CHANGE IN CONTROL SEVERANCE AGREEMENT
EXHIBIT
10.43
THIS
CHANGE IN CONTROL SEVERANCE AGREEMENT (this “Agreement”), dated as of May 25,
2006 (the “Effective Date”), is made between Xxxxxx Energy Company, a Delaware
corporation (the “Company”), and Xxxxxxx X. Xxxxxxxx (the
“Executive”).
WITNESSETH:
WHEREAS,
Executive is a senior executive of the Company or one of its Subsidiaries (as
defined below) and has made and is expected to continue to make major
contributions to the short-term and long-term profitability, growth and
financial strength of the Company; and
WHEREAS,
the Board of Directors of the Company (the “Board,” as defined in Section 23)
recognizes that, as is the case with many publicly held corporations, the
possibility of a Change in Control (as defined in Section 23) exists and that
such possibility, and the uncertainty and questions which it may raise among
management, may result in the departure or distraction of key management
personnel to the detriment of the Company and its stockholders; and
WHEREAS,
the Board has determined that appropriate steps should be taken to reinforce and
encourage the continued attention and dedication of, and to contract for the
continued rendering of services by, members of the Company’s management,
including Executive, in connection with their assigned duties without
distraction in the face of potentially disturbing circumstances, and without the
Company’s loss of needed personnel, arising from the possibility of a Change in
Control; and
WHEREAS,
in consideration of Executive’s continued employment with the Company, the
Company desires to provide Executive with certain compensation and benefits set
forth in this Agreement in order to ameliorate the financial and career impact
on Executive in the event Executive’s employment with the Company is terminated
for a reason related to a Change in Control.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements hereinafter set forth (including definitions of capitalized terms
which are set forth in Section 23 and throughout this Agreement) and intending
to be legally bound hereby, the Company and Executive agree as
follows:
1. Obligations of Executive to
Remain Employed. Executive agrees that in the event any person
or group attempts a Change in Control and he is either notified by the Board or
aware of an attempted Change in Control, he shall not, without the written
agreement of the Board, voluntarily leave the employ of the Company other than
by reason of a Constructive Termination Associated With a Change in Control (as
defined in Section 23) (i) until such attempted Change in Control
terminates or (ii) if a Change in Control shall occur, until the occurrence
of such Change in Control. For purposes of the foregoing clause (i)
and this Agreement, Constructive Termination Associated With a Change in Control
shall be determined, except as expressly provided in the definition of the term,
as if a Change in Control had occurred when such attempted Change in Control
(which is sometimes referred to herein as a ”potential”, as opposed to an
“actual”, Change in Control) became known to the Board. For purposes
of this Agreement, any decision by the Board that the person or group has
abandoned or terminated his or its efforts to effect a Change in Control shall
be conclusive and binding on Executive.
2. Termination Associated With
a Change in Control.
(a) Involuntary Termination
Associated With a Change in Control. Executive shall be entitled to the
payments and benefits provided in Section 2(b) in the event Executive’s
employment is terminated after, or in connection with, a Change in Control, on
account of:
(i) an
Involuntary Termination Associated With a Change in Control (as defined in
Section 23) within the two year period after an actual Change in
Control,
(ii) a
termination by the Company, other than for Cause (as defined in Section 23) or
other than due to Executive’s death or Disability (as defined in Section 23),
that (A) occurs not more than three (3) months
prior to
the date on which an actual Change in Control occurs or (B) is requested by a
third party who initiates and effects an actual Change in Control,
or
(iii) a
termination by Executive that occurs after a potential Change in Control but
before an actual Change in Control and is considered a Constructive Termination
Associated With a Change in Control.
For
purposes of clause (ii)(B) in the preceding sentence, to be eligible to receive
amounts described in Section 2(b) below, a Change in Control must be consummated
within the twelve (12) month period following Executive’s Termination Date (as
defined in Section 23), except in circumstances pursuant to which the
consummation of the Change in Control is delayed, through no failure of the
Company or the third person, by a governmental or regulatory authority or agency
with jurisdiction over the matter, or as a result of other similar
circumstances. In such a circumstance, the remainder of the twelve (12) month
period shall be tolled and shall recommence upon termination of the delaying
event.
(b) Payments Upon Involuntary
Termination Associated With a Change in Control. Subject to the
provisions of Section 2(c) or Sections 3 and 6 hereof, in the event a
termination described in Section 2(a) occurs, the Company shall pay and provide
to Executive within thirty (30) days after his Termination Date or, where
Executive is entitled to benefits under this Agreement by reason of clause (ii)
or (iii) of Section 2(a) above, after the date the Change in Control occurs (or
in any case, the end of the revocation period for the Release contemplated in
Section 4 hereof, if later):
(i) a
lump sum cash payment equal to 2.5 times Executive’s Base Pay (as defined in
Section 23);
(ii) a
lump sum cash payment equal to 2.5 times Executive’s Target Bonus (as defined in
Section 23);
(iii) a pro rated payment of his Target Bonus for the year
in which Executive’s Termination Date occurs. The pro rated payment shall be
based on Executive’s Target Bonus as of Executive’s Termination Date, multiplied
by a fraction, the numerator of which is the number of days during which
Executive was employed by the Company in the year of his termination and the
denominator of which is 365;
(iv) any award under the Company’s long-term cash and
equity incentive program, including stock option, restricted stock, restricted
unit, other equity- or cash-based incentive awards or other equity- or
cash-based incentive agreements, which by its terms vests in connection with the
Change in Control, provided that payment of such award shall be determined
solely by the terms of such award and any plan, program or arrangement which
controls its determination and payment; and
(v) for a
period of 24 months following his Termination Date, Executive shall continue to
receive the medical and dental coverage in effect on his Termination Date (or
generally comparable coverage) for himself and, if applicable, his spouse and
dependents, as the same may be changed from time to time for employees
generally, as if Executive had continued in employment during such period; or,
as an alternative, the Company may elect to pay Executive cash in lieu of such
coverage in an amount equal to Executive’s reasonable after-tax cost of
continuing comparable coverage, where such coverage may not be continued by the
Company (or where such continuation would adversely affect the tax status of the
plan pursuant to which the coverage is provided).
(A) If
Executive does not receive the cash payment described in the preceding sentence,
the Company shall take all commercially reasonable efforts to provide that the
COBRA (as defined in Section 23) health care continuation coverage period under
section 4980B of the Code (as defined in Section 23) shall commence immediately
after the foregoing 24 month benefit period, with such continuation coverage
continuing until the end of applicable COBRA health care continuation coverage
period.
