EXHIBIT 10.90
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT is made
effective as of October 14, 1998 by and between XXXXXXX XXXXXX
(the "Executive") and HORIZONTAL VENTURES, INC., a Colorado
corporation (formerly known as Petro Union, Inc.) (the
"Employer").
RECITALS
WHEREAS, the Employer and the Executive entered into that
certain Employment Agreement dated September 9, 1997 (the
"Agreement"), and
WHEREAS, the Employer and the Executive desire to amend
certain provisions of the Agreement as of the date hereof, and
WHEREAS, the Employer and the Executive desire to amend
certain additional provisions of the Agreement contingent upon,
and effective as of, the closing of a transaction between the
Employer and SABA Petroleum Company, whereby the Employer shall
gain effective control of SABA Petroleum Company (the "SABA
Petroleum Transaction"), presently scheduled to close in or about
December, 1998.
NOW, THEREFORE, the parties hereto, intending to be legally
bound, and for good and valuable consideration, agree as follows:
1. Effective as of the date hereof, the Agreement shall
be amended as follows:
a. The second and third sentences of Section 3(a)
of the Agreement are deleted in their entirety and the following
shall be inserted in place thereof:
In addition, at the option of the Executive's
Estate, the Employer shall either (i) pay to
the Executive's Estate, in a lump sum within
60 days of the end of the Employer's then-current
fiscal year, an amount (to the extent such amount
is a positive number) equal to the value of all
Employer stock and stock options held by the
Executive as of the date of his death, or (ii)
distribute to the Executive's Estate, within 60
days of the Executive's death, all Employer stock
and stock options held by the Executive as of
the date of his death, all in accordance with the
terms of any benefits to which the Executive would
be entitled in any plan in which he is a participant.
b. Section 3(b) of the Agreement is deleted in its
entirety and the following shall be inserted in place thereof:
(b) Disability. In the event that the
Executive in unable to substantially perform his
duties hereunder for a period of six months during
any continuous period of 12 months due to physical
or mental illness or disability, whether or not
connected to his employment hereunder, the
Employer shall have the right, by written notice
to the Executive, to place the Executive on
disability status. In such event, the Employer
shall pay to the Executive (or to his Estate if
the Executive is no longer alive) his base salary
and furnish to the Executive and his family all
benefits during the Severance Period. The
determination of the Executive's disability shall
be made by the Executive's regular treating
physician. If the Employer disagrees with the
conclusion of said physician, it may engage a
second physician to examine the Executive. If
these physicians disagree, then the parties shall
select a third physician to examine the Executive,
in which event their majority opinion shall be
conclusive.
c. Clause "(iv)" of Section 3(c) of the Agreement
is deleted in its entirety.
d. Clause "(iii)" of Section 3(d) of the Agreement
is deleted in its entirety and the following shall be inserted in
place thereof:
(iii) Employer's requirement of the Executive
that he be based at any office or location
other than New York, New York, except for travel
reasonably required in the performance of the
Executive's responsibilities;
e. Clause "(iii)" of Section 3(e) of the Agreement
is deleted in its entirety and the following shall be inserted in
place thereof:
(iii) specifies the effective date of the termination
(which date shall be not more than 15 days after the giving of
such notice) (the "Date of Termination").
f. Clause "(B)" of Section 4(d)(i) of the Agreement
is deleted in its entirety and the following shall be inserted in
place thereof:
B. the Executive's base salary for
the balance of the term of this Agreement at
the rate in effect as of the Date of
Termination; and
g. Clause "(F)" of Section 4(d)(i) of the Agreement
is deleted in its entirety and the following shall be inserted in
place thereof:
F. at the option of the Executive or
his legal representative, the Employer shall
either (i) pay to the Executive or his legal
representative, in a lump sum within 30 days
of the Date of Termination, an amount (to the
extent such amount is a positive number) equal
to the value of all Employer stock and stock
options held by the Executive as of the Date
of Termination, or (ii) distribute to the
Executive or his legal representative, within
30 days of the Date of Termination, all Employer
stock and stock options held by the Executive as
of the Date of Termination. Further, for the
remainder of the Severance Period, or such
longer period as any plan, program or policy
may provide, the Employer shall continue
benefits to the Executive and the Executive's
family at least equal to those which would
have been provided to them in accordance with
the plans, programs and policies described in
this Agreement as if the Executive's employment
had not been terminated, including health
insurance and life insurance, or, if more
favorable, in accordance with the plans, programs
or policies of the Employer in effect at any time
thereafter with respect to other key executives
and their families; for purposes of eligibility
for retiree benefits pursuant to such plans,
programs and policies, the Executive shall be
considered to have remained employed until the
end of the Severance Period and to have retired
on the last day of such period.
h. Section 8 of the Agreement is deleted in its
entirety and the following shall be inserted in place thereof:
8. Stock Grants. Upon the Effective
Date, the Executive shall be issued 30,000
shares of the Employer's Common Stock, no par
value per share. These shares shall be fully
vested and non-forfeitable as of the date of
their issuance.
i. Section 9(e) of the Agreement is deleted in its
entirety and the following shall be inserted in place thereof:
(e) Fringe Benefits. During the term,
the Executive shall be entitled to those fringe
benefits offered to other key employees of
Employer, as well as an automobile allowance
of $1,000 per month.
2. Effective immediately upon the close of the SABA
Petroleum Transaction, the Agreement shall be amended as follows:
a. The first paragraph of Section 3 of the
Agreement shall be deleted in its entirety and the following
shall be inserted in place thereof:
3. Term and Termination. The term of
this Agreement shall commence on the Effective
Date and shall continue uninterrupted through
and including the fifth anniversary of the
closing of SABA Petroleum Transaction unless
sooner terminated or extended by mutual written
agreement. The Executive's employment hereunder
may be terminated as follows:
b. The first sentence of Section 7 of the Agreement
shall be deleted in its entirety and the following shall be
inserted in place thereof:
In consideration for his services, Employer
shall pay the Executive a salary at the rate
of $250,000 per annum.
3. Miscellaneous.
a. All other provisions of the Agreement, to the
extent not amended or superseded by the terms of this First
Amendment to the Agreement, are hereby ratified and reaffirmed.
b. The parties acknowledge that the Agreement, as
amended or superseded by the terms of this First Amendment to the
Agreement, constitutes all of the terms of the Employer's
employment of the Executive during the term set forth in the
Agreement, as amended, and that such terms integrate all previous
oral and written communications and understandings between the
parties with respect to the terms of the Employer's employment of
the Executive. The parties also acknowledge that any
representations made or communications effected by them, in each
case relating to this First Amendment to the Agreement, as void
unless set forth in this writing.
c. This First Amendment to the Agreement shall be
binding upon and insure to the benefit of the parties hereto and
their respective successors and permitted assigns.
d. This First Amendment to the Agreement may be
executed in one or more counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
e. This First Amendment to the Agreement shall be
governed by and construed in accordance with the domestic laws
of, and enforced exclusively in, the State of New York, without
giving effect to any choice or conflict of law provision or rule
that would cause the application of the laws of any jurisdiction
other than the State of New York.
f. No amendment of any provision of this First
Amendment to the Agreement shall be valid unless the same shall
be in writing and signed by all of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this
First Amendment to the Agreement as of the date first above
written.
EMPLOYER:
HORIZONTAL VENTURES, INC.
By:__________________________
Name:
Title:
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxx
_____________________________
Xxxxxxx Xxxxxx
