SEVERANCE AGREEMENT AND GENERAL RELEASE
AND
GENERAL RELEASE
This
SEVERANCE AGREEMENT AND GENERAL RELEASE (this “Agreement” or “Agreement and
General Release”) is made between Xxxx X. Xxxxxx (“Xxxxxx” or “Employee”) and
SCI Services, Inc., a Virginia corporation, and its affiliates, subsidiaries,
parent, predecessors, successors, and assigns (referred to herein, collectively
and individually, as “Saxon” or “Company”). For purposes of this document, the
term “Affiliates” means all affiliates including without limitation Saxon
Capital, Inc., a Maryland corporation, and its directly or indirectly
wholly-owned subsidiaries.
REASONS
FOR AGREEMENT AND GENERAL RELEASE
A. Employee
is separating from employment with Saxon.
B. Employee
has agreed to comply with certain non-disclosure, non-disparagement,
non-solicitation and cooperation provisions and provide a release to the Company
in exchange for the consideration from the Company specified below.
AGREEMENT
AND GENERAL RELEASE
For
and
in consideration of the mutual promises and commitments specified herein, the
parties agree as follows:
1. Termination.
Employee separation from employment with Saxon is effective July 14, 2005 (the
“Termination Date”).
2.
General
Release.
In
consideration for the Severance Payment, Employee agrees, for himself
and his heirs, representatives, successors, and assigns, that he has been
finally and permanently separated from employment with Saxon, and that he
waives, releases, and forever discharges Saxon, its owners, shareholders,
directors, officers, employees, and agents, to the maximum extent permissible
by
law, from any and all claims, known or unknown, that he has or may have relating
to or arising out of his employment with Saxon and the termination thereof,
including but not limited to any claims of wrongful discharge, breach of express
or implied contract, fraud, misrepresentation, defamation, liability in tort,
claims of any kind that may be brought in any court or administrative agency,
any claims under Title VII of the Civil Rights Act of 1964, as amended, the
Age
Discrimination in Employment Act, the Older Workers Benefit Protection Act,
the
Employee Retirement Income Security Act, the Family and Medical Leave Act,
or
any other federal, state, or local law relating to Employee’s employment, bonus
plans, employee benefits, or the termination of employment, excepting only
his
vested benefits under Saxon’s 401(K) Plan and any COBRA benefits provided in
accordance with the provisions of this Agreement and General
Release.
3.
Special
Disclosure: Age
Discrimination Release Notification.
The
General Release, paragraph includes a Release of all claims under the Age
Discrimination in Employment Act (“ADEA”) and, therefore, pursuant to the
requirements of the ADEA, Employee
acknowledges and agrees:
(a) that
he
has been advised that this release includes, but is not limited to, all claims
of age discrimination under the ADEA arising up to and including the date of
execution of this release but does not waive rights or claims that may arise
after the date the waiver is executed;
(b) that
he
is hereby advised to consult with an attorney or other advisor of his choosing
before executing this Agreement and General Release concerning his rights and
obligations hereunder;
(c) that
he
has been advised to consider fully this release before executing
it;
(d) that
he
has been offered ample time and opportunity of at least twenty-one (21) days
to
consider the release before executing it; and
(e) that
this
release shall become effective and enforceable seven (7) days following the
executing of this Agreement and General Release by Employee
(the
“Effective Date”), during which seven (7) day period Employee
may
revoke his acceptance of this Agreement and general Release by delivering
written notice of revocation to Saxon Capital, Inc., 0000 Xxx Xxxx, Xxxxx 000,
Xxxx Xxxxx, XX 00000, Attention: General Counsel. No payments with respect
to
the Severance Payment shall be made prior to the expiration of this seven-day
revocation period.