(B) If
Executive would have been eligible for post-retirement medical and dental
coverage had he retired from employment during the period of 24 months following
his Termination Date, but is not so eligible as the result of his Involuntary
Termination Associated With a Change in Control, then at the conclusion of the
benefit continuation period described in (A) above, the Company shall take all
commercially reasonable efforts to provide Executive with additional continued
group medical and
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dental
coverage comparable to that which would have been available to him from time to
time under the Company’s post-retirement medical and dental program, for as long
as such coverage would have been available under such program, or, as an
alternative, the Company may elect to pay Executive cash in lieu of such
coverage in an amount equal to Executive’s reasonable after-tax cost of
continuing comparable coverage, where such coverage may not be continued by the
Company (or where such continuation would adversely affect the tax status of the
plan pursuant to which the coverage is provided).
(c) Limitation on Payments and
Benefits. Notwithstanding anything in this Agreement to the contrary, the
sum of the maximum amount payable and the value of the benefits provided to
Executive pursuant to this Section 2 and Section 6(a) shall be limited to 2.99
times the sum of Executive’s Base Pay and Bonus (as defined in Section 23).
In the event a reduction is required pursuant
hereto, unless Executive is permitted by the Company to choose the order of
reduction, the order of reduction shall be first any Gross-Up Payment provided
pursuant to Section 6(a), next all other cash payments on a pro rata basis, then
any equity compensation on a pro rata basis, and lastly medical and dental
coverage.
(d) Cessation of Employment on
Account of Disability, Cause or Death. Notwithstanding anything in this
Agreement to the contrary, if Executive’s employment terminates on account of
Disability, Executive shall be entitled to receive disability benefits under any
disability program maintained by the Company that covers Executive, and
Executive shall not be considered to have terminated employment under this
Agreement and shall not receive payments and benefits pursuant to this Section
2. If Executive’s employment terminates on account of Cause or because of his
death, Executive shall not be considered to have terminated employment under
this Agreement and shall not receive payments and benefits pursuant to this
Section 2.
(e) Beneficiaries.
Executive shall be entitled to select (and change, to the extent permitted under
any applicable law) a beneficiary or beneficiaries to receive any compensation
or benefit payable hereunder following Executive’s death, and may change such
election, in either case by giving the Company written notice thereof. In the
event of Executive’s death or a judicial determination of his incompetence,
reference in this Agreement to Executive shall be deemed, where appropriate, to
refer to his beneficiary, estate or other legal representative. If Executive
dies without having designated a beneficiary, or if the beneficiary so
designated has predeceased Executive or cannot be located by the Company within
one year after the date when the Company commenced making a reasonable effort to
locate such beneficiary, then Executive's surviving spouse, or if none, then
Executive's estate shall be deemed to be his beneficiary.
3. Nonqualified Deferred
Compensation Plan Omnibus Provisions. Notwithstanding any other provision
of this Agreement, it is intended that any payment or benefit which is provided
pursuant to or in connection with this Agreement which is considered to be
nonqualified deferred compensation subject to Section 409A of the Code shall be
provided and paid in a manner, and at such time and in such form, as complies
with the applicable requirements of Section 409A of the Code to avoid the
unfavorable tax consequences provided therein for
non-compliance. Notwithstanding any other provision of this
Agreement, the Board is authorized to amend this Agreement, to amend any
election made by Executive under this Agreement and/or to delay the payment of
any monies and/or provision of any benefits in such manner as may be determined
by it to be necessary or appropriate to comply, or to evidence or further
evidence required compliance, with Section 409A of the Code (including any
transition or grandfather rules thereunder). For example, if a Change
in Control occurs but the Change in Control does not constitute a change in
ownership of the Company or in the ownership of a substantial portion of the
assets of the Company as provided in Section 409A(a)(2)(A)(v) of the Code, then
payment of any amount or provision of any benefit under this Agreement which is
considered to be nonqualified deferred compensation subject to Section 409A of
the Code shall be deferred until another permissible payment event contained in
Section 409A occurs (e.g., death, disability, separation from service from the
Company and its affiliates as defined for purposes of Section 409A of the Code),
including any deferral of payment or provision of benefits in connection with a
separation from service payment event to six (6) months after a key employee of
a publicly traded corporation as required by Section 409A(a)(2)(B)(i) of the
Code (the “409A Deferral Period”). In
the event such payments are otherwise due to be made in installments or
periodically during the 409A Deferral Period, the payments which would otherwise
have been made in the 409A Deferral Period shall be accumulated and paid in a
lump sum as soon as the 409A Deferral Period ends, and the balance of the
payments shall be made as otherwise scheduled. In the event benefits
are required to be deferred, any such benefit may be provided during the 409A
Deferral Period at Executive’s expense, with Executive having a right to
reimbursement from the Company once the 409A Deferral Period ends, and the
balance of the benefits shall be provided as otherwise
scheduled.
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4. Release.
Notwithstanding the foregoing, no payments shall be made or benefits provided
under Section 2(b) unless Executive executes, and does not revoke, the Company’s
standard written release, substantially in the form as attached hereto as
Appendix A (the “Release”), of any and all claims against the Company and all
related parties with respect to all matters arising out of Executive’s
employment by the Company (other than any claim or entitlement under an employee
benefit, long term cash or equity compensation plan, program, arrangement or
agreement which is due pursuant to the terms of such plan, program, arrangement
or agreement) or a termination thereof. Such Release must be provided within
sixty (60) days after Executive’s Terminate Date or, where Executive is entitled
to benefits under this Agreement by reason of clause (ii) or (iii) of Section
2(a) above, after the date the Change in Control occurs.
5. Enforcement. Without
limiting the rights of Executive at law or in equity, except as provided in
Section 6, if the Company fails to make any payment or provide any benefit
required to be made or provided hereunder on a timely basis, the Company will
pay interest on the amount or value thereof at an annualized rate of interest
equal to the so-called composite “prime rate” as quoted from time to time during
the relevant period in the Eastern Edition of The Wall Street
Journal. Such interest will be payable as it accrues on demand. Any
change in such prime rate will be effective on and as of the date of such
change.
6. Tax Limitation on Payments
by the Company. The provisions of this Section 6 shall apply
notwithstanding anything in this Agreement to the contrary.
(a)
Subject to the limitation in Section 2(c), in the event that it shall be
determined that any Payment would constitute an “excess parachute payment”
within the meaning of Section 280G of the Code, then the Company shall pay Executive an additional amount (the
“Gross-Up Payment”) such that the net amount retained by the Executive after
deduction of any excise tax imposed under Section 4999 of the Code, and any
federal, state and local income tax, employment tax, excise tax and other tax
imposed upon the Gross-Up Payment, shall be equal to the
Payment. Notwithstanding the foregoing, if the Net After-tax Benefit
to the Executive of receiving the Gross-Up Payment does not exceed the Reduced
Amount (as defined below) by more than the lesser of $50,000 or 10% (as compared
to the Net After-tax Benefit to Executive resulting from elimination of the
Gross-Up Payment and reduction of the Payments under Section 2 of this Agreement
(“Change in Control Payments”) to the Reduced Amount), then the Company shall
not pay Executive the Gross-Up Payment and the Change in Control Payments shall
be reduced (but not below zero) so that the Present Value of the aggregate of
all Payments does not exceed the Reduced Amount; provided, however, that no such
reduction shall be effected, but no Gross-Up Payment shall be made, if the Net
After-tax Benefit to Executive of receiving all of the Payments exceeds by more
than the lesser of $50,000 or 10% of the Net After-tax Benefit to Executive
resulting from having such Change in Control Payments so reduced. In the event a reduction is required pursuant hereto,
unless Executive is permitted by the Company to choose the order of reduction,
the order of reduction shall be first all cash payments on a pro rata basis,
then any equity compensation on a pro rata basis, and lastly medical and dental
coverage. For purposes of this Section 6, the following terms have the
following meanings:
(i) “Net
After-tax Benefit” shall mean the Present Value of a Payment net of all federal
state and local income, employment and excise taxes imposed on Executive with
respect thereto, determined by applying the highest marginal rate(s) applicable
to an individual for Executive’s taxable year in which the Change in Control
occurs.
