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EXHIBIT 10.36
SEPARATION, CONSULTING, NON-COMPETITION AND RELEASE AGREEMENT
This Separation, Consulting, Non-Competition and Release Agreement and
Complete Settlement and Release of all Claims (hereinafter "Agreement") is made
and entered into by and between Xxxx X. Xxxxx and DT Industries, Inc., and its
affiliates, including, but not limited to Advanced Assembly Automation,
(hereinafter known collectively as, the "Company"), having offices at:
0000 Xxxx Xxxxxxxx - Xxxxx 0-000
Xxxxxxxxxxx, Xxxxxxxx 00000
The definition of "Affiliate" for the purpose of this Agreement shall mean
any person, firm, entity, company, or corporation that controls, or is
controlled by, or is under common control with, the party specified; and the
term "control" (including the terms "controlling," "controlled by," and "under
common control with") means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a person, firm,
entity, company, or corporation, whether through the ownership of voting
securities, memberships, contract, or otherwise.
RECITALS
WHEREAS, Xxxx X. Xxxxx (hereinafter "Employee") has been employed by the
Company as Sector President and
WHEREAS, Employee has agreed to enter into this Agreement in exchange for a
severance payment and certain other valuable benefits and considerations,
including a consulting arrangement, which is in addition to any other benefits
Employee may be entitled to receive; and
WHEREAS, Employee and the Company desire to settle fully and finally any
and all full-time employment relationship matters between them including, but
not limited to, any differences that might have arisen out of Employee's
employment with and separation from the Company; and
WHEREAS, Employee is desirous of providing to the Company and the Company
is desirous of retaining the services of the Employee as an independent
consultant and advisor.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises made herein, it is
agreed as follows:
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SEPARATION
1. The Employee's last active day of full-time employment with the Company
will be December 31, 1999 (the "Separation Date"), and the Employee's employment
with the Company will terminate effective at the close of business on that date.
The Employee will receive payment for any and all unused vested vacation days.
SEVERANCE PAYMENTS
2. As consideration for the Employee's commitments set forth in this
Agreement, the Company agrees to pay to Employee a Severance Allowance in the
amount equal to Sixty Thousand Dollars ($60,000). After expiration of the
revocation period, the payment will be made to the Advanced Assembly Automation
Deferred Compensation Account. The payment provided for in this paragraph shall
be in full and complete satisfaction of, without limitation, any claim for
salary, benefits, compensation of any sort, or any other claim for anything of
economic value which the Employee may have arising out of his employment with
the Company, or separation of employment.
BENEFIT ELIGIBILITY
3. (a) Previously elected group coverage under the medical, dental, vision
and EAP plans for the employee and eligible dependents will cease as of December
31, 1999, unless otherwise stated in the Plan Document. Effective January 1,
2000, the Employee will be eligible to elect continuation coverage under the
medical, dental and vision plans pursuant to COBRA. Effective April 2000, the
Employee will be eligible for Medicare coverage. Therefore, under the
Consolidated Omnibus Budget Reconciliation Act ("COBRA") and the Medical Plan
Document, the Employee's eligibility for COBRA ceases at the age of 65. However,
the Employee's covered dependent is eligible to continue COBRA for up to
eighteen (18) months. In lieu of the regular COBRA rate, the Employee, and his
covered dependent, will be permitted to pay the active rate through April 2000.
Commencing with April 2000, the Employee's dependent will be required to pay the
COBRA premium in order to continue coverage. Provided the Employee's dependent
does continue under the COBRA Continuation Plan for eighteen (18) months, she
may then choose to exercise her COBRA conversion privileges as provided by the
Plan Document. It is the Employee's responsibility to obtain and ensure
appropriate coverage continuation for himself and eligible dependents.
3. (b) Stock Options: The Company agrees that, notwithstanding anything
else contained in this Agreement, the Employee has the right to:
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(i) exercise (for the period set forth in the relevant stock option
plan or as may be extended in the discretion of the Compensation Committee
of Company's Board of Directors) any stock options vested in him as of the
date of execution of this Agreement for the purchase of DTI common stock,
in accordance with the provisions of the relevant plan under which such
options were granted; and
(ii) any assets, monies or funds contained in any retirement plan that
were vested as of the date of execution of this Agreement, subject to the
terms and conditions of such plans. The Company agrees that, upon the
written request of the Employee, and subject to applicable law and the
relevant provisions of the applicable plan, it will facilitate the transfer
of such funds as directed by the Employee.
