EXHIBIT 10.10
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT ("Agreement") is made as of September 3, 2004
between Tarpon Industries, Inc., a Michigan corporation ("Tarpon"), ▇▇▇▇▇▇
Welding Co., a Michigan corporation ("EWCO" and together with Tarpon and their
affiliates, Steelbank Inc. and BST Acquisition Ltd. ("BST") (and any other
affiliates that become such after the date hereof), the "Companies"), and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇▇"). The Companies and ▇▇. ▇▇▇▇▇▇▇ are sometimes
referred to together as the "Parties" and individually as a "Party".
R E C I T A L S
A. ▇▇. ▇▇▇▇▇▇▇ is the President, Chief Executive Officer and a director
of Tarpon and BST, and President, Chief Executive Officer, Treasurer, Secretary
and a director of EWCO.
B. ▇▇. ▇▇▇▇▇▇▇ wishes to resign from all of his positions with Tarpon,
EWCO and BST and to settle and resolve all actual and potential claims against
the Companies, their consultants and representatives, in accordance with this
Agreement.
C. Tarpon, EWCO and BST wish to accept ▇▇. ▇▇▇▇▇▇▇'▇ resignation and to
settle and resolve all actual and potential claims against ▇▇. ▇▇▇▇▇▇▇ in
accordance with this Agreement.
THEREFORE, the Parties agree as follows:
1. Termination of ▇▇. ▇▇▇▇▇▇▇'▇ Employment; Resignation.
Effective as of August 20, 2004 (the "Effective Date"), ▇▇. ▇▇▇▇▇▇▇
resigns from all of his positions with the Companies, including President, Chief
Executive Officer and a director of Tarpon and BST, and President, Chief
Executive Officer, Treasurer, Secretary and a director of EWCO.
2. Termination Payments. EWCO shall pay ▇▇. ▇▇▇▇▇▇▇ $200,000 in 52 equal,
biweekly installments of $3,846.15 on EWCO's normal biweekly payroll dates (the
"Termination Payments"), except that the first payment shall be made on EWCO's
first normal biweekly payroll date after the date of this Agreement and shall be
in an amount equal to $3,846.15 multiplied by the number of EWCO's normal
biweekly payroll dates through such date that cover work performed after the
Effective Date (for clarity, that payment shall count as that number of
Termination Payments). EWCO may withhold from the Termination Payments normal
withholding for federal, state, city and other taxes to the extent that such
taxes are required to be withheld under applicable law. In the event that EWCO
fails to timely make the Termination Payments, EWCO shall have 10 days from when
payment is due to cure such failure to timely make such Termination Payments.
3. Continuation of Benefits.
(a) Medical and Dental Benefits. EWCO will provide ▇▇. ▇▇▇▇▇▇▇ with his
current company health insurance coverage pursuant to the Consolidated Omnibus
Budget Reconciliation Act for 18 months after the Effective Date and pay the
costs associated therewith.
(b) Automobile. For a period of two years from the Effective Date, EWCO
will (1) continue to provide ▇▇. ▇▇▇▇▇▇▇ with the use of the 2003 GMC Sierra
pick-up truck that EWCO provided him on the Effective Date, (2) pay the
principal and interest on the related loan secured by that truck during that
period, and (3) continue to provide insurance on that truck with the same
coverage limits and deductibles as it was insured as of the Effective Date and
pay the premiums on such insurance during that period. ▇▇. ▇▇▇▇▇▇▇ shall be
responsible for all other costs in connection with such vehicle, including,
without limitation, maintenance, fuel and repairs. At the conclusion of the
two-year period, ▇▇. ▇▇▇▇▇▇▇ may purchase such truck from EWCO free of all liens
and encumbrances at a price equal to the greater of the fair market value of
such vehicle or the outstanding balance of principal and interest owing on any
loan used to finance such vehicle.
(c) Other Benefits. During calendar years 2004 and 2005, EWCO shall pay
for ▇▇. ▇▇▇▇▇▇▇'▇ annual St. Clair Country Club dues and monthly membership
fees, not to exceed $5,000 per year.
(d) Termination of Employment Agreement. As of the Effective Date, the
Employment Agreement between ▇▇. ▇▇▇▇▇▇▇ and Tarpon, dated as of April 2, 2004
(the "Employment Agreement"), is terminated, cancelled and shall be of no
further force or effect.
(e) No Other Payments or Benefits. Except for the payments and benefits
described herein and reimbursements for any reasonable expenses of ▇▇. ▇▇▇▇▇▇▇
incurred through the Effective Date based upon the Companies' standard expense
reimbursement program, both of which (to the extent the reimbursement requests
have been submitted by the Effective Date) shall be paid by EWCO to ▇▇. ▇▇▇▇▇▇▇
on EWCO's next applicable payroll date after the Effective Date, ▇▇. ▇▇▇▇▇▇▇
will not be entitled to any other payments or benefits whatsoever, including any
options to purchase stock of any of the Companies or participation after the
Effective Date in the 401(k) Plan, subject to Section 7(b)(i). For no purpose
shall the payments and benefits described in this Agreement be considered salary
to ▇▇. ▇▇▇▇▇▇▇ or be deemed to continue his employment beyond the Effective
Date.
(f) Taxes. EWCO may withhold from the benefits described in this Section 3
normal withholding for federal, state, city and other taxes to the extent that
such taxes are required to be withheld under applicable law.
(g) Cure Period. In the event that EWCO fails to timely make the payments
described in this Section 3, EWCO shall have 10 days from when payment is due to
cure such failure to timely make such payments.
4. Consulting Services.
From the Effective Date through the first anniversary of the Effective
Date, ▇▇. ▇▇▇▇▇▇▇ shall render such consulting services to the Companies as the
Companies may request from time-to-time. ▇▇. ▇▇▇▇▇▇▇ shall be required to render
the consulting services only upon reasonable notice, only during regular
business hours, and ▇▇. ▇▇▇▇▇▇▇ may provide such consulting services in any
reasonable manner, including telephonically. The requested consulting services
shall not require any material amount of ▇▇. ▇▇▇▇▇▇▇'▇ time. In the performance
of such
2
services, ▇▇. ▇▇▇▇▇▇▇ will be an independent contractor and not an agent,
employee, co-venturer or partner of the Companies. In rendering such consulting
services, ▇▇. ▇▇▇▇▇▇▇ shall communicate with Tarpon's Board of Directors or
members of Bainbridge Advisors, Inc. (including ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇)
and only Tarpon's Board of Directors or members of Bainbridge Advisors, Inc.. In
no case whatsoever shall ▇▇. ▇▇▇▇▇▇▇ contact, whether directly or indirectly,
any party that has a relationship with the Companies, contractual or otherwise,
including, without limitation any employee, customer, supplier, consultant,
representative, lender or shareholder, regarding any matter involving any of the
Companies, without the prior written consent of Tarpon's Board of Directors.
Notwithstanding anything to the contrary contained herein, the services provided
hereunder by ▇▇. ▇▇▇▇▇▇▇ shall be provided on a non-exclusive basis, and ▇▇.
▇▇▇▇▇▇▇ shall not be required to devote any minimum number of hours to such
services; provided that, for clarity, ▇▇. ▇▇▇▇▇▇▇ shall remain subject to the
other terms and provisions of this Agreement, including, without limitation,
Section 5.
5. Confidentiality; Non-Competition; Non-Solicitation.
(a) Return of Materials. ▇▇. ▇▇▇▇▇▇▇ represents and warrants that to the
best of his knowledge he has returned to the Companies all confidential
materials of the Companies and files of the Companies over which he exercises
any control.
(b) Confidentiality.
(i) Except as part of his consulting services pursuant to this
Agreement, ▇▇. ▇▇▇▇▇▇▇ shall not, at any time after the date of this
Agreement, disseminate, disclose, use, communicate or otherwise
appropriate, either directly or indirectly, through any person or entity,
any Confidential Information (as defined in this Section 5(b)). ▇▇.
▇▇▇▇▇▇▇ acknowledges that the Confidential Information is valuable,
special and unique and is proprietary to the Companies, and that the
Companies wish to protect such Confidential Information by keeping it
secret and for the sole use and benefit of the Companies. ▇▇. ▇▇▇▇▇▇▇
shall take all reasonable steps necessary and all reasonable steps
requested by the Companies to ensure that all such Confidential
Information is kept secret and confidential for the sole use and benefit
of the Companies.
(ii) All records and other materials pertaining to the Confidential
Information, whether or not developed by ▇▇. ▇▇▇▇▇▇▇, shall be and remain
the exclusive property of Companies.
(iii) For purposes of this Agreement, "Confidential Information"
means and includes all information known or used by the Companies and/or
developed by or for any of the foregoing, by any person, including their
respective employees. Confidential Information specifically includes, but
is not limited to, such information, whether now possessed or later
obtained, concerning plans, marketing, sales and inventory methods,
materials, processes, procedures, devices, business forms, prices,
suppliers, contractors, representatives, customers, plans for the
development of new products and services and expansion into new areas or
markets, internal operations, purchasing policies, bidding practices or
procedures, pricing policies, customer identities and lists, trade
secrets, trade names, trademarks, servicemarks, copyrights, software
programs, software designs, and
3
other proprietary or confidential information of any type, together with
all written, graphic and other materials relating to all or any part of
the same.
(iv) Confidential Information is not meant to include information
which (i) is in the public domain, provided that such information did not
become part of the public domain as a result of ▇▇. ▇▇▇▇▇▇▇'▇ breach of
this Agreement or any obligation of ▇▇. ▇▇▇▇▇▇▇, or (ii) ▇▇. ▇▇▇▇▇▇▇ is
required to disclose pursuant to applicable law, regulation or legal
process; provided, however, that prior to such required disclosure, ▇▇.
▇▇▇▇▇▇▇ shall promptly provide the Companies with written notice of such
required disclosure in order to permit the Companies the opportunity to
challenge such required disclosure; provided, further, that in the event
that ▇▇. ▇▇▇▇▇▇▇ is required to disclose such information (whether or not
the Companies challenge such required disclosure), the scope of ▇▇.
▇▇▇▇▇▇▇'▇ disclosure shall be as narrow as permitted under applicable law.
(c) Non-Competition; Non-Solicitation. From the Effective Date through the
second anniversary of the Effective Date or, if earlier, the date EWCO ceases to
make the Termination Payments as required by Section 2 or to provide the
benefits as required by Section 3 for a reason other than EWCO's claim that ▇▇.
▇▇▇▇▇▇▇ has breached Section 5 of this Agreement (the "Restricted Term"), ▇▇.
▇▇▇▇▇▇▇ shall not (i) directly or indirectly engage, whether or not such
engagement shall be as an employee, partner, stockholder, equity holder,
affiliate or other participant, in any Competitive Business, or represent in any
way any Competitive Business; provided, however, that ▇▇. ▇▇▇▇▇▇▇ may be
employed by ▇▇▇▇▇▇▇ Storage Systems as long as (1) ▇▇. ▇▇▇▇▇▇▇ is not in breach
of, or has not previously breached, the terms and conditions of this Agreement,
including, without limitation, the provisions regarding Confidential Information
set forth in Section 5(b), and (2) such employment does not have a adverse
effect on the businesses of any of the Companies, as determined by any of the
Boards of Directors of the Companies, in their sole and exclusive business
judgment; provided that the Board of Directors making such determination shall
provide notice to ▇▇. ▇▇▇▇▇▇▇ of such determination and this condition shall be
satisfied if, within 10 days after ▇▇. ▇▇▇▇▇▇▇'▇ receipt of such notice, either
such adverse condition is remedied in the sole and exclusive business judgment
of the applicable Company's Board of Directors or any such employment of ▇▇.
▇▇▇▇▇▇▇ ceases, (ii) interfere with, disrupt or attempt to disrupt the
relationship, contractual or otherwise, between the Companies and any customer,
supplier, or employee of the Company or any other third party, or (iii) induce
any current employee or former employee (whose employment with any of the
Companies was terminated (by such employee or any of the Companies) within one
(1) year of the date of such inducement) of the Companies to terminate their
employment with the Companies or cause, in any way, any employee's separation
from the Companies. For purposes of this Agreement, the term "Competitive
Business" shall mean any business engaged in the design, manufacture or sale of
tubular metal products or rack storage systems in the same markets as the
Companies (whether prior to or after the Effective Date).
(d) Enforceability. Sections 5(a) through (c) are intended, among other
things, to protect the confidential information and businesses of the Companies
and their employees. If for any reason a court determines that any part of
Sections 5(a) through (c) are unreasonable in scope or otherwise unenforceable,
such provisions will be modified and fully enforceable, as so modified, to the
maximum extent the court determines lawful and enforceable under the
circumstances.
4
6. Termination of Prior Agreements; Unemployment Compensation.
Except as set forth in Section 7(b), this Agreement supersedes all prior
understandings and agreements between the Parties (written or otherwise). ▇▇.
▇▇▇▇▇▇▇ acknowledges that he is not entitled to any payments whatsoever in
connection with the termination of his employment with Tarpon, EWCO or BST,
except as otherwise provided in Sections 2 and 3. ▇▇. ▇▇▇▇▇▇▇ agrees that his
resignation is voluntary, that he is not entitled to unemployment compensation
and that he will not seek or obtain unemployment compensation based upon his
termination of employment with Tarpon, EWCO and BST. Notwithstanding the
foregoing, in the event that ▇▇. ▇▇▇▇▇▇▇ receives unemployment compensation
based on his termination of employment with Tarpon, EWCO or BST, the Termination
Payments referenced in Section 2 shall be reduced by the amount of such
unemployment compensation received by ▇▇. ▇▇▇▇▇▇▇.
7. Release; Covenant Not To ▇▇▇.
(a) Release.
(i) In consideration of, and in reliance on, the Companies
entering into this Agreement and agreeing to the terms and conditions of
this Agreement, including the additional compensation provided in Sections
2 and 3, which ▇▇. ▇▇▇▇▇▇▇ acknowledges as being adequate, ▇▇. ▇▇▇▇▇▇▇
hereby unconditionally releases and forever discharges the Companies and
its divisions, components, employees, officers, directors, shareholders,
affiliates, agents, trusts, partnerships, consultants, representatives,
attorneys and successors and assigns (the "Released Parties") from, and
hereby waives, any and all causes of action, suits, damages, claims,
demands and liability whatsoever which ▇▇. ▇▇▇▇▇▇▇ ever had or now has
against any of the Released Parties, directly or indirectly, which is now
existing or which may hereafter arise between them, directly or
indirectly, by reason of any facts existing on or prior to the date of
this Agreement, whether known or unknown, except for the Companies'
violation of this Agreement or as to any claims arising under the
Surviving Agreements (as defined in Section 7(b)(ii) below).
(ii) This release specifically includes, but is not limited to, any
and all claims relating to ▇▇. ▇▇▇▇▇▇▇'▇ employment with Tarpon, EWCO and
BST and the termination of such employment, and specifically including
(but not limited to) any and all claims for defamation, wrongful discharge
or termination, breach of contract, negligence and other tort actions,
and/or discrimination, harassment and/or retaliation on account of sex,
sexual orientation, race, color, religion, marital status, handicap,
height, weight, national origin, or any other classification recognized
under the common law of the State of Michigan, local law and/or
ordinances, any foreign laws (including the laws of the Provinces of ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, and any other jurisdiction in which any of
the Companies conduct business), and the civil rights statutes, and
specifically including any and all claims arising under or in connection
with Title VII of the Civil Rights Act of 1964; the Rehabilitation Act of
1973; the Older Workers Benefit Protection Act; the Americans With
Disabilities Act; the Family and Medical Leave Act of 1993; the
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Civil Rights Act; the Michigan Persons with Disabilities
Civil Rights Act; the Michigan Whistleblower's Protection Act; the Fair
Labor Standards Act; 42 USC 1981,
5
1985, 1986, 1988; 29 USC 621; employment standards and human rights
legislation of any Canadian Provinces in which the Companies conduct
business, any amendments to such statutes, all other federal, state or
local laws, (including the laws of the Provinces of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, and any other jurisdiction in which any of the Companies
conduct business), the common law of the State of Michigan and any other
jurisdiction in which any of the Companies conduct business, and any
actions based upon injuries on the job.
(iii) ▇▇. ▇▇▇▇▇▇▇ understands and agrees that this is a total and
complete release and waiver by ▇▇. ▇▇▇▇▇▇▇ of all claims which ▇▇. ▇▇▇▇▇▇▇
has or may have against the Companies by reason of any facts existing on
or prior to the date of this Agreement, both known and unknown, even
though there may be facts and consequences of facts which are unknown to
▇▇. ▇▇▇▇▇▇▇ and/or the Companies. ▇▇. ▇▇▇▇▇▇▇ further agrees that he has
suffered no work related injury or illness and that he has been properly
paid all his past wages and benefits, including overtime earnings and
vacation pay as of this date. ▇▇. ▇▇▇▇▇▇▇ shall not bring suit or make a
claim or charge in any manner with respect to any claim released under
this Agreement.
(b) Benefit Plans; Other Agreements.
(i) ▇▇. ▇▇▇▇▇▇▇ is not releasing any rights he may have to
benefits arising under the ▇▇▇▇▇▇ Welding Co. 401(k) Plan (the "401 K
Plan"); provided, that ▇▇. ▇▇▇▇▇▇▇ acknowledges that he will no longer be
an employee of EWCO (or Tarpon or BST) as of the Effective Date and,
therefore, is not entitled to future contributions to the 401(k) Plan on
his behalf on or after the Effective Date, except to the extent the 401(k)
Plan provides for employer contributions to the 401(k) Plan allocable to
▇▇. ▇▇▇▇▇▇▇ and related to his employment with the EWCO before the
Effective Date.
(ii) ▇▇. ▇▇▇▇▇▇▇ is not releasing any rights, and shall honor all
obligations, he may have under the Promissory Note made by EWCO, dated
April 2, 2004, in favor of ▇▇. ▇▇▇▇▇▇▇, the Stock Pledge Agreement, dated
April 2, 2004, by and among ▇▇. ▇▇▇▇▇▇▇, EWCO and ▇▇▇▇▇▇▇ & Co., P.C., the
related Guaranty made by Tarpon in favor of ▇▇. ▇▇▇▇▇▇▇, or the
Subordination Agreement, dated August 11, 2004 between ▇▇. ▇▇▇▇▇▇▇ and
Standard Federal Bank, N.A. (the "Surviving Agreements").
(c) Covenant Not To ▇▇▇; Representation Regarding Known Causes of Action.
(i) ▇▇. ▇▇▇▇▇▇▇ will refrain from commencing any suit, claim or
action, or prosecuting any pending action, claim or suit, in law or in
equity, against any of the Companies, their consultants or representatives
on account of any employment related action or cause of action based upon
any facts, whether known or unknown, arising out of, or in connection
with, ▇▇. ▇▇▇▇▇▇▇'▇ prior employment with Tarpon, EWCO or BST.
(ii) The Companies hereby represent and warrant that as of the date
hereof, to the actual knowledge of the members of the Boards of Directors
(for clarification, excluding ▇▇. ▇▇▇▇▇▇▇) of the Companies without
investigation or inquiry, there are no
6
known claims assertable by the Companies against ▇▇. ▇▇▇▇▇▇▇ in connection
with his involvement with any of the Companies.
8. Remedies.
▇▇. ▇▇▇▇▇▇▇'▇ undertakings and provisions under this Agreement are related
to matters which are of a special and unique character, and a violation of any
of the terms of this Agreement will cause irreparable injury, the amount of
which will be difficult, if not impossible, to determine and cannot be
adequately compensated by monetary damages alone. Therefore, if ▇▇. ▇▇▇▇▇▇▇
breaches or threatens to breach any of the terms of this Agreement, in addition
to any other remedies that may be available under this Agreement, applicable law
or equity, the Companies will be entitled, as a matter of course, to specific
performance, an injunction, a restraining order, or any other equitable relief
from any court of competent jurisdiction, requiring compliance with this
Agreement or restraining any violation or threatened violation of any such terms
by ▇▇. ▇▇▇▇▇▇▇ or by such other persons as the court may order, without being
required prove irreparable harm or post bond.
9. Miscellaneous.
(a) Successors. This Agreement will be binding upon the Parties and their
respective successors, assigns, heirs, executors and administrators. ▇▇. ▇▇▇▇▇▇▇
shall not assign his rights or delegate his obligations under this Agreement;
provided that in the event that ▇▇. ▇▇▇▇▇▇▇ dies before the complete payment of
all Termination Payments due under this Agreement, the remaining Termination
Payments shall be payable to his spouse, or, if she predeceases the final
Termination Payment, to his estate.
(b) Inventions and Patents. ▇▇. ▇▇▇▇▇▇▇ acknowledges and agrees that all
inventions, innovations, improvements, technical information, systems, software
developments, methods, designs, analyses, drawings, reports, service marks,
trademarks, trade names, logos and all similar or related information (whether
patentable or unpatentable) which relate to the Companies' businesses, research
and development or existing or future products or services and which are
conceived, developed or made by ▇▇. ▇▇▇▇▇▇▇ (whether or not during usual
business hours and whether or not alone or in conjunction with any other person)
during ▇▇. ▇▇▇▇▇▇▇'▇ employment with the Tarpon, EWCO and BST, together with all
patent applications, letters patent, trademark, trade name and service ▇▇▇▇
applications or registrations, copyrights and reissues thereof that may be
granted for or upon any of the foregoing (collectively referred to herein as
"Work Product"), belong to the Companies. ▇▇. ▇▇▇▇▇▇▇ will take all necessary
steps to promptly disclose such Work Product to the Companies and perform all
actions reasonably requested by the Companies (whether before or after the
Effective Date) to establish and confirm such ownership (including the execution
and delivery of assignments, consents, powers of attorney and other instruments)
and to provide reasonable assistance to the Companies in connection with the
prosecution of any applications for patents, trademarks, trade names, service
marks or reissues thereof or in the prosecution or defense of interferences
relating to any Work Product. ▇▇. ▇▇▇▇▇▇▇ irrevocably waives, in favor of the
Companies, their successor and assigns, all moral rights arising under the
Copyright Act (Canada), as amended, or similar legislation in any applicable
jurisdiction, or at common law, that he may have now or in future with respect
to any copyrightable material.
7
(c) Governing Law and Forum. The laws of the State of Michigan shall
govern this Agreement, its construction, and the determination of any rights,
duties or remedies of the Parties arising out of, or relating to, this Agreement
(regardless of the laws that might otherwise govern under applicable Michigan
principles of conflicts of law). The parties acknowledge that the United States
District Court for the Eastern District of Michigan or the Michigan Circuit
Court for the County of Oakland shall have exclusive jurisdiction over any case
or controversy arising out of, or relating to, this Agreement and that all
litigation arising out of, or relating to, this Agreement shall be commenced in
the United States District Court for the Eastern District of Michigan or in the
Oakland County (Michigan) Circuit Court. Each of the Parties consents to be
subject to personal jurisdiction of the courts of Michigan, including the
federal courts in Michigan.
(d) Counterparts. This Agreement may be signed in counterparts, both of
which together will be deemed an original of this Agreement.
(e) Entire Agreement; Amendment. This Agreement constitutes the entire
agreement of the Parties with respect to the subject matter of this Agreement;
this Agreement may be amended only by a written instrument executed by all of
the Parties.
(f) Legal Fees; Damages for Breach. The prevailing Party in any action
under this Agreement will be entitled to recover from the other Party, in
addition to any other relief provided by law, such costs and expenses as may be
incurred by the prevailing Party (including court costs and reasonable
attorneys' fees) in connection with enforcing, defending or establishing the
applicability or validity of this Agreement (including investigating and
responding to any demand or claim) and in prosecuting any counterclaim or
cross-claim based thereon. Each Party shall be liable to the other Party for any
damages (including costs and reasonable attorneys' fees) resulting from any
breach of this Agreement by such Party. In addition to the foregoing, upon any
breach of this Agreement by ▇▇. ▇▇▇▇▇▇▇ (other than a breach of Section 4), ▇▇.
