EXHIBIT 10.74
SEVERANCE AGREEMENT
This Severance Agreement (this "Agreement"), dated as of July 15, 1998, is
made and entered into by and among Triton Energy Limited, a Cayman Islands
company ("Triton"), Triton Exploration Services, Inc., a Delaware corporation
(the "Company"), and Xxxxxx X. Xxxxx ("Employee").
WITNESSETH:
WHEREAS, Employee is an employee of the Company and/or certain other
subsidiaries or affiliates of Triton; and
WHEREAS, the Company and Employee have reached agreement on the terms of
the termination of Employee's employment with the Company; and
WHEREAS, Triton, the Company and Employee desire that of this Agreement set
forth the provisions regarding Employee's termination of employment with the
Company;
NOW, THEREFORE, in consideration of the premises and mutual promises
contained herein, the Company and Employee agree as follows:
1. TERMINATION OF EMPLOYMENT.
(a) As of the date hereof, Employee hereby resigns as an officer
and director of Triton, the Company and any and all subsidiaries or affiliates
of Triton, but not as an employee of the Company. Effective as of the Effective
Date (as defined below), Employee hereby resigns Employee's employment with the
Company and any and all subsidiaries or affiliates of Triton and the Company.
Triton, the Company and Employee agree that, except with respect to the
Surviving Company Obligations (as defined in Section 4(a)(ii) hereof), from the
Effective Date, any and all employment agreements, or similar understandings or
arrangements, written or oral, express or implied, between or among Employee and
Triton, the Company and any other subsidiary or affiliate of Triton are, and all
obligations of each party to the other thereunder hereby are, terminated and of
no further force or effect, including without limitation the Amended and
Restated Employment Agreement dated as of January 13, 1998. The term "Effective
Date" shall mean September 1, 1998. Employee agrees to sign and deliver no
later than August 28, 1998 a resignation from all positions as an officer and
director of Triton and its subsidiaries in the form attached to this Agreement.
(b) Employee represents and warrants that to the best of his
knowledge, Employee has not removed any property of the Company or any of its
affiliates, except for the property identified in Section 2(c) hereof and
property that Employee has returned to the Company prior to the date of this
Agreement. In the event Employee discovers any property of the Company in
Employee's possession or control (except as provided in Section 2(c) below),
Employee agrees to promptly return such property to the Company.
2. COMPENSATION.
(a) The Company will pay Employee an amount equal to $647,700 in the
aggregate, payable in equal semi-monthly installments on the Company's regular
payroll dates through the period ending on July 15, 1999, subject to any
holdbacks or deductions required as a matter of law, and provided that Employee
has complied with all reasonable requests of the Company in connection with the
transition from Employee's services.
(b) The Company will pay employee for all accrued and unpaid vacation. The
Company and Employee agree that Employee is entitled to be paid for twenty-five
(25) days of vacation, subject to any holdbacks or deductions required as a
matter of law.
(c) Employee shall be entitled to retain the Compaq Armada 4160t (including
CD-ROM, NIC card, modem, mouse and keyboard), the HP LaserJet 4p and NEC 14 inch
monitor in his possession.
(d) The Company will continue to pay, in accordance with current practice,
the dues for club memberships maintained for the benefit of Employee immediately
prior to the date of this Agreement through the period ending September 30,
1998.
(e) The Company agrees to pay the reasonable fees and disbursements of
legal counsel for Employee in connection with the negotiation of this Agreement,
up to a maximum of $7,500.00.
(f) The Company will cause the convertible subordinated debentures held by
Employee pursuant to the Amended and Restated 1986 Convertible Debenture Plan to
be redeemed at the redemption price of 103% of the original principal amount of
the convertible subordinated debentures held by Employee and Employee will
contemporaneously pay all amounts owing by Employee under the promissory notes
delivered by Employee in consideration therefor.
(g) Any stock options held by Employee shall be unaffected by this
Agreement and shall continue to be governed by the terms of the agreement(s) and
plan(s) under which they were issued; provided that any such stock options shall
expire and terminate at the close of business on November 2, 1998.
3. CONFIDENTIALITY. Employee represents that Employee has not
knowingly removed, and agrees that Employee will not (without the Company's
prior written consent) remove, from the premises of Triton, the Company or any
other subsidiary or affiliate of Triton any documents or copies thereof that
constitute or contain any Confidential Information (as hereinafter defined).
Without limiting the generality of the foregoing, Employee agrees that Employee
shall (a) keep confidential all Confidential Information at any time known to
Employee, (b) not use any Confidential Information for Employee's benefit or to
the detriment of Triton, the Company or any other subsidiary or affiliate of
Triton or disclose any Confidential Information to any third persons (except
pursuant to a validly issued subpoena or court order, and then only if the
Company shall have been promptly advised thereof and consulted with regarding an
appropriate response thereto), (c) not make copies of documents embodying any
Confidential Information, (d) exercise reasonable care to prevent dissemination
of Confidential Information to third persons, and (e) return to the Company any
documents which contain Confidential Information and which are or come in
Employee's possession. "Confidential Information" shall include any information
concerning any matters affecting or relating to the businesses, operations and
financial affairs of Triton, the Company or any other subsidiary or affiliate of
Triton that are of a special or unique nature or the disclosure of which could
cause harm to Triton, the Company or any other subsidiary or affiliate of
Triton, and this Agreement (including its existence and its contents) regardless
of whether any such Confidential Information is labeled or otherwise treated as
confidential, material, or important.
4. GENERAL RELEASES; CERTAIN COVENANTS;
(a) (i) As a material inducement to Triton and the Company to
enter into this Agreement, Employee hereby irrevocably and unconditionally
releases, acquits, and forever discharges Triton, the Company or any other
subsidiary or affiliate of Triton, and their respective directors, officers,
employees, successors, assigns, agents, independent auditors and accountants,
representatives, and attorneys, and all persons acting by, through, under, or in
concert with them, or any of them (collectively, including Triton and the
Company, the "Company Releasees"), from any and all charges, complaints, claims,
liabilities, obligations, promises, controversies, damages, actions, suits,
rights, demands, costs, losses, debts and expenses (including attorneys' fees
and costs actually incurred), of any nature, known or unknown ("Claim" or
"Claims") and to the extent permitted by state and federal law, which Employee
has, owns, or holds, or claims to have, own or hold or which Employee at any
time hereafter may have, own or hold, or claim to have, own or hold, against
each or any of the Company Releasees based on any facts, circumstances, actions
or omissions existing or occurring on or before the Effective Date relating to
or arising out of Employee's employment, separation from, or affiliation with
Triton, the Company or any other subsidiary or affiliate of Triton, including
but not limited to, any Claims involving securities or securities transactions,
any Claims based on harassment or hostile work environment based on race, sex,
religion, national origin, color, disability or age, any Claims involving
contracts, agreements or obligations related thereto (including, without
limitation, any Claims relating to any express or implied employment agreement
and any benefit plans of Triton, the Company or any other subsidiary or
affiliate of Triton), any Claims involving libel, slander or defamation, any
Claims under federal, state or local law, any Claims under federal, state or
local law of discrimination on the basis of age, sex, race, national origin,
color, religion, disability, such as Claims under the Age Discrimination in
Employment Act of 1967, the Employee Retirement Income Security Act, the
Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1991, the retaliation provisions of the Texas Workers'
Compensation Act and the Texas Commission on Human Rights Act, and any action
related to Employee's employment, separation from, or affiliation with Triton,
the Company and any other subsidiary or affiliate of Triton, and excepting only
any claims based on a breach of this Agreement. This release shall be binding on
Employee's heirs, dependents, successors and assigns.
(ii) Notwithstanding the foregoing clause (i) of this Section
4(a), in no event shall Employee be deemed to have released the Company
Releasees from any obligation they, or any one of them, have or may have (i)
under the Indemnity Agreement between Triton and Employee dated as of September
11, 1996, (ii) in respect of any benefits accrued in favor of Employee through
the Effective Date under the Retirement Income Plan, the 401(k) Savings Plan,
the Supplemental Executive Retirement Plan (the "SERP"), and the Amended and
Restated 1986 Convertible Debenture Plan, the 1985 Stock Option Plan, the 1989
Stock Option Plan, the Second Amended and Restated 1992 Stock Option Plan, and
the 1997 Share Compensation Plan (except as provided in Section 2(g)) or (iii)
the indemnity obligations of the Company, Triton or any of their affiliates to
employee under their respective governing documents (collectively, the
"Surviving Company Obligations"). The Company acknowledges that Employee shall
continue to be a "Participant" in the SERP through the Effective Date.
(b) As a material inducement to Employee to enter into this
Agreement, each of Triton and the Company, on its own behalf and on behalf of
its respective subsidiaries and affiliates, hereby irrevocably and
unconditionally releases, acquits and forever discharges Employee, and
Employee's heirs, spouse, dependents, successors and assigns, or any of them
(collectively, including Employee, the "Employee Releasees") from any Claims
which Triton, the Company or any other subsidiary or affiliate of Triton has,
owns, or holds or claims to have, own or hold or which Triton, the Company or
any other subsidiary or affiliate of Triton at any time hereafter may have, own
or hold, or claim to have, own or hold, or claim to have, own or hold, against
each of the Employee Releasees, excepting only any Claims based on a breach of
the terms of this Agreement, intentional injury to the property of Triton, the
Company or any other subsidiary or affiliate of Triton, fraud, theft,
embezzlement or misappropriation of corporate assets.
(c) Employee acknowledges and agrees that each Company Releasee
(other than Triton and the Company, which are direct contractual beneficiaries)
is expressly intended to be, and is hereby made, a third party beneficiary of
Employee's covenants and releases contained in this Agreement. The Company
acknowledges and agrees that each Employee Releasee (other than Employee, who is
a direct contractual beneficiary) is expressly intended to be, and is hereby
made, a third party beneficiary of Triton's and the Company's covenants and
releases contained in this Agreement.
(d) Each of the above releasors agrees to indemnify the releasees
described herein for all loss, cost, damage and expense, including, but not
limited to, attorneys' fees, incurred by such releasees described herein or any
one of them, arising out of any breach of the provisions of the releases as set
forth in Sections 4(a), (b) and (c) above.
5. OLDER WORKER BENEFIT PROTECTION ACT CLAUSES.
(a) "Knowing and Voluntary" Waiver. You may revoke this Agreement
within seven days after execution. By your signature below, you confirm that
you: (1) have read this Agreement carefully and completely; (2) have been given
a reasonable period of time to consider and review this Agreement; (3) are aware
of your right to consult with legal counsel and acknowledge that you have had
ample opportunity to do so if you choose; and (4) understand all of the
provisions contained in the Agreement.
(b) Notice About Affected Employees. All employees of Triton
Energy Limited who are subject to the mass layoff will be terminated and offered
this additional severance package.
6. NO ADMISSION. This Agreement (or its offer and negotiation) is not
an admission by any of Triton, the Company or Employee of any wrongdoing or
liability.
7. NO REINSTATEMENT. Employee agrees that Employee waives any right to
reinstatement or future employment with the Company following Employee's
separation from the Company.
8. COOPERATION; REIMBURSEMENT OF LEGAL FEES. Employee agrees that
Employee will cooperate in good faith with the Company in connection with any
civil or criminal litigation or governmental inquiry or investigation involving
the Company or any of its subsidiaries or affiliates, or its or their
properties, assets or businesses, or to which any of them may be a party or a
subject. Employee shall not in any way cooperate or lend assistance to any
parties that are now, or may in the future be, involved in legal proceedings
adverse to the Company except as may be required by applicable law. The Company
agrees that in connection with any existing or future litigation against the
Company, Triton and/or any of their affiliates (collectively, the "Triton
Entities") in which Employee is named as a defendant and the Triton Entities
hire outside counsel to jointly represent the Triton Entities and Employee,
Employee shall be entitled to retain separate counsel of his own choosing to
monitor such litigation and the Company will promptly reimburse Employee's
counsel for all reasonable fees and expenses incurred in connection with such
representation, which fees and expenses shall not exceed $75,000, in the
aggregate, in any year.
9. REVOCATION. It is further understood that for the seven-day period
commencing upon the execution of this Agreement in duplicate originals and
ending on the July 21, 1998, Employee may revoke this Agreement by providing
written notice to the Company, and this Agreement shall not become effective or
enforceable until such revocation period has expired. Moreover, if Employee
revokes this Agreement, any and all originals or copies of this Agreement must
be returned to the Company at the time of revocation.
10. NO DURESS. This Agreement has been entered into voluntarily and
not as a result of coercion, duress, or undue influence. Employee agrees that
Employee has read and fully understands the terms of this Agreement and has been
advised to consult with an attorney before executing this Agreement.
Additionally, Employee agrees that Employee has been given at least twenty-one
days to consider this Agreement.
11. SEVERABILITY; SURVIVABILITY. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under present or future laws
effective during the term hereof, such provision shall be fully severable and
this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as part of this Agreement a
provision as similar in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable. The Company
and Triton expressly recognize and agree that the terms and provisions of this
Agreement shall survive any "change in control" (as defined in the SERP) and any
other transaction or occurrence to which the Company or Triton may at any time
in the future be a party.
12. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas. This Agreement is
performable in Dallas County, Texas.
13. ARBITRATION. The parties agree that any controversy or claim
arising out of or relating to this Agreement, including any questions relating
to its existence, validity or termination, which cannot be resolved amicably by
the parties within 30 days after either party has notified the other, in
writing, of the existence of a dispute, will be settled exclusively by final and
binding arbitration, before three arbitrators. Arbitration will be governed by
the Federal Arbitration Act and administered by the Judicial Arbitration and
Mediation Services Rules for the Resolution of Employment Disputes (JAMS). The
arbitrator is empowered to award all appropriate remedies under Texas or federal
law. The arbitrator shall have exclusive authority to resolve any dispute
relating to the validity, interpretation, application and enforcement of this
Agreement. Judgment on the arbitrator's award may be enforced in any court with
proper jurisdiction. Each party will equally bear all costs and legal fees of
arbitration, unless otherwise required by law. The parties further agree that
the arbitration will occur in Dallas, Texas.
14. ENTIRE AGREEMENT. This Agreement contains the entire understanding
and agreement between or among the Company, Triton and Employee with respect to
the subject matter herein, and supersedes all prior oral or written agreements
between the parties with respect to that subject matter.
15. NOTICE. Any notice or communication hereunder must be in writing
and given by depositing the same in the United States mail, addressed to the
party to be notified, postage prepaid and registered or certified with return
receipt requested, by transmitting the same by facsimile transmission followed
by United States mail as aforesaid, or by delivering the same by overnight
delivery service or in person. Notice shall be deemed received on the date on
which it is delivered or transmitted by facsimile, or on the third business day
following the date on which it is so mailed. For purposes of notice, the
addresses of Employee shall be the most recent address as indicated in the
records of the Company, and the address of Triton or the Company shall be:
c/o Triton Energy
0000 X. Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
Attention: Legal Department
Any party may change its address for notice by written notice given to the other
parties in accordance with this Section.
16. PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT INCLUDES A
RELEASE OF ALL KNOWN OR UNKNOWN CLAIMS AGAINST TRITON ENERGY LIMITED, TRITON
EXPLORATION SERVICES, INC. AND THE OTHER SUBSIDIARIES AND AFFILIATES OF TRITON
ENERGY LIMITED, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES,
SHAREHOLDERS, SUCCESSORS, ASSIGNS, AGENTS, INDEPENDENT AUDITORS AND ACCOUNTANTS,
REPRESENTATIVES, AND ATTORNEYS.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
_____________________________
Employee Signature
TRITON ENERGY LIMITED
By: __________________________
TRITON EXPLORATION SERVICES, INC.
By: __________________________
July 15, 1998
To Triton Energy Limited and all of its direct and indirect subsidiaries
and affiliates
Gentlemen:
I hereby resign as a director and/or officer of Triton Energy Limited and
each of its direct and indirect subsidiaries and affiliates, including without
limitation those on the attached list.
Very truly yours,
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