RETURN OF COMPANY PROPERTY
4. In accordance with his existing and continuing obligations to the
Company, Employee agrees to return to the Company, on or before the Separation
Date, all Company property or copies thereof, including, but not limited to,
cell phone, pager, computer, printer, fax machine, furniture, credit cards,
files, records, computer access codes, computer programs, keys, card key passes,
manuals, databases, documents, business plans, and any other property and
equipment which he received or prepared or helped to prepare in connection with
his employment with the Company. This includes the ceasing of any automobile
allowances and Company paid golf and/or social club memberships.
COMPENSATION
5. Employee acknowledges and agrees that he has received all wages,
bonuses, compensation, remuneration and all other monies due him arising out of,
relating to or resulting from Employee's full-time employment relationship with
the Company including but not limited to all monies due him under any benefit
plans established and/or maintained by the Company, exclusive of any 401(k)
distribution.
RE-EMPLOYMENT
6. Employee understands, acknowledges and agrees that the Company has no
obligation whatsoever to reinstate, recall, reemploy or rehire Employee to any
position not otherwise named herein with the Company and that Employee waives
and releases any claims to reinstatement, recall, re-employment or rehire that
Employee has or may have.
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BOARD OF DIRECTORS
7. The Employee currently serves as a Managing Director on the Company
Board of Directors. The role of Managing Director will cease effective December
31, 1999. Effective January 1, through November 2000, the former Employee will
commence to serve as a Non-Management Director, under the guidelines and
auspices of the Board. Compensation for the Non-Management Director role will be
in accordance with the practice of the Compensation Program for the Board of
Director in place at that time.
ASSOCIATION OF MANUFACTURING TECHNOLOGY
8. Employee currently serves on the Board of Directors of the Association
of Manufacturing Technology. The Company is agreeable to continue to reimburse
Xxxxx, as a former Employee, for any reasonable and necessary travel expenses
incurred by him, excluding those paid for by the Association of Manufacturing
Technology, that is directly related to the rendition of Board services, for
himself through November, 2001. Such expenses expected to exceed $1,000 a month
must have prior approval of the Corporate Vice President of Administration and
be in line with the Company travel policy and practice in effect at the time.
Such expenses must also be on an itemized voucher supported by documentation as
required by the Internal Revenue Service to justify business expense deductions.
Xxxxx shall be responsible for payment of all other expenses not necessary in
order for Xxxxx to render the AMT Board services. It is anticipated that
expenses will include attendance at the Spring and Annual meetings.
PROPRIETARY COMPANY INFORMATION
9. Employee affirms his continuing obligation to keep all proprietary
Company information confidential and not to disclose it to any third party in
the future. As used in this Agreement, the term "Proprietary Company
Information" includes, but is not necessarily limited to, technical, marketing,
business, financial, or other information which constitutes trade secrets
information or information not available to the competitors of the Company, the
use or disclosure of which might reasonably be construed to be contrary to the
interests of the Company. Because of the difficulty of measuring economic
damages to the Company as a result of violations of this Section, and because of
the immediate and irreparable damage that would be caused to the Company, in the
event of a breach by the Employee
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of the provisions of this Section, the Employee agrees that the Company and its
affiliates may, in addition to any other available remedy, enforce the
provisions of this Section by all equitable relief, including injunctions and
restraining orders.
NO VIOLATION OF LAWS
10. Employee acknowledges that there are various local, state, and federal
laws that prohibit employment discrimination on the basis of age, sex, race,
color, national origin, ancestry, citizenship, religion, disability, marital
status, sexual orientation, medical condition, veteran status, other protected
classes, and that these laws are enforced through the Equal Employment
Opportunity Commission, Department of Labor and State Human Rights agencies.
Such laws include, without limitation, Title VII of the Civil Rights Act of
1964, the Civil Rights Acts of 1866 and 1991, the Equal Pay Act, the Family and
Medical Leave Act, the Worker Adjustment and Retraining Notification Act, the
Rehabilitation Act of 1973, the Older Workers Benefit Protection Act, the
Americans with Disabilities Act of 1990, the Age Discrimination in Employment
Act, 42 U.S.C. Section 1981, the Fair Labor Standards Act, ERISA, Worker
Adjustment and Retraining Notification Act of 1988, and any other federal, state
or local law, ordinance or regulation regarding discrimination in employment or
termination of employment. In consideration of the benefits provided for in this
Agreement, the Employee gives up any and all rights under these or any other
laws with respect to his employment and termination of employment at the Company
and acknowledges that the Company has not (i) discriminated against him, (ii)
breached any contract with him, (iii) committed any civil wrong (tort) or
personal injury against him, or (iv) otherwise acted unlawfully toward him.
Employee acknowledges that Company does not admit and denies any violation of
any law or any liability to Employee.
WAIVER OF ALL CLAIMS, COVENANT NOT TO XXX AND GENERAL RELEASE
11. (a) On entering into this Agreement, Employee fully, finally, and
forever waives any and all claims, whether known or unknown, that he has or may
have against the Company based on any claim or cause of action arising at any
time prior to and including the date that Employee signs this Agreement.
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11. (b) Employee agrees further that he will not file or cause or permit to
be filed on his behalf any administrative charge or complaint or any lawsuit
against the Company based on any claim, matter, or thing arising at any time
prior to and including the date Employee signs this Agreement and General
Release.
11. (c) Employee hereby unconditionally and generally releases and
discharges the Company from all actions, causes of action, claims and demands of
any nature (hereinafter "claims"), whether known or unknown, or foreseen or
unforeseen, which Employee has or may have against the Company arising at any
time prior to and including the date Employee signs this Agreement; further
including, without limitation, any and all claims which relate directly or
indirectly to Employee's employment with the Company, his separation from that
employment; and/or the Company's failure or refusal to reinstate him to
employment; and further including, without limitation, claims, whether
statutory, at common law or otherwise, for wrongful termination of employment,
breach of contract, detrimental reliance, promissory estoppel, infliction of
emotional distress, defamation, fraud, misrepresentation, or any other tort or
personal injury, and claims of discrimination based upon sex, race, age,
national origin, ancestry, religion, disability, marital status, sexual
orientation, medical condition, veteran status, and other protected classes,
including, without limitation, such claims as were asserted, or could have been
asserted.
11. (d) In further consideration of the Company's undertakings as described
above, Employee hereby unconditionally releases and discharges the Company of
and from all claims arising at any time prior to and including the date Employee
signs this Agreement, which he has or may have against the Company and forever
releases the Company under the United States Age Discrimination in Employment
Act ("ADEA"), 29 U.S.C. Section 621 et seq.
11. (e) Employee and the Company intend for this Agreement to comply with
Section 201 of the Older Workers Benefit Protection Act of 1990. Accordingly,
Employee acknowledges and represents as follows:
(i) Employee waives such claims as he may have under ADEA knowingly and
voluntarily and in exchange for consideration of value to which he is not
otherwise entitled;
(ii) Employee has been advised to consult an attorney in connection
with this Agreement; and
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(iii) Employee has been given twenty-one (21) days within which to
consider this Agreement;
(iv) Employee understands that he has seven (7) days to revoke this
Agreement after signing it by providing written notice of such revocation to the
Corporate Vice President of Administration, and that this Agreement shall not
become effective or enforceable until this seven (7) day revocation period has
expired without Employee having exercised this right of revocation.
CONSULTING
12.(a) Term. The Company hereby retains former Employee Xxxx X. Xxxxx
(hereinafter "Xxxxx"), and Xxxxx hereby agrees to be retained by the Company for
the consideration and upon the terms and conditions herein set forth, to
consult, counsel and advise with the Company for an initial term of one (1) year
beginning on the date of execution of this Agreement and ending on the first
anniversary of the date of execution of this Agreement (the "Initial Term").
