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 DEAN A. BERTOLINO (referred to as
“Executive”), and Airgas, Inc., on behalf of itself and
each of its related entities, affiliates, subsidiaries and
corporate parent (collectively referred to as “Airgas”
or the “Company”).
RECITALS
WHEREAS, Executive was hired by
Airgas on December 10, 2001; and
WHEREAS, Executive has notified
Airgas of his intent to resign and the Company has accepted his
resignation effective September 30, 2007 (the
“Termination Effective Date”); and
WHEREAS, Airgas desires to provide
Executive with certain payments in exchange for entering into this
Agreement, which contains a general release of all claims,
NOW, THEREFORE, the parties,
intending to be legally bound hereby and for good and valuable
consideration, the receipt and sufficiency of which are
acknowledged, agree as follows:
I.
The Company’s Obligations to Executive.
(a) In consideration of
Executive’s release of claims and covenants set forth in this
Agreement including, but not limited to, Executive’s release
of all claims for compensation, personal injury, mental and
emotional distress and attorneys’ fees, and without creating
any precedent in the administration of its policies and benefits,
Airgas agrees to pay Executive the sum of Two Hundred and
Seventy-Three Thousand, One-Hundred and Fifty Dollars ($273,150),
less taxes and other deductions required by law to be withheld (the
“Separation Payment”). The Separation Payment shall be
paid promptly following the later of the Termination Effective Date
and receipt by Airgas of an executed form of this Agreement
delivered to Dwight T. Wilson, Senior Vice President, Human
Resources, at Radnor Court, Suite 100, 259 N. Radnor-Chester
Road, Radnor, PA 19087-5283
(b) Executive shall be
reimbursed for any business expenses incurred through the
Termination Effective Date in accordance with the Company’s
applicable policies and procedures.
(c) The Company’s senior
management shall refrain from activity harmful to Executive and
shall further not make any disparaging statements concerning
Executive, either publicly or privately. The term
“disparaging” as used herein includes, without
limitation, comments or statements to the press or any individual
or entity which could adversely affect the personal or professional
conduct or reputation of Executive. For the purpose of this
paragraph, “senior management” shall mean Airgas’
Chief Executive Officer, Chief Operating Officer, Chief Financial
Officer, Chief Information Officer, General Counsel, Senior Vice
President —
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Human
Resources, Senior Vice President — Corporate Development, and
Vice President – Communications. Nothing in this paragraph
shall preclude Airgas or its representatives or agents from
honestly answering inquiries posed in connection with a legal,
adjudicatory or administrative proceeding or a government
investigation.
(d) Executive understands and
agrees that he would not and will not receive the consideration set
forth in subparagraphs (a) and (c) above, except for his
execution of this Agreement and fulfillment of the promises,
obligations and waivers contained herein. Once this Agreement is
properly executed, the parties agree that they shall have no
further obligations to each other except as provided herein, as
required by law, and/or as required by Executive’s
professional responsibilities and obligations.
II.
Executive’s Release of Claims and Post-Employment
Restrictions.
In exchange for the promises set
forth in Section I, above, Executive covenants and agrees
to:
(a) Fully and forever release,
discharge, cancel, waive, and acquit for Executive, his heirs,
executors, administrators and assigns, Airgas and each and all of
its Boards of Directors, agents, officers, trustees, owners,
employee benefit plans and their respective fiduciaries, trustees
and administrators, 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 date of execution of
this Agreement, WHETHER KNOWN TO EITHER OF 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,
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 Medical Leave Act of 1993 (FMLA), the
Fair Credit Reporting Act, the Pennsylvania Human Relations Act,
all as amended, as well as any claims arising under any other
federal, state, or local statutes, regulations or ordinances, and
common law claims of any nature including, but not limited to,
claims for wrongful termination, discrimination, breach of contract
or misrepresentation, violation of public policy, or tort claims.
Executive agrees that, except as otherwise provided in this
Agreement, Executive will not seek any further damages,
reimbursement, indemnity, compensation, fees, costs, wages or money
of any kind from the Airgas Released Parties.
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Nothing
contained in this Agreement, however, shall constitute a release by
Executive of any workers’ compensation claims, any claims
that may arise after the date this Agreement is executed and/or for
any vested benefit or stock option benefits to which Executive may
otherwise be entitled.
Notwithstanding the foregoing,
nothing in this release shall relinquish or reduce, or be construed
or interpreted as relinquishing or reducing, any rights, title or
interest that Executive may have to, in or under any applicable
director’s and officer’s or other liability insurance,
and such insurers expressly are not third party beneficiaries under
this Agreement or this Release. Airgas makes no representations
with respect to any rights Executive might have under any such
insurance policies. Further, Airgas agrees to defend and/or
indemnify Executive and hold him harmless from any claims made
against him arising out of his activities as an employee or officer
of Airgas, or trustee of any employee benefit plan, to the same
extent as Airgas is or may be obligated to or in the normal course
of business undertakes in fact to defend and/or indemnify and hold
harmless any current employee, officer or trustee of any employee
benefit plan.
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) Waive all right, title and
interest in any benefit plan of Airgas and waive and release all
claims based on or related to such benefit plans or programs other
than those benefits or rights for which Executive is vested as of
the Termination Effective Date.
(c) Refrain from activity
harmful to or make any disparaging statements concerning Airgas,
its respective officers, Boards of Directors, attorneys, agents,
employees, successors or assigns, either publicly or privately. The
term “disparaging” as used herein includes, without
limitation, comments or statements to t
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