CONFIDENTIAL SEPARATION AGREEMENT AND RELEASE
Exhibit 10.4
CONFIDENTIAL SEPARATION AGREEMENT AND RELEASE
THIS CONFIDENTIAL SEPARATION AGREEMENT AND RELEASE (“Agreement”) is entered into this
2nd day of April, 2008, by and between THE XXXXXXXX COMPANIES, INC., a Delaware
Corporation (“Xxxxxxxx” or the “Company”), and Xxxxxxx X. Xxxxxxx (“Executive”);
Agreement, which shall not occur prior to March 31, 2008, the Company shall pay Executive:
a. The sum of Two Hundred Sixty Three Thousand Seven Hundred Fifty Eight Dollars
($263,758.00) (“Consulting Fee”) in exchange for Executive executing the Consulting
Agreement set forth on Exhibit “A” and performing the services described therein; and
b. The sum of Five Hundred Thousand Dollars ($500,000.00) (“Separation Payment”) in
exchange for Executive’s covenants and promises contained in this Agreement.
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U.S.C. § 1001, et seq. (except that the parties agree that by signing this Agreement,
Executive does not waive his rights under any claim for benefits that was or may have been filed
prior to the date Executive signed this Agreement); the Age Discrimination in Employment Act of
1967, as amended by the Older Workers Benefit Protection Act of 1990, 29 U.S.C.§ 621, et seq.; the
Family and Medical Leave Act of 1993, 29 U.S.C.§ 2601 et seq.; the Oklahoma Anti-Discrimination
Act, Okla. Stat., tit. 25, §§ 1101, et seq., and any claims for wrongful discharge, defamation,
infliction of emotional distress, termination in violation of public policy, retaliatory discharge,
including those based on workers’ compensation retaliation under state statutes, discrimination on
the basis of handicap, or claims arising under any local, state or federal regulation, statute or
common law. Executive acknowledges and affirms that this Agreement is in nature and character both
general and specific and that the specific descriptions and details hereinafter and hereinabove set
forth do not in any manner limit or otherwise affect the general nature and character of this
Agreement or the application thereof to Company and Executive. This Agreement does not release or
discharge any claim or rights which might arise out of the actions of Company after the date
Executive signs this Agreement.
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the eighth (8th) day after the Separation Date, and in accordance with Company’s
normal pay cycle, Executive will receive payment for the balance of any accrued and unused Paid
Time Off (PTO) for the calendar year 2008. Executive understands and acknowledges that, pursuant
to the Company’s PTO Policy, Executive will not accrue any additional PTO while performing services
as a consultant under the Consulting Agreement.
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respect to any litigation, legal proceedings or other disputes arising in connection with such
business matters, including, but not limited to, matters with respect to Company’s response to
inquiries initiated by governmental entities or other third parties and defense of certain lawsuits
against Company and such other matters as shall be reasonably requested from time to time by
Company’s General Counsel.
(a) The Separation Payment provided hereunder is a benefit to which he is not otherwise
entitled under any Company plan, program or prior agreement;
(b) Executive has not filed and will not in the future file any lawsuits, complaints,
petitions or accusatory pleadings in a court of law against any of the Released Parties
based upon, arising out of or in any way related to any event or events occurring prior to
the signing of this Agreement, including, without limitation, his employment with any of the
Released Parties or the termination thereof;
(c) This Agreement specifically includes, without limitation, all claims asserted by or
on behalf of Executive against any of the Released Parties, together with all claims which
might have been asserted by or on behalf of Executive in any suit, claim (known or unknown),
or grievance against any of the Released Parties for or on account of any matter or things
whatsoever up to and including the date Executive signs this Agreement;
(d) He has not heretofore assigned or transferred, or purported to assign or transfer,
to any person or entity, any claim or any portion thereof or interest therein and
acknowledges that this Agreement shall be binding upon Executive and upon his heirs,
administrators, representatives, executors, successors, and assigns, and shall inure to the
benefit of the Released Parties
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and each of them, and to their heirs, administrators, representatives, executors,
successors, and assigns;
(e) Executive waives all rights to recovery for any damages or compensation awarded as
a result of any suit or proceeding by any third party or governmental agency on Executive’s
behalf.
