Exhibit 10.18
Provant, Inc.
00 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
August 12, 2002
Xxxxxx X. Xxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX
Dear Xxxx:
This letter agreement (the "Agreement") between Provant, Inc.
("Provant") and you (the "Employee") is intended to set forth the arrangements
with respect to the termination of the Employee's employment with Provant. The
Employee and Provant are referred to together herein as the "Parties".
1. The Employee hereby resigns effective August 12, 2002 (the
"Separation Date") as an employee, officer and director of Provant and from any
other position that the Employee may hold with Provant or any of Provant's
subsidiaries (Provant and its subsidiaries are collectively referred to herein
as the "Provant Group"). The Parties hereby agree that the Employment Agreement
dated October 8, 1999 by and between Provant and the Employee, as amended by
letter dated May 29, 2001 (the "Employment Agreement"), is hereby terminated
effective as of the Separation Date, except for the provisions of Section 8
through Section 23, inclusive, of the Employment Agreement, as amended hereby,
which remain in full force and effect. During the period from August 1, 2002
until the Separation Date, Provant will pay the Employee installments of the
Employee's base salary at the rate in effect on the date hereof and on the same
schedule as executives of Provant receive regular salary payments, the aggregate
amount of which shall be $15,384.32 (the "Final Salary Payment"). On or before
the Separation Date, Provant will pay the Employee $28,845.60 for unused
vacation leave (the "Unused Vacation Payment"). The Employee acknowledges that
he shall not be entitled to receive any bonus from the Provant Group for the
fiscal year ended June 30, 2002 and that payment of the Final Salary Payment and
the Unused Vacation Payment shall constitute payment in full of all amounts due
to the Employee from the Provant Group for accrued wages, benefits (including,
without limitation, accrued, unused vacation leave, earned commissions and
scheduled advances) and any other payments accrued through the Separation Date
or to which the Employee is otherwise entitled in connection with the Employee's
employment with Provant or the termination of such employment, except for
payments expressly provided for in this Agreement. For the sake of greater
certainty, the Employee agrees that the option to purchase shares of Provant's
common stock granted to the Employee under Section 4(c) of the Employment
Agreement and represented by that Stock Option Agreement dated October 8, 1999
between Provant and the Employee was forfeited by the Employee on or about
November 27, 2001 and that all other options to purchase shares of Provant's
common stock granted to the Employee shall terminate in accordance with the
terms
of the option agreement under which the option was granted. Provant acknowledges
and agrees that there is no outstanding obligation to reimburse Provant for any
relocation benefits pursuant to that certain letter agreement dated October 8,
1999 between Provant and the Employee.
2. In consideration for the Employee's execution of and compliance
with this Agreement, Provant agrees to provide the Employee with the "Severance
Benefits" described in the following subparagraphs (a), (b) and (c):
(a) Provant shall pay to the Employee eighteen month's severance pay in
the aggregate amount of $750,000 (the "Severance Pay"), which shall be payable
as follows:
(i) On or before the Separation Date, Provant shall pay to the
Employee the first three month's severance pay in the aggregate amount of
$125,000; and
(ii) From the Separation Date until November 15, 2003 (the "Payment
Period"), Provant shall pay the Employee the remaining 15 month's severance pay,
in the aggregate amount of $625,000, payable in 30 equal bi-monthly installments
on the same schedule as executives of Provant then receive regular salary
payments, such installments to begin on Provant's first regular payroll date
following August 16, 2002.
(b) The Employee will have the opportunity to continue to participate in
Provant's group medical insurance program (the "Health Plan") pursuant to the
health care continuation provisions of the federal COBRA law. If the Employee is
eligible for COBRA coverage, elects to continue coverage under the Health Plan
pursuant to COBRA and otherwise maintains eligibility for COBRA coverage, then
in consideration of the Employee's execution of and compliance with this
Agreement, Provant agrees to pay to the Health Plan insurer during the Payment
Period, or if shorter, the period beginning on the Effective Date (as defined by
Section 16) and ending on the date the Employee's right to continue coverage
under the Health Plan pursuant to COBRA expires, the premium for COBRA coverage
under the Health Plan. The Employee's eligibility to participate in and receive
benefits under the Health Plan shall remain subject to the terms and conditions
of the Health Plan. Provant's obligation to pay COBRA coverage premiums on
behalf of the Employee shall terminate immediately upon the Employee's becoming
eligible (either as a participant or a dependent) to participate in a plan
providing comparable or superior health care benefits sponsored by another
employer.
The Employee hereby acknowledges and agrees that (i) the foregoing
Severance Benefits are in excess of all other payments, benefits, and things of
value to which the Employee would be entitled if the Employee did not execute
and comply with this Agreement; and (ii) the Severance Benefits shall not be
deemed to be salary or other compensation to the Employee for purposes of any
plans, programs or arrangements maintained or contributed to by the Provant
Group to provide benefits to its employees, directors or officers ("Benefit
Plans").
3. As of the date hereof, Provant was making available to the Employee
for his use an apartment located at 000 Xxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxxx, which is being leased
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by Provant from Pinar Ulusoy, c/o Xxxxxxx Xxxxxxx (the "Lessor") under the terms
of that Lease Agreement dated January 1, 2002 (the "Charlestown Lease").
Promptly following the Separation Date, Provant and the Employee shall seek to
have Provant removed as a party to the Charlestown Lease and for the Employee to
assume all of Provant's rights and obligations under the terms of the
Charlestown Lease effective upon the Separation Date. In the event that the
Lessor is unwilling to remove Provant as an obligor under the Charlestown Lease,
the Employee agrees effective upon the Separation Date to assume all of the
rights, liabilities and obligations of Provant under the Charlestown Lease and
to indemnify and hold Provant harmless from any and all such liabilities and
obligations from the Separation Date through the balance of the term of the
Charlestown Lease, provided that, so long as the Employee continues to satisfy
all of Provant's obligations under the Lease assumed by the Employee pursuant to
this Section 3, Provant shall not take any action to terminate the Lease prior
to the expiration of the current term thereof or otherwise disturb the
Employee's quiet enjoyment of the leased space during the current term of the
Lease. Provant acknowledges that rent for the month of September 2002 has been
paid by Provant to the Lessor and that Provant will not seek reimbursement from
the Lessor or the Employee for such September 2002 rent.
4. During the period from July 25, 2000 until the date hereof, Provant
was making premium payments on behalf of the Employee under that life insurance
policy in the name of the Employee dated July 25, 2000 (the "Life Insurance
Policy") with Security Connecticut Life Insurance, a Reliastar company (the
"Insurance Provider"). Provant agrees that following the Separation Date Provant
shall not take any action to terminate or cancel the Life Insurance Policy or
otherwise request a refund of premiums paid to date by Provant to the Insurance
Provider. The Parties agree that effective on the Separation Date Provant shall
make no further premium payments on behalf of the Employee with respect to the
Life Insurance Policy and that the Employee will, therefore, be solely
responsible for making any premium payments under the Life Insurance Policy in
order to maintain the Employee's coverage thereunder.
5. The Employee agrees that all source code, object code, memoranda,
notes, records, charts, reports, letters and other documents and software made,
compiled, received, held or used by the Employee while employed by Provant,
concerning any phase of the business of the Provant Group (the "Provant
Information"), are the property of the Provant Group and, together with all
reproductions or abstracts thereof and together with all other Provant property
used or obtained by the Employee, such as computers, equipment, credit cards and
keys, have been returned to Provant. Notwithstanding anything to the contrary
contained in this Section 5, Provant hereby conveys, assigns and transfers to
the Employee the desktop computer purchased by Provant for home use by the
Employee, provided that promptly following the Separation Date the Employee
destroys or returns to Provant any Provant Information stored on such computer.
6. The Employee hereby acknowledges and agrees that this Agreement is
intended to be a complete and final settlement of any and all causes of action
or claims that the Employee has had, now has or may now have, whether known or
unknown against the Provant Group or any of the persons or entities specified
below. The Employee hereby, on behalf of the Employee, the Employee's executors,
heirs, administrators, assigns and anyone else
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claiming by, through or under the Employee, waives, releases, covenants not to
xxx and forever discharges the Provant Group, its predecessors, successors,
related corporations, subsidiaries, divisions and affiliated organizations, and
each and all of their present and former officers, directors, shareholders,
representatives, agents, promoters, employees and attorneys (hereinafter
"Releasees"), and each and all of them of, from and with respect to any and all
debts, demands, actions, causes of action, suits, covenants, contracts,
agreements, promises, torts, damages, claims, demands and liabilities whatsoever
of any name and nature, both in law and in equity (hereinafter "Claims") that
the Employee now has, ever had, or may in the future have against each or any of
the Releasees by reason of any matter, cause or thing whatsoever from the
beginning of the world to the Effective Date of this Agreement (as defined by
Section 16), including, but not limited to, any Claims arising out of, based
upon or connected with the Employee's employment by any member of the Provant
Group, the compensation, benefits and working conditions for that employment
and/or the termination of that employment, and any Claims that may exist under
federal, state or local laws, including, but not limited to, any Claims based on
race, disability, color, national origin, marital status, age or sex, but
excluding any right to indemnification to which the Employee may be entitled,
whether by contract, by charter or by-law provision, or otherwise. The foregoing
waiver and release includes, without limitation, a waiver and release of any
rights and Claims that the Employee may have under Title VII of the Civil Rights
Act of 1964, the Equal Pay Act, the Americans with Disabilities Act, the Family
and Medical Leave Act, the Employee Retirement Income Security Act of 1974, the
Worker Adjustment and Retraining Notification Act, the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. (S) 621 et seq. (the
"ADEA")(except that this Agreement does not waive or release any rights or
claims under the ADEA that may arise after the execution of this Agreement or
otherwise bar the Employee from challenging this Agreement's compliance with the
provisions of 29 U.S.C. (S) 627(f)(1)), the Fair Labor Standards Act, or the
state and local laws of Massachusetts.
7. Provant represents and warrants that as of the date hereof, it
knows of no claims or causes of action of whatever kind or nature that the
Provant Group has or may have against the Employee that arose on or before the
date hereof.
8. The Employee hereby agrees not to disclose to any person (except
the Employee's spouse, attorney, accountant or financial advisor), organization
or agency the terms of this Agreement except as required by law and then only
after notice is given by the Employee or the Employee's attorney to Provant such
that, where feasible, Provant will have a reasonable prior opportunity to oppose
such disclosure. The Parties agree with one another not to discuss with any
person or entity the circumstances surrounding the Employee's employment with or
separation from the Provant Group, except to the extent required by law. The
Employee agrees not to make any adverse remarks whatsoever concerning any of the
officers or directors of the Provant Group or the business, operations,
strategies, policies, prospects, affairs or financial condition of the Provant
Group. Provant agrees that it will not make any adverse remarks whatsoever
concerning the Employee and that it will instruct its officers not to make any
adverse remarks whatsoever concerning the Employee. Provant and the Employee
agree that any public disclosure of this Agreement or of the circumstances of
the Employee's
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departure from the Provant Group shall be agreed upon by both parties prior to
its disclosure, other than disclosure required by law, including, without
limitation, applicable securities laws.
9. The Employee acknowledges and agrees that the restrictions against
disclosure and use of confidential information set forth in Section 9 of the
Employment Agreement shall remain in full force and effect and shall apply to
any Confidential Information (as defined in the Employment Agreement) obtained
by the Employee during the Payment Period. The Employee further acknowledges and
agrees that the Employee has no rights to use, copy or disclose any materials or
proprietary information owned, or provided to the Employee, by the Provant
Group. The Employee hereby acknowledges and agrees that the non-competition and
non-solicitation restrictions set forth in Section 8 of the Employment Agreement
shall survive the Separation Date and remain in full force and effect until
August 12, 2005. Notwithstanding the foregoing, if, in violation of the terms of
this Agreement, Provant fails to pay any amount due pursuant to the provisions
of Section 2(a) of this Agreement within 30 days after notice of such failure
has been given in writing to Provant's Chief Financial Officer, then the
obligations of the Employee under Section 8 of the Employment Agreement shall
terminate and be of no further force and effect.
10. It is expressly understood and agreed that by entering into this
Agreement Provant in no way thereby admits that it unlawfully or wrongfully
discriminated against the Employee due to the Employee's age or status or
otherwise treated the Employee unlawfully.
11. All payments (including, without limitation, the Severance
Benefits) to be made to the Employee and benefits to be made available to the
Employee in accordance with the terms of this Agreement, and the performance by
Provant of its other obligations hereunder, shall be conditioned on the
Employee's continued compliance in all material respects with the covenants set
forth in this Agreement and the surviving provisions of the Employment
Agreement. In the event compliance is not continued within 10 days after notice
of such failure to comply has been given in writing to the Employee, Provant
shall have the right to seek repayment of all consideration paid up to the time
compliance has ceased.
12. The Employee agrees and recognizes that as of the Separation Date
he will have permanently and irrevocably severed his employment relationship
with Provant, that he shall not seek employment with any member of the Provant
Group at any time in the future, and that no member of the Provant Group has any
obligation to employ him in the future.
13. The Employee shall cooperate fully with Provant in the defense or
prosecution of any claims or actions now in existence or which may be brought or
threatened in the future against or on behalf of any member of the Provant
Group, including without limitation any claims or actions against its officers,
directors and employees. The Employee's cooperation in connection with such
actions or claims shall include, without limitation, his being available to meet
with Provant or its designees in connection with any regulatory matters, to
prepare for any proceeding (including, without limitation, depositions,
consultation, discovery or trial), to provide affidavits, to assist with any
audit, inspection, proceeding or other inquiry, or to act as a witness in
connection with any litigation or other legal proceeding affecting any member of
the Provant Group. Should the Employee be contacted (directly or indirectly) by
any person
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known by him to be adverse to any member of the Provant Group with respect to
any dispute with any member of the Provant Group, the Employee shall promptly
(within 48 hours) notify the President of Provant. Provant shall promptly
reimburse the Employee for reasonable out of pocket expenses incurred by him at
Provant's request in complying with his obligations under this Section 13.
14. The Parties agree that irreparable damages would occur in the event
that Sections 5, 6, 8 and 9 of this Agreement are not performed by the party
obligated thereunder in accordance with their specific terms. It is accordingly
agreed that the other party will be entitled to an injunction or injunctions to
prevent breaches of the party obligated thereunder and to enforce specifically
the terms and provisions hereof in any court having jurisdiction, this being in
addition to any other remedy to which it is entitled at law or in equity.
15. If any term or provision of this Agreement or the application thereof
to any person, property or circumstance shall to any extent be invalid or
unenforceable, then at the election of the party primarily benefited by such
term or provision, the remainder of this Agreement or the application of such
term or provision to persons, property or circumstances other than those as to
which it is invalid or unenforceable shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
16. The Employee is hereby advised to consult with an attorney before
signing this Agreement and, by the Employee's signature below, the Employee
acknowledges that the Employee has consulted with an attorney before signing
this Agreement. From the date that the Employee receives this Agreement, the
Employee has twenty-one (21) days to consider it. Should the Employee decide to
sign the Agreement, the Employee has seven (7) days following the signing to
revoke the Agreement, and the Agreement will not become effective and
enforceable until that seven (7) day revocation period has expired (the
"Effective Date"). Should the Employee either decide not to sign this Agreement
or should the Employee sign it and elect to revoke it during the seven (7) day
revocation period, then this Agreement shall be null and void. No payments or
benefits provided for by this Agreement will be made until after this seven (7)
day period has expired without the Employee revoking this Agreement.
17. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts without regard to conflicts of law
principles. The obligations of Provant and the Employee hereunder shall inure to
the benefit of and be binding on the respective heirs, personal representatives,
successors and assigns of the Parties. This Agreement embodies the entire
agreement and understanding among the Parties concerning the Employee's
employment and the termination thereof and incorporates and supersedes all other
agreements with regard to the Employee's employment and the termination thereof.
This Agreement shall not affect the Employee's surviving obligations under the
Employment Agreement.
18. This Agreement may be amended or modified only upon the written mutual
consent of the parties.
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19. The Employee hereby acknowledges and agrees that (a) the Employee
understands the provisions of this Agreement and has consulted with counsel of
his selection with regard to the terms and conditions of this Agreement, (b) the
Employee's acceptance and execution of this Agreement is knowing and voluntary
and (c) the Employee has been afforded a full and reasonable opportunity of at
least twenty-one (21) days to consider its terms and to consult with or seek
advice from any attorney or any other persons of the Employee's choosing.
[Rest of page intentionally left blank.]
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If the foregoing is in accordance with your understanding, please sign and
return the enclosed copy of this letter, whereupon this letter and such copy
will constitute a binding agreement under seal between Provant and you on the
basis set forth above.
Very truly yours,
PROVANT, INC.
By: /s/ Xxxx Xxxxx
-----------------------------
Name: Xxxx Xxxxx
Title: Chairman of the Board
Acknowledged and agreed to this
12 day of August 2002:
/s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
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