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EXHIBIT 10.11
FIRST AMENDMENT TO
EMPLOYMENT AND
STOCK OWNERSHIP AGREEMENT
UNITED STATES OF AMERICA
BY AND BETWEEN
STATE OF LOUISIANA
ENERGY PARTNERS, LTD.
PARISH OF ORLEANS
AND
XXXXXXX X. XXXXXXXX
THIS FIRST AMENDMENT TO EMPLOYMENT AND STOCK AGREEMENT (this
"Agreement"), is entered into in New Orleans, Louisiana on this 17th day of
November, 1999, by and between Xxxxxxx X. Xxxxxxxx, an individual of the full
age of majority domiciled in the Parish of Orleans, State of Louisiana
(hereinafter called "Employee") 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.
WHEREAS, Employee and the Company entered into that certain
Employment and Stock Ownership Agreement dated June 5, 1998 (the "Employment
Agreement");
WHEREAS, concurrent with the execution hereof, Employee is
entering into a Stockholder Agreement dated November 17, 1999, by and among the
Company, Employee and the other shareholders of the Company named therein (the
"Stockholder Agreement");
NOW, THEREFORE, the parties agree as follows:
1. The first sentence of Section 1.1 of the Employment Agreement
is deleted in its entirety and replaced with the following:
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"In consideration for the compensation set forth in Subparagraph 1.2,
Employee shall be employed as the Company's President and Chief
Executive Officer until November 17, 2003 (the "Term").
2. The following is inserted as the third sentence of Section 1.5
of the Employment Agreement:
"During the Term and the two-year period specified in the preceding
sentence, Employee will not (a) solicit or induce any person who is or
was employed by the Company to discontinue his or her employment with
the Company, or directly or indirectly employ or offer employment to
any such person, or (b) cause or attempt to cause any third party then
under contract with the Company to modify its business relationship
with the Company in any manner adverse to the Company."
3. Section 2.2 of the Employment Agreement is deleted in its
entirety and replaced with the following:
"2.2 Transfer of Shares. No Shares may be sold, assigned, pledged,
transferred or otherwise alienated (each, "Transferred")
except in accordance with and pursuant to the terms and
conditions of this Agreement and that certain Stockholder
Agreement dated November 17, 1999, by and between the Company,
Employee, and others identified therein (the "Stockholder
Agreement"). Additionally, as a condition precedent to any
Transfer, the transferee must validly execute the Stockholder
Agreement. The Shares may be pledged, as provided in the
Stockholder Agreement, provided that any lender's recourse for
liquidation on debt repayment shall be limited to selling the
pledged Shares under the same terms and conditions as though
it was an Employee. The Lender shall agree to the foregoing
provisions as terms of the pledge."
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4. In Section 2.5 of the Employment Agreement, the words "as
amended" are inserted after "1998".
5. The following is inserted after Section 2.7:
"2.7A Shareholder Rights Upon Termination Without Cause.
Notwithstanding anything in the Stockholder Agreement to the
contrary, in the event the Company terminates the Employee's
employment without Cause before the Measurement Date, the
percentage set forth opposite the Employee's name on Exhibit H
to the Stockholder Agreement shall be multiplied by a
fraction, the numerator of which is the number of days elapsed
from November 17, 1999 to the date of termination, and the
denominator of which is the number of days elapsed from
November 17, 1999 to December 31, 2001. Any released Escrow
Shares which Employee would have been entitled to receive but
for the effect of the preceding sentence shall be allocated
among the remaining Management Shareholders as decided by the
Board with the consent of the Evercore Approval Director."
6. Section 2.12 is deleted in its entirety and replaced with the
following:
"As more fully described in Section 2.2 of the Stockholder Agreement,
any right or option to purchase the Shares shall first be exercisable
by the Evercore Entities (as defined in the Stockholder Agreement), and
the other Management Shareholders (as defined in the Stockholder
Agreement) shall have the right to purchase all Shares not purchased by
the Evercore Entities."
7. Sections 2.13, 2.14 and 2.15 of the Employment Agreement are
deleted in their entirety.
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8. The following is inserted after Section 2.12 of the Employment
Agreement:
"2.13 Put; Call. Employee shall have the right to give a written
notice ("Notice") to the Evercore Entities no more than 60
days before but at least 30 days before each of the November
17, 1999, November 17, 2000, November 17, 2001, and November
17, 2002 and (each, a "Sale Date") that Employee desires to
sell to the Evercore Entities up to 56.2 of the Shares at a
price of $9,747.79 per share (the "Price") on the applicable
Sale Date. If Employee gives a Notice to Evercore within the
60/30 day period specified above, on the applicable Sale Date
Evercore will purchase the number of Shares specified in such
Notice for the Price. In the event Employee does not give a
Notice at least 30 days before a Sale Date, or gives a Notice
specifying that Employee desires to sell fewer than 56.2 of
the Shares, Evercore shall have the right to give a written
notice (the "Evercore Notice") to Employee at least 15 days
before such Sale Date that Evercore desires to purchase from
Employee up to 56.2 of the Shares (if no Notice was given) or
56.2 of the Shares less the number of Shares specified in the
Notice (if a Notice was given). If Evercore gives an Evercore
Notice at least 15 days before the applicable Sale Date, on
such Sale Date Employee will sell the number of Shares
specified in such Evercore notice for the Price. The
respective rights of Employee and Evercore under this Section
2.13 are not cumulative, and no more than 56.2 of the Shares
may be sold and/or purchased on any Sale Date. The agreements
set forth in this Section 2.13 shall terminate upon
consummation of a Qualifying Public Offering."
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9. Section 3.1 of the Employment Agreement is deleted in its
entirety and replaced with the following:
"3.1 Entire Agreement. The parties to this Agreement acknowledge
that they have concurrently executed the Stockholder
Agreement. In any circumstance where there is a conflict
between the provisions of the Stockholder Agreement and this
Agreement, except as provided in Section 2.13 above, the
provisions of the Stockholder Agreement shall prevail, but
only so long as the Stockholder Agreement is in force and
effect. Capitalized terms not defined herein shall have the
meaning set forth in the Stockholder Agreement. Without
limiting the generality of the foregoing, this Agreement and
the Stockholder Agreement embody the entire agreement between
the parties hereto regarding to the subject matter hereof, and
shall supersede any and all prior agreements whether written
or oral relating to employment and/or Shares of the Company
owned by Employee, and shall be binding upon Employee and
Employee's heirs, legatees, legal representatives, successors,
donees, transferees and assigns, and Employee does hereby
authorize and obligate Employee's executors, heirs and
legatees to comply with the terms of this Agreement. The
parties shall 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 shall be
valid unless reduced to writing and signed by all parties
hereto, the Company being represented by its President or his
designee."
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10. Section 3.7 of the Employment Agreement is deleted in its
entirety and replaced with the following:
"3.7 Termination. The terms and conditions of Sections 1.0 to 1.4
of this Agreement shall terminate on November 17, 2003."
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IN WITNESS WHEREOF, the parties hereto have set forth their hand
and seal 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 same
original.
WITNESSES: ENERGY PARTNERS, LTD.
/s/ XXXX X. XXXXX By: /s/ XXXXXXX XXXXXXXX
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Name: Name: Xxxxxxx Xxxxxxxx
Title: President and Chief
/s/ Witness Executive Officer
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Name:
WITNESSES:
/s/ XXXX X. XXXXX By: /s/ XXXXXXX XXXXXXXX
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Name: Name: Xxxxxxx Xxxxxxxx, in
his individual
/s/ Witness capacity
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Name:
WITNESSES: ACKNOWLEDGED AND AGREED
TO THE TERMS HEREOF:
/s/ XXXX X. XXXXX By: /s/ XXXXX X. XXXXXXXX
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Name: Spouse
/s/ Witness
-----------------------------------
Name:
