TERMINATION AGREEMENT
This Agreement is made by and between Xxxxx Consulting, Inc., a
Delaware corporation, formerly known as Xxxxx Technology Group, Inc. ("Xxxxx"),
having its principal office at 000 X. Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000-0000, and Xxxxxx X. Xxxxxx, an individual ("Xxxxxx"), residing at
0000 X. Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000.
Whereas, Xxxxxx has been employed by Xxxxx since November 1, 1998, pursuant
to a certain Executive Employment Agreement, effective as of November 1, 1998,
by and between Xxxxxx and Xxxxx (the "Employment Agreement");
Whereas, Xxxxxx currently holds 66,874 shares of common stock of Xxxxx (the
"Company Stock") as the result of exercises of stock options granted under the
1998 Executive Long Term Stock Investment Plan (the "1998 Executive Plan")
and/or the 1998 Employee Long Term Stock Investment Plan (the "1998 Employee
Plan");
Whereas, Xxxxxx holds stock options under the 1998 Executive Plan and the
1998 Employee Plan, the vesting details of which are as set forth in Section
4.f. below; and
Whereas, Xxxxx and Xxxxxx have successfully conferred and pursuant to the
terms of this Agreement, have resolved all differences between them.
Accordingly, in consideration of the premises, mutual promises, agreements,
and covenants contained herein, the receipt and sufficiency of which is hereby
acknowledged, Xxxxx and Xxxxxx agree as follow:
1. Xxxxx and Xxxxxx, by execution of this Agreement, agree to the termination of
Xxxxxx'x employment at Xxxxx, effective no later than 5:00 p.m., Chicago time,
on April 30, 2001. Xxxxxx'x employment at Xxxxx will terminate prior to April
30, 2001, in the event Xxxxxx accepts employment with an employer other Xxxxx.
Xxxxxx will immediately upon acceptance of employment with an employer other
than Xxxxx provide to Xxxxx at least three (3) business days' written notice of
his termination of employment. For purposes of this Agreement, "Termination
Date" shall mean the earlier of April 30, 2001, or the date Xxxxxx'x employment
is otherwise earlier terminated pursuant to this Section 1. The termination of
Xxxxxx'x employment prior to April 30, 2001, will not have any effect on the
payment provisions of Section 2 below, other than as set forth herein.
2. Xxxxx will pay to Xxxxxx the following:
a. six (6) payments equal to Xxxxxx'x normal semi-monthly salary for the
period of February 1, 2001 to April 30, 2001, in the amount of $13,125.00
per semi-monthly period (less normal employee payroll deductions for
federal, state and local income taxes, Medicare, FICA, medical benefits,
cafeteria plan, retirement savings plan, etc.) on Xxxxx'x normal payroll
dates (Payments under this provision for periods or partial periods
occurring after the Termination Date will be consolidated into one (1) lump
sum payment without deductions for medical benefits, cafeteria plan, or
retirement savings plan, to be made within six (6) business days after the
Termination Date.);
b. the sum of $30,692.00 (less normal payroll deductions for
federal, state and local income taxes, Medicare, and FICA), within six (6)
business days after the Termination Date;
c. reimbursement of legitimate Xxxxx-business expenses, if any, for the
period of February 1, 2001 through the Termination Date, provided
appropriate expense reports with receipts are submitted in a timely
fashion, to be paid in the normal reimbursement cycle;
x. Xxxxxx will receive and be permitted to keep the Xxxxx-issued Dell
Latitude CPi laptop personal computer, service tag no. Z9126, including the
standard accessories and PCM-CIA modem, but excluding the PCM-CIA network
card and all Xxxxx-owned or Xxxxx-licensed software (such software to be
removed, and Dell Computer Corp. to be notified that Xxxxxx is the new
owner of the computer);
e. On the first business day following the Termination Date, all of the
vested and unexercised option shares referenced in Section 4.f. below, will
terminate and Xxxxxx will receive from Xxxxx as compensation for
termination of the vested and unexercised option shares the sum equal to
$3.00 per share. Payment under this provision (less normal payroll
deductions for federal, state and local income taxes, Medicare, and FICA)
will be made within six (6) business days after the Termination Date; and
x. Xxxxxx may elect to sell to Xxxxx all or a portion of his Company Shares
for the sales price of $6.00 per share, provided that Xxxxxx provides
written notice of his election hereunder (specifying the number of shares
to be sold) not later than the close of business on first business day
following the Termination Date. Payment under this provision (less normal
payroll deductions for federal, state and local income taxes, Medicare, and
FICA) will be made within six (6) business days after the Termination Date.
3. Xxxxx will continue to provide the current Xxxxx provided medical benefits to
Xxxxxx until the Termination Date. Xxxxx will make medical benefits available to
Xxxxxx after Termination Date, pursuant to Xxxxx'x COBRA provisions (Xxxxxx will
be responsible for payment of medical benefits premiums under COBRA provisions).
