Exhibit 10.1
SEPARATION AGREEMENT
AND
GENERAL RELEASE OF ALL CLAIMS
This Separation Agreement and General
Release of all Claims (hereinafter “Agreement”) is
entered into by and between Glenn M. Fischer
(“Executive”) and Airgas, Inc., on behalf of itself and
each of its related entities, affiliates and subsidiaries
(collectively referred to as “Airgas” or the
“Company”).
RECITALS
WHEREAS, Executive and Airgas are
parties to an Executive Employment Agreement dated
September 29, 2000 (the “Employment Agreement”);
and
WHEREAS, the parties have agreed that
Executive’s employment with Airgas shall terminate effective
January 14, 2005 (the “Termination Effective
Date”); and
WHEREAS, Executive and Airgas wish to
terminate the Employment Agreement for all purposes and provide in
this Agreement for their respective rights and obligations; and
WHEREAS, concurrently herewith,
Executive has submitted his resignation as an officer of Airgas and
as a director of National Welders Supply Company, Inc.;
NOW, THEREFORE, the parties hereto,
intending to be legally bound hereby and for good and valuable
consideration, the receipt and sufficiency of which are
acknowledged, agree as follows:
I.
(a) Executive’s employment
with Airgas shall terminate on the Termination Effective Date.
(b) The Employment Agreement
shall terminate for all purposes and be of no further force or
effect on the later of (i) the date Airgas receives an
executed copy of this Agreement from
Executive which has been
sent to the address identified in Section VIII hereof, and
(ii) the date that the Revocation Period defined in
Section VIII hereof terminates (such later date the
“Release Effective Date”).
(c) Within ten
(10) business days after the Release Effective Date, Airgas
shall pay Executive compensation in the amount of $1,374,046 plus
$29,947.20 representing unused vacation pay for calendar year 2005,
less such deductions and amounts to be withheld by reason of the
compensation and other benefits provided for herein as is required
by applicable laws and regulations.
(d) Airgas agrees that the Stock
Option (originally for 60,000 shares) granted to Executive on or
about May 7, 2001 shall be deemed fully vested on the Release
Effective Date. Airgas further agrees to waive as to all Stock
Options previously granted to Executive and as to all shares of
common stock issued or issuable upon the exercise of such Stock
Options (i) its right to cause the forfeiture of the right to
exercise such Stock Options or to require the return of shares of
common stock previously issued upon the exercise of such Stock
Options as provided for in Section 6(g) of the 1997 Stock Option
Plan and (ii) its right to withhold delivery of shares pending
the resolution of an inquiry as provided in any instrument
evidencing the grant of such Stock Options.
(e) Within ten
(10) business days after the Release Effective Date, Airgas
shall pay to Executive the sum of $10,000 to reimburse him for
expenses incurred or to be incurred in connection with the
employment separation provided for herein.
(f) Airgas will provide
Executive with separate notice of right to elect continued benefits
coverage under the Airgas group health plan pursuant to the
Consolidated Omnibus Budget Reconciliation Act (COBRA) and the
Employee Retirement Income Security Act (ERISA), both as
amended.
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(g) The parties hereby agree to
the language set forth in Exhibit II to be used in any press
release relating to Executive’s separation of employment.
II.
Except for the obligations of the
parties as expressly described in this Agreement:
(a) Executive hereby fully and
forever releases, discharges, cancels, waives, and acquits for
Executive, his heirs, executors, administrators and assigns, Airgas
and each and all of its Boards of Directors, agents, officers,
owners, employees, attorneys, successors and assigns (the
“Airgas Released Parties”), of and from any and all
rights, claims, demands, causes of action, obligations, damages,
penalties, fees, costs, expenses, and liability of any nature
whatsoever, including personal injury claims, which Executive has,
had or may have had against any of the Airgas Released Parties,
arising out of, or by reason of any cause, matter, or thing
whatsoever existing as of the later of the Termination Effective
Date and the date of the execution of this Agreement by Executive,
WHETHER KNOWN TO THE PARTIES AT THE TIME OF EXECUTION OF THIS
AGREEMENT OR NOT .
