EXHIBIT 1
RELEASE AND CONSULTING AGREEMENT
(Purus, Inc., Xxxxxxx X. Xxxxxxx, Xxxxx Xxxxxxx, and
The Purus Stockholders Protective Committee)
This agreement (hereinafter "Agreement") is made effective
November 19, 1996, by and between Xxxxxxx X. Xxxxxxx, an
individual (hereinafter "Burbank"), on the one part, and
jointly and severally Purus, Inc., a Delaware corporation
(hereinafter "Purus"); Xxxxx Xxxxxxx, a citizen of
Switzerland (hereinafter "Xxxxxxx"); and The Purus
Stockholders Protective Committee, a committee formed by
members of a group of dissident stockholders (hereinafter
"the Committee"), on the other part. This Agreement is made
and is to be performed in the City and County of San
Francisco, California, United States of America, and is
based upon the following representations of the parties:
a. Xxxxxxx X. Xxxxxxx warrants and represents that he has
the capacity and authority to enter into this Agreement
for himself individually, and in any other capacity.
b. The signatories of this Agreement for the party Purus,
Inc. warrant and represent that they have the necessary
capacity and authority to enter into this Agreement for
Purus and to bind Purus to perform the obligations of
this Agreement to be performed by it, to make all
waivers and releases, and to do or refrain from doing
all things necessary to completely and fully effect
this Agreement.
c. Xxxxx Xxxxxxx warrants and represents that he has the
capacity and authority to enter into this Agreement for
himself individually, and in any other capacity.
d. The signatories of this Agreement for the party The
Purus Stockholders Protective Committee warrant and
represent that they have the necessary capacity and
authority to enter into this Agreement for the
Committee and to bind the Committee to perform the
obligations of this Agreement to be performed by it, to
make all waivers and releases, and to do or refrain
from doing all things necessary to completely and fully
effect this Agreement.
e. On November 11, 1996, the Committee initiated a "proxy
fight" for the purpose of replacing a majority of the
Board of Directors of Purus in order to resolve a
dispute concerning the Company's future plans and
direction.
f. On November 15, 1996, at a Special Meeting of the Board
of Directors of Purus, the Directors discussed the
benefits that would accrue to the Company if an
agreement could be reached between the parties to end
the proxy fight.
g. On November 18, 1996, Xxxxxxx X. Xxxxxxx received a
proposal from Xxxxx Xxxxxxx with terms that Xxxxxxx
believed would satisfy the Committee and the dissident
group of stockholders that he represents and cause the
Committee to discontinue the "proxy fight". Xxxxxxx'x
proposal included the resignation of Burbank as an
employee and director of the Company, a follow-on
consulting agreement with Burbank, and provisions
connected with Burbank's severance compensation.
h. On November 18, 1996, Burbank discussed the Xxxxxxx
proposal with the Board and was told, without a formal
resolution of the Board, that if he could negotiate an
agreement satisfactory to him and Xxxxxxx, then he
should present such agreement to the Board for its
consideration.
i. Xxxxxxx Xxxxxxx warrants that according to his signed
time sheets and Purus records, on November 19, 1996, he
had accrued 235 hours of earned vacation,
notwithstanding that paragraph 1.01 of this Agreement
limits the accrued vacation to which he is entitled to
120 hours.
j. Xxxxxxx Xxxxxxx warrants that his expense reports to
the date of the execution of this Agreement are
properly documented and cover only (i) out of pocket
business expenses incurred by Burbank solely for the
benefit of Purus, and (ii) out of pocket dental,
medical and vision expenses in accordance with a
resolution adopted by the Board of Directors at its
Regular Meeting of May 23, 1996.
k. Each of the parties has been represented by independent
legal counsel of his or its choice concerning the
negotiation and drafting of this Agreement. Each of
the parties has had the legal significance of this
Agreement explained to him or it by such independent
legal counsel prior to executing this Agreement, and
each party to this Agreement is freely, voluntarily and
knowingly entering into this Agreement.
NOW THEREFORE, in consideration of the mutual terms,
covenants and conditions set forth in this Agreement, the
parties each contract, covenant and agree as follows:
1. Consideration by Purus:
1.01 Lump-Sum Payment: Upon the execution of this
Agreement, Purus will pay to Xxxxxxx X. Xxxxxxx,
by check, the sum of $US 250,000.00, plus any
accrued salary or vacation pay to which he is
entitled (such vacation pay not to exceed 120
hours) up to and including the date of the
execution of this Agreement.
