EXHIBIT 10.6
LIMITED RELEASE AGREEMENT
-------------------------
THIS LIMITED RELEASE AGREEMENT is entered into as of the 29th day of
October, 2002 (the "Agreement"), by and between OVERHILL CORPORATION (formerly
known as Polyphase Corporation) and to be known from and after the effective
date of the Spin-Off as TreeCon Resources, Inc.), a Nevada corporation
("TreeCon"), OVERHILL FARMS, INC., a Nevada corporation, and Xxxxx Xxxxx, an
individual residing in the state of New York ("Xxxxx").
R E C I T A L S
WHEREAS, As of the 1st day of November 1999 TreeCon, Overhill Farms,
Inc. and Xxxxx entered into that certain Employment Agreement, a copy of which
is attached hereto as Exhibit "A" (the "Employment Agreement"); and
WHEREAS, On or about August 15, 2001, the Board of Directors of TreeCon
approved a plan of reorganization pursuant to which TreeCon will distribute to
its stockholders all of the shares of Overhill Farms, Inc. stock it owns, and
TreeCon will no longer own any interest in Overhill Farms, Inc. (the
"SPIN-OFF"). Accordingly, upon consummation of the Spin-Off, Overhill Farms,
Inc. will be a separate, independent company, TreeCon will not own any shares of
stock of Overhill Farms, Inc. and there will no longer be a parent/subsidiary
relationship between the two companies.
WHEREAS, On and as of the Effective Date (as defined below), Xxxxx will
resign from his positions as President and Chief Operating Officer and Chairman
of the Board of TreeCon; and
WHEREAS, the parties desire to enter into this Agreement to set forth
the terms of Xxxxx' separation from TreeCon.
NOW, THERFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. TERMINATION OF EMPLOYMENT OBLIGATIONS AND PARTIAL RELEASE. On and as
of the close of business on the day the Spin-off is consummated (the "Effective
Date"), Xxxxx resigns from his position, as President and Chief Operating
Officer and Chairman of the Board of TreeCon, and TreeCon accepts Xxxxx'
resignation from such positions, however, Xxxxx shall remain on the board of
directors of TreeCon. TreeCon hereby releases Xxxxx from all obligations as set
forth in Article III and Article V of the Employment Agreement. In connection
with Xxxxx' resignation, TreeCon shall be obligated to pay Xxxxx compensation
pursuant to Article IV, Section 4.1 of the Employment Agreement.
2. LIMITED RELEASE FROM LIABILITY. Concurrently with such resignation,
TreeCon's obligations to pay compensation pursuant to Article II of the
Employment Agreement shall be terminated and have no further force or effect,
and TreeCon shall have no further liabilities or obligations therefor. TreeCon
expressly acknowledges and agrees that it shall not be released from, and shall
continue to remain liable for (i) any and all obligations occurring or arising
prior to the Effective Date, (ii) all indemnification obligations for officers
and directors as set forth in TreeCon's articles of incorporation, by-laws or
other corporate governance documents and (iii) any other liability based upon a
claim arising as a result of any action taken by Xxxxx as an officer, director
or employee of TreeCon, whether arising prior to, on or after the Effective
Date, and TreeCon affirms and agrees that it shall remain liable for any and all
such obligations, which shall survive the Effective Date.
3. NO EFFECT ON OVERHILL FARMS OBLIGATIONS. This Agreement and the
limited release of TreeCon hereunder shall in no event affect any provisions
applicable to, or the obligations of Overhill Farms, Inc. Overhill Farms, Inc.
hereby acknowledges and affirms its continuing obligations under the Employment
Agreement in its entirety as if TreeCon had not been released hereunder.
4. MISCELLANEOUS.
4.1 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS APPLICABLE TO CONTRACTS MADE
AND THAT ARE TO BE WHOLLY PERFORMED WITHIN SUCH STATE, WITHOUT REGARD TO
PRINCIPLES REGARDING CHOICE OF LAW OR CONFLICTS OF LAWS.
4.2 COUNTERPARTS. This Agreement may be executed in several
counterparts by one or more of the undersigned and all such counterparts so
executed shall together be deemed and constitute one final Agreement, as if one
document had been signed by all parties hereto; and each such counterpart shall
be deemed an original, binding the parties subscribed hereto and multiple
signature pages affixed to a single copy of this Agreement shall be deemed to be
a fully executed original Agreement.
4.3 BINDING EFFECT. This Agreement and the terms, covenants,
conditions, provisions, obligations, undertakings, rights and benefits hereof,
shall be binding upon, and shall inure to the benefit of, the undersigned
parties and their respective heirs, executors, administrators, representatives,
officers, directors, shareholders, successors, agents, servants, employees,
attorneys, and assigns.
-2-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized representatives as of the date
first written above.
"TreeCon"
OVERHILL CORPORATION, a Nevada
corporation formerly known as Polyphase
Corporation
By: /S/ XXXXXXX X. XXXXXXX
-----------------------------------------
Name: XXXXXXX X. XXXXXXX
Title: SENIOR VICE PRESIDENT
"Xxxxx"
/S/ XXXXX XXXXX
---------------------------------------------
Xxxxx Xxxxx
"Overhill Farms, Inc."
OVERHILL FARMS, INC., a Nevada
corporation
By: /S/ XXXXXXX X. XXXXXXX
-----------------------------------------
Xxxxxxx X. Xxxxxxx
Vice President and Chief Financial
Officer
-3-
