EXHIBIT 10.1
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (“
Agreement ”) is entered into by and between Energy
Partners, Ltd. (“ EPL ” or the “
Company ”), and GARY HANNA (“ Executive
”). EPL and Executive may hereinafter be referred to jointly
as the “Parties.”
The Parties to this Agreement, in
consideration of the mutual covenants contained herein, agree upon
the following terms of employment of Executive by the
Company:
1. Effective Date and
Term .
Executive’s employment with the Company subject to this
Agreement shall commence on the effective date (the “
Effective Date ”) of the Second Amended Joint Plan of
Reorganization of Energy Partners, Ltd. and Certain of its
Subsidiaries under Chapter 11 of the Bankruptcy Code, as Modified
as of July 31, 2009 (the “ Plan of Reorganization
”). Subject to the terms and conditions herein, the Company
hereby employs Executive, and Executive hereby accepts employment
for a term commencing on the Effective Date and continuing for a
period of three (3) years (the “ Term ”);
provided, however, that the Term may be terminated prior to
the expiration thereof in accordance with Paragraph 4 . The
term “ Term of Employment ” means the period
from the Effective Date until the expiration or termination of the
Term pursuant to this Paragraph 1 or in accordance with
Paragraph 4 of this Agreement.
2. Duties
. Executive will serve the Company
in the capacity of Chief Executive Officer and, in that capacity,
Executive will perform his duties to the best of his abilities,
subject to the oversight of the Company’s Board of Directors
(the “ Board ”). The Company agrees that
Executive shall have duties and responsibilities consistent with
the position set forth above in a company the size and of the
nature of EPL and shall at all times have such discretion and
authority as is required in the carrying out of Executive’s
duties in a proper and efficient manner, subject to such limits as
the Board may impose through the Company’s authorizing
resolutions or otherwise.
During the Term of Employment,
Executive shall devote all of his professional attention, on a full
time basis, to the business and affairs of the Company and shall
use his best efforts to advance the best interest of the Company.
It is acknowledged that Executive lives in Houston, Texas, and
that, unless and until Executive moves to New Orleans, Louisiana,
Executive will commute to New Orleans, Louisiana (if the
Company’s primary offices remain in New Orleans);
provided, however, that, for up to one year after the
Effective Date, the Company shall pay for Executive to commute to
New Orleans, Louisiana, as set forth below.
During the Term of Employment,
Executive shall not, without the prior approval of the Board, which
approval will not be unreasonably withheld, (a) directly or
indirectly render services to, or otherwise act in a business or
professional capacity on behalf of or for the benefit of, any other
“ Person ” (as defined below) as an employee,
advisor, member of a board or similar governing body, independent
contractor, agent, consultant, representative or otherwise, whether
or not compensated, or (b) accept appointment to or work in
any capacity for any charitable or not-for-profit organization
(except as provided below); and, in the case of clauses
(a) and (b), to the extent Board approval is granted for
Executive’s engagement in any such activity, Executive shall
only engage in such activity to the extent that such activity does
not unreasonably conflict
|
|
|
|
EMPLOYMENT
AGREEMENT
|
|
Page 1
|
or interfere with the performance of
Executive’s duties to the Company. Notwithstanding the
foregoing, Executive shall be entitled to manage his personal
investments and affairs, to engage in public speaking, and to
serve, from time to time, on the board of directors (or in a
comparable position) of up to two (2) charitable organizations
selected by Executive, provided that such activities do not
unreasonably conflict or interfere with the performance of
Executive’s duties. “ Person ” or “
person ” as used in this Agreement means any
individual, partnership, limited partnership, corporation, limited
liability company, trust, estate, cooperative, association,
organization, proprietorship, firm, joint venture, joint stock
company, syndicate, company, committee, government or governmental
subdivision or agency, or other entity.
3. Compensation
.
(a) Salary . For all duties
to be performed by Executive in any capacity hereunder, Executive
shall be paid a base salary (“ Base Salary ”) at
an annual rate, to be determined by the Board, of not less than
$400,000.00 per year, payable in accordance with the normal payroll
practices and procedures of the Company and subject to normal
withholdings.
(b) Bonus Compensation .
