EXHIBIT 10.30
RESIGNATION AND RELEASE AGREEMENT
This Resignation and Release Agreement (hereinafter the
"Agreement") is entered into by and between Xxxxxx X. Xxxxxx ("Employee") and
The Xxxxxx Group Inc. ("TLG") and Xxxxxx Group International, Inc. ("LGII")
(hereinafter, TLG and LGII shall be collectively referred to as "Xxxxxx").
WITNESSETH
WHEREAS, Employee currently is employed by Xxxxxx in the capacity
of Senior Vice President, Law and General Counsel and currently serves as a
member of the Board of Directors of LGII; and
WHEREAS, Employee and Xxxxxx desire to enter into this Agreement to
resolve all matters and issues existing between them, without incurring the
costs associated with litigation; and
WHEREAS, nothing contained in this Agreement is intended in any
manner to be an admission of liability on the part of Xxxxxx or any of its
past or present employees, officers, or directors;
NOW THEREFORE, for and in consideration of the promises and mutual
covenants and agreements hereinafter set forth, the parties intending to be
legally bound do hereby agree as follows:
1. RESIGNATION. Employee agrees to resign from his position of
Senior Vice President, Law and General Counsel of Xxxxxx and to resign from
his membership on the Board of Directors of LGII. The effective dates of
such resignations shall be June 30, 1996. Employee will continue to receive
through June 30, 1996, all of the compensation and benefits now
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received by Employee.
2. CONTINUATION OF EMPLOYMENT. Xxxxxx and Employee agree that,
notwithstanding the resignations outlined in paragraph 1, Employee will
continue in Xxxxxx'x employment until June 30, 2000, at which time his
employment will terminate. Between the effective date of the resignations
referred to in paragraph 1 and June 30, 2000, Employee shall provide and
stand ready to provide consulting, advisory, and legal services, similar to
and consistent with the nature of services provided as Senior Vice President
of Law and General Counsel, from time to time upon the request of, and at the
direction of, Xxxxxx, on a basis not to exceed 40 hours per month at places
and times mutually convenient to Employee and Xxxxxx. During this
continuation of employment until June 30, 2000, Employee shall be free to
accept other employment, on a temporary, part-time, or full-time basis, with
entities that do not compete with Xxxxxx or to engage in the private practice
of law full-time or part-time. As compensation, regardless of whether Xxxxxx
requests or directs Employee to perform any consulting, advisory, and legal
services work, Employee shall be paid at the rate of $16,666 per month, with
the first payment due on June 30, 1996 (or on the date which is two business
days after the date on which the Agreement becomes effective and enforceable
under paragraph 19, whichever date is later), and the final payment due on
May 30, 2000. These monthly payments shall be subject to applicable
withholding taxes.
3. DEATH OR DISABILITY OF EMPLOYEE. If Employee shall become
disabled or die before completion of the payments required pursuant to
paragraph 2 hereof, the Company will make such payments, at the time and in
the manner specified in paragraph 2, to Employee or to the benefit of the
person or person designated in writing by Employee to the Company, or if
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Employee fails to so designate any person or shall have revoked all such
designations, to the executors or administrators of Employee's estate.
4. RELEASE OF ALL CLAIMS. Employee, for himself, his agents,
attorneys, heirs, administrators, executors and assigns, and anyone acting or
claiming on his or their joint or several behalf, hereby releases, forever
discharges, and covenants never to xxx Xxxxxx, its employees and former
employees, officers, directors, stockholders, agents, affiliates,
subsidiaries, parent and subsidiary corporations, successors and assigns,
from and on any and all claims, causes of action, demands, damages, costs,
expenses, liabilities or other losses whatsoever that in any way arise from,
grow out of or are related to any aspect of Employee's dealings and
relationship with Xxxxxx, including but not limited to any matter related to
his employment with Xxxxxx prior to June 30, 1996, the change in status
thereof as of June 30, 1996 (as specified in paragraph 1), and rights or
claims arising under the Age Discrimination in Employment act and the Older
Workers Benefit Protection Act (42 U.S.C. Sections 621 ET SEQ.), the
Employee Retirement Income Security Act (29 U.S.C. Sections 301 ET SEQ.),
and any other federal, state or other governmental law, administrative
regulation, or common law doctrine.
