CONSULTING AND SEPARATION AGREEMENT
Exhibit 10.1
This
Consulting and Separation Agreement (the “Agreement”) is made and entered into
effective as of the 30th day of November 2009 by and between BKEP Management,
Inc. (formerly SGLP Management, Inc.), a Delaware corporation (“BKEP”), and
Xxxxx X. Xxxx (“Foxx”) (collectively, the “Parties”). Reference is
made herein to the Employment Agreement effective as of February 22, 2007
between BKEP GP Management, Inc. (formerly SemGroup Energy Partners Management,
Inc.) and Foxx (the “Employment Agreement”). Capitalized terms used
herein but not otherwise defined in this Agreement shall have the meanings given
such terms in the Employment Agreement.
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1.
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Modification
of Employment Terms; Termination of
Employment.
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(a) Effective
as of December 1, 2009 (the “Consultant Start Date”), Foxx has been removed from
any and all officer positions he has held with BKEP, the MLP, the General
Partner and any affiliates. Such termination shall be deemed for the
purposes of the Employment Agreement to be a termination without Cause under
Section 6.C. of the Employment Agreement and the provisions of Sections 6.B. and
6.C. shall apply, subject to the provisions of this Agreement. As of
December 1, 2009, Foxx shall remain employed by BKEP as a Consultant for Crude
Oil Operations with BKEP in accordance with the terms and conditions of this
Agreement. As of the Consultant Start Date, Foxx and BKEP agree as
follows:
(i) In his
capacity as Consultant for Crude Oil Operations, Foxx shall perform such
transitional duties in connection with operational matters of BKEP as Foxx has
traditionally performed as Chief Executive Officer of BKEP, as may be directed
by the Board, the President, or other appropriate officer of the General
Partner;
(ii) In
consideration of the consulting services to be performed by him hereunder, Foxx
shall receive thirty-seven thousand five hundred dollars ($37,500) per month
during the period beginning on the Consultant Start Date and ending on the
Separation Date (as defined in Section 1(b));
(iii) Foxx
shall continue to be entitled to benefits as specified in Section 4.D. of the
Employment Agreement in a manner consistent with the benefits Foxx is receiving
immediately prior to the Consultant Start Date, as may be modified for similarly
situated executives of BKEP;
(iv) Foxx
shall be entitled to a payment of $270,000 in accordance with the SemGroup
Energy Partners G.P., L.L.C. 2009 Executive Cash Bonus Plan (the “Cash Bonus
Plan”), payable no later than December 10, 2009, and Foxx shall have no further
right to additional payments under the Cash Bonus Plan;
(v) Foxx
shall not be entitled to any additional incentive compensation or performance
bonus payments;
(vi) Foxx
shall remain subject to the Policy on the Prevention of Xxxxxxx Xxxxxxx and
Misuse of Confidential Information of Semgroup Energy Partners, L.P;
and
(vii) The
continued employment contemplated by this Agreement may be terminated by either
party hereto upon 5 days written notice to the other party.
(b) Effective
as of February 28, 2010 (the “Separation Date”), Foxx’s employment as a
Consultant for Crude Oil Operations shall terminate without the need for further
action by the Parties. Notwithstanding the foregoing, if Foxx’s
employment terminates prior to the Separation Date pursuant to Section
1(a)(vii), such earlier termination date shall be considered the “Separation
Date.”
(c) At any
time following the Consultant Start Date and prior to the Separation Date, Foxx
may retrieve (or caused to be retrieved), and BKEP shall reasonably cooperate
with Foxx in facilitating the retrieval of, the following items of furniture,
artwork and personal belongings in Foxx’s former BKEP Tulsa and Houston
offices:
Houston: sofa,
coffee table, four chairs, armoire, desk, desk chair, four art pieces, work
table, stools, personal pictures, desk accessories and such other office
knick-knacks owned by Foxx; and
Tulsa: two
chairs, work table, stools, armoire, end table, personal pictures, desk
accessories and such other office knick-knacks owned by Foxx.
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2.
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Separation
Benefits.
