EXHIBIT 10.11
RELEASE OF ALL CLAIMS/SETTLEMENT AGREEMENT
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AGREEMENT made this 5th day of March, 1996 between TOTAL CONTAINMENT,
INC., a Delaware Corporation (the "Company") and XXXXX XXXXXXXX ("Xxxxxxxx").
BACKGROUND OF AGREEMENT
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Xxxxxxxx is employed by the Company and desires to tender his resignation
effective as of the date of this Agreement. The Company and Xxxxxxxx have
negotiated a RELEASE OF ALL CLAIMS/SETTLEMENT AGREEMENT (sometimes hereinafter
referred to as the "Agreement") relative to his termination of employment with
the Company on the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, in consideration of the mutual promises
herein contained and intending to be legally bound hereby, agree as follows:
1. Xxxxxxxx hereby resigns as an employee, officer and member of the Board
of Directors of the Company effective as of the date of this Agreement.
2. The Company agrees to pay, as severance to Xxxxxxxx, the sum of One
Hundred Seventy Thousand Dollars ($170,000.00), for the balance of 1996, payable
in the form of (i) Lawrence's current rate of salary (semi-monthly payments of
$7,500.00 each)at the times of normal Company payroll payments (commencing with
payroll payments due in March 1996) and (ii) four (4) quarterly payments of Five
Thousand Dollars ($5,000.00) each on March 31, June 30, September 30 and
December 31, 1996, commencing after
execution of this Agreement and after a seven (7) day revocation period has
expired. All payments shall be less required employee withholding for taxes,
social security etc. In addition, Xxxxxxxx shall continue to receive health
insurance benefits until December 31, 1996; provided, however, should Xxxxxxxx
find new employment, health insurance benefits shall only be continued if not
provided by his new employer. All insurance continuation is subject, as
appropriate, to COBRA requirements.
3. Effective with the date of this Agreement, Xxxxxxxx shall no longer have
any expense account, right to reimbursement for expenses, or car allowance. Any
and all Company credit cards shall be returned upon execution of this Agreement.
4. Company agrees to pay to Executive Career Resource Group, together with
the first payment due under Section 2 of this Agreement, the sum of Twelve
Thousand Dollars (S12,000.00), representing fees for out-placement services
incurred or to be incurred by Xxxxxxxx based upon invoices or proposals
previously submitted for approval to the Company through Xxxxxxx Xxxxx, its
designated representative for purposes of review and approval of those items.
5. Xxxxxxxx does hereby remise, release, and forever discharge the Company,
its subsidiaries and affiliates and its and their current and former officers,
directors, employees and agents, in their official and individual capacities,
and its and their representatives, successors and assigns, heirs, executors and
administrators (hereinafter collectively and/or individually
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referred to, as the case may be as "TCI") of and from all manner of actions and
causes of action, suits, debts, dues, accounts, bonds, covenants, contracts,
agreements, judgments, claims, and demands whatsoever in-law or equity,
especially from any and all claims for damages, expenses, wages, severance pay,
vacation pay, fringe benefits, emotional distress, or other monies or
accountings, including, but not limited to, compensation or benefits on account
of or relating to his employment or separation from employment with the Company,
(including any of the foregoing arising out of Lawrence's Employment Agreement
with the Company dated February 26, 1994 (the "Employment Agreement")), or any
other reason whatsoever relating to the Company's actions prior to Lawrence's
signing this Agreement, including punitive damages, liquidated damages,
exemplary damages, or compensatory damages, physical, mental, or emotional
distress, pain and suffering, back pay, front pay, severance pay, costs and
attorneys' fees, and any other legal or equitable relief arising out of
Lawrence's employment or separation from employment or any efforts for rehire,
reemployment, or employment with the Company, or which did, could, or should
have arisen or have been alleged or stated in any complaint or charge and
including, but not limited to, claims which could have been or were instituted,
filed, or otherwise processed or started before, with, or to any state or
