EXHIBIT 10.28
AGREEMENT AND RELEASE
For good and valuable consideration, receipt of which is hereby
acknowledged, Charles Fernald (hereinafter referred to as "Employee") and
Chemical Leaman Corporation together with each and every one of its
predecessors, successors (by merger or otherwise), parents, subsidiaries,
affiliates, assigns, directors, officers, employees and agents whether present
or former (hereinafter collectively referred to as the "Employer"), hereby agree
as follows:
1. In view of the change in operation at the Employer, the Employee hereby
voluntarily accepts a paid Leave of Absence with Employer effective Friday,
June 17, 1994.
2. The Employee agrees that he will treat as confidential all knowledge and
information obtained by him during the course of his employment regarding
the Employer's existing, planned or anticipated method of doing business,
operation or marketing or selling strategies, and that he will not
disclose, disseminate, reproduce, retain, utilize or otherwise make
available in any manner whatsoever any such confidential or proprietary
information to any person, firm, corporation or other entity without the
prior written consent of Employer. The Employee further acknowledges and
agrees that all designs, papers and/or other records of any kind in his
possession pertaining to his work for the Employer are the sole and
exclusive property of the Employer, and shall be delivered into the
possession of the Employer concurrently with the
delivery of this Agreement.
3. The Employee agrees that he shall not directly or indirectly, reveal,
divulge, disseminate, disclose or appropriate for his own use or for the
use of any third party any trade secrets or confidential information of the
company to any individual, firm, person or corporation.
4. The Employee further agrees that he shall not solicit customers of the
Employer for any purpose other than to seek job leads, to network, or for
references. The Employee further agrees that he shall not contact any
employees of the Employer for the purpose of soliciting the employees to
accept employment with any other individual, person, firm, corporation or
business entity except with the prior written consent of the Employer.
5. The Employee agrees that he shall cooperate with Employer in the future
should the Employer need information, testimony or other material relating
to the Employee's employment with the Employer. The Employer agrees to
reimburse the Employee for any expenses incurred or loss suffered as a
result of providing such cooperation.
6. The Employer shall provide Employee with benefits and compensation set
forth in Exhibit "A" attached hereto and incorporated herein.
7. In consideration for the foregoing, the Employee (for himself and anyone
who has or may have a claim by or through him) hereby releases and
discharges the Employer from any and all
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suits, causes of action, claims, demands, charges, complaints, obligations
or any actions of any sort whatsoever, whether in law or equity, direct or
indirect, which the Employee ever had, now has, or hereinafter can or may
have against the Employer relating to or in any way arising out of any
aspect of his employment with and/or his separation from employment with
the Employer. This Release specifically includes but is not limited to any
and all claims for wrongful discharge, breach of contract (whether express
or implied), any and all forms of employment discrimination in violation of
any federal, state or local statute or ordinance or executive order or
common law doctrine (including but not limited to claims for discrimination
on the basis of race, color, religion, sex, national origin, age and/or
mental or physical handicap, whether asserted under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq., the Civil
Rights Act of 1870, 42 U.S.C. Section 1981, The Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. Section 621 et seq., The
Rehabilitation Act of 1972, as amended, 29 U.S.C. Section 701 et seq.,
and/or under any other applicable federal, state or local
antidiscrimination law or common law doctrine), any and all suits in tort
(including but not limited to any claims for misrepresentation, defamation,
interference with contract or with prospective economic distress, and
negligence) and/or any and all other claims for additional compensation or
damages of whatsoever kind arising
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in connection with the Employee's employment and/or separation from
employment with the Employer. In addition, this Agreement and Release
specifically includes all claims for costs and/or attorneys' fees, if any,
incurred by the Employee in connection with any aspect of his employment
relationship and/or his separation from employment with the Employer.
8. The Employee specifically understands and hereby agrees that the provisions
of this Agreement and Release extend to all of the aforementioned actions,
whether presently matured or not matured, known or unknown, suspected or
unsuspected by him, and further agrees that this constitutes an essential
material term of this Agreement. The Employer and Employee understand and
acknowledge that this Agreement and Release constitutes a binding legal
contract, and expressly consent that the Agreement shall be given full
force and effect according to each and all of its express terms and
provisions.
9. Employee agrees that the terms of this Agreement and Release are
confidential and will be discussed by the Employee only with counsel, and
if the Employee so chooses, with members of his immediate family. Under no
circumstances may the terms of this Agreement, or its acceptance or
rejection, be discussed by the Employee, the Employee's counsel, or any
members of the Employee's immediate family, with any other individual.