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In accordance
with Section 6.C. of the Employment Agreement and in consideration of Foxx’s
execution (without revocation) of this Agreement and his release of claims as
provided in this Agreement, BKEP agrees to provide Foxx with the following
payments and benefits, less all required withholding and other authorized
deductions, on the next day following the Waiver Effective Date (as defined in
Section 17):
(a) The sum
of $900,000, which is an amount equal to 24 months of Foxx’s Base
Salary.
(b) Continued
participation in all group health plans (medical, dental and vision), if any, of
BKEP, until the first anniversary of the Separation Date, as if there has been
no termination of employment. Foxx’s right to continued coverage
under BKEP’s group health plans pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1985 (“COBRA”) will commence after the first anniversary
of the Separation Date.
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3.
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Payment
of Accrued Benefits and Reimbursements Through Separation
Date.
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(a) Within 10
days of the Separation Date, in accordance with Section 6.A. of the Employment
Agreement, Foxx shall be entitled to Foxx’s Base Salary which has accrued for
services performed through the Separation Date but which has not yet been paid,
less all required withholding and authorized deductions, through the Separation
Date.
(b) Within 30
days of the Separation Date, in accordance with Section 4.D(2) of the Employment
Agreement, all reasonable out-of-pocket expenses incurred by Foxx in the course
of performance of his duties under the Employment Agreement on or before the
Separation Date, provided that Foxx submits a written request (following BKEP’s
standard business procedure) on or before 10 business days following the
Separation Date. If Foxx fails to timely submit a request for
reimbursement, Foxx will be deemed to have waived the claim for
reimbursement. BKEP will not reimburse Foxx for expense reports
submitted after 10 business days following the Separation Date.
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4.
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No
Other Compensation.
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Except as set
forth in Sections 2 and 3 above, Foxx shall not be entitled to any other salary,
commission, bonuses, employee benefits (including long and short term
disability, 401(k), and pension), expense reimbursement or compensation from
BKEP or its affiliates after the Separation Date and all of Foxx’s rights to
salary, commission, bonuses, employee benefits and other compensation hereunder
which would have accrued or become payable after the Separation Date from BKEP
(other than vested benefits under BKEP’s benefit plans which are payable to Foxx
pursuant to the terms and conditions set forth in the applicable plan documents)
shall cease upon the Separation Date, other than those expressly required under
applicable law (such as COBRA).
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5.
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Indemnification.
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The Parties
recognize that Foxx is an Indemnitee under the Amended and Restated Limited
Liability Company Agreement of SemGroup Energy Partners G.P., L.L.C. and the
First Amended and Restated Agreement of Limited Partnership of SemGroup Energy
Partners, L.P., and an Indemnification Agreement between Foxx and Blueknight
Energy Partners, L.P. (formerly SemGroup Energy Partners, L.P.), all dated as of
July 20, 2007. Foxx has claimed certain rights to indemnification
under those agreements as the result of, inter alia, the following litigation
matters: (a) Chapter 11; Case No. 08-11525 (BLS)
In Re: SEMCRUDE, L.P., et al, Debtors; In the United States
Bankruptcy Court for the District of Delaware; (b) Adversary No. 09-50189-BLS; Official
Committee of Unsecured Creditors of Semcrude, L.P., et al and Bank of America,
N.A., vs. Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx, Westback Publishing Co., LLC,
Xxxxx Xxxxxx, Xxxxx X. Xxxx, Xxxx X. Xxxxxxxxx; and (c) SemGroup Energy Partners, L.P.,
Securities Litigation, Case No. 08-MD-01989-GKF-FHM, United States District
Court for the Northern District of Oklahoma. Nothing in this
Agreement is intended to terminate or limit any of Foxx’s indemnification rights
under the agreements described above, which shall remain effective subject to
their terms and conditions.
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6.
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General
Release.
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In accordance
with Section 6.C. of the Employment Agreement and in consideration of the
payments to be made hereunder and having acknowledged the above-stated
consideration as full compensation for and on account of any and all injuries
and damages which Foxx has sustained or claimed, or may be entitled to claim,
Foxx, for himself, and his heirs, executors, administrators, successors and
assigns, does hereby release, forever discharge and promise not to xxx BKEP,
BKEP GP Management, Inc. (formerly SemGroup Energy Partners Management, Inc.),
Blueknight Energy Partners G.P., L.L.C. (formerly SemGroup Energy Partners,
G.P., L.L.C.) and Blueknight Energy Partners, L.P. (formerly SemGroup Energy
Partners, L.P.), their parents, subsidiaries, affiliates, successors and
assigns, and their past and present officers, directors, partners, employees,
members, managers, shareholders, agents, attorneys, accountants, insurers,
heirs, administrators, executors (collectively the “Released Parties”) from any
and all claims, liabilities, costs, expenses, judgments, attorney fees, actions,
known and unknown, of every kind and nature whatsoever in law or equity, which
Foxx had, now has, or may have against the Released Parties relating in any way
to Foxx’s employment with BKEP or BKEP GP Management, Inc.or termination
thereof, including but not limited to, (a) all claims for contract damages, tort
damages, special, general, direct, punitive and consequential damages,
compensatory damages, loss of profits, attorney fees and any and all other
damages of any kind or nature; (b) all contracts, oral or written, between Foxx
and any of the Released Parties except as otherwise described herein; (c) any
business enterprise or proposed enterprise contemplated by any of the Released
Parties, as well as (d) anything done or not done prior to and including the
date of execution of this Agreement ((a)-(d), collectively, the “Released
Employment Matters”).
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Foxx
understands and agrees that this release and covenant not to xxx shall apply to
any and all claims or liabilities arising out of or relating to Foxx’s
employment with BKEP and the termination of such employment, including, but not
limited to: claims of discrimination based on age, race, color, sex
(including sexual harassment), religion, national origin, marital status,
parental status, veteran status, union activities, disability or any other
grounds under applicable federal, state or local law, including, but not limited
to, claims arising under the Age Discrimination in Employment Act of 1967, as
amended; the Americans with Disabilities Act; the Fair Labor Standards Act; the
Family and Medical Leave Act; and Title VII of the Civil Rights Act, as amended,
the Civil Rights Act of 1991; 42 U.S.C. § 1981, the Employee Retirement Income
Security Act, the Consolidated Omnibus Budget Reconciliation Act of 1985 as
amended, the Rehabilitation Act of 1973, the Equal Pay Act of 1963 (EPA) as well
as any claims regarding wages; benefits; vacation; sick leave; business expense
reimbursements; wrongful termination; breach of the covenant of good faith and
fair dealing; intentional or negligent infliction of emotional distress;
retaliation; outrage; defamation; invasion of privacy; breach of contract; fraud
or negligent misrepresentation; harassment; breach of duty; negligence;
discrimination; claims under any employment, contract or tort laws; claims
arising under any other federal law, state law, municipal law, local law, or
common law; any claims arising out of any employment contract, policy or
procedure; and any other claims related to or arising out of his employment or
the separation of his employment with BKEP except for any claims based on the
indemnification provisions of the agreements described in Section 5
above.
In addition,
Foxx agrees not to cause or encourage any legal proceeding related to the
Released Employment Matters to be maintained or instituted against any of the
Released Parties.
This release
does not apply to any claims for unemployment compensation or any other claims
or rights which, by law, cannot be waived, including the right to file an
administrative charge or participate in an administrative investigation or
proceeding; provided, however that Foxx disclaims and waives any right to share
or participate in any monetary award resulting from the prosecution of such
charge or investigation or proceeding.
Nothing in
this Agreement shall be construed to release any Released Party from (i) any of
the obligations set forth in this Agreement, (ii) any of the indemnification
obligations described in Section 5 above, or (iii) from any and all claims,
liabilities, costs, expenses, judgments, attorney fees, actions, known and
unknown, of every kind and nature whatsoever in law or equity, which Foxx had,
now has, or may have against the Released Parties which are not Released
Employment Matters.
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7.
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Acknowledgement
of Waiver of Claims under ADEA.
