EXHIBIT 10.19
EXECUTIVE
EMPLOYMENT AGREEMENT
P R E A M B L E
This Executive Employment Agreement defines the essential terms and
conditions of our employment relationship with you. The subjects
covered in this Agreement are vitally important to you and to the
Company. Thus, you should read the document carefully and ask any
questions before signing the Agreement. Given the importance of these
matters to you and the Company, all executives shall sign the Agreement
as a condition of employment.
This EMPLOYMENT AGREEMENT, dated and effective this 28th day of
January, 2002, ("Agreement") is entered into by and between Xxxxxxxxxxx
Industries, Inc. ("Company"), and Xxxxxxx X. xx Xxxxxxxxx ("Executive").
W I T N E S S E T H:
WHEREAS, the Company is an Indiana corporation engaged through its
various subsidiary entities in the death care, healthcare and funeral services
industries throughout the United States and abroad;
WHEREAS, the Company is willing to employ Executive in an executive
capacity and Executive desires to be employed by the Company in such capacity
based upon the terms and conditions set forth in this Agreement;
WHEREAS, in the course of the employment contemplated under this
Agreement, it will be necessary for Executive to acquire knowledge of certain
trade secrets and other confidential and proprietary information regarding the
Company as well as its subsidiary and/or affiliated entities (hereinafter
jointly referred to as the "Companies"); and
WHEREAS, the Company and Executive (collectively referred to herein as
the "Parties") acknowledge and agree that the execution of this Agreement is
necessary to memorialize the terms and conditions of their employment
relationship as well as safeguard against the unauthorized disclosure or use of
the Company's confidential information and to otherwise preserve the goodwill
and ongoing business value of the Company;
NOW THEREFORE, in consideration of Executive's employment, the
Company's willingness to disclose certain confidential and proprietary
information to Executive and the mutual covenants contained herein as well as
other good and valuable consideration, the receipt of which is hereby
acknowledged, the Parties agree as follows:
1. Employment. The Company agrees to employ Executive, and Executive
agrees to serve as, Vice President, General Counsel & Secretary.
2. Duties. Executive agrees to perform all duties and responsibilities
traditionally assigned to, or falling within the normal
responsibilities of, an individual employed in the above-referenced
position. Executive also agrees to perform any and all additional
duties or responsibilities as may be reasonably assigned by the Company
in its sole discretion consistent with the Executive's position as Vice
President, General Counsel and Secretary .
3. Best Efforts and Duty of Loyalty. During the term of employment with
the Company, Executive covenants and agrees to perform all assigned
duties in a diligent and professional manner and in the best interest
of the Company. Executive agrees to devote his full working time,
attention, talents, skills and best efforts to further the Company's
business and agrees to use his good faith efforts not to take any
action, or make any omission, that deprives the Company of any business
opportunities or otherwise act in a manner that conflicts with the best
interest of the Company or is otherwise detrimental to its business.
Executive agrees not to engage in any outside business activity,
whether or not pursued for gain, profit or other pecuniary advantage,
without the express written consent of the Company. Executive shall act
at all times in accordance with the Xxxxxxxxxxx Industries, Inc.
Handbook of Ethical Business Conduct, the Corporate Compliance Handbook
and all other applicable policies which may exist or be adopted by the
Company from time to time. Notwithstanding anything to the contrary
contained in this Agreement, the Company acknowledges and consents to
Executive's limited obligations and responsibilities as an officer and
agent of SDI Investments Liquidating Trust and its Subsidiaries and as
an employee of and special advisor to CombiMatrix Corporation (which
position shall terminate no later than September 1, 2002).
4. At-Will Employment. Subject to the terms and conditions set forth
below, Executive specifically acknowledges and accepts such employment
on an "at-will" basis and agrees that, subject to the terms and
conditions set forth in this Agreement, both Executive and the Company
retain the right to terminate this relationship at any time, with or
without cause, for any reason not prohibited by applicable law upon
proper notice. Executive acknowledges that nothing in this Agreement is
intended to create, nor should be interpreted to create, an employment
contract for any specified length of time between the Company and
Executive.
5. Compensation. For all services rendered by Executive on behalf of, or
at the request of, the Company, Executive shall be paid as follows:
(a) A base salary at the bi-weekly rate of Ten Thousand, Seven
Hundred Sixty-Nine Dollars and Twenty-three Cents
($10,769.23), less usual and ordinary deductions;
(b) Incentive compensation, payable solely at the discretion of
the Company, pursuant to the Company's Exempt Employee
Executive Compensation Program or any other program as the
Company may establish in its sole discretion; and
(c) Such additional compensation, benefits and perquisites as the
Company may deem appropriate, including, without limitation,
those set forth in the letter from Xxxx Xxxxxxxx to Executive
dated January 11, 2002 (the terms of which shall be
incorporated herein by reference). Moreover, Executive shall
be eligible to receive incentive compensation and additional
compensation, benefits and perquisites at levels substantially
comparable to other peer level executives. Employee shall be
entitled to at least four weeks per year paid vacation. During
2002, he may take five additional business days at a mutually
convenient time to move his belongings from Seattle,
Washington to the Batesville, Indiana area.
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Notwithstanding anything contained herein to the contrary, Executive
acknowledges that the Company specifically reserves the right to make
changes to Executive's compensation in its sole discretion including,
but not limited to, modifying or eliminating a compensation component.
The Parties agree that such changes shall be deemed effective
immediately and a modification of this Agreement unless, within
fourteen (14) days after receiving notice of such change, Executive
exercises his right to terminate this Agreement without cause. The
Parties anticipate that Executive's compensation structure will be
reviewed on an annual basis but acknowledge that the Company shall have
no obligation to do so.
6. Direct Deposit. As a condition of employment, and within thirty (30)
days of the effective date of this Agreement, Executive agrees to make
all necessary arrangements to have all sums paid pursuant to this
Agreement direct deposited into one or more bank accounts as designated
by Executive.
7. Warranties and Indemnification. Executive warrants that he is not a
party to any contract, restrictive covenant, or other agreement
purporting to limit or otherwise adversely affecting his ability to
secure employment with any third party except for employment agreements
with previous employers, which Executive warrants will not be violated
by his employment by or performance of services for the Company as
contemplated hereby. Executive agrees to fully indemnify and hold the
Company harmless from any and all claims arising from, or involving the
enforcement of, any such restrictive covenants or other agreements.