4. Xxxxxx, in consideration of the foregoing, expressly agrees that:
x. Xxxxxx will immediately upon acceptance of employment with an employer
other than Xxxxx provide to Xxxxx at least three (3) business days' written
notice of his termination of employment.
x. Xxxxxx will not knowingly, directly or indirectly, disclose and will use
due care and take all reasonable precautions to prevent disclosure of any
Confidential Information of Xxxxx (as the term, "Confidential Information"
is defined in the Agreement Regarding Confidentiality and Non-Competition
by and between Xxxxx and Xxxxxx). The obligation under this subsection
shall not apply to (1) information which, at the time of disclosure, was
published, known publicly, or otherwise in the public domain; (2)
information which, after disclosure or transfer, is published, becomes
known publicly, or otherwise becomes part of the public domain through no
fault of the Xxxxxx; (3) information which, prior to the time of
disclosure, use or transfer, is otherwise known to Xxxxxx as evidenced by
his written records; (4) information which is subsequently independently
developed by Xxxxxx without recourse to Confidential Information and
without Xxxxxx having violated any of his obligations under this
subparagraph or other Agreement; and (5) information, which, after
disclosure, use or transfer, is made available to Xxxxxx in good faith by a
third party under no obligation of confidentiality.
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c. For the period beginning with the execution of this Agreement and ending
on April 30, 2002, Xxxxxx will not directly or indirectly, for himself or
others, knowingly induce any employee of Xxxxx or any of its affiliates to
terminate his or her employment with Xxxxx or its affiliates, or knowingly
hire or assist in the hiring of any such employee by any person,
association, or entity not affiliated with Xxxxx.
d. For the period beginning with the execution of this Agreement and ending
on April 30, 2002, Xxxxxx will not knowingly provide services for current
clients of Xxxxx to whom he was first introduced during his employment as a
result of the nature of his work in his practice area at Xxxxx. A current
client is defined as a company to which Xxxxx has provided services or
products within the one (1) year period prior to the Termination Date.
x. Xxxxxx will resign his position as a director of Xxxxx, effective no
later than the Termination Date.
f. In regard to all Xxxxx-issued stock options to purchase common shares
of Xxxxx stock:
(1) On the Termination Date (assuming no option exercises by Xxxxxx
prior to the Termination Date), Xxxxxx will have the following vested
stock options:
Shares Vested Exercise Price
Grant Date Option Plan and Unexercised per Share
--------------- ----------------- --------------- --------------
Nov. 1, 1998 1998 Executive 99,999 $3.00
Aug. 10, 1999 1998 Employee 875 $7.00
Xxxxxx holds no other Xxxxx-issued vested options and there will be no
further or additional vesting of shares under the above option grants,
other than as provided in Section 4.f.(2) below.
(2) In the event Xxxxx'x board of directors prior to the Termination
Date approves a business transaction resulting in a Change of Control
(as the term "Change of Control" is defined in the Employment
Agreement), Xxxxxx will have 8,333 additional shares under the November
1, 1998 Option Grant at the Exercise Price of $3.00 per share in the
1998 Executive Long Term Stock Investment Plan vesting and unexercised
on of the Termination Date.
5. Xxxxxx, for Xxxxxx, and Xxxxxx'x heirs and assigns, hereby releases and
forever discharges Xxxxx, all of Xxxxx'x subsidiaries, related companies,
predecessors and successors, and all of their respective shareholders,
directors, officers, employees, and representatives, and all of their heirs,
executors, and administrators, of and from any and all actions, causes of
action, suits, charges of unlawful conduct, promises, damages, and demands
whatsoever, in law or in equity, which Xxxxxx now has against them or ever had,
or which Xxxxxx'x heirs, executors, or administrators thereafter can, shall, or
may have, on or at any time prior to the date of this Agreement, including,
without limiting the generality of the foregoing, and subject to the provisions
of Paragraph 8 below:
a. all claims of any kind premised upon any actual or implied agreement,
contract, promise, written or oral statement of any kind whatsoever,
including the Employment Agreement, or
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the alleged breach thereof, including any and all claims for
compensation, salary, commissions, bonuses, paid time off, paid holidays,
vacation days, sick days, severance pay, long-term incentive compensation
of any kind, retirement, health insurance, long-term disability, AD&D, or
life insurance and any other benefit plan rights or payments;
b. any and all claims of wrongful termination of employment, discrimination
of any kind whatsoever, including but limited to all claims arising under,
or based on any conduct that violates Title VII of the Civil Rights Act of
1964, as amended, the Fair Labor Standards Act, as amended, the Age
Discrimination in Employment Act of 1967, the Americans with Disabilities
Act, and the National Labor Relations Act, as amended;
c. any and all claims arising under or based on any conduct that violates
any provisions of the Constitutions, statutory laws, orders, regulations,
common laws, or public policy of the United States of America or any state
or political subdivision thereof, or any foreign government;
d. any and all claims of any kind whatsoever arising out of, related
to, or connected with Xxxxxx'x employment with Xxxxx, the termination of
such employment, or the failure or refusal of Xxxxx to hire or reinstate
Xxxxxx;
e. any and all claims arising under the Employee Retirement Income
Security Act; and
f. any and all claims of any kind for attorney's fees or costs in
connection with any case, controversy, claim, charge, or otherwise, except
such claim related to a breach of this Agreement.