Unless otherwise notified in writing, the consulting arrangement set forth in
this Agreement may continue in effect. Once the Initial Term has elapsed, the
consulting arrangement may be cancelled, in writing, by either party, with a
30-day notice of cancellation.
12. (b) Duties. As set forth below, Xxxxx agrees to make himself available
to the Company from time to time between the date of execution of this Agreement
and the Consulting Termination Date to render counsel and advice to the Company,
as reasonably requested by the Company, for the profit, benefit and advantage of
the Company. The Company shall only request Xxxxx to render counsel and advice
as to matters that are consistent with Xxxxx'x most recent employment
responsibilities for the Company prior to the date of execution of this
Agreement. Xxxxx shall provide such services upon the direction of the Company's
President and Chief Executive Officer and/or the Corporate Vice President of
Administration. In addition, Xxxxx shall make himself available to render
counsel and advice to the Company on other matters as reasonably requested by
the Company beyond those items as agreed to by Xxxxx. The services of Xxxxx
shall be rendered at such times and places as shall be mutually convenient to
the Company and Xxxxx, it being understood that: (i) the duties and obligations
of Xxxxx are not those which would ordinarily attend an employment relationship.
Xxxxx shall have no obligation to maintain specific office hours at the
Company's place of business or to devote any specific portion of his time on a
regular basis to the Company's affairs or, except as requested by the Company to
provide his personal service in the fulfillment of this Agreement; however,
Xxxxx shall make himself available to perform his duties within the reasonable
requirements of the Company which would not exceed, except as consented
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to by Xxxxx, an average of two work days of his time per week; (ii) Xxxxx'x
services shall be rendered primarily at Xxxxx'x place of residence in
Centerville, Ohio and any requested travel of Xxxxx shall be by mutual
reasonable consent and at the sole expense of Xxxxx; and (iii) subject to the
non-competition covenant set forth below, Xxxxx may be regularly self-employed
on a part-time basis in other capacities or may enter the part-time employ of a
third party. Xxxxx shall be deemed an independent contractor of the Company in
connection with the rendering of consulting services hereunder.
12. (c) Base Compensation. In consideration of Xxxxx'x consulting services
and the restrictive covenants set forth below, the Company shall pay Xxxxx a
monthly compensation of $2,500.00 ($30,000.00 annually). The first payment will
be due and payable one month from the date of execution of this Agreement and a
like payment shall be made on the same day ("Due Date") of each successive month
thereafter through and including the consulting termination date.
12. (d) Reimbursements. During the term of this Agreement the Company shall
promptly reimburse Xxxxx for any reasonable and necessary travel expenses
incurred by him that is directly related to the rendition of consulting services
requested by the Company, provided that any such expenses which exceed $1,000
per month are subject to prior approval by the President and Chief Executive
Officer and the Corporate Vice President of Administration. All expenses
submitted by Xxxxx to the Company must be in line with the practices and
policies in effect at the time and on an itemized voucher supported by
documentation as required by the Internal Revenue Service to justify business
expense deductions. Xxxxx shall be responsible for payment of all other expenses
necessary in order for Xxxxx to render the consulting services provided
hereunder, including, without limitation, expenses associated with Xxxxx'x
establishing and maintaining a home office.
(i) Covenant Not to Disclose. Xxxxx acknowledges that the Company is
the exclusive owner of the Proprietary Information. He covenants and agrees that
he will not, during the term of this Agreement or any time thereafter, except
with the express prior written consent of the President and Chief Executive
Officer of the Company and the Corporate Vice President of Administration,
directly or indirectly disclose, communicate or divulge to any person, or use
for the benefit of any person, any proprietary information. The restriction
contained in the preceding sentence shall not apply to any Proprietary
Information that (i) is a matter of public knowledge (which shall include
knowledge in the industries in which the Company or its Subsidiaries are
engaged) on the date of execution of this Agreement, (ii) becomes a matter of
public knowledge (which shall include knowledge in the industries in which the
Company or its Subsidiaries are engaged or may become engaged) after the date of
execution of this Agreement from another source which is under no obligation of
confidentiality to the
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Company or its Affiliates or (iii) that is furnished in the ordinary course of
business to persons which sell, provide or propose to sell or provide goods or
services to the Company or its Subsidiaries or which purchase, obtain or propose
to purchase or obtain goods or services from Company or its subsidiaries.
