EXHIBIT 99.1
PENNZENERGY COMPANY
SPECIAL SEVERANCE PLAN
(As Established Effective May 19, 1999)
INTRODUCTION
PennzEnergy Company considers the prevention of the loss of employees and
the avoidance of distraction of employees as a result of the transaction
("Transaction") contemplated by that certain Amended and Restated Agreement and
Plan of Merger by and among Devon Energy Corporation, Devon Delaware
Corporation, Devon Oklahoma Corporation and PennzEnergy Company, dated as of May
19, 1999, to be essential to protecting and enhancing the best interests of
PennzEnergy Company and its shareholders. PennzEnergy Company also believes
that during the pendency of the Transaction and the transition period
thereafter, PennzEnergy Company should be able to receive and rely on
disinterested service from employees regarding the best interests of PennzEnergy
Company and its shareholders without concern that employees might be distracted
or concerned by personal uncertainties and risks.
Accordingly, PennzEnergy Company has determined that appropriate steps
should be taken to assure PennzEnergy Company and its affiliates of the
continued employment and attention and dedication to duty of their employees and
to seek to ensure the availability of their continued service, notwithstanding
the Transaction.
Therefore, in order to fulfill the above purposes, the PennzEnergy Company
Special Severance Plan is hereby established to read as follows:
ARTICLE I
ESTABLISHMENT OF PLAN
As of the Effective Date, PennzEnergy Company hereby establishes a
separation compensation plan to be known as the PennzEnergy Company Special
Severance Plan, as set forth in this document.
ARTICLE II
DEFINITIONS
(a) Board. Prior to the Closing Date, the Board of Directors of
PennzEnergy, and on and after the Closing Date, the Board of Directors of
Devon.
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(b) Closing Date. The closing date of the Transaction, as defined in
Section 1.2 of the Merger Agreement.
(c) Company. Prior to the Closing Date, PennzEnergy, and on and after
the Closing Date, Devon.
(d) Defined Pay. A Participant's compensation for purposes of the
Plan, which is equal to the sum of the Participant's (1) highest annual
base salary or wages during the three calendar years preceding the 2000
calendar year and (2) highest annual bonus earned during the three calendar
years preceding the 1999 calendar year (or, if a Participant did not earn
an annual bonus, or earned only a prorated annual bonus, during such three
calendar years, the Participant's annual bonus for purposes of "Defined
Pay" under the Plan shall be based on the 1999 target annual bonus for such
Participant's salary grade).
(e) Devon. Devon Energy Corporation, an Delaware corporation.
(f) Effective Date. May 19, 1999.
(g) Employee. Any full-time salaried or hourly nonunion employee of an
Employer. The term shall exclude all individuals (1) retained as
independent contractors and (2) non-United States citizens working outside
the United States.
(h) Employer. The Company and each Subsidiary.
(i) Merger Agreement. The Amended and Restated Agreement and Plan of
Merger by and among Devon Energy Corporation, Devon Delaware Corporation,
Devon Oklahoma Corporation and PennzEnergy Company, dated as of May 19,
1999.
(j) Participant. An individual who is designated as such pursuant to
Section 3.1.
(k) PennzEnergy. PennzEnergy Company, a Delaware corporation.
(l) Plan. The PennzEnergy Company Special Severance Plan.
(m) Severance Benefit. A benefit to which a Participant may become
entitled pursuant to Article IV hereof.
(n) Subsidiary. Any corporation or other entity in which the Company,
directly or indirectly, holds a majority of the voting power or profits or
capital interest of such entity.
(o) Transaction. For purposes of this Plan, that certain transaction
contemplated by the Merger Agreement.
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ARTICLE III
ELIGIBILITY
3.1 Participation. Any individual who is an Employee of an Employer on
the Effective Date shall be a Participant in the Plan; provided, however, that,
the foregoing notwithstanding, no Employee shall be a Participant in this Plan
who:
(i) Immediately prior to the Effective Date, is exempt grade E5 or
higher; or
(ii) Is offered and accepts employment with Pennzoil-Quaker State
Company prior to termination of employment with PennzEnergy Company as
defined in Section 4.2 of the Plan.
