SEVERANCE AND GENERAL RELEASE AGREEMENT
In
accordance with the terms and provisions of the Amended and Revised Employment
Agreement (the “Employment Agreement”) made as of July 17, 2008, between Xxxxx
X. Xxxxxxxx (the “Executive”) and Resources Connection, Inc., (the “Company”)
and in exchange and consideration of the covenants undertaken and releases
contained in this Severance and General Release Agreement (“Agreement”), the
Executive and the Company enter into this Agreement on this 17th day of August,
2009, and agree as follows:
1. Resignation: Executive
hereby resigns as a member of the Board of Directors of the Company, or any of
its subsidiaries or affiliates, effective immediately and from employment by and
from any and all of her positions at the Company and each of its affiliates,
including her position as Executive Vice President and Chief Strategy Officer of
the Company effective as of August 21, 2009 (the “Separation
Date”). Accordingly, the Company and Executive acknowledge that any
contractual or employment relationship between them terminates as of the
Separation Date, and that they have no further contractual relationship (except
as may arise out of or be expressly provided for in this Agreement) or
employment relationship thereafter. Executive is relieved of all
active duties effective August 21, 2009.
2. Severance: The
Company shall pay to or provide for the Executive the following:
A. A
lump sum cash payment equal to (i) the sum of three and one-half times
Executive’s current base salary of $330,000, payable on March 1, 2010, after
taking into account the six-month delay rule as described in Section 30 of the
Employment Agreement and (ii) the interest on such amount for the time period
from September 1, 2009, to February 28, 2010, determined at the Company’s
standard rate of return payable on March 1, 2010, after deducting, in each case,
applicable federal, state and local taxes.
B. Four
monthly payments of $31,182.69 each in 2009, payable on the first day of
September, October, November and December of such year, equal to the Executive’s
current base salary and automobile allowance after deducting, in each case,
applicable federal, state and local taxes. A summary of payments to
be made to the Executive is annexed as Exhibit 1.
C. Continued
participation in the Company’s group health insurance plans for Executive and
Executive’s dependents, including the group medical, vision and dental plans, at
the Company’s expense until the earlier of (i) the expiration of two (2) years
from August 21, 2009, or (ii) Executive’s eligibility for participation in the
substantially comparable group health plan of a subsequent employer or
entity. For the avoidance of doubt, in the event that Executive shall
become eligible to participate in a subsequent employer’s or entity’s
substantially comparable benefits plan(s) offering one or more, but not all, of
the benefits herein described (for example, group medical, but not vision and
dental), Executive shall be entitled to continue to receive from the Company the
benefits that are not offered, and/or for which she is not eligible, under the
subsequent employer’s or entity’s benefits plan(s) until the earliest of the
expiration of two (2) years from August 21, 2009, or when she becomes so
eligible (if at all).
Except as
set forth above in this Section 2 and below in Section 3, and except
for Executive’s vested benefits under the Company’s 401(k) plan: (i) Executive
will not be entitled to any other benefits in connection with the termination of
her employment, and (ii) Executive represents and agrees that she has received
all compensation and other benefits which she is due from the Company and its
affiliates and no other compensation or benefits are or will be due to Executive
from the Company or any of its affiliates. Executive expressly
acknowledges and agrees that she has been paid any and all vacation or personal
time off accruals and no further payments are due or payable.
3. Stock
Options: As of the date of Executive’s termination of
employment, any remaining unvested stock options or restricted stock received by
Executive during the term of her employment, shall automatically be deemed
vested and remain exercisable for the duration of the term of such award,
notwithstanding any other provision of this Agreement or applicable
plans.
4. Company
Property: Executive warrants and represents that she has
returned any and all property belonging to the Company effective August 21,
2009, including her mobile broadband card. The Company and the
Executive agree that she may retain her Blackberry and laptop computer;
provided, however, she returns the Blackberry and laptop computer to the
Parsippany office of the Company on or before August 21, 2009, so that the
Company’s IT department may wipe the devices clean of all Company information
and material. The Company and Executive further agree that Executive
may use the Company’s e-mail system through August 31, 2009, for professional
and reasonable transition. Effective September 1, 2009 through
December 31, 2009, the Company will set up a notice on her email account to
notify senders that she has an alternative address.
