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EXHIBIT 10.30
SEPARATION AGREEMENT
XXXX X. XXXXXXXXX
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EXHIBIT 10.30
SEPARATION AGREEMENT
AGREEMENT made as of the 31st day of January, 1997, by and between
Xxxxxxx Xxxxxxxx Company, Inc., a corporation, having its principal office at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), by itself and on behalf
of all of its subsidiaries and affiliates ("Company Affiliates") and Xxxx X.
Xxxxxxxxx, ("Employee"), an individual residing at 000 Xxxxxxxxx Xxxxxx, Xxxx
Xxxxx, Xxx Xxxxxx 00000.
W I T N E S E T H :
WHEREAS, Employee has been employed by the Company as Vice
President/Human Resources pursuant to a letter agreement dated October 22, 1993
as supplemented by a letter agreement dated October 28, 1993 (the "Letter
Agreements").
WHEREAS, the Company and Employee have agreed upon the terms of
Employee's separation from employment as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, it is hereby agreed by and between the Company
and Employee as follows:
1. Amicable Agreement. Employee and the Company agree that the
current relationship between Employee and the Company should be amicably
terminated and that the terms and conditions of the separation which are
specified in this agreement are fair and equitable, that the Company has
appreciated and appreciates the skill, ability, dedication and integrity of
Employee, that Employee has appreciated and appreciates the skill, ability,
dedication and integrity of the Company as a whole and of his subordinates,
superiors and peers within the Company, and that the decision to change
Employee's employment relationship is without rancor on either side. Employee
shall not make any derogatory comment concerning the Company or Company
Affiliates or any of their current or former officers, directors or employees,
which results, or is reasonably expected to result, in any material adverse
effect on the business or reputation of any such entity or person. The Company
and Affiliates shall not make any derogatory comment concerning Employee which
results, or is reasonably expected to result, in any material adverse effect on
the business or reputation of Employee.
2. Resignation. Employee resigns as Vice President/ Human Resources
of the Company, as a trustee of any and all
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employee benefit plans of the Company and all Company Affiliates, and as an
officer and director of any and all Company Affiliates, effective as of the
close of business on January 31, 1997 (the "Resignation Date"). Employee shall,
however, continue to serve as an employee of the Company until the close of
business on July 31,1997, at an annual compensation rate of one hundred thirty
thousand dollars ($130,000) per year. Employee shall perform such reasonable
duties as may be assigned to him from time to time by the Board of Directors of
the Company, provided, that if, on or after February 1, 1997, Employee takes any
action which the Board of Directors of the Company determines to be injurious to
the best interests of the Company, such employment and compensation shall
immediately cease. During the period from February 1, 1997 through July 31,
1997, Employee may, but shall not be obligated to, seek other employment. If
Employee obtains other employment or undertakes other commitments, the Company
shall not assign Employee any duties hereunder which interfere with Employee's
duties with respect to such employment or such commitments, but his employment
by the Company shall nevertheless continue as provided herein.
3. Company Payments and other Obligations.
(a) Except as provided herein, the Company shall have no obligation
to make any further payment to Employee (including without limitation salary,
vacation pay, severance pay, executive incentive plan bonuses or any other
bonuses, performance incentive award plan payments, stock option awards, pension
contributions or payments) and shall have no obligation to provide Employee with
any fringe benefits (including without limitation life insurance, dental
insurance, health and medical insurance, and disability protection), an office
or other amenities. The Company does, however, specifically agree that it will
provide Employee with the benefits described in Paragraph c) of the Letter
Agreement dated October 28, 1993 until Employee's termination of employment as
an employee of the Company. In addition, (i) the Company will make available to
Employee, at the Company's expense, the Key Executive Outplacement Program
offered by Right Associates, (ii) in the sole discretion of the Compensation
Committee of the Board of Directors of the Company, Employee may be paid all or
a portion of his pro-rata share, if any, of any bonus earned through the
Resignation Date, and (iii) the shares of restricted stock of the Company which
Employee purchased under the two stock purchase agreements dated December 17,
1993 and March 21, 1994 (the "Stock Purchase Agreements") shall continue to vest
at the dates set forth in the Stock Purchase Agreements, and the other
provisions of the Stock Purchase Agreements shall continue to apply in
accordance with their terms; provided, that if, on or after February 1, 1997,
Employee takes any action which the Board of Directors of the Company determines
to be injurious to the best interests of the Company, no further shares of
restricted stock shall thereafter vest under the Stock Purchase Agreements but
only
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if such determination is made by the Board of Directors prior to a Change of
Control (as defined in the Stock Purchase Agreements. The Company shall continue
to make available to Employee the desk top computer he is presently using, less
any proprietary Company information or software. The Company shall continue to
make available to Employee his voicemail upon such terms and conditions as the
Company may from time to time impose, for such period of time as the Company
shall, in its discretion, determine. Employee may continue to use the Company
automobile he has in his possession on the same terms and conditions in effect
on the Resignation Date for thirty (30) days from the date hereof (or until his
earlier termination of employment as an employee of the Company), and thereafter
at his own expense, until the earlier of the expiration of the current lease for
such automobile, or Employee's termination of employment as an employee of the
Company. Employee shall be entitled to a cash payment equal to the equivalent
amount of the number of accrued vacation days he has earned as of the
Resignation Date, to the extent not duplicative of the benefits described in
Paragraph c) of the Letter Agreement dated October 28, 1993.
(b) Except as otherwise specified herein, this Separation
Agreement supersedes the Letter Agreements.
(c) Notwithstanding anything to the contrary contained in this
Separation Agreement, if Employee dies prior to August 1, 1997, any compensation
which Employee was entitled to receive as an employee of the Company at the time
of his death, shall continue to be paid to his designated beneficiary (or to his
estate if no beneficiary has been designated who survives Employee) until August
1, 1997.
4. Releases.
(a) Employee agrees that, except as provided herein, he hereby
waives any right to employment, reinstatement or reemployment with the Company
or any Company Affiliate and specifically agrees that he will not apply for
same.
(b) Employee acknowledges and agrees that he is fully aware
that there are various federal, state and municipal laws which prohibit
employment discrimination based on, including without limitation, the following:
race, age, sex, marital status, sexual orientation, citizenship, religion,
creed, national origin, military or national guard service, mental,
psychological record or prior convictions, or entitlement to pension or employee
benefits including retirement, pension and severance.
(c) Employee also acknowledges and agrees that he fully
understands and is aware that there are federal, state and municipal agencies
which enforce and administer these laws and ensure their enforcement.
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(d) In consideration of the payments and other undertakings of the
Company and the undertakings of Employee, described in this Separation
Agreement, and other good and sufficient consideration provided by the parties,
the receipt of which is hereby acknowledged, Employee hereby, for himself, his
heirs, legal representatives, successors and assigns, releases and discharges
the Company and the Company Affiliates and its and their respective officers,
directors, employees, successors and assigns, and the Company and Company
Affiliates hereby, for themselves, their respective successors and assigns,
release and discharge Employee, his heirs, legal representatives, successors and
assigns, from all actions, causes of action, suits, debts, accounts, sums of
money, damages, judgments, claims and demands whatsoever, in law or in equity,
known or unknown, which either hereafter can, shall or may have against the
other for, upon or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the date of this Agreement, including without
limitation all claims arising out of or by reason of the termination of
Employee's employment, except only those arising out of the performance by the
Company and Company Affiliates and Employee of their respective covenants and
agreements contained in this Separation Agreement and Employee's rights under
all retirement, profit sharing, stock option or similar benefit plans sponsored
by the Company (to the extent that such rights survive the termination of
Employee's employment). Further, the Company and the Company Affiliates do not
hereby release Employee from any liability which they or any of them may incur
arising from or related to any act or omission on the part of Employee in his
capacity as a plan administrator or trustee of any retirement plan or trust
maintained by the Company or any Company Affiliate which constitutes gross
negligence, fraud or willful misconduct.
(e) Except as otherwise stated, the releases in the foregoing
Section 4 (d) include but are not limited to releases of any rights the
releasing parties may have for breach of contract (whether express, implied or
oral), tort, wrongful termination, defamation, infliction of emotional distress,
slander, promissory estoppel, prima facie tort, breach of the covenant of fair
dealing, fraud, violation of public policy, claims for physical or emotional
injury, any and all claims based on any federal, state or local laws including,
without limitation, the Age Discrimination in Employment Act (29 U.S.C. '621, et
seq.), the Employee Retirement Income Security Act of 1974, the Civil Rights
Acts, the fair employment laws of the State of New York, and the United States
and New York Constitutions or common laws.
(f) Employee acknowledges (i) that he has been given the opportunity
to consult with his attorney regarding this agreement, (ii) that he fully
understands this agreement and the
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effect of his signing it, (iii) that he has been given up to twenty-one (21)
days to consider this agreement and (iv) that he may revoke this agreement
within seven (7) days following the date that he signs it and that this
agreement will not become effective or enforceable until after seven (7) days
have expired.
5. Confidential Information; Company Property; Nonsolicitation;
Company Interests. By and in consideration of the benefits to be provided by the
Company hereunder, including the severance arrangements set forth herein,
Employee agrees that:
(a) Employee shall hold in a fiduciary capacity for the benefit of
the Company all secret or confidential information, knowledge or data relating
to the Company or any Company Affiliate, and their respective businesses, (i)
obtained by Employee during his employment by the Company or any Company
Affiliates and (ii) not otherwise public knowledge (other than by reason of an
unauthorized act by Employee). After termination of Employee's employment with
the Company hereunder, Employee shall not, without the prior written consent of
the Company, unless compelled pursuant to an order of a court or other
governmental body having jurisdiction over such matter, communicate or divulge
any such information, knowledge or data to anyone other than the Company and
those designated by it.
(b) Except as expressly provided herein, promptly following
Employee's termination of employment, Employee shall return to the Company all
property of the Company and all copies thereof in Employee's possession or under
his control, except that (i) Employee may retain his personal notes, diaries,
Rolodexes, calendars and correspondence, and (ii) within 30 days following the
Resignation Date, Employee shall return to the Company in good working order the
Company's laptop computer he currently has in his possession.
(c) During the period commencing on the date hereof through July 31,
1997, Employee will not solicit or otherwise induce any employee of the Company
or any Company Affiliate to leave the employ of the Company or such Company
Affiliate or to become associated, whether as an employee, officer, partner,
director, consultant or otherwise, with any business organization.
(d) If Employee fails to comply with any of his undertakings
hereunder, no further payments or benefits shall be provided to or in respect of
Employee by the Company pursuant to this Separation Agreement or otherwise, and
his employment may, at the discretion of the Board of Directors of the Company,
be terminated.
6. Entire Agreement. This Separation Agreement contains the entire
understanding of the parties hereto relating
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to the subject matter hereof and cannot be changed or altered orally.
7. Governing Law. This Separation Agreement has been entered into in
the State of New York, and the validity, interpretation and legal effect of this
Separation Agreement shall be governed by the laws of the State of New York.
Furthermore, any claim, dispute or disagreement which may arise must be resolved
within the State of New York and in accordance with the substantive laws of the
State of New York governing contracts entered into and performed within the
State.
8. Severability. The invalidity or unenforceability of any
provisions of this Separation Agreement in any circumstance shall not affect the
validity or enforceability of any other provision of this Separation Agreement,
and except to the extent such provision is invalid or unenforceable, this
Separation Agreement shall remain in full force and effect. Any provision in
this Separation Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
that such provision is prohibited or unenforceable, without invalidating or
affecting the remaining provisions hereof in such jurisdiction, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
9. Notices. Any notice required or permitted to be given under this
Separation Agreement shall be sufficient if in writing and if sent by registered
mail, to his then residence in the case of Employee or to its then principal
office in the case of the Company, and shall be deemed given when deposited in
the United States mails, postage prepaid.
10. Binding Effect. This Separation Agreement and all provisions
hereof shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
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Before witnesses, the parties hereto have executed this Separation
Agreement on this 5 day of February, 1997, but as of the date written at its
head.
XXXXXXX XXXXXXXX COMPANY, INC.
ILLEGIBLE SIGNATURE By: ILLEGIBLE SIGNATURE
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Witness Xxxxxx X. Xxxxx
ILLEGIBLE SIGNATURE /s/ Xxxx X. Xxxxxxxxx
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Witness Xxxx X. Xxxxxxxxx
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