SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit 10.1
Execution Copy
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (this “Separation Agreement”) is entered into by and between Philip A. Epstein, an individual (“Executive”) and Warren Resources, Inc., a Maryland corporation (the “Company”), effective as of the Effective Date (as defined below). Capitalized terms used and not otherwise defined herein are used as defined in the Employment Agreement (as defined below).
WHEREAS, the Company and the Executive are parties to that certain Executive Employment Agreement dated December 3, 2012, which was amended by that certain First Amendment to Employment Agreement dated March 25, 2014 (as amended, the “Employment Agreement”); and
WHEREAS, the Executive offered his resignation from all of his positions as either a director or officer of the Company, effective December 4, 2014 (the “Separation Date”) and the Board of Directors resolved to accept Executive’s resignation on that date and treat it for purposes hereof as a termination without cause;
NOW THEREFORE, in consideration of the foregoing premises and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Executive and Company hereby mutually agree as follows:
1. Status. On the Separation Date, Executive’s position as Chief Executive Officer, Director and Chairman of the Board of Directors of the Company, any other appointments and offices held with the Company, and any position with any third party organizations in which he represented the Company, ended.
2. Separation Benefits. Provided Executive executes this Separation Agreement, and does not revoke it during the Revocation Period (as defined below), the Company agrees to provide the Executive with the following payments and benefits (collectively, the “Separation Benefits”):
(a) On or before February 2, 2015, but in no event prior to January 1, 2015, the Company shall pay to the Executive, in a lump-sum, an amount equal to $1,150,000.00, less applicable withholdings.
(b) Provided Executive elects to continue his medical care coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the Company will pay the premiums associated with such continued coverage on the first of each month commencing on January 1, 2015 and continuing until the earlier of (i) the date that the Executive becomes covered by the medical plan of a subsequent employer, (ii) the date he is no longer eligible for continued medical coverage pursuant to COBRA, and (iii) June 1, 2016 (inclusive). For the avoidance of doubt, the Company’s payment of the COBRA premium will not commence until after the Effective Date (as defined in Section 5(c) below), provided, however, that if the Effective Date is after January 1, 2015, the first payment will include that premium payment that would have been paid had the payments commenced on January 1, 2015.
(c) As of the Effective Date, 11,111 restricted stock units (the “RSUs”) granted to Executive pursuant to that certain Restricted Stock Unit Agreement dated March 7, 2014 (the “RSU Award Agreement”) will vest. The Company and Executive agree that all of the RSUs were unvested as of the Separation Date, and any RSUs granted to Executive that have not vested as of the Separation Date or pursuant to this Separation Agreement will be forfeited. The RSUs that will vest pursuant this Separation Agreement will continue to be governed by the terms of the RSU Award Agreement and the Warren Resources, Inc. 2010 Stock Incentive Plan (the “Plan”). Pursuant to Section 7 of the RSU Award Agreement, in satisfaction of Executive’s income and payroll tax obligations (the “Tax Obligations”) arising out of his receipt of the shares of Common Stock covered by the RSUs, the Company shall deliver to the Executive that number of shares of Common Stock covered by the RSUs, less the number of shares of Common Stock covered by the RSUs having an aggregate fair market value as of the transfer date equal to the Tax Obligations.
(d) As of the Effective Date, 33,333 shares of Company Common Stock covered by that certain Incentive Stock Option Grant dated March 7, 2014 (the “Option”) will vest. Executive will have until the earlier of (i) the ninetieth (90th) day following the Separation Date, and (ii) the expiration of the term of the Option, to exercise the vested and outstanding portion of the Option. The Company and Executive agree that all of the Option is unvested as of the Separation Date, and any part of the Option that has not vested as of the Separation Date or pursuant to this Separation Agreement will be forfeited. That part of the Option that has vested as of the Separation Date will continue to be governed by the terms of the Option and the Plan, as modified by this Section 2(d). Executive acknowledges and agrees that only that part of the Option covering 21,691 shares of Common Stock will be considered an “incentive stock option” within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended. The part of the Option covering the remaining 11,642 shares of Common Stock shall be non-qualified.
3. Accrued Obligations. Executive acknowledges and agrees that the Company paid him an amount equal to $75,192.00, less required withholdings, in full satisfaction of his entitlement to payment through his Separation Date for Accrued Obligations as defined in the Employment Agreement, including without limitation his accrued, but unpaid, base salary, and accrued but unpaid benefits. Executive acknowledges and agrees that he is not due any compensation for unpaid salary, bonus, severance, incentive or performance pay, unreimbursed and properly incurred business expenses, or accrued or unused vacation time or vacation pay.
4. No Other Payments. Other than as specifically provided by, or preserved under, the terms and conditions of this Separation Agreement, Executive will not be entitled to any other payments or benefits from the Company.
