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EXHIBIT 10.28
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▇▇▇▇▇▇ OIL AND GAS COMPANY
TERMINATION AGREEMENT
AND GENERAL RELEASE
WITH
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
This Agreement is entered into effective May 7, 2001, by and between
▇▇▇▇▇▇ OIL AND GAS COMPANY, a Delaware corporation ("Company") and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇, Chairman of the Board of Directors of ▇▇▇▇▇▇ Oil and Gas Company ("▇▇▇▇").
WHEREAS, ▇▇▇▇ has been employed by Company and continues to serve as
Chairman of the Board of Directors;
WHEREAS, ▇▇▇▇ has agreed to continue on the Board and serve as Chairman
during a transition period up to and including the 2001 Annual Meeting of
Stockholders of the Company and to consult with Company until December 31, 2001;
WHEREAS, ▇▇▇▇ and Company have agreed on the terms and conditions set
forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants, representations, agreements and promises set forth herein, and
intending to be legally bound, the parties agree as follows:
1. TERMINATION OF RELATIONSHIP. Subject to the terms of this Agreement,
▇▇▇▇ agrees to terminate any employment relationship or officer position with
the Company and any of its subsidiaries and affiliates as of May 7, 2001 and not
to stand for reelection as Chairman of the Board to the Company's Board of
Directors after the 2001 Annual Meeting of Stockholders or thereafter. The
preceding shall in no way preclude ▇▇▇▇'▇ standing for reelection or election as
a director of the Company, but shall only preclude his standing for reelection
as Chairman.
2. PAYMENTS TO ▇▇▇▇. The Company agrees to continue to pay to ▇▇▇▇ on a
bi-weekly basis at the rate of $100,000 per annum until April 27, 2001. On the
later of May 4, 2001, or the expiration of the revocation period referenced in
Section 7 below, the Company shall pay to ▇▇▇▇ $100,000. These payments shall be
subject to deduction for requisite income tax withholdings and payroll tax
deductions. These payments represent payment in full of all sums owed or owing
to ▇▇▇▇ for his services as an employee and as a director through the 2001
Annual Meeting of Stockholders, as well as additional consideration not
otherwise owed to ▇▇▇▇ which is being furnished in exchange for ▇▇▇▇'▇ execution
of this Agreement. The parties agree
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that there are no other sums due ▇▇▇▇ and that after such date no further
payments shall be made to ▇▇▇▇ including without limitation any payments made by
the Company related to change of control, relocation, severance or reduction in
force payments; provided, ▇▇▇▇ shall receive a one time payment of $100,000 for
his services as a consultant.
3. STOCK OPTIONS. The Company has granted ▇▇▇▇ certain stock options.
All options previously granted to ▇▇▇▇ shall vest in their entirety as of the
date of this agreement (Vested Options). The Company, including the Human
Resources Committee of the Board of Directors, has taken any and all action
necessary to allow for ▇▇▇▇'▇ options to vest and to allow ▇▇▇▇ to have up to
the applicable ten (10) year period from the date of the grant in each option
agreement to exercise any or all of said Vested Options. Also, the Company and
▇▇▇▇ shall amend the Employee Options Agreement to reflect the vesting and the
extension described in this Section 3. ▇▇▇▇ acknowledges that the terms of the
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy shall remain in effect. The Company agrees to take any
and all further actions necessary or reasonably requested by ▇▇▇▇ to reflect the
foregoing, and to confirm ▇▇▇▇'▇ ability to exercise the Vested Options until
the end of the ten-year period referred to, without regard to the termination of
his position as an employee or as Chairman or as a director or as any or all of
the foregoing.
4. COMMUNICATION. ▇▇▇▇ agrees that he will not directly or indirectly
initiate oral or written communications with any Company shareholder, customer,
analyst or broker covering the Company's stock or debt without the prior written
consent of the CEO.
5. RELEASE OF CLAIMS. AS A MATERIAL INDUCEMENT TO THE COMPANY TO ENTER
INTO THIS AGREEMENT, ▇▇▇▇ AND HIS HEIRS AND ASSIGNS, HEREBY RELEASE THE COMPANY,
AND ITS DIRECTORS, OFFICERS, SHAREHOLDERS, PARTNERS, REPRESENTATIVES, AGENTS,
EMPLOYEES, PREDECESSORS, SUCCESSORS, AFFILIATES, DIVISIONS, SUBSIDIARIES AND
RELATED ENTITIES, FROM ALL CLAIMS OF ANY NATURE WHATSOEVER, FROM THE BEGINNING
OF TIME TO THE DATE OF THE EXECUTION OF THIS AGREEMENT, KNOWN OR UNKNOWN,
SUSPECTED OR UNSUSPECTED, INCLUDING BUT NOT LIMITED TO ALL CLAIMS ARISING OUT
OF, BASED UPON, OR RELATING TO ▇▇▇▇'▇ EMPLOYMENT WITH THE COMPANY, OR THE
COMPENSATION FOR THAT EMPLOYMENT.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ▇▇▇▇
UNDERSTANDS THAT HE IS RELEASING ALL CLAIMS OF DISCRIMINATION OR HARASSMENT ON
THE BASIS OF RACE, SEX, RELIGION OR NATIONAL ORIGIN UNDER TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964, AS AMENDED, OR ON THE BASIS OF AGE UNDER THE AGE
DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED, OR ON THE BASIS OF
DISABILITY UNDER THE AMERICANS WITH DISABILITIES ACT; ALL CLAIMS OF
DISCRIMINATION OR HARASSMENT UNDER ANY APPLICABLE FEDERAL, STATE OR LOCAL LAW,
INCLUDING THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT; ALL CLAIMS UNDER STATE
CONTRACT OR TORT LAW, SUCH AS WRONGFUL TERMINATION, BREACH OF CONTRACT, BREACH
OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING, DEFAMATION, NEGLIGENT OR
INTENTIONAL INFLICTION OF
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EMOTIONAL DISTRESS, OR FRAUD; ALL CLAIMS UNDER THE CALIFORNIA LABOR CODE, AND
ALL CLAIMS UNDER THE FAIR LABOR STANDARDS ACT, THE EMPLOYEE RETIREMENT
SECURITIES ACT, THE OLDER WORKERS BENEFIT PROTECTION ACT OF 1990, AND THE FAMILY
AND MEDICAL LEAVE ACT OF 1993.
6. WAIVER OF CIVIL CODE SECTION 1542. ▇▇▇▇ UNDERSTANDS AND AGREES THAT,
AS A CONDITION OF THIS AGREEMENT, HE IS WAIVING ANY RIGHTS HE MAY HAVE UNDER
SECTION 1542 OF THE CALIFORNIA CIVIL CODE OR ANY ANALOGOUS LOCAL, STATE,
FEDERAL, OR INTERNATIONAL LAW, STATUTE, RULE, ORDER, OR REGULATION. SECTION 1542
PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
WITH FULL AWARENESS AND UNDERSTANDING OF THE ABOVE PROVISION, AND AFTER
HAVING AN OPPORTUNITY TO CONFER WITH INDEPENDENTLY RETAINED LEGAL COUNSEL IF SO
DESIRED, ▇▇▇▇ HEREBY WAIVES ALL RIGHTS WHICH THE ABOVE PROVISION MAY PROVIDE.
▇▇▇▇ INTENDS THIS RELEASE TO INCLUDE CLAIMS WHICH HE DOES NOT PRESENTLY KNOW OR
SUSPECT TO EXIST AT THIS TIME.
This Agreement in no way amends or cancels the Indemnification
Agreement between ▇▇▇▇ and Company, dated June 15, 1999, and that agreement
remains in full force and effect under the terms thereof.
7. OPPORTUNITY TO REVIEW AGREEMENT. The Company has advised ▇▇▇▇ that
he should consult an attorney before signing this Agreement. ▇▇▇▇ has twenty-one
(21) days from the date of this Agreement to consider this Agreement or consult
with an attorney before signing it. ▇▇▇▇ has seven (7) days from the date he
signs this Agreement to revoke this Agreement. The Agreement shall become
effective immediately upon the expiration of this seven-day revocation period.
8. CONSULTATION WITH COUNSEL. ▇▇▇▇ represents that he has had an
opportunity to consult with independent legal counsel if he so desires, that he
has thoroughly read and considered all aspects of this Agreement, that he
understands all provisions of this Agreement, and that he is voluntarily
entering into this Agreement.
9. SUCCESSORS AND ASSIGNS; BINDING AGREEMENT. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns. ▇▇▇▇
acknowledges that this Agreement is personal to him and may not be assigned by
him.
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10. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without regard to conflict
of law rules thereof.
11. WAIVER. The waiver by either party hereto of any right hereunder of
any failure to perform or breach by the other party hereto shall not be deemed a
waiver of any other right hereunder or of any other failure or breach by the
other party hereto, whether of the same or a similar nature or otherwise. No
waiver shall be deemed to have occurred unless set forth in writing executed by
or on behalf of the waiving party. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
12. NOTICES. All notices or communications that are required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given when delivered personally or sent overnight carrier service to
the parties at the following addresses:
The Company ▇▇▇▇▇▇ Oil and Gas Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address as may be specified in a written notice delivered
personally or sent by overnight courier given by one party to the other party
hereunder.
13. SEVERABILITY. If for any reason any term or provision of this
Agreement is held to be invalid or unenforceable, all other valid terms and
provisions hereof shall remain in full force and effect, and all of the terms
and provisions of this Agreement shall be deemed to be severable in nature. If
for any reason any term or provision containing a restriction set forth herein
is held to cover an area or to be for a length of time which is unreasonable, or
in any other way is construed to be too broad or to any extent invalid, such
term or provision shall not be determined to be null, void and of no effect, but
to the extent the same is or would be valid or enforceable under applicable law,
any court of competent jurisdiction shall construe and interpret or reform this
Agreement to provide for a restriction having the maximum enforceable area, time
period and other provisions (not greater than those contained herein) as shall
be valid and enforceable under applicable law.
14. INTEGRATION CLAUSE. This Agreement constitutes the entire agreement
between the parties to this Agreement with respect to the subject matter of this
Agreement, and there are no other terms, obligations, covenants,
representations, statements or conditions except as set forth in this Agreement.
No change or amendment to this Agreement will be effective unless it is
contained in a writing denominated as an "Amendment to Separation Agreement" and
is signed
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by both of the parties to this Agreement. Failure to insist upon strict
compliance with any term or provision of this Agreement will not be deemed to be
a waiver of any rights under a subsequent act or failure to act. The parties to
this Agreement acknowledge and agree that in the event of any subsequent
litigation, arbitration proceeding, controversy or dispute concerning this
Agreement, neither of the parties to this Agreement will be permitted to offer
or introduce into evidence any oral testimony concerning any oral promises or
oral agreements between them that relate to the subject matter of this Agreement
that are not included or referred to in this Agreement and that are not
evidenced by a writing entitled "Amendment to Separation Agreement" which is
signed by both of the parties to this Agreement.
15. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original for all purposes but which, together, shall
constitute one and the same instrument.
16. CONFIDENTIALITY. ▇▇▇▇ covenants and agrees that he will protect the
confidential, trade secret, and/or proprietary character of all of the Company's
Confidential Information. ▇▇▇▇ further covenants and agrees that he will not,
directly or indirectly, use or disclose any of the Company's Confidential
Information, for so long as it remains proprietary and capable of being
protected as confidential or trade secret information. For the purposes of this
Agreement, "Confidential Information" means, without limitation, all of the
following, irrespective of whether it is or was reduced to writing which ▇▇▇▇
received, had access to, in whole or in part, in connection with his employment
with the Company so long as such Confidential Information remains proprietary,
capable of being protected as confidential or trade secret information, and
actually protected as such:
(a) geological and geophysical data and maps, models and
interpretations relating to the Company's assets, fields, production and ▇▇▇▇▇;
(b) commercial, contractual, financial reserve and production data
related to the Company or its production, assets and fields;
(c) specialized production processes and marketing techniques and
arrangements to enhance or recover oil and gas from the Company's assets, fields
or ▇▇▇▇▇;
(d) computer software specifically developed for the enhancement of
the production from the Company's assets, ▇▇▇▇▇ or fields; and
(e) any other materials and/or information materially related to
the business or activities of the Company which are not generally known to
others engaged in similar businesses or activities.
▇▇▇▇ agrees to return to the Company, by the 2001 Company Annual
Meeting of Stockholders, any Company property in his possession, including but
not limited to any Confidential Information not necessary for ▇▇▇▇ to carry out
his duties as a Company director.
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The parties agree and acknowledge that the foregoing shall not prevent
▇▇▇▇ from engaging in transactions in the securities of the Company in any
manner that is consistent with the requirements of the federal securities laws
of the United States. Further, the foregoing shall not operate to prevent ▇▇▇▇
from providing information to the extent reasonably required by legal process,
including discovery requests, subpoenas and the like.
17. AUTHORIZATIONS. All individuals executing this and other documents
on behalf of the respective parties certify and warrant that they have the
capacity and have been duly authorized to so execute the documents on behalf of
the entity so indicated.
18. ATTORNEYS' FEES. ▇▇▇▇ and the Company further agree that, if any
legal action is brought alleging a breach of this agreement, the prevailing
party shall be entitled to recover all costs and expenses incurred in that
action, including attorneys' fees.
IN WITNESS WHEREOF, the parties execute this Agreement effective on the
date set forth above.
▇▇▇▇▇▇ OIL AND GAS COMPANY
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇ May 7, 2001
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▇▇▇▇▇ ▇. ▇▇▇▇ Date
President
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇ May 7, 2001
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Date
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