EXHIBIT 10.01
RETIREMENT AGREEMENT
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AGREEMENT, made and entered into as of October 1, 2001 (the "Effective
Date"), by and among Xxxxxxxx & Struggles International, Inc., a Delaware
corporation (together with its successors and assigns permitted under this
Agreement, the "Parent"), Xxxxxxxx & Struggles, Inc., a Delaware corporation
(together with its successors and assigns permitted under this Agreement,
"Xxxxxxxx & Struggles"), and Xx. Xxxxxxx X. Xxxxxxx (the "Executive"). The
Parent and Xxxxxxxx & Struggles collectively are referred to herein as the
"Company."
W I T N E S S E T H:
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WHEREAS, the Executive has served the Company as Chairman, President and
Chief Executive Officer and has discharged his duties and responsibilities
effectively;
WHEREAS, after his long service to the Company, the Executive has decided
to pursue other opportunities;
WHEREAS, the Executive has requested, and the Company has approved, the
Executive's election of early retirement effective as of the Effective Date, in
accordance herewith;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Company and the Executive (individually a
"Party" and together the "Parties") agree as follows:
1. Definitions.
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(a) "Affiliate" of a person or other entity shall mean a person or
other entity that directly or indirectly controls, is controlled by, or is under
common control with the person or other entity specified.
(b) "Board" shall mean the Board of Directors of the Parent.
(c) "COBRA" shall mean the Consolidated Omnibus Budget
Reconciliation Act of 1986 and the regulations promulgated thereunder, as
amended from time to time.
(d) "Common Stock" shall mean the common stock, $0.01 par value, of
the Parent.
(e) "Original Employment Agreement" shall mean the January 1, 2000
amended and restated employment agreement between the Executive, the Parent and
Xxxxxxxx & Struggles, as amended by the First Amendment dated as of March 30,
2001.
(f) "1999 Options" shall mean the options to purchase 149,086 shares
of the Common Stock at $14.00 per share granted to the Executive on April 26,
1999 in tranches of 130,000, 17,586 and 1,500, respectively.
(g) "2000 Options" shall mean the options to purchase 100,000 shares
of the Common Stock at $41.9688 per share granted to the Executive on June 5,
2000.
(h) "2001 Options" shall mean the options to purchase 78,785 shares
of the Common Stock at $35.125 per share granted to the Executive on March 6,
2001 in tranches of 17,285 and 61,500 respectively.
(i) "Payment Date" shall mean the tenth business day after this
Agreement is signed.
2. Early Retirement.
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The Executive hereby elects to retire as of the Effective Date, and the
Company hereby approves the Executive's election, subject to the following terms
and conditions:
(a) The Company shall pay to the Executive not later than the close
of business on the Payment Date the following amounts less standard payroll and
withholding taxes:
(i) $6.7 million in cash in full substitution and
satisfaction of the Company's obligation to pay any
amount in the nature of a pension, supplemental pension,
retirement benefit or similar benefit;
(ii) $2.676 million in cash which represents the present
value (the "Present Value Amount") of the Executive's
compensation, perquisites, entitlements and benefits
under the Executive's Original Employment Agreement from
January 1, 2002 through December 31, 2005; provided,
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however, that such amount shall be reduced by 50% of the
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difference (if positive) between (A) the closing price
per share of the Company's Common Stock as reported on
the NASD National Market System on the trading day prior
to the Payment Date and (B) $14.00 times 149,086 ; and
(iii) $75,000 in cash which represents the Executive's net
2001 incentive compensation pursuant to the plan
approved by the shareholders of the Parent.
(b) The Company shall transfer to the Executive title or provide the
Executive documents authorizing the Executive to obtain title to his current car
on the Payment Date, the current value thereof having been deducted in
determination of the Present Value Amount.
