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EXHIBIT 10.29
SEPARATION AGREEMENT
XXXXXX X. XXXXXX
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EXHIBIT 10.29
SEPARATION AGREEMENT
AGREEMENT made as of the 20 day of June, 1996, by and between
Xxxxxxx Xxxxxxxx Company, Inc., a corporation, having its principal office at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), by itself and on behalf
of all of its subsidiaries and affiliates ("Company Affiliates") and Xxxxxx X.
Xxxxxx, ("Employee"), an individual residing at 000 Xxxxxxxxxx Xxxxxx, Xxxx
Xxxxx, Xxx Xxxxxx 000000.
W I T N E S E T H :
WHEREAS, Employee has been employed by the Company as Vice
President and Chief Financial Officer pursuant to a letter agreement dated
August 9, 1993 (the "Letter Agreement").
WHEREAS, the Company and Employee have agreed upon the terms
of Employee's separation from employment as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter contained, it is hereby agreed by and between the
Company and Employee as follows:
1. Amicable Agreement. Employee and the Company agree that the
current relationship between Employee and the Company should be amicably
terminated and that the terms and conditions of the separation which are
specified in this agreement are fair and equitable, that the Company has
appreciated and appreciates the skill, ability, dedication and integrity of
Employee, that Employee has appreciated and appreciates the skill, ability,
dedication and integrity of the Company as a whole and of his subordinates,
superiors and peers within the Company, and that the decision to change
Employee's employment relationship is without rancor on either side. Employee
shall not make any derogatory comment concerning the Company or Company
Affiliates or any of their current or former officers, directors or employees,
which results, or is reasonably expected to result, in any material adverse
effect on the business or reputation of any such entity or person. The Company
and Affiliates shall not make any derogatory comment concerning Employee which
results, or is reasonably expected to result, in any material adverse effect on
the business or reputation of Employee.
2. Resignation. Employee resigns as Secretary, Vice President
and Chief Financial Officer of the Company, as a member of the Board of
Directors of the Company, as a trustee of any and all employee benefit plans of
the Company and all Company Affiliates, and as an officer of any and all Company
Affiliates, effective as of the close of business on May 17, 1996 (the
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"Resignation Date"). Employee has resigned as a member of the Board of Directors
of the Company and all Company Affiliates. Employee shall, however, continue to
serve as an employee of the Company until May 17, 1997, at an annual
compensation rate of one hundred eighty-five thousand dollars ($185,000) per
year. Employee shall perform such reasonable duties as may be assigned to him
from time to time by the Board of Directors of the Company. Effective as of May
18, 1997, Employee will be paid a monthly severance benefit of nineteen thousand
one hundred sixty six dollars and sixty six cents ($19,166.66) through December
31, 1997; provided, that if, on or after May 17, 1996, Employee takes any action
which the Board of Directors of the Company determines to be injurious to the
best interests of the Company, no such severance payments shall thereafter be
made, but only if the Board of Directors makes such determination prior to a
Change of Control (as defined in the Incentive Compensation Agreement referred
to in Paragraph 3(b) hereof). During the period from May 17, 1996 through
December 31, 1997, Employee may, but shall not be obligated to, seek other
employment. If Employee obtains other employment or undertakes other
commitments, the Company shall not assign Employee any duties hereunder which
interfere with Employee's duties with respect to such employment or such
commitments. If Employee obtains other full-time employment prior to May 18,
1997, he shall cease to be an employee of the Company as of the date he obtains
such other full-time employment; provided, that his annual compensation rate of
one hundred eighty-five thousand dollars ($185,000) shall continue to be paid
until May 17, 1997 as severance payments.
3. Company Payments and other Obligations.
(a) Except as provided herein, the Company shall have no
obligation to make any further payment to Employee (including without limitation
salary, vacation pay, severance pay, executive incentive plan bonuses or any
other bonuses, performance incentive award plan payments, stock option awards,
pension contributions or payments) and shall have no obligation to provide
Employee with any fringe benefits (including without limitation life insurance,
dental insurance, health and medical insurance, and disability protection), an
office or other amenities. The Company does, however, specifically agree that it
will provide Employee with the benefits described in Paragraph 4 of the Letter
Agreement until Employee's termination of employment as an employee of the
Company. In addition, (i) the Company will make available to Employee, at the
Company's expense, the Key Executive Outplacement Program offered by Right
Associates, (ii) in the sole discretion of the Compensation Committee of the
Board of Directors of the Company, Employee may be paid all or a portion of his
pro-rata share, if any, of any bonus earned through the Resignation Date, (iii)
the shares of restricted stock of the Company which Employee purchased under the
two stock purchase agreements dated December 17, 1993 and the one stock purchase
agreement dated March 21, 1994 (collectively, the "Stock Purchase Agreements")
shall continue to
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vest at the dates set forth in the respective Stock Purchase Agreements, and the
other provisions of the Stock Purchase Agreements shall continue to apply in
accordance with their terms, as if there had been no termination of employment,
and (iv) the stock options granted to Employee under the stock option agreement
dated December 14, 1994 (the "Stock Option Agreement") shall become exercisable
at the dates set forth in the Stock Option Agreement, and thereafter in
accordance with the terms of the Stock Option Agreement, as if there had been no
termination of employment; provided, that if, on or after May 17, 1996, Employee
takes any action which the Board of Directors of the Company determines to be
injurious to the best interests of the Company, no further shares of restricted
stock shall thereafter vest under the Stock Purchase Agreements and no further
stock options shall thereafter become exercisable under the Stock Option
Agreement, but only if such determination is made by the Board of Directors
prior to a Change of Control (as defined in the Incentive Compensation Agreement
referred to in Paragraph 3(b) hereof).
(b) Except as otherwise specified herein, this Separation
Agreement supersedes the Letter Agreement. In addition, no further contributions
or credits shall be made under the Incentive Compensation Agreement between the
Company and Employee dated as of July 21, 1994 or the "rabbi trust" created as a
part thereof on or after the Resignation Date. However, the other provisions of
said Incentive Compensation Agreement and the "rabbi trust" shall continue to
apply in accordance with their terms.
(c) Notwithstanding anything to the contrary contained in this
Separation Agreement, if Employee dies on or after May 18, 1997, no further
severance payments shall be made hereunder, and if Employee dies prior to May
18, 1997, any compensation which Employee was entitled to receive as an employee
of the Company at the time of his death, shall continue to be paid to his
designated beneficiary (or to his estate if no beneficiary has been designated
who survives Employee) until May 17, 1997.
4. Releases.
(a) Employee agrees that, except as provided herein,
he hereby waives any right to employment, reinstatement or reemployment with the
Company or any Company Affiliate and specifically agrees that he will not apply
for same.
(b) Employee acknowledges and agrees that he is fully
aware that there are various federal, state and municipal laws which prohibit
employment discrimination based on, including without limitation, the following:
race, age, sex, marital status, sexual orientation, citizenship, religion,
creed, national origin, military or national guard service, mental,
psychological record or prior convictions, or entitlement to pension or employee
benefits including retirement, pension and severance.
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(c) Employee also acknowledges and agrees that he
fully understands and is aware that there are federal, state and municipal
agencies which enforce and administer these laws and ensure their enforcement.
(d) In consideration of the payments and other
undertakings of the Company and the undertakings of Employee, described in this
Separation Agreement, and other good and sufficient consideration provided by
the parties, the receipt of which is hereby acknowledged, Employee hereby, for
himself, his heirs, legal representatives, successors and assigns, releases and
discharges the Company and the Company Affiliates and its and their respective
officers, directors, employees, successors and assigns, and the Company and
Company Affiliates hereby, for themselves, their respective successors and
assigns, release and discharge Employee, his heirs, legal representatives,
successors and assigns, from all actions, causes of action, suits, debts,
accounts, sums of money, damages, judgments, claims and demands whatsoever, in
law or in equity, known or unknown, which either hereafter can, shall or may
have against the other for, upon or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the date of this Agreement,
including without limitation all claims arising out of or by reason of the
termination of Employee's employment, except only those arising out of the
performance by the Company and Company Affiliates and Employee of their
respective covenants and agreements contained in this Separation Agreement and
Employee's rights under all retirement, profit sharing, stock option or similar
benefit plans sponsored by the Company (to the extent that such rights survive
the termination of Employee's employment). Further, the Company and the Company
Affiliates do not hereby release Employee from any liability which they or any
of them may incur arising from or related to any act or omission on the part of
Employee in his capacity as a plan administrator or trustee of any retirement
plan or trust maintained by the Company or any Company Affiliate which
constitutes gross negligence, fraud or willful misconduct.
(e) Except as otherwise stated, the releases in the
foregoing Section 4 (d) include but are not limited to releases of any rights
the releasing parties may have for breach of contract (whether express, implied
or oral), tort, wrongful termination, defamation, infliction of emotional
distress, slander, promissory estoppel, prima facie tort, breach of the covenant
of fair dealing, fraud, violation of public policy, claims for physical or
emotional injury, any and all claims based on any federal, state or local laws
including, without limitation, the Age Discrimination in Employment Act (29
U.S.C. '621, et seq.), the Employee Retirement Income Security Act of 1974, the
Civil Rights Acts, the fair employment laws of the State of New York, and the
United States and New York Constitutions or common laws.
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(f) Employee acknowledges (i) that he has been given the
opportunity to consult with his attorney regarding this agreement, (ii) that he
fully understands this agreement and the effect of his signing it, (iii) that he
has been given up to twenty-one (21) days to consider this agreement and (iv)
that he may revoke this agreement within seven (7) days following the date that
he signs it and that this agreement will not become effective or enforceable
until after seven (7) days have expired.
5. Confidential Information; Company Property; Nonsolicitation; Company
Interests. By and in consideration of the benefits to be provided by the Company
hereunder, including the severance arrangements set forth herein, Employee
agrees that:
(a) Employee shall hold in a fiduciary capacity for the benefit of the
Company all secret or confidential information, knowledge or data relating to
the Company or any Company Affiliate, and their respective businesses, (i)
obtained by Employee during his employment by the Company or any Company
Affiliates and (ii) not otherwise public knowledge (other than by reason of an
unauthorized act by Employee). After termination of Employee's employment with
the Company hereunder, Employee shall not, without the prior written consent of
the Company, unless compelled pursuant to an order of a court or other
governmental body having jurisdiction over such matter, communicate or divulge
any such information, knowledge or data to anyone other than the Company and
those designated by it.
(b) Except as expressly provided herein, promptly following Employee's
termination of employment, Employee shall return to the Company all property of
the Company and all copies thereof in Employee's possession or under his
control, except that (i) Employee may retain his personal notes, diaries,
Rolodexes, calendars and correspondence, and (ii) Employee shall, within thirty
(30) days from the date this Separation Agreement is executed, return to the
Company, in good condition and working order, the automobile of the Company
which Employee has in his possession at a place mutually agreeable to the
parties.
(c) During the period commencing on the date hereof through December
31, 1997, Employee will not solicit or otherwise induce any employee of the
Company or any Company Affiliate to leave the employ of the Company or such
Company Affiliate or to become associated, whether as an employee, officer,
partner, director, consultant or otherwise, with any business organization.
(d) If Employee fails to comply with any of his undertakings hereunder,
no further payments or benefits shall be provided to or in respect of Employee
by the Company pursuant to this Separation Agreement or otherwise, and his
employment may, at the discretion of the Board of Directors of the Company, be
terminated.
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6. Entire Agreement. This Separation Agreement contains the
entire understanding of the parties hereto relating to the subject matter hereof
and cannot be changed or altered orally.
7. Governing Law. This Separation Agreement has been entered
into in the State of New York, and the validity, interpretation and legal effect
of this Separation Agreement shall be governed by the laws of the State of New
York. Furthermore, any claim, dispute or disagreement which may arise must be
resolved within the State of New York and in accordance with the substantive
laws of the State of New York governing contracts entered into and performed
within the State.
8. Severability. The invalidity or unenforceability of any
provisions of this Separation Agreement in any circumstance shall not affect the
validity or enforceability of any other provision of this Separation Agreement,
and except to the extent such provision is invalid or unenforceable, this
Separation Agreement shall remain in full force and effect. Any provision in
this Separation Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
that such provision is prohibited or unenforceable, without invalidating or
affecting the remaining provisions hereof in such jurisdiction, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
9. Notices. Any notice required or permitted to be given under
this Separation Agreement shall be sufficient if in writing and if sent by
registered mail, to his then residence in the case of Employee or to its then
principal office in the case of the Company, and shall be deemed given when
deposited in the United States mails, postage prepaid.
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Before witnesses, the parties hereto have executed this
Separation Agreement on this day of , 1996, but as of the date written at its
head.
XXXXXXX XXXXXXXX COMPANY, INC.
ILLEGIBLE SIGNATURE By: ILLEGIBLE SIGNATURE
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Witness
ILLEGIBLE SIGNATURE /s/ Xxxxxx X. Xxxxxx
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Witness Xxxxxx X. Xxxxxx
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