EXHIBIT 10.1
SEPARATION AGREEMENT UNITED STATES OF AMERICA
BY AND BETWEEN STATE OF LOUISIANA
ENERGY PARTNERS, LTD. PARISH OF ORLEANS
AND
XXXXXXX X. XXXXXXXX
THIS SEPARATION AGREEMENT (this "Agreement") entered into in
New Orleans, Louisiana on this 26th day of March, 2002, by and between Xxxxxxx
X. Xxxxxxxx, an individual of the full age of majority domiciled in New Orleans,
Louisiana (hereinafter called "Employee") and Energy Partners, Ltd., a
corporation organized and existing under the laws of the State of Delaware
(hereinafter called "Company").
WHEREAS, Employee is employed by Company and holds the offices
of Vice President, General Counsel and Assistant Secretary of the Company;
WHEREAS, as a result of the Company's acquisition of Hall
Houston Oil Company, certain organizational changes are being made;
WHEREAS, as a result of the foregoing, Company notified
Employee that, effective March 31, 2002, her employment would be terminated
Without Cause pursuant to Section 2.10 of that certain Employment and Stock
Ownership Agreement between Employee and Company dated October 2, 2000 (the
"Employment Agreement"); and
WHEREAS, Employee and Company desire to settle fully and
finally all matters related to Employee's separation from the Company;
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, Employee and Company, intending to be legally bound
hereby, agree as follows:
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1.0 TERMINATION OF EMPLOYMENT.
1.1 Date of Termination of Service.
Employee shall and does hereby resign as an officer and
employee of Company and any and all of its subsidiaries,
effective March 31, 2002 (the "Separation Date").
1.2 Cooperation and Transition.
From the date of execution of this Agreement through the
Separation Date, Employee agrees to assist Company in the
transition of the offices of the Company that she holds, on an
'as requested' basis, by telephone or in person. After the
Separation Date, Employee agrees to make herself available as
reasonably requested by Company, by telephone or in person and
consistent with any non-reschedulable obligations Employee may
have to her then current employer, to assist the Company in
transitional or other matters. To the extent feasible under
the circumstances, Company agrees to provide Employee with
advance notice and to work with Employee on scheduling for
mutually convenient dates and times. Such assistance shall be
offered at no cost to the Company, except for payment of
Employee's reasonable expenses, if any.
2.0 OBLIGATIONS AND AGREEMENTS OF EMPLOYEE.
2.1 Transfer of Shares and Waiver of Right to Options.
Contemporaneous with payment to Employee by Company of the
Separation Payment (as hereinafter defined), Employee shall:
a) Transfer, endorse, assign and deliver to Company all
of her right, title and interest in 23,334 shares of
the Common Stock of Company;
b) Release, acquit and forever discharge Company from
any and all claims of any nature that Employee may
have in, and to any option to purchase, any shares
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of the Common Stock of the Company, including, but
not limited to, those options granted to Employee in
November 2000 and April 2001 totaling 45,000 option
shares and any remaining rights to receive restricted
Common Stock of the Company or options to acquire
Common Stock of the Company pursuant to Sections 2.1
and 2.2, respectively, of the Employment Agreement.
2.2 Benefits Plans.
Employee and Company agree that all benefits, rights and
compensation provided under any Company program, plan or
policy; under the Employment Agreement; or under any other
agreement or understanding, written or oral; or to which
Employee could otherwise claim some entitlement shall
terminate effective as of the Separation Date, except as
otherwise specifically provided in this Agreement. On or
before April 3, 2002, the Company agrees to pay Employee
$20,250 (less any required withholding under state or federal
law) in full satisfaction of her of accrued vacation for
calendar year 2002, which the parties hereto agree to be six
weeks of base salary.
2.3 Nondisparagement.
Employee agrees that she shall not, except as may be otherwise
required pursuant to judicial process or governmental
investigation or as is reasonably necessary in connection with
any adversarial process between Employee and Company, make any
oral or written statements or reveal any information which may
be construed to be disparaging or damaging to the name,
reputation or business, or which would interfere in any way
with the business relations, of Company or any of its
directors, officers, employees, shareholders, subsidiaries or
affiliates.
