Exhibit 10.24
March 31, 1999
Xxxxxxxx X. Xxxxxx
00 Xxxxxx Xxxxxx
Xxxxx, XX 00000
Dear Xxxxxxxx:
The purpose of this letter agreement is to set forth our mutual
understanding and agreement with respect to: (i) your separation from the
Company; and (ii) the establishment of the terms of your severance and
separation from employment. We have agreed as follows:
1. Separation from Employment. Effective as of the close of business on
Friday, May 7, 1999 (your "separation date"), you will no longer be a
full-time employee of the Company, as the Company will terminate your
employment without cause, and you will relinquish as of that date any
positions that you hold with the Company.
2. Severance Payment. The Company shall provide you with severance pay
equivalent to your regular base salary (less all applicable federal,
state, or local tax withholding, F.I.C.A., and any other applicable
payroll deductions) through November 7, 1999, in accordance with the
Company's regular pay practices. Such payments shall be made in
installments corresponding to the regular pay periods of the Company
and shall be mailed to you at 00 Xxxxxx Xxxxxx, Xxxxx, XX 00000. In
addition, the Company will continue to offer you health insurance
benefits on the terms currently offered to you and in effect at the
time of execution of this agreement until the earlier of (i) the date
on which you are eligible to participate in a health insurance plan
offered by your next employer, or (ii) November 7, 1999.
3. Monetary Consideration. In consideration of this letter agreement and
your General Release, the Company has offered and you have accepted to
act as a part-time employee of the Company, commencing November 8,
1999 and terminating on the earlier of (i) at the close of business on
March 31, 2002, or (ii) the day on which you have exercised all stock
options which you will hold, if any, on November 8, 1999. In this
position, you shall provide advice and assistance to the Company from
time to time, as directed by management, for which you shall be paid
at a rate of one hundred dollars ($100) per quarter (less all
applicable federal, state or local tax withholding, F.I.C.A., and any
other applicable payroll deductions) payable to you in accordance with
the Company's bi-weekly payroll payment policies, but for which you
shall receive no other benefits, except that your rights to
participate in the Company's 1994 Stock Option Plan shall continue
throughout the period of your part-time employment and except those
benefits provided for below and/or are required by law. You
acknowledge that you are not
otherwise entitled to the benefits described in this paragraph
pursuant to the Employment Agreement or any other agreement or
understanding. The parties understand and agree that your role as a
part-time employee of the Company as provided under this paragraph
does not preclude you from seeking or securing any full-time or other
part-time employment after your separation date.
4. Compensation Received to Date. On or before your separation date, you
will be paid all compensation to which you are entitled for services
rendered to the Company through your separation date, including any
bonus earned for the Company's fiscal year ending March 31, 1999. You
agree that you will make no claims for further compensation from the
Company of any type, including bonus payments, commission payments,
and vacation pay, except such sums as are provided for in this letter
agreement.
5. Outplacement Assistance. In further consideration of this letter
agreement and your general release, the Company shall provide you with
three (3) months of outplacement assistance services at a provider of
such services selected by the Company. You acknowledge that you are
not otherwise entitled to the benefits described in this paragraph
pursuant to the Employment Agreement or any other agreement or
understanding.
6. Transfer of Responsibilities and Continuing Cooperation. You shall
cooperate fully with the Company and its personnel on an as needed and
as required basis to provide an orderly transfer of your duties and
responsibilities and to provide continuing assistance in connection
with on-going litigation and investigation matters. This cooperation
includes timely compliance with all reasonable requests for
information and other materials. This cooperation also includes timely
compliance with all reasonable requests for information and assistance
in connection with any and all on-going Company litigation,
investigations, and legal inquiries. The Company agrees to reimburse
you for any reasonable travel costs and expenses, including meals and
lodging, incurred by you in connection with such compliance, and to
make available to you upon reasonable request and notice pertinent
records and documents related to such litigation, investigations and
legal inquiries, which you agree will be used solely in relation
thereto and for no other purpose. To the extent that you require legal
representation in connection with these efforts that cannot be
practically provided by the Company's counsel, the Company will
reimburse you for any reasonable attorneys' fees and expenses related
thereto.
7. Confidentiality. You agree that you will not, without the Company's
prior written consent, reveal or disclose to any person or entity
outside of the Company or use for your own benefit or for the benefit
of any other person or entity, any confidential information concerning
the business or affairs of the Company, or concerning the Company's
customers, clients, or employees ("Confidential Information"). You
further agree that you will refer all requests by any third party or
the media regarding the Company, your employment, or your termination
to the Company's General Counsel.
8. Return of Property. On your separation date, you will return to the
Company all property of the Company that is in your possession or
under your control, including, without limitation, any and all files,
documents and other information with respect to the Company's
management, operations or customers, including all files, documents,
or other information containing Confidential Information.
Notwithstanding the foregoing, you may retain the fax/printer that the
Company purchased on your behalf presently located in your home.
9. Non-Disparagement. You further agree that you will not, at any time
after the date hereof, make any remarks or comments, orally or in
writing, to customers, potential customers, regulators or others,
which or who have, or could reasonably be anticipated to have,
business dealings with the Company, or to the media, which remarks or
comments reasonably could be construed to be derogatory or disparaging
to the Company or any of its shareholders, officers, directors,
employees, attorneys or agents, or which reasonably could be
anticipated to be damaging or injurious to the Company's reputation or
good will or to the reputation or good will of any person associated
with the Company.
10. Remedies of the Company. You acknowledge that the restrictions
contained in paragraphs 7 and 9 of this letter agreement are
reasonable and necessary for the protection of the legitimate
interests of the Company, that any violation of those restrictions
would cause substantial injury to the Company, and that the Company
would not have entered into this letter agreement without your
agreement to be bound by those restrictions. In addition, you
recognize and agree that the Company's remedy at law for material
breaches of those restrictions is inadequate, that the damages for any
material breach thereof would be irreparable, and that the Company
shall be entitled to preliminary and permanent injunctive relief and
specific performance thereof, in addition to any remedies it may have
for monetary damages or other relief. You further recognize and agree
that the covenants contained in paragraphs 7 and 9 shall be construed
as independent of any other provision of this letter agreement and
that the existence of any claim or cause of
action by you against the Company shall not constitute a defense to
the enforcement by the Company of said covenants.
11. Breach of Agreement. You understand and agree that any material breach
of your obligations under this letter agreement will immediately
render the Company's obligations and agreements hereunder null and
void, and all payments pursuant to paragraph 3 hereof shall
immediately cease and you shall repay to the Company forthwith all
sums you have been paid or sums paid on your behalf pursuant to
paragraph 3.
12. References. In response to inquiries from your prospective employers,
the Company shall state that it is the policy of the Company to verify
only dates of employment and titles. Upon receipt from you of a
proposed letter of reference, the Company agrees to execute and
deliver such a letter to you, so long as such letter is acceptable to
the Company in its exercise of reasonable judgment.
13. General Release. In consideration of the good and valuable
consideration set forth in this letter agreement, the receipt and
sufficiency of which consideration you hereby acknowledge, and except
for the rights granted under this separation agreement and any
indemnification rights that you may have pursuant to the By-Laws of
the Company and as provided by law, which rights, if any, are
specifically excepted from the scope of this release, you, for
yourself and your heirs, legal representatives, beneficiaries, assigns
and successors in interest, hereby knowingly and voluntarily release,
remise and forever discharge the Company and its successors, assigns,
former, current or future shareholders, officers, directors,
employees, agents, attorneys and representatives, whether in their
individual or official capacities, from any and all actions or causes
of action, suits, debts, claims, complaints, contracts, controversies,
agreements, promises, damages, claims for attorneys' fees, punitive
damages or reinstatement, judgments and demands whatsoever, in law or
equity, you ever had from the beginning of the world to this date,
including, without limitation, any claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C.(Section).2000e et seq.; the Employee
Retirement Income Security Act of 1974, as amended, 29
U.S.C.(Section).1000 et seq., Massachusetts General Laws, Chapter
151B; the Americans with Disabilities Act, 42 U.S.C.(Section).12101 et
seq.; claims for breach of contract or based on tort; and any other
statutory, regulatory or common law causes of action. You hereby
acknowledge and understand that this is a General Release.
14. Acknowledgment. You acknowledge and agree that you understand the
meaning of this letter agreement, that you freely and voluntarily
enter into it and the General
Release contained herein, and that the Company has advised you to
consult an attorney of your choosing prior to signing this letter
agreement. You agree that no fact, evidence, event, or transaction
occurring before the execution of this letter agreement, which is
currently unknown to you, but which may hereafter become known to you,
shall affect in any manner the final and unconditional nature of the
agreements and releases set forth herein.
15. Miscellaneous. This letter agreement shall be construed in accordance
with the laws of the Commonwealth of Massachusetts. A waiver of any
breach of or failure to comply fully with any provision of this letter
agreement by either party shall not operate or be construed as a
waiver of any subsequent breach thereof or failure to comply. If any
portion or provision of this letter agreement shall to any extent be
deemed invalid or unenforceable, the remainder of this letter
agreement, or the application of such portion or provision in
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each portion and
provision of this letter agreement shall be valid and enforceable to
the fullest extent permitted.
To avoid any possible misunderstanding, the Company intends this letter
agreement to be a comprehensive statement of the terms of your separation from
employment. This letter agreement supersedes any prior understanding or
statement made to you by the Company regarding your positions with the Company
or your arrangements with the Company for the period after your separation from
employment. For the same reason, any modifications of the terms set forth in
this letter agreement must be in writing and signed by you and by me on behalf
of the Company.
Please indicate your agreement to the terms of this letter agreement by
signing and dating the last page of the enclosed copy of this letter agreement,
and return it to me.
Sincerely,
/s/ L. Xxxxxxx Xxxx
L. Xxxxxxx Xxxx
President and Chief Executive Officer
AGREED TO AND EXECUTED UNDER SEAL THIS 31st day of March, 1998.
/s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