During the Term of Employment, Executive shall be entitled to
receive, in addition to his Base Salary, an annual bonus (each, an
“ Annual Bonus ”) awarded at the discretion of
the Board upon recommendation of the Compensation Committee and
based upon Executive’s performance. Each Annual Bonus will be
paid in a grant of the Company’s common stock. The
Executive’s target Annual Bonus for each year shall be
between 25% and 125% (inclusive) of Executive’s Base Salary
in effect for the calendar year to which such Annual Bonus relates
(the “ Target Bonus ”). The establishment of any
Target Bonus and the determination and payment of any Annual Bonus
shall be governed by the Energy Partners, Ltd. 2009 Long Term
Incentive Plan (the “ LTIP ”) or such other plan
as adopted by the Company governing annual incentive awards;
provided, however, that any stock grant made to pay any
Annual Bonus shall not be made subject to any forfeiture
provisions, transfer restrictions (other than those required by
law) or repurchase provisions (other than the Company’s right
under the LTIP to repurchase all or any portion of the common stock
awarded pursuant to such stock grant if such common stock is not
required to be registered under Section 12 of the Securities
Exchange Act of 1934, as amended). For any partial year of
employment, the amount of such Annual Bonus shall be pro-rated for
the portion of the year that Executive was in the employ of the
Company. To the extent payable pursuant to any applicable plan of
the Company, Executive’s Annual Bonus will be paid to
Executive no later than March 15 of the calendar year
following the calendar year to which the Annual Bonus
relates.
(c) Other Benefits . During
the Term of Employment, Executive shall be eligible for
participation in and to receive all benefits under welfare benefit
plans, practices, policies and programs of the Company, including
the Company’s medical, dental, vision, disability, and 401(k)
plans as may be in effect from time to time for other similarly
situated executives of the Company (“ Employee
Benefits ”). Executive shall be entitled to four weeks of
paid vacation and sick leave in accordance with the Company’s
prevailing policy for its executives. Unused vacation days will not
be carried over into the following calendar year.
(d) Expense Reimbursement .
Executive shall be entitled to reimbursement of all reasonable and
necessary expenses incurred on behalf of the Company during the
Term of
EMPLOYMENT AGREEMENT
Employment in accordance with the
Company’s standard policies and procedures, which provide an
objectively determinable nondiscretionary definition of the
expenses eligible for reimbursement. Notwithstanding any provision
of this Agreement to the contrary, the amount of expenses for which
Executive is eligible to receive reimbursement during any calendar
year shall not affect the amount of expenses for which Executive is
eligible to receive reimbursement during any other calendar year
within the Term of Employment. Reimbursement of expenses under this
Paragraph 3(d) with respect to which the Company’s
standard policies and procedures have been followed shall be made
on or before the last day of the month following the month in which
the Executive has requested reimbursement and submitted
documentation for such expenses in accordance with the
Company’s standard policies and procedures. Executive is not
permitted to receive a payment or other benefit in lieu of
reimbursement under this Paragraph 3(d) .
(e) Stock Options . Executive
shall receive an initial award of stock options to be granted on
the Effective Date (the “ Initial Stock Options
”) and will be entitled to participate annually thereafter in
any additional awards of stock options (together with the Initial
Stock Options, the “ Stock Options ”) by the
Company as determined by the Board in its discretion. The Initial
Stock Options shall be in an amount representing the right to
purchase 68,116 shares of the Company’s common stock, with an
exercise price of $10.00 per share or, if greater, the Market Value
Per Share (as defined in the LTIP) of the stock on the date of
grant. The terms of the Stock Options shall be governed by the LTIP
and one or more separate stock option agreements by and between the
Company and Executive; provided, however, that the stock
option agreement relating to the Initial Stock Options shall
reflect the following:
(i) The Initial Stock Options shall
vest ratably on a monthly basis over a 36-month period beginning on
the Effective Date (the “ Vesting Period ”);
provided, however, that the vesting for the first six months
of the Vesting Period (the “ Initial Period ”)
shall be deferred until the end of the Initial Period such that
(A) the portion of the Initial Stock Options that would have
otherwise vested during the Initial Period will automatically vest
on the first day following the expiration of the Initial Period and
(B) any remaining unvested Initial Stock Options shall vest
ratably on a monthly basis over the remainder of the Vesting
Period.
