be in lieu of any
severance benefits otherwise due to Executive under any severance
pay plan or program maintained by the Company that covers its
employees or executives generally.
(f) "CAUSE" means the occurrence or existence, prior to occurrence
of circumstances constituting Good Reason, of any of the following events:
(1) Executive's gross negligence or material mismanagement in
performing, or material failure or inability (excluding as a result
of death or Disability) to perform, Executive's duties and
responsibilities as described herein or as lawfully directed by the
Board or the Chief Executive Officer of the Company;
(2) Executive's having committed any act of willful misconduct
or material dishonesty against the Company or any of its affiliates
(including theft, misappropriation, embezzlement, forgery, fraud,
falsification of records, or misrepresentation) or any act that
results in, or could reasonably be expected to result in, material
injury to the reputation, business or business relationships of the
Company or any of its affiliates;
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(3) Executive's material breach of this Agreement, any
fiduciary duty owed by Executive to the Company or its affiliates,
or any written workplace policies applicable to Executive (including
the Company's code of conduct and policy on workplace harassment)
whether adopted on or after the date of this Agreement;
(4) Executive's having been convicted of, or having entered a
plea bargain, a plea of nolo contendre or settlement admitting guilt
for, any felony, any crime of moral turpitude, or any other crime
that could reasonably be expected to have a material adverse impact
on the Company's or any of its affiliates' reputations; or
(5) Executive's having committed any material violation of any
federal law regulating securities (without having relied on the
advice of the Company's attorney to perform required acts on the
Chief Executive Officer's behalf) or having been the subject of any
final order, judicial or administrative, obtained or issued by the
Securities and Exchange Commission, for any securities violation
involving fraud, including, for example, any such order consented to
by Executive in which findings of facts or any legal conclusions
establishing liability are neither admitted nor denied.
(g) "GOOD REASON" means the occurrence, prior to occurrence of
circumstances constituting Cause, of any of the following events without
Executive's consent:
(1) Any material breach by the Company of this Agreement,
provided that Executive provides the Board written notice of such
breach within 90 days from the first date that she is aware, or
reasonably should be aware, of such breach and such breach is not
remedied within 30 days of the Board's receipt of such written
notice;
(2) Any requirement by the Company that Executive relocate
outside of the Houston metropolitan area;
(3) Failure of any successor to assume this Agreement not
later than the date as of which it acquires substantially all of the
equity, assets or businesses of the Company;
(4) Any material reduction in Executive's title,
responsibilities, or duties or the Board directs Executive to cease
reporting to the President or Chief Executive Officer of the
Company; or
(5) The assignment to Executive of any duties materially
inconsistent with her duties as Vice President and General Counsel
of the Company.
(h) LATER DETERMINATIONS. Notwithstanding any other provision of
this Agreement, if Executive's employment with the Company is terminated
such that Executive is entitled to severance from the Company and within
one year following such
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termination the Board determines that Cause exists or existed on, prior
to, or after such termination, Executive shall not be entitled to any
severance from the Company, and any and all severance payments from the
Company to Executive in any form or amount shall cease and any such
payments or reimbursements already made to Executive must be returned to
the Company.
8. CHANGE OF CONTROL.
(a) Upon the termination of Executive's employment with the Company
for any reason other than Cause at any time on or within nine months after
a Change of Control that occurs during the Employment Period or upon the
occurrence of a Change of Control within nine months following a
termination of Executive's employment that entitles Executive to severance
under Section 7(c), the Company shall pay Executive, subject to Section
8(d) below, an amount equal to 2.0 times the sum of Executive's Base
Salary plus her Average Bonus Amount. The Executive's "Average Bonus
Amount" shall be the average annual amount paid or payable to Executive as
bonuses for the Company's three calendar years ended immediately prior to
the occurrence of the Change of Control (or for the number of calendar
years that Executive has been an employee of the Company before the
occurrence of the Change of Control, if less than three); provided that
any payment otherwise payable under this Section 8(a) shall be subject to
Section 7(h) notwithstanding that such payment is not a severance payment.