8. Restricted Duties. Executive agrees not to disclose, or use for the
benefit of the Company, any confidential or proprietary information
belonging to any predecessor employer which otherwise has not been made
public and further acknowledges that the Company has specifically
instructed him not to disclose or use such confidential or proprietary
information. Based on his understanding of the anticipated duties and
responsibilities hereunder, Executive acknowledges that such duties and
responsibilities will not compel the disclosure or use of any such
confidential and proprietary information.
9. Termination Without Cause. Executive's employment may be terminated at
any time, without cause, by either party upon sixty (60) days' advance
written notice or pay in lieu of notice. In such event, Executive shall
only be entitled to such compensation, benefits and perquisites which
have been paid or fully accrued as of the effective date of his
separation and as otherwise set forth in this Agreement. For purposes
of this Agreement, Executive's employment will be deemed to have been
terminated "without cause" upon the occurrence, without Executive's
consent, of any of the following circumstances:
(i) The assignment to Executive of duties that are materially
inconsistent with the position initially held by the Executive
or a change in his reporting relationship to the CEO;
(ii) The failure to elect or reelect Executive to the office of
Vice President, General Counsel and Secretary (unless such
failure is related in any way to the Company's decision to
terminate Executive for cause);
(iii) The failure of the Company to continue to provide Executive
with office space, related facilities and support personnel
(including, but not limited to, administrative and secretarial
assistance) within the Company's principal executive offices
commensurate with his responsibilities to, and position
within, the Company;
(iv) A reduction by the Company in the amount of Executive's base
salary or the discontinuation or reduction by the Company of
Executive's participation at the same
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level of eligibility as other peer executives in any incentive
compensation, additional compensation, benefits, policies or
perquisites;
(v) The relocation of the Company's principal executive offices or
Executive's place of work to a location of more than 100 miles
outside of Batesville, Indiana; or
(vi) The failure by the Company to timely reimburse Executive for
any valid documented business expenses.
10. Termination With Cause. Executive's employment may be terminated at any
time "for cause" without notice or prior warning. For purposes of this
Agreement, "cause" shall mean the Company's good faith determination
that Executive has:
(i) Failed, refused or otherwise been deemed unable to fully and
timely comply with the terms and conditions of this Agreement,
specifically including any reasonable instructions or orders
issued by the Company, provided such noncompliance is not
based primarily on Employee's good faith compliance with
applicable legal or ethical standards;
(ii) Acquiesced or participated in any conduct that is dishonest,
fraudulent, illegal (at the felony level), unethical, involves
moral turpitude or is otherwise illegal and involves conduct
that has the potential, in the Company's reasonable opinion,
to cause the Company, it officers or its directors
embarrassment or ridicule;
(iii) Violated any Company policy or procedures, specifically
including a violation of Xxxxxxxxxxx Industries, Inc.'s
Handbook of Ethical Business Conduct;
(iv) Disclosed without proper authorization any trade secrets or
other Confidential Information (as defined herein); or
(v) Engaged in any act which, in the reasonable opinion of the
Company, is contrary to its best interests or would hold the
Company, its officers or directors up to probable civil or
criminal liability, provided that, if Executive acts in good
faith in compliance with applicable legal or ethical
standards, such actions shall not be grounds for termination
for cause.
Upon the occurrence or discovery of any event specified above, the
Company shall have the right to terminate Executive's employment,
effective immediately, by providing notice thereof to Executive without
further obligation to him, other than accrued wages, deferred
compensation or other accrued benefits of employment (collectively
referred to herein as "Accrued Obligations") which shall be paid in
accordance with the Company's past practice and applicable law. To the
extent any violation of this Paragraph is capable of being cured by
Executive in a reasonable amount time, the Company agrees to provide
Executive with a reasonable opportunity to so cure such defect. Absent
mutual agreement, the Parties agree that it is not possible for
Executive to cure any violations of Paragraph Nos. 10(ii) or (iv) and,
therefore, no opportunity for cure need be provided in those
circumstances.
11. Termination Due to Death or Disability. In the event Executive dies or
suffers a disability (as defined herein) during the term of employment,
this Agreement shall automatically be terminated on the date of such
death or disability without further obligation on the part of the
Company", other than for (a) payment of the sum of Accrued Obligations,
which shall be paid to Executive or his estate or beneficiary, as
applicable, in a lump sum in cash upon termination; and (b) payment
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to Employee or his estate or beneficiary, as applicable, any amounts
due pursuant to the terms of any applicable benefit plans. For purposes
of this Agreement, Executive shall be considered to have suffered a
"disability" upon the occurrence of one or more of the following
events:
(i) Executive becomes eligible for or receives any benefits
pursuant to any disability insurance policy as a result of a
determination under such policy that Executive is permanently
disabled;
(ii) Executive becomes eligible for or receives any disability
benefits under the Social Security Act; or
(iii) A good faith determination by the Company that Executive is
and will likely remain unable to perform the essential
functions of his duties or responsibilities hereunder on a
full-time basis, subject to reasonable accommodation, as a
result of any mental or physical impairment.
Notwithstanding anything expressed or implied above to the contrary,
the Company agrees to fully comply with its obligations under the
Americans with Disabilities Act as well as any other applicable
federal, state, or local law, regulation, or ordinance governing the
protection of individual with such disabilities as well as the
Company's obligation to provide reasonable accommodation thereunder.
12. Severance Payments. In the event Executive's employment is terminated
by the Company without cause, and subject to the terms and conditions
set out below, Executive shall be eligible for severance pay based upon
his base salary at the time of termination for a period determined in
accordance with any guidelines established by the Company or a period
of up to twelve (12) months, whichever is longer. Executive shall be
entitled to the "full" severance, i.e., fifty-two (52) weeks of
severance without set off for other income over and above such
severance and the Accrued Obligations, in the event Employee is
terminated without cause during the first three (3) years of employment
(measured from his original date of hire). Thereafter, Employee shall
be entitled to severance for the full severance period or until he
obtains other employment, which occurs first. In the event Employee
accepts employment at a lower rate of pay before he exhausts the
above-referenced severance benefits, the Company agrees to continue to
pay Employee the difference between such severance pay benefits and
Employee's base salary to be paid by a subsequent employer. All other
severance benefits however, shall terminate upon reemployment. No
severance pay shall be paid if Executive voluntarily leaves the
Company's employ or is terminated for cause. Any severance pay made
payable hereunder shall be paid in lieu of, and not in addition to, any
notice pay. However, such severance shall be in addition to other
accrued compensation. Additionally, such severance pay is contingent
upon Executive fully complying with the restrictive covenants contained
herein and executing a Separation and Release Agreement in a form not
substantially different from that attached to this Agreement as Exhibit
A. If Executive executes a Separation and Release Agreement in such
form, the Company shall provide Executive with the severance pay and
benefits contemplated in this Agreement and the form of Separation and
Release Agreement attached as Exhibit A.