(ii)
“Payment” means any payment or distribution or provision of benefits by the
Company to or for the benefit of Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise, but determined without regard to any reductions required by this
Section 6.
(iii)
“Present Value” shall mean such value determined in accordance with Section
280G(d)(4) of the Code.
(iv)
“Reduced Amount” shall be an amount expressed in Present Value which maximizes
the aggregate Present Value of Payments without causing any Payment to be
subject to excise tax under Section 4999 of the Code or the deduction limitation
of Section 280G of the Code.
(b)
Except as set forth in the next sentence, all determinations to be made under
this Section 6 shall be made by the nationally recognized independent public
accounting firm used by the Company immediately prior to the
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Change in
Control (“Accounting Firm”), which Accounting Firm shall provide its
determinations and any supporting calculations to the Company and Executive
within ten days of Executive’s Termination Date. If determined by the Accounting
Firm to be excludible from parachute payments under Section 280G of the Code,
the value of Executive’s non-competition covenant under Section 10(a) of this
Agreement shall be determined by independent appraisal by a
nationally-recognized business valuation firm acceptable to both Executive and
the Company, and a portion of the Change in Control Payments shall, to the
extent of that appraised value, be specifically allocated as reasonable
compensation for such non-competition covenant and shall not be treated as a
parachute payment. Any such determination by the Accounting Firm shall be
binding upon the Company and Executive.
(c) If
the Accounting Firm determines that Change in Control Payments should be
reduced, the Company shall promptly give Executive notice to that effect and a
copy of the detailed calculation thereof. All determinations made by
the Accounting Firm under this Section 6 shall be binding upon the Company and
Executive and shall be made within twenty (20) business days of Executive’s
Termination Date.
(d) While
it is the intention of the Company and Executive to reduce the amounts payable
or distributable to Executive hereunder only if the aggregate Net After-tax
Benefit to Executive would thereby be increased in the manner provided for
herein, as a result of the uncertainty in the application of Section 4999 of the
Code at the time of the initial determination by the Accounting Firm hereunder,
it is possible that amounts will have been paid or distributed by the Company to
or for the benefit of Executive pursuant to this Agreement which should not have
been so paid or distributed (“Overpayment”) or that additional amounts which
will have not been paid or distributed by the Company to or for the benefit of
Executive pursuant to this Agreement could have been so paid or distributed
(“Underpayment”), in each case, consistent with the calculation of the Reduced
Amount hereunder. In the event that the Accounting Firm, based either
upon the assertion of a deficiency by the Internal Revenue Service against the
Company or Executive which the Accounting Firm believes has a high probability
of success determines that an Overpayment has been made, any such Overpayment
paid or distributed by the Company to or for the benefit of Executive shall be
treated for all purposes as a loan to Executive which Executive shall repay to
the Company together with interest at the applicable federal rate provided for
in Section 7872(f)(2) of the Code; provided, however, that no such loan shall be
deemed to have been made and no amount shall be payable by Executive to the
Company if and to the extent such deemed loan and payment would not either
reduce the amount on which Executive is subject to tax under Sections 1 and 4999
of the Code or generate a refund of such taxes. In the event that the Accounting
Firm, based upon controlling precedent or substantial authority, determines that
an Underpayment has occurred, any such Underpayment shall be promptly paid by
the Company to or for the benefit of Executive together with interest at the
applicable federal rate provided for in Section 7872(f)(2) of the
Code.
(e) All
of the fees and expenses of the Accounting Firm in performing the determinations
referred to in this Section 6 shall be borne solely by the Company.
7. Duties upon Termination;
Mitigation Obligation. Upon termination of employment for any reason,
Executive or his estate shall surrender to the Company all correspondence,
letters, files, contracts, mailing lists, customer lists, advertising materials,
ledgers, supplies, equipment, checks, and all other materials and records of any
kind that are the property of the Company or any of its subsidiaries or
affiliates, that may be in Executive’s possession or under his control,
including all copies of any of the foregoing. The Company hereby acknowledges
that it will be difficult and may be impossible for Executive to find reasonably
comparable employment following the Termination Date. Accordingly, the payment
and provision of the severance compensation by the Company to Executive in
accordance with the terms of this Agreement is hereby acknowledged by the
Company to be reasonable, and Executive will not be required to mitigate the
amount of any payment or benefit provided for in this Agreement by seeking other
employment or otherwise, nor will any profits, income, earnings or other
benefits from any source whatsoever create any mitigation, offset, reduction or
any other obligation on the part of Executive hereunder or
otherwise.
8. Legal Fees and
Expenses. If litigation or arbitration is
commenced by either party to enforce or interpret any provision contained in
this Agreement, the Company will undertake to indemnify Executive for his
reasonable attorneys' fees and expenses associated with such litigation or arbitration if Executive
substantially prevails in such litigation or arbitration or any settlement
thereof. Notwithstanding the foregoing, if it should appear to Executive that the
Company has failed to comply with any of its obligations under this Agreement or
in the event that the Company or any other person takes or threatens to take any
action to declare this Agreement void or unenforceable, or institutes any
litigation or other action or proceeding designed to deny, or to recover from,
Executive the benefits provided or intended to be
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provided
to Executive under Section 2 of this Agreement, the Company will in any event reimburse Executive for his reasonable
attorneys' fees and expenses
incurred in connection therewith up to
$10,000 without regard to the commencement or outcome of any litigation or
arbitration in order for Executive to retain counsel to advise and represent Executive in
connection with any such interpretation, enforcement or defense, including
without limitation the initiation or defense of any litigation or other legal
action, whether by or against the Company or any director, officer or employee
of the Company, in any jurisdiction. Notwithstanding any existing or prior
attorney-client relationship between the Company and such counsel, the Company
irrevocably consents to Executive’s entering into an attorney-client
relationship with such counsel, and in that connection, the Company and
Executive agree that a confidential relationship will exist between Executive
and such counsel. The first $10,000 of such expenses will be paid by the Company
as they are incurred by Executive, and any balance
thereof due to Executive shall be paid within thirty (30) days after any final
judgment or decision or settlement in which Executive substantially
prevails.
9. Confidentiality.
Executive hereby covenants and agrees that, except as specifically requested or
directed by the Company, he will not disclose to any person not employed by the
Company, or use in connection with engaging in competition with the Company, any
confidential or proprietary information (as provided below) of the Company. For
purposes of this Agreement, the term “confidential or proprietary information”
will include all information of any nature and in any form that is owned by the
Company and that is not publicly available (other than by Executive’s breach of
this Section 9) or generally known to persons engaged in businesses similar or
related to those of the Company. Confidential or proprietary information will
include, without limitation, the Company’s financial matters, customers,
employees, industry contracts, strategic business plans, product development (or
other proprietary product data), marketing plans, consulting solutions and
processes, and all other secrets and all other information of a confidential or
proprietary nature which is protected by the Uniform Trade Secrets Act. For
purposes of the preceding two sentences, the term “Company” will also include
any Subsidiary (as defined in Section 23; collectively, the “Restricted Group”).
The foregoing obligations imposed by this Section 9 will not apply (i) in the
course of the business of and for the benefit of the Company, (ii) if such
confidential or proprietary information has become, through no fault of
Executive, generally known to the public, or (iii) if Executive is required by
law to make disclosure (after giving the Company notice and an opportunity to
contest such requirement). In addition, if not otherwise filed by the Company
with the U.S. Securities and Exchange Commission (“SEC”) and available through
public disclosure from the SEC, Executive agrees not to disclose the terms of
this Agreement to anyone, except Executive’s spouse, attorney and, as necessary,
tax/financial advisor, except as may be required by law. Likewise, the Company
agrees that the terms of this Agreement will not be disclosed except as may be
necessary to obtain approval or authorization to fulfill its obligations
hereunder or as required by law. It is expressly understood that any violation
of the confidentiality obligation imposed hereunder constitutes a material
breach of this Agreement.
10. Covenants Not to Compete and
Not to Solicit; Breach of Agreement Obligations by
Executive.
(a) Covenant Not to
Compete. In the event Executive breaches his obligations to the Company
to remain employed as provided in Section 1 above or if Executive is entitled to
receive payments and benefits under Section 2 above other than pursuant to
clause (ii) or (iii) of Section 2(a) above, then, for a period of one (1) year
following Executive’s Termination Date, Executive shall not directly or
indirectly engage in (whether as an employee, consultant, proprietor, partner,
director or otherwise), or have any ownership interest in, or participate in a
financing, operation, management or control of, any person, firm, corporation or
business that is a Restricted Business in a Restricted Territory without the
prior written consent of the Board. For this purpose, ownership, whether direct
or beneficial, of no more than 5% of the outstanding securities entitled to vote
generally in the election of directors of a publicly traded corporation shall
not constitute a violation of this provision.
(b) Covenant Not to
Solicit. In the event Executive breaches his obligations to the Company
to remain employed as provided in Section 1 above or if Executive is entitled to
receive payments and benefits under Section 2 above other than pursuant to
clause (ii) or (iii) of Section 2(a) above, then, for a period of one (1) year
following Executive’s Termination Date, Executive shall not: (i) solicit,
encourage or take any other action which is intended to induce any other
employee, any supplier or any customer, of the Company or any Subsidiary to
terminate his employment or relationship with the Company or any Subsidiary; or
(ii) interfere in any manner with the contractual or employment relationship
between the Company and any such employee, supplier or customer of the Company
or any Subsidiary. The foregoing shall not prohibit Executive or any entity with
which Executive may be affiliated from hiring a former employee of the Company
or any Subsidiary; provided, that such hiring results exclusively from such
former employee’s affirmative response to a general recruitment
effort.
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(c) Interpretation. The
covenants contained herein are intended to be construed as a series of separate
covenants, one for each of the counties, parishes, towns, cities or states or
similar local governmental or political subdivisions of the Restricted
Territory. Except for geographic coverage, each such separate covenant shall be
deemed identical in terms to the covenant contained in the preceding
subsections. If, in any judicial proceeding, the court shall refuse to enforce
any of the separate covenants (or any part thereof) deemed included in such
subsections, then such unenforceable covenant (or such part) shall be deemed to
be eliminated from this Agreement for the purpose of those proceedings to the
extent necessary to permit the remaining separate covenants (or portions
thereof) to be enforced.
(d) Remedies for
Breach. In the event of Executive’s termination of employment,
the Company’s obligations to provide the payments and benefits set forth in
Section 2 shall be and are expressly conditioned upon Executive’s covenants not
to compete and not to solicit as provided herein. In the event Executive
breaches his obligations to the Company as provided herein, the Company’s
obligations to provide the payments and benefits set forth in Section 2 shall
cease, and Executive shall be obligated to return to the Company any payments
and the value of any benefits previously received by him pursuant to Section 2.
In addition, it is recognized that damages in the event of breach of this
Section 10 by Executive would be difficult, if not impossible, to ascertain, and
it is therefore specifically agreed that the Company, in addition to and without
limiting any other remedy or right it may have, shall have the right to an
injunction or other equitable relief in any court of competent jurisdiction,
enjoining any such breach. The existence of the express rights to
cease or recover payment and the value of benefits otherwise provided for in
Section 2 and to obtain an injunction or other equitable relief shall not
preclude the Company from pursuing any other rights and remedies at law or in
equity which it may have.
(e) Definitions. For
proposes of this Section 10, the following terms have the following
meanings:
(i)
“Restricted Business” means any business function with a direct competitor of
the Company or any Subsidiary that is substantially similar to the business
function performed by Executive with the Company or any Subsidiary immediately
prior to his Termination Date.
(ii)
“Restricted Territory” means the counties, parishes, towns, cities, or states or
similar governmental or political subdivisions of any country in which the
Company or any Subsidiary operates or does business, inclusive of markets in
which the Company competes with the Restricted Business to sell its
products.
(f) Reasonableness. In
the event that the provisions of this Section 10 shall ever be deemed to exceed
the time, scope or geographic limitations permitted by applicable laws, then
such provisions shall be reformed to the maximum time, scope or geographic
limitations, as the case may be, permitted by applicable laws.
11. Employment Rights.
Executive and the Company acknowledge that, except as may otherwise be provided
under any other written agreement between Executive and the Company or a
Subsidiary, the employment of Executive by the Company is “at
will.” Nothing expressed or implied in this Agreement will create any
right or duty on the part of the Company or Executive, except as provided in
Section 1 above, to have Executive remain in the employment of the Company or
any Subsidiary prior to or following any Change in Control.
12. Withholding of Taxes.
The Company may withhold from any amounts payable under this Agreement all
federal, state, city or other taxes as the Company is required to withhold
pursuant to any applicable law, regulation or ruling.
13. Term of
Agreement.