5. No
Admission of Liability: The Company expressly denies any
violation of any of its policies, procedures, state or federal laws or
regulations. Accordingly, while this Agreement resolves all issues
between Executive and the Company relating to alleged violation of the Company’s
policies or procedures or any state or federal law or regulation, if any, this
Agreement does not constitute an adjudication or finding on the merits and it is
not, and shall not be construed as, an admission by the Company of any violation
of its policies, procedures, state or federal laws or
regulations. Moreover, neither this Agreement nor anything in this
Agreement shall be construed to be or shall be admissible in any proceeding as
evidence of or an admission by the Company of any violation of its policies,
procedures, state or federal laws or regulations. This Agreement may
be introduced, however, in any proceeding to enforce the
Agreement. The Company acknowledges that, as of the Agreement Date,
the Company is not aware of any violation by Executive during the course of her
employment by the Company of any of its policies, procedures, rules of
governance, corporate compliance plans or similar corporate governing documents
or any state or federal laws or regulations.
6. Release:
BY
EXECUTIVE: Except for those obligations created by or arising out of
this Agreement, Executive, on behalf of herself, her descendants, dependents,
heirs, executors, administrators, assigns, and successors, and each of them,
hereby acknowledges the full and complete satisfaction by the Company of its
obligations under the Employment Agreement, and hereby releases and discharges
and covenants not to xxx the Company, its divisions, affiliated corporations,
past and present, and each of them, as well as its and their directors,
officers, managers, shareholders, representatives, assignees, successors, agents
and executives, past and present, and each of them (individually and
collectively, the “Releasees”). This release applies to any and all
claims, wages, agreements, obligations, demands, contracts, covenants, actions,
suits, obligations, debts, costs, expenses, attorneys’ fees damages, judgments,
orders, rights, causes of action and liabilities of whatever kind or nature in
law, equity or otherwise, whether now known or unknown, suspected or unsuspected
and whether or not concealed or hidden, which she now owns or holds or she has
at any time heretofore owned or held or which she may in the future hold as
against said Releasees (collectively “Claims”), including, but not limited to
all such claims arising out of or in any way connected with Executive’s
employment relationship with, or her resignation, separation or termination
from, the Company, or any other transactions, occurrences, acts or omissions or
any loss, damage or injury whatever, and including, without limitation, any
Claims for severance pay, bonus or similar benefit, sick leave, personal time
off, retirement, vacation pay, holiday pay, life insurance, health or medical
insurance or any other non-ERISA fringe benefit, workers’ compensation or
disability, or any other Claims resulting from any act or omission by or on the
part of Releasees committed or omitted prior to the Separation Date, including,
without limitation, any Claims under Title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act, the Americans with Disabilities Act,
the Family and Medical Leave Act of 1993, the New Jersey antidiscrimination
laws, or any other federal, state or local law, regulation or
ordinance.
BY THE
COMPANY: Except for (i) those obligations created by or arising out of this
Agreement or (ii) any and all claims, agreements, obligations, demands, rights,
causes of action and liabilities arising out of Executive’s intentional
misconduct, the Company, on behalf of itself and on behalf of the Company’s
divisions, affiliated corporations, past and present, and each of them, as well
as on behalf of its and their directors, officers, managers, shareholders,
representatives, assignees, successors, agents and executives, past and present,
and each of them, hereby acknowledges the full and complete satisfaction by
Executive of her obligations under the Employment Agreement, and hereby releases
and discharges and covenants not to xxx Executive, her descendants, dependents,
heirs, executors, administrators, assigns, and successors, and each of
them. This release applies to any and all claims, agreements,
obligations, demands, rights, causes of action and liabilities of whatever kind
or nature, in law, equity or otherwise, whether now known or unknown, suspected
or unsuspected, arising out of or in any way connected with any acts or
omissions by Executive engaged in during the course of Executive’s employment by
the Company and/or arising out of or in any way connected with Executive’s
employment relationship with, or her resignation, separation or termination
from, the Company.
7. Bar to
Claims: It is a further condition of the consideration hereof
and is the intention of both parties in executing this instrument that the same
shall be effective as a bar as to each and every claim, demand and cause of
action hereinabove specified and, in furtherance of this intention, Executive
hereby expressly consents that this Agreement shall be given full force and
effect according to each and all of its express terms and conditions, including
those relating to unknown and unsuspected claims, demands and causes of actions,
if any, as well as those relating to any other claims, demands and causes of
actions hereinabove specified. Nothing contained in this Agreement
shall be interpreted to prevent any governmental agency from pursuing any matter
which it deems appropriate or to prevent Executive from filing a charge or
administrative complaint with any governmental administrative agency; provided,
however, that any and all remedies available on behalf of Executive are covered
by the releases in this Agreement.
