Exhibit 10.1
SEPARATION AGREEMENT
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This Separation Agreement (the "Agreement") is entered into by
and between, and shall inure to the benefit of and be binding upon, the
following parties:
Xxxxx X. Xxxxxxxxx, hereinafter referred to as "Xx. Xxxxxxxxx"
; and
XxXXXXXXX INCORPORATED, hereinafter referred to as the
"Company."
WITNESSETH:
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WHEREAS, Xx. Xxxxxxxxx resigned from employment with the
Company on September 30, 2008 (the "Resignation Date"); and
WHEREAS, the Company and Xx. Xxxxxxxxx mutually desire to
establish and agree upon the terms and conditions of Xx. Xxxxxxxxx'x separation
from service.
NOW, THEREFORE, in consideration of the mutual promises and
obligations set forth herein, Xx.Xxxxxxxxx and the Company hereby agree as
follows:
1. Payments by the Company. If a bonus is paid to Company employees for
fiscal year 2008 under the XxXxxxxxx International, Inc. Executive
Incentive Compensation Plan (the "EICP"), the Company will pay a bonus
to Xx. Xxxxxxxxx. The xxxxx amount of such bonus shall be calculated by
multiplying Xx. Xxxxxxxxx'x annualized base salary on January 1, 2008
by 100%, multiplying the resulting product by the applicable
performance factor (not to exceed 2X), and multiplying the resulting
figure by nine-twelfths (9/12). Any such bonus shall be paid in
accordance with the Company's customary practice, but in no event later
than March 15, 2009, and shall be subject to appropriate tax
withholdings.
Xx. Xxxxxxxxx previously received certain awards (the "Awards") under
the XxXxxxxxx International, Inc. 2001 Directors and Officers Long Term
Incentive Plan (the "LTIP"). Subject to the provisions of Paragraph 5
below, Xx. Xxxxxxxxx'x outstanding unvested Awards shall remain in full
force and effect during the period from the Resignation Date through
September 30, 2010 and any Awards scheduled to vest during that period
shall become vested and payable in accordance with the terms of the
LTIP and the applicable Grant Agreement. All other outstanding unvested
Awards not scheduled to vest during that period shall be forfeited,
unless a Change in Control (as defined in the LTIP) occurs and results
in an early vesting on or before September 30, 2010.
2. Retiree Benefits. As of the first day of the month coincident with or
next following his attainment of age 65, Xx. Xxxxxxxxx shall begin
receiving benefits under the Retirement Plan for Employees of XxXxxxxxx
Incorporated and Participating Subsidiary and Affiliated Companies and,
subject to Paragraph 5 below, under the Restoration of Retirement
Income Plan (the "Excess Plan"). In addition, Xx. Xxxxxxxxx shall be
entitled to receive the portion of his account balance in the XxXxxxxxx
International, Inc. New Supplemental Executive Retirement Plan ("SERP")
in which he is vested as of his Resignation Date, and the vesting of
the remaining portion of his SERP account shall be accelerated so that,
subject to Paragraph 5 below, Xx. Xxxxxxxxx is 100% vested in such
account as of his Resignation Date. SERP benefits shall be distributed
in accordance with Xx. Xxxxxxxxx'x existing election, in a single lump
sum payment on the first day of the calendar month next following the
six month anniversary of his Resignation Date.
3. Cooperation and Advisory Services. During the period beginning on the
Resignation Date and continuing for twenty-four months thereafter, Xx.
Xxxxxxxxx shall provide such cooperation and advisory services as the
Company may request with respect to matters in which he was involved
during his employment with the Company and similar matters arising in
the ordinary course of business. Additionally, the Company or its
affiliates may request Xx. Xxxxxxxxx'x assistance with respect to
matters outside the ordinary course of business; provided that any such
request shall be subject to mutually acceptable terms and conditions.
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4. Release of Claims. In consideration of the foregoing, the adequacy of
which is hereby expressly acknowledged, Xx. Xxxxxxxxx hereby
unconditionally and irrevocably releases and forever discharges, to the
fullest extent applicable law permits, the "Releasees," as defined
below, from any and every action, cause of action, complaint, claim,
demand, administrative charge, legal right, compensation, obligation,
damages (including consequential, exemplary and punitive damages),
liability, cost and/or expense (including attorney's fees) that he has,
may have or may be entitled to from or against the Releasees, whether
legal, equitable or administrative, in any forum or jurisdiction,
whether known or unknown, foreseen or unforeseen, matured or unmatured,
accrued or not accrued which arises directly or indirectly out of, or
is based on or related in any way to Xx. Xxxxxxxxx'x employment with or
termination of employment from the Company, its predecessors,
successors and assigns and past, present and future affiliates,
subsidiaries, divisions and parent corporations, including, without
limitation, any such matter arising from the negligence, gross
negligence or willful misconduct of the Releasees, (together, the
"Released Claims"); provided, however, that this Release does not apply
to any claims solely and specifically (1) arising under the Age
Discrimination in Employment Act of 1967, as amended arising after the
date this Agreement is executed, (2) for indemnification (including,
without limitation, under the Company's organizational documents or
insurance policies) arising in connection with an action instituted by
a third party against the Company, its affiliates or Xx. Xxxxxxxxx in
his capacity as a former officer or director of the Company or its
affiliates, or (3) arising from any breach or failure to perform this
Agreement.
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The parties intend this Release to cover any and all such Released
Claims, whether arising under any employment contract (express or
implied), policies, procedures or practices of any of the Releasees,
and/or by any acts or omissions of any of the Releasees' agents or
employees or former agents or employees and/or whether arising under
any state or federal statute, including but not limited to Texas'
employment discrimination laws, all federal discrimination laws, the
Age Discrimination in Employment Act of 1967, as amended, the Employee
Retirement Income Security Act of 1974, as amended, all local laws and
ordinances and/or common law, without exception. As such, it is
expressly acknowledged and agreed that this Release is a general
release, representing a full and complete disposition and satisfaction
of all of the Company's real or alleged legal obligations to Xx.
Xxxxxxxxx with the exceptions noted above. The term "Releasees" means
the Company, its predecessors, successors and assigns and past, present
and future affiliates, subsidiaries, divisions and parent corporations
and all their respective past, present and future officers, directors,
shareholders, employee benefit plan administrators, employees and
agents, individually and in their respective capacities.
Xx. Xxxxxxxxx expressly agrees that neither he nor any person acting
on his behalf will file or permit to be filed any action for legal or
equitable relief against the Releasees involving any matter related in
any way to his employment with, or resignation from employment with the
Company, its predecessors, successors, assigns and past, present and
future affiliates, subsidiaries, divisions and parent corporations,
including the matters covered by the Released Claims. In the event that
such an action is filed, Xx. Xxxxxxxxx agrees that the Releasees are
entitled to legal and equitable remedies against him, including an
award of attorney's fees. However, it is expressly understood and
agreed that the foregoing sentence shall not apply to any charge filed
by Xx. Xxxxxxxxx with the Equal Employment Opportunity Commission or
any action filed by Xx. Xxxxxxxxx that is narrowly limited to seeking a
determination as to the validity of this Agreement and enforcement
thereof. Should Xx. Xxxxxxxxx file a charge with the Equal Employment
Opportunity Commission or should any governmental entity, agency, or
commission file a charge, action, complaint or lawsuit against any of
the Releasees based on any Released Claim, Xx. Xxxxxxxxx agrees not to
seek or accept any resulting relief whatsoever.
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5. Undertakings By Xx. Xxxxxxxxx. In consideration of the foregoing,
the adequacy of which is expressly acknowledged and agreed,
unless otherwise mutually agreed between Xx. Xxxxxxxxx and the
Company, Xx. Xxxxxxxxx shall immediately return to the Company
any and all documents, records, files, reports, memoranda, books,
papers, plans, letters and any other data in his possession
regardless of the medium held or stored that relate in any way to
the business of the Company, and any credit cards, keys, access
cards, calling cards, computer equipment and software, telephone,
facsimile or other equipment or property of the Company, and
agrees that during the period beginning on October 1, 2008 and
ending on September 30, 2010:
(a) He will not at any time disclose or use for his own benefit or
purposes or for the benefit or purposes of any party other than
the Company, any trade secrets, information, data or other
confidential or proprietary information or data which may have
come to Xx. Xxxxxxxxx'x knowledge during his employment with the
Company, provided, however that the foregoing shall not apply to
information which is generally known to the industry or the
public other than as a result of Xx. Xxxxxxxxx'x breach of this
undertaking. Notwithstanding the foregoing, this undertaking
shall apply without limit of time;
(b) He will refrain from performing any act, engaging in any conduct
or course of action or making or publishing any adverse or untrue
or misleading statement which has or may reasonably have the
effect of demeaning the name or business reputation of the
Releasees or which adversely affects or may reasonably adversely
affect the best interests (economic or otherwise) of the
Releasees;
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(c) He will refrain from the solicitation, procurement, interference
with or attempt to entice away from the Company and/or its
affiliates of (i) any person or entity who is a material
customer, supplier, agent or distributor of the Company and/or
its affiliates with whom Xx. Xxxxxxxxx or any employee
subordinate to Xx. Xxxxxxxxx had contact on behalf of the Company
and/or its affiliates, or (ii) any senior employee or consultant
employed by the Company and/or its affiliates on or after the
Resignation Date; and
(d) He will refrain from any direct or indirect involvement without
prior notice to and consent of the Company, in any other
enterprise which is competitive with any trade or business
carried on by XxXxxxxxx International, Inc., its subsidiaries and
affiliates.
Xx. Xxxxxxxxx expressly acknowledges and agrees that in the event that
he institutes legal action in violation of Paragraph 4 above, or the
Company determines that he has engaged in conduct prohibited under any
of subparagraphs (a) through (d) above, or he fails to provide services
reasonably requested by the Company pursuant to Paragraph 3 above, any
payments otherwise due and owing pursuant to Paragraphs 1 above and
under the SERP referenced in Paragraph 2 above shall be forfeited and
all outstanding Awards shall be cancelled. Xx. Xxxxxxxxx further
expressly agrees that the Company shall have the right, in its sole
discretion, to suspend any such payment or benefit while an allegation
that any of the undertakings set forth in the foregoing subparagraphs
(a) through (d) have been breached is under investigation and agrees
that this Agreement shall act as a complete bar to his entitlement to
any legal, equitable or administrative remedy based upon any
forfeiture, cancellation or suspension pursuant to this Paragraph 5.
Xx. Xxxxxxxxx further agrees that if he institutes legal action in
violation of Paragraph 4 above or the Company determines that he has
engaged in conduct prohibited under any of subparagraphs (a) through
(d) above, he shall repay to the Company, within thirty (30) days of
receipt of written demand for repayment, 40% of the SERP benefits
distributed to him pursuant to Paragraph 2 above and 100% of the value
of any Award that became vested after the Resignation Date pursuant to
Paragraph 1 above. In the event that legal action is taken by the
Company to enforce this repayment obligation, the Company shall be
entitled to the amount of the repayment obligation, interest on the
unpaid amount, costs and attorney's fees.
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6. Miscellaneous Provisions.
(a) Failure on the part of the Company or Xx. Xxxxxxxxx at any time
to insist on strict compliance by the other party with any
provisions of this Agreement shall not constitute a waiver of
either party's obligations in respect thereof, or of either
party's right hereunder to require strict compliance therewith in
the future.
(b) The obligations set forth in this Agreement are severable and
divisible, and the unenforceability of any clause or portion
thereof shall not affect the enforceability of the remainder of
such clause or of any other obligation contained herein.
7. Entire Agreement. Xx. Xxxxxxxxx and the Company agree and acknowledge
that this Agreement contains and comprises the entire agreement and
understanding between the parties, that no other representation,
promise, covenant or agreement of any kind whatsoever has been made to
cause any party to execute this Agreement, and that all agreements and
understandings between the parties are embodied and expressed in these
agreements. The parties also agree that the terms of this Agreement
shall not be amended or changed except in writing and signed by Xx.
Xxxxxxxxx and a duly authorized agent of the Company. The parties to
this Agreement further agree that this Agreement shall be binding on
and inure to the benefit of Xx. Xxxxxxxxx, the Company and the
Releasees as defined in this Agreement. Any other agreements or
understandings between the parties, whether written or oral, are hereby
null and void.
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8. Timing and Consultation with Counsel. Xx. Xxxxxxxxx acknowledges that
he has been given a reasonable period of time within which to consider
this Agreement and has been advised to discuss the terms of this
Agreement with legal counsel. Xx. Xxxxxxxxx acknowledges that this
Agreement was offered to him on September 29, 2008, that he was advised
that (i) it could be executed at any time prior to October 21, 2008,
and (ii) if accepted, the Agreement could be revoked, in writing, for
up to seven (7) days following the date of such acceptance. Based upon
his review, Xx. Xxxxxxxxx acknowledges that he fully and completely
understands and accepts the terms of this Agreement, including the
Release in Paragraph 4, and enters into it freely, voluntarily and of
his own free will.
9. Applicable Law. This Agreement shall be interpreted and construed in
accordance with the laws of the State of Texas.
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I HAVE READ THE FOREGOING SEPARATION AGREEMENT, FULLY UNDERSTAND IT AND
HAVE VOLUNTARILY EXECUTED IT ON THE DATE WRITTEN BELOW, SIGNIFYING
THEREBY MY ASSENT TO, AND WILLINGNESS TO BE BOUND BY, ITS TERMS:
Date: 9/30/2008 /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
Before me, a Notary Public in and for Xxxxxx County, Texas,
and for Xxxxx X. Xxxxxxxxx, personally appeared the above-named Xxxxx X.
Xxxxxxxxx, who acknowledged that he did sign the foregoing instrument, and that
the same is his free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official
seal at Houston, Texas, this 30th day of September, 2008.
/s/ Xxxxxxxx Xxxx
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NOTARY PUBLIC
XxXXXXXXX INCORPORATED
By: /s/ Xxxxxxx Xxxxxxx, Xx.
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Xxxxxxx Xxxxxxx, Xx.
Senior Vice President, Human Resources
Before me, a Notary Public in and for Xxxxxx County, Texas,
personally appeared the above-named XxXxxxxxx Incorporated through Xxxxxxx
Xxxxxxx, Xx., its Senior Vice President, Human Resources, who acknowledged that
he did sign the foregoing instrument for and on behalf of XxXxxxxxx
Incorporated, and that the same is the free act and deed of XxXxxxxxx
Incorporated and the free act and deed of him as its agent.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal at Houston, Texas, this 30th day of September, 2008.
/s/ Xxxxxxxx Xxxx
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NOTARY PUBLIC
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