STATE OF NORTH CAROLINA ) SEPARATION AGREEMENT ) AND RELEASE COUNTY OF MECKLENBURG )
Xxxxxxx 00.0
XXXXX XX XXXXX XXXXXXXX
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) | SEPARATION AGREEMENT | ||||
| ) | AND RELEASE | |||||
COUNTY OF MECKLENBURG
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THIS AGREEMENT is made this 8 day of July, 2008, by and between Xxxxxxx Xxxxxxx
Inc. and Xxxxxxx Xxxxxxx XX (collectively the “Company”), with their principal office in Charlotte,
North Carolina, on the one hand, and Xxxxx Xxxxxx (formerly Xxxxx Xxxxxxxxx), a resident of
Charlotte, North Carolina (the “Executive”) on the other.
WHEREAS, Executive has been employed by Company as its Executive Vice President and has agreed
to the separation of her employment with Company effective May 28, 2008; and
WHEREAS, Company and Executive agree that in exchange for the Release and other consideration
provided by Executive, as documented herein, Company will provide Executive with certain additional
consideration which it was not otherwise obligated to provide; and
WHEREAS, Executive and Company desire to terminate their employment relationship in an
amicable and definitive manner, and to settle, compromise and resolve any and all claims they may
have against each other; and
WHEREAS, Executive has been allowed at least 21 days within which to consider this Agreement.
NOW, THEREFORE, for good and valuable consideration, receipt and sufficiency of which are
hereby acknowledged, Executive and Company hereby agree as follows:
1. Separation from Employment and Payment of Compensation. Executive’s employment
with Company is terminated effective as of May 28, 2008 (the “Separation Date”). Executive
acknowledges that Company has paid to Executive all salary and other compensation due and payable
during the term of employment through and including the Separation Date.
2. Special Separation Benefits. In consideration of the promises of Executive
contained in this Agreement and the performance thereof, Company agrees to provide Executive with
the following special separation benefits, each of which constitutes separate and sufficient
independent consideration for Executive’s promises in this Agreement.
(a) Additional Salary Payment. Within its next payroll cycle after the Effective
Date, Company will pay to Executive her prorated salary for the final pay period in May 2008
through the Separation Date less deductions and withholdings. Executive understands and agrees
that this salary payment includes payment by the Company of Executive’s car allowance for May 2008
pro-rated through May 28, 2008.
(b) Special Severance Payment. Company shall provide Executive with a special
severance payment in the amount of $400,000 less standard deductions and withholdings. This
special severance payment will be paid in a lump sum within thirty (30) days after the
Effective Date.
(c) Job Reference. The Company agrees to provide Executive with the job reference in
the form attached hereto as Exhibit A, to be used by Executive in seeking employment outside of the
Company. The job reference will be signed by Xxxxx Xxxxxxx. The Company will provide prospective
employers of Executive only with confirmation of Executive’s dates of employment, job title and
responsibilities, and also provide a copy of the job reference which is Exhibit A provided that
prospective employers direct their requests to Xxxxx Xxxxx, Vice President Human Resources,
Xxxxxxxx Xxxxxx & Associates, Xxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000, (000) 000-0000. or, if
applicable, her successor as Vice President of Human Resources.
(d) Media Contact. The Company and Executive agree that neither shall issue a press
release specifying the reason for Executive’s separation from the Company. The Company will issue
an internal memorandum informing employees that if they receive any media inquiry about Executive’s
separation from employment with the Company, that such media are to be directed to the Company’s
Marketing Director, currently Xxxx Xxxxxxxx. The Marketing Director will respond to such
inquiries, if any, with “no comment.” Correspondingly, if Executive receives any news media
inquiries about her separation from the Company, about the Company, or about any of the Company’s
affiliates or subsidiaries, Executive will respond with “no comment.”
(e) Assistance with Transfer of Real Estate License. The Company agrees to send a
letter to the North Carolina Real Estate Commission notifying it that Executive is no longer
affiliated with the Company.
(f) Personal Calls to Executive. The Company agrees that, through July 31, 2008, its
receptionist or operator will provide Executive’s home telephone number [Number] to any
person calling the Company’s main number and clearly identifying himself or herself as placing a
telephone call to Executive of a personal, nonbusiness, nature.
(g) Forfeiture of Severance Benefits in the Event of Violation of Restrictive
Covenants. Notwithstanding the foregoing, if Executive breaches the provisions of Section 8 of
this Agreement, she shall forfeit and not be entitled to the severance benefits set forth in
subparagraphs 2(a) and 2(b) of this Agreement. This subsection 2(g) is in addition to any other
rights or remedies that the Company may have as a result of such breach and does not limit the
rights and remedies of the Company in connection with any other breach of this Agreement by
Executive.
3. Employee Benefits. The Company will direct the trustee or administrator to
distribute the Employee’s vested accrued benefits, if any, in the Company’s 401k plan in accordance
with the provisions of said plan. The Company will provide Employee the right to elect whatever
group health plan continuation coverage to which the Employee and her dependents are entitled
pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1986, 26 U.S.C. § 4980B
et seq., (“COBRA”), and to provide assistance with respect to exercising any
conversion rights provided under the Company’s group health plan(s). Executive
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recognizes and agrees that Executive only participated in the dental portion of said group health
plan. Executive’s “qualifying event” for COBRA purposes shall be the Separation Date. The Company
and Executive recognize that Executive is vested in 1,881 LTIP units of Xxxxxxx Xxxxxxx XX.
Executive understands and agrees that as of the Separation Date, she has forfeited and has no
rights to any other LTIP units.
4. Return of Property. Executive represents and covenants that she has returned, or
will return no later than the Effective Date, to the Company all property of Xxxxxxx Xxxxxxx Inc.
and all property of any affiliate or direct or indirect subsidiary of the Xxxxxxx Xxxxxxx Inc.
(including but not limited Xxxxxxx Xxxxxxx XX), (such property including but not limited to, all
keys to offices, all equipment, documents, tenant or customer lists, written information, forms,
formulae, plans, prospect information, vendor lists and information, documents or other written or
computer material or data, software or firmware, records, or copies of the same, belonging to
Xxxxxxx Xxxxxxx Inc. and all property of any affiliate or direct or indirect subsidiary of Xxxxxxx
Xxxxxxx Inc. (including but not limited Xxxxxxx Xxxxxxx XX) which are in Executive’s possession or
control, including but not limited to all originals, copies and summaries of any of confidential or
proprietary information. Executive further agrees to delete all such property and information
contained on any personal electronic device.
5. Releases.
(a) Release by Executive. In consideration for the release by Company set forth in
Section 5.b. of this Agreement and for the special separation benefits described above in
Subsections 2.a, 2.b, 2.c, 2.d, 2.e and 2.f of this Agreement, any of which provides separate and
independent sufficient consideration for this Release, Executive, for herself, her heirs,
executors, administrators, and assigns, hereby releases, waives, and forever discharges Xxxxxxx
Xxxxxxx Inc., Xxxxxxx Xxxxxxx XX, their direct and indirect subsidiaries and affiliates, and their
owners, health and welfare benefits plans, predecessors, successors, and assigns, and their
respective officers, directors, trustees, employees, representatives and agents, from any and all
contractual obligations, claims, or liabilities of whatever kind or nature which she has ever had
or which she now has, at the time of or prior to her execution of this Agreement, known or unknown,
including, but not limited to, any and all claims or counterclaims for breach of contract, breach
of fiduciary duty, unfair competition, defamation, wrongful or unlawful discharge, constructive
discharge, other torts, for past or future wages, salary, bonuses, earnings, restricted stock,
deferred compensation or other forms of compensation, punitive damages, attorneys fees, claims or
counterclaims for violations of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C.
§ 2000(e) et seq., the Americans with Disabilities Act, the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 621 et seq., or the Employee Retirement Income
Security Act of 1974, and all amendments thereto, violations of any state and/or municipality
whistle-blowing statutes or laws or fair employment statutes or laws, or violations of any other
law, rule, regulation, or ordinance pertaining to employment, wages, hours, ownership, or any other
terms and conditions of employment and termination of employment, and any other claims,
counterclaims and/or third-party claims, which have been, or could have been, asserted by Executive
in any court, arbitration, or other forum arising out of or in any way related to Executive’s
employment with Xxxxxxx Xxxxxxx Inc., Xxxxxxx Xxxxxxx XX, or their predecessors or affiliated
companies, the relationship between Executive and Xxxxxxx Xxxxxxx Inc., Xxxxxxx
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Xxxxxxx XX, or their predecessors or affiliated companies, or the termination thereof, to the
fullest extent permitted by law. (This release and waiver does not apply to claims that may arise
after the date this Agreement is executed, including but not limited to claims for breach of this
Agreement.)
(b) Release by Company. In consideration for Executive’s promises contained in this
Agreement and the release set forth in Section 5(a), Company, for itself, its administrators and
assigns, hereby releases, waives, and forever discharges Executive from any and all claims or
liabilities of whatever kind or nature which it has ever had or which it now has, known or unknown,
including, but not limited to, contract claims; tort claims; and claims based on any state or
federal common laws or statutes to the fullest extent permitted by law. (This release and waiver
does not apply to claims that may arise after the date this Agreement is executed, including but
not limited to claims for breach of this Agreement.)
*NOTE: You, Xxxxx Xxxxxx, have the right to consider this Agreement for at least twenty-one days
before accepting it. Before executing this Agreement and Release, Executive is advised to consult
with an attorney of her choice, at her expense.
*Further, you, Xxxxx Xxxxxx, have the right to revoke this Agreement at any time within the
seven-day period following the date you sign this Agreement. This Agreement shall not become
effective or enforceable until the seven-day revocation period expires.
6. Compliance with Older Workers Benefit Protection Act: By signing this Agreement,
Executive specifically acknowledges and represents that:
(a) Executive has been given a period of twenty-one days to consider the terms of this
Agreement;
(b) The terms of this Agreement are clear and understandable to Executive;
(c) The benefits the Company will provide to Executive under this Agreement exceed the
benefits that Executive was otherwise entitled to receive as an employee of the Company;
(d) Executive has been advised to consult with an attorney (at Executive’s expense) prior to
signing this Agreement and has been represented by counsel in the review and negotiation of the
terms of this Agreement; and
(e) Executive has been advised that she has the right to revoke this Agreement at any time
within the seven-day period following her signature of this Agreement.
7. Nondisparagement.
(a) Executive. As further consideration of the promises and benefits of Company set
forth in this Agreement, any of which constitutes separate and independent sufficient
consideration, Executive also agrees that she will, at all times hereafter, refrain from making any
untrue, misleading, or defamatory statements or representations, either orally or in writing,
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regarding Xxxxxxx Xxxxxxx Inc., Xxxxxxx Xxxxxxx XX, their affiliates, direct and indirect and
subsidiaries, and their respective officers, directors, shareholders, employees, agents,
predecessors and related entities, and will not disclose or communicate to any person, firm or
entity any information the disclosure of which is or is likely to be harmful or damaging to Xxxxxxx
Xxxxxxx Inc., Xxxxxxx Xxxxxxx XX, their affiliates, their direct and indirect subsidiaries, and/or
their respective officers, directors, shareholders, employees, agents, predecessors and related
entities, which she learned or which came to her attention during the course of her employment with
Company. Without limiting the foregoing, Executive agrees that she will not make any
communications, whether orally or in writing, speculating as to the reasons for her separation from
the Company or any other action or inaction by Xxxxxxx Xxxxxxx Inc., Xxxxxxx Xxxxxxx XX, their
affiliates, their direct and indirect subsidiaries.
(b) Company. Company agrees to use reasonable efforts to prevent its directors,
officers, and senior management employees from making any untrue, misleading, or defamatory
statements or representations, either orally or in writing, regarding Executive, including in
communications to other Company employees.
8. Confidentiality. Executive acknowledges that during her employment with Company
she acquired valuable knowledge and contacts pertaining to the business, customers, employees and
operations of Xxxxxxx Xxxxxxx Inc. and its affiliates and direct and indirect subsidiaries,
including but not limited to, Xxxxxxx Xxxxxxx XX. Executive agrees that in further consideration
for the release by Company set forth in Section 5.b of this Agreement and in further consideration
for the special separation benefits described above in 2.a, 2.b, 2.c, 2.d, 2.e and 2.f of this
Agreement, any of which provides separate and independent sufficient consideration for her promises
in this Section 8, she will not use, reveal, disclose, or allow to be revealed or disclosed any
Trade Secrets or Confidential Information (as defined below) in whatever form or manner they are
maintained. Executive agrees that her obligations contained in this Section 8 of this Agreement
shall apply regardless of whether the Confidential Information or Trade Secrets were developed or
created prior to the date of this Agreement. The foregoing obligations shall survive until the
information is no longer Confidential or a Trade Secret, as defined herein. Northing in this
Agreement shall alter or limit the Company’s rights to protect its Confidential Information and/or
Trade Secrets pursuant to any applicable law.
(a) Definition of Trade Secrets. As used in this Agreement, the term Trade Secrets
shall mean all formulas, techniques, and methods of doing business used by Xxxxxxx Xxxxxxx Inc.
and/or its affiliates and direct and indirect subsidiaries (including but not limited to Xxxxxxx
Xxxxxxx XX, Xxxxxxx Xxxxxxx Advisors LLC, Xxxxxxx Xxxxxxx Advisors Management LLC, CS Business
Trust I, General Partnership, CS Business Trust II, Limited Partnership, each individually an
“Owner” with respect to its confidential, proprietary and trade secret information), in its
business that are not generally known or used in the industry and from which Xxxxxxx Xxxxxxx Inc.
or any other Owner derive economic or business value from the fact that such are not generally
known; lists of current and prospective clients and associated client information (including client
names, contacts, addresses, habits, preferences, and requirements); computer programs developed by
Xxxxxxx Xxxxxxx Inc., an Owner, or any agent thereof for use solely by Xxxxxxx Xxxxxxx Inc. and/or
one or more Xxxxxxx Xxxxxxx Inc. affiliate or subsidiary (including but not limited to RC15,
annual general ledger, project expense listing, loan amortization programs, time
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management systems, and accounts payable, accounts receivable, and lease analysis programs); and
any other information or data which meets the definition of trade secrets under the Uniform Trade
Secrets Protection Act. The term “Trade Secrets” includes compilations of information where the
compilation otherwise meets the definition herein, even if portions of the information compiled are
generally known or used in the industry.
(b) Definition of Confidential Information. As used in this Section 8, “Confidential
Information” means data or information, whether constituting a trade secret or not, which is of
value to Xxxxxxx Xxxxxxx Inc. or the Owner and not generally known to persons or entities outside
of Xxxxxxx Xxxxxxx Inc. and its affiliates and subsidiaries, including but not limited to the
following: (a) historical business information about clients, business procedures or processes of
clients, and any other information which Executive learns about current and potential clients
through Executive’s employment with the Company; (b) supplier and distributor lists, data, and
information; (c) vendor lists and associated vendor information (including but not limited to
contacts, buying requirements, vendor numbers, preferences, requirements, and deals with Xxxxxxx
Xxxxxxx Inc., Xxxxxxx Xxxxxxx XX or any Owner,); (d) purchasing and materials information; (e)
training manuals; (f) information about Xxxxxxx Xxxxxxx Inc.’s, Xxxxxxx Xxxxxxx LP’s or any other
Owner’s methods of doing business or information regarding the financial aspects of its or their
business such as costs, financial statements, profit and loss statements, cash flows, fees and
prices, pricing policies, quoting procedures, sales, financial projections, and other financial
information; (g) information regarding business opportunities for new or developing businesses for,
and business and marketing plans, techniques, and strategies of, Xxxxxxx Xxxxxxx Inc., Xxxxxxx
Xxxxxxx XX or any other Owner (including but not limited to plans for new acquisitions or new
services); (h) confidential personnel information (such as compensation plans or strategies and
hiring plans and strategies); (i) any information received by Xxxxxxx Xxxxxxx Inc., Xxxxxxx Xxxxxxx
XX or any other Owner from third parties in confidence (or subject to non-disclosure or similar
covenants); (j) the terms and conditions of negotiations or confidential contracts between Xxxxxxx
Xxxxxxx Inc., Xxxxxxx Xxxxxxx XX or any other Xxxxxxx Xxxxxxx Inc. affiliate or direct or indirect
subsidiary and third parties; and (k) any documents, designs, files or other information marked
“Confidential.” Confidential Information shall not include, however, information that (i) is
within, or later falls within, the public domain without breach of this Agreement or any other
contractual obligation by Executive; (ii) is publicly disclosed with written approval of Xxxxxxx
Xxxxxxx Inc. or the Owner; or (iii) becomes lawfully known or available to Executive without
restriction from a source having the lawful right to disclose the information without breach of
this Agreement or any other contractual obligation by Executive.
(c) Remedies for Breach of Section 8 Covenants. Executive agrees and recognizes that
because the breach or threatened breach of the covenants, or any of them, contained in Section 8 of
this Agreement will result in immediate and irreparable injury to Company and the Owner (as
applicable), Company and/or the Owner shall be entitled, in addition to any other remedy permitted
in this Agreement or at law or in equity, to an injunction restraining Executive from any violation
of Section 8 to the fullest extent allowed by law.
9. Scope of Agreement; Modification. This Agreement discharges and cancels all
previous agreements between the parties and contains the entire agreement between the parties
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on this matter; no agreements, representations, or statements of either party not contained herein
shall be binding on such party, This Agreement shall not be modified, amended, altered or waived
except by separate written agreement signed by Company and Executive.
10. Binding Effect. This Agreement is not assignable by Executive. This Agreement
shall be binding upon, and inure to the benefit of, Executive and Company and their respective
heirs, successors, and legal representatives, and as to the Company, its assigns.
11. No Admission. Executive understands and agrees that Company and its affiliates
and subsidiaries admit no liability with respect to any claim related to, or arising out of, their
relationship or the termination thereof.
12. Discovery of Additional Facts. Executive agrees that should she hereafter
discover facts different from, or in addition to, those now known or believed to be true, that this
Agreement and Release shall, nevertheless, be and remain in full force and effect in all respects.
13. Severability. In the event any portion of this Agreement is determined to be
invalid under any applicable law by a court of competent jurisdiction, such provision shall be
deemed void and the remainder of this Agreement shall continue in full force and effect.
14. Notices. With the exception of the notice of revocation set forth in Section 17
of this Agreement (which notice shall be made in accordance with the terms of Section 17), any
notice or other communication required or permitted under this Agreement shall be in writing and
shall be deemed to have been duly given (i) upon hand delivery, (ii) on the third day following
delivery to the U.S. Postal Service as certified mail, return receipt requested and postage
prepaid, or (iii) on the first day following delivery to a nationally recognized United States
overnight courier service, fee prepaid, return receipt or other confirmation of delivery requested.
Any such notice or communication shall be delivered or directed to a party at its address set
forth below or at such other address as may be designated by a party in a notice given to the other
party in accordance with the provisions of this Subsection.
Notice to Executive shall be sent to:
Xxxxx Xxxxxx
[Address]
[Address]
Notice to Company shall be sent to:
Xxxxxxx Xxxxxxx Inc.
Attn: Xxxxx X. Xxxxxxx, CEO
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx, CEO
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000-0000
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15. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of North Carolina pertaining to contracts made and to be wholly
performed within such state, without taking into account conflicts of laws principles.
16. Jurisdiction and Venue. In the event that any legal proceedings are commenced in
any court with respect to any matter arising under this Agreement, the parties hereto specifically
consent and agree that:
(i) the courts of the State of North Carolina and/or the United States Federal
Courts located in the State of North Carolina shall have exclusive jurisdiction over
each of the parties hereto and over the subject matter of any such proceedings; and
(ii) the venue of any such action shall be in Mecklenburg County, North
Carolina and/or the United States District Court for the Western District of North
Carolina, Charlotte, North Carolina.
17. Effective Date. This Agreement shall not become effective and enforceable until
after seven (7) days following its execution by Executive (the “Effective Date”) and may be revoked
by Executive at any time within the seven day period. Executive shall provide notice to the
Company no later than midnight on the last day of the seven-day revocation period. Notice shall be
given by submitting a written statement of revocation via hand delivery or mail to Xxxxx Xxxxx,
Vice President Human Resources, Xxxxxxxx Xxxxxx & Associates, Xxx Xxxxxx Xxxxx, Xxxxxxx, XX 00000,
or via e-mail to Xx. Xxxxx at XXxxxx@xxxxxx.xxx. Notice may also be given by calling or leaving a
voice mail message for Xx. Xxxxx at (000) 000-0000 before midnight on the last day of the seven-day
revocation period, then immediately confirming the call or message with written notice as stated
above. Executive’s revocation must be in writing to be effective. No attempted revocation after
the expiration of such seven (7) day period shall have any effect on the terms of this Agreement.
18. Headings. The headings contained in this Agreement are inserted for convenience
only and do not constitute a part of this Agreement.
IN WITNESS WHEREOF, Company and Executive have executed this Agreement on the day and year
first written above.
EXECUTIVE:
| /s/ Xxxxx Xxxxxx | (SEAL) | |||||
| Xxxxx Xxxxxx |
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| COMPANY: | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| Title: | Chief Executive Officer and President | |||||
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EXHIBIT A
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