EXHIBIT 10.11
July 26, 2001
Xx. Xxxxx Xxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Re: CHANGE OF STATUS AND SEPARATION AGREEMENT
Dear Blake:
This letter, upon your signature, will constitute the entire agreement
("Agreement") between you and Xxxxx & Xxxxx Company ("G&E"), and all of its
respective subsidiaries, divisions, affiliates, and related entities
(collectively, the "Company") regarding the transition of your employment
status, duties and responsibilities and the termination of your employment with
the Company.
1. You have decided it would be in the best interests of you and your family
not to move to New York and to return to Pittsburgh, Pennsylvania.
2. a) You have resigned as Chief Financial Officer of G&E and as an
officer and director of all subsidiaries of G&E effective June 18,
2001 ("Transition Date"). On and after the Transition Date, until
December 31, 2001, or earlier upon 30 days written notice by you
to the Company (your "Termination Date"), you shall have the title
Senior Vice President, Strategy and Operations of G&E, and will
report to the Chief Financial Officer of G&E ("CFO") or to other
persons as directed by the CFO from time to time. From the
Transition Date through July 31, 2001 you shall complete a finance
and accounting transition. From August 1 through your Termination
Date, you shall work in the Company's Northbrook, IL or
Pittsburgh, Pennsylvania office on various strategic projects and
business initiatives as directed by the CFO from time to time.
b) From the Transition Date until July 31, 2001, you shall continue
to receive your current base salary of Fourteen Thousand Five
Hundred Eighty-Three and 33/100 Dollars ($14,583.33) per month,
payable semi-monthly; from August 1, 2001 until your Termination
Date, you shall receive a base salary of Sixteen Thousand Six
Hundred Sixty-Six and 67/100 Dollars ($16,666.67) per month,
payable semi-monthly, in each case less withholding taxes and
customary payroll deductions.
c) You agree to resign as an officer and employee of the Company on
your Termination Date, and the Company hereby accepts such
resignations. If the Company and you shall mutually agree in
writing, your Termination Date would be extended.
3. a) The Company has adopted the Executive Incentive Bonus and
Severance Plan effective June 1, 2000 (the "Bonus and Severance
Plan"). Pursuant to the Bonus and Severance Plan, after the
Effective Date (see Section 15 below), you will receive the
following:
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(i) One month following your Termination Date, a lump sum in
cash equal to Fifty-Five Thousand Dollars ($55,000)
representing your calendar year 2001 bonus; and
(ii) After your Termination Date, cash payments of Sixteen
Thousand Six Hundred Sixty-Six and 67/100 Dollars
($16,666.67) per month, for twelve months, payable
semi-monthly, or an aggregate total of Two Hundred Thousand
Dollars ($200,000), representing one year's base salary;
and
(iii) After your Termination Date, Twenty-Eight Thousand Seven
Hundred Dollars ($28,700) representing the annual
equivalent of your Company benefits for healthcare, dental,
vision, life insurance, disability coverages, and
perquisites for the twelve month period after the
Termination Date, which has been grossed up to cover your
income taxes, payable over a period of twelve (12) months,
semi-monthly;
all of the above to be reduced by withholding taxes and
customary payroll deductions.
b) In addition, after the Effective Date, on July 31, 2001 you will
be paid your accrued but unused vacation time pay through July 31,
2001 in the amount of Eight Thousand Four Hundred Thirty-Two and
No/100 Dollars ($8,432.00), less withholding taxes and customary
payroll deductions. You will cease accruing vacation time after
July 31, 2001. You will be permitted two weeks off with pay to
move from Northbrook, Illinois to Pittsburgh, Pennsylvania.
4. a) Upon the Effective Date you will no longer be an Executive Officer
of the Company and will thereafter no longer be covered by or
eligible to receive any compensation or benefits pursuant to the
Executive Change of Control Plan, adopted by the Company Board of
Directors on May 10, 1999, as amended (the "CIC Plan"). The
Company represents that no event has taken place (and no
discussions have commenced with any third party) to date that
could trigger a Change of Control as defined in the CIC Plan
between the Effective Date of this Agreement and six months
following your Termination Date.
b) In consideration of an extension of your Termination Date to
December 31, 2001 and your acceptance of this Agreement, and
provided you have fulfilled your other obligations set forth in
this Agreement, after the Effective Date the Company shall provide
you with the following benefits:
i) up to Ten Thousand Dollars ($10,000) of outplacement
benefits from the company of your choice, upon receipt by
the Company of bills for same by June 30, 2002; and
ii) live voicemail, network access and cellular phone through
your Termination Date; and
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iii) you may keep your portable computer after the Company shall
have deleted therefrom, confidential Company software and
information; and
iv) payment of moving expenses of up to Fifteen Thousand
Dollars ($15,000) upon providing us sufficient
documentation and vendor invoices for same by December 31,
2001.