federal court or any local, state, or federal agency against TCI, which Xxxxxxxx
ever had, now has, or which his heirs, executors, administrators, successors, or
assigns, or any
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of them, hereafter can, shall, or may have for, or by reason of any cause,
matter, or thing whatsoever, whether known or unknown, from the beginning of the
world to the date of this RELEASE OF ALL CLAIMS/SETTLEMENT AGREEMENT, including
but not limited to, any causes as might arise under or through any federal or
state constitutions, statutes; regulations, or policies (collectively
"Employment Laws"), including, but not limited to, the Age Discrimination in
Employment Act, the Older Workers' Benefit Protection Act, the Human Relations
Act of the Commonwealth of Pennsylvania, Title VII of the Civil Rights Act of
1964, as amended, any federal, state, and local statute or law relating to
hours, wages, and other terms and conditions of employment or fair employment
practices, or other employment discrimination, any other federal, state, or
local statute, or any other cause of action, referring or concerning
discrimination on account of age, race, sex, national origin, or color, the Fair
Labor Standards Act, any wage and hour laws of the Commonwealth of Pennsylvania,
or any of its counties, cities, or other subdivisions, any federal, state, or
local Civil Rights and/or Human Rights laws, Fair Employment codes or laws or
labor codes, any Vocational or Fair Employment codes or laws or labor codes, any
Vocational or Rehabilitation or Handicap Act, Statute, or Regulation, Employee
Retirement Income Security Act, as amended, any other health, medical, or fringe
benefit, related statute, law, or rule, workers' compensation laws, the common
law, civil codes, constitution, actions in tort or wrongful discharge or breach
of
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contract, or breach of covenant or good faith and fair dealing, or express or
implied public policy of the United States, Commonwealth of Pennsylvania, or any
other state. Notwithstanding anything in this Paragraph to the contrary, this
Release is not intended to preclude Xxxxxxxx from making claims under the
Pennsylvania Worker's Compensation Act, for unemployment compensation or for any
vested benefits under any qualified employee benefit plan, nor is it intended to
waive any claim Xxxxxxxx may have for breach of this Agreement by Company.
6. Xxxxxxxx warrants and acknowledges as follows:
(a) that Xxxxxxxx has read the terms of this Agreement and that Xxxxxxxx
understands its terms and effects, including the fact that Xxxxxxxx has agreed
to RELEASE AND FOREVER DISCHARGE TCI from any legal or equitable action arising
out of Lawrence's Employment Agreement, employment relationship with the
Company, the terms and conditions of that employment relationship and the
termination of that employment relationship;
(b) that Xxxxxxxx has signed this Agreement voluntarily and knowingly in
exchange for the consideration described herein, which Xxxxxxxx acknowledges is
adequate and satisfactory to him;
(c) that the payments, benefits, promises and undertakings set forth
herein exceed and are greater than the payments and benefits, if any, to which
Xxxxxxxx would have been entitled upon resignation or termination of his
employment with the Company had Xxxxxxxx not executed this Agreement;
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(d) that Xxxxxxxx has been advised to consult with an attorney concerning
this Agreement;
(e) that Company has provided Xxxxxxxx with a period of twenty-one (21)
days in which to consider this Agreement and that Xxxxxxxx has signed on the
date indicated below after concluding that this Agreement is satisfactory to
Xxxxxxxx; and
(f) that neither the Company nor any of its agents, representatives,
employees or attorneys have made any representations to Xxxxxxxx construing the
terms or effect of this Agreement other than those contained in this Agreement.
7. Xxxxxxxx agrees and recognizes that his employment relationship with the
Company has been terminated, and that the Company has no obligation, contractual
or otherwise, to employ or appoint Xxxxxxxx in the future.
8. Xxxxxxxx warrants and understands that as a condition of this RELEASE OF
ALL CLAIMS/SETTLEMENT AGREEMENT, Xxxxxxxx is PRECLUDED FROM DISCLOSING, directly
or indirectly, any of the terms and conditions of this settlement to any person,
place, or, thing whatsoever except his immediate family, attorney and
accountant.