5. RELEASE OF ALL CLAIMS. Xxxxxx, for itself, its agents,
attorneys, parent and subsidiary corporations, successors, affiliates,
directors, officers, agents, stockholders, employees and former employees and
assigns, and anyone acting or claiming on it or their joint or several
behalf, hereby releases, forever discharges, and covenants never to xxx
Employee, his agents, attorneys, heirs, administrators, executors, successors
and assigns, from and on any and all claims, causes of action, demands,
damages, costs, expenses, liabilities or other losses whatsoever that in any
way arise from, grow out of or are related to any aspect of Employee's
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dealings and relationship with Xxxxxx, including but not limited to any
matter related to his employment with Xxxxxx prior to June 30, 1996, the
change in status thereof as of June 30, 1996 (as specified in paragraph 1),
and any other federal, state or other governmental law, administrative
regulation, or common law doctrine.
6. REEMPLOYMENT OR FUTURE ASSOCIATION. Employee hereby agrees
that, after the termination of his employment in accordance with paragraph 2,
on June 30, 2000, he shall not seek reinstatement or apply for future
employment with Xxxxxx or any of its affiliates or subsidiaries, and that
neither Xxxxxx nor any of its affiliates shall be obligated to consider
Employee for employment.
7. CONFIDENTIALITY. Employee agrees that the existence, terms,
and conditions of this Agreement, (other than the fact that Employee is
continuing as an employee and advisor to Xxxxxx for the term hereof) and any
and all underlying communications and negotiations in connection with or
leading to this Agreement, are confidential and that he will not disclose any
such matters to any individual or entity without the prior written consent of
Xxxxxx; provided, however, that disclosures by Employee regarding the
existence, terms and conditions of this Agreement may be made to Employee's
attorneys, accountants, and advisors for personal and tax purposes, and also
to the extent required by a final and binding court order or other compulsory
process. Upon Employee's receipt of any order, subpoena or other compulsory
process demanding production or disclosure of this Agreement or of any of the
terms of this agreement, Employee agrees to promptly notify Xxxxxx in writing
of the requested disclosure, including the proposed date of the disclosure,
the reason for the requested disclosure and the identity of the individual or
entity requesting the disclosure, if possible, no later than ten
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business days prior to the date that such disclosure is to be made. Employee
agrees not to oppose any action that Xxxxxx might take with respect to any
such request or demand for production or disclosure. In the event of a
disclosure by Employee in violation of the terms of this Agreement, Xxxxxx
shall have, in addition to any claims for damages, the right to seek
injunctive relief or specific performance of this Agreement to prevent any
continuing or future breach of the confidentiality provision of this
Agreement. Employee agrees that the obligations of this paragraph shall be
binding upon his agents and representatives, including his attorneys.
8. NONDISPARAGEMENT. Employee and Xxxxxx agree that neither
Employee nor Executive Management of Xxxxxx shall discuss in a disparaging or
defamatory manner any aspect of Employee's employment with Xxxxxx. Employee
agrees not to discuss with any third parties, in a disparaging or defamatory
manner, any of Xxxxxx'x employees, or any aspect of Xxxxxx'x or Employee's
business. The parties also agree that, if Xxxxxx decides to issue a press
release regarding Employee's change in status, as stated in paragraphs 1 and
2, such press release will take the form of that attached as Exhibit A. The
parties further agree that Xxxxxx will provide to prospective employers
seeking references regarding Employee the reference letter attached as
Exhibit B. Finally, the parties agree that Employee, and Xxxxxx to the
extent that it so desires, may disseminate the notice attached as Exhibit C.
9. FUTURE COOPERATION. Employee agrees to fully and completely
cooperate with Xxxxxx with respect to any litigation that is pending against
Xxxxxx and any claim or action that may be filed against Xxxxxx in the
future. This cooperation shall include making himself available at
reasonable times and places for interviews, reviewing documents, testifying
in a deposition or a legal proceeding, and providing advice to Xxxxxx in
preparing defenses to any pending or
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potential future claims against Xxxxxx.
