EXHIBIT NO. 10.2
November 6, 2000
Xxxxxxx X. Xxxxx
Xxxxxx Technology, Inc.
X.X. Xxx 000
00 Xxxxxxxxxx Xxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Dear Xxxx:
This letter agreement (this "Agreement") constitutes the
entire agreement between Gerber Scientific, Inc. (the "Company"),
Gerber Technology, Inc., a wholly owned subsidiary of the Company
("Gerber Technology"), and you regarding the separation of your
employment relationship with the Company and Gerber Technology.
1. Resignation and Retirement. The Company, Gerber
Technology and you agree that, effective December 1, 2000, you
shall cease to be employed as Senior Vice President of the
Company and as President of Gerber Technology and that you will
voluntarily resign from such offices effective as of such date by
executing the letter of resignation attached hereto as Exhibit A.
The Company, Gerber Technology and you agree that you will
continue to be a full time employee of Gerber Technology for the
period from December 1, 2000 through May 31, 2002 (the "Interim
Period"), with the title of Chairman and with such duties as
determined by the Board of Directors or Chief Executive Officer
of the Company or the Board of Directors of Gerber Technology
and, in such capacity, you will continue to be subject to all
company policies relating to employees and executives of Gerber
Technology. Effective as of May 31, 2002 (the "Separation
Date"), you shall retire and resign from employment with Gerber
Technology with such benefits as you will then otherwise be
entitled to receive under the Company's benefit plans.
2. Interim Compensation. Subject to the other terms and
conditions set forth in this Agreement, from December 1, 2000
through the Separation Date the Company or Gerber Technology, as
applicable, shall provide you with the following compensation and
benefits:
(a) Gerber Technology will provide you with the same
monthly payments and benefits as you would otherwise have been
entitled to receive under the Severance Policy for Senior
Officers of Gerber Scientific, Inc. and its Domestic Subsidiaries
had your employment been terminated on November 30, 2000. Since
you will continue to be an employee of Gerber Technology through
the Separation Date, these monthly payments will be paid in
accordance with the Company's normal payroll procedures and
subject to normal deductions for taxes, benefit program
contributions and other payroll deductions.
(b) You shall be eligible to participate in all
company medical, dental and life insurance and benefit and 401(k)
plans in accordance with current terms thereof. In addition, you
shall be entitled to all other fringe benefits that you currently
receive from Gerber Technology, including but not limited to
maintenance of an appropriate office and use of a company car.
(c) You shall be entitled to a special payment of
$86,042, to be paid on or before December 15, 2000. This special
payment will be considered compensation for the purposes of
determining both pension and 401(k) eligible compensation.
3. Health Insurance after Termination. You shall be
entitled to participate in the Company's health insurance plan at
your expense pursuant to COBRA upon termination of your
employment with Gerber Technology until you reach the age of 65.
4. Retirement or Other Employment Prior to the Separation
Date. If, during the Interim Period, (a) you retire or resign
from employment with Gerber Technology or (b) you become employed
by any other person not in violation of Section 11 of this
Agreement, which employment prevents you from fulfilling your
commitment to the Company and/or Gerber Technology hereunder, as
determined by the Company or Gerber Technology, as applicable, in
its reasonable discretion, then, in lieu of any further
compensation or benefits pursuant to Section 2 above, you shall
be entitled to receive a lump sum payment of 50% of the remaining
unpaid compensation to which you otherwise would have been
entitled from the date of such retirement, resignation or
employment until the Separation Date under the terms set forth
herein. Any such lump sum payment shall be considered
compensation for purposes of determining pension or 401(k)
benefits.
5. Death. If you should die while any amount would still
be payable to you hereunder if you had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms set forth in this Agreement to your
devisee, legatee or other designee or, if there is no such
designee, to your estate.
6. Expense Reimbursement. On or before May 31, 2002, you
shall submit final documented expense reports reflecting all
reimbursable travel, entertainment and other business expenses
that you have incurred up to and including the Separation Date,
if any, for which you seek reimbursement. The Company or Gerber
Technology, as applicable, shall reimburse your expenses pursuant
to company policy and regular business practice.
7. Company Property. You agree that on the Separation
Date or such earlier date as you resign, retire or become
employed in the manner indicated in Section 4 above you shall not
retain or destroy, and will return to the Company or Gerber
Technology, as applicable, any and all property of the Company or
Gerber Technology, as the case may be, in your possession or
subject to your control on such date, including but not limited
to keys, credit and identification cards, computers, client files
and information, all other files and documents relating to the
Company or Gerber Technology, their respective plans or business,
contracts, personal items or equipment provided to you for your
use, together with all written or recorded materials, documents,
computer disks, plans, records, notes or other papers belonging
to the Company or Gerber Technology. You agree not to make,
distribute or retain any such information or property.