1.02 Installment Payments: Upon the execution of this
Agreement, Purus will deposit into an irrevocable
escrow account of Burbank's choice the sum of $US
100,000.00, with instructions that such amount be
paid to Burbank in four equal monthly
installments, with the first installment to be
paid on December 19, 1996, and the three remaining
installments to be paid on January 19, 1997,
February 19, 1997 and March 19, 1997. (Ref.:
Appendix A "Escrow Instructions.")
1.03 Postponement of Annual Meeting: Immediately
following the execution of this Agreement, Purus
will reschedule its Annual Meeting to a date no
later than February 1997.
1.04 Purchase of 22,000 shares of Purus Common Stock
from Burbank: If, for any reason or no reason,
within ten (10) days following the execution of
this Agreement, Xxxxxxx cannot arrange and execute
the purchase of 22,000 shares of Purus common
stock from Burbank for exactly $88,000.00, based
on the closing price of Purus common stock on
November 13, 1996, the last day it traded in the
week ending November 15, 1996, then within five
(5) days thereafter, Purus will purchase such
shares from Burbank for the same price (see
paragraph 4.01, herein).
2. Consideration by Burbank:
2.01 Resignation as Officer and Director: Upon the
execution of this Agreement, Burbank will resign
as President, Chief Executive Officer and Chairman
of the Board of Directors and as a director of
Purus.
2.02 Termination of Burbank Severance Agreements: Upon
the fourth and final installment payment by Purus
of the Installment Payments described in Section
1.02 above, each of Burbank and Purus stipulate
and agree that the Burbank Severance Agreements,
included herein as "Appendix B" shall terminate.
However, if for any reason, Burbank does not
irrevocably receive all of the moneys provided for
in Section 1 herein, his rights under the
agreements included in Appendix B shall not be
released or extinguished.
2.03 Agreement to be party to a Consulting Agreement:
As further consideration, Burbank agrees to accept
retention as an independent contractor to Purus
pursuant to the provisions of Section 5 of this
Agreement entitled "Burbank Consulting Agreement."
3. Consideration by the Committee:
3.01 Termination of Proxy Fight: Immediately following
the execution of this Agreement, the Committee
will stop soliciting proxies in connection with
Purus' 1996 Annual Meeting and will cancel its
notice of and stop soliciting proxies for a
Special Meeting.
4. Consideration by Xxxxx Xxxxxxx:
4.01 Purchase of 22,000 shares of Purus Common Stock
from Burbank: Within ten (10) days following the
full execution of the Agreement, Xxxxx Xxxxxxx
will arrange and execute the purchase of 22,000
shares of Purus common stock from Burbank for
exactly $88,000.00, based on the closing price of
Purus common stock on November 13, 1996, the last
day it traded in the week ending November 15,
1996. If, for any reason, or no reason, Xxxxxxx
cannot arrange and execute the preceding purchase
within the aforementioned ten (10) day period,
then within five (5) days thereafter, Purus will
purchase such shares from Burbank for the same
price.
5. Burbank Consulting Agreement: Upon full execution of
this Agreement, Purus and Burbank shall be a party to a
consulting agreement as follows:
5.01 Term; Cancellation or Extension: This Consulting
Agreement shall be dated effective on the date of
the full execution of this Agreement and shall
become contractually binding upon the full payment
of the moneys due Burbank and the escrow account,
as provided under Section 1 herein, and shall
terminate on March 19, 1997. This Consulting
Agreement may be cancelled at any time during its
term upon written notice to Burbank from Purus
pursuant to the provisions of this Agreement
concerning notices; however, termination of this
Consulting Agreement shall have no effect on the
considerations and obligations of the parties as
described in Sections 1, 2 and 3 herein and
Burbank shall be entitled to keep all moneys
covered by Section 1 herein. This Agreement can
be extended at any time by the mutual consent of
both Burbank and Purus.
5.02 Compensation of Burbank: For the term of this
Consulting Agreement, Burbank shall work without
compensation for sixty (60) hours per month. For
services beyond sixty (60) hours per month,
Burbank shall be compensated at the rate of
$150.00 per hour. Burbank shall be reimbursed for
out of pocket business expenses incurred by
Burbank for the sole benefit of Purus. Burbank
shall invoice Purus monthly for compensation and
business expenses during the term of this
Consulting Agreement, and Purus shall promptly pay
all such invoices. Burbank shall provide
documentation of the time he spends providing
services and of the business expenses he incurs
for the sole benefit of Purus. Burbank shall not
xxxx Purus for more than sixty (60) hours per
month for services or incur business expenses of
more than $500.00 per month, without the prior
approval of Purus.
