EXHIBIT 10.1
SEPARATION AGREEMENT
This Separation Agreement (this "Separation Agreement") is entered
into as of July 28, 2004 (the "Effective Date"), by and between NATCO Group
Inc., a Delaware corporation (the "Company"), and Xxxxxxxxx X. Xxxxxxx
("Individual") (each a "Party" and, collectively, the "Parties").
RECITALS
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WHEREAS, Individual currently serves as a member and the Chairman of
the Company's Board of Directors (the "Board") and as the Chief Executive
Officer of the Company;
WHEREAS, the Company and Individual have agreed that Individual will
resign from the Board and from the offices of Chairman of the Board and Chief
Executive Officer of the Company as and when specified below;
WHEREAS, the Company and Individual are parties to that certain
Employment Agreement dated December 11, 2002 (the "Employment Agreement");
WHEREAS, in recognition of Individual's agreement to resign the
offices described above, the Company and Individual wish to terminate their
respective obligations under the Employment Agreement and, in connection
therewith, to memorialize in this Separation Agreement the terms and
conditions upon which the Parties have agreed to do so.
NOW, THEREFORE, in consideration of the premises set forth above and
the covenants contained in this Separation Agreement and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged by the Parties, the Parties hereby agree as set forth herein.
AGREEMENT
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1. Effective Date. This Separation Agreement is effective on the
Effective Date, but is subject to revocation as provided in Section
17.
2. Resignation as Member of the Board/Termination of Employment;
Termination of Employment Agreement; Waiver of Severance Benefits;
Waiver of Right to Terminate.
(a) Resignation as Member of the Board/Termination of
Employment. Individual agrees that he will resign the office
of Chairman of the Board effective as of the Effective Date
and as a member of the Board as of the Separation Date (as
defined below). Individual and the Company agree that
Individual's employment by the Company as the Chief
Executive Officer will terminate as of September 7, 2004
(the "Separation Date") and, to the extent not already
effected, Individual agrees to resign that and any other
office or position with the Company and each of its
subsidiaries and controlled affiliated entities
("Subsidiaries") effective as of the Separation Date. As
used in this Separation Agreement, the term "affiliate" (and
each variation thereof) shall have the same meaning as
ascribed to it in the General Rules and Regulations under
the Securities Act of 1933, as amended.
(b) Termination of Employment Agreement. The Employment
Agreement shall terminate as of the Separation Date, and
neither Party shall have any rights or obligations under the
Employment Agreement after that date, except for those
rights and obligations continuing in effect as provided in
this Separation Agreement.
(c) Waiver of Severance Payments. Individual acknowledges that
the benefits set forth in this Separation Agreement satisfy
all obligations to him with respect to severance
compensation under the Company's current severance plan or,
subject to Section 2(b), arising out of or relating to the
Employment Agreement, and hereby waives his right to any
other severance payments and benefits to which he otherwise
might be entitled under the Company's current severance plan
or policy or arising, subject to Section 2(b), out of or
relating to the Employment Agreement.
(d) Waiver of Rights to Terminate. Individual represents to the
Company that, as of the Effective Date, no "Cause" (as
defined in the Employment Agreement) has occurred, and in
reliance on this representation the Company waives any right
to terminate Individual's employment pursuant to Section
12(c) of the Employment Agreement for events occurring on or
before the Effective Date. Without limiting the provisions
of this Separation Agreement, each of Individual and the
Company agrees not to exercise any right to terminate
Individual's employment pursuant to Section 12(d) of the
Employment Agreement.
3. Certification of Financial Reports. Individual acknowledges that, as
Chief Executive Officer of the Company, he is the person authorized
and responsible for signing and certifying, as chief executive
officer, the Company's Form 10-Q for the quarter ended June 30, 2004
in accordance with Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 and,
to the extent that the certificate accurately sets forth the matters
stated therein, Individual hereby agrees to do so in accordance with
applicable law.
4. Monetary Severance Payments.
(a) Payment of Accrued Wages. On the Separation Date, the
Company shall pay to Individual an amount equal to (i) any
accrued but unpaid salary, including amounts payable for the
stub period September 1-7, 2004; plus (ii) the value of any
accrued but unused vacation through the Separation Date; and
less (iii) all required payroll, income and other tax
withholdings and all other required deductions.
(b) Severance Payments. Subject to Individual's compliance with
all the terms of this Separation Agreement and executing and
not revoking the release of claims set forth on Exhibit A,
sufficient consideration for which Individual acknowledges
and agrees is provided in this Separation Agreement, the
Company shall pay to Individual:
(i) on the Effective Date, $1,296,655.35, and
Individual acknowledges receipt of this payment by
the Company's making appropriate payroll, income
and other tax withholdings and all other required
deductions on account of that payment and
Individual's exercise of options as provided in
Section 10 and the Company's application of the
remaining amount, being $826,745.89 (the "Net
Initial Severance Payment"), to his obligation to
pay the Company for shares acquired on Individual's
exercise of options as provided in Section 10; and
(ii) on or before October 7, 2004, $992,344.65, which
payment shall be subject to all required payroll,
income and other tax withholdings and all other
required deductions, but the Company will use
reasonable efforts, consistent with applicable law,
to minimize the amount of withholding.
(c) Bonus. The Company agrees that Individual shall be entitled
to receive the bonus otherwise payable to him under the
Company's 2004 Bonus Plan, based on his period of employment
during 2004, as follows:
(i) The financial component of Individual's bonus shall
be based on the period January 1, 2004, through the
Separation Date, shall be determined by the Board
on or prior to October 7, 2004, and shall be
payable to Individual on that date.
(ii) The discretionary component of Individual's bonus
(if any) shall be determined by the Board and be
paid in 2005 contemporaneously with bonus payments
to employees of the Company.
5. Advisory Services. In consideration of the monetary severance
payments in Section 4 of this Separation Agreement (other than those
provided in Sections 4(a) and (c) heretofore earned by him), for a
period of one year after the Separation Date, Individual agrees to
make himself available at such times and places as are reasonably
agreeable to the Parties to provide up to 20 hours per month of
advisory services to the Company, if and as requested by the Board,
at no additional charge other than reimbursements for out-of-pocket
expenses in accordance with policies then generally in effect for the
Company's employees.
6. Welfare Benefits. The Company agrees that Individual and his
dependents shall be permitted to continue to participate (on the same
basis as an active employee) in any Company-provided life insurance,
medical, dental or vision plan (or any replacement plans sponsored or
maintained by the Company or any Subsidiary), as it may be amended or
modified from time to time, in which Individual or any of his
eligible dependents participate as of the Separation Date in
accordance with the terms of such plans for a period of 36 months
following the Separation Date. To the extent that Individual or
Individual's dependents are eligible for continuation coverage under
the Consolidated Omnibus Reconciliation Act of 1985, as amended
("COBRA"), Individual acknowledges and agrees that such coverage
provided by the Company in the preceding sentence shall satisfy any
and all of the Company's obligations under COBRA to the extent that
the coverage continues for a period not less than that which would be
provided by COBRA.
7. Stock Options. As of the Separation Date, all of Individual's then
outstanding and unvested stock options, all of which are listed on
Schedule II hereto, shall become fully vested. Individual may
exercise those stock options, as well as any and all other of his
stock options that are outstanding after implementation of Section 10
of this Separation Agreement and currently vested, at any time on or
before the date occurring 18 months after the Separation Date, but
any such stock options not exercised by that date shall terminate and
be canceled as of that date, and Individual shall no longer have any
rights with respect to those stock options.
8. Reimbursements; Allowances.
(a) Living and Commuting Expenses. Individual shall be entitled
to reimbursement consistent with past practice of
automobile, business, living and commuting expenses incurred
on or before the Separation Date, in accordance with
Sections 4(d)-(f) and 6 of the Employment Agreement.
(b) Attorneys' Fees. Individual shall be entitled to
reimbursement of the fees and disbursements of his attorney
(if any) for review of this Separation Agreement in an
amount not to exceed $3,000.
(c) Moving Expenses. Individual shall be entitled to a moving
allowance in an amount not to exceed $8,000 for relocation
of his personal property from Houston, Texas to Greenwich,
Connecticut.
(d) Rights to Insurance and Indemnification. From and after the
Effective Date and to the extent permitted by law, the
Company shall cause (i) all rights to indemnification
currently existing under the respective certificates of
incorporation and bylaws of the Company and its Subsidiaries
in favor of Individual with respect to his activities as a
director, officer and employee of the Company and its
Subsidiaries prior to the Effective Date to continue in full
force and effect for a period of six years and (ii)
Individual, with respect to his activities as a director,
officer and employee of the Company and its Subsidiaries
prior to the Effective Date, to be covered for a period of
six years from the Effective Date by policies procured by or
on behalf of the Company to insure directors and officers
against liability to the same extent as the individuals then
serving as directors and senior officers of the Company.
9. Office Space and Support. The Company agrees that Individual shall
have access, through December 31, 2004, to the office space, parking
and related administrative support at the office space currently
provided to him by the Company in Connecticut in accordance with past
practice and without cost to Individual.
10. Exercise of Stock Options; Repayment of Loan
(a) Option Exercise. Individual, as of the Effective Date, does
hereby exercise his stock options granted on July 31, 1997
(the "July Options") to purchase 164,363 shares of common
stock of the Company in accordance with their terms.
(b) Share Sale. Individual does hereby sell to the Company, and
the Company does hereby purchase from Individual, as of the
Effective Date, 468,452 shares of Company common stock for a
price equal to $7.859 per share (or an aggregate of
$3,681,564.27, being the "Stock Sale Proceeds"). These
shares of common stock do not include any shares acquired by
Individual through exercise of the July Options under
Section 10(a).
(c) Transfer of Funds and Share Certificates. To effect the
transactions described in Sections 10(a) and (b):
(i) Individual hereby directs the Company to apply the
Net Initial Severance Payment payable to him under
Section 4(b)(i) to pay the purchase price for the
shares acquired by him pursuant to the exercise of
the July Options under Section 10(a). Individual
acknowledges receipt of the Net Initial Severance
Payment under Section 4(b)(i) through this
application, and the Company acknowledges the
receipt of an amount equal to the Net Initial
Severance Payment in payment for the shares
acquired under Section 10(a).
(ii) Individual hereby directs the Company to apply the
Stock Sale Proceeds otherwise payable to him
pursuant to Section 10(b) to pay the balance of the
outstanding loans that the Company has made to him
(the "Loans"), first to accrued but unpaid interest
and then to principal. Individual acknowledges
receipt of the Stock Sale Proceeds pursuant to
Section 10(b) through this application, and the
Company acknowledges receipt of an amount equal to
the Stock Sale Proceeds plus additional cash in the
amount of $5,658.10 as payment of the entire
balance of principal and interest on the Loans and
other amounts outstanding as of the Effective Date,
which Loans are hereby acknowledged to be paid in
full.
(iii) The Company has delivered to Individual
certificates representing the shares issued to him
as provided in Section 10(a), and Individual
acknowledges receipt of those certificates.
Individual has delivered to the Company
certificates representing the shares purchased and
sold as provided in Section 10(b), duly endorsed to
the Company, and the Company acknowledges receipt
of those certificates.
11. Company Property.
(a) Return of Company Property. Individual agrees that, as of
the Separation Date, Individual will have returned to the
Company any physical or personal property that is the
property of the Company or any Subsidiary that Individual
has in his possession, custody or control, including without
limitation (i) all Company files, memoranda, records and
other documents in whatever form, and all copies thereof,
and all Company badges, keys and credit cards and (ii) the
Company's automobile that he has been using.
(b) Access to Company Property. For such period of time after
the Separation Date as shall be reasonable under the
circumstances, the Company shall provide Individual with
reasonable access to such files, expense reports, rolodexes
and other similar items as Individual may request in
connection with his tax and other personal matters.
12. No Other Payments or Benefits. Individual acknowledges and agrees
that the amount of money and/or benefits that Individual will receive
under this Separation Agreement is limited to what is set forth in
this Separation Agreement. Individual further acknowledges and agrees
that, unless otherwise expressly set forth in this Separation
Agreement or required by law and except for such other benefits that
Individual has accrued as of the Separation Date as a result of his
participation in any benefit plans of the Company or any of its
affiliates, as of the Separation Date Individual is no longer
eligible to participate in and shall not receive any further payments
or benefits under any stock option, bonus, incentive compensation,
employment contract, or medical, dental, life insurance, retirement,
and other compensation or benefit agreements, plans or arrangements
of the Company.
13. Complete Release.
(a) In General. Individual irrevocably and unconditionally
releases, waives and discharges all Claims (as defined in
Section 13(b)) that Individual has or may have from the
beginning of time through the Effective Date against the
Released Parties (as defined herein), except that Individual
is not releasing (i) any Claim that relates to Individual's
right to enforce this Separation Agreement, (ii) any Claim
against any Released Party for the failure of the Company or
any of its Subsidiaries to provide to Individual any vested
benefits or right under its employee benefit plans (if any)
in which Individual is vested or entitled, (iii) any Claim
that may arise based on acts or omission after the Effective
Date, (iv) any Claim for defense and/or indemnification
under the charter or bylaws of the Company or any
Subsidiary, any applicable agreement, any other corporate
document or any statute, or (v) any defense that may be
available to Individual with respect to any claim or cause
of action that the Company, any Subsidiary or any other
Released Party may hereafter assert against Individual. For
purposes of this Separation Agreement, the "Released
Parties" are the Company and all Subsidiaries (including
corporations, limited liability companies, partnerships, and
joint ventures) and, with respect to each of the Company and
its Subsidiaries, each of their respective predecessors and
successors and (to the extent relating to their positions or
activities as such) past and present employees, officers,
directors, shareholders, owners, partners, members,
representatives, assigns, attorneys, as well as their
employee benefit programs (and, in their capacities as such,
the trustees, administrators, fiduciaries, and insurers of
such programs), and any other persons acting by, through,
under or in concert with any of the foregoing identified
Released Parties. Individual further agrees that in
consideration for the promises and payments received herein,
and to effect a full and complete release of all Claims
through and including the Separation Date, he will execute
without modification or amendment on the Separation Date the
Release of Claims attached hereto as Exhibit A.
(b) Claims Released. Subject only to the exceptions noted in
Section 13(a), INDIVIDUAL IS VOLUNTARILY RELEASING ALL KNOWN
AND UNKNOWN, SUSPECTED AND UNSUSPECTED CLAIMS, PROMISES,
CAUSES OF ACTION, OR SIMILAR RIGHTS OF ANY TYPE THAT
INDIVIDUAL HAS OR MAY HAVE AS OF THE EFFECTIVE DATE WITH
RESPECT TO ANY RELEASED PARTY (IN SUCH RELEASED PARTY'S
CAPACITY AS SUCH) THAT RELATE TO INDIVIDUAL'S EMPLOYMENT
WITH THE COMPANY AND ITS SUBSIDIARIES AND/OR THE TERMINATION
THEREOF ("CLAIMS"). Individual understands that the Claims
Individual is releasing might arise under general employment
policies or agreements between the Company and Individual or
under any constitution, law, regulation, or ordinance that
may apply, including the United States Constitution, the
Texas or other state constitution, federal, state and local
statutes, regulations, other administrative guidance, or
common law doctrines, such as, but not limited to, the
following:
Anti-discrimination statutes, such as the Age Discrimination
in Employment Act and Executive Order 11,141, which prohibit
age discrimination in employment; Title VII of the Civil
Rights Act of 1964, as amended by the Civil Rights Act of
1991, Section 1981 of the Civil Rights Act of 1866, and
Executive Order 11,246, which prohibit discrimination based
on race, color, national origin, religion, or sex; the Equal
Pay Act of 1963, which prohibits paying men and women
unequal pay for the same work; the Americans With
Disabilities Act of 1990 and Sections 503 and 504 of the
Rehabilitation Act of 1973, which prohibit discrimination
based on disability; the Equal Employment Opportunity Act of
1972; and any other federal, state, or local laws
prohibiting employment discrimination, all as amended.
Federal employment statutes, such as the Workers Adjustment
and Retraining Notification Act of 1988, which requires that
advance notice be given of certain work force reductions;
the Employee Retirement Income Security Act of 1974, which,
among other things, protects employee benefits; the Fair
Labor Standards Act of 1938, as amended, which regulates
wage and hour matters; the Family and Medical Leave Act of
1993, which requires employers to provide leaves of absence
under certain circumstances; the National Labor Relations
Act, as amended; and any other federal laws relating to
employment, such as veterans' reemployment rights laws, all
as amended.
Other laws, such as any federal, state, or local human
rights, fair employment, and other laws and regulations
and/or executive orders prohibiting discrimination on
account of age, race, sex, sexual orientation, national
origin, religion, handicap, disability, marital status,
citizenship, veterans status, or other protected category;
any federal, state, or local laws restricting an employer's
right to terminate employees, or otherwise regulating
employment; any federal, state, or local law enforcing
express or implied employment contracts or requiring an
employer to deal with employees fairly or in good faith; any
other federal, state, or local laws providing recourse for
alleged wrongful discharge, breach of contract, tort,
physical or personal injury, emotional distress, fraud,
negligent misrepresentation, defamation, and similar or
related claims.
(c) Pursuit of Released Claims. Individual represents that
neither Individual nor his heirs, agents, representatives or
attorneys have filed or caused to be filed any lawsuit,
complaint, or charge with respect to any Claim that
Individual is releasing in this Separation Agreement.
Individual represents that he has not brought or filed, and
to the extent permitted by law will not bring or file, any
claim, charge, or action with respect to any Claim against
the Released Parties, or any of them, and, except as
prohibited by law, agrees not to seek any recovery arising
out of, based upon, or relating to matters released
hereunder.
(d) Non-Admission of Liability. Nothing in this Separation
Agreement shall be construed as an admission of liability by
the Released Parties; rather, Individual and the Released
Parties are resolving all matters arising out of the
employer-employee relationship between the Company and its
Subsidiaries and Individual, as to each of which the
Released Parties each deny any liability.
