Exhibit 10(xv)
November 12, 2001
PERSONAL AND CONFIDENTIAL
Xxxxxx X. Xxxx
Lyndhurst, New Jersey
Dear Xxx:
The purpose of this Letter Agreement (the "Agreement") is to set forth
the terms of your separation from employment with Xxxxxxx-Xxxxxx Corporation
(the "Company").
1. Your last day of active employment will be today.
2. In consideration of the obligations you assume and the other
agreements made by you under this Agreement, the Company
agrees that:
a. You will continue in an employment status and the
Company will continue paying you your current base
salary in accordance with its normal payroll
procedures until March 1, 2003. You shall receive
service credit toward the Company retirement plan for
as long as you continue to receive severance
payments. In addition, you will receive your annual
targeted bonus of $87,500 for 2001 at the time it
would otherwise be payable. In the event that you
obtain other employment prior to December 31, 2002,
you shall have the right to receive on the later of
January 15, 2002 or on the date you become actively
employed any unpaid 2002 severance in a lump sum
should you so choose upon providing the Company with
reasonable notice in writing of your desire to do so.
In addition, you shall have the right to receive on
or after January 1, 2003 any unpaid 2003 severance in
a lump sum should you so choose upon providing the
Company with reasonable notice in writing of your
desire to do so. It is expressly understood that this
employment continuation and these payments are in
complete satisfaction, among other things, of any
obligations the Company may have now or in the future
to pay you for time not worked such as severance pay
(including any severance pay pursuant to the
Severance Agreement signed by you previously), pay in
lieu of notice, unpaid incentive compensation or
payment for accrued but unused vacation, sick or
personal time.
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October __, 2001
b. You will cease to participate in or benefit from the
Company's medical, dental, prescription drug and
hospitalization effective November 12, 2001.
Thereafter, you will be offered COBRA as provided for
under the Consolidated Omnibus Budget Reconciliation
Act of 1985. If you elect COBRA coverage, the Company
shall pay on your behalf the applicable COBRA premium
during the maximum period of 15 of the 18 months as
allowed under COBRA for the particular qualifying
event which caused your loss of coverage even though
the Company is permitted to charge you and your
dependents up to 102 percent of the applicable
premium for this coverage. Following the 15 month
period of continuation of coverage under COBRA (March
1, 2003), the Corporation will continue, at your
expense if you desire, the medical (including
prescription) and dental coverage, subject to all
terms and provisions of such coverage in effect at
the time a charge is incurred, through June 1, 2003.
You and your eligible dependents will continue to
participate as though actively employed in the
flexible spending plan, life insurance and disability
coverages generally provided to senior Company
executives until March 1, 2003 or until you obtain
coverage as a result of employment elsewhere,
whichever occurs first.
c. The Company shall permit you to continue to use the
Company-provided automobile now being provided to you
(and will maintain the automobile registration and
insurance coverage thereon so long as you agree to be
responsible for any operating, repair and/or
maintenance costs not otherwise covered by
manufacture or dealer warranties) until March 1,
2003, at which time the Company shall transfer
ownership of the vehicle to you, should you desire to
keep the vehicle. Upon the transfer of title, all
Company shall have no further obligations toward the
vehicle.
d. The Company shall provide you with executive
outplacement services until March 1, 2003, or until
you begin employment elsewhere, whichever occurs
first.
e. The Company shall provide you with executive coaching
services under terms arranged for by the Company.
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October __, 2001
f. The Company will respond to all inquiries regarding
your employment with the Company, or regarding the
termination of that employment by providing the dates
of your employment and your last position held. The
Company shall ensure that its subsidiaries or
affiliates, and the officers, trustees, directors and
managing agents thereof, will not at any time
disparage you or otherwise take any action opposed to
your best interests.
g. The Company shall continue to provide you with access
to executive financial consulting services with The
AYCO Company through December 31, 2001 as though you
remained actively employed during that period.
h. The Company shall continue to provide you with use of
the Company-provided cellular telephone now being
provided to you until March 1, 2003 as though you
remained actively employed. You will be responsible
for the monthly cell phone balance in excess of $100
to be paid promptly on a monthly basis.
i. Currently outstanding but unvested stock options
under the Long Term Incentive Compensation Agreements
between the Company and you dated November 16, 1998,
November 16, 1999 and November 20, 2000 shall vest
respectively on the anniversary dates of said
Agreements as though you were actively employed by
the Company through March 1, 2003.
j. The Company shall pay you any earned and accrued
bonus under the Company's Modified Incentive
Compensation Plan in accordance with the Plan's terms
and conditions. This includes pro rata performance
units for which you are eligible under the Plan's
terms and conditions.
3. In return for the above commitments by the Company, you agree as
follows:
a. Effective as of the date you sign this Agreement, you
hereby resign from any and all offices you held with
the Company, its subsidiaries and affiliates.
b. Effective November 12, 2001, you hereby resign from
your employment with the Company.