5.03 Consulting Agreement Services: Burbank shall
provide consulting services to Purus' Board of
Directors (herein "the Board") related to Purus'
operations. These services shall include:
(i) overseeing and directing, on behalf of the
Board, the work activities of Purus' service
employees and sub-contractors,
(ii) representing Purus, on behalf of the Board,
in warranty and service matters in connection
with former customers of Purus whose PADRE
installations are currently covered under
warranty agreements and in connection with
former customers who are contesting Purus'
notice that their warranties have expired,
(iii) assisting the Board with the preparation of
public disclosure documents for Nasdaq and
the SEC,
(iv) assisting Purus' lawyers in developing
strategies, preparing documents, and
providing declarations and depositions to
defend against the pending Class Action
lawsuit and toxic emissions lawsuit, and
other lawsuits that may arise from Purus'
obligations under purchase contracts with
former customers,
(v) presenting to the Board for its review and
approval such things as invoices, purchase
requisitions, contracts, and settlement
agreements, along with appropriate
justification, that are connected with the
preceding activities, and
(vi) other activities and assistance that the
Board may request and that Burbank may agree
to provide, provided however, that such other
activities are not related to matters
connected with corporate governance,
stockholder relations, or new business
development.
5.04 Consulting Agreement Conditions: Burbank shall
provide consulting services to Purus' Board
subject to the following conditions:
(a) Burbank acknowledges that all information and
communications between Purus and Burbank
concerning the subject matter of the
Consulting Agreement are confidential and are
trade and business practice secrets unless
specifically otherwise classified by Purus in
writing. Burbank agrees to keep all such
information confidential and secret, and to
maintain and require the maintenance of
systems and procedures designed to preserve
the secrecy and confidentiality of all
communications and information provided by
Purus to Burbank pursuant to this Consulting
Agreement. Burbank shall not disclose any
portion of any information provided to
Burbank by Purus pursuant to this Consulting
Agreement without the prior written consent
of Purus, except to his accountants,
attorneys and business consultants.
(c) All work, results, reports, recommendations,
conclusions, data and work product of
whatever nature created by Burbank for Purus
pursuant to this Consulting Agreement is work
for hire, the exclusive property of Purus,
secret and confidential, and subject to the
confidentiality and secrecy requirements of
subpart (a) above. Burbank shall hold all of
the foregoing work and work product in trust
for the exclusive benefit of Purus, and
subject to the direction of Purus concerning
its maintenance, dissemination, return and
destruction. Burbank shall request Purus to
authorize the release of any and all such
information Burbank believes is necessary for
optimal performance of the Consulting
Agreement.
(d) Burbank shall not subcontract to others for
or assign the performance of any of the
services to be performed by Burbank pursuant
to this Consulting Agreement without the
prior written consent of Purus.
(e) Subject to the provisions of this Consulting
Agreement, Burbank shall have complete
control over the manner in which he provides
services hereunder, and Burbank shall
maintain his autonomy as an independent
contractor separate from Purus with his own
business office, over which Burbank shall
continue to exercise complete and autonomous
control during his performance of this
Consulting Agreement. Burbank is retained by
Purus as an independent contractor, and no
employer-employee relationship, joint venture
or any other business relationship other than
involving an independent contractor
relationship is created by this Consulting
Agreement.
(f) In the performance of all services to be
performed by Burbank pursuant to this
Consulting Agreement, Burbank shall comply
with all applicable United States Laws and
Regulations.
(h) Burbank shall not hold himself out as or
represent that he is an agent, employee or
legal representative of Purus in any capacity
or for any purpose whatsoever. Burbank shall
have no power or authority to incur or create
any obligations or liability of any kind for
or on behalf of Purus.
6. Mutual Release
6.01 Upon the full payment of all moneys due Burbank
under Section 1 herein, Burbank and each of Purus,
the Committee, and Xxxxxxx, individually and
collectively agree that such payment by Purus
shall be payment in full of all moneys due from
Purus to Burbank and a full and complete and
accord and satisfaction of all obligations of
Purus and its officers, directors, stockholders,
employees, agents, successors and assigns to
Burbank, individually, or in any other capacity.