3.2 Duration of Participation. A Participant shall cease to be a
Participant in the Plan as a result of an amendment or termination of the Plan
complying with Article VII of the Plan, or when he or she ceases to be an
Employee of any Employer, unless, at the time he or she ceases to be an
Employee, such Participant is entitled to payment of a Severance Benefit as
provided in the Plan. A Participant entitled to payment of a Severance Benefit
or any other amounts under the Plan shall remain a Participant in the Plan until
the full amount of the Severance Benefit and any other amounts payable under the
Plan have been paid to the Participant.
ARTICLE IV
SEVERANCE BENEFITS
4.1 Right to Severance Benefit. A Participant shall be entitled to
receive from his or her Employer Severance Benefits in accordance with Section
4.3 if the Participant's employment by an Employer shall terminate in any
circumstance specified in Section 4.2(a), whether the termination is voluntary
or involuntary.
4.2 Termination of Employment.
(a) Terminations That Give Rise to Severance Benefits Under The Plan.
(i) Except as set forth in subsection (b) below, any termination
of employment with an Employer by action of the Employer or any of its
affiliates (excluding any transfer to another Employer, but treating
as a termination of employment the sale of any assets or the stock of
the Participant's Employer, unless a plan covering the Participant
with benefits equivalent to those payable hereunder is adopted by the
entity that thereafter employs the Participant), at any time on or
after the Closing Date and before the second anniversary of the
Closing Date, shall entitle a Participant to a Severance Benefit in
accordance with Section 4.3.
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(ii) If, at any time on or after the Closing Date and before the
second anniversary of the Closing Date, a Participant's duties,
responsibilities or annual base salary or bonus opportunity or hourly
wages or employee benefits as an Employee are diminished or reduced in
any material respect in comparison to the duties, responsibilities and
annual base salary, bonus opportunity, incentive compensation
opportunity or hourly wages or employee benefits enjoyed by the
Participant immediately prior to the Closing Date, the Participant may
terminate his or her employment within 90 days of the occurrence of
such reduction and be entitled to a Severance Benefit in accordance
with Section 4.3; provided, however, that the Participant provides the
Company written notice of the occurrence of such reduction and the
Company does not cure the reduction within 15 days of its receipt of
such written notice from the Participant.
(iii) If, at any time on or after the Closing Date and before the
second anniversary of the Closing Date, a Participant is required to be
based at a location more than 30 miles from the location where the
Participant was based and performed services immediately prior to the
Closing Date, the Participant may terminate his or her employment
within 90 days of the notice of such relocation and be entitled to a
Severance Benefit in accordance with Section 4.3.
(b) Terminations That Do Not Give Rise to Severance Benefits Under The
Plan. If a Participant's employment is terminated for "Cause" (as defined
in this subsection (b)), voluntarily by the Participant in the absence of
any event described in subsection (a)(ii) or (iii) of this Section 4.2, or
due to death or disability prior to an event described in Section 4.2(a),
then the Participant shall not be entitled to a Severance Benefit under the
Plan. A termination for Cause shall have occurred if a Participant is
terminated because of:
(i) the continued failure of the Participant to perform
substantially the Participant's duties with the Employer (other than
any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is
delivered to the Participant which specifically identifies the manner
in which the Company believes that the Participant has not
substantially performed the Participant's duties and the Participant is
provided 15 days to cure such failure following such notice; or
(ii) the engaging by the Participant in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the
Company.
4.3 Severance Benefits. If a Participant's employment is terminated in
circumstances entitling the Participant to a Severance Benefit as provided in
Section 4.2(a), subject to Section 4.6, the Participant's Employer or the
Company shall pay the cash lump sum amounts, periodic cash severance payments,
continued benefits coverage and outplacement services, which collectively shall
constitute such Participant's Severance Benefits under the Plan, as follows:
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Benefit Computation of Benefit
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Vacation Pay Earned and accrued vacation pay paid on a bi-
weekly basis commencing after termination.
Periodic Cash Severance Commencing after his or her Vacation Pay has
been exhausted, a Participant shall receive a
periodic cash severance in the form of bi-weekly
payments, with each such payment equal to 1/26th
of the Participant's Defined Pay ("Bi-Weekly
Payments"), for a period based on such
Participant's grade level and years of service
with the Employer, as follows:
(i) Exempt Grade X1 and Above.
