EXHIBIT 10.21
SEPARATION AGREEMENT AND RELEASE
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THIS SEPARATION AGREEMENT AND RELEASE (the "Agreement") is
made and entered into on the 20th day of February, 1998, by and
between WILLBROS USA, INC. ("Employer") and XXXX X. XXXXXXX
("Employee").
WITNESSETH:
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WHEREAS, Employee is currently employed by Employer; and
WHEREAS, Employee's active service with Employer ceased
effective November 5, 1997 ("Cessation Date"); and
WHEREAS, Employer and Employee have agreed that the
employment relationship between them will terminate effective
February 20, 1998 (the "Termination 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. Termination of Employment. Employee and Employer confirm
and agree that Employee is retiring from employment with
Employer as of the Termination Date and that the employment
relationship which existed between Employee and Employer
and/or any of Employer's affiliated companies shall cease as
of the Termination Date. All of Employer's obligations to
Employee on or after the Termination Date are set forth
herein. Accordingly, except as otherwise provided herein,
Employer shall have no further obligations whatsoever to
Employee after the Termination Date. Similarly, all of
Employee's obligations to Employer on or after the
Termination Date are set forth herein. Accordingly, except
as otherwise provided herein, Employee shall have no further
obligations to Employer after the Termination Date.
Employer shall cause its
personnel records to reflect that Employee retired from
employment with Employer effective on the Termination Date.
2. Prior Agreements Superseded. Except as otherwise
specifically provided herein, this Agreement supersedes and
replaces all prior agreements, written or oral, relating to
Employee's employment with Employer and/or any of Employer's
affiliated companies, including specifically that certain
Employment Agreement entered into by Employer, Employee and
Willbros Group, Inc. ("WGI") as of January 1, 1996, and as
amended effective February 25, 1997, which shall terminate
in all respects as of the Termination Date.
3. Lump Sum Payment. On the Termination Date, Employer
shall pay to Employee a lump sum amount of Seven Hundred
Nineteen Thousand Seventy U.S. Dollars (U.S. $719,070), less
standard payroll deductions for federal and Oklahoma state
income taxes, FICA and Medicare tax.
4. Management Incentive Plan. Prior to the Termination
Date, Employee participated in the Willbros USA, Inc.
Management Incentive Plan dated January 1, 1996 (the
"Incentive Plan"). Employee will no longer be eligible to
participate in the Incentive Plan after the Termination
Date. However, Employer agrees to pay to Employee an amount
equal to the incentive bonus, if any, which would have been
payable to Employee under the Incentive Plan had Employee
continued as an Incentive Plan participant through the end
of calendar year 1998. Employee's entitlement to such
further payment, if any, shall be determined by applying the
terms of the Incentive Plan to Employee's annual base salary
in effect on the Termination Date. Employer and Employee
agree that Employee's annual base salary in effect on the
Termination Date is Two Hundred Thirty Five Thousand One
Hundred U.S. Dollars (U.S.$235,100) per year. Any payment
due Employee under this Section 4 shall be paid to Employee
on or before April 1, 1999.
5. Medical Insurance Continuation. After the Termination
Date, Employee and Employee's spouse will be entitled to
continue group medical insurance coverage under
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Employer's Retiree Medical Plan. Premiums for such coverage
will be approximately equal to those paid by Employee for
participation in Employer's Medical Plan prior to the
Termination Date. Employer reserves the right, pursuant to
the terms of its Retiree Medical Plan, to amend or eliminate
provision of retiree group medical insurance in the future.
If Employee is not entitled to Medicare benefits and does
not elect coverage under the Retiree Medical Plan, 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.
Detailed information concerning the costs and procedures
applicable to such alternate 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 Employer or the
relevant insurer.
7. Pension Plan. As a vested participant in the Willbros
USA, Inc. Pension Plan (the "Pension Plan") maintained by
Employer for the benefit of eligible employees, Employee is
or will become entitled to certain retirement benefits.
Nothing contained in this Agreement shall affect Employee's
rights to such benefits as provided by the terms of the
Pension Plan. Employee acknowledges that Employer has
separately provided Employee a specific description of
Employee's payment options under the Pension Plan.
8. Executive Benefit Restoration Plan. In addition to the
Pension Plan, Employee also participated prior to the
Termination Date in the Willbros USA, Inc. Executive Benefit
Restoration Plan (the "Restoration Plan"). On the
Termination Date, Employee shall receive Three Hundred Forty
Thousand Two Hundred Fifty Eight and 79/100 U.S. Dollars
(U.S.$340,258.79), less applicable tax withholding, under
the Restoration Plan as a lump sum payment of all
accumulated benefits due Employee under the Restoration Plan
as of the Termination Date. Effective upon receipt of such
payment, Employee
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releases the Employer, the 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 WGI pursuant to the Willbros Group, Inc.
1996 Stock Plan (the "Stock Plan"). 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 Agreement between Employee and WGI
pursuant to the Stock Plan. Employee acknowledges, however,
that any of Employee's incentive stock options which are
exercised more than three (3) months after the Termination
Date will be treated as non-qualified stock options for
federal income tax purposes.
10. Employer Stock Ownership Plans. Employee is indebted to
Employer pursuant to certain secured promissory notes issued
to Employer by Employee in connection with Employee's
purchase of stock pursuant to the Willbros USA, Inc. 1992
Employee Non-Qualified Stock Ownership Plan and the Willbros
USA, Inc. 1996 Management Personnel Non-Qualified Stock
Ownership Plan. Employee's obligations and Employer's
rights under such promissory notes shall not be affected by
this Agreement, except that Employer waives its rights to
accelerate the due dates of such promissory notes on account
of Employee's retirement.
11. Employer Investment Plan. Employee is fully vested in
Employer's 401(k) Investment Plan the ("Investment Plan").
Employee has the option of receiving a lump-sum distribution
of Employee's total account balance, 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.
12. Director and Officer Matters. Nothing in this Agreement
shall affect any of Employee's rights or obligations with
respect to indemnification or director and officer li-
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ability insurance coverage to which Employee is now 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
Employer and Employee dated January 1, 1988, that certain
Indemnification Agreement dated between WGI (formerly
Willbros Acquisition Corp.) and Employee dated December 31,
1991, or otherwise.
13. Other Benefits. Except as specifically set forth herein,
all employee 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 to be available to
Employee as of the Termination Date.
14. Mutual Releases. (a) Release by Employee: Except
for the future obligations of Employer specifically set
forth or referenced in this Agreement, Employee fully and
forever releases and discharges Employer, WGI, and all of
their respective representatives, officers, directors,
shareholders, predecessors, successors, 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
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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, 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. Employee is not
waiving any rights or claims that may arise after the
Termination Date.
(b) Release by Employer: Employer and WGI for
themselves and their directors (in their capacities as such)
with respect to any claims they might have against him,
hereby release and forever discharge Employee and agree not
to assert against him any and all claims, rights, actions,
causes of action, suits, judgments, liabilities,
obligations, damages, debts, losses, indemnities, costs,
expenses, contract rights, promises, trespasses and demands,
of any kind or any nature whatsoever whether direct or
indirect, accrued, inchoate, contingent, potential, known or
unknown, or otherwise, in statutory or common law or in
equity, including without limitation by reason of any tort
or contract claim, which against Employee it ever had, now
has or which it can, shall or may have for, upon or by
reason of any matter whatsoever existing on the Termination
Date or based on matters occurring prior to the Termination
Date; provided, however, that this release shall not release
Employee from any of his obligations under or referenced in
this Agreement.
15. Covenant Not-To-Compete. Employee, until December 31,
1998, will not compete, directly or indirectly, with
businesses being conducted by Employer or its
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affiliates on the Termination Date in the countries where
the Employer or its affiliates were then conducting
business.
16. Confidentiality. From and after the Cessation Date and
for a period of two (2) years thereafter, Employee shall not
furnish, disclose or make accessible to any person, entity
or governmental authority, any knowledge or information,
trade secrets, customer information or lists, supplier
information or lists, plans, devices, material or financial
other information with respect to the business of Employer
or its affiliates or any secret, confidential or sensitive
research or development work, promotions, ideas,
opportunities, business plans or designs relating to the
business of Employer or its affiliates, except as may
otherwise be required by law. The prohibitions of this
Paragraph 16 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).
17. Continuing Cooperation. For a period of two (2) years
from the Termination Date, Employee will provide such
information and assistance as Employer may reasonably
require relating to services provided to Employer by
Employee during his employment. Employee will cooperate
with Employer's legal counsel in the defense of claims and
litigation in which Employer or Employer's affiliates are or
may become involved. All reasonable documented expenses
incurred by Employee, including a per diem of $1,200.00 in
the provision of requested consultation with Employer or its
legal representatives shall be reimbursed by Employer upon
submission of an itemized statement of such expenses. The
per diem shall not be applicable to consultation of a minor
nature.
18. Independent Legal Advice. Employee acknowledges that he
has been represented by independent legal counsel of his
choice with respect to the advisability of signing this
Agreement and the release provided herein, and with respect
to his rights and obligations under the terms of this
Agreement.
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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 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 this Agreement by notifying Employer, in
writing, of his desire to do so. After the seven (7) day
period has elapsed, 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 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
Oklahoma.
25. Entirety and Integration. Upon the execution hereof by
both parties, this Agreement shall constitute a single,
integrated contract expressing the entire agreement of the
parties relative to the subject matter hereof and supersedes
all prior negotiations, understandings and/or agreements, if
any, of the parties. No covenants, agreements, rep-
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resentations, 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 on the date first mentioned above.
EMPLOYER EMPLOYEE
Willbros USA, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxxxx Xxxx X. Xxxxxxx
Executive Vice President
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