Exhibit 10.6
TERMINATION AND SETTLEMENT AGREEMENT
This Termination and Settlement Agreement and Complete Release
("Agreement") is entered into between Petro Union, Inc. d/b/a Horizontal
Ventures, Inc. (the "Company") and Xxxxxxx X. Xxxxx ("Xxxxx") and relates to
the resignation by Xxxxx of his Executive Employment Agreement with the
Company and as a member of the Board of Directors.
In consideration of the mutual promises set forth below and the good and
valuable consideration, the Company and Xxxxx agree as follows:
1. Consideration to Xxxxx . The consideration to be delivered to
Xxxxx shall include the payment of $50,000 as a one-time severance payment
which shall be payable on or before April 1, 1998 in cash. Additionally, the
Company shall issue a loan to Xxxxx in the amount of $100,000 with interest
payable at the prime rate as established by the Wall Street Journal upon the
date of the execution of this agreement (8.5%), payable in full, including
both principal and interest six months from the date of this agreement in a
single balloon payment. The loan shall be collateralized by a stock pledge
agreement and 10,000 shares of Petro Union, Inc. d/b/a Horizontal Ventures,
Inc. common shares in the name of Xxxxx which shall be delivered to the
Company along with the stock pledge agreement upon receipt of the $100,000.
Additionally, the Company shall maintain Xxxxx'x medical insurance coverage as
currently in effect through July 31, 1998.
2. Consideration to the Company. In exchange for the consideration
to be received by Xxxxx, Xxxxx agrees to not on his own or engage in any
employment with or own more than 5% interest as a shareholder in any Company,
or in any other manner, compete with the Company's Amoco technology based
horizontal drilling business for a period of three years from the date of this
agreement. This non-compete is not intended to otherwise restrict Xxxxx'x
ability to be gainfully employed in the oil and gas business or to operate his
own business so long as he does not utilize the Amoco technology except
through the payment for services at market rates for that technology directly
to the Company. This non-compete agreement includes the agreement not to
interfere with or attempt to hire any of the Company's employees.
Additionally, Xxxxx shall vote any and all common shares owned by him in the
Company for a period of one year in accordance with instructions received from
the Company's Board of Directors on all matters brought to a vote of
shareholders.
3. Registration and Other Stock Rights of Xxxxx. The Company agrees
to file a registration statement to register the resale of all restricted
Company shares owned by Xxxxx and members of his immediate family on or before
April 30, 1998 and use best efforts to have that registration statement
declared effective at the earliest practical date. Additionally, the Company
will assist Xxxxx and his immediate family members in removing restrictive
legends on shares not registered without cost to Xxxxx as legend removal is
available to him under Rule 144.
4. Protection of Confidential Information and Trade Secrets. Xxxxx
agrees that he will not disclose or use any of the confidential information,
patents and trade secrets (including but not limited to information pertaining
to corporate restructuring efforts, project marketing information, including
cost and pricing information, sales figures, projections or estimates,
customer lists and any other non-public information) of the Company which he
acquired as a result of his employment. Xxxxx agrees that the Company's
confidential information, trade secrets and customer accounts are valuable
interests in need of protection, that his agreements in this paragraph are not
broader than necessary to protect such interests, and that the Company's need
for protection of these interests outweighs any hardship that Xxxxx'x
agreements in this paragraph will have upon him.
5. Complete Release. The parties agree to release and forever hold
harmless each other their affiliated or related companies, and all the owners,
partners, stockholders, members, predecessors, successors, trustees, assigns,
agents, employees, officers, directors, representatives, attorneys, divisions,
subsidiaries, affiliates, holding companies, and parent companies of any of
them ("Releasees"), from all claims or demands, whether known or unknown,
which each may have against the Releasees, including but not limited to, any
such claims or demands they may have based on Xxxxx'x Executive Employment
Agreement with the Company. This includes a release of any rights or claims
Xxxxx may have under the Age Discrimination in Employment Act, Title VII of
the Civil Rights Act of 1991, the Americans With Disabilities Act, the
Employee Retirement Income Security Act (ERISA), the Equal Pay Act, or any
other federal , state or local laws or regulations. This also includes a
release of any claims for wrongful discharge, breach of express or implied
contract, breach of express or implied covenant of good faith and fair
dealing, and any tort claims. This release also includes any claim arising
from any alleged negligent or grossly negligent conduct on the part of either
party or the Releasees. Both parties agree never to file a lawsuit asserting
any claims that are released hereby. The Company and Xxxxx agree that they
are entering into this Agreement to resolve any differences that may exist
between them and to avoid litigation and buy peace. By entering into this
Agreement, neither party admits any liability or wrongdoing. Both parties
agree that if either breaks its promise herein and files a lawsuit based on
legal claims that are released hereby, he will indemnify the other party and
any of the Releasees, for all costs, losses, or judgments incurred by them,
including reasonable attorneys' fees and disbursements incurred in defending
against such claim.
6. Agreement to be Confidential. Xxxxx agrees that he will keep the
terms, amount and fact of this Agreement completely confidential, and that,
unless required to do so by law, he will not disclose any information
concerning this Agreement to anyone (other than his attorneys and his
accountant, all of whom shall be subject to this confidentiality provision),
including but not limited to any past, present, future or prospective employee
or applicant for employment with the Company or any related company.
7. Cooperation by Xxxxx. Xxxxx agrees to make himself reasonably
available to the Company in the future to consult with management and their
attorneys on any project and/or issues outstanding at the time of his
termination to assist in the transition. The Company agrees to pay any
reasonable expense of Xxxxx in this regard and pay a per diem therefore.
8. Arbitration. Any dispute which arises as a result of this
Termination and Settlement Agreement or as a result of any instruments
including notes or pledge agreements which arise as a result of this
agreement, shall be submitted to binding arbitration in the city and state of
New York pursuant to the rules then pertaining as established by the American
Arbitration Association and any award granted as a result of said arbitration
may include attorneys' fees and court costs to the prevailing party. Any
award shall be enforceable pursuant to the Uniform Arbitration Act through any
court of competent jurisdiction.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN
AND UNKNOWN CLAIMS.
I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THE FOREGOING AGREEMENT, THAT I
UNDERSTAND ALL OF ITS TERMS, AND THAT I AM ENTERING INTO IT VOLUNTARILY.
I FURTHER ACKNOWLEDGE THAT I AM AWARE OF MY RIGHT TO CONSULT WITH A
PRIVATE ATTORNEY OF MY CHOICE OR A REPRESENTATIVE OF A FEDERAL, STATE OR LOCAL
GOVERNMENT AGENCY, AND AFFIRM THAT I HAVE AVAILED MYSELF OF THIS RIGHT TO THE
FULL EXTENT, IF ANY, THAT I DESIRED.
PETRO UNION, INC. d/b/a
HORIZONTAL VENTURES, INC.
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx Xxxxxx
________________________________ By:______________________________
Xxxxxxx X. Xxxxx Xxxxxxx Xxxxxx, Chief Executive Officer
3/12/98 3/12/98
Date:____________________________ Date:_____________________________
