Exhibit 10.8
GENERAL RELEASE AND
SEPARATION AGREEMENT
Maritrans General Partner Inc. ("Employer" or "Maritrans") and Xxxxxxx Xxxxxx
("Employee") desire to end their employment relationship in an amicable manner
on or before December 15, 2004.
WHEREAS, Employee was hired on March 7, 2000, and served as Employer's
Executive Vice President, Maritrans Operating Co. L.P. from July 30, 2003
through December 15;
WHEREAS, Employer will pay Employee his base salary compensation and
accrued vacation due him for a period of three (3) months as a severance payment
in exchange for entering into this General Release and Separation Agreement;
WHEREAS, Employee represents that he is 43 years old, his date of birth
being February 9, 1961.
NOW THEREFORE, in consideration of the mutual undertakings set forth
below, this General Release and Separation Agreement will govern Employee's
separation from employment with Employer:
1. SEVERANCE In consideration for entering into this General
Release and Separation Agreement and in exchange for the general
releases and agreements set forth herein, Employer agrees to pay
Employee a $50,000.00 Severance Payment, representing three
months of his annualized base salary of $200,000.00, less
applicable taxes and withholdings as required by federal, state
and/or local law. The payments shall be made bi-weekly over the
next three months with the first payment being made at the
expiration of the 7-day revocation period provided for under
Paragraph 13 below.
2. ACCRUED VACATION AND EXPENSE ACCOUNT The Employee will also be
paid, at the expiration of the 7-day revocation period provided
for under Paragraph 13 below, all unused vacation time and all
reimbursable business expenses, less applicable taxes and
withholdings. Employee agrees that his accrued vacation time for
this calculation is equivalent to nine days.
3. MEDICAL AND DENTAL BENEFITS Employer-provided medical, dental,
and medical related treatment through Employer's health plan will
be continued through April 30, 2005, at which time Employee will
receive information regarding Employee's COBRA continuation
options.
4. COMPLIANCE The payments of all amounts hereunder are conditioned
upon Employee's compliance with the terms and obligations of this
General Release and Separation Agreement, including without
limitation the confidentiality covenants set forth herein. The
parties agree that, except as required by law or agreement,
neither will disclose to any person or entity, other than their
financial or legal advisors, any of the terms and provisions of
this General Release and Separation Agreement. Notwithstanding
the foregoing, Employee understands and agrees that the Employer
shall be entitled to make all filings with the Securities and
Exchange Commission and New York Stock Exchange as the Employer
deems appropriate. Employee agrees that whether he has failed to
comply with any of the terms and conditions set forth under this
General Release and Separation Agreement shall be determined
within the reasonable discretion of Employer.
5. EMPLOYEE'S AGREEMENTS
a. GENERAL RELEASE In exchange for the payment and benefits
contained in this General Release and Separation Agreement,
Employee (on behalf of Employee or any other person who may be
entitled to make a claim on Employee's behalf or through
Employee) hereby completely releases and forever discharges
Employer, and Employer's officers, directors, agents,
representatives, employees, counsel, affiliated organizations,
parents, subsidiaries and related companies, successors and
assigns (the "Releasees") from any and all past, present or
future alleged claims, demands, obligations, actions, causes of
action, rights, damages, punitive damages, attorneys' fees,
costs, expenses and compensation of any nature whatsoever,
including but not limited to all claims for breach of contract,
invasion of privacy, defamation, tortious interference with a
business or contractual relationship, retaliation and
discrimination under Title VII of the Civil Rights Act of 1964,
as amended by the Civil Rights Act of 1991, 42 U.S.C. Section
2000e, et. seq., the Florida Civil Rights Act of 1992, Florida
Statutes Section 760.01 et. seq., the Americans with Disabilities
Act, the Employee Retirement Income Security Act, the Fair Labor
Standards Act, the Family and Medical Leave Act, the Worker
Adjustment Retraining Notification Act, the Older Workers Benefit
Protection Act, the Age Discrimination in Employment Act, the
Equal Pay Act, Section 1981, and any other federal, state or
local human or civil rights statutes, laws, rules, regulations,
or public policy, or any other action or Claim based upon any
conduct from the beginning of the world up to and including the
date this General Release and Separation Agreement is executed by
the parties, which Employee now has or which may hereafter
accrue, or otherwise be acquired against Employer, except for
Employee's right to enforce the terms of this General Release and
Separation Agreement and his right to benefits that he accrued
and which are due to him under any benefit plan of the Employer
or an affiliate .
b. CONFIDENTIALITY OF TERMS Employee agrees that he will
maintain the terms of this General Release and Separation
Agreement, the fact that there was any payment hereunder, and any
and all matters relating to this agreement in absolute and
complete confidentiality, except where disclosure is required by
law. Employee acknowledges that this confidentiality provision is
an integral part of this General Release and Separation Agreement
and was a material inducement for Employer to pay the Severance
payment referenced in Paragraph 1 of this General Release and
Separation Agreement. Notwithstanding the foregoing, Employee
understands and agrees that the Employer shall be entitled to
make all filings with the Securities and Exchange Commission and
New York Stock Exchange as the Employer deems appropriate.
c. NON-DISPARAGEMENT The Employee agrees not to make any
defamatory or negative comments to any other person or entity
regarding the Employer, or any of its parents, subsidiaries or
affiliates, and Employee further agrees not to make any
defamatory, disparaging or negative comment regarding the
officers and directors of Employer or any of its parents,
subsidiaries or affiliates, and not to induce or encourage any
other person to make such comment.
d. CONFIDENTIALITY OF KEY MARITRANS BUSINESS MATTERS
Employee agrees that he will maintain any and all details of key
Maritrans business matters in absolute and complete
confidentiality including details of products and services
offered, freight rates, contract terms, innovations, designs,
patent information, ideas, plans, trade secrets, proprietary
information, distribution and sales methods and systems, sales
and profit figures, customer and client lists, strategic plans,
and relationships between the Company and its affiliates and
other distributors, customers, clients, suppliers and others who
have business dealings with the Company and its affiliates.
Employee acknowledges that this confidentiality provision is an
integral part of this General Release and Separation Agreement
and was a material inducement for Employer to pay the Severance
Payment referenced in Paragraph 1 of this General Release and
Separation Agreement.
e. REFRAIN FROM ENTERING PREMISES Employee shall not enter
the premises, vessels or offices of Employer at any time for any
reason unless such entry is specifically approved by the
President of Maritrans
General Partner Inc., or his designee. In addition, Employee
shall not meet or have contact with any current employees during
their working hours at Maritrans without specific approval by the
President of Maritrans Partner Inc., or his designee.
f. COOPERATION WITH INVESTIGATIONS Employee shall cooperate
with investigations conducted by Employer and shall provide
truthful and complete information to Employer in connection with
such investigations or any legal action that may be instituted by
or against Employer or the Releasees.
g. RETURN OF EMPLOYER'S PROPERTY Within one (1) day of
Employee's execution of this Agreement, Employee shall return all
property of Employer.
h. NO OBLIGATION TO HIRE In entering into this General
Release and Separation Agreement, Employee represents that he
will not seek employment with Employer. In the event Employee
seeks employment with Employer, Employer shall have no obligation
to hire him. Moreover, if Employer denies Employee employment or
other remunerative relationship, Employee agrees that such would
not constitute retaliation or discrimination in violation of any
laws.
i. NO OTHER PAYMENTS DUE. Employee agrees and acknowledges
that Employer, on a timely basis, has paid, or agreed to pay, to
Employee all other amounts due and owing based on his prior
services except for payments that may become due under this
General Release and Separation Agreement.
6. CAPACITY TO EXECUTE Employee agrees that this General Release
and Separation Agreement has been executed knowingly and of
Employee's own free will and that he has had an opportunity to,
and Employer has recommended that he, consult and rely on the
advice of his attorneys or has, alternatively, decided not to
retain an attorney to assist him in this matter. Employee
acknowledges that he has 21 days within which to consider this
General Release and Separation Agreement, and that, if he chooses
to sign it before then, he represents that he has had sufficient
time to consider this General Release and Separation Agreement.
7. NON-COMPETITION
a. For a period of one year hereafter, the Employee will
not, unless acting with the prior written consent of the Board,
directly or indirectly, own, manage, operate, join, control,
finance or participate in the ownership, management, operation,
control or financing of, or be
connected as an officer, director, employee, partner, principal,
agent, representative, consultant or otherwise with or use or
permit his name to be used in connection with, any business or
enterprise engaged in a geographic area in which the Company or
any of its affiliates is operating either during his employment
by the Company or on the date his employment terminated, as
applicable, presently on the East Coast of the United States or
at any port in the Gulf of Mexico (whether or not such business
is physically located within those areas) (the "Geographic
Area"), in any business that is a customer of, or competitive to,
a business from which the Company or any of its affiliates derive
at least five percent of its respective gross revenues either
during his employment by the Company or on the date his
employment terminated, as applicable. It is recognized by the
Employee that the business of the Company and its affiliates is,
and the Employee's connection therewith was, involved in activity
throughout the Geographic Area, and that more limited
geographical limitations on this non-competition covenant are
therefore not appropriate. The Employee also shall not, directly
or indirectly, during such one-year period (a) solicit or divert
business from, or attempt to convert any client, account or
customer of the Company or any of its affiliates, whether
existing at the date hereof or acquired during Employee's
employment nor (b) following Employee's employment, solicit, hire
or attempt to hire any then employee of the Employer or of any of
its affiliates.
b. The foregoing restriction shall not be construed to
prohibit the ownership by the Employee of less than one percent
(1%) of any class of securities of any corporation which is
engaged in any of the foregoing businesses having a class of
securities registered pursuant to the Securities Exchange Act of
1934, provided that such ownership represents a passive
investment and that neither the Employee nor any group of persons
including Employee in any way, either directly or indirectly,
manages or exercises control of any such corporation, guarantees
any of its financial obligations, otherwise takes any part in its
business, other than exercising his rights as a shareholder, or
seeks to do any of the foregoing.
8. EQUITABLE RELIEF
(a) Employee acknowledges that the restrictions contained in
Paragraphs 5 and 7 hereof are reasonable and necessary to protect
the legitimate interests of the Company and its affiliates, that
the Company would not have entered into this Agreement in the
absence of such restrictions, and that any violation of any
provision of those Paragraphs
will result in irreparable injury to the Company. The Employee
represents that his experience and capabilities are such that the
restrictions contained in Paragraph 7 hereof will not prevent the
Employee from obtaining employment or otherwise earning a living
at the same general level of economic benefit as anticipated by
this Agreement. The Employee further represents and acknowledges
that (i) he has been advised by the Company to consult his own
legal counsel in respect of this Agreement, and (ii) that he has
had full opportunity, prior to execution of this Agreement, to
review thoroughly this Agreement with his counsel.
(b) In the event of a violation of the provisions of
Paragraphs 5 or 7, the Employee agrees that the Company shall be
entitled to preliminary and permanent injunctive relief, without
the necessity of proving actual damages or posting a bond and
liquidated damages in an amount not less than the Severance
Payment, as well as an equitable accounting of all earnings,
profits and other benefits arising from any violation of
Paragraphs 5d. or 7 hereof, all of which rights shall be
cumulative and in addition to any other rights or remedies to
which the Company may be entitled. In the event that any of the
provisions of Paragraphs 5 or 7 hereof should ever be adjudicated
to exceed the time, geographic, service, or other limitations
permitted by applicable law in any jurisdiction, then such
provisions shall be deemed reformed in such jurisdiction to the
maximum time, geographic, service, or other limitations permitted
by applicable law.
(c) The Employee irrevocably and unconditionally (i) agrees
that any suit, action or other legal proceeding arising out of
Paragraphs 5 or 7 hereof, including without limitation, any
action commenced by the Company for preliminary and permanent
injunctive relief or other equitable relief, may be brought in
the United States District Court for the District of Florida, or
if such court does not have jurisdiction or will not accept
jurisdiction, in any court of general jurisdiction in Tampa,
Florida, (ii) consents to the non-exclusive jurisdiction of any
such court in any such suit, action or proceeding, and (iii)
waives any objection which Employee may have to the laying of
venue of any such suit, action or proceeding in any such court.
Employee also irrevocably and unconditionally consents to the
service of any process, pleadings, notices or other papers in a
manner permitted by the governing law. This agreement shall be
governed by and interpreted under the state of Florida without
giving effect to any conflict of laws provisions. In the event of
a lawsuit by either party to enforce the provisions of this
Agreement, the prevailing party shall be entitled to recover
reasonable costs, expenses and attorney's fees from the other
party.
(d) Employee agrees that he will provide, and that the
Company may similarly provide a copy of Paragraphs 5d. or 7
hereof to any business or enterprise (i) which he may directly or
indirectly own, manage, operate, finance, join, control or
participate in the ownership, management, operation, financing,
control or control of, or (ii) with which he may be connected
with as an officer, director, employee, partner, principal,
agent, representative, consultant or otherwise, or in connection
with which he may use or permit his name to be used; provided,
however, that this provision shall not apply in respect of
Paragraph 7 hereof after expiration of the time period set forth
therein.
9. CONSEQUENCES OF BREACH Employer and Employee agree that
irreparable harm would occur in the event that Employee breaches
the terms and conditions of this General Release and Separation
Agreement. In the event Employee breaches any of his obligations
under this General Release and Separation Agreement, Employer's
obligations under this Agreement shall immediately cease.
Employee will not be entitled to the Severance Payment provided
for under this General Release and Separation Agreement. Employee
agrees to submit to the jurisdiction of Florida courts for
purposes of any action relating to this General Release and
Separation Agreement and that the determination of whether
Employee has breached any of the terms and conditions set forth
under this General Release and Separation Agreement shall be
within the reasonable discretion of Employer.
10. SEVERABILITY If any term or other provision of this General
Release and Separation Agreement is invalid, illegal or incapable
of being enforced by any rule of law or public policy, then all
other conditions and provisions of this
General Release and Separation Agreement shall nevertheless
remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to
modify this General Release and Separation Agreement so as to
effect the original intent of the parties as closely as possible
in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
11. CONSTRUCTION This General Release and Separation Agreement shall
be governed by and construed in accordance with the laws of the
State of Florida, notwithstanding any choice of law rules to the
contrary.
12. UNDERSTANDING Employee understands and agrees that the terms and
conditions of this General Release and Separation Agreement
constitute the full and complete understandings, agreements and
promises of the parties, and that there are no oral or written
understandings, agreements, promises, representations or
inducements made or offered other than those set forth in writing
in this General Release and Separation Agreement.
13. REVOCATION Employee may revoke and cancel this General Release
and Separation Agreement in writing at any time within seven (7)
days after his execution thereof by providing written
notification of revocation to Xxxxxxxx Xxxxxxxxx, President of
Maritrans General Partner Inc. For this written revocation to be
effective, Employer must receive it no later than the close of
business of the seventh (7th) calendar day after Employee
executes the General Release and Separation Agreement. If
Employee does so revoke, this General Release and Separation
Agreement becomes null and void and he shall not be entitled to
the benefits provided herein. This General Release and Separation
Agreement shall not become effective until after the expiration
of the 7-day revocation period; after such time, if there has
been no written revocation as provided herein, this General
Release and Separation Agreement shall be fully effective and
enforceable, and Employer shall make payment as provided for
under this General Release and Separation Agreement.
14. BINDING EFFECT This General Release and Separation Agreement and
all covenants contained herein shall be binding upon and for the
benefit of the parties hereto and their respective heirs,
executors, affiliates, administrators, successors, and assigns.
Executed in Tampa, this 15th day of December, 2004.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Xxxxxxx Xxxxxx, Employee
Witnesses to Employee's signature:
/s/ Xxxxxxxxx Xxxxxxx
--------------------------------------------------
Print Name: Xxxxxxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxxx
--------------------------------------------------
Print Name: Xxxxx Xxxxxxxx
ACKNOWLEDGEMENT
STATE OF FLORIDA )
COUNTY OF HILLSBOROUGH )
The foregoing instrument was acknowledged before me this 15th day of
December, 2004, by Xxxxxxx Xxxxxx who is personally known to me/has produced
driver's license as identification.
(SEAL)
/s/ Xxxxxx Xxxxxxx
---------------------------------------
Printed/Typed
Name: Xxxxxx Xxxxxxx
---------------------------------------
Notary Public-State of Florida
Commission Number: DD038385
Executed in Tampa, this 15th day of December, 2004.
Maritrans General Partner Inc.
By: /s/ Xxxxxxxx Xxxxxxxxx
-----------------------------------------------
Printed Name: Xxxxxxxx Xxxxxxxxx
Title: President of Maritrans General Partner Inc.
Witnesses to Employer's signature:
/s/ Xxxxxxxx Xxxxxxx
--------------------------------------------------
Print Name: Xxxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxxx
--------------------------------------------------
Print Name: Xxxxxxx Xxxxxxxx
ACKNOWLEDGEMENT
STATE OF FLORIDA )
COUNTY OF HILLSBOROUGH )
The foregoing instrument was acknowledged before me this 15th day of
December, 2004, by Xxxxxxxx Xxxxxxxxx, of Maritrans, who is personally known
to me ____________________________ as identification.
(SEAL)
/s/ Xxx X. Xxxxx
---------------------------------------
Printed/Typed
Name: Xxx X. Xxxxx
Notary Public-State of Florida
Commission Number: DD225355