6.02 Upon the full payment of all moneys due Burbank
under Section 1 herein, thereupon and not before,
Burbank shall give a full and complete waiver of
all claims, including, but not limited to, claims
of wrongful discharge, breach of contract, breach
of the covenant of good faith and fair dealing,
violation of public policy, defamation, personal
injury, emotional distress, claims under Title VII
of the Civil Rights Act of 1964, as amended, the
Fair Labor Standards Act, the California Fair
Employment and Housing Act, the Equal Pay Act of
1963, California Labor Code Section 1197.5, the
Age Discrimination in Employment Act of 1967, and
any other state or federal laws and regulations
relating to employment or employment
discrimination. Burbank further understands that
by this Release, he agrees not to assist,
encourage, institute, or cause to be instituted
the filing of any administrative charge or
proceeding against Purus relating to employment or
employment discrimination, excluding any claims he
might have for unemployment insurance benefits,
state disability compensation, and/or workers'
compensation benefits.
6.03 Nothing herein shall, however, waive any right or
indemnification of Burbank pursuant to the
obligation to indemnify as set forth in Purus
ByLaws.
6.04 Upon the full execution of this Agreement, Purus,
the Committee, and Xxxxxxx, collectively and
individually fully and forever release and
discharge Burbank from any claims and damages and
causes of action it may have against him and
covenants not to xxx or otherwise institute or
cause to be instituted or in any way participate
in legal or administrative proceedings against
Burbank with respect to any matter arising out of
or connected with Burbank's employment with
Company or the termination of that employment,
including any and all liabilities, claims,
demands, contracts, debts, obligations and causes
of action of every nature, kind and description,
in law, equity, or otherwise, whether or not now
known or ascertained, which heretofore do or may
exist; provided, however, no claim is released on
account of any act by Burbank which was a knowing
and willful violation of law.
6.05 The parties also agree, individually and
collectively, that nothing contained in this
Release shall constitute or be treated as an
admission of liability or wrongdoing by Burbank,
Purus, Xxxxxxx, or the Committee.
7. Waiver of Provisions of California Civil Code Section
1542: Concerning the Section 5 Release of the
Agreement, each of Burbank, Purus, Xxxxxxx and the
Committee, hereby waive the provisions of California
Civil Code Section 1542, which provides in pertinent
part:
"A general release does not extend to claims to
which the creditor does not know or it suspects 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."
8. Notices: All notices and invoices shall be in writing,
and shall be sent to the parties at the following
addresses:
To Burbank:
Xxxxxxx X. Xxxxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
To Purus:
Purus, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
To Xxxxxxx:
Xxxxxxx Corporate Finance AG
Xxxxxxxxxxxxxx 0
Xxxxxx, Xxxxxxxxxxx CH-8002
Attn: Xxxxx Xxxxxxx
Tel: 000-00-0-000-0000
Fax: 000-00-0-000-0000
To The Committee:
Xxxxxxx Corporate Finance AG
Xxxxxxxxxxxxxx 0
Xxxxxx, Xxxxxxxxxxx CH-8002
Attn: Xxxxx Xxxxxxx
Tel: 000-00-0-000-0000
Fax: 000-00-0-000-0000
Written notices sent via premium mail service, such as DHL,
FedEx, Overseas Express Mail, etc., shall be deemed received
upon either confirmation of delivery by the premium mail
carrier, or upon the first notification by the premium mail
carrier of an attempt to deliver, whether successful or not.
Notices sent via any other type of mail shall be deemed
received only following actual receipt by the recipient.
Notices transmitted via fax shall be deemed received
immediately upon the actual confirmed receipt of the fax
notice, if the notice is received in its entirety prior to
4:00 p.m. on a business day in the place of receipt.
Notices which are not received in their entirety prior to
4:00 p.m. on a business day in the place of receipt shall be
deemed received at 9:00 a.m. on the next succeeding business
day in the place of receipt.
8. General Provisions:
8.01 Binding Agreement: This Agreement shall be
binding upon and inure to the benefit of the
heirs, personal representatives, subrogors,
predecessors, assignors, successors and assigns of
each of the parties. The representations of the
parties in this Agreement are their warranties,
and are each incorporated into this Agreement in
full.
8.02 Entire Agreement: This Agreement constitutes the
entire agreement between the parties and
supersedes all prior negotiations, communications,
discussions and correspondence concerning the
subject matter of this Agreement. This Agreement
may only be modified by a writing executed by all
of the parties this Agreement.