This FULL WAIVER OF ALL CLAIMS
includes, without limitation and to the maximum extent permitted by
law, claims for attorneys’ fees, costs, any claims, demands,
or causes of action arising out of, or relating in any manner
whatsoever to, the employment and/or cessation of that employment,
the Employment Agreement and/or the termination of such Employment
Agreement, such as, BUT NOT LIMITED TO , any claim, lawsuit
or other proceeding arising under the Older Worker’s Benefit
Protection Act (OWBPA), the Age Discrimination in Employment Act
(ADEA), the Civil Rights Act of 1866 (Section 1981), Title VII
of the Civil Rights Act of 1991, the Americans with Disabilities
Act (ADA), the Labor Management Relations Act (LMRA), the National
Labor Relations Act (NLRA), ERISA, COBRA, the Fair Labor Standards
Act (FLSA), the Family and
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Medical Leave Act of 1993
(FMLA), all as amended, as well as any claims arising under any
other federal, state, or local statutes and common law claims of
any nature including, but not limited to, claims for wrongful
termination, harassment, discrimination, breach of contract or
misrepresentation. Nothing contained in this Agreement, however,
shall constitute a release by Executive of any vested benefit or
stock option benefits to which Executive may otherwise be entitled
and/or any claims for workers’ compensation or unemployment
compensation.
Executive further agrees that, while
this release does not prevent Executive from filing a charge with
or participating in proceedings before the Equal Employment
Opportunity Commission (“EEOC”) and/or from challenging
the knowing and voluntary nature of this Agreement under the ADEA,
Executive acknowledges that Executive has not filed any claims or
commenced any action with an administrative agency or court
regarding any claims released in this Agreement.
(b) Anything in this Agreement
to the contrary notwithstanding, Executive shall continue to enjoy
the benefit of any indemnification rights currently provided for
under the Company’s By-Laws or the General Corporation Law of
the State of Delaware, for acts and omissions of Executive
occurring prior to the Termination Effective Date as well as the
benefit of any insurance policies currently maintained by Airgas
and covering acts and omissions of Executive occurring prior to the
Termination Effective Date.
(c) Executive hereby waives all
right, title and interest in any benefit plan of Airgas and waives
and releases all claims based on or related to such benefit plans
or programs other than for which Executive is vested as of the
Termination Effective Date.
(d) Executive shall resign from
his position as President of the Compressed Gas Association
effective within ten (10) business days after the Release
Effective Date.
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(e) Within five
(5) business days after the Release Effective Date, Executive
shall deliver to the Chief Executive Officer of Airgas or his
designee:
(i) a
memorandum describing in reasonable detail the key issues that he
feels should be addressed by Airgas and his strategy and progress
to date in addressing such issues; and
(ii) a
list of the names, addresses and telephone numbers of his key
contacts at suppliers and distributors with whom he has dealt
during the past 24 months along with any information that he
feels may be valuable in dealing effectively with those
contacts.
Airgas hereby fully and forever
releases, discharges, cancels, waives, and acquits for Airgas, its
successors and assigns, Executive and each of his heirs, executors
and administrators (the “Executive Released Parties”),
of and from any and all rights, claims, demands, causes of action,
obligations, damages, penalties, fees, costs, expenses, and
liability of any nature whatsoever, which Airgas has, had or may
have had against any of the Executive Released Parties, arising out
of, or by reason of any cause, matter, or thing whatsoever existing
as of the later of the Termination Effective Date and the date of
the execution of this Agreement by Airgas, WHETHER KNOWN TO THE
PARTIES AT THE TIME OF EXECUTION OF THIS AGREEMENT OR NOT.
This FULL WAIVER OF ALL CLAIMS
includes, without limitation and to the maximum extent permitted by
law, claims for attorneys’ fees, costs, any claims, demands,
or causes of action arising out of, or relating in any manner
whatsoever to, the employment and/or cessation of that employment,
the Employment Agreement and/or the termination of such Employment
Agreement, such as, claims arising under any other federal, state,
or local statutes and common law claims of any nature including,
but not limited to, claims for breach of contract or
misrepresentation.
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III.
(a) Executive agrees:
(i) To
at all
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