SEPARATION AGREEMENT AND GENERAL RELEASE
EXHIBIT 10.51
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (“Agreement”) is entered into by and between
Xxxxx X. Xxxx, III (“Employee”) and Alion Science and Technology Corporation (“Alion” or the
“Company”) as of the latest date of execution by the parties to this Agreement (the “Effective
Date”). This Agreement supersedes any prior employment agreements or arrangements Employee may have
entered into with Alion or its subsidiaries, affiliates, successors, assigns or predecessors in
interest, including without limitation the Employment Agreement between Employee and Alion dated
June 28, 2007, as amended (the “Employment Agreement”), except as otherwise provided in this
Agreement; provided, however, that the Employee Intellectual Property Agreement between Employee
and Alion, dated December 19, 2002, shall remain in full force and effect.
In consideration of the mutual covenants, agreements and representations contained herein, the
adequacy of which is hereby acknowledged, the parties hereto expressly and intentionally bind
themselves as follows:
1. SEPARATION OF EMPLOYEE
Employee hereby agrees that he will announce his departure from Alion and has notified Alion
as of October 24, 2008 (the “Notification Date”) that his employment as Senior Vice President,
Sector Manager for the Defense Operations Integration Sector of Alion and his status as a full-time
employee will cease. Alion and Employee agree that Employee shall remain an “adjunct” employee
with Alion, as defined in Alion’s policies, in an untitled position until the first anniversary of
the Notification Date (the “Separation Date”). Employee voluntarily resigns from full-time
employment with the Company effective upon the Separation Date, and the Company hereby accepts
Employee’s resignation. Employee expressly acknowledges that, upon the occurrence of the
Separation Date, he will no longer be an employee of Alion. Except as provided in Paragraph 2
below, effective as of the Separation Date, Employee shall not be eligible for further pay or
benefits, including without limitation any benefits under any severance pay plan applicable to him
as an employee of Alion, except as provided in this Agreement. From the period of the Notification
Date through the Separation Date, and in consideration for the Salary Continuation Payments (as
defined below) Employee shall provide such services to Alion as the Company may reasonably request.
Unless such request is made, and except as otherwise expressly permitted by Alion’s Chief
Executive Officer, Employee shall not perform any other work for Alion, shall cease all of his
activities in connection with his duties at Alion, shall have no authority to act on behalf of or
bind Alion and shall not represent to any third party or to any employee, agent or representative
of Alion that he has any title, role or authority to act for or on behalf of Alion. In addition,
effective on the Notification Date, Employee expressly resigns from all offices, directorships and
fiduciary positions with the Company or any related entities.
2. PAYMENTS BY ALION
(a) For the period from the Notification Date through the Separation Date, Employee shall
remain on the Company’s payroll at his current prorated annual base salary (“Salary Continuation
Payments”).
(b) In addition to the Salary Continuation Payments, the Company shall pay to Employee the
amount equal to $13,145.00 representing all amounts due for the vested and prorated unvested shares
of Stock Appreciation Rights (“SAR”) under the Company’s SAR Plan.
(c) If Employee signs and does not revoke this Agreement, then, subject to the following
paragraph and Paragraph 2(g) below, Alion shall make the following payments (“Severance Installment
Payments”) to Employee:
| (i) | The amount of $160,000.000 representing the amount equal to his last paid annual bonus (the “Bonus Amount”), payable on or before December 15, 2008; | ||
| (ii) | The amount of $1,883,991.00, representing an additional amount of severance (“Severance Payments”), payable as follows: |
| (aa) | $500,000.00 by the end of each of the calendar quarters commencing on March 14, 2009 until the amount of $1,500,000.00 has been paid; and | ||
| (bb) | $383,991.00 by December 31, 2009. |
| (iii) | all outstanding and accrued Paid Time Off (“PTO”) payable within thirty (30) days after the Notification Date. |
(d) Notwithstanding the foregoing, the Company’s obligation to pay the Salary Continuation
Payments, Bonus Amount and/or Severance Payments, to the extent not already paid, shall cease
immediately and such payments will be forfeited if Employee violates any condition set forth in
Paragraph 5, 6 7 or 8.
