CONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE
CONFIDENTIAL
SEVERANCE AGREEMENT AND GENERAL RELEASE
This
Confidential Severance Agreement and General Release (“Agreement”), is made and
entered into by and between the undersigned individual Xxxx X. Xxxxxx (“Xxxxxx”
or “you”) and Genesis Energy, Inc. (the “Company”), Xxxxx X. Xxxx (“Xxxx”), and
Xxxxxx X. Xxxxxx, Xx. (“Xxxxxx”) (the signatories to this Agreement will be
referred to collectively as the “Parties,” and the Parties other than you are
the “Other Parties”) as follows:
WHEREAS,
Xxxx, Xxxxxx and you were negotiating the definitive terms and conditions
pursuant to which (i) the Company and its affiliates would, under certain
circumstances, compensate a management team led by Xxxx (and to include
you
initially) for services rendered to the Company, and (ii) how, and under
what
circumstances, Sims, Blount, you and any other members of that management
team
potentially might share such compensation;
WHEREAS,
the Company employed you as Executive Vice President since on or about August
8,
2006;
WHEREAS,
the Company terminated your employment on or about November 26, 2007;
WHEREAS,
the
Parties desire to amicably sever the employment and other business relationships
that existed between them;
WHEREAS,
in
consideration of the services rendered by you and the additional undertakings
provided for herein, the Other Parties have agreed to compensate you by having
the Company provide the severance compensation described in this
Agreement;
WHEREAS,
the
Parties have agreed, without any Party admitting liability of any kind, to
enter
into this Agreement pursuant to which each and every claim and/or cause of
action asserted or which could have been asserted by you against the Company,
Xxxx, Xxxxxx and any of their affiliates will be forever and finally released;
and
WHEREAS,
the
Parties have read and understand the terms and provisions of this Agreement,
and
desire and intend to be bound by the terms and provisions of this Agreement
applicable to such Party.
NOW,
THEREFORE,
in
consideration of the covenants and mutual promises and agreements herein
contained, and other valuable consideration, the sufficiency of which is
hereby
acknowledged, the Parties agree as follows:
1. Release
and Waiver Agreement. The
Parties
acknowledge and understand that this Agreement is a
mutual
release
and waiver contract and that this document is legally binding. You and the
Other
Parties understand that by signing this Agreement, each Party has read and
understood each provision and is agreeing to all of the provisions set forth
in
the Agreement applicable to such Party.
2. Claims
Covered by Agreement.
You and
the Other Parties acknowledge and understand that this Agreement applies
only to
claims which accrue or have accrued prior to the date this Agreement is executed
by you and the Other Parties.
3. Termination
of Employment and Other Arrangements.
Your
employment with the Company, and any other arrangement (including claims
of
ownership of any equity interest in any entity) you may have had with any
Other
Party or their affiliates, is terminated effective November 26,
2007.
4. Severance
Benefits.
In
exchange for the promises you make in this Agreement, the Company covenants
and
agrees to pay you severance compensation in the lump sum amount of Two
Million One Hundred Thousand and no/100 Dollars ($2,100,000) (the “Severance
Compensation”).
The
Company’s payment of this Severance Compensation is made in connection with the
severance of services and is subject to applicable federal, state, and local
taxes and withholding. The Company and Xxxxxx agree to
file
all tax returns consistent with the agreement that such payment is made in
connection with the severance of services. This
Severance Compensation is above and beyond any compensation owed to you separate
and apart from this Agreement, whether in connection with your employment
with
the Company, your arrangement with Xxxx,
Xxxxxx or any Other Party Releasee (defined below) or otherwise.
You
will
also receive continued
paid
medical
and dental coverage for you and your dependents, at no cost to you, under
the
Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for 18 month(s)
in the amount of $1,014.00 per month, provided that you make a valid COBRA
election. In the event you become eligible for coverage as a participant
or
beneficiary in an employee welfare benefit plan of another company at any
time
during the 18 month period following execution of this Agreement, the Company's
obligation to pay monthly COBRA premiums for you shall cease. You agree to
notify the Company immediately upon becoming eligible to participate (as
participant or beneficiary) in another company's benefit plan. Employee welfare
benefit plan as used herein includes but is not limited to benefit plans
providing coverage for medical, dental, and other healthcare related
expenses.
