exhibit10-4.htm


    Exhibit
10.4


     

    SEPARATION
AGREEMENT

     

    This SEPARATION AGREEMENT (this “Agreement”) is entered into by and between Linn
Operating, Inc., a Delaware
corporation (the “Company”), and Thomas A. Lopus (the “Employee”) (the Company and Employee are collectively referred
to herein as the “Parties”)
effective as of May 8, 2008 (the “Effective
Date”).  Linn Energy, LLC, a Delaware limited
liability company and the 100% parent of the Company (“Linn
Energy”), is joining in this Agreement for the limited purpose of
reflecting its agreement to the matters set forth herein as to it, but such
joinder is not intended to make Linn Energy the employer of Employee for any
purpose.

     

    WHEREAS, Employee
is currently employed by the Company pursuant to an Employment
Agreement dated April 3, 2006 (the “Employment
Agreement”); and

     

    WHEREAS,
Linn Energy has agreed to sell certain assets to XTO Energy Inc. (“XTO”)
(which such transaction is referred to as the “XTO
Transaction”); and

     

    WHEREAS
the Parties wish for Employee to continue his employment with the Company,
pursuant to the terms of the Employment Agreement as modified herein, until the
closing of the XTO Transaction; and

     

    WHEREAS
the Parties anticipate that upon the closing of the XTO
Transaction,  Employee’s employment will be terminated without Cause,
as defined in the Employment Agreement; and

     

    WHEREAS
the Employment Agreement contemplates the Employee’s receipt of certain
severance benefits upon the termination of his employment without Cause,
provided that he reaffirms certain provisions of the Employment Agreement and
enters into a release of claims with the Company; and

     

    WHEREAS
the Parties wish to amend the Employment Agreement in order to specify the
timing of severance payments and benefits to be provided to Employee upon a
termination without Cause, which changes are intended to cause the Employment
Agreement to comply with the applicable requirements of Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”).

     

    NOW, THEREFORE, in consideration of the promises
and benefits set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by Employee
and the Company, the Parties agree as
follows:

     

                   
1.          Continued Employment Through the
Closing of the XTO Transaction.  The Parties agree that
Employee will continue his employment with the Company, pursuant to the terms of
the Employment Agreement as modified herein, until the earlier of: (i) the
Closing Date, as defined in the Asset Purchase and Sale Agreement – Appalachia
Region dated April 13, 2008, between the Company, Linn Energy Holdings, LLC,
Penn West Pipeline, LLC and XTO (the “Closing
Date”); or (ii) September 1, 2008.  The continued employment
referenced in this paragraph may be subject to earlier termination by the
Company pursuant to the terms of Sections 5.1, 5.2(a), 5.2(b) or 5.5 of the
Employment Agreement, but may not be terminated prior to the period referenced
in the first sentence of this paragraph for any other reason.  For the
avoidance of doubt, the Parties expressly agree that Employee may not terminate
his employment with the

    


    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    Company
prior to the period referenced in the first sentence of this paragraph and that
Section 5.3 of the Employment Agreement is hereby superseded in its
entirety.

    


    2.           Additional
Payment.   Provided that Employee either (i) remains
employed by the Company until the earlier of the Closing Date or September 1,
2008, or (ii) his employment is involuntarily terminated by the Company prior to
the earlier of the Closing Date or September 1, 2008 other than for Cause, and
provided that Employee executes (and does not revoke) a Release in the form
attached as Exhibit A, the Company shall provide Employee with a one-time, lump
sum payment of $15,416.67, payable on or before the thirtieth (30th)
business day after the Termination Date (as defined in the Employment
Agreement), in lieu of any bonus payment to which Employee might otherwise claim
to be entitled for the Company’s fiscal year ending December 31,
2008.

    


    3.           Termination of Employment. Unless
earlier terminated pursuant to Section 5 of the Employment Agreement, Employee’s
employment with the Company shall terminate on the earlier of: (i) the Closing
Date; or (ii) September 1, 2008. The Parties agree that such termination will be
deemed without Cause so long as it occurs on the earlier of: (i) the Closing
Date; or (ii) September 1, 2008, and that all notice provisions of Section 5.4
of the Employment Agreement are waived in the event of such a
termination.