5. Executive’s Release of Claims; Representations; Acknowledgments. In consideration for the Separation Benefits and other promises and covenants contained herein, Executive agrees to the following:
(a) Executive represents that Executive has not filed any complaints, charges or lawsuits against the Company with any governmental agency or any court.
(b) Executive expressly waives all claims against the Company and releases the Company, and any of the Company’s past, present or future parent, affiliated, related, and/or subsidiary entities (collectively with the Company, the “Company Entities”), and all of the past
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and present directors, shareholders, officers, general or limited partners, employees, agents, and attorneys, and agents and representatives of such entities, and employee benefit plans in which Executive is or has been a participant by virtue of his employment with the Company (collectively, the “Releasees”), from any claims that Executive may have against any Company Entity or the Releasees. It is understood that this release includes, but is not limited to, any claims arising directly or indirectly out of, relating to, or in any other way involving in any manner whatsoever, (1) Executive’s employment with any Company Entity or the termination thereof or (2) Executive’s status at any time as a holder of any securities of the Company, including any claims for wages, stock or stock options, employment benefits or damages of any kind whatsoever arising out of the Employment Agreement, any contracts, express or implied, any Company policy, any covenant of good faith and fair dealing, express or implied, any legal restriction on the Company’s right to terminate employment, or any federal, state or other governmental statute or ordinance, including, without limitation, the Employee Retirement Income Security Act of 1974, Title VII of the Civil Rights Act of 1964, the federal Age Discrimination in Employment Act, the Americans With Disabilities Act, the Family and Medical Leave Act, the Lilly Ledbetter Fair Pay Act, the Genetic Information Non-Discrimination Act, the New York Human Rights Law, the New York City Human Rights Law, all as amended, and any other federal, state or local law (the “Release”). This Release specifically includes, but is not limited to, any claims based upon the right to the payment of wages, incentive and performance compensation, bonuses, vacation, stock benefits or any other employee benefits, or any other rights arising under federal, state or local laws prohibiting discrimination and/or harassment on the basis of race, color, age, religion, sexual orientation, religious creed, sex, national origin, ancestry, alienage, citizenship, nationality, mental or physical disability, denial of family and medical care leave, medical condition (including cancer and genetic characteristics), marital status, military status, gender identity, harassment or any other basis prohibited by law provided, however, notwithstanding anything to the contrary set forth herein, that this Release shall not extend to (i) benefit claims under employee welfare benefit plans for occurrences (e.g., medical care, death, or onset of disability) arising after the Effective Date, (ii) Executive’s rights to Severance Benefits, provided he complies with his obligations herein; (iii) any claims Executive may have for indemnification pursuant to law, contract, Company governance documents, or Company policy, (iv) any claims for coverage under any applicable directors’ and officers’ insurance policy, or any other applicable insurance policy, in accordance with the terms of such policy, or (v) any claims arising from events that occur after the Effective Date.
(c) Executive understands that the Release includes a release of claims arising under the Age Discrimination in Employment Act (the “ADEA”). Executive understands and warrants that Executive has been given up to twenty-one (21) days to review and consider this Separation Agreement, and Executive further warrants that Executive understands that Executive has a period of seven days (7) after his execution of this Separation Agreement to revoke it by notice in writing to the Company (the “Revocation Period”). This Separation Agreement will be effective on the eighth (8th) day after the Executive signs the Separation Agreement, provided he does not exercise his right to revoke it during the Revocation Period (such date, the “Effective Date”).
(d) Executive has carefully read and has voluntarily signed this Separation Agreement.
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(e) Executive fully understands the final and binding effective of the Release contained herein and other covenants of the Separation Agreement, including the waiver of all claims under the ADEA.
(f) Prior to signing this Separation Agreement, the Company advised the Executive of his right to consult, and has been given adequate time to review, his legal rights with his attorney of choice.
6. Company Release. The Company, on its behalf and on behalf of the Company Entities, waives (to the extent permitted by applicable law) all claims that any Company Entity may have against Executive, and releases the Executive from any claim that any Company Entity may have against Executive, provided, however, this waiver and release in this Section 6 does not include any claims that any Company Entity may have against Executive (i) arising out of or relating to Executive’s fraud, embezzlement, theft, or criminal conduct, which has a material adverse effect on any Company Entity, (ii) relating to the enforcement of this Separation Agreement, (iii) for contribution for third party claims against any Company Entity arising out of or relating to any of the Executive’s acts or omissions, or (iv) arising after the Effective Date.
