EXHIBIT 4.30
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SEVERANCE AND GENERAL RELEASE AGREEMENT
("AGREEMENT")
For good and valuable consideration, receipt of which is hereby
acknowledged, and in order to resolve and settle finally, fully and completely
all matters or disputes that now or may exist between them, as set forth below,
the parties agree as follows:
1. PARTIES. The parties to this Agreement are Xxxxx Xxxxxx, his
heirs, representatives, successors and assigns (hereinafter referred to
collectively as "Employee"), and EXFO Electro-Optical Engineering Inc., and any
of its parents, predecessors, successors, subsidiaries, affiliates or related
companies, officers, directors, employees and/or representatives (hereinafter
referred to collectively as the "Company").
2. TERMINATION OF EMPLOYMENT. The parties agree that Employee's
employment with the Company shall be terminated effective August 15, 2003. The
employee shall cease the execution of his functions effective July 14, 2003. All
salary, commissions, and insurance benefits shall remain in effect through
August 15, 2003. The period from July 15, 2003 to August 15, 2003 shall
constitute the 30 days' written notice required by paragraph 3.3 of the
September 1, 2000, Employment Agreement between Employee and the Company.
3. SEVERANCE. The Company shall pay Employee 12 months' salary,
commissions and commission bonuses, as provided for in paragraph 3.3 of the said
Employment Agreement. The salary and commissions will be paid over 12 months at
the Company's regular payroll intervals via direct deposit to any account as
specified in writing by Employee through and including the December, 31, 2003
payroll. On January 15, 2003 the Company will pay the Employee the remaining
balance in a lump sum wired to the
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same Employee account as specified by the Employee. Schedule of payment appears
in Attachment A that is an integral part hereof.
4. BENEFITS. For the 12 month severance payment period or until
Employee notifies the Company that he has accepted full time employment and
become eligible for coverage under another employer's benefit plan whichever is
earlier, the Company shall pay Employee's COBRA premiums to maintain Employee's
health insurance benefits at the level he had immediately prior to the
termination of his employment. Employee is responsible for electing COBRA
coverage, Company will provide forms and assistance to Employee as necessary to
insure timely and complete filings.
5. NO ADDITIONAL COMPENSATION OWED. The parties agree that,
except as expressly set forth in this Agreement, no further compensation,
including, but not limited to, salary, bonus, benefits, or payments (hereinafter
collectively referred to as "Compensation") shall be due from or paid by the
Company to Employee. Additionally, Employee hereby waives and relinquishes all
claims to further employment and Compensation from the Company, except as
specified in this Agreement and in Section 5 of the Confidentiality, Assignment
of Work Product, Non-Competition and Non- Solicitation Agreement for Sales
Personnel, ("the Confidentiality Agreement") which Employee signed on April 10,
2001, and which is a schedule to the Employment Agreement.
6. SHARE PURCHASE. Under the Share Plan for Holders of Class "F"
Shares of EXFO Electro-Optical Engineering Inc. or of Shares resulting from the
Conversion of the Class "F" Shares, the Company agrees that the Employee be
allowed to retain his 49,324 EXFO subordinate voting shares (formerly known as
the Class "F" shares) in accordance with the terms of that Plan.
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7. AGREEMENT NOT TO COMPETE. Employee and Company both
acknowledge that they are each bound by the Confidentiality Agreement.
8. RELEASE OF CLAIMS. In consideration of the payments and
promises contained in this Agreement, Employee releases, discharges, and forever
holds the Company harmless from any and all claims, demands or suits, whether
civil or criminal, at law or in equity, known or unknown, fixed or contingent,
liquidated or unliquidated, arising or existing on or at any time prior to the
execution of this Agreement. Such released claims include claims relating to or
arising out of (i) Employee's employment with the Company, (ii) any written
employment agreements between Employee and the Company; (iii) Employee's
separation from employment with the Company, and (iv) all claims known or
unknown that have been asserted, or that could be asserted, by Employee against
the Company, including but not limited to claims under Title VII of the Civil
Rights Act of 1964, as amended, the Age Discrimination in Employment Act, and
the Americans with Disabilities Act.
9. NO ADMISSION OF LIABILITY. This Agreement shall not in any way
be construed as an admission by the Company of any acts of wrongdoing or
violation of any statute, law, or legal right.
10. RETURN OF PROPERTY. Employee shall immediately return all
equipment, manuals, property, and documents in his possession which belong to,
relate to, or refer to the Company, including all files, programs and passwords
stored electronically or otherwise. Company acknowledges that the Employee has
met this requirement and that Company has signed for receipt of all if it's
property as documented in the "Employee Exit Inventory" sheet signed by Employee
and Company representative, Xx. Xxxxx Xxxxxxx, on July 22, 2003 at the EXFO
America offices at 0000 Xxxxxxxxxx Xx. Xxxxx 000, Xxxxxxxxxx, Xxxxx 00000.
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11. CONFIDENTIALITY. Employee will keep the fact, terms, and
amount of this Agreement completely confidential except to the extent that such
information may become public knowledge as a result of required disclosure by
the Company; and except as necessary to consult with Employee's accountant, tax
advisor or attorney and will not disclose any information concerning this
Agreement or the terms of the underlying settlement unless he is obliged to
disclose same pursuant to a court order. Employee recognizes that this
confidentiality provision is material to the Company's decision to enter into
this Agreement.
12. SCOPE OF AGREEMENT. Employee represents and agrees that he has
had a reasonable time to review the Agreement and consult with an attorney if he
chooses, that he fully understands all the provisions of the Agreement, and that
he is voluntarily entering into this Agreement.
13. NO ASSIGNMENT OF CLAIMS. Employee represents that he has not
transferred or assigned, to any person or entity, any claim involving the
Company or any portion thereof, or interest therein.
14. BINDING EFFECT OF AGREEMENT. This Agreement shall be binding
upon the Company and upon Employee and his heirs, administrators,
representatives, executors, successors and assigns.
15. CONTROLLING LAW. This Agreement is made and entered into
within the State of Texas and shall in all respects be interpreted, enforced,
and governed under the laws of the State of Texas.
16. SEVERABILITY. Should any provision of this Agreement be
declared or determined to be illegal or invalid by any government agency or
court of competent jurisdiction, the validity of the remaining parts, terms or
provisions of this Agreement shall not be affected and such provisions shall
remain in full force and effect.
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17. ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement between the parties, and fully supersedes any and all prior
agreements, understandings, or representations between the parties pertaining to
the subject matter of this Agreement except to the extent noted in Sections 5
and 7 herein with regard to the Confidentiality Agreement.
Employee represents and acknowledges that in executing this Agreement, he does
not rely, and has not relied, upon any representation(s) by the Company or its
agents except as expressly contained in this Agreement.
18. REVOCATION RIGHTS. Employee understands that he may revoke
this Agreement within seven days after execution. By signing below, Employee
confirms that he: (a) has read this Agreement carefully and completely; (b) has
been given a period of at least 21 days to consider and review this Agreement;
(c) is aware of his right to consult with legal counsel and acknowledges that he
has had ample opportunity to do so; and (d) understands all the provisions
contained in this Agreement.
MY SIGNATURE BELOW MEANS THAT I HAVE READ THIS RELEASE AND SETTLEMENT
AGREEMENT AND AGREE AND CONSENT TO ALL THE TERMS AND CONDITIONS
CONTAINED IN THE AGREEMENT.
EMPLOYEE
Dated: AUGUST 8, 2003 /s/ XXXXX X. XXXXXX
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COMPANY
Dated:_________________________ /s/ XXXXXXX XXXXXXX
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Attachment A
Schedule of payment
Type of Pay Pay Period Base Salary Avg. Commissions Pay Date Status
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30 Day Notification Pay (1st half) & Actual Commissions 7/31/2003 $6,250.00 $4,464.21 7/31/2003 Paid
30 Day Notification Pay (2nd half) 8/15/2003 $6,250.00 8/15/2003 To be Paid
Start of Twelve Month Severance Pay & Avg. Commissions 8/30/2003 $6,250.00 $6,530.67 8/30/2003 To be Paid
Continuation of severance pay 9/15/2003 $6,250.00 9/15/2003 To be Paid
Continuation of severance pay & Avg. Commissions 9/30/2003 $6,250.00 $6,530.67 9/30/2003 To be Paid
Continuation of severance pay 10/15/2003 $6,250.00 10/15/2003 To be Paid
Continuation of severance pay & Avg. Commissions 10/30/2003 $6,250.00 $6,530.67 10/30/2003 To be Paid
Continuation of severance pay 11/15/2003 $6,250.00 11/15/2003 To be Paid
Continuation of severance pay & Avg. Commissions 11/31/2003 $6,250.00 $6,530.67 11/31/2003 To be Paid
Continuation of severance pay 12/15/2003 $6,250.00 12/15/2003 To be Paid
Continuation of severance pay & Avg. Commissions 12/31/2003 $6,250.00 $6,530.67 12/31/2003 To be Paid
Balance of severance (final payment) 1/15/2004 $93,950.00 $45,714.69 1/15/2004 To be Paid
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