10. INDEMNITY. Xxxxxx agrees to advance the cost of defense
against and, to the extent allowed by Delaware law, to indemnify Employee and
hold him harmless against any reasonable costs, reasonable expenses including
attorneys' fees, judgments, or damages incurred by Employee in respect of any
suit or action brought against Employee or Xxxxxx or any affiliate by virtue
of Employee's position as having been an Officer or Director of Xxxxxx
including but not limited to (i) any shareholder class action suits or
shareholder derivative actions or suits, or (ii) other actions or suits
against Xxxxxx or Employee in which Employee is additionally joined or
threatened to be joined as a Defendant by virtue of Employee's position as
having been an Officer or Director of Xxxxxx or (iii) any action or suit by
any third party in which Employee may be a witness or potential witness.
Pursuant to and as part of this indemnity, Xxxxxx will use its active and
good faith efforts to cause Employee to enjoy coverage under Xxxxxx'x
Directors' and Officers' Liability Insurance or Executive Protection Policy,
and participate in all rights of indemnity or advance of expenses made
available to Officers or Directors of Xxxxxx.
This indemnity will not extend to include (i) any action or
inaction by Employee of which Xxxxxx was unaware and which constitutes
willful misconduct by Employee or which, if Xxxxxx was aware of such willful
misconduct, the same had not been approved by Xxxxxx; (ii) any action or
inaction by Employee occurring outside of the dates of his employment with
Xxxxxx; and (iii) any indemnification not permitted by Delaware law.
11. MEDICAL BENEFITS. Xxxxxx agrees that, during Employee's
employment with Xxxxxx as provided in paragraph 2, it shall provide Employee
and his family with full medical insurance
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benefit coverage based upon Employee's most recent election of coverage prior
to the execution of the Agreement. Xxxxxx will provide such medical
insurance benefit coverage to Employee at the same cost that Employee
incurred prior to execution of the Agreement. The medical insurance benefit
coverage shall continue until (i) Employee has commenced full-time employment
with another party who will provide Employee with comparable and similar
medical coverage for himself and his family at comparable cost and (ii) any
"pre-existing conditions" exceptions to such new medical coverage for cancer
or other conditions have been eliminated. The parties understand that any
such new employment that would otherwise be considered "full-time" shall not
be considered less than "full-time" simply because of Employee's ongoing
responsibilities to provide Xxxxxx with consulting, advisory, and legal
services pursuant to this Agreement.
12. REIMBURSEMENT FOR RELOCATION EXPENSES. Xxxxxx will reimburse
Employee in the amount of $136,000 for real estate brokerage costs incurred
by Employee in connection with his move to Cincinnati. This payment will by
made on or before July 9, 1996, provided that the Agreement has become
effective and enforceable under paragraph 19; otherwise, the payment will be
made within two business days of the date the Agreement does become effective
and enforceable under paragraph 19.
13. FORGIVENESS OF LOAN. Xxxxxx hereby forgives, releases and
discharges any and all Employee's obligations under a certain $25,000
unsecured demand promissory note that Employee provided to Xxxxxx in
connection with a loan to cover Employee's relocation costs associated with
his move to Cincinnati.
14. REIMBURSEMENT INTEREST PAYMENT. Xxxxxx will reimburse
Employee in the
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amount of $16,000 for interest on indebtedness incurred by Employee in
connection with his relocation to Cincinnati. This payment will be made on
or before July 9, 1996, provided that the Agreement has become effective and
enforceable under paragraph 19; otherwise, the payment will be made within
two business days of the date the Agreement does become effective and
enforceable under paragraph 19.
15. OUTPLACEMENT SERVICES. Xxxxxx will pay for the following
outplacement services from April 1, 1996 through September 30, 1996 upon
presentation of bills by Employee:
a. Secretarial services provided by an outside entity,
including telephone, postage, etc., up to $2,000 per
month.
b. Consultant: Xxx Xxxxxxxxx up to $1,000 per month.
c. Office expenses provided by an outside entity, up to
$1,000 per month.
d. Additional expenses for additional employment
consultants, employment and legal seminars including
travel expenses to said seminars up to $2,000 per month.
Any shortfall below the above monthly limits for each category will be added
on a cumulative basis to subsequent months' limits for the corresponding
categories. In addition, Xxxxxx will provide Employee voice mail facilities
in its Covington, KY headquarters during the term of his employment as
specified in paragraph 2.