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credit card debt, relocation repayment obligations or pre-paid Educational Assistance Plan
benefits, may be deducted from Executive’s Separation Payment. Xxxxxxxx agrees that Executive
shall be entitled to reimbursement of any reasonable expenses incurred by Executive in connection
with his employment with the Company up through March 31, 2008, provided Executive submits a proper
expense report itemizing such expenses no later than April 30, 2008.
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Oklahoma without reference to the conflict of laws provisions thereof. Should any provision
of this Agreement be found or declared or determined by a court of competent jurisdiction to be
invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and
any such invalid part, term or provision shall be deemed not to be a part of this Agreement. Any
litigation concerning this Agreement or the facts or matters described herein shall be brought only
in a court of competent jurisdiction in Tulsa County, Tulsa, Oklahoma, and the parties hereby waive
personal jurisdiction and any objections to venue.
Executive: | Xxxxxxx X. Xxxxxxx | ||||
Tulsa, OK | |||||
Company: | The Xxxxxxxx Companies, Inc. | ||||
Attn: Vice President, Human Resources | |||||
Xxx Xxxxxxx Xxxxxx | |||||
X. X. Xxx 0000 | |||||
Xxxxx, Xxxxxxxx 00000 |
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THE XXXXXXXX COMPANIES, INC. |
||
By: /s/ Xxxxxx X. Xxxxxxx |
||
Title: Chairman, President & CEO |
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WITNESS: | ||
/s/ Xxxxxxx X. Xxxxxxx
|
/s/ Xxxxxx Xxxxxxx | |
Xxxxxxx X. Xxxxxxx |
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ACKNOWLEDGMENT
I HEREBY ACKNOWLEDGE that The Xxxxxxxx Companies, Inc. (“the Company”), in accordance with the
Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit Protection
Act of 1990, informed me in writing that:
(1) I should consult with an attorney before signing the Confidential Separation
Agreement and Release (“Agreement”) which was provided to me today.
(2) I may review the Agreement for a period of up to twenty-one (21) days prior to
signing the Agreement. If I choose to take less than twenty-one (21) days to review the
Agreement, I do so knowingly, willingly and on advice of counsel.
(3) For a period of seven (7) days following the signing of the Agreement, I may revoke
the Agreement, and that the Agreement will not become effective or enforceable until the
seven day revocation period has elapsed; and
(4) The Consulting Fee and Separation Payment described in Paragraph 2 of this
Agreement will be paid in accordance with the Company’s normal pay cycle, but will not be
paid to me until the seven-day revocation period has elapsed.
I HEREBY FURTHER ACKNOWLEDGE receipt of this Confidential Separation Agreement and Release on
the 2nd day of April, 2008.
WITNESS: | ||
/s/
Xxxxxxx X. Xxxxxxx
|
/s/ Xxxxxx Xxxxxxx | |
Xxxxxxx X. Xxxxxxx |
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EXHIBIT “A”
CONSULTING AGREEMENT
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is entered into this 2nd day of April, 2008, by and
between THE XXXXXXXX COMPANIES, INC. a Delaware Corporation, (“Xxxxxxxx” or the “Company”) and
Xxxxxxx X. Xxxxxxx (“Consultant”).
1. Consulting Services.
(a) During the period beginning on the date on which Consultant ceases to be employed
by Xxxxxxxx and continuing through December 31, 2008 (the “Consulting Period”), Consultant
shall provide to Xxxxxxxx, including its subsidiaries and affiliates, consulting services
commensurate with his status and experience as Xxxxxxxx’ Senior Vice President and Chief
Administrative Officer to enable a smooth transition of his duties to his successor with
respect to such matters as shall be reasonably requested from time to time by the Chief
Executive Officer of Xxxxxxxx (the “Xxxxxxxx Representative”), provided that Consultant
shall not be required to provide such services during any period when he is unable to
perform due to his health.
