EXHIBIT 10.23
Termination of Employment Agreement
WHEREAS, Xxxx X. Xxxxxx (the "Executive") and Xxxxxx Xxxxxxx Halter, Inc.,
a Mississippi corporation (the "Company"), entered into that certain Second
Amended and Restated Employment Agreement as of August 7, 2000 (the "Employment
Agreement"); and
WHEREAS, the Executive has voluntarily tendered his resignation effective
April 4, 2002; and
WHEREAS, the Executive and the Company desire to amicably terminate the
Employment Agreement and acknowledge that the termination is not for Cause, Good
Reason or Disability, as those terms are defined in paragraph 4 of the
Employment Agreement.
NOW, THEREFORE, for good and valuable consideration, which is acknowledged
by the Executive and the Company, including, without limitation, the promises
and covenants described herein, and subject to the approval of the United States
Bankruptcy Court for the Southern District of Mississippi (the "Bankruptcy
Court"), the parties hereto agree as follows:
1. Termination of Employment. The Employment Agreement is terminated effective
April 15, 2002.
2. Confidentiality. In consideration for receipt of severance pay and
continuation of benefits as provided herein, the Executive hereby covenants
and agrees to maintain in a confidential manner the Company's and its
affiliates' proprietary, business and commercial information.
3. Severance Pay. In consideration of the Executive's execution of this
Agreement and commitment to continue to provide reasonable transition
assistance where his knowledge of past events is required to assist Company
and its officers, directors, employees, consultants, and attorneys as
required through December 31, 2002, the Company shall (i) continue to pay
the Executive's salary (less standard payroll deductions) through July 15,
2002, at the Executive's regular rate of pay in effect during the month
immediately preceding the execution of this Agreement, and (ii) pay the
Executive the sum of $19,000 representing monies previously withheld from
the Executive's salary, at his election, as part of the Company's Deferred
Compensation Plan. Such payment shall be made immediately following the
date upon which the order of the Bankruptcy Court approving this
Termination of Employment Agreement (the "Agreement") becomes final.
4. Benefits. The Company will pay certain benefits on behalf of the Executive
as follows:
(a) Insurance. The Company will pay the Executive's premium on Executive's
medical insurance until July 15, 2002, or until the Executive obtains
new employment, whichever occurs first. Such payment shall be made
immediately following the date upon which the order of the Bankruptcy
Court approving this Agreement becomes final;
(b) Accrued Vacation. The Company will pay the Executive for accrued but
unused vacation of three (3) weeks, such payment (less standard
payroll deductions) to be made in one lump sum on the Company's next
normal payroll date following the execution of this Agreement.
All other benefits enjoyed by the Executive with the Company shall cease
immediately upon the date Executive executes this Agreement.
Notwithstanding the foregoing sentence, to the extent that executive risk
and employment practices liability insurance coverage was provided to the
directors and officers of the Company prior to the date of the Executive's
resignation, that coverage will continue to be provided to the Executive
for acts occurring prior to the Executive's resignation date to the extent
it continues to be provided to other similarly situated officers and
directors of the Company.
5. Release and Covenant Not to Xxx. Executive hereby releases and discharges
the Company, its officers, directors, subsidiaries, parent, owners,
affiliates, partners, agents, employees, attorneys, consultants,
shareholders, representatives, successors, and assigns ("Company Related
Parties") of and from all actions, causes of action, claims, demands,
costs, and expenses which the Executive may have, or may claim to have, for
any and all alleged damages which may have arisen or which he may claim to
have arisen, or which may hereafter arise, on account of, or arising out of
any claim relating or pertaining in any manner to Executive's employment
with the Company, Executive's resignation or termination from employment
with the Company, including, but not limited to, (i) any and all claims
arising from the Employment Agreement, (ii) any and all pre-petition claims
in each of the bankruptcy cases jointly administered as Xxxxxx Xxxxxxx
Halter, Inc., et al., Jointly Administered, Case Xx. 00-00000 XXX, xx xxx
Xxxxxx Xxxxxx Bankruptcy Court for the Southern District of Mississippi
(the "Bankruptcy Cases"), including general unsecured claim number 2894 in
the amount of $1,800,000 filed therein, (iii) any and all administrative
claims in any of the Bankruptcy Cases pursuant to Section 503(b) of the
United States Bankruptcy Code, or otherwise (iv) any and all claims under
the Company's Deferred Compensation Plan (except as set forth in paragraph
3 above) and the Company's Retention and Incentive Program and (v) any
claims of alleged discrimination on any basis whatsoever; including,
without limitation, any and all claims arising under or relating to the Age
Discrimination and Employment Act, 29 U.S.C. (S)(S) 621, et seq., and/or
the Older Workers Benefit Protection Act; and/or any and all claims for
alleged wrongful discharge, breach of contract and/or any and all other
alleged wrongful actions or inactions of the persons and entities herein
released up to and through the date of execution of this Agreement.
Executive agrees not to file any claim, charge, complaint, action, or cause
of action against any Company Related Parties on the basis of, arising
from, or in any manner connected with any and all of the claims and matters
released and covered by the release set forth hereinabove. Executive
further agrees that he will indemnify and save harmless all Company Related
Parties against any loss, including without limitation costs of defense and
legal fees, occurring or incurred as a result of any claims, charges,
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complaints, actions, or causes of action made or brought by or on behalf of
Executive upon any of the claims and matters released and covered herein.
The Executive declares and represents that any alleged damages or losses
that may have been or may be in the future sustained by him may not be
fully known to him and may be more numerous or more serious to him than he
now believes or expects and, in making this release and Agreement, it is
understood and agreed that Executive relies wholly upon his own judgment as
to the future development, progress, and result of such alleged damages and
losses, both known and unknown, and that Executive has not been influenced
to any extent by statements regarding said damages and matters made by the
parties who are hereby released, or by any person or persons representing
such parties, and that Executive accepts the terms herein in full
settlement and satisfaction of all claims or demands whatsoever for all
losses and damages to him, both known and unknown.
The Executive further understands and acknowledges that the release set
forth hereinabove expressly includes and covers any and all claims which he
may have or claim to have under the Age Discrimination and Employment Act,
29 U.S.C. (S)(S) 621, et seq., and/or the Older Workers Benefit Protection
Act, and further understands and acknowledges that he may take up to
twenty-one (21) days from and after the date upon which this Agreement is
tendered to him within which to make a decision concerning release and
waiver of any claims which he may have or claim to have under the Age
Discrimination and Employment Act, 29 U.S.C. (S)(S) 621, et seq., and/or
the Older Workers Benefit Protection Act. Executive further acknowledges
and understands that for a period of seven (7) days from and after the date
upon which he executes this Agreement, he may revoke all provisions of this
Agreement which relate to the Age Discrimination and Employment Act, 29
U.S.C. (S)(S) 621, et seq., and/or the Older Workers Benefit Protection
Act, and that in the event he exercises such right of revocation, this
entire Agreement shall be void. Executive further acknowledges that he has
been advised by the Company that he may consult with counsel of his own
choosing before executing this Agreement.
The Executive further understands and agrees that this settlement is the
compromise of doubtful and disputed claims and that the herein-mentioned
consideration is not to be construed as an admission of liability on the
part of any person or entity herein released, by whom liability is
expressly denied.
6. Miscellaneous. The Executive acknowledges that he enters into this
Agreement after having had the opportunity to consult legal counsel of his
own choosing concerning the execution of this Agreement, and the Executive
fully understands and agrees that any costs or fees arising out of any
legal representation he may have sought or obtained with respect to this
Agreement are to be borne by Executive. The Executive further acknowledges
and agrees that he has read this Agreement and the release set forth in
Paragraph 5 above, and has been given full opportunity to consider and
understand its terms, and executes this Agreement of his own free will.
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7. Cooperation after Termination; Non-derogation. The Executive and the
Company agree to cooperate fully with each other on all matters relating to
Executive's employment and the conduct of the Company's and its affiliates'
business, Bankruptcy Cases, restructuring proceedings and tax matters (the
"Company's Business"), including any litigation, claim or suit in which
they deem that the cooperation of the other is needed. Such cooperation
shall include, but shall not be limited to: (a) assisting counsel,
bankruptcy counsel, financial advisors and accountants of the Company and
the Unsecured Creditors' Committee (the "Advisors") in the review of any
documents or other material relating to the litigation; (b) executing
affidavits, interrogatory verification, and/or any other papers that the
Advisors deem helpful or necessary to the prosecution or defense of the
litigation; (c) assisting the Advisors in the preparation of pleadings,
motions, discovery requests and any other papers or work product that the
Advisors deem necessary or appropriate to the prosecution or defense of the
litigation; (d) meeting with the Advisors to discuss matters relating to
any of the claims or defenses asserted in the litigation; and (e)
permitting counsel in the litigation to represent them at any deposition,
hearing, trial and/or other proceeding in the litigation with the
understanding that the parties will be entitled to retain their own legal
representation at their own expense; provided they shall have the right at
their own cost and expense to retain separate counsel in the event that
their interests become adverse to each other or other parties to the
litigation, and in such event the Executive and the Company shall cause
their respective counsel to consult with and cooperate with counsel during
the litigation.
