EXHIBIT 10(h)
SEPARATION AGREEMENT AND GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL RELEASE (the "Agreement") is entered
into by XXX X. XXXXX XX. (hereinafter referred to as "Executive") and OMEGA
ENVIRONMENTAL, INC., its officers, directors, employees, agents, affiliates,
ventures and subsidiaries (hereinafter referred to as the "Company") as of
August 8, 1996.
RECITALS
A. Executive has been employed by the Company and will resign as an
employee, officer and Board Chairman of the Company effective August 8, 1996.
B. Executive and the Company wish to enter into an agreement to clarify
and resolve any matters that may exist between them arising out of the
employment relationship and its termination, and any continuing obligations of
the parties to one another following the end of the employment relationship.
C. The Company has advised Executive of his right to consult an attorney
prior to signing this Agreement and has provided him with at least 21 days to
consider its severance offer and to seek legal assistance. Executive has
consulted with an attorney of his choice and understands that he is waiving all
potential claims against the Company.
D. This Agreement is not and should not be construed as an admission or
statement by either party that it or any other party has acted wrongfully or
unlawfully. Both parties expressly deny any wrongful or unlawful action.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises and representations below, it is agreed as follows:
1. EMPLOYMENT: ENDING DATE AND RESPONSIBILITIES
Executive's employment with the Company and his positions as an officer and
Chairman of the Board will terminate effective August 8, 1996. Executive
confirms his resignation as an employee and from any and all positions and
titles other than Chairman Emeritus with the Company as of August 8, 1996.
Executive has no further duties or responsibilities to the Company after
August 8, 1996, except as specified herein or arise by virtue of his serving on
the Board of Directors of the Company .
2. SEVERANCE AND OTHER PAYMENTS
Upon execution of this Agreement by all parties, the Company agrees to
provide Executive one year's severance pay in the amount of $100,000. Such
severance pay shall be provided in one lump sum payment less any and all
applicable deductions.
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3. BENEFITS
The parties agree that Executive's COBRA rights to continue health
insurance benefits for Executive and his dependents shall commence August 8,
1996. The Company agrees to pay for such benefits through August 8, 1997 unless
Executive obtains equivalent coverage elsewhere. Furthermore, the Company agrees
to allow Executive to assume ownership of existing life insurance on his life,
provided, however, that all premiums on such policies are Executive's
responsibility after the date hereof.
4. PROPERTY
Executive confirms that upon termination of employment, he will turn over
to the Company all files, memoranda, records, credit cards, and other documents
or physical property which he received from the Company or its executives or
generated himself in the course of his employment with the Company, other than
those that are necessary for his functioning as a member of the Board of
Directors. The foregoing notwithstanding, the Company agrees to transfer to
Executive ownership and title to the 1990 Lexus LS400 automobile currently in
the Executive's possession (VIN # XX0XX00X0X0000000).
5. VALID CONSIDERATION
Executive and the Company agree that the Company's severance payments and
other undertakings herein are not required by the Company's policies or
procedures and are offered by the Company solely as consideration for the
Executive's execution of this Agreement.
6. EXPENSES
The Company shall reimburse Executive for valid expenses incurred on
the Company's behalf prior to August 8, 1996, upon presentation of properly
documented expense reports.
7. CONFIDENTIALITY
The terms of this Agreement shall be confidential, except to the extent
that disclosure by either party is required by law or is necessary to obtain
financial or legal advice or assistance or is required in connection with
generally accepted accounting principles (such recipients are hereby
"Recipients of Confidential Information"). The terms of this subparagraph 8.a.
shall be binding upon the parties hereto and Recipients of Confidential
Information.
8. AVAILABILITY AND CONSULTATION
Executive agrees to provide such advice and assistance as is reasonably
necessary for the Company to accomplish an effective transition of his duties;
such assistance to be provided from time to time at such times as shall be
mutually agreeable. He further agrees to make himself reasonably available to
the Company, its agents and advisors for the purpose of enabling the Company to
defend against or assert any legal actions in which the Company determines he
may have knowledge or
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information. All of Executive's expenses associated with this consultation,
testimony and/or preparation shall be borne by Company.
9. PROPRIETARY INFORMATION
Executive recognizes that he has had access to or been engaged in the
development of information (including all tangible and intangible
manifestations) regarding the patents, copyrights, trademark, trade secrets,
technology, clients, acquisitions, prospects, shareholders, business and
finances of the Company. All of this information, except information that is in
the public domain prior to the date of this Agreement, which comes into the
public domain after the date of this Agreement through no fault of Executive or
that would have been readily ascertainable by Executive using proper means is
collectively referred to as "Proprietary Information." For the three year
period ending on March 31, 1999, Executive shall keep in confidence and trust
all Proprietary Information and shall not disclose any Proprietary Information
without the prior written consent of the Company, except as may be required by
law.