(a) Regular Term and
Extensions. The term of this Agreement shall commence on the
Effective Date hereof and shall continue until the December 31, 2008; provided,
however, that commencing on December 31, 2008, and each anniversary thereafter,
the term of this Agreement shall automatically be extended for one year unless
the Company gives notice not later than thirty (30) days preceding any such
anniversary year that it does not wish to extend this Agreement; and provided,
further, that regardless of any such notice by the Company, this Agreement shall
continue in effect for a period of 24 months beyond the term provided herein if
a Change in Control of the Company occurs during the period that this Agreement
is in effect.
(b) Early Termination by the
Board. Notwithstanding the foregoing, this Agreement shall be
subject to unilateral termination by the Company if the Board determines in good
faith that Executive is no longer a key
7
management
employee to be provided the rights contained herein and so notifies Executive in
writing; provided, however, that such determination may not be made, and if made
shall have no effect, if a Change in Control shall have occurred or during any
period of time when the Company has knowledge that any person or group has taken
steps reasonably calculated to effect a Change in Control until, in the opinion
of the Board, the third person has abandoned or terminated his or its efforts to
effect a Change in Control.
14. Successors and Binding
Agreement.
(a) The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation, reorganization or otherwise) to all or substantially all
of the business or assets of the Company, by agreement in form and substance
reasonably satisfactory to Executive, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent the Company would be
required to perform if no such succession had taken place. This Agreement will
be binding upon and inure to the benefit of the Company and any successor to the
Company, including without limitation any persons acquiring directly or
indirectly all or substantially all of the business or assets of the Company
whether by purchase, merger, consolidation, reorganization or otherwise (and
such successor will thereafter be deemed “Company” for the purposes of this
Agreement), but will not otherwise be assignable, transferable or delegable by
the Company.
(b) This
Agreement will inure to the benefit of and be enforceable by Executive’s
personal or legal representatives, executors, administrators, successors, heirs,
distributees and legatees. This Agreement will supersede the provisions of any
employment agreement between Executive and the Company that relate to any matter
that is also the subject of this Agreement, and such provisions in such
employment agreement will be null and void. The foregoing sentence shall have no
impact on any outstanding agreement made with Executive under the Company’s
long-term incentive program, including, stock option, restricted stock,
restricted unit, other equity- or cash-based incentive awards or other equity-
or cash-based agreements at any time in effect.
(c) This
Agreement is personal in nature and neither of the parties hereto will, without
the consent of the other, assign, transfer or delegate this Agreement or any
rights or obligations hereunder except as expressly provided in Sections 14(a)
and (b). Without limiting the generality or effect of the foregoing, Executive’s
right to receive payments and benefits hereunder will not be assignable,
transferable or delegable, whether by pledge, creation of a security interest,
or otherwise, other than by a transfer by Executive’s will or by the laws of
descent and distribution and, in the event of any attempted assignment or
transfer contrary to this Section 14(c), the Company will have no liability to
pay any amount so attempted to be assigned, transferred or
delegated.
15. Notices. For all
purposes of this Agreement, all communications, including without limitation,
notices, consents, requests or approvals, required or permitted to be given
hereunder will be in writing and will be deemed to have been duly given when
hand delivered or dispatched by electronic facsimile transmission (with receipt
thereof confirmed electronically), or five (5) business days after having been
mailed by United States registered or certified mail, return receipt requested,
postage prepaid, or three (3) business days after having been sent by a
nationally recognized courier service for overnight/next-day delivery, such as
FedEx, UPS, or the United States Postal Service, addressed to the Company (to
the attention of the Secretary of the Company) at its principal executive office
and to Executive at his principal residence, or to such other address as any
party may have furnished to the other in writing and in accordance herewith,
except that notices of changes of address will be effective only upon
receipt.
16. Governing Law; Dispute
Resolution. The validity, interpretation, construction and performance of
this Agreement will be governed by and construed in accordance with the
substantive laws of the State of Delaware, without giving effect to the
principles of conflict of laws of such State. Any dispute or controversy arising
under or in connection with this Agreement (other than an action to enforce the
covenants in Section 10 hereof) shall be resolved by arbitration in either
Richmond, Virginia or Charleston, West Virginia as so determined by Executive.
Three arbitrators shall be selected, and arbitration shall be conducted, in
accordance with the rules of the American Arbitration Association. Subject to
Section 8 hereof, the arbitrators shall have the discretion to award the cost of
arbitration, arbitrators’ fees and the respective attorneys’ fees of each party
between the parties as they see fit.
17. Validity. If any
provision of this Agreement or the application of any provision hereof to any
person or circumstances is held invalid, unenforceable or otherwise illegal, the
remainder of this Agreement and the application of such provision to any other
person or circumstances will not be affected, and the provision so held to be
invalid,
8
unenforceable
or otherwise illegal will be reformed to the extent (and only to the extent)
necessary to make it enforceable, valid or legal.
18. Amendment;
Modification. This Agreement may only be amended by written agreement of
the parties hereto. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in a
writing signed by Executive and the Company. No waiver by either party hereto at
any time of any breach by the other party hereto or compliance with any
condition or provision of this Agreement to be performed by such other party
will be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No agreements or representations, oral
or otherwise, expressed or implied with respect to the subject matter hereof
have been made by either party that are not set forth expressly in this
Agreement.
19. Acknowledgement.
Executive acknowledges that he has signed this Agreement voluntarily and
knowingly in exchange for the consideration described herein, which Executive
acknowledges is adequate and satisfactory to him and which Executive
acknowledges is in addition to any other benefits to which Executive is
otherwise entitled and that Executive has been and is hereby advised in writing
to consult with an attorney prior to signing this Agreement.
20. Miscellaneous.
References to Sections are to references to Sections of this Agreement. Any
reference in this Agreement to a provision of a statute, rule or regulation will
also include any successor provision thereto. Whenever used herein, the
masculine includes the feminine.
21. Survival.
Notwithstanding any provision of this Agreement to the contrary, the parties’
respective rights and obligations under Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 14
and 16 will survive any termination or expiration of this Agreement or the
termination of Executive’s employment for any reason whatsoever.
22. Counterparts. This
Agreement may be executed in one or more counterparts, each of which will be
deemed to be an original but all of which together will constitute one and the
same agreement.
23. Certain Defined
Terms. In addition to terms defined elsewhere herein, the following terms
have the following meanings when used in this Agreement with initial capital
letters:
(a) “Base
Pay” means the greater of (i) Executive’s annual base salary rate, exclusive of
Bonus, as in effect immediately preceding Executive’s Termination Date, and (ii)
Executive’s highest annual base salary rate, exclusive of Bonus, in effect at
any time during the three years immediately preceding the Change in
Control.
(b)
“Board” means the Board of Directors of the Company. If Executive is also a
member of the Board, then in the case of any provision hereof that requires
action by, or a determination of, the Board in connection with this Agreement,
it is understood that such provision refers to the members of the Board other
than Executive. Unless otherwise provided by the Board and except in determining
Cause, the Compensation Committee of the Board shall have full authority to act
on behalf of the Board in connection with any duty or action expressly assigned
under, or implicitly to be acted on in connection with, this Agreement to or by
the Board.
