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EXHIBIT 10.10
XXX X. XXXXXX, INC.
SEVERANCE AGREEMENT
Severance Agreement ("Agreement") made effective March 1, 1996 between
Xxx X. Xxxxxx, Inc., a Pennsylvania corporation, ("Weston") and A. Xxxxxxxxx
Xxxxxxxx, Xx. ("Xxxxxxxx").
BACKGROUND
Xxxxxxxx currently is an employee of Weston. He resigned as Chairman
of Weston's Board of Directors effective March 1, 1996.
Weston and Xxxxxxxx have a written agreement with respect to
Xxxxxxxx'x employment ("Employment Agreement"), which is attached hereto as
Exhibit X.
Xxxxxx and Xxxxxxxx have entered into a separate Supplemental
Retirement Agreement ("Retirement Agreement") made as of December 31, 1989,
which is attached hereto as Exhibit X.
Xxxxxx and Xxxxxxxx agree that it would serve the best interests of
each to provide Xxxxxxxx with certain additional benefits in consideration of
Xxxxxxxx'x agreement to terminate his employment with Weston and in
consideration of his resignation as the Chairman of Weston's Board of
Directors.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Resignation Date. Effective April 1, 1996, Xxxxxxxx
shall resign and no longer be a Weston employee.
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2. Severance Benefits and Payment Conditions. In
consideration of Xxxxxxxx'x resignation and Xxxxxxxx'x agreements and
undertakings under Section 3 hereof, Xxxxxxxx shall receive the severance
benefits set forth herein provided Xxxxxxxx satisfies each of the requirements
of Section 3 hereof. Xxxxxxxx'x entitlements under the Retirement Agreement
and any employee benefit plan, including Weston's vacation plan, applicable to
a class of Weston employees which includes Xxxxxxxx shall be as provided for
therein without regard to this Agreement, except as expressly provided in this
Section. The severance benefits under this Agreement are as set forth below:
(a) Salary Continuation. Weston shall pay Xxxxxxxx
$23,715 per month for 24 months, commencing with April of 1996 and ending with
March of 1998. If Xxxxxxxx dies before the last monthly payment, the remaining
payments shall be paid to his estate.
(b) Salary-At-Risk. Weston shall pay Xxxxxxxx
the amount he earned under its Salary-At-Risk Program for the calendar quarter
ended March 31, 1996. Weston shall make the payment on or about the date
Weston makes Salary-At-Risk payments to participating employees.
(c) Retirement Agreement. For purposes of the
Retirement Agreement, Xxxxxxxx shall be treated as having a vested interest in
his retirement benefit as if he remained a Weston employee through his 65th
birthday, which is $91,000 per year for 15 years, payable in monthly
installments of $7,583.33
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for 180 months beginning with the first month following Xxxxxxxx'x 65th
birthday. If Xxxxxxxx dies after benefits commence, the remainder of the
payments shall be made in accordance with the Retirement Agreement. If
Xxxxxxxx dies before benefits commence, his designated beneficiary shall be
paid the death benefit provided for in the Retirement Agreement according to
its terms. Xxxxxxxx shall have the right to elect that payments under the
Retirement Agreement begin with any month following his 60th birthday, in which
case the benefit amount payable for the 180 month period shall be reduced as
provided under the Retirement Agreement. All other terms of the Retirement
Agreement shall remain effective, except as modified in this Severance
Agreement.
(d) Medical Benefits. Weston shall provide
medical, dental and prescription plan benefits for Xxxxxxxx on the same basis
as in effect for active employees for 24 months or until he sooner elects that
such coverages cease. After such 24-month period, Xxxxxxxx may elect
continuation coverage completely at his own expense as provided by law.
(e) Outplacement. Weston shall provide Xxxxxxxx
outplacement services at Weston's expense at the level presently in effect for
executive employees.
3. Xxxxxxxx'x Agreements and Undertakings.
(a) Cooperation Requirement. Xxxxxxxx shall
provide Weston such information pertaining to his employment with Weston as he
may have and assist Weston to transfer his duties to
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such successor or successors as Weston may designate. Weston shall reimburse
Xxxxxxxx for all reasonable expenses he incurs in fulfilling his obligations
under the preceding sentence.
(b) Non-Competition Requirement. Weston's
obligation to make payments or provide benefits under Section 2, including all
payments under the Retirement Agreement, shall terminate and Weston shall have
the right to restitution of payments made or the cost of benefits provided if
Xxxxxxxx, without Weston's prior written approval, either directly or
indirectly, for his own account or for the account of another person or entity,
for a period of two years from and after the date his employment terminates:
(i) acquires or holds a significant
financial interest in any competitor of Weston or any "Weston affiliate" (as
defined below);
(ii) competes with Weston or any "Weston
affiliate" in soliciting any business from any person or entity that was at any
time during the two years immediately preceding April 1, 1996 a client of
Weston or any "Weston affiliate" or potential client as to whom Weston or any
"Weston affiliate" had rendered a significant volume of service or had a
significant amount of direct business contact for the purpose of soliciting
future business; or
(iii) renders services to any competitor of
Weston or any "Weston affiliate", if such services are (A) similar in nature
(in whole or in part) to services Xxxxxxxx
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rendered to Weston or any "Weston affiliate" at any time during the two years
immediately preceding April 1, 1996.
For purposes of this Section, the term "Weston affiliate" shall mean any
business in which Weston owns directly or indirectly at least 50% of the equity
interests or 50% of the profit interests. This Section supersedes the
non-competition and non-solicitation provisions of the Employment Agreement.
This Section replaces the Non-Competition Provision of the Retirement Agreement
until April 1, 1998, at which time such provision becomes effective to and
including March 31, 1999 with respect to benefits provided under the Retirement
Agreement as modified by this Agreement.
(c) Release. Xxxxxxxx shall deliver a release
to Weston in the form attached hereto as Exhibit C.
4. Acceleration Election. Weston may, at its option, at
any time or from time to time, in its absolute and sole discretion, accelerate
the time and the manner of making any one or more payments required by this
Agreement.
5. Non-Alienation. None of the rights or payments
contemplated under this Agreement may be sold, given away, assigned,
transferred, pledged, mortgaged, alienated, hypothecated or in any way
encumbered or disposed of by Xxxxxxxx, or any executor, administrator, heir,
legatee, distributee, relative or any other person or entity, whether or not in
being, claiming under Xxxxxxxx by virtue of this Agreement, and none of the
rights or benefits contemplated by this Agreement shall be
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subject to execution, attachment or similar process. Any sale, gift,
assignment, transfer, pledge, mortgage, alienation, hypothecation or
encumbrance, or other disposition of this Agreement or of such rights or
benefits contrary to the foregoing provisions, or the levy or any attachment or
similar process thereon, shall be null and void and without effect.
6. Taxes. Weston shall withhold from payments to
Xxxxxxxx and remit to the appropriate government agencies such payroll taxes
and income withholding as Weston determines is or may be necessary under
applicable law with respect to amounts paid under this Agreement.
7. General Obligation. The rights and benefits of
Xxxxxxxx hereunder shall be solely those of an unsecured creditor of Weston.
8. Waiver of Breach. Weston's failure to insist upon
strict compliance with any of the terms, covenants or conditions hereof shall
not be deemed a waiver of such term, covenant or condition, nor shall Weston's
waiver or relinquishment of any right or power hereunder at any one or more
times be deemed a waiver or relinquishment of such right or power at any other
time or times.
9. Modification. This Agreement shall not be modified
or amended except by written instrument duly executed by Weston and Xxxxxxxx.
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10. Severability. If any clause, sentence, paragraph,
section, or part of this Agreement shall be held by any court of competent
jurisdiction to be invalid, such judgment shall not affect, impair or
invalidate any of the other parts hereof.
11. Notices. Any notice required or permitted to be
given under this Agreement shall be sufficient if in writing and either
hand-delivered to the addressee or sent by registered or certified mail, if to
Xxxxxxxx, to Xxxxxxxx'x address as shown on Weston's books, and if to Weston,
addressed to the Chairman of Weston's Board of Directors at Weston's principal
business office located at Xxx Xxxxxx Xxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx
00000-0000 or such other address as Weston or Xxxxxxxx may designate in
writing.
12. Arbitration. Any controversy or claim arising out of
or relating to this Agreement or the breach thereof shall be settled by
arbitration in the City of Philadelphia in accordance with the rules of the
American Arbitration Association then in effect. The decision of the
arbitrator shall be final and binding upon the parties, and judgment upon the
decision rendered in such arbitration may be entered in any court having
jurisdiction.
13. Captions. The captions of the various provisions
shall not be deemed a part of this Agreement and shall not be construed in any
way to limit the contents hereof but are inserted herein only for reference and
for convenience of the parties.
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14. Governing State Law. This Agreement may be executed
at different times in different places, but all questions concerning the
construction or validity hereof, or relating to performance hereunder, shall
be determined in accordance with the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, Weston has caused this Agreement to be executed by
its duly authorized officers, and Xxxxxxxx has hereunto set his hand and seal
as of the day and year first above written.
ATTEST: XXX X. XXXXXX, INC.
/s/ XXXXXX X. XXXXXXXX By: /s/ XXX X. XXXXXX
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Secretary
(SEAL)
/s/ A. XXXXXXXXX XXXXXXXX, XX.
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A. Xxxxxxxxx Xxxxxxxx, Xx.
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CROSS RELEASE
Xxx X. Xxxxxx, Inc. ("Weston") and A. Xxxxxxxxx Xxxxxxxx, Xx.
("Xxxxxxxx") entered into a Severance Agreement made effective March 1, 1996.
To satisfy the requirement of subsection 3(c) of the Severance Agreement,
Xxxxxxxx and Xxxxxx hereby grant the other the Releases set forth below:
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1. Release by Weston. Weston, on behalf of itself and its
subsidiaries, irrevocably and unconditionally releases and forever discharges
Xxxxxxxx, his heirs, administrators and legal representatives from any and all
manner of actions, causes, matters, suits, debts, dues, accounts, bonds,
covenants, agreements, judgments, claims, controversies, guarantees,
warranties, damages, labilities, or demands of any nature whatsoever in law or
equity, whether or not known to it, which it has ever had, now has, or
hereafter can, shall or may have, for, upon, or by reason of any matter,
action, omission to act, transaction, practice, conduct, thing or cause of any
kind whatsoever from the beginning of the world to the date it executes this
Release. Such remise, release and discharge of Xxxxxxxx includes, without
limitation, any and all claims under any and all federal or state statutes or
the common law and extends without limitation to any and all acts, practices or
conduct by Xxxxxxxx whether or not it has knowledge of such acts, omissions,
practices, conduct or the effects thereof, or if any such effects exist or may
in the future exist as a result of any
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acts, omissions, practices, or conduct that occurred prior to the date it
executes this Release.
2. Limitation on Weston's Release. Notwithstanding the
foregoing, this Release shall not prevent Weston from enforcing its rights
under the Severance Agreement.
