SEPARATION AGREEMENT AND RELEASE
Exhibit 10.1
This Separation Agreement and Release (“Agreement”) is entered into on May 13, 2008 between
Noble Corporation, a Delaware Corporation, (“Noble”), and Xxxxxx X. Xxxxxxxx (“Xxxxxxxx”) (Xxxxx
and Xxxxxxxx are collectively referred to herein as the “Parties,” and individually as a “Party”).
The “Effective Date” of this Agreement shall be on the eighth (8th) day after this
Agreement has been signed by Xxxxxxxx.
RECITALS
WHEREAS, Xxxxxxxx is employed by Noble as Senior Vice President and General Counsel;
WHEREAS, because of his employment as an executive of Noble, Xxxxxxxx has obtained intimate
and unique knowledge of all aspects of Noble’s business operations, current and future plans,
financial plans and other confidential and proprietary information;
WHEREAS, Xxxxxxxx and Xxxxx mutually desire to terminate their employment relationship and all
other officer, director and employee positions held by Xxxxxxxx in Noble and in any of its
subsidiaries or affiliates effective as of May 13, 2008;
NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by each Party, the Parties do hereby agree as follows:
1. Employment Termination. Xxxxxxxx’x employment and all positions held by Xxxxxxxx with
Noble are terminated effective May 13, 2008 (“Separation Date”). On the Separation Date, Xxxxxxxx
shall resign his position as Senior Vice President and General Counsel of Noble, and retire from
Noble and resign from all other director, officer, and employee positions with Noble and any of
Noble’s subsidiaries or affiliates. On the Separation Date, Xxxxxxxx shall execute and deliver to
Noble a resignation letter in the form attached hereto as Exhibit A. After the Separation Date,
Xxxxxxxx shall, as Noble may reasonably request, provide any other documents to Noble to effect
such resignations. This Agreement cancels and supersedes all prior agreements, oral or written,
relating to Xxxxxxxx’x employment with Noble, including but not limited to the Amended and Restated
Employment Agreement, except as otherwise provided in this Agreement.
2. Certain Payments and Benefits.
(a) Accrued Obligations. Within seven (7) days following the Separation Date, Noble
shall pay Xxxxxxxx an amount of cash for all salary earned but unpaid through the Separation Date,
minus appropriate payroll taxes and withholdings, and an amount of cash equal to all accrued but
unused vacation as of the Separation Date, minus appropriate payroll taxes and withholdings
(“Accrued Obligations”). Except as otherwise provided in this Agreement or as required by law, all
other compensation, bonus, commission, severance, equity, expense reimbursements, vacation and
benefits which relate to Xxxxxxxx’x employment with Noble, including any benefits set forth in any
plan, policy or program, shall cease as of the Separation Date.
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(b) Separation Payments. Subject to Xxxxxxxx’x consent to and fulfillment of his
obligations under this Agreement, and provided that Xxxxxxxx does not revoke this Agreement
pursuant to Paragraph 15, Noble shall pay Xxxxxxxx Three Hundred Thousand U.S. dollars (USD
$300,000), minus normal payroll withholdings and taxes. This amount is referred to as the
“Separation Payment”). Noble shall pay the Separation Payments to Xxxxxxxx in a lump sum payment
within 20 days after the Effective Date of this Agreement. The Separation Payment shall not be
treated as compensation for purposes of Noble’s 401(k) Plan, 401(k) Restoration Plan, The Noble
Drilling Corporation Salaried Employees’ Retirement Plan or any other retirement plan.
(c) Equity Awards. All equity awards previously granted under Noble’s 1991 Stock
Option and Restricted Stock Plan, as amended (the “Plan”) to Xxxxxxxx and outstanding as of the
Separation Date, including without limitation, any grants of non-qualified stock options,
time-vested restricted stock and performance-vested restricted stock, shall continue to be governed
by the terms and conditions of the applicable award agreements, including, without limitation, any
provisions providing for forfeiture of such awards upon Xxxxxxxx’x termination of employment with
Noble.
(d) Waiver of Additional Compensation or Benefits. Other than the compensation
payment expressly provided for in this Agreement, Xxxxxxxx shall not be entitled to any additional
compensation, bonus, stock options, commissions, benefits, severance payments or grants under any
benefit plan, severance plan or bonus or incentive program established by Noble or any of Noble’s
affiliates. Xxxxxxxx acknowledges that any vested interest held by Xxxxxxxx in Noble’s 401(k)
Plan, retirement plan and any other plans in which Xxxxxxxx participates, including the 401(k)
matching payments for contributions made up to and including the Separation Date, shall be
distributed in accordance with the terms of the plan and applicable law. The release in Paragraph
4 otherwise shall be deemed to cover any and all claims Xxxxxxxx may be entitled to regarding his
compensation, bonuses, stock options or grants and any other benefits he may or may not have
received during his employment with Noble.
