EXHIBIT 10.13
SEPARATION AND RELEASE AGREEMENT
This Agreement (the "Agreement") is made as of the 29th day of
January, 1998 between Hexcel Corporation (the "Company"), for itself and on
behalf of its direct and indirect affiliated entities, and Xxxxxxx Xxxxxxxxxx
(the "Employee").
WITNESSETH:
WHEREAS, the Company employs Employee on the date hereof and
Employee has resigned his position as the Vice Chairman of the Board of
Directors of the Company effective December 31, 1997;
WHEREAS, Employee desires to resign his employment with the Company
and his officerships and/or directorships with the Company's affiliated
entities;
WHEREAS, Employee has extensive knowledge of the business and
operations of the Company including its technologies, customers, markets and
strategic plans; and
WHEREAS, Employee and the Company are parties to the Agreements
identified on schedule 1 hereto and any other agreements or arrangements
between the Company and Employee (other than this Agreement) (the "Existing
Agreements").
NOW THEREFORE, in consideration of the mutual terms and conditions
hereof, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Employee hereby
agree as follows (subject, however, to the termination of this Agreement as
provided in Section 16 hereof):
1. TERMINATION OF EMPLOYMENT. (a) Effective as of January
31,1998 (the "Termination Date"), Employee hereby voluntarily and amicably
resigns (i) from his employment with the Company and (ii) from all of his
officerships and directorships with the Company's affiliated entities.
Employee acknowledges that all files, records, electronic data, documents and
notes (and all copies, if any, thereof) relating to the Consolidated Group
(as defined below), whether prepared by Employee or otherwise in his
possession, custody or control, together with all office or file keys and
passes and
all other property of any member of the Consolidated Group, are the exclusive
property of the Consolidated Group and shall be delivered to the Company and
not retained by Employee following the date hereof. The term "Consolidated
Group" shall mean the Company and its direct and indirect affiliated entities.
(b) Except as otherwise provided in Section 2 (B) hereof, the
Termination Date shall be the date of termination of Employee's employment
with the Company for all purposes under the Existing Agreements and Employee
shall not accrue any rights or benefits thereunder after the Termination
Date, nor shall his termination of employment be considered a "retirement"
under any Existing Agreements.
2. SEVERANCE BENEFITS. Subject to the terms and conditions of
this Agreement, the Company shall extend the following severance benefits to
Employee (the "Severance Benefits"):
A. The Company shall pay Employee, as a discretionary
payment, severance pay in an amount equal to $25,000 per calendar month
commencing February 1998 for a period of twelve months (such payments being
collectively referred to herein as "Cash Severance"). Cash Severance will be
directly deposited in Employee's bank account (as he may designate in writing
from time to time) or, if there is no such designation, mailed to Employee at
his address set forth in Section 9 hereof, on a bi-weekly basis in accordance
with the Company's customary payroll practices.
B. With respect to the Option Agreement between Employee and
the Company dated March 1, 1996, the Company agrees to accelerate the vesting
of options that would have vested on March 1, 1998 to January 31, 1998.
C. All PARS granted to Employee under the PARS Agreements
dated March 1, 1996 and January 2, 1997, shall be deemed vested as of the
Termination Date, but none of such PARS shall be converted into shares of the
Company's common stock and distributed to Employee prior to the approval of
this Agreement by the Company's Board of Directors or a committee thereof as
provided in Section 16 hereof.
D. Notwithstanding anything to the contrary contained in
this Agreement, in the event Employee is in breach of this Agreement Employee
shall not be entitled to exercise any options or receive
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any shares pursuant to PARS in excess of the number of options or PARS that
are vested under the Existing Agreements on the date hereof, and the Company
shall be entitled to recover from Employee any gains realized from the
exercise of options or receipt of shares pursuant to PARS in excess thereof.
3. POST-EMPLOYMENT BENEFITS. For the one-year period following
the Termination Date, the Company, at its expense, will continue the group
health benefits (medical, prescription, dental and vision) that Employee
and/or his family were receiving immediately prior to the Termination Date.
Following such one-year period, the Company shall arrange to provide Employee
through COBRA with group health benefits, substantially similar to those
benefits which Employee and/or his family were receiving immediately prior to
the Termination Date, for such periods as required by COBRA, subject to
Employee's payment to the Company or its designee of the Company's cost for
such coverage to the extent permitted by COBRA. Employee agrees to notify
the Company in writing promptly upon accepting employment with another
employer and becoming eligible to participate in group health benefits of the
new employer. All benefits and perquisites, other than those specifically
mentioned in Sections 3 and 4 hereof, shall terminate effective upon the
Termination Date.
