STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") dated as of October 4,
2000 between XXXXXX X. XXXXXXXXX ("Seller"), and PHIBRO-TECH, INC., a Delaware
corporation ("Purchaser") is made with reference to the following facts.
A. Seller is the owner of 71.67 shares (the "Shares") of the Purchaser's
Class B Common Stock, par value $.01 per share, and is one of the Management
Stockholders party to that certain Stockholders Agreement dated as of February
21, 1995, as amended (the "Stockholders Agreement"), among the Purchaser and
such Management stockholders;
B. An Actual or Constructive Termination (as defined in the Stockholders
Agreement) of the Seller's employment with the Company has occurred, and the
Purchaser is obligated to purchase the Shares pursuant to and in accordance with
the Stockholders Agreement; and
C. Seller desires to sell to Purchaser, and Purchaser desires to buy from
Seller, the Shares upon the terms and conditions set forth in this Agreement.
The parties agree as follows:
1. Sale and Purchase. On the Closing Date (as defined below), Seller shall
sell, assign, transfer, convey and set over to Purchaser, all of Seller's right,
title, and interest in the Shares for a purchase price equal to $855,000.00
("Purchase Price"). Upon payment of the Purchase Price, all of Purchaser's
obligations under the Stockholder's Agreement shall be satisfied in full.
2. The Closing. The closing of the purchase and sale of the Shares shall
occur upon the later to occur of (i) January 2, 2001, (ii) the execution and
delivery this Agreement, and (iii) the date and time as of which all waiting
periods and all of Seller's rights to withdraw, revoke or rescind his acceptance
and execution of that certain General Release and Waiver of even date by Seller
in favor of Purchaser shall have expired and terminated (such date being
referred to as the "Closing Date"). On the Closing Date (a) Seller shall deliver
to Purchaser one or more stock certificates representing the Shares, duly
endorsed in blank for transfer, and (b) Purchaser shall pay the Purchase Price
by delivery to Seller of certified or bank cashier's check or by wire transfer
to an account designated by Seller. Notwithstanding anything herein to the
contrary, Purchaser may, at its sole option and in its sole discretion, extend
the payment of up to 50% of the purchase price for up to six (6) months with
interest on the unpaid balance at the rate of 10% per annum from the Closing
Date..
3. Seller's Representations and Warranties. Seller makes the following
representations and warranties to Purchaser, as of the date of this Agreement,
which shall survive the Closing Date.
(a) Seller is the true and lawful owner, both of record and beneficially,
of the Shares, free and clear of any claims, liens, options, charges or other
encumbrances whatsoever (except such as may exist pursuant to the Stockholders
Agreement).
(b) Seller has the unqualified right to sell, assign and deliver the
Shares as provided in this Agreement.
(c) From the date of this Agreement until the Closing Date, without the
prior written consent of Purchaser, Seller shall not, either directly or
indirectly, sell, assign, mortgage, hypothecate, transfer, pledge, create a
security interest in or lien upon, encumber, give, place in trust, or otherwise
voluntarily or involuntarily dispose of any of the Shares except as hereinafter
permitted.
(d) On the sale, transfer and delivery of the Shares by Seller to
Purchaser in accordance herewith, Purchaser will acquire good and valid title to
the Shares, free and clear of any claims, liens, options, charges or other
encumbrances whatsoever.
4. Purchaser's Representations and Warranties. Purchaser makes the
following representations and warranties to Seller as of the date of this
Agreement, which shall survive the Closing Date.
(a) Purchaser has taken all corporate action necessary to authorize the
execution, delivery and performance of this Agreement.
(b) This Agreement is the legal, valid and binding obligation of
Purchaser.
5. Miscellaneous.
(a) This Agreement, the Separation Agreement and the General Release,
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof, and supersedes all prior agreements, understandings, and
negotiations between the parties with respect to the subject matter hereof,
including Section 2(a) of the Severance Agreement and the Stockholders Agreement
(but other than Section 2(b) and, if applicable, Section 2(c) of the Severance
Agreement).
(b) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
(c) In the event of a dispute involving this Agreement or any other
instrument executed in connection herewith, the parties hereto irrevocably agree
that venue for such dispute shall lie in any court or competent jurisdiction in
the County and State of New York.
(d) The obligations of this Agreement shall bind and benefit the heirs,
administrators, legal representatives, successors and assigns of the parties
with the same effect as if mentioned in each instance where a party is named or
referred to.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first set forth above.