(c)
“Bonus” means the highest amounts payable under Executive’s annual cash bonus
award plus the highest amounts payable under all Executive’s outstanding
long-term cash incentive bonus awards that contain as a year of measurement, the
year in which Executive is terminated. Bonus does not include any stock option,
stock appreciation, stock purchase, restricted stock, restricted unit,
performance stock, performance unit, shadow stock or similar equity incentive
plan, program, arrangement or grant, one time bonus or payment, any amounts
contributed by the Company or any Subsidiary for the benefit of Executive to any
qualified or nonqualified deferred compensation plan, or any amounts designated
by the parties as amounts other than Bonus.
(d)
“Cause” shall occur hereunder only upon:
(i) the
willful and continued failure by Executive substantially to perform his duties
with the Company (other than any such failure resulting from his incapacity due
to physical or mental illness) after a written demand for substantial
performance is delivered to him by the Board which specifically identifies the
manner in which the Board believes that he has not substantially performed his
duties,
9
(ii)
Executive’s willful breach of fiduciary duty, willful violation of any law,
rule, or regulation (other than traffic violations or similar offenses), willful
violation of a final cease and desist order or willful engaging in other gross
misconduct which is materially and demonstrably injurious to the Company or any
Subsidiary, or
(iii)
Executive’s conviction of, or pleading guilty or nolo contendere to, the
commission of a felony involving fraud, embezzlement, theft or moral
turpitude.
For
purposes of this Section 23(d), no act, or failure to act, on Executive’s part
described in clause (i) or (ii) above shall be considered “willful” unless done,
or omitted to be done, by him not in good faith and without reasonable belief
that his action or omission was in the best interest of the Company and its
Subsidiaries. Notwithstanding the foregoing, Executive shall not be deemed to
have been terminated for Cause unless and until there shall have been delivered
to him a copy of a resolution duly adopted by the affirmative vote of not less
than two-thirds of the entire membership of the Board at a meeting of the Board
called and held for the purpose, among others (after at least 20 days prior
notice to Executive and an opportunity for Executive, together with his counsel,
to be heard before the Board), of finding that (x) in the good faith opinion of
the Board Executive failed to perform his duties or engaged in misconduct as set
forth above in clause (i) or (ii) of this paragraph, and, if applicable, that
Executive did not correct such failure or cease such misconduct after being
requested to do so by the Board, or (y) as set forth in clause (iii) of this
paragraph, Executive has been convicted of or has entered a plea of nolo
contendere to the commission of a felony. The fact that Executive is or shortly
may be “retirement eligible” and thus eligible for or entitled to
post-retirement benefits from any plan, arrangement or program sponsored,
participated in or contributed to by the Company or any Subsidiary shall not
prevent Executive’s termination from being considered termination for
Cause.
(e)
“Change in Control” means the occurrence of any of the following
events:
(i)
a third person, including a “group” as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended, acquires shares of the Company
having twenty-five percent or more of the total number of votes that may be cast
for the election of directors of the Company; or
(ii) as
the result of any cash tender or exchange offer, merger or other business
combination, or any combination of the foregoing transactions, (a
“Transaction”), the persons who were directors of the Company before the
Transaction shall cease to constitute a majority of the Board of the Company or
any successor to the Company.
For
purposes hereof, a “potential” Change in Control is considered to occur and
remain present commencing upon the date that any person or group attempts a
Change in Control and the Executive is either notified by the Board or aware of
an attempted Change in Control. All decisions regarding the time of
the commencement, the pendancy and the abandonment or termination of a potential
Change in Control shall be made by the Board in good faith and shall be
conclusive and binding on the Executive. An “actual” Change in
Control means that one of the two events described in (i) or (ii) above has
occurred.
(f)
“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1986, as
amended.
(g)
“Code” means the Internal Revenue Code of 1986, as amended.
(h)
“Constructive Termination Associated With a Change in Control” means the
termination of Executive’s employment with the Company by Executive as a result
of the occurrence, without Executive’s written consent, of one of the following
events:
(i)
following the occurrence of an actual, but not a potential, Change in Control,
the assignment to Executive of any duties inconsistent in any respect with
Executive’s position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities in effect immediately prior
to the Change in Control, or any other action by the Company or any Subsidiary
which results in a diminution in such position, authority, duties or
responsibilities, other than an isolated, insubstantial and inadvertent action
not taken in bad faith and which is remedied by the Company or Subsidiary
promptly after receipt of notice thereof given by Executive;
10
(ii)
following the occurrence of an actual or potential Change in Control, any
failure by the Company or any Subsidiary to continue Executive’s employment upon
the terms and conditions as existed immediately prior to the Change in Control
(other than any term or condition covered in clause (i) above), including but
not limited to compensation level and annual and long-term cash and equity
incentive opportunity, other than an isolated, insubstantial and inadvertent
failure not occurring in bad faith and which is remedied by the Company or
Subsidiary promptly after receipt of notice thereof given by
Executive;
(iii)
following the occurrence of an actual or potential Change in Control, a material
reduction in the level of Employee Benefits provided to Executive immediately
prior to the Change in Control; or
(iv)
following the occurrence of an actual or potential Change in Control, the
relocation of Executive’s principal work location (other than in connection with
a relocation contemplated by the Company as of the date hereof or pursuant to
organizational changes in accordance with past practice) to a location that
increases Executive’s normal work commute by fifty (50) miles or more as
compared to Executive’s normal work commute immediately prior to the Change in
Control or that Executive’s required travel away from his office in the course
of discharging his responsibilities or duties of his job is increased by an
unreasonable amount as compared to that which was required of Executive in any
of the three (3) full years immediately prior to the Change in
Control.
For
purposes hereof, “Employee Benefits” means the perquisites, benefits and service
credit for benefits as provided under any and all employee retirement income and
welfare benefit policies, plans, programs or arrangements in which Executive is
entitled to participate, including, without limitation, any stock option, stock
appreciation, stock purchase, restricted stock, restricted unit, performance
stock, performance unit, shadow stock or similar equity incentive plan, program,
arrangement, savings, pension, supplemental executive retirement, or other
retirement income or welfare benefit, deferred compensation, incentive
compensation, group or other life, health, medical/hospital or other insurance
(whether funded by actual insurance or self-insured by the Company or a
Subsidiary), disability, salary continuation, expense reimbursement and other
employee benefit policies that may exist as of a Change in Control or any
successor policies, plans or arrangements that provide substantially similar
perquisites or benefits.
Without
limiting the generality or effect of the foregoing, Executive shall have no
right to terminate employment in a Constructive Termination Associated With a
Change in Control in connection with an event described above unless (x)
Executive provides written notice to the Company within thirty (30) days of the
occurrence of such event that identifies such event with particularity, and (y)
the Company fails to correct such event within ten (10) business days after
receipt of such notice from Executive.
