CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit 10.1
CONFIDENTIAL
SEPARATION AGREEMENT AND GENERAL RELEASE
SEPARATION AGREEMENT AND GENERAL RELEASE
THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE (“Agreement”) is entered into by
and among XXXXXX X. XXXXXXXX (“Xxxxxxxx”), and LINN OPERATING, INC., LINN ENERGY, LLC, LINN ENERGY
HOLDINGS, LLC, PENN WEST PIPELINE, LLC and MID ATLANTIC WELL SERVICE, INC. (collectively “LINN”).
WHEREAS, Xxxxxxxx has been employed as Chief Accounting Officer for Linn;
WHEREAS, Xxxxxxxx and Xxxx wish to terminate their employment relationship; and
WHEREAS, Xxxxxxxx and Linn wish to amicably resolve any and all potential disputes which they
may have to avoid the expense, inconvenience and distraction likely to result from litigation.
NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree and intend to be legally bound as follows:
1. The preamble as stated above is incorporated herein by reference as though fully set forth at
length.
2. Xxxxxxxx will continue to be employed by Linn until Linn files its Form 10-Q with the Securities
and Exchange Commission for the first quarter ended March 31, 2006, at which time Xxxxxxxx agrees
to resign his employment effective that date (hereinafter referred to as “Resignation Date”).
Xxxxxxxx hereby agrees that he will continue to perform and provide services on behalf of Linn as
an employee and will not engage in any other employment until after the Resignation Date.
Xxxxxxxx’x signature on this Agreement shall constitute evidence of his resignation and no further
document shall be required. Xxxxxxxx understands that, on and after the Resignation Date, he will
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have no authority to act for or on behalf of Linn in any capacity.
3. Xxxxxxxx hereby agrees that prior to the public announcement by Linn of Xxxxxxxx’x resignation,
he will not disclose to any co-workers or third parties (except for any potential successor
employers) that he has or plans to accept employment with any other entity or person. Xxxxxxxx
also agrees to advise any successor employer or potential successor employer not to announce or
disclose, in any manner, that Xxxxxxxx has accepted an offer of employment until the earlier of the
day after the Resignation Date or the first business day following any public announcement by Linn
of Xxxxxxxx’x resignation. Xxxxxxxx understands and agrees Linn will suffer irreparable damages if
his resignation is announced prior to the Resignation Date.
4. In consideration of the release of all claims as provided herein, and for the other promises
made by Xxxxxxxx in this Agreement, Linn agrees to pay Xxxxxxxx the sum of $65,000.00, less all
applicable withholding, payroll taxes and deductions. The lump sum payment to Xxxxxxxx hereunder
will be made within thirty (30) days following the Resignation Date provided that both parties
execute this Agreement. Xxxxxxxx shall be solely responsible for any and all applicable federal,
state, and/or local taxes which may be assessed or payable on the severance sum specified herein
and due, if any, in addition to the amounts withheld by Linn. Xxxxxxxx agrees to release,
indemnify and hold harmless Linn, from any and all responsibility or liability related to the
payment of any tax which may be assessed or payable regarding the settlement sum paid hereunder on
which there was not withholding.
5. The consideration reflected in Paragraph 4 hereof represents an amount that is in addition to
anything of value to which Xxxxxxxx is otherwise entitled as a result of his separation of
employment from Linn.
6. Xxxxxxxx hereby agrees that the lump sum payment described in Paragraph 4 of this Agreement is
all that he will receive from Linn except for vested qualified retirement benefits, if any,
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to which Xxxxxxxx may be entitled to under Linn’s ERISA plans. Xxxxxxxx agrees and understands
that he will not be eligible for any other employer-provided benefits, including but not limited
to, medical and dental insurance, unit options, pension contributions, 401(k) contributions, paid
time off or vacation pay, sick pay or leave, accident pay or insurance, short-term disability
insurance, long-term disability insurance, or life insurance. Xxxxxxxx’x eligibility to
participate in all employee benefits and/or plans will end on the Resignation Date.
7. Xxxxxxxx and Xxxx have entered into this Agreement solely for the purpose of avoiding the
burdens and expense of litigation, and the making of this Agreement is not intended, and shall not
be construed that Linn has violated any statute, law, rule, order, policy, procedure, or contract,
expressed or implied, or incurred any liability on account thereof and any such violation is
expressly denied.
8. Xxxxxxxx, knowingly and voluntarily, on his own behalf and on behalf of his respective heirs,
agents, executors, administrators, successors, legal representatives, and all persons or entities
claiming any right or rights through him, including, but not limited to, in his capacity as a
unitholder or otherwise, for and in consideration of the obligations set forth herein, does hereby
forever release, acquit, waive and forever discharge Linn Operating, Inc., Linn Energy, LLC, Linn
Energy Holdings, LLC, Penn West Pipeline, LLC and Mid Atlantic Well Service, Inc., as well as each
of their past, present and future, predecessors, successors, subsidiaries, parent companies,
representatives, affiliates, related entities, divisions, administrators, employees, shareholders,
unitholders, directors, officers, staff, attorneys, agents, assigns, which may include but are not
limited to unrelated parties and subsequent purchasers (hereinafter collectively referred to as the
“Released Parties”) from any and all suits, claims, demands, rights, causes of actions, damages,
losses, judgments, penalties, liens, attorneys’ fees and expenses of whatever kind or nature, in
law or in equity, direct or indirect, known or unknown, mature or not matured, present or future,
accrued or unaccrued, against any of the
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Released Parties arising out of or relating in any way to Xxxxxxxx’x employment with the Released
Parties and/or his separation from employment from the Released Parties, or any other act,
omission, event, occurrence, or thing, including, but not limited to, any and all claims, suits, or
causes of action, whether in an individual and/or derivative capacity, relating in any way to
Xxxxxxxx’x capacity as a unitholder or otherwise, which occurred from the beginning of time through
and including the Resignation Date. The Release contained in this Paragraph applies without
limitation to all Released Parties whose status is identified above as of the date of this
Agreement and shall continue to apply without regard to their future employment or affiliation with
Linn. This release specifically includes, but is not limited to, any and all claims for
negligence, breach of contract, defamation, intentional torts, retaliation, violation of any
federal, state and/or local statutes, laws or regulations prohibiting employment discrimination on
the basis of race, color, religion, national origin, sex, ancestry, disability, retaliation and all
other protected categories and all claims based on any other statute, law or regulation, affecting
relations between employers and employees, including, but not limited to Title VII of the Civil
Rights Acts of 1964 and 1991; the Fair Labor Standards Act; the Americans with Disabilities Act;
the Family and Medical Leave Act; the Employee Retirement Income Security Act of 1974; the
Consolidated Omnibus Reconciliation Act of 1986; the Civil Rights Acts of 1866 and 1871; the Equal
Pay Act; 42 U.S.C. § 1981; the Pennsylvania Human Relations Act; the Pennsylvania Wage Payment and
Collection Law; the City of Pittsburgh Ordinance on Human Relations; all as amended; and all other
federal, state, and/or local statutory and/or common law claims arising out of or relating in any
way to Xxxxxxxx’x employment with the Released Parties and/or his separation from employment from
the Released Parties, or any other act, omission, event, occurrence, or thing, including, but not
limited to, any and all claims, suits, or causes of action, whether in an individual and/or
derivative capacity, relating in any way to Xxxxxxxx’x capacity as a unitholder or otherwise, which
occurred from the beginning of time through
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and including the Resignation Date. This Release also includes but is not limited to a release for
constructive discharge of Xxxxxxxx, breach of employment and/or other contract and other statutory,
common law, tort or claim that he may have against any of the Released Parties. This Release shall
become effective and binding on the Resignation Date.
9. Xxxxxxxx agrees that he will not file, or permit to be filed, in his name, or on his behalf,
including in his capacity as a unitholder or otherwise, any complaint, charge, lawsuit, allegation
or administrative claim against any of the Released Parties identified in this Agreement, based
upon Xxxxxxxx’x employment with the Released Parties and/or separation from employment from the
Released Parties, or any other act, omission, event, occurrence, or thing, including, but not
limited to, any and all claims, suits, or causes of action, whether in an individual and/or
derivative capacity, relating in any way to Xxxxxxxx’x capacity as a unitholder or otherwise, which
occurred from the beginning of time through and including the Resignation Date. Notwithstanding
any other language in this Agreement, Xxxxxxxx understands that this Agreement does not prohibit
him from filing an administrative charge of alleged employment discrimination under Title VII of
the Civil Rights Acts of 1964, the Americans with Disabilities Act, or the Equal Pay Act. However,
Xxxxxxxx waives his right to monetary or other recovery should any federal, state, or local
administrative agency pursue any claims on his behalf arising out of or relating in any way to his
employment with the Released Parties and/or his separation from employment from the Released
Parties.
10. Xxxxxxxx hereby acknowledges that during his employment with Linn he obtained information
regarding Linn’s business, including trade secrets, customer lists, and other confidential and
proprietary business information relating to Linn, its business operations and accounts, which are
valuable assets and property rights of Linn. Xxxxxxxx agrees that he will not, either directly or
indirectly, misappropriate, use or disclose, without the prior written consent of Linn, any
information regarding Linn and/or any of the Released Parties, their respective businesses,
affiliates, customers,
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prospective customers and their employees, which Xxxxxxxx acquired while employed by Linn.
Xxxxxxxx further agrees not to make any statements which defame, slander or disparage any of the
Released Parties or any of their administrators, shareholders, unitholders, directors, officers,
staff, attorneys, agents, employees, heirs, representatives or partners.
11. Neither Xxxxxxxx nor Linn will disclose the terms and facts of this Agreement without the
written consent of the other party, provided however, either party may make such disclosure to his
or its legal and tax advisors or as required by law, including any reporting obligations either
party may have under any applicable tax, securities and other applicable laws and those individuals
employed at or by Linn who need to know in order to implement the terms of this Agreement.
Xxxxxxxx and Xxxx understand and agree that noncompliance with the terms and conditions of this
Paragraph will be construed by the other party to be a breach of contract and such other party will
be entitled to such remedies that may include, but not limited to, money damages plus accrued
interest and all other equitable and legal remedies such party may be entitled to in the protection
of its rights at law, in equity or otherwise.
12. On or before the Resignation Date, Xxxxxxxx hereby agrees to return to Linn all computers,
software, records, manuals, proposals, electronic storage media, written and printed materials,
keys, identification cards and other property, documents or information of Linn and/or relating in
any way to any of the Released Parties and/or their businesses, customers and prospective customers
in Xxxxxxxx’x possession, custody or control. Xxxxxxxx certifies that he has not kept the
originals or copies of any documents, records, computer files, software or any other property of
Linn and/or any of the Released Parties and/or their customers and prospective customers.
13. Xxxxxxxx agrees that he will make himself available to provide consulting services to Linn,
upon the mutual agreement of Linn and Xxxxxxxx after the Resignation Date so long as such services
do not unreasonably interfere with the performance of Xxxxxxxx’x duties at any new employer.
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Xxxxxxxx hereby agrees that his hourly rate for serving as a consultant will be $100.00 per hour.
Xxxxxxxx agrees and acknowledges that Linn is under no obligation to request Xxxxxxxx’x services as
a consultant and that he will only perform consulting services upon Linn’s request to do so. If
Xxxxxxxx’x consulting services are requested by Linn, he will remain at all times an independent
contractor and not an employee of Linn or any of the Released Parties.
14. By signing this Agreement, Xxxxxxxx acknowledges and agrees that he:
(a) has read and understands each and every provision of this Agreement;
(b) understands that the Agreement is a legally binding agreement and has been given
the opportunity to review it with legal counsel of his choice prior to signing;
(c) the consideration for this Agreement includes Linn’s payment of severance pay,
as described above, which Xxxxxxxx acknowledges is in addition to anything of value
to which he is already entitled to from Linn;
(d) realizes and understands that the Release contained in Paragraph 8 of this
Agreement, which shall become effective on the Resignation Date, applies to and
covers all suits, claims, demands, rights, actions, charges, and causes of action,
arising under any federal, state, and/or local laws prohibiting employment
discrimination and all common law claims against each of the Released Parties,
including, but not limited to, any and all claims arising out of his employment with
the Released Parties and/or his separation from employment from the Released
Parties, whether or not he knows or suspects them to exist at the present time and
that he is giving up the right to xxx Xxxx and each of the Released Parties for any
claims which he believes he has based upon any act, omission, event, occurrence or
thing which occurred from the beginning of time through and including the
Resignation Date;
(e) has not received any promises or representations except those contained in this
Agreement;
(f) has not filed any complaints or charges with a court or administrative agency
against Linn or any of the other Released Parties prior to the date of the signing
of this Agreement; and
(g) understands that (1) the terms of this Agreement; and (2) that his signing of
this Agreement is done voluntarily and with the full understanding of its
consequences and has not been forced or coerced in any way.
15. If, in any legal action by Xxxxxxxx the Release contained in Paragraph 8 hereunder is declared
unenforceable, Linn shall be entitled to a setoff or recoupment of the entire separation pay
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and benefits paid by Linn hereunder to the extent permitted by applicable law. In the event that a
court of competent jurisdiction determines that Xxxxxxxx has breached any of the other agreements
set forth in this Agreement, including but not limited to the confidentiality provisions contained
in this Agreement or that any information, representation or warranty made by Xxxxxxxx contained in
this Agreement is false or misleading, then this Agreement shall be null and void and the entire
separation pay and benefits provided to Xxxxxxxx under this Agreement shall be treated as an
overpayment and shall be repaid by Xxxxxxxx with interest at the rate of six percent (6%) per
annum. Further, Xxxxxxxx agrees to pay any collection or legal fees incurred by the Released
Parties to recover the aforestated amounts.
16. This Agreement constitutes the complete agreement and understanding of the parties, supersedes
any prior agreements or understandings of the parties (oral or written) and may be amended only in
writing signed by the parties.
17. If any part, term, or provision of this Agreement is declared or determined by any court to be
illegal or invalid, such invalidity or illegality shall not affect the validity of the other
provisions of this Agreement, and the illegal or invalid part, term or provision shall be deemed to
be severable and not part of this Agreement.
18. This Agreement at all times and for all purposes, shall be interpreted, enforced and governed
in accordance with the laws of the Commonwealth of Pennsylvania.
19. This Agreement is binding upon, and shall inure to the benefit of, the parties and their
respective heirs, administrators, executors, successors and assigns.
20. This Agreement may be executed in duplicate with each party maintaining an original copy. Any
one of the two (2) original copies of the Agreement will be construed as an original document for
all lawful purposes.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto on the date
indicated below.
/s/ Xxxxxx X. Xxxxxxxx | ||||
XXXXXX X. XXXXXXXX | ||||
/s/ Xxxx X. Xxxx
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Date: | 6/5/06 | ||
Witness |
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LINN OPERATING, INC., LINN | ||||
ENERGY, LLC, and LINN ENERGY | ||||
HOLDINGS, LLC | ||||
By: | /s/ Xxxxxx X. Xxxxxx | |||
Xxxxxx X. Xxxxxx | ||||
Title: | Senior Vice President | |||
/s/ Xxxx X. Xxxx
|
Date: | 6/5/06 | ||
Witness |
||||
PENN WEST PIPELINE, LLC | ||||
By: | /s/ Xxxxxx X. Xxxxxx | |||
Xxxxxx X. Xxxxxx | ||||
Title: | President | |||
/s/ Xxxx X. Xxxx
|
Date: | 6/5/06 | ||
Witness |
||||
MID ATLANTIC WELL SERVICE, INC. | ||||
By: | /s/ Xxxxxx X. Xxxxxx | |||
Xxxxxx X. Xxxxxx | ||||
Title: | Secretary | |||
/s/ Xxxx X. Xxxx
|
Date: | 6/5/06 | ||
Witness |
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