PHIBRO-TECH, INC.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Xxxx X. Xxxxxxxx, Chief Executive Officer
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxxx
SEPARATION AGREEMENT
This SEPARATION AGREEMENT (this "Agreement") is made and is effective as
of the Effective Date set forth herein, by and among XXXXXX X. XXXXXXXXX
("Xxxxxxxxx"), PHILIPP BROTHERS CHEMICALS, INC., a New York corporation ("the
Company") and PHIBRO-TECH, INC., a Delaware corporation (the "Phibro-Tech"),
having their principal place of business at Xxx Xxxxxx Xxxxx, Xxxx Xxx, Xxx
Xxxxxx (collectively the "Companies").
WHEREAS, Bistricer has faithfully and responsibly served the Company as
Chief Financial Officer of the Company and an employee of Phibro-Tech for a
period in excess of fifteen (15) years;
WHEREAS, Bistricer and the Board of Directors of the Companies have
determined that it is in the parties' best interests to formalize the terms and
conditions of Bistricer's separation of employment to assure continued stability
to both the Companies and Bistricer and to set forth herein the parties'
respective rights and obligations;
NOW, THEREFORE, for and in consideration of the mutual premises and
covenants herein contained, and for other good and valuable consideration
receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Separation Date. Bistricer's employment as an officer, director, and
employee of the Company and Phibro-Tech and all related entities (the Company,
Phibro-Tech, and their subsidiaries and affiliates being collectively referred
to as the "Companies") will terminate effective as of the close of business on
December 31, 2000 (the "Separation Date"), and the Company and Phibro-Tech agree
to accept Bistricer's resignation from such positions effective as of the
Separation Date. All communications and correspondence relating to Bistricer's
separation of employment from the Companies shall make appropriate reference to
such voluntary resignation.
2. Effective Date. This Separation Agreement shall become effective upon
the later to occur of: (a) the execution and delivery of (i) this Agreement,
(ii) the attached General Release and Waiver (the "General Release") and, (iii)
the Stock Purchase Agreement between them of even date herewith (the "Stock
Purchase Agreement"); and (b) the date and time as of which all waiting periods
and all of Seller's rights to withdraw, revoke or rescind his acceptance and
execution of the General Release shall have expired and terminated (such date
being referred to as the "Closing Date" or the "Effective Date").
3. Payment under Severance Agreement. Beginning as of January 1, 2001 and
continuing through December 31, 2002, (the "Final Date"), the Company shall pay
to Bistricer as severance, an amount equal to two (2) times the annual salary
($250,000.00 per year) then in effect on the effective date plus $16,070.00 in
twenty-four (24) equal monthly installments. The Company shall make all
appropriate deductions for taxes, benefits and the matters as if Bistricer had
remained an employee. The Company shall also pay to Bistricer an amount equal to
any bonus earned by Bistricer in the calendar year immediately preceding the
Separation Date, all benefits including health and other insurance as may be
permitted by law and other agreements, and Company car shall be continued
through the Final Date except in the event Bistricer accepts other employment
and receives such health or insurance benefits thereunder. In the event the
Company is prevented from continuing such benefits by law, agreement or
otherwise, the amount of each monthly payment to Bistricer shall be increased by
the monthly value of
the benefit or benefits as discontinued. The Company shall, within thirty (30)
days of the Separation Date, pay to Bistricer an amount equal to the accrued but
unused vacation days as of the Separation Date. The Company will also provide
out-placement services to Bistricer at the provider of such services of
Bistricer's choice for a period of up to six (6) months but not to exceed
$15,000 in total costs and fees. Such payment shall be in full satisfaction and
discharge of all the Company's obligations under Section 2(a) of that certain
Severance Agreement dated February 21, 1995 between the Company and Bistricer
(the "Severance Agreement"). Notwithstanding anything to the contrary herein,
the termination of Bistricer's employment as of the Separation Date shall be
deemed and treated for all purposes under the Severance Agreement and the
Stockholders Agreement as the occurrence of an "Actual or Constructive
Termination" (as defined in the Severance Agreement).
4. Expense Reimbursement. The Company shall reimburse Bistricer for all of
his reasonable business expenses incurred in the performance of his duties as an
officer, director, and employee of the Company and all related entities, subject
to the submission of expense statements and receipts evidencing such payments to
the reasonable satisfaction of the Company.