8. Release of Claims by Employee. Except as otherwise set
forth in this Agreement, you hereby release, acquit and forever
discharge the Company and its affiliates, and their successors
and assigns, and any and all current, former and future
directors, officers, agents, attorneys, servants, employees and
shareholders thereof, of and from any and all claims,
liabilities, demands, causes of action, costs, expenses,
attorney's fees, damages and obligations of every kind and
nature, in law, equity or otherwise, known and unknown, suspected
and unsuspected, disclosed and undisclosed, arising out of or in
any way related to agreements, events, acts or conduct at any
time prior to and including the date hereof, including but not
limited to any and all: (a) claims and demands directly or
indirectly arising out of or in any way connected with your
employment; (b) claims or demands related to salary, bonuses,
commissions, stock, stock options, or any other ownership
interests in the Company, vacation pay, fringe benefits, expense
reimbursements, sabbatical benefits, severance benefits, or any
other form of compensation; (c) claims pursuant to any federal,
state or local law or cause of action, including but not limited
to the Civil Rights Act of 1964, as amended, the Age
Discrimination in Employment Act of 1967, as amended ("ADEA"),
the Americans with Disabilities Act of 1990, as amended, tort
law, contract law, wrongful discharge, discrimination, fraud,
defamation, emotional distress and breach of the implied covenant
of good faith and fair dealing; and (d) claims or demands for
future damages based on the alleged continuation of the effects
of any such past agreements, events, acts or conduct.
Notwithstanding the above, you do not release any claims you may
have (i) under this Agreement, (ii) for indemnification pursuant
to and in accordance with applicable statutes and the applicable
terms of the charters, articles of incorporation or bylaws of the
Company or any of its affiliates, or (iii) for accrued and vested
benefits under the terms of applicable employee benefit plans.
9. ADEA Waiver. You acknowledge that you are knowingly
and voluntarily waiving and releasing any rights you may have
under the ADEA, and that the terms of this Agreement have been
written in a manner that you understand. You also acknowledge
that the consideration given for the waiver herein is in addition
to anything of value to which you were already entitled. You
further acknowledge that you have been advised in this writing
that: (a) your waiver and release does not apply to any claims
that may arise after you sign this Agreement; (b) you have the
right to consult with an attorney prior to executing this
Agreement and have done so; (c) you have twenty-one (21) days
within which to consider the agreement set forth in this
Agreement (although you may choose to voluntarily execute this
Agreement earlier); (d) you have seven (7) days following the
execution of this Agreement to revoke this Agreement; (e) this
Agreement shall not be effective until the date upon which the
revocation period has expired, which shall be the eighth day
after this Agreement is executed by you.
10. Nonsolicitation. You agree that so long as you are
employed by Gerber Technology and for a period of one (1) year
thereafter, you will not, either directly or through others,
solicit or attempt to solicit any person (including any entity)
who is then an employee, consultant or independent contractor of
the Company or any of its affiliates to terminate his, her or its
relationship with the Company in order to become an employee,
consultant or independent contractor to or for any other person
or entity.
11. Noncompetition. You agree that so long as you are
employed by Gerber Technology and for a period of one (1) year
thereafter, you will not engage, directly or indirectly, whether
as principal, agent, distributor, representative, consultant,
employee, partner, stockholder, limited partner or other investor
(other than an investment of not more than 2% of the stock or
equity of any corporation the capital stock of which is publicly
traded) or otherwise, in the same or a substantially similar
business as that conducted and carried on by the Company or any
of its affiliates and being directly competitive with the Company
or any of its affiliates at any time during such period.
12. Confidential Information. You shall hold in a
fiduciary capacity for the benefit of the Company and/or Gerber
Technology all secret or confidential information, knowledge or
data relating to the Company, Gerber Technology, the other
subsidiaries of the Company and their respective businesses,
which shall have been obtained during your employment by the
Company and/or Gerber Technology and which shall not be public
knowledge (other than by acts by you or your representatives in
violation of this Agreement). After termination of your
employment with the Company and/or Gerber Technology, you shall
not, without prior written consent of the Company or Gerber
Technology, as applicable, communicate or divulge any such
information, knowledge or data to anyone other than the Company,
Gerber Technology or those designated by them. The preceding two
sentences shall not apply with respect to any information you are
required to disclose pursuant to a valid and effective subpoena
or order issued by a court of competent jurisdiction or with
respect to any information you are reasonably required to
disclose in enforcing the terms of this Agreement.
13. Cooperation with Claims. (a) You agree that you will
personally provide reasonable assistance and cooperation to the
Company and Gerber Technology in activities related to the
prosecution or defense of any pending or future lawsuits or
claims involving the Company or Gerber Technology, as the case
may be.
(b) You will promptly notify the Company or Gerber
Technology, as applicable, if you receive any requests from
anyone other than an employee or agent of the Company or Gerber
Technology for information regarding the Company or Gerber
Technology or if you become aware of any potential claim or
proposed litigation against the Company or Gerber Technology.