(ii) Any vested Initial Stock
Options shall remain exercisable by Executive for a period of 30
months following the vesting date of such Initial Stock
Options.
(iii) If Executive’s
employment is terminated in an Involuntary Termination as defined
in Paragraph 4(b) of this Agreement or a For Good Reason
Termination as defined in Paragraph 4(d) of this Agreement,
the portion of the Initial Stock Options that would have vested
during the six months immediately following the Date of Termination
will automatically vest and become non-forfeitable and the entire
vested portion of the Initial Stock Option shall remain exercisable
by Executive for a period of not less than 30 months following the
Date of Termination.
(iv) Upon the occurrence of a Change
in Control, all remaining unvested Initial Stock Options will
automatically vest and become non-forfeitable and
EMPLOYMENT AGREEMENT
the entire vested portion of the
Initial Stock Option shall remain exercisable by Executive for a
period of not less than 30 months following the Change in Control.
For purposes of this Agreement, a “ Change in Control
” shall mean a Change in Control as defined in the
LTIP;
(v) Any of the Company’s
common stock issued upon the exercise of any of the Initial Stock
Options shall not be subject to any forfeiture provisions, transfer
restrictions (other than those required by law) or repurchase
provisions (other than the Company’s right under the LTIP to
repurchase all or any portion of such common stock if such common
stock is not required to be registered under Section 12 of the
Securities Exchange Act of 1934, as amended).
(f) Commuting Expenses . For
the first year of the Initial Term, Executive will be reimbursed
for the following costs of commuting from Houston, Texas, to the
Company’s offices in New Orleans, Louisiana:
(i) One round-trip coach-class
airline ticket per week, and
(ii) Reasonable other travel
expenses ( e.g. , parking) supported by appropriate
documentation and submitted pursuant to Paragraph 3(d) of
this Agreement.
Further, the Company shall provide
Executive with a housing allowance in the amount of $5,000 per
month for the first year of the Initial Term. Following the first
year of the Initial Term, if the Company’s primary offices
remain in New Orleans, Executive may relocate to New Orleans,
Louisiana. Upon such relocation, the Company shall reimburse
Executive for moving expenses and normal closing costs (fees,
appraisal, commissions, etc.) related to the sale of
Executive’s current residence in Houston, Texas. The total
amount of such relocation expenses reimbursable pursuant to this
Paragraph 3(f) shall not exceed $100,000; provided,
however, that the Company shall not be obligated to reimburse
Executive for any such relocation expenses unless Executive
(i) has taken steps toward relocating to New Orleans on or
before the first anniversary of the Effective Date, and
(ii) does in fact relocate in New Orleans within a reasonable
time thereafter.
(g) Other Benefits . This
Agreement governs the rights and obligations of Executive and
Company with respect to Executive’s Base Salary and certain
other perquisites of employment. Except as expressly provided
herein, Executive’s rights and obligations both during the
Term of Employment and thereafter with respect to Stock Options,
incentive compensation, and other benefits under the plans and
programs maintained by Company shall be governed by the separate
agreements, plans and other documents and instruments governing
such matters.
4. Termination
. Unless otherwise agreed to in
writing by the Company and Executive, Executive’s employment
hereunder may be terminated under the following
circumstances:
(a) For Cause Termination .
The Board may terminate Executive’s employment with the
Company for Cause, as defined in the following sentence. For
purposes of this Agreement, (i) “ Cause ”
means: (A) Executive’s material breach of this Agreement
or
EMPLOYMENT AGREEMENT
Executive’s willful failure to perform his
required duties and responsibilities (if such failure to perform
has not been cured within ten business days following receipt of
notice from the Company), (B) Executive’s indictment
for, or conviction of (1) a misdemeanor involving fraud,
dishonest or moral turpitude or (2) any felony,
(C) dishonesty on the part of Executive directly related to
the performance of Executive’s duties, (D) wrongful and
intentional disclosure of confidential information by Executive, a
conflict of interest on the part of Executive that is undisclosed
and not approved by the Board, (E) Executive’s material
violation of any Company policy available to all employees that
materially and adversely affects the Company (if such material
violation has not been cured within ten business days following
receipt of notice from the Company), or (F) Executive’s
engaging in any manner, directly or indirectly, in a business that
competes with the business of the Company, unless first disclosed
to and approved by the Board in all material respects; and
(ii) a “ For Cause Termination ” is any
termination for Cause in accordance herewith.