(b) Upon the occurrence of a Change of Control that occurs during
the Employment Period or within nine months following a termination of
Executive's employment that entitles Executive to severance under Section
7(c), Executive shall become 100% vested in all of the rights and
interests granted to Executive under the Company's stock and other equity
plans, including without limitation any stock options, restricted stock,
restricted stock units, performance units, and/or performance shares to
the extent Executive is less than 100% vested in such award as of the
Termination Date.
(c) "Change of Control" means (i) after the Effective Date, any
person or group of affiliated or associated persons acquires more than 35%
of the voting power of the Company; (ii) the consummation of a sale of all
or substantially all of the assets of the Company; (iii) the dissolution
of the Company or (iv) the consummation of any merger, consolidation, or
reorganization involving the Company in which, immediately after giving
effect to such merger, consolidation or reorganization, less than 51% of
the total voting power of outstanding stock of the surviving or resulting
entity is then "beneficially owned" (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as amended) in the aggregate by
the stockholders of the Company immediately prior to such merger,
consolidation or reorganization. Notwithstanding the foregoing, a Change
of Control shall not include any acquisitions resulting from the
consummation of the private placement offering of common stock of the
Company under Rule 144A and/or Regulation D prior to March 31, 2005.
(d) Except as provided below, such Change of Control payments shall
be in addition to payment by the Company of all other amounts (including,
without limitation, salary, bonuses, equity plans, incentive compensation
plans, fringe benefits, and expense
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reimbursements) owed to Executive under other provisions of this
Agreement. Notwithstanding the foregoing, if on or before the Change of
Control Executive becomes or has become entitled to payment pursuant to
Section 7(c), the amount payable under this Section 8 shall be reduced by
the amount paid or payable to Executive under Section 7(c).
9. GROSS-UP PARACHUTE PAYMENT. In the event that Executive shall become
entitled to any amounts (the "Regular Amounts"), whether pursuant to the terms
of this Agreement or any other plan, arrangement or agreement with the Company,
any person whose actions result in a change of ownership covered by Section
280G(b)(2) of the Internal Revenue Code of 1986, as amended, or any person
affiliated with the Company or such person, that will be subject to the tax (the
"Excise Tax") imposed by Section 4999 of the Code (and any similar tax that may
hereafter be imposed), the Company shall pay to Executive an additional amount
(the "Gross-up Payment") such that the net amount retained by Executive after
payment of all applicable federal and state taxes on the sum of the Regular
Amount plus the Gross-up Payment, is equal to the net amount that would have
been retained by Executive after payment of all applicable federal and state
taxes on the Regular Amount if it had not been subject to the Excise Tax.
10. CONFLICTS OF INTEREST. Executive agrees that she shall promptly
disclose to the Board any conflict of interest involving Executive upon
Executive becoming aware of such conflict. Executive's ownership of an interest
not in excess of five percent in a business organization that competes with the
Company shall not be deemed to constitute a conflict of interest.
11. CONFIDENTIALITY. The Company agrees to provide Executive valuable
Confidential Information of the Company and of third parties who have supplied
such information to the Company. In consideration of such Confidential
Information and other valuable consideration provided hereunder, Executive
agrees to comply with this Section 11.