(c) You will refrain from providing any information related
to any claim or potential litigation against the Company or
Gerber Technology to any other person without either the
Company's or Gerber Technology's, as applicable, written
permission or being required to provide information pursuant to
legal process.
(d) If required by law to provide sworn testimony regarding
any matter related to the Company or Gerber Technology, you will
consult with and have legal counsel designated by the Company or
Gerber Technology, as applicable, present for such testimony.
The Company or Gerber Technology, as applicable, will be
responsible for the costs of such designated counsel and you will
bear no cost for same. You will confine your testimony to items
about which you have knowledge rather than speculation, unless
otherwise directed by legal process. You will cooperate with the
Company's or Gerber Technology's, as applicable, attorneys to
assist their efforts, especially on matters you have been privy
to, holding all privileged attorney-client matters in strictest
confidence.
Nothing in subsection (c) or (d) above is intended to apply
to governmental or judicial investigations; provided, however,
that the Company will reimburse you for reasonable personal and
legal expenses incurred by you if you are compelled to appear in
a governmental or judicial investigation.
14. Other Compensation and Benefits. Except as expressly
provided herein, you acknowledge that you will not receive (nor
are you entitled to) any additional compensation, severance,
stock options, stock or benefits from the Company or any of its
affiliates, notwithstanding any prior agreements to the contrary;
provided that to the extent that you hold stock options granted
under the Stock Option Plan, you shall continue to have the
rights and benefits provided by such options and the Stock Option
Plan, including any right to be granted reload options to the
extent permitted under the terms of such options and the Stock
Option Plan. The benefits provided under this Agreement shall be
in lieu of any termination, separation, severance or similar
benefits. If you were to be entitled to change in control
benefits as provided in the Gerber Technology CIC Agreement and
the letter agreement dated as of July 16, 1999 between the
Company and you (the "Company CIC Agreement"), any amount paid
under this agreement would be deducted from change in control
monies owed.
15. Termination of this Agreement. If the Company or
Gerber Technology reasonably determines that you have violated
any of your obligations under this Agreement, then the Company or
Gerber Technology, as the case may be, may, at its option,
terminate the all payments and any other benefits hereunder.
16. Withholding. All payments provided for hereunder shall
be paid net of any applicable withholding required under federal,
state or local law.
17. Amendment. No provision of this Agreement may be
modified, waived or discharged unless such modification, waiver
or discharge is agreed to in writing and signed by the Company,
Gerber Technology and you.
18. Entire Agreement. You acknowledge and agree that you
have read carefully this entire Agreement. You represent and
agree that you fully understand this Agreement, are satisfied
with it, and have signed this Agreement of your own free will and
not as the result of any threats, intimidation or coercion by the
Company or Gerber Technology or any of their respective
representatives. You further acknowledge and agree that any
prior representations, promises or agreements between you, the
Company and/or Gerber Technology relating to the subject matter
of this Agreement are hereby extinguished; that there are no oral
or written representations, promises or agreements between you,
the Company and/or Gerber Technology other than those set forth
herein; and that this Agreement constitutes the entire and only
agreement on the subject matters covered herein.
19. Governing Law. The validity, interpretation,
construction and performance of this Agreement shall be governed
by the laws of the State of Connecticut without regard to
conflicts of law principles thereof.
20. Severability. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or
unenforceability of any other provisions of this Agreement, which
shall remain in full force and effect.
21. Successors and Assigns. This Agreement shall be
binding upon, inure to the benefit of and be enforceable by your
personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. This
Agreement shall also be binding upon, inure to the benefit of and
be enforceable by any successor of the Company or Gerber
Technology by reason of any merger, consolidation or sale of
assets, dissolution, debt foreclosure or other reorganization of
the Company or Gerber Technology.
22. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same
instrument.
If this letter sets forth our agreement on the subject
matter hereof, kindly sign and return to the Company and Gerber
Technology the enclosed copy of this letter, which will then
constitute our agreement on this subject.
Sincerely,
Gerber Scientific, Inc.
By:
----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman of the Board, President and
Chief Executive Officer
Gerber Technology, Inc.
By:
----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:
Understood and Agreed:
---------------------------
Employee: Xxxxxxx X. Xxxxx
----------------------------
Date
, 2000
To The Board of Directors of Gerber Scientific, Inc. and
The Board of Directors of Gerber Technology, Inc.:
I, Xxxxxxx X. Xxxxx, hereby formally tender my resignation
as Senior Vice President and an employee of Gerber
Scientific, Inc. (the "Company") and as President of Gerber
Technology, Inc., a wholly owned subsidiary of the Company
("Gerber Technology"), and note that my resignation is not
the result of any disagreement with the Company or Gerber
Technology relating to their respective operations, policies
or practices. My resignation will be effective as of
December 1, 2000. I am pleased to continue as an employee
and Chairman emeritus of Gerber Technology, as provided in
that certain letter to me from Xxxxxxx X. Xxxxxxxx dated
November 6, 2000.
Sincerely,
Xxxxxxx X. Xxxxx