You
acknowledge that this Severance Compensation and continued medical and
dental
coverage are in addition to any monies or benefits to which you were already
entitled. The Severance Compensation will be paid to you on the first business
day following the expiration of the seven day (7) revocation period for
this
Agreement described in Paragraph 7c. below (but only if you do not revoke
the
Agreement during this period). The continuation of your medical and dental
coverage on the terms described above is also contingent on your not revoking
this Agreement during the seven (7) day revocation period.
5. Release
And Waiver By Other Parties.
In
consideration for (i) the conveyance of all rights, title and interests,
if any,
in and to the ownership interests in the Company or any other affiliates
of the
Other Parties, and any claims for any such interests, by Xxxxxx and (ii)
the
covenants herein, the Other Parties agree to the following:
a. The Company hereby releases, acquits,
defends, holds harmless, and agrees to indemnify Xxxxxx with respect to
any
claims, losses, liabilities, obligations and causes of action, known or
unknown,
by the Company, Genesis Energy, L.P., their parents, affiliates and
subsidiaries, including but not limited to Denbury Resources Inc. and its
affiliates and subsidiaries, their respective officers, directors, partners,
managers, employees, stockholders, members, representatives and agents
(collectively “the Company Releasees”), arising out of, connected with, or
relating to: (i) Xxxxxx’ employment with the Company; (ii) Xxxxxx’ duties as an
officer of the Company; and (iii) any fiduciary duty owed by Xxxxxx to
the Other
Parties released herein. The Company represents and warrants that no Company
Releasee has assigned to any third party any claim involving Xxxx Xxxxxx
or
otherwise authorized any third party to assert any claim on its behalf
against
Xxxxxx.
b. Each
of
Xxxx and Xxxxxx hereby
release, acquit, defend, hold harmless, and agree to indemnify Xxxxxx with
respect to any claims,
losses, liabilities, obligations and causes of action, known or unknown,
by such
party and his respective affiliates other than the Company Releasees, including
his family, estate, heirs, beneficiaries, executors, and administrators
(including
their successors and assigns) and their respective officers, directors,
partners, managers, employees, stockholders, members, representatives and
agents
(collectively,
the “Xxxx Releasees”), arising
out of, connected with, or relating to any duty owed by Xxxxxx to such Xxxx
Releasees.
6. Release
and Waiver
By Xxxxxx.
In
consideration for the Severance Compensation described in this Agreement,
you
agree to the following:
a. You
knowingly and voluntarily waive, release,
acquit, defend, hold harmless, and agree to indemnify
the
Company Releasees and the Xxxx Releasees (collectively the
“Other
Party Releasees”),
with
respect to any and all claims, losses, liabilities, obligations and causes
of
action, known and unknown, by
you
and your affiliates, including your family, estate, heirs, beneficiaries,
executors, and administrators (including their successors and assigns) and
their
respective officers, directors, partners, managers, employees, stockholders,
members, representatives and agents, including their successors and assigns
(collectively, the “Xxxxxx Releasees”), arising
out of, connected with, or relating to: (i) your employment or any arrangement
you may have had with any Other
Party Releasee; (ii) the Other
Party Releasees’ refusal or failure to continue your employment or any
arrangement you may have had with any Other Party Releasee; or (iii) the
termination of your employment or any arrangement you may have had with any
Other Party Releasee, including, but not limited to, claims for compensation,
commissions, bonuses, equity or member interests
(including any claim which might be made under the letter dated August 8,
2006,
among the Company, Denbury Resources, Inc. and Xxxx),
distributions, distribution rights, stock options, other wages and benefits,
breach of contract, wrongful termination, impairment of economic opportunity,
intentional infliction of emotional distress, claims based on personal injury,
work-related accident, any breach of implied or express covenant of good
faith
and fair dealing,
violation
of public policy, or any other contract, tort or personal injury claim, or
claim
based on any municipal, state or federal statute, regulation or ordinance
relating to employment, employment discrimination or retaliation, including
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000
et
seq.;
The
Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981; The Civil Rights Act of
1991, as amended, 42 U.S.C. § 1981a; The Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. § 621 et
seq.;
Americans With Disabilities Act, as amended, 42 U.S.C. § 12101 et
seq.;
Fair
Labor Standards Act, as amended, 29 U.S.C. § 201, et
seq.;
Equal
Pay Act, as amended, 29 U.S.C. §201 et
seq.;
National Labor Relations Act, as amended, 29 U.S.C. § 151 et
seq.;
Worker
Adjustment and Retraining Notification Act, as amended, 29 U.S.C. § 2101
et
seq.,
Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1000
et
seq.;
Family
and Medical Leave Act, as amended, 29 U.S.C. § 2601, et
seq.; Texas
Labor Code § 21.001,
et
seq.;
or any
other statute, rule, regulation, ordinance, or common civil or other law,
or
judicial or administrative interpretation whether promulgated by federal,
state,
local or other jurisdiction or political subdivision.