4. Non-Disclosure.
(a)
Nondisclosure of Proprietary Information. At all times during and after
Employee's
employment with the Company, Employee
agrees
to keep in strict confidence and trust all Proprietary Information (as defined
below) and not to use or disclose (or induce or assist in the use or disclosure
of) any Proprietary Information without the prior express written consent of
the
Company. Employee
acknowledges that irreparable injury will result to the Company from
Employee’s
violation or continued violation of the terms of this Section 2, and
Employee
expressly agrees that the Company shall be entitled, in addition to damages
and
any other remedies provided by law, to an injunction or other equitable remedy
respecting such violation or continued violation. For purposes of this Agreement
and General Release, "Proprietary Information" shall mean information generally
unavailable to the public that has been created, discovered, developed or
otherwise become known to the Company or in which property rights have been
assigned or otherwise conveyed to the Company, including any modifications
or
enhancements thereto, which information has material economic value or potential
material economic value to the Company or the business in which the Company
is
or will be engaged. Proprietary Information shall include, but not be limited
to, financial, sales and distribution information; business plans, strategies
and forecasts; lists of employees, employment information, contractors,
customers, agents and independent brokers; trade secrets; processes; formulas;
data; know-how; negative know-how; improvements; discoveries; developments;
designs; inventions; techniques; proposals; reports; client information; and
software programs and information (whether or not expressed in written form).
Such restrictions on the use or disclosure of Proprietary Information do not
extend to any item of information which (i) is publicly known immediately
prior to the time of its disclosure, (ii) is lawfully received from
a third
party not bound in a confidential relationship to the Company or (iii) is
published or otherwise made known to the public by the Company.
(b)
Return of Proprietary Information and Property. Upon termination of employment,
Employee
will
deliver to the Company all Proprietary Information and any equipment, supplies,
facilities and other tangible property owned, leased or contracted for by the
Company which property is in Employee's
possession as of the date of such termination.
including without limitation all paper and electronic company documents
including memoranda, customer lists, price lists, marketing materials, reports,
and analyses, and all copies thereof, and that he has destroyed any electronic
copies of such materials remaining in his possession after he has complied
with
the requirements of this paragraph.
5.
Non-Disparagement.
Employee
agrees to refrain from making disparaging remarks, publicly or otherwise,
regarding Saxon, its Affiliates, or the employees, officers and directors
thereof. Saxon agrees that it will instruct its Human Resources Department
staff
and all Senior Vice Presidents and above to refrain from making disparaging
comments, publicly or otherwise, regarding Employee.
6.
Non-Solicitation.
Employee
agrees that, for the period beginning on the Effective Date and ending one
(1)
year from the date of the last payment made pursuant to Section 9 herein, he
shall not directly or indirectly solicit, induce or attempt to solicit or induce
any Company employee to discontinue his or her employment with the Company
or hire any Company employee.
7. Cooperation. Employee
agrees
that he will make himself reasonably available, for a period of twelve (12)
months from the Effective Date, for no more than four (4) hours per month to
respond to written or verbal inquiries from Saxon related to Employee’s
employment or areas of responsibility with Saxon.
8.
Specific
Performance.
Because
of the difficulty of measuring economic losses to the Company as a result of
a
breach of the foregoing covenants, and because of the immediate and irreparable
damage that could be caused to the Company for which it would have no other
adequate remedy, Employee
agrees
that the foregoing covenants, in addition to and not in limitation of any other
rights, remedies or damages available to the Company at law, in equity or under
this Agreement and General Release, may be enforced by the Company in the event
of the breach or threatened breach by Employee,
by
injunctions and/or restraining orders. If the Company is involved in court
or
other legal proceedings to enforce its rights under this Agreement, then, in
the
event the Company prevails in such proceedings, Employee
shall be
liable for the payment of reasonable attorneys' fees, costs and ancillary
expenses incurred by the Company in enforcing its rights hereunder.
9.
Payment.
Saxon
shall pay Employee the total sum of $356,302.00, divided into twenty-four (24)
equal installments, less withholdings required by applicable law, each payable
on the Company’s scheduled pay dates, beginning on the first scheduled Company
pay date after the Effective Date. Such sum and each installment payment shall
be referred to individually and collectively as the “Severance Payment.” The
Company shall pay Employee any accrued but unused personal time as of the
Termination Date, less applicable federal and state withholding taxes and
deductions required by law, regardless of whether he signs this
Agreement.
10.
