EXHIBIT 10.35
THIS AGREEMENT ("Agreement"), made as of the 1st day of June, 2003, by
and among XXXXXXX X. XXXXX ("Xxxxx") whose address is 0000 Xxxxxxxxx Xxxxxx,
Xxxxxx, XX 00000 Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, VALLEY NATIONAL GASES,
INC., a West Virginia corporation ("Valley") whose address is 00-00xx Xxxxxx,
Xxxxxxxx, Xxxx Xxxxxxxx 00000, VALLEY NATIONAL GASES INCORPORATED, a
Pennsylvania corporation ("VNGI") whose address is 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, and VALLEY NATIONAL GASES DELAWARE, INC., a
Delaware corporation ("VNGD"), 000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx
Xxxxxxxx 00000.
WHEREAS, Tyler is President and Chief Executive Officer as
well as Director of Valley which conducts business and operations, including
especially but not limited to the sale and distribution of welding supply
products, industrial and specialty gases, medical gases, liquid propane,
robotics, fire safety equipment as well as products and services related thereto
("BUSINESS"); and
WHEREAS, Tyler is President, Chief Executive Officer and
Director of VNGI; and
WHEREAS, VNGI is the sole owner and parent corporation of
VNGD, and Valley is a wholly owned subsidiary of VNGD; and
WHEREAS, Tyler has resigned as officer and director of VNGI as
well as officer and director of Valley and VNGD, effective as of June 1, 2003;
and
WHEREAS, notwithstanding the termination of Tyler's employment
with Valley and his resignations as aforesaid, and independent thereof, it is
the desire of Tyler, Valley, VNGI and VNGD to enter into this Agreement, wherein
Tyler agrees to furnish covenants to Valley, VNGI and VNGD as well as to enter
into other agreements set forth herein for and in consideration of Valley's,
VNGI's, and VNGD's covenants and agreements hereunder.
WITNESSETH: That for and in consideration of the payments,
covenants and agreements hereinafter contained and otherwise in the Agreement,
Tyler, Valley, VNGI, and VNGD agree as follows:
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1. Incorporation of Recitation ("WHEREAS") Clauses. The
recitations and defined terms set forth hereinabove are incorporated herein by
reference and made part of this Agreement.
2. Consideration to Tyler. As consideration for the
"Agreements of Tyler" under Paragraph 3.and as well for the "General Release and
Waiver" under Paragraph 5.Valley, VNGI and/or VNGD, jointly and severally, shall
pay to Tyler the sum of Eighty-two Thousand Four Hundred Ninety-nine Dollars and
Ninety-four Cents ($82,499.94) in nine (9) equal installments of Nine Thousand
One Hundred Sixty-six Dollars and Sixty-six Cents ($9,166.66), commencing on the
15th day of June, 2003, on the 30th day of June, 2003 and continuing on the 15th
and 30th day of July, August and September thereafter, with the last installment
due and payable on the 15th day of October, 2003.
3. Agreements of Tyler. Tyler expressly covenants and
agrees and with Valley as follows:
(a) Effect of Termination. Up to date of
termination of Tyler's employment with Valley on the 1st day of June 2003, Tyler
will receive his Compensation as provided in the Employment ("Employment
Agreement") dated as of October 15, 2002 by and between Valley and Tyler; and
after termination of Tyler's employment on June 1, 2003, all Compensation,
whether Salary, Incentive, Stock Options (except for the Options subject of
Section 4. hereinafter), Benefits (including but not limited to unused vacation
and holidays addressed in Section 3 (d) (ii) of the Employment Agreement ) or
otherwise shall terminate and Tyler shall have no further right or claim of
interest thereto.
(b) Elimination of COBRA Payments. Valley's
obligation to pay Tyler COBRA expenses for his health insurance following the
twelve (12) month period after date of termination, as set forth in Section 7.
(g) (i) of the Employment Agreement is eliminated and shall be void and of no
effect.
(c) Elimination of Outplacement Services.
Valley's obligation to retain and provide Outplacement Services to Tyler for a
period of the twelve (12) month period after date of termination, as set forth
in Section 7. (g) (ii) of the Employment Agreement is eliminated and shall be
void and of no effect.
(d) Employee Covenants Remain In Effect. Tyler's
Covenants under Section 8. of the Employment Agreement and all subsections
thereof shall remain in full force
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and effect as set forth in the Employment Agreement for and in consideration of
Valley's payments to Tyler as provided for under Section 8. (c) (ii).
4. VNGI Stock Options. As additional material
consideration for this Agreement, Tyler and VNGI agree that the termination of
Tyler's employment shall be a termination as provided for in paragraph 9(b)(ii)
of the Amendment to Valley National Gases Incorporated 1997 Stock Option Plan
(Effective as of August 1, 2000) ("Amendment") for a reason other than voluntary
termination. The Committee, as provided for and defined in Paragraph 4. Of the
Valley National Gases Incorporated 1997 Stock Option Plan ("Plan"), has or will
confirm such termination status with respect to the Stock Options granted Tyler
under Section 3. (c) (i) of the Employment Agreement. These options will vest on
October 15, 2005, with the exercise period ending June 1, 2006.
5. General Release and Waiver.
(a) Tyler for himself, his heirs, beneficiaries,
assigns or executors does hereby release and forever discharge Valley, VNGI
and/or VNGD their successors and assigns, as well as any and all of their
directors, officers, agents, representatives and employees from any and all
claims, suits, demands, causes of action, contracts, covenants, obligations,
debts, costs, expenses, attorneys' fees, liabilities of whatever kind or nature,
in law or equity, whether arising by tort, contract, statute or otherwise,
whether now known or unknown, vested or contingent, liquidated or unliquidated,
suspected or unsuspected, concealed or hidden, which may exist, have existed or
do exist, at any time up to and including the later date of June 1, 2003, or the
Effective Date, as defined hereinafter. Specifically, but not by way of
limitation, Tyler hereby waives and releases all claims of any kind, which
relate in any way to Tyler's employment with Valley, VNGI and/or VNGD or the
termination of that employment, except only (1) claims arising out of the
performance of this Agreement; (2) Tyler's rights under Valley's, VNGI's and/or
VNGD's employee benefit plans; and (3) Tyler's rights to compensation earned up
through June 1, 2003, including accrued unused vacation and sick leave. Such
released claims include, without in any way limiting the generality of the
foregoing language, any and all claims of employment discrimination or claims
otherwise arising out of Tyler's employment under any local, state or federal
common law, statute, ordinance, rule or regulation, including without
limitation, any and all applicable state Human Rights Acts, state Fair
Employment Acts, state Disability Acts and state Age Discrimination Acts; Title
VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991;
the Employee Retirement Income Security Act, as amended ("ERISA"); the
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Americans with Disabilities Act of 1990; as amended ("ADA"); the Age
Discrimination in Employment Act of 1964, as amended, as well as the Age
Discrimination in Employment Act of 1967, as amended ("ADEA"). It is the
intention of the parties to make this release as broad and general as the law
permits.
(b) In signing this Agreement; Tyler
acknowledges that he intends that the Agreement shall be effective as a bar to
each and every one of the claims hereinabove mentioned or implied. Tyler
expressly consents that this Agreement shall be given full force and effect
according to each and all of its express terms and provisions, including those
relating to unknown and unsuspected claims (notwithstanding any state statue
that expressly limits the effectiveness of a general release of unknown,
unsuspected and unanticipated claims), if any, as well as those relating to any
other claims hereinabove mentioned or implied. Tyler acknowledges and agrees
that this waiver is an essential and material term of this Agreement and without
such waiver Valley, VNGI and VNGD would not have made the promises, covenants
and agreements set forth in this Agreement. Tyler further agrees that in the
event, he brings any claim in which he seeks damages against Valley, VNGI and/or
VNGD, or in the event Tyler seeks to recover against Valley, VNGI and/or VNGD in
any claim brought by a governmental agency on his behalf, this Agreement shall
serve as a complete defense to such claims.
(c) By signing this Agreement, Tyler
acknowledges that he:
(i) has been given forty-five (45) days
after receipt of this Agreement within which to consider it;
(ii) has carefully read and fully
understands all provisions of this Agreement;
(iii) knowingly and voluntarily agrees to
all of the terms set forth in this Agreement;
(iv) knowingly and voluntarily agrees
to be legally bound by this Agreement;
(v) has been advised and encouraged in
writing to consult with an attorney prior to signing this Agreement; and
(vi) understands that he has seven (7)
days from the date he executes and signs this Agreement to revoke it and that
this Agreement shall not become effective or enforceable until the seven (7) day
revocation period has expired ("Effective Date").
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6. Agreement to Be Available in Future Proceedings.
Tyler agrees to voluntarily make himself available at reasonable times and with
reasonable notice, without compensation, to Valley and/or VNGI and their legal
counsel, at their request, without the necessity of their obtaining a subpoena
or court order, in any investigation, preparation, prosecution and/or defense of
any actual or potential legal proceeding, regulatory action, or internal matter.
Tyler agrees to provide any information reasonably within his recollection.
Valley and/or VNGI will reimburse Tyler for his out-of-pocket expenses actually
incurred as a result of Valley's and/or VNGI's requests, or at Valley's and/or
VNGI's option, Valley and/or VNGI will arrange to advance Tyler's expenses or to
incur Tyler's expenses directly.
7. No Employment Right or Contract. This Agreement does
not constitute an employment contract, and nothing in this Agreement grants to
or creates for the benefit of Tyler any employment rights, privileges or
benefits.
8. Severability of Provisions. If any covenant or
agreement set forth in this Agreement is determined by any court to be
unenforceable by reason of its extending for too great a period of time, or over
too great a geographical area, or by reason of its being too extensive in any
other respect, such covenant or agreement shall be interpreted to extend only
for the longest period of time and over the greatest geographical area, and to
otherwise have the broadest application, as shall be lawfully enforceable. The
invalidity or unenforceability of any particular provision of this Agreement
shall not affect the other provisions hereof, which shall continue in full force
and effect.
9. Waiver of Breach. The waiver by Valley, VNGI and/or
VNGD of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach by Tyler. The waiver by Tyler of
a breach of any provision of this Agreement shall not operate or be construed as
a waiver of any subsequent breach by Valley and/or VNGI.
10. Assignment and Benefit. Tyler's rights, privileges,
obligations and liabilities under this Agreement are personal, non-transferable
and non-assignable. Valley's, VNGI's and/or VNGD's rights, privileges,
obligations and liabilities under this Agreement shall inure to the benefit of
and be binding upon their respective successors and assigns.
11. Arbitration. Any dispute between Tyler and Valley
and/or VNGI concerning the terms of this Agreement, including whether a breach
has occurred, will be settled by arbitration in Washington, Washington County,
Pennsylvania and will be governed by the rules and procedures of the American
Arbitration Association. The costs of arbitration,
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including each parties' expenses and reasonable attorneys' fees, will be equally
divided between and allocated to the parties; one-half (1/2) to Tyler and
one-half (1/2) to Valley and/or VNGI.
12. Entire Agreement. This instrument contains the entire
agreement between the parties. It may not be changed orally but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification, extension or discharge is sought.
13. Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of Pennsylvania.
14. Amendment to Employment Agreement. The Employment
Agreement terms and conditions are hereby modified by the terms and conditions
of this Agreement and the parties hereto do hereby ratify and confirm same as
amended and modified hereby, including but not limited to Valley's obligation to
pay Tyler the Non-Competition Payments pursuant to Section 8. (c) (ii) of the
Employment Agreement in the amount of Eighteen Thousand Three Hundred
Thirty-three Dollars and Thirty-three Cents ($18,333.33) per month, commencing
July 1, 2003 for one (1) year with the last monthly payment due June 1, 2004.
INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date and year first above written.
--------------------------
/s/ X. X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx
-------------------------- Executed this 17th day of June 2003
Valley National Gases, Inc., a West
Virginia corporation
-------------------------- By /s/ W. A. Xxxxxxxxxx
---------------------------------
Its Vice Chairman
Executed this 12th day of June 2003
--------------------------
Valley National Gases, Incorporated,
a Pennsylvania corporation
-------------------------- By /s/ W. A. Xxxxxxxxxx
--------------------------------
Executed this 12th day of June 2003
--------------------------
Valley National Gases Delaware, Inc.,
a Delaware corporation
-------------------------- /s/ W. A. Xxxxxxxxxx
--------------------------------
Its Vice Chairman
Executed this 12th day of June 2003
--------------------------
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