(e) Employee shall be permitted to continue the use of the automobile under the Company’s
current automobile lease for Employee until the Separation Date. On or before close of business on
the Separation Date, Employee shall return the automobile, along with all accessories purchased or
reimbursed by the Company, to the Company’s Director of Human Resources. As of one (1) day after
the Separation Date, any insurance coverage on behalf of Employee with regard to such automobile
shall cease at the Company’s discretion.
(f) Except as provided in this Agreement or under the terms of an applicable employee benefit
plan, no further payments shall be made to Employee.
(g) The Company shall withhold such tax, payroll and other amounts from payments under this
Agreement as Employee authorizes or the Company reasonably believes to
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be required by law. Employee shall be solely responsible for payment of his own taxes,
including any taxes arising under Internal Revenue Code Section 409A. The Company has not provided
and will not provide tax advice to Employee.
3. EMPLOYMENT BENEFITS
(a) Employee agrees and acknowledges that his participation in any 401(k) Plan, short-term and
long-term Disability Plans, or any other benefit plans made available to him as an Alion employee,
and his participation in and entitlement to any and all other benefits in which he is currently
enrolled, but which are not specifically addressed in this Agreement, will terminate on the
Separation Date.
(b) Employee’s participation in the Alion medical, dental, vision and other insurance plans
shall cease as of the Notification Date; provided that, to the extent that Employee is eligible for
and elects to receive medical and/or dental benefits pursuant to the provisions of the Consolidated
Omnibus Budget Reconciliation Act (“COBRA”) for himself and/or any qualifying beneficiaries, the
Company shall pay on Employee’s behalf, or reimburse Employee for, the amount of the applicable
COBRA that exceeds the amount of premium payable by Employee for the same level of coverage
immediately prior to the Effective Date. Any such COBRA premium payment by the Company that
constitutes taxable income to Employee shall be grossed up by the Company, assuming an applicable
income tax rate of forty percent (40%). Payments under this paragraph shall cease at the earlier
of (i) the end of the first month in which Employee is no longer eligible for COBRA for any reason
(other than death or eligibility for Medicare, provided that COBRA coverage continues for any
qualified beneficiary), or (ii) Eighteen (18) months after the Notification Date. Employee shall
notify the Company as soon as practicable after he ceases to be eligible for COBRA coverage due to
coverage under the group health plan of another employer.
(c) Except as otherwise provided in this Agreement, Employee waives any right of participation
in, or additional benefits under, the employee benefit, fringe benefit and compensation plans of
Alion with respect to any period after the Separation Date.
4. GENERAL RELEASE AND FORFEITURE BY EMPLOYEE
(a) Employee hereby releases and forever discharges Alion, its subsidiaries, affiliates,
insurers, predecessors, successors, and assigns, and the directors, officers, shareholders,
employees, representatives and agents of each of the foregoing (collectively “Releasees”) of and
from the following:
(i) Any and all claims, demands, and liabilities whatsoever of every name and nature
(other than those arising directly out of this Agreement), including, without limitation,
those with respect to Employee’s employment by Alion, or the terms and conditions of
employment, benefits or compensation, or termination of his employment, which Employee has
or ever had against Releasees; and
(ii) Without limitation, any and all claims known or unknown as of the date of
execution of this Agreement for tortious injury, breach of contract, and/or
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wrongful discharge (including, without limitation, any claim for violation of public
policy or constructive discharge), any personal gain with respect to any claim arising under
the qui tam provisions of the False Claims Act, 31 U.S.C. 3730 or any other whistleblower
claim, all claims for infliction of emotional distress, all claims for slander, libel, or
defamation of character, and all claims for reinstatement, back pay, front pay, compensatory
or punitive damages, severance pay, attorneys’ fees, or costs, as related to Employee’s
employment by Alion, or the terms and conditions or termination of his employment, benefits
or compensation, or termination of such employment; and
(iii) Without limitation, any and all claims known or unknown based upon any allegation
of employment discrimination, including, without limitation, discrimination on the basis of
race, color, sex, sexual orientation, age (including any claim pursuant to the federal Age
Discrimination in Employment Act), religion, disability, national origin or any other
classification protected under applicable law; and
(iv) Without limitation, any and all claims known or unknown based upon, arising out of
or in any way relating to the phantom stock grant agreements by and between Employee and
Company (collectively the “Phantom Stock Agreements”).
