Exhibit 10.2
August 12, 2003
PERSONAL AND CONFIDENTIAL
Xxxx X. Xxxxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Dear Xxxx:
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 August 9, 2004. You shall
receive service credit toward the Company retirement plan for as
long as you continue to receive severance payments. In the event
that you obtain other employment prior to December 31, 2003, you
shall have the right to receive on the later of January 15, 2004
or on the date you become actively employed 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. In addition, you shall have the right to receive on or after
January 1, 2004 any unpaid 2004 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.
Xxxx X. Xxxxxxxx
Page 2
May 9, 2003
b. You will cease to participate in or benefit from the Company's
medical, dental, prescription drug and hospitalization effective
May 9, 2003. 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
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.
c. The Company shall provide you with executive outplacement
services until May 8, 2004, or until you begin employment
elsewhere, whichever occurs first.
d. 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.
e. Currently outstanding but unvested stock options under the Long
Term Incentive Compensation Agreements between the Company shall
vest respectively on the anniversary dates of said Agreements as
though you were actively employed by the Company through October
8, 2004. You shall have until January 8, 2005 to exercise any
vested and unexercised options. You shall also receive pro rata
performance units for which you are eligible under the Plan's
terms and conditions.
f. The Company shall pay you 5/12ths of your 2003 target bonus under
the Company's Modified Incentive Compensation Plan in accordance
with the Plan's terms and conditions. Such payment shall be made
no earlier than October 9, 2003.
g. The Company shall pay you for your accrued and unused vacation
time, which shall be paid in June 2003.
Xxxx X. Xxxxxxxx
Page 3
May 9, 2003
h. The Company will not oppose your receipt of unemployment
benefits, and will not offset any unemployment benefits, which
you may receive against any payments made under this Agreement.
i. The Company shall indemnify you for any act or omission, which
you have taken in the execution of your office as Treasurer of
Xxxxxxx-Xxxxxx Corporation or any of its subsidiaries. Such
indemnification shall be in accordance with all terms and
conditions set forth in Section 9 of the Company's Amended and
Restated Certification of Incorporation.
j. The Company shall continue to provide you with use of the
Company-provided cellular telephone until May 9, 2004 as though
you remained actively employed. You will be responsible for any
monthly cell phone balance in excess of $100, which you shall pay
promptly on a monthly basis.
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. 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 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
Xxxx X. Xxxxxxxx
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May 9, 2003
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.
c. 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 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.
d. 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
Xxxx X. Xxxxxxxx
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May 9, 2003
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.
e. During the period ending May 8, 2004, 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.
f. 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 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.
Xxxx X. Xxxxxxxx
Page 6
May 9, 2003
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. The laws of the State of New Jersey will govern this Agreement.
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
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.
Xxxx X. Xxxxxxxx
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May 9, 2003
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,
Xxxxx X. Xxxxx
Vice President-Finance and Chief
Financial Officer
Xxxxxxx-Xxxxxx Corporation
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Xxxx X. Xxxxxxxx
Agreed this _____ day of _________________, 2003.
