Exhibit 10.17
ENERGY PARTNERS, LTD.
KEY EMPLOYEE RETENTION PLAN
Energy Partners, Ltd., a corporation organized and existing under the
laws of the State of Delaware (the "Company"), hereby establishes the Energy
Partners, Ltd. Key Employee Retention Plan (the "Plan"), effective as of April
15, 2003 (the "Effective Date").
ARTICLE I
PURPOSE
The Plan is intended to be an unfunded deferred compensation
arrangement for the benefit of key employees of the Company and its Affiliates
(as defined below), within the meaning of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). As such, this Plan is not intended
to constitute an employee benefit plan under ERISA. In accordance with such
intent, any obligation of the Company to pay benefits hereunder shall be deemed
to be an unsecured promise, and any right to enforce such obligation shall be
solely as a general creditor of the Company. The Plan is not intended to
constitute a qualified employee benefit plan within the meaning of Section
401(a) of the Internal Revenue Code of 1986, as amended (the "Code").
ARTICLE II
DEFINITIONS
2.1 Affiliate means any corporation or other form of entity of which
the Company owns, directly or indirectly, 80% or more of the total combined
voting power of all classes of stock or other equity interests.
2.2 Beneficiary means the person, persons, entity or entities
designated by a Participant on Exhibit A hereto to receive death benefits from
the Plan.
2.3 Benefit Account means a recordkeeping account maintained on the
books of the Company with respect to each Participant hereunder.
2.4 Benefit Credit means the amount credited to a Participant's Benefit
Account, which amount shall be determined by the Committee in accordance with
Section 4.2 hereof.
2.5 Benefit Commencement Date means the date on which the payment of a
Participant's Retention Benefit first commences; such date shall be determined
in accordance with Section 5.3 hereof.
2.6 Board or Board of Directors means the Board of Directors of the
Company.
2.7 Change of Control means and shall be deemed to have occurred in
accordance with Section 7(b) of the Energy Partners, Ltd. Amended and Restated
2000 Long-Term Stock
Incentive Plan, as the same may be amended from time to time, or in accordance
with the provisions of any successor thereto.
2.8 Committee means the members of the Compensation Committee of the
Board of Directors or such other committee as may be designated by the Board of
Directors to administer this Plan.
2.9 Disabled or Disability means that a Participant is actually
receiving benefits under the Company's (or an Affiliate's) separate long-term
disability plan and is permanently disabled.
2.10 Distribution Date means the last business day occurring in March.
2.11 Employment Period means a Participant's consecutive period of
employment with the Company or an Affiliate, which shall commence as of the date
on which he or she is designated as a Participant hereunder and shall end on the
anniversary of such date determined under Section 5.3 hereof.
2.12 (reserved)
2.13 Participant means an officer, manager or other key employee of the
Company or an Affiliate who is designated in accordance with Article III hereof.
2.14 Plan means this Energy Partners, Ltd. Key Employee Retention Plan,
as may be amended from time to time.
2.15 Retention Benefit means the benefit described in Article V hereof,
which is payable to a Participant upon the completion of his or her Employment
Period.
2.16 Plan Year means each twelve month period beginning on April 1, and
ending on March 31.
2.17 Valuation Date means March 31st of each year.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
Participants hereunder shall be designated in the discretion of the
Committee, from time to time, and may be officers, managers and other key
technical employees of the Company or an Affiliate. Such persons may be
designated individually or by groups or categories, in the discretion of the
Committee. The Committee shall notify each officer, manager or other key
employee of his or her designation as a Participant in the Plan.
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ARTICLE IV
BENEFIT ACCOUNTS
4.1 Benefit Accounts. A Benefit Account shall be established and
maintained for each Participant hereunder. Such account shall be a bookkeeping
entry only. The establishment and maintenance of such account shall not be
deemed to create a trust or other form of fiduciary relationship between the
Company (or an Affiliate) and any Participant or Beneficiary or otherwise
create, for the benefit of any Participant or Beneficiary, an ownership interest
in or expectation of any specific asset of the Company or an Affiliate.
4.2 Credits to Benefit Accounts. Each Plan Year, the Committee may
allocate one or more Benefit Credits to a Participant's Benefit Account. The
amount of each such credit shall be determined in the discretion of the
Committee and shall not be less than zero. The amount of any such credit need
not be uniform as to each Participant.