(ii) All data, designs, drawings, blueprints, tracings, sketches,
plans, layouts, specifications, models, programs, cards, tapes, disks,
printouts, writings, manuals, guides, notes and any and all other memoranda,
including without limitation any and all written information which may be or has
been furnished to Xxxxx or which may be produced, prepared or designed by Xxxxx
in connection with his employment or consulting arrangement with the Company or
its subsidiaries shall be, become and remain the exclusive property of the
Company. Upon the termination of this Agreement, all originals, copies and
reprints in Xxxxx'x possession, custody, or control shall be promptly
surrendered and/or delivered to the Company, and Xxxxx shall thereafter make no
further use, either directly or indirectly, of any such data, designs, drawings,
blueprints, tracings, sketches, plans, layouts, specifications, models,
programs, cards, tapes, disks, printouts, writings, manuals, guides, notes or
other memoranda or written information.
12. (f) (i) Covenants Not to Compete. The Company and Xxxxx agree that
Xxxxx has had, and while he is providing consulting services will have, access
to valuable trade secrets and confidential information of the Company. In order
to protect such information, as well as to protect the goodwill of the Company,
Xxxxx covenants and agrees that he will not at any time during the Initial Term,
or during any extended term, and for one (1) year following the consulting
termination date, except with the express prior written consent of the President
and Chief Executive Officer and the Corporate Vice President of Administration,
directly or indirectly, whether as a former employee, consultant, or shareholder
(except as the holder of not more than one percent (1%) of the outstanding
shares of a corporation whose stock is listed on any national or regional
securities exchange or reported by the NASDAQ Stock Market or any successor
thereto) either (i) establish any person that competes with the Company or any
of its Subsidiaries or (ii) be affiliated or connected with any person that
carries on any business within the State of Ohio, the states contiguous thereto,
elsewhere in the United States of America, Canada, Europe and the rest of the
world, which is competitive with the business of the Company or any of its
Subsidiaries in a capacity which is competitive in any of his duties,
responsibilities or activities with the business of the Company or any of its
Subsidiaries. Xxxxx covenants and agrees that he will not directly or indirectly
solicit, divert or accept business from or otherwise take away or interfere with
any customer of the Company or any of its Subsidiaries, including without
limitation any person who was a customer or whose business was being pursued by
the Company
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or any of its Subsidiaries within the period commencing upon the start of
Xxxxx'x employment with the Company or any Subsidiary, and for the period ending
one (1) year after the consulting termination date, including all customers
directly or indirectly produced or generated by Xxxxx. The parties further agree
that if Xxxxx becomes affiliated or connected with any such person, Xxxxx shall
be obliged to show by clear and convincing evidence that none of his duties,
responsibilities or activities entail employment in a capacity which has been,
is or is likely to become, competitive with the business of the Company or any
of its Subsidiaries.
(ii) Xxxxx further covenants and agrees that he will not during the Initial
Term, or any extended term, and for one (1) year following the consulting
termination date, except with the express prior written consent of the President
and Chief Executive Officer and the Corporate Vice President of Administration,
any successor to the Company or their respective designees, directly or
indirectly, accept employment, be employed by or be a principal of any business
or enterprise operating within the United States which then employs or has as a
principal or holder of any interest therein (except as the holder of not more
than one percent (1%) of the outstanding shares of a corporation whose shares
are publicly traded) any individual who was previously employed in a managerial
or Xxxxx position with the Company or any of its Affiliates, provided however,
that this prohibition shall not be applicable if (i) such business or enterprise
does not compete with the Company or its Affiliates, or (ii) such business or
enterprise engages in activities which do compete and other activities which do
not compete with the Company or its Affiliates, Xxxxx and the other individual
who was previously employed by the Company or any of its Affiliates are employed
by such business or enterprise in connection with activities which in no way
compete with the Company or its Affiliates and neither Xxxxx nor the other
individual who was previously employed by the Corporation or its Affiliates is
or proposes to be a principal of such business or enterprise.
