SEVERANCE AGREEMENT AND RELEASE OF CLAIMS
Exhibit 10.1
This Severance Agreement and Release of Claims (“Agreement”) is between
Xxxx X. Xxxxxx (“Xxxxxx”) and Xxxxxxx & Xxxxx, Inc., with corporate offices at 00 Xxxx Xxxxxx,
Xxxxx 000, Xxxxxx, Xxxx 00000, and other related groups and companies of Xxxxxxx & Xxxxx, Inc.,
including the Process Solutions Group (“Xxxxxxx & Xxxxx” or “Company”).
Xxxxxx and Xxxxxxx & Xxxxx make this Agreement under the following circumstances:
X. Xxxxxx has been employed with the Company as Vice President and President of the Process
Solutions Group.
B. The Company has decided to terminate Xxxxxx’x employment effective April 9, 2009.
C. As a result, the Company has offered, and Xxxxxx has agreed to, certain individualized
severance benefits in connection with the decision to terminate his employment, and Xxxxxx has
agreed to release the Company from any and all claims arising out of his employment with the
Company, including his employment termination.
WHEREFORE, Xxxxxxx & Xxxxx and Xxxxxx agree as follows:
1. EMPLOYMENT SEPARATION. Effective April 9, 2009, Xxxxxx will terminate his
employment with the Company, including his position as Vice President of Xxxxxxx & Xxxxx and his
position as President of the Process Solutions Group. Until April 9, 2009, Xxxxxx will be
considered an active employee of the Company with normal pay and benefits. In addition, effective
April 9, 2009, Xxxxxx resigns his position as an officer and/or director of any and all
subsidiaries or affiliates of Xxxxxxx & Xxxxx, Inc. in which he holds any such office.
2. SEVERANCE PAY. The Company will pay to Xxxxxx a total of $265,000.00 in
severance pay (“Severance Amount”), which will be paid as follows: $130,000.00 on April 15, 2009
(or such later date upon which the seven (7) day revocation period set forth in paragraph 15(d) has
expired) and $135,000.00 on October 15, 2009. The required withholding and other applicable
payroll taxes will be deducted from such severance payments.
3. MEDICAL AND OTHER HEALTH CARE COVERAGE. For the period of April 9, 2009 through
April 30, 2010 (the “Benefit Period”), the Company will continue to provide Xxxxxx, and his
eligible dependents, with medical, dental, vision and EAP plan(s) coverage provided Xxxxxx is not
employed with an employer who provides comparable coverage to him. This medical, dental, vision
and EAP plan(s) coverage will be provided to Xxxxxx during the Benefit Period on the same terms and
employee contribution basis as are in effect for active exempt employees of the Company. Required
contributions will be deducted from Xxxxxx’x severance payments. Thereafter, Xxxxxx will be
eligible to elect coverage provided under the Consolidated Omnibus Budget Reconciliation Act
(“COBRA”) and to receive a COBRA premium reduction until December 31, 2009 pursuant to the American
Recovery and Reinvestment Act of 2009.
4. STOCK OPTIONS; RESTRICTED SHARES AND PERFORMANCE SHARES. All stock options,
restricted shares and performance shares previously available to Xxxxxx will be handled according
to the terms and conditions set forth in the relevant plan and award agreements and documents as
affecting an employee whose employment is terminated employment on April 9, 2009. In February
2008, 2,778 shares of restricted stock issued to Xxxxxx vested (the “2008 Shares”). The Severance
Amount includes and satisfies any obligation that the Company may have to Xxxxxx for any additional
tax liability that Xxxxxx may incur resulting from the vesting of the 2008 Shares.
5. OUTPLACEMENT SERVICES. The Company shall pay the expense of outplacement services
for the benefit of Xxxxxx up to a maximum of $15,000.00. The outplacement service will be provided
by a vendor chosen by Xxxxxxx & Xxxxx.
6. OTHER BENEFITS. Xxxxxx agrees that the payments and benefits provided under this
Agreement are greater than any to which he would otherwise be entitled under Company policies or
practices. Xxxxxx also agrees that the payments and benefits provided under this Agreement are all
that he will receive from the Company, and that these payments and benefits are in lieu of, and
replace, any payments which Xxxxxx might have claimed eligibility for, or entitlement to, under
Company policy or practice except for: (a) benefits to which Xxxxxx is entitled under the Xxxxxxx &
Xxxxx, Inc. Employee Savings Plan; (b) benefits to which Xxxxxx is entitled under Xxxxxxx & Xxxxx,
Inc. Pension Plan; and (c) any unused 2009 vacation pay. All benefits under the Company’s
Executive Supplemental Retirement Plan are forfeited in accordance with the terms of such plan.
7. RELEASE OF CLAIMS. In consideration of the payments and benefits provided to
Xxxxxx under this Agreement, Xxxxxx, on behalf of himself, his heirs, assigns and agents, fully
settles, releases, and forever discharges Xxxxxxx & Xxxxx, Inc., its groups and affiliates and
subsidiaries, and their present and former officers, directors, agents, employees, and all other
companies, groups and subsidiaries affiliated with Xxxxxxx & Xxxxx, Inc., from any and all claims,
demands, liabilities, costs, attorneys’ fees, damages, actions, and causes of action arising out of
or related to his employment, his termination from employment with the Company, or the 2008 Shares.
This includes, but is not limited to, any and all claims under the following federal statutes and
like or similar state or local laws: Title VII of the Civil Rights Act of 1964, as amended; the
Age Discrimination in Employment Act; the Equal Pay Act; the Americans with Disabilities Act; the
Employee Retirement Income Security Act; the Worker Adjustment and Retraining Notification Act, the
Older Workers Benefit Protection Act, and the Family and Medical Leave Act, as well as any other
type of employment discrimination, wrongful discharge, retaliation, breach of express or implied
contract, promissory estoppel, emotional distress, intentional tort, or personal injury claim.
This release covers claims known and unknown to Xxxxxx as of the effective date of this Agreement.
8. CONFIDENTIAL INFORMATION, NON-COMPETITION AND RETURN OF COMPANY PROPERTY. Xxxxxx
agrees that he will remain bound to all obligations of confidentiality to the Company. As a
result, Xxxxxx agrees not to disclose any Confidential Information unless he is required by law to
do so. Further, Xxxxxx acknowledges the terms of the Code of Business Conduct, and the
confidentiality and non-competition provisions in the Executive Officer Change of Control Agreement
to which Xxxxxx is a party, and any other confidentiality and non-competition agreements which he
has previously executed with the Company, including his obligations under those agreements. If
Xxxxxx knowingly violates this paragraph of the Agreement, or any of the referenced agreements, the
Company may terminate any benefits provided under this Agreement and seek other relief to which it
may be
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entitled. Xxxxxx agrees that for purposes of this Agreement, “Confidential Information” shall be
defined in this Agreement as follows: “Confidential Information” means and includes, but is not
limited to, matters of a technical nature such as scientific, trade and engineering secrets,
know-how, designs, plans, formulae, processes, inventions, and research and development projects
relating to the designing, engineering and manufacturing of the products of the Company, and
matters of a business nature, such as cost and pricing data, purchasing, marketing and sales
policies and procedures, market analysis, customer lists and strategies and plans for future growth
and development, all of which are of a confidential and proprietary nature to the Company, except
for any such information which is or becomes known in the public domain.
Further, Xxxxxx agrees to return to the Company, on or before his termination date, all
Company property or copies thereof in his possession, including, but not limited to, any company
car, cell phone, pager, computer, printer, fax machine, credit cards, keys, files, records,
business plans, and any other property and equipment that he has received or he has in his
possession in connection with his employment with the Company.
9. STATEMENTS. Xxxxxx agrees that he will not make any statements or remarks which
are disparaging to, or which have the potential of harming the Company and/or its present and
former officers, directors, agents or employees, and that he will not engage in any act or conduct
which is, or could be reasonably construed to be, detrimental to the Company’s interests, business,
or reputation.
10. REEMPLOYMENT. In consideration of the payment and benefits provided by this
Agreement, Xxxxxx agrees that he will not knowingly seek re-employment and will not be eligible for
re-employment with the Company, or any entity connected with, owned or operated by the Company.
11. COOPERATION. Xxxxxx agrees that upon request of the Company, he shall reasonably
assist the Company or any of its direct or indirect subsidiaries in any claims or any litigation
brought by or against any of them involving matters occurring during the period of his employment
with the Company, including, among other things, being deposed in litigation proceedings. The
Company will pay Xxxxxx $150.00 per hour and reimburse Xxxxxx for any reasonable expenses or other
costs that he incurs as a result of providing such assistance.
12. NON-ADMISSION OF LIABILITY. This Agreement does not constitute an admission by
Xxxxxxx & Xxxxx that it has violated any contract, law or regulation, or in any way infringed
Xxxxxx’x rights or privileges. The Company and Xxxxxx make this Agreement in order to end Xxxxxx’x
employment on a friendly basis, and to avoid the costs of defending against any legal action, which
Xxxxxx might otherwise initiate. Because this Agreement is being offered to Xxxxxx in order to
settle and compromise any possible disputed employment or contract claims, it may not be used as
evidence for any purpose except where it is alleged that the Agreement itself has been breached in
some manner.
13. SEVERABILITY. The provisions of this Agreement are severable. If any provision
of this Agreement is determined to be invalid or unenforceable by a court of competent
jurisdiction, the other provisions of this Agreement shall continue in full force and effect and
the voided provision shall be amended, if permissible, to the extent necessary to render it valid
and enforceable.
14. GOVERNING LAW. All matters relating to the interpretation, construction, and
enforcement of this Agreement shall be governed by and construed according to
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the laws of the State of Ohio to the extent that those laws are not preempted by the laws of the
United States of America.
15. ACKNOWLEDGMENT. Xxxxxx, in connection with his execution of this Agreement,
acknowledges the following:
(a) that he is waiving all rights and claims that he has or may have under the federal Age
Discrimination in Employment Act, as well as any rights or claims that he has or may have under
other federal, state, or local laws with regard to discrimination;
(b) that he has been advised by the Company to consult with an attorney prior to executing
this Agreement;
(c) that he has a period of 21 days in which to consider this Agreement before signing it;
and
(d) that for a period of 7 days following his signing of this Agreement, he may revoke
this Agreement, and that this Agreement shall not become effective and enforceable until that 7-day
revocation period has expired. Any revocation shall be submitted in writing to the signatory for
the Company.
16. ENTIRE AGREEMENT. The foregoing terms represent the entire agreement between
Xxxxxx and the Company and the only consideration for signing this Agreement. No other promises or
agreements of any kind have been made between the parties to cause them to sign this Agreement.
Xxxxxx states that he has carefully read this Agreement, that he fully understands its terms, that
he has had full opportunity to review it with his own legal counsel, that he understands its legal
and binding effect, and that he signs this Agreement voluntarily.
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Date: April 6, 2009 |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Xxxx X. Xxxxxx | ||||
FOR XXXXXXX & XXXXX, INC. Date: April 6, 2009 |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Xxxxx X. Xxxxxxx, President and CEO | ||||
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