MUTUAL RELEASE AGREEMENT
This Mutual Release Agreement dated as of December 1, 1995 ("Release") is
entered into by and among Xxxxxx Corporation, a Delaware corporation ("Xxxxxx"),
Cimarron Gas Holding Company, a Delaware corporation and wholly owned subsidiary
of Xxxxxx ("Cimarron"), Xxxxxx X. Xxxxxxx ("Xxxxxxx") and the Xxxxxx X. Xxxxxxx
Trust ("Trust").
WHEREAS, in connection with the separation of Xx. Xxxxxxx'x employment with
Cimarron and Xxxxxx, the parties desire to compromise, settle and resolve all
rights and obligations which each party may have pursuant to all contracts,
agreements or benefit plans between or among the parties, as well as all
controversies among them in order to bring peace and avoid the cost and
settlement of litigation;
NOW, THEREFORE, in consideration of the premises and the promises, covenants
and representations contained herein, the parties agree a follows:
1. Definitions. As used herein, the following terms shall have the following
meanings:
"Claims" means any and all theories of recovery of whatsoever nature,
under any theory of strict liability, under any theory of contract, tort,
negligence, gross negligence, recklessness, on account of personal injury or
sickness, any theory or cause of action whether presently known or unknown,
recognized by the law of any jurisdiction, and comprehensively includes, but
is not limited to, actions, lawsuits, claims, causes of action, demands,
liabilities, suits, and judgments, whether arising in tort, in contract, at
law, in equity, at common law, under any federal, state, county or local
statute or law, including but not limited to, Title VII of the Civil Rights
Act of 1964, as amended, the Fair Labor Standards Act, the Equal Pay Act,
overtime and minimum wage claims under the Fair Labor Standards Act, 29
U.S.C. (s)(s)201, et seq., the Texas Commission of Human Rights Act, any
violation of the Texas Labor Code, the Age Discrimination in Employment Act
("ADEA") 29 U.S.C. (s)(s)621 et seq., the Older Workers' Benefit Protection
Act, the Employee Retirement Income Security Act, including but not limited
to Xxxxxxx 000, 00 X.X.X. (x)0000; any federal or state civil rights law,
including but not limited to violations of 42 U.S.C. (s)1981,
intentional acts or omissions, actions for fraud, negligence, intentional
infliction of emotional distress, libel, slander, defamation, breach of
contract, quantum meruit, action in tort, promissory estoppel, reliance or
negligent misrepresentation, and wrongful discharge.
"Damages" means any and all elements of relief of recovery of whatsoever
nature, whether known or now unknown, recognized by the law of any jurisdiction
and comprehensively includes, but is not limited to, money damages of every
description, including economic loss, property loss; personal injury; mental or
emotional distress; attorneys' fees; prejudgment or postjudgment interest;
costs; any injunctive or equitable relief, including specific performance; lost
income; penalty wages; employee benefits of any kind whatsoever, including but
not limited to benefits under an incentive plan,
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employee stock option plan or any other benefit plan; expenses; past or future
loss of support, care, guidance, companionship, society, love, affection,
household services, advice and counsel, pain and suffering, mental anguish, wage
earning capacity; past and future medical expenses; punitive or exemplary
damages; multiplication of compensatory damages under any theory whatsoever;
front-pay; back-pay; and any other type of monetary relief whatsoever cognizable
under any law.
"Xxxxxxx/Trust and their Affiliates" means Xxxxxxx and the Trust, for and on
behalf of themselves, their predecessors and successors and all related or
affiliated legal or business entities, and all present and former trustees,
beneficiaries, agents, insurers, attorneys and representatives. For purposes of
this Release, Xxxxxx X. Xxxxx, Xx., and Xxxxx X. Xxxxxx are not included within
this definition.
"Xxxxxx/Cimarron and their Affiliates" means Xxxxxx and Cimarron, for and on
behalf of themselves, their subsidiary corporations, divisions, predecessors and
successors, all related or affiliated legal or business entities, and all
present and former stockholders, officers, directors, agents, employees,
insurers, attorneys and representatives.
2. Releases.
a. Releases by Xxxxxxx/Trust and Their Affiliates. Xxxxxxx and Trust, for and
on behalf of Xxxxxxx/Trust and their Affiliates, in order to avoid litigation
and its attendant costs and expenses and in consideration of the covenants of
Xxxxxx and Cimarron in Section 2(b) hereof, and for the payment to Xxxxxxx of
$306,534.80 which will be paid on the first business day after January 1, 1996
(the "Payment Date") to Xxxxxxx by Xxxxxx or Cimarron, and for other good and
valuable consideration, receipt of which is hereby acknowledged, received from
Xxxxxx/Cimarron and their Affiliates, hereby release, acquit and forever
discharge Xxxxxx/Cimarron and their Affiliates of and from all Claims and/or
Damages which Xxxxxxx/Trust and their Affiliates ever had, now have, or
hereafter can, shall or may have which have arisen or may arise out of actions
or circumstances which occurred prior to the date of this Release, against
Xxxxxx/Cimarron and their Affiliates of any nature whatsoever, including without
limitation, any Claims and/or Damages which are in any way directly or
indirectly on account of, relating to or arising out of, either prior to or
after the date of this Release: (i) the agreements set forth on Schedule A (the
"Terminated Agreements"), (ii) the Stock Purchase Agreement dated November 12,
1992 ("Stock Purchase Agreement") among Xxxxxx, Xxxxxxx and the other parties
thereto, and the transactions contemplated thereby, (iii) the Cimarron Incentive
Appreciation Plan as established November 12, 1992, but effective as of
September 30, 1992 (the "Cimarron Incentive Appreciation Plan"), (iv) Xxxxxxx'x
hiring and initiation of employment with Cimarron and Xxxxxx; (v) his employment
with Cimarron and Xxxxxx; (vi) any acts (or omissions) or conduct connected with
his employment or acts (or omissions) occurring (or not occurring) during his
employment with Cimarron or Xxxxxx; and (vii) his separation of employment with
Cimarron and Xxxxxx.
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b. Releases by Xxxxxx/Cimarron and Their Affiliates. Xxxxxx and Cimarron,
for and on behalf of Xxxxxx/Cimarron and their Affiliates, in order to avoid
litigation and its attendant costs and expenses and in consideration of the
covenants of Xxxxxxx and the Trust in Section 2(a) hereof and for other good
and valuable consideration, receipt of which is hereby acknowledged, received
from Xxxxxxx/Trust and their Affiliates, hereby release, acquit and forever
discharge Xxxxxxx/Trust and their Affiliates of and from all Claims and/or
Damages, which Xxxxxx/Cimarron and their Affiliates ever had, now have or
hereafter can, shall or may have which have arisen or may arise out of actions
or circumstances which occurred prior to the date of this Release, against
Xxxxxxx/Trust and their Affiliates of any nature whatsoever, including without
limitation, any Claims or Damages which are in any way directly or indirectly,
on account of, relating to or arising out of, either prior to or after the
date of this Release: (i) the Terminated Agreements, (ii) the Stock Purchase
Agreement and the transactions contemplated thereby, including, without
limitation, any Claims or Damages arising from the damages incurred by Xxxxxx
or Cimarron in connection with the El Paso bankruptcy (the "El Paso Damages"),
(iii) the Cimarron Incentive Appreciation Plan, (iv) Xxxxxxx'x hiring and
initiation of employment with Cimarron and Xxxxxx; (v) Xxxxxxx'x employment
with Cimarron or Xxxxxx; (vi) any acts (or omissions) or conduct connected
with Xxxxxxx'x employment or acts (or omissions) occurring (or not occurring)
during his employment with Cimarron and Xxxxxx; and (vii) Xxxxxxx'x separation
of employment with Cimarron and Xxxxxx.
c. Termination of Terminated Agreements. Each of the Terminated Agreements
is hereby terminated and of no further force and effect. No duties of either
party under the Terminated Agreements shall survive after the date of this
Release and the parties agree that they have performed all required
obligations thereunder. There are no other benefit agreements among the
parties that are not set forth on Schedule A. However, Xxxxxxx will continue
to have the rights of a terminated employee with respect to Cimarron's 401(k)
plan and Cimarron's health insurance plan as may be provided for in such
plans, and COBRA rights as may be provided for by law.
d. No Further Participation in the Cimarron Incentive Appreciation Plan.
Xxxxxxx/Trust and their Affiliates have no rights to participate in, and are
entitled to no payments under, the Cimarron Incentive Appreciation Plan.
Xxxxxxx confirms that he has previously received adequate written notice from
Xxxxxx pursuant to a letter dated October 19, 1995 regarding Xxxxxxx'x right
to pay to Xxxxxx an "Additional Participant Investment" (as defined in Section
1.1(j) of the Cimarron Incentive Appreciation Agreement) and that Xxxxxxx has
irrevocably declined and forever waived his right to make such payment.
3. Resignation of all Positions by Xxxxxxx. In connection with the termination
of the Employment Agreement listed on Schedule A, Xxxxxxx hereby resigns all of
his director, officer or employee positions at Cimarron or Xxxxxx or their
affiliates.
4. ADEA and Older Workers' Benefit Protection Act Waiver. Xxxxxxx represents
that the statutory requirements for a waiver of his rights and claims under ADEA
and under the
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Older Workers' Benefit Protection Act have been satisfied. Specifically, Xxxxxxx
acknowledges that:
(i) this waiver and release is part of an agreement that is written in a
manner calculated to be understood by Xxxxxxx and that he in fact understands
the terms, conditions and effect of this Release;
(ii) this Release refers to rights or claims arising under ADEA and the
Older Workers' Benefit Protection Act;
(iii) Xxxxxxx waives rights or claims only in exchange for consideration in
addition to anything of value to which he is already entitled;
(iv) Xxxxxxx was advised in writing to consult with an attorney prior to
executing the Release;
(v) Xxxxxxx has been given a period of at least 21 days within which to
consider the Release and after consulting with counsel waives the twenty-one
(21) day period in order that he may receive certain portions of the monetary
considerations in this Release upon execution of this Release;
(vi) this Release provides for a period of at least 7 days following
execution of the Release in which Xxxxxxx may revoke by returning the full
amount of all payments made hereunder to Xxxxxxx and the Trust to Xxxxxx; and
(vii) Xxxxxxx fully understands all of the terms of this waiver agreement
and knowingly and voluntarily enters into this Release.
To the extent such waiver of Claims under the ADEA and Older Workers' Benefit
Protection Act is ineffective, the parties intend that the period between the
date of this Agreement and the Payment Date shall constitute Xxxxxxx'x 21 day
period within which to consider, and the 7 day period within which to revoke,
only that portion of the Release relating only to the release of Claims under
the ADEA and the Older Workers' Benefit Protection Act. The acceptance by
Xxxxxxx of the payment of $306,534.80 on the Payment Date pursuant to Section
2(a) hereof after such 28 day period shall be conclusive evidence of compliance
with the expiration of such 21-day and 7-day periods.
5. Covenant Not to Xxx. The parties agree not to xxx or cause to be
instituted any action, hearing, charge or complaint in any federal, state or
local agency or court or arbitration or mediation proceeding against each other
relating to the Claims and/or Damages released by this Release.
6. Confidentiality. The parties agree to keep the terms of this Release
confidential. The parties agree not to disclose any of the contents of this
Release to any third party, unless compelled to do so by court order or by law.
Notwithstanding the foregoing, the parties may
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disclose the substance of this Release to their attorneys, partners, directors,
officers and financial and tax advisors.
7. Future Cooperation. Xxxxxxx and the Trust agree to cooperate fully with the
Xxxxxx/Cimarron and their Affiliates, and Xxxxxx and Cimarron agree to cooperate
fully with the Xxxxxxx/Trust and their Affiliates, and to take all additional
actions which may be necessary to give full force and effect to this Release and
its intent.
8. No Admission. This Release is not and shall never be construed as an
omission of liability, fault, or wrongdoing by Xxxxxx/Cimarron and their
Affiliates or Xxxxxxx/Trust and their Affiliates, each of whom specifically
denies any liability, fault, or wrongdoing, but instead reflects a settlement
and accord in satisfaction of contractual obligations and contested and disputed
matters.
9. Indemnification. Xxxxxxx and the Trust agree to indemnify and hold harmless
Xxxxxx/Cimarron and their Affiliates from and against, and shall reimburse
Xxxxxx/Cimarron and their Affiliates for, each loss, damage, injury or claim
(including attorney's fees), imposed on or incurred by Xxxxxx/Cimarron and their
Affiliates which results from a breach of this Release by Xxxxxxx/Trust and
their Affiliates. Xxxxxx and Cimarron agree to indemnify and hold harmless
Xxxxxxx/Trust and their Affiliates from and against, and shall reimburse
Xxxxxxx/Trust and their Affiliates for, each loss, damage, injury or claim
(including attorney's fees), imposed on or incurred by Xxxxxxx/Trust and their
Affiliates which results from a breach of this Release by Xxxxxx/Cimarron and
their Affiliates.
10. Warranty. Each of Xxxxxxx and the Trust represent and warrant to
Xxxxxx/Cimarron and their Affiliates, and each of Xxxxxx and Cimarron
represents and warrants to Xxxxxxx/Trust and their Affiliates, that there has
been no assignment of any nature whatsoever to any party, in whole or in part,
of any matter released hereby, and there are no liens, security interests or
other encumbrances in or relating to any such matter.
11. General. Each party acknowledges that it has been advised by legal
counsel in connection with the execution of this Release, that this paragraph
constitutes written notice of its right to be advised by legal counsel in
connection with this Release, and that it understands its respective rights and
obligations and that it freely, voluntarily and without coercion enters into
this Release.
All provisions of this Release are severable and if any provision or
provisions hereof are found to be void as against public policy or for any other
reason, or unenforceable, such finding shall not affect the validity of any
other provision hereof.
This Release contains the entire agreement between the parties and it
completely supercedes any prior written or oral agreements or representations
concerning the subject matter hereof. Any oral representation or modification
concerning this Release shall be of no force or effect. This Release can be
modified only by a writing signed by the parties to this Release.
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This Release shall be governed by and construed in accordance with the laws
of the State of Texas.
IN WITNESS WHEREOF, Xxxxxxx and the Trust, for and on behalf of
Xxxxxxx/Trust and their Affiliates, and Xxxxxx and Cimarron, for and on behalf
of Xxxxxx/Cimarron and their Affiliates, each has caused this Release to be
executed as of the date first written above.
/s/ XXXXXX X. XXXXXXX
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XXXXXX X. XXXXXXX
XXXXXX X. XXXXXXX TRUST
By: /S/ XXXXXX X. XXXXXXX
---------------------------------
XXXXXX X. XXXXXXX, TRUSTEE
XXXXXX CORPORATION
By: /S/ XXXXXX X. xxx XXXXXXXXX, III
---------------------------------
XXXXXX X. xxx XXXXXXXXX, III
Vice President, General Counsel and Secretary
CIMARRON GAS HOLDING COMPANY
By: /S/ XXXXXX X. xxx XXXXXXXXX, III
---------------------------------
XXXXXX X. xxx XXXXXXXXX, III
Vice President, General Counsel and Secretary
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SCHEDULE A
1. Incentive Appreciation Agreement dated November 12, 1992, but effective as
of the close of business on September 30, 1992, between Cimarron and Xxxxxx
X. Xxxxxxx.
2. All Participation Agreements between Cimarron and Xxxxxx X. Xxxxxxx
including, without limitation, those agreements dated August 24, 1995 and
dated November 12, 1992, but effective as of the close of business September
30, 1992.
3. Corporate Governance Agreement dated November 12, 1992, but effective as of
the close of business September 30, 1992, between Cimarron and Xxxxxx X.
Xxxxxxx.
4. Employment Agreement dated November 12, 1992 but effective on September 30,
1992 (the "Employment Agreement") between Xxxxxx X. Xxxxxxx and Cimarron.
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STATE OF OKLAHOMA (S)
(S)
COUNTY OF TULSA (S)
As of December 1, 1995, before me, the undersigned authority, personally
appeared Xxxxxx X. Xxxxxxx, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that such person
executed the same for the purposes and consideration therein expressed, in the
capacity stated, and as his act and deed.
/s/ Xxxxxx Xxxxxx
----------------------------------
NOTARY PUBLIC
My Commission Expires:
August 26, 1997
Xxxxxx Xxxxxx
----------------------------------
Printed or Typed Name
STATE OF TEXAS (S)
(S)
COUNTY OF XXXXXX (S)
As of December 1, 1995, before me, the undersigned authority, personally
appeared Xxxxxx X. xxx Xxxxxxxxx, III, the Vice President, General Counsel and
Secretary of Xxxxxx Corporation, a Delaware corporation, and Vice President,
General Counsel and Secretary of Cimarron Gas Holding Company, a Delaware
corporation, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that such person executed the same
for the purposes and consideration therein expressed, in the capacity stated,
and as the act and deed of said corporation.
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------
NOTARY PUBLIC in and for
Xxxxxx County, TEXAS
My Commission Expires:
December 6, 1996
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Xxxxxx X. Xxxxxxxx
----------------------------------
Printed or Typed Name
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