8. Unknown
Claims: It is the intention of Executive in executing this
instrument that the same shall be effective as a bar to each and every claim,
demand and cause of action hereinabove specified. In furtherance of
this intention, Executive hereby expressly consents that this Agreement shall be
given full force and effect according to each and all of its express terms and
provisions, including those related to unknown and unsuspected claims, demands
and causes of action, if any, as well as those relating to any other claims,
demands and causes of action hereinabove specified. Executive
acknowledges that she may hereafter discover claims or facts in addition to or
different from those which she now knows or believes to exist with respect to
the subject matter of this Agreement and which, if known or suspected at the
time of executing this Agreement, may have materially affected this
Agreement. Nevertheless, Executive hereby waives any right, claim or
cause of action that might arise as a result of such different or additional
claims or facts. Executive acknowledges that she understands the
significance and consequence of such release.
9. ADEA
Waiver: Executive expressly acknowledges and agrees that, by
entering into this Agreement, she is waiving any and all rights or claims that
she may have arising under the Age Discrimination in Employment Act of 1967, as
amended, which have arisen on or before the Separation Date. Executive further
expressly acknowledges and agrees that:
|
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A.
|
In
return for this Agreement she will receive compensation beyond that which
she already was entitled to receive before entering into this
Agreement;
|
|
|
B.
|
She
is hereby advised in writing by this Agreement to consult with an attorney
before signing this Agreement;
|
|
|
C.
|
She
was given a copy of this Agreement on August 13, 2009, and informed that
she had 21 days within which to consider the Agreement; however, Executive
may waive the 21-day period; and
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D.
|
She
was informed that she has seven (7) days following the Agreement Date in
which to revoke the Agreement.
|
Any
revocation pursuant to clause D above should be in writing, expressly reference
the Agreement, and be addressed and delivered as provided in Section 24 so that
it is received prior to the expiration of such 7-day period.
10. Non-Disparagement:
Executive and the Company agree that neither will make any defamatory or
disparaging oral or written comments or statements (hereinafter, “Disparaging
Comments”) concerning the other, her or its business, reputation, executives, or
past or present directors or affiliates or subsidiaries. For purposes
of this section, the term “Company” shall mean to include Board of Director
members and executive officers of the Company. The parties agree that
this non-disparagement clause is a material term of the Agreement and, if
breached, damages would be difficult to ascertain. Accordingly,
either party found in breach of this provision shall pay to the non-breaching
party liquidated damages in the amount of $50,000.00 per occurrence, plus
reasonable attorneys’ fees incurred to enforce this provision. For
purposes of this provision, “Disparaging Comments” is defined to refer to any
verbal, electronic, or written statement which would affirmatively discredit,
belittle, or ridicule Executive or the Company, as the case may be, either
personally or professionally.
11. Severability: If
any provision of this Agreement or its application is held invalid, the
invalidity shall not affect other provisions or applications of the Agreement
which can be given effect without the invalid provisions or application and,
therefore, the provisions of this Agreement are declared to be
severable.
12. Restrictive
Covenants: In accordance with the terms of her Employment
Agreement, for a period of two years following the Separation Date, the
Executive will continue to be bound by the provisions of paragraph 14, Restrictive Covenants, in the
Employment Agreement.
13. Confidentiality:
In accordance with paragraph 15, Confidentiality, of the
Executive’s Employment Agreement, Executive will not at any time, unless
compelled by lawful process, disclose or use for her own benefit or purposes or
the benefit or purposes of any other person, firm, partnership, joint venture,
association, corporation or other business organization, entity or enterprise
other than the Company and any of its subsidiaries or affiliates, any trade
secrets, or other confidential data or information of the Company, including but
not limited to such information relating to customers, development programs,
costs, marketing, trading, investment, sales activities, promotion, credit and
financial data, manufacturing processes, financing methods, plans, or the
business and affairs of the Company generally, or of any subsidiary or affiliate
of the Company; provided that the
foregoing shall not apply to information which is not unique to the Company or
which is generally known to the industry or the public other than as a result of
Executive’s breach of this covenant. Executive agrees that upon the
Separation Date, she will return to the Company immediately all memoranda,
books, papers, plans, information, letters, client information, strategy group
materials, client development plans, and other data, and all copies thereof or
there from, in any way relating to the business of the Company and its
affiliates, except that she may retain personal notes, notebooks and diaries
that do not contain confidential information of the type described in the
preceding sentence. Executive further agrees that she will not retain
or use for her account at any time any trade names, trademark or other
proprietary business designation used or owned in connection with the business
of the Company or its affiliates.