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(c) The 1999 Options, the 2000 Options and the 2001 Options shall
immediately become exercisable in full as of October 1, 2001 and shall remain
exercisable by the Executive (or his heirs, as the case may be) for the
remainder of their originally scheduled terms; provided, however, that the
effectiveness of the foregoing shall be subject to the further condition that
(i) the Executive shall not have revoked the Release (as defined below) and (ii)
the Executive shall have no right to rescind this Agreement or the Release as
evidenced by the certificate described in clause (h) below.
(d) The 35,000 unvested Restricted Stock Units (the "Restricted
Stock Units") of the Parent granted to the Executive on March 30, 2001 shall
vest in full as of October 1, 2001; provided, however, that the effectiveness of
the foregoing shall be subject to the further condition that (i) the Executive
shall not have revoked the Release and (ii) the Executive shall have no right to
rescind this Agreement or the Release as evidenced by the certificate described
in clause (h) below.
(e) Prior to the Payment Date, the Company shall deliver to the
Executive a copy of the resolution of the Compensation Committee of the Board of
Directors of the Parent to the effect that the Compensation Committee has
approved the retirement of the Executive in accordance with this Agreement, such
resolution to be certified by the Secretary of the Parent as having been duly
adopted and in effect on the Effective Date.
(f) The Executive hereby resigns from all offices and directorships
of the Company and the Parent and all the Affiliates as of the Payment Date,
other than as Chairman of the Board of the Parent. The Executive shall resign as
Chairman of the Board of the Parent at the request of the Board of Directors of
the Parent. The Executive shall deliver to the Company on the Payment Date a
letter to this effect in the form previously agreed to.
(g) The Original Employment Agreement shall cease to be in effect
and the Executive shall have delivered a release in the form of Exhibit A
attached hereto (the "Release") and shall not have revoked it prior to the
Payment Date in accordance with its terms.
(h) On the Payment Date, the Executive shall deliver to the Company
a certificate in the form of Exhibit B attached hereto.
3. Employee Benefit Programs. From the Effective Date, the Executive shall
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be entitled to participate as a retiree (at his own expense) in the group health
insurance plans of the Company as provided under COBRA.
4. Reimbursement of Business and Other Expenses. The Company shall
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promptly reimburse the Executive for all reasonable business expenses incurred
in connection with carrying out the business of the Company and its Affiliates
prior to October 1, 2001, subject to documentation in accordance with the
Company's policy. The Company shall pay all reasonable legal fees and expenses
incurred by the Executive up to $20,000 in connection with the Executive's
retirement arrangements with the Company.
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5. Confidential Information. The Executive acknowledges that certain
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letter agreement dated September 18, 1997 (the "Confidentiality Agreement"),
between the Company and the Executive regarding the protection of confidential
information of the Company and its Affiliates. The terms and conditions of the
Confidentiality Agreement shall remain in full force and effect and are
incorporated by reference herein. Any breach of the Confidentiality Agreement by
the Executive shall constitute a breach of this Agreement, subject to the rights
and remedies of the Company and its Affiliates as provided by Section 8 of this
Agreement,
6. Noncompetition. From the Effective Date until the second anniversary of
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the Effective Date (the "Restricted Period"), the Executive agrees that he will
not, directly or indirectly, acting with others or alone, manage, operate or
control, engage or become interested in as an owner (other than as an owner of
less than 5% of the stock of a publicly owned company), stockholder, partner,
director, officer, employee (in an executive capacity), consultant or otherwise
(the "Executive's Employment") in any business that is a "Competitive Business"
with the Company or any of its Affiliates in any geographic location in which
the Company or any of its Affiliates conducts its business. For purposes of this
Section, a business operation shall be considered a "Competitive Business" with
the Company or its Affiliates if such business operation (a) provides services
in the executive search business during the Restricted Period or (b) provides
any product or service competitive with any product or service provided by the
Company or any of its Affiliates, the sales of which amount to 5% or more of the
total gross revenues of the Company and its Affiliates at the time of the
Executive's Employment.