In no
event shall the termination of Executive’s employment with the Company on
account of Executive’s death or Disability or because Executive engaged in
conduct constituting Cause be deemed to be a Constructive Termination Associated
With a Change in Control.
(i)
“Disability” means Executive becomes permanently disabled within the meaning of,
and begins actually to receive long-term disability benefits pursuant to, the
long-term disability plan of the Company or any Subsidiary in effect for, or
applicable to, Executive, or if none, then Executive is determined by the Social
Security Administration to be totally and permanently disabled for purposes of
entitlement to Social Security disability benefits.
(j)
“Involuntary Termination Associated With a Change in Control” means the
termination of Executive’s employment related to a Change in Control: (i) by the
Company for any reason other than Cause, Executive’s death or Executive’s
Disability, or (ii) on account of a Constructive Termination Associated With a
Change in Control. The fact that Executive is or shortly may be “retirement
eligible” and thus eligible for or entitled to post-retirement benefits from any
plan, arrangement or program sponsored, participated in or contributed to by the
Company or any Subsidiary shall not prevent Executive’s termination from being a
Involuntary Termination Associated With a Change in Control.
(k)
“Subsidiary” means any Company affiliate, whether or not incorporated, the
majority of the outstanding capital stock or other ownership interests of which
is owned, directly or indirectly, by the Company.
11
(l)
“Target Bonus” means Executive’s annual cash bonus award target.
(m)
“Termination Date” means the last day of Executive’s employment with the Company
or any Subsidiary.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and
delivered as of the date first above written.
|
XXXXXX
ENERGY COMPANY
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||
|
By:
|
/s/ Xxxxxx X. Xxxxxxxx,
Xx.
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxxx, Xx.
|
|
|
Title:
|
Executive
Vice President and
|
|
|
Chief
Administrative Officer
|
||
|
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx
X. Xxxxxxxx
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||
12
Appendix
A
SEPARATION OF EMPLOYMENT
AGREEMENT AND GENERAL RELEASE
THIS
SEPARATION OF EMPLOYMENT AGREEMENT AND GENERAL RELEASE (the “Agreement”) is made
as of this
day of ,
,
by and between Xxxxxx Energy Company, a Delaware corporation (the “Company”),
and _______________________ (the “Executive”).
WHEREAS,
Executive formerly was employed by the Company as ;
and
WHEREAS,
Executive and Company entered into a Change in Control Severance Agreement,
dated ,
2005,
(the “Severance Agreement”) which provides for certain payments and benefits in
the event that Executive’s employment is terminated on account of a reason set
forth in the Severance Agreement; and
WHEREAS,
an express condition of Executive’s entitlement to the payments and benefits
under the Severance Agreement is the execution of a general release in the form
set forth below; and
WHEREAS,
Executive and the Company mutually desire to terminate Executive’s employment on
an amicable basis, such termination to be effective
,
(“Termination Date”).
NOW,
THEREFORE, IT IS HEREBY AGREED by and between Executive and the Company as
follows:
1. (a)
Executive, for and in consideration of the commitments of the Company as set
forth in paragraph 6 of this Agreement, and intending to be legally bound, does
hereby REMISE, RELEASE AND FOREVER DISCHARGE the Company, its affiliates,
subsidiaries and parents, and its officers, directors, employees, and agents,
and its and their respective successors and assigns, heirs, executors, and
administrators (collectively, “Releasees”) from all causes of action, suits,
debts, claims and demands whatsoever in law or in equity, which Executive ever
had, now has, or hereafter may have, whether known or unknown, or which
Executive’s heirs, executors, or administrators may have, by reason of any
matter, cause or thing whatsoever, from the beginning of Executive’s employment
to the date of this Agreement, and particularly, but without limitation of the
foregoing general terms, any claims arising from or relating in any way to
Executive’s employment relationship with the Company, the terms and conditions
of that employment relationship, and the termination of that employment
relationship, including, but not limited to, any claims arising under the Age
Discrimination in Employment Act, the Older Workers Benefit Protection Act,
Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act,
the Family and Medical Leave Act of 1993, the Employee Retirement Income
Security Act of 1974, and any other claims under any federal, state or local
common law, statutory, or regulatory provision, now or hereafter recognized, and
any claims for attorneys’ fees and costs. This Agreement is effective without
regard to the legal nature of the claims raised and without regard to whether
any such claims are based upon tort, equity, implied or express contract or
discrimination of any sort.
(b) To
the fullest extent permitted by law, and subject to the provisions of paragraph
11 below, Executive represents and affirms that (i) [other than ,] Executive has not filed or
caused to be filed on Executive’s behalf any claim for relief against the
Company or any Releasee and, to the best of Executive’s knowledge and belief, no
outstanding claims for relief have been filed or asserted against the Company or
any Releasee on Executive’s behalf; and (ii) [other than ,] Executive has not reported
any improper, unethical or illegal conduct or activities to any supervisor,
manager, department head, human resources representative, agent or other
representative of the Company, to any member of the Company’s legal or
compliance departments, or to the ethics hotline, and has no knowledge of any
such improper, unethical or illegal conduct or activities. Executive agrees to
dismiss with prejudice all claims for relief filed before the date
hereof.
(c)
Notwithstanding any other provision herein, the foregoing release does not apply
to any claim or entitlement under an employee benefit or long term cash or
equity incentive compensation plan, program, arrangement or agreement which is
due pursuant to the terms of such plan, program, arrangement or
agreement.
2. The
Company, for and in consideration of the commitments of Executive as set forth
in this Agreement, and intending to be legally bound, does hereby REMISE,
RELEASE AND FOREVER DISCHARGE Executive from all claims, demands or causes of
action arising out of facts or occurrences prior to the date of this Agreement,
but only to the
X-
0
xxxxxx
the Company knows or reasonably should know of such facts or occurrence and only
to the extent such claim, demand or cause of action relates to a violation of
applicable law or the performance of Executive’s duties with the Company;
provided, however, that this release of claims shall not in any case be
effective with respect to any claim by the Company alleging a breach of
Executive’s obligations under this Agreement. [Note: The Company and Executive may,
but shall not be required to mutually agree on a case-by-case basis at the time
of the signing of this release to include the foregoing provision, or a
substantially similar provision, to this Agreement.]
3. In
consideration of the Company’s agreements as set forth in paragraph 6 herein,
Executive agrees to comply with the limitations described in Sections 9 and 10
of the Severance Agreement.
4.
Executive further agrees and recognizes that Executive has permanently and
irrevocably severed Executive’s employment relationship with the Company, that
Executive shall not seek employment with the Company or any affiliated entity at
any time within two (2) years after his Termination Date, and that the Company
has no obligation to employ him in the future.
5.
Executive further agrees that Executive will not disparage or subvert the
Company, or make any statement reflecting negatively on the Company, its
affiliated corporations or entities, or any of their officers, directors,
employees, agents or representatives, including, but not limited to, any matters
relating to the operation or management of the Company, Executive’s employment
and the termination of Executive’s employment, irrespective of the truthfulness
or falsity of such statement.