14. Entire
Agreement: This Agreement embodies the entire agreement of the
parties hereto respecting the matters within its scope. This
Agreement supersedes all prior agreements of the parties hereto on the subject
matter hereof. Any prior negotiations, correspondence, agreements,
proposals, or understandings relating to the subject matter hereof shall be
deemed to be merged into this Agreement and to the extent inconsistent herewith,
such negotiations, correspondence, agreements, proposals, or understandings
shall be deemed to be of no force or effect. There are no
representations, warranties, or agreements, whether express or implied, or oral
or written, with respect to the subject matter hereof, except as set forth
herein. Notwithstanding the foregoing, this Agreement is not intended
to modify or extinguish any rights or obligations contained in (i) any stock
option, restricted stock or other equity or equity-based award agreement between
Executive and the Company that was executed prior to the Separation Date or (ii)
any indemnification agreement between Executive and the Company prior to
Separation Date.
15. No
Assignment: Executive warrants and represents that she has not
heretofore assigned or transferred to any person not a party to this Agreement
any released matter or any part or portion thereof and Executive shall defend,
indemnify and hold harmless the Company from and against any claim based on or
in connection with or arising out of any such assignment or transfer made,
purported or claimed.
16. Non-Binding
Mediation: Except as provided otherwise herein, before
commencing any legal proceeding in any court of law, any controversy arising out
of or relating to this Agreement, its enforcement or interpretation, or because
of an alleged breach, default, or misrepresentation in connection with any of
its provisions, or any other controversy arising out of Executive’s employment,
including, but not limited to, any state or federal statutory claims, shall
first be submitted to non-binding mediation in Orange County, California, before
a sole mediator selected from Judicial Arbitration and Mediation Services, Inc.,
Orange County, California, or its successor (“JAMS”), or if JAMS is no longer
able to supply the mediator, such mediator shall be selected from the American
Arbitration Association, provided, however, that provisional injunctive relief
may, but need not, be sought by either party to this Agreement in a court of law
while mediation proceedings are pending.
17. Telecopied
Signatures: In order to expedite the execution of this
Agreement, telecopied signatures may be used in place of original signatures on
this Agreement or any document delivered pursuant hereto. Executive
and the Company intend to be bound by the signatures on the telecopied document,
are aware that the other party will rely on the telecopied signatures, and
hereby waive any defenses to the enforcement of the terms of this Agreement
based on the use of and reliance upon telecopied
signatures. Following any facsimile transmittal, the respective party
shall deliver the original instrument by reputable overnight courier in
accordance with the notice provisions of this Agreement.
18. Tax
Advice: The parties acknowledge and agree that they have
received their own tax advice related to this Agreement. Executive
represents that she has not relied upon any advice from the Company and/or its
attorneys as to the necessity for withholding or the taxability of such payment,
whether pursuant to federal, state or local income tax statutes or
otherwise.
19. Governing
Law: The rights and obligations of the parties hereunder shall
be construed and enforced in accordance with, and governed by, the laws of the
State of New Jersey without regard to principles of conflict of
laws.
20. Drafting
of Agreement: Each party has cooperated in the drafting and
preparation of this Agreement. Hence, this Agreement shall not be
construed against any party on the basis that the party was the drafter, and
Executive waives the benefits of any statutory or other presumption to the
contrary.
21. Advice of
Counsel: In entering this Agreement, the parties represent
that they have relied upon (or been given an opportunity to rely upon) the
advice of their attorneys, who are attorneys of their own choice, and that the
terms of this Agreement have been completely read and explained to them by their
attorneys (or they have chosen to forgo such advice and explanation), and that
those terms are fully understood and voluntarily accepted by them.
22. Waiver of
Breach: No waiver of any breach of any term or provision of
this Agreement shall be construed to be, or shall be, a waiver of any other
breach of this Agreement. No waiver shall be binding unless in
writing and signed by the party waiving the breach.
23. Supplementary
Documents: All parties agree to cooperate fully and to execute
any and all supplementary documents and to take all additional actions that may
be necessary or appropriate to give full force to the basic terms and intent of
this Agreement and which are not inconsistent with its terms.
24. Notice: Any
notice required to be given to the Company pursuant to this Agreement, shall be
in writing and shall be deemed to have been sufficiently given either when
served personally or via facsimile and addressed to the appropriate
party. Any notice required to be given to Executive pursuant to this
Agreement shall be in writing and shall be deemed to have been sufficiently
given when served personally, by first class mail or via facsimile.
Notices
to the Company shall be effective only when addressed to:
Xxxx X.
Xxxxxxx, Chief Legal Officer
Resources
Connection, Inc.
00000
Xxxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxx 00000
With a
copy to:
Xxxxx X. Xxxxxxx, Esq.
O’Melveny & Xxxxx, LLP
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx
0000
Xxxxxxx Xxxxx, XX 00000
Notices
to Executive shall be effective only when addressed to:
Xxxxx X. Xxxxxxxx at her address on
file as of the effective date of this agreement.
