Exhibit 4
SEPARATION AGREEMENT
This Separation Agreement, dated as of February 28, 2003 (this "Separation
Agreement" or "Agreement"), is made by and between XXXXX & XXXXX COMPANY, a
Delaware corporation having its executive offices in New York, New York (the
"Company"), and XXX X. XXXXX (the "Executive").
In consideration of the mutual covenants and agreements hereinafter set
forth, the Company and the Executive agree as follows:
1. EFFECTIVE DATE. This Separation Agreement will become effective upon
the latest of the following dates (the "Effective Date"): (1) the date on which
the Separation Agreement has been executed by both the Company and the
Executive; or (2) the date on which the Executive's general release attached
hereto as EXHIBIT A becomes effective.
2. TERMINATION OF EMPLOYMENT AGREEMENT. Except and to the extent
provided in Paragraphs 8 and 9 of this Separation Agreement, that certain
employment agreement dated as of June 18, 2001 between the Company and the
Executive, as amended on October 3, 2001, and any exhibits and attachments
thereto (the "Employment Agreement") is hereby terminated as of the Effective
Date.
3. RESIGNATION OF EXECUTIVE. The Executive agrees that as of the date
hereof, he hereby resigns from his position as Chief Financial Officer of the
Company and any other position, as an officer or director, that he may hold with
the Company or any subsidiary or affiliate thereof.
4. SEPARATION PAYMENTS. The Company agrees to pay the Executive the sum
of Three Hundred Twenty-Five Thousand dollars ($325,000), net of applicable
withholdings for taxes and customary payroll deductions (the "Separation
Payment"), which shall be payable to Executive in accordance with the Company's
normal payroll at practices the rate of Forty-One Thousand Six Hundred
Sixty-Seven Dollars per month ($41,667.00).
Subject to the provisions of Paragraph 6 below, the Executive agrees that
the Separation Payment described in this Separation Agreement shall be the full
and total consideration for any and all rights or claims of the Executive of any
nature whatsoever, whether at law or in equity, under any and all prior oral and
written arrangements, understandings or agreements, including without
limitation, the Employment Agreement, to severance payments, bonus payments, or
any other consideration or benefits.
6. BENEFIT PLANS. After the Effective Date, except for rights under
various employee stock option, deferred compensation and 401(k) plans in which
the Executive is a participant, the Executive will no longer be covered by or
eligible for any benefits under any Company employee benefit plans in which the
Executive currently participates. After the Effective Date, Executive will
receive by separate cover information regarding the Executive's rights to health
insurance continuation (COBRA) and any 401(k), stock option and deferred
compensation plan benefits. To
the extent that the Executive has such rights, nothing in this Agreement will
impair those rights. [RW TO CONFIRM]
7. NON-DISPARAGEMENT; NON-ASSISTANCE.
(a) The Executive agrees that, without the prior written consent of the
Company, neither he, nor anyone acting on his behalf, will: (a) make derogatory,
disparaging, or critical statements to any person or entity about the "Released
Parties" (as that term is defined in EXHIBIT A annexed hereto); or (b) make any
public disclosures or communicate, directly or indirectly, with the press or
other media, including but not limited to through the issuance of a press
release, concerning the past or present employees or businesses of the Company
or any of its related affiliates or Executive's employment with the Company or
the termination thereof; provided that nothing herein shall prohibit Executive
from disclosing to potential future employers the termination of Executive's
employment with the Company pursuant to Paragraph 3 above. The Company agrees
that, without the prior written consent of the Executive, senior management and
the directors of the Company will not make derogatory, disparaging, or critical
statements about the Executive, including but not limited to through the
issuance of a press release, press interview or in Company meetings, or
concerning the Executive's employment with the Company or the termination
thereof. Except as required by law, the Company shall not issue any press
release after the Effective Date regarding the termination of the Executive's
employment without the Executive's prior written consent, which shall not be
unreasonably withheld or delayed, PROVIDED, HOWEVER, that nothing contained
herein shall prohibit the Company from making any public disclosures with
respect to the Executive in its public filings required to be made under federal
or state securities laws or pursuant to the rules or regulations of any
regulatory or administrative bodies or stock exchanges.
(b) The Executive agrees that neither he, nor anyone acting on his
behalf will, unless compelled by legal process, assist or encourage others to
assert claims or to commence or maintain litigation against the Released
Parties.