A Participant exempt grade X1 or above shall
receive Bi-Weekly Payments over a period of whole
and partial months equal to the sum of (1) and (2)
below, as follows:
(1) Whole Years of Service: Based on whole years
of service, such Participant shall receive Bi-
Weekly Payments for the following number of
months:
Years of Service Months
---------------- ------
1 year 13
2 years 14
3 years 15
4 years 16
5 years 17
6 years 18
7 years 19
8 years 20
9 years 21
10 years 22
11 years 23
12 years 24
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(2) Partial Year of Service: For a partial year of
service, such Participant shall receive Bi-Weekly
Payments over a period equal to 1/12 of a month
for each whole and partial month of such partial
year of service.
The foregoing notwithstanding, (x) no Participant
under this clause (i) shall be entitled to more
than 24 months of Bi-Weekly Payments; (y) a
Participant under this clause (i) with less than
one complete year of service in total with the
Employer shall receive Bi-Weekly Payments for 12
months; and (z) a Participant's service prior to a
two-year "Break In Service" (as defined in the
Company's qualified defined contribution plan,
hereinafter "Break") shall be disregarded.
(ii) Exempt Grade 5.
An exempt grade 5 Participant shall receive a
number of Bi-Weekly Payments that is equal to one-
half of the sum of four weeks for each year or
part thereof of service (disregarding any service
prior to a two-year Break); provided, however,
that in no event shall such Participant receive
less than 12 months of Bi-Weekly Payments.
(iii) All Other Participants (Exempt Grade 4 and
Below).
A Participant who is neither exempt grade 5 nor
exempt grade X1 or above shall receive a number of
Bi-Weekly Payments that is equal to one-half of
the sum of three weeks for each year or part
thereof of service (disregarding any service prior
to a two-year Break); provided, however, that in
no event shall such Participant receive no less
than three Bi-Weekly Payments.
Medical/Dental For the period during which Vacation Pay and
Periodic Cash Severance is paid, continued
coverage under medical benefits arrangements
substantially similar to
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those in effect immediately prior to the Closing
Date at no greater cost to Participant than that
applicable immediately prior to the Closing Date.
Life Insurance For the period during which Vacation Pay and
Periodic Cash Severance is paid, continued
coverage under life insurance arrangements
substantially similar to those in effect
immediately prior to the Closing Date at no
greater cost to Participant than that applicable
immediately prior to the Closing Date.
AD&D For the period during which Vacation Pay and
Periodic Cash Severance is paid, continued
coverage under Accidental Death and Dismemberment
insurance substantially similar to that in effect
immediately prior to the Closing Date at no
greater cost to Participant than that applicable
immediately prior to the Closing Date.
401(k)/Retirement Plan For the period during which Vacation Pay and
Periodic Cash Severance is paid, continued
participation in the Company's tax qualified
defined benefit and defined contribution plans,
and correlative excess benefit programs, on the
same basis as existed immediately prior to the
Closing Date. The determination of age and years
of service of Participants for purposes of the
"age 52 and 10 years of service" and "20 years of
service" early retirement benefits under the
qualified defined benefit plan shall include the
period during which Vacation Pay and Periodic Cash
Severance is paid.
Stock Options Any stock options held by the Participant
immediately prior to the Closing Date shall become
fully vested and exercisable as of the Closing
Date and remain outstanding for the remainder of
each such option's term (unless sooner terminated
for reasons other than termination of employment).
Conditional Stock Units Any conditional stock units held by the
Participant immediately prior to the Closing Date
shall become matured units as of the Closing Date,
but shall be distributable at the end of the 5-
year term under the applicable plan or program
under which such units were granted.
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Outplacement (i) For Participants exempt grade 5 and above,
outplacement services for a period of 6 months
with the option, if the Participant remains
unemployed at the end of the first six months, for
up to an additional six months of such services on
a month to month basis and (ii) for all other
Participants, outplacement services determined by
grade level consistent with the current practice
of the Company.
Notwithstanding any provision of this Plan to the contrary, a
Participant's Severance Benefits under the Section 4.3 shall be reduced by any
severance benefits payable to such Participant outside of this Plan in
connection with the Transaction.