With a
copy to:
Xxxx X. Xxxxxx
Drinker Xxxxxx
000
Xxxxxx Xxxxx
Xxxxxxx
Xxxx, XX 00000-0000
25. Headings
Not Controlling: Headings are used only for ease of reference
and are not controlling.
The
undersigned have read and understand the consequences of this Agreement and
voluntarily sign it. The undersigned declare under penalty of perjury
that the foregoing is true and correct.
EXECUTED
on the Agreement Date in Irvine, Orange County, California.
_______/s___________________
Xxxx X.
Xxxxxxx
Chief
Legal Officer
For
Resources Connection, Inc.
EXECUTED
on the Agreement Date in Mountain Lakes, Xxxxxx County, New Jersey.
_________/s__________________
Xxxxx X.
Xxxxxxxx
ACKNOWLEDGMENT AND
WAIVER
I, Xxxxx
X. Xxxxxxxx, hereby acknowledge that I was given 21 days to consider the
foregoing Agreement and voluntarily chose to sign the Agreement prior to the
expiration of the 21-day period.
I declare
under penalty of perjury under applicable law that the foregoing is true and
correct.
EXECUTED
this 18th day of August 2009, at Xxxxxx County, New Jersey
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_________/s_________________
Xxxxx
X. Xxxxxxxx
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EXHIBIT
1
CASH PAYOUT
|
Base
Salary Payout:
|
$1,155,000,
plus certain interest, less applicable withholding
taxes
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(Computed
on a Base Salary of $330,000)
The
interest on such amount for the time period from September 1, 2009, to
February 28, 2010, determined at the Company’s standard rate of return
payable on March 1, 2010, after deducting, in each case, applicable
federal, state and local taxes
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Payment
of Monthly Salary through
|
$124,730.74,
less applicable withholding taxes
|
| December 31, 2009 | |
| TOTAL CASH PAYOUT: | $1,279,730.74, less applicable withholding taxes |
| (not including interest payment due on | |
| March 1, 2010) | |
ACCELERATION OF EQUITY
AWARDS
|
Xxxxx
|
Xxxxx
|
|||||||||||
|
Number
|
Date
|
Shares
|
Price
|
Exercised
|
Outstanding
|
Expiration
Date
|
||||||
|
G0000160
|
1/10/2001
|
40,000
|
$8.82
|
30,000
|
10,000
|
1/10/2011
|
||||||
|
G0003663
|
4/1/2002
|
9,447
|
$14.33
|
0
|
9,447
|
4/1/2012
|
||||||
|
G0003664
|
4/1/2002
|
40,553
|
$14.33
|
0
|
40,553
|
4/1/2012
|
||||||
|
G0003665
|
2/14/2003
|
6,250
|
$8.27
|
0
|
6,250
|
2/14/2013
|
||||||
|
G0003666
|
2/14/2003
|
18,750
|
$8.27
|
0
|
18,750
|
2/14/2013
|
||||||
|
G0003667
|
7/30/2003
|
4,039
|
$11.96
|
0
|
4,039
|
7/30/2013
|
||||||
|
G0003668
|
7/30/2003
|
20,961
|
$11.96
|
0
|
20,961
|
7/30/2013
|
||||||
|
G0003669
|
2/23/2004
|
6,501
|
$15.38
|
0
|
6,501
|
2/23/2014
|
||||||
|
G0003670
|
2/23/2004
|
43,499
|
$15.38
|
0
|
43,499
|
2/23/2014
|
||||||
|
G0003671
|
2/10/2005
|
4,088
|
$24.46
|
0
|
4,088
|
2/10/2015
|
||||||
|
G0003672
|
2/10/2005
|
20,912
|
$24.46
|
0
|
20,912
|
2/10/2015
|
||||||
|
G0004132
|
2/17/2006
|
3,648
|
$27.41
|
0
|
3,648
|
2/17/2016
|
||||||
|
G0004133
|
2/17/2006
|
21,352
|
$27.41
|
0
|
21,352
|
2/17/2016
|
||||||
|
G0004788
|
2/1/2007
|
22,500
|
$31.80
|
0
|
22,500
|
2/1/2017
|
||||||
|
G0005501
|
3/27/2008
|
11,250
|
$17.89
|
0
|
11,250
|
3/17/2018
|
||||||
|
G0006404
|
2/19/2009
|
49,500
|
$14.48
|
0
|
49,500
|
2/19/2019
|
||||||
|
T O
T A L S
|
30,000
|
293,250
|
||||||||||