(iii) Xxxxx further covenants and agrees that neither he, nor any Person
with whom he is associated, will, during the Initial Term, or any extended term,
and for one (1) year following the Consulting Termination Date, without the
prior written consent of the Chief Executive Officer and the Corporate Vice
President Administration, directly or indirectly, solicit, recruit, or attempt
to hire any employee of the Company or any of its Subsidiaries, or induce or
attempt to induce any employee of Company or any of its Subsidiaries to
terminate their employment with the Company or any of its Subsidiaries.
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ENFORCEABILITY
13. If any provision of the covenants and agreements set forth above shall
be held invalid or unenforceable because of the scope of the territory or the
actions thereby restricted, or the period of time within which such covenant or
agreement is operative, or for any other reason, it is the intent of the parties
hereto that such provision shall be construed by limiting and reducing it, or,
if necessary, eliminating it so that the provisions hereof be valid and
enforceable to the extent compatible with applicable law as determined by a
court of competent jurisdiction.
WAIVER
14. If either the Company or Xxxxx fail to exercise any rights in the event
that either party breaches any of the separate and distinct promises in this
Agreement, it shall not be construed as a waiver of such breach or prevent the
Company or Xxxxx from later enforcing strict compliance with any and all
promises in this Agreement. The rights and remedies expressly specified herein
are cumulative and not exclusive of any other rights and remedies which either
party might otherwise have.
SEVERABILITY
15. The covenants in this Agreement are several and if a clause or clauses
shall be found unenforceable, the entire document shall not fail but shall be
construed and enforced without any severed clause or clauses in accordance with
the terms of this document.
NOTICE
16. Any and all notices provided for herein shall be given in writing and
delivered by hand, or sent by registered or certified mail, return receipt
requested, with first-class postage prepaid, or by facsimile with answer-back;
and such notices shall be addressed: (i) if to the Company, to the Company's
President and Chief Executive Officer and the Corporate Vice President of
Administration at the Company's principal business office, with a copy to the
Company's General Counsel at the Company's principal business office; and (ii)
if to Xxxxx, to his address as reflected in the Company's records; or to such
other address(es) as the parties hereto shall designate by written notice,
furnished to all parties in the manner provided herein. Any notice which is
required to be made within a stated period of time shall be considered timely if
delivered or postmarked before midnight on the last day of such period.
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GOVERNING LAW
17. The construction, interpretation, and performance of this Agreement
shall be governed by the laws of the State of Missouri.
CONFIDENTIALITY
18. Employee (Xxxxx) agrees to keep the terms of this Agreement
confidential and not to disclose its contents to anyone except his lawyer, his
immediate family, or his financial consultant.
ENTIRE AGREEMENT
19. This Agreement contains the entire agreement between the Company and
Employee (Xxxxx) and fully supersedes any and all prior agreements or
understandings. The Employee (Xxxxx) represents and acknowledges that in
executing this Separation, Consulting, Non-Compete and Release Agreement, he has
not relied upon any representation or statement not set forth herein made by the
Company with regard to the subject matter of this Agreement.
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UNDERSTANDING
20. Employee (Xxxxx) has read this Agreement fully, understands its
contents, and voluntarily signs this Agreement with the intention to be bound by
all of its terms.
/s/ Xxxx X. Xxxxx Xxxx X. Xxxxx
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Written Signature Printed Signature
Date: 12-21-99 /s/ Xxx Xxxx
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Witness
NOTARIZED:
STATE OF Florida )
) ss.
COUNTY OF Seminole )
COMES NOW Xxxx X. Xxxxx, who states to me that he has read and understands
the foregoing Separation, Consulting, Non-Compete and Release Agreement and
agrees to and accepts its terms and conditions as a free act of his own
volition.
Subscribed and sworn to before me this 21 day of December , 1999.
Notary Public
My Commission Expires: 8/12/03
EXECUTED ON BEHALF OF COMPANY:
FOR: DT INDUSTRIES, INC.
Date: 1-10-00 /s/ Xxxxxxx X. Xxxx
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President and Chief Executive Officer
FOR: DT INDUSTRIES, INC.
Date: 12/22/99 /s/ Xxxx Xxxxxx
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Corporate Vice President
Administration
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