SEPARATION AGREEMENT AND GENERAL RELEASE
SEPARATION AGREEMENT AND
GENERAL RELEASE
AGREEMENT
made this 18 day of December, 2007 (this “Agreement”), by and between Xxxxx X.
Xxxxx (“Employee”) and I.C. Xxxxxx & Company LP, a Delaware limited
partnership (the “Company”).
WHEREAS,
the parties previously entered into an Executive Employment Agreement, dated
December 19, 2005 (the “Employment Agreement”), pursuant to which Employee has
been employed by the Company as its Executive Vice President and Chief Financial
Officer; and
WHEREAS,
the parties have agreed to a mutual separation of the employment relationship
and release of claims on the terms set forth herein.
NOW
THEREFORE, for good and valuable consideration, receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Employee’s
employment with the Company is terminated as of December 3, 2007 (“Effective
Date”). Employee hereby resigns from all positions held as an
employee or otherwise with the Company, I.C. Xxxxxx & Company, Inc. and any
of their affiliates and agrees to execute any and all documents of such
resignation requested by the Company, but he shall be treated for all purposes
as having so resigned as of December 3, 2007, regardless when or whether he
executes any such documentation.
2. Employee
acknowledges that he has been paid his regular salary and bonuses, minus
applicable tax withholding, through December 3, 2007.
3. Employee
had 13 unused vacation days and one unused personal day as of the date of
termination for which the Company shall pay Employee.
4. The
Company shall pay Employee $350,000 as severance in substantially equal
installments in accordance with the Company’s normal payroll practices during
the 12-month period following the termination of his employment.
5. Employee
shall continue to participate in the Company’s medical and dental plans to the
extent eligible under the applicable terms of the plans through December 31,
2008, and shall have the right to exercise his rights to continue such insurance
thereafter pursuant to COBRA.. Employee shall not be eligible to
continue to participate in the Company’s option plan and any pension,
profit-sharing, 401(k) or similar retirement plan or arrangement after the
Effective Date, but shall be entitled to his rights under those plans as of the
Effective Date.
6. Employee’s
rights with respect to outstanding equity awards shall be determined under the
terms of the applicable plan and award agreement.
7. Employee
agrees and acknowledges that the payments and benefits provided to Employee by
the Company and referred to herein exceed any payment, benefit or other valuable
right to which Employee would otherwise be entitled under the Employment
Agreement or under any policy plan or procedure of the Company.
8. (a) In
exchange for the consideration provided for herein, Employee for himself and for
his heirs, executors, administrators and assigns (hereinafter referred to
collectively as “Releasors”), forever releases and discharges the Company, I.C.
Xxxxxx & Company, Inc. and any of their subsidiaries, divisions, affiliates
or related business entities, successors and assigns and any of their past or
present members, shareholders, directors, officers, attorneys, agents, trustees,
administrators, employees or assigns (whether acting as agents or in their
individual capacities) (all entities and persons being released are hereinafter
collectively referred to as “Releasees”), to the maximum extent permitted by law
from any and all claims, demands, causes of action, fees, damages and
liabilities of any kind whatsoever, whether known or unknown, which Releasors
ever had, now have or may have against Releasees by reason of any actual or
alleged act, omission, transaction, practice, conduct, occurrence or other
matter up to and including the Effective Date, provided however, that this
release shall not relate to (1) any claims by Employee to enforce his rights
pursuant to this Agreement, or (2) any rights Employee has to be indemnified by
the Company as provided in the Company’s Articles of Incorporation, By-laws,
Company policies, or any related Director and Officer insurance
policies.
(b) Without
limiting the generality of the foregoing, this Agreement is intended to and
shall release Releasees from any and all claims, whether known or unknown, which
Releasors ever had, now have and may have against Releasees
arising from (i) any claim under the Civil Rights Act of 1964, as
amended; (ii) any other claim of discrimination or retaliation in employment
(whether based on federal, state or local law, statutory or decisional),
including but not limited to, the New York State Human Rights Law, the New York
City Human Rights Law Administrative Code, the Americans with Disabilities Act
of 1990 and the Family and Medical Leave Act; (iii) any claim of discrimination
or breach of fiduciary duty under the Employee Retirement Income Security Act of
1974, as amended (except claims for accrued vested benefits under any employee
benefit plan of the Company in accordance with the terms of such plan and
applicable law); (iv) any claim arising under the Age Discrimination in
Employment Act of 1967, as amended, and the applicable rules and regulations
thereunder; and (v) any claim for attorney’s fees, costs, disbursements and/or
the like relating to claims pursuant to such statutes.
9. (a) Employee
covenants, except to the extent prohibited by law, not to commence, maintain,
prosecute or participate in any action, charge, complaint or proceeding of any
kind (on his own behalf and/or on behalf of any other person or entity and/or on
behalf of or as a member of any alleged class of persons) in any court, or
before any administrative or investigative body or agency (whether public,
quasi-public or private), against Releasees with respect to any act, omission,
transaction or occurrence up to and including the date on which this Agreement
is executed.
(b) Employee
further represents that he has not commenced, maintained, prosecuted or
participated in any action, charge, complaint or proceeding of any kind (on his
own behalf and/or behalf of any other person and/or on behalf of or as a member
of any alleged class of persons) that is presently pending in any court, or
before any administrative or investigative body or agency (whether public,
quasi-public, or private), against or involving Releasees.
10. Employee
agrees that he will not disparage (or induce or encourage others to disparage)
the Company and its affiliates and the officers and employees of the Company and
its affiliates. The Company as an entity, and its officers, will not
disparage (or induce or encourage others to disparage) Employee. For
the purposes of this paragraph, the term “disparage” includes, without
limitation, comments or statements to the press about such other party or to any
individual or entity with whom the other party has a relationship which would
adversely affect in any manner the conduct of such other party’s business or the
reputation of the other party.
11. Employee
agrees that he shall not, prior to December 2, 2008, disclose to any person or
use in any way, any trade secrets or confidential or proprietary information of
the Company, including, without limitation, any information or knowledge
relating to (i) the business, operations or internal structure of the Company or
its affiliates, (ii) the clients (or customers) or potential clients (or
potential customers) of the Company or its affiliates, (iii) any method and/or
procedure (such as records, programs, systems, correspondence, or other
documents), relating or pertaining to projects developed by the Company or its
affiliates or contemplated to be developed by the Company or its affiliates, or
(iv) the Company’s or its affiliates’ business, which information or knowledge
Employee obtained during the term of his employment with the Company, and which
is otherwise of a secret or confidential nature. Further, Employee
covenants that he has returned to the Company, any documents, forms or other
reproductions, of any data or any information relating to or pertaining to the
Company or its affiliates, any clients (or customers) or potential clients (or
potential customers) of the Company or its affiliates, or any other confidential
information or trade secrets and has not retained any copies of such documents,
forms or other reproductions, except as authorized by the Company in
writing. Employee also covenants that he has returned to the Company
all equipment or other property belonging to the Company or its
affiliates.
12. Employee
agrees to cooperate with the Company as may be reasonably required concerning
matters that relate to or arise out of Employee’s employment with the
Company. The Company agrees to reimburse you for any reasonable costs
and expenses you may incur in connection with such cooperation.
13. In view
of the irreparable harm and damage which would be incurred by the Company in the
event of any violation by Employee of any of the provisions of Paragraphs 10, 11
and 12, Employee hereby consents and agrees that in any such event, the Company
in addition to any other rights it may have, and without prejudice to any other
remedies which may be available at law or in equity, shall be entitled to an
injunction or similar equitable relief to be issued by any court of competent
jurisdiction restraining Employee from committing or continuing any such
violation, without the necessity of proving damage, or posting any bond or other
security.
14. Employee
acknowledges that: (i) he has carefully read this Agreement in its entirety;
(ii) he has had an opportunity to consider fully the terms of this Agreement;
(iii) he has been advised to seek the advice of an attorney of his choosing in
connection with this Agreement; (iv) he fully understands the significance of
all the terms and conditions of this Agreement; (v) he has discussed it with his
independent legal counsel, or has had a reasonable opportunity to do so; (vi) he
has had answered to his satisfaction any questions he has asked with regard to
the meaning and significance of any of the provisions of this Agreement; (vii)
he has been given 21 days from the date he received a copy of this Agreement to
execute it; and (viii) he is signing this Agreement voluntarily and
of his own free will and assents to all the terms and conditions contained
herein.
15. If any
provision of this Agreement shall be held by a court of competent jurisdiction
to be illegal, void, or unenforceable, such provision shall be of no force and
effect. However, the illegality or unenforceability of such provision
shall have no effect upon, and shall not impair the enforceability of, any other
provision of this Agreement. Further, if Employee seeks to challenge
the validity of or otherwise vitiate this Agreement, Employee shall, as a
precondition, be required to repay the Company all amounts paid to Employee
pursuant to this Agreement.
16. It is the
intention of the parties to this Agreement that no payment or entitlement
pursuant to this Agreement will give rise to any adverse tax consequences to
Employee under Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”). This Agreement shall be interpreted to that
end. Notwithstanding any other provision herein, if the timing of any
or all of the payments or continued provision of any benefits under this
Agreement are subject to the special timing rules contained in Sections
409A(a)(2)(A)(i) and 409A(2)(B)(i) of the Code, such payments or provisions that
Employee would otherwise be entitled to receive during the first six months
after termination of employment shall be accumulated and paid or provided on the
first business day after the six-month anniversary of the termination of
employment in a single lump sum. Each payment under this Agreement shall be
treated as a separate payment under Treas. Reg. Section
1.409A-2(b)(iii). Notwithstanding the foregoing, Employee shall be
solely responsible, and the Company shall have no liability, for any taxes,
acceleration of taxes, interest or penalties arising under the provisions of
Section 409A.
17. This
Agreement represents the complete understanding between the parties and
supersedes any and all agreements, understandings and discussions, whether
written or oral, between the parties. No other promises or agreements
shall be binding unless in writing and signed by the parties hereto after the
execution of this Agreement. The provisions of the Employment
Agreement are terminated and shall be of no further force or
effect.
18. This
Agreement shall be governed by and construed and enforced in accordance with,
the laws of the State of New York without giving effect to the principles or
conflicts of law thereof. For purposes of any suit, action or
proceeding involving this Agreement, Employee submits to the jurisdiction of the
State Court sitting in New York County, New York, and agrees that such Court has
exclusive jurisdiction over any suit, action, or proceeding involving this
Agreement.
19. Any
dispute regarding any aspect of the Agreement or any act which allegedly has or
would violate any provision of the Agreement shall be submitted to binding
arbitration. Such arbitration shall be conducted before a single
arbitrator sitting in New York, New York, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be
entered on the award of the arbitrator in any court having competent
jurisdiction. In any such proceeding, the prevailing party shall be
entitled to recover its legal fees and expenses from the losing
party.
20. This
Agreement is binding upon, and shall be inure to the benefit of, the parties and
their respective heirs, executors, administrators, successors and
assigns.
21. This
Agreement may be executed in one or more counterparts, each of which together
shall constitute one and the same agreement.
22. Employee
has the right to revoke his consent to this Agreement for seven days following
his execution of this Agreement by sending written notice to the Company
addressed to Xxxxx XxxXxxxxxx, I.C. Xxxxxx & Company, Inc., 000 00xx Xxxxxx,
0xx
Xxxxx, Xxx Xxxx, X.X. 00000. In order for Employee’s
revocation to be effective, it must be mailed to the above addressee within the
seven-day period. This Agreement shall become effective on the eighth
day following the execution of this Agreement, provided that Employee has not
timely revoked his consent to this Agreement.
WHEREFORE,
the parties hereto have caused this Separation Agreement and General Release to
be signed as of the day and date first written above.
XXXXX X.
XXXXX
I.C.
XXXXXX & COMPANY LP
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/s/
Xxxxx X. Xxxxx
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/s/
Xxxxxx X. Xxxx
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CEO
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