b. You
understand and agree that by signing this Agreement, you —
on
behalf
of yourself and each Xxxxxx Releasee —
agree
to
give up any right or entitlement you may have under federal, state or local
law
against the Other
Party Releasees, concerning any events related to your employment or
termination, or the Company’s failure to continue your employment or any other
arrangement you may have with any Other
Party Releasee. This Agreement extinguishes any potential employment
discrimination claims you may have relating to your employment with the Company
and the Company’s termination of your employment existing on the date you sign
this Agreement or any other arrangement you may have with any Other Party
Releasee. Although this Agreement does not bar you from filing a charge of
discrimination with the Equal Employment Opportunity Commission or any state
or
local civil rights agency, by this Agreement you affirmatively, knowingly
and
voluntarily waive any claim or right to monetary or equitable relief from
any
such charge of discrimination.
c. You
further represent and warrant that you have not assigned to any third party
any
claim involving the Other
Party Releasees or authorized any third party to assert on your behalf any
claim
against the Other
Party Releasees. If
a
third party asserts a claim against the Other
Party Releasees on your behalf or includes you as a class member in any class
action involving any claim, you agree to not accept any benefits or damages
relating or arising out of such claim.
| 7. |
Consultation
with Attorney, Review Period, and Revocation
Period.
|
a. You
are
advised, and acknowledge that you have been advised, to consult with an attorney
prior to executing this Agreement concerning the meaning, import, and legal
significance of this Agreement. You acknowledge that you have read this
Agreement, as signified by your signature hereto, and are voluntarily executing
the same for the purposes and consideration herein expressed.
b. You
acknowledge that you have been provided with a period of at least twenty-one
(21) calendar days within which to consider, review, and reflect upon the
terms
of this Agreement. Any discussions about or changes to the Agreement, whether
material or immaterial, do not restart the running of the 21-day
period.
c. You
have
seven (7) calendar days in which you may revoke this Agreement after you
sign
it. If you choose to revoke the Agreement, please notify the General Counsel
of
the Company in writing prior
to
the
expiration of seven (7) calendar days after you have signed the Agreement.
d. This
Agreement shall not be effective until the expiration of seven (7) calendar
days
after you sign it without revoking it.
8. General
Partner Liability Insurance. You
will
continue to be insured or otherwise indemnified to
the
extent you are currently insured under the terms of the Company’s General
Liability Insurance Policy including
Directors and Officers Coverage with
respect to any and all claims, losses, liabilities, obligations and causes
of
action arising out of, connected with, or relating to: (i) your employment;
or
(ii) the termination of your employment.
To the
extent tail coverage is necessary to maintain coverage as currently existing
and
reasonably available (but not at a cost in excess of 125% of current premiums),
Company shall acquire same at no expense to Xxxxxx.
9. Confidentiality. You
shall
treat the terms of this Agreement as strictly confidential. You shall not
disclose the terms of this Agreement to anyone other than your spouse, attorney,
accountant or tax advisor, without the Company’s prior written approval, except
as may be required by law, or court order. If you receive a request pursuant
to
applicable law to disclose the existence or terms of this Agreement, you
shall
promptly notify each other Party to enable it to seek a protective order
or
other appropriate remedy. You agree to notify your spouse, attorney, accountant
and tax advisor of the confidential nature of this Agreement.