(b) It is agreed and understood that this release is a GENERAL RELEASE to be construed in the
broadest possible manner consistent with applicable law.
(c) Employee acknowledges and agrees that Employee:
(i) has not filed or pursued any claim released hereby against any Releasee by filing a
lawsuit in any local, state or federal court for or on account of anything which has
occurred up to the present time as a result of Employee’s employment or termination of
employment, and Employee shall not seek reinstatement or future employment with, or damages
of any nature, severance pay, attorneys’ fees, or costs from any Releasee; and
(ii) has been given the opportunity, if he so desires, to consider this Agreement for
twenty-one (21) days before executing it. Any change made to the Agreement during the
21-day period, whether material or not, will not restart the running of the 21-day period.
In the event that Employee executes this Agreement within twenty-one (21) days of the date
of its delivery to him, he acknowledges that such decision was entirely voluntary and that
he had the opportunity to consider this Agreement for the entire twenty-one (21) day period.
For a period of seven (7) days from the date of the execution of this Agreement, Employee
shall retain the right to revoke this Agreement in accordance with 29 U.S.C. § 626 by
written notice to Alion, c/o Xxxxx Xxxxxxxx, Director of Human Resources, 0000 Xxxxxx
Xxxxxxxxx, Xxxxx 0000, XxXxxx, Xxxxxxxx 00000. This Agreement shall not become effective or
enforceable until the expiration of such revocation period; and
(iii) has been and is advised to consult an attorney regarding this Agreement prior to
executing it and that he has been given sufficient time to do so; and
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(iv) has received full and adequate consideration for this General Release; and
(v) fully understands and acknowledges the significance and consequences of this
Agreement and represents by his signature that the terms of this Agreement are fully
understood and voluntarily accepted by him. This Agreement has been individually negotiated
by Employee and is not part of a group exit incentive or other group employment termination
program.
(d) Excluded from this General Release are any claims or rights which cannot be waived by law,
including the right to challenge the enforceability of this Agreement and the Employee’s right to
file a charge with an administrative agency or participate in any agency investigation where that
agency expressly prohibits such a waiver. However, Employee is waiving his right to recover any
money or to reinstatement with any Releasee in connection with such a charge or investigation.
Employee is also waiving his right to recover money in connection with a charge filed by any other
individual or by the Equal Employment Opportunity Commission or any other federal, state or local
agency.
(e) This General Release becoming and remaining effective shall be a condition precedent to
Employee obtaining any payments or benefits under this Agreement.
(f) Employee hereby expressly waives, disclaims and forfeits all amounts payable to him at any
time (whether currently owed to him or not) pursuant to the terms of the Phantom Stock Agreements.
5. NONDISCLOSURE OF INFORMATION; RETURN OF PROPERTY
(a) Employee shall keep secret and confidential and shall not disclose to any third party, in
any fashion or for any purpose whatsoever, any information regarding Alion which is (i) not
available to the general public, and/or (ii) not generally known outside the Company, and (iii) is
considered proprietary to or a trade secret of the Company, to which he has or will have had access
at any time during the course of his employment by the Company, including, without limitation, any
information relating to: the Company’s business or operations; its plans, strategies, prospects or
objectives; its products, technology, processes or specifications; its research and development
operations or plans; its customers and customer lists; its manufacturing, distribution, sales,
service, support and marketing practices and operations; its financial condition and results of
operations; its operational strengths and weaknesses; and, its personnel and compensation policies
and procedures.