7. Nonsolicitation. During the Restricted Period, the Executive shall not
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directly or indirectly solicit or induce or attempt to solicit or induce any
employee, current or future, of the Company or any of its Affiliates to
terminate employment with the Company or any of its Affiliates for any reason,
or hire any individual who was an employee of the Company or any of its
Affiliates within one (1) year of being hired by the Executive, except for those
individuals released or terminated by the Company or any of its Affiliates, and
shall not solicit any client or customer of the Company or any of its Affiliates
as of the date of termination of the Executive's employment with the Company,
for purposes of doing business with any business or operation which is a
"Competitive Business" of the Company or any of its Affiliates as defined in
Section 6 above.
8. Rights and Remedies Upon Breach. If the Executive breaches, or
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threatens to commit a breach of, any of the provisions contained in Sections 5,
6 or 7 of this Agreement (the "Restrictive Covenants"), the Company and its
Affiliates will have the following rights and remedies, each of which rights and
remedies will be independent of the others and severally enforceable, and each
of which is in addition to, and not in lieu of, any other rights and remedies
available to the Company and its Affiliates under law or in equity:
(a) Injunctive Relief and Specific Performance. The right and remedy
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to have the Restrictive Covenants specifically enforced by any court of
competent jurisdiction, it being agreed that any breach or threatened breach of
the Restrictive Covenants would cause irreparable injury to the Company and its
Affiliates and that monetary damages would not provide an adequate remedy.
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(b) Accounting. The right and remedy to require the Executive to
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account for and pay over to the Company all compensation, profits, monies,
accruals, increments or other benefits derived or received by the Executive as
the result of any action constituting a breach of the Restrictive Covenants.
(c) Cessation of Severance Benefits. The right and remedy to cease
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any further severance, benefit or other compensation payments under this
Agreement to the Executive or his estate or beneficiary from and after the
commencement of such breach by the Executive regardless of whether the
Restrictive Covenants are found by a court of competent jurisdiction to be
enforceable or not.
The Executive hereby acknowledges and agrees that the Restrictive Covenants are
reasonable and valid in duration, geographic scope and in all other respects. If
any court determines that any of the Restrictive Covenants, or any part thereof,
is invalid or unenforceable, the remainder of the Restrictive Covenants will not
thereby be affected and will be given full effect without regard to the invalid
portions. In the event the Executive breaches the Restrictive Covenants during
the periods of time in which the Restrictive Covenants are enforceable, then, in
such event, such violation shall toll the running of such time period from the
date of such violation until such violation shall cease.
9. Arbitration of Disputes and Reimbursement of Legal Costs. Except as
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otherwise provided in this Section 9, the Parties agree that any dispute, claim
or controversy based on common law, equity, or any federal, state or local
statute, ordinance, or regulation (other than workers' compensation claims)
arising out of or relating in any way to the Executive's employment, the terms,
benefits, and conditions of employment, or concerning this Agreement or its
termination and any resulting termination of employment, including whether such
dispute is arbitrable, shall be settled by arbitration. This agreement to
arbitrate includes but is not limited to all claims for any form of illegal
discrimination, improper or unfair treatment or dismissal, and all tort claims.
The Executive shall still have a right to file a discrimination charge with a
federal or state agency, but the final resolution of any discrimination claim
shall be submitted to arbitration instead of a court or jury. Subject to the
following provisions, the arbitration shall be conducted in accordance with the
Commercial Arbitration Rules of the American Arbitration Association (the
"Association") then in effect in Chicago, Illinois by three arbitrators. One of
the arbitrators shall be appointed by the Company, one shall be appointed by the
Executive, and the third shall be appointed by the first two arbitrators. If the
first two arbitrators cannot agree on the third arbitrator within 30 days of the
appointment of the second arbitrator, then the third arbitrator shall be
appointed by the Association. The decision of the arbitrators, including
determination of the amount of any damages suffered, shall be final,
nonappealable and binding on all Parties, their heirs, executors,
administrators, successors and assigns, and judgment may be entered thereon by
any Party in accordance with applicable law in any court of competent
jurisdiction. This arbitration provision shall be specifically enforceable. The
arbitrators shall have no authority to modify any provision of this Agreement or
to award a remedy for a dispute involving this Agreement other than a benefit
specifically provided under or by virtue of the Agreement. If the Executive
prevails on any material issue which is the subject of such arbitration or
lawsuit, the Company shall be responsible for all of the fees of the American
Arbitration Association and the arbitrators and any expenses relating to the
conduct of the
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arbitration (including the Company's and the Executive's reasonable attorneys'
fees and expenses). Otherwise, each party shall be responsible for its own
expenses relating to the conduct of the arbitration (including reasonable
attorneys' fees and expenses) and shall share the fees of the American
Arbitration Association equally. Pending the resolution of the arbitration, all
payments and benefits otherwise due to the Executive hereunder shall continue.