7. Continuing Obligations.
(a) Noncompetition. During the period (the “Restricted Period”) commencing on the Separation Date and ending on the second anniversary of the Separation Date, the Executive shall not, (i) within ten (10) miles of any location in which, as of the Separation Date, the Company owns Assets, directly or indirectly, own, manage, operate, control, or participate in the ownership, management, operation or control of any Business, provided that the Executive’s ownership of securities of two percent (2%) or less of any class of securities of a public company shall not, by itself, be considered to be competition with the Company or any Affiliate; (ii) acquire, offer to acquire, or agree to acquire, directly or indirectly, or through his affiliate, by purchase or otherwise, voting securities or direct or indirect right to acquire voting securities of the Company, that, together with any Company securities then beneficially owned by Executive on the relevant date, or issuable upon Executive’s exercise of options or pursuant to the RSU Award Agreement, would result in the aggregate beneficial ownership of him, or of any entity that he directly or indirectly, owns, manages, operates, or controls, or in which Executive participates in the ownership, management, operation or control, to equal 5% or more of the Company’s voting securities; (iii) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules and regulations of the Securities and Exchange Commission), or seek to advise or influence any person or entity with respect to the voting of any voting securities of the Company; (iv) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or any of its securities or assets; or (v) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in connection with any of the foregoing actions. For purposes of this Separation Agreement, “Business” shall mean the ownership of oil and/or gas assets, and “Assets” means the Company’s oil and/or gas assets.
(b) Nonsolicitation. During the Restricted Period the Executive shall not, directly or indirectly, and any entity to which Executive is providing services shall not, directly or indirectly, (i) employ, solicit for employment or otherwise contract for the services of any
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individual who is or was an employee of the Company; (ii) otherwise induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the relationship between the Company any employee respectively thereof; or (iii) induce or attempt to induce any customer, supplier, licensee or other business relation of the Company or any Affiliate to cease doing business with the Company, or interfere in any way with the relationship between any such customer, supplier, licensee or business relation and the Company.
(c) Non-Disclosure. The Executive shall not (i) divulge, transmit or otherwise disclose (except as legally compelled by court or agency order, and then only to the extent required, after prompt notice to the Board of any such order), directly or indirectly, other than in the regular and proper course of business of the Company, any trade secrets or other confidential knowledge or information with respect to the operations or finances of the Company or any Affiliates or with respect to confidential or secret processes, services, techniques, customers or plans with respect to the Company (all of the foregoing collectively hereinafter referred to as, “Confidential Information”), or (ii) use, directly or indirectly, any Confidential Information for the benefit of anyone other than the Company; provided, however, that the Executive has no obligation, express or implied, to refrain from using or disclosing to others any such knowledge or information which is or hereafter shall become available to the general public other than through disclosure by the Executive. All Confidential Information, new processes, techniques, know-how, methods, inventions, plans, products, patents and devices developed, made or invented by the Executive, alone or with others, while an employee of the Company which are related to the business of the Company and the Affiliates shall be and become the sole property of the Company, unless released in writing by the Board, and the Executive hereby assigns any and all rights therein or thereto to the Company.
(d) Nondisparagement. The Executive shall not take any action to disparage or criticize the Company or its respective employees, directors, owners or customers or to engage in any other action that injures or hinders the business relationships of the Company. The Company shall not take any action to disparage or criticize the Executive or to engage in any other action that injures the Executive’s reputation. Nothing contained in this Agreement or elsewhere shall preclude Executive or the Company from enforcing his or its rights under this Agreement, or from disclosing information in confidence to an attorney for the purpose of seeking professional advice concerning this Agreement, his employment with the Company or the termination thereof, or from responding truthfully to subpoenas, court orders, requests for information from governmental entities.
(e) Return of Company Property. Executive acknowledges and agrees that all Confidential Information, files, records, correspondence, memoranda, notes or other documents (including, without limitation, those in computer-readable form) or property relating or belonging to the Company, whether prepared by the Executive or otherwise coming into his possession in the course of his employment, is the exclusive property of the Company. Executive represents that he has delivered to the Company all such Confidential Information and Company property, and has not retained any Confidential Information or Company property (including, without limitations, any copies thereof). However, nothing in this Agreement or elsewhere shall preclude the Executive from retaining, and using appropriately, his rolodex (and electronic equivalents) or documents relating to his personal entitlements and obligations.
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(f) Enforcement. The Executive and the Company each acknowledge that a breach of his/its covenants contained in this Section 7 may cause irreparable damage to the other party, the exact amount of which would be difficult to ascertain, and that the remedies at law for any such breach or threatened breach would be inadequate. Accordingly, each party agrees that if he/it breaches or threatens to breach any of the covenants contained in this Section 7, in addition to any other remedy which may be available at law or in equity, the other party shall be entitled to specific performance and injunctive relief to prevent the breach or any threatened breach thereof without bond or other security or a showing that monetary damages will not provide an adequate remedy.