6. Xxxxx, for itself, its successors and assigns, hereby releases and forever
discharges Xxxxxx, and Xxxxxx'x heirs and assigns, of and from any and all
actions, causes of action, suits, charges of unlawful conduct, promises,
damages, and demands whatsoever, in law or in equity, which Xxxxx now has
against or ever had, or which its successors hereafter can, shall, or may have,
on or at any time prior to the date of this Agreement, including, without
limiting the generality of the foregoing, and subject to the provisions of
Paragraph 8 below:
a. all claims of any kind premised upon any actual or implied agreement,
contract, promise, written or oral statement of any kind whatsoever,
including the Employment Agreement, or the alleged breach thereof;
b. any and all claims of wrongful termination of employment, discrimination
of any kind whatsoever, including but limited to all claims arising under,
or based on any conduct that violates Title VII of the Civil Rights Act of
1964, as amended, the Fair Labor Standards Act, as amended, the Age
Discrimination in Employment Act of 1967, the Americans with Disabilities
Act, and the National Labor Relations Act, as amended;
c. any and all claims arising under or based on any conduct that violates
any provision of the Constitution, statutory laws, orders, regulations,
common laws, or public policy of the United States of America or any state
or political subdivision thereof, or any foreign government;
d. any and all claims of any kind whatsoever arising out of, related to, or
connected with Xxxxxx'x employment with Xxxxx, the termination of such
employment, or the failure or refusal of Xxxxxx to continue to provide
services to Xxxxx, after the date set forth herein;
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e. any and all claims arising under the Employee Retirement Income
Security Act; and
f. any and all claims of any kind for attorney's fees or costs in
connection with any case, controversy, claim, charge, or otherwise, except
for such claims related to a breach of this Agreement.
7. The following covenants are material to this Agreement:
x. Xxxxxx will, subject to Section 2.d. above, not later than the
Termination Date return to Xxxxx all Xxxxx-issued or Xxxxx-purchased
property currently in Xxxxxx'x possession or control, including, without
limitation, computers and accessories, manuals, courseware, marketing
materials, data, information, software, other hardware, codes, company
issued credit cards, telephone and long-distance cards, office, desk and
cabinet keys, and all key cards, and as of his last day of employment,
refrain from any further use of Xxxxx access, long distance, and/or key
codes.
x. Xxxxxx will cooperate fully with Xxxxx with regard to the transition of
any of Xxxxxx'x work and/or responsibilities, and all turnover of the
aforementioned property and any information that should be made available
to Xxxxx.
8. The confidentiality of information, non-solicitation, and non-competition
provisions of Paragraph 4 and the covenants of Paragraph 7 above will survive
this Agreement and will be binding upon Xxxxxx.
9. This Agreement constitutes a full accord and satisfaction of any and all
claims arising out of injury or damage to Xxxxxx that he may have against Xxxxx.
10. The undersigned further represent that no promise, inducement or agreement
not herein expressed has been made and that this Agreement contains the entire
agreement between the parties. All agreements and understandings between the
parties are expressed herein and the terms of this Agreement are contractual and
not mere recitals and are made in order for the releases to rely upon them in
effecting the compromise.
11. Should any provisions of this Agreement be declared or determined by any
Court to be illegal or invalid, the validity of the remaining parts, terms or
provisions will not be affected thereby and said illegal or invalid part, term
or provision will be deemed not to be a part of this Agreement.
12. In the event of a breach of this Agreement, the breaching party will be
liable to the non-breaching party for all cost, expense and fees incurred due to
said breach, including, without limitation, reasonable to attorney's fees and
court costs.
13. This Agreement sets out the full consideration being paid to Xxxxxx by Xxxxx
for the entering into and signing of this Agreement.
14. The terms and conditions of this Agreement are confidential and are not to
be disclosed by either party to this Agreement, or any other person or entity,
except to the extent necessary to enforce such terms and conditions, or as may
be required by securities laws.
15. This Agreement shall be construed under the laws of the state of
Illinois, and is to be performed in Xxxx County, Illinois.
16. The Compensation Committee of the Board of Directors of Xxxxx has
authorized execution
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of this Agreement.
17. THE UNDERSIGNED HAVE READ THIS AGREEMENT CAREFULLY. THE AGREEMENT
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
Executed in multiple originals the 13th day of February, 2001.
Xxxxx Consulting, Inc.
By: /s/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx
Chief Executive Officer and President
/s/ XXXXXX X. XXXXXX
Xxxxxx X. Xxxxxx
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