Exhibit 10.22
SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE ("Agreement") is made and entered
into this 22st day of December, 2001, by and between WILLBROS USA, INC.
("Employer") and XXXXXX X. XXXXXXXXX ("Employee").
WITNESSETH:
WHEREAS, Employee is or was employed by Employer; and
WHEREAS, Employee will retire or retired from his employment with
Employer effective December 31, 2001 ("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 is retiring or 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 or ceased 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"). Except as
provided in any Subsequent Agreement, all of Employer's obligations to
Employee on or after the Retirement Date are set forth herein.
Accordingly, except as otherwise provided herein or in a Subsequent
Agreement, Employer shall have no further obligations whatsoever to
Employee after the Retirement Date. Similarly, except as provided in
any Subsequent Agreement, all of Employee's obligations to Employer on
or after the Retirement Date are set forth herein. Accordingly, except
as otherwise provided herein or in a Subsequent Agreement, Employee
shall have no further obligations to Employer 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 PRIOR AGREEMENTS SUPERSEDED.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. 2001 SALARY AND BONUS. Employee will continue or continued to receive
his current, regular salary through the Retirement Date, less
applicable withholding taxes. In addition, prior to the Retirement
Date, Employee received a bonus for the calendar year 2001 in the
amount of One Hundred Thousand U.S. Dollars (U.S.$100,000), 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. Employee
acknowledges that upon Employee's receipt of the lump sum distribution
Employee elected to receive no further benefits will be 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 Employer, the
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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 Employer's
parent company, Willbros Group, Inc. ("WGI"), pursuant to the Willbros
Group, Inc. 1996 Stock Plan ("Stock Plan"). All options granted to
Employee under the Stock Plan prior to the Retirement Date have fully
vested prior to the Retirement Date. 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 or has resigned
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. 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, WGI and certain of their 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 or
received Thirty Eight Thousand Five Hundred U.S. Dollars (U.S.$38,500),
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 or ceased
to be available to Employee as of
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the Retirement Date. Employee acknowledges that he is not entitled to
receive any 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 Retirement Date or the Effective Date (as
defined in Paragraph 20 below), whichever last occurs, Employer shall
pay to Employee a lump sum amount of Five Hundred Thirty Thousand Five
Hundred U.S. Dollars (U.S.$530,500), 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; 85
O.S. 1991 Sections 5, 6 and 7, which prohibits discharge in retaliation
for exercising rights under Oklahoma's Workers' Compensation Act; 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,
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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.
(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.
16. CONFIDENTIALITY. 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 material knowledge, trade secrets, customer information,
supplier information, plans, opportunities, procedures, data,
techniques or other information directly relating to the businesses or
finances of Employer or any of its affiliates or any confidential
information obtained from other parties by Employee pursuant to the
terms of a confidentiality agreement entered into by Employer or one 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 does not cure a material violation
of Paragraph 16 within ten (10) days after receiving written notice
thereof from Employer, 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 material breach of Paragraph 16 will cause
irreparable injury to Employer and that an injunction may be
issued against Employee to stop or prevent any such material
breach; and
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(b) to recover such actual damages as Employer or its affiliates
may incur as a result of such material breach.
The curing of a material breach of Paragraph 16 shall not preclude
Employer from seeking the recovery of its actual damages resulting from
such breach.
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 other 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/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxx X. Bump
By:
-------------------------------- ------------------------------------
Xxxxxx X. Xxxxxxxxx Xxxxx X. Bump
Chairman and Chief Executive Officer
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