Exhibit 10.1
SEPARATION AGREEMENT
This Separation Agreement (the "Agreement") is made this 3rd day of May, 2006,
by and between Essex Corporation, incorporated under the laws of Virginia,
("Corporation"), with a place of business at 0000 Xxxxxxxxx Xxxx Xxxxx,
Xxxxxxxx, Xxxxxxxx, 00000, and Xxxxxxx X. Xxxx, ("Xx. Xxxx" or "Employee").
WHEREAS, Xx. Xxxx was employed by Essex Corporation beginning on January 10,
2005. Xx. Xxxx'x title was Executive Vice President /Windermere Chief Operations
Officer ("COO"), assigned to the Corporation's subsidiary, Windermere
Information Technology Systems, LLC located at 0000 Xxxxxxxxxx Xx., Annapolis.
Md. 21401 ("Windermere").
WHEREAS, on April 28th, 2006, the Corporation and Xx. Xxxx met and mutually
agreed to terminate the employment relationship.
NOW, THEREFORE, in consideration of the mutual promises and covenants made
herein, the Corporation and Xx. Xxxx (collectively referred to as the "Parties")
hereby agree as follows:
The Parties agree that on April 28, 2006, the Corporation allowed Xx. Xxxx to
resign as Executive Vice President/Windermere COO and terminated his employment
with the Corporation effective on that date (the "Resignation Date"). From that
date, he shall have no authority to represent himself as an employee or agent of
the Corporation or any of its affiliates.
1. CONFIDENTIALITY/NON-SOLICITATION/OTHER OBLIGATIONS.
(a) Xx. Xxxx expressly acknowledges and agrees that he has returned to the
Corporation all Corporation and Windermere documents (and any copies
thereof, including those that are third party business related, and
proprietary and confidential) and all physical property (including but
not limited to: hard drives, floppy discs; blackberry; cell phone;
computers; laptops; desks) and other property purchased with Corporate
or Windermere funds. Furthermore, for one year beginning on March 1,
2006, he shall also abide by the provisions of the Non-Disclosure and
Non-Solicitation provisions found in Attachment A of this Agreement
which shall survive the signing of this Agreement.
(b) Xx. Xxxx expressly acknowledges and agrees that he will not, without
the Corporation's express authorization, access, attempt to access or
otherwise interfere with Corporation electronic information systems,
including but not limited to Corporation's computer, voicemail, or
email systems.
2. FUTURE COOPERATION.
Xx. Xxxx further agrees, except as provided for herein, that he shall
cooperate fully with the Corporation in connection with any claim filed
against or on behalf of the Corporation relating to his employment or
events that occurred during his employment of which he had particular
and identifiable knowledge, including any claims or actions against the
Corporation's officers, directors and employees. His cooperation in
connection with the above described claims shall include, without
limitation, being available, upon reasonable notice, to meet with Essex
and or Windermere regarding matters in which he has been involved, and
any contract matters or audits; to prepare for
any proceeding (including, without limitation, depositions,
consultations, discovery or trial); to provide affidavits; to assist
with any inspection, proceeding or other inquiry; and to act as a
witness in connection with any litigation or other legal proceeding
affecting the Corporation (including Windermere). Notwithstanding the
forgoing, Xx. Xxxx shall not be required to cooperate if the claim 1)
is in regards to any dispute between the Xxxx Family Equity and Bonus
Program Joint Venture or the Sellers, as the term "Sellers" is defined
by the Purchase Agreement between Windermere and the Corporation, and
the Corporation or any of its employees, officers or directors; 2) the
cooperation would create an undue financial burden on Xx. Xxxx, as
determined in his sole discretion; or 2) Xx. Xxxx determines, upon the
advice of counsel, that his interests are adverse to those of the
Corporation with respect to the particular claim filed against or on
behalf of the Corporation. Xx. Xxxx shall be reimbursed for any
reasonable out-of-pocket expenses incurred in connection with
providing such cooperation under this Section. Xx. Xxxx will cooperate
with the Corporation in providing information with respect to all
reports required to be filed by the Corporation with the Securities
and Exchange Commission as they relate to required information with
respect to Xx. Xxxx.
RELEASE OF CLAIMS. Xx. Xxxx, on behalf of himself, his heirs,
personal representatives and assigns, and any other person or
entity that could or might act on his behalf (all of whom are
collectively referred to herein as the "Releasers"), hereby
agrees and acknowledges that in consideration of the Parties'
execution to this Agreement and by accepting the gross payment of
$19,461.18 (based upon an hourly rate of $105.77), reduced by any
applicable tax withholding, and other good and valuable
consideration provided for in this Agreement, he is waiving his
right to assert any form of legal claim, except defamation or
similar cause of action, against the Corporation, past or present
affiliates, assignees, subsidiaries, employees, directors,
officers and agents for any alleged action, inaction or
circumstance existing or arising from the beginning of his
employment through the Resignation Date related to his employment
and/or termination of employment with Corporation. The Releasers'
waiver and release herein is intended to forever bar and
discharge any form of legal claim, charge, complaint or any other
form of action (jointly referred to as "Claims"), except
defamation or similar cause of action, against Corporation
seeking any form of relief including, without limitation,
equitable relief (whether declaratory, injunctive or otherwise),
the recovery of any damages or any other form of monetary
recovery whatsoever (including, without limitation, back pay,
front pay, compensatory damages, emotional distress damages,
punitive damages, attorneys fees and any other costs) against the
Corporation, for any alleged action, inaction or circumstance
existing or arising through the Resignation Date related to his
employment and/or resignation from the Corporation.
Except as provided for above, the Releasers also releases any and
all claims as defined above against the Corporation, its past or
present affiliates or subsidiaries and/or any of their
predecessors or successors, and or any pension or benefit plans
of them and the past or present officers, directors, trustees,
administrators, agents and employees of them
for any actions up to and including the Resignation Date.
Notwithstanding the foregoing, nothing herein shall release the
Corporation or the Releasers or successor or assigns thereof from
the obligations for the performance of the provisions of this
Agreement, it being the intention of the undersigned to effect a
general release of all such claims.
Without limiting the foregoing, the Releasers specifically waive
and release the Corporation from:
(i) Claims under any state or federal discrimination, fair
employment practices or other employment related statute,
regulation or executive order (as they may have been amended
through the Resignation Date) prohibiting discrimination or
harassment based upon any protected status including, without
limitation, race, national origin, age, gender, marital status,
disability, veteran status or sexual orientation. Without
limitation, specifically included in this paragraph are any
Claims arising under the federal Age Discrimination in Employment
Act, the Older Workers Benefit Protection Act, the Civil Rights
Acts of 1866 and 1871, Title VII of the Civil Rights Act of 1964,
the Civil Rights Act of 1991, the Equal Pay Act, the Americans
With Disabilities Act and any similar Maryland or other state
statute.
(ii) Claims under any other state or federal employment related
statute, regulation or executive order (as they may have been
amended through the Resignation Date) relating to wages, hours or
any other terms and conditions of employment. Without limitation,
specifically included in this paragraph are any Claims arising
under the Fair Labor Standards Act, the Family and Medical Leave
Act of 1993, the National Labor Relations Act, the Employee
Retirement Income Security Act of 1974, the Consolidated Omnibus
Budget Reconciliation Act of 1985 (COBRA) and any similar
Maryland or other state statute, including any applicable payment
of wages statutes.
(iii) Claims under any state or federal common law theory
including, without limitation, wrongful discharge, breach of
express or implied contract.
Xx. Xxxx acknowledges that he consulted with an attorney of his
choosing before signing this Agreement, and that he waives the
twenty-one (21) days period to consider the release set forth in
2(i) above. Xx. Xxxx further acknowledges that he has the right
to revoke the provisions set forth at 2(i) above for a period of
seven (7) days after signing this Agreement and that the
provision at 2(i) shall not become effective until such seven
(7)-day period has expired. Xx. Xxxx acknowledges and agrees that
if he wishes to revoke the provision in 2(i), he must do so in
writing, and that such revocation must be signed by Xx. Xxxx and
received by the Corporation in care of the Chief Executive
Officer no later than 5 p.m. (Eastern Time) on the seventh (7th)
day after Xx. Xxxx has signed this Agreement.
3. SEPARATION BENEFITS.
In consideration for the release of claims set forth below and other obligations
under this Agreement, and provided this Agreement is signed by Xx. Xxxx and not
revoked, and further provided that Xx. Xxxx remains in full compliance with his
obligations to the Corporation under this Agreement, the Corporation agrees to
provide the following separation to Xx. Xxxx:
(a) The Corporation shall pay to Xx. Xxxx the xxxxx payment of $19,461.18
(based upon an hourly rate of $105.77), reduced by any applicable tax
withholding.
(b) The Corporation shall retain Xx. Xxxx'x security clearance until May
31, 2006.
(c) Xx. Xxxx shall be held harmless and indemnified for decisions he made
while he was the COO of Windermere, unless his decisions were
reckless, grossly negligent or intentionally incorrect or fraudulent.
(d) Xx. Xxxx may keep his 401K plan with Windermere, however, the
Corporation will not contribute to it;
(e) Xx. Xxxx may retain his rights, title or interest in or to any shares
of the Corporation's stock options as defined in the Essex Corporation
2004 Stock Incentive Plan that were issued to him.
(f) Xx. Xxxx agrees that if he breaches or acts contrary to the
representations and obligations set forth in this release, such a
violation would be deemed to be a material breach of this Agreement.
Immediately upon such breach, Xx. Xxxx shall repay to the Corporation
upon demand, the monies described in Section 3(a) and paid to him
pursuant to this Agreement. The Corporation shall be entitled to
obtain other appropriate relief in the event of Xx. Xxxx'x breach.
(g) Xx. Xxxx acknowledges and agrees that he has:
o consulted with an attorney of his choosing before he signed this
Agreement; and
o the execution of this Agreement is knowing and voluntary.
4. ENTIRE AGREEMENT.
This Agreement and the exhibits hereto represent the entire agreement and
understanding between the Corporation and Xx. Xxxx concerning Xx. Xxxx'x
separation from the Corporation, and supersede and replace any and all prior
agreements and understandings concerning Xx. Xxxx'x relationship with the
Corporation and his compensation from the Corporation.
5. NO ORAL MODIFICATION.
This Agreement may only be amended in writing signed by Xx. Xxxx and the
Corporation.
6. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Maryland, without
regard to its conflicts of law provisions.
7. EFFECTIVE DATE.
This Agreement is effective upon the execution of this Agreement and such date
is referred to herein as the "EFFECTIVE DATE." If this Agreement is executed
with a waiver of the claims, it becomes effective immediately.
8. ASSIGNMENT.
This Agreement may not be assigned by Xx. Xxxx or the Corporation without the
prior written consent of the other party. Notwithstanding the foregoing, this
Agreement may be assigned by the Corporation to a corporation controlling,
company controlled by or under common control with the Corporation without the
consent of Xx. Xxxx.
9. VOLUNTARY EXECUTION OF AGREEMENT.
This Agreement is executed voluntarily and without any duress or undue influence
on the part or behalf of the Parties hereto, with the full intent of releasing
all claims. The Parties acknowledge that: (a) they have read this Agreement;
(b) they understand the terms and consequences of this Agreement and of the
releases it contains.
10.SEVERABILITY.
In case any provision of this Agreement shall be invalid, illegal, or otherwise
unenforceable, the validity, legality and enforceability of the remaining
provisions shall in no way be affected or impaired thereby.
IN WITNESS WHEREOF, the Parties have executed this Separation Agreement on the
respective dates set forth below.
/S/ XXXXXXX X. XXXX 5/3/06
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By: Xxxxxxx X. Xxxx Date
Title: Executive Vice President/Windermere COO
/S/ XXXXXXXXX X. XXXX 5/3/06
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Witness Date
/S/ XXXXXXX X. XXXXXXXXX 5/3/06
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Xxxxxxx X. Xxxxxxxxx Date
Chairman, President and Chief Executive Officer
ESSEX CORPORATION (the Corporation)
/S/ XXXXX X. XXXXXXX 5/3/06
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Witness Date
ATTACHMENT A
1. NON-SOLICITATION: Xxxxxxx Xxxx agrees that while he was employed by
Essex/Windermere and for a period of one (1) year beginning on March 1,
2006, he shall not, directly or indirectly, without the prior written
consent of Essex, which may be withheld at Essex's sole absolute and
subjective discretion, solicit any Essex or Windermere employee to
terminate his/her employment with Essex or Windermere.
2. COVENANT AGAINST DISCLOSURE OF CONFIDENTIAL AND PROPRIETARY INFORMATION:
In addition to all obligations with respect to the observance of U.S.
Government security regulations, Xx. Xxxx understands that it may be
desirable and necessary for Essex/Windermere or any of its suppliers,
licensors, or customers, to disclose to him information relating to the
technology, know-how, products, and business data of Essex/Windermere or
its suppliers, licensors or customers, and he therefore agrees as follows:
CONFIDENTIAL INFORMATION:
a. "Confidential Information" means any information disclosed by
another party, either directly or indirectly, in writing, orally,
or by inspection of tangible objects (including without
limitation documents, prototypes, samples, plant and equipment),
which is designated as "Confidential", "Proprietary", or some
similar designation. Information communicated orally shall be
considered Confidential Information if identified at the time of
disclosure as Confidential Information and confirmed in writing
as being Confidential Information within fifteen (15) days after
the initial oral disclosure. Confidential Information may also
include information disclosed to a receiving party by third
parties. Confidential Information shall not, however, include any
information which, (i) was publicly known and made generally
available in the public domain prior to the time of disclosure by
the disclosing parties; (ii) becomes publicly known and made
generally available after disclosure by the disclosing party to
the receiving party; (iii) is already lawfully in the possession
of the receiving party at the time of the disclosure by the
disclosing party as shown by the receiving party's files and
records immediately prior to the time of disclosure; (iv) is
obtained by the receiving party from a third party without a
breach of such third party's obligations of confidentiality; (v)
is independently developed by the receiving party without use of
or reference to the disclosing party's Confidential Information,
as shown by documents and other competent evidence in the
receiving party's possession; or (vi) is required by law to be
disclosed by the receiving party, provided that the receiving
party gives the disclosing party prompt written notice of such
requirement prior to disclosure and assistance in obtaining an
order protecting the information from public disclosure.
b. Xx. Xxxx agrees to accept and retain such data or information
in confidence and agrees, at all times during and after the
termination of his employment, not to disclose or reveal such
data or information, nor to use, copyright or patent such data
or information, without the prior written consent of the
president of the division or business unit of Essex/Windermere
or his designee. He also agrees to keep the contractual
relationships of Essex/Windermere with its suppliers,
licensors, licensees, customers, contractors and
subcontractors confidential, including the names, addresses,
or special requirements of Essex/Windermere's customers.
3. REMEDIES FOR BREACH: Xx. Xxxx agrees and understands that
Essex/Windermere may suffer irreparable harm in the event that he breach
any of his obligations hereunder and that monetary damages may be
inadequate to compensate Essex/Windermere for such breach. Therefore, Xx.
Xxxx agrees that, in the event of a contained herein, Essex/Windermere, in
addition to and not in limitation of any other rights, remedies or damages
available to Essex/Windermere at law or equity, shall be entitled to a
permanent injunction in order to prevent or to restrain any such breach.
Executed at ANNAPOLIS, MARYLAND , this 3rd day of May 2006
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Employee: /S/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx
For Essex/Windermere /S/ XXXXXXXXX X. XXXX
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(Authorized Human Resources Representative)