(b) Employee agrees to return to Alion, on the Notification Date or at such later time as
Alion may allow in its sole discretion, (i) all documents, data, material, details and copies
thereof in any form (electronic or hard copy) that are the property of Alion or were created using
Alion resources or during any hours worked for Alion including, without limitation, any data
referred to in the immediately preceding Paragraph; and (ii) all other Alion property including,
without limitation, all computer equipment, cellular phones, personal digital assistances or
similar devices, fax machines and other equipment (except as otherwise agreed, but including
electronic information and/or software on Alion-provided computer equipment to
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be retained by Employee) and associated passwords, property passes, keys, credit cards,
business cards and identification badges.
6. NO DETRIMENTAL COMMUNICATIONS
Employee agrees that he will not make, disclose or cause to be disclosed any negative,
adverse, false or derogatory comments or statements about Releasees with regard to any product or
service provided by Releasees, about Releasees’ prospects for the future, or about Releasees in
general. Alion agrees that no authorized officer of Alion will disclose or cause to be disclosed
outside of Releasees any negative, adverse, false or derogatory comments or statements about
Employee. The parties agree that this provision will not be construed so as to bar any person from
providing full and truthful testimony in response to a summons, court or administrative order or
subpoena, or as otherwise provided by law, or discussion of matters affecting Employee with the
Company’s outside legal and accounting representatives. For the limited purposes of this Paragraph
only, the term “Releasees” shall mean only the directors, chief executive officer and executive and
senior vice presidents of Alion.
7. FUTURE ASSISTANCE
Alion may seek the assistance and cooperation of Employee in connection with any audit,
investigation, litigation or proceeding arising out of matters within the knowledge of Employee and
related to his position as an employee of Alion, and in any such instance, Employee shall provide
such assistance, cooperation or testimony, and Alion shall pay Employee’s reasonable costs and
expenses in connection therewith.
8. NON-COMPETITION; NON-SOLICITATION
(a) Non-Competition. Employee agrees that, for a period of one year after the
Notification Date, he will not, directly or indirectly, compete with the Company or its
subsidiaries or affiliates by providing services or by being an officer, director, employee,
consultant, agent, advisor, shareholder or owner to or of any other person, partnership,
association, corporation, or other entity that is a “Competing Business,” except that he may have
an ownership interest of up to two percent (2%) of a Competing Business which is a public company.
As used herein, a “Competing Business” is any business whose activities relate to the products or
services of the same or similar type as the products or services which are sold (or, pursuant to an
existing business plan, will be sold) to paying customers of the Company or its subsidiaries or
affiliates, and for which Employee had the responsibility to plan, develop, manage, market, or
oversee, or had any such responsibility within Employee’s most recent twenty-four (24) months of
employment with the Company.
(b) Non-Solicitation of Clients and Others. In addition to the foregoing, Employee
agrees that, for a period of one year after the Separation Date, he will not, directly or
indirectly, intentionally entice, induce or solicit, or attempt to entice, induce or solicit, any
individual or entity having a current or prospective business relationship with the Company,
whether as a consultant, client, customer or otherwise, to terminate or cease such relationship
with the Company, or to fail to enter into or renew such relationship with the Company.
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(c) Non-Solicitation of Employees and Others. In addition to the foregoing, Employee
agrees that, for a one year after the Separation Date, Employee shall not, on his own behalf or on
behalf of any other person, partnership, association, corporation, or entity: (i) directly,
indirectly, or through a third party hire or cause to be hired; (ii) directly, indirectly, or
through a third party solicit; or (iii) in any manner attempt to influence or induce any employee
of the Company or its subsidiaries or affiliates to leave the employment of the Company or its
subsidiaries or affiliates, nor shall he use or disclose to any person, partnership, association,
corporation, or other entity any information obtained concerning the names and addresses the
Company’s employees. Employee further agrees and acknowledges that the Company has confidentiality
and non-competition agreements with certain of its employees, and he agrees that he will not
interfere with any such agreements.
(d) Survival; Severability. The parties agree that the above restrictions on
competition are completely severable and independent agreements supported by good and valuable
consideration and, as such, shall survive the termination of this Agreement for whatever reason.
