SEPARATION AGREEMENT
Xxxxxxxx X. Xxxxxxxx
I, Xxxxxxxx X. Xxxxxxxx, am employed by Comdisco, Inc. ("Comdisco") in
Rosemont, Illinois, and have served as President and Chief Executive Officer of
Comdisco. I was also elected as a Director of Comdisco on December 11, 1993 and
have served as a member of Comdisco's Board of Directors since that date. On
December 20, 2000, I resigned as President and Chief Executive Officer of
Comdisco. Comdisco and I both agree and promise as follows:
1.0 Resignation Arrangements
1.1 Resignation: I completed my resignation from my position as
President and Chief Executive Officer effective at the close of business on
December 20, 2000, and I am no longer an officer of Comdisco. On February 1,
2001, I was re-elected by Comdisco shareholders as a Director of Comdisco, and I
intend to remain a Director of Comdisco through my current term ending on or
about February 1, 2004. I also completed my resignation from any subsidiaries,
affiliates or committees of Comdisco of which I was a director, officer or
member at the close of business on December 20, 2000.
1.2 Comdisco Foundation: I am currently serving as a Director and as
President of the Comdisco Foundation, a not-for-profit organization. I agree to
continue to serve as a Director of the Foundation, and (subject to my
re-election by the Board of Directors of the Foundation) as President of the
Foundation. I understand that these positions do not include any compensation.
Comdisco will support my re-election by the Foundation's Board of Directors as
President of the Foundation.
2.0 Transition Arrangements
2.1 General: In light of my resignation, I have not been obligated to
report to work in my former job at Comdisco since December 20, 2000. On and
after December 20, 2000, my attendance at Comdisco's offices shall not be
required.
3.0 Payments
3.1 Comdisco shall pay me an amount equal to 2 1/2 weeks of annualized
cash compensation (which includes both my most recent base salary and target
bonus) multiplied by 8.5 (which is the number of my years of employment at
Comdisco as of December 20, 2000). My most recent annualized base salary and
target bonus total $1,200,000, which results in a weekly amount of $23,077.
Therefore, Comdisco agrees to pay me $490,386.00, less any payments made to me
since December 20, 2000, and less required deductions, on or before May 1, 2001.
My Comdisco employment will be considered terminated for all purposes
(including, without limitation, my Comdisco fringe benefits and stock options)
as of May 1, 2001.
3.2 Comdisco will pay me $43,975.00 (less required deductions) on or
before May 1, 2001. This amount was withheld from my salary during the period
from October 1, 2000 through December 20, 2000. I will not participate in the
Fiscal 2001 Cash-to-Stock Option Alternative program.
3.3 Comdisco will pay me $41,850 (less required deductions) on or
before May 1, 2001. This is the net payout amount to which I am entitled under
the Long Term Performance Unit grant from Comdisco for the period from October
1, 1997 through September 30, 2000. Comdisco and I agree that the unvested
portion of Stock Option Grant No. 990822 will be cancelled as of May 1, 2001.
3.4 Except as specified in this Paragraph 3, I will not be entitled to
any other salary, commission, bonus, severance pay, vacation pay, personal time
pay, stock options, performance unit pay, expense reimbursement or any other
form of compensation in connection with my Comdisco employment through May 1,
2000.
4.0 Return of Comdisco Property
4.1 Comdisco has installed certain computer equipment and related
software in my home that is owned or licensed by Comdisco. I will be permitted
to retain and use such equipment and software in my home while I remain a
Director of Comdisco, subject to applicable Comdisco policies regarding
equipment and software.
4.2 In connection with my continued services to Comdisco as a Director,
I will be permitted to retain certain Comdisco documents and materials that have
been provided to me for this purpose. Upon completion of my services to Comdisco
as a Director, I agree to return such documents or materials to Comdisco.
5.0 Confidential Information
5.1 I acknowledge that during my Comdisco employment, I have had access
to certain business, financial and other information of Comdisco ("Confidential
Information") that must be maintained in strict confidence in order for Comdisco
to protect its business and its competitive position in the marketplace. I will
not directly or indirectly publish or disclose any Confidential Information to
any competitor or other person outside Comdisco, and I will not remove from
Comdisco premises or use for my own benefit or otherwise appropriate or copy any
Confidential Information, except as otherwise provided herein. This shall apply
whether or not I developed the Confidential Information.
6.0 Waiver and Release
6.1 I confirm that I am aware of my legal rights concerning my Comdisco
employment. I acknowledge that these arrangements equal more than those to which
I would be entitled under Comdisco's existing policies. I (for myself and my
heirs, legal representatives and assigns) hereby waive, and generally release
Comdisco (including any Comdisco subsidiary or other affiliated company and any
of their respective officers, directors, employees and agents) from, and agree
not to xxx them for, any claims or causes of action (known or unknown) that I
may have against them through the date of this Agreement. This includes, but is
not limited to, any claims under any federal, state or local laws dealing with
employment or discrimination (e.g. Title VII of the Civil Rights Act of 1964 (as
amended) and the Illinois Human Rights Act) and any claims or causes of action
for personal injuries (e.g., defamation and wrongful discharge) or breach of
contract, relating to my employment and its termination. I confirm that to my
knowledge, I have suffered no injuries or occupational diseases in connection
with my Comdisco employment that may be compensable under any state worker's
compensation laws.
6.2 The foregoing waiver and release will not extend to: (1) the
obligations of Comdisco and myself reflected in this Agreement; (2) any
obligations of Comdisco or any related entity, as contained in Comdisco's
by-laws, to indemnify me as a current or former officer or director of Comdisco;
and (3) any rights that I may have as a current or former officer or director to
indemnification under any directors and officers insurance policies, or any
errors and omissions insurance policies, that may be maintained by Comdisco or
any related entity.
7.0 General
7.1 By signing below, I acknowledge that I have thoroughly read this
Agreement. I understand that this Agreement supersedes any written or oral
agreements that may be inconsistent with it. I understand that Comdisco denies
any wrongdoing or liability to me. I have been given an opportunity to consult
with anyone of my choice (including an attorney) concerning this Agreement. In
this regard, Comdisco will pay the reasonable fees and actual out-of-pocket
expenses of my legal advisers (not to exceed $25,000) incurred in connection
with the negotiation of this Agreement, which amount will be in addition to any
payments and benefits described elsewhere in this Agreement.
7.2 I agree that I have a full understanding of the terms and
conditions of this Agreement, and understand that the terms are complete, final
and binding upon me and upon Comdisco. Comdisco and I agree that this Agreement
will be accepted by Comdisco in Illinois and will be governed by Illinois law. I
confirm that I have had adequate time in which to consider this agreement before
signing it. Finally, I certify that I am signing this Agreement voluntarily.
7.3 No amendments to this Agreement may be made except by writing
signed by both parties. This Agreement shall have no effect on the continued
effectiveness of the Indemnification Agreement dated as of January 25, 2000,
between Comdisco and me, nor shall this Agreement affect any rights and benefits
afforded to me by Comdisco's certificate of incorporation or by-laws.
Notwithstanding this Agreement or any termination of my employment by Comdisco
pursuant to this Agreement or otherwise, I shall be entitled to coverage under
the directors' and officers' liability coverage maintained by Comdisco, as in
effect from time to time, to the same extent as other current or former officers
and directors of Comdisco.
7.4 This Agreement may be signed in single or separate counterparts,
each of which shall constitute an original with the same effect as if each of
the parties had signed the same document. All counterparts shall be construed
together and shall constitute one and the same instrument.
7.5 Any notice or request specifically provided for or permitted to be
given under this Agreement must be in writing. Notice may be served in any
manner, including by facsimile or nationally recognized overnight courier
service, but shall be deemed delivered and effective as of the time of actual
delivery thereof to the addressee. For purposes of notice, the addresses of the
parties shall be as follows:
If to Comdisco, to
Comdisco, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopier: 847/518-5088
If to me, to
Xxxxxxxx X. Xxxxxxxx
0000 X. Xxxxxxx
Xxxxxxx, XX 00000
Each party named above may change its address and that of its representative for
notice by the giving of notice thereof in the manner hereinabove provided.
7.6 The failure of any party to insist upon strict performance of any
provision hereof shall not constitute a waiver of, or estoppel against
asserting, the right to require such performance in the future, nor shall a
waiver or estoppel with respect to a later breach of a similar nature or
otherwise.
7.7 If any provision of this Agreement is held invalid, such invalidity
shall not affect the other provisions hereof which can be given effect without
the invalid provision, and to this end the provisions of this Agreement are
intended to be and shall be deemed severable.
7.8 The headings in this Agreement are inserted for convenience and
identification only and are not intended to describe, interpret, define or limit
the scope, extent, or intent of this Agreement or any provision hereof.
7.9 Each party has cooperated in the preparation of this Agreement. As
a result, this Agreement shall not be construed against any party on the basis
that the party was the draftsperson.
7.10 This Agreement is personal to me and may not be assigned by me
in any manner to any other person or entity.
SIGNATURE: _________________________________________________
Xxxxxxxx X. Xxxxxxxx
DATE SIGNED: April ____, 2001.
The undersigned hereby certifies that the above-named person appeared
before me, signed this document, and verified that this document was being
signed voluntarily.
-------------------------------
Notary Public
My Commission Expires:____________
ACCEPTED FOR COMDISCO, INC.
BY: _____________________________________________________
C. Xxxxx Xxxxxxx
Non-Employee Director of Comdisco, Inc.
Member, Compensation Committee, Board of Directors
DATE SIGNED: April ____, 2001.
