EXHIBIT 10.28
SETTLEMENT, RELEASE AND CONFIDENTIALITY AGREEMENT
This settlement, release and confidentiality agreement (the "Agreement") is
made and entered into by and between Xxxxx X. Xxxxxxxxx ("Employee"), his heirs
and assigns, and TGX Corporation, its successors, subsidiaries and affiliates
(the "Company").
W I T N E S S E T H:
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WHEREAS, Employee commenced employment either as a consultant or employee
with the Company on or about March 30, 1992 and has entered into that certain
Personal Service and Employment Agreement dated as of March 31, 1992 and that
further Employment Agreement made as of April 1, 1995 (the "Employment
Agreement"); and
WHEREAS, Employee's active service for the Company terminated on February
10, 1997; and
WHEREAS Employee and the Company desire to settle fully and finally all
differences between them, including, any claims that might arise out of: (i)
Employee's employment with the Company; (ii) the termination thereof; and (iii)
the Employment Agreement.
NOW THEREFORE, in consideration of the premises and mutual promises herein
contained, it is agreed as follows:
1. Employee agrees that his active employment with the Company terminated
as of February 10, 1997 (the "Termination Date") and as of the
Termination Date he no longer serves as President or as any other
officer or an employee of the Company. Employee agrees that effective
as of the date upon which the parties hereto execute this Agreement
and Employee receives the cash payment provided for herein (the
"Effective Date") Employee agrees that he is no longer a director of
the Company and Employee shall execute a formal letter of resignation
as a director. Employee acknowledges and understands that he will not
be reemployed by the Company. Employee specifically waives all claims
for back pay, front pay, vacation pay, sick pay, bonus pay, or any
other form of compensation, except as set forth herein.
2. Employee represents that he has not filed any claim, complaint,
charge, or lawsuit against the Company with any governmental agency or
any court, and that he will not do so at any time hereafter for any
matter, claim, or incident known or unknown which occurred or arose
out of occurrences on or prior to the Effective Date; provided,
however, that this shall not limit Employee from filing a claim or
lawsuit for the sole purpose of enforcing his rights under this
Agreement.
3. Employee and the Company agree that all claims of any nature
whatsoever by Employee against the Company, its legal representatives,
successors, assigns, officers, directors, employees, agents,
affiliates or attorneys for any matters which arose during the time,
or as a result of, Employee's employment with the Company, whether
known or unknown, suspected or unsuspected, including but
not limited to, rights under federal, state, or local laws prohibiting
age, race, religion, or other forms of discrimination; or claims
growing out of any legal restrictions on the Company's right to
terminate its employees, except as provided in Paragraph 4 hereof or
claims arising out of this Agreement shall be resolved and settled on
the following basis:
(a) Upon the execution of this Agreement by Employee, and upon the
Company's receipt of the certificate representing the Stock,
defined below, Employee shall receive $225,000 in cash (subject
to applicable deductions for taxes, F.I.C.A., etc.) less any
amounts previously paid to Employee for the period after the
Termination Date. Such payment shall be in full consideration
for all accrued and unpaid vacation, sick pay, services or other
cash compensation Employee may believe he is entitled to receive
from the Company.
(b) Employee hereby waives any and all rights he may have, and hereby
forfeits, all right, title and interest in 100,000 shares of TGX
Series A Senior Preferred Stock (the "Stock") which otherwise
would have become non-forfeitable on April 1, 1997 and the
Company acknowledges and agrees that after such forfeiture
Employee shall continue to own all other shares of Stock which
have heretofore vested and as to which restrictions thereon have
lapsed pursuant to Section 5 of the Employment Agreement or
otherwise. Upon execution of this Agreement, Employee shall
return to the Company, for cancellation, a certificate he holds
representing 200,000 shares of the Stock, and in exchange the
Company shall deliver to Employee a certificate evidencing his
ownership of 100,000 fully paid and non-assessable shares of the
Stock.
(c) Employee agrees that for a period not to exceed twelve months
from the Effective Date and up to a maximum of 20 hours during
such period, Employee will consult with the Company concerning
operations, litigation, etc. with Employee to be paid at a rate
of $75 per hour for the next 20 hours and then at a rate of $150
per hour for each hour thereafter. Employee's consulting
obligation shall be effected upon the request of the Chairman of
the Board of the Company.
4. Except for the rights of the Employee and the Company contained in
this Agreement, Employee, on the one hand, and the Company on the
other, each mutually RELEASES, ACQUITS, AND FOREVER DISCHARGES the
other, their legal representatives, successors, assigns, officers,
directors, employees, agents, affiliates and attorneys, of and from
any and all claims, obligations, liabilities, suits, complaints,
debts, obligations, reckonings, promises, covenants, controversies,
actions, causes of action, trespasses, variances, judgments,
executions, damages, demands, rights, titles, interests, charges,
encumbrances or liens of any kind or nature, whether known or unknown,
whether liquidated or unliquidated, whether in tort or in contract or
otherwise which Employee or the
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Company has heretofore held, may now hold, or may hereafter hold,
arising out of or relating to any act, omission, or occurrence on or
prior to the Effective Date, including without limitation, any breach
of fiduciary duty, breach of any duty of good faith or fair dealing,
breach of confidence, undue influence, duress, economic coercion,
conflict of interest, negligence, bad faith, malpractice, intentional
or negligent infliction of emotional or mental distress, employment
discrimination, sexual harassment, tortious interference with
corporate governance or prospective business advantage, breach of
contract, tortious interference with contract, deceptive trade
practices, libel, slander, conspiracy, usury, fraud,
misrepresentation, omission, mistake, or violation of any federal or
state securities law, regulations, or rules. Specifically, Employee
and the Company further agree that neither he nor they nor any of his
or their legal or personal representatives or successors or assigns
will institute, prosecute, or in any way aid in the institution or
prosecution of any claim, demand, action, or cause of action now
existing or hereafter asserted against Employee or the Company or
their legal and personal representatives, successors, assigns,
officers, directors, employees, agents, affiliates, or attorneys
arising out of or relating to any of the foregoing. Employee and the
Company specifically acknowledge that they are irrevocably releasing
each other of any obligations and any rights of Employee or the
Company under, and each is hereby terminating, any and all employment
agreements, bonus agreements, rights to equity in the Company, any
compensation plan or agreement, any bonus plan or agreement, and any
rights to vacation pay or sick pay, and any stock option, stock
purchase, or similar plan or agreement with the Company, in effect on
the date hereof. Employee, however, does not release any rights he
may have for indemnification, exculpation, or coverage pursuant to the
express terms of the Certificate of Incorporation, or By-laws of the
Company, or under any policies of insurance covering acts or omissions
of Employee while employed by the Company or pursuant to Section 19 of
the Employment Agreement.
5. Employee and the Company agree that this Agreement shall inure to the
benefit of any successor, assignee, or legal representative of any of
the Employee, or the Company, it being understood that this Agreement
does not purport to grant a release from liabilities or obligations
originating from acts, omissions, or circumstances arising subsequent
to the Effective Date and/or in connection with the terms of this
Agreement.
6. If any court or arbitrator shall determine that any of the provisions
hereof is for any reason, or to any extent, invalid or unenforceable,
the remaining provisions are not invalidated and their application to
other persons or circumstances shall continue in full force and effect
to bind Employee and the Company.
7. The parties hereto acknowledge and agree that their execution of this
Agreement does not constitute in any manner whatsoever any admission
of liability on their part for any matters covered by or released
hereby, but that such liability is specifically denied, and that
entering into this Agreement is simply to
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compromise, settle and release any and all potential claims relating
to such matters, if any, which may have been or could have been
alleged.
8. This Agreement shall be governed by, construed and interpreted
according to the laws of the State of Texas without regard to the
conflicts of laws principles thereof and venue for any dispute arising
hereunder shall lie exclusively in Houston, Texas.
9. This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which, taken together, shall
constitute one and the same instrument.
10. Employee and the Company represent and agree that they will keep the
terms, conditions, and amounts of this Agreement and all other
agreements between themselves completely confidential and that they
will not hereafter voluntarily disclose any information concerning
this Agreement and all other agreements between themselves to anyone
except their immediate families, legal counsel, accountants, and
financial advisors, provided, however, that they agree to keep this
information confidential and not disclose it to others. Employee
further agrees that upon the Effective Date, he has not, and will not,
take with him or retain without prior written authorization of the
Company, any papers, writings or other property which is, or directly
relates to Confidential Information. Employee further agrees that all
such Confidential Information shall at all times belong to and remain
the property of the Company and that Employee shall return all such
Confidential Information immediately. Employee agrees that except as
may be required by law, or in a judicial proceeding under law,
Employee will disclose to any person or other entity any Confidential
Information, directly or indirectly, for a period of three years after
Employee's employment has terminated with the Company. Employee
agrees that he will not use any Confidential Information to compete
with the Company nor will Employee use any Confidential Information in
a manner which is detrimental to the Company. Employee agrees that in
addition to any other remedy available at law or equity, the Company
shall be entitled to injunctive relief, without the posting of any
bond, in the event of a breach of the confidentiality agreement set
forth in this paragraph. For the purposes of this Agreement,
"Confidential Information" shall mean any non-public information as to
or concerning the profits, revenues, expenses, cash flow, prospects,
well information, information relating to any of their operations of
the Company and any other non-public financial or operating
information concerning any project owned or operated by the Company.
Confidential Information shall not mean (i) information with regard to
the Company which is already in the hands of third parties if that
information is not subject to a confidentiality agreement or other
obligation of secrecy between the Company and the third party that has
such information; (ii) information with regard to the Company which
generally becomes available to the public other than as a result of
disclosure by Employee; and (iii) information with regard to the
Company which becomes available to Employee on a non-confidential
basis from a third party that is not
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under a duty to, or agreement with, the Company to keep such
information confidential.
11. The language of all parts of this Agreement shall in all cases be
construed as a whole according to its fair meeting and not strictly
for or against any of the parties.
12. Employee acknowledges that Employee has had the opportunity to consult
with counsel in connection with the negotiation and execution of this
Agreement and all other matters contemplated hereby, that Employee has
had the opportunity to review and reflect on all terms of this
Agreement and that Employee has not been subject to any undue or
improper influence interfering with the exercise of Employee's free
will to execute this Agreement. Employee does not rely, and has not
relied, on any representation, promise or inducement concerning this
Agreement made by the Company, its officers, directors, employees,
agents or attorneys, with the exception of the consideration expressly
contained herein in executing the Agreement.
13. Employee agrees that for a period of three years from the Effective
Date neither he nor any Affiliate (as that term is defined in Rule 405
under the Securities Act of 1933) (regardless of whether such person
or entity is an Affiliate on the date hereof) will (i) acquire, offer
to acquire, or agree to acquire, directly or indirectly, by purchase
or otherwise, any voting securities or direct or indirect rights or
options to acquire any voting securities of the Company, except
Employee may purchase Stock which Employee contributed to his ex-
spouse, (ii) make, or in any participate, directly or indirectly, in
any "solicitation" of "proxies" to vote (as such terms are used in the
Proxy Rules of the Securities and Exchange Commission), or seek to
advise or influence any person or entity with respect to the voting of
any voting securities of the Company, (iii) form, join, or in any way
participate in a "group" within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934 with respect to any voting securities
of the Company (except to the extent you and your ex-spouse are
considered a "group"), or (iv) otherwise act, alone or in concert with
others, to seek to control or influence the management, Board of
Directors, or policies of the Company.
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NOTICE. THE EXECUTION OF THIS MUTUAL RELEASE WILL RESULT IN IMPORTANT LEGAL
CONSEQUENCES. YOU SHOULD READ IT CAREFULLY. YOU ACKNOWLEDGE THAT YOU HAVE
CONSULTED WITH AN ATTORNEY BEFORE SIGNING IT.
IN WITNESS WHEREOF, the undersigned parties hereto have executed this
Agreement as of the 31st day of March, 1997.
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Name: Xxxxx X. Xxxxxxxxx
TGX CORPORATION
By:
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Name: Xxxxxxx X. Xxxxxxx
Title: Interim President
