Form of Executive Employment Agreement and Severance Agreement for executive officers of Whiting Petroleum Corporation other than Lynn A. Peterson, James P. Henderson and Charles J. Rimer
EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT
This Executive Employment and Severance Agreement (this “Agreement”) is between [Name] (“Executive”) and Whiting Petroleum Corporation (“Whiting” and, together with its subsidiaries, the “Company”) and is effective as of [Date] (the “Effective Date”).
WHEREAS, the Company desires to [continue to]1 employ Executive in a key employee capacity and expects that Executive’s services will be valuable to the conduct of the business of the Company;
WHEREAS, Whiting and Executive desire to specify the terms and conditions on which Executive will be employed on and after the Effective Date, and under which Executive will receive severance in the event that Executive separates from service with the Company under the circumstances described in this Agreement; and
NOW, THEREFORE, for the consideration described above and other good and valuable consideration, the parties agree as follows:
1 To be included only if Executive is already a Whiting employee.
For the avoidance of doubt, if Executive dies or becomes Disabled after receiving a notice by the Company (i) that Executive is being terminated without Cause or (ii) of non-renewal of the Employment Term, or after providing notice of termination for Good Reason, then Executive’s estate, heirs and beneficiaries, in the case of Executive’s death, or Executive or Executive’s personal representative, in the case of Executive’s Disability, shall be entitled to the Accrued Benefits and the severance benefits described in Section 5(b) and 5(c) (if applicable) at the times provided in Section 5(b) and 5(c) (if applicable).
All payments shall be subject to payroll taxes and other withholdings in accordance with the Company’s (or the applicable employer of record’s) standard payroll practices and applicable law.
2 To be included only if Executive is already a Whiting employee with an existing Executive Employment and Severance Agreement.
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed, this Agreement on the Effective Date.
WHITING PETROLEUM CORPORATION
FORM OF GENERAL RELEASE
This Separation Agreement and General Release (“Agreement”) is between Whiting Petroleum Corporation, which in this Agreement is referred to as “Whiting” or the “Company”, and [Name], who is referred to as “Executive”.
1.Background. Whiting and Executive acknowledge that Executive’s employment with Whiting is ending (or has ended), effective [Date]. Both Executive and Whiting desire an amicable separation and to fully and finally compromise and settle any differences that may exist between them on the terms set forth in this Agreement.
2.Employment Termination. Executive understands that Executive’s employment with Whiting is considered ended and Executive’s separation from service was effective [Date] (the “Separation Date”), based on reasons discussed between Executive and Whiting. Whiting and Executive are subject to an Executive Employment and Severance Agreement dated [Date] (“Employment Agreement”) that provides for Executive’s receipt of certain separation benefits if Executive executes an agreement with a general release of all claims that is acceptable to Whiting: this is that agreement.
3.Severance Pay and Benefits. In return for the execution of this Agreement, it becoming effective (see paragraph 18) and Executive honoring (and continuing to honor) all of its terms, Whiting will provide Executive with the severance pay and benefits in accordance with Section 5(b) [and 5(c)] of the Employment Agreement.
4.Acknowledgement. Executive understands that the severance pay and benefits identified in paragraph 3 above will not be paid or provided unless Executive accepts this Agreement, it becomes effective (see paragraph 18), and Executive honors (and continues to honor) all of its terms.
5.Release. Executive understands and agrees that Executive’s acceptance of this Agreement means that, except as stated in paragraph 7, Executive is forever waiving and giving up any and all claims Executive may have, whether known or unknown, against Whiting, its parent, subsidiaries, and related companies, their insurers, their officers, directors, employees and agents for any personal monetary relief for Executive, benefits or remedies that are based on any act or failure to act that occurred on or before the date Executive signed this Agreement. Executive understands that this release and waiver of claims includes claims for or relating to: (a) Executive’s employment and the termination of Executive’s employment; (b) any Whiting policy, practice, contract or agreement, including, but not limited, to the Employment Agreement; (c) any tort or personal injury relating to Executive’s employment or termination of employment; (d) any policies, practices, laws or agreements governing the payment of wages, commissions or other compensation, including, but not limited, to the Colorado Wage Act, the Colorado Minimum Wage Order No. 30 and all terms for compensation under the Employment Agreement; (e) any laws governing employment discrimination or retaliation including (to the extent applicable), but not limited to, Title VII of the Civil Rights Act, the Employee Retirement Income Security Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act (ADEA), the Older Worker Benefit Protection Act, the Genetic Information Nondiscrimination Act, the Family and Medical Leave Act, the National Labor Relations Act (NLRA), the Colorado Anti-Discrimination Act, C.R.S. 24-34-401 et seq., the City and County of Denver’s Anti-Discrimination Ordinance and any other applicable state or local laws; (f) any laws or agreements that provide for punitive, exemplary or statutory damages and (g) any laws or agreements that provide for the payment of attorney fees, costs or expenses.
