EXHIBIT 10.02
TERMINATION AGREEMENT
This Agreement, by and between X. Xxxxx, Inc., a Massachusetts
corporation together with its subsidiaries and divisions (the "Company") with
its principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
and Xxxxx X. Xxx of Westwood, Massachusetts ("Employee") shall be effective as
of the 8th day of September, 1998.
W I T N E S S E T H
WHEREAS, the Employee has been employed by the Company as the Executive
Vice President and President of the Company's JBI Footwear division pursuant to
an Executive Employment Agreement dated April 1, 1997, as amended by an
amendment dated April 10, 1998 (the "Employment Agreement");
WHEREAS, the parties hereto have agreed that the Employee will resign
from his present positions with the Company upon the terms and conditions
hereafter set forth.
NOW THEREFORE, in consideration of the agreements contained herein, the
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Effective as of the date hereof (the "Termination Date"), the
Company and the Employee agree to terminate the Employment Agreement and all
rights and obligations of the parties thereunder, which Employment Agreement
shall be superseded in all respects by the terms and conditions of this
Agreement.
2. Effective as of the date hereof the Employee shall resign in writing
from any positions he occupied as an officer of the Company.
3. (a) During the period beginning on the Termination Date and ending
with the pay period which ends on December 25, 1999, the Employee will receive,
as severance pay, his present base salary on a weekly basis.
(b) In addition, the Company agrees that the severance pay
which the Employee would otherwise have received for the period commencing with
the pay period for the week ending January 1, 2000 and ending with the pay
period for the week ending April 29, 2000, (Ninety Five Thousand One Hundred
Ninety Two dollars and 28/100 ($95,192.28)), constituting eighteen (18) weeks of
severance pay, shall be accelerated and paid to the Employee in a lump sum on
November 9, 1998; provided, however that twenty thousand dollars ($20,000) of
such lump sum payment shall be withheld and applied, on January 2, 1999, to the
payment and discharge of a Promissory Note dated July 1, 1997 from the Employee
to the Company (which amount, including imputed interest thereon shall be
treated as income to the Employee for the 1999 calendar year). As a result, on
November 9, 1998 the Employee shall receive from the Company a lump sum amount
of Seventy Five Thousand One Hundred Ninety Two and 28/100 ($75,192.28).
(c) The Employee further agrees that the Company has the right
to deduct from payments made hereunder any Federal, state or local taxes of any
kind required by law to be withheld with respect to such payments. The Employee
further agrees that payments provided for in Section 3(a) and (b) shall, upon
completion of such payments to the Employee, constitute payment in full of any
and all obligations of the Company to the Employee including earned unused
vacation pay.
4. The Company agrees that through the close of business on October 7,
1998, the Employee shall, at his option, have the right to use the vehicle
leased by the Company for the benefit of the Employee.
5. The Employee and the Company agree that with respect to stock
options granted to the Employee pursuant to the Company's 1985 Amended and
Restated Stock Option plan or the 1992 Equity Incentive Plan (the "Option
Plans"), any such options to purchase shares of the Company's common stock which
are currently exercisable on the date hereof shall remain exercisable through
December 7, 1998; and any such options to purchase shares which may become
exercisable subsequent to the date hereof shall be forfeited and terminated.
Effective as of the close of business on December 7, 1998 the exercisability of
any stock options granted to the Employee shall terminate and such options shall
be forfeited to the Company.
6. The Employee agrees that during the period commencing on the
Termination Date and ending on April 29, 2000 (the "Severance Period"), he will
immediately notify in writing the Company's First Senior Vice President and
Director of Human Resources or General Counsel upon accepting new employment or
upon providing consulting services to third parties for compensation. If at the
conclusion of the Severance Period, the Employee has not, at any time during the
Severance Period, accepted new employment or provided consulting services to
third parties for compensation, the Company agrees to make a one time lump sum
payment to the Employee in the amount of Sixty Five Thousand dollars ($65,000).
7. Effective as of the date hereof and thereafter, the Employee agrees
that he will not divulge, use, furnish, disclose or make accessible to anyone
other than the Company or its officers and directors any confidential, secret or
proprietary knowledge or information with respect to systems, plans, procedures,
programs, methods, or material relating to the business, products or activities
of the Company or any other confidential, secret or proprietary information
concerning the business, products, properties or activities of the Company
including, without limitation, financial information concerning the Company's
operations and information relating to the Company's customers, suppliers,
vendors, vendees, landlords, licensors or licensees, provided that the foregoing
shall not apply to the disclosure of any information required to be disclosed by
order of any court or government agency having jurisdiction. Confidential,
secret or proprietary information as used above means information that the
Employee had access to in the course of his employment that is not generally
known or available to the public, unless such information has become public
knowledge through no fault of the Employee.
