EXHIBIT 10.3
SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE ("Agreement") is made and entered
into this 30th day of May, 2002, by and between WILLBROS USA, INC. ("Employer")
and XXXXX X. BUMP ("Employee").
WITNESSETH:
WHEREAS, Employee is or was employed by Employer; and
WHEREAS, Employee will retire from his employment with Employer
effective May 31, 2002 ("Retirement Date"); and
WHEREAS, Employer and Employee wish to achieve a final and amicable
resolution of all issues related to their employment relationship;
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises set forth below, as well as other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. EMPLOYEE'S RETIREMENT. Employee and Employer confirm and agree that
Employee will retire from employment with Employer as of the Retirement
Date and that the employment relationship which existed between Employee
and Employer and/or any of Employer's affiliated companies will cease as
of the Retirement Date. However, nothing contained herein shall prevent
or interfere with the ability of the parties to enter into future
agreements for Employee to provide consulting services and advice to
Employer or Employer's affiliates on an independent contractor basis
("Subsequent Agreement"). In addition, it is anticipated that Employee
will continue to serve as a non-employee Class III member of the Board
of Directors of Willbros Group, Inc. ("WGI"), Employer's parent company,
after the Retirement Date and that Employee will also serve as Chairman
of such Board and as a member of various committees of such Board.
Except as provided in any Subsequent Agreement or in policies which
apply generally to non-employee members of the WGI Board ("Board
Policies"), all of Employer's obligations to Employee on or after the
Retirement Date are set forth herein. Accordingly, except as otherwise
provided herein, in a Subsequent Agreement or in Board Policies,
Employer shall have no further obligations whatsoever to Employee after
the Retirement Date. Employer shall cause its personnel records to
reflect that Employee retired from employment with Employer effective on
the Retirement Date.
2. PRIOR AGREEMENTS SUPERSEDED. Except as otherwise specifically provided
herein, this Agreement supersedes and replaces all other prior
agreements, written or oral, relating to Employee's employment with
Employer and/or any of Employer's affiliated companies.
3. 2002 SALARY AND BONUS. Employee will continue or continued to receive
his current, regular salary through the Retirement Date, less applicable
withholding taxes. In addition, on the Retirement Date, Employee will
receive a bonus for the calendar year 2002 in the amount of Five Hundred
Thousand U.S. Dollars (U.S.$500,000), less applicable withholding taxes.
4. MANAGEMENT INCENTIVE PLAN. Prior to the Retirement Date, Employee
participated in the Willbros USA, Inc. Management Incentive Plan dated
January 1, 1996 ("Incentive Plan"). Employee acknowledges that the
Incentive Plan terminated December 31, 1998 and that Employee is not
entitled to any further payments or benefits under the Incentive Plan.
5. MEDICAL INSURANCE CONTINUATION. Employee acknowledges that Employer no
longer provides benefits under the Retiree Medical Plan which it
previously maintained and that neither Employee nor Employee's
dependents are entitled to any benefits thereunder. If Employee is not
entitled to Medicare benefits, Employee will be entitled to continue
participation for a limited period of time in Employer's Group Medical
Plan, Group Dental Plan and/or Executive Medical Plan under the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA").
Detailed information concerning the costs and procedures applicable to
such insurance coverage will be provided separately by Employer.
6. LIFE INSURANCE CONVERSION. Employee has the right to convert Employee's
life insurance coverage under Employer's Group Life Plan and dependent
life insurance coverage obtained by the Employee under Employer's
Dependent Life Plan to individual life insurance policies. Conversion
forms and premium rates applicable to such conversion programs will be
provided separately by the relevant insurer.
7. PENSION PLAN. As a vested participant in the Willbros USA, Inc. Pension
Plan ("Pension Plan") previously maintained by Employer for the benefit
of eligible employees, Employee was entitled to certain retirement
benefits in accordance with the Pension Plan termination procedure
approved by the Internal Revenue Service (the "Pension Plan Termination
Procedure"). Under the Pension Plan Termination Procedure, Employee
elected to receive a lump sum distribution of benefits and has received
such distribution. Employee acknowledges that no further benefits are
payable to Employee under the Pension Plan or the Pension Plan
Termination Procedure.
8. EXECUTIVE BENEFIT RESTORATION PLAN. Prior to the Retirement Date,
Employee also participated in the Willbros USA, Inc. Executive Benefit
Restoration Plan ("Restoration Plan"). Effective January 22, 2001, the
Restoration Plan was terminated and Employee received a distribution of
all benefits to which Employee was entitled under the Restoration Plan.
Employee releases the
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Employer, the Restoration Plan Trust, the Restoration Plan Trustee, and
the Restoration Plan administrators from any further claims for benefits
under the Restoration Plan.
9. INCENTIVE STOCK OPTIONS. Employee is vested in certain incentive stock
options and certain non-qualified stock options provided by WGI,
pursuant to the Willbros Group, Inc. 1996 Stock Plan ("Stock Plan").
Nothing in this Agreement shall affect any rights or obligations of
Employee or WGI under the Incentive Stock Option Agreement or the
Non-Qualified Stock Option Agreements entered into between Employee and
WGI pursuant to the Stock Plan. Employee acknowledges that any of
Employee's incentive stock options awarded under the Stock Plan which
are exercised more than three (3) months after the Retirement Date will
be treated as non-qualified stock options for U.S. federal income tax
purposes.
10. EMPLOYER INVESTMENT PLAN. Employee is fully vested in Employer's 401(k)
Investment Plan ("Investment Plan"). Employee has the option of
receiving a lump-sum distribution of Employee's total account balance in
the Investment Plan, transferring such account balance to another
tax-qualified plan or to an Individual Retirement Account or leaving
such account balance in the Investment Plan. Election forms and detailed
information concerning Employee's options with respect to Employee's
account balance in the Investment Plan will be provided separately by
Employer.
11. DIRECTOR AND OFFICER MATTERS. Employee shall resign from all employee,
officer, director and committee member positions which Employee holds
with Employer or any affiliate of Employer effective as of the
Retirement Date, except that Employee shall not resign from Employee's
position as Chairman of the WGI Board of Directors or as a Class III
member of the WGI Board of Directors. Nothing in this Agreement shall
affect any of Employee's rights or obligations with respect to
indemnification or director and officer liability insurance coverage to
which Employee is entitled or subject in his capacity as a former
director and officer of Employer, a former officer of WGI, a continuing
Class III non-employee director of WGI or a former officer or director
of certain WGI affiliates, whether under that certain Indemnification
Agreement between WGI and Employee dated June 27, 1996, or otherwise.
12. ACCRUED VACATION PAY. On the Retirement Date, Employee shall receive
Thirty Six Thousand Two Hundred Twenty One and 59/100 U.S. Dollars
(U.S.$36,221.59), less applicable payroll tax withholding, as
compensation for all of Employee's accrued vacation time through the
Retirement Date.
13. OTHER BENEFITS. Except as specifically set forth herein, all employment
benefits previously made available to Employee by Employer or any of its
affiliates, including, without limitation, those made available under
Employer's Executive Compensation Program, shall cease to be available
to Employee as of the Retirement Date. Employee acknowledges that he is
not entitled to receive any
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compensation, severance payment or retirement enhancement payment under
the Employer's 1999 or 2000 Reduction-In-Force Plans or WGI's Severance
Protection Plan.
14. LUMP SUM PAYMENT. On the Effective Date (as defined in Paragraph 20
below), Employer shall pay to Employee a lump sum amount of Five Hundred
Thousand U.S. Dollars (U.S.$500,000), less applicable payroll tax
withholding, in consideration of the release specified below and the
acknowledgements, waivers, representations and undertakings specified
herein.
15. RELEASE.
(a) Except for the obligations of Employer specifically set forth in
this Agreement or referenced in this Agreement as continuing
obligations, Employee fully and forever relieves, releases, and
discharges Employer, WGI and all of their respective representatives,
officers, directors, shareholders, predecessors, successors, parents,
subsidiaries, operating units, affiliates, divisions, employees and
attorneys from any and 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 from Employer, 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 1966,
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 Employment 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, 42 U.S.C. Section 201, et seq.,
including the Wage and Hour Laws relating to payment of wages; 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,
breach of any express or implied covenant of good faith and fair
dealing, that Employer 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 the Retirement Date.
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(b) Except for the obligations of Employee specifically set forth in
this Agreement or referenced in this Agreement as continuing
obligations, Employer, on behalf of itself and its affiliates, fully and
forever relieves, releases, and discharges Employee, from any and 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
from Employer. Employer is not waiving any rights or claims that may
arise after the Retirement Date.
16. CONFIDENTIALITY. The following confidentiality obligations are in
addition to those which will apply to Employee in Employee's continuing
capacity as Chairman of the WGI Board of Directors and a Class III
member of the WGI Board of Directors after the Retirement Date. To the
extent such other obligations are of longer duration or more strict than
the obligations set forth below, such other obligations shall supercede
the obligations set forth below. For a period of two (2) years after the
Retirement Date, Employee shall not, except as otherwise required by
law, furnish, disclose or make accessible to any person, entity or
government authority, any knowledge, trade secrets, customer
information, supplier information, plans, opportunities, procedures,
data, techniques or other information relating to the businesses or
finances of Employer or any of its affiliates. The prohibitions set
forth in the preceding sentence shall not apply, however, to information
in the public domain (but only if the same becomes part of the public
domain through a means other than a disclosure prohibited hereunder). In
addition, Employee shall continue to comply fully with the use and
disclosure restrictions set forth in all third party confidentiality
agreements entered into by the Employer or its affiliates on or prior to
the Retirement Date to the extent such third party agreements are known
to Employee.
17. REMEDIES. The parties recognize that, because of the nature of the
subject matter of Paragraph 16 above, it would be impracticable and
extremely difficult to determine the actual damages suffered by Employer
in the event of a material breach of Employee's obligations thereunder.
Accordingly, if Employee commits a material breach, or threatens to
commit a material breach, of any of the provisions of Paragraph 16,
Employer or any of its successors or assigns shall give Employee written
notice of such violation and, if Employee has not cured such violation
or otherwise ceased to act in violation of Paragraph 16 within ten (10)
days after the giving of such notice, Employer or any of its successors
or assigns shall have the following rights and remedies:
(a) to have the provisions of Paragraph 16 specifically enforced
by any court having equity jurisdiction, without the posting
of bond or other security, it being acknowledged and agreed by
Employee that any such breach or threatened breach will cause
irreparable injury to Employer and that an injunction may be
issued against Employee to stop or prevent any such breach or
threatened breach; and
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(b) to recover such actual damages as Employer or its affiliates
may incur as a result of such breach or threatened breach.
The curing of a violation of the requirements of Paragraph 16 shall not
preclude Employer from seeking the recovery of its actual damages
resulting from such violation.
18. INDEPENDENT LEGAL ADVICE. Employee acknowledges that he has had the
opportunity to be represented by independent legal counsel of his choice
with respect to the advisability of signing this Agreement and providing
the releases, waivers, acknowledgements, representations and
undertakings specified herein, and with respect to his rights and
obligations under the terms of this Agreement.
19. KNOWLEDGE OF CONTENTS. Both parties acknowledge that they have carefully
read this Agreement and that the contents hereof are known and
understood by them. This Agreement is signed freely by each party
hereto.
20. REVIEW AND REVOCATION PERIOD. Employee acknowledges that he has been
extended a period of forty-five (45) days within which to consider this
Agreement. For a period of seven (7) days following Employee's
execution of the Agreement, Employee may revoke this Agreement by
notifying Employer, in writing, of his desire to do so. From and after
the date which is seven (7) days after Employee's execution of this
Agreement (the "Effective Date"), this Agreement shall be binding and
enforceable.
21. OBLIGATION TO RETURN FUNDS. In the event Employee exercises his right
to revocation set forth in Section 20 above, Employee shall immediately
return to Employer all amounts, if any, paid to Employee as
consideration under this Agreement. The duty to return funds under this
Agreement shall survive the revocation of the Agreement and shall
constitute a separately enforceable obligation between Employee and
Employer.
22. NO ADMISSION OF LIABILITY. This Agreement and compliance with this
Agreement shall not be construed as an admission by Employer or
Employee of any liability whatsoever, or as an admission by Employer of
any violation of the rights of Employee or any other person, or any
violation of any order, law, statute, duty or contract.
23. SEVERABILITY. In the event that any provision of this Agreement should
be held to be void, voidable, or unenforceable, the remaining portions
hereof shall remain in full force and effect.
24. GOVERNING LAW. This Agreement will be interpreted and enforced in
accordance with the laws of the State of Texas.
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25. ENTIRETY AND INTEGRATION. Upon the execution hereof by all of the
parties hereto, 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 specifically noted
herein, supersedes all prior negotiations, understandings and/or
agreements, if any, of the parties. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first mentioned above.
EMPLOYEE EMPLOYER
Willbros USA, Inc.
/s/ Xxxxx X. Bump /s/ Xxxxxxx X. Xxxxxx
______________________________ By:_______________________________
Xxxxx X. Bump Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
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