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Exhibit 10.24
[BLACK BOX LETTERHEAD]
June 22, 1998
VIA MESSENGER
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Xx. Xxxxxxx X. Xxxxxxxxxx
000 Xxxxxxxxx Xxxxx
XxXxxxxx, XX 00000
Re: Separation Agreement
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Dear Xx. Xxxxxxxxxx:
This letter agreement ("Agreement") is intended to set forth the
understandings we recently reached regarding your retirement from active
employment by Black Box Corporation (the "Corporation") and certain related
matters, as follows:
Section 1. Cessation of Active Employment. Your last day of full-time
work at the Corporation will be June 30, 1998. You will be on paid vacation for
the period July 1, 1998 through December 8, 1998 (the "Retirement Date"),
during which period you will be treated for all purposes as a regular
Corporation employee who is on an approved vacation leave.
Section 2. Additional Payments. The Corporation shall make the
following payments to you: (i) $850,000 representing the remaining portion of
your award under the Corporation's Key Employee Incentive Compensation Plan,
with respect to fiscal years 1996-1998, which amount shall be paid to you on or
before the earlier to occur of (a) December 31, 1998 and (b) the date on which
such amount or portion thereof is accrued as a liability on the books and
records of the Corporation in accordance with generally accepted accounting
principles, and (ii) $36,000, representing accrued but unpaid vacation, which
amount shall be paid to you on December 8, 1998.
Section 3. Stock Options. Effective as of September 1, 1998, you will
be fully vested in all of the stock options which you have been awarded under
the Black Box Corporation 1992 Stock Option Plan ("Plan"). As of the Retirement
Date, you will be deemed to have terminated employment with the Corporation on
account of "retirement" for purposes of Article XI, subparagraph (b) of the
Plan and each related Non-Qualified Stock Option Agreement to which you are a
party. To the extent that the vesting provisions of any option agreements to
which you and the Corporation are parties are inconsistent with the foregoing,
such provisions shall be disregarded. Such options will remain exercisable
through March 8, 1999 (i.e., three (3) months from the Retirement Date). The
Corporation shall take such action as may be necessary to effectuate the
acceleration of vesting and exercisability of options described in this Section
3.
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June 22, 1998
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Section 4. Consulting. For the nine-month period beginning December
9, 1998 and ending August 31, 1998 ("Consulting Period"), you will be available
to act as a consultant (and not as an employee) to the Corporation. The
Corporation will pay you a per diem consulting fee of $500 for each day of
consultation provided by you at the request of the Corporation, payable as of
the last business day of each calender month during the Consulting Period.
During the Consulting Period, you agree to be available to the Corporation to
assist in various projects as may be assigned to you by the Corporation from
time to time. The Corporation agrees to reimburse you for any travel and out of
pocket expenses you may incur in conjunction with such assignments.
Section 5. Participation in Employee Benefit Plans. Your
participation as an active employee in the Corporation's employee benefit
plans will cease as of the Retirement Date or at such later date as may be
provided pursuant to the terms of any such plans.
Section 6. Payments Upon Death or Disability. In the event of your
disability or death prior to receipt of the various payments and benefits
provided to you and your eligible dependents pursuant to the terms of this
Agreement, any remaining payments or benefits shall be provided to you in the
event of your disability or to your surviving spouse (if then living, otherwise
equally to your surviving children, or to such other beneficiaries as you may
designate in writing provided to the Corporation from time to time) in the
event of your death.
Section 7. Non-Compete/Non-Solicit. Your obligations pursuant to the
Non-Compete and Non-Solicit Agreement dated January 1998 shall remain in full
force and effect and those obligations shall be in addition to any other
obligations enforceable against you pursuant to this Agreement or Attachment A.
Section 8. Release and Remedies. Your right to receive the benefits
referred to in this Agreement is conditioned on your execution of the Release
and Separation Agreement that is attached hereto as Attachment A, the terms of
which are incorporated into this Agreement. Your sole and exclusive remedy in
the event of a breach of this Agreement by the Corporation shall be, and the
Corporation's liability shall be limited to, damages equal to the payments and
benefits required to be provided by the Corporation under this Agreement, plus
reasonable attorney fees and costs incurred by you if you are successful in
enforcing your rights under the Agreement.
Section 9. Arbitration. Except as otherwise provided in this
Agreement, the Corporation and you hereby consent to the resolution by
arbitration of all claims or controversies for which a court otherwise would be
authorized by law to grant relief, in any way arising out of, relating to or
associated with the terms and/or enforcement of this Agreement. This does not
apply to claims by the Corporation for injunctive and/or other equitable relief
for prohibited competition and/or solicitation and/or the use and/or
unauthorized disclosure of trade secrets or confidential information.
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Any claims subject to arbitration pursuant to this Agreement, upon
the request of you or the Corporation, shall be submitted to and settled by
arbitration before a single arbitrator in the Commonwealth of Pennsylvania
pursuant to the commercial arbitration rules then in effect of the American
Arbitration Association (or at any other place or under any other form of
arbitration mutually acceptable to you and the Corporation). Any award rendered
shall be final and conclusive upon you and the Corporation, and a judgement may
be entered in the highest court, state or federal, having jurisdiction.
Section 10. Successors.
(a) This Agreement shall be binding upon and inure to the benefit of
you and your heirs and estate and the Corporation and its successors and
assigns.
(b) The Corporation shall require any successor (direct or indirect,
by consolidation, liquidation, purchase, acquisition of assets, or otherwise)
to expressly assume and perform the Corporation's responsibilities and
liability hereunder to the same extent that the Corporation would have been
required to perform if no succession had taken place.
Section 11. Assignment.
(a) Any rights and interest that you, your beneficiaries and/or your
estate may have hereunder shall not be assignable (in law or equity) or subject
to any manner of alienation, sale, transfer, claims of creditors, pledge,
attachment, garnishment, levy, execution, or encumbrances of any kind, and any
attempt to do so shall be void.
(b) Any assignment of the Corporation's responsibilities and
liability hereunder shall not relieve the Corporation of its responsibilities
and liability hereunder.
Section 12. No Funding. Your rights and interest hereunder shall be
that of a general unsecured creditor of the Corporation, and you shall not have
any preferred claims on, or any beneficial interest in, the assets of the
Corporation.
Section 13. Withholding. All amounts payable hereunder shall be
subject to withholding for taxes (federal, state, and local) to the extent
required by applicable law.
Section 14. Severability and Waivers.
(a) Any provisions of this Agreement prohibited by law shall be
ineffective to the extent of such prohibition without invalidating the
remaining provisions.
(b) The failure by you or the Corporation to insist upon strict
compliance with any provisions of this Agreement shall not be deemed to be a
waiver of such provision. Any waiver of any provision of this Agreement shall
not be deemed to be a waiver of any other provision,
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June 22, 1998
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and any waiver of default in any provision of this Agreement shall not be
deemed to be a waiver of any later default.
Section 15. Entire Understanding Amendment.
(a) This Agreement represents the entire understanding of you and
the Corporation with respect to the matters set forth herein.
(b) Any previous agreements to which you and the Corporation or its
predecessors or related entities are parties, including, without limitation,
the Agreement dated December 20, 1994 between you and the Corporation, shall be
null and void and of no effect whatsoever.
(c) Termination, revocation, or amendment of this Agreement shall be
made only in a writing executed by both you and the Corporation.
Section 16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
You should carefully consider the matters outlined in this Agreement.
If, after due deliberation and consultation with such professional advisors as
you deem appropriate, including a lawyer of your own choice, you agree with the
terms of this Agreement, please sign where indicated below and return this
letter to my office prior to July 14, 1998. The additional enclosed copy of
this letter is for your files.
Very truly yours,
BLACK BOX CORPORATION
By: /s/ XXXX X. XXXXX
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Xxxx X. Xxxxx, President
Accepted and Agreed:
/s/ XXXXXXX X. XXXXXXXXXX
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Xxxxxxx X. Xxxxxxxxxx
Date: June 22, 1998
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ATTACHMENT "A"
RELEASE AND SEPARATION AGREEMENT
THIS RELEASE AND SEPARATION AGREEMENT ("Separation Agreement"),
effective as of June 22, 1998, by and between Black Box Corporation
("Corporation") and Xxxxxxx X. Xxxxxxxxxx ("Executive").
WITNESSETH:
WHEREAS, the Executive has been employed by the Corporation and is a party
to a letter agreement with the Corporation dated June 22, 1998 ("Letter
Agreement"), which requires the Executive to execute this Separation Agreement
in order to receive the benefits provided under the Letter Agreement; and
WHEREAS, the Executive desires to execute this Separation Agreement in
order to receive the benefits ("Termination Benefits") provided under the
Letter Agreement;
NOW THEREFORE, the parties, intending to be legally bound hereby, and in
consideration of the representations and covenants set forth herein, agree to
the following terms and conditions:
1. Recitals. The above recitals are true and correct and are
incorporated into the substantive provisions of the Separation Agreement.
2. Release and Waiver of Rights. In consideration of the Termination
Benefits provided to the Executive by the Corporation pursuant to the Letter
Agreement, the Executive, intending to be legally bound:
(a) hereby releases and forever discharges the Corporation as of the
date of this Separation Agreement and thereafter, its subsidiaries, successors,
assigns and affiliates, and all its and their present or former employees,
agents and directors and their respective heirs, executors, administrators,
successors and assigns, from all claims, charges, complaints or causes of
action except with respect to the Corporation's obligations to provide the
Termination Benefits, and which the undersigned now has or may or can hereafter
have, known or unknown, by reason of any cause whatsoever, on account of, or in
anywise arising out of any transactions or events which have occurred prior to
the signing of this Agreement, and specifically with regard to or relating to
the Executive's employment with the Corporation or the termination thereof,
under Title VII of the Civil Rights Act of 1964, as amended, the Pennsylvania
Human Relations Act, as amended, the Equal Pay Act, as amended, the Age
Discrimination in Employment Act of 1967, as amended, The Americans With
Disabilities Act, The Employee Retirement Income Security Act of 1974, the
Pittsburgh Ordinance on Human Relations, or any similar federal, state or local
statutes, ordinances or regulations.
(b) hereby agrees not to file or aid or participate in any lawsuit
filed against the Corporation as of the date of this Separation Agreement and
thereafter, its subsidiaries, successors, assigns and affiliates, and all its
and their present or former officers, employees,
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agents and directors and their respective heirs, executors, administrators,
successors and assigns arising out of, or related to, any employment
relationship between the Corporation and the Executive or any other person or
persons. If Executive breaches this promise and files a lawsuit against any
person or entity released hereby, Executive agrees to pay any such person or
entity the legal fees and related expenses incurred as a result of his broken
promise.
(c) hereby agrees to abide by the terms of the Letter Agreement and
the Non-Compete and Non-Solicit Agreement referred to in Section 7 of that
Agreement.
3. Remedies for Breach. In further consideration of the benefits
provided to the Executive by the Corporation pursuant to the Letter Agreement,
the Executive, intending to be legally bound, hereby recognizes that damages in
the event of breach of this Separation Agreement by the Executive would be
impossible to ascertain, and therefore agrees that the Corporation, in addition
to and without limiting any other remedy or right it may have, shall have the
right to an injunction or other equitable relief in any court of competent
jurisdiction, enjoining any such breach, and the Executive hereby waives any
and all defenses he may have on the ground of lack of jurisdiction or
competence of the court to grant such an injunction or other equitable relief.
The existence of this right shall not preclude the Corporation from pursuing
all other rights and remedies at law or in equity that the Corporation may have.
4. Successors. The rights of the Corporation and any subsidiary
corporations hereunder shall run in favor of the Corporation and such subsidiary
corporations and their respective successors, assigns, nominees or other legal
representatives. Termination of the Executive's employment shall not operate to
relieve the Executive of any remaining obligations hereunder, and all such
obligations are binding upon his heirs, executors, administrators, or other
legal representatives. The obligations of the Corporation hereunder shall be
binding upon the Corporation and its respective successors, assigns, nominees or
other legal representatives.
5. Termination of Employment. The Executive hereby acknowledges that
his employment with the Corporation will terminate in accordance with the terms
of the Letter Agreement and that thereafter he will no longer have any rights as
an active employee. The Executive specifically understands and agrees that the
Executive's separation from employment is not in violation of any oral or
written promise or agreements of any nature whatsoever, whether express or
implied.
6. Consultation with Attorney and Right of Revocation. The
Executive is advised to consult with an attorney of his choice before signing
this Release and Separation Agreement. The Executive will be allowed a period of
twenty-one (21) days from June 22, 1998, in which to consult with an attorney
about the terms of this Separation Agreement. This Separation Agreement shall
not become effective until seven (7) calendar days following the date of the
Executive's signature. Prior to that time, the Executive may revoke this
Agreement by giving written notification to the Corporation, and repay the
Corporation all monies paid and costs incurred by the Corporation hereunder.
7. Return of Corporation Property. The Executive agrees that he or
she will return to the Corporation any of its property which Executive may have
in his or her possession including
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but not limited to computers, telephones, beepers, other office equipment,
records and data (regardless of the medium in which it is stored). In the event
Executive fails to return any of the Corporation property, Executive hereby
authorizes the Corporation to deduct the fair market value of any such property
from any payments which are made to Executive by the Corporation.
8. Amendment. This Release and Separation Agreement shall be
amended only pursuant to written agreement signed by the parties.
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9. Construction of Agreement. This Release and Separation Agreement
shall be governed by and construed under the laws of the Commonwealth of
Pennsylvania without regard to its laws relating to choice of laws. In the
event that any one or more of the provisions of this Agreement shall be held to
be invalid, illegal or unenforceable, the validity, legality or enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
BY SIGNING THIS RELEASE AND SEPARATION AGREEMENT, YOU ARE WAIVING IMPORTANT
RIGHTS.
WITNESS: BLACK BOX CORPORATION
/s/ XXXX X. XXXXX By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx Xxxx X. Xxxxx, President
Date: June 22, 1998 Date: June 22, 1998
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WITNESS:
/s/ XXXX X. XXXXX /s/ XXXXXXX X. XXXXXXXXXX
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Xxxxxxx X. Xxxxxxxxxx
Date: June 22, 1998 Date: June 22, 1998
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I, Xxxxxxx X. Xxxxxxxxxx, received the Release and Separation
Agreement from Black Box Corporation on June 22, 1998, and hereby acknowledge
the following:
1. Black Box Corporation has given me twenty-one (21) days from
June 22, 1998, in which to consult an attorney or otherwise
consider the terms of this Agreement; and
2. I have fully considered the matters contained in this Release
and Separation Agreement and have voluntarily elected to execute
this Agreement prior to the expiration of the Twenty-one (21) day
period. This election has been made by me after having a full
and fair opportunity to discuss this matter with an attorney or
any other advisors of my choice.
Date: June 23, 1998 /s/ XXXXXXX X. XXXXXXXXXX
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Xxxxxxx X. Xxxxxxxxxx
Date: June 23, 1998 /s/ XXXX X. XXXXX
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Witness
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