c. You agree, for yourself and your heirs, successors
and assigns, that, as of the Effective Date of this
Agreement (as defined in Paragraph 8 of this
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Agreement), you are releasing and giving up any and
all rights which you have against the Company which
might arise out of your employment with the Company
or which might arise out of the termination of that
employment. Specifically, you hereby consent:
(i) to irrevocably and unconditionally release
and discharge the Company, the subsidiaries
and affiliates of both the Company, the
predecessors and successors of the Company
and their subsidiaries and affiliates, and
the owners, stockholders, directors,
trustees, officers, employees, partners and
agents of both the Company and of the
predecessors and successors of both the
Company and their subsidiaries and
affiliates (collectively "Releasees"), from
any and all debts, obligations, claims,
demands, judgments, or causes of action of
any kind whatsoever, known or unknown, in
tort, contract, by statute, or on any other
basis for compensatory, punitive, or other
damages, attorneys' fees, expenses,
reimbursements or costs of any kind which
you have or may have as of the date you sign
this Agreement, including but not limited to
any and all federal, state and local law
claims, whether statutory or common law,
including, but not limited to claims under
Title VII of the Civil Rights Act of l964,
the Civil Rights Act of l966, the Civil
Rights Act of l99l, the Age Discrimination
in Employment Act of l967, the Employee
Retirement Income Security Act of l974, the
Americans With Disabilities Act, the Federal
Family and Medical Leave Act, Executive
Orders 11246 and 11141, the New Jersey Law
Against Discrimination, the New Jersey
Conscientious Employee Protection Act, the
New Jersey Family Leave Act and any and all
claims of wrongful discharge, constructive
discharge, breach of contract, or of
employment discrimination on any basis,
including race, color, sex, religion,
national origin, age, disability or
handicap, affectional preference or sexual
orientation, marital status or veterans'
status; and
(ii) except as may be necessary to enforce this
Agreement or as otherwise permitted by law,
not to file a lawsuit or any charges of
discrimination alleging any claims against
any of the Releasees.
d. You acknowledge that you have an obligation of
confidentiality and nondisclosure with respect to any
and all confidential information and trade secrets
that you acquired during the course of your
employment with the
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Company. You will immediately return all confidential
information and property belonging to or generated by
or for the use of the Company, including physical or
personal property, and including confidential
documents which you received or prepared or helped
prepare during your employment with the Company, and
you will not retain any copies, duplicates,
reproductions or excerpts thereof.
e. Except as provided in Paragraph 6 of this Agreement,
you agree not to discuss the terms of this Agreement,
or the existence of this Agreement, with any person
or entity whatsoever, including, but not limited to,
any employee or contractor of the Company (or of any
of the subsidiaries or affiliates of the Company) or
with any employee of another organization doing
business with the Company (or with any of the
subsidiaries or affiliates of the Company), without
the prior written consent of the Company, which
consent shall not be unreasonably withheld, except
(l) with your spouse and immediate family; (2) as
necessary in the course of preparing and filing tax
returns, or in financial planning; or (3) in any
legal proceeding relating to or based upon the terms
of this Agreement. Notwithstanding the foregoing, you
shall have the right to advise any prospective
employer or agent of a prospective employer that you
and the Company agreed on a severance arrangement,
the terms of which are confidential. You shall also
have the right to advise any prospective employer
that there are no restrictions on your ability to
secure employment with any such prospective employer.
f. During the period ending March 1, 2003, the Company
shall be entitled to such of your services as a
consultant as the Company may from time to time
reasonably request, having regard to your health,
residence and personal circumstances, in connection
with any matter on which you were working at the time
of the termination of your employment or with respect
of which you might be expected to have special
competence by reason of your employment with the
Company or a subsidiary or otherwise. Consulting
services may not be required to the extent that the
performance of such services would interfere with
your seeking, accepting or performing employment
elsewhere. You shall not be paid compensation (other
than the payments set forth in Paragraph 2a of this
Agreement) for such consulting services.
g. You expressly agree that you will not at any time
disparage the Company, its subsidiaries or
affiliates, or their officers, directors or trustees,
and that
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you otherwise will not take any action opposed to the
best interests of the Company, its subsidiaries or
affiliates, or their officers, directors or trustees.
4. The provisions of this Agreement are severable and, if any
part or subpart is found to be unenforceable, the other
portions shall remain fully valid and enforceable. In the
event that you breach any of your affirmative obligations
under this Agreement, the Company may, in addition to any
other remedies it may have at law or in equity, suspend all
payments to you or on your behalf until such time as you have
remedied your failure to honor your obligations. This
Agreement sets forth our complete agreement regarding your
employment with the Company and with regard to the termination
of that employment, and this Agreement shall supersede any
prior Agreements between us. This Agreement shall survive the
termination of any arrangements contained herein, and this
Agreement may not be varied or amended in any regard except in
a writing signed by both of us.
5. You acknowledge that the payments and benefits being provided
to you under this Agreement are in excess of any payments or
benefits to which you otherwise would be entitled.
6. If you sign this Agreement, you will be giving up important
rights. Accordingly, we strongly advise you to discuss all
aspects of this Agreement with an attorney of your own
choosing. By your signature, you represent and agree that you
fully understand the importance of this Agreement and your
right to discuss this Agreement with an attorney of your own
choosing. By your signature, you also represent and agree
that, to the extent, if any, which you desire, you have taken
advantage of your right to consult with an attorney, that you
have carefully read and fully understand all of the provisions
of this Agreement, and that you are voluntarily entering into
this Agreement.
7. This Agreement will be governed by the laws of the State of
New Jersey.
8. You have twenty-one (21) days from the date you receive this
Agreement to decide whether to sign this Agreement. If you do
sign this Agreement, you will have seven (7) days from the
date you sign it to withdraw your consent to the terms of this
Agreement. If you change your mind, you must send written
notice of your decision to me, so that I receive your
revocation no later than the seventh day after you originally
signed the Agreement. If you do not revoke the Agreement
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October __, 2001
within this time, the Agreement will become effective on the
eighth day after you originally signed (that eighth day is
also referred to in this Agreement as the "Effective Date").
9. This Agreement shall inure to the benefit of the Company, its
successors and assigns; and to you, your heirs, successors,
and assigns.
If this letter correctly sets forth our agreement, please sign and date
the enclosed copy and return it to me in the envelope provided.
Sincerely yours,
Xxxxxx X. Xxxxxxx
Chairman, Chief Executive Officer and President
Xxxxxxx-Xxxxxx Corporation
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Xxxxxx X. Xxxx
Agreed this _____ day of _________________, 2001.