Breach of this Agreement shall, at Employer's option, negate the terms of
this Agreement.
10. It is specifically understood and agreed that this Agreement
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and Release shall not in any way be construed as an admission that the
Employer has violated any federal, state or local law or common law duty,
or that any action taken by the Employer with respect to the Employee has
been unwarranted, unjustified, discriminatory or otherwise unlawful.
11. It is specifically understood and agreed that the provisions of this
Agreement and Release are severable, and that, if any provision of this
Agreement and Release or if the application thereof under any circumstances
if found to be invalid or unenforceable, all other provisions that can be
given effect without the invalid or unenforceable provision shall remain
valid and enforceable.
12. The Employee hereby acknowledges that he is acting of his own free will,
that he has been afforded a period of not less than twenty-one (21) days
within which to read and consider the terms of this Agreement and Release,
that he has been encouraged to seek the advice of counsel with respect to
this Agreement and Release, and that he fully understands all of the
provisions and effects of this document. In addition, the Employee hereby
acknowledges that neither the Employer nor any of its agents,
representatives, or attorneys have made any representations concerning the
terms of this Agreement and Release other than those contained herein.
13. The Employee acknowledges that he is fully aware that he remains free to
revoke this Agreement and Release for a period of seven (7) days following
the execution by him of this
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Agreement and Release, by providing written notice to the Employer of his
intention to revoke within the seven (7) day period in question. The
Employee further understands that this Agreement shall not become effective
or enforceable until the seven (7) day revocation period has expired.
/s/ Charles E. Fernald
----------------------------
Employee
Sworn and Subscribed to before me
this 10th day of June, 1994.
/s/ LINDA M. EPPOLITO
- --------------------------------
Notary Public
CHEMICAL LEAMAN CORPORATION
By: /s/ DENNIS R. COPELAND
-------------------------
DENNIS R. COPELAND
Title: V.P. Human Resources &
Labor Relations
Sworn and Subscribed to before me
this 9th day of June, 1994.
/s/ JEANNE M. EELDYK
- --------------------------------
Notary Public
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APPENDIX "A"
1. Last day worked will be Friday, June 17, 1994.
2. A bonus of $90,000 will be paid to the Employee upon acceptance of this
agreement.
3. Employee will begin a paid Leave of Absence starting June 18, 1994 and will
be paid as follows:
a. June 18, 1994 to June 17, 1995; $131,729
b. June 18, 1995 to June 17, 1996; $100,000
c. June 18, 1996 to June 17, 1997; $100,000
d. June 18, 1997 to June 17, 1998; $100,000
e. June 18, 1998 through December 31, 2004 $10,000 per year
checks will be paid on a normal pay date cycle and mailed to your home.
4. In return for the above the Employee agrees to make himself available a
minimum of ten (10) days per month during the first four years and as
requested thereafter.
5. Since this is a paid Leave of Absence pension credit will be accumulated
toward retirement.
6. If the Employee obtains paid employment at any time during the second,
third or fourth year, the amount to be received will be reduced to $50,000
per year. (If the employment is for a non-profit organization or
self-employed, e.g. consulting, and the compensation is less than $50,000,
the $100,000 referred to in item two (2) will not be reduced.) If that
amount has been exceeded in the year in which other employment is obtained
then the payments for that year will cease at the date of employment.
7. Benefits will be continued during the paid Leave of Absence except if other
employment is obtained in which benefits are offered, benefits under the
Chemical Leaman Corporation plan will cease.
8. Long term disability and short term disability cease as of June 18, 1994.
9. The split dollar policy including cash value will be turned over to the
employee.
10. The DBO policy is no longer applicable to the Employee effective June 18,
1994.
11. Vacation Pay: You will be entitled to six (6) weeks of vacation to be paid
in a lump sum after June 17, 1994.
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12. Personal Holiday: You are entitled to one (1) personal holiday for 1994 if
this has not yet been taken.
13. 401(k): 401(k) contributions can only be deducted through your last day of
active employment which is June 17, 1994.
14. Outplacement: You are eligible to participate in a program at Chemical
Leaman's expense to assist you in finding other employment. Any questions
pertaining to outplacement should be discussed with Dennis Copeland.
15. Please address any questions regarding benefits to Jean Martin in the Human
Resource Department.
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