10. GENERAL RELEASE OF CLAIMS BY EXECUTIVE
Executive, individually and for and on behalf of his heirs, spouse,
assigns, executors, administrators, agents and representatives, hereby fully,
completely and finally waive, release and forever discharge the Company and its
former and current assigns, executors, administrators, officers, directors,
shareholders, agents, representatives, attorneys, employees, predecessors,
subsidiaries, and affiliated companies from any and all claims, demands, suits,
liabilities, debts and obligations of any kind or nature, known or unknown, that
he has had, now has, or may have in the future as to matters in any way
connected with his employment with the Company (including his service as an
officer and director) and the termination thereof. It is understood that this
release includes, but is not limited to, any form of shareholder claims or
actions and any claims for wages, bonuses, employment benefits, or damages of
any kind whatsoever, arising out of any contracts, express or implied, any
covenant of good faith and fair dealing, express or implied, any theory of
wrongful discharge, any legal restriction on the Company's right to terminate
employees, or any federal, state or other governmental statute or ordinance,
including, without limitation, Title VII of the Civil Rights Act of 1964, the
Federal Age Discrimination in Employment Act, the Washington Law Against
Discrimination, or any other legal limitation on the employment relationship.
Executive represents that he has not filed any complaints, charges or lawsuits
against the Company with any governmental agency, any court, or in any other
forum, and agrees that he will not initiate, assist or encourage any such
actions. This waiver and release shall not waive or release claims where the
events in dispute first arise after execution of this Agreement, nor shall it
preclude Executive from filing a lawsuit for the exclusive purpose of enforcing
his rights under this Agreement. If litigation becomes necessary to enforce any
provision of this Agreement, the prevailing party shall be entitled to receive,
as an additional award to any damages hereunder, reasonable attorneys' fees, and
costs of litigation.
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11. GENERAL RELEASE OF CLAIMS BY THE COMPANY
The Company expressly waives any claims that it may have against Executive
and releases Executive from any claims for damages of any kind whatsoever that
may exist as of the date of execution of this Agreement.
This provision shall not operate to waive or release claims where the
act(s) forming the basis for liability to the Company constitute a criminal act
under either federal or Washington law. Nothing herein shall preclude the
Company from filing a lawsuit for the exclusive purpose of enforcing its rights
under this Agreement.
12. INDEMNIFICATION
Company shall defend and indemnify Executive and hold Executive harmless
from and against any and all claims that may be asserted against Executive by
third parties (including derivative claims asserted by third parties on behalf
of Company) that are connected with Executive's employment by Company (including
his service as an officer and director) to the extent permitted by applicable
law. The foregoing rights are in addition to any other rights to which
Executive may be entitled under any other agreement, policy, bylaw, insurance
policy, ordinance, statute or other provision.
13. REVIEW AND REVOCATION PERIOD; EFFECTIVE DATE
Executive and the Company agree that Executive shall have 21 days to review
this Agreement and consult legal counsel if he so chooses, during which time the
proposed terms of this Agreement shall not be amended, modified or revoked by
the Company. Executive may revoke this Agreement if he so chooses by providing
notice of his decision to revoke the Agreement to the Company within seven days
following the date he signs this Agreement. This Agreement shall become
effective and enforceable upon expiration of this seven-day revocation period.
14. SEVERABILITY
The provisions of this Agreement are severable, and if any part of it is
found to be unlawful or unenforceable, the other provisions of this Agreement
shall remain fully valid and enforceable to the maximum extent consistent with
applicable law.
15. KNOWING AND VOLUNTARY AGREEMENT
Executive represents and agrees that he has read this Agreement,
understands its terms and the fact that it releases any claim he might have
against the Company, understands that he has consulted counsel of his choice,
and enters into this Agreement without duress or coercion from any source.
16. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding between Executive and
the Company on these subjects and supersedes any prior agreements or
understandings, express or implied, pertaining to the terms of his employment
with the Company and the termination of the employment relationship. Executive
acknowledges that in executing
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this Agreement, he does not rely upon any representation or statement by any
representative of the Company concerning the subject matter of this Agreement,
except as expressly set forth in the text of this Agreement.
17. ARBITRATION
Any controversy or claim arising out of or relating to this Agreement, or
the breach thereof, shall be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof. The arbitration shall be held in Seattle,
Washington, unless the parties mutually agree otherwise.
In the event any party to this Agreement institutes any legal action or
arbitration in connection with any claim or controversy arising out of or
related to this Agreement, the arbitrators may, in their discretion, award
costs, including reasonable attorneys' fees, expert witness fees, and other
expenses in such proportion as the tribunal deems proper.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
dates indicated below.
OMEGA ENVIRONMENTAL, INC. EXECUTIVE
By: /s/ Xxxxx X. Xxxxxxx /s/ Xxx X. Xxxxx, Xx.
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Xxxxx X. Xxxxxxx Xxx X. Xxxxx, Xx.
Title: President & CEO
Dated: 9/5/96 Dated: 9/11/96
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