5. Except as specifically provided in this Agreement, you hereby abrogate
and repudiate any and all claims you have under the Bonus and Severance
Plan, the CIC Plan, the acknowledgment agreements executed by you in
respect of said plans, any and all other written or oral agreements
between you and the Company regarding the terms of your employment and
any and all compensation to be paid to you by the Company.
6. After your Termination Date, you will no longer be covered by or eligible
for any benefits under any Company employee benefit plans in which you
currently participate. After your Termination Date, you will receive by
separate cover information regarding your rights to health insurance
continuation (COBRA) and any 401(k) PLUS plan benefits. To the extent
that you have such rights, nothing in this Agreement will impair those
rights.
7. (a) In exchange for the compensation to be provided to you herein, to
which you are not otherwise entitled except pursuant to this
Agreement, you agree to and hereby do waive and release, and
promise never to assert, any claims of any kind or nature
whatsoever, in law or equity, known or unknown, direct and
indirect, that you have against the Company, and its respective
predecessors, subsidiaries, affiliates, associates, owners,
divisions, representatives, related entities, officers, directors,
shareholders, agents, partners, insurers, employee benefit plans
(and their trustees, administrators and other fiduciaries),
attorneys, employees, heirs, successors, and assigns
(collectively, the "Released Parties"), arising from or related to
your employment, the transition of your employment, and the
termination of your employment with the Company.
The claims that you are waiving, releasing and promising not to
assert include, but are not limited to, claims arising under
federal, state and local statutory and common law, such as the Age
Discrimination in Employment Act, as amended, the Americans with
Disabilities Act of 1990, the Family Medical Leave Act of 1993,
Title VII of the Civil Rights Act of 1964, as amended, the Equal
Pay Act of 1963, as amended, the Civil Rights Act of 1866, as
amended, the common law of contract and tort, and any other laws
and regulations relating to employment, or employment
discrimination and/or the payment of wages or benefits.
(b) In consideration of the foregoing and the execution of the
Agreement by you, the Company and the Released Parties hereby
waive and release and promise never to assert any claims of any
kind or nature whatsoever, in law or equity, known or unknown,
direct or indirect that the Company (and/or any of the Released
Parties) might have against you (and including, without
limitation, your partners, associates, agents, representatives,
related entities and/or affiliates, contractors and/or your
attorneys).
8. (a) You understand and agree that the claims that you are waiving,
releasing and promising never to assert include claims that you
now know or have reason to know exist, as well
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as those that you do not presently have any reason to know,
believe or suspect that you have, including unknown, unforeseen,
unanticipated and unsuspected injuries, damages, loss and
liability and the consequences thereof. By signing this Agreement
you agree that you are expressly waiving any provision of any
state, federal or local statute, and common-law doctrine,
providing, in substance, that a release shall not extend to
claims, demands, injuries or damages, loss or liability, which are
unknown or unsuspected to exist, by the person making the release,
when s/he is making the release.
(b) The Company (and the Released Parties) agree and understand that
the claims that they are waiving, releasing and promising never to
assert include claims that they now know or have reason to know
exist, as well as those that they do not presently have any reason
to know, believe or suspect that they may have, including unknown,
unforeseen, unanticipated and unsuspected injuries, damages, loss
and liability and the consequences thereof. By signing the
Agreement the Company (on behalf of itself and the Released
Parties) agrees that the Company (and the Released Parties) are
expressly waiving any provision of any state, federal or local
statute, and common law doctrine, providing in substance, that a
release shall not extend to claims, demands, injuries or damages,
loss or liability, which are unknown or unsuspected to exist by
the party making the release, when it/they are making the release.
9. You agree that you will not voluntarily, and without compulsion of legal
process, assist or encourage others to assert claims or to commence or
maintain litigation against the Released Parties. You also agree not to
take any action or make any statement which disparages or is intended to
disparage the Released Parties or their reputations.
10. You agree to return to the Company, by your Termination Date, any and all
information and materials, whether in paper, magnetic, electronic or
other form, that you have about the Company's practices, procedures,
trade secrets, finances, client lists, or marketing of the Company's
services. You will promptly execute any and all notices of resignation
from any Company position as requested by the General Counsel. You will
take no further action to bind or obligate the Company. You will
immediately turn in your corporate American Express card.
11. You agree that you will not, unless required by law or otherwise
permitted by express written permission from or request by the Company,
disclose to anyone any information regarding the following:
a. Any non-public information regarding the Company, including its
practices, procedures, trade secrets, finances, client lists, or
marketing of the Company's services.
b. The terms of this Agreement, except that you may disclose this
information to members of your immediate family and to your
attorney, accountant or other professional advisor(s) to whom you
must make the disclosure in order for them to render professional
services to you. You will instruct them, however, to maintain the
confidentiality of this information just as you must, and any
breach of this obligation of confidentiality by such family member
or professional advisor(s) shall be deemed to be a breach by you.
If required to disclose the terms of this Agreement by law, you
shall provide the Company with sufficient notice prior to any such
disclosure, including the
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basis for the legal requirement to disclose, to allow the Company
to seek a protective order preventing the disclosure.
12. You agree that, commencing on the Effective Date, and thereafter for a
period of six months after your Termination Date, you shall not, directly
or indirectly, on behalf of yourself or any other person or entity
solicit for employment any then current executive, employee or
independent contractor of the Company, or request or induce any then
current executive, employee or independent contractor of the Company to
leave the employ of, or association with, the Company.
13. Except as required by law or administrative agency or stock exchange
rules, the Company will keep the terms of this Agreement confidential. It
is expected that the Company will file this Agreement as an exhibit to
its SEC filings.
14. In the event that you breach any of your obligations under this Agreement
or as otherwise imposed by the law, the Company will be entitled to
recover the benefits paid under the Agreement and to obtain all other
relief provided by law and equity. This Agreement will be governed by the
law of the State of Illinois without regard to principles of conflicts of
laws thereof.
15. To accept the Agreement, please date and sign this Agreement and return
it, either by personal delivery or by mail, to XXXXX & XXXXX COMPANY, c/o
Xxxxxx X. Xxxxxx, General Counsel, 0000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, XX 00000. An extra original for your records is enclosed.
A. YOU SHOULD CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT.
B. YOU HAVE UP TO 21 DAYS FROM THE DATE YOU RECEIVE THIS AGREEMENT TO
ACCEPT THE TERMS OF THIS AGREEMENT, ALTHOUGH YOU MAY ACCEPT IT AT
ANY TIME WITHIN THOSE 21 DAYS.
C. ONCE YOU ACCEPT THIS AGREEMENT, YOU WILL HAVE SEVEN (7) DAYS AFTER
SIGNING TO REVOKE YOUR ACCEPTANCE. TO REVOKE, YOU MUST SEND,
EITHER BY PERSONAL DELIVERY OR BY MAIL, TO THE GENERAL COUNSEL AS
INDICATED ABOVE, A WRITTEN STATEMENT OF REVOCATION. IF YOU DO NOT
REVOKE, THE EIGHTH DAY AFTER THE DATE OF YOUR ACCEPTANCE WILL BE
THE "EFFECTIVE DATE" OF THIS AGREEMENT.
16. Nothing in this Agreement shall constitute an admission of liability or
wrongdoing by the Company or by you. This Agreement shall not be binding
on the Company unless and until it is signed, in unaltered form, and
returned to the Company as provided above.
17. In the event that any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, then to the maximum extent permitted by
law, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement.
18. This Agreement represents the sole and entire agreement between you and
the Company regarding the transition and then termination of your
services as Chief Financial Officer and Senior Vice
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President and supersedes any and all previous verbal or written promises,
representations, agreements, negotiations and/or discussions, if any,
between you and the Company with respect to the subject matters covered
herein. This Agreement cannot be terminated or changed except in writing
by you and a duly authorized representative of G&E.
19. All notices, requests, demands and other communications which are
required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when received if personally
delivered; when transmitted if transmitted by telecopy, electronic or
digital transmission method, with electronic confirmation; when received,
if sent for next day delivery to a domestic address by recognized
overnight delivery service (E.G., Federal Express); and upon receipt, if
sent by certified or registered mail, return receipt requested. In each
case notice shall be sent to:
If to you, addressed to:
Xxxxx Xxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
If to Xxxxx & Xxxxx Company, addressed to:
Xxxxx & Xxxxx Company
0000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others.
20. This Agreement may be executed in any number of counterparts, all of
which, when taken together, shall constitute one and the same instrument.
XXXXX & XXXXX COMPANY
BY: /s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
Dated: July 26, 2001 President & Chief Executive Officer
By signing this Agreement, I acknowledge that I have had the opportunity to
review it carefully with an attorney of my choice, that I understand the terms
of the agreements contained therein, and that I voluntarily agree to them.
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Dated: July 27, 2001 /s/ XXXXX XXXXXXXX
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Xxxxx Xxxxxxxx
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