The parties further agree that any invalidity or unenforceability of any one or more of such
restrictions on competition shall not render invalid or unenforceable any remaining restrictions on
competition. Additionally, should a court of competent jurisdiction determine that the scope of any
provision of this Paragraph 8 is too broad to be enforced as written, the parties intend that the
court reform the provision to such narrower scope as it determines to be reasonable and
enforceable. Employee acknowledges and agrees that the non-competition and non-solicitation
provisions herein are expressly assignable to any successor of the Company.
9. GOVERNING LAW; SEVERABILITY
This Agreement is entered into and shall be construed under the laws of the Commonwealth of
Virginia. In the event any provision of this Agreement is determined to any extent to be illegal
or unenforceable by a duly authorized court of competent jurisdiction, then the illegal or
unenforceable provision shall be severed from this Agreement. In the event of such severance, the
remainder of this Agreement shall not be affected thereby, and each remaining provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law; provided, however,
that the parties expressly acknowledge and agree that the full waiver and release of all claims by
Employee is essential to effectuate the parties’ intent in entering into this Agreement and that,
in the event the general release of claims set forth in Paragraph 4 is severed, the parties’
remaining obligations under this Agreement shall be deemed waived (other than obligations arising
under Paragraphs 5 and 8), and any consideration or value delivered by one party to the other under
this Agreement shall constitute a binding obligation by the recipient to the other.
10. WAIVERS
The failure of either party to require the performance of any term or obligation of this
Agreement, or the waiver by either party of any breach of this Agreement, shall not prevent
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any subsequent enforcement of such term or obligation and shall not be deemed a waiver of any
subsequent breach.
11. AMENDMENTS
This Agreement may be modified or amended, in whole or in part, only by the mutual agreement
of the parties in writing.
12. NO OTHER INDUCEMENTS
This Agreement sets forth the entire understanding of the parties in connection with the
subject matter hereof. Any and all prior negotiations or discussion, either oral or written, are
merged into this Agreement. Neither of the parties has made any settlement, representation or
warranty in connection herewith (except those expressly set forth in this Agreement) which has been
relied upon by the other party, or which acted as an inducement for the other party to enter into
this Agreement.
13. PERSONS BOUND BY AGREEMENT
This Agreement shall be binding upon and inure to the benefit of Employee and Releasees and
their respective successors.
14. ASSIGNMENT OF INTERESTS
Employee warrants that he has not assigned, transferred or purported to assign or transfer any
claim against Releasees.
15. PREVAILING PARTY ENTITLED TO FEES
In the event that any action or proceeding is initiated to enforce or interpret the provisions
of this Agreement, or to recover for a violation of the Agreement, the prevailing party in any such
action or proceeding shall be entitled to its costs (including reasonable attorneys’ fees).
Nothing in this Paragraph is intended to, or shall, place any limitation or condition precedent on
Employee’s ability to challenge this Agreement.
16. CONFIDENTIALITY
Employee agrees to keep confidential the existence of this Agreement, as well as all of its
terms and conditions, and not to disclose to any person or entity the existence, terms or
conditions of this Agreement, except to his attorney, financial advisors and members of his
immediate family, provided they agree to keep confidential such existence, terms and conditions.
In the event that Employee believes he is compelled by law to divulge the existence, terms or
conditions of this Agreement, he will notify Alion’s Law Department of the basis for that belief
before actually divulging the information. Employee hereby confirms that, as of the date of this
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Agreement, he has not disclosed the existence, terms or conditions of this Agreement, except
as otherwise provided in this Agreement. Alion also agrees to keep confidential the existence of
this Agreement and not to disclose its terms and conditions outside of Releasees, its attorneys and
consultants, unless Alion is otherwise required to disclose such terms and conditions by operation
of law or request by a governmental agency, or as required by any federal or state securities laws
or regulations.
IN WITNESS WHEREOF, the parties hereby agree to the terms and conditions of this Agreement as
set forth above.
EMPLOYEE:
By:
|
/s/ Xxxxx X. Xxxx, III | Date: October 23, 2008 | ||||
| ALION SCIENCE AND TECHNOLOGY CORPORATION: | ||||||
By:
|
/s/ Xxxxxxxxx Xxxxxxxx | Date: October 23, 2008 | ||||
| Senior VP | ||||||
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