[The Xxxxxx Companies Logo] The Xxxxxx Companies, Inc.
0 Xxxxxx Xxxxx, Xxxxx Xxxxx
Xxxx Xxx, XX 00000 XXX
000-000-0000
000-000-0000 Fax
October 3, 1995
Xxxxxx X. Xxxxxxxx
000 Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Dear Bob:
In view of the decision to close the Fort Xxx office, this letter sets
forth the agreement between us with respect to the termination of your
employment with The Xxxxxx Companies, Inc. ('Xxxxxx'). As used in this letter,
'Employment Agreement' shall refer to the Employment Agreement, dated as of
December 1, 1991, between you and Xxxxxx, as amended on November 16, 1994. Each
capitalized term used herein which is not otherwise defined shall have the
meaning assigned to it in the Employment Agreement. To the extent there is any
inconsistency between the Employment Agreement and this letter agreement, the
provisions of this letter agreement shall be controlling. This letter shall also
constitute the Notice of Termination called for under Section 4(c) of the
Employment Agreement.
By signing this agreement, you acknowledge that you were advised by the
Company to consult with another attorney before signing, that you negotiated the
agreement and that this agreement accurately sets forth the terms of our
agreement regarding termination of your employment. Should you decide to sign
the agreement, you will have a period of seven calendar days following your
execution of the agreement in which to revoke your consent, which revocation
must be in writing signed by you.
1. Termination. (a) The termination of your employment with Xxxxxx shall be
effective April 30, 1996 (the 'Termination Date'). Subject to the last sentence
of this subparagraph (a) and to subparagraph 1 (b) below, you shall continue to
fully and faithfully perform those duties assigned to you by Xxxxxx in your
current capacity as Senior Vice President and General Counsel and continue to
receive your Annual Salary at your current rate and all other rights and
benefits to which you are entitled under your Employment Agreement until the
close of business on the Termination Date. Notwithstanding the foregoing, from
March 1, 1996 through and including April 30, 1996, you shall work at the rate
of 18.75 hours per week and shall receive an Annual Salary payable at a rate
equal to 50% of your current Annual Salary.
(b) Should you notify the Company in writing at least 30 days before its
effectiveness of a decision to end your employment prior to the Termination
Date, you shall continue to receive your Annual Salary through such earlier
termination date at the rate currently in effect (or 50% of that rate if
subsequent to February 29, 1996) and all other rights and benefits to which you
are entitled. All of the severance benefits described in Section 2 below shall
remain due to you on exactly the same terms as described therein except that
provision of the same shall begin on the early
Xxxxxx X. Xxxxxxxx
October 3, 1995
Page 2
termination date, rather than on April 30, 1996. Upon delivery of the notice
provided for herein, such early termination date shall become the new
Termination Date.
2. Benefits. (a) Your employment has been terminated by Xxxxxx without
Cause, thereby entitling you to all of the benefits specified in Section 5(c) of
the Employment Agreement.
(b) On the Termination Date, Xxxxxx shall deliver to you a check in payment
of all accrued but unused vacation time less all amounts required to be withheld
in connection with ordinary tax withholding rules and regulations.
(c) Following the Termination Date, Xxxxxx will facilitate the transfer of
any funds in which you are vested under the Xxxxxx 401(k) Plan.
(d) All rights with respect to options or restricted stock issued under the
1988 Long Term Incentive Plan shall be governed by the provisions of such Plan,
the various Option Certificates and Restricted Stock Agreements issued in
accordance with such Plan and the Turn-Around Incentive Plan.
(e) With respect to your 1995 and pro rata 1996 Incentive Payment Plan
bonuses, in view of the changed circumstances all of your MBOs will be deemed to
have been achieved and there will be no negative distinction made in comparison
with other senior Xxxxxx executives when determining the amount of your bonus
payments.
(f) In full satisfaction of Xxxxxx'x obligations to you under Section
5(c)(iii) of the Employment Agreement, Xxxxxx shall pay you on the Termination
Date a lump sum retirement benefit in the amount of $48,330.60.
3. Release. On the Termination Date, you will execute and deliver to Xxxxxx
a General Release in the form attached hereto.
4. Return of Records. You hereby agree and confirm that, on or prior to the
Termination Date, you will return to the Company all documents containing
Non-Public Information relating to the Company or entities in or with which the
Company has, or has contemplated or is contemplating any investment or other
transaction which you obtained during your employment with Xxxxxx. As used
herein, 'Non-Public Information' shall mean any information relating to the
Company, its investments and acquisitions and proposed investments and
acquisitions, and entities affiliated with any of the foregoing that you have
acquired by reason of your employment with the Company, except for (A)
information which is in the public domain at the time of receipt by you, and (B)
information which, after receipt thereof by you, becomes part or the public
domain through no improper act or omission of yours.
Xxxxxx X. Xxxxxxxx
October 3, 1995
Page 3
5. Remaining Agreement. Except as modified by the terms of this letter
agreement, all of the terms and conditions of your Employment Agreement shall
remain in full force and effect.
6. Notice. Notices to be given hereunder shall be deemed given if made in
accordance with Section 10 of the Employment Agreement, provided that the
address to be used for the Company shall be: 0000 Xxxxxxxxxx Xxxx Xxxx,
Xxxxxxxxxx, XX 00000, and the address to be used for you shall be your address
as specified on the first page of this letter, or such other address as either
party shall specify in a written notice given to the other in accordance with
such Section 10 and this provision.
You hereby confirm and acknowledge that you have read this letter agreement
and fully understand the provisions contained herein. If the foregoing sets
forth your understanding of our agreement, please sign in the space provided
below-v for your signature, whereupon this letter shall become a binding
agreement.
This letter agreement will be governed by the laws of the State of
California (without giving effect to its choice of law provisions).
Very truly yours,
THE XXXXXX COMPANIES, INC.
By: XXXXXX X. XXXXX
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ACCEPTED AND AGREED as
of the date first written above
XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