The
Parties may use this Agreement as evidence in a subsequent proceeding in
which a
Party alleges a breach of this Agreement. Other than the exceptions set
forth
herein, the Parties agree they shall not voluntarily introduce this Agreement
as
evidence in any proceeding or in any lawsuit unless required by law or
court
order. The Parties agree that this confidentiality obligation is contractual
and
its terms are material to this Agreement.
10. Confidential
Information and Trade Secrets. You agree that you shall not,
without the prior written consent of the Company, directly or indirectly,
disclose, reveal or communicate, or cause or allow to be disclosed, revealed
or
communicated to any unauthorized person any of any Company Releasee’s
confidential matters, proprietary information or trade secrets, including,
without limitation, studies, plans, financial data, information regarding
projects or development prospects, acquisition candidates, strategies or
any
other proprietary business information or plans you had knowledge of prior
to
the date of this Agreement, including the projects set forth on Exhibit
A. You further agree not to utilize any such confidential or proprietary
information or trade secrets of Company for your benefit or the
benefit
of others, including, without limitation, others in direct or indirect
competition with the Other Parties and their affiliates. The obligations
set
forth in this Paragraph 10 shall be in addition to any other confidentiality
obligations that you may have to any of the Other Party Releasees. The
Parties
expressly acknowledge that Xxxxxx was hired by the Company due to his existing
general industry knowledge and expertise. This covenant is not intended
to
restrict Xxxxxx’ ability to use or leverage that knowledge or experience, only
to prevent Xxxxxx from using confidential information of the Other Parties
and
their affiliates.
You
further acknowledge that the injury the Other Party Releasees will suffer
in the
event of your breach of any covenant or agreement set forth in Xxxxxxxxxx
0, 00,
00 xxx 00 xxxxxx xx compensated by monetary damages alone.
11. Company
Property.
You
agree to return all Company property, equipment, documents and other tangible
things, including keys, pagers, corporate credit cards, and laptop or other
computers, in accordance with the Company’s policies and rules, before the date
on which this Agreement becomes effective. Company
agrees to provide in writing an itemized list of any items it contends are
Company property. You
agree
to not destroy, alter, erase, or otherwise change any software, data, or
other
information belonging to the Company. You
further agree the Company may withhold from your Severance Compensation monies
equal to the value of Company property, equipment and tangible things you
fail
to return
provided
that no sums may be withheld if Company has not provided such itemized listing
to Xxxxxx.
In
addition, you agree that the Company may withhold from your Severance
Compensation any monies
you owe the Company, including but not limited to, charges to the corporate
credit card for which you did not submit a valid expense report, unused travel
advances, salary draws, etc.
Prior to
withholding sums for such charges, Company must tender a written list of
rejected expenses or charges, and provided Xxxxxx a reasonable opportunity
to
cure such defect.
12. Cooperation.
For
a
reasonable period after your termination, you agree to make yourself available
and to reasonably cooperate with each other Party in any future claims or
lawsuits involving the Other
Party Releasees where you have knowledge of the underlying facts or to affect
the completion of your outstanding employment duties or the transfer of such
duties. Each such Requesting Party agrees to reimburse you for time you spend
at
such Party’s request at a rate per hour equivalent to what you earned with the
Company immediately before your notice of termination. Any
obligations performed to affect the completion or transfer of your duties
shall
be performed as an independent contractor, not as an employee. You will not
be
reimbursed if you are a named party in any claim or lawsuit
for
activities associated with your defense except to the extent insurance or
indemnity is available to other executives. All time spent cooperating with
Company on its defense shall be reimbursed.
In
addition, you agree not to voluntarily aid, assist or cooperate with any
claimant or plaintiff or their attorneys or agents in any claim or lawsuit
commenced against the Other
Party Releasees.
Nothing
in this Agreement should be construed to prevent you from initiating or
participating in any state of federal agency administrative proceeding or
from
testifying at an administrative hearing, deposition, or in court in response
to
a lawful subpoena
.
13. Non-Solicitation.
For one
(1) year following the date of this Agreement, you agree not to directly
or
indirectly, on your own behalf or on behalf of another person or entity,
hire or
solicit for hire any employees of the
Company or any of its affiliates or
in any
manner attempt to influence or induce any employee of the
Company or any of its affiliates to
leave
their employment.