2.4 Non-Competition.
Employee and Company acknowledge that Company has been engaged
in the business of owning, operating, producing and exploring
for mineral interests, and other related activities. For a
period of two (2)
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years following the Separation Date, Employee will not compete
directly or indirectly with Company as to any existing
contract to which Company is a party, and/or as to any
business of Company evidenced by contracts, agreements,
letters of interest, confidentiality agreements, or written
proposals in existence as of the Separation Date.
2.5 Inadequacy of Legal Remedy.
The parties hereto acknowledge that the remedy at law for any
breach of Paragraph 2.3 or 2.4 of this Agreement, all of which
are deemed material, shall be inadequate, and the parties
hereby agree that Company shall be entitled to injunctive
relief by a court of competent jurisdiction enjoining and
restraining Employee from the continuance of any such act
which constitutes a breach of either of such paragraphs. In
addition to such injunctive relief, Company reserves the right
to seek any damages to which it may be entitled as a
consequence of Employee's breach of any of the provisions of
this Agreement.
2.6 Release of Claims by Employee.
In consideration of the amounts paid and to be paid by Company
and the other agreements made by Company under this Agreement,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Employee,
Employee knowingly, voluntarily and unconditionally hereby
forever waives, releases and discharges, and covenants never
to xxx on, any and all claims, liabilities, causes of actions,
judgments, orders assessments, penalties, fines, expenses and
costs (including without limitation attorneys' fees) and/or
suits of any kind arising out of any actions, events or
circumstances before the date of execution of this Agreement
("Employee Claims") which Employee has, ever had or may have,
including, without limitation, any Employee Claims arising in
whole or in part from Employee's employment or the termination
of Employee's employment with the Company or the manner of
said termination. This Agreement is intended as a full and
final settlement and compromise of each, every and all
Employee Claims of every kind and nature, whether known
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or unknown, which have been or could be asserted against
Company and/or any of its present and former subsidiaries,
together with their respective past and present shareholders,
officers, directors, agents, and employees, and their
respective heirs, successors and assigns (collectively, the
"Company Releasees"), including, without limitation --
(1) any Employee Claims arising out of the Employment
Agreement or any other employment agreement or other
contract, side-letter, resolution, promise or
understanding of any kind, whether written or oral or
express or implied;
(2) any Employee Claims arising under the Age
Discrimination in Employment Act ("ADEA"), as
amended, 29 U.S.C. Sections 621 et seq.; and
(3) any Employee Claims arising under any federal, state,
or local civil rights, human rights,
anti-discrimination, labor, employment, contract or
tort law, rule, regulation, order or decision,
including, without limitation, the Americans with
Disabilities Act of 1990, 42 U.S.C. Sections 12101 et
seq., the Employee Retirement Income Security Act of
1974, as amended, 29 U.S.C. Sections 1001 et seq.,
and Title VII of the Civil Rights Act of 1964, 42
U.S.C. Sections 2000e et seq., THE LOUISIANA
EMPLOYMENT DISCRIMINATION LAW, LSA-R.S. 23:301 ET
SEQ., LSA-R.S. 23:967 AND LA. CIV. CODE ART. 2315 and
as each of these laws have been or will be amended.
Notwithstanding anything to the contrary in this Paragraph
2.6, Employee does not release any claim that she may have now
or in future under this Agreement.
