EXHIBIT 10.26
SETTLEMENT AGREEMENT, RELEASE AND WAIVER
WHEREAS, Xxxxxx X. Box was employed by Box Energy Corporation, and his
employment was discontinued effective August 8, 1996;
WHEREAS, Xxxxxx X. Box executed a Severance Agreement ("Severance
Agreement") on or about December 12, 1995, a copy of which is attached as
Exhibit "A";
WHEREAS, Xxxxxx X. Box has filed several lawsuits in state and federal
court against Box Energy Corporation (the "Lawsuits");
WHEREAS, Box Energy Corporation denies that it is liable in any fashion
to Xxxxxx X. Box, Jr., including for any liabilities asserted in the Lawsuits
or for any severance under the Severance Agreement;
WHEREAS, the parties have decided to resolve all of their differences
and compromise all disputes between them, including, but not limited to the
Lawsuits and the Severance Agreement;
WHEREAS, in exchange for a Settlement Payment (as hereinafter defined)
and other consideration set forth in this Agreement, Xxxxxx X. Box has agreed
to release and waive all claims and damages against Box Energy Corporation,
its parent corporation, subsidiaries, affiliated companies, directors,
officers, partners, employees, agents, attorneys, shareholders,
representatives and related persons and entities and to dismiss with
prejudice all pending litigation;
WHEREAS, in exchange for the releases in Paragraph 4(a) and 4(b) of this
Agreement, Box Energy Corporation has agreed to release and waive all claims
and damages against Xxxxxx X. Box and his spouse, Xxxxxx Xxxxxx; and
WHEREAS, Xxxxxx X. Box and Xxxxxx Xxxxxx, on behalf of themselves and
their heirs, successors, assigns, agents, representatives and related persons
and entities (hereinafter collectively referred to as "EMPLOYEE and SPOUSE"),
and Box Energy Corporation, on behalf of itself and its parent, subsidiaries
and affiliated companies, and on behalf of their directors, officers,
partners, employees, agents, attorneys, shareholders, representatives and
related persons and entities (hereinafter collectively referred to as
"EMPLOYER") wish to enter this Settlement Agreement, Release and Waiver
(hereinafter referred to as the "Agreement");
NOW THEREFORE, in consideration of the mutual covenants set forth
herein, EMPLOYER and EMPLOYEE and SPOUSE agree as follows:
1. EMPLOYEE hereby agrees to accept a settlement payment in the
amount of ONE MILLION DOLLARS ($1,000,000), less applicable taxes and
withholdings, as severance and an additional amount of TWO HUNDRED THOUSAND
DOLLARS ($200,000) for the reimbursement of their attorney's fees
(collectively referred to as the "Settlement Payment"). The Settlement
Payment is contingent upon the final consummation of all transactions
described in the Master Settlement Agreement with J.R. Simplot ("MSA") and
shall not be tendered until the Closing, as that term is defined in the MSA.
EMPLOYEE further is not entitled to the Settlement Payment under this
Paragraph 1 nor to the other consideration set forth in this Agreement unless
EMPLOYEE executes this Agreement, and EMPLOYER is not obligated to extend the
Settlement Payment under this Paragraph 1 nor to provide the other
consideration set forth in this Agreement unless it executes this Agreement.
This Agreement may only be executed by the parties on the date of the Closing
of the MSA, as that term is defined therein.
2. EMPLOYER will grant to EMPLOYEE an option to purchase 50,000
shares of Class B Common Stock of EMPLOYER at an exercise price of $9.00 per
share, exercisable in whole or in part at any time until September 1, 2002
(the "New Option"). EMPLOYER will submit the New Option for approval by the
EMPLOYER's stockholders if necessary. EMPLOYEE hereby waives and releases
any right to purchase EMPLOYER's stock arising out of the option referred to
in footnote (3) under the caption "Ownership of Management" in the EMPLOYER's
1996 Proxy Statement dated October 18, 1996.
3. EMPLOYER assigns to EMPLOYEE all of EMPLOYER's rights, title, and
interest in and to the personal property consisting of the computers and
related equipment described on Exhibit "B" to this Agreement ("Computer
Personal Property"), without recourse, provided, however, EMPLOYER may at its
sole option, in lieu of assigning a specific item composing the Computer
Personal Property, assign to EMPLOYEE a new item similar to such item of
Computer Personal Property. Additionally, EMPLOYER assigns to EMPLOYEE all
of EMPLOYER's rights, title, and interest in and to the personal property
consisting of the furniture described on Exhibit "C" TO THIS Agreement
("Furniture Personal Property"), without recourse, provided, however,
EMPLOYER may at its sole option, in lieu of assigning a specific item
composing the Furniture Personal Property, assign to EMPLOYEE an item similar
to such item of Furniture Personal Property. All items assigned by EMPLOYER
pursuant to this paragraph are assigned to EMPLOYEE on an AS IS basis,
without limitation, any warranty of merchantability or fitness for any
particular purpose.
4. (a) In consideration of the Settlement Payment, the release
in Paragraph 4(c), and other consideration set forth in this Agreement,
EMPLOYEE hereby irrevocably and unconditionally releases, acquits and
discharges EMPLOYER from any and all claims, demands, causes of action,
suits, and damages of whatever kind or character, which he has or may have in
the future, based in whole or in part on any conduct, fact, matter, act,
omission, cause, transaction, event or thing whatsoever, occurring through
the Effective Date (as hereinafter defined) of this Agreement. EMPLOYEE
waives all claims and causes of action against EMPLOYER and all damages, if
any, that may be recoverable.