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Foxx
expressly acknowledges that he is voluntarily, irrevocably and unconditionally
releasing and forever discharging BKEP and its respective present and former
parents, subsidiaries, divisions, affiliates, branches, insurers, agencies, and
other offices from all rights or claims he has or may have against BKEP
including, but not limited to, without limitation, all charges, claims of money,
demands, rights, and causes of action arising under the Age Discrimination in
Employment Act of 1967, as amended (“ADEA”), including, but not limited to, all
claims of age discrimination in employment and all claims of retaliation in
violation of ADEA. Foxx further acknowledges that the consideration
given for this waiver of claims under the ADEA is in addition to anything of
value to which he was already entitled in the absence of this
waiver. Foxx further acknowledges: (a) that he has been
informed by this writing that he should consult with an attorney prior to
executing this Agreement; (b) that he has carefully read and fully understands
all of the provisions of this Agreement; (c) he is, through this Agreement,
releasing BKEP from any and all claims pursuant to the ADEA through the date
hereof; (d) he understands and agrees that this waiver and release does not
apply to any claims that may arise under the ADEA after the date he executes
this Agreement; (e) he has at least 45 days within which to consider this
Agreement; and (f) he has seven days following his execution of this Agreement
to revoke the Agreement (as provided in Section 17 of this Agreement); and (g)
this Agreement shall not be effective until the revocation period has expired
and Foxx has signed and has not revoked the Agreement.
Attached as
Appendix A is a list of the job titles and ages of all individuals in the same
organizational unit (corporate headquarters) and same or similar job (executive
officer) who are part of the November 2009 reduction in
force. Attached as Appendix B is a list of the ages of all
individuals in the same organizational unit (corporate headquarters) and same or
similar job (executive officer) who are being retained.
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8.
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Return
of Confidential Information and
Equipment.
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(a) The
Parties agree that all terms and provisions of Section 7.A. of the Employment
Agreement related to Confidential Information shall remain in full force and
effect as provided in the Employment Agreement.
(b) In
accordance with Section 7.B. of the Employment Agreement, Foxx agrees to deliver
to BKEP (and will not keep in Foxx’s possession) specifications, drawings
blueprints, sketches, materials, equipment, other documents or property, or
reproductions of any aforementioned items developed by Foxx pursuant to Foxx’s
employment with BKEP or otherwise belonging to BKEP, its successors or
assigns.
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9.
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Non-Disparagement.
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Foxx shall
not, directly or indirectly, make or cause to be made and shall use his best
commercial efforts to cause the officers, directors, employee, agents and
representatives of any entity or person controlled by Foxx not to make or cause
to be made, any disparaging, denigrating, derogatory or other negative,
misleading or false statements orally or in writing to any person or entity,
including members of the investment community, press, and customers, competitors
and advisors to BKEP, about BKEP, its shareholders, subsidiaries or affiliates,
their respective officers or members of their boards of directors, or the
business strategy or plans, policies, practices or operations of BKEP, its
shareholders, subsidiaries or affiliates; provided, however, that nothing in
this Agreement shall apply to or restrict in any way the communication of
information by Foxx to any state or federal law enforcement agency or require
notice to BKEP thereof.
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BKEP agrees
to use its best commercial efforts to prevent its officers, directors, managers,
supervisors, employees, agents and representatives from making any disparaging,
denigrating, derogatory or other negative, misleading or false statements orally
or in writing to any person or entity, including members of the investment
community, press, and customers, competitors and advisors to BKEP regarding
Foxx; provided, however, that nothing in this Agreement shall apply to or
restrict in any way the communication of information by BKEP to any state or
federal law enforcement agency or require notice to Foxx thereof.
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10.
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Cooperation
Agreement; Acknowledgement of Foxx Seeking New
Employment.
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(a) Foxx
acknowledges that in the course of his employment with BKEP, Foxx has gained
knowledge and experience and/or was a witness to events and circumstances that
may arise in or relate to BKEP’s defense or prosecution of current or subsequent
proceedings. During the term of Foxx’s employment as a Consultant for
Crude Oil Operations, Foxx agrees to cooperate fully with BKEP’s reasonable
request as a witness and/or consultant in defending or prosecuting claims of all
kinds, including but not limited to, any litigation, administrative actions or
arbitrations.
(b) BKEP
acknowledges that Foxx may actively seek employment with (or other association
with) third parties during the term of his employment as a Consultant for Crude
Oil Operations, some of whom may be in direct competition with the business of
BKEP, provided that (i) Foxx may not use or disclose Confidential Information in
violation of Section 8(a) of this Agreement and (ii) if Foxx accepts employment
with a third party that competes with BKEP, Foxx will be required to resign from
BKEP immediately.