▇▇▇▇▇▇▇ shall have no right or claim to any payment or compensation described
herein, and the Companies shall have no obligation to pay to ▇▇. ▇▇▇▇▇▇▇ any
payment or compensation described herein. The rights and remedies set forth in
this Section 9(f) are in addition to rights and remedies otherwise available to
the Parties under any applicable agreement between the Parties or applicable law
(including injunctive or other equitable relief).
(g) Severability. The provisions of this Agreement will be deemed
severable, and if any part of any provision is held illegal, void or
unenforceable under applicable law, such provision may be changed to the extent
necessary to make the provision, as so changed, legal, valid, binding and
enforceable. If any provision of this Agreement is held illegal, void, invalid
or unenforceable in its entirety, the remaining provisions of this Agreement
will not in any way be affected or impaired but will remain valid, binding and
enforceable in accordance with their terms.
(h) No Duress or Coercion. This Agreement (including the release contained
in Section 7) is freely and voluntarily entered into by each Party without
duress or coercion and after consultation with, or an opportunity to consult
with, counsel, and each Party has carefully and completely read all of the terms
and provisions of this Agreement.
8
(i) Personal Property. ▇▇. ▇▇▇▇▇▇▇ shall have the right to remove all
personal property of ▇▇. ▇▇▇▇▇▇▇'▇ from his offices at EWCO within five (5)
business days after the date of this Agreement.
(j) Disparagement. The Parties will not make, participate in the making
of, or encourage any other person to make, any statements, written or oral,
which criticize, disparage or defame the goodwill or reputation of, or which are
intended to embarrass or adversely affect the morale of the other party and in
the case of Companies, any of its respective present, former or future
directors, officers, executives, employees, shareholders, consultants or
representatives. The Parties agree not to make any negative statements, written
or oral, relating to their association, the termination of their association, or
any aspect of the business of the Companies. Notwithstanding the foregoing,
nothing in this Section 9(j) shall prohibit any person from making truthful
statements when required by order of a court or other body having jurisdiction.
IN WITNESS WHEREOF, the parties have signed this Agreement on the date set
forth in the introductory paragraph above.
THIS IS AN AGREEMENT FOR RELEASE AND WAIVER OF CLAIMS
TARPON INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Its: CHAIRMAN OF BOARD
▇▇▇▇▇▇ WELDING CO.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Its: CHAIRMAN
STEELBANK INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Its: CHAIRMAN
BST ACQUISITION LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Its: CHAIRMAN.
9
I UNDERSTAND THAT BY THIS AGREEMENT I AM WAIVING ANY RIGHTS I MAY PRESENTLY HAVE
UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT, AS AMENDED. I ENTER INTO THIS
AGREEMENT FREELY AND VOLUNTARILY WITHOUT ANY DURESS OR COERCION, AND AFTER I
HAVE CAREFULLY AND COMPLETELY READ ALL OF THE TERMS AND PROVISIONS OF THIS
AGREEMENT. I HAVE BEEN ADVISED TO CONSULT WITH LEGAL COUNSEL AND UNDERSTAND I
WILL BE ALLOWED TO CONSIDER THIS AGREEMENT FOR TWENTY-ONE (21) DAYS, PRIOR TO
SIGNING IT. I UNDERSTAND THAT THIS AGREEMENT SHALL NOT BECOME EFFECTIVE FOR
SEVEN (7) DAYS FOLLOWING THE DATE IT IS SIGNED, DURING WHICH TIME I MAY REVOKE
THE AGREEMENT BY WRITTEN NOTICE TO THE EMPLOYER. I UNDERSTAND FURTHER THAT
PAYMENTS TO BE MADE TO ME AS PROVIDED IN THIS AGREEMENT WILL NOT COMMENCE UNTIL
THE EXPIRATION OF SUCH SEVEN (7) DAYS.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
10