1
EXHIBIT 10.30
AGREEMENT AND RELEASE
THIS AGREEMENT is made this 29th day of December, 1998, by and between
RAND E. McNALLY ("McNally") and AQUA-CHEM, INC. (the "Company").
WHEREAS, McNally and the Company are parties to an Employment Agreement
dated as of February 5, 1997 and an Amendment, Assignment and Consent to
Assignment of Employment Agreement dated July 31, 1997 (together, the
"Employment Agreement").
WHEREAS, McNally and the Company have agreed that McNally's employment
with the Company terminated for Good Reason, as defined in the Employment
Agreement, on November 13, 1998 (the "Effective Date"); and
WHEREAS, McNally and the Company desire to resolve all aspects of the
employment relationship between them, provide for the payment of certain
compensation and benefits to McNally after the Effective Date, and reduce their
agreement to writing.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth, the sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. TERMINATION OF EMPLOYMENT. The Company and McNally mutually
acknowledge and agree that McNally's employment with the Company was terminated
by McNally as of the Effective Date for Good Reason, as defined in the
Employment
2
Agreement.
2. COMPENSATION AND BENEFITS. Subject to McNally's compliance with
the terms hereof, and subject to McNally not exercising his revocation right
under the Section hereof entitled "Right to Revoke," the Company agrees to
provide the following compensation and benefits to McNally:
2.1 SEVERANCE PAY. During the period of twelve (12) months
following the Effective Date, the Company shall make a total
of twenty-seven (27) bi-weekly severance payments to McNally
(the first payment in the amount of $3,846.40 followed by 25
payments in the amount of $7,692.80 with a final payment in
the amount of $3,846.40); provided, however, that if at the
end of such twelve (12) month period McNally, despite
continuing good faith and reasonable efforts, has been unable
to obtain employment (including self-employment), the
bi-weekly payments will be continued until he obtains
employment (including self-employment) for up to an additional
six (6) months. The payments shall be made in accordance with
the Company's normal payroll practices and shall be subject to
withholding as required by law.
2.2 INCENTIVE COMPENSATION. Notwithstanding the termination of
his employment, McNally shall be paid an amount equal to (a)
seven-twelfths (7/12) of the amount, if any, which McNally
would have
-2-
3
been entitled to receive pursuant to the Aqua-Chem, Inc.
Phantom Stock Plan for the fiscal year ending March 31, 1999,
and (b) ten-fifteenths (10/15) of the amount, if any, which
McNally would have been entitled to receive for the fifteen
(15) month period ending March 31, 1999 pursuant to the
Aqua-Chem, Inc. Management Incentive Plan, with both such
amounts subject to withholding as required by law and to be
paid at such time as such payments are made to the other
executives of the Company. The Company agrees to provide
McNally with information concerning the basis of the
calculation of the above payments and to certify that payments
to other employees covered by such plans were calculated on
the same basis.
2.3 HEALTH AND DENTAL INSURANCE. If McNally exercises his COBRA
rights with respect to medical and dental insurance, McNally
shall be entitled to receive such coverage for the twelve (12)
month period following the Effective Date (or, up to eighteen
(18) months following the Effective Date if McNally has been
unable to obtain employment or become self-employed) at a cost
equal to the amount paid by then current employees of the
Company for such coverage.
-3-
4
2.4 OUTPLACEMENT SERVICES. McNally shall be furnished with
outplacement services with such firm as the Company then
utilizes as may be necessary for a period of up to twelve (12)
months following the Effective Date paid for by the Company;
provided, however, the cost of such services shall not exceed
$15,000 in total.
2.5 COMPANY AUTOMOBILE, PERSONAL COMPUTER AND LIFE INSURANCE.
McNally shall be permitted to use his leased Company
automobile for forty-five (45) days following the Effective
Date and during such period, shall have the right to purchase
such car from the leasing company at the price specified in
the lease. McNally shall be permitted to use the Company's
personal computer furnished by the Company for his use until
the earlier of such time as he obtains other employment or
eighteen (18) months after the Effective Date. McNally may
retain the cellular telephone furnished to him by the Company,
but shall open his own account and the Company shall not be
responsible for any cellular phone charge or separate fax
telephone charges after the Effective Date. The Company hereby
acknowledges and agrees that McNally owns Zurich Kemper Life
Insurance Policy No. FL0440461 and Northwestern Mutual Life
-4-
5
Insurance Policy No. 14514274.
3. DEDUCTIONS. The Company shall deduct from payments made under this
Agreement any federal, state or local withholdings or other taxes or charges
which the Company is from time to time required to deduct under applicable law,
and all amounts payable to McNally under this Agreement are stated herein before
any such deduction(s).
4. RELEASES. In consideration of the Company's agreement to provide
the compensation and benefits described in subsections 2.1 through 2.5, McNally,
an adult individual, for himself, his heirs, personal representatives,
successors and assigns, does hereby remise, release and forever discharge the
Company and all of its past, present and future officers, directors, agents,
employees, shareholders, partners, employee benefit plans, insurers, attorneys,
divisions, parent corporations, subsidiary corporations, affiliated
corporations, successors, assigns and all persons acting by, through, under or
in concert with any of them (such entities and individuals are referred to
hereinafter collectively as the "Released Parties") of and from any and all
manner of action or actions, cause or causes of action, suits, debts, covenants,
contracts, agreements, judgments, executions, claims, demands and expenses
(including attorneys' fees and costs) whatsoever in law or equity, whether known
or unknown, which he has had, now has or may have against the Released Parties,
or any of them, for or by reason of any transaction, matter, event, cause or
thing whatsoever occurring prior to
-5-
6
or on the date of this Agreement, whether based on tort, express or implied
contract, or any federal, state or local law, statute or regulation,
specifically including but not limited to (i) any and all claims arising out of
or related to any employment, change in control or other agreement (whether oral
or written) between McNally and the Company, including but not limited to the
Employment Agreement; and (ii) any and all claims arising out of or related to
McNally's employment with the Company, including but not limited to claims
under the Wisconsin Family and Medical Leave Act, the Federal Family and Medical
Leave Act, the Wisconsin Fair Employment Act, Title VII of the Civil Rights Act
of 1964, as amended, the Age Discrimination in Employment Act of 1967, as
amended, the Americans With Disabilities Act, the Civil Rights Act of 1991, and
the Employee Retirement Income Security Act, as amended. Nothing in the waiver
or release set forth in this subsection shall be construed to constitute any
waiver or release by McNally of any rights or claims under this Agreement or any
existing rights to indemnification. In consideration of the performance by
McNally of the provisions of this Agreement and Release, the Released Parties
hereby remise, release and forever discharge McNally from any and all manner of
action or actions, cause or causes of action, suits, debts, covenants,
contracts, agreements, judgements, executions, claims, demands and expenses
(including attorneys' fees and costs) which each has or has had against him
other than any rights or claims under this Agreement.
5. ENTIRE AGREEMENT. This Agreement supersedes all other agreements
or
-6-
7
understandings (whether oral or written) between McNally and the Company and
constitutes the entire agreement of the parties. McNally acknowledges and agrees
that the compensation and benefits stated above constitute the sole liability of
the Company to him and that he shall have no right to receive any other
compensation or benefits of any kind. Nothing in this Agreement and Release is
intended to or shall affect McNally's rights or obligations under the Rush Creek
Stock & Membership Unit Restriction and Repurchase Agreement, which shall remain
in full force and effect provided, however, that upon the consummation of the
transactions contemplated by the Assignment and Transfer attached hereto
(including payment in full of all amounts due thereunder), both McNally and the
Released Parties shall be forever released and discharged from any and all
obligations and/or liabilities under the Rush Creek Stock & Membership Unit
Restriction and Repurchase Agreement.
6. AGREEMENTS NOT TO SUE. Except as provided by law, both the
Released Parties and McNally agree not to initiate or cause to be initiated any
federal, state or local lawsuit or to commence any federal, state or local
administrative action, investigation or proceeding of any kind against McNally
or the Released Parties, or any of them, based on any transaction, matter, cause
or thing occurring prior to or on the date of this Agreement.
7. WAIVER OF EMPLOYMENT. McNally agrees not to apply for or otherwise
seek employment at any time in the future with the Company, or any of its
divisions,
-7-
8
subsidiaries or affiliated entities.
8. RESTRICTIONS.
8.1 McNally acknowledges and agrees that the business of the
Cleaver-Brook Division (the "Division") of the Company is by
its nature international, the Company's business and customer
contacts have been established and maintained at great
expense, McNally, by virtue of his position with the Company,
has been privy to the Company's most confidential business
plans and strategies which, without the restrictions
hereinafter set forth, would enable McNally to compete
unfairly with the Company and, accordingly, such restrictions
are reasonable and necessary to protect the legitimate
interests of the Company. As a result, and in order to induce
the Company to enter into this Agreement and to provide the
benefits described in this Agreement, McNally agrees to the
restrictions set forth in this Section.
8.2 McNally hereby covenants and agrees that for a period of
twelve (12) months following the Effective Date he will not,
directly or indirectly, in any capacity whatsoever (whether as
an employee,
-8-
9
officer, director, consultant, partner, member, joint
venturer, agent, representative or otherwise) provide service,
advice or assistance of any nature to or acquire an ownership
interest in (or acquire the right to acquire an ownership
interest in) a Competing Business (as hereinafter defined). A
"Competing Business" shall mean and be limited to any
business, regardless of the form of organization, which (i) is
engaged in the design, manufacture and/or sale of products
which are similar in design or function to and otherwise
compete with the products which were under design by the
Division or included in the Division's product lines during
the twelve (12) month period preceding the Effective Date
(hereinafter referred to as "Competing Products") and which
(ii) sells, attempts to sell or markets (or during the twelve
(12) month period preceding the Effective Date sold, attempted
to sell or marketed) any Competing Products within the United
States and/or any foreign country within which, during the
twelve (12) month period preceding the Effective Date, the
Division sold any of its products (or was a party to an
executory contract for the sale of any of its products),
attempted to sell, or marketed any of its products other than
by means of general advertising.
-9-
10
Notwithstanding the preceding, McNally shall not be prohibited
from (i) acquiring less than five percent (5%) of the stock of
any publicly traded company which may be engaged in a
Competing Business, or (ii) being employed by or otherwise
providing services to a company which, among its various
businesses, is engaged in a Competing Business provided that
McNally is not directly or indirectly involved in any capacity
whatsoever in such Competing Business.
8.3 McNally hereby covenants and agrees that, for a period of
twelve (12) months following the Effective Date, he shall not
directly or indirectly, on behalf of himself or any other
person, entity, or business, employ or engage the services of
or seek to employ or engage the services of any person
employed by the Division or any agent who represents the
Division during the period of six (6) months prior to the
Effective Date, or otherwise encourage or entice any such
person to terminate or diminish their relationship with the
Division. If someone resigns from or is terminated by the
Company during such twelve month period, McNally may hire such
person provided that he obtains a written release from the
Company, which release shall be promptly granted by the
-10-
11
Company provided that McNally has not encouraged or enticed such
person to terminate the relationship with the Company. McNally
is not restrained from responding to reference requests
respecting Aqua-Chem employees and is not obligated to notify
Aqua-Chem of such requests.
8.4 McNally hereby acknowledges and agrees (i) his education and
experience are such that the foregoing restrictions will not
unduly interfere with his ability to earn a livelihood, (ii) the
Company would suffer irreparable harm in the event of a violation
of such restrictions, and (iii) accordingly, in addition to any
other remedies available to it, the Company shall be entitled to
injunctive relief without the posting of bond or other collateral
and McNally shall not oppose the granting of such relief. The
Company shall be entitled to all costs, including reasonable
attorneys' fees, in enforcing such restrictions or pursuing
damages for breach.
