Exhibit 10.1
October 19, 1999
Xx. Xxxxxx X. Xxxx
Six Xxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
Dear Don:
The purpose of this letter agreement (this "Agreement") is to set forth our
mutual understanding and agreement with respect to: (i) your separation from
Centennial Technologies, Inc. (the "Company"); and (ii) the establishment of the
terms of your severance and separation from employment. We have agreed as
follows:
1. SEPARATION FROM EMPLOYMENT. Effective as of the close of business on
Friday, September 10, 1999, or such other date that is mutually agreed upon by
you and the Company (the "Separation Date"), you will no longer be a full-time
employee of the Company, as the Company will terminate your employment without
cause, and you will relinquish as of that date any positions that you hold with
the Company or any of its subsidiaries and affiliates.
2. SEVERANCE BENEFITS.
a. STOCK ACCELERATION. Upon your Separation Date, (1) each
outstanding option to purchase shares of Common Stock of the Company held by
you, not otherwise fully exercisable or automatically exercisable in full, shall
become immediately exercisable in full, and (2) notwithstanding any provision in
any applicable option agreement to the contrary, each such option shall continue
to be exercisable by you through March 10, 2001.
b. COMPENSATION. You shall be entitled to the following
additional benefits:
(1) the Company shall pay you in a lump sum in
cash immediately after this Agreement becomes effective and enforceable:
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October 19, 1999
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(a) the sum of (i) your base salary
through the Separation Date, and (ii) the amount of any compensation
previously deferred by you (together with any accrued interest or earnings
thereon) and any accrued vacation or compensatory time off pay, in each case
to the extent not previously paid (the sum of the amounts described in
clauses (i) and (ii) shall be hereinafter referred to as the "Accrued
Obligations"); and
(b) $505,475.
(2) for 18 months after the Separation Date, or
such longer period as may be provided by the terms of the appropriate plan,
program, practice or policy, the Company shall continue to provide benefits
to you and your family at least equal to those which would have been provided
to you if your employment had not been terminated, in accordance with the
applicable Benefit Plans in effect on your Separation Date or, if more
favorable to you and your family, in effect generally at any time thereafter
with respect to other peer executives of the Company and its affiliated
companies; PROVIDED, however, that if you become reemployed with another
employer and become eligible to receive a particular type of benefit (e.g.,
health insurance benefits) from such employer on terms at least as favorable
to you and your family as those being provided by the Company, then the
Company shall no longer be required to provide those particular benefits to
you and your family and FURTHER PROVIDED that you shall be deemed to have
elected COBRA medical benefit continuation which the Company agrees to
provide on a fully subsidized basis and the provision of such benefits shall
be deemed to satisfy all obligations of the Company hereunder to continue
health benefits;
(3) the Company shall timely pay or provide to you
outplacement assistance having a value of no more than $30,000 as well as any
other amounts or benefits required to be paid or provided or which you are
eligible to receive following your termination of employment under any plan,
program, policy, practice, contract or agreement of the Company and its
affiliated companies (such other amounts and benefits shall be hereinafter
referred to as the "Other Benefits"); and
(4) for purposes of determining your eligibility
(but not the time of commencement of benefits) for retiree benefits to which
you are entitled, you shall be considered to have remained employed by the
Company until eighteen (18) months after the Separation Date.
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October 19, 1999
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3. [Intentionally Omitted].
4. CONSULTING. You agree that $50,000 of the payment made to you upon
your termination of employment is a retainer (the "Retainer") paid to you to
make yourself available as you schedule permits for a period of six (6) months
beginning on the Separation Date at reasonable times and places to provide
consulting services to the Company. In addition to the Retainer paid to you
solely for your availability the Company will pay you $200 for each hour of
consulting services that you actually render as requested by the Company during
said 6 month period plus the reasonable associated costs incurred by you as a
result of the rendering of such consulting services including, but not limited
to, travel and lodging.