    


    4.           Severance Benefits. The
termination of Employee’s employment without Cause will qualify Employee for
severance benefits pursuant to Sections 6.4(a)(ii) and (iv) of the Employment
Agreement.  The Parties desire to amend the Employment Agreement’s
provisions to specify the timing of Employee’s receipt of those
benefits.  Accordingly, if Employee executes (and does not revoke) a
Release in the form attached as Exhibit A, and has satisfied all of the other
terms and conditions set forth in this Agreement, the Company will provide
Employee the following:

    


    
      	
               
      

            	
              (a)

            	
              beginning
      on the Payment Date, the Company shall pay to Employee twenty- four (24)
      monthly payments of $15,416.67, which payments each represent one-twelfth
      (1/12) of Employee’s annual Base Salary at the highest rate in effect
      during the thirty-six (36) month period prior to the Termination
      Date.

            


    

    


    
      	
               
      

            	
              (b)

            	
              beginning
      on the Payment Date, if Employee is eligible for continuation insurance
      coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985
      (“COBRA”) and has timely elected COBRA continuation coverage under the
      applicable group health plan of the Company, then with respect to the
      period beginning on the Termination Date and continuing through the
      earlier of the end of the period for which Employee is eligible by law to
      receive COBRA continuation coverage under the Company’s group health plan
      and 24 months from the Termination Date, the Company shall reimburse
      Employee for his costs for such continuation coverage.  In order
      to receive such reimbursement, Employee must not be eligible for
      substantially similar benefits under the group health plan of any other
      employer.  The first reimbursement shall be made on the Payment
      Date and the amount of such first reimbursement shall include all costs of
      COBRA continuation coverage for which Employee is entitled to
      reimbursement hereunder for the period beginning on the Termination Date
      and ending on the Payment Date.  Thereafter, reimbursement
      payments pursuant to this paragraph shall be
  made

            


    

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    on a
monthly basis provided that Employee remains entitled to reimbursements
hereunder.

    


    The
“Payment
Date,” as used herein, means the date that is six months after the
Termination Date.  For all purposes of this Agreement and the
Employment Agreement, the Termination Date shall occur when Employee incurs a
“separation from service” with the Company within the meaning of Section
409A(2)(A)(i) of the Internal Revenue Code of 1986, as amended, and applicable
administrative guidance issued thereunder.  The Parties recognize that
by performing its obligations pursuant to this Section 4, the Company will
satisfy all of its obligations under Sections 6.4(a)(ii) and (iv) of the
Employment Agreement.  The Parties further agree that all of the
Company’s obligations with regard to Severance Benefits set forth in Sections
6.4(a)(ii) and (iv) of the Employment Agreement are superseded in their entirety
by the provisions of this Agreement.

    


    5.           Payments of Accrued Base Salary,
Reimbursements and Bonuses. 

    


    (a)           The
Company shall pay to Employee all of the accrued but unpaid Base Salary that he
has earned through the Termination Date.  Such payment will be made no
later than the next regular payday following the Termination Date on which
Employee’s Base Salary would otherwise have been due and payable if not for the
termination of Employee’s employment.

    


    (b)           Within
thirty days of the Termination Date, the Company shall reimburse Employee for
all expenses described in Section 4.1 of the Employment Agreement for which
Employee has submitted timely receipts prior to the Termination
Date.

    


    (c)           The
Parties recognize that Employee has been paid all accrued bonuses owed to him
under the Employment Agreement and that he will earn no additional bonus,
whether in whole or in part, pursuant to the Employee Bonus Plan for the
Company’s fiscal year ending December 31, 2008.

    


    (d)           The
Parties recognize that by performing its obligations pursuant to this Section 5,
the Company will satisfy all of its obligations under Section 6.4(a)(i) of the
Employment Agreement.  The Parties further agree that all of the
Company’s obligations with regard to Severance Benefits set forth in Section
6.4(a)(i) of the Employment Agreement are superseded in their entirety by the
provisions of this Agreement.

    


    6.           Incentive
Plan Rights.

    


    (a)           The
Parties recognize that a termination without Cause will entitle Employee to
certain rights under option agreements and restricted unit agreements which he
has previously entered and which have been awarded under the terms of the Linn
Energy, LLC Long Term Incentive Plan or any successor plan (the “Incentive
Plan”).  Employee’s rights under those agreements will be
governed by the terms and conditions of the applicable agreements and the
Incentive Plan.

    


    (b)           The
Parties recognize that the Compensation Committee of the Board of Directors of
Linn Energy has recommended that Employee be granted an award of 6,800
restricted Units (as defined in the Incentive Plan) under the terms of the
Incentive Plan,

    


    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    which
such award shall be granted promptly following, and conditioned upon, the
approval by the Unit holders of Linn Energy of an increase in the maximum number
of Units subject to awards under the Incentive Plan.  The Parties
recognize that Employee’s rights regarding such an award will be governed by the
terms and conditions of the applicable restricted unit agreement and Incentive
Plan, if applicable.  In the event that such approval is not obtained
by the Payment Date, if employee executes (and does not revoke) a Release in the
form attached as Exhibit A, and has satisfied all the other terms and conditions
set forth in this Agreement, on the Payment Date, the Company will pay a lump
sum cash payment in an amount equal to the Fair Market Value (as defined in the
Incentive Plan) of 6,800 Units, determined as of the Payment Date, in lieu of
the Incentive Plan award described in this paragraph.