4.3 Determination of Investment Rate. Benefit Credits to a
Participant's Benefit Account bear no investment rate and shall not be credited
with interest, dividends, or any other form of yearly earnings or accretion
4.4 Adjustment to Benefit Accounts. As of each Valuation Date, a
Participant's Benefit Account shall be adjusted as follows:
a. There shall be credited to such account any Benefit Credit
designated by the Committee in accordance with Section 4.2
hereof.
b. Any distribution or withdrawal since the immediately preceding
Valuation Date shall be deducted from such account.
4.5 Valuation Notice. At least as frequently as each Valuation Date,
the Committee shall furnish each Participant with a valuation notice that
includes the amounts credited to the Participant's Benefit Account and any other
changes to such account since the immediately preceding Valuation Date.
ARTICLE V
RETENTION BENEFITS
5.1 Form and Amount of Payment. A Participant's Retention Benefit shall
be distributed in a series of ten substantially equal annual installment
payments, subject to the following:
a. The amount of each installment shall be equal to one-tenth of the
Participant's Benefit Account as of the last day of the Plan Year
immediately preceding the first Distribution Date.
b. No Investment Rate shall be credited to the Participant's Benefit
Account during the period in which such installments are paid.
5.2 Commencement of Payments. The payment of a Participant's Retention
Benefit shall commence as of the Distribution Date that coincides with or
immediately follows such
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Participant's Benefit Commencement Date; thereafter, installment payments shall
be made annually as of each Distribution Date.
5.3 Determination of Benefit Commencement Date. A Participant's Benefit
Commencement Date shall be the date on which each Participant completes his or
her Employment Period, determined as follows:
<Table>
<Caption>
AGE WHEN DESIGNATED EMPLOYMENT PERIOD
AS A PARTICIPANT
45 or older 10 years
Less than 45, but older than 43 11 years
Less than 43 12 years
</Table>
5.4 Effect of a Termination of Employment. If a Participant ceases to
be employed by the Company or an Affiliate for any reason prior to the
completion of his or her Employment Period, he or she shall ordinarily forfeit
the amount then credited to his or her Benefit Account, and no benefit shall be
due from the Plan. Notwithstanding the foregoing, the Committee, in its
discretion, may elect to pay a Retention Benefit to such Participant, in such
amount and form as the Committee then deems appropriate.
5.5 Early Payments. Notwithstanding any provision of this Plan to the
contrary, the Committee may direct the distribution to any Participant (or
Beneficiary) in the form of an immediate single-sum payment all or any portion
of the amount then credited to a Participant's affected Benefit Account, if an
Adverse Determination is made with respect to such Participant. For this
purpose, the term "Adverse Determination" shall mean that, based upon Federal
tax or revenue law, a published or private ruling or similar announcement issued
by the Internal Revenue Service, a regulation issued by the Secretary of the
Treasury, a decision by a court of competent jurisdiction, a closing agreement
made under Section 7121 of the Code that is approved by the Internal Revenue
Service and involves such Participant or a determination of counsel, a
Participant has or will recognize income for Federal income tax purposes with
respect to any amount that is or will be payable under this Plan before it is
otherwise to be paid hereunder.
Further, notwithstanding any provision of the Plan to the contrary, the
Committee may direct the trustee of any trust established pursuant to Section
8.7 hereof to distribute to any Participant in the form of an immediate
single-sum payment all or any portion of the amount then credited to a
Participant's Benefit Account based upon a change in ERISA, a published advisory
opinion or similar announcement issued by the Department of Labor, a regulation
issued by the Secretary of Labor, a decision by a court of competent
jurisdiction, an agreement between such Participant and the Department of Labor
or similar agency or an opinion of counsel, such Participant is not a
"management" or "highly compensated" employee or this Plan is not an "unfunded"
plan within the meaning of ERISA.
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ARTICLE VI
DEATH, DISABILITY AND OTHER BENEFITS
6.1 Beneficiary Designation. A Participant (or Beneficiary in
accordance with Section 6.4 hereof) shall be entitled to designate one or more
Beneficiaries, substantially in the form attached hereto as Exhibit A. Any such
designation may be modified, at any time, by delivery of a new designation to
the Committee. Any designation or modification shall be effective upon its
receipt and acceptance by the Committee. If a Participant (or Beneficiary) fails
to designate a Beneficiary or if a designation cannot be administered, the
estate of the decedent shall be deemed a Beneficiary hereunder.