5. TRANSFER OF RESPONSIBILITIES AND CONTINUING COOPERATION. You shall
cooperate fully with the Company and its personnel on an as needed and as
required basis through the Separation Date to provide an orderly transfer of
your duties and responsibilities and to provide continuing assistance in
connection with on-going litigation and investigation matters. This cooperation
includes timely compliance with all reasonable requests for information and
other materials. This cooperation also includes timely compliance with all
reasonable requests for information and assistance in connection with any and
all on-going Company litigation, investigations, and legal inquiries. The
Company agrees to reimburse you for any reasonable travel costs and expenses,
including meals and lodging, incurred by you in connection with any request by
the Company for cooperation and assistance either before or after the Separation
Date, and to make available to you upon reasonable request and notice pertinent
records and documents related to such litigation, investigations and legal
inquiries, which you agree will be used solely in relation thereto and for no
other purpose. To the extent that you require legal representation in connection
with any of these or other legal matters that cannot be practically provided by
the Company's counsel, the Company will advance to your attorneys and reimburse
you for any reasonable attorneys' fees and expenses related thereto as they are
incurred.
6. CONFIDENTIALITY. You agree that you will keep the confidential,
proprietary information of the Company, including but not limited to, customer
lists, supplier lists, pricing and cost information, sales and marketing plans
and strategies, manufacturing processes and techniques, product designs and
specifications and computer programs (collectively, "Confidential Information")
secret and confidential and refrain from divulging, disclosing or using any
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October 19, 1999
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Confidential Information for any reason or purpose without the Company's prior
written consent.
7. RETURN OF PROPERTY. On the Separation Date, you will return to the
Company all property of the Company that is in your possession or under your
control, including, without limitation, any and all files, documents and other
information with respect to the Company's management, operations or customers,
including all files, documents, or other information containing Confidential
Information. You may keep copies of non-confidential documents.
8. REMEDIES OF THE COMPANY. You acknowledge that the restrictions
contained in paragraph 6 of this Agreement are reasonable and necessary for the
protection of the legitimate interests of the Company. In addition, you
recognize and agree that the Company's remedy at law for material breaches of
the restrictions contained in paragraph 6 of this Agreement is inadequate, that
the damages for any material breach thereof would be irreparable, and that the
Company shall be entitled to preliminary and permanent injunctive relief and
specific performance thereof, in addition to any remedies it may have for
monetary damages or other relief. You further recognize and agree that the
covenants contained in paragraph 6 shall be construed as independent of any
other provision of this Agreement and that the existence of any claim or cause
of action by you against the Company shall not constitute a defense to the
enforcement by the Company of said covenants.
9. REFERENCES. In response to inquiries from your prospective
employers, the Company shall state that it is the policy of the Company to
verify only dates of employment and titles. Upon receipt from you of a proposed
letter of reference, the Company agrees to execute and deliver such a letter to
you, so long as such letter is acceptable to the Company in its exercise of
reasonable judgment.
10. GENERAL RELEASES.
a. In consideration of the payments set forth in this
Agreement, a majority of which you acknowledge that you would not otherwise be
entitled to receive indemnification, the receipt and sufficiency of which
consideration you hereby acknowledge, and except for the rights granted under
this Agreement and any indemnification rights that you may have pursuant to the
By-Laws of the Company and as provided by law, which rights, if any, are
specifically excepted from the scope of this release, you, for yourself and your
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October 19, 1999
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heirs, legal representatives, beneficiaries, assigns and successors in
interest, hereby knowingly and voluntarily fully, forever, irrevocably and
unconditionally release, remise and discharge the Company and its successors,
assigns, former, current or future shareholders, officers, directors,
employees, agents, attorneys and representatives, whether in their individual
or official capacities (the "Released Parties"), from any and all actions or
causes of action, suits, debts, claims, complaints, contracts, controversies,
agreements, promises, damages, claims for attorneys' fees, punitive damages
or reinstatement, judgments and demands whatsoever, in law or equity, you
ever had from the beginning of the world to this date against any of the
Released Parties, including, without limitation, all claims arising out of
your employment and the termination of your employment, all claims under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e ET SEQ.;
the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C.
Section 1000 ET SEQ.; the Age Discrimination in Employment Act, 29 U.S.C.