    


    7.           Affirmation
of Restrictive Covenants.

    


    (a)           Employee
recognizes that in connection with his employment with the Company, he has
obtained Confidential Information, as defined in the Employment
Agreement.  Employee further recognizes that the restrictive covenants
set forth in Section 7 of the Employment Agreement are necessary to protect the
Company’s legitimate business interests, including its confidential and
proprietary information, trade secrets and goodwill.  Accordingly,
Section 7 of the Employment Agreement is hereby incorporated by reference in
this Agreement, as if set forth fully herein.  Employee acknowledges
his continuing obligations under Section 7 of the Employment Agreement and
reaffirms his duties to abide by the terms of Section 7 of the Employment
Agreement, including but not limited to its requirements regarding Confidential
Information (Section 7.1), Return of Property (Section 7.2), Non-Compete
Obligations (Section 7.3), Non-Solicitation (Section 7.4) and Assignment of
Developments (Section 7.5).

    


    (b)           Notwithstanding
the foregoing Section 7(a) of this Agreement, the Parties agree that it shall
not be a breach of Employee’s obligations under Section 7.3 of the Employment
Agreement if, after the Termination Date, he accepts employment with XTO or any
other company, and performs services directly for XTO or any other company
(including those services specified in Section 7.3(b) of the Employment
Agreement), so long
as, during the periods specified in Section 7.3(b) of the Employment
Agreement, such services are performed only with regard to the Appalachia
region.

    


    (c)           If,
following the Termination Date, Employee violates in any material respect any of
the covenants set forth in this Agreement (including, without limitation, his
covenants pursuant to Section 7 of the Employment Agreement as modified
herein), Employee will have no further right or claim to any payments or other
benefits to which the Employee may otherwise be entitled under Section 4 of
this Agreement from and after the date on which Employee engages in such
activities, the Company will have no further obligations with respect to such
payments or benefits, and the covenants in Section 7 will nevertheless
continue in full force and effect.  The rights afforded the Company
under this provision are in addition to any and all rights and remedies
otherwise afforded by law.

    


    8.           Statements Concerning the
Company.  Employee agrees that he shall refrain from publishing
any oral or written statements about Linn Energy, the Company, any of their
affiliates or any of the Company’s, Linn Energy’s or any of their affiliates’
directors, officers, employees,

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    consultants,
agents or representatives that (a) are slanderous, libelous, or defamatory, (b)
disclose Confidential Information of the Company, Linn Energy, any of their
affiliates or any of the Company’s, Linn Energy’s, or any of their affiliates’
business affairs, directors, officers, employees, consultants, agents or
representatives, or (c) place the Company, Linn Energy, any of their affiliates,
or any of the Company’s, Linn Energy’s, or any of their affiliates’ directors,
officers, employees, consultants, agents or representatives in a false light
before the public.  The Company and Linn Energy agree that they shall
refrain from publishing any oral or written statements about Employee that (a)
are slanderous, libelous, or defamatory, (b) disclose Confidential Information
of Employee, or (c) place Employee in a false light before the
public.  A violation or threatened violation of this paragraph 8 may
be enjoined by the courts.  The rights afforded the Employee, Company,
Linn Energy and their affiliates under this provision are in addition to any and
all rights and remedies otherwise afforded by law.

    


    9.           No Waiver.  No
failure by either party hereto at any time to give notice of any breach by the
other party of, or to require compliance with, any condition or provision of
this Agreement shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.

    


    10.           Applicable Law.  This
Agreement is entered into under, and shall
be governed for all purposes by, the laws of the Commonwealth
of Pennsylvania without reference to the principles of
conflicts of law thereof.

    


    11.           Severability. To
the extent permitted by applicable law, the Company and Employee hereby agree that
any term or provision of this Agreement that renders such term or provision or any other term or provision
hereof invalid or unenforceable in any respect shall be modified to the extent
necessary to avoid rendering such term or provision invalid or unenforceable,
and such modification shall be accomplished in the manner that most nearly
preserves the benefit of the Company and
Employee’s bargain hereunder.