4. (b) In consideration of the Release in Paragraph 4(c), set
forth in this Agreement, SPOUSE hereby irrevocably and unconditionally
releases, acquits and discharges EMPLOYER from any and all claims, demands,
causes of action, suits, and damages of whatever kind or character, which she
has or may have in the future, based in whole or in part on any conduct,
fact, matter, act, omission, cause, transaction, event or thing whatsoever,
occurring through the Effective Date (as hereinafter defined) of this
Agreement. SPOUSE waives all claims and causes of action against EMPLOYER
and all damages, if any, that may be recoverable.
4. (c) In consideration of the releases in Paragraphs 4(a) and
4(b), EMPLOYER hereby irrevocably and unconditionally releases, acquits and
discharges EMPLOYEE and SPOUSE from any and all claims, demands, causes of
action, suits, and damages of whatever kind or character, which each such
person or entity has or may have in the future, based in whole or in part on
any conduct, fact, matter, act, omission, cause, transaction, event or thing
whatsoever, occurring through the Effective Date of this Agreement. EMPLOYER
waives all claims and causes of action against EMPLOYEE and SPOUSE and all
damages, if any, that may be recoverable.
5. EMPLOYEE agrees to move to dismiss with prejudice all pending
lawsuits that they have filed against EMPLOYER, with each party to bear his,
her or its attorney's fees and costs. EMPLOYEE further agrees to move to
dismiss the shareholder derivative action EMPLOYEE filed in his
representative capacity in Cause No. 96-08451, Xxx Box v. Xxxx Xxx, Xxx Xxx,
Xxxx Xxx, Box Brothers Holding Company, Inc., CKB Petroleum, Inc. and Box
Energy Corporation, in the 000xx Xxxxxxxx Xxxxxxxx Xxxxx xx Xxxxxx Xxxxxx,
Xxxxx and to fully cooperate and use his best efforts to do each and every
act necessary to obtain the dismissal of such suit with prejudice against all
defendants, with each party to bear his, her or its own attorney's fees and
costs.
6. EMPLOYEE represents and warrants that the Severance Agreement was
not subsequently modified and that, except for the Severance Agreement, he
has no other claims for employment compensation or benefits against EMPLOYER.
7. It is expressly understood and agreed that this Agreement is not
and shall not be construed as an admission of liability on the part of
EMPLOYER, which expressly denies that it is liable.
8. In any suit pertaining to this Agreement, venue shall lie
exclusively with the courts of Dallas County, Texas and the laws of the State
of Texas shall govern the suit.
9. In any suit to enforce the terms of this Agreement, the
prevailing party shall recover its reasonable attorney's fees, except witness
fees, and reasonable court costs.
10. The failure by any party to this Agreement to enforce at any
time, or for any period of time, any one or more of the terms or conditions
of this Agreement shall not be a waiver of such terms or conditions or of
such party's right thereafter to enforce each and every term and condition of
this Agreement.
11. Should any clause, sentence, provision, paragraph or part of this
Agreement for any reason whatsoever, be adjudged by any court of competent
jurisdiction, or be held by any other competent authority having
jurisdiction, to be invalid, unenforceable, or illegal, such judgment or
holding shall be confined in its operation to the clause, sentence,
provision, paragraph or part of this Agreement directly involved, and the
remainder of this Agreement shall remain in full force and effect.
12. Neither this Agreement nor any part thereof is admissible in any
administrative or judicial proceeding other than one to enforce the terms of
this Agreement.
13. This Agreement shall be fairly construed and interpreted based on
its language and without regard to which party authored the Agreement.
14. This Agreement constitutes the entire agreement between the
parties and supersedes all prior and contemporaneous negotiations,
representations, agreements, and understandings. No change, modification, or
termination of any of the provisions of this Agreement shall be effective
unless set forth in a written instrument that is signed by both parties.
15. EMPLOYEE and SPOUSE hereby acknowledge that they have read the
foregoing document, understand its contents, agree to its terms and
conditions, and that notwithstanding any medical condition, they are of sound
mind and competent to enter into this Agreement, and do so knowingly and of
their own free will. They understand that this Agreement includes a final
general release as set forth in Paragraphs 4(a) and 4(b) of this Agreement
and that they can make no claims as set forth in Paragraphs 4(a) and 4(b) of
this Agreement against EMPLOYER.
THIS AGREEMENT is entered into to be effective as of the 29th day of
August, 1997 ("Effective Date").
EMPLOYER
BOX ENERGY CORPORATION
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Its: President & Chief Operating Officer
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EMPLOYEE and SPOUSE
/s/ Xxxxxx X. Box
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XXXXXX X. BOX
/s/ Xxxxxx Xxxxxx
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XXXXXX XXXXXX
Acknowledgement
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THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned notary public, personally appeared XXXXXX X.
BOX, known to me to be that person whose name is subscribed in the foregoing
instrument and acknowledged to me that the instrument was executed for the
purposes and consideration therein expressed and the capacities therein
stated.
SUBSCRIBED AND SWORN TO before me on this 29th day of August, 1997.
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Notary Public, State of Texas
My Commission Expires:
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THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned notary public, personally appeared Xxxxxx
Xxxxxx, known to me to be that person whose name is subscribed in the
foregoing instrument and acknowledged to me that the instrument was executed
for the purposes and consideration therein expressed and the capacities
therein stated.
SUBSCRIBED AND SWORN TO before me on this 29th day of August, 1997.
----------------------------------
Notary Public, State of Texas
My Commission Expires:
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Corporate Acknowledgement
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THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned notary public, personally appeared Xxxxx
Xxxx, President of Box Energy Corporation, a Delaware corporation, known to
me to be the person whose name is subscribed in the foregoing instrument and
acknowledged to me that the instrument was executed for the purposes and
consideration therein expressed and in the capacity stated therein.
SUBSCRIBED AND SWORN TO before me on this 29th day of August, 1997.
----------------------------------
Notary Public, State of Texas
My Commission Expires:
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