13. Assignment of Rights.
(a) Copyrights. Executive agrees that all works of authorship
fixed in any tangible medium of expression by him during the
term of this Agreement relating to the Companies' business
("Works"), either solely or jointly with others, shall be and
remain exclusively the property of the Companies. Each such
Work created by Executive is a "work made
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for hire" under the copyright law and the Company may file
applications to register copyright in such Works as author and
copyright owner thereof. If, for any reason, a Work created by
Executive is excluded from the definition of a "work made for
hire" under the copyright law, then Executive does hereby
assign, sell, and convey to the Company or its designee the
entire rights, title, and interests in and to such Work,
including the copyright therein, to the Company or its
designee. Executive will execute any documents which the
Company deems necessary in connection with the assignment of
such Work and copyright therein. Executive will take whatever
reasonable steps and do whatever acts the Company reasonably
requests, including, but not limited to, placement of the
Company's proper copyright notice on Works created by
Executive to secure or aid in securing copyright protection in
such Works and will assist the Company or its nominees in
filing applications to register claims of copyright in such
Works. The Company shall have free and unlimited access at all
times to all Works and all copies thereof and shall have the
right to claim and take possession on demand of such Works and
copies.
(b) Inventions. Executive agrees that all discoveries, concepts,
and ideas, whether patentable or not, including, but not
limited to, apparatus, processes, methods, compositions of
matter, techniques, and formulae, as well as improvements
thereof or know-how related thereto, relating to any present
or prospective product, process, or service of any of the
Companies ("Inventions") that Executive conceives or makes
during the term of this Agreement relating to any of the
Companies' business, shall become and remain the exclusive
property of the Companies, whether patentable or not, and
Executive will, without royalty or any other consideration:
(i) inform the Company promptly and fully of such
Inventions by written reports, setting forth in
detail the procedures employed and the results
achieved;
(ii) assign to the Company or its designee all of his
rights, title, and interests in and to such
Inventions, any applications for United States and
foreign Letters Patent, any United States and foreign
Letters Patent, and any renewals thereof granted upon
such Inventions;
(iii) assist the Company or its nominees, at the expense of
the Company, to obtain such United States and foreign
Letters Patent for such Inventions as the Company may
elect; and
(iv) execute, acknowledge, and deliver to the Company at
the Company's expense such written documents and
instruments, and do such other acts, such as giving
testimony in support of his inventorship, as may be
necessary in the opinion of the Company, to obtain
and maintain United States and foreign Letters Patent
upon such Inventions and to vest the entire rights
and title thereto in the Company or its designee and
to confirm the complete ownership by the Company or
its designee of such Inventions, patent applications,
and patents.
14. Company Property. All records, files, drawings, documents, equipment,
and the like relating to, or provided by, the Companies shall be and
remain the sole property of the applicable Companies. Upon termination
of employment, Executive shall immediately return to the Companies all
such items without retention of any copies. De minimis items such as
pay stubs, 401(k) plan summaries, employee bulletins, and the like are
excluded from this requirement. Any
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legal forms developed by Executive during the term of his employment
may be used by him thereafter provided they are not used to compete
against the Company
15. Confidential Information. Executive acknowledges that the Companies
possess certain trade secrets as well as other confidential and
proprietary information which they have acquired or will acquire at
great effort and expense. Such information may include, without
limitation, confidential information regarding the Companies' products
and services, marketing strategies, business plans, operations, costs,
current or prospective customer information (including customer
contacts, requirements, creditworthiness and like matters), product
concepts, designs, prototypes or specifications, research and
development efforts, technical data and know-how, sales information,
including pricing and other terms and conditions of sale, financial
information, internal procedures, techniques, forecasts, methods, trade
information, trade secrets, software programs, project requirements,
inventions, trademarks, trade names, and similar information regarding
the Companies' business (collectively referred to herein as
"Confidential Information"). Executive further acknowledges that, as a
result of his employment with the Company, Executive will have access
to, will become acquainted with, and/or may help develop, such
Confidential Information.
16. Restricted Use of Confidential Information. Executive agrees that all
Confidential Information is and shall remain the sole and exclusive
property of the applicable Companies. Except as may be expressly
authorized by the Company in writing, Executive agrees not to disclose,
or cause any other person or entity to disclose, any Confidential
Information to any third party while employed by the Company and for as
long thereafter as such information remains confidential (or as limited
by applicable law). Further, Executive agrees to use such Confidential
Information only in the course of Executive's duties in furtherance of
the Company's business and agrees not to make use of any such
Confidential Information for Executive's own purposes or for the
benefit of any other entity or person.
17. Acknowledged Need for Limited Restrictive Covenants. Executive
acknowledges that the Companies have spent and will continue to expend
substantial amounts of time, money and effort to develop their
respective business strategies, Confidential Information, customer
relationships, goodwill and employee relationships, and that Executive
will benefit from these efforts. Further, Executive acknowledges the
inevitable use of, or near-certain influence by his knowledge of, the
Confidential Information disclosed to Executive during the course of
employment if allowed to compete against the Company or any of the
other Companies in an unrestricted manner and that such use would be
unfair and extremely detrimental to the Company and/or or any of the
other Companies. Accordingly, based on these legitimate business
reasons, Executive acknowledges the Company's need to protect its
legitimate business interests by reasonably restricting Executive's
ability to compete with the Company or any of the other Companies on a
limited basis.
18. Non-Solicitation. During Executive's employment and for a period of
eighteen (18) months thereafter, Executive agrees not to directly or
indirectly engage in the following prohibited conduct:
(a) Solicit, offer Competitive Products or services to, accept
orders from, or otherwise transact business with, any customer
or entity with whom Executive had contact or transacted any
business during the eighteen (18) month period preceding
Executive's date of separation or about whom Executive
possessed, or had access to, confidential and proprietary
information;
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(b) Attempt to entice or otherwise cause any third party to
withdraw, curtail or cease doing business with the Company or
any of its affiliated or subsidiary companies, specifically
including customers, venders, independent contractors and
other third party entities;
(c) Disclose to any person or entity the identities, contacts or
preferences of any customers of the Company, or the identity
of any other persons or entities having business dealings with
the Company or any of the other Companies if such information
is at that time confidential or a trade secret.;
(d) Induce any individual who has been employed by or had provided
services to the Company within the six (6) month period
immediately preceding the effective date of Executive's
separation to terminate such relationship with the Company;
(e) Offer employment to, accept employment inquiries from, or
employ any individual who is or had been employed by the
Company or any of the other Companies at any time within the
six (6) month period immediately preceding such offer or
inquiry provided Executive somehow assists in the restricted
activity; or
(f) Otherwise attempt to directly or indirectly interfere with any
of the Companies' business or its relationship with their
respective employees, consultants, independent contractors or
customers.
19. Limited Non-Compete. For the above reasons, and as a condition of
employment to the fullest extent permitted by law, Executive agrees
during the Relevant Non-Compete Period not to directly or indirectly
engage in the following competitive activities:
(a) Executive shall not have any ownership interest in, work for,
advise, consult, or have any business connection or business
or employment relationship with any Competitor unless
Executive provides written notice to the Company of such
relationship prior to entering into such relationship and,
further, provides sufficient written assurances to the
Company's satisfaction that such relationship will not
jeopardize the Company's legitimate interests or otherwise
violate the terms of this Agreement;
(b) Executive shall not engage in any research, development,
production, sale or distribution of any Competitive Products,
specifically including any products or services relating to
those for which Executive had responsibility for the eighteen
(18) month period preceding Executive's date of separation;
(c) Executive shall not market, sell, or otherwise offer or
provide any Competitive Products within the applicable
Geographic Territory, specifically including any products or
services relating to those for which Executive had
responsibility for the eighteen (18) month period preceding
Executive's date of separation; and
(d) Executive shall not distribute, market, sell or otherwise
offer or provide any Competitive Products to any customer of
the Company with whom Executive had contact (either directly
or indirectly) or for which Executive had responsibility at
any time during the eighteen (18) month period preceding
Executive's date of separation.
20. Non-Compete Definitions. For purposes of this Agreement, the Parties
agree that the following terms shall apply:
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(a) "Competitive Products" shall include any product or service
which directly or indirectly competes with, is substantially
similar to, or serves as a reasonable substitute for, any
product or service in research, development or design, or
manufactured, produced, sold or distributed by the Company or
any of the other Companies;
(b) "Competitor" shall include any person or entity that offers or
plans to offer any Competitive Products;
(c) "Geographic Territory" shall include any territory formally
assigned to Executive as well as all territories in which
Executive has provided any services, sold any products or
otherwise had responsibility at any time during the eighteen
(18) month period preceding Executive's date of separation;
(d) "Relevant Non-Compete Term" shall include the period of
Executive's employment with the Company as well as a period of
eighteen (18) months after such employment is terminated,
regardless of the reason for such termination provided,
however, that this period shall be reduced to the greater of
(i) six (6) months or (ii) the total length of Executive's
employment with the Company, including employment with a
parent, subsidiary or affiliated entity, if such employment is
less than eighteen (18) months;
(e) "Directly or indirectly" shall be construed such that the
foregoing restrictions shall apply equally to Executive
whether performed individually or as a partner, shareholder,
officer, director, manager, employee, salesman, independent
contractor, broker, agent, or consultant for any other
individual, partnership, firm, corporation, company, or other
entity engaged in such conduct.
21. Consent to Reasonableness. In light of the above-referenced concerns,
including Executive's knowledge of and access to the Companies'
Confidential Information, Executive acknowledges that the terms of the
foregoing restrictive covenants are reasonable and necessary to protect
the Company's legitimate business interests and will not unreasonably
interfere with Executive's ability to obtain alternate employment. As
such, Executive hereby agrees that such restrictions are valid and
enforceable, and affirmatively waives any argument or defense to the
contrary.
22. Survival of Restrictive Covenants. Executive acknowledges that the
above restrictive covenants shall survive the termination of this
Agreement and the termination of Executive's employment for any reason.
Executive further acknowledges that any alleged breach by the Company
of any contractual, statutory or other obligation shall not excuse or
terminate the obligations hereunder or otherwise preclude the Company
from seeking injunctive or other relief. Rather, Executive acknowledges
that such obligations are independent and separate covenants undertaken
by Executive for the benefit of the Company.
23. Scope of Restrictions. If the scope of any restriction contained in any
preceding paragraphs of this Agreement is deemed too broad to permit
enforcement of such restriction to its fullest extent, then such
restriction shall be enforced to the maximum extent permitted by law,
and Executive hereby consents and agrees that such scope may be
judicially modified accordingly in any proceeding brought to enforce
such restriction.
24. Specific Enforcement/Injunctive Relief. Executive agrees that it would
be difficult to measure any damages to the Company from a breach of the
above-referenced restrictive covenants, but that such damages would be
great, incalculable and irremedial, and that monetary damages alone
would be an inadequate remedy. Accordingly, Executive agrees that the
Company shall be
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entitled to immediate injunctive relief against such breach, or
threatened breach, in any court having jurisdiction. In addition, if
Executive violates any such restrictive covenant, Executive agrees that
the period of such violation shall be added to the term of the
restriction. In determining the period of any violation, the Parties
stipulate that in any calendar month in which Executive engages in any
activity violative of such provisions, Executive shall be deemed to
have violated such provision for the entire month, and that month shall
be added to the duration of the non-competition provision. Executive
acknowledges that the remedies described above shall not be the
exclusive remedies, and the Company may seek any other remedy available
to it either in law or in equity, including the recovery of
compensatory or punitive damages. Executive further agrees that the
Company shall be entitled to an award of all costs and attorneys' fees
incurred by it in any attempt to enforce the terms of this Agreement.
25. Publicly Traded Stock. The Parties agree that nothing contained in this
Agreement shall be construed to prohibit Executive from investing his
personal assets in any stock or corporate security traded or quoted on
a national securities exchange or national market system provided,
however, such investments do not require any services on the part of
Executive in the operation or the affairs of the business or otherwise
violate the Xxxxxxxxxxx Industries, Inc. Handbook of Ethical Business
Conduct. Notwithstanding anything to the contrary contained herein or
elsewhere in this Agreement, the Company acknowledges and consents to
Executive's limited investments in, as well as his obligations and
responsibilities as an officer and agent of, SDI Investments
Liquidating Trust and its Subsidiaries and as an employee of and
special advisor to CombiMatrix Corporation (which position shall
terminate no later than September 1, 2002).
26. Titles. Titles are used for the purpose of convenience in this
Agreement and shall be ignored in any construction of it.
27. Severability. The Parties agree that each and every paragraph,
sentence, clause, term and provision of this Agreement is severable and
that, in the event any portion of this Agreement is adjudged to be
invalid or unenforceable, the remaining portions thereof shall remain
in effect and be enforced to the fullest extent permitted by law.
Further, should any particular clause, covenant, or provision of this
Agreement be held unreasonable or contrary to public policy for any
reason, the Parties acknowledge and agree that such covenant, provision
or clause shall automatically be deemed modified such that the
contested covenant, provision or clause will have the closest effect
permitted by applicable law to the original form and shall be given
effect and enforced as so modified to whatever extent would be
reasonable and enforceable under applicable law.
28. Choice of Forum. Executive acknowledges that the Companies are
primarily based in Indiana, and Executive understands and acknowledges
the Company's desire and need to defend any litigation against it in
Indiana. Accordingly, the Parties agree that any claim of any type
brought by Executive against the Company or any of its employees or
agents not subject to mandatory arbitration must be maintained only in
a court sitting in Xxxxxx County, Indiana, or Xxxxxx County, Indiana,
or, if a federal court, the Southern District of Indiana, Indianapolis
Division. Executive further understands and acknowledges that in the
event the Company initiates litigation against Executive, the Company
may need to prosecute such litigation in such state where the Executive
is subject to personal jurisdiction. Accordingly, for purposes of
enforcement of this Agreement, Executive specifically consents to
personal jurisdiction in the State of Indiana as well as any state in
which resides a customer assigned to the Executive.
29. Choice of Law. This Agreement shall be deemed to have been made within
the County of Xxxxxx, State of Indiana and shall be interpreted and
construed in accordance with the laws of the
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State of Indiana. Any and all matters of dispute of any nature
whatsoever arising out of, or in any way connected with the
interpretation of this Agreement, any disputes arising out of the
Agreement or the employment relationship between the Parties hereto,
shall be governed by, construed by and enforced in accordance with the
laws of the State of Indiana without regard to any applicable state's
choice of law provisions.
30. Assignment-Notices. The rights and obligations of the Company under
this Agreement shall inure to its benefit, as well as the benefit of
its parent, subsidiary, successor and affiliated entities, and shall be
binding upon the successors and assigns of the Company. This Agreement,
being personal to Executive, cannot be assigned by Executive, but his
personal representative shall be bound by all its terms and conditions.
Any notice required hereunder shall be sufficient if in writing and
mailed to the last known residence of Executive or to the Company at
its principal office with a copy mailed to the Office of General
Counsel.
31. Amendments and Modifications. Except as specifically provided herein,
no modification, amendment, extension or waiver of this Agreement or
any provision hereof shall be binding upon the Company or Executive
unless in writing and signed by both Parties. The waiver by the Company
of a breach of any provision of this Agreement by Executive shall not
be construed as a waiver of any subsequent breach. Nothing in this
Agreement shall be construed as a limitation upon the Company's right
to modify or amend any of its manuals or policies in its sole
discretion and any such modification or amendment which pertains to
matters addressed herein shall be deemed to be incorporated herein and
made a part of this Agreement.
32. Outside Representations. Executive represents and acknowledges that in
signing this Agreement he does not rely, and has not relied, upon any
representation or statement made by the Company or by any of the
Company's employees, officers, agents, stockholders, directors or
attorneys with regard to the subject matter, basis or effect of this
Agreement other than those specifically contained herein.
33. Voluntary and Knowing Execution. Executive acknowledges that he has
been offered a reasonable amount of time within which to consider and
review this Agreement; that he has carefully read and fully understands
all of the provisions of this Agreement; and that he has entered into
this Agreement knowingly and voluntarily.
34. Entire Agreement. This Agreement constitutes the entire employment
agreement between the Parties hereto concerning the subject matter
hereof and shall supersede any and all prior and contemporaneous
agreements between the Parties in connection with the subject matter of
this Agreement. Nothing in this Agreement, however, shall affect any
separately-executed written agreement addressing any other issues
(e.g., the Inventions, Improvements, Copyrights and Trade Secrets
Agreement, the Change in Control Agreement between the Company and
Executive of even date herewith as well as the Indemnity Agreement
independently executed by the Company and Executive of even date
herewith).
(Document continued on next page)
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IN WITNESS WHEREOF, the Parties have signed this Agreement effective as
of the day and year first above written.
EXECUTIVE XXXXXXXXXXX INDUSTRIES, INC.
Signed: ______________________________ By: ______________________________
Printed: _____________________________ Title: ___________________________
Dated: _______________________________ Dated: ___________________________
CAUTION: READ BEFORE SIGNING
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Exhibit A
SEPARATION AND RELEASE AGREEMENT
THIS SEPARATION and RELEASE AGREEMENT ("Agreement") is entered into by
and between Xxxxxxx X. xx Xxxxxxxxx ("Employee") and Xxxxxxxxxxx Industries,
Inc. ("Company"). To wit, the Parties agree as follows:
1. Employee's active employment by the Company shall terminate effective
[DATE OF TERMINATION] (Employee's "Effective Termination Date"). As of
that date, all Company benefits and obligations shall terminate, except
as and to the extent set forth herein and in Executive's Employment
Agreement, the Change in Control Agreement between the Company and
Executive, and the Indemnity Agreement negotiated and entered into
between the Company and Executive (collectively, the "Other
Agreements").
2. Except as specifically provided by this Agreement or those Other
Agreements, Employee agrees that the Company shall have no other
obligations or liabilities to him following his Effective Termination
Date and that his receipt of the Severance Benefits provided herein
shall constitute a complete settlement, satisfaction and waiver of any
and all claims he may have against the Company.
3. In consideration of the promises contained in this Agreement and
contingent upon Employee's compliance with such promises, the Company
agrees to provide Employee the following:
(i) Severance pay, inclusive of any notice pay obligations, to be
paid at the bi-weekly rate of $_______, less applicable
deductions or other set-offs, for a period of up to Fifty-two
(52) weeks following the Employee's Effective Termination Date
in accordance with the terms and conditions set forth below in
Paragraph No. 5;
(ii) Payment for any earned but unused vacation as of Employee's
Effective Termination Date; and
(iii) Life insurance coverage until the above-referenced Severance
Pay terminates.
4. The above Severance Pay Benefits shall be paid in accordance with the
Company's standard payroll practices (e.g. biweekly) and shall begin on
the first normally scheduled payroll following Employee's Effective
Termination Date or the effective date of this Agreement, whichever
occurs last. The Parties agree that the initial four (4) weeks of the
foregoing severance shall be allocated as additional consideration
provided to Employee in exchange for his execution of a release in
compliance with the Older Workers Benefit Protection Act. The balance
of the severance benefits shall be allocated as consideration for all
other promises and obligations undertaken by Employee, including
execution of a general release of claims.
5. The Parties agree that Employee shall be entitled to the "full"
severance, i.e., fifty-two (52) weeks of severance without set off for
other income over and above such severance and the Accrued Obligations
(as defined in Executive's Employment Agreement), in the event Employee
is terminated without cause during the first three (3) years of
employment (measured from his original date of hire). Thereafter,
Employee shall be entitled to severance for the full severance period
or until he obtains other employment, which occurs first. In the event
Employee accepts employment at a lower rate of pay before he exhausts
the above-referenced severance benefits, the Company agrees to continue
to pay Employee the difference between such severance pay
benefits and Employee's base salary to be paid by a subsequent
employer. All other severance benefits however, shall terminate upon
reemployment.
6. In addition, the Company agrees to provide Employee with limited
out-placement counseling consistent with Employee's position and tenure
with a entity of the Company choosing provided Employee begins to
participate in such counseling immediately following termination of
employment.
7. As of the Effective Termination Date, Employee will become ineligible
to participate in the Company's health insurance program and
continuation of coverage requirements under COBRA (if any) will be
triggered at that time. However, as additional consideration for the
promises and obligations contained herein, and provided Employee timely
completes the applicable election of coverage forms, the Company
further agrees to pay the cost of such continued coverage under the
Company's health care program until the above-referenced Severance Pay
terminates. Thereafter, if applicable, coverage will be made available
to Employee at his sole expense for the remaining months of the COBRA
coverage period made available pursuant to applicable law. The medical
insurance provided herein does not include any disability coverage.
8. Employee agrees to notify the Company in writing within three (3)
business days of Employee's acceptance of any subsequent employment by
providing the name of such employer, his intended duties as well as the
anticipated start date. Such information is required to ensure
Employee's compliance with his non-compete obligations as well as all
other applicable restrictive covenants. This notice will also serve to
trigger the Company's right to terminate the above-referenced severance
benefits and Company-paid COBRA benefits consistent with the above
paragraphs. Failure to timely provide such notice shall be deemed a
material breach of this Agreement entitling the Company to recover as
damages the value of all benefits provided to Employee hereunder.
9. It is understood by the Parties that, unless it is specifically stated
otherwise, nothing in this Agreement shall affect any rights Employee
may have under any Pension Plan and/or Savings Plan (i.e., 401(k) plan)
provided by the Company as of the date of his termination, such items
to be governed exclusively by the terms of the applicable plan
documents.
10. In exchange for the foregoing Severance Benefits, XXXXXXX xx XXXXXXXXX
on behalf of himself, his heirs, representatives, agents and assigns
hereby COVENANTS NOT TO XXX, RELEASES, INDEMNIFIES, HOLDS HARMLESS, and
FOREVER DISCHARGES (i) Xxxxxxxxxxx Industries, Inc., (ii) its parent,
subsidiary or affiliated entities, (iii) all of their present or former
directors, officers, employees, shareholders, and agents as well as
(iv) all predecessors, successors and assigns thereof from any and all
actions, charges, claims, demands, damages or liabilities of any kind
or character whatsoever, known or unknown, which Employee now has or
may have had through the effective date of this Agreement.
11. Without limiting the generality of the foregoing release, it shall
include: (i) all claims or potential claims arising under any federal,
state or local laws relating to the Parties' employment relationship,
including any claims Employee may have under the Civil Rights Acts of
1866 and 1964, as amended, 42 U.S.C. Sections 1981 and 2000(e) et seq.;
the Civil Rights Act of 1991; the Age Discrimination in Employment Act,
as amended, 29 U.S.C. Sections 621 et seq.; the Americans with
Disabilities Act of 1990, as amended, 42 U.S.C. Sections 12,101 et
seq.; the Fair Labor Standards Act 29 U.S.C. Sections 201 et seq.; the
Worker Adjustment and Retraining Notification Act, 29 U.S.C. Sections
2101, et seq.; and any other federal, state or local law governing the
Parties' employment relationship; (ii) any claims on account of,
arising out of or in any way connected with Employee's employment with
the Company or leaving of that employment; (iii) any claims alleged or
which could have been alleged in any charge or complaint against the
Company; (iv)
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any claims relating to the conduct of any employee, officer, director,
agent or other representative of the Company; (v) any claims of
discrimination, harassment or retaliation on any basis; (vi) any claims
arising from any legal restrictions on an employer's right to separate
its employees; (vii) any claims for personal injury, compensatory or
punitive damages or other forms of relief; and (viii) all other causes
of action sounding in contract, tort or other common law basis,
including (a) the breach of any alleged oral or written contract, (b)
negligent or intentional misrepresentations, (c) wrongful discharge,
(d) just cause dismissal, (e) defamation, (f) interference with
contract or business relationship or (g) negligent or intentional
infliction of emotional distress.
12. The Parties acknowledge that it is their mutual and specific intent
that the above waiver fully comply with the requirements of the Older
Workers Benefit Protection Act (29 U.S.C. Section 626) and any similar
law governing release of claims. Accordingly, Employee hereby
acknowledges that:
(a) He has carefully read and fully understands all of the
provisions of this Agreement and that he has entered into this
Agreement knowingly and voluntarily;
(b) The Severance Benefits offered in exchange for Employee's
release of claims exceed in kind and scope that to which he
would have otherwise been legally entitled;
(c) Prior to signing this Agreement, Employee had been advised,
and is being advised by this Agreement, to consult with an
attorney of his choice concerning its terms and conditions;
and
(d) He has been offered at least twenty-one (21) days within which
to review and consider this Agreement.
13. The Parties agree that nothing contained herein shall purport to waive
or otherwise affect any of Employee's rights or claims that may arise
after he signs this Agreement.
14. The Parties agree that this Agreement shall not become effective and
enforceable until the date this Agreement is signed by both Parties or
seven (7) calendar days after its execution by Employee, whichever is
later. Employee may revoke this Agreement for any reason by providing
written notice of such intent to the Company within seven (7) days
after he has signed this Agreement, thereby forfeiting Employee's right
to receive any Severance Benefits provided hereunder and rendering this
Agreement null and void in its entirety.
15. Although the Company is unwilling to release any claims it may have
against Employee, the Company affirmatively represents and warrants on
behalf of itself, and on behalf of (i) its subsidiary and affiliated
entities, (ii) all of their present or former directors, officers,
employees, shareholders and agents, as well as (iii) all predecessors,
successors and assigns thereof, that it is unaware of any facts,
circumstances, occurrences, claims, damages or liabilities which could
serve as a basis for filing any action, charge, claim, or lawsuit
against Employee as of the effective date of this Agreement.
16. Employee acknowledges that his termination and the Severance Benefits
offered hereunder were based on an individual determination and were
not offered in conjunction with any group termination or group
severance program and waives any claim to the contrary.
17. Employee hereby affirms and acknowledges his continued obligations to
comply with the post-termination covenants contained in his Employment
Agreements, including but not limited to, the non-compete, trade secret
and confidentiality provisions. Employee acknowledges that a copy of
- 3 -
the Employment Agreement has been attached to this Agreement as Exhibit
A or has otherwise been provided to him and, to the extent not
inconsistent with the terms of this Agreement or applicable law, the
terms thereof shall be incorporated herein by reference. Employee
acknowledges that the terms, conditions and restrictions contained
therein are valid and reasonable in every respect and are necessary to
protect the Company's legitimate business interests. Employee hereby
affirmatively waives any claim or defense to the contrary.
18. The Company hereby affirms and acknowledges its continued obligations
to comply with the post-termination covenants contained in the Other
Agreements. To the extent not inconsistent with the terms of this
Agreement or applicable law, the terms thereof shall be incorporated
herein by reference. The Parties acknowledge that the terms, conditions
and restrictions contained in the Other Agreements are valid and
reasonable in every respect and are necessary to protect the Company's
and Employee's legitimate business interests. The Parties each hereby
affirmatively waive any claim or defense to the contrary.
19. Employee acknowledges that the Company possesses, and he has been
granted access to, certain trade secrets as well as other confidential
and proprietary information which the Company has acquired at great
effort and expense. Such information includes, without limitation,
confidential information regarding products and services, marketing
strategies, business plans, operations, costs, current or prospective
customer information (including customer contacts, requirements,
creditworthiness and like matters), product concepts, designs,
prototypes or specifications, regulatory compliance issues, research
and development efforts, technical data and know-how, sales
information, including pricing and other terms and conditions of sale,
financial information, internal procedures, techniques, forecasts,
methods, trade information, trade secrets, software programs, project
requirements, inventions, trademarks, trade names, and similar
information regarding the Companies' business (collectively referred to
herein as "Confidential Information").
20. Employee agrees that all such Confidential Information is and shall
remain the sole and exclusive property of the Company. Except as may be
expressly authorized by the Company in writing, or as may be required
by law after providing due notice thereof to the Company, Employee
agrees not to disclose, or cause any other person or entity to
disclose, any Confidential Information to any third party for as long
thereafter as such information remains confidential (or as limited by
applicable law) and agrees not to make use of any such Confidential
Information for Employee's own purposes or for the benefit of any other
entity or person.
21. On or before Employee's Effective Termination Date or per the Company's
request, Employee agrees to return the original and all copies of all
things in his possession or control relating to the Company or its
business, including but not limited to any and all contracts, reports,
memoranda, correspondence, manuals, forms, records, designs, budgets,
contact information or lists (including customer, vendor or supplier
lists), ledger sheets or other financial information, drawings, plans
(including, but not limited to, business, marketing and strategic
plans), personnel or other business files, computer hardware, software,
or access codes, door and file keys, identification, credit cards,
pager, phone, and any and all other physical, intellectual, or personal
property of any nature that he received, prepared, helped prepare, or
directed preparation of in connection with his employment with the
Company. Nothing contained herein shall be construed to require the
return of any non-confidential and de minimis items regarding
Employee's pay, benefits or other rights of employment such as pay
stubs, W-2 forms, 401(k) plan summaries, benefit statements, etc.
22. Employee hereby consents and authorizes the Company to deduct as an
offset from the above-referenced severance payments the value of any
Company property not returned or returned in a
- 4 -
damaged condition as well as any monies paid by the Company on
Employee's behalf (e.g., payment of any outstanding American Express
xxxx).
23. Employee agrees not to make any written or oral statement that may
defame, disparage or cast in a negative light so as to do harm to the
personal or professional reputation of (a) the Company, (b) its
employees, officers, directors or trustees, or (c) the services and/or
products provided by the Company and its subsidiaries or affiliate,
provided, however, that nothing contained herein shall be construed to
limit or otherwise restrict the Employee from providing truthful
information in response to a court order, subpoena or other lawful
request. Similarly, the Company agrees not to make any written or oral
statement that may defame, disparage or cast in a negative light so as
to do harm to the personal or professional reputation of Employee,
provided, however, that nothing contained herein shall be construed to
limit or otherwise restrict the Company from providing truthful
information in response to a court order, subpoena or other lawful
request.
24. Employee specifically agrees and understands that the existence and
terms of this Agreement are strictly CONFIDENTIAL and that such
confidentiality is a material term of this Agreement. Accordingly,
except as required by law or unless authorized to do so by the Company
in writing, Employee agrees that he shall not communicate, display or
otherwise reveal any of the contents of this Agreement to anyone other
than his spouse, legal counsel or financial advisor provided, however,
that they are first advised of the confidential nature of this
Agreement and Employee obtains their agreement to be bound by the same.
The Company agrees that Employee may respond to legitimate inquiries
regarding the termination of his employment by stating that the Parties
have terminated their relationship on an amicable basis and that the
Parties have entered into a Confidential Separation and Release
Agreement which prohibits him from further discussing the specifics of
his separation. Nothing contained herein shall be construed to prevent
Employee from discussing or otherwise advising subsequent employers of
the existence of any obligations as set forth in his Employment
Agreement. Further, nothing contained herein shall be construed to
limit or otherwise restrict the Company's ability to disclose the terms
and conditions of this Agreement as may be required by business
necessity.
25. In the event that Employee breaches or threatens to breach any
provision of this Agreement, he agrees that the Company shall be
entitled to seek any and all equitable and legal relief provided by
law, specifically including immediate and permanent injunctive relief.
Employee hereby waives any claim that the Company has an adequate
remedy at law. In addition, and to the extent not prohibited by law,
Employee agrees that the Company shall be entitled to discontinue
providing any additional Severance Benefits upon such breach or
threatened breach as well as an award of all costs and attorneys' fees
incurred by the Company in any successful effort to enforce the terms
of this Agreement. Employee agrees that the foregoing relief shall not
be construed to limit or otherwise restrict the Company's ability to
pursue any other remedy provided by law, including the recovery of any
actual, compensatory or punitive damages. Moreover, if Employee pursues
any claims against the Company subject to the foregoing General
Release, or breaches the above Confidential provision, Employee agrees
to immediately reimburse the Company for the value of all benefits
received under this Agreement to the fullest extent permitted by law.
26. Similarly, in the event that the Company breaches or threatens to
breach any provision of this Agreement, Employee shall be entitled to
seek any and all equitable and legal relief provided by law,
specifically including immediate and permanent injunctive relief. In
the event Employee is required to file suit to enforce the terms of
this Agreement, the Company agrees that Employee shall be entitled to
recover an award of all costs and attorneys' fees incurred by him in
any successful effort to enforce the terms of this Agreement. In the
event Employee is unsuccessful, he agrees that the Company shall be
entitled to an award of its costs and attorneys' fees.
- 5 -
27. Employee and the Company hereby acknowledge that this Agreement is
entered into solely for the purpose of terminating their employment
relationship on an amicable basis and shall not be construed as an
admission of liability or wrongdoing by either Employee or the Company,
both parties having each expressly denied any such liability or
wrongdoing.
28. Each of the promises and obligations shall be binding upon and shall
inure to the benefit of the heirs, executors, administrators, assigns
and successors in interest of each of the Parties.
29. The Parties agree that each and every paragraph, sentence, clause, term
and provision of this Agreement is severable and that, if any portion
of this Agreement should be deemed not enforceable for any reason, such
portion shall be stricken and the remaining portion or portions thereof
should continue to be enforced to the fullest extent permitted by
applicable law.
30. This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Indiana without regard to any applicable
state's choice of law provisions.
31. Employee represents and acknowledges that in signing this Agreement he
does not rely, and has not relied, upon any representation or statement
made by the Company or by any of the Company's employees, officers,
agents, stockholders, directors or attorneys with regard to the subject
matter, basis or effect of this Agreement other than those specifically
contained herein.
32. This Agreement represents the entire agreement between the Parties
concerning the subject matter hereof, shall supercede any and all prior
agreements which may otherwise exist between them concerning the
subject matter hereof (specifically excluding, however, the
post-termination obligations contained in any existing Employment
Agreement or other legally-binding document), and shall not be altered,
amended, modified or otherwise changed except by a writing executed by
both Parties.
PLEASE READ CAREFULLY. THIS SEPARATION AND RELEASE
AGREEMENT INCLUDES A COMPLETE RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS.
IN WITNESS WHEREOF, the Parties have themselves signed, or caused a
duly authorized agent thereof to sign, this Agreement on their behalf and
thereby acknowledge their intent to be bound by its terms and conditions.
"EMPLOYEE" XXXXXXXXXXX INDUSTRIES, INC.
Signed: ______________________________ By: ______________________________
Printed: _____________________________ Title: ___________________________
Dated: _______________________________ Dated: ___________________________
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December 22, 2003
Xxxxxxx X. xx Xxxxxxxxx
Xxxxxxxxxxx Industries, Inc.
000 Xxxxx Xxxxx 00 Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Dear Xxxxxxx:
Re: Amendment to Employment Agreement
This is to confirm that, notwithstanding anything in Paragraphs 9 and
12 of the Employment Agreement dated January 28, 2002, between you and
Xxxxxxxxxxx Industries, Inc. ("Company") (hereinafter "Employment Agreement"),
in the event your employment is involuntarily terminated by the Company without
cause, you shall, subject to the terms and conditions set out below, be entitled
to receive the greater of:
(i) (a) Fifty-two (52) weeks of your base salary at the time of
termination paid as a lump sum, without set off for any other
income over and above such severance or any Accrued
Obligations and (b) any Accrued Obligations; or
(ii) (a) Severance pay determined in accordance with any guidelines
established by the Company, without set off for any other
income over and above such severance or any Accrued
Obligations and (b) any Accrued Obligations;
"Accrued Obligations" collectively refers to accrued wages, deferred
compensation, or other compensation, benefits, or perquisites which have been
fully paid or fully accrued as of the effective date of your separation, in
accordance with the Company's past practice and applicable law.
This severance pay will be in lieu of, and not in addition to, any amount of
severance pay previously described in Paragraph 12 of your Employment Agreement
as payable to you in the event your employment with the Company is involuntarily
terminated without cause.
No severance pay shall be paid if you voluntarily leave the Company's employ or
are terminated for cause. Any severance pay made payable hereunder shall be paid
in lieu of, and not in addition to, any notice pay.
Additionally, such severance pay is contingent upon you (1) fully complying with
any restrictive covenants contained in your Employment Agreement and (2)
executing a Separation and Release Agreement in a form not substantially
different from that attached to your Employment Agreement as Exhibit A
("Separation Agreement") and including the terms contained in this Amendment.
Except to the extent explicitly amended herein, all terms and conditions
contained in your Employment Agreement, in any document specifically
incorporated therein by reference, and in any other agreement between you and
the Company, shall remain in full force and effect.
Sincerely,
Xxxxxxxxx X. Xxxxxxxx
President and CEO
Xxxxxxxxxxx Industries, Inc.
THIS AMENDMENT IS MADE PART OF AND SHOULD BE KEPT WITH YOUR EMPLOYMENT AGREEMENT