    


    12.           Withholding of Taxes and Other
Employee Deductions.  The Company may withhold from any
benefits and payments made pursuant to this Agreement all federal, state, local,
and other taxes and withholdings as may be required pursuant to any law or
governmental regulation or ruling.

    


    13.           Counterparts.  This
Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same Agreement.

    


    14.           Assignment. This
Agreement shall be binding upon and inure
to the benefit of Company and any
successor of Company, by merger or
otherwise.  The Company may
assign its rights hereunder to an affiliate.  Except as set forth in the previous two
sentences, and except that any payments due Employee under this Agreement
shall be assignable by the Employee by will or the laws of descent and distribution, this Agreement and the rights and obligations of the
Parties hereunder are personal and neither this Agreement
nor any right, benefit or obligation of either party hereto
shall be subject to voluntary or involuntary assignment, alienation or transfer,
whether by operation of law or otherwise, without the prior written consent of
the other party.

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    15.           Amendment; Entire Agreement.  This
Agreement may not be changed orally but
only by an agreement in writing agreed to and signed by both
parties.  This Agreement and the Employment
Agreement as modified herein constitute the entire agreement
of the parties with regard to the subject matter hereof.  The
provisions of this Agreement amend and supersede any contrary provision of the
Employment Agreement; to the extent there is any conflict between the Employment
Agreement and this Agreement, this Agreement governs and is binding upon the
Parties.

    


    16.           Defined
Terms.  Unless expressly defined herein, all capitalized terms
shall have the same definition given to them in the Employment
Agreement.

    


    


    IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the Effective Date.

     

    COMPANY:

     

    LINN OPERATING, INC.

    
      


      


      By:/s/ Mark
E.
Ellis                                         


      Name: Mark E. Ellis

      Title:President and Chief Operating Officer

       

      


       

      EMPLOYEE:

       

      


       

      /s/ Thomas A.
Lopus                                           


      Thomas A. Lopus

       

      


       

      LINN ENERGY, LLC

      


      


      By:/s/ Mark E.
Ellis                                          

      Name: Mark E. Ellis

      Title:President
and Chief Operating Officer

    

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    APPENDIX
A

     

    RELEASE
AGREEMENT

     

    This
Release Agreement (this “Agreement”)
constitutes the release referred to in that certain Separation Agreement (the
“Separation Agreement”)
dated as of May __, 2008, by and among Thomas A. Lopus (“Employee”)
and Linn Operating, Inc. (the “Company”).

     

    (a)  For
good and valuable consideration, including the Company’s contemporaneous
provision of certain payments and benefits to Employee in accordance with
Sections 2 and 4 of the Separation Agreement, Employee hereby releases,
discharges and forever acquits the Company, Linn Energy, LLC and their
respective Affiliates and subsidiaries and the past, present and future
stockholders, members, partners, directors, managers, employees, agents,
attorneys, heirs, legal representatives, successors and assigns of the
foregoing, in their personal and representative capacities (collectively, the
“Company
Parties”), from liability for, and hereby waives, any and all claims,
damages, or causes of action of any kind related to Employee’s employment with
any Company Party, the termination of such employment, and any other acts or
omissions related to any matter on or prior to the date of this Agreement
including without limitation any alleged violation through the date of this
Agreement of:  (i) the Age Discrimination in Employment Act of 1967, as
amended; (ii) Title VII of the Civil Rights Act of 1964, as amended; (iii) the
Civil Rights Act of 1991; (iv) Section 1981 through 1988 of Title 42 of the
United States Code, as amended; (v) Employee Retirement Income Security Act of
1974, as amended; (vi) the Immigration Reform Control Act, as amended; (vii) the
Americans with Disabilities Act of 1990, as amended; (viii) the National Labor
Relations Act, as amended; (ix) the Occupational Safety and Health Act, as
amended; (x) the Family and Medical Leave Act of 1993; (xi) any state
anti-discrimination law; (xii) any state wage and hour law; (xiii) any other
local, state or federal law, regulation or ordinance; (xiv) any public policy,
contract, tort, or common law claim; (xv) any allegation for costs, fees, or
other expenses including attorneys’ fees incurred in these matters; (xvi) any
and all rights, benefits or claims Employee may have under any employment
contract, incentive compensation plan or stock option plan with any Company
Party or to any ownership interest in any Company Party except as expressly
provided in the Separation Agreement and any stock option or other equity
compensation agreement between Employee and a Company Party; and (xvii) any
claim for compensation or benefits of any kind not expressly set forth in the
Separation Agreement or any such stock option or other equity compensation
agreement (collectively, the “Released
Claims”).  In no event shall the Released Claims include (a) any
claim which arises after the date of this Agreement, (b) any claim to vested
benefits under an employee benefit plan,  (c) any claims under the
terms of the Separation Agreement, or (d) any rights to indemnification from the
Company and its direct or indirect subsidiaries pursuant to any provisions of
the Company’s (or an subsidiaries’) organizational documents or any directors
and officers liability insurance policies maintained by the
Company.  This Agreement is not intended to indicate that any such
claims exist or that, if they do exist, they are meritorious.  Rather,
Employee is simply agreeing that, in exchange for the consideration recited in
the first sentence of this paragraph, any and all potential claims of this
nature that Employee may have against the Company Parties, regardless of whether
they actually exist, are expressly settled, compromised and waived.  By
signing this Agreement, Employee is bound by it.  Anyone who succeeds to
Employee’s rights and responsibilities, such as heirs or the executor
of