6.Future Employment. Executive agrees that Executive is not now or hereafter entitled to employment or reemployment with Whiting and Executive agrees not to knowingly seek such employment on any basis or through an employment agency. Executive further agrees and acknowledges that should Executive apply for any position in contradiction of this paragraph, Whiting may completely ignore such application and fail to consider it based on this paragraph.
7.Claims Not Waived. Executive understands that this Agreement does not waive any claims that Executive may have: (a) for compensation for illness or injury or medical expenses under any worker’s compensation statute; (b) for benefits under any plan currently maintained by Whiting that provides for retirement benefits (however,
Executive agrees and acknowledges that the severance pay and benefits provided in paragraph 3 above shall not be considered or included for purposes of any retirement benefit contribution or plan) under this Agreement; (c) under this Agreement; (d) for indemnification as provided by the Company’s organizational documents, or claims under the Company’s D&O insurance coverage, or (e) that by law cannot be released or waived.
8.Government Cooperation. Nothing in this Agreement prohibits Executive from cooperating with any government agency, including the National Labor Relations Board or the Equal Employment Opportunity Commission, or any similar state agency. Further, Executive understands that nothing in this Agreement (including any obligation in paragraphs 5 or 9) prohibits Executive from reporting a possible violation of federal, state or local law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, the United States Congress or any agency (including but not limited to the National Labor Relations Board or the Equal Employment Opportunity Commission) or inspector general, or making other disclosures that are protected under any whistleblower provision of federal, state or local law or regulation.
9.Prior Agreement(s). Executive agrees and understands that this Agreement does not supersede any obligation to which Executive was subject under a prior agreement while employed with Whiting that addresses confidentiality, noncompetition, patents or copyright. Executive acknowledges that Executive was, and continues to be, subject to those obligations contained in the Employment Agreement, and that Executive is expressly re-affirming Executive’s commitment to those obligations by executing this Agreement, and acknowledging that Executive’s failure to abide by such obligations will constitute a material breach of this Agreement. Executive acknowledges and agrees that Executive is subject to the restrictive covenants and other obligations as set forth in the Employment Agreement.
10.Trade Secrets/Defend Trade Secrets Act. Nothing in this Agreement (or any prior agreement on confidentiality to which Executive may be subject) diminishes or limits any protection granted by law to trade secrets or relieves Executive of any duty not to disclose, use or misappropriate any information that is a trade secret, for as long as such information remains a trade secret. Additionally, nothing in this Agreement (or any prior agreement on confidentiality to which Executive may be subject) is intended to discourage Executive from reporting any theft of trade secrets to the appropriate government official pursuant to the Defend Trade Secrets Act of 2016 (“DTSA”) or other applicable state or federal law. Additionally, under the DTSA, a trade secret may be disclosed to report a suspected violation of law and/or in an anti-retaliation lawsuit, as follows:
a.An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (A) is made (1) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney and (2) solely for the purpose of reporting or investigating a suspected violation of law or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
b.An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual: (A) files any document containing the trade secret under seal and (B) does not disclose the trade secret, except pursuant to court order. Nothing in this Agreement (or any prior agreement on confidentiality to which Executive may be subject) shall limit, curtail or diminish Whiting’s statutory rights under the DTSA, any applicable state law regarding trade secrets or common law.
11.Relinquishment Of Positions. As of the Separation Date, Executive acknowledges that Executive has fully and completely relinquished any and all officerships, directorships or other positions that Executive held with Whiting and any of its affiliates.
12.Nonadmission. Executive and Whiting both acknowledge and agree that nothing in this Agreement is meant to suggest that Whiting has violated any law or contract or that Executive has any claim against Whiting.
13.Voluntary Agreement. Executive acknowledges and states that Executive has entered into this Agreement knowingly and voluntarily.
14.Consulting An Attorney. Executive acknowledges that Whiting has told Executive that Executive should consult an attorney of Executive’s own choice about this Agreement and every matter that it covers before signing this Agreement, and that Executive has been provided an meaningful opportunity for such consultation.