Section 621 ET SEQ., Massachusetts General Laws, Chapter 151B, Section 1
ET SEQ.; the Americans with Disabilities Act, 42 U.S.C. Section 12101 ET SEQ.;
all claims arising under the Massachusetts Civil Rights Act, M.G.L. c. 12
Sections 11H and 11I and the Massachusetts Equal Rights Act, c. 93 Section
102 and M.G.L. c. 214 Section 1C, all other employment discrimination claims,
wrongful disclosure, common law tort, defamation, breach of contract and
other common law claims, and all claims under any other federal, state or
local statutes or ordinances not expressly mentioned above. You hereby
acknowledge and understand that this is a General Release.
b. In consideration of the good and valuable consideration set
forth in this Agreement, the receipt and sufficiency of which consideration the
Company hereby acknowledges, and except for the rights granted under this
Agreement, which rights, if any, are specifically excepted from the scope of
this release, the Company and its subsidiaries and affiliates knowingly and
voluntarily, fully, forever irrevocably and unconditionally release, remise and
forever discharge you, your heirs, legal representatives, beneficiaries, assigns
and successors in interest, whether in your or their individual or official
capacities, from any and all actions or causes of action, suits, debts, claims,
complaints, contracts, controversies, agreements, promises, damages, claims for
attorneys' fees, punitive damages or reinstatement, judgments and demands
whatsoever, in law or equity, that the Company or any of its subsidiaries or
affiliates ever had from the beginning of the world to this date, including all
claims arising from your actions or omissions as an officer or employee of the
Company or any of its subsidiaries or affiliates, it being fully understood that
your termination is being requested by the Company without
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October 19, 1999
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cause. The Company hereby acknowledges and understands that this is a General
Release.
11. ACKNOWLEDGMENTS. You acknowledge that you have been given at least
twenty-one (21) days to consider this Agreement and that the Company advised you
to consult with an attorney of your own choosing prior to signing this
Agreement. You understand that you may revoke this Agreement for a period of
seven (7) days after you sign this letter, and this Agreement shall not be
effective or enforceable until the expiration of this seven (7) day revocation
period.
12. VOLUNTARY ASSENT. You affirm that no other promises or agreements
of any kind have been made to or with you by any person or entity whatsoever to
cause you to sign this Agreement, and that you fully understand the meaning and
intent of this Agreement. You state and represent that you have had an
opportunity to fully discuss and review the terms of this Agreement with an
attorney. You further state and represent that you have carefully read this
letter, understand the contents herein, freely and voluntarily assent to all of
the terms and conditions hereof, and sign your name of your own free act.
13. ENTIRE AGREEMENT AND APPLICABLE LAW. This Agreement shall be
interpreted and construed by the laws of the Commonwealth of Massachusetts,
without regard to conflict of laws provisions. You hereby irrevocably submit to
and acknowledge and recognize the jurisdiction of the courts of the Commonwealth
of Massachusetts, or, if appropriate, a federal court located in Massachusetts,
(which courts, together with all applicable appellate courts, for purposes of
this Agreement, are the only courts of competent jurisdiction) over any suit,
action or other proceeding arising out of, under or in connection with this
Agreement or the subject matter hereof. This Agreement contains and constitutes
the entire understanding and agreement between the parties hereto with respect
to your severance benefits and the settlement of claims against the Company and
cancels all previous oral and written negotiations, agreements, commitments, and
writings in connection therewith including without limitation the Executive
Retention Agreement.
14. WITHHOLDING. The Company shall be entitled to withhold from any
payments required to be made hereunder all amounts required to be withheld under
any federal, state, local or other applicable laws.
15. SUCCESSORS. This Agreement shall bind and inure to the benefit of
the parties and their legal heirs and successors.
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Please indicate your agreement to the terms of this letter agreement by signing
and dating the last page of the enclosed copy of this letter agreement, and
return it to me.
Sincerely,
L. Xxxxxxx Xxxx
President and Chief Executive Officer
AGREED TO AND EXECUTED UNDER SEAL THIS ____ day of October, 1999.
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Xxxxxx X. Xxxx