     

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    Employee’s
estate, is also bound by this Agreement.  This release also applies to any
claims brought by any person or agency or class action under which Employee may
have a right or benefit.  Notwithstanding this release of liability,
nothing in this Agreement prevents Employee from filing any non-legally waivable
claim (including a challenge to the validity of this Agreement) with the Equal
Employment Opportunity Commission (“EEOC”) or comparable state or local agency
or participating in any investigation or proceeding conducted by the EEOC or
comparable state or local agency; however, Employee understands and agrees that
Employee is waiving any and all rights to recover any monetary or personal
relief or recovery as a result of such EEOC or comparable state or local agency
proceeding or subsequent legal actions.  THIS RELEASE INCLUDES MATTERS
ATTRIBUTABLE TO THE SOLE
OR PARTIAL NEGLIGENCE (WHETHER GROSS OR SIMPLE) OR OTHER FAULT, INCLUDING STRICT
LIABILITY, OF ANY OF THE COMPANY PARTIES.

     

    (b)           Employee
agrees not to bring or join any lawsuit against any of the Company Parties in
any court relating to any of the Released Claims.  Employee represents that
Employee has not brought or joined any lawsuit or filed any charge or claim
against any of the Company Parties in any court or before any government agency
and has made no assignment of any rights Employee has asserted or may have
against any of the Company Parties to any person or entity, in each case, with
respect to any Released Claims.

     

    (c)           By
executing and delivering this Agreement, Employee acknowledges
that:

     

    (i)           Employee
has carefully read this Agreement;

     

    
      	
               
      

            	
              (ii)

            	
              Employee
      has had at least twenty-one (21) days to consider this Agreement before
      the execution and delivery hereof to the
  Company;

            


    

     

    
      	
               
      

            	
              (iii)

            	
              Employee
      has been and hereby is advised in writing that Employee may, at Employee’s
      option, discuss this Agreement with an attorney of Employee’s choice and
      that Employee has had adequate opportunity to do so;
  and

            


    

     

    
      	
               
      

            	
              (iv)

            	
              Employee
      fully understands the final and binding effect of this Agreement; the only
      promises made to Employee to sign this Agreement are those stated in the
      Severance Agreement and herein; and Employee is signing this Agreement
      voluntarily and of Employee’s own free will, and that Employee understands
      and agrees to each of the terms of this
  Agreement.

            


    

     

               Notwithstanding
the initial effectiveness of this Agreement, Employee may revoke the delivery
(and therefore the effectiveness) of this Agreement within the seven day period
beginning on the date Employee delivers this Agreement to the Company (such
seven day period being referred to herein as the “Release Revocation
Period”).  To be effective, such revocation must be in writing
signed by Employee and must be delivered to the Company before 11:59 p.m.,
Pittsburgh, Pennsylvania time, on the last day of the Release Revocation
Period.  If an effective revocation is delivered in the foregoing manner
and timeframe, this Agreement shall be of no force or effect and

     

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    shall be
null and void ab
initio.  No consideration shall be paid if this Agreement is revoked
by Employee in the foregoing manner.

     

    


    Executed
on this ___________ day of _____________, _________.

     

    _________________________________  

    Thomas A.
Lopus

    


     

    STATE OF
__________________         §

     

                                                                           
§

     

    COUNTY OF
_______________             §

     

     

     

    BEFORE
ME, the undersigned authority personally appeared Thomas A. Lopus, by me known
or who produced valid identification as described below, who executed the
foregoing instrument and acknowledged before me that he subscribed to such
instrument on this _____ day of ______________, ________.

     

    _____________________________________

     

    NOTARY
PUBLIC in and for the

     

    State of
___________________

     

    My
Commission Expires:  ___________________

     

    Identification
produced: