EXHBIT 10(d)
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (the "Agreement") is entered
into as of this 21st day of November, 1996, between Omega Environmental, Inc.
("Omega"), Shamrock Services, Inc. ("Shamrock"), and Xxxxxx X. X'Xxxxxxxx
("X'Xxxxxxxx").
WHEREAS, Omega, Shamrock, and X'Xxxxxxxx desire to settle on the terms and
conditions set forth in this Agreement, all claims, controversies, disputes and
demands that any of them may have against each other arising out of any acts or
omissions by themselves, any of their officers, directors, employees and others
and the terms and conditions of the Agreement and Plan of Reorganization dated
May 16th, 1991, Amendments thereto and ancillary Agreements ("Acquisition
Agreements") up to and including the date of this Agreement, whether known or
unknown, matured or not, fixed or contingent.
NOW, THEREFORE, in consideration of the mutual promises and for other good
and valuable consideration, it is agreed between the parties as follows:
1. Upon execution of this Agreement by all parties, X'Xxxxxxxx agrees
to: (i) to serve as an Independent Consultant to Omega for a period of one
year commencing on the date hereof; and (ii) to hold himself available at all
reasonable times during said period for consultation in connection with any
and all matters concerning Omega's business affairs as Omega may, in its
discretion, request; and (iii) to hold in strictest confidence and not to
reveal to any third party, any information and data (including documents)
concerning Omega, its officers, directors and its business affairs which have
come or come into X'Xxxxxxxx'x knowledge or possession up to the date of this
Agreement and during the currency of any term hereof, except (1) as to
information which is or becomes publicly known through no fault of
X'Xxxxxxxx; or (2) is required to be disclosed by process of law or in order
to satisfy Omega's SEC filing and public disclosure obligations under federal
and state securities law.
2a. In consideration of X'Xxxxxxxx'x faithful performance of the above
duties to be carried out and the promises made and kept, Omega agrees to
provide X'Xxxxxxxx with an
option, exercisable within two (2) years from the date hereof, to purchase
One Hundred Fifty Thousand (150,000) common shares of Omega ("Option
Shares"), pursuant to the Stock Option Agreement ("Option Agreement"),
attached hereto and marked "A," executed contemporaneously herewith, such
Option Agreement to expire upon the second anniversary hereof as to any
Option Shares not exercised and purchased by X'Xxxxxxxx by the date of such
second anniversary.
2b. In consideration for satisfactory performance of the above duties and
obligations, Omega agrees to pay Shamrock the sum of Seventy-Five Thousand
Dollars ($75,000), Thirty-Seven Thousand Five Hundred Dollars ($37,500)
payable upon signing of this agreement and a further Thirty-Seven Thousand
Five Hundred Dollars ($37,500) one year from the date of this Agreement.
3. Shamrock and X'Xxxxxxxx hereby release and forever discharge Omega
and its past and present officers, directors, shareholders, executors,
administrators, attorneys, representatives, subsidiaries, divisions, parent
companies, affiliated companies, successors, predecessors, assigns, agents,
employees and spouses, from any and all claims, causes of action, demands,
suits or liabilities of any kind (including but not limited to damages of any
sort, declaratory relief, attorneys' fees or costs) now existing or which
could arise in any manner in the future out of any acts and/or omissions of
Omega, as related to Shamrock and Omega's insurance carrier, X'Xxxxxxxx'x
employment contract and the Acquisition Agreements, whether such acts and/or
omission are known or unknown, matured or not, fixed or contingent, up to and
including the date of this Agreement.
4. Omega hereby releases and forever discharges Shamrock and X'Xxxxxxxx,
their spouses and past and present agents, attorneys, successors and assigns,
from any and all claims, causes of action, demands, suits or liabilities of
any kind (including but not limited to damages of any sort, declaratory
relief, attorneys' fees or costs) now existing or which in any manner could
arise in the future out of any acts or omissions of Shamrock or X'Xxxxxxxx,
whether known or unknown, matured or not, fixed or contingent, up to and
including the date of this Agreement,
as related to Shamrock and Omega's insurance carrier or X'Xxxxxxxx'x
employment contract or under the Acquisition Agreements.
5. The parties to this Agreement hereby represent, warrant and covenant
that they have made no prior assignment, transfer, conveyance or other
disposition of any of the claims, causes of action, demands and/or interests
released under this Agreement.
6. The parties understand and agree that this is a compromise and
settlement of disputed claims and shall not be deemed or construed to be an
admission of liability or response of any kind. The parties further agree
that this Agreement shall not be admissible in evidence in any proceeding
except an action to enforce performance thereunder. Omega, Shamrock, and
X'Xxxxxxxx, deny that they have breached any duty, obligation or agreement,
or that they have engaged in any illegal, tortuous or wrongful activity, or
that they have any liability to one another and agree that the execution of
this Agreement by them shall not be deemed an admission or evidence of
liability.
7. This Agreement shall be binding upon and shall inure to the benefit
of the parties to it and their respective shareholders, officers, directors,
associates, partners, investors, agents, spouses, employees, beneficiaries,
spouses, heirs, representatives, subsidiaries, affiliates, predecessors,
successors and assigns.
8. The parties hereto agree and acknowledge that they have carefully
read this Agreement; that they have had its contents fully explained to them
by their respective counsel; or, if they have not retained counsel, that they
are fully aware of and understand all of its terms and the legal consequences
thereof; and that they have signed it voluntarily as their own free act and
of their own free will and accord.
9. This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter hereof, and it supersedes and replaces all
prior negotiations and proposals. The parties hereto agree and acknowledge
that, except as expressly stated in this Agreement, no promise, inducement,
representation or agreement has been made to them, expressly or
impliedly, including by omission, in connection with the negotiation,
preparation and execution of this Agreement, or otherwise.
10. This Agreement has been executed in the State of Washington, and the
validity, interpretation, construction and enforcement of this Agreement shall
be governed by the laws of the State of Washington.
11. Omega, Shamrock, and X'Xxxxxxxx agree to keep the terms and any and
all monetary or other consideration herein and all correspondence, outlines,
drafts or proposals leading up to or concerning this Agreement, and all
negotiations leading up to or concerning this Agreement, strictly
confidential, and agree not to disclose the terms to anyone not a party to
the Agreement, except to the extent that disclosure by a party is required by
law or is necessary to obtain financial or legal advice or assistance, or by
the Board of Omega, or is required in connection with generally accepted
accounting principles ("Recipients of Confidential Information"). To the
extent the disclosure of payments or consideration made or received hereunder
or the other terms of this Agreement are required to Recipients of
Confidential Information, Omega, Shamrock, and X'Xxxxxxxx agree to inform the
Recipients of Confidential Information of the confidentiality of this
Agreement and secure their agreement to be bound thereby.
12. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which shall together constitute
one and the same document, and it shall not be necessary in making proof of
this Agreement to produce or account for more than one such counterpart.
13. This Agreement shall not be modified except in writing signed by each
of the parties affected by such modification. Any notice by one party to the
other hereunder shall be given by first class registered mail as follows:
OMEGA: To:
Omega Environmental, Inc.
00000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx XX 00000
Attention: Chairman Of The Board
X'XXXXXXXX: To: SHAMROCK: To:
Xxxxxx X.X'Xxxxxxxx Xxxxxx X. X'Xxxxxxxx
Shamrock Services, Inc. Shamrock Services, Inc.
0000 Xxxxxxx X.X. 0000 Xxxxxxx X.X.
Xxxxxxx XX 00000 Xxxxxxx XX 00000
14. The parties agree to execute any and all additional documents
reasonably necessary to complete and carry out the terms of this Agreement.
15. The drafting and negotiation of this Agreement have been participated
in by each of the parties and for all purposes this Agreement shall be deemed
to have been drafted jointly by each of the parties.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date set forth above.
"OMEGA" "X'XXXXXXXX"
------------------------ ---------------------
OMEGA ENVIRONMENTAL, INC. XXXXXX X. X'XXXXXXXX
By /s/ XXXXX XXXXXXX /s/ XXXXXX X. X'XXXXXXXX
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"SHAMROCK SERVICES, INC."
----------------------------------
XXXXXX X. X'XXXXXXXX
By /s/ XXXXXX X. X'XXXXXXXX
------------------------------
EXHIBIT "A"
OMEGA ENVIRONMENTAL, INC.
NON-QUALIFIED INCENTIVE STOCK OPTION AGREEMENT
Date Granted: November 21,
Xxxxxx X. X'Xxxxxxxx 1996
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Name of Optionee
6533 Seaview NW, PH 2A No.: 79
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Residence Address
Xxxxxxx, XX 00000
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City, State and Zip Code
THIS AGREEMENT is made as of the date set forth above between Omega
Environmental, Inc., a Delaware corporation (hereinafter called the "Company"),
and the optionee named above (the "Optionee"). The option granted by this
Agreement is designated a "Non-Qualified Option" and is not intended to qualify
as an incentive stock option within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
The Board of Directors of the Company, or a duly appointed Stock Option or
Compensation Committee (the "Committee") thereof, has determined that it is to
the advantage and interest of the Company and its stockholders to grant the
option provided for herein to the Optionee. The parties hereto agree as
follows:
1. GRANT OF OPTION. The Company grants to the Optionee the right and
option (the "Non-Qualified Option") to purchase on the terms and conditions
hereinafter set forth all or any part of an aggregate of 150,000 shares (the
"Shares") of the presently authorized and unissued Common Stock, $0.0025 par
value, of the Company at the purchase price of $1.00 per share. Such Non-
Qualified Option shall become fully exercisable as follows:
(a) Shares shall become exercisable on on execution hereof.
Once any part of the Option becomes exercisable, it shall remain
exercisable until the Option terminates or such part is exercised.
2. METHOD OF EXERCISE. To the extent that the right to purchase Shares
has accrued hereunder, the Non-Qualified Option may be exercised from time to
time
by written notice to the Company stating the number of Shares with respect
to which the Non-Qualified Option is being exercised, together with payment in
full, in cash or by certified or cashier's check payable to the order of the
Company, of the purchase price for the number of Shares being purchased. If
requested by the Committee, prior to the delivery of any Shares, the Optionee,
or any other person entitled to exercise the Non-Qualified Option, shall supply
the Committee with a representation that the Shares are not being acquired with
a view to distribution and will be sold or otherwise disposed of only in
accordance with applicable federal and state statutes, rules and regulations.
As a condition to the exercise of the Non-Qualified Option, in whole or in
part, the Committee may, in its sole discretion, require the Optionee to pay,
in addition to the purchase price for the Shares being purchased upon exercise
of this Non-Qualified Option, an amount equal to any federal, state or local
withholding or employment taxes that the Committee has determined are required
to be paid in connection with the exercise of this Non-Qualified Option in
order to enable the Company to claim a deduction in connection with such
exercise, or otherwise.
As soon after the notice of exercise as the Company is reasonably able to
comply, the Company shall, without payment of any transfer or issue tax by the
Optionee or any other person entitled to exercise the Non-Qualified Option,
deliver to the Optionee or any such other person, at the main office of the
Company or such other place as shall be mutually acceptable, a certificate or
certificates for the Shares being purchased upon exercise of the Non-Qualified
Option.
In the Committee's sole discretion, payment of the purchase price for
the number of Shares to be delivered, but not of the amount of any
withholding taxes, may be made in whole or in part with shares of Common
Stock. If payment is made with shares of Common Stock, the Optionee, or any
other person entitled to exercise the Non-Qualified Option, shall deliver to
the Company with the notice of exercise certificates representing the number
of shares of Common Stock tendered in payment for the Shares, duly endorsed
for transfer to the Company. If requested by the Committee, prior to the
acceptance of such certificates in payment for the Shares, the Optionee, or
any other person entitled to exercise the Non-Qualified Option, shall supply
the Committee with a written representation and warranty that he has good and
marketable title to the shares represented by the certificates, free and
clear of liens and encumbrances. The value of the shares of Common Stock
tendered in payment for the Shares being purchased shall be their fair market
value per share on the date of the Optionee's notice of exercise.
Notwithstanding the foregoing, the Company shall have the right to
postpone the time of delivery of the Shares for such period as may be required
for it with reasonable diligence to comply with any applicable listing
requirements of any national securities exchange or association or any federal,
state or local law. The Optionee may exercise the Non-Qualified Option for
less than the total number of Shares for which the Non-Qualified Option is then
exercisable, provided that a partial exercise may not be for less
than 100 Shares, unless the remaining Shares exercisable under the
Non-Qualified Option is for less than 100 Shares. The Non-Qualified Option
may only be exercisable for whole Shares.
3. TERMINATION OF THE NON-QUALIFIED OPTION. The Non-Qualified Option
shall terminate and expire upon the earlier of:
(a) November 30, 1998;
(b) The termination of the Non-Qualified Option pursuant to
Section 5 hereof.
4. ADJUSTMENTS. If there is any stock dividend, stock split,
reclassification or recapitalization of the Common Stock of the Company, or the
Company has merged or consolidated with one or more other corporations (and
provided the Non-Qualified Option does not thereby terminate pursuant to
Section 5 hereof), then the number and kind of shares then subject to the Non-
Qualified Option and the price to be paid therefor shall be appropriately
adjusted by the Committee, provided, however, that in no event shall any such
adjustment result in the Company being required to sell or issue any fractional
shares. Any such adjustments shall be made without change in the aggregate
purchase price applicable to the unexercised portion of the Option but with an
appropriate adjustment in the price of each Share or other unit of any security
covered by this Option.
5. CESSATION OF CORPORATE EXISTENCE. Upon the dissolution or
liquidation of the Company, the reorganization, merger or consolidation of the
Company with one or more corporations as a result of which the Company is not
the surviving corporation, or the sale of substantially all the assets of the
Company or of more than eighty percent (80%) of the then outstanding stock of
the Company to another corporation or entity, the Non-Qualified Option granted
hereunder shall terminate; provided, however, that: (i) each Non-Qualified
Option for which no option has been tendered by the surviving corporation in
accordance with all of the terms and provisions of (ii) immediately below
shall, within thirty (30) days before the effective date of such dissolution or
liquidation, merger or consolidation in which the Company is not the surviving
corporation, or sale of assets or stock, become fully exercisable; or (ii) in
its sole and absolute discretion, the surviving corporation may, but shall not
be obligated to, tender to the Optionee holding a Non-Qualified Option, an
option or options to purchase shares of the surviving corporation or acquiring
corporation, and such new option or options shall contain such terms and
provisions as shall be required substantially to preserve the rights and
benefits of an Non-Qualified Option then outstanding under this Agreement.
6. NON-TRANSFERABILITY. The Non-Qualified Option is not assignable or
transferable by the Optionee, either voluntarily or by operation of law,
otherwise than by will or by the laws of descent and distribution, and is
exercisable, during the Optionee's lifetime, only by the Optionee. Upon any
attempted transfer of this Non-Qualified Option contrary to the provisions
hereof, the Committee may, at its discretion, elect to terminate this Non-
Qualified Option.
7. NO STOCKHOLDER RIGHTS. The Optionee or other person entitled to
exercise this Non-Qualfied Option shall have no rights or privileges as a
stockholder with respect to any Shares subject hereto until the Optionee or
such person has become the holder of record of such Shares, and no adjustment
(except such adjustments as may be made pursuant to the provisions of Section 4
hereof) shall be made for dividends or distributions of rights in respect of
such Shares if the record date is prior to the date on which the Optionee or
such person becomes the holder of record.
8. CONDITIONS TO ISSUANCE OF SHARES. THE COMPANY'S OBLIGATION TO ISSUE
SHARES OF ITS COMMON STOCK UPON EXERCISE OF THE NON-QUALIFIED OPTION IS
EXPRESSLY CONDITIONED UPON (A) THE COMPLETION BY THE COMPANY OF ANY
REGISTRATION OR OTHER QUALIFICATION OF SUCH SHARES UNDER ANY STATE AND/OR
FEDERAL LAW OR RULINGS OR REGULATIONS OF ANY GOVERNMENT REGULATORY BODY OR
(B) THE MAKING OF SUCH INVESTMENT REPRESENTATIONS OR OTHER REPRESENTATIONS AND
AGREEMENTS BY THE OPTIONEE OR ANY PERSON ENTITLED TO EXERCISE THE OPTION IN
ORDER TO COMPLY WITH THE REQUIREMENTS OF ANY EXEMPTION FROM ANY SUCH
REGISTRATION OR OTHER QUALIFICATION OF SUCH SHARES WHICH THE COMMITTEE SHALL,
IN ITS SOLE DISCRETION, DEEM NECESSARY OR ADVISABLE. SUCH REQUIRED
REPRESENTATIONS AND AGREEMENTS MAY INCLUDE REPRESENTATIONS AND AGREEMENTS THAT
THE OPTIONEE, OR ANY OTHER PERSON ENTITLED TO EXERCISE THE OPTION (1) IS NOT
PURCHASING SUCH SHARES FOR DISTRIBUTION, AND (2) AGREES TO HAVE PLACED UPON THE
FACE AND REVERSE OF ANY CERTIFICATES FOR SUCH SHARES A LEGEND SETTING FORTH ANY
REPRESENTATIONS AND AGREEMENTS WHICH HAVE BEEN GIVEN TO THE COMMITTEE OR A
REFERENCE THERETO AND STATING THAT, PRIOR TO MAKING ANY SALE OR OTHER
DISPOSITION OF ANY SUCH SHARES, THE OPTIONEE, OR ANY OTHER PERSON ENTITLED TO
EXERCISE THE OPTION, WILL GIVE THE COMPANY NOTICE OF INTENTION TO SELL OR
DISPOSE OF THE SHARES NOT LESS THAN FIVE DAYS PRIOR TO SUCH SALE OR
DISPOSITION.
9. METHOD OF ACCEPTANCE. This Agreement is addressed to the Optionee in
duplicate and shall not be effective until the Optionee executes the acceptance
below and returns one copy to the Company, thereby acknowledging that he has
read and agrees to all the terms and conditions of this Agreement.
EXECUTED by the Company this 11th day of November , 1996.
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OMEGA ENVIRONMENTAL, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, President
ACCEPTED:
/s/ Xxxxxx X. X'Xxxxxxxx
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Xxxxxx X. X'Xxxxxxxx
11-21-96
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Date