6.2 Participant's Death Before Benefit Commencement Date. If a
Participant dies during his or her Employment Period, the Participant's
Beneficiary shall be paid a death benefit (in lieu of any benefit otherwise
provided under the Plan) in the form of ten substantially equal installment
payments, commencing as soon as practicable after the date of the Participant's
death and payable in accordance with the provisions of Sections 5.1 and 5.2
hereof. The amount of such benefit shall equal the amount set forth on Schedule
B hereto, as the same may be modified or amended by the Committee, in its sole
discretion, from time to time. In a manner similar to that reflected in 5.1,
one-tenth of such benefit as set forth on Schedule B shall be paid yearly; in no
event, however, shall the amount payable under this Section 6.2 be less than the
amount credited to a Participant's Benefit Account as of the date of his or her
death.
6.3 Participant's Death After Benefit Commencement Date. If a
Participant dies after his or her Benefit Commencement Date, the Company shall
continue to pay to the Participant's Beneficiary the remaining Retention
Benefit, if any, that, as scheduled, would otherwise be payable to the deceased
Participant.
6.4 Death of Beneficiary. In the event of the death of a Beneficiary,
the remaining benefit to which such Beneficiary was entitled at the time of his
or her death, if any, shall be payable to the Beneficiary or Beneficiaries
designated by such Beneficiary.
6.5 Participant's Disability Before Benefit Commencement Date. If a
Participant becomes Disabled during his or her Employment Period, the amount
then credited to his or her Benefit Account shall be paid to such Participant in
the form of a single-sum payment as soon as practicable following the date of
such Disability.
6.6 Change of Control Benefit. Upon the occurrence of a Change of
Control and notwithstanding any provision of this Plan to the contrary, each
Participant or Beneficiary hereunder shall receive an immediate single-sum
benefit equal to:
a. If the Participant has not completed his or her Employment
Period, the amount set forth on Schedule C hereto as the same may
be modified or amended by the Committee, from time to time, but
in no event less than the amount credited to his or her Benefit
Account as of the date of such change.
b. If payment of a Participant's Retention Benefit has commenced,
the Participant shall receive the amount then credited to his or
her Benefit Account.
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c. If a Beneficiary is receiving benefits hereunder, such
Beneficiary shall receive the amount then credited to the
deceased Participant's Benefit Account.
Any such payment shall be in lieu of any benefit otherwise provided under the
Plan.
6.7 Facility of Payment. If the Committee shall find that any person to
whom any amount is payable under the Plan is unable to care for such person's
affairs because of illness or accident, or is a minor, or has died, then any
payment due such person or such person's estate (unless a prior claim therefor
has been made by a duly appointed legal representative) may, if the Committee so
elects, be paid to such person's spouse, a child, a relative, an institution
maintaining or having custody of such person, or any other person deemed by the
Committee to be a proper recipient on behalf of such person otherwise entitled
to payment. Any such payment shall be a complete discharge of the liability of
the Plan and the Company therefor.
ARTICLE VII
PLAN ADMINISTRATION
7.1 Powers. The Committee shall administer this Plan and all matters
related thereto. The Committee shall have the discretionary power and authority
to interpret the provisions of this Plan and shall determine all questions
arising under the Plan including, without limitation, all questions concerning
administration, eligibility, the determination of benefits hereunder, and the
interpretation of any form or other document related to this Plan. In addition,
the Committee shall have the authority to prescribe, amend and rescind rules and
administrative procedures relating to the operation of this Plan, to instruct
any trustee as to the investment of any asset held for the purposes described in
Section 8.7, hereof, and to correct any defect, supply any omission or reconcile
any inconsistency in this Plan.
Any determination by the Committee need not be uniform as to all or any
Participant or Beneficiary hereunder. Any such determination shall be conclusive
and binding on all persons. The Committee shall engage the services of such
independent actuaries, accountants, attorneys and other administrative
personnel, as it deems necessary to administer the Plan.
7.2 Delegation of Administrative Authority. The Committee, in its sole
discretion, may delegate to officers of the Company (or an Affiliate) all or any
portion of the power and authority granted to it hereunder, subject to such
limitations, restrictions and conditions as the Committee may provide. When
acting in accordance with such delegation (whether made orally or in writing)
such persons shall be deemed to possess the power and authority granted to the
Committee hereunder.
7.3 Expenses. Any cost or expense of administering the Plan shall be
paid by the Company and/or its Affiliates.
7.4 Exemption from Liability; Indemnification. The members of the
Committee and the persons acting on behalf of the Committee shall be free from
liability for their acts, omissions, and conduct in the administration of the
Plan, except for those acts, omissions and conduct resulting from willful
misconduct or lack of good faith.