(b) Involuntary Termination .
The Board may, at any time, terminate Executive’s employment
with the Company without Cause through an Involuntary Termination.
An “Involuntary Termination” is any termination of
Executive’s employment by the Board that does not meet the
definition of a For Cause Termination and does not include a
termination by reason of Executive’s death or
Disability.
(c) Voluntary Termination .
Executive may terminate his employment with the Company for any
reason or no reason (a “ Voluntary Termination
”) upon giving the Company not less than thirty days’
written notice in advance of any proposed Date of Termination (as
defined in Paragraph 4(g) ).
(d) Good Reason . Executive
may terminate his employment with the Company for Good Reason as
defined in the following sentence. For purposes of this Agreement,
(i) “ Good Reason ” means the occurrence of
any of the following: (A) Company’s material breach of
the Agreement, (B) a material reduction in Executive’s
Base Salary, (C) a material diminution in Executive’s
authority, duties or responsibilities that are normally associated
with the position of Chief Executive Officer, (D) a
requirement by the Company that Executive be required to relocate
outside of New Orleans or Houston, or (E) a Change in Control;
(ii) a “ For Good Reason Termination ” is
any termination for Good Reason in accordance herewith.
Notwithstanding the foregoing provisions of this Paragraph
4(d) or any other provision in this Agreement to the contrary,
any assertion by Executive of a termination of employment for
“ Good Reason ” shall not be effective unless
all of the following conditions are satisfied: (i) the
condition giving rise to Executive’s termination of
employment must have arisen without Executive’s consent; and
(ii) (A) Executive must provide written notice to the
Company of such condition in accordance with Paragraph 4(f)
within 90 days of the initial existence of the condition,
(B) the condition specified in such notice must remain
uncorrected for 30 days after receipt of such notice by the Company
and (C) the date of Executive’s termination of
employment must occur within 30 days after the expiration of the
cure period set forth in (ii)(B) above. This definition of “
Good Reason ” shall be construed and administered in
accordance with the requirements of Treasury Regulation
Section 1.409A-1(n)(2).
(e) Death or Disability .
Executive’s employment will automatically terminate upon
Executive’s death or upon a determination that he has
incurred a “ Disability .” For the
EMPLOYMENT AGREEMENT
purposes of this Agreement,
“Disability” means, as reasonably determined by the
Board, Executive’s physical or mental incapacity that renders
him unable to perform the essential functions of Executive’s
duties to the Company for sixty consecutive days or eighty days in
any twelve month period, even with reasonable
accommodation.
(f) Notice of Termination .
Any termination occurring in accordance with the terms of this
Paragraph 4 (other than by reason of Executive’s
death) shall be communicated by a Notice of Termination to the
other Party delivered in accordance with Paragraph 7 of this
Agreement. For purposes of this Agreement, a “ Notice of
Termination ” means a written notice that
(i) indicates the specific termination provision of this
Agreement relied upon; (ii) sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for the
termination; and (iii) specifies the date such termination
shall be effective (the “ Date of Termination
”). The failure of a Party to set forth in the Notice of
Termination any fact or circumstance that contributes to a showing
of the basis for termination shall not waive any right of such
Party hereunder or later preclude such Party from asserting such
fact or circumstance in enforcing its rights hereunder.
(g) Date of
Termination/Disability . “ Date of Termination
” means the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be; provided,
however, that if Executive’s employment is terminated by
reason of his death, the Date of Termination shall be the date of
death of Executive; provided further that, in the case of a
termination due to Executive’s Disability, the Date of
Termination is the end of any sixty day period or the eighty first
day in any twelve month period that Executive is absent from work
by reason of Disability.
5. Obligations of the Company
in the Event of Termination .
(a) Upon termination of
Executive’s employment hereunder by the Company For Cause or
by Executive without Good Reason, Executive shall be entitled to
receive:
(i) Executive’s Base Salary
through the Date of Termination.