Notwithstanding the provisions of this Section, either Party may seek injunctive
relief in a court of competent jurisdiction, whether or not the case is then
pending before the panel of arbitrators. Following the court's determination of
the injunction issue, the case shall continue in arbitration as provided herein.
10. Indemnification.
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(a) The Parent and Xxxxxxxx & Struggles each agrees that if the
Executive is made a party, or is threatened to be made a party, to any action,
suit or proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he is or was a director, officer or
employee of the Parent or Xxxxxxxx & Struggles or any of their Affiliates or is
or was serving at the request of the Parent or Xxxxxxxx & Struggles as a
director, officer, member, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether or not the basis of such Proceeding
is the Executive's alleged action in an official capacity while serving as a
director, officer, member, employee or agent, the Executive shall be indemnified
and held harmless by the Parent and Xxxxxxxx & Struggles to the fullest extent
legally permitted or authorized by the certificate of incorporation or bylaws of
the Parent or Xxxxxxxx & Struggles or resolutions of the Board of Directors of
the Parent or Xxxxxxxx & Struggles or, if greater, by the laws of the State of
Delaware, against all cost, expense, liability and loss (including, without
limitation, attorney's fees, judgments, fines, ERISA excise taxes or other
liabilities or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by the Executive in connection therewith, and
such indemnification shall continue as to the Executive even if he has ceased to
be a director, member, employee or agent of the Parent, Xxxxxxxx & Struggles or
any of their Affiliates and shall inure to the benefit of the Executive's heirs,
executors and administrators. The Company shall advance to the Executive all
reasonable costs and expenses incurred by him in connection with a Proceeding
within 20 calendar days after receipt by the Company of a written request for
such advance. Such request shall include an undertaking by the Executive to
repay the amount of such advance if it shall ultimately be determined that he is
not entitled to be indemnified against such costs and expenses.
(b) Neither the failure of the Parent or Xxxxxxxx & Struggles
(including their boards of directors, independent legal counsel or stockholders)
to have made a determination prior to the commencement of any proceeding
concerning payment of amounts claimed by the Executive under Section 10(a) above
that indemnification of the Executive is proper because he has met the
applicable standard of conduct, nor a determination by the Parent or Xxxxxxxx &
Struggles (including their boards of directors, independent legal counsel or
stockholders) that the Executive has not met such applicable standard of
conduct, shall create a presumption that the Executive has not met the
applicable standard of conduct.
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(c) The Parent and Xxxxxxxx & Struggles each agrees to continue and
maintain a directors' and officers' liability insurance policy covering the
Executive to the extent it provides such coverage for its other present or
former directors and executive officers.