8. CONFIDENTIALITY. The Executive agrees that he will not, unless
required by law or otherwise permitted by express written permission from or
request by the Company, disclose to anyone any information regarding the
following:
(a) any non-public information regarding the Company, including its
practices, procedures, trade secrets, finances, client lists, or marketing of
the Company's services.
(b) the terms of this Agreement, except that the Executive may disclose
this information to members of his immediate family and to his attorney,
accountant or other professional advisor(s) to whom he must make the disclosure
in order for them to render professional services to him. The Executive shall
instruct them, however, to maintain the confidentiality of this information just
as the Executive must, and any breach of this obligation of confidentiality by
such family member or professional advisor(s) shall be deemed to be a breach by
the Executive. If required to disclose the terms of this Agreement by law, the
Executive shall provide the Company with sufficient notice prior to any such
disclosure, including the basis for the legal requirement to disclose,
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to allow the Company to seek a protective order preventing the disclosure, and
in the event the Company is unable to obtain or fails to seek a protective
order, the Executive agrees that he shall only make the minimum disclosures
required by law.
(c) Notwithstanding anything set forth in this Agreement to the
contrary, the Executive expressly reaffirms the confidentiality provisions set
forth in Section 10 of his Employment Agreement, which are hereby incorporated
by reference herein as though set forth herein in their entirety.
9. NON-SOLICITATION. The executive agrees that for the period ending
one (1) year after the Effective Date, the Executive shall not, without the
prior permission of the Chairman of the Board of the Company, directly or
indirectly, on behalf of himself or any other person or entity solicit for
employment any then current executive, employee or independent contractor of the
Company, or directly or indirectly request or induce any then current executive,
employee or independent contractor of the Company to leave the employ of, or
association with, the Company, or directly or indirectly hire any individual who
was an executive, employee or independent contractor of the Company at any time
during the six (6) month period prior to the date of hiring. Notwithstanding
anything set forth in the Agreement to the contrary, the Executive further
expressly reaffirms the non-solicitation provisions set forth in Section 9 of
the Employment Agreement, which are hereby incorporated by reference herein as
though set forth herein in their entirety. Notwithstanding the foregoing to the
contrary, nothing contained herein (whether by incorporation by reference or
otherwise) shall operate to (i) prohibit the Executive from hiring Xxxxxx
XxXxxxxx, his administrative assistant, at any time, or (ii) cause the Executive
to be in breach of the non-solicitation provisions hereof if any future employer
shall hire an employee or independent contractor of the Company so long as the
Executive was not, directly or indirectly, involved in the solicitation or
hiring of such person. For purposes hereof, the term "independent contractor"
shall mean any broker or consultant to the Company.
10. FORFEITURE. If the Board of Directors of the Company reasonably
determines that the Executive has engaged in a "Prohibited Action" (as defined
in the next paragraph), then: (a) the Company and the Executive agree that any
issue as to whether the Executive has engaged in a Prohibited Action and the
amount of damages, if any, resulting to the Company from such Prohibited Action
shall be determined in accordance with the provisions of Paragraph 13 hereof;
and (b) no further Separation Payments will be payable to the Executive but
shall be escrowed with the Company's outside counsel, and the Executive's right
to exercise any stock options will be suspended while these issues are resolved
in accordance with the provisions of Paragraph 13 below. In the event that it is
determined, in accordance with the provisions of Paragraph 13 below, or if the
Company and the Executive otherwise agree, that the Executive has engaged in a
Prohibited Action and that the Company is awarded (or, alternatively, the
Company and Executive agree to) a specified amount to compensate the Company for
damages resulting from such Prohibited Action (the "Damage Amount"), then the
Company shall offset any unpaid amounts otherwise payable under this Separation
Agreement ("Unpaid Severance Amount") by the Damage Amount. If the Damage Amount
exceeds the Unpaid Severance Amount, then the Executive shall pay to the Company
in a lump sum the amount by which the Damage Amount exceeds the Unpaid Severance
Amount within
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15 days after the date on which the arbitrator renders its decision (or the date
on which the Company and the Executive otherwise agree).
For purposes of this Separation Agreement, a "Prohibited Action" means the
Executive's breach of the provisions of this Separation Agreement, including
without limitation the Non-Disparagement and Non-Assistance provisions of
Paragraph 7, the Confidentiality provisions of Paragraph 8, and the
Non-Solicitation provisions of Paragraph 9 hereof.
11. GENERAL RELEASE. As a condition to the receipt of any Separation
Payments under Paragraph 4, the Executive agrees to execute a general release,
in the form attached hereto as EXHIBIT A.
12. WITHHOLDING. Any payments made under this Separation Agreement shall
be subject to any applicable federal, state, and local tax withholdings.
13. GOVERNING LAW; JURISDICTION AND VENUE; INJUNCTIVE RELIEF. This
Separation Agreement will be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the principles of
conflicts of laws. Each of the parties hereto irrevocably consents to the
exclusive jurisdiction and venue of the federal and state courts located in the
State of New York, County of New York. Accordingly, any dispute or controversy
between the Company and the Executive, including, without limitation, any and
all matters relating to this Separation Agreement, the Executive's employment
with the Company and the cessation thereof, and all matters arising under any
federal, state or local statute, rule or regulation or principle of contract law
or common law, including but not limited to Title VII of the Civil Rights Act of
1964, AS AMENDED, 42 U.S.C. " 2000e ET SEQ., the Age Discrimination in
Employment Act of 1967, AS AMENDED, 29 U.S.C. " 621 ET SEQ., the Americans with
Disabilities Act of 1990, 42 U.S.C. " 12101 ET SEQ., the Employee Retirement
Income Security Act of 1974, AS AMENDED, 29 U.S.C. " 0000 XX XXX., xxx Xxx Xxxx
Xxxxx Human Rights Law, AS AMENDED, N.Y. Exec. Law " 290 ET SEQ., the New York
City Human Rights Law, AS AMENDED, N.Y.C. Admin. Code " 8-101 ET SEQ., and any
other equivalent state or local statutes, shall be subject to the laws and
jurisdictions of the State of New York, without giving effect to conflicts of
laws provisions, and shall be exclusively adjudicated in the federal and state
courts located in the State of New York, County of New York. Notwithstanding the
foregoing, or anything else set forth herein to the contrary, in the event of
any breach or threatened breach by Executive of any of the provisions of this
Separation Agreement, in addition to and not in lieu of any damages sustained by
the Company under this Separation Agreement, and any other remedies which the
Company may pursue hereunder or under any applicable law, the Company shall have
the right to equitable relief, including the issuance of a temporary or
permanent injunction, by any court of competent jurisdiction against the
commission or continuance of any such breach or threatened breach without the
necessity of proving any actual damages or posting any bond or surety therefor.
In the event of the Company's breach of this Separation Agreement, the Executive
shall be permitted to seek monetary damages against the Company. Each party will
be responsible to pay all of its own fees and costs incurred under this
Paragraph 13 and each party expressly waives the right to a jury trial with
respect to any dispute or controversy that may be subject to this Section 13.
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14. RETURN OF PROPERTY. The Executive agrees to return to the Company,
by the Effective Date, any and all information and materials, whether in paper,
magnetic, electronic or other form, that Executive may possess relating to the
Company's practices, procedures, trade secrets, finances, client lists, or
marketing of the Company's services. In addition, the Executive shall also, by
the Effective Date, return to the Company all laptops, cellphones, pda's,
Blackberrys, credit cards, keys, building passes and all other property of the
Company.
15. FURTHER COOPERATION. Subsequent to the Effective Date, the Executive
shall cooperate with the Company and provide such assistance to the Company as
the Company may reasonably request, from time to time, concerning matters with
which the Executive was engaged on the Company's behalf provided that such
assistance does not conflict with the Executive's then responsibilities to
another employer.
16. SEVERABILITY. In the event that any of the provisions of this
Separation Agreement or the application of any such provisions to the Company or
the Executive with respect to obligations hereunder will be held to be unlawful
or unenforceable by any court or arbitrator, the remaining portions of this
Separation Agreement will remain in full force and effect and will not be
invalidated or impaired in any manner.
17. ENTIRE AGREEMENT. This Separation Agreement and EXHIBIT A annexed
hereto contains the entire agreement between the Company and the Executive with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, whether oral or written, between the Company and the Executive
with respect to the subject matter of this Separation Agreement. This Separation
Agreement may be amended only by an agreement in writing signed by both the
Company and the Executive.