(c) Notwithstanding
the Arbitration Provision set forth in Section 11 of this Agreement, the Parties
agree that either party may resort to Oklahoma state courts having equity
jurisdiction in and for Tulsa County, Oklahoma and the United States District
Court for the Northern District of Oklahoma, to enforce this Section 10 of the
Agreement by injunctive relief. The Parties agree that this promise
is a material inducement to each party entering into this
Agreement. Additionally, the Parties agree that either party may
enforce this promise without posting a bond and without giving notice to the
maximum extent permitted by law.
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11.
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Arbitration.
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Any dispute
arising out of or relating to this Agreement, including the breach, termination
or validity thereof, shall be finally resolved by arbitration in accordance with
the CPR Institute for Dispute Resolution Rules for Non-Administered Arbitration
in effect on the date of this Agreement by a single arbitrator selected in
accordance with the CPR Rules. The arbitration shall be governed by
the Federal Arbitration Act, 9 U.S.C. §§ 1-16, and judgment on the award
rendered by the arbitrator may be entered by any court having jurisdiction
thereof. The place of arbitration shall be in Tulsa,
Oklahoma. The arbitrator’s decision must be based on the provisions
of this Agreement and the relevant facts, and the arbitrator’s reasoned decision
and award shall be binding on the Parties. Nothing herein is or shall
be deemed to preclude BKEP’s resort to the injunctive relief prescribed in this
Agreement, including any injunctive relief implemented by the arbitrator
pursuant to this Section 11. The Parties will each bear their own
attorneys’ fees and costs in connection with any dispute.
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12.
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Resolution
of Claims.
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The
provisions of this Agreement are contractual and not merely recitals and are
intended to resolve disputed claims. No party hereto admits liability
of any kind and no portion of this Agreement shall be construed as an admission
of liability.
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13.
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No
Assignment of Claims.
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Foxx and BKEP
represent, recognizing that the truth of the following representation is a
material consideration upon which this Agreement is based, that they have not
heretofore assigned or transferred, or purported to assign or transfer, to any
person or entity, any claim or any portion thereof, or interest therein relating
to any claims being released by any party to this Agreement, and that they are
unaware of any other entity having any interest in such claims, and agree to
indemnify and hold the other party harmless from and against any and all claims,
based on or arising out of any such third-party interest in, or assignment or
transfer, or purported assignment or transfer of, any claims, or any portion
thereof or interest therein.
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14.
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Governing
Law.
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This
Agreement shall be governed by and construed in accordance with the laws of the
State of Oklahoma (except that no effect shall be given to any conflicts of law
principles thereof that would require the application of the laws of another
jurisdiction).
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15.
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Notice.
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All notices
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
registered or certified mail (return receipt requested and with postage prepaid
thereon) or by facsimile transmission to the respective parties at the following
addresses (or at such other address as either party shall have previously
furnished to the other in accordance with the terms of this
Section):
if to
BKEP:
BKEP Management,
Inc.
Two Xxxxxx
Place
0000 Xxxxx Xxxx
Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx
00000
Attention: Chairman
of the Board
if to
Foxx:
Xxxxx X.
Xxxx
000 Xxxxx
Xxxxx
Xxxxxxx,
Xxxxx 00000
with a copy
to:
Xxxxxx X.
XxXxxxx
Xxxxxx & Xxxx,
LLP
0000 Xxxx Xxxx Xxxxx,
Xxxxx 0000
Xxxxxxx,
Xxxxx 00000
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16.
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Sufficient
Time to Review.
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Foxx
acknowledges and agrees that: (i) he has had reasonable and sufficient time to
read and review this Agreement and that he has, in fact, read and reviewed this
Agreement; (ii) that he has the right to consult with legal counsel regarding
this Agreement and is encouraged to consult with legal counsel with regard to
this Agreement; (iii) that he has had (or has had the opportunity to take) 45
calendar days to discuss the Agreement with a lawyer of his choice before
signing it and, if he signs before the end of that period, he does so of his own
free will and with the full knowledge that he could have taken the full period;
(iv) that he is entering into this Agreement freely and voluntarily and not as a
result of any coercion, duress or undue influence; (v) that he is not relying
upon any oral representations made to him regarding the subject matter of this
Agreement; (vi) that by this Agreement he is receiving consideration in addition
to that which he was already entitled; and (vii) that he has received all
information he requires from BKEP in order to make a knowing and voluntary
release and waiver as provided in Sections 6 and 7 above.