3. Public Filings and Press Release. In connection with the termination of Xxxxxxxx’x
employment with Noble, Xxxxxxxx consents to Noble’s issuance of internal and external
communications and public filings regarding his separation from his employment with Noble.
4. General Release and Waiver. Xxxxxxxx, on his own behalf and on behalf of his agents,
administrators, representatives, executors, successors, heirs, devisees and assigns (collectively,
the “Releasing Parties”) hereby fully releases, remises, acquits and forever discharges Noble and
all of its affiliates, and each of their respective past and present officers, directors,
shareholders, equity holders, members, partners, agents, employees, consultants, independent
contractors, attorneys, advisers, successors and assigns (collectively, the “Released Parties”),
jointly and severally, from any and all claims, rights, demands, debts, obligations, losses, causes
of action, suits, controversies, setoffs, affirmative defenses, counterclaims, third party actions,
damages, penalties, costs, expenses, attorneys’ fees, liabilities and indemnities of any kind or
nature whatsoever (collectively, the “Claims”), whether known or unknown, suspected or unsuspected,
accrued or unaccrued, whether at law, equity, administrative, statutory or otherwise, and whether for injunctive relief, back
pay, fringe benefits, reinstatement, reemployment, or compensatory, punitive or any other kind of
damages,
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which any of the Releasing Parties ever have had in the past or presently have against the
Released Parties, and each of them, arising from or relating to Xxxxxxxx’x employment with Noble or
its affiliates or the termination of that employment or any circumstances related thereto, or any
other matter, cause or thing whatsoever, including without limitation all claims arising under or
relating to employment, employment contracts, employee benefits or purported employment
discrimination or violations of civil rights of whatever kind or nature, including without
limitation all claims arising under the Age Discrimination in Employment Act (“ADEA”), the
Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the Equal Pay
Act of 1963, the Rehabilitation Act of 1973, Title VII of the United States Civil Rights Act of
1964, 42 U.S.C. § 1981, the Civil Rights Act of 1991, the Civil Rights Acts of 1866 and/or 1871,
the Xxxxxxxx-Xxxxx Act, the Texas Commission on Human Rights Act, the Texas Payday Law, the Texas
Labor Code or any other applicable federal, state or local employment discrimination statute, law
or ordinance, including, without limitation, any workers’ compensation or disability claims under
any such laws, claims for wrongful discharge, breach of express or implied contract or implied
covenant of good faith and fair dealing, and any other claims arising under state or federal law,
as well as any expenses, costs or attorneys’ fees. Xxxxxxxx further agrees that Xxxxxxxx will not
file or permit to be filed on Xxxxxxxx’x behalf any such claim. Notwithstanding the preceding
sentence or any other provision of this Agreement, this release is not intended to interfere with
Xxxxxxxx’x right to file a charge with the Equal Employment Opportunity Commission (the “EEOC”) in
connection with any claim he believes he may have against Noble or its affiliates. However, by
executing this Agreement, Xxxxxxxx hereby waives the right to recover in any proceeding Xxxxxxxx
may bring before the EEOC or any state human rights commission or in any proceeding brought by the
EEOC or any state human rights commission on Xxxxxxxx’x behalf. This release shall not apply to any
of Noble’s obligations under this Agreement, or any vested 401(k), or vested continuing benefits to
which Xxxxxxxx is entitled under this Agreement, COBRA continuation coverage benefits,
indemnification to which Xxxxxxxx may be entitled, or any other similar benefits required to be
provided by statute. Xxxxxxxx acknowledges that certain of the payments and benefits provided for
in Paragraph 2 of this Agreement constitute good and valuable consideration for the release
contained in this Paragraph 4.
5. Return of Noble Property. Within five (5) days of the Separation Date, Xxxxxxxx shall, to
the extent not previously returned or delivered: (a) return all equipment, records, files, programs
or other materials and property in his possession which belongs to Noble or any one or more of its
affiliates, including, without limitation, all, computer access codes, Blackberries, mobile
telephones, credit cards, keys and access cards; and (b) deliver all original and copies of notes,
materials, records, plans, technical data or other documents, files or programs (whether stored in
paper form, computer form, digital form, electronically or otherwise) that relate or refer to (1)
Noble or any one or more of its affiliates, or (2) Noble or any one or more of Noble’s affiliates’
financial statements, business contacts, and sales including but not limited to business plans,
monthly financial reviews, budget materials, acquisition materials, and Noble offering memorandums.