8. The Employee hereby represents, warrants and agrees that as of the
Termination Date, he will turn over to the Company or leave in its offices all
documents or other materials or things owned by the Company and will not take
any such documents or materials with him, nor make copies of any such documents
or materials for his own use or the use of any person other than the Company or
persons connected therewith.
9. Effective as of the Termination Date and thereafter, the parties
agree that neither will take any action or make any statements with respect to
the Company or the Employee or any persons connected therewith which shall
injure the name or reputation of any such party or any employee thereof.
10. Effective as of the date hereof and for a period of one year
thereafter, the Employee agrees that neither he nor his new employer will,
without the express written consent of the Company, hire, recruit, solicit or
induce or attempt to induce, any employee or employees of the Company to
terminate their employment with the Company or to become an employee of the
Employee or his new employer.
11. (a) The Employee agrees that he, his representatives, agents,
estates, successors and assigns release and forever discharge the Company and/or
its agents, officers, directors, employees, successors and assigns, both
individually and in their official capacities with the Company, from any and all
actions, suits, claims, complaints, contracts, liabilities, agreements,
promises, debts and damages, whether existing or contingent, known or unknown,
which arise out of the Employee's employment with or his termination of
employment from the Company. This release is intended by the Employee and the
Company to be all encompassing and to act as a full and total release of any
claims that the Employee may have or has had against the Company, its agents,
officers, directors, employees, successors or assigns, both individually and in
their official capacity with the Company, including, but not limited to, any
federal or state law or regulation dealing with discrimination on the basis of
age, race, color, creed, sex, sexual preference, religion, national origin,
handicap status, marital status, or status as a disabled or Vietnam era veteran;
any contract whether oral or written, expressed or implied; or common law.
(b) The Employee has been informed that because he is 40 years
of age or older, he has or might have specific rights and/or claims under the
Age Discrimination in Employment Act of 1967 (the "ADEA"). In consideration for
the compensation described in Section 3 hereof, the Employee specifically waives
such rights and/or claims to the extent that such rights and/or claims arose
prior to the date this Agreement was executed.
(c) The Employee has been advised by the Company of his right
to consult with an attorney prior to executing this Agreement.
(d) The Employee has been further advised that he has at least
21 days from the date of receipt within which to consider and return a signed
Agreement to the Company's First Senior Vice President and Director of Human
Resources.
(e) As additional consideration for his agreement to waive any
and all claims Xx. Xxx has or might have under the ADEA, the Company will
continue Xx. Xxx'x health and dental benefits through December 25, 1999 under
the same rate he contributed as an employee. All benefits will cease on December
25, 1999 or the date Xx. Xxx begins employment elsewhere, whichever date is
earlier, except as required by applicable federal or state laws or otherwise
described herein.
12. The Company will respond to any inquiries from prospective
employers of the Employee, as well as any other third parties concerning the
Employee, by confirming dates of employment, positions held and compensation.
13. The Employee acknowledges and agrees that a breach by him of the
provisions of this Agreement will cause the Company irreparable injury and
damage and, therefore, the Employee expressly agrees that the Company shall be
entitled to injunctive and/or equitable relief in any court of competent
jurisdiction to prevent or otherwise restrain a breach of this Agreement for the
purpose of enforcing this Agreement or any part hereof.
14. This Agreement contains the entire contract between the parties,
supersedes all prior agreements, written or oral, including, without limitation,
the Employment Agreement dated as of April 1, 1997 as amended by an amendment
dated April 10, 1998 by and between the Company and the Employee and may not be
changed except in writing duly executed by the parties in the same manner as
this Agreement.
15. This Agreement is being executed and delivered in the Commonwealth
of Massachusetts and this Agreement shall be construed under and governed by the
laws of such Commonwealth.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the day and year first written above.
X. XXXXX, INC.
By: /s/Xxxxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxx
First Senior Vice President
Director of Human Resources
/s/Xxxxx X. Xxx
Xxxxx X. Xxx