3.0 OBLIGATIONS AND AGREEMENTS OF COMPANY.
3.1 Compensation and Benefits.
a) Company shall pay Employee her regular base salary
and shall provide Employee with any and all
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medical, dental and other benefits as she is
currently receiving through the Separation Date.
b) On or before April 3, 2002 and following the
expiration of the Revocation Period (as defined in
Section 4.5 below), Company shall pay Employee the
full amount of $286,000 (the "Separation Payment"),
less any required withholding under state or federal
law.
c) Except as otherwise provided in this Agreement,
Employee's participation in any and all of the
Company's programs, plans and policies shall cease as
of the Separation Date and Employee shall have no
further right to any benefits under any such
programs, plans and policies after the Separation
Date, except that (i) Employee shall have such rights
to benefits under the Company's 401(k) Plan as may be
provided pursuant to the terms of said 401(k) Plan
(it being understood that no further contributions
shall be made by or on behalf of Employee pursuant to
said 401(k) Plan after the Separation Date), and (ii)
Employee shall have such rights to continue coverage
under Company's medical and dental plans under the
Consolidated Omnibus Budget Reconciliation Act of
1985 (COBRA).
d) Company shall pay, when due, any and all amounts
necessary to maintain, at Company's sole cost, full
coverage for Employee under any and all medical and
dental plans sponsored now or in future by Company or
any subsidiary of Company and shall do all things
necessary, including but not limited to paying, when
due, any and all COBRA premiums on behalf of Employee
to any and all such medical and dental plans and/or
providers, in order to provide Employee with medical
and dental benefits, with benefits no less than and
deductibles and co-payments no greater than, those
generally in effect for employees of the Company at
the time in question. Company's obligations under
this paragraph 3.1 (d) shall cease when Employee
becomes eligible as a full-time employee to
participate in any other employer sponsored medical
and dental plan, or September 30, 2003, whichever
occurs first.
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3.2 Indemnification.
Company shall indemnify and hold harmless Employee from and
against any and all claims, costs, liabilities, losses or
causes of action that may be asserted against Employee or to
which Employee may be, or become, subject by reason of
Employee's having been an officer and/or employee of Company
and/or by reason of Employee's alleged acts or omissions in
her capacity as such officer and/or employee, whether or not
Employee is an officer or employee of Company at the time any
such claim or liability is asserted, and shall pay on behalf
of Employee any and all legal and other expenses reasonably
incurred by Employee in connection with defending any or all
such claims or liabilities, and to pay when due any and all
judgments rendered and any settlements assessed, paid or
agreed to be paid as a result of any such claims or
liabilities. It is the intent of this indemnification
provision that Employee shall be indemnified now and hereafter
to the fullest extent permitted by Delaware law and by the
Company's By-laws.
3.3 Nondisparagement.
Company agrees that it shall not, except as may be otherwise
required pursuant to judicial process or governmental
investigation or as is reasonably necessary in connection with
any adversarial process between Employee and Company, make any
oral or written statements or reveal any information which may
be construed to be disparaging or damaging to the name,
reputation or business, or which would interfere in any way
with the business relations of Employee. The parties hereto
acknowledge that the remedy at law for any breach of this
Paragraph 3.3, all of which are deemed material, shall be
inadequate, and the parties hereby agree that Employee shall
be entitled to injunctive relief by a court of competent
jurisdiction enjoining and restraining Company from
continuance of any such act which constitutes a breach of this
Paragraph 3.3. In addition to such injunctive relief, Employee
reserves the right to seek any damages to which he may be
entitled as a consequence of Company's breach of any of the
provisions of this Agreement.
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3.4 Release of Claims by Company.
In consideration of the obligations and agreements made by
Employee under this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by Company, Company knowingly, voluntarily and
unconditionally hereby forever waives, releases and
discharges, and covenants never to xxx on, any and all claims,
liabilities, causes of actions, judgments, orders,
assessments, penalties, fines, expenses and costs (including
without limitation attorneys' fees) and/or suits of any kind
arising out of any actions, events or circumstances which
Company has, ever had or may have, including, without
limitation, any claims arising in whole or in part from
Employee's employment, or the termination of Employee's
employment with Company, or the manner of said termination
("Company Claims"). This Release is intended as a full and
final settlement and compromise of any Company Claims of every
kind and nature, which the Company may have now or in future;
provided, however, that this release is not intended nor shall
it be construed to infer or imply that the Company is aware of
or anticipates any such Company Claims.