Xxxxxxxx represents and warrants that he has not retained and has or shall timely return and
deliver all the items described or referenced in subparagraphs (a) or (b) above; and, that should
he later discover additional items described or referenced in subparagraphs (a) or (b) above, he
shall promptly notify Noble and return/deliver such items to Noble.
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6. Covenants. To protect Noble’s Confidential Information and in consideration of the
compensation and benefits provided herein, Xxxxxxxx agrees that it is necessary to enter into the
following restrictive covenants:
(a) Non-Solicitation. For a period of one (1) year following the Separation Date,
Xxxxxxxx shall not, without the prior written consent of the Chief Executive Officer of Noble,
directly or indirectly, either as a principal, manager, agent, employee, consultant, officer,
director, stockholder, partner, investor or lender or in any other capacity, and whether personally
or through other persons: solicit, induce, hire or attempt to hire, solicit or induce, on behalf
of himself or any other person or entity, any executive, officer, or employee of Noble who was
employed by Noble at the time of such solicitation to terminate his/her employment with Noble
and/or accept employment or any other relationship elsewhere; and
(b) Non-Disclosure. Xxxxxxxx shall keep secret and shall not use or disclose to
anyone, including, without limitation, any person, firm, corporation, or other entity, or publish,
or use for any purpose, any Confidential Information. Xxxxxxxx acknowledges that during his
employment, Noble provided him with information that is considered Confidential Information, as
defined below. Xxxxxxxx shall take all reasonable measures to protect the secrecy of and avoid
disclosure and unauthorized use of, the Confidential Information and agrees to immediately notify
Noble in the event of any unauthorized use or disclosure of the Confidential Information.
“Confidential Information” includes, without limitation, all processes, policies, procedures,
mechanisms, and software developed by Noble and all materials relating thereto, as well as all
scientific study or research, drawings, data, concepts, inventions, technology, plans, formulas,
studies, reports, blueprints, specifications, designs, parameters, and other technical knowledge,
all sales leads and marketing plans, strategies and tactics, financial plans and information,
investment plans and information, employee lists and information, and all lists, contact
information and identities, and other business affairs of Noble learned by Xxxxxxxx at any time
during his employment. The Parties acknowledge that this Paragraph 6 is material to this Agreement.
Information Xxxxxxxx knew before working for Noble or that is generally available or known to the
general public or obtained from sources other than Noble or anyone affiliated with Noble is not
confidential and this Agreement shall not prevent Xxxxxxxx from discussing such public information
with any person or entity who is already aware of that information.
(c) Professional Obligations. Xxxxxxxx further agrees: (i) to fulfill his continuing
obligations to Noble and the other Released Parties under the Texas Disciplinary Rules of
Professional Conduct (“Rules”), including his obligations with respect to Noble’s and the other
Released Parties’ client “confidential information” as that term is defined in Rule 1.05(a), as
well as with respect to conflicts of interest as defined in Rule 1.09, and (ii) that he will not
disclose client “confidential information” to, represent, or advise any person (or that person’s
agent or attorney) who may have interests adverse to Noble or any of the other Released Parties.
7. Breach of Agreement. In the event Xxxxxxxx fails to materially fulfill any of his
obligations in this Agreement, or Xxxxxxxx or anyone acting on his behalf brings suit against Noble
seeking to declare any term of this Agreement void or unenforceable and if one or more material
terms of this Agreement are ruled by a court or arbitrator to be void or unenforceable or
subject to reduction or modification, Noble shall be as permitted by law entitled to (a) terminate
the Agreement, (b) terminate any remaining Separation Payment set forth in Paragraph 2, and
Xxxxxxxx will not be entitled to receive any remaining Separation Payment, (c) recover Separation
Payments
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and all other benefits set forth in Paragraph 2 already paid to Xxxxxxxx (except for the
sum of $1,000) upon court order, (d) recover attorneys’ fees, expenses and costs Noble incurs in
such action, and/or (e) recover any and all other damages to which Noble may be entitled at law or
in equity as a result of a breach of this Agreement.
8. Non-Disparagement. Xxxxxxxx shall not, directly or indirectly, disclose, communicate, or
publish any disparaging information concerning Noble, its officers, directors or employees,
products, services, operations, technology, proprietary or business information, or cause others to
disclose, communicate, or publish any disparaging information concerning the same and that he shall
not take any action deemed to interfere with the overall operation of Noble. Xxxxxxxx shall not
disclose, directly or indirectly, communicate, or publish any disparaging information concerning
the terms of his employment with Noble, any other circumstance that arose from his employment with
Noble or separation from employment, or any action or event that occurred during his employment
with Noble, or cause others to disclose, communicate, or publish any disparaging information
concerning the same.
