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 times keep secret and retain i
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