(ii) Any Annual Bonus earned but
unpaid as of the Date of Termination for any fiscal year completed
prior to the Date of Termination.
(iii) Reimbursement for any
unreimbursed business expenses properly incurred by Executive in
accordance with this Agreement prior to the Date of
Termination.
(iv) Such Employee Benefits, if any,
as to which Executive may be entitled pursuant to the terms
governing such Employment Benefits and any applicable
law.
(b) Upon termination of
Executive’s employment hereunder by the Company in an
Involuntary Termination, by Executive for Good Reason or upon death
or Disability of Executive, Executive shall be entitled to
receive:
(i) Executive’s Base Salary
through the Date of Termination.
EMPLOYMENT AGREEMENT
(ii) Any Annual Bonus earned but
unpaid as of the Date of Termination for any fiscal year completed
prior to the date of termination.
(iii) Reimbursement for any
unreimbursed business expenses properly incurred by Executive in
accordance with this Agreement prior to the Date of
Termination.
(iv) Such Employee Benefits, if any,
as to which Executive may be entitled pursuant to the terms
governing such Employment Benefits and any applicable
law.
(v) A “ Severance
Amount ” equal to Executive’s aggregate Base Salary
for the lesser of (i) six months and (ii) the remainder
of the Term of this Agreement (the “ Severance Period
”). Such Severance Amount shall be payable in a lump sum
within thirty days of the Date of Termination (or, if later, five
business days after Executive executes and delivers the Release
Agreement, as defined below) in accordance with normal payroll
practices.
(vi) For the duration of the
Severance Period, Executive, his spouse and his dependents shall be
entitled to continuation coverage under the Company’s group
medical, dental and vision insurance plans comparable to the level
of coverage in effect at the time of termination, provided
Executive, his spouse and such dependents were enrolled in such
plans immediately prior to the termination of Executive’s
employment. Such benefits shall be provided pursuant to the
Consolidated Omnibus Budget Reconciliation Act (“
COBRA ”). The Company shall reimburse Executive during
the Severance Period for the portion of the COBRA premium equal to
the amount the Company pays for similarly situated executives who
are actively employed by the Company. Executive shall be entitled
to such COBRA coverage beyond the Severance Period as is required
by law.
(c) In light of the difficulties in
estimating the damages for an early termination of
Executive’s employment under this Agreement, Company and
Executive hereby agree that the payments, if any, to be received by
Executive pursuant to this Paragraph 5 shall be received by
Executive as liquidated damages.
(d) Notwithstanding anything herein
to the contrary, the Company shall not be obligated to make any
payment or provide any benefit under Paragraph 5(b) unless
(i) Executive executes and delivers to the Company a release
agreement in the form attached hereto as Exhibit A (the
“ Release Agreement ”) and
(ii) Executive does not revoke such Release Agreement during
any applicable revocation period.
6. Indemnification;
Directors’ and Officers’ Liability
Insurance . As and to
the extent provided in the Company’s bylaws, Executive will
be entitled to the indemnification provided to other executive
officers and directors of the Company. In addition, the Company
agrees to include Executive as a covered person on a
directors’ and officers’ liability insurance policy or
policies covering Executive to the same extent that the Company
provides such coverage for its other executive officers and
directors.
EMPLOYMENT AGREEMENT
7. Notices .
Any and all notices required or
permitted under this Agreement shall be in writing and shall be
personally delivered, or mailed by expedited overnight delivery
service, or sent by facsimile (provided that the sender confirms
the facsimile by sending an original confirmation copy thereof by
certified or registered mail or expedited delivery service within
two business days after transmission thereof) to the respective
Parties at the following addresses unless and until a different
address has been designated by written notice to the other Party,
as follows:
Notices to the Company
:
Energy Partners, Ltd.
201 St. Charles Ave., Suite
3400
New Orleans, Louisiana,
70170-1026
Facsimile No.:
(504) 569-1874
Notices to Executive
:
Gary Hanna
3771 Carlon St.
Houston, Texas 77005
Facsimile No.:
(504) 535-2704
Any notice shall be deemed to have
been given at the time of personal delivery or, in the case of
facsimile, upon transmission (provided confirmation is sent as
descri