(a) "CONFIDENTIAL INFORMATION" means, without limitation and
regardless of whether such information or materials are expressly
identified as confidential or proprietary, (i) any and all non-public,
confidential or proprietary information or work product of the Company or
its affiliates, (ii) any information that gives the Company or its
affiliates a competitive business advantage or the opportunity of
obtaining such advantage, (iii) any information the disclosure or improper
use of which is reasonably expected to be detrimental to the interests of
the Company or its affiliates, (iv) any trade secrets of the Company or
its affiliates, and (v) any other information of or regarding the Company
or any of its affiliates, or its or their past, present or future, direct
or indirect, potential or actual officers, directors, employees, owners,
or business partners, including but not limited to information regarding
any of their businesses, operations, assets (including any Oil and Gas
Interests as defined below), liabilities, properties, systems, methods,
models, processes, results, performance, investments, investors, financial
affairs, future plans, business prospects, acquisition or investment
opportunities, strategies, business partners, business relationships,
contracts, contractual relationships, organizational or personnel matters,
policies or procedures, management or compensation matters, compliance or
regulatory matters, as well as any technical, seismic, industry, market or
other data, studies or research, or any forecasts, projections,
valuations,
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derivations or other analyses, performed, generated, collected, gathered,
synthesized, purchased or owned by, or otherwise in the possession of, the
Company or its affiliates or which Executive has learned of through her
employment with the Company. Confidential Information also includes any
non-public, confidential or proprietary information about or belonging to
any third party which has been entrusted to the Company or its affiliates.
Notwithstanding the foregoing, Confidential Information does not include
any information which is or becomes generally known by the public other
than as a result of Executive's actions or inactions. "OIL AND GAS
INTERESTS" means: (a) direct and indirect interests in and rights with
respect to oil, gas, mineral and related properties (including revenues or
net revenues therefrom) and assets of any kind and nature, direct or
indirect, including without limitation working, royalty and overriding
royalty interests, mineral interests, leasehold interests, production
payments, operating rights, net profits interests, other non-working
interests and non-operating interests; (b) interests in and rights with
respect to Hydrocarbons and other minerals or revenues therefrom and
contracts or agreements in connection therewith and claims and rights
thereto (including oil and gas leases, operating agreements, unitization
and pooling agreements and orders, division orders, transfer orders,
mineral deeds, royalty deeds, oil and gas sales, exchange and processing
contracts and agreements and, in each case, interests thereunder), surface
interests, fee interests, reversionary interests, reservations and
concessions; (c) easements, rights of way, licenses, permits, leases, and
other interests associated with, appurtenant to, or necessary for the
operation of any of the foregoing; and (d) interests in equipment and
machinery (including well equipment and machinery), oil and gas
production, gathering, transmission, compression, treating, processing and
storage facilities (including tanks, tank batteries, pipelines and
gathering systems), pumps, water plants, electric plants, gasoline and gas
processing plants, refineries and other tangible personal property and
fixtures associated with, appurtenant to, or necessary for the operation
of any of the foregoing, regardless of location. "HYDROCARBONS" means oil,
condensate gas, casinghead gas and other liquid or gaseous hydrocarbons.
(b) PROTECTION. In return for the Company's promise to provide
Executive with Confidential Information, Executive promises (i) to keep
the Confidential Information, and all documentation, materials and
information relating thereto, strictly confidential, (ii) not to use the
Confidential Information for any purpose other than as required in
connection with fulfilling her duties as Vice President and General
Counsel for the benefit of the Company, and (iii) to return to the Company
all documents containing Confidential Information in Executive's
possession upon separation from the Company for any reason. For the sake
of clarity, Executive specifically acknowledges and agrees that (x) the
definition of Confidential Information in Section 11(a) includes (but is
not limited to) any nonpublic information about the Oil and Gas Interests
(as defined above) and any other assets, investments, properties, sites or
locations in which the Company or its affiliates have an ownership or
other interest or right, as well as any Oil and Gas Interests (as defined
above), assets, investments, properties, sites, locations, acquisitions or
other business prospects upon which the Company or its affiliates have
expended resources in the past, are currently expending resources, or are
contemplating expending resources in the future, and (y) that any use by
Executive of such Confidential Information other than as required in
connection with fulfilling her duties as Executive
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for the benefit of the Company will be a material breach of this
Agreement. The immediately preceding sentence has been included for the
purpose of highlighting certain aspects of the foregoing covenants and
shall in no event be read to limit or narrow the foregoing covenants.
(c) SCOPE. Executive understands and agrees that all Confidential
Information, in whatever medium (verbal, written, electronic or other), is
subject to this Agreement whether provided directly to Executive or not,
whether provided to Executive prior to the Effective Date of this
Agreement or not, and whether inadvertently disclosed to Executive or not.
