EXHIBIT 10.23
SEPARATION AGREEMENT AND RELEASE
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THIS SEPARATION AGREEMENT AND RELEASE ("Agreement") is made
and entered into this 31st day of March, 1999, by and between
WILLBROS USA, INC. ("Employer") and M. KIETH PHILLIPS ("Employee").
WITNESSETH:
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WHEREAS, Employee is currently employed by Employer; and
WHEREAS, Employee will retire from his employment with
Employer effective March 31, 1999 ("Retirement Date"); and
WHEREAS, Employer and Employee wish to achieve a final and
amicable resolution of all issues related to their employment
relationship;
NOW, THEREFORE, for and in consideration of the mutual
covenants and promises set forth below, as well as other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Employee's Retirement. Employee and Employer confirm and
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agree that Employee is retiring from employment with Employer as
of the Retirement Date and that the employment relationship which
existed between Employee and Employer and/or any of Employer's
affiliated companies shall cease as of the Retirement Date.
However, nothing contained herein, shall prevent or interfere
with the ability of the parties to enter into future agreements
for Employee to provide consulting services and advice to
Employer or Employer's affiliates on an independent contractor
basis ("Subsequent Agreement"). Except as provided in any
Subsequent Agreement, all of Employer's obligations to Employee
on or after the Retirement Date are set forth herein.
Accordingly, except as otherwise provided herein or in a
Subsequent Agreement, Employer shall have no further obligations
whatsoever to Employee after the Retirement Date. Similarly,
except as provided in any Subsequent Agreement, all of Employee's
obligations to Employer on or after the Retirement Date are set
forth herein. Accordingly, except as otherwise provided herein or
in a Subsequent Agreement, Employee shall have no further
obligations to Employer after the Retirement Date. Employer
shall cause its personnel records to reflect that Employee
retired from employment with Employer effective on the Retirement
Date.
2. Prior Agreements Superseded. Except as otherwise
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specifically provided herein, this Agreement supersedes and
replaces all other prior agreements, written or oral, relating to
Employee's employment with Employer and/or any of Employer's
affiliated companies.
3. Management Incentive Plan. Prior to the Retirement Date,
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Employee participated in the Willbros USA, Inc. Management
Incentive Plan dated January 1, 1996 ("Incentive Plan").
Employee acknowledges that the Incentive Plan terminated
December 31, 1998 and that Employee is not entitled to any
further payments or benefits under the Incentive Plan.
4. Medical Insurance Continuation. After the Retirement Date,
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Employee and Employee's spouse will be entitled to continue group
medical coverage under Employer's Retiree Medical Plan ("Retiree
Medical Plan"). Employer reserves the right, pursuant to the
terms of its Retiree Medical Plan, to amend or terminate any or
all provisions of the Retiree Medical Plan in the future. If
Employee is not entitled to Medicare benefits and does not elect
coverage under the Retiree Medical Plan, Employee will be
entitled to continue participation for a limited period of time
in Employer's Group Medical Plan, Group Dental Plan and/or
Executive Medical Plan under the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA"). Detailed information
concerning the costs and procedures applicable to such alternate
insurance coverage will be provided separately by Employer.
5. Life Insurance Conversion. Employee has the right to
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convert Employee's life insurance coverage under Employer's Group
Life Plan and dependent life insurance coverage obtained by the
Employee under Employer's Dependent Life Plan to individual life
insurance policies. Conversion forms and premium rates applicable
to such conversion programs will be provided separately by the
relevant insurer.
6. Pension Plan. As a vested participant in the Willbros USA,
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Inc. Pension Plan ("Pension Plan") maintained by Employer for the
benefit of eligible employees, Employee is or will become
entitled to certain retirement benefits. Nothing contained in
this Agreement shall affect Employee's rights to such benefits as
provided by the terms of the Pension Plan. Employee acknowledges
that Employer has separately provided Employee a specific
description of Employee's payment options under the Pension Plan.
7. Executive Benefit Restoration Plan. In addition to the
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Pension Plan, Employee also participated prior to the Retirement
Date in the Willbros USA, Inc. Executive Benefit Restoration Plan
("Restoration Plan"). On the Retirement Date, Employee shall
receive Two Hundred Thirty Four Thousand Fifteen U.S. Dollars
(U.S. $234,015), less applicable payroll tax withholding, under
the Restoration Plan as a lump sum payment of all accumulated
benefits due Employee under the Restoration Plan as of the
Retirement Date. Effective upon receipt of such payment,
Employee releases the Employer, the Restoration Plan Trust, the
Restoration Plan Trustee, and the Restoration Plan administrators
from any further claims for benefits under the Restoration Plan.
8. Incentive Stock Options. Employee is vested in certain
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incentive stock options and certain non-qualified stock options
provided by Employer's parent company, Willbros Group, Inc.
("WGI") pursuant to the Willbros Group, Inc. 1996 Stock Plan
("Stock Plan"). Except as otherwise provided in this Paragraph 9,
nothing in this Agreement shall affect any rights or
obligations of Employee or WGI under the Incentive Stock Option
Agreement or the Non-Qualified Stock Option Agreements entered
into between Employee and WGI pursuant to
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the Stock Plan. Employer hereby confirms that WGI has
accelerated the vesting of certain stock options previously
awarded to Employee under the Plan with the effect that
the portions of Employee's previous stock option awards
pursuant to the Stock Plan which are otherwise not vested
as of March 31, 1999 will be deemed to be fully vested
as of that date. Employee acknowledges that any of Employee's
incentive stock options awarded under the Stock Plan which
are exercised more than three (3) months after the Retirement
Date will be treated as non-qualified stock options for
U.S. federal income tax purposes.
9. Employer Stock Ownership Plans. Employee is indebted to
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Employer pursuant to certain secured promissory notes issued to
Employer by Employee in connection with Employee's purchase of
stock pursuant to the Willbros USA, Inc. 1992 Employee Non-
Qualified Stock Ownership Plan and the Willbros USA, Inc. 1996
Management Personnel Non-Qualified Stock Ownership Plan.
Employee's obligations and Employer's rights under such
promissory notes shall not be affected by this Agreement, except
that Employer waives its rights to accelerate the due dates of
such promissory notes on account of Employee's retirement.
10. Employer Investment Plan. Employee is fully vested in
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Employer's 401(k) Investment Plan ("Investment Plan"). Employee
has the option of receiving a lump-sum distribution of Employee's
total account balance in the Investment Plan, transferring such
account balance to another tax-qualified plan or to an Individual
Retirement Account or leaving such account balance in the
Investment Plan. Election forms and detailed information
concerning Employee's options with respect to Employee's account
balance in the Investment Plan will be provided separately by
Employer.
11. Director and Officer Matters. Nothing in this Agreement
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shall affect any of Employee's rights or obligations with respect
to indemnification or director and officer liability insurance
coverage to which Employee is entitled or subject in his capacity
as a former director and officer of Employer, WGI and certain of
their affiliates, whether under that certain Indemnification
Agreement between WGI and Employee dated May 2, 1997, or
otherwise.
12. Accrued Vacation Pay. On the Retirement Date, Employee
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shall receive Thirty Six Thousand Seven Hundred Sixty Six U.S.
Dollars (U.S.$36,766), less applicable payroll tax withholding,
as compensation for all of Employee's accrued vacation time
through the Retirement Date.
13. Other Benefits. Except as specifically set forth herein,
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all employment benefits previously made available to Employee by
Employer or any of its affiliates, including, without limitation,
those made available under Employer's Executive Compensation
Program, shall cease to be available to Employee as of the
Retirement Date. Employee acknowledges that he is not entitled
to receive any compensation, severance payment or retirement
enhancement payment under the Employer's 1999 Reduction-In-Force
Plan or WGI's Severance Protection Plan.
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14. Lump Sum Payment. On the Retirement Date, Employer shall
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pay to Employee a lump sum amount of One Hundred Ninety Three
Thousand Dollars (U. S. $193,000), less applicable payroll tax
withholding, in consideration of the release specified below and
the acknowledgements, waivers, representations and undertakings
specified herein.
15. Release. Except for the obligations of Employer specifically
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set forth or referenced in this Agreement, Employee fully and
forever relieves, releases, and discharges Employer, WGI and
all of their respective representatives, officers, directors,
shareholders, predecessors, successors, parents, subsidiaries,
operating units, affiliates, divisions, employees and attorneys
from any and all claims, debts, liabilities, demands,
obligations, promises, acts, agreements, costs, expenses,
damages, actions, and causes of action, whether in law or in
equity, whether known or unknown, suspected or unsuspected,
arising from Employee's employment with and termination from
Employer, including but not limited to any and all claims
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
Section 2000e, et seq., as amended by the Civil Rights Act of
1991, which prohibits discrimination in employment based on race,
color, national origin, religion or sex; the Civil Rights Act of
1966, 42 U.S.C. Sections 1981, 1983 and 1985, which prohibits
violations of civil rights; the Age Discrimination in Employment
Act of 1967, as amended, and as further amended by the Older
Workers Benefit Protection Act, 29 U.S.C. Section 621, et seq.,
which prohibits age discrimination in employment; the Employment
Retirement Income Security Act of 1974, as amended, 29 U.S.C.
Section 1001, et seq., which protects certain employee benefits;
the Americans with Disabilities Act of 1990, as amended, 42
U.S.C. Section 12101, et seq., which prohibits discrimination
against the disabled; the Family and Medical Leave Act of 1993,
29 U.S.C. Section 2601, et seq., which provides medical and
family leave; the Fair Labor Standards Act, 42 U.S.C. Section 201,
et seq., including the Wage and Hour Laws relating to
payment of wages; 85 O.S. 1991 Sections 5, 6 and 7, which
prohibits discharge in retaliation for exercising rights under
Oklahoma's Workers' Compensation Act; and all other federal,
state or local laws or regulations prohibiting employment
discrimination. This release also includes, but is not limited
to, a release by Employee of any claims for breach of contract,
mental pain, suffering and anguish, emotional upset, impairment
of economic opportunities, unlawful interference with employment
rights, defamation, intentional or negligent infliction of
emotional distress, fraud, wrongful termination, wrongful
discharge in violation of public policy, breach of any express or
implied covenant of good faith and fair dealing, that Employer
has dealt with Employee unfairly or in bad faith, and all other
common law contract and tort claims. Employee is not waiving any
rights or claims that may arise after the Retirement Date.
16. Confidentiality. For a period of five (5) years after the
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Retirement Date, Employee shall not, except as otherwise required
by law, furnish, disclose or make accessible to any person,
entity or government authority, any knowledge, trade secrets,
customer information, supplier information, plans, opportunities,
procedures, data, techniques or other information relating to the
businesses or finances of Employer or any of its affiliates. The
prohibitions of this Paragraph 16 shall not apply, however, to
information in the public domain (but only if the
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same becomes part of the public domain through a means other
than a disclosure prohibited hereunder).
17. Remedies. The parties recognize that, because of the nature
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of the subject matter of Paragraph 16 above, it would be
impracticable and extremely difficult to determine the actual
damages suffered by Employer in the event of a material breach of
Employee's obligations thereunder. Accordingly, if Employee
commits a material breach, or threatens to commit a material
breach, of any of the provisions of Paragraph 16, Employer or any
of its successors or assigns shall give Employee written notice
of such violation and, if Employee has not cured such violation
or otherwise ceased to act in violation of Paragraph 16 within
ten (10) days after the giving of such notice, Employer or any of
its successors or assigns shall have the following rights and
remedies:
(a) to have the provisions of Paragraph 16 specifically
enforced by any court having equity jurisdiction,
without the posting of bond or other security, it
being acknowledged and agreed by Employee that any
such breach or threatened breach will cause
irreparable injury to Employer and that an injunction
may be issued against Employee to stop or prevent any
such breach or threatened breach; and
(b) to recover such actual damages as Employer or its
affiliates may incur as a result of such breach or
threatened breach.
The curing of a violation of the requirements of Paragraph 16
shall not preclude Employer from seeking the recovery of
its actual damages resulting from such violation.
18. Independent Legal Advice. Employee acknowledges that he has
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been represented by independent legal counsel of his choice with
respect to the advisability of signing this Agreement and
providing the releases, waivers, acknowledgements,
representations and undertakings specified herein, and with
respect to his rights and obligations under the terms of this
Agreement.
19. Knowledge of Contents. Both parties acknowledge that they
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have carefully read this Agreement and that the contents hereof
are known and understood by them. This Agreement is signed
freely by each party hereto.
20. Review and Revocation Period. Employee acknowledges that he
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has been extended a period of twenty-one (21) days within which
to consider this Agreement. For a period of seven (7) days
following Employee's execution of the Agreement, Employee may
revoke this Agreement by notifying Employer, in writing, of his
desire to do so. After the seven (7) day period has elapsed,
this Agreement shall be binding and enforceable.
21. Obligation to Return Funds. In the event Employee exercises
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his right to revocation set forth in Section 20 above, Employee
shall immediately return to Employer all amounts paid
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to Employee as consideration under this Agreement. The
duty to return funds under this Agreement shall survive the
revocation of the Agreement and shall constitute a separately
enforceable obligation between Employee and Employer.
22. No Admission of Liability. This Agreement and compliance
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with this Agreement shall not be construed as an admission by
Employer or Employee of any liability whatsoever, or as an
admission by Employer of any violation of the rights of Employee
or any other person, or any violation of any order, law, statute,
duty or contract.
23. Severability. In the event that any provision of this
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Agreement should be held to be void, voidable, or unenforceable,
the remaining portions hereof shall remain in full force and
effect.
24. Governing Law. This Agreement will be interpreted and
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enforced in accordance with the laws of the State of Oklahoma.
25. Entirety and Integration. Upon the execution hereof by all
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of the parties hereto, this Agreement shall constitute a single,
integrated contract expressing the entire agreement of the
parties relative to the subject matter hereof and supersedes all
prior negotiations, understandings and/or agreements, if any, of
the parties. No covenants, agreements, representations, or
warranties of any kind whatsoever have been made by any party
hereto, except as specifically set forth in this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first mentioned above.
EMPLOYEE EMPLOYER
Willbros USA, Inc.
/s/ M. Kieth Phillips /s/ Larry J. Bump
- --------------------------- By: -----------------------------
M. Kieth Phillips Larry J. Bump
Chairman and
Chief Executive Officer
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