11. Effect of Payments.
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Upon payment of the amounts provided for in Section 2(a) above and
the delivery to the Executive of (i) agreements evidencing the modification of
the 1999 Options, the 2000 Options and the 2001 Options and the Restricted Stock
Units; (ii) a copy of irrevocable instructions to the Company's transfer agent
to deliver to the Executive certificates evidencing the number of shares of the
Common Stock underlying the Restricted Stock Units, net of the number of shares
withheld pursuant to his election under Section 8(b) of the Participation
Agreement with respect to the Restricted Stock Units, and (iii) appropriate
documentation evidencing transfer of title or authorizing the Executive to
obtain title to the car referred to in Section 2(b), none of the Parent,
Xxxxxxxx & Struggles or any of their Affiliates will have any further obligation
to the Executive in respect of compensation, bonus, severance, benefits, pension
or other payment or with respect to any equity interest, except as provided
under any deferred compensation, savings or other plan, program or arrangement
of the Company including, without limitation, any 401(k) plan. The Executive
hereby waives any rights he may have had under the Original Employment Agreement
and any right to participate in any offer made by the Parent, Xxxxxxxx &
Struggles or any of their Affiliates to exchange, modify or amend any equity
interest in the Parent, or any of their Affiliates except to the extent such
offer is made to other retired employees as a group.
If the Company does not discharge its obligations under Sections
2(a), 2(c) and 2(d) above and its obligations under clauses (i) and (ii) of the
first sentence of this Section 11 on or before the Payment Date, then from the
Payment Date until the date, if any, the Company discharges such obligations,
(1) the Company shall have no right to enforce the Release, (2) the Executive
shall have the right at his sole discretion to rescind this Agreement and the
Release and (3) the period within which the Executive must give notice for
purposes of Sections 1(h) and 11(d)(i) of the Original Employment Agreement
shall be extended until such date, if any. If the Company discharges its
obligations after the Payment Date but before the Executive exercises his right
under clause (2) above, the Executive shall have no further right to rescind
this Agreement or the Release and despite clause (1) above, the Release shall be
deemed to have been effective during the period from the date of this Agreement
through the date on which such obligations are discharged.
12. Assignability; Binding Nature. This Agreement shall be binding upon
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and inure to the benefit of the Parties and their respective successors, heirs
(in the case of the Executive) and assigns. Rights of the Parent or Xxxxxxxx &
Struggles under this Agreement may be assigned or transferred by the Parent or
Xxxxxxxx & Struggles, as the case may be, pursuant to a merger or consolidation
in which the Parent is not the continuing entity, or the sale or liquidation of
all or substantially all of the assets of the Parent, provided that the assignee
or transferee is the successor to all or substantially all of the assets of the
Parent and such assignee or transferee assumes the liabilities, obligations and
duties of the Parent and Xxxxxxxx & Struggles, as contained in this Agreement,
either contractually or as a matter of law. The Parent and Heidrick
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& Struggles further agree that, in the event of a sale of assets or liquidation
as described in the preceding sentence, they shall take whatever action they
reasonably can in order to cause such assignee or transferee to expressly assume
the liabilities, obligations and duties of the Parent and Xxxxxxxx & Struggles
hereunder. No rights or obligations of the Executive under this Agreement may be
assigned or transferred by the Executive other than his rights to compensation
and benefits, which may be transferred only by will or operation of law,
provided, however, the Executive shall be entitled, to the extent permitted
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under applicable law or any plan, program, agreement or arrangement of the
Company, to select or change a beneficiary or beneficiaries to receive any
compensation or benefit hereunder following the Executive's death by giving the
Company written notice thereof.
13. Entire Agreement. This Agreement contains the entire understanding and
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agreement among the Parties concerning the subject matter hereof and supersedes
all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, among the Parties with respect thereto,
provided, that if the Executive revokes his agreement to the Release attached
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hereto as Exhibit A within seven days of signing such Release, then this
Agreement shall be null and void and the Original Employment Agreement shall
remain in effect.
14. Amendment or Waiver. No provision in this Agreement may be amended
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unless such amendment is agreed to in writing and signed by the Executive and an
authorized officer of the Parent and Xxxxxxxx & Struggles. No waiver by any
Party of any breach by any other Party of any condition or provision contained
in this Agreement to be performed by such other Party shall be deemed a waiver
of a similar or dissimilar condition or provision at the same or any prior or
subsequent time. Any waiver must be in writing and signed by the Executive or an
authorized officer of the Parent and Xxxxxxxx & Struggles, as the case may be.