9. CONFIDENTIAL INFORMATION. The parties agree that the Company's
customer lists, prospective customer lists, long range plans, budgets,
acquisition strategies, procedures, operations, methods of operation, pricing
information, financial performance, accounting methods, business or financial
plans or information systems, reports, techniques, formulas, marketing plans or
strategies, contemplated product
-11-
12
improvements or new product developments, computer software and programs,
information relating to inventions, discoveries, processes, machines,
manufacturers, compositions, and proprietary information and other data
relating to aspects of its business (collectively, "Confidential Information")
are established and protected at great expenses and provide the Company with
substantial competitive advantage in conducting its business. The parties
further agree that by virtue of McNally's employment with the Company, he has
had access to, and was entrusted with Confidential Information, and that the
Company would suffer great loss and injury if he would disclose this
information or use it to compete with the Company. Therefore, McNally agrees
that he will not, directly or indirectly, either individually or as an
employee, officer, agent, partner, shareholder, owner, trustee, beneficiary,
co-venturer, distributor, consultant or in any other capacity, use or disclose,
or cause to be used or disclosed, any Confidential Information, without the
Company's consent. The restrictions set forth in this Section shall have the
following duration: (1) with respect to trade secret information, the
restrictions shall remain in effect for as long as such information remains a
trade secret; (2) with respect to all other Confidential Information, the
restrictions shall remain in effect for a period of two (2) years following the
Effective Date.
10. NO ADMISSION OF LIABILITY. It is understood and agreed that this
Agreement is intended to provide for the amicable separation of McNally from
-12-
13
employment with the Company and that neither this Agreement nor the furnishing
of the consideration provided for in this Agreement shall be deemed or construed
at any time or for any purpose as an admission of liability by the Released
Parties or McNally. Liability for any and all claims for relief is expressly
denied by the Released Parties or McNally.
11. NONDISCLOSURE. McNally agrees not to disclose the terms of this
Agreement to any person or entity, other than his spouse, father, tax preparer,
attorneys or accountant, without the written consent of the Company.
12. ACKNOWLEDGMENT. McNally hereby acknowledges and agrees that the
compensation and benefits provided for in this Agreement, including but not
limited to the compensation and benefits described in Section 2 above, are
greater than those to which he is entitled by any contract, employment policy or
otherwise. McNally further acknowledges that he has been advised in writing by
the Company to consult with an attorney prior to executing this Agreement, and
he has also been advised in writing by the Company that he had at least
twenty-one (21) days within which to consider this Agreement.
13. GOVERNING LAW AND FORUM. This Agreement shall be governed by and
construed under the laws of the State of Wisconsin, and any dispute arising out
of or relating to this Agreement shall be brought in a court of competent
jurisdiction in Milwaukee County, Wisconsin.
-13-
14
14. SEVERABILITY. The provisions of this Agreement are severable. If, as
a result of any challenge or action initiated by or on behalf of McNally, any
provision of this Agreement is held to be void or unenforceable or contrary to
law, the Company shall have the option to either terminate the Agreement in its
entirety, in which case the Company shall be entitled to the return of all
payments previously paid hereunder, or it may require that the balance of the
Agreement nonetheless shall remain in full force and effect.
15. VOLUNTARY AGREEMENT. McNally acknowledges that he has read this
Agreement, that he is fully aware of its contents and its legal effect, that
the preceding paragraphs recite the sole consideration for this Agreement, that
all agreements and understandings between the parties are embodied and
expressed herein, and that he has been afforded ample opportunity to consider
this Agreement and enters into this Agreement freely, knowingly and without
coercion and not in reliance upon any representations or promises made by the
Company or its counsel or the Released Parties, other than those contained
herein.
16. BINDING AGREEMENT. This Agreement shall be binding upon and inure to
the benefit of McNally's personal or legal representatives and heirs and shall
be binding upon and inure to the benefit of the Company's successors and
assigns.
17. RIGHT TO REVOKE. For a period of seven (7) days following the
execution of this Agreement, McNally may revoke this Agreement, and the
Agreement shall not
-14-
15
become effective or enforceable until this seven (7) day revocation period has
expired.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
AQUA-CHEM, INC.
/s/ [ILLEGIBLE] /s/ RAND E. MCNALLY
By: ___________________________ _________________________
Rand E. McNally
-15-
16
ACKNOWLEDGMENT
I hereby acknowledge that prior to executing the attached Agreement and
Release ("Agreement") which contains, among other provisions, a general release
and a waiver of my rights under the Age Discrimination in Employment Act, I
have been given a period of at least twenty-one (21) days to consider the
Agreement before deciding whether or not to execute it and have been advised to
and have consulted with an attorney prior to executing the Agreement.
Dated this 29 day of December 1998.
/s/ RAND E. MCNALLY
----------------------
Rand E. McNally