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The Company shall indemnify each member of the Committee, the persons
acting on behalf of the Committee and any other employee, officer or director of
the Company or its Affiliates against any claims, loss, damage, expense and
liability, by insurance or otherwise, reasonably incurred by the individual in
connection with any action or failure to act by reason of performance of an
authorized duty or responsibility for or on behalf of the Company pursuant to
the Plan unless the same is judicially determined to be the result of the
individual's gross negligence or willful misconduct. Such indemnification by the
Company shall be made only to the extent such expense or liability is not
payable to or on behalf of such person under any liability insurance coverage.
The foregoing right shall be in addition to any other rights to which such
person may be entitled to as a matter of law.
7.5 Small Benefits. If the value of any benefit payable to any person
hereunder is $10,000 or less (determined at any time after a Participant's
Benefit Commencement Date), such amount shall be distributed in the form of a
single-sum payment as of the Distribution Date that coincides with or
immediately follows the date on which such value is determined. No additional
benefit shall be payable hereunder with respect to such Participant or
Beneficiary, as the case may be.
ARTICLE VIII
PARTICIPANTS' RIGHTS
8.1 Spendthrift Provision. Neither a Participant nor any other person
shall have any right to commute, sell, assign, transfer, pledge, anticipate,
mortgage or otherwise encumber any amount payable hereunder. No amount payable
under this Plan shall, prior to actual payment, be subject to seizure or
sequestration for the payment of any debt, judgment, alimony or separate
maintenance owed by a Participant or any other person. No amount payable under
this Plan shall be transferable by operation of law in the event of a
Participant's or other person's bankruptcy or insolvency.
8.2 No Continued Employment. No Participant shall have any right to
continue in the employ of the Company or an Affiliate for any period of time or
any right to continue his or her present or any other rate of compensation on
account of participation in this Plan.
8.3 Offset. If, at the time of any distribution hereunder, a
Participant or his or her Beneficiary is indebted to the Company or an
Affiliate, then any distribution to be made to the Participant, his or her
Beneficiary or both, may, at the discretion of the Committee, be reduced by the
amount of such indebtedness.
8.4 Claim for Benefits. Each Participant or Beneficiary claiming any
right under this Plan must give written notification thereof to the Committee.
If a claim is denied, the denial shall be contained in a written notice stating
the following:
a. The specific reason for the denial;
b. Specific reference to the Plan provision on which the denial is
based;
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c. Description of additional information necessary for the claimant
to present his or her claim, if any, and an explanation of why
such material is necessary; and
d. An explanation of the Plan's claim review procedure.
The claimant will have 60 days to request a review of any denial by the
Committee. The request for review must be in writing and delivered to the
Committee, which will then provide a full and fair review. The claimant may
review pertinent documents and may submit issues and comments in writing. The
decision by the Committee with respect to the review must be given within 60
days after receipt of the request, unless special circumstances require an
extension (such as for a hearing). In no event shall the decision be delayed
beyond 120 days after receipt of the request for review. The decision shall
include specific reasons and refer to the specific Plan provisions on which it
is based.
8.5 Obligation for Benefit Payments. Notwithstanding any provision of
this Plan to the contrary, the payment of benefits under this Plan shall remain
the obligation of the Company and its Affiliates. In the event the Company
designates a third-party as the payor of the benefits and the assets of such
third-party are insufficient to meet the payment obligations of the Company or
an Affiliate, the Company or such Affiliate shall remain responsible for such
deficiency.
8.6 Tax Withholding and Reporting. The Company, an Affiliate or any
third-party payor shall withhold from the payment benefits hereunder any amount
required to be withheld under applicable federal or state tax laws.
8.7 No Trust or Funding Created. The obligations of the Company to make
payments hereunder shall constitute a liability of the Company to a Participant
or Beneficiary, as the case may be. Such payments shall be made from the general
assets of the Company, and the Company shall not be required to establish or
maintain any special or separate fund, purchase or acquire life insurance on a
Participant's life, or otherwise to segregate assets to ensure that such payment
shall be made, and neither a Participant nor any Beneficiary shall have any
interest in any particular asset of the Company by reason of its obligations
hereunder. Nothing contained in the Plan shall create or be construed as
creating a trust of any kind or any other fiduciary relationship between the
Company (or any subsidiary or affiliate of the Company) and a Participant or any
other person. The rights and claims of a Participant or a Beneficiary to a
benefit provided hereunder shall have no greater or higher status than the
rights and claims of any other general, unsecured creditor.
