MEMORANDUM OF UNDERSTANDING
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This MEMORANDUM OF UNDERSTANDING is made effective as of May 12, 2003,
by and between XXXXXX X. XXXXXXXXX ("Employee") and XXXXXXXX'X INTERNATIONAL,
INC., a Delaware Corporation ("Company") (collectively "the parties").
WHEREAS, the parties desire to set forth their understanding of the
terms and conditions of (1) Employee's continued full-time employment with
Company as Company's General Counsel, (2) Employee's continued employment with
Company after conclusion of Employee's full-time employment with Company as Vice
President, General Counsel and corporate Secretary and (3) the general terms and
conditions of Employee's separation from Company.
NOW, THEREFORE, in consideration of the premises and the mutual terms
and conditions hereof, Company and Employee hereby agree as follows:
1. Employee's Full-Time Employment With Company. Regarding Employee's
continued full-time employment with Company as Company's General Counsel:
(a) Employee shall remain employed full-time through December 31,
2003 or such later date in 2004 as determined by the Company so as to
give Employee's successor as General Counsel not less than 90 days full
time access to Employee. Employee will continue to serve as Company's
General Counsel during 2003 and, if appropriate, a part of 2004,until
such time as Company requests he resign that position. At the
discretion of Company, following his resignation as General Counsel and
the termination of his full time employment, Employee may provide his
services while working at home or at the Company's offices;
(b) During his continued full-time employment, Employee shall (1)
receive a his current base salary; (2) receive any 2003 bonus
applicable to the General Counsel position at the normal bonus
percentages, and prorated for 2004, or a portion thereof, if he remains
on full time status in 2004 and subject to the terms and conditions of
the Company's bonus plan; (3) be eligible for the benefits attendant to
the General Counsel position, including, but not limited to, applicable
medical, dental, drug, and vision coverage; and (4) be eligible for any
and all other benefits or perquisites of employment attendant to the
General Counsel position; (5) not be eligible to receive option grants;
and (6) not be eligible for salary increases; and
(c) Employee understands Employee's continued employment is
subject to Company's employment practices and policies during such
continued employment and is at all times at-will in all respects, which
means, among other things, it is of not of any definite duration, it
can be terminated at any time for any lawful reason or for no reason,
and it remains subject to Employee's continued successful performance,
in Company's sole and exclusive discretion, of the General Counsel
duties and responsibilities and any other duties and responsibilities
Employee is assigned from time to time.
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2. Employee's Post Full-Time Employment With Company. Regarding
Employee's continued employment with Company following the later of December 31,
2003 or not less than 90 days after the Company's employment of a successor
General Counsel (the "Commencement Date"):
(a) From the Commencement Date through the last day of the month
eigthteen (18) full months thereafter (the Part Time Period"), Employee
shall continue to be employed by Company, during which employment
Employee shall (1) perform work for Company, up to 25 hours per week,
as requested by Company and as mutually agreed by Employee and Company,
including writing a history of the Company; (2) receive a monthly
salary of $10,000, less applicable deductions and withholdings,
according to Company's then existing payroll schedule; and (3) remain
eligible to elect coverage under Company's employee medical, dental,
drug, and vision plans as Employee is enrolled in such plans on the
business day immediately preceding the Commencement Date, with Company
paying the employer portion of premiums for any such elected coverage.
In addition, Employee shall be entitled to be reimbursed for any normal
business expenses incurred, under the Company's expense policies then
in place, including travel, for performing his work during the Part
Time Period;
(b) Effective the day following the end of the Part Time Period
until he reaches the month in which he turns age 65, Employee shall
remain eligible to elect coverage under Company's employee medical,
dental, drug, and vision plans as Employee is enrolled in such plans on
his final day of full-time employment with Employee paying both
employee and company portion of the premiums for any such elected
coverage; and
(c) Employee understands Employee's continued employment with
Company is subject to Company's employment practices and policies
applicable to such position during such employment and is at all times
at-will in all respects, which means, among other things, it is of not
of any definite duration, it can be terminated at any time for any
lawful reason or for no reason, and it remains subject to Employee's
continued satisfactory performance, in Company's sole and exclusive
discretion, of duties and responsibilities Employee is assigned from
time to time.
3. Employee's Separation From Company. Provided Employee remains
employed by Company as contemplated by paragraphs 1 and 2 of this Memorandum of
Understanding, Employee agrees he will retire from Company at the end of said
Part Time Period, and thereby be entitled to any and all applicable retirement
benefits. Employee further agrees that, if requested, upon any separation from
Company, he will fully release and forever discharge Company by executing a
separation agreement containing a release similar to that set forth below:
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Employee (and anyone acting on Employee's behalf) hereby RELEASES
AND FOREVER DISCHARGES Company (including all of its current and/or
former insurers, current and/or former directors, current and/or former
officers, current and/or former fiduciaries, current and/or former
employees, current and/or former agents, current and/or former
successors, current and/or former assigns, current and/or former
related corporations, current and/or related entities, and any and all
other entities currently and/or formerly affiliated with or related to
it (collectively hereinafter "Company Affiliates")), to the maximum
extent permitted by law, from any and all claims, demands, and causes
of action ("claims") Employee had or may have had against Company
(including any Company Affiliates) up to the date Employee signs this
Agreement, which claims include by way of illustration, but are not
limited to, claims for attorney's fees; claims under any local, state,
and/or federal statutory or common law, including, but not limited to,
claims for libel, slander, defamation, breach of contract, and/or
wrongful termination; claims for discrimination, harassment, and/or
retaliation under any local, state, and/or federal statutory or common
law, including, but not limited to, any and all claims under 42 U.S.C.
xx.xx. 1981 and 1983, Title VII of the Civil Rights Act of 1964 (as
amended), the Civil Rights Act of 1991, the Americans With Disabilities
Act, the Age Discrimination in Employment Act, the Employee Retirement
Income Security Act, the Family and Medical Leave Act, the Kansas Act
Against Discrimination, and the Missouri Human Rights Act; claims under
the U.S. Constitution and/or any state constitution, including the
State of Kansas and the State of Missouri; claims under any local,
state, or federal public policy; claims under any other local, state,
and/or federal statutory or common law not specifically referenced in
this paragraph; and claims under any other agreement with Company or
under any of Company's policies and/or practices.
4. Restrictions on Employee's Activities. Employee agrees immediately
to execute the Confidentiality, Non-Solicitation, and Non-Competition Agreement
attached hereto.
/s/ Xxxxxx X. Xxxxxxxxx
Dated: May 12, 2003 -----------------------------------------------------
Xxxxxx X. Xxxxxxxxx
Dated: May 12, 2003 Xxxxxxxx'x International, Inc.
/s/ Xxxxx X. Xxxx
By: ------------------------------------------------
Title:
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