9. Company agrees that it shall be PRECLUDED FROM DISCLOSING, directly or
indirectly, any of the terms and conditions of this Settlement to any person,
place or thing whatsoever except the Board of Directors, Executive Officers of
the Company, the Company's attorneys and accountants and, to the extent required
in any Securities and Exchange Commission filings. In addition,
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the Company shall be free to disclose to its customer base and the general
industry that Xxxxxxxx is no longer employed by the Company.
10. (a) Xxxxxxxx hereby acknowledges and recognizes the highly
competitive nature of the Company's business and accordingly agrees that, for a
period of three (3) years following the date hereof Xxxxxxxx shall not:
(i) be engaged, directly or indirectly, either for his own account or
as agent, consultant, employee, partner, officer, director, proprietor,
investor, or otherwise by any person, firm, corporation, or enterprise engaged,
within the restricted territory, in any activity in which the Company was
engaged during the time of Lawrence's employment; or
(ii) render financial or other assistance to any person, firm,
corporation, or enterprise engaged, within the restricted territory, in any
activity in which the Company was engaged during the time of Lawrence's
employment.
(b) For purposes of this Section 10: (i) the phrases "Company's
business" or "activity in which the Company is engaged during the time of
Lawrence's employment" shall be deemed to include, but not be limited to, the
design, manufacture, marketing, distribution, engineering, sale and servicing of
systems and all components thereof for the conveyance and containment of
petroleum or alcohol based motor vehicle or other fuels (including, without
limitation, gasoline, gasohol and oil) from underground storage tanks to above
ground product dispensers or
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machinery and equipment which uses such fuels, but excluding any products and/or
services not currently under development by or being marketed by the Company
(ii) the term "restricted territory" shall mean: (A) the United States,
including its territories and possessions, (B) Canada, and (C) any other foreign
country in which the products and/or services of the Company or of any of its
subsidiaries were sold during the time of Lawrence's employment.
(c) Lawrence, in connection with this Section 10, represents and
acknowledges that he is fully familiar with all the existing products and
services of the Company, products under development and the general business of
the Company.
11. Xxxxxxxx acknowledges that the Company's trade secrets, as they may
exist from time to time, and confidential information concerning the Company's
business, products, technical information, sales activities, procedures,
promotion, pricing techniques, customer lists, and credit and financial data
concerning customers are valuable, special, and unique assets of the Company,
access to and knowledge of which were essential to the performance of Lawrence's
duties under the Employment Agreement. In light of the highly competitive nature
of the industry in which the business of the Company is conducted, Xxxxxxxx
further agrees that all knowledge and information described in the preceding
sentence not in the public domain, and known by Xxxxxxxx as a result of
Lawrence's employment by the Company, shall be considered confidential
information. In recognition of this
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fact, Xxxxxxxx agrees that Xxxxxxxx will not disclose any of such confidential
information to any person or other entity for any reason or purpose whatsoever,
nor shall Xxxxxxxx make use of any such confidential information for Lawrence's
own purposes or for the benefit of any person or other entity under any
circumstances. For purposes of this Section 11, trade secrets and confidential
information of the Company shall be deemed to include all trade secrets and
confidential information of the Company and its affiliates or subsidiaries.
12. Xxxxxxxx hereby agrees that he shall not solicit for the purpose of
hiring any employees of the Company, or its affiliates or subsidiaries for a
period of three (3) years after the date of this Agreement.
13. Xxxxxxxx acknowledges that under Section 10 of the Employment Agreement
Xxxxxxxx was required to promptly disclose, grant and assign to the Company for
its sole use and benefit any and all inventions, improvements, technical
information, patent applications and suggestions, relating in any way to
existing products or those products under consideration for development, of the
Company or any affiliate of the Company, or capable of beneficial use by
customers to whom products of the Company or any affiliate of the Company are
sold which Xxxxxxxx had in the past and/or during his employment with the
Company, conceived, developed or acquired (whether or not during usual working
hours), and reissues thereof that may at any time be granted for or upon any
such invention, improvement, technical information,
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patent applications and suggestions (collectively the "Concepts"). Therefore,
Xxxxxxxx agrees that Xxxxxxxx shall promptly at all times during and after the
date hereof:
(a) execute and deliver such applications, assignments, descriptions and
other instruments as may be necessary or proper, in the sole opinion of the
Company to vest in the Company title to such Concepts and to enable Company to
obtain and maintain the entire right and title thereto throughout the world; and
(b) render to the Company at Company's expense all such assistance as it
may require in the prosecution of applications for said Concepts or reissues
thereof, in the prosecution or defense of interference or infringement which may
be declared, involving any such Concepts, and in any litigation in which the
Company or its affiliates or subsidiaries may be involved relating to any such
Concept.
14. (a) Xxxxxxxx acknowledges and agrees that the Company's remedy at law
for a breach or threatened breach of any of the agreements or restrictions
contained in this RELEASE OF ALL CLAIMS/SETTLEMENT AGREEMENT would be inadequate
and, in recognition of this fact, in the event of a breach or threatened breach
by Xxxxxxxx of any of the agreements or restrictions contained in this RELEASE
OF ALL CLAIMS/SETTLEMENT AGREEMENT, it is agreed that, in addition to any remedy
at law, the Company shall be entitled to request equitable relief in the form of
specific performance, temporary restraining order, temporary or
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permanent injunction, or any other equitable remedy which may then be available,
and Xxxxxxxx agrees not to oppose such request on the grounds that equitable
relief is not appropriate. Nothing herein contained shall be construed to
preclude any other remedies available to Company for such breach or threatened
breach. If the Company is obliged to resort to the Courts for the enforcement of
any of the agreements or restrictions contained in this RELEASE OF ALL
CLAIMS/SETTLEMENT AGREEMENT, or if such agreements or restrictions are otherwise
the subject of litigation between the parties, then the terms of such agreements
or restrictions shall be extended for a period of time equal to the period of
such breach, which extension shall commence on the latter of (1) the date on
which the original (unextended) term of such agreements or restrictions is
scheduled to terminate or (2) the date of the final court order (without further
right of appeal) enforcing such agreements or restrictions.
(b) It is expressly understood and agreed that although Xxxxxxxx and the
Company consider the agreements and restrictions contained in Sections 8, 9, 1O,
11, 12 and 13 of this Agreement reasonable for the purposes of preserving for
the Company, and its affiliates or subsidiaries, their good will and other
proprietary rights, if a final judicial determination is made by a court having
jurisdiction that the time, territory or any other agreement or restriction
contained in Sections 8, 9, 10, 11, 12 and 13 of this Agreement is an
unreasonable or otherwise unenforceable agreement or restriction against
Xxxxxxxx, the
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provisions of Sections 8, 9, 10, 11, 12 and 13 of this Agreement shall not be
rendered void but shall be deemed amended to apply, as to such maximum time and
territory and to such other extent, as such court may judicially determine or
indicate to be reasonable.
(c) It Xxxxxxxx breaches this RELEASE OF ALL CLAIMS/SETTLEMENT AGREEMENT,
the Company, in addition to any other rights and remedies, shall be entitled to
set aside and rescind any relief it has agreed to provide Xxxxxxxx, and Company
shall be entitled to the return of all monies or benefits tendered to, or on
behalf of Xxxxxxxx, as part of this RELEASE OF ALL CLAIMS/SETTLEMENT, together
with reasonable attorneys' fees, and such other relief, including injunctive,
against Xxxxxxxx as the Court deems just.
15. Xxxxxxxx understands and acknowledges that he may revoke this RELEASE
OF ALL CLAIMS/SETTLEMENT AGREEMENT within seven (7) days after execution.
Xxxxxxxx further understands and acknowledges that this RELEASE OF ALL
CLAIMS/SETTLEMENT agreement will not become effective or enforceable, and
further payments will not commence until this seven (7) day revocation period
has passed.
16. Any vested rights to exercise options for Company stock which Xxxxxxxx
currently has must be exercised and paid for no later than the date of execution
of this Agreement or be forfeited. All non-vested options or incentive rights
for Company stock
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are otherwise terminated as to Xxxxxxxx, effective as of the date of execution
of this Agreement.
17. Any notices due or sent pursuant to the terms of this Agreement shall
be sent by certified mail return receipt requested, or by same day or overnight
courier service as follows:
To: Xxxxxxxx:
Xxxxx Xxxxxxxx
X.X. Xxx 000
Xxxx, XX 00000
To: Company:
Total Containment, Inc.
422 Business Center
X-000 Xxxxx Xxxxx
X.0. Xxx 000
Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Notices sent by certified mail return receipt requested shall be deemed given
two (2) days after the date of mailing and if by same day or overnight courier
service, one (1) day after delivery to such courier service.
18. This Agreement constitutes the entire agreement among the parties and
may not be amended or modified except in writing signed by the parties hereto.
19. This Agreement is intended to be governed by and construed under the
laws of the Commonwealth of Pennsylvania.
20. This Agreement is intended to be binding upon and inure to the benefit
of the parties hereto their heirs, executors, administrators, successors and
assigns.
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21. Xxxxxxxx agrees to make himself available upon reasonable notice for
all of calendar years 1996, 1997 and 1998, to provide services as a witness,
consultant or otherwise to the Company with regard to any existing and/or future
claims, disputes or litigation involving the Company. In exchange for providing
the foregoing services to the Company, Company agrees to pay to Xxxxxxxx the sum
of $10,000 at the end of each calendar quarter in the years 1997 and 1998
commencing March 31, 1997. In addition, Company shall reimburse Xxxxxxxx for any
and all reasonable expenses incurred for travel, food and lodging in conjunction
with any requests by Company to have Xxxxxxxx make himself available as provided
herein. Should it be determined, at the end of calendar year 1998, that during
calendar years 1997 and 1998, the amount of hours required to be spent by
Xxxxxxxx in performing the services required under this Section 21, exceeds 800
hours, Xxxxxxxx shall be compensated at the rate of $100.00 per hour for each
hour over and above the 800 hours of service. "Hours of service" shall include
only travel, witness preparation, depositions, discovery, interrogatories,
meetings and preparatory work by Xxxxxxxx as agreed in advance by TCI.
IN WITNESS WHEREOF, the parties have duly executed this RELEASE OF ALL
CLAIMS/SETTLEMENT AGREEMENT THIS 5th day of March, 1996.
/s/ Xxxxx Xxxxxxxx
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XXXXX XXXXXXXX
[SIGNATURES CONTINUED ON THE NEXT PAGE]
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TOTAL CONTAINMENT, INC.
By: /s/ Xxxx Xxxxxxx
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Its: Chairman
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STATE OF PENNSYLVANIA :
: SS
COUNTY OF DELAWARE :
On this, the 5th day of March, 1996, before me, the undersigned officer,
personally appeared XXXXX XXXXXXXX, known to me or satisfactorily proven to be
the person whose name is subscribed to the foregoing instrument and acknowledged
that he executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxxx X. Xxxxxx
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Notary Public
My Commission Expires:
NOTARY SEAL
XXXXX X. XXXXXX, Notary Public
Radnor, Delaware County
My Commission Expires Sept. 23, 1996
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COMMONWEALTH OF PENNSYLVANIA :
:
COUNTY OF XXXXXXXXXX :
On this, the 6th day of March, 1996, before me, the undersigned officer,
personally appeared Xxxx Xxxxxxx, who acknowledged himself to be the Chairman of
TOTAL CONTAINMENT, INC., and that he, being authorized to do so, executed the
within instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Notary Public
My Commission Expires:
NOTARY SEAL
Xxxxx X. Xxxxxxxxx, Notary Public
Upper Providence Twp., Xxxxxxxxxx County
My Commission Expires Nov. 29, 1996
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