Exhibit 10-1
September 12, 2000
Xx. Xxxxxx X. Xxxxxxx
00 Xxxxxxx Xxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Re: Separation Agreement
--------------------
Dear Xxxxx:
This letter, upon your signature, will constitute the entire agreement
("Agreement") between you and Xxxxx & Xxxxx Company (the "Company" or "G&E"),
and all of its respective subsidiaries, divisions, affiliates, and related
entities (collectively, the "Company") regarding the termination of your
employment with the Company.
1. You hereby resign as an officer of the Company effective August 25, 2000,
and you agree to resign as an employee of the Company, effective October
31, 2000 (your "Termination Date"). Between the date of this Agreement and
your Termination Date, you will essentially assist the Company in
transitioning your duties and responsibilities to other persons at G&E.
2. (a) Because you and G&E have an at-will employment relationship, you
acknowledge that your employment can be terminated at any time, with
or without notice and without a reason. The Company has adopted the
Executive Incentive Bonus and Severance Plan effective June 1, 2000
(the "Bonus and Severance Plan"). Pursuant to the Bonus and Severance
Plan, you will receive the following:
(i) On September 15, 2000, a lump sum in cash in an amount equal to
Fifty Thousand Dollars ($50,000) representing twenty percent
(20%) of your annual base salary; and
(ii) On October 31, 2000, a lump sum in cash equal to One Hundred
Thousand Dollars ($100,000) representing eighty percent (80%)
of your calendar year 2000 target bonus pursuant to the
Executive Incentive Compensation Program for Calendar Year 2000
(the "Target Bonus"); following the 2000 year-end close, the
actual Target Bonus will be calculated and if the calculation
results in a higher Target Bonus, the incremental amount will
be paid to you at the same time Target Bonuses are paid to
other covered executives of the Company; and
(iii) Cash payments of Twenty Thousand Eight Hundred Thirty-Three and
33/100 Dollars ($20,833.33) per month, for twelve months,
payable semi-monthly, or an aggregate total of Two Hundred
Fifty Thousand Dollars($250,000), representing one year's base
salary; and
(iv) Seventeen Thousand Four Hundred Twenty-Six and 50/100 Dollars
($17,426.50), representing the annual equivalent of your
Company benefits for
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healthcare, dental, vision and perquisites for the twelve month
period after the Termination Date, which has been grossed up to
cover your income taxes, payable over a period of twelve (12)
months, semi-monthly; during this period, the Company will
provide life insurance and disability coverages that are the
equivalent of your current level of coverage;
all of the above to be reduced by withholding taxes and
customary payroll deductions.
(b) In addition, pursuant to the Bonus and Severance Plan, the Company
hereby extends the expiration date of your un-exercised, vested
(through October 31, 2000) options to purchase 69,000 shares of stock
in the Company at $4.25 per share, pursuant to the Company's 1990
employee Stock Option Plan from ninety days after your Termination
Date to October 31, 2001.
(c) In addition, you will be paid your accrued but unused vacation time
pay, less withholding taxes and customary payroll deductions, through
and on your Termination Date.
3. Upon execution of this Agreement, you will no longer be an Executive
Officer of the Company and will thereafter no longer be covered by or
eligible to receive any compensation or benefits pursuant to the Executive
Change of Control Plan, adopted by the Company Board of Directors on May
10, 1999, as amended (the "CIC Plan"). In consideration of an extension of
your Termination Date to October 31, 2000 and your acceptance of this
Agreement, and provided you have fulfilled your other obligations set forth
in this Agreement, the Company shall provide you with the following
benefits. In the event a Change of Control (as defined in the CIC Plan)
occurs after your Termination Date and prior to December 31, 2000 (or if a
contract for same is executed by all parties after your Termination Date
and prior to December 31, 2000 and the Change of Control occurs after
December 31, 2000), then, within 30 days after the occurrence of a Change
of Control you shall receive in a lump sum in cash (i) One Hundred Fifty-
Six Thousand Two Hundred Fifty Dollars ($156,250), representing
approximately 7-1/2 months annual base salary, and (ii) an amount equal to
fifty percent (50%) of your calendar year 2000 Target Bonus, and (iii) Ten
Thousand Eight Hundred Ninety-One and 56/100 Dollars ($10,891.56),
representing 7-1/2 months of your annual benefits and perquisites, which
has been grossed up to cover your income taxes, in each case less
withholding taxes and customary payroll deductions. In addition, to the
extent applicable, you will also receive the Gross-Up Payment set forth in
Section 9 of the CIC Plan.
4. Except as specifically provided in this Agreement, you hereby abrogate and
repudiate any and all claims you have under the Bonus and Severance Plan,
the CIC Plan, the acknowledgment agreements executed by you in respect of
said plans, any and all other written or oral agreements between you and
the Company regarding the terms of your employment and any and all
compensation to be paid to you by the Company.
5. After your Termination Date, you will no longer be covered by or eligible
for any benefits under any Company employee benefit plans in which you
currently participate. After your Termination Date, you will receive by
separate cover information regarding your rights to health insurance
continuation (COBRA) and any 401(k) PLUS plan benefits. To the extent that
you have such rights, nothing in this Agreement will impair those rights.
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6. (a) In exchange for the compensation to be provided to you herein, to
which you are not otherwise entitled except pursuant to this
Agreement, you agree to and hereby do waive and release, and promise
never to assert, any claims of any kind or nature whatsoever, in law
or equity, known or unknown, direct and indirect, that you have or
might in the future have against G&E, and its respective
predecessors, subsidiaries, affiliates, associates, owners, divisions,
representatives, related entities, officers, directors, shareholders,
agents, partners, insurers, employee benefit plans (and their
trustees, administrators and other fiduciaries), attorneys, employees,
heirs, successors, and assigns (collectively, the "Released Parties"),
arising from or related to your employment, the transition of your
employment, and the termination of your employment with the Company.
The claims that you are waiving, releasing and promising not to assert
include, but are not limited to, claims arising under federal, state
and local statutory and common law, such as the Age Discrimination in
Employment Act, as amended, the Americans with Disabilities Act of
1990, the Family Medical Leave Act of 1993, Title VII of the Civil
Rights Act of 1964, as amended, the Equal Pay Act of 1963, as amended,
the Civil Rights Act of 1866, as amended, the common law of contract
and tort, and any other laws and regulations relating to employment,
or employment discrimination and/or the payment of wages or benefits.
(b) In consideration of the foregoing and the execution of the Agreement
by you, the Company and the Released Parties hereby waive and release
and promise never to assert any claims of any kind or nature
whatsoever, in law or equity, known or unknown, direct or indirect
that the Company (and/or any of the Released Parties) might have or
might at any time in the future have against you (and including,
without limitation, your partners, associates, agents,
representatives, related entities and/or affiliates, contractors
and/or your attorneys).
7. (a) You understand and agree that the claims that you are waiving,
releasing and promising never to assert include claims that you now
know or have reason to know exist, as well as those that you do not
presently have any reason to know, believe or suspect that you have,
including unknown, unforeseen, unanticipated and unsuspected injuries,
damages, loss and liability and the consequences thereof. By signing
this Agreement you agree that you are expressly waiving any provision
of any state, federal or local statute, and common-law doctrine,
providing, in substance, that a release shall not extend to claims,
demands, injuries or damages, loss or liability, which are unknown or
unsuspected to exist, by the person making the release, when s/he is
making the release.
(b) The Company (and the Released Parties) agree and understand that the
claims that they are waiving, releasing and promising never to assert
include claims that they now know or have reason to know exist, as
well as those that they do not presently have any reason to know,
believe or suspect that they may have, including unknown, unforeseen,
unanticipated and unsuspected injuries, damages, loss and liability
and the consequences thereof. By signing the Agreement the Company (on
behalf of itself and the Released Parties) agrees that the Company
(and the Released Parties) are expressly waiving any provision of any
state, federal or local statute, and common law doctrine, providing in
substance, that a release shall not extend to claims, demands,
injuries or damages, loss or
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liability, which are unknown or unsuspected to exist by the party
making the release, when it/they are making the release.
8. You agree that you will not voluntarily, and without compulsion of legal
process, assist or encourage others to assert claims or to commence or
maintain litigation against the Released Parties. You also agree not to
take any action or make any statement which disparages or is intended to
disparage the Released Parties or their reputations.
9. You agree to return to the Company, by your Termination Date, any and all
information and materials, whether in paper, magnetic, electronic or other
form, that you have about the Company's practices, procedures, trade
secrets, finances, client lists, or marketing of the Company's services.