4.4 Other Benefits Payable. The benefits payable hereunder shall be
payable in addition to, and not in lieu of, all other accrued or vested or
earned but deferred compensation, rights, options or other benefits that may be
owed to a Participant upon or following termination, including, but not limited
to, earned but unused vacation, amounts or benefits payable under any bonus or
other compensation plan, stock option plan, stock ownership plan, stock purchase
plan, life insurance plan, health plan, disability plan or similar or successor
plan; provided, however, that the benefits payable under this Plan shall be
reduced by any severance pay or pay in lieu of notice required to be paid to
such Participant under applicable law. Solely with respect to the Transaction,
the Plan shall supersede and replace any severance pay plan, program or
arrangement that may previously have been adopted by any Employer but only as
such applies to an Employee, including the Company's Executive Severance Plan
and Change in Control Retention/Severance Plan, but not any individual
employment agreement between the Employer and any Employee. Benefits payable
under this Plan shall be reduced by any cash severance benefits payable under
any individual employment contract, change of control agreement or other
severance arrangement, as well as payments made by the Company pursuant to the
Worker Adjustment and Retraining Notification Act of 1988 ("WARN").
4.5 Payment Obligation Absolute. The obligations of the Employers to pay
or provide the Severance Benefits described in Section 4.3 shall be absolute and
unconditional and shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
an Employer may have against any Participant. In no event shall a Participant
be obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to or benefits provided to a Participant under
any of the provisions of the Plan, nor shall the amount of any payment hereunder
be reduced by any compensation earned by or benefits provided to a Participant
as a result of employment by another employer.
4.6 Release. Notwithstanding any provision to the contrary, the payment
or receipt of Severance Benefits (excluding Vacation Pay) described in Section
4.3 shall be contingent upon the Participant's execution and return of a valid
release and waiver of claims ("Release") in the form attached as Exhibit A
hereto, and the expiration of the Release's 7-day revocation period.
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ARTICLE V
PARTICIPATING EMPLOYERS
The Plan shall be deemed adopted by any Subsidiary of the Company.
Each Subsidiary shall be an Employer hereunder and the provisions of the Plan
shall be fully applicable to the Employees of that Subsidiary who are
Participants pursuant to Section 3.1.
ARTICLE VI
SUCCESSOR TO EMPLOYER.
The Plan shall bind any successor of an Employer, substantially all
its assets or substantially all its businesses (whether direct or indirect, by
purchase, merger, consolidation or otherwise), in the same manner and to the
same extent that the Employer would be obligated under the Plan if no succession
had taken place.
In the case of any transaction in which a successor would not by the
foregoing provision or by operation of law be bound by this Plan, the Company
shall require such successor expressly and unconditionally to assume and agree
to perform an Employer's obligations under this Plan, in the same manner and to
the same extent that the Employer would be required to perform if no such
succession had taken place. The term "Employer," as used in the Plan, shall
mean the Employer as hereinbefore defined and any successor or assignee to the
business or assets which by reason hereof becomes bound by this Plan.
ARTICLE VII
DURATION, AMENDMENT AND TERMINATION
7.1 Duration. If the Transaction has not occurred, the Plan shall
continue until amended or terminated by the Company. If the Transaction occurs,
the Plan shall continue in full force and effect and shall not terminate or
expire until all Participants who become entitled to any payments hereunder
shall have received such payments in full.
7.2 Termination and Amendment. The Plan shall be subject to amendment,
change, substitution, deletion, revocation or termination (collectively,
"Amendment") by the Company at any time prior to the Closing Date other than at
the request of a third party who has taken steps reasonably calculated to effect
the Transaction unless such third party request is a favorable or beneficial
Amendment for the Participants and is agreed to by the Company. On and after
the Closing Date, the Plan shall not be subject to Amendment in any respect
which adversely affects the rights of a Participant without the consent of that
Participant.
7.3 Form of Amendment. The form of any amendment of the Plan shall be a
written instrument signed by any person authorized to sign by the Board. An
amendment of the Plan in accordance with the terms hereof shall automatically
effect a corresponding amendment to all Participants' rights hereunder.
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ARTICLE VIII
MISCELLANEOUS
8.1 Employment Status. This Plan does not constitute a contract of
employment or impose on the Participant's Employer any obligation to retain the
Participant as an Employee, to change or not change the status of the
Participant's employment, or to change the Company's policies or those of its
Subsidiaries regarding termination of employment.