4.0 MISCELLANEOUS.
4.1 Prior Agreements Superseded.
This Agreement supersedes the Employment Agreement and any
other employment or benefit agreement, written or oral,
entered into before the date of execution of this Agreement,
and shall be binding upon Employee and his heirs, legatees,
legal representatives, successors, donees, transferees and
assigns, and Employee does hereby authorize and obligate
Employee's executors, heirs and legatees to comply with the
terms of this Agreement. The parties shall not be bound by or
be liable for any statement, representation, promise,
inducement or understanding of any kind or nature regarding
the subject matter hereof which is not set forth herein. No
changes,
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amendments or modifications of any of the terms or conditions
of this Agreement shall be valid unless reduced to writing and
signed by all parties hereto.
4.2 Severability.
If any provision of this Agreement shall be declared unlawful
or incapable of execution, such fact shall in no way affect
the validity of any portion thereof which can be given
reasonable effect without the provision declared invalid or
incapable of execution; nor shall such fact operate to nullify
or rescind this Agreement, but shall only serve to render
ineffective the provisions declared invalid.
4.3 Applicable Law and Forum.
This Agreement shall be construed, interpreted and enforced in
accordance with the laws of the State of Louisiana. In any
legal action relating to this Agreement, the parties hereto
agree that the proper forum shall be the federal district
court located in Louisiana or, if not legally available, the
state courts of the State of Louisiana. Should there be any
dispute related to this Agreement, the prevailing party in
such dispute shall be entitled to an award of reasonable
attorneys fees and costs.
4.4 Legal Representation; Knowing and Voluntary Execution.
Company and Employee represent and agree that they (i) were
specifically advised of and fully understand their rights to
discuss all aspects of this Agreement with an attorney, (ii)
have to the extent they desire, availed themselves of these
rights, (iii) have carefully read and fully understood all
aspects of this Agreement, (iv) have entered into and executed
this Agreement knowingly and without duress or coercion from
any source, (v) do not release claims that may arise after the
date that this Agreement is executed; and (vi) enter into this
Agreement for consideration above and beyond that to which
each of such parties would otherwise be entitled under the
Employment Agreement.
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4.5 Review and Revocation; Effective Date.
Employee acknowledges that she has had a full and fair
opportunity to review this Agreement, and has been allowed at
least twenty-one (21) days to consider whether to accept the
benefits of the Agreement in return for the release set forth
in Paragraph 2.6. Employee hereby certifies and represents
that the decision to execute this Agreement was made after
adequate reflection concerning the purposes and effects of
this Agreement, and was not coerced by the Company Releasees
or anyone acting on their behalf or in concert with them.
Employee, Company and its affiliates represent that Employee
terminates her employment voluntarily. Employee represents
that she had the opportunity to fully consider the terms,
content and conditions of this Agreement. Consequently,
Employee has fully informed herself and warrants and
represents that she knowingly and voluntarily executed this
Agreement.
Employee and Company agree that Employee shall have seven (7)
calendar days (the "Revocation Period") following the date she
executes this Agreement to revoke her acceptance of this
Agreement and the release set forth in Paragraph 2.6 of this
Agreement. Employee and Company agree and acknowledge that a
revocation of this Agreement must be in writing and delivered
before the expiration of the Revocation Period to Xxxx Xxxxx,
Executive Vice President, Energy Partners, Ltd., 000 Xx.
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000. This
Agreement will become effective, binding and irrevocable if
not revoked before the expiration of the Revocation Period.
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IN WITNESSES WHEREOF, the parties hereto have executed this
Agreement effective as of the date above written in multiple originals, each of
which shall have the same force and effect as if it were the sole original.
WITNESSES: ENERGY PARTNERS, LTD.
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By:
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------------------------------- Xxxxxxx X. Xxxxxxxx, President
Date: March __, 2002
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Xxxxxxx X. Xxxxxxxx
Employee
Date: March __, 2002