4. OTHER RIGHTS. This Agreement shall not affect Employee's
vested rights (determined as of the Termination Date), if any, under any
welfare benefit or pension plan, except as otherwise provided in Section 13
hereof with respect to the Executive Deferred Compensation Agreement dated
March 1, 1996 ("EDCA"). Employee's entitlement to a bonus payment for 1997
shall be governed and deter mined by the terms of the Management Incentive
Compensation Plan (the "Plan") (under which the Company acknowledges that
Employee is entitled to 100 percent of the bonus due under the Plan), but
such bonus payment will be made when the Company makes its 1997 bonus
payments to other employees in the ordinary course of business. This
Agreement shall not affect Employee's right to reimbursement (in accordance
the Company's reimbursement policy) for reasonable business expenses
incurred, and to current base salary and accrued vacation earned, on or
before the Termination Date.
5. CONTINUING OBLIGATIONS. (a) During the period commencing upon
the Termination Date and ending on the first anniversary thereof, Employee
(i) shall not, without the prior written consent of the Company, employ or
solicit employment of, or suggest, encourage, or at-
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tempt to influence the hiring or termination of any person employed on the
date hereof by any member of the Consolidated Group, and (ii) shall not
interfere with any existing or planned project or proposal of the
Consolidated Group.
(b) Employee acknowledges that the Consolidated Group's trade
secrets and confidential and proprietary information, including without
limitation:
A. Non public information concerning the Consolidated
Group's:
(i) Research activities and plans;
(ii) Marketing or sales plans;
(iii) Pricing or pricing strategies;
(iv) Manufacturing techniques; and
(v) Strategic plans;
B. Non public financial information, including information
concerning revenues, profits and profit margins;
C. Any non public "material inside information" as such
phrase is used for purposes of the Securities Exchange Act of 1934,
as amended;
all constitute valuable, special and unique information of the Consolidated
Group. In recognition of this fact, Employee agrees that he will not
disclose any such trade secrets or confidential or proprietary information
(except information which becomes publicly available without violation of
this Agreement), to any person or entity, for any reason or purpose
whatsoever, nor shall Employee make use of any such information for the
benefit of himself or any person or entity.
6. RELEASE. (a) In consideration of the mutual covenants and
agreements contained herein, Employee, for himself and on behalf of his
heirs, executors, administrators and representatives, hereby irrevocably and
unconditionally, knowingly and voluntarily, releases, acquits, and forever
discharges each member of the Consolidated Group and their respective
stockholders, officers, directors, employees, representatives, attorneys and
agents, and each of their respective successors and assigns (referred to
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collectively as the "Releasees") from any and all claims and causes of action
whether known to Employee or unknown, suspected or unsuspected, which exists
or may have existed or may arise in any way relating to any act or omission
or other matter occurring up to and including the date hereof including,
without limitation, Employee's employment relationship with the Company, or
the termination thereof, rights or claims which did exist or which might have
been asserted pursuant to any express or implied contract of employment or
any other agreement (other than the Existing Agreements listed on Schedule 1
hereto), or under any tort, federal, state, or local fair employment practice
or civil rights law, any other statute, executive order, law, ordinance, or
any other duty or obligation of any kind or description. For the avoidance
of doubt and not in limitation of the foregoing, this release includes (i)
all claims which have existed from the beginning of the world to the present
and which may arise in the future out of any and all occurrences or omissions
up to and including the date of this Agreement, and (ii) all claims for
alleged discrimination based upon age, race, sex, religion, national origin,
citizenship, or disability, and includes any claim asserted or unasserted,
which could arise under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
Section 1981, 42 U.S.C. Section 1983, the Connecticut Human Rights and
Opportunities Act, the Age Discrimination in Employment Act of 1967, 29
U.S.C. Section 621 et seq., (individually and collectively, "ADEA"),
California Fair Employment and Housing Act, the Employee Retirement Income
Security Act of 1974, 29 U.S.C. Section 1001 et seq., the Americans With
Disabilities Act of 1990, 42 U.S.C. Section 12101 et seq., the Older Workers
Benefit Protection Act and any fair employment practice, equal employment
opportunity, or employee benefit statute under any federal, state, or local
law, or any judicial decision or executive order now or hereafter recognized,
as well as any unsuspected and unanticipated claims, liens, injuries and
damages as well as those that are known.