ARTICLE IX
MISCELLANEOUS
9.1 Termination of Plan. The Committee shall have the right, at any
time, to terminate this Plan. The Committee shall provide written notice of such
termination to each Participant hereunder. In the event a termination hereunder,
each Participant (or Beneficiary of a
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designated Participant) shall receive an immediate single-sum payment equal to
the amount then credited to his or her Benefit Account.
9.2 Amendment and Modification. The Committee may amend this Plan at
any time, in its discretion; provided, however, that any amendment adversely
affecting amounts then credited to a Participant's Benefit Account shall be
approved by each affected Participant (or his or her Beneficiary).
Notwithstanding the foregoing, however, the consent of any Participant or
Beneficiary shall not be required if the Committee reasonably determines that an
amendment is necessary to ensure that amounts credited to a Participant's
Benefit Account are not subject to federal income taxation until withdrawn or
distributed or to ensure that the Plan is deemed to be unfunded or maintained
for the benefit of a select group of management employees within the meaning of
ERISA.
9.3 Funding. The Company may, in its discretion, establish one or more
trusts in connection with the adoption of this Plan. Each year during the
continuance of this Plan, the Committee may designate amounts or property to be
added to any such trust on behalf of the Company or an Affiliate. The property
comprising the assets of any such trust, including any insurance policy on the
life of a Participant purchased by such trust or contributed to such trust by
the Company or an Affiliate, shall at all times remain the property of such
trust. The trustee of any such trust shall distribute the assets comprising such
trust in accordance with the provisions of this Plan and the trust agreement,
all as instructed by the Committee, but in no event shall such trustee
distribute the assets of such trust to or for the benefit of the Company or any
Affiliate, except as provided in the trust agreement.
9.4 No Effect on Other Benefits. Any compensation paid or benefits
provided to a Participant shall be in addition to, and not in lieu of, the
benefits provided to such Participant under this Plan. Nothing in this Plan
shall be construed as limiting, varying or reducing the provision of any benefit
available to a Participant, such Participant's estate or Beneficiary pursuant to
any employment agreement, retirement plan, including any qualified pension or
profit-sharing plan, health, disability or life insurance plan or any other form
of agreement or arrangement between the Company and/or an Affiliate and a
Participant.
9.5 Governing Law. This Plan is governed by the internal laws of the
State of Louisiana, in all respects, including matters of construction, validity
and performance.
9.6 Company's Protection. Each Participant shall be deemed to have
agreed to cooperate with the Company by furnishing any and all information
reasonably requested by the Committee in order to facilitate the payment of
benefits hereunder, including, without limitation, the taking of such physical
examinations as the Company or the Committee may deem necessary and taking such
other action as may reasonably be requested by the Company or the Committee. If
a Participant refuses to cooperate, is uninsurable or is insurable at other than
standard rates, the Committee, in its sole discretion, may determine that the
Participant is ineligible to participate hereunder.
If insurance on the life of any Participant is obtained and such
Participant commits suicide during the two-year period beginning on the date of
his or her participation in this Plan or
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if a Participant hereunder makes any material misstatement of information or
nondisclosure of medical history, the Committee, in its sole discretion, may
terminate the participation of any such Participant hereunder, without the
payment of a Retention or other benefit.
No Participant or Beneficiary shall have the right to, or claim under
or against, any insurance policy on the life of the Participant obtained by the
Company or an Affiliate or any asset held in trust to help defray the cost
incurred in providing benefits under this Plan. Any such policy or other
property shall be, and remain, a general, unpledged asset of the Company or an
Affiliate or the trust, as the case may be.
9.7 Entire Plan. This document, any formal written amendment hereto and
any elections or designations required herein constitute the entire agreement
among each Participant and the Company and its Affiliates concerning the
benefits described herein. Such documents contain all the terms and provisions
of the Plan and shall constitute the entire Plan, and any other alleged terms or
provisions, whether oral or written, shall be of no effect.
9.8 Binding Effect. Obligations incurred by the Company pursuant to
this Plan shall be binding upon the Company, including its successors and
assigns, and inure to the benefit of each Participant and his or her Beneficiary
or Beneficiaries.
THIS PLAN was approved by the Compensation Committee of the Board of
Directors of Energy Partners, Ltd. on March 18, 2003.
ENERGY PARTNERS, LTD.
By: Richard A. Bachmann
-----------------------------------
Its: Chairman, President, and CEO
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Executive Officers Participating
in the Energy Partners, Ltd. Key
Employee Retention Plan:
T. Rodney Dykes