14. No
Authority.
As of
your termination date, you shall have no authority to obligate the Company
in
any manner, and shall not enter into any contracts on the Company’s behalf. You
shall not make any representation, warranty, or other statement, or take
any
action, that may be construed by a third party to indicate that you have
authority to obligate the Company or to enter into a contract on the Company’s
behalf.
15. Public
Statements. The
Parties mutually agree
not
to
make
any
untrue, misleading, or defamatory statements concerning any
of
Other Parties.
16. Non-Admission
of Wrongdoing.
This
Agreement shall not in any way be construed as an admission of liability
or as
an admission that any of the Other
Party Releasees have acted wrongfully with respect to you. Each of the
Other
Party Releasees specifically denies and disclaims any such liability or wrongful
acts.
17. Reference
Letters.
If a
prospective employer contacts the Company to obtain your employment information
or a recommendation, the Company will provide only your employment dates
and job
title, unless you authorize the Company in writing to provide additional
information.
18. Knowing
and Voluntary Agreement. You
acknowledge and agree that after you received a copy of this Agreement: (i)
you
have had an opportunity to review this Agreement and to consult an attorney
before signing it; and (ii) you enter into the Agreement knowingly, voluntarily
and after any consultations with your attorney or other advisor as you deemed
appropriate.
19. Choice
of Law and Venue.
You and
the Company agree that this Agreement shall be performed in Xxxxxx County,
Texas
and that the laws of the State of Texas shall govern the enforceability,
interpretation and legal effect of this Agreement. The Parties agree to submit
to the jurisdiction of the federal and state courts sitting in Xxxxxx County,
Texas, for all purposes relating to the validity, interpretation, or enforcement
of this Agreement, including, without limitation, any application for injunctive
relief.
20. Severability.
The
Company and you agree that, if any term of this Agreement shall be determined
by
a court to be void or unenforceable, the remaining provisions will remain
effective and legally binding, and the void or unenforceable term shall be
deemed not to be a part of this Agreement.
21. Amendments.
Any
modification of this Agreement or additional obligation assumed by any Party
in
connection with this Agreement shall be binding only if evidenced
in
writing
signed by each Party or an authorized representative of each Party.
Additionally, this Agreement cannot be changed or terminated orally, but
may be
changed only through written addendum executed by all Parties.
22. Remedies.
Any
material breach by a
Party
of the
terms and conditions contained in this Agreement shall give the Other
Parties
the
right to discontinue the performance of any unperformed duties and obligations
under this Agreement to the extent permitted by applicable law. If a
Party
breaches
any term
of the Agreement, any delay by another
Party
to
enforce the Agreement shall not be deemed a waiver, acceptance, or acquiescence.
No waiver shall bind a
Party
unless
supported by consideration, executed in writing, and delivered to the
first
Party
by an
authorized representative.
23. Effective
Period. This
Agreement is null and void if: (i) you fail to execute and return it within
21
calendar days of receipt; or (ii) you sign it within 21 calendar days, but
revoke your execution within seven (7) calendar days after signing
it.
24. Entire
Agreement.
This
Agreement constitutes our entire agreement and supersedes any prior agreements
or understanding between you and the Other
Party Releasees, except any confidentiality obligations referred to in Paragraph
10.
The
Parties
acknowledge that they
each
enter
into this Agreement without reliance on any written or oral promise or
representation, other than those contained in this Agreement.
IN
WITNESS WHEREOF, this Confidential Severance Agreement and General Release
has
been executed by each of the listed parties as of the later date
below.
Xxxx
X.
Xxxxxx
Signature:
_______Brad
Graves______________
Date:
_____December
20, 2007______________
Genesis
Energy, Inc.
By:
___Ross
A. Benavides__________________
Xxxx
X. Xxxxxxxxx, Chief Financial Officer & General Counsel
Date:
____December
20, 2007_______________
Xxxxx
X.
Xxxx
Signature:
____Grant
E. Sims_________________
Date:
________December
20, 2007____________
Xxxxxx
X.
Xxxxxx, Xx.
Signature:
________Joseph X. Xxxxxx, Xx.
Date:
___________December
20, 2007_________