8.03 Governing Law; Jurisdiction and Venue: This
Agreement shall be governed by and construed in
accordance with the laws of the State of
California. Jurisdiction and Venue shall be
proper in any California Court of competent
jurisdiction. Service of process shall be in
accordance with the California Code of Civil
Procedure and California law concerning service of
process. To the extent any provisions of any
treaty or agreement which the United States and
Switzerland are signatories contradicts the
provisions of the California Code of Civil
Procedure, the California Code of Civil Procedure
shall prevail. If personal service can not be
made upon any party to this Agreement, after the
exercise of reasonable diligence, each party to
this Agreement appoints the Secretary of State of
the State of California as his, her, or its duly
appointed agent for service of process.
8.04 Validity of Agreement: If any portion or any
provision of this Agreement shall be prohibited by
or be invalid under applicable law, such provision
shall be ineffective only to the extent of such
prohibition or invalidity without invalidating the
remainder of such provision or any remaining
portion or provision of this Agreement, which
shall remain valid and fully enforceable against
the parties to this Agreement.
8.05 Execution in Counterpart: This Agreement may be
executed in multiple counterparts. Each iteration
of this Agreement bearing, in the aggregate, the
original signatures of all of the parties to this
Agreement, whether or not all such signatures are
contained on the same page, shall be deemed a
duplicate original of this Agreement, and shall be
enforceable as such. Transmission of a facsimile
of this Agreement shall be deemed the promise of
the transmitting party to promptly provide the
other party or parties with the original of this
Agreement bearing the original of his, her, or its
signature upon demand of any party. The failure
of any party to promptly deliver to a demanding
party such original document bearing the original
signature of the party to whom the demand is
directed shall be conclusively deemed to be the
stipulation and agreement of the party to whom the
demand is directed that he, she or it executed
this Agreement, and that the facsimile bearing the
signature of the party to whom the demand is
directed, or a true copy thereof, is an original
signature of such party for all purposes,
including enforcement of this Agreement in a court
or other proceeding or action.
IN WITNESS WHEREOF: the parties hereto have each duly
executed this Agreement as of the date first written above
as if this Agreement were executed in the City and County of
San Francisco, California.
Xxxxxxx X. Xxxxxxx, Individually and In All Other
Capacities:
Xxxxxxx X. Xxxxxxx
_______________________________
By: Xxxxxxx X. Xxxxxxx
Purus, Inc.:
Xxxxxxxx Xxxxxxxx
_______________________________
By: Xxxxxxxx Xxxxxxxx
Director
Xxxxx Xxxxxxx, Individually and In All Other Capacities:
Xxxxx Xxxxxxx
_______________________________
By: Xxxxx Xxxxxxx
The Purus Stockholders Protective Committee:
Xxxxx Xxxxxxx
______________________________
By: Xxxxx Xxxxxxx
Xxxx Xxxxxxx
______________________________
By: Xxxx Xxxxxxx
RELEASE AND CONSULTING AGREEMENT
Appendix A: Escrow Instructions
Xxxx Xxxxxx & Xxxxx, escrowee, agrees to hold the
Installment Payments, in the amount of $100,000.00, due
Xxxxxxx X. Xxxxxxx under paragraph 1.02 of that certain
RELEASE AND CONSULTING AGREEMENT, dated November 19, 1996 in
an interest bearing money market account and to issue checks
to Xxxxxxx X. Xxxxxxx on the following dates and in the
following amounts:
Amount Payment Date
$25,000.00 December 19, 1996
$25,000.00 January 19, 1997
$25,000.00 February 19, 1997
Balance March 19, 1997
Agreed and Accepted by:
Xxxxxxx X. Xxxxxxx 11/19/96
________________________________________ ______________
Xxxxxxx X. Xxxxxxx Date
Individually and in all other capacities
Xxxx Xxxxxx & Xxxxx 11/19/96
________________________________________ _______________
Xxxx Xxxxxx & Xxxxx Date
Xxxxxxx Xxxxx 11/19/96
____________________________________________________
Xxxxxxx Xxxxx (witness)
RELEASE AND CONSULTING AGREEMENT
Appendix B: Employment Agreements
I. Employment Letter, dated November 11, 1994
II. Purus, Inc. Severance and Retention Plan and Summary
Description, dated July 28, 1995
III. Purus, Inc. Severance and Retention Plan Amendment No.
1, dated April 5, 1996