(g) Scope of Covenants. The Company and the Executive further acknowledge that the time, scope, geographic area and other provisions of this Section 7 have been specifically negotiated by sophisticated commercial parties and agree that all such provisions are reasonable under the circumstances of the activities contemplated by this Separation Agreement. In the event that the agreements in this Section 7 shall be determined by any court of competent jurisdiction to be unenforceable by reason of their extending for too great a period of time or over too great a geographical area or by reason of their being too extensive in any other respect, they shall be interpreted to and/or over the maximum geographical area as to which they may be enforceable and/or to the maximum extent in all other respects as to which they may be enforceable, all as determined by such court in such action.
8. Complete Agreement. Company and Executive agree that this Separation Agreement sets forth all of the promises and agreements between them with respect to the subject matter described herein and supersedes all prior and contemporaneous agreements, understandings, inducements or conditions, expressed or implied, oral or written, except as herein contained, with respect to the subject matter described herein. In the event of Executive’s death or a judicial determination of his incapacity, references to the Executive in this Agreement shall be deemed, as appropriate, to be references to his heirs, beneficiaries, estate, executor(s) or other legal representative(s).
9. Cooperation. Executive agrees that upon written request of the Company, he will make himself reasonably available to cooperate with the Company, its subsidiaries and affiliates and any of their officers, directors, shareholders, or employees in connection with any investigation or review by the Company or any federal, state or local regulatory, quasi-regulatory or self-governing authority as any such investigation or review relates to events or occurrences that transpired while Executive was employed by the Company and in respect of which Executive has knowledge (collectively, “Cooperation”). Executive’s Cooperation may include, but not be limited to, being available to meet with directors, officers or employees of the Company and/or the Company’s counsel at mutually convenient times and locations, executing accurate and truthful documents and taking such other actions as may reasonably be requested by the Company and/or the Company’s counsel to effectuate the foregoing. Executive shall be entitled to reimbursement, upon receipt by the Company of suitable documentation, for his reasonable out-of-pocket travel and lodging expenses for such Cooperation.
10. Changes to the Agreement. This Separation Agreement may not be amended or modified unless such amendments or modifications are in writing and signed by Executive and an authorized representative of the Company.
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11. Remedies. If Executive commits a material breach of any of Executive’s obligations under this Separation Agreement, in addition to any other legal or equitable remedies it may have for such breach, including the remedies in Section 7(f) above, the Company shall be entitled to its attorneys’ fees incurred due to such breach and shall have the right to terminate and recover the payments and benefits provided to Executive under this Separation Agreement. The termination or recovery of such payments or benefits in the event of Executive’s breach will not affect Executive’s continuing obligations under this Separation Agreement. Notwithstanding the foregoing, this Section 11 will not apply if Executive files a claim seeking to invalidate the validity of this Separation Agreement under the ADEA for failure to provide sufficient time for review and revocation as required under this law. For the avoidance of doubt, any filing or assertion of any claim in violation of Section 5 or any other provision of this Separation Agreement shall constitute a breach for purposes of this Section.
12. Applicable Law. This Agreement shall in all respects, including all matters of construction, validity and performance, be governed by, and construed and enforced in accordance with, the laws of the State of New York, without regard to any rules governing conflicts of laws.
13. Jurisdiction. The Executive and the Company each consents to jurisdiction in the United States District Court for the Southern District of New York, or if that court is unable to exercise jurisdiction for any reason, the Supreme Court of the State of New York, New York County, for any suits, claims or actions concerning this Separation Agreement and each waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction or service of process and waives any objection to jurisdiction based on improper venue or improper jurisdiction.
14. Severability. If any provision of this Separation Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Separation Agreement or any action in any other jurisdiction, but this Separation Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
15. No Waiver. No delay or failure by any party hereto in exercising, protecting, or enforcing any of its rights, titles, interests, or remedies hereunder, and no course of dealing or performance with respect thereto, shall constitute a waiver thereof. The express waiver by a party hereto of any right, title, interest, or remedy in a particular instance or circumstance shall not constitute a waiver thereof in any other instance or circumstance. All rights and remedies shall be cumulative and not exclusive of any other rights or remedies.
16. Counterparts. This Separation Agreement may be executed in any number of counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute one and the same instrument. Signatures delivered by facsimile (including, without limitation, by “pdf”) shall be effective for all purposes.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed and entered into this Agreement effective as of the Effective Date.
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| EXECUTIVE | |
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| /s/ Philip A. Epstein | |
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| WARREN RESOURCES, INC. | |
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| By | /s/ Stewart P. Skelly |
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| Its | Vice President and Chief Financial Officer |
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