8.2 Administration. The Plan shall be administered (i) prior to the
Closing Date, by the Chairman of the Board and any individual or individuals to
whom he has delegated certain administrative responsibilities and (ii) on and
after the Closing Date, by the Chairman of the Board, the Chief Executive
Officer of the Company and any individual or individuals to whom they have
delegated certain administrative responsibilities (as applicable in each case,
the "Plan Administrator"). The Plan Administrator shall have the power to make
reasonable rules and regulations required in the administration of the Plan and
to make all determinations necessary for the Plan's administration, except those
determinations which the Plan requires others to make. The Plan Administrator
shall have full and complete authority to construe and interpret the Plan
whenever necessary to carry out its intent and purpose and to facilitate its
administration. In the exercise of such discretionary powers, the Plan
Administrator shall treat all Participants uniformly and equitably under the
Plan. The Plan Administrator shall have the exclusive right to make all
determinations hereunder regarding the participation and eligibility of
Employees for benefits, including, but not limited to, making determinations as
to the eligibility, the amount and benefits payable, the time at which benefits
cease to be payable, and other comparable issues, and the Plan Administrator's
good faith interpretation of the Plan shall be binding and conclusive on all
parties. Any dispute as to the eligibility, type, amount or duration of
benefits under the Plan shall be resolved as provided in Section 8.3 of the
Plan, with such resolution binding and final on all parties to the dispute. No
action may be brought for benefits provided under this Plan or any amendment or
novation thereof, or to enforce any right hereunder, until after the
administrative procedures set forth in Section 8.3 of the Plan have been
exhausted.
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8.3 Claim Procedure. If an Employee or former Employee makes a written
request alleging a right to receive benefits under this Plan or alleging a right
to receive an adjustment in benefits being paid under the Plan, the Company
shall treat it as a claim for benefits. All claims for benefits under the Plan
shall be sent to the Plan Administrator and must be received within 30 days
after termination of employment. If the Plan Administrator determines that any
individual who has claimed a right to receive benefits, or different benefits,
under the Plan is not entitled to receive all or any part of the benefits
claimed, the Plan Administrator will inform the claimant in writing of his
determination and the reasons therefore in terms calculated to be understood by
the claimant. The notice will be sent within 90 days of the claim unless the
Plan Administrator determines additional time, not exceeding 90 days, is needed.
The notice shall make specific reference to the pertinent Plan provisions on
which the denial is based, and describe any additional material or information
that is necessary. Such notice shall, in addition, inform the claimant what
procedure the claimant should follow to take advantage of the review procedures
set forth below in the event the claimant desires to contest the denial of the
claim. The claimant may within 90 days thereafter submit in writing to the
Company a notice that the claimant contests the denial of his or her claim by
the Plan Administrator and desires a further review. The Company shall within
60 days thereafter review the claim and authorize the claimant to appear
personally and review pertinent documents and submit issues and comments
relating to the claim to the persons responsible for making the determination on
behalf of the Company. The Company will render its final decision with specific
reasons therefore in writing and will transmit it to the claimant within 60 days
of the written request for review, unless the Company determines additional
time, not exceeding 60 days, is needed.
8.4 Withholding. All amounts payable pursuant to the terms of this Plan
shall be subject to reduction for any and all applicable federal, state or local
income and employment taxes and any other withholdings required to be made
therefrom at law.
8.5 Right of Recovery. The Company shall have the right to recover any
payment made to an Employee in excess of the amount to which the Employee is
entitled under the terms of this Plan. Such recovery may be from the Employee
or his or her beneficiary thereby enriched.
8.6 Spendthrift Provisions. No benefit, right or interest of any person
hereunder shall be subject to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, or charge, seizure, attachment, or legal,
equitable, or other process, or be liable for, or subject to, the debts,
liabilities, or other obligations of such person, except as expressly authorized
or required by the Plan or otherwise required by a law enforceable with respect
to the Plan as determined in the sole and absolute discretion of the Plan
Administrator.
8.7 Validity and Severability. The invalidity or unenforceability of any
provision of the Plan shall not affect the validity or enforceability of any
other provision of the Plan, which shall remain in full force and effect, and
any prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
8.8 Governing Law. To the extent not preempted by federal law, the
validity, interpretation, construction and performance of the Plan shall in all
respects be governed by the laws of the State of Delaware, without reference to
principles of conflict of law.
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EXHIBIT A
PENNZENERGY COMPANY SPECIAL SEVERANCE PLAN
RELEASE AND WAIVER OF CLAIMS
In connection with the anticipated merger by and among Devon Energy
Corporation, Devon Delaware Corporation, Devon Oklahoma Corporation and
PennzEnergy Company ("Transaction"), the undersigned employee ("Employee") is
eligible for Severance Benefits under the PennzEnergy Company Special Severance
Plan (the "Plan").
In consideration of the agreement of PennzEnergy Company, and, on and
after the closing date of the Transaction, Devon Energy Corporation
(collectively or individually, as applicable, "Company") to provide Employee the
benefits, payments and other items described in the Plan, some of which are in
addition to anything to which he/she is already entitled and the receipt and
sufficiency of which are hereby acknowledged, Employee hereby knowingly and
voluntarily releases and forever discharges PennzEnergy Company, Devon Energy
Corporation, Devon Delaware Corporation, Devon Oklahoma Corporation, Pennzoil-
Quaker State Company, and their officers, directors, agents, servants, and
employees, their successors, assigns, and insurers, and their parents,
subsidiaries and affiliates, and any and all persons, firms, organizations, and
corporations from any and all damages, losses, causes of action, expenses,
demands, liabilities, and claims on behalf of Employee, Employee's heirs,
executors, administrators, and assigns with respect to all matters relating to
Company and Employee hereby accepts the severance benefits and other items
described in full settlement of all such damages, losses, causes of action,
expenses, demands, liabilities, and claims Employee now has or may have with
respect to such matters, as evidenced by Employee's execution of this release
and waiver of claims agreement ("Release").
This Release includes, but is not limited to, claims arising under the
Title VII of the Civil Rights Act of 1964, as amended; the Age Discrimination in
Employment Act, as amended; the Older Workers' Benefit Protection Act of 1990,
as amended; the Civil Rights Act of 1866, as amended; the Civil Rights Act of
1991; the Rehabilitation Act of 1973, as amended; the Americans with
Disabilities Act of 1990; the Worker Adjustment and Retraining Notification Act
of 1988; the Pregnancy Discrimination Act of 1978; the Equal Pay Act; the
Employee Retirement Income Security Act of 1974, as amended; the Family and
Medical Leave Act of 1993; the Fair Labor Standards Act; the Occupational Health
and Safety Act; the Texas Commission on Human Rights Act; the Texas Labor Code;
and any claims for breach of contract, tort, including, but not limited to,
fraudulent inducement or misrepresentation, defamation, slander, wrongful
termination or other retaliation claims in connection with workers' compensation
claims or whistleblower status or any claim under any other state or federal
statute or regulation, in equity or at common law.
Further, by accepting the payments described, Employee agrees not to
sue Company or the related persons and entities described above. Employee
affirms and agrees that his/her employment relationship has ended and waives all
rights in connection with such relationship except
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to vested benefits and the payments and benefits described in this Release.
Employee acknowledges that Company has not promised him/her continued employment
nor represented that Employee will be rehired in the future. In addition, in
signing this Release, Employee expressly represents that no promise or agreement
which is not expressed in this Release has been made to him/her and that
Employee is relying on his/her own judgment in signing this Release and is not
relying on any statement or representation of Company, its affiliates or any of
their agents. Employee acknowledges that Employee is signing with full knowledge
and consent which was not procured through fraud, duress or mistake and that
this Release has not had the effect of misleading or failing to inform Employee.
Employee shall have forty-five (45) days to decide whether to sign
this Release and be bound by its terms. Employee shall have the right to revoke
or cancel this Release within seven (7) days after Employee has signed it. This
cancellation or revocation can be accomplished by delivery of a written
notification to Company. In the event that this Release is canceled or revoked,
Company shall have no obligation to furnish the payments described in this
Release. EMPLOYEE ACKNOWLEDGES THAT EMPLOYEE HAS BEEN ADVISED IN WRITING TO
CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS RELEASE AND HAS HAD AN ADEQUATE
OPPORTUNITY TO SEEK ADVICE OF HIS/HER OWN CHOOSING. Employee acknowledges that
he/she has read this Release, has had an opportunity to ask questions and have
it explained to him/her and that Employee understands that this Release will
have the effect of knowingly and voluntarily waiving any action Employee might
pursue, including breach of contract, personal injury, retaliation,
discrimination on the basis of race, age, gender, national origin, or disability
and any other claims arising prior to the date of this Release. Further,
Company agrees to Release Employee from all claims arising out of his/her
employment with Company.
Employee acknowledges that payment of Severance Benefits by Company is
not an admission by Company or its officers, directors, agents, servants, and
employees, their successors, assigns, and insurers, and their parents,
subsidiaries and affiliates, that they engaged in any wrongful or unlawful act
or violated any federal or state law or regulation.
Should any of the provisions set forth in this Release be determined
to be invalid by a court, agency or other tribunal of competent jurisdiction, it
is agreed such determination shall not affect the enforceability of other
provisions of this Release.
Employee acknowledges that this Release sets forth the entire
understanding and agreement between Employee and Company concerning the subject
matter of this Release and supersedes any prior or contemporaneous oral and/or
written agreements or representations, if any, between Employee and Company.
The purpose of the arrangements described in this Release is to arrive
at a mutually agreeable and amicable basis upon which to separate Employee's
employment with Company. Employee and Company agree to refrain from any
criticisms or disparaging comments about each other or in any way relating to
Employee's employment with or separation from Company.
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Furthermore, Employee agrees that he/she has returned or will return
immediately, and will maintain in strictest confidence and not use in any way,
any proprietary, confidential, or other nonpublic information or documents
relating to the business and affairs of Company and its affiliates. For the
purposes of this Release, "proprietary, confidential or other nonpublic
information" shall mean any information concerning Company or its affiliates
which Employee developed or learned through his/her employment and which is not
generally known or available outside of Company. Such information, without
limitation, includes information, written or otherwise, regarding Company's
earnings, expenses, material sources, equipment sources, customers and
prospective customers, business plans, strategies, practices and procedures,
prospective and executed contracts, maps, computer files and other business
arrangements. Employee acknowledges and agrees that all records, papers,
reports, computer programs, strategies, documents (including, without
limitation, memoranda, notes, files and correspondence), opinions, evaluations,
inventions, ideas, technical data, products, services, processes, procedures,
and interpretations that are, or have been, produced by Employee or any other
employee, officer, director, agent, contractor, or representative of Company
whether provided in written or printed form, or orally, all comprise
confidential and proprietary business information. Employee understands and
agrees that in the event of any breach of this provision, or threatened breach,
by Employee, Company may, in its discretion, discontinue any or all payments
provided for in the Plan and recover any and all payments already made and
Company shall be entitled to apply to a court of competent jurisdiction for such
relief by way of specific performance, restraining order, injunction or
otherwise as may be appropriate to ensure compliance with this provision.
Employee further agrees that the existence and all terms of this
Release shall be kept strictly confidential and that any disclosure to anyone
for any purpose whatsoever (save and except disclosure to Employee's spouse,
financial advisors or institutions for financial statement purposes, attorney,
or as required by law) by Employee or his/her agents, representatives, heirs,
children, spouse, employees or spokespersons shall be a breach of this Release
and Company may elect either to cease performance hereunder or enforce this
Release; provided, however, in the event Company believes a breach of
confidentiality has occurred, Employee will be given notice and thirty (30) days
to respond.
Should Employee be contacted or served with legal process seeking to
compel Employee to disclose any such information, Employee agrees to notify
Company's General Counsel immediately, in order that Company may seek to resist
such process if it so chooses. If Employee is called upon to serve as a witness
or consultant in or with respect to any potential litigation, litigation, or
regulatory proceeding, Employee agrees to cooperate with Company to the full
extent permitted by law, and Company agrees that any such call shall be with
reasonable notice, shall not unnecessarily interfere with Employee's later
employment, and shall provide for payment for Employee's time and costs expended
in such matters.
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This Release shall be governed by and construed in accordance with the
laws of the State of Texas, and where applicable, the laws of the United States.
- ------------------------- -----------------------------
Employee Signature Company Representative
- ------------------------- -----------------------------
Date Signed Date Signed
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Employee Printed Name
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