15.Obligation to Repay Upon Violation of Release. Executive understands and agrees that if Executive is found by a court of competent jurisdiction to have materially violated the commitments Executive has made in Section 5 of this Agreement, Whiting may recover any payments and/or the value of any benefits provided in this Agreement, with the exception of One Thousand Dollars ($1,000).
16.Complete Agreement. Executive understands and agrees that this document contains the entire agreement between Executive and Whiting relating to Executive’s employment and the termination of Executive’s employment, that this Agreement, except as provided in paragraph 9, supersedes and displaces any prior agreements and discussions relating to such matters and that Executive may not rely on any such prior agreements or discussions.
17.Effective Date. This Agreement shall not be effective until seven days after Executive signs it and returns it to Whiting’s General Counsel. During that seven-day period, Executive may revoke Executive’s acceptance of this Agreement by delivering to Whiting’s General Counsel a written statement stating Executive wishes to revoke this Agreement or not be bound by it.
18.Final and Binding Effect. Executive understands that if Executive signs this Agreement, returns it to Whiting and fails to revoke it consistent with this paragraph 18, it will have a final and binding effect and that by signing and returning this Agreement (and not revoking it) Executive may be giving up legal rights. Executive also acknowledges that this Agreement may be signed in counter-parts (meaning by Executive and Whiting separately) and that facsimile, copy or PDF copy signatures shall be treated as valid as original signatures.
19.Dispute Resolution; Exclusive Jurisdiction and Venue. The dispute resolution provisions of Section 15 of the Employment Agreement shall apply to any controversy or claim arising out of this Agreement. This Agreement is to be governed by and construed under the laws of the United States and of the State of Colorado without resort to Colorado’s choice of law rules. Whiting and Executive agree that the forum and venue for any legal or equitable action or proceeding arising out of, or in connection with, this Agreement will lie in the appropriate federal or state courts in the State of Colorado and each specifically waives any and all objections to such jurisdiction and venue.
20.Future Cooperation. Executive agrees to reasonably cooperate with Whiting in the future and to provide to Whiting truthful information, testimony or affidavits requested in connection with any matter that arose during Executive’s employment. This cooperation may be performed at reasonable times and places and in a manner as to not interfere with any other employment or business activities that Executive may have at the time of request. Whiting agrees to reimburse Executive for expenses incurred in providing such cooperation, so long as such expenses are approved in advance by Whiting, including, if applicable, any legal fees and expenses reasonably incurred by Executive if Executive and Whiting agree in good faith that Executive should retain counsel independent of the counsel for Whiting in order to cooperate as provided herein above.
21.Return of Property. Executive acknowledges an obligation and agrees to return all Whiting property, unless otherwise specified in this paragraph. This includes all files, memoranda, documents, records, credit cards, keys and key cards, computers, laptops, personal digital assistants, mobile telephones, devices or similar instruments, other equipment of any sort, badges, vehicles and any other property of Whiting. In addition, Executive agrees to provide any and all access codes or passwords necessary to gain access to any computer, program or other equipment that belongs to Whiting or is maintained by Whiting or on company property. Further, Executive acknowledges an obligation and agrees not to destroy, delete or disable any company property, including items, files and materials on computers and laptops.
22.Divisibility of Agreement or Modification by Court. Executive understands that, to the extent permitted by law, the invalidity of any provision of this Agreement will not and shall not be deemed to affect the validity of any other provision. Executive agrees that in the event that any provision of this Agreement is held to be invalid, it shall be, to the extent permitted by law, modified as necessary to be interpreted in a manner most consistent with the present terms of the provision, to give effect to the provision. Finally, in the event that any provision of this Agreement is held to be invalid and not capable of modification by a court, then Executive understands and agrees that such provision
shall be considered expunged (eliminated), and Executive further agrees that the remaining provisions shall be treated as in full force and effect as if this Agreement had been executed by Executive after the expungement (elimination) of the invalid provision.
23.Representations. By signing this Agreement, Executive represents that Executive has read this entire document and understands all of its terms.
24.21-Day Consideration Period. Executive may consider whether to sign and accept this Agreement for a period of 21 days from the day Executive received it. If this Agreement is not signed, dated and returned to Whiting’s General Counsel within 22 days, the offer of severance payments and benefits described in paragraph 3 above will no longer be available. Executive acknowledges that should Executive sign and return this Agreement within the 21-day period identified in this paragraph, Executive is knowingly waiving whatever additional time Executive may have up to the conclusion of the 21-day period for consideration of this Agreement.
WHITING PETROLEUM CORPORATION
Date Agreement was originally given to Executive: