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Exhibit 10(iii).32
SEPARATION AGREEMENT
This Separation Agreement (hereinafter the "Agreement") is
entered into by Xxxxxxxx X. Xxxxxxx (hereafter "Xxxxxxx"), an individual, and
International Technology Corporation, a Delaware corporation, and its
subsidiaries and affiliates (collectively referred to as the "Company").
RECITALS
A. WHEREAS, Xxxxxxx has been employed by the Company, and has held the
position of Sr. Vice President of IT Corporation and of International Technology
Corporation; and
B. WHEREAS, Xxxxxxx and the Company wish to finally and forever resolve
all matters between them relative to Xxxxxxx'x employment and his entitlement to
severance pay and other additional forms of compensation and benefits, and to
provide for the termination of the employment relationship;
C. NOW, THEREFORE, in consideration of the aforementioned recitals and
the mutual covenants and conditions set forth below and in full settlement of
any and all claims for allegedly lost compensation including, without
limitation, all claims for back pay, severance pay, accrued vacation pay,
continuation of health or other benefits or any other payment in the nature of
compensation allegedly attributable to Xxxxxxx'x employment by the Company, and
any and all other claims which were or could have been raised by either party
prior to the date of this Agreement, the sufficiency of which consideration is
hereby acknowledged, Xxxxxxx and the Company hereby agree as follows:
AGREEMENT
1. Resignation and Termination of Employment. Effective as of April 17,
1998, Xxxxxxx resigns as an officer of the Company. The Company accepts
Xxxxxxx'x resignation. Xxxxxxx shall perform no further duties for the Company
after April 17, 1998 except such duties as may arise under the terms of this
Agreement.
2. Salary. Effective as of April 17, 1998, the Company will pay Xxxxxxx
the rate of his annual salary, less payroll deductions for taxes, in equal
biweekly payments, until the sooner of April 30, 1998 or the date that this
Agreement has been accepted and signed by Xxxxxxx and Company. All sums paid
biweekly after the resignation date shall be credited against the severance
payment described in Paragraph 3.
3. Severance Pay. The Company shall pay to Xxxxxxx a xxxxxxxxx payment
of $275,000.00, less payroll deductions, in a lump sum, which shall be payable
seven (7) days' after the signature and acceptance of this Agreement by both
Xxxxxxx and Company. This severance payment is in lieu of and extinguishes all
rights to any other salary, severance, option right, or Paid Time Off ("PTO").
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4. Benefits Xxxxxxx'x eligibility to participate in the Company's
benefits Programs shall terminate effective April 17, 1998. The parties
acknowledge that Xxxxxxx will be eligible to continue to elect continuation of
his group medical coverage in accordance with the Consolidated Omnibus budget
Reconciliation Act of 1985 (COBRA) for himself and any covered dependents upon
his resignation from the Company. Xxxxxxx will receive notice from Company of
such rights and the cost to him of such continued coverage.
5. Paid Time Off. The Company will pay Xxxxxxx for all PTO accrued by
him prior to April 17, 1998. That payment is included in the lump sum described
in Paragraph 3 hereof.
6. Bonus. The Company shall pay to Xxxxxxx a sum equivalent to the
amount which he would have received, if any, as an Incentive Award or bonus
under the terms of the FY 1998 Management Incentive Plan (MIP). Such payment
will be made at the same time as payments under such plan are made to the
participants in such MIP. Xxxxxxx shall not be entitled any incentive awards for
any period of time after March 27, 1998.
7. Retirement Plans. Xxxxxxx shall cease to participate in Company's
qualified and non-qualified retirement plans on April 17, 1998, in accordance
with the terms of those plans.
8. Stock Options. The parties acknowledge that Xxxxxxx has unexercised
options of the Company which will vest as of April 17, 1998, except for options
granted on May 7, 1992 which must still satisfy stock price increase
requirements before fully vesting. Xxxxxxx shall have the right to exercise the
vested options during a two-year period. All options will expire on the earlier
of their scheduled expiration date or April 17, 2000, whichever is earlier.
9. Restricted Stock. The parties acknowledge that Xxxxxxx has 8,971
shares of Restricted Stock. In consideration for the promises and releases
contained herein, the Company agrees to lift the restrictions on these shares of
stock.
10. Expenses Related to Seeking Employment. In further consideration of
the promises and releases contained herein, Company agrees to provide to Xxxxxxx
six months of Individual Career Transition Program provided by the firm of Xxx
Xxxxx Xxxxxxxx (or a similar firm in the Knoxville area). Arrangements for this
program will be made at Xxxxxxx'x request by the Knoxville Human Resources
Department.
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Xxxxxxx will be entitled to reimbursement for costs associated with up
to six interview trips if the hiring company will not reimburse such costs.
Costs will be reimbursed according to the terms of IT's Travel policy. Maximum
reimbursement for combined six trips will not exceed $10,000. Xxxxxxx shall
endeavor to obtain reimbursement for travel expenses from potential employers
and shall not advise any such employer of the existence of this benefit. This
benefit shall expire on the earlier of one year or when Xxxxxxx obtains
employment.
11. Other Expenses. Xxxxxxx agrees to reimburse the Company for any
personal expenses charged to the company and the Company agrees to reimburse
Xxxxxxx for any reasonable expenses incurred by Xxxxxxx at the Company's request
in accordance with Company policy.
12. Car Allowance. No car allowance shall be granted by Company to
Xxxxxxx after April 17, 1998.
13. Sole Entitlement. Xxxxxxx agrees that his sole entitlement to
compensation, payments of any kind, monetary and/or nonmonetary benefits and/or
perquisites with respect to his employment with, his services rendered to, and
all other matters between Xxxxxxx and the Company, is as expressly set forth in
this Agreement.
Xxxxxxx and the Company expressly agree that the Employment Agreement
dated November 20, 1996 between Xxxxxxx and the Company is hereby terminated and
is of no force and effect whatsoever. Any provisions of such Employment
Agreement, including but not limited to Paragraphs 5(a)(I)(vii) and Paragraph 17
thereof, which are or may be claimed to be inconsistent with this termination or
Xxxxxxx'x resignation, are hereby waived by both parties.
14. Releases by Xxxxxxx. Xxxxxxx does hereby and forever release and
discharge the Company and the past and present parent, subsidiary and affiliated
corporations of the Company as well as the successors, shareholders, officers
and directors of corporate shareholders, officers, directors, heirs,
predecessors, assigns, agents, employees, attorneys and representatives of each
of them, past or present, from any and all cause or causes of action, actions,
judgments, liens, indebtedness, damage, losses, claims, liabilities, and demands
of whatsoever kind or character, known or unknown, suspected to exist or not
suspected to exist, anticipated or not anticipated, whether or not heretofore
brought before any state or federal court or before any state or federal agency
or other governmental entity, whether statutory or common law, including without
limitation on the generality of the foregoing, any and all claims, demands or
causes of action attributable to, connected with, or incidental to the
employment of Xxxxxxx by the Company, the separation of that employment and any
dealings between the partes concerning Xxxxxxx'x employment or any other matter
existing prior to the date of execution of this Agreement, excepting only those
obligations to be performed hereunder. This release is intended to apply to any
claims arising from federal, state or local laws which prohibit discrimination
on the basis of race, national origin, sex, religion, age,
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marital status, pregnancy, handicap, disability, ancestry, sexual orientation,
family or personal leave or any other form of discrimination, or to laws such as
workers' compensation laws, which provide rights and remedies for injuries
sustained in the workplace or any common law claims of any kind, including, but
not limited to, breach of privacy, misrepresentation, defamation, wrongful
termination, tortious infliction of emotional distress, loss of consortium and
breach of fiduciary duty, violation of public policy and any other common law
claim of any kind whatever, any claims for severance pay, sick leave, family
leave, vacation, life insurance, bonuses (including, but not limited to, bonuses
payable under the FY 1998 Management Incentive Plan), health insurance,
disability or medical insurance or any other fringe benefit or compensation, and
all rights and claims arising under the Employee Retirement Income Security Act
of 1974 ("ERISA"), or pertaining to ERISA regulated benefits.
15. Unknown Claims. Xxxxxxx specifically acknowledges that his release
includes any unknown, unsuspected, and/or unanticipated claims that he may have,
whether or not they may be material to this Separation Agreement and the
releases it contains. To the maximum extent permitted by law, Xxxxxxx waives any
and all state and federal laws to the contrary.
16. Continuing Fiduciary Obligations and Unfair Competition.
(a) Xxxxxxx acknowledges that he is obligated by contract and by
operation of law to maintain the confidentiality of the Company's trade secrets
and other confidential information not publicly known, and covenants and agrees
that he shall not use or divulge, disclose, or communicate to any other person,
firm, or corporation, any of the Company's trade secrets or confidential
information except as disclosure shall be compelled by judicial process. Nothing
contained in this paragraph is intended to preclude Xxxxxxx from working for a
competitor or from using non-trade secrets and/or non-confidential information
learned by him in the course of his employment with the Company.
(b) Xxxxxxx agrees that he shall not, for a period of one year from
April 17, 1998, directly or indirectly (i) recruit, solicit or induce, or
attempt to induce any officer or employee (other than employees engaged in
secretarial or purely ministerial functions) of Company or any of its
affiliates, to terminate or fail to renew their employment or contract with, or
otherwise cease their relationship with, the Company or any of its affiliates or
(ii) hire any such person recruited in violation of (i) immediately above.
(c) Xxxxxxx agrees that he has promptly delivered to Company all
correspondence, drawings, manuals, letters, notes, notebooks, reports, programs,
plans, proposals, financial documents, or any other documents concerning the
Company's customers, business plans, marketing strategies, products or processes
which are Company property, or which are non-public or which contain proprietary
information or trade secrets.
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17. Prohibition Against Defamation and Willful Disparagement. The
Company and Xxxxxxx agree that they will not orally or in writing defame,
criticize, or willfully disparage, or in any manner undermine the reputation of
the other, or in the case of the Company, any subsidiary or affiliated
corporation of the company, the Company itself, or any employee, officer or
director of the Company or any subsidiary or affiliate of the Company, except as
required by compulsion of law to truthfully testify. It is the intention of the
parties that any inquiries from potential employers of Xxxxxxx as to Xxxxxxx'x
job performance, his interpersonal and other management skills and the reason
for his departure from employment at the Company be responded to by the Human
Resources Department of Company in accordance with Company policies. In any such
communication to a prospective employer of Xxxxxxx, the reason for Xxxxxxx'x
departure shall be given as a reduction in force and consolidation of management
functions. If any director or officer or agent or employee of Company fails in
any manner to follow this procedure or any other provision of this paragraph,
Xxxxxxx'x sole and exclusive remedy will be to request in writing that Company
correct the failure by means of a letter which shall retract or disclaim, as
appropriate, any information inconsistent with the provisions of this paragraph
provided by any director, officer, agent, or employee of the Company.
18. Cooperation. Xxxxxxx agrees to cooperate with the company in
connection with any future or currently pending litigation, including without
limitation, by making himself available to testify in actions as reasonably
requested by the Company. In the event that Xxxxxxx is required to spend a
significant amount of time in any such activities, he shall be compensated at an
hourly rate of $150 per hour. In the event Xxxxxxx is named as a defendant in
any litigation or other proceeding involving the Company where Xxxxxxx is
required to defend himself with respect to events which relate to or occurred
during his employment with the Company, to the extent that Xxxxxxx is not
otherwise covered by any insurance policy maintained by the Company, the Company
shall be responsible for providing a defense to, and indemnify, Xxxxxxx, to the
same extent and under the same conditions as if he were an officer of the
Company.
19. Legal Advice. Each party has received independent legal advice from
his or its attorneys with respect to the advisability of making the settlement
provided for herein, with respect to the advisability of executing this
Agreement and with respect to its meaning.
20. Factual Investigation. Each party to this Agreement has made such
investigation of the facts pertaining to the matters resolved by this Agreement
and of all the matters pertaining thereto as he or it deems necessary.
21. Later Discovered Facts. Each party hereto is aware that he or it
may hereafter discover claims or facts in addition to or different from those he
or it now knows or believes to be true with respect to the matters resolved
herein. Nevertheless, it is the intention of each
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party to fully, finally and forever settle and release all such matters and all
claims relative thereto which may exist or may heretofore have existed between
them.
22. Confidentiality. This Agreement and its provisions are intended to
be confidential. Accordingly, except as may be required to satisfy the Company's
public disclosure or financial or accounting requirements or as may be compelled
by court order, neither the Company nor Xxxxxxx shall disclose or publicize to
any person, firm or corporation, the terms of this Agreement without the consent
of the other party. As reasonably necessary, Xxxxxxx may discuss this Agreement
with his wife, attorney, financial advisor, tax advisor, benefit advisor or
compensation advisor and Company may discuss this Agreement with its attorneys,
officers, directors and managers provided, however, that each agrees to be bound
by the terms of this paragraph to keep the information confidential. Xxxxxxx may
also discuss this Agreement with Xxxxx X. Xxxx, Xxx Xxxxxx and Xxx Xxxxxx, so
long as in each instance they are Company employees at the time of Xxxxxxx'x
discussions. It shall not be a breach of this confidentiality provision for
Xxxxxxx to advise any employer or prospective employer of the limitations set
forth in paragraph 15 above.
23. Assignment. Each of the parties represents and warrants that he or
it has not heretofore assigned, transferred or granted or purported to assign,
transfer or grant any claims, matters, demands or causes of action herein
released, disclaimed, discharged or terminated, and agrees to indemnify and hold
harmless any other party from and against any and all costs, expense, loss or
liability incurred as a consequence of any such assignment.
24. Recitals and Paragraph Headings. Each term of this Agreement is
contractual and not merely a recital. All recitals are incorporated by reference
into this Agreement. Captions and paragraph headings are used herein for
convenience only, are no part of this Agreement and shall not be used in
interpreting or construing it.
25. Additional Documents. The parties will execute all such further and
additional documents and undertake all such other actions as shall be
reasonable, convenient, necessary or desirable to carry out the provisions of
this Agreement.
26. No Admissions. This Agreement effects the settlement of claims
which are denied, disputed and/or contested and nothing contained herein shall
be construed as an admission by any party hereto of any liability of any kind to
any other party. Each of the parties hereto denies any liability in connection
with any claim and intends merely to avoid the uncertainties and costs of
litigation and buy his or its peace.
27. Pennsylvania Law. This Agreement was negotiated, and delivered
within the State of Pennsylvania, and the rights and obligation so the parties
hereto shall be construed and enforced in accordance with and governed by the
laws of the State of Pennsylvania. Should
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any litigation arise concerning this Agreement, it will be filed only in a court
in Allegheny County, State of Pennsylvania, and then only if consistent with the
parties' obligations under paragraph 34 hereof with regard to arbitration.
28. Entire Agreement. This Agreement constitutes a single integrated
contract expressing the entire agreement of the partes with respect to the
subject matter hereof and supersedes all prior and contemporaneous oral and
written agreements and discussions with respect to the subject matter hereof.
There are no other agreements, written or oral, express or implied, between the
parties hereto, concerning the subject matter hereof, except as set forth
herein. This Agreement may be amended only by an agreement in writing.
29. Binding Effect. This Agreement is binding upon and shall inure to
the benefit of the parties hereto, their heirs, assignees and successors in
interest (including successors in any reorganization or merger with any other
entity).
30. Construction of Agreement. Each party has cooperated in the
drafting and preparation of this Agreement, and, accordingly, in any
construction or interpretation of this Agreement, the same shall not be
construed against any party by reason of the source of drafting.
31. Costs and Attorneys' Fees. Each party is to bear its own costs and
attorneys' fees incurred in connection with the matters resolved by this
Agreement and in connection with the negotiation and the preparation of this
Agreement. However, in the event of litigation or arbitration relating to or for
the enforcement of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees and costs actually incurred.
32. Taxes. Xxxxxxx acknowledges his responsibility for any and all
taxes due with respect to the sums paid to him under this Agreement, represents
that he has received independent advice concerning his tax obligations, and
states that he has not relied upon representations or advice, if any, of the
Company or their counsel concerning the taxable or nontaxable nature of the sums
payable hereunder. Xxxxxxx agrees that he will indemnify and hold the company
harmless from any and all claims for taxes, penalties and/or interest based upon
the payments to be made under this Agreement.
33. Counterparts. This Agreement may be executed in counterparts. When
each party has signed and delivered at least one such counterpart, each
counterpart shall be deemed an original, and, when taken together with other
signed counterparts, shall constitute one Agreement which shall be binding upon
and effective as to all parties. No counterpart shall be effective until all
parties hereto have executed and exchanged an executed counterpart hereof.
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34. No Waiver. The failure to enforce at any time any of the provisions
of this Agreement, or to require at any time performance by the other party of
any of the provisions hereof, shall in no way be construed to be a waiver of
such provisions or to affect either the validity of this Agreement or any part
hereof or the right of either party thereafter to enforce each and every
provision in accordance with the terms of this Agreement.
35. Arbitration. Except in connection with an action by the Company for
injunctive or other equitable relief, any controversy, dispute, or claim between
the parties of this Agreement or any party released pursuant to it, including
any claim arising out of, in connection with, or in relation to the
interpretation, performance or breach of this Agreement shall be resolved
exclusively by arbitration conducted in Pittsburgh, Pennsylvania, in accordance
with the then most applicable rules of the American Arbitration Association. In
the event the parties are unable to agree upon an arbitrator, the parties shall
select a single arbitrator from a list designated by the American Arbitration
Association of seven arbitrators. Two of the seven panel members proposed by the
American Arbitration Association shall be retired judges and five shall be
arbitrators, all of whom meet the qualifications set forth below. If the parties
are unable to select an arbitrator from the list provided by the American
Arbitration Association, then the parties shall each strike names alternatively
from the list, with the first strike being determined by lot. After each party
has used three strikes, the remaining name on the list shall be the arbitrator.
This agreement to resolve any disputes by binding arbitration shall extend to
claims against any shareholder of the Company, any brother-sister company,
subsidiary or affiliates of the company, any officers, directors, employees, or
agents of the company or any of the above and shall apply as well to claims
arising out of state and federal statutes and local ordinances as well as to
claims arising under the common law. In the event the parties are unable to
agree upon a location for the arbitration, the location (within Allegheny
County) shall be determined by the arbitrator. The parties intend that this
Agreement to arbitrate be valid, enforceable and irrevocable and that it provide
the exclusive remedy with respect to all disputes within its scope.
36. Xxxxxxx'x Understanding. Xxxxxxx states that he has carefully read
this Agreement, that it has been fully explained to him by his attorney, that he
fully understands its final and binding effect and understands that he is
releasing certain rights and entitlements, that the only promises made to him to
sign the Agreement are those stated above, and that he is signing this Agreement
voluntarily.
37. Age Discrimination in Employment Act Waiver. The waiver given below
is given only in exchange for consideration in addition to anything of value to
which Xxxxxxx is already entitled. The waiver set forth below does not waive
rights or claims which may arise after the date of execution of this Agreement.
Xxxxxxx acknowledges that (I) this entire Agreement is written in a manner
calculated to be understood by Xxxxxxx; (ii) that by reviewing this Agreement or
drafts thereof he has been advised in writing to consult with an attorney before
executing this Agreement, and (iii) he was given a period of 21 days within
which to consider the Agreement, and (iv) to the extent he executes this
Agreement before the
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expiration of the 21-day period, he does so knowingly and voluntarily and only
after consulting with an attorney. Xxxxxxx shall have the right to cancel and
revoke this Agreement during a period of 7 days following his execution of the
Agreement and this Agreement shall not become effective, and no money shall be
paid hereunder until the expiration of such 7-day period. Xxxxxxx or his counsel
shall notify the Company's counsel in writing of the date of the execution of
this Agreement and shall send by fax ((000)000-0000) to Company's counsel a
signed and dated copy of the signature page signed by Xxxxxxx. The 7-day period
of revocation shall commence upon the date of Xxxxxxx'x execution of this
agreement. Within the 7-day revocation period, Xxxxxxx or his counsel shall
forward to the Company and Company's counsel a copy of this Agreement fully
executed by Xxxxxxx. In order to revoke this Agreement, Xxxxxxx shall deliver to
the Company, prior to the expiration of said 7-day period, a written notice of
cancellation.
In addition to the release set forth at Paragraph 13 hereof, Xxxxxxx
hereby voluntarily and knowingly waives all rights or claims arising under the
Federal Age Discrimination in Employment Act.
38. Obligations of Company Which Survive Xxxxxxx'x Death. The following
obligations of the company, and no others, shall survive Xxxxxxx'x death.
Payments pursuant to the obligations set forth in the following paragraphs shall
be made to Xxxxxxx'x wife, or to his estate in the event she shall no longer be
living: paragraph 2, paragraph 3, paragraph 5, paragraph 6, paragraph 8 and
paragraph 11.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the dates and years written below.
EXECUTION AND ACKNOWLEDGMENT BY XXXXXXXX X. XXXXXXX
I received this Separation Agreement on April 7, 1998. I understand that
I have twenty-one (21) days thereafter within which to consider this Agreement
with my legal counsel. I freely choose to sign this separation of April 17,
1998. I understand that I will have seven (7) days thereafter within which to
revoke my acceptance of this Separation Agreement and that the Separation
Agreement shall not be effective under the expiration of that seven (7) day
period. Executed at Knoxville, TN, this 10th day of April, 1998.
/s/ Xxxxxxxx X. Xxxxxxx
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XXXXXXXX X. XXXXXXX
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EXECUTION AND ACKNOWLEDGMENT BY INTERNATIONAL TECHNOLOGY
CORPORATION
Dated: April 13, 1998
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At: Monroeville, Pennsylvania
INTERNATIONAL TECHNOLOGY CORPORATION
By: /s/ Xxx X. Xxxxxx
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Duly Authorized
ADDITIONAL CONSIDERATION
In order to induce International Technology Corporation (the "Company")
to enter into the foregoing Separation Agreement, I agree to forever release and
discharge the Company and the past and present parent, subsidiary, and related
corporations of the Company as well as the successors, shareholders, officers
and directors of corporate shareholders, officers, directors, heirs,
predecessors, assigns, agents, employees, attorneys and representatives of each
of them, past or present, from any and all cause or causes of action, actions,
judgments, liens, indebtedness, damages, loss, claims, liabilities, and demand
of whatsoever kind or character, known or unknown, suspected to exist or not
suspected to exist, anticipated or not anticipated, whether or not heretofore
brought before any state or federal court or before any state or federal agency
or other governmental entity, including without limitation on the generality of
the foregoing, any and all claims, demands or causes of action attributable to,
connected with, or incidental to the employment of my husband by the Company,
the separation of that employment, and any dealings between the parties
concerning my husband's employment or any other matter existing prior to the
date of execution of this Agreement, excepting only those obligations to be
performed hereunder. This release is intended to apply to any and all claims
whether based on common law contract or tort theories or state or federal
statutory or constitutional law theories.
Executed this 10th day of April, 1998.
/s/ Xxxxxx X. Xxxxxxx
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