16. STOCK OPTIONS. Employee's Option Agreement with TLG, dated
December 13, 1994, shall continue in full force and effect, and the Options,
as defined in the Option Agreement, shall continue to be exercisable by
Employee, on the schedule set forth in the Option Agreement; provided,
however, Employee and Xxxxxx further hereby agree, and the Option Agreement
is hereby amended to reflect, that the Option Agreement shall terminate 45
days after
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June 30, 2000.
17. MEIPS. Employee's Investment Option Agreement, dated June 15,
1994, shall continue in full force and effect, and accordingly on June 15,
1996, an additional 21,000 units shall vest to Employee's benefit, resulting
in a total of 42,000 units vested to Employee's benefit as of June 15, 1996,
of participation in the TLG 1994 Management Equity Investment Plan provided,
however, Employee and Xxxxxx further hereby agree, and the Investment Option
Agreement is hereby amended to reflect, that no additional units of
participation in the Management Equity Investment Plan shall vest after
June 30, 1996.
18. GOOD FAITH AND NONCOMPETITION OBLIGATION. In the course of
his duties pursuant to this Agreement, Employee agrees to do all reasonable
things to promote and xxxxxx the best interests and good will of Xxxxxx and
its business. At no time during the term of this Agreement shall Employee,
directly or indirectly, engage in any business activity that competes with
Xxxxxx or its current business. Both parties reciprocally agree that an
express obligation and duty of good faith shall apply to each party as to all
aspects of this Agreement.
19. ACKNOWLEDGEMENT. Employee acknowledges receipt of the original
of this agreement on June 28, 1996. Employee acknowledges and agrees that
the Agreement provides him with compensation and other benefits to which he
otherwise would not be entitled. Employee further acknowledges and
understands that he shall have a period of 21 days from the date on which he
received the Agreement to consider and decide whether to accept and sign the
Agreement. He further acknowledges and understands that, while it is his
right to accept and sign the Agreement during the 21 day period, he is under
no obligation to do so. Should Employee decide to accept and sign the
Agreement, (a) he shall have the right to revoke the
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agreement within seven days following the date on which he signed it and (b)
the Agreement shall not become effective or enforceable until such seven day
period has expired without revocation.
20. NO ADMISSION OF LIABILITY. The parties hereby acknowledge and
agree that neither Xxxxxx nor its officers, agents, or employees, by
providing the financial and other consideration described above and by
entering into this Agreement, has admitted to any unlawful conduct or
liability to Employee.
21. VOLUNTARY EXECUTION. Employee hereby acknowledges that he is
executing this Agreement voluntarily and of his own free will and that he
fully understands the terms of this Agreement. Employee acknowledges that he
has reviewed this Agreement fully and discussed its terms with his Legal
counsel prior to its execution.
22. CONTROLLING LAW. This Agreement shall be construed under and
governed by the laws of Kentucky.
23. NO ASSIGNMENT OF CLAIMS. Employee hereby represents and
warrants that he has not previously assigned or purported to assign or
transfer to any person or entity any of the claims or causes of action herein
released.
24. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between Employee and Xxxxxx with respect to the subject matter of
this Agreement, and there are no other written or oral agreements,
understandings, or arrangements except as set forth herein. The terms of
this agreement may not be modified or waived except in writing signed by the
parties hereto. The invalidation of any provision contained in this
Agreement shall not affect the validity of any other provision.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, in counterpart originals or otherwise, in the presence of
competent witnesses as of the dates set forth below.
THE XXXXXX GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
/s/ Xxxxxxxxx Xxxxxx Its: Xxxxxxx X. Xxxxxxxxx
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Witness
Date: 7/8/96 Date: 7/8/96
---------------------- -------------------------------
XXXXXX GROUP INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxxxxx Xxxxxx --------------------------------
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Witness Its: Xxxxxxx X. Xxxxxxxxx
--------------------------------
Date: Date: 7/17/96
--------------------- --------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxx Xxxx
-----------------------------
Witness
/s/ Xxxxxx X. Xxxxxx
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Date: 6/28/96
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Date: June 28, 1996
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