EXHIBIT 10.03
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May 15, 2003
Xxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Dear Xxxxx:
This letter (the "Agreement and Release") confirms our agreement with
regard to the termination of your employment with Xxxxxxxx & Struggles, Inc.
(the "Company") effective May 15, 2003 (the "Termination Date"). Our
understanding and agreement with respect to the termination of your employment
is as follows:
1. You hereby confirm the termination of your employment with the Company
effective as of the Termination Date, and you agree to execute a letter of
resignation effective as of the Termination Date.
2. With the exception of 2(a) below, your total and final compensation
from the Company shall be payable on the first business day following the date
on which this agreement becomes final and binding pursuant to paragraph 16 below
(the "Initial Payment Date") and shall be as follows:
(a) You will receive your regular base salary through and until the
Termination Date through the Company's normal payroll process.
(b) You will receive a pro rata 2003 bonus payment (the "Pro-rata 2003
Bonus") based on the number of months of service up to the Termination
Date. The amount of the Pro-rata 2003 Bonus is TWO HUNDRED TWENTY-FIVE
THOUSAND DOLLARS ($225,000.00) and is payable in a lump sum on the Initial
Payment Date.
(c) You will receive severance payments in the amount of ONE MILLION TWO
HUNDRED THOUSAND DOLLARS ($1,200,000.00) to be paid in twelve equal monthly
installments in the gross amount of ONE HUNDRED THOUSAND DOLLARS
($100,000.00) (the "Severance Payments") as of each one-month anniversary
of the Termination Date. No Severance Payments shall be made prior to the
Initial Payment Date.
(d) With the exception of the three stock option grants you received on
April 26, 1999 (the "4-26-99 Options"), effective as of the Initial Payment
Date, the you shall forfeit and/or relinquish any and all interests and
rights in and under all vested or unvested outstanding stock options
awarded under any plan or program maintained by the
Company or any of its affiliates. You hereby acknowledge and agree that you
do not possess, nor are entitled to, any other stock option awards under
any plan or program of the Company or any of its affiliates. The 4-26-99
Options shall continue to operate under the terms and conditions of the
respective award agreements setting forth such awards (including any
restrictive covenants contained therein), taking into account the
termination of your employment as of the Termination Date.
(e) Effective as of the Initial Payment Date, you shall become fully
vested in 12,500 of the 50,000 restricted stock units granted to you on
December 31, 2001, which are not currently vested. Effective as of the
Termination Date you shall forfeit any and all rights in the remaining
37,500 restricted stock units. You hereby acknowledge and agree that you do
not possess, nor are you entitled to, any other restricted stock unit
awards under any plan or program of the Company or any of its affiliates.
The Company shall withhold from the restricted stock units vesting pursuant
to this Agreement that number of shares equal to the minimum statutory
required withholding, based on the closing share price on the Initial
Payment Date. The net shares, after withholding, shall be delivered or
otherwise made available to you as soon as practicable following the
Initial Payment Date.
(f) Effective as of the Termination Date, you shall forfeit and/or
relinquish any and all interests and rights under the Company's Performance
Share Program, for any and all performance periods. You hereby acknowledge
that you are not entitled to any future participation or payouts with
respect to the Performance Share Program.
(g) Your comprehensive life, accidental death and dismemberment and
disability insurance benefits, if any, will cease as of the Termination
Date. You may have conversion privileges under some of these benefits
programs. Please contact our Human Resource Department for details.
(h) Your coverage under the Company's group medical and dental insurance
programs, if any, will cease as of the Termination Date. You may continue
to be covered under these programs for a period of 18 months from that date
(or such longer period as may be required by law) or until you experience a
"COBRA disqualifying event," whichever occurs first. This continued
coverage shall be available at your own expense. This continued coverage
shall be subject to and in accordance with the terms of the documents
governing the program. Specific information on the program will be sent to
you separately.
(i) Except as specifically provided in this Agreement with respect to
plans or arrangements specifically identified in this Agreement, your
continued participation in all employee benefit (pension and welfare) and
compensation plans will cease as of the Termination Date. Any payments made
to you pursuant to this Agreement, other than with respect to the continued
payment of salary through the Termination Date, shall be disregarded for
purposes of determining the amount of benefits to be accrued on behalf of
you under any pension or other benefit plan maintained by the Company or
its affiliates. Nothing contained herein shall limit or otherwise impair
your to receive pension or
similar benefit payments which are vested as of the Termination Date under
any applicable tax qualified pension or other tax qualified benefit plan.
(j) You will be reimbursed for approved and authorized out-of-pocket
expenses incurred through the Termination Date, provided you submit
appropriate expense reports no later than Termination Date.
(k) You will receive payment for your accrued and unused vacation days
through the Termination Date.
(l) Any payments under this Agreement and Release, or other amounts under
this Agreement and Release which are required to be treated as
compensation, shall be subject to all applicable tax withholding and
payroll deductions.
3. Other than as set forth herein, you will not receive compensation,
payments or benefits of any kind from the Company or Releasees (as that term is
defined below), and you expressly acknowledge and agree that you are not
entitled to, you have no rights to, and you will not receive any additional
compensation, payments or benefits of any kind from the Company or Releasees,
and that no representations or promises have been made to you to the contrary.
4. You understand and agree that you are receiving compensation, payments
and/or benefits under this Agreement and Release which are in excess of those to
which you are now or in the future may be entitled from the Company or Releasees
(as that term is defined below), and that such compensation, payments and/or
benefits are being provided to you in consideration for your acceptance and
execution of, and in reliance upon your representations in, this Agreement and
Release and you acknowledge that such consideration is adequate and satisfactory
to you.
5. In exchange for the compensation, payments, benefits and other
consideration provided to you in this Agreement and Release, you agree as
follows:
(a) You agree to accept the compensation, payments, benefits and other
consideration provided for in this Agreement and Release in full resolution
and satisfaction of, and hereby IRREVOCABLY AND UNCONDITIONALLY RELEASE,
REMISE AND FOREVER DISCHARGE the Company and Releasees from any and all
agreements, promises, liabilities, claims, demands, rights and entitlements
of any kind whatsoever, in law or equity, whether known or unknown,
asserted or unasserted, fixed or contingent, apparent or concealed, which
you, your heirs, executors, administrators, successors or assigns ever had,
now have or hereafter can, shall or may have for, upon, or by reason of any
matter, cause or thing whatsoever existing, arising or occurring at any
time on or prior to the date you execute this Agreement and Release,
including, without limitation, any and all claims arising out of or
relating to your employment, compensation and benefits with the Company
and/or the termination thereof, and any and all contract claims, benefit
claims, tort claims, fraud claims, claims for bonuses, commissions, sales
credits, etc., defamation, disparagement, or other personal injury claims,
claims related to any bonus compensation, claims for accrued vacation pay,
claims under any federal, state or municipal wage payment, discrimination
or fair employment practices law, statute or regulation, and claims for
costs, expenses and attorneys' fees with respect thereto, except
that the Company's obligations under this Agreement and Release shall
continue in full force and effect in accordance with their terms. This
release and waiver includes, without limitation, any and all rights and
claims under Title VII of the Civil Rights Act of 1964, as amended, the
Civil Rights Act of 1991, the Civil Rights Act of 1866 (42 U.S.C. Section
1981), the Employee Retirement Income Security Act, as amended, the Federal
Age Discrimination in Employment Act, the Americans with Disabilities Act,
the Fair Labor Standards Act, the National Labor Relations Act, the Family
and Medical Leave Act, and any other federal, state or local statute,
ordinance, regulation or constitutional provision regarding employment,
compensation, employee benefits, termination of employment or
discrimination in employment.
(b) For the purpose of implementing a full and complete release and
discharge of claims, you expressly acknowledge that this Agreement and
Release is intended to include in its effect, without limitation, all the
claims described in the preceding paragraphs, whether known or unknown,
apparent or concealed, and that this Agreement and Release contemplates the
extinction of all such claims, including claims for attorney's fees. You
expressly waive any right to assert after the execution of this Agreement
and Release that any such claim, demand, obligation, or cause of action
has, through ignorance or oversight, been omitted from the scope of the
Agreement and Release.
(c) For purposes of this Agreement and Release, the term "the Company and
Releasees" includes the Company and its past, present and future direct and
indirect parents, subsidiaries, affiliates, divisions, predecessors,
successors, insurers, and assigns, and their past, present and future
officers, directors, shareholders, representatives, agents and employees,
in their official and individual capacities, and all other related
individuals and entities, jointly and individually, and this Agreement and
Release shall inure to the benefit of and shall be binding and enforceable
by all such entities and individuals.
6. Nothing contained in this Agreement and Release shall be deemed to
constitute an admission or evidence of any wrongdoing or liability on the part
of you or the Company or Releasees, nor of any violation of any federal, state
or municipal statute, regulation or principle of common law or equity. The
Company expressly denies any wrongdoing of any kind in regard to your employment
or your termination.
7.
(a) You hereby agree and acknowledge that you shall continue to be subject
to the restrictive covenants of Section 7 of your employment agreement with
the Company dated as of January 1, 2002 (the "Employment Agreement").
(b) You and the Company hereby agree and acknowledge that the Arbitration
provisions of Section 8 of the Employment Agreement shall apply to any and
all disputes, controversies or claims arising between the parties relating
to this Agreement.
(c) You have and/or agree to immediately return to the Company any and all
computer equipment (including any desktop and/or laptop computers, handheld
computing devices, home systems, computer disks and diskettes), cellular
telephones, fax machines, and any other magnetic and other media materials
you have in your possession or under your control belonging to the Company.
You have also returned and/or agree to immediately return your Company
keys, credit cards and I.D. cards to the Company.
(d) You hereby represent and acknowledge that, as of the Termination Date,
you do not possess any of the following: original or duplicate copies of
your work product and files, calendars, books, records, notes, notebooks,
customer lists and proposals to customers, manuals and any other magnetic
and other media materials containing confidential or proprietary
information concerning the Company or Releasees or their customers or
operations. You further represent and acknowledge that either you did not
possess any such items or that, as of the Termination Date, they have been
returned to the Company and you have retained no copies of them.
8. You will not issue any communication, written or otherwise, that
disparages or encourages any adverse action against the Company, provided that
this paragraph shall not preclude you from testifying truthfully under oath
pursuant to subpoena or otherwise, or from cooperating with any governmental,
regulatory or self-regulatory body or agency with jurisdiction over the
activities of the Company. The Company will provide you notice of its intentions
to suspend or terminate payments under this Agreement due to a violation this
Section 8; provided, however, that no such suspension of payments shall be
commenced prior to the initiation of an arbitration process as provided in
Section 7(b) above. The Company will not issue any communication, written or
otherwise, that disparages or encourages any adverse action against you,
provided that this paragraph shall not preclude the Company from testifying
truthfully under oath pursuant to subpoena or otherwise, or from cooperating
with any governmental, regulatory or self-regulatory body or agency with
jurisdiction over the activities of the Company.
9. You agree to perform all acts and execute and deliver any documents
that may be reasonably necessary to carry out the provisions of this Agreement
and Release.
10. You acknowledge and agree that:
(a) You have entered into this Agreement and Release knowingly and
voluntarily.
(b) You have read and understand this entire Agreement and Release.
11. This Agreement and Release may not be changed orally, and no
modification, amendment or waiver of any of the provisions contained in this
Agreement and Release, nor any future representation, promise or condition in
connection with the subject matter of this Agreement and Release shall be
binding upon any party hereto unless made in writing and signed by such party.
12. This Agreement and Release shall be subject to and governed by and
interpreted in accordance with the laws of the State of Illinois without regard
to conflicts of laws principles. This Agreement reflects the entire agreement
between you and the Company and, except as specifically provided herein,
supersedes all prior agreements and understandings, written or oral relating to
the subject matter hereof, it being acknowledged, however, that you shall
continue to
be subject to the restrictive covenants of Section 7 of your Employment. To the
extent that the terms of this Agreement and Release (including Exhibits to this
Agreement and Release) are to be determined under, or are to be subject to, the
terms or provisions of any other document, this Agreement and Release (including
Exhibits to this Agreement and Release) shall be deemed to incorporate by
reference such terms or provisions of such other documents.
13. In the event that any provision of this Agreement and Release shall be
held to be void, voidable, unlawful or, for any reason, unenforceable, the
remaining portions shall remain in full force and effect. The unenforceability
or invalidity of a provision of this Agreement and Release in one jurisdiction
shall not invalidate or render that provision unenforceable in any other
jurisdiction.
14. This Agreement and Release shall inure to the benefit of and shall be
binding upon (a) the Company, its successors and assigns, and any company with
which the Company may merge or consolidate or to which the Company may sell all
or substantially all of its assets and (b) you and your executors,
administrators, heirs and legal representatives. You may not sell or otherwise
assign your rights, obligations, or benefits under this Agreement and Release
and any attempt to do so shall be void.
15. All notices in connection with or provided for under this Agreement
and Release shall be validly given or made only if made in writing and delivered
personally or mailed by registered or certified mail, return receipt requested,
postage prepaid, to the party entitled or required to receive the same. Notice
shall be deemed to have been given upon receipt in the case of personal delivery
and upon the date of receipt indicated on the return receipt in the case of
mail.
16. If this Agreement and Release conforms to your understanding and is
acceptable to you, please indicate your agreement by signing and dating the
enclosed copy of this Agreement and Release in the space provided below and
returning the signed Agreement and Release to Xxxxx Xxxxxxxxxx, General Counsel,
at the address indicated above within 21 days of the date of this Agreement and
Release. Once you have signed the Agreement and Release, you will then be
permitted to revoke this Agreement and Release at any time during the period of
seven days following its execution by delivering to me a written notice of
revocation. This Agreement and Release will not be effective or enforceable and
no benefits shall be provided hereunder unless and until the seven-day
revocation period has expired without your having exercised your right of
revocation. In the event that you fail to execute and return this Agreement and
Release on a timely basis, or you execute and then elect to revoke this
Agreement and Release, this Agreement and Release will be of no force or effect,
and neither you nor the Company will have any rights or obligations hereunder.
You should consult with an attorney prior to signing this Agreement and Release.
Sincerely,
XXXXXXXX & STRUGGLES, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
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Xxxxx X. Xxxxxxxxxx
THIS AGREEMENT AND RELEASE IS A LEGAL DOCUMENT.
BY SIGNING THIS AGREEMENT AND RELEASE, YOU ACKNOWLEDGE AND AFFIRM THAT: (1) YOU
ARE COMPETENT; (2) YOU WERE AFFORDED A REASONABLE TIME PERIOD OF AT LEAST 21
DAYS TO REVIEW AND CONSIDER THIS AGREEMENT AND RELEASE AND HAVE BEEN ADVISED TO
DO SO WITH AN ATTORNEY OF YOUR CHOICE; (3) YOU HAVE READ AND UNDERSTAND AND
ACCEPT THIS DOCUMENT AS FULLY AND FINALLY RESOLVING, WAIVING AND RELEASING ANY
AND ALL CLAIMS AND RIGHTS WHICH YOU MAY HAVE AGAINST THE COMPANY AND RELEASEES
(AS DEFINED ABOVE), INCLUDING, WITHOUT LIMITATION, ANY AND ALL CLAIMS AND RIGHTS
UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT; (4) NO PROMISES OR INDUCEMENTS
HAVE BEEN MADE TO YOU EXCEPT AS SET FORTH IN THIS AGREEMENT AND RELEASE; AND (5)
YOU HAVE SIGNED THIS AGREEMENT AND RELEASE FREELY, KNOWINGLY AND VOLUNTARILY,
INTENDING TO BE LEGALLY BOUND BY ITS TERMS.
ACCEPTED AND AGREED:
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx Date
Sworn to before me this
___ day of ________, 200__.
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Notary Public
