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EXHIBIT 10.29
SEPARATION AGREEMENT
And
RELEASE
THIS SEPARATION AGREEMENT AND RELEASE AGREEMENT (the "Agreement") dated
as of this 15th day of March, 2001, made by and between Xxxxxx X. Xxxxxx
(hereinafter referred to as "Employee"), and X.X. Xxxxxxxxx Corporation
(hereinafter, unless the context indicates to the contrary, deemed to include
its subsidiaries, partnerships and affiliates and referred to as the "Company").
WITNESSETH THAT:
WHEREAS, Employee has been employed by the Company pursuant to the terms
of an Employment Agreement dated September 28, 1998 (as amended to date, the
"Employment Agreement"); and
WHEREAS, Employee's employment with the Company will terminate as of
March 15, 2001 (the "Termination Date");
WHEREAS, Section 8(h) of the Employment Agreement requires Employee to
execute a general release of claims in favor of the Company as a condition to
receiving certain benefits and payments under the Employment Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter provided and of the actions taken pursuant thereto, the parties
agree as follows:
1. Termination Date. Employee's employment with the Company
(as well as Employee's membership on any Boards of Directors and/or committees)
will be terminated effective as of the Termination Date.
2. Entitlements under Employment Agreement. Upon Employee's
termination of employment, Employee shall be entitled to the payments and
benefits set forth below in accordance with Section 8(c) of the Employment
Agreement. Employee acknowledges and agrees that she is not entitled to (and
waives to the extent so entitled) any other or different payments or benefits
under the Employment Agreement or otherwise as a result of such termination.
Each of the Company's and Employee's rights and obligations under the Employment
Agreement shall terminate as of the Termination Date, except those that
expressly survive termination of the Employment Agreement under the terms of the
Employment Agreement or this Agreement, including, without limitation, (a) the
last sentence of Section 8(d) regarding certain entitlements upon the occurrence
of a Change of Control (as defined in the Employment Agreement) for which
negotiations had commenced prior to the Termination Date, and (b) the provisions
of Section 16 of the Employment Agreement regarding the reimbursement of legal
fees and costs under certain circumstances, in each case, which shall expressly
survive the termination of the Employment Agreement and the release set forth
herein.
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4. Severance Payments. Within ten (10) days following the
Termination Date, in lieu of further salary or bonus payments, Employee shall be
entitled to receive a lump-sum amount equal to $436,000 (representing 200% of
Employee's Base Salary as of the Termination Date) plus $218,000 (representing
200% of Employee's Target Bonus). Employee shall not be entitled to any Bonus
payment with respect to 2001 or any portion thereof or any subsequent period.
5. Benefits. For the earlier to occur of twenty four (24) months
from the Termination Date and Employee's becoming eligible to participate in
comparable plans of another employer, the Company shall continue to provide
Employee an opportunity to participate in the Company's health, life insurance
and disability plans by which she is presently covered at corporate rates. The
Company will invoice Employee monthly for the cost of such plans. The foregoing
sentence shall not be construed to require the Company to maintain any plan
presently in effect or to adopt any new or replacement plan, all such decisions
with respect to plans being reserved by the Company its sole and absolute
discretion. Employee shall also be entitled to participate, at no cost to
Employee, in the Company's executive financial counseling program for
twenty-four (24) months following the Termination Date. As of the Termination
Date, Employee shall be 100% vested in all company contributions under the
Company's Profit Participation Plan and Retirement Account and all amounts
credited to Employee under the Retirement Account shall be fully portable.
Finally, all cash amounts and deferred shares credited to Employee's account
under the Company's Deferred Compensation Plan will be paid out to Employee in a
lump sum cash amount as promptly as practicable after the Valuation Date next
following the Termination Date, in accordance with the provisions of that Plan.
6. Stock Options. As a retirement eligible employee, all unvested
options shall vest as of the Termination Date and all options vested as of the
Termination Date may be exercised over the remaining life of those options, all
in accordance with the terms of the Company's 1991 Key Employee Stock Option
Plan. Employee shall not be entitled to any option grant with respect to 2001 or
any portion thereof or any subsequent period.
7. PERS. On account of the performance shares awarded to Employee
under the Key Employees' Performance Unit Plan for the performance period from
January 1, 1999 through December 31, 2001, Employee shall be entitled to receive
an amount in cash equal to her pro-rated (27/36ths) award based upon the
Company's actual results against target over the full performance period,
payable in the first quarter of 2002 at the same time as paid to other senior
executives following approval by the Compensation and Benefits Committee. In
addition, Employee shall be entitled to receive the remaining one-third of her
PERS award (representing 6,488 shares) with respect to the performance period
July 1998 to December 1999. Within ten (10) days following the Termination Date,
the Company shall pay to Employee an amount in cash equal to the value of those
6,488 shares based upon the average of the high and low prices of the Company's
Common Stock on the Termination Date. Employee shall not be entitled to any PERS
award grant with respect to 2001 or any portion thereof or any subsequent
period.
8. Withholding Taxes. All amounts payable by Company to Employee
under this Agreement shall be reduced for any applicable withholding taxes.
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9. Non-Competition. Employee hereby acknowledges the restrictions
set forth in Section 12 of the Employment Agreement (the "Non-Compete
Provisions") and, as consideration for the payments and benefits set forth
above, Employee hereby agrees that Employee shall be bound by such Non-Compete
Provisions for the twelve month period commencing as of the Termination Date. In
the event of a breach of the foregoing Non-Compete Provisions, Employee shall
forfeit all rights to the payments and benefits set forth above and the Company
shall be entitled to recoup any payments and the fair value of any benefits
previously bestowed upon Employee hereunder.
10. Confidentiality; Non-Disparagement. Employee hereby acknowledges
the restrictions set forth in Section 13 of the Employment Agreement (the
"Confidentiality and Non-Disparagement Provisions") and, as consideration for
the payments and benefits set forth above, Employee hereby agrees that Employee
shall continue to be bound by such Confidentiality and Non-Disparagement
Provisions into perpetuity. Without limiting the generality of the foregoing,
the existence and the terms and conditions of this Separation Agreement and
Release shall constitute confidential information covered by the Confidentiality
and Non-Disparagement Provisions, except that Employee shall have the right to
disclose the existence and terms of this Separation Agreement and Release to the
extent reasonably necessary to enforce her rights hereunder or those rights that
survive under the Employment Agreement. In the event of a breach of the
foregoing Confidentiality and Non-Disparagement Provisions, Employee shall
forfeit all rights to the payments and benefits set forth above and the Company
shall be entitled to recoup any payments and the fair value of any benefits
previously bestowed upon Employee hereunder.
11. Material Inducement. Employee acknowledges and agrees that the
Non-Compete Provisions and the Confidentiality and Non-Disparagement Provisions
are an essential element of the parties' agreement, are a material inducement
for the Company to make the payments and provide the benefits set forth above
and the breach thereof would be a material breach of this Agreement. Employee
further acknowledges and agrees that the Company's remedies at law for a breach
or threatened breach of the Non-Compete Provisions or the Confidentiality and
Non-Disparagement Provisions would be inadequate and, in recognition of this
fact, Employee agrees that, in the event of such a breach or threatened breach,
in addition to any remedies at law, the Company, without posting any bond, shall
be entitled to seek equitable relief in the form of specific performance,
temporary restraining order, temporary or permanent injunction or any other
equitable remedy which may then be available.
12. Release.
a. Except with respect to Employee's rights hereunder and
those rights of Employee that survive under the Employment Agreement, Employee,
Employee's representatives, successors and assigns releases and forever
discharges the Company and its successors, assigns, subsidiaries, affiliates,
directors, officers, employees, attorneys, agents and trustees or administrators
of any Company plan from any and all claims, demands, debts, damages, injuries,
actions or rights of action of any nature whatsoever (collectively "Claims"),
whether known or unknown, which Employee had, now has or may have against the
Company, its successors, assigns, subsidiaries, affiliates, directors, officers,
employees, attorneys, agents and trustees or administrators of any Company plan,
including, without limitation, Claims relating to or arising out
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of Employee's employment with the Company or the termination of such employment.
Employee represents that Employee has not filed any action, complaint, charge,
grievance or arbitration against the Company or any of its successors, assigns,
subsidiaries, affiliates, directors, officers, employees, attorneys, agents and
trustees or administrators of any Company plan.
b. Employee covenants that neither Employee, nor any of
Employee's respective heirs, representatives, successors or assigns, will
commence, prosecute or cause to be commenced or prosecuted against the Company
or any of its successors, assigns, subsidiaries, affiliates, directors,
officers, employees, attorneys, agents and trustees or administrators of any
Company plan any action or other proceeding based upon any claims, demands,
causes of action, obligations, damages or liabilities which are to be released
by this Agreement, nor will Employee seek to challenge the validity of this
Agreement, except that this covenant not to xxx does not affect Employee's
future right to enforce appropriately in a court of competent jurisdiction the
terms of this Agreement or the terms that survive under the Employment
Agreement.
c. By releasing the claims described in this Section 12,
Employee does not waive any claims that cannot be waived as a matter of law,
including without limitation any claims filed with the Equal Employment
Opportunity Commission, the U.S. Department of Labor or claims under the Age
Discrimination in Employment Act that arise after the date of this Agreement.
13. Employee Acknowledgments. Employee acknowledges that (a)
Employee has been advised to consult with an attorney before executing this
Agreement and that Employee has been advised by an attorney or has knowingly
waived Employee's right to do so, (b) Employee has been offered a period of at
least twenty-one (21) days to consider this Agreement, (c) Employee has a period
of seven (7) days from the date hereof within which to revoke it and that this
Agreement will not become effective or enforceable until the expiration of this
seven (7) day revocation period, (d) Employee fully understands the terms and
contents of this Agreement and freely, voluntarily, knowingly and without
coercion enters into this Agreement, and (e) the waiver or release by Employee
of rights or claims Employee may have under Title VII of the Civil Rights Act of
1964, The Employee Retirement Income Security Act of 1974, the Age
Discrimination in Employment Act of 1967, the Older Workers Benefit Protection
Act, the Fair Labor Standards Act, the Americans with Disabilities Act, the
Rehabilitation Act, the Worker Adjustment and Retraining Act (all as amended)
and/or any other local, state or federal law dealing with employment or the
termination thereof is knowing and voluntary and, accordingly, that it shall be
a breach of this Agreement to institute any action or to recover any damages
that would be in conflict with or contrary to this acknowledgment or the
releases Employee has granted hereunder. Employee understands and agrees that
the Company's payment of money and other benefits to Employee and Employee's
signing of this Agreement does not in any way indicate that Employee has any
viable claims against the Company or that the Company admits any liability
whatsoever.
14. Reasonable Assistance. As consideration for the payments and
benefits set forth above, during the two years following the Termination Date,
at the Company's reasonable expense, Employee hereby agrees, upon the Company's
written request, to reasonably assist the Company in any matters relating to her
prior responsibilities with the Company and to reasonably cooperate, at the
Company's expense, with respect to any claims, litigation or investigations
relating to her prior responsibilities.
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15. Notice of Termination. Each of Employee and the Company hereby
waives the Notice of Termination provided for in Section 8(g) of the Employment
Agreement.
16. Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors, assigns, heirs and legal representatives. Neither this
Agreement nor any rights hereunder shall be assignable by Employee without the
Company's written consent, other than by operation of the laws of descent and
distribution.
17. Severability. If for any reason any one or more of the
provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid by a court of competent jurisdiction, such
circumstances shall not have the effect of rendering such provision invalid in
any other case or rendering any other provisions of this Agreement inoperative,
unenforceable or invalid. In any such event, such provision shall be read by
such court to be as broad and restrictive as possible without being found to be
inoperative, unenforceable or invalid.
18. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of New York, without giving effect to the conflict of
laws provisions thereof, except to the extent superseded by applicable federal
law.
19. Counterparts. This Agreement may be signed in counterparts, each
of which shall be deemed an original, with all counterparts taken together
representing one and the same Agreement, with the same effect as if all of the
signatures were upon the same instrument.
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IN WITNESS WHEREOF, Employee and X.X. Xxxxxxxxx Corporation, by its duly
authorized agent, have hereunder executed this Agreement.
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
X.X. XXXXXXXXX CORPORATION
/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chairman and CEO
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