15. Severability. In the event that any provision or portion of this
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Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law so as to achieve the purposes of this Agreement.
16. References. In the event of the Executive's death or a judicial
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determination of his incompetence, reference in this Agreement to the Executive
shall be deemed, where appropriate, to refer to his beneficiary, estate or other
legal representative.
17. Governing Law. This Agreement shall be governed in accordance with the
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laws of Illinois without reference to principles of conflicts of law.
18. Notices. All notices and other communications required or permitted
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hereunder shall be in writing and shall be deemed given when (a) delivered
personally, (b) delivered by certified or registered mail, postage prepaid,
return receipt requested or (c) delivered by overnight courier (provided that a
written acknowledgment of receipt is obtained by the overnight courier) to the
Party concerned at the address indicated below or to such changed address as
such Party may subsequently give such notice of in accordance with this Section
18:
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If to the Company or the Parent: Xxxxxxxx and Struggles, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Legal Officer
If to the Executive: Xx. Xxxxxxx X. Xxxxxxx
20 Xxxxx Ridge
Xxxxxxx, XX 00000
19. Headings. The headings of the sections contained in this Agreement are
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for convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
20. Counterparts. This Agreement may be executed in two or more
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counterparts. Signatures delivered by facsimile shall be effective for all
purposes.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date last written below.
Xxxxxxxx & Struggles, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
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Name: XXXXXXXXX X. XXXXXXXX
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Title: CHIEF LEGAL OFFICER
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Xxxxxxxx and Struggles International, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
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Name: XXXXXXXXX X. XXXXXXXX
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Title: CHIEF LEGAL OFFICER
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/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Date: 10/18/01
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EXHIBIT A
Xx. Xxxxxxx X. Xxxxxxx
Assuming your execution and delivery of this Release (the "Release") within 21
days of the date of the Agreement (as defined below) and your failure to revoke
this Release within 7 days thereafter, in exchange for the compensation,
payments, benefits and other consideration provided to you in the Agreement
effective as of October 1, 2001 among Xxxxxxxx & Struggles International, Inc.
(the "Parent"), Xxxxxxxx & Struggles, Inc. ("Xxxxxxxx & Struggles") and you (the
"Agreement"). (Capitalized terms not defined herein have the same meanings as
those terms are defined in the Agreement.)
a. You accept the compensation, payments, benefits and other consideration
provided for in the Agreement in full resolution and satisfaction of, and hereby
IRREVOCABLY AND UNCONDITIONALLY RELEASE, REMISE AND FOREVER DISCHARGE the
Company and Releasees from any and all agreements, promises, liabilities,
claims, demands, rights and entitlements of any kind whatsoever, in law or
equity, whether known or unknown, asserted or unasserted, fixed or contingent,
which you, your heirs, executors, administrators, successors or assigns ever
had, now have or hereafter can, shall or may have for, upon, or by reason of any
matter, cause or thing whatsoever existing, arising or occurring at any time on
or prior to the date you execute this Release, including, without limitation,
any and all contract and other claims relating to your employment, compensation
and benefits with the Parent, the Company and Releasees and/or the termination
thereof, benefit claims, tort claims, fraud claims, claims for bonuses,
commissions, sales credits or similar payments, claims relating to your service
on the Parent's Board of Directors or the Board of Directors of Releasees,
defamation, disparagement, or other personal injury claims, claims related to
any bonus compensation, claims for accrued vacation pay, claims under any
federal, state or municipal wage payment, discrimination or fair employment
practices law, statute or regulation, and claims for costs, expenses and
attorney's fees with respect thereto, except that the Company's obligations
under the Agreement and this Release shall continue in full force and effect in
accordance with their terms. This Release and waiver includes, without
limitation, any and all rights and claims under Title VII of the Civil Rights
Act of 1964, as amended, the Civil Rights Act of 1991, the Civil Rights Act of
1866 (42 U.S.C. ss. 1981), the Employee Retirement Income Security Act, as
amended, the Federal Age Discrimination in Employment Act, the Americans with
Disabilities Act, the Fair Labor Standards Act, the National Labor Relations
Act, the Family and Medical Leave Act, and any other federal, state or local
statute, ordinance, regulation or constitutional provision regarding employment,
compensation, employee benefits, termination of employment or discrimination in
employment.