18. COUNTERPARTS. This Separation Agreement may be executed in any
number of originals or facsimile counterparts, each of which so executed will be
deemed to be an original, and such counterparts will together constitute but one
agreement.
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IN WITNESS WHEREOF, the Company has caused this Separation Agreement to be
duly executed on its behalf by an officer duly authorized, and the Executive has
duly executed this Separation Agreement, all as of the date and year first
written above.
XXXXX & XXXXX COMPANY
By:
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Name:
Title:
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Xxx X. Xxxxx
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EXHIBIT A
GENERAL RELEASE BY XXX X. XXXXX
FOR AND IN CONSIDERATION OF the terms and conditions of the Separation
Agreement dated as of February 28, 2003 by and between XXX X. XXXXX (the
"Executive") and XXXXX & XXXXX COMPANY (the "Company") (the "Separation
Agreement"), the Executive agrees, on behalf of himself, his heirs, executors,
administrators and assigns, to release and discharge the Company, and all of its
current and former officers, directors, employees, agents, stockholders,
subsidiaries, divisions, affiliates, parents, successors and assigns ("Released
Parties") from any and all manner of actions and causes of action, suits, debts,
dues, accounts, bonds, covenants, contracts, agreements, judgments, charges,
claims, and demands whatsoever ("Losses") which the Executive, his heirs,
executors, administrators and assigns have, or may hereafter have against the
Released Parties or any of them arising out of or by reason of any cause, matter
or thing whatsoever from the beginning of the world to the date hereof,
including without limitation any and all matters relating to his Employment
Agreement with the Company, his employment by the Company and the cessation
thereof, and all matters arising under any federal, state or local statute, rule
or regulation or principle of contract law or common law, including but not
limited to Title VII of the Civil Rights Act of 1964, AS AMENDED, 42
U.S.C.ss.ss.2000e ET SEQ., the Age Discrimination in Employment Act of 1967, AS
AMENDED, 29 U.S.C.ss.ss.621 ET SEQ., the Americans with Disabilities Act of
1990, AS AMENDED, 42 U.S.C.ss.ss.12101 ET SEQ., the Employee Retirement Income
Security Act of 1974, AS AMENDED, 29 U.S.C. ss.ss.1001 ET SEQ., the New York
State Human Rights Law, AS AMENDED, N.Y. Exec. Lawss.ss.290 ET SEQ., the New
York City Human Rights Law, AS AMENDED, N.Y.C. Admin. Codess.ss.8-101 ET SEQ.,
and any other equivalent state or local statute; PROVIDED, HOWEVER, that the
Executive does not release and discharge the Released Parties from any Losses
arising out of or in connection with his Separation Agreement. It is understood
that nothing in this General Release is to be construed as an admission on
behalf of the Released Parties of any wrongdoing with respect to the Executive,
any such wrongdoing being expressly denied.
The Executive represents and warrants that he fully understands the terms
of this General Release, that he has had the benefit of advice of counsel, and
that he knowingly and voluntarily, of his own free will without any duress,
being fully informed and after due deliberation, accepts its terms and signs the
same as his own free act. The Executive understands that as a result of
executing this General Release, he will not have the right to assert that the
Company unlawfully terminated his employment or violated any of his rights in
connection with his employment.
The Executive affirms that he has not filed, and agrees not to initiate or
cause to be initiated on his behalf, any complaint, charge, claim, or proceeding
against the Released Parties before any federal, state, or local agency, court
or other body relating to his employment and the cessation thereof, and agrees
not to voluntarily participate in such a proceeding. The Executive waives any
right he may have to benefit in any manner from any relief (whether monetary or
otherwise) arising out of any such proceeding.
The Executive, having had the advice of counsel, knowingly waives the
remainder of the 21-day period he had from February 28, 2003, to consider
whether to execute this General Release. Upon the Executive's execution of this
General Release, he will have seven (7) days after execution to revoke it. In
the event of revocation, the Executive must present written notice of revocation
to Mr. C. Xxxxxxx Xxxxxxx of the Company. If seven (7) days pass without such
notice of revocation, this General Release shall become binding and effective on
the eighth (8th) day (the "Release Effective Date").
This General Release shall be governed by the laws of the State of New
York without giving effect to the principles of conflicts of law.
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XXX X. XXXXX DATE
Sworn to before me this
___ day of February, 2003
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Notary Public
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