(e) Representations and Agreements of the Company. Individual's
agreement to assent to and execute the releases contemplated
under this Section 13 and Exhibit A hereto is expressly
contingent upon the representation of the Company that,
assuming Individual's compliance with the provisions of this
Separation Agreement and the accuracy of his representations
in this Separation Agreement, as of the Effective Date
neither it nor any of its Subsidiaries intends to make any
claim or file suit or other action against Individual. The
Company agrees, on its own behalf and on behalf of its
Subsidiaries, not to make any claim or bring or join any
lawsuit against Individual in any court (except as necessary
to protect the rights of the Company and the other Released
Parties under this Separation Agreement) to the extent that
such claim or lawsuit is predicated on matters known at the
Effective Date by the Audit Committee or the Nominating,
Governance and Compensation Committee of the Board and
relating to Individual's employment, membership on the
Board, events occurring during Individual's employment or
membership on the Board, or the termination of Individual's
employment or membership on the Board. The Company
represents that, as of the Effective Date, neither it nor
any of its Subsidiaries has brought or joined any lawsuit or
filed any charge or claim against Individual in any court or
before any government agency and has made no assignment of
any rights that the Company or any of its Subsidiaries has
asserted or may have against Individual to any person or
entity. The Company agrees that it will reaffirm the
foregoing representations and agreements in this subsection
as of the Separation Date.
14. Non-competition; Confidentiality; Non-solicitation.
(a) Non-competition. The Company is engaged in the business of
providing equipment, systems and services used in the
production of crude oil and natural gas to separate oil, gas
and water and to remove contaminants (the "Business") in
numerous countries throughout the world. Individual agrees
that for the limited and reasonable period of one year after
the Separation Date, Individual shall not, directly or
indirectly, engage in the Business for his own account, or
own or invest in (except through ownership of securities of
the Company or less than 5% of the securities of another
publicly traded company), manage, join, operate or control,
or participate in the ownership, management, operation or
control of, or serve as a director, member, officer,
employee, partner, consultant or otherwise with, or permit
his name to be used by or in connection with, any profit or
non-profit business or organization other than the Company
engaged in the Business in any country in which the Company
or its Subsidiaries have engaged in the Business during the
period of Individual's employment with the Company.
(b) Intangible and Other Property Rights; Confidentiality.
Individual shall continue to remain bound by the provisions
of Sections 9 and 10 of the Employment Agreement both before
and after the Separation Date.
(c) Non-solicitation. For a period of one year after the
Separation Date, Individual agrees that Individual will not,
directly or indirectly, solicit for employment any person
who is, or within the six months preceding the Effective
Date was, an officer, manager, employee or consultant of the
Company or any of its Subsidiaries, unless such individual's
employment or other relationship was terminated by the
Company or any of its Subsidiaries, as applicable, before
Individual's solicitation.
(d) No Disparagement. Each Party agrees that it shall not make
any oral or written, public or private, statements that are
disparaging of the other Party or (in the case of statements
by Individual) of the other Released Parties.
(e) Acknowledgments; Injunctive Relief. Each Party hereto
acknowledges that (i) the preceding subsections of this
Sections 14 are reasonable and necessary to protect the
legitimate interests of the Company (in the case of each
such subsection) and Individual (in the case of subsection
(d)), and (ii) any violation of such subsections of this
Section 14 will result in irreparable injury to such Party,
the exact amount of which will be difficult to ascertain,
and that the remedies at law for any such violation would
not be reasonable or adequate compensation to such Party for
such a violation. Accordingly, each Party agrees that, if
such Party violates the provisions of any such subsection,
the other Party shall be entitled, in addition to any other
remedy which may be available at law or in equity, to
specific performance and injunctive relief without the
necessity of proving actual damages or posting a bond.
15. Additional Promises.
(a) Taxes. Individual is responsible for paying any taxes on
amounts of compensation or other benefits received by
Individual under this Separation Agreement other than any
taxes payable by an employer, such as employer's share of
FICA and FUTA taxes. Individual agrees that the Company is
to withhold all taxes it determines it is legally required
to withhold. Individual further agrees not to make any claim
against the Company, any Released Party or any other person
based on how the Company reports amounts paid under this
Separation Agreement to tax authorities (provided that such
reporting is consistent with applicable authority) or if an
adverse determination by a tax authority is made as to the
tax treatment of any amounts payable under this Separation
Agreement. In addition, Individual understands and agrees
that the Company has no duty to try to prevent such an
adverse determination.
(b) References. The Company agrees to direct all requests for
references concerning Individual to the Company's senior
executive responsible for Human Resources, and the Company
agrees to use all reasonable efforts to respond to any
request for references concerning Individual by stating, in
sum and substance, that the Company's policy for former
employees is to provide only the hire and termination dates
of employment and the final job title, which information
shall be provided.
(c) Cooperation. Individual agrees that he shall sign any
documents reasonably requested by the Company in
implementing this Separation Agreement and transitioning his
responsibilities to others (provided that no such document
would expose Individual to liability or require Individual
to surrender any rights) and shall cooperate with the
Company in implementing this Separation Agreement and
transitioning his responsibilities to others.
16. Consequences of Violating Separation Agreement.
(a) General Consequences. If either Individual or the Company
brings a lawsuit or other action against the other for the
enforcement of the terms of this Separation Agreement, then
the prevailing Party shall be entitled to an award of
counsel fees and costs of suit, in addition to any other
remedies. If Individual brings an action or lawsuit against
the Company (other than with respect to the exceptions noted
in Section 13 (a)), then, to the extent permitted by
applicable law and ordered by a court or arbitration panel
of competent jurisdiction, any award of damages to
Individual shall be reduced or offset by any payments or
benefits made, granted, or provided by the Company under
subsection 4(b) of this Separation Agreement.
(b) Challenges to Validity. Individual agrees that, before he
may attempt to rescind this Separation Agreement, revoke it
as provided in Section 17, or have it declared rescinded or
invalid as a whole, he must first to offer to cancel this
Separation Agreement by notifying the Company of that offer,
which must be accompanied by a certified check, issued by a
bank in the United States insured by the Federal Deposit
Insurance Corporation, to the Company in an amount equal to
all amounts Individual has received in connection with this
Separation Agreement, including amounts Individual has
directed be applied by the Company to obligations Individual
has or has had to the Company. If the Company accepts
Individual's offer, the Company may deposit the check in its
name and this Separation Agreement will be canceled. If it
rejects Individual's offer, the Company will notify
Individual and deposit the check in an interest-bearing
account pending a determination of the validity or continued
enforceability of this Separation Agreement. If it is
determined that this Separation Agreement is not invalid or
should not be rescinded, the Company will pay Individual the
amount in the account, less any amounts Individual owes the
Company. If Individual revokes this Separation Agreement as
provided in Section 17, or it is determined that this
Separation Agreement is invalid or should be rescinded, the
Company or its designee is to retain that amount.
17. Review Period of Separation Agreement. Individual acknowledges that,
before signing this Separation Agreement, Individual was informed
that Individual was entitled to a period of at least 21 days in which
to consider this Separation Agreement. Individual represents that he
has taken as much of the 21 days as he deemed appropriate to consider
this Separation Agreement prior to signing this Separation Agreement.
Individual further acknowledges that: (i) Individual carefully read
this Separation Agreement; (ii) Individual fully understands it; and
(iii) Individual is entering into it voluntarily. Individual further
acknowledges that the Company encouraged him to discuss this
Separation Agreement with an attorney and financial advisor (for tax
and accounting advice) before signing it and that Individual did so
to the extent Individual deemed appropriate. Individual also
understands that Individual may revoke this Separation Agreement
within seven days after Individual signs it. Any such revocation must
be in writing directed to the Chairman of the Board, must
specifically revoke this Separation Agreement, and must be received
at the Company's premises no later than 5:00 p.m. on the seventh day
following the Effective Date. If Individual revokes this Separation
Agreement, Individual acknowledges and agrees that he will not
receive the payments and/or benefits that are set forth herein and
conditioned upon Individual's execution of this Separation Agreement
and immediately to refund all amounts he has received through that
time under this Agreement, including all amounts he has directed the
Company to apply to obligations he has or has had to the Company.
18. Miscellaneous.
(a) Entire Agreement. This Separation Agreement, including the
provisions of the Employment Agreement continuing in effect
as provided in this Separation Agreement, is the entire
agreement between Individual and the Company regarding the
matters herein and supersedes all prior or contemporaneous
written or oral agreements or understandings.
Notwithstanding the foregoing, that certain Registration
Rights Agreement dated as of November 18, 1998 among the
Company and Capricorn Investors, L.P. and Capricorn
Investors II, L.P. and, subject to the express provisions of
this Separation Agreement, each outstanding stock option
held by Individual shall continue in full force and effect.
This Separation Agreement may not be modified or canceled in
any manner except by a writing signed by both Individual and
the Company. Each Party acknowledges that the other Party
has made no representations or promises to such Party, other
than those in this Separation Agreement, and that such Party
has not relied on any representations or promises in signing
this Separation Agreement, other than the representations
and promises contained herein.
(b) Successors. This Separation Agreement binds the Company and
its successors and assigns and Individual and his heirs,
administrators, representatives, executors, successors, and
assigns, and will inure to the benefit of both Parties and
their respective heirs, administrators, representatives,
executors, successors and assigns.
(c) Interpretation. This Separation Agreement shall be construed
as a whole according to its fair meaning. It shall not be
construed strictly for or against either Party to this
Separation Agreement. Unless the context indicates
otherwise, the term "or" shall be deemed to include the term
"and" and the singular or plural number shall be deemed to
include the other, and references to "Sections" are to
Sections of this Separation Agreement. Captions are intended
solely for convenience of reference and shall not be used in
the interpretation of this Separation Agreement. This
Separation Agreement shall be governed by the statutes and
common law of the State of Texas, excluding its
conflict-of-laws principles and provisions. The Company and
Individual agree that they will submit to the personal
jurisdiction of any court of competent jurisdiction in the
County of Xxxxxx, State of Texas, regarding any claim or
lawsuit arising out of Individual's employment with the
Company, the Claims released in this Separation Agreement,
or the interpretation or enforcement of this Separation
Agreement, and the Company and Individual further agree that
they waive all rights to assert claims of forum non
conveniens or other similar claims regarding such
jurisdiction.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS SEPARATION AGREEMENT AND GENERAL
RELEASE INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
---------------------------------------
I HAVE READ THE FOREGOING AGREEMENT AND I ACCEPT AND AGREE TO ITS PROVISIONS
VOLUNTARILY AND WITH FULL UNDERSTANDING OF ITS CONSEQUENCES. FURTHER, I HAVE
BEEN ADVISED TO CONSULT WITH AN ATTORNEY IN CONNECTION WITH THIS AGREEMENT AND
HAVE DONE SO.
IN WITNESS WHEREOF, the Parties have executed this Separation Agreement as set
forth below as of the date first set forth above.
"Individual"
/s/ Xxxxxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxxxxx X. Xxxxxxx
"Company" NATCO Group Inc.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Xxxx X. Xxxxxx
Chairman, Governance, Nominating &
Compensation Committee
EXHIBIT A
---------
RELEASE OF CLAIMS
This Release of Claims (this "Release") is entered into and effective
as of September 7, 2004, by and between NATCO Group Inc., a Delaware
corporation (the "Company"), and Xxxxxxxxx X. Xxxxxxx ("Individual").
1. In General. In consideration for the promises and payments received
in the Separation Agreement, entered into as of July 28, 2004, by and between
the Company and Individual (the "Separation Agreement") , Individual
irrevocably and unconditionally releases, waives and discharges all Claims (as
defined in Section 2 below) that Individual has or may have through September
7, 2004 (the "Separation Date") against the Released Parties (as defined
herein), except that Individual is not releasing (i) any Claim that relates to
Individual's right to enforce this Separation Agreement, (ii) any Claim
against any Released Party for the failure of the Company or any of its
subsidiaries and controlled affiliated entities ("Subsidiaries") to provide to
Individual any vested benefits or right under its employee benefit plans (if
any) in which Individual is vested or entitled, (iii) any Claim that may arise
based on acts or omission after the Separation Date, (iv) any Claim for
defense and/or indemnification under the charter or bylaws of the Company or
any Subsidiary, any applicable agreement, any other corporate document or any
statute, or (v) any defense that may be available to Individual with respect
to any claim or cause of action that the Company, any Subsidiary or any other
Released Party may hereafter assert against Individual. For purposes of this
Release, the "Released Parties" are the Company and all Subsidiaries
(including corporations, limited liability companies, partnerships, and joint
ventures) and, with respect to each of the Company and its Subsidiaries, each
of their respective predecessors and successors and (to the extent relating to
their positions or activities as such) past and present employees, officers,
directors, shareholders, owners, partners, members, representatives, assigns,
attorneys, as well as their employee benefit programs (and, in their
capacities as such, the trustees, administrators, fiduciaries, and insurers of
such programs), and any other persons acting by, through, under or in concert
with any of the foregoing identified Released Parties.
2. Claims Released. Subject only to the exceptions noted in Section 1,
INDIVIDUAL IS VOLUNTARILY RELEASING ALL KNOWN AND UNKNOWN, SUSPECTED AND
UNSUSPECTED CLAIMS, PROMISES, CAUSES OF ACTION, OR SIMILAR RIGHTS OF ANY TYPE
THAT INDIVIDUAL HAS OR MAY HAVE AS OF THE SEPARATION DATE WITH RESPECT TO ANY
RELEASED PARTY (IN SUCH RELEASED PARTY'S CAPACITY AS SUCH) THAT RELATE TO
INDIVIDUAL'S EMPLOYMENT WITH THE COMPANY AND ITS SUBSIDIARIES AND/OR THE
TERMINATION THEREOF ("CLAIMS"). Individual understands that the Claims
Individual is releasing might arise under general employment policies or
agreements between the Company and Individual or under any constitution, law,
regulation, or ordinance that may apply, including the United States
Constitution, the Texas or other state constitution, federal, state and local
statutes, regulations, other administrative guidance, or common law doctrines,
such as, but not limited to, the following:
Anti-discrimination statutes, such as the Age Discrimination in
Employment Act and Executive Order 11,141, which prohibit age
discrimination in employment; Title VII of the Civil Rights Act of
1964, as amended by the Civil Rights Act of 1991, Section 1981 of the
Civil Rights Act of 1866, and Executive Order 11,246, which prohibit
discrimination based on race, color, national origin, religion, or
sex; the Equal Pay Act of 1963, which prohibits paying men and women
unequal pay for the same work; the Americans With Disabilities Act of
1990 and Sections 503 and 504 of the Rehabilitation Act of 1973,
which prohibit discrimination based on disability; the Equal
Employment Opportunity Act of 1972; and any other federal, state, or
local laws prohibiting employment discrimination, all as amended.
Federal employment statutes, such as the Workers Adjustment and
Retraining Notification Act of 1988, which requires that advance
notice be given of certain work force reductions; the Employee
Retirement Income Security Act of 1974, which, among other things,
protects employee benefits; the Fair Labor Standards Act of 1938, as
amended, which regulates wage and hour matters; the Family and
Medical Leave Act of 1993, which requires employers to provide leaves
of absence under certain circumstances; the National Labor Relations
Act, as amended; and any other federal laws relating to employment,
such as veterans' reemployment rights laws, all as amended.
Other laws, such as any federal, state, or local human rights, fair
employment, and other laws and regulations and/or executive orders
prohibiting discrimination on account of age, race, sex, sexual
orientation, national origin, religion, handicap, disability, marital
status, citizenship, veterans status, or other protected category;
any federal, state, or local laws restricting an employer's right to
terminate employees, or otherwise regulating employment; any federal,
state, or local law enforcing express or implied employment contracts
or requiring an employer to deal with employees fairly or in good
faith; any other federal, state, or local laws providing recourse for
alleged wrongful discharge, breach of contract, tort, physical or
personal injury, emotional distress, fraud, negligent
misrepresentation, defamation, and similar or related claims.
3. Pursuit of Released Claims. Individual represents that neither
Individual nor his heirs, agents, representatives or attorneys have filed or
caused to be filed any lawsuit, complaint, or charge with respect to any Claim
that Individual is releasing in this Release of Claims. Individual represents
that he has not brought or filed, and to the extent permitted by law will not
bring or file, any claim, charge, or action with respect to any Claim against
the Released Parties, or any of them, and, except as prohibited by law, agrees
not to seek any recovery arising out of, based upon, or relating to matters
released hereunder.
4. Non-Admission of Liability. Nothing in this Agreement shall be
construed as an admission of liability by the Released Parties; rather,
Individual and the Released Parties are resolving all matters arising out of
the employer-employee relationship between the Company and its Subsidiaries
and Individual, as to each of which the Released Parties each deny any
liability.
5. Representations and Agreements of the Company. Individual's agreement
to assent to and execute this Release is expressly contingent upon the
representation of the Company that, assuming Individual's compliance with the
provisions of the Separation Agreement and this Release and the accuracy of
his representations in the Separation Agreement and this Release, as of the
Separation Date, neither it nor any of its Subsidiaries intends to make any
claim or file suit or other action against Individual. The Company agrees, on
its own behalf and on behalf of its Subsidiaries, not to make any claim or
bring or join any lawsuit against Individual in any court (except as necessary
to protect the rights of the Company and the other Released Parties under this
Release) to the extent that such claim or lawsuit is predicated on matters
known at the Separation Date by the Audit Committee or the Nominating,
Governance and Compensation Committee of the Board and relating to
Individual's employment, membership on the Board, events occurring during
Individual's employment or membership on the Board, or the termination of
Individual's employment or membership on the Board. The Company represents
that, as of the Separation Date, neither it nor any of its Subsidiaries has
brought or joined any lawsuit or filed any charge or claim against Individual
in any court or before any government agency and has made no assignment of any
rights that the Company or any of its Subsidiaries has asserted or may have
against Individual to any person or entity.
IN WITNESS WHEREOF, Individual and the Company have executed this Release as
set forth below as of the date first set forth above.
"Individual"
By:
------------------------------------
Xxxxxxxxx X. Xxxxxxx
"Company" NATCO Group Inc.
By:
-----------------------------------
Xxxx X. Xxxxxx
Chairman, Governance, Nominating and
Compensation Committee