(b) Employee hereby expressly waives all rights afforded by
Section 1542 of the Civil Code of the State of California ("Section 1542"),
or any statute of similar effect in any other jurisdiction in which any
action might be brought. Section 1542 states as follows:
A GENERAL RELEASE DOES NO EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
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Notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release, Employee understands and agrees
that this Agreement is intended to include all claims, if any, which Employee
may have that Employee does not now know or suspect to exist in Employee's
favor against the Company or any Releasee, and that this Agreement
extinguishes those claims.
(c) Employee hereby irrevocably and unconditionally, knowingly and
voluntarily, waives and gives up any right Employee has, had, or might have
had to file a charge or commence a legal action against the Releasees with
respect to the matters released in Section 6(a), to the full extent permitted
by applicable law. Employee represents and warrants to the Company that
prior to the date hereof he has not filed or permitted to be filed with any
court, governmental or administrative agency, or arbitration tribunal, any
complaint, lawsuit, charge or claim against the Releasees in respect of any
such matter. Employee further agrees and covenants not to seek or be
entitled to any recovery in any proceeding of any nature whatsoever in
connection with such matters. Should any such proceeding be brought against
the Releasees, Employee shall take all steps necessary to opt out, abandon,
and disclaim interest in such proceeding. If such proceeding is brought
successfully and thereby Employee becomes entitled to a monetary award,
Employee shall promptly return the proceeds received by him to the payor
thereof. Further, to the full extent permitted by applicable law, Employee
shall not testify, assist or participate (except in response to subpoena or
judicial order) in any lawsuit, administrative action, or any judicial or
administrative proceeding brought against the Releasees in connection with
such matters. Neither the existence nor terms of this Agreement nor any
claims or allegations that were or could have been raised by Employee as of
the date hereof, nor the facts and circumstances underlying such claims or
allegations, shall be admissible or submitted as evidence in any litigation
in any forum for any purpose other than to secure enforcement of the terms
and conditions of this Agreement.
(d) Employee acknowledges that he received a draft of this
document on January 21, 1998; that he has been offered by the Company at
least twenty-one days from the date he received this Agreement within which
to consider its terms; that he has been advised by the Company that during
such period he should consult an attorney regarding the terms of this
Agreement and that if he signs before the expiration of said twenty-one days
he does so of his own free will and with the full knowledge that he could
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have taken the full twenty-one days and he realizes and understands that this
Agreement applies to and covers all claims, demands, and causes of action,
including those that could be asserted under ADEA against the Consolidated
Group. Employee represents and warrants that he has, in fact, considered
this Agreement and that he knowingly and voluntarily enters into this
Agreement including, but not limited to, the releases and waivers set forth
above. The terms of this Agreement shall become effective and enforceable
upon the date of signing. Notwithstanding the preceding sentence, Employee
shall have seven (7) days from the date of signing to revoke his consent to
the release and waiver of his rights under ADEA set forth in Sections 6 (a)
and (b) by written notice to be received by the Company before 5:00 P.M.
EST on the seventh day. If no such revocation occurs, Employee's release and
waiver of his rights under ADEA shall become effective seven (7) days from
the date of signing of this Agreement. In the event that Employee revokes
his release and waiver of rights under ADEA, the Company shall have no
obligation to Employee for Severance Benefits under Section 2, but all other
terms, provisions and agreements contained in this Agreement shall remain in
full force and effect.
7. PURCHASE OF COMPUTER. The Company hereby grants Employee the
option to purchase the IBM Notebook computer that heretofore has been
provided to him by the Company, provided that (i) Employee shall pay a
purchase price equal to the net book value of such computer as shown on the
Company's books and records and (ii) the Company shall have completely purged
all of its software and data from the computer. This option shall terminate
on the 20th day following the Termination Date.
8. VALIDITY; INJUNCTIVE RELIEF. The invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement, which
shall remain in full force and effect. Employee acknowledges and agrees
that, in the event of his breach of any provision of Sections 5, 6 or 11 of
this Agreement ("Basic Covenants"), the Company would be irreparably and
immediately harmed and could not be made whole by monetary damages. It is
accordingly agreed that any member of the Consolidated Group, in addition to
any other remedy to which it may be entitled in law or equity, shall be
entitled to an injunction to prevent breaches of any Basic Covenants and/or
to compel specific performance of any Basic Covenants, and Employee will not
oppose the granting of such form of relief. In addition, in the event of any
breach of any Basic Covenants by Employee, the Company shall have no
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further obligations under this Agreement (other than the Company's COBRA
obligations under law, if any) including, without limitation, any obligation
under Section 2 hereof.
9. NOTICE. All notices and all other communications required or
permitted pursuant to this Agreement shall be in writing, and shall be
deemed to have been duly given when personally delivered by courier, or by
fax transmission, or when received by United States certified or registered
mail, postage prepaid, addressed to the respective addresses set forth below:
If to the Company: Hexcel Corporation
000 Xxxxxxx Xxxxxxxxx
Two Stamford Plaza
16th Floor
Stamford, CT 06901-3261
Attn: General Counsel
Fax: 000.000.0000
If to Employee: Xxxxxxx Xxxxxxxxxx
0000 Xxxxxx Xxx Xxxxx
Xxxxxxxx, XX 00000
Fax: 000.000.0000
The foregoing address may be changed by a party giving a notice of such
change as provided in this Section 9.
10. GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE
STATE OF CALIFORNIA WITHOUT REFERENCE TO SUCH STATE'S CONFLICT OF LAW RULES.
ALL DISPUTES CONCERNING THE APPLICATION OR ENFORCEMENT OF THE AGREEMENT
SHALL, IF NECESSARY, BE TRIED IN A COURT OF COMPETENT JURISDICTION IN THE
STATE OF CALIFORNIA OR THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA. EMPLOYEE HEREBY CONSENTS TO THE PERSONAL
JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA AND THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA.
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11. NONDISCLOSURE. (a) Employee hereby covenants and agrees that
he will not (i) except as to his personal representatives or as otherwise
required by law, disclose the existence of this Agreement or the terms and
conditions hereof to any other person or entity or (ii) make, or cause to be
made, any statement, observation, opinion, or communication (whether oral or
written) that disparages the Consolidated Group, any member thereof, or any
of their respective past or present officers, directors, shareholders or
employees, whether concerning his separation from employment or otherwise.
(b) The Company hereby covenants and agrees that it will not (i)
except as to its representatives or as otherwise required by law, disclose
the existence of this Agreement or the terms and conditions hereof to any
other person or entity or (ii) make, or cause to be made, any statement,
observation, opinion, or communication (whether oral or written) that
disparages Employee, whether concerning his separation from employment or
otherwise.
12. ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding of the parties hereto in respect of the subject matter hereof
and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by
any officer, employee or representative of any party hereto or its agent or
representative; and any prior agreement of the parties hereto in respect of
the subject matter hereof is hereby terminated and cancelled. No terms,
conditions, amendments or modifications hereto shall be binding unless made
in writing and signed by the parties hereto.
13. EDCA. The Company and Employee hereby terminate EDCA in its
entirety, and in complete satisfaction of all Employee's or his
beneficiaries' rights thereunder (whether accrued, contingent or otherwise),
the Company shall make a payment to Employee of $21,072.00 simultaneously
with the first monthly payment of Cash Severance to Employee.
14. NO WAIVER. The failure of the Company or Employee to insist
upon strict adherence to any term of this Agreement on any occasion shall not
be considered a waiver thereof or deprive that party of the right thereafter
to insist upon strict adherence to that term or any other term of this
Agreement.
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15. WITHHOLDING BY COMPANY. All payments in cash or by delivery
of Shares payable to Employee pursuant to this Agreement shall be made net of
all applicable withholding and payroll taxes under federal, state and local
laws.
16. TERMINATION. Employee has been advised and he hereby agrees
that the obligations of the Company under this Agreement are subject to the
review and approval of this Agreement by the Company's Board of Directors or
a committee thereof. The Company undertakes to seek such review and approval
on or before February 5, 1998. If such approval is obtained, the obligations
of Employee and the Company shall thereupon become unconditional and
absolute; if such approval is not obtained, then this Agreement shall
automatically terminate, and be of no further force or effect, at 12:01 a.m.
on February 6, 1998.
IN WITNESS WHEREOF, the Company and Employee have executed this
Agreement on the date first set forth above.
HEXCEL CORPORATION
By: ______________________
EMPLOYEE
___________________________
XXXXXXX XXXXXXXXXX
Consented to:
_______________________
XXXXX XXXXXXXXXX
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SCHEDULE 1
Executive Deferred Compensation Agreement dated March 1, 1996.
PARS Agreement dated March 1, 1996
Option Agreement dated March 1, 1996
Reload Option Agreement dated March 19, 1996
Reload Option Agreement dated April 8, 1996
PARS Agreement dated January 2, 1997
Option Agreement dated January 2, 1997
PASO Agreement dated February 3, 1997 (as amended May 22, 1997)
Reload Option Agreement dated March 6, 1997
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