b. Excepted from this Release are (i) any claims to enforce your rights,
if any, to vested benefits and entitlements and any other continuing benefit or
entitlement under any applicable plan, agreement, program, award, policy or
arrangement of the Company except as
provided in the Agreement, (ii) any right or claim that arises after the date
you execute this Release, (iii) any right you may have to enforce this Release
or the Agreement, (iv) your eligibility for indemnification in accordance with
the Agreement or applicable laws or the certificate of incorporation and by-laws
of the Parent or Xxxxxxxx & Struggles, or any applicable directors' and
officers' insurance policy or other insurance policy, with respect to liability
incurred as an employee or officer of the Company (or with respect to service at
the request or on behalf of the Company as an officer, director, trustee,
member, employee or agent or in any other capacity with any other entity) and
(v) any right to obtain contribution as permitted by law in the event of an
entry of judgment against you as a result of any act or failure to act for which
the Company and Releasees or any of them and you are jointly liable.
c. For the purpose of implementing a full and complete release and
discharge of claims, you expressly acknowledge that this Release is intended to
include in its effect, without limitation, all the claims described in paragraph
(a) above, whether known or unknown , and that this Release contemplates the
extinction of all such claims, including claims for attorneys' fees.
d. In consideration of the mutual promises contained in the Agreement, the
Parent and Xxxxxxxx & Struggles, on behalf of themselves individually and the
Company and Releasees, hereby irrevocably and unconditionally release, remise
and forever discharge you, your dependents, heirs, administrators, agents,
executors and assigns from any and all agreements, promises, liabilities,
claims, demands, rights and entitlements of any kind whatsoever, in law or
equity, whether known or unknown, asserted or unasserted, fixed or contingent,
which the Parent, Xxxxxxxx & Struggles, the Company and Releasees ever had, now
have or hereafter can, shall or may have for, upon, or by reason of any matter,
cause or thing whatsoever existing, arising or occurring at any time on or prior
to the date you execute this Release, including but not limited to any and all
contract and other claims relating to your employment, compensation and benefits
with the Parent, the Company and Releasees and/or the termination thereof, tort
claims, fraud claims, claims for defamation, disparagement or other personal
injury claims, claims relating to your service on the Parent's Board of
Directors or the Board of Directors of Releasees, claims under any federal,
state or municipal law or ordinance, and claims for costs, expenses and
attorney's fees with respect thereto, except that your obligations under the
Agreement and this Release shall continue in full force and effect in accordance
with their terms. Excepted from this Release are (i) any right the Company and
Releasees may have to enforce the Agreement or this Release, (ii) any right or
claim that arises after the date you sign this Release or (iii) any right the
Company and Releasees may have to obtain contribution as permitted by law in the
event of entry of judgment as a result of any act or failure to act for which
the Company and Releasees or any of them and you are jointly liable.
e. For purposes of this Release, the term "the Company and Releasees"
includes the Company, the Parent and its past, present and future, direct and
indirect parents, subsidiaries, Affiliates, divisions, predecessors, successors,
insurers, and assigns, and their past, present and future officers, directors,
agents, shareholders and employees, in their official and individual capacities,
and all other related entities and individuals, jointly and individually, and
this Release shall inure to the benefit of and shall be binding and enforceable
by all such entities and individuals.
f. If this Release conforms to your understanding and is acceptable to
you, please indicate your agreement by signing and dating the enclosed copy of
this Release in the space provided below and returning the signed Release to the
Chief Legal Officer of the Company at the address indicated in the Notices
provision of the Agreement within 21 days of the date you execute the Agreement.