5. Health Benefits. Subsequent to the Final Date, Bistricer and his family
shall be eligible to continue their medical and health insurance coverage
benefits at their own expense, at standard non-subsidized rates, for the maximum
period pursuant to the Consolidated Omnibus Budget Reconciliation Act (COBRA).
The Company agrees to timely provide the forms necessary to permit Bistricer and
his family to elect to continue such insurance coverage prior to their
expiration.
6. Benefit Plans. From and after the Separation Date, Bistricer shall have
such rights in and benefits under the Company's 401(k) Plan, and from and after
the Final Date, Bistricer shall have such rights and benefits under The
Retirement Plan of Philipp Brother Chemicals, Inc. and the Company's Deferred
Compensation Plan and Trust, as are provided by the terms thereof. Consistent
with the underlying Plans, the Companies will make all reasonable arrangements
and process all forms necessary to provide for expeditious distribution of any
and all vested benefits under such Plans, as requested by Bistricer.
7. Return of Property. Bistricer agrees to return all property of the
Company or any affiliate thereof, including but not limited to keys,
correspondence, customer and mailing lists, files (in electronic or tangible
form), documents, reports, equipment, computers and materials and other such
property as may be in his possession.
8. Confidentiality. This Agreement and the General Release, the terms and
provisions thereof and the negotiations leading thereto, shall be and shall
remain confidential. The parties shall maintain such confidentiality, and shall
not reveal or discuss Bistricer's termination of employment other than as
required in good faith in the ordinary course, as in seeking new employment or a
successor, or with attorneys, accountants or tax advisors, or as required by
applicable securities or other law or stock market or accounting requirements,
or in other cases only with the prior written consent of the other party.
Bistricer may advise potential employers, and the Companies agree to confirm,
that Bistricer and the Companies amicably resolved their relationships and that
Bistricer voluntarily resigned from his positions and employment with the
Companies.
9. Releases.
(a) Except for any rights Bistricer may have under this Agreement, the
Stock Purchase Agreement, and Section 2(b) and Section 2(c) of the Severance
Agreement, Bistricer hereby releases the Companies as provided in the General
Release.
(b) Except for any rights it may have under this Agreement, the Stock
Purchase Agreement, each of the Companies for itself and on behalf of its
subsidiaries and affiliates forever releases and discharges Bistricer, his
heirs, executors, administrators, legal representatives and successors from any
and all claims, demands, causes of action, and liabilities of any kind
whatsoever (upon any legal or equitable theory, whether contractual, in tort,
common law, statutory, federal, state, local or otherwise, and including but not
limited to any claims for equitable relief, compensatory, punitive or other
damages or expenses or for attorneys' fees, or costs or disbursements of any
kind), which the Companies ever had, now have, or may hereafter have against
Bistricer by reason of any action, omission, transaction, or occurrence
occurring up to and including the Separation Date, in each case authorized by
the Chairman of the Board of the Company or otherwise performed or omitted to be
performed by Bistricer in good faith and in a manner which Bistricer reasonably
believed to be in or not opposed to the best interests of the Companies and not
unlawful. The Company and the Company covenant that, except for a proceeding
brought to enforce the terms and provisions of this Agreement, the General
Release, the Severance Agreement, the Stockholders Agreement, or the Stock
Purchase Agreement, they will not at any time commence, maintain, prosecute,
participate in as a party, or permit to be filed by any other person or entity
on their behalf, any action, suit or proceeding (judicial, administrative,
arbitral, or other) against Bistricer with respect to any act, event, or
occurrence, or any alleged failure to act, occurring up to and including the
Separation Date, in each case authorized by the Chairman of the Board of the
Company or otherwise performed or omitted to be performed by Bistricer in good
faith and in a manner which Bistricer reasonably believed to be in or not
opposed to the best interests of the Companies and not unlawful. The Company and
Phibro-Tech agree that if they violate this covenant by suing Bistricer or his
heirs, executors, administrators, legal representatives or successors, the
Companies will pay all costs and expenses of defending against the suit incurred
by Bistricer or his heirs, executors, administrators, legal representatives or
successors, including reasonable attorneys' fees. This paragraph does not apply
to claims which the Companies may have, if any, that may arise out of the
obligations of Bistricer specified in this Agreement, the General Release, the
Severance Agreement, the Stock Purchase Agreement or Consulting Agreement.
10 . Non-Competition; Restrictive Covenants; Confidentiality and
Injunctive Relief.