9. Indemnification. This Agreement does not terminate any right Xxxxxxxx may have to
indemnification under Noble’s organizational documents, applicable law, or Noble’s Directors’ and
Officers’ liability insurance policy as in effect from time to time; provided, however, that any
such rights shall remain subject to all applicable terms of such organizational documents,
law and/or insurance policy, as in effect from time to time. Without limiting the foregoing, Noble
acknowledges and agrees that reasonable and customary travel expenses Xxxxxxxx incurs in connection
with the current governmental investigation shall be deemed indemnifiable expenses, so long as
Xxxxxxxx is otherwise entitled to indemnification for his fees and expenses.
10. Not An Admission of Wrongdoing. This Agreement shall not in any way be construed as an
admission by either Party of any acts of wrongdoing, violation of any statute, law or legal or
contractual right.
11. Voluntary Execution of the Agreement. Each Party acknowledges that they have had an
opportunity to review all aspects of this Agreement, and that they fully understand all the
provisions of the Agreement and are voluntarily entering into this Separation Agreement and the
General Release. Xxxxxxxx acknowledges and agrees that Xxxxxxxx is not represented by counsel for
Noble or the Board, and further agrees that he has been advised to consult with an attorney prior
to executing this Agreement. Xxxxxxxx further represents that he has not transferred or assigned
to any person or entity any claim involving Noble or any portion thereof or interest therein.
12. Confidentiality of Agreement. The Parties shall keep confidential the specific terms of
this Agreement and shall not disclose same to any person except that (a) Xxxxxxxx may inform his
financial, tax, professional, pastoral and legal advisors of the contents or terms of this
Agreement, and (b) Noble may inform its financial, tax, business and legal advisors, or anyone else
with a need to know, of the contents or terms of this Agreement. Before sharing the Agreement or
its terms with any permissible party, Xxxxxxxx and Xxxxx shall notify them of this confidentiality
requirement. This Agreement may be disclosed or appended as an exhibit to any securities filing
required to be made by Noble or its affiliates, or pursuant to any other applicable law.
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13. Binding Effect. This Agreement shall be binding upon Noble and upon Xxxxxxxx and his
heirs, administrators, representatives, executors, successors and assigns. In the event of
Xxxxxxxx’x death, this Agreement shall operate in favor of his estate and all payments, obligations
and consideration will continue to be performed in favor of his estate.
14. Severability. Should any provision of this Agreement be declared or determined to be
illegal or invalid by any government agency or court of competent jurisdiction, the validity of the
remaining parts, terms or provisions of this Agreement shall not be affected and such provisions
shall remain in full force and effect.
15. Entire Agreement. This Agreement sets forth the entire agreement between the Parties, and
fully supersedes any and all prior agreements, understandings, or representations between the
Parties pertaining to Xxxxxxxx’x employment with Noble, the subject matter of this Agreement or any
other term or condition of the relationship between Noble and Xxxxxxxx. Xxxxxxxx represents and
acknowledges that in executing this Agreement, he does not rely, and has not relied, upon any
representation(s) by Noble, its attorneys or its agents except as expressly contained in this
Agreement.
16. Knowing and Voluntary Waiver. Xxxxxxxx, by Xxxxxxxx’x free and voluntary act of signing
below, (i) acknowledges that he has been given a period of twenty-one (21) days to consider whether
to agree to the terms contained herein, (ii) acknowledges that he has been advised to consult with
an attorney prior to executing this Agreement, (iii) acknowledges that he understands that this
Agreement specifically releases and waives all rights and claims he may have under the Age
Discrimination in Employment Act, as amended prior to the date on which he signs this Agreement,
and (iv) agrees to all of the terms of this Agreement and intends to be legally bound thereby.
Furthermore, Xxxxxxxx acknowledges that the payments and benefits provided for in Paragraph 2 of
this Agreement will be delayed until this Agreement becomes effective, enforceable and irrevocable.
This Agreement shall become effective, enforceable and irrevocable on the eighth day after the date
on which it is executed by Xxxxxxxx (the “Effective Date”). During the seven-day period prior to
the Effective Date, Xxxxxxxx may revoke his agreement to accept the terms hereof by indicating in
writing to Noble his intention to revoke. If Xxxxxxxx exercises his right to revoke hereunder, he
shall forfeit his right to receive any of the payments or benefits provided for herein, and to the
extent such payments or benefits have already been made, Xxxxxxxx agrees that he will immediately
reimburse Noble for the amounts of such payments and benefits.