Employment
Transition Services. The
Company shall provide Employee, at the Company’s expense, employment transition
services through Xxx Xxxxx Xxxxxxxx or another provider selected by the Company
for a period of six (6) months from the Effective Date. The scope and quantity
of services during such 6 month period and any extension to such six (6) month
period shall be at the Company’s sole discretion.
11.
Cell
Phone.
Company
shall reasonably cooperate in transferring the individual cell phone account
and
phone number that may currently be administered by the Company for Employee’s
use to Employee. Employee agrees to indemnify and hold Company harmless for
any
charges or costs incurred after the Termination Date.
12. Medical
and Other Coverage.
Company
shall continue to provide Employee with the medical, dental and vision coverage
in effect for Employee and Employee’s dependents as of the Effective Date for a
period of twelve (12) months from the Effective Date and shall make deductions
from the Severance Payments at the same rate as Employee’s coverage costs, which
the Company may adjust in accordance with increases in group coverage costs.
Employee may by timely election continue group medical, dental, vision coverage
and/or health care flexible spending account, as applicable, pursuant to the
Consolidated Omnibus Budget Reconciliation Act (“COBRA”).
13. Taxes.
It is
understood that the Severance Payment is subject to withholding by Saxon as
set
out above. Should, for whatever reason, a federal, state, or other governmental
authority assert that any part of the Severance Payment is subject to additional
federal, state, or local tax, or any additional withholding, Employee
understands and agrees that he is responsible for and shall hold Saxon harmless
from the payment of any taxes, interest, penalties, levies, or assessments
applicable thereto.
14. No
Admission.
This
Agreement and General Release does not constitute an admission by Saxon of
any
sort as it relates to Employee’s employment and termination.
15. Applicable
Law.
The
parties agree that all questions with respect to the construction and
interpretation of the Agreement and General Release or rights or obligations
of
the parties hereto shall be governed by the laws of the Commonwealth of
Virginia.
16. Severability.
If any
of the provisions, subsections, clauses or phrases (collectively, “Provisions”)
of this Agreement and General Release are held to be invalid or unenforceable,
all other provisions hereof shall nevertheless continue in full force and effect
unless the effect of such severance would defeat the parties’ intent as set
forth herein.
17. Entire
Agreement.
(a) The
parties understand and agree that all terms of this Agreement and General
Release are contractual and are not a mere recital. They represent and warrant
that they are competent and possess the full and complete authority to covenant
and agree as herein provided.
(b) Employee
understands, agrees, and represents that the covenants made herein and the
releases herein executed may affect rights and liabilities of substantial extent
and agrees that the covenants and releases provided herein are in his best
interest. Employee represents and warrants that, in negotiating and executing
this Agreement and General Release, he has had an adequate opportunity to
consult with competent counsel or other representatives of her choosing
concerning the meaning and effect of each term and provision hereof, and that
there are no representations, promises, or agreements other than those expressly
set forth in writing herein.
(c) The
parties have carefully read this Agreement and General Release in its entirety;
fully understand and agree to its terms and provisions; intend and agree that
it
is final and binding and understand that, in the event of a breach, either
party
may seek relief, including damages, restitution, and injunctive relief, at
law
or in equity, in a court of competent jurisdiction.
IN
WITNESS WHEREOF, and intending to be legally bound, the parties have executed
the foregoing Agreement and General Release this 15th day of July,
2005.
EMPLOYEE:
By: /s/ Xxxx X. Xxxxxx
Xxxx
X.
Xxxxxx
July
15,
2005
____________________________
Date
SCI
SERVICES, INC.
/s/
Xxxxxxx X. Grey
_____________________________
By:
Xxxxxxx X. Grey
Its:
Senior Vice President
July 15, 2005
_____________________________
Date
STATE
OF
____________
COUNTY
OF
__________
The
foregoing instrument was acknowledged and signed before me by
______________________________________ this ______ day of __________________,
2005.
________________________________________
Notary
Public
My
Commission Expires: _______________
STATE
OF
___________
COUNTY
OF
_________
The
foregoing instrument was acknowledged and signed before me by
______________________________________ this ______ day of __________________,
2005.
________________________________________
Notary
Public
My
Commission Expires: _______________