6. In
consideration for Executive’s agreements as set forth herein, the Company agrees
to pay or provide to or for Executive the payments and benefits described in
Section 2(b) of the Severance Agreement, the provisions of which are
incorporated herein by reference. Except as set forth in this Agreement, it is
expressly agreed and understood that Releasees do not have, and will not have,
any obligations to provide Executive at any time in the future with any
payments, benefits or considerations other than those recited in this paragraph,
those excluded from release in Section 1(c) of this Agreement or those required
by law, other than under the terms of any benefit plans which provide benefits
or payments to former employees according to their terms.
7.
Executive understands and agrees that the payments, benefits and agreements
provided in this Agreement are being provided to him in consideration for
Executive’s acceptance and execution of, and in reliance upon Executive’s
representations in, this Agreement. Executive acknowledges that if Executive had
not executed this Agreement containing a release of all claims against the
Company, Executive would not have been entitled to the payments and benefits set
forth in Section 2(b) of the Severance Agreement.
8.
Executive acknowledges and agrees that the Company previously has satisfied any
and all obligations owed to him under any employment agreement or offer letter
Executive has with the Company and, further, that this Agreement supersedes any
employment agreement or offer letter Executive has with the Company, and any and
all other prior agreements or understandings, whether written or oral, between
the parties which are inconsistent with this Agreement, and further, that,
except as set forth expressly herein, no promises or representations have been
made to him in connection with the termination of Executive’s employment
agreement, if any, or offer letter, if any, with the Company, or the terms of
this Agreement or the Severance Agreement.
9. If not
otherwise filed by the Company with the U.S. Securities and Exchange Commission
(“SEC”) and available through public disclosure from the SEC, Executive agrees
not to disclose the terms of this Agreement or the Severance Agreement to
anyone, except Executive’s spouse, attorney and, as necessary, tax/financial
advisor, except as may be required by law. Likewise, the Company agrees that the
terms of this Agreement will not be disclosed except as may be necessary to
obtain approval or authorization to fulfill its obligations hereunder or as
required by law. It is expressly understood that any violation of the
confidentiality obligation imposed hereunder constitutes a material breach of
this Agreement.
10.
Executive represents that Executive does not presently have in Executive’s
possession any records and business documents, whether on computer or hard copy,
and other materials (including but not limited to computer disks and tapes,
computer programs and software, office keys, correspondence, files, customer
lists, technical information, customer information, pricing information,
business strategies and plans, sales records and all copies thereof)
(collectively, the “Corporate Records”) provided by the Company and/or its
predecessors, subsidiaries or affiliates or obtained as a result of Executive’s
prior employment with the Company and/or its predecessors, subsidiaries or
affiliates, or created by
X-
0
Executive
while employed by or rendering services to the Company and/or its predecessors,
subsidiaries or affiliates. Executive acknowledges that all such Corporate
Records are the property of the Company. In addition, Executive shall promptly
return in good condition any and all Company owned equipment or property,
including, but not limited to, automobiles, personal data assistants, facsimile
machines, copy machines, pagers, credit cards, cellular telephone equipment,
business cards, laptops and computers, unless mutually agreed upon in writing.
As of the Termination Date, the Company will make arrangements to remove,
terminate or transfer any and all business communication lines including network
access, cellular phone, fax line and other business numbers.
11.
Nothing in this Agreement shall prohibit or restrict Executive from: (i) making
any disclosure of information required by law; (ii) providing information to, or
testifying or otherwise assisting in any investigation or proceeding brought by,
any federal regulatory or law enforcement agency or legislative body, any
self-regulatory organization, or the Company’s designated legal, compliance or
human resources officers; or (iii) filing, testifying, participating in or
otherwise assisting in a proceeding relating to an alleged violation of any
federal, state or municipal law relating to fraud, or any rule or regulation of
the Securities and Exchange Commission or any self-regulatory
organization.
12. The
parties agree and acknowledge that the agreement by the Company described
herein, and the settlement and termination of any asserted or unasserted claims
against the Releasees, are not and shall not be construed to be an admission of
any violation of any federal, state or local statute or regulation, or of any
duty owed by any of the Releasees to Executive.
13.
Executive agrees and recognizes that should Executive breach any of the
obligations or covenants set forth in this Agreement, the Company will have no
further obligation to provide Executive with the consideration set forth herein,
and will have the right to seek repayment of all consideration paid up to the
time of any such breach. Further, Executive acknowledges in the event of a
breach of this Agreement, Releasees may seek any and all appropriate relief for
any such breach, including equitable relief and/or money damages, attorneys’
fees and costs.
14.
Executive further agrees that the Company shall be entitled to preliminary and
permanent injunctive relief, without the necessity of proving actual damages, as
well as to an equitable accounting of all earnings, profits and other benefits
arising from any violations of this Agreement, which rights shall be cumulative
and in addition to any other rights or remedies to which the Company may be
entitled.
15. This
Agreement and the obligations of the parties hereunder shall be construed,
interpreted and enforced in accordance with the laws of the State of Delaware,
without giving effect to the principles of conflict of laws of such
State.
16.
Executive certifies and acknowledges as follows:
(a) That
Executive has read the terms of this Agreement, and that Executive understands
its terms and effects, including the fact that, other than as excepted in
paragraph 1 hereof, Executive has agreed to RELEASE AND FOREVER DISCHARGE the
Company and each and every one of its affiliated entities from any legal action
arising out of Executive’s employment relationship with the Company and the
termination of that employment relationship; and
(b) That
Executive has signed this Agreement voluntarily and knowingly in exchange for
the consideration described herein, which Executive acknowledges is adequate and
satisfactory to him and which Executive acknowledges is in addition to any other
benefits to which Executive is otherwise entitled; and
(c) That
Executive has been and is hereby advised in writing to consult with an attorney
prior to signing this Agreement; and
(d) That
Executive does not waive rights or claims that may arise after the date this
Agreement is executed; and
(e) That
the Company has provided him with a period of [twenty-one (21) - generally
applicable for an individual termination] or [forty-five (45) - generally
applicable for a group termination] days within which to consider this
Agreement, and that Executive has signed on the date indicated below after
concluding that this Separation of Employment Agreement and General Release is
satisfactory to him; and
X-
0
(x)
Executive acknowledges that this Agreement may be revoked by him within seven
(7) days after execution, and it shall not become effective until the expiration
of such seven (7) day revocation period. In the event of a timely revocation by
Executive, this Agreement will be deemed null and void and the Company will have
no obligations hereunder.
Intending
to be legally bound hereby, Executive and the Company executed the foregoing
Separation of Employment Agreement and General Release this
day of ,
.
|
Witness:
|
||||||||
|
Executive
|
||||||||
|
XXXXXX
ENERGY COMPANY
|
||||||||
|
By:
|
Witness:
|
|||||||
|
Name:
|
||||||||
|
Title:
|
||||||||
X-
0
