EXHIBIT 10.11
October 30, 1998
BY FEDERAL EXPRESS
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Xx. Xxxxx X. Key
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Dear Xxxx:
As we have discussed, your employment with Omega Holdings, Inc. (the
"Company") will terminate as of October 14, 1998 (the "Separation Date").
Provided that you accept it, this letter (the "Agreement") contains the
agreement between you and the Company concerning your severance arrangements, as
follows:
1. In signing this Agreement, you resign all positions and offices held by
you with the Company and its Affiliates effective as of the Separation Date and
you acknowledge receipt of all pay due to you for all work performed for the
Company and its Affiliates through the Separation Date. You also acknowledge
receipt of pay for all vacation time you had earned, but not used, as of the
Separation Date, as reflected on the books of the Company. It is understood that
the Company will take actions in reliance on your resignation and that it shall
become irrevocable on the Effective Date (as defined in Section 16 below). As
used in this Agreement, (a) "Affiliates" means each of Xxxxxx Capital
Corporation, a New York corporation, Mezzanine Lending Associates I, II & III,
L.P., Senior Lending Associates I & II, L.P., and any other entity with which
the Company has a management or advisory contract or relationship, any direct or
indirect investor in any of the foregoing entities, any entity in which any such
entity has an investment, any officer or director of the Company, and any Person
directly or indirectly controlling, controlled by or under common control with
the Company (including, without limitation, Xxxxxxx Xxxxxx), where control may
be by either management authority or equity interest, and (b) "Person" means an
individual, a corporation, a limited liability company, an association, a
partnership (including, without limitation, a limited partnership), an estate, a
trust and any other entity or organization.
2. In consideration of your acceptance of this Agreement and subject to
your fully meeting your obligations under this Agreement:
(a) The Company will provide you severance pay, in the form of salary
continuation, at your current base rate of pay, for the period of 12 months
following the
Separation Date (the "Severance Pay Period"). Payments will be made in the
form of salary continuation at the Company's regular payroll periods in
accordance with the Company's regular payroll practices, beginning on the
next regular payday following the Effective Date; provided, however, that
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any and all payments made to you by the Company after the Separation Date
and prior to the Effective Date shall be credited against and shall reduce
the amounts payable to you under this Section 2(a). Payments will be
calculated at your final base rate of pay. If this Agreement takes effect
after the Separation Date, the first payment will nonetheless be
retroactive to the Separation Date.
(b) If you elect to continue your participation in the Company's group
medical and dental plans under applicable federal law ("COBRA") by signing
and returning in a timely manner the election form that will be provided
you, then, until the conclusion of the Severance Pay Period or, if earlier,
until the date you cease to be eligible for participation under COBRA, the
Company will contribute to the premium cost of your coverage and that of
your eligible dependents under the plans at the same rate that it has
previously contributed to the premium cost of your coverage and that of
your eligible dependents, provided you pay the remainder of the premium
cost, at the rate that you have previously contributed to the premium cost
of your coverage and that of your eligible dependents, by payroll
deduction. After the Company's contributions end, you may continue coverage
for the remainder of the COBRA period, if any, by paying the full premium
cost plus a small administrative fee. The benefits of the plans are subject
to the conditions and limitations of the plans themselves and any disputes
concerning eligibility for, or payment of benefits under, the plans shall
be settled in accordance with the terms thereof and neither the Company nor
any of its Affiliates shall be liable to you, your heirs or beneficiaries,
or anyone else claiming through you, for payment of benefits under the
plans.
(c) The Company will repurchase, and you agree to sell to the Company,
on the Effective Date, all of the shares of Common Stock, $.01 par value
per share (the "Common Stock"), of the Company, and options to purchase
shares of Common Stock of the Company, originally issued to you, which
shares and options are listed on Schedule I attached hereto (the
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"Management Shares"). The Company will repurchase the Management Shares on
the Effective Date at a price per share equal to $1,362.68 (based upon the
equity value calculation attached hereto as Exhibit A) less any applicable
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exercise price associated with such Management Shares. Payment for the
Management Shares will be by wire transfer of $376,002.10 in immediately
available funds in accordance with the wire transfer instructions provided
by you in writing to the Company prior to the Effective Date (the "Bank
Account"), and delivery to you of a call note in substantially the form
attached hereto as Exhibit B (the "Call Note") in the principal amount of
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$855,323.93.
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(d) If the Company meets or exceeds its financial targets for the
fiscal year ended December 31, 1998 as set forth in Exhibit C attached
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hereto (the "Financial Targets"), as evidenced by reference to the
Company's final internal financial statements for the fiscal year ended
December 31, 1998 prepared by the Company in accordance with past practices
(the "Company Financial Statements"), the Company will pay to you at the
same time that it makes payments to active management with respect to
amounts payable for meeting the Financial Targets, but in no event later
than March 31, 1999, the following amounts:
i. As payment in lieu of granting to you an option to purchase
173.3054 shares of the Company's Common Stock at an exercise
price of $1,000.00 per share (the "1998 Option"), or any
obligation to issue or grant the 1998 Option to you hereafter,
$62,854.64 (based upon the equity value calculation attached
hereto as Exhibit A) by wire transfer of immediately available
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funds to the Bank Account; and
ii. The sum of $103,125.00 by wire transfer of immediately available
funds to the Bank Account in full and complete satisfaction of
any and all amounts due or owing to you as a bonus for the fiscal
year ended December 31, 1998.
(e) If the Company does not meet or exceed the Financial Targets as
evidenced by reference to the Company Financial Statements, the Company
will not, and will have no obligation under Section 2(d) to, pay to you any
of the amounts described in Section 2(d) or grant to you at any time after
the Effective Date the 1998 Option.
(f) You hereby represent and warrant to the Company that other than
the Management Shares set forth on Schedule I attached hereto, you own no
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equity interest in the Company and have no right to acquire any such
interest. Concurrently with returning this Agreement to the Company and
prior to the Effective Date, you hereby agree to deliver to Ropes & Xxxx at
the address set forth below its name in Section 15, the original Option
Certificate dated May 13, 1998 and referenced in Schedule I, the original
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Option Letter dated March 5, 1998, and the original Receipt acknowledging
the exchange of the Option Letter for the Option Certificate, each in
substantially the form attached hereto as Exhibit D, each to be held in
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escrow on your behalf until the Effective Date, together with irrevocable
instructions and consent to the transfer to the Company of all of the
Management Shares referenced in Schedule I in accordance with the terms of
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this Agreement, including irrevocable instructions to American National
Bank and Trust Company of Chicago, as trustee (the "Rabbi Trustee") under
the Rabbi Trust Agreement dated as of June 13, 1997 by and between the
Company and the Rabbi Trustee, regarding such transfer, all such
instructions and consents to be substantially in the forms attached hereto
as Exhibit E.
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3. All payments by the Company under this Agreement will be reduced by
all taxes and other amounts that the Company is required to withhold under
applicable law and all other deductions authorized by you.
4. You agree that the payments provided under Sections 2 of this
Agreement are in full and complete satisfaction of any and all sums which are
now or might hereafter have become owing to you from the Company for services
rendered by you to the Company or otherwise. You will not continue to earn
vacation or other paid time off after the Separation Date and except as
expressly provided in Section 2(b), your participation in all employee benefit
plans of the Company will end as of the Separation Date, in accordance with the
terms of those plans.
5. Your obligations under the Senior Management Non-Competition Agreement
dated as of June 13, 1997 among Omega Merger Corp., a Delaware corporation
("Merger Corp"), Xxxx X. Xxxxxx, Xx. and you, a copy of which is attached hereto
as Exhibit F (the "Non-Competition Agreement"), shall remain in full force and
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effect in accordance with its terms, including without limitation your
obligation not to disclose confidential information of the Company and its
Affiliates and your obligation not to solicit the employees, clients and active
prospects of the Company as provided therein. As you know, Merger Corp. merged
with and into the Company on June 13, 1997 and your obligations to Merger Corp.
are obligations to the Company.
6. You agree that you will not disclose this Agreement or any of its
terms or provisions, directly or by implication, except to members of your
immediate family and to your legal and tax advisors, and then only on condition
that they agree not to further disclose this Agreement or any of its terms or
provisions to others.
7. You agree that you will continue to support the good reputation of the
Company in the community; that you will not disparage the Company or any of the
people or organizations connected with it; and that you will not otherwise do or
say anything that could disrupt the good morale of the employees of the Company
or any of its Affiliates or otherwise harm their interests or reputation. You
further agree to cooperate fully with the Company to assure a smooth transition
of your duties and responsibilities.
8. You agree to cooperate with the Company hereafter with respect to all
matters arising during or related to your employment, including but not limited
to all matters in connection with any governmental investigation, litigation or
regulatory or other proceeding which may have arisen or which may arise
following the signing of this Agreement. In addition, you agree to execute and
deliver all other documents reasonably requested by the Company in connection
with consummation of the transactions contemplated hereby.
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9. In signing this Agreement, you give the Company assurance that you
have returned to the Company any and all documents, materials and information
related to the business, whether present or otherwise, of the Company and its
Affiliates, and all keys and other property of the Company and its Affiliates,
in your possession or control. Recognizing that your employment with the Company
has terminated, you agree that you will not, for any purpose, attempt to access
or use any computer or computer network or system of the Company or any of its
Affiliates, including without limitation their electronic mail systems.
10. In order to be certain that this Agreement will resolve any and all
concerns that you might have, the Company requests that you carefully consider
its terms, including the release of claims set forth in Section 12 below and, in
that regard, encourages you to seek the advice of an attorney before signing
this Agreement.
11. This Agreement contains the entire agreement between you and the
Company and replaces all prior and contemporaneous agreements, communications
and understandings, whether written or oral, with respect to your employment and
its termination and all related matters, excluding only the Non-Competition
Agreement. This Agreement will be governed by and interpreted in accordance with
the laws of the Commonwealth of Massachusetts, without regard to the conflict of
laws principles thereof.
12. Release of Claims.
(a) In exchange for the special severance pay and benefits provided
you under this Agreement, and for other good and valuable consideration the
receipt of which is hereby acknowledged, you, on your own behalf and on
behalf of each Person who is or was or may become a beneficiary, heir,
executor, administrator, legatee, devisee, representative, or assign, and
all others connected with you (each a "Key Affiliate"), hereby release and
forever discharge the Company and its Affiliates, and each Person who is or
was or may become an officer, director, shareholder, employee, agent,
general or limited partner, advisory board member, representative,
predecessor, successor, or assign of the Company or any of its Affiliates
and all others connected with any of them, both individually and in their
official capacities (each a "Released Party" and collectively, the
"Released Parties"), from liability for any and all causes of action,
rights and claims, of whatever type or description, in law and in equity
(collectively, the "Claims"), which you have ever had in the past, now
have, or might now have, through the date you sign this Agreement,
including without limitation (i) Claims in any way arising out of or
connected with your relationship with the Company as an officer, director,
employee, shareholder, or optionholder or pursuant to Title VII of the
Civil Rights Act, the Americans with Disabilities Act, the Age
Discrimination in Employment Act, the fair employment practices statutes of
the states in which you have provided services to the Company or its
Affiliates, or any other federal, state or local employment law, regulation
or other requirement, and (ii) Claims relating to the purchase, ownership
or sale of the capital stock of the Company, excluding only the Surviving
Claims (as hereinafter defined). Without limiting the foregoing in any
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fashion, you acknowledge and agree that by executing this Agreement you
hereby waive any rights, statutory or otherwise, to any Claims (other than
Surviving Claims) that you do not know or suspect to exist at the time of
executing this Agreement.
(b) Nothing contained in this Agreement shall operate to release or
discharge the Company or any of the other Released Parties of or from or
otherwise affect any of your rights in respect of any Claim arising out of
or relating to the performance of the Company's obligations under Section 2
of this Agreement (the "Surviving Claim").
(c) You represent and warrant to the Company and to each other
Released Party, on your own behalf and on behalf of each of the Key
Affiliates, that neither you nor any of the Key Affiliates have made or
suffered to be made or will make any assignment or transfer of any Claim
(other than a Surviving Claim).
13. It is expressly understood and agreed that, if the Company reasonably
determines that you have materially violated any of your obligations under this
Agreement, including without limitation, (i) the failure to deliver to the
Company prior to the Effective Date the Management Shares (other than stock
certificate number 51 representing 1,250 shares of the Company's Common Stock
held by the Rabbi Trustee for your benefit) and the irrevocable instructions and
consents regarding the transfer of the Management Shares to the Company as
contemplated by this Agreement, or (ii) a breach of the Non-Competition
Agreement, the Company, in addition to any other remedies to which it may be
entitled by law or in equity, shall be entitled to reimbursement, upon demand,
of all sums paid to you or on your behalf under this Agreement and the Company
shall have no further obligation to you thereafter. You agree not to contest
your obligation to make reimbursement pursuant to such demand. It is further
expressly understood and agreed that reimbursement by you pursuant to this
Section 13 shall not relieve you of any of your other obligations under this
Agreement.
14. In signing this Agreement, you give the Company assurance that you
have signed it freely and voluntarily and with a full understanding of its terms
and that you have had sufficient opportunity to consider this Agreement and to
consult with any of the persons referenced in Section 6 of this Agreement before
signing it. In addition, by signing this Agreement, you represent and affirm
that you have not relied on any promises or representations, written or oral,
express or implied, by anyone connected with the Company or any of its
Affiliates that are not set forth expressly in this Agreement.
15. Any notice or demand which is required or provided to be given under
this Agreement shall be deemed to have been sufficiently given and received for
all purposes when delivered by hand, telecopy, telex or other method of
facsimile, or, if sent by certified or registered mail, postage and charges
prepaid, return receipt requested, when deposited in a United States mailbox, or
one days after being sent by overnight delivery providing receipt of delivery,
to the following addresses:
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(i) If to the Company, to:
Omega Holdings, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: President
with a copy to:
Xxxxxx Capital Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
and a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: X. Xxxxxxx Xxxxxxxxx, Esq.
(ii) If to Xxxxx X. Key, to you at:
Xx. Xxxxx X. Key
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
or to such other address as may have been furnished by any party to the other
party and actually received.
[Remainder of Page Intentionally Left Blank]
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16. If the terms of this Agreement are acceptable to you, please sign,
date and return it to me within twenty-one days of the date you receive it. You
may revoke this Agreement at any time during the seven-day period immediately
following the date of your signing, provided that you do so in writing. If you
do not revoke it, then, at the expiration of that seven-day period (such date
being the "Effective Date"), this Agreement will take effect as a legally-
binding agreement between you and the Company on the basis set forth above. This
Agreement may only be amended by a writing signed by you and an expressly
authorized representative of the Company. The enclosed copy of this Agreement,
which you should also sign and date, is for your records.
Sincerely,
OMEGA HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Treasurer
ACCEPTED AND AGREED:
/s/ XXXXX X. KEY
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Xxxxx X. Key
Dated: _____________________
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SCHEDULE I
MANAGEMENT SHARES
1. Stock Certificate No. 51 representing 1,250.0000 shares of the Company's
Common Stock held for the benefit of Xxxxx X. Key by American National Bank
and Trust Company, as trustee.
2. Option Certificate dated May 13, 1998 representing an option to purchase
115.7276 shares of the Company's Common Stock at an exercise price per
share equal to $1,000.00, a copy of which is attached hereto as Exhibit D.
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EXHIBIT A
EQUITY VALUE CALCULATION
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EXHIBIT B
FORM OF CALL NOTE
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EXHIBIT C
1998 FINANCIAL TARGETS
The amount set forth opposite the caption "Operating Profit" on the Company
Financial Statements shall equal or exceed $28,753,000.00.
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EXHIBIT D
FORM OF OPTION CERTIFICATE, OPTION LETTER, AND RECEIPT
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EXHIBIT E
IRREVOCABLE INSTRUCTIONS AND CONSENTS
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EXHIBIT F
SENIOR MANAGEMENT NON-COMPETITION AGREEMENT
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