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17.
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Revocation/Payment.
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Foxx
acknowledges and agrees that he has seven days from the date of the execution of
this Agreement within which to rescind or revoke this Agreement by providing
notice in writing to BKEP. Foxx further understands that the
Agreement will have no force and effect until the end of that seventh day (the
“Waiver Effective Date”), and that, he will receive the payments and benefits
identified in Section 2 above following BKEP’s receipt of the Agreement as
executed by Foxx if the Agreement is not revoked prior to the Waiver Effective
Date. If Foxx revokes the Agreement pursuant to this Section 17, this
Agreement shall be deemed null and void.
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18.
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Taxes.
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All payments
made by BKEP under this Agreement will be subject to applicable federal, state
and local taxes, and withholdings required for the same, which taxes will be the
responsibility of Foxx.
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19.
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Entire
Agreement; Severability.
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This
Agreement constitutes the entire agreement and understanding among the Parties
and replaces, cancels and supersedes any prior agreements and understandings
relating to the subject matter hereof including, without limitation, the
Employment Agreement, except as expressly provided herein, and all prior
representations, agreements, understandings and undertakings among the parties
hereto with respect to the subject matter hereof are merged
herein. The Parties agree that this Agreement is the entire agreement
between the parties relating to the subject matter hereof, and that there is no
agreement, representation or other inducement for the execution of this
Agreement other than the consideration recited herein.
Should any
provision of this Agreement be found to be invalid or unenforceable, the
remaining provisions of this Agreement shall be deemed to be in full force and
effect to the fullest extent permitted by law. Any waiver of any term
or provision of this Agreement shall not be deemed a continuing waiver and shall
not prevent the Parties’ enforcement of such provision in the
future.
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20.
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Confidentiality.
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The Parties
agree that the contents of this Agreement, including but not limited to its
financial terms, are and will be kept strictly confidential by the
Parties. By executing this Agreement, each Party agrees and
represents that it has maintained and will maintain the confidential nature of
the agreement and has not and will not disclose its terms to any third party,
except to (a) such party’s legal counsel, tax advisors and immediate family
members who agree to keep it confidential; (b) as required by law in which case
such party shall notify the other party in writing in advance of such
disclosure; and (c) as necessary to enforce this
Agreement. Notwithstanding the foregoing, the Parties agree that this
Agreement may be filed with the Securities and Exchange Commission as an exhibit
to any appropriate securities filing, as determined by BKEP in its
discretion.
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21.
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Section
409A.
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Each payment
under this Agreement, including each payment in a series of installment
payments, is intended to be a separate payment for purposes of Treas. Reg.
§1.409A-2(b), and is intended to be: (i) exempt from Section 409A of the
Internal Revenue Code of 1986, the regulations and other binding guidance
promulgated thereunder (“Section 409A”), including, but not limited to, by
compliance with the short-term deferral exemption as specified in Treas. Reg. §
1.409A-1(b)(4), or (ii) in compliance with Section 409A, including, but not
limited to, being paid pursuant to a fixed schedule or specified date pursuant
to Treas. Reg. § 1.409A-3(a) and the provisions of this Agreement will be
administered, interpreted and construed accordingly.
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22.
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Binding
Effect.
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This
Agreement shall be binding on and inure to the benefit of each of the parties
hereto, as well as their respective successors, assigns, heirs, executors and
administrators.
FOXX
AFFIRMS THAT HE HAS CONSULTED WITH HIS ATTORNEY OR HAS HAD AN OPPORTUNITY TO DO
SO PRIOR TO SIGNING THIS AGREEMENT AND THAT HE IS EXECUTING THE AGREEMENT
VOLUNTARILY AND WITH FULL UNDERSTANDING OF ITS CONSEQUENCES.
[Signature
page follows]
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IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
effective as of the date first written above.
BKEP
Management, Inc.
By: /s/ Xxxx X.
Xxxxxxxxx _____________
Name:
Xxxx X. Xxxxxxxxx
Title: Chief
Financial Officer
Foxx:
/s/ Xxxxx X.
Foxx________________
Xxxxx X. Xxxx
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