Exhibit 10.1.15
RELEASE AND SETTLEMENT AGREEMENT
THIS RELEASE AND SETTLEMENT AGREEMENT (this "Agreement") is made and
entered into by and between Advanced Lighting Technologies ("Advanced Lighting"
- a term which in this Agreement shall include its predecessors, related or
affiliated entities, officers, directors, employees, heirs, successors, assigns,
representatives, agents and counsel, unless the context otherwise clearly
requires) and Xxxxxx X. Xxxxx ("Xxxxx").
WITNESSETH:
WHEREAS, Xxxxx is an employee of Advanced Lighting and currently serves
as Chief Financial Officer for Advanced Lighting;
WHEREAS, Advanced Lighting and Xxxxx have determined that Xxxxx shall
terminate his employment effective Nov 14, 2002 (the "Effective Date") subject
to Paragraph 2;
WHEREAS, Advanced Lighting and Xxxxx desire to make provision for the
payments and benefits that Xxxxx will be entitled to receive from Advanced
Lighting in consideration for Xxxxx' obligations and actions under this
Agreement and in connection with such termination and the cessation of his
employment with Advanced Lighting; and
WHEREAS, Advanced Lighting and Xxxxx wish to resolve, settle and/or
compromise any and all matters, claims and issues between them arising from or
relating to Xxxxx' service and employment with Advanced Lighting, including the
termination thereof;
NOW THEREFORE, in consideration of the promises and agreement contained
herein and other good and valuable consideration, the sufficiency and receipt of
which
are hereby acknowledged, and intending to be legally bound, Advanced Lighting
and Xxxxx agree as follows:
1. TERMINATION. Xxxxx hereby terminates his employment with
Advanced Lighting, and its related or affiliated entities, as of the Effective
Date, subject to Paragraph 2. Advanced Lighting hereby consents to and accepts
said termination.
2. PAYMENTS.
(a) In consideration of the promises of Xxxxx in this
Agreement and subject to the conditions hereof, including without limitation
Paragraph 4 of this Agreement, Advanced Lighting shall:
(i) Pay Xxxxx his current salary and fringe benefits through
the Effective Date UNLESS Xxxxx accepts other employment prior
to the Effective Date, in which case Xxxxx will be provided a
severance based on his current salary rate for the period
between his last day worked and the Effective Date.
(ii) Pay Xxxxx an additional six months of salary starting
November 1, 2002, payable in bi-weekly installments; PROVIDED
that Xxxxx has not accepted other employment and that no such
payment shall be made unless and until the conditions in
Paragraph 4 below have been satisfied;
(iii) Provide Xxxxx executive career services through Right
Management Consultants, up to a maximum of $25,000.
(iv) Provide Xxxxx with payment for his unused vacation on the
Effective Date.
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(v) Provide Xxxxx reimbursement of reasonable expenses
related to employment searches provided amounts in excess of
$250 are approved in advance.
(b) Xxxxx shall exercise any vested stock options within
sixty (60) days of the Effective Date.
(c) Xxxxx shall tender his resignation as a Director at
the execution of this Agreement.
(d) Xxxxx acknowledges and agrees that he has an
obligation under this Agreement to provide notice Advanced Lighting at the time
he accepts other employment if he accepts such other employment prior to the
Effective Date or within the six-month period commencing November 15, 2002,
pursuant to the provisions in Paragraph 2(a)(i) and 2(a)(ii).
(e) Advanced Lighting will provide Xxxxx with the option
of continuing coverage under Advanced Lighting's current medical program for the
period provided in Paragraph 2(a)(ii) above. If Xxxxx elects this option, he
will make a contribution in the same amount as his current employee contribution
for such coverage.
(f) Xxxxx acknowledges and agrees that the consideration
provided by Advanced Lighting to Xxxxx under this Agreement, including, without
limitation, the payments to be made by Advanced Lighting to Xxxxx pursuant to
this Agreement, is greater than and in addition to anything of value to which he
otherwise would be entitled from Advanced Lighting as a result of his
termination and that the release by Xxxxx set forth in Paragraph 5 of this
Agreement and the obligations of and actions taken by Xxxxx under this Agreement
are given and undertaken in consideration of, and adequately
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supported by, the payments and benefits to be made or provided to Xxxxx by
Advanced Lighting under and pursuant to this Agreement.
3. PROFESSIONAL FEES. Advanced Lighting