Once you have signed this Release, you will then be permitted to revoke this
Release at any time during the period of 7 days following its execution by
delivering to the Chief Legal Officer a written notice of revocation. This
Release will not be effective or enforceable and no payments shall be provided
under the Agreement unless and until the 7-day revocation period has expired
without your having exercised your right of revocation.
g. This Release is subject to the provision of the second paragraph of
Section 11 of the Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Release to be effective
as of the date of your signature indicated below.
XXXXXXXX & STRUGGLES, INC.
By: _______________________________
Name: _______________________________
Title: _______________________________
XXXXXXXX AND STRUGGLES INTERNATIONAL, INC.
By: _______________________________
Name: _______________________________
Title: _______________________________
THIS RELEASE IS A LEGAL DOCUMENT.
BY SIGNING THIS RELEASE, YOU ACKNOWLEDGE AND AFFIRM THAT: (1) YOU ARE COMPETENT;
(2) YOU WERE AFFORDED A REASONABLE TIME PERIOD OF AT LEAST 21 DAYS TO REVIEW AND
CONSIDER THIS RELEASE AND HAVE BEEN ADVISED TO DO SO WITH AN ATTORNEY OF YOUR
CHOICE; (3) YOU HAVE READ AND UNDERSTAND AND ACCEPT THE AGREEMENT AND THIS
DOCUMENT AS FULLY AND FINALLY RESOLVING, WAIVING AND RELEASING ANY AND ALL
CLAIMS AND RIGHTS WHICH YOU MAY HAVE AGAINST THE COMPANY AND RELEASEES (AS
DEFINED ABOVE), INCLUDING, WITHOUT LIMITATION, ANY AND ALL CLAIMS AND RIGHTS
UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT; (4) NO PROMISES OR INDUCEMENTS
HAVE BEEN MADE TO YOU EXCEPT AS SET FORTH IN THE AGREEMENT AND THE RELEASE; AND
(5) YOU HAVE SIGNED THIS RELEASE FREELY, KNOWINGLY AND VOLUNTARILY, INTENDING TO
BE LEGALLY BOUND BY ITS TERMS.
ACCEPTED AND AGREED:
_________________________________ Date________________
Xxxxxxx X. Xxxxxxx
EXHIBIT B
---------
CERTIFICATE
I refer to the Retirement Agreement (the "Agreement), effective as of
October 1, 2001, between the Company and me and in particular to Sections 2 and
11 thereof (capitalized terms not defined herein shall have the meanings
ascribed to them in the Agreement). I hereby acknowledge that I have received
the following which constitute all of the payments, agreements, and other things
required to be delivered by the Company on the Payment Date pursuant to the
Agreement and that I have no right to terminate the Agreement or to rescind the
Agreement or the Release.
1. Amendment No. 1 to Stock Option Agreements of the 1999 Options, the
2000 Options, and the 2001 Options substantially in the form
attached as Exhibit I
2. Amendment No. 1 to Restricted Stock Unit Participation Agreement
substantially in the form attached as Exhibit II
3. Certificate of the Secretary of the Company dated October 29, 2001
substantially in the form attached as Exhibit III
4. Xxxx of Sale and Certificate of Title for 2001 Mercedes X000, XXX
Xxxxxx Xx. XXXXX00X00X000000 substantially in the forms attached as
Exhibit IV
5. Irrevocable instructions to Mellon Investor Services, LLC,
("Mellon") relating to the shares of Common Stock underlying the
Restricted Stock Units in the form attached hereto as Exhibit V-1,
and a letter from Mellon confirming receipt thereof, in the form
attached hereto as Exhibit V-2
6. Bank check in the amount of $9,451,000 minus the amount referred to
in Section 2(a)(ii) of the Agreement.
_________________________________
Xxxxxxx X. Xxxxxxx
Dated: October 29, 2001