3. Release by Xxxxxxxx. Xxxxxxxx, for himself, his heirs, and
personal and legal representatives, except as provided in Section 4 hereof,
does hereby irrevocably and unconditionally release, remise and forever
discharge Weston, its subsidiaries, affiliates, divisions, officers, directors
and employees (the "Releasees"), and each of them, however denominated, past,
present and future, and their predecessors, successors and assigns, of and from
any and all manner of actions, causes, matters, suits, dues, bonds, judgments,
debts, accounts, covenants, agreements, claims, controversies, guarantees,
warranties, damages, liabilities, or demands of any nature whatsoever in law or
equity, whether or not now known to him which he ever had, now has or hereafter
can, shall or may have, for, upon, or by reason of any matter, action, omission
to act, transaction, practice, conduct, cause or thing of any kind whatsoever
from the beginning of the world to the date hereof. Such release, remise and
discharge of the Releasees includes without limitation any and all claims under
any and all federal and state statutes or common law and extends without
limitation, to any and all acts, practices or conduct by the Releasees, or the
effects thereof, whether or not Xxxxxxxx now has knowledge of
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such acts, omissions, practices, conduct or the effects thereof, if any such
effects exist or may in the future exist as a result of any act, omission,
practice or conduct that occurred prior to the date hereof. Except as provided
in Section 4, this release shall specifically include, but not be limited to,
the following:
(a) any and all claims and matters of any kind which
arise or might arise, or which otherwise relate to Xxxxxxxx'x employment with
Weston or Xxxxxxxx'x termination of employment pursuant to the Severance
Agreement;
(b) any and all claims for wages and benefits (including
without limitation salary, stock, stock options, commissions, bonuses,
severance pay, health and welfare benefits, vacation pay and any other
fringe-type benefit);
(c) any and all claims for wrongful discharge, breach of
contract (whether written or oral, express or implied), and implied covenants
of good faith and fair dealing;
(d) any and all claims for alleged employment
discrimination on the basis of age, race, color, religion, sex, national
origin, veteran status, disability and/or handicap, in violation of any
federal, state or local statute, ordinance, judicial precedent or executive
order, including but not limited to claims for discrimination under the
following statutes: Title VII of the Civil Rights Act of 1964, 42 U.S.C.
Section 2000e et seq., the Civil Rights Act of 1866, 42 U.S.C. Section 1981,
the Age Discrimination in Employment Act, 29 U.S.C. Section 621 et seq., the
Older Workers Benefit Protection Act, the Rehabilitation Act of
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1972, 29 U.S.C. Section 701 et seq., the Americans with Disabilities Act, 42
U.S.C. Section 1201 et seq., and the Pennsylvania Human Relations Act, 43 P.S.
Section 951 et seq.;
(e) any and all claims under any federal or state statute
relating to employee benefits;
(f) any and all claims in tort, including but not limited
to any claims for fraud, misrepresentation, defamation, interference with
contract or prospective economic advantage, intentional infliction of emotional
distress and/or negligence;
(g) any and all claims for additional commissions,
compensation or damages of any kind; and
(h) any and all claims for attorneys' fees and costs.
4. Limitation on Xxxxxxxx'x Release. This Release (a) shall not
prevent Xxxxxxxx from enforcing his rights under the Severance Agreement in
accordance with the terms thereof, (b) shall have no applicability to Weston's
obligations under the Retirement Agreement (as defined in the Severance
Agreement) or benefits payable under the terms of any "employee pension benefit
plan" within the meaning of the Employee Retirement Income Security Act of
1974, as amended, and (c) shall not release Weston from any obligation it might
otherwise have to indemnify Xxxxxxxx and hold him harmless from any claims made
against him arising out of his activities as an officer or director of Weston,
to the same extent as Weston is or may be obligated to indemnify and hold
harmless any other officer or director.
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5. Review and Revocation. Xxxxxxxx acknowledges that he has had
the opportunity to review this Release and to consider its terms with his
attorneys and advisors. Xxxxxxxx has twenty-one (21) days from the date of
distribution of this Release to him to review it and seven (7) days after the
execution date of this Release to revoke it. This Release shall not be
effective unless and until Xxxxxxxx executes it and the seven-day period has
expired.
UNDERSTOOD AND AGREED:
/s/ A. XXXXXXXXX XXXXXXXX, XX. 18 March 1996
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A. Xxxxxxxxx Xxxxxxxx, Xx. Date
/s/ XXXXX X. BRAIN
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Witness
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STATE OF PENNSYLVANIA :
: SS:
COUNTY OF XXXXXXX :
Before me, Xxxxxx X. Xxxxx, on this day personally appeared A.
Xxxxxxxxx Xxxxxxxx, Xx., known to me to be the person whose name is subscribed
to the foregoing instrument, and acknowledged to me that he executed such
instrument for the purposes and consideration therein expressed.
Given under my hand and seal of office this 18th day of March, 1996.
/s/ XXXXXX X. XXXXX
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NOTARY PUBLIC in and for
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XXX X. XXXXXX, INC.
By: /s/ XXX X. XXXXXX March 18, 1996
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Date
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