(b) Consultant shall provide consulting services to Xxxxxxxx only as needed and when
reasonably requested by the Xxxxxxxx Representative, provided that, without his
prior consent, Consultant shall not be required to devote more than eighty (80) hours in any
calendar month to the performance of any consulting services hereunder. Consultant agrees
that in the event it becomes necessary for him to devote more than eighty (80) hours in any
calendar month to performing services under this Agreement, Consultant will obtain approval
from Xxxxxxxx’ Chief Executive Officer and the Executive Officer Team member for whom the
services are being provided prior to providing such services. Consultant shall determine the
time and location at which he shall perform such services, subject to the right of the
Xxxxxxxx Representative to reasonably request by advance written notice that such services
be performed at a specific time and at a specific location. Consultant shall honor any such
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request unless he is unable to perform due to his health, or he has a conflicting
business commitment that would preclude him from performing such services at the time and/or
place requested by the Xxxxxxxx Representative, and in such circumstances, shall make
reasonable efforts to arrange a mutually satisfactory alternative. Xxxxxxxx shall use its
reasonable best efforts not to require the performance of consulting services in any manner
that unreasonably interferes with any other business activity of Consultant.
(c) Consultant shall not, solely by virtue of the consulting services provided
hereunder, be considered to be an officer or employee of any member of Xxxxxxxx during the
Consulting Period, and shall not have the power or authority to contract in the name of or
bind any member of Xxxxxxxx. Consultant shall at all times be treated as an independent
contractor and shall be responsible for the payment of all taxes with respect to all amounts
paid to him hereunder. Consultant shall not, by reason of the services performed hereunder,
be entitled to participate in any employee benefits plan, program or arrangement made
available to any employee of Xxxxxxxx.
(d) This Agreement is personal to Consultant and all of the services required of
Consultant hereunder shall be performed personally by him.
2. Consulting Fees. In accordance with its normal pay cycle, but not before the eighth
(8th) day following Consultant’s execution of this Agreement, Xxxxxxxx shall pay
Consultant the sum of Two Hundred Sixty Three Thousand Seven Hundred Fifty Eight Dollars
($263,758.00) (“Consulting Fee”) as consideration for executing this Agreement and providing the
services set forth hereunder. Consultant shall not be entitled to receive any other compensation,
bonuses or benefits provided to Xxxxxxxx’ employees in exchange for the services provided by
Consultant under the terms of this Agreement. However, Xxxxxxxx will reimburse Consultant for
reasonable and necessary travel expenses, including costs for transportation, meals and lodging
that Consultant may incur in connection with his performance of services under this Agreement.
During the Consulting Period, Consultant may also utilize Xxxxxxxx’ corporate aircraft for travel
necessary to his performance of services under this Agreement, subject to the approval of the
Xxxxxxxx Representative and the availability of the aircraft.
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3. Confidential Information. Consultant shall not, at any time during the Consulting
Period, make use of or disclose, directly or indirectly, any (i) trade secret or other confidential
or secret information of Xxxxxxxx or (ii) other technical, business, proprietary or financial
information of Xxxxxxxx not available to the public generally or to the competitors of Xxxxxxxx
(“Confidential Information”), except to the extent that such Confidential Information (a) becomes a
matter of public record or is published in a newspaper, magazine or other periodical available to
the general public, other than as a result of any act or omission of Consultant, (b) is required to
be disclosed by any law, regulation or order of any court or regulatory commission, department or
agency, provided that Consultant gives prompt notice of such requirement to Xxxxxxxx to enable
Xxxxxxxx to seek an appropriate protective order, or (c) is necessary to perform properly
Consultant’s duties under this Agreement. Promptly following the termination of the Consulting
Period, Consultant shall surrender to Xxxxxxxx all records, memoranda, notes, plans, reports,
computer tapes and software and other documents and data which constitute Confidential Information
which he may then possess or have under his control (together with all copies thereof).
4. Exclusive Services/Non-solicitation.
(a) Consultant acknowledges that during the Consulting Period he will become familiar
with trade secrets and other confidential information concerning Xxxxxxxx and that his
services will be of special, unique and extraordinary value to Xxxxxxxx.
(b) Consultant agrees that during the Consulting Period he shall not in any manner,
directly or indirectly, through any person, firm or corporation, alone
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or as a member of a partnership or as an officer, director, stockholder, investor or
employee of or consultant to any other corporation or enterprise or otherwise, engage or be
engaged, or assist any other person, firm corporation or enterprise in engaging or being
engaged, in any business, in which Consultant was involved or of which he has knowledge is
being conducted by Xxxxxxxx during the Consulting Period. Notwithstanding the provisions of
this subparagraph 4(b) to the contrary, Consultant may act as a director, stockholder,
investor or employee of or consultant to any corporation or enterprise with regard to the
business or businesses referred to above with the prior written consent of Xxxxxxxx, such
consent not to be unreasonably withheld.
(c) Consultant further agrees that during the Consulting Period he shall not in any
manner, directly or indirectly, induce or attempt to induce any employee Xxxxxxxx to
terminate or abandon his or her employment for any purpose whatsoever.
(d) Nothing in this Paragraph 4 shall prohibit Consultant from being (i) a stockholder
in a mutual fund or a diversified investment company or (ii) a passive owner of not more
than two percent (2%) of the outstanding stock of any class of a corporation, or any
securities of which are publicly traded, so long as Consultant has no active participation
in the business of such corporation.
(e) If, at any time of enforcement of this Paragraph 4, a court holds that the
restrictions stated herein are unreasonable under circumstances then existing, the parties
hereto agree that the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for
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the stated period, scope or area and that the court shall be allowed to revise the
restrictions contained herein to cover the maximum period, scope and area permitted by law.
This Agreement shall not authorize a court to increase or broaden any of the restrictions in
this Paragraph.
5. Hold Harmless. Consultant shall hold harmless Xxxxxxxx, its subsidiaries and
affiliates, and its and their respective shareholders, officers, directors, employees and attorneys
against any damage, injury, death, claim, loss, charge or expense (including, without limitation,
attorneys’ fees and court costs and the costs of investigation) of any party, including Consultant,
arising out of or relating to, or claimed to arise out of or relate to, Consultant’s gross
negligence or willful misconduct in performing under this Agreement.
6. No Tax Advice. Consultant agrees and acknowledges that Xxxxxxxx has made no
representations to him regarding the tax consequences of the money paid pursuant to this Agreement,
and that he shall rely upon his own tax advice with respect to any taxes owed on any of such
monies. Consultant shall be solely responsible for the payment of any federal, state or local
taxes owed by Consultant as a result of his receipt of money or benefits provided to him by
Xxxxxxxx pursuant to this Agreement.
7. Termination of the Consulting Services. Xxxxxxxx may terminate this Agreement at
any time prior to December 31, 2008, but the parties agree and acknowledge that Xxxxxxxx shall only
be entitled to a pro-rata refund of the Consulting Fee in the event that the Agreement is
terminated solely for cause, which shall be limited to either (i) the conviction of Consultant of a
felony which has a substantial effect on Xxxxxxxx’ business or reputation, or (ii) the continual
and repeated failure of
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Consultant to perform the services required of him hereunder, after written notice of the alleged
failures and an opportunity to cure has been given. Consultant may only terminate this Agreement
due to a material breach hereof by Xxxxxxxx.
8. No Waiver of Vested Benefits. Nothing in this Agreement shall be construed to
limit, reduce, offset or otherwise impair Consultant’s rights to any benefits or compensation
vested or accrued under the terms of the employee benefit plans, programs or arrangements
maintained by Xxxxxxxx other than those benefits that were released or waived by Consultant
pursuant to the Confidential Separation Agreement and Release dated April 2, 2008.