The Executive and the Company further agree that they will not make any
statement of criticism, or take any action adverse to the interests of the
other or that could cause the Company Related Parties or the Executive
embarrassment or humiliation or otherwise cause or contribute to such
persons being held in disrepute by the public or their clients, suppliers,
customers or employees; provided, however, that any factual statement made
by them in connection with the litigation in complying with the preceding
paragraph shall not be deemed to cause them to have breached the
obligations set forth herein.
The Company and the Executive agree that, in response to inquiries
concerning the Executive's termination of employment, the Company will
state that "it is Company policy to give a neutral reference verifying
dates of employment."
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8. Notices. Any notice given under the Agreement shall be in writing and shall
be sent by registered mail or certified mail, postage prepaid, return
receipt requested, or by guaranteed overnight delivery service. Notices
shall be addressed as follows:
If to Executive: Xxxx X. Xxxxxx
0000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000
If to the Company: T. Xxx Xxxxxxx
Chief Executive Officer
Xxxxxx Xxxxxxx Halter, Inc.
00000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxx 00000-0000
and shall be effective upon receipt as evidenced by the return receipt, if
sent by registered or certified mail, or by the receipt of the overnight
delivery service.
9. Severability. If any portion of this Agreement or the application thereof
for any reason or to any extent shall be determined to be invalid or
unenforceable, such invalidity or unenforceability shall not in any manner
affect or render invalid or unenforceable the remainder of this Agreement.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of Mississippi without reference to
its principles of conflict of laws.
11. Venue and Jurisdiction. If any dispute between the parties leads to
litigation, the parties agree that the United States Bankruptcy Court for
the Southern District of Mississippi, Southern Division, located at Biloxi,
Mississippi, shall have exclusive jurisdiction and venue over such
litigation. Each of the parties hereto consents to the personal
jurisdiction of the Bankruptcy Court for the Southern District of
Mississippi and agrees to accept service of process outside of the state of
Mississippi as if service has been made in that state.
12. Entire Agreement. This Agreement constitutes the complete and exclusive
statement of all mutual understandings between the parties with respect to
the subject matter hereof, superceding all prior proposals, communications
and understandings, oral or written.
13. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall constitute an original, and all of which together shall
constitute one and the same instrument.
14. Approval of Bankruptcy Court. The Company agrees that immediately following
the execution of this Agreement the Company shall cause this Agreement to
be submitted to the Bankruptcy Court for approval. In the event this
Agreement is not approved by the Bankruptcy Court on or before October 15,
2002, the Executive shall have the option, in
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his sole discretion, of giving the Company written notice of the
termination of this Agreement in which case this Agreement shall
immediately become null and void but Executive shall be entitled to retain
the payment received for accrued but unused vacation pursuant to paragraph
4(b) of this Agreement. The parties acknowledge that this Agreement is
subject to Bankruptcy Court approval as set forth above.
IN WITNESS WHEREOF, the undersigned have executed this Agreement.
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Date: July 8, 2002
XXXXXX XXXXXXX HALTER, INC.
By: /s/ T. Xxx Xxxxxxx
-----------------------------------
T. Xxx Xxxxxxx, Chief Executive
Officer
Date: July 9, 0000
XXXXX XX XXXXXXXXX
XXXXXX XX XXXX XXXXX XXXXX
Personally appeared before me, the undersigned authority in and for the
said county and state, on the _____ day of July, 2002, within my jurisdiction,
the within-named Xxxx X. Xxxxxx, who acknowledged that he executed the above and
foregoing instrument.
SWORN TO AND SUBSCRIBED before me, this the 8th day of July, 2002.
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Notary Public
My Commission Expires:
----------------------------------------
(SEAL)
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STATE OF TEXAS
COUNTY OF XXXXXX
Personally appeared before me, the undersigned authority in and for the
said city and state, on the _____ day of July, 2002, within my jurisdiction, the
within-named T. Xxx Xxxxxxx, Chief Executive Officer of Xxxxxx Xxxxxxx Halter,
Inc., who acknowledged that he executed the above and foregoing instrument,
after first having been duly authorized by said corporation so to do.
SWORN TO AND SUBSCRIBED before me, this the 9th day of July, 2002.
----------------------------------
Notary Public
My Commission Expires:
----------------------------------------
(SEAL)
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