(a) Bistricer agrees that during the Term of this Agreement, without the
prior written approval of the Chairman, the President or the Board of Directors
of the Company, he will not directly or indirectly through any other person,
firm or corporation, whether for himself or as agent on behalf of any such
person, firm or corporation, whether as employee, consultant, principal, lender,
partner, officer, director, stockholder or otherwise:
(i) engage or participate in, or become employed by, or render any
services in connection with, any business entity which is directly competitive
with the Company; or
(ii) solicit, entice or induce any employee of the Company or
Phibro-Tech, to become employed or retained by any other person or entity;
provided, however, that the foregoing provision will not prevent Bistricer from
employing or offering to employ any such person who has been terminated by or
resigned from the Company or an affiliate prior to the commencement of
employment discussions between Bistricer and such employee, and Bistricer will
be permitted to hire and offer to hire non-executive employees of the Company or
any affiliate who are contacted as a result of the use of general newspaper or
electronic advertisement and other general non-targeted recruitment techniques
in the ordinary course of business and consistent with past practice as opposed
to targeted solicitations of any one or more of the Companies' employees; or
(iii) solicit, entice, or induce any client, customer, supplier or
account of Phibro-Tech to terminate, reduce or phase out its contractual
relationship or other relationship with Phibro-Tech; or
(iv) make or utter dishonest statements or acts with respect to the
Company or any subsidiary of the Company or act in a manner that is intended or
understood to discredit or be detrimental to the reputation, character or
standing of the Company or any of its subsidiaries; provided, that the making in
good faith of honest misstatements or truthful statements shall not constitute a
violation of this clause (iv); or
(v) take any action or knowingly approve the taking of any action by
any other person which is intended or could be reasonably expected to injure the
business, properties, assets, condition (financial or otherwise) or prospects of
the Company or Phibro-Tech or bring the Company or any officers thereof into
disrepute.
(b) Notwithstanding anything herein to the contrary, Bistricer may make
passive investments in any enterprise which engages in a Competitive Business
the shares of which are publicly traded if such investment constitutes less than
five percent (5%) of the equity of such enterprise.
(c) For purposes of this Agreement, the term "affiliate" shall mean, with
respect to any person or entity, any person or entity which directly or
indirectly controls, is controlled by or is under common control with (through
ownership of more than 50% of the voting interests or otherwise), such person or
entity, and the term "person" shall mean in individual, a corporation, an
association, a partnership, a limited liability company, an estate, a trust, and
any other entity or organization.
(d) As used in this Agreement, "Confidential Information" means trade
secrets or confidential information belonging to the Company or an affiliate to
which Bistricer had access by virtue hereunder of his relationship with the
Company and its affiliates; provided, however, that the confidential information
and trade secrets shall not include any information generally known to persons
in the industry or the public in general unless due to breach of Bistricer's
duties under this Section 10. Confidential Information includes, without
limitation, financial information, reports, and forecasts; inventions,
improvements and other intellectual property; trade secrets; know-how; designs,
processes or formulae; software; market or sales information or plans; customer
lists; and business plans, prospects and opportunities (such as possible
acquisitions or dispositions of businesses or facilities) which have been
discussed or considered by the management of the Company. Confidential
Information includes information developed by Bistricer in the course of
Bistricer's employment by the Company, as well as other information to which
Bistricer may have access in connection with Bistricer's employment.
Confidential Information also includes the confidential information of others
with which the Company has a business relationship.
(e) At all times, now and hereafter, Bistricer will keep in confidence and
trust all such Confidential Information, and will not use or disclose any such
Confidential Information without the prior written consent of the Company,
except as may be required in connection with any judicial or administrative
proceeding or inquiry, provided that the Company shall have been given prior
written notice of such disclosure.
(f) Bistricer recognizes that the Company possess a proprietary interest
in the Confidential Information and has the exclusive right to use, protect by
copyright, patent or trademark, or otherwise exploit the processes, ideas and
concepts contained therein to the exclusion of Bistricer, except as otherwise
agreed between the Company and Bistricer in writing.
(g) The parties acknowledge that the time, scope, geographic area and
other provisions of this Section 10 have been specifically negotiated by
sophisticated parties and agree that (i) all such provisions are reasonable
under the circumstances of this Agreement, (ii) are given as an integral and
essential part of this Agreement and (iii) but for the covenants of each of
Bistricer and of the Company contained in this
Section 10, neither the Company nor Bistricer would have entered into this
Agreement. Each of the Company and Bistricer has independently consulted with
its or his counsel and has been advised in all respects concerning the
reasonableness and propriety of the covenants contained herein, with specific
regard to the business to be conducted by the Company and its subsidiaries and
affiliates, and represents that this Agreement is intended to be, and shall be,
fully enforceable and effective in accordance with its terms.
(h) The provisions of this Section 10 shall survive the termination of
this Agreement, irrespective of the reason therefor.
(i) The provisions of the Employee Invention and Secrecy Agreement dated
January 1, 1991, annexed hereto as Exhibit A ("Employee Secrecy Agreement"),
shall remain effective to the extent provided therein.
(j) Bistricer acknowledges that the Confidential Information is of a
special, unique and extraordinary character and is of commercial value to the
business of the Company and/or its subsidiaries. By reason of the foregoing,
Bistricer consents and agrees that the consequences of any breach of Section 10
may not be fully compensable in damages and, therefore, in addition to any other
remedies which the Company may have under this Agreement at law or equity or
otherwise, any or all of which shall be available to the Company, the Company
and/or any affiliates shall be entitled to apply (without the necessity of
posting any bond) to any court of competent jurisdiction for an injunction
restraining Bistricer or any other party from committing or continuing any such
violation (or participating therein) of this Agreement.
11. Indemnification. The Companies shall continue any indemnification
obligations arising by statute, or under any directors and officers' liability
insurance policy covering Bistricer, in each case to the same extent as other
directors and officers remain covered from time to time, or the Certificate of
Incorporation or Bylaws of any of the Companies in effect as of the Separation
Date. The Companies agree that if Bistricer is made a party, or is threatened to
be made a party, to any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding"), by reason of the fact that he
is or was a stockholder, director, officer or employee of any of the Companies
or is or was serving at the request of the Companies as a director, officer,
member, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether or not the basis of such Proceeding is Bistricer's alleged action
in an official capacity while serving as a director, officer, member, employee
or agent, Bistricer shall be indemnified and held harmless by the Companies to
the fullest extent legally permitted or authorized by the Companies'
certificates of incorporation or bylaws or resolutions of such Company's Board
of Directors, against all cost, expense, liability and loss (including, without
limitation, reasonable attorney's fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement with the approval of the
Company) reasonably incurred or suffered by Bistricer in connection therewith,
and such indemnification shall continue as to Bistricer even if he has ceased to
be a director, officer, member, employee or agent of either of the Companies or
other entity and shall inure to the benefit of his heirs, executors,
administrators, legal representatives or successors, in each case to the same
extent as other directors and officers remain covered from time to time. The
Companies shall advance to Bistricer all reasonable costs and expenses incurred
by him in connection with a Proceeding within 20 days after receipt by the
Companies of a written request for such advance, accompanied by an undertaking
by Bistricer to repay the amount of such advance if it shall ultimately be
determined that he is not entitled to be indemnified against such costs and
expenses. Bistricer shall be entitled to indemnification under this Section so
long as he meets the standard of conduct specified in Section 145 of the
Delaware General Corporation Law or Section 1022 of the New York Business
Corporation Law, as the case may be. In addition, the Companies hereby agree to
indemnify and hold Bistricer, and his heirs, executors, administrators, legal
representatives, successors
and assigns, harmless from and against any and all claims, loss, damage,
liability, cost or expense, including but not limited to reasonable attorneys'
fees, incurred in defense of any such claim, arising out of or related to
Bistricer's positions and employment with the Companies and the Companies'
business, including but not limited to actions or claims against the Companies
for copyright infringement or securities violations, other than in respect of
the embezzlement or misappropriation of funds of the Companies or other acts of
fraud against the Companies.
12. General Indemnification. The parties hereto hereby agree to indemnify
each other for all damages and loss (including without limitation, costs and
expenses of litigation and reasonable attorneys' fees) resulting from a breach
of this Agreement by the other party.
13. Benefit. This Agreement shall bind and inure to the benefit of the
heirs, executors, administrators, legal representatives, successors and assigns
of Bistricer and the successors and assigns of the Companies.
14. Entire Agreement; Paragraph Titles. This Agreement, the General
Release and the Stock Purchase Agreement contain the entire agreement between
the parties with respect to the subject matter hereof, and supersede any and all
prior agreements or understandings, oral or written, between the parties with
respect to the subject matter hereof and thereof (other than Section 2(b) and,
if applicable, Section 2(c) of the Severance Agreement). This Agreement may not
be modified other than by a writing signed on behalf of both parties. In
executing this Agreement, neither party is relying upon any statement or
representation beyond this Agreement or the General Release, the Stock Purchase
Agreement or the Consulting Agreement. Paragraph headings are included in this
Agreement for reference only, are not part of this Agreement, and do not in any
way modify any of the terms of this Agreement.
15. No Admission. Nothing contained in this Separation Agreement or in the
General Release, nor the furnishing of the consideration for the Separation
Agreement and General Release, shall be deemed or construed at any time to be an
admission by either Bistricer or the Companies of any improper or unlawful
conduct.
16. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement this 4th day of October, 2000.
PHIBRO-TECH, INC.
By: /s/ Xxxx X. Xxxxxxxx
----------------------------
Xxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx
PHILIPP BROTHERS CHEMICALS, INC.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Xxxx X. Xxxxxxxx
GENERAL RELEASE AND WAIVER
I understand that my active employment with PHILIPP BROTHERS CHEMICALS,
INC., A New York corporation ("PBC") and PHIBRO-TECH, INC., a Delaware
corporation ("Phibro-Tech"), terminated effective as of December 31, 2000. I
understand that in consideration for my agreement to the following terms of this
General Release and Waiver, I will receive compensation and/or benefits
described in the Separation Agreement (the "Separation Agreement") between me
and PBC and Phibro-Tech and PBC of even date which is attached hereto and which
is hereby incorporated herein and made a part of this General Release and
Waiver.
1. I understand and agree that I will not receive the compensation and/or
benefits specified in the Separation Agreement unless I execute this General
Release and Waiver.
2. I understand that I may revoke this General Release and Waiver for a
period of seven (7) days following the date I execute this General Release and
Waiver. Any revocation within this period should be submitted in writing to
Phibro-Tech and PBC and state "I hereby revoke my agreement to the General
Release and Waiver." The revocation must be personally delivered, or mailed and
post marked within seven (7) days of the execution of this General Release and
Waiver. This General Release and Waiver shall not become effective or
enforceable until the revocation period has expired.
3. Except as otherwise set forth in this General Release and Waiver and in
the Separation Agreement, and except for any and all rights and obligations
created by this General Release and Waiver and the Separation Agreement, and
those arising under or in connection with Section 2(b) of the Severance
Agreement dated February 21, 1995 (the "Severance Agreement"), and the Stock
Purchase Agreement of even date herewith between me and Phibro-Tech ("Stock
Purchase Agreement"), and any indemnification obligations arising by statute or
under any directors and officers' liability insurance policy, the Certificate of
Incorporation or Bylaws of Phibro-Tech or PBC or any affiliate in effect from
time to time, I knowingly and voluntarily release and forever discharge
Phibro-Tech and PBC and all of their parents, affiliates and subsidiaries, and
their employees, shareholders, officers and directors (hereinafter "Releasees")
from any and all claims known and unknown, which I, my heirs, executors,
administrators and assigns may have, including but not limited to, any claim
that arises out of my employment with or the termination of my employment with
PBC and Phibro-Tech; or any allegation, claim or violation arising under Title
VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991;
the Age Discrimination in Employment Act of 1967, as amended; the Older Workers
Benefits Protection Act; the Equal Pay Act of 1963, as amended; the Americans
with Disabilities Act of 1990; the Family Medical Leave Act of 1993; the Civil
Rights Act of 1866, as amended; the Worker Adjustment Retraining and
Notification Act; the Employee Retirement Income Security Act of 1974; any
applicable Executive Order Programs; the Fair Labor Standards Act, or their
state or local counterparts; the New Jersey Law Against Discrimination; the
Conscientious Employee Protection Act; and any other federal, state or local
civil or human rights law or any other local, state or federal law, regulation
or ordinance; or under any public policy, contract or tort, or under common law;
for wrongful discharge; breach of contract, infliction of emotional distress, or
defamation; or arising under any policies, practices or procedures of
Phibro-Tech; or any claim for costs, fees or other expenses, including
attorneys' fees, incurred in these matters.
4. I agree not to file any charge or complaint on my own behalf, based
upon claims arising from, or attributable in any way to, my employment with or
separation from PBC and Phibro-Tech, before any
federal, state or local court, or administrative agency, or to participate in
any such charge or complaint which may be made by any other person or
organization on my behalf. I also agree to withdraw and/or dismiss any such
pending charges or complaints.
5. Notwithstanding the provisions of paragraphs 3 and 4 above, this
General Release and Waiver shall not act as a release of the obligations of PBC
or Phibro-Tech specified in the Separation Agreement, Section 2(b) and, if
applicable, Section 2(c) of the Severance Agreement, or the Stock Purchase
Agreement.
6. I acknowledge that I have been advised I have twenty-one (21) days to
consider this General Release and Waiver. I acknowledge that PBC and Phibro-Tech
have advised me in writing of my right to consult with an attorney regarding the
legal consequences of this General Release and Waiver and that I have had an
opportunity to discuss the terms of this General Release and Waiver with an
attorney. I understand the legal consequences of this General Release and
Waiver.
7. I agree that neither this General Release and Waiver, nor the
furnishing of the consideration for this General Release and Waiver, shall be
deemed or construed at any time to be an admission by PBC, Phibro-Tech or myself
of any improper or unlawful conduct.
8. I agree that if I violate this General Release and Waiver by suing PBC
or Phibro-Tech or those associated with them, I will pay all costs and expenses
of defending against the suit incurred by Phibro-Tech or those associated with
them, including reasonable attorneys' fees. This paragraph does not apply to
claims which I may have, if any, that may arise out of the obligations of PBC
and Phibro-Tech specified in the Separation Agreement, the Severance Agreement,
the Stockholders Agreement, or the Stock Purchase Agreement.
9. I agree that this General Release and Waiver is confidential and agree
not to disclose any information regarding the terms of this General Release and
Waiver, except to my attorneys, accountants or tax advisors, or as required by
applicable securities or other law or stock market or accounting requirements,
or in other cases only with the prior written consent of the other party.
BY SIGNING THIS GENERAL RELEASE AND WAIVER, I STATE THAT:
A. I HAVE READ IT.
B. I UNDERSTAND IT AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS,
INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967, AS AMENDED; TITLE VII OF' THE CIVIL RIGHTS ACT OF 1964, AS AMENDED;
THE EQUAL PAY ACT OF 1963; THE AMERICANS WITH DISABILITIES ACT OF 1990; THE NEW
JERSEY LAW AGAINST DISCRIMINATION; THE CONSCIENTIOUS EMPLOYEE PROTECTION ACT;
AND UNDER ALL OTHER STATUTES AND LAWS AS MORE PARTICULARLY DESCRIBED IN THIS
GENERAL RELEASE AND WAIVER, AND PURSUANT TO ANY OTHER AGREEMENTS OR CONTRACTS I
MAY HAVE WITH PHIBRO-TECH (EXCEPT AS EXCLUDED AS PROVIDED HEREINABOVE).
C. I AGREE WITH EVERYTHING IN IT.
D. I HAVE BEEN ADVISED OF MY RIGHT TO CONSULT WITH AN ATTORNEY BEFORE
EXECUTING IT.
E. I HAVE BEEN GIVEN WHAT I CONSIDER A SUFFICIENT PERIOD OF TIME TO REVIEW
AND CONSIDER THIS GENERAL RELEASE AND WAIVER BEFORE SIGNING IT; AND I UNDERSTAND
THAT FOR A PERIOD OF SEVEN (7) DAYS AFTER SIGNING IT, I MAY REVOKE MY ACCEPTANCE
OF IT IN THE MANNER PROVIDED IN THIS WAIVER AND RELEASE.
F. I HAVE SIGNED THIS GENERAL RELEASE AND WAIVER KNOWINGLY AND
VOLUNTARILY.
G. I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE AND WAIVER MAY NOT
BE AMENDED, WAIVED, CHANGED, OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING
SIGNED BY AN AUTHORIZED REPRESENTATIVE OF PHIBRO-TECH.
Dated: ______________________,2000
STATE OF ____________________)
: ss.
COUNTY OF ___________________)
I certify that on__________________, 2000, Xxxxxx X. Xxxxxxxxx personally
came before me and acknowledged under oath, to my satisfaction, that this
person:
(a) is named in and personally signed this document; and
(b) signed, sealed and delivered this document as his act and deed.
________________________________
Xxxxxx X. Xxxxxxxxx
__________________________
Notary Public