9. Computer/Office Support and Access. During the Consulting Period, Xxxxxxxx shall
provide Consultant with office space at Xxxxxxxx’ principal place of business, which will include
telephone and computer access and administrative support. In addition, Xxxxxxxx shall provide and
maintain Consultant’s computer and access to Xxxxxxxx’ network and telephone systems via his home
office as shall be reasonably necessary for Consultant to provide the consulting services requested
by Xxxxxxxx during the Consulting Period and under the terms of this Agreement. At the termination
of the Consulting Period, Consultant shall return all of Xxxxxxxx’ property within his possession
to Xxxxxxxx.
10. Enforcement. The parties hereto agree that Xxxxxxxx would be damaged irreparably
in the event that any provision of Paragraph 3 or 4 of this Agreement were not performed in
accordance with its terms or were otherwise breached and that money damages would be an inadequate
remedy for any such nonperformance or breach. Accordingly, Xxxxxxxx and its successors and
permitted assigns shall be entitled, in
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addition to other rights and remedies existing in their favor, to an injunction or injunctions
to prevent any breach or threatened breach of any of such provisions and to enforce such provisions
specifically (without posting a bond or other security). Consultant agrees any litigation
concerning this Agreement or the facts or matters described herein shall be brought only in a court
of competent jurisdiction in Tulsa County, Tulsa, Oklahoma, and Consultant agrees that he will
submit himself to the personal jurisdiction of the courts of the State of Oklahoma in any action by
Xxxxxxxx to enforce the terms of this Agreement or to obtain injunctive or other relief.
11. Miscellaneous. This Agreement may only be amended by a written instrument signed
by Xxxxxxxx and Consultant. Except as otherwise expressly provided hereunder, this Agreement shall
constitute the entire agreement between Xxxxxxxx and Consultant with respect to the subject matter
hereof The parties further agree and acknowledge that this Agreement constitutes the entire
agreement between the parties hereto pertaining to the facts and matters stated herein and
supersedes any and all prior understandings, agreements or representations or understandings,
whether written or oral, prior to the date hereof; provided, however, that this Agreement shall
have no effect on the enforceability or terms of the Confidential Separation Agreement and Release
dated April 2, 2008, or on the enforceability of any prior agreement relating to
non-solicitation, trade secrets, and/or confidentiality. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
12. Notices. Any and all notices required to be sent pursuant to the terms of this
Agreement will be sent by registered or certified mail, or be personally delivered to
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the parties hereto at the following addresses, or such other addresses as they may designate:
Consultant: | Xxxxxxx X. Xxxxxxx | ||||
Tulsa, OK | |||||
Company: | The Xxxxxxxx Companies, Inc. | ||||
Attn: Vice President, Human Resources | |||||
Xxx Xxxxxxx Xxxxxx | |||||
X. X. Xxx 0000 |
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Xxxxx, Xxxxxxxx 00000 |
13. Successor and Assigns. This Agreement shall be enforceable by Consultant and his
heirs, executors, administrators and legal representatives, and by Xxxxxxxx and its successors and
assigns.
14. Survival. Paragraphs 3, 4, and 10 of this Agreement shall survive and continue in
full force and effect in accordance with their respective terms, notwithstanding any termination of
the Consulting Period.
15. Governing Law. This Agreement shall be governed by the laws of the State of
Oklahoma, without reference to the principles of conflicts of law.
THE XXXXXXXX COMPANIES, INC. |
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By: /s/ Xxxxxx X. Xxxxxxx |
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Title: Chairman, President & CEO |
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WITNESS: | ||
/s/ Xxxxxxx X. Xxxxxxx
|
/s/ Xxxxxx Xxxxxxx | |
Xxxxxxx X. Xxxxxxx |
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