17. Notices. All notices and other communications hereunder will be in writing. Any notice
or other communication hereunder shall be deemed duly given if it is sent by registered or
certified mail, return receipt requested, postage prepaid, and addressed to the intended recipient
as set forth:
| If to Xxxxxxxx: | Xxxxxx X. Xxxxxxxx | |||
| 0 Xxxxx Xxxxxx Xxxxx | ||||
| Xxxxx Xxxx, Xxxxx 00000 | ||||
| If to Noble: | Executive Vice President & Corporate Secretary | |||
| Noble Corporation | ||||
| 00000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000 | ||||
| Xxxxx Xxxx, Xxxxx 00000 |
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Any party may send any notice or other communication hereunder to the intended recipient at the
address set forth using any other means (including personal delivery, expedited courier, messenger
services, fax, ordinary mail or electronic mail), but no such notice or other communication shall
be deemed to have been duly given unless and until it is actually received by the intended
recipient. Any party may change the address to which notices and other communications are to be
delivered by giving the other party notice.
18. Governing Law. This Agreement shall in all respects be interpreted, enforced, and
governed under the laws of the State of Texas. Noble and Xxxxxxxx agree that the language on this
Agreement shall, in all cases, be construed as a whole, according to its fair meaning, and not
strictly for, or against, any of the Parties. Venue of any litigation arising from this Agreement
shall be in a court of competent jurisdiction in Xxxxxx County, Texas.
19. Counterparts. This Agreement may be executed in counterparts, each of which when executed
and delivered (which deliveries may be by facsimile) shall be deemed an original and all of which
together shall constitute one and the same instrument.
20. No Assignment Of Claims. Xxxxxxxx represents and agrees that he has not transferred or
assigned, to any person or entity, any claim involving Noble, or any portion thereof or interest
therein.
21. Jury Waiver. Xxxxxxxx further agrees to irrevocably waive the right to trial by jury, and
agrees not to initiate or participate in any class or collective action, with respect to any claim
or cause of action arising from his employment or the termination of his employment with Noble or
from this Separation Agreement and Release agreement (either for alleged breach or enforcement).
22. No Modification or Waiver. This Agreement may not be waived, modified, amended,
supplemented, canceled or discharged, except by written agreement of the Parties. Failure to
exercise and/or delay in exercising any right, power or privilege in this Agreement shall not
operate as a waiver. No waiver of any breach of any provision shall be deemed to be a waiver of
any preceding or succeeding breach of the same or any other provision, nor shall any waiver be
implied from any course of dealing between or among the Parties.
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I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THE FOREGOING
AGREEMENT, THAT I UNDERSTAND ALL OF ITS TERMS AND THAT I AM
RELEASING CLAIMS AND THAT I AM ENTERING INTO IT VOLUNTARILY.
AGREEMENT, THAT I UNDERSTAND ALL OF ITS TERMS AND THAT I AM
RELEASING CLAIMS AND THAT I AM ENTERING INTO IT VOLUNTARILY.
AGREED TO BY:
/s/ Xxxxxx X. Xxxxxxxx
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May 14, 0000
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XXXXX XX XXXXX |
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XXXXXX XX Xxxx Xxxx |
Before me, a Notary Public, on this day personally appeared Xxxxxx X
Xxxxxxxx , known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledges to me that he has executed this Agreement on behalf of himself and his
heirs, for the purposes and consideration therein expressed.
Given under my hand and seal of office this 14th day of May, 2008.
| /s/ Xxxxx Xxxxxx | ||||
| Notary Public in and for the State of Texas | ||||
(PERSONALIZED SEAL)
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NOBLE CORPORATION
By:
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/s/ Xxxxx X. Xxxxxxxxx
|
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Title:
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Executive Vice President and Corporate Secretary
|
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Date:
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May 14, 0000
|
XXXXX XX XXXXX
XXXXXX XX Xxxx Xxxx
Before me, a Notary Public, on this day personally appeared Xxxxx X. Xxxxxxxxx
, known to me to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of Xxxxx X. Xxxxxxxxx
, and that he has executed the same on behalf of said corporation for the purposes and
consideration therein expressed, and in the capacity therein stated.
Given under my hand and seal of office this 14th day of May
, 2008.
| /s/ Xxxxx Xxxxxx | ||||
| Notary Public in and for the State of Texas | ||||
(PERSONALIZED SEAL)
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