Confidential Information which was or is available to Executive or to
which Executive had or has access will be deemed to have been provided to
Executive. Executive also hereby agrees that Confidential Information
shall be deemed to include information regarding the assets of the
Company, even if such information was learned by Executive prior to
formation of the Company.
(d) VALUE AND SECURITY. Executive understands and agrees that all
Confidential Information, and every portion thereof, constitutes the
valuable intellectual property of the Company, its affiliates, and/or
third parties, and Executive further acknowledges the importance of
maintaining the security and confidentiality of the Confidential
Information and of not misusing the Confidential Information.
(e) DISCLOSURE REQUIRED BY LAW. If Executive is legally required to
disclose any Confidential Information, Executive shall promptly notify the
Company in writing of such request or requirement so that the Company may
seek an appropriate protective order or other relief. Executive agrees to
cooperate with and not to oppose any effort by the Company to resist or
narrow such request or to seek a protective order or other appropriate
remedy. In any case, Executive will (a) disclose only that portion of the
Confidential Information that, according to the advice of Executive's
counsel, is required to be disclosed (and Executive's disclosure of
Confidential Information to Executive's counsel in connection with
obtaining such advice shall not be a violation of this Agreement), (b) use
reasonable efforts (at the expense of the Company) to obtain assurances
that such Confidential Information will be treated confidentially, and (c)
promptly notify the Company in writing of the items of Confidential
Information so disclosed.
(f) THIRD-PARTY CONFIDENTIALITY AGREEMENTS. To the extent that the
Company possesses any Confidential Information which is subject to any
confidentiality agreements with, or obligations to, third parties,
Executive will comply with all such agreements or obligations in full. The
immediately preceding sentence shall apply only if the Company has
provided Executive with a copy of such agreements, and Executive may
disclose such agreements and any related Confidential Information to
Company's attorneys and rely on their advice regarding compliance
therewith.
(g) SURVIVAL. The covenants made by Executive in this Section 11,
other than Paragraph (f) hereof, will be effective only during the
Employment Period and for the two-year period immediately following the
Employment Period, and to that extent (and only that extent) shall survive
termination of this Agreement. The covenants made by
12
Executive in Paragraph (f) of this Section 11 will be effective during the
period specified in the confidentiality agreements described therein.
12. NO SOLICITATION. Executive shall not, for a period of one year after
the Termination Date, either as principal, agent, independent contractor,
consultant, director, officer, employee, employer, advisor, stockholder,
partner, member, joint venturer, owner or in any other individual or
representative capacity whatsoever, whether paid or unpaid, either for her own
benefit or for the benefit of any other person or entity, either (A) contact or
solicit, with respect to hiring, any person known by Executive to be or to have
been, at any time during the 12-month period immediately preceding the
Termination Date, an employee of the Company or its affiliates, or (B) induce or
otherwise counsel, advise or encourage any employee of the Company or its
affiliates to leave the employment of the Company or their respective employment
with the Company's affiliates, as the case may be; provided, however, that this
restriction shall not apply to any solicitations contained in an advertisement
directed generally to the public or the trade, nor to any contacts resulting
from such a solicitation. If Executive fails to comply with this Section 12, the
Company shall be entitled to, among other remedies, compliance by Executive with
the terms of this section for an additional period of time that shall equal the
period over which such noncompliance occurred. Notwithstanding any other
provision hereof, this Section 12 shall not apply (1) if the Company terminates
Executive's employment with the Company and its affiliates pursuant to Section
6(a)(4) or pursuant to delivery by the Company to Executive of a notice of
non-renewal in accordance with Section 4, (2) if Executive terminates
Executive's employment with the Company and its affiliates pursuant to Section
6(b)(1), or (3) after the occurrence of a Change of Control.
13. DEFENSE OF CLAIMS. Executive agrees that, during the Employment Period
and for a period of 36 months after the Termination Date, upon request from the
Company, Executive will cooperate with the Company and its affiliates in the
defense of any claims or actions that may be made by or against the Company or
any of its affiliates that relate to Executive's prior areas of responsibility,
except if Executive's reasonable interests are adverse to the Company or
affiliates in such claim or action. If Executive is not an employee of the
Company or an affiliate at such time, the Company agrees to compensate Executive
for her time spent on such matters at the rate of $150 per hour, and in
addition, to pay or reimburse Executive for all of Executive's reasonable travel
and other direct expenses incurred, or to be reasonably incurred, to comply with
Executive's obligations under this Section 13, provided Executive provides
reasonable documentation of same.
14. WITHHOLDINGS: RIGHT OF OFFSET. The Company may withhold and deduct
from any payments made or to be made pursuant to this Agreement (a) all federal,
state, local and other taxes as may be required pursuant to any law or
governmental regulation or ruling, (b) any deductions consented to in writing by
Executive, and (c) any other sums owed by Executive to the Company, any
affiliate, or any employee benefit plan or program of the Company or any
affiliate.
15. SEVERABILITY. It is the desire of the parties hereto that this
Agreement be enforced to the maximum extent permitted by law, and should any
provision contained herein be held unenforceable by a court of competent
jurisdiction or arbitrator (pursuant to Section 17), the parties hereby agree
and consent that such provision shall be reformed to create a valid and
13
enforceable provision to the maximum extent permitted by law; provided, however,
if such provision cannot be reformed, it shall be deemed ineffective and deleted
herefrom without affecting any other provision of this Agreement.
16. TITLE AND HEADINGS; CONSTRUCTION. Titles and headings to Sections
hereof are for the purpose of reference only and shall in no way limit, define
or otherwise affect the provisions hereof. Any and all Exhibits referred to in
this Agreement are, by such reference, incorporated herein and made a part
hereof for all purposes. The words "herein", "hereof", "hereunder" and other
compounds of the word "here" shall refer to the entire Agreement and not to any
particular provision hereof.
17. ARBITRATION; INJUNCTIVE RELIEF; ATTORNEYS' FEES.
(a) Subject to Section 17(b), any dispute, controversy or claim
between Executive and the Company arising out of or relating to this
Agreement, Executive's employment with Company, or the termination of
either will be finally settled by arbitration in Houston, Texas before,
and in accordance with the rules for the resolution of employment disputes
then obtaining of, the American Arbitration Association. The arbitrator's
award shall be final and binding on both parties.
(b) Notwithstanding Section 17(a), an application for emergency or
temporary injunctive relief by either party shall not be subject to
arbitration under this Section 17; provided, however, that the remainder
of any such dispute (beyond the application for emergency or temporary
injunctive relief) shall be subject to arbitration under this Section 17.
Executive acknowledges that Executive's violation of Sections 11 and/or 12
of this Agreement will cause irreparable harm to the Company, Executive
agrees not to contest that Executive's violation of Sections 11 and/or 12
of this Agreement will cause irreparable harm to the Company and Executive
agrees that the Company shall be entitled as a matter of right to specific
performance of Executive's obligations under Sections 11 and 12 and an
injunction, from any court of competent jurisdiction, restraining any
violation or further violation of such agreements by Executive or others
acting on her behalf, without any showing of irreparable harm and without
any showing that the Company does not have an adequate remedy at law. The
Company's right to injunctive relief shall be cumulative and in addition
to any other remedies provided by law or equity.
(c) Each side shall share equally the cost of the arbitrator and
bear its own costs and attorneys' fees incurred in connection with any
arbitration, unless a statutory claim authorizing the award of attorneys'
fees is at issue, in which event the arbitrator may award a reasonable
attorneys' fee in accordance with the jurisprudence of that statute.
(d) Nothing in this Section 17 shall prohibit a party to this
Agreement from (i) instituting litigation to enforce any arbitration award
or (ii) joining another party to this Agreement in a litigation initiated
by a person which is not a party to this Agreement.
14
18. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REFERENCE TO PRINCIPLES
OF CONFLICT OF LAWS. THE EXCLUSIVE VENUE FOR THE RESOLUTION OF ANY DISPUTE
RELATING TO THIS AGREEMENT OR EXECUTIVE'S EMPLOYMENT (THAT IS NOT SUBJECT TO
ARBITRATION UNDER SECTION 17 FOR ANY REASON) SHALL BE IN THE STATE AND FEDERAL
COURTS LOCATED IN XXXXXX COUNTY, TEXAS AND THE PARTIES HEREBY EXPRESSLY CONSENT
TO THE JURISDICTION OF THOSE COURTS.
19. ENTIRE AGREEMENT AND AMENDMENT. This Agreement contains the entire
agreement of the parties with respect to Executive's employment and the other
matters covered herein (except to the extent that other agreements are
specifically referenced herein); moreover, this Agreement supersedes all prior
and contemporaneous agreements and understandings, oral or written, between the
parties hereto concerning the subject matter hereof and thereof. This Agreement
may be amended, waived or terminated only by a written instrument executed by
both parties hereto.
20. SURVIVAL OF CERTAIN PROVISIONS. Wherever appropriate to the intention
of the parties hereto, the respective rights and obligations of said parties,
including, but not limited to, the rights and obligations set forth in Sections
6 through 18 hereof, shall survive any termination or expiration of this
Agreement for any reason.
21. WAIVER OF BREACH. No waiver by either party hereto of a breach of any
provision of this Agreement by the other party, or of compliance with any
condition or provision of this Agreement to be performed by such other party,
will operate or be construed as a waiver of any subsequent breach by such other
party or any similar or dissimilar provision or condition at the same or any
subsequent time. The failure of either party hereto to take any action by reason
of any breach will not deprive such party of the right to take action at any
time while such breach continues.
22. ASSIGNMENT. Neither this Agreement nor any rights or obligations
hereunder shall be assignable or otherwise subject to hypothecation by Executive
(except by will or by operation of the laws of intestate succession) or by the
Company, except that the Company may assign this Agreement to any successor
(whether by merger, purchase or otherwise) to all or substantially all of the
equity, assets or businesses of the Company, if such successor expressly agrees
to assume the obligations of the Company hereunder.
23. NOTICES. Notices provided for in this Agreement shall be in writing
and shall be deemed to have been duly received (a) when delivered in person or
sent by facsimile transmission, (b) on the first business day after such notice
is sent by air express overnight courier service, or (c) on the third business
day following deposit in the United States mail, registered or certified mail,
return receipt requested, postage prepaid and addressed, to the following
address, as applicable:
15
(1) If to Company, addressed to:
Mariner Energy, Inc.
Attn: Chief Executive Officer
0000 Xxxxxxxx Xxxx.
00xx Xxxxx, Xxxx. 0
Xxxxxxx, XX 00000
(2) If to Executive, addressed to the address set
forth below Executive's name on the execution page
hereof;
or to such other address as either party may have furnished to the other party
in writing in accordance with this Section 23.
24. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
Each counterpart may consist of a copy hereof containing multiple signature
pages, each signed by one party, but together signed by both parties hereto.
25. DEFINITIONS. The parties agree that as used in this Agreement the
following terms shall have the following meanings: an "affiliate" of a person
shall mean any person directly or indirectly controlling, controlled by, or
under common control with, such person; the terms "controlling, controlled by,
or under common control with" shall mean the possession, directly or indirectly,
of the power to direct or influence or cause the direction or influence of
management or policies (whether through ownership of securities or other
ownership interest or right, by contract or otherwise) of a person; the term
"person" shall mean a natural person, partnership (general or limited), limited
liability company, trust, estate, association, corporation, custodian, nominee,
or any other individual or entity in its own or any representative capacity, in
each case, whether domestic or foreign.
SIGNATURE PAGE FOLLOWS
16
IN WITNESS WHEREOF, Executive and the Company have executed this Agreement
to be effective for all purposes as of the Effective Date.
EXECUTIVE:
Signature: /s/ Xxxxxx Xxxxxxx
----------------------------------
XXXXXX XXXXXXX
Date: February 7, 2005
Address for Notices:
00000 XXXXXXXX XXXXX
XXXXXXX, XX 00000
MARINER ENERGY, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Xxxxx X. Xxxxx
Chief Executive Officer and
President
Date: February 7, 2005
17
EXHIBIT A
NONE
A-1
EXHIBIT B
WAIVER AND RELEASE AGREEMENT
This Waiver and Release Agreement (the "AGREEMENT") is between Mariner
Energy, Inc., a Delaware company ("COMPANY"), and XXXXXX XXXXXXX ("EXECUTIVE"),
as provided pursuant to that employment agreement between Executive and Company
dated February 7, 2005 (the "EMPLOYMENT AGREEMENT") and attached hereto as
EXHIBIT A.
WHEREAS, Executive's employment with Company is being terminated; and
WHEREAS, Executive will be paid certain severance benefits in exchange for
her release and waiver of her claims against the Company Releasee (as defined
below) pursuant to this Agreement;
NOW, THEREFORE, the parties agree to the following.
1. Complete Release and Other Consideration from Executive. In exchange
for the severance benefits provided under Section 2 of this Agreement, Executive
agrees as follows:
a. Complete Release. On behalf of Executive and Executive's
heirs and assigns, Executive fully releases Company and its direct
and indirect, past present and future, parents, subsidiaries,
affiliates, divisions, predecessors, successors, and assigns, and,
with respect to all such entities, their partners, members,
shareholders, owners, officers, directors, attorneys, agents,
representatives and employees (collectively, the "COMPANY
RELEASEES"), from any and all claims, demands, damages, losses,
expenses, liabilities and causes of action (including claims for
attorneys' fees) (collectively, "CLAIMS"), known or unknown, that
Executive, her heirs, executors, administrators, and assigns may
have or may claim to have against any of the Company Releasees based
upon facts occurring on or prior to the date Executive signs this
Agreement, including but not limited to any claims arising out of
Executive's employment relationship with and service as an employee,
officer or director of Company, and the termination of such
relationship or service, (the "RELEASE"); provided, however, that
this Release shall not apply to Company's obligations under this
Agreement. This Release includes, without limitation, any claims
arising out of any contract (express or implied); any tort (whether
based on negligent, grossly negligent, or intentional conduct); or
any federal, state, or local law, including, without limitation, the
Age Discrimination in Employment Act and the Employee Retirement
Income Security Act ("ERISA"), other than benefits that Executive is
entitled to under the terms of an ERISA plan. This Release does not
include any claims under the Age Discrimination in Employment Act
that may arise after this Agreement is executed.
B-1
b. Confidentiality. Except as may be required by law or court order or
as may be necessary in an action arising out of this Agreement,
Executive agrees not to disclose the existence or terms of this
Agreement to anyone other than Executive's immediate family,
attorneys, tax advisors, and financial counselors, provided that
Executive first informs them of this confidentiality clause and
secures their agreement to be bound by it. Executive understands and
agrees that a breach of this confidentiality provision by any of
these authorized persons will be deemed a material breach of this
Agreement by Executive.
c. Executive agrees not to bring or join any lawsuit against any of the
Company Releasees in any court (except as necessary to protect
Executive's rights under this Agreement or with respect to
Executive's entry into this Agreement) relating to Executive's
employment, events occurring during Executive's employment or the
termination of Executive's employment. Executive represents that, as
of the effective date of this Agreement, Executive has not brought
or joined any lawsuit or filed any charge or claim against any of
the Company Releasees in any court or before any government agency.
If Executive brings or joins any lawsuit against any of the Company
Releasees in any court (except as necessary to protect Executive's
rights under this Agreement or with respect to Executive's entry
into this Agreement) relating to Executive's employment, events
occurring during Executive's employment or the termination of
Executive's employment, and Executive is the prevailing party in
such lawsuit, Executive shall be obligated to return to the Company
all amounts paid to Executive as benefits under this Agreement, to
the extent permitted under applicable law and ordered by the court.
Further, if any Company Releasee is the prevailing party in any
lawsuit Executive brings against such Company Releasee relating to
Executive's employment that has been waived in this Agreement, to
the extent permitted by applicable law (such as if Executive's
claims are found to be brought in bad faith), Executive agrees to
pay all costs and expenses incurred by such person or entity,
including reasonable attorneys' fees, in defending against such
lawsuit.
This Agreement is not intended to indicate that any Claims exist or that,
if they do exist, they are meritorious. Rather, Executive is simply
agreeing that, in return for the Company's payment provided by this
Agreement, any and all potential Claims that Executive may have against
the Company Releasees, regardless of whether they actually exist, are
expressly settled, compromised and waived. By signing this Agreement,
Executive and the Company Releasees are bound by it. Anyone who succeeds
to Executive's rights and responsibilities, such as heirs or the executor
of Executive's estate, is also bound by this Agreement. The waiver and
release provisions of this Agreement do not apply to any rights or claims
that may arise after its effective date. This Release also applies to any
claims brought by any person or agency or class action under which
Executive may have a right or benefit.
B-2
2. Consideration from Company. In exchange for Executive's obligations
under this Agreement, the Company shall pay Executive those severance payments
and benefits described in Sections 7, 8 and 9, as applicable, of the Employment
Agreement, which are incorporated herein by reference and made a part of this
Agreement. Executive acknowledges that Executive is not otherwise entitled to
receive such severance payments and benefits, these severance payments and
benefits are conditioned on Executive's compliance with the terms of this
Agreement and the Employment Agreement, including without limitation Sections 11
and 12 thereof. Executive acknowledges and agrees that Company will withhold any
taxes required by applicable law from the severance payments and benefits.
3. Right to Consult an Attorney; Period of Review. Executive is encouraged
to consult with an attorney before signing this Agreement. From the date this
Agreement is first presented to Executive, Executive will have 21 [45, if
applicable] days in which to review this Agreement. Executive may use as little
or much of this 21 [45]-day review period as Executive chooses.
4. Entire Agreement; Amendment; Continuing Obligations. This Agreement and
the Employment Agreement together contain the entire agreement of the parties
with respect to the termination of Executive's employment and the other matters
covered herein and therein; moreover, this Agreement supersedes all prior and
contemporaneous agreements and understandings, oral or written, between the
parties hereto concerning the subject matter hereof. This Agreement may be
amended, waived or terminated only by a written instrument executed by both
parties hereto. Executive hereby reaffirms and agrees to continue to abide by
all of Executive's continuing obligations under Sections 11 through 18 of the
Employment Agreement.
5. Revocation. Upon signing this Agreement, Executive will have 7 days to
revoke the Agreement. To properly revoke the Agreement, Company must receive
written notice of revocation from Executive by the close of business on the 7th
day after the date the Agreement is signed by Executive. Written notice must be
delivered pursuant to Section 23 of the Employment Agreement. Executive
understands that failure to revoke her acceptance of this Agreement within 7
days after the date she signs it will result in this Agreement being permanent
and irrevocable.
6. Choice of Law. This Agreement will be governed in all respects by the
laws of the State of Texas, without regard to its choice of law principles. This
Agreement is subject to the arbitration provisions in Section 17 of the
Employment Agreement.
7. Effectiveness of Agreement. This Agreement will be effective, and the
severance payments and benefits provided in Section 2 of this Agreement will be
made and provided, only if Executive executes this Agreement within 21 [45] days
of receiving it and only if Executive does not revoke this Agreement under
Section 5 above.
B-3
EXECUTIVE
Signature:
----------------------------------
XXXXXX XXXXXXX
Date:
---------------------------------------
MARINER ENERGY, INC.
By:
-----------------------------------------
[Name]
[Title]
Date:
---------------------------------------
B-4