You will promptly execute any and all notices of resignation from any
Company position as requested by the General Counsel. You will take no
further action to bind or obligate the Company. You will immediately turn
in your corporate American Express card.
10. You agree that you will not, unless required by law or otherwise permitted
by express written permission from or request by the Company, disclose to
anyone any information regarding the following:
a. Any non-public information regarding the Company, including its
practices, procedures, trade secrets, finances, client lists, or
marketing of the Company's services.
b. The terms of this Agreement, except that you may disclose this
information to members of your immediate family and to your attorney,
accountant or other professional advisor(s) to whom you must make the
disclosure in order for them to render professional services to you.
You will instruct them, however, to maintain the confidentiality of
this information just as you must, and any breach of this obligation
of confidentiality by such family member or professional advisor(s)
shall be deemed to be a breach by you. If required to disclose the
terms of this Agreement by law, you shall provide the Company with
sufficient notice prior to any such disclosure, including the basis
for the legal requirement to disclose, to allow the Company to seek a
protective order preventing the disclosure.
11. You agree that, commencing on the Effective Date, and thereafter for a
period of six months after your Termination Date, you shall not, directly
or indirectly, on behalf of yourself or any other person or entity solicit
for employment any then current executive, employee or independent
contractor of the Company, or request or induce any then current executive,
employee or independent contractor of the Company to leave the employ of,
or association with, the Company.
12. Except as required by law or administrative agency or stock exchange rules,
the Company will keep the terms of this Agreement confidential.
13. In the event that you breach any of your obligations under this Agreement
or as otherwise imposed by the law, the Company will be entitled to recover
the benefits paid under the Agreement and to obtain all other relief
provided by law and equity. This Agreement will be governed by the law of
the State of Illinois without regard to principles of conflicts of laws
thereof.
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14. To accept the Agreement, please date and sign this Agreement and return it,
either by personal delivery or by mail, to XXXXX & XXXXX COMPANY, c/o
Xxxxxx X. Xxxxxx, General Counsel, 0000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, XX 00000. An extra original for your records is enclosed.
a. You understand that you have the right to consult with an attorney
before signing this Agreement.
b. You have up to 21 days from the date you receive this Agreement to
accept the terms of this Agreement, although you may accept it at any
time within those 21 days.
c. Once you accept this Agreement, you will have seven (7) days after
signing to revoke your acceptance. To revoke, you must send, either
by personal delivery or by mail, to the General Counsel as indicated
above, a written statement of revocation. If you do not revoke, the
eighth day after the date of your acceptance will be the "Effective
Date" of this Agreement.
15. Nothing in this Agreement shall constitute an admission of liability or
wrongdoing by the Company or by you. This Agreement shall not be binding
on the Company unless and until it is signed, in unaltered form, and
returned to the Company as provided above.
16. In the event that any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, then to the maximum extent permitted by law,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement.
17. This Agreement represents the sole and entire agreement between you and the
Company regarding the transition and then termination of your services as
President, Corporate Services Group and supersedes any and all previous
verbal or written promises, representations, agreements, negotiations
and/or discussions, if any, between you and the Company with respect to the
subject matters covered herein. This Agreement cannot be terminated or
changed except in writing by you and a duly authorized representative of
G&E.
18. All notices, requests, demands and other communications which are required
or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given when received if personally delivered; when
transmitted if transmitted by telecopy, electronic or digital transmission
method, with electronic confirmation; when received, if sent for next day
delivery to a domestic address by recognized overnight delivery service
(e.g., Federal Express); and upon receipt, if sent by certified or
registered mail, return receipt requested. In each case notice shall be
sent to:
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If to you, addressed to:
Xxxxxx X. Xxxxxxx
00 Xxxxxxx Xxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
If to Xxxxx & Xxxxx Company, addressed to:
Xxxxx & Xxxxx Company
0000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others.
XXXXX & XXXXX COMPANY
_____________________________________
By: Xxxx X. Xxxxxx
Dated: September 12, 2000 President, Real Estate Advisory Services
By signing this Agreement, I acknowledge that I have had the opportunity to
review it carefully with an attorney of my choice, that I understand the terms
of the agreements contained therein, and that I voluntarily agree to them.
Dated: September 12, 2000 ________________________________
Xxxxxx X. Xxxxxxx
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