EXHIBIT 10(i)
SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE (this "Agreement") is made by and
between Xxxxxx Drilling Company ("Company") and Xxxxx Xxxxx ("Employee").
PURPOSE
Company and Employee have reached a mutual agreement that Employee's
employment will terminate on September 26, 2002 ("the Termination Date") as a
result of Employee's desire to pursue outside interests. 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: In recognition of Employee's past
service to the Company and in consideration of the release and the conditions
contained herein, the Company shall provide the Employee with the following:
o A severance payment in a lump sum amount of Seven Hundred
Forty-three Thousand One Hundred Eighty-seven dollars
($743,187.00).
o Continued use of the Company's country club membership at
Pine Forest Country Club until September 30, 2003. The
Company will only reimburse the normal monthly dues.
o Continued coverage under that certain split dollar life
insurance policy until the earlier of the date Employee
becomes employed with another company or September 30, 2003.
Notwithstanding the above, in the event provisions of the
policy precludes the Company from continuing such coverage
or in the event regulatory, legal or tax requirements,
changes or actions causes the continuation of such coverage
to be detrimental to the Company as solely determined by the
Company, such continued coverage will be terminated as soon
as reasonably practical. Employee agrees that at such time
that coverage terminates, he will
expeditiously provide the Company any required
documentation, including but not limited to the assignment
of the policy if so required.
o Continued health care coverage for Employee and his spouse
under the Company's group health plan (at no monthly
contribution cost to Employee) until the earlier of the date
Employee becomes eligible for group health care coverage
with another employer or September 30, 2003. In the event
Employee has not become eligible for group health care
coverage by September 30, 2003, he and his spouse will be
eligible for coverage under the COBRA provisions of the
Company's group health plan and be responsible for remitting
the applicable COBRA contributions that may be in effect
from time to time.
o Certain executive outplacement benefits from the firm Drake,
Beam and Xxxxx, the scope and extent of which shall be at
Company's discretion.
o Ownership of the laptop computer Employee is currently using
in his capacity as an employee. Employee agrees and
understands that the Company will delete all company files
from the hard drive prior to transfer of ownership to
Employee.
o Extension of Employee's stock options through September 30,
2004. Any stock options which are not presently vested will
continue to vest in accordance with their respective vesting
schedules. In any event, all of Employee's stock options
will terminate the earlier of the respective option grant or
on September 30, 2004.
o Continuation of the Mortgage Buydown Assistance Allowance
payable in accordance with the terms and conditions of the
2001 Xxxxxx Drilling Company Relocation policy.
Employee's eligibility for the consideration described above is subject to the
conditions described herein and to the execution of the release. The lump sum
severance payment is subject to normal payroll taxes and shall be mailed to
Employee within thirty (30) days after this Agreement becomes effective.
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, deferred compensation plan or benefit plan in which Employee
is a qualified participant, including, but not limited to, any benefits under a
pension or retirement plan. Nothing in this agreement shall affect any
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of Employee's rights or obligations with respect to indemnification or director
and officer liability coverage to which Employee is entitled or subject in his
capacity as a former director and officer of the Company.
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;
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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.
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.
NOTWITHSTANDING THE ABOVE, THIS RELEASE DOES RELEASE COMPANY OF ANY OF
ITS COVENANTS AND OBLIGATIONS SET FORTH IN THIS AGREEMENT.
Non-Solicitation: 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.
Protection Of Company's Information: All records, files, data, employee
information, drawings, documents, models, equipment, customer lists, stock
analyst information, financial projections, and the like relating to the
business of the Company, which Employee has used, prepared or come in contact
with during his employment by the Company shall be and remain the sole property
of the Company and shall not be removed from the premises of the Company without
its written consent. Employee agrees that he will not, directly or indirectly,
disclose any confidential records, trade information, employee information,
financial information, plans, projects, data, formulas,
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specifications or other trade secrets owned by the Company to any third person,
except pursuant to court order or as a result of a valid governmental subpoena.
In the case of any such court-ordered or government compelled disclosure,
Employee will provide the Company with immediate written notice of the order or
subpoena.
Employee shall not participate in any written or oral statement,
discussion, or originate or cause to be originated, any news release or other
public announcement or publication, to any third party, including the Company's
employees, former employees, its vendors, its clients and or the media relating
to his employment by the Company or relating to the Company, its subsidiaries,
its customers, its personnel, or agents without prior written approval of the
Chairman, Chief Executive Officer or General Counsel of the Company. Employee
agrees that he will not publish disparaging statements regarding the Company,
its subsidiaries, employees, or agents.
Confidentiality of Agreement: Employee covenants from the date of
execution of this Agreement to forever refrain from disclosing to any third
party (other than immediate family members, attorneys and advisors) or other
entity any or all of the terms of this Agreement and covenants not disclose same
to any third party except pursuant to an order issued by a court of law or other
governmental authority.
Continued Cooperation: Employee will also be reasonably available to
assist in any litigation or dispute currently pending or to be brought by or
against the Company as to which Employee may have knowledge of the facts and
circumstances. Employee agrees to immediately notify the Company and its General
Counsel upon receipt of any subpoena or deposition notice compelling his
testimony related to matters which he has knowledge of arising out of his
employment with the Company. Company shall reimburse Employee for all reasonable
expenses, including reasonable attorney fees, in complying with this provision.
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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.
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: This Agreement constitutes the entire
agreement of the parties and all prior negotiations or representations are
merged herein or replaced hereby. This Agreement may only be amended by a
written amendment signed by both parties to this Agreement. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective successors, assigns, heirs and legal representatives, but neither
this Agreement nor any rights hereunder shall be assignable by Employee without
the written consent of the Company. In addition, except as provided herein, it
is understood that this Agreement supersedes and terminates any prior employment
or compensation agreements between Employee and the Company, which prior
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agreements, whether written, oral or implied in law or in fact, are hereby
terminated. Further, that except as provided herein, the Company has no other
legal obligation to Employee.
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.
Dated:
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EMPLOYEE
Dated: XXXXXX DRILLING COMPANY
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By:
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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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