EX-10.2 3 d338579dex102.htm SEVERANCE AND GENERAL RELEASE OF ALL CLAIMS AGREEMENT SEVERANCE AND GENERAL RELEASE OF ALL CLAIMS AGREEMENT
Exhibit 10.2
SEVERANCE AND GENERAL RELEASE OF ALL CLAIMS AGREEMENT
This Severance and General Release of All Claims Agreement (“Agreement”) is entered into between Xxxxxx Worldwide, Inc. (“Company”), and Xxxxx X. XxXxxxx (“Executive”), collectively referred to as the “Parties.” This Agreement is effective on the eighth day after Executive executes this Agreement (“Effective Date”).
(ii) |
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coverage shall not affect the amount of Coverage Costs eligible for reimbursement in any other calendar year for which such reimbursement is to be provided hereunder; (ii) no Coverage Costs shall be reimbursed after the close of the calendar year following the calendar year in which those Coverage Costs were incurred; and (iii) Executive’s right to the reimbursement of such Coverage Costs cannot be liquidated or exchanged for any other benefit. To the extent the reimbursed Coverage Costs constitute taxable income to Executive, Employer shall report the reimbursement as taxable W-2 wages and collect the applicable withholding taxes, and any remaining tax liability shall be Executive’s sole responsibility. |
Executive acknowledges and agrees that the Severance Payment and Coverage Costs constitute new and adequate consideration to support the release set forth in paragraph 3 of this Agreement and are payments Executive was not previously entitled to receive.
(a) In exchange for the consideration provided above, Executive hereby expressly waives, releases, and forever discharges the Company and its predecessors, successors, assigns, divisions, subsidiaries, parents, affiliates, officers, directors, executives, managers, supervisors, employees, partners, agents, attorneys and representatives (hereinafter the “Released Parties”), from any and all claims, demands, and causes of action that Executive has or claims to have, whether known or unknown, of whatever nature, that exists or may exist as of the date Executive executes this Agreement, including, but not limited to, claims arising from Executive’s employment with the Company and/or the termination thereof. As used in this paragraph, with the exception of claims for unemployment benefits, benefits in which Executive is vested, or claims of indemnification arising under any previously executed indemnification agreement, the Company’s charter documents, existing insurance policies or applicable law, which are specifically excluded, “claims,” “demands,” and “causes of action” include, but are not limited to, contract claims (express or implied), equitable claims, fraud claims, tort claims, discrimination claims, harassment claims, retaliation claims, personal injury claims, emotional distress claims, defamation claims, negligence claims, invasion of privacy claims, public policy claims, wage claims, claims for stock options and/or for vesting of options, commissions/bonus pay, claims for severance pay, vacation pay, sick pay, debts, accounts, attorneys’ fees, compensatory damages, punitive damages, and/or liquidated damages, and any and all claims arising under the U.S. or Texas Constitutions; the Americans with Disabilities Act of 1990 (“ADA”), as amended; the Family and Medical Leave Act of 1993 (“FMLA”), as amended; the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended; the Employee Retirement Income Security Act of 1974 (“ERISA”); Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991; the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”); the Worker Adjustment and Retraining Notification Act (“WARN”); the Texas Labor Code, including the Texas Commission on Human Rights Act and Section 451.001 of the Texas Workers’ Compensation Act; or any other applicable federal, state or local law, rule, ordinance or regulation (“Released Claims”). Executive further represents and warrants that Executive has been fully and properly paid for all hours worked and that Executive has received all leave (state and federal), in accordance with applicable law. Executive specifically further acknowledges and agrees that: (i) during Executive’s employment with the Company, Executive was allowed to take all leave and afforded all other rights to which
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Executive was entitled under the FMLA; and (ii) the Company has not in any way interfered with, restrained or denied the exercise of (or attempt to exercise) any FMLA rights, nor terminated or otherwise discriminated against Executive for exercising (or attempting to exercise) any such rights. The claims being released do not include any claims, actions, causes of action, suits, demands, or proceedings that Executive may have against the Released Parties (1) arising from any breach of this Agreement; (2) arising after the date Executive signs this Agreement; (3) that cannot be waived as a matter of law; and (4) that are specifically excluded from the definitions of “claims”, “demands”, and “causes of action” (collectively, the “Excluded Claims”).
(b) | IMPORTANT NOTICE REGARDING RELEASE OF CLAIMS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT (“ADEA”): |
Without in any way limiting the generality or scope of the Release of Claims set forth in this paragraph 4, Executive hereby acknowledges that Executive knowingly and voluntarily enters into this Agreement with the purpose of waiving and releasing any age discrimination claims Executive may have under the ADEA, and acknowledges and agrees that:
(i) | This Agreement is written in a manner in which Executive fully understands; |
(ii) | Executive specifically waives any rights or claims arising under the ADEA; |
(iii) | This Agreement does not waive rights or claims under the ADEA that may arise after the date this Agreement is executed; |
(iv) | The rights and claims waived in this Agreement are in exchange for consideration over and above anything to which Executive is already entitled; |
(v) | Executive has been advised in writing to consult with an attorney prior to executing this Agreement, and has, in fact had an opportunity to do so; |
(vi) | Executive has been given a period of up to at least twenty-one (21) days, if desired, within which to consider this Agreement. Any changes made to this Agreement, whether material or immaterial, will not restart the running of this 21-day period; and |
(vii) | Once executed, Executive has a period of seven (7) days within which Executive can revoke this Agreement, and the Agreement shall not be effective until the seven-day revocation period has been exhausted. Thus, the Effective Date of this Agreement is the eighth day after this Agreement has been executed, provided it was not revoked. If Executive chooses to revoke this Agreement, Executive must do so in writing, and the revocation must be addressed and delivered to Xxxxxx X. Xxxxxxxxxxx, Xxxxxx Worldwide, Inc., 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, before the expiration of the seven (7) day revocation period. If Executive delivers the revocation by hand or facsimile, the revocation will be considered timely if delivered or faxed to Xxxxxx X. Xxxxxxxxxxx at the above address and/or fax number within seven (7) days of Executive’s execution of this Agreement. If Executive delivers the revocation by mail, the revocation will be considered timely if it is mailed to Xxxxxx X. Xxxxxxxxxxx at the above address and postmarked within seven (7) days of Executive’s execution of this Agreement. |
(c) Executive understands that nothing in this Agreement is intended to interfere with or deter Executive’s right to challenge the waiver of an ADEA claim or the filing of any charge
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with the EEOC or any state discrimination agency or commission or to participate in any investigation or proceeding conducted by those agencies. Further, Executive understands that nothing in this Agreement would require Executive to tender back the money received under this Agreement if Executive seeks to challenge the validity of the ADEA waiver, nor does Executive agree to ratify any ADEA waiver that fails to comply with the Older Workers’ Benefit Protection Act by retaining the money received under the Agreement. Further, nothing in this Agreement is intended to require the payment of damages, attorneys’ fees or costs to the Company should Executive challenge the waiver of an ADEA claim except as authorized by federal or state law. Notwithstanding the foregoing two sentences, as provided above Executive waives any right to recover any monetary damages from any Released Party in a civil suit brought by any governmental agency or any other individual on Executive’s behalf with respect to any Released Claim.
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(c) In the event that Executive breaches any of Executive’s obligations under this Section prior to expiration of the Non-Solicitation Period:
(1) | The Company shall be entitled to recover from Executive an amount equal to fifty percent (50%) of the Severance Payment; and |
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(2) | The Company shall be entitled to take any and all action(s) necessary to pursue legal and equitable remedies against Executive, including, without limitation, injunctive relief. |
(a) Executive agrees and represents that Executive will not at any time (i) publicly disparage or encourage or induce others to publicly disparage the Company, including any of its respective officers, directors, employees, representatives or agents; and/or (ii) engage in conduct that is deliberately intended to injure the Company’s reputation and interests, including the reputations and interests of its respective officers, directors, employees, representatives or agents; and
(b) the Company agrees that its Executive Officers will not publicly disparage or encourage or induce others to publicly disparage Executive, or engage in conduct that is deliberately intended to injure Executive’s reputation and interests.
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matter contained herein, with the exception of any previously executed confidentiality agreement as may be referenced in paragraph 11 of this Agreement and any previously executed indemnification agreement as may be referenced in paragraph 4 of this Agreement. No changes may be made to the Agreement unless they are made in writing and signed and authorized by the Company.
17. Choice of Law. This Agreement shall be exclusively governed by and construed in accordance with the laws of the State of Texas without regard to the conflicts of law provisions of Texas law, or of any other jurisdiction, except where preempted by federal law. The Parties hereby agree that any action to enforce this Agreement shall be filed exclusively in a state or federal court of competent jurisdiction in Dallas County, Texas and the Parties hereby consent and waive any objection to the exclusive jurisdiction of such court.
21. Voluntary Agreement. EXECUTIVE UNDERSTANDS AND AGREES THAT EXECUTIVE MAY BE WAIVING SIGNIFICANT LEGAL RIGHTS BY SIGNING THIS AGREEMENT, AND REPRESENTS THAT EXECUTIVE HAS ENTERED INTO THIS AGREEMENT VOLUNTARILY, AFTER HAVING BEEN ADVISED TO CONSULT WITH AN ATTORNEY OF EXECUTIVE’S OWN CHOOSING, WITH A FULL UNDERSTANDING OF AND IN AGREEMENT WITH ALL OF ITS TERMS.
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IN WITNESS WHEREOF, this Agreement has been executed on the dates provided below.
XXXXXX WORLDWIDE, INC. | ||
BY: | /s/ Xxxxxx X. Xxxxxxxxxxx | |
DATED: | March 29, 2012 |
BY: | /s/ Xxxxx X. XxXxxxx | |
Executive’s Signature | ||
Xxxxx X. XxXxxxx | ||
Executive’s Name – Typed or Printed | ||
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Executive’s Address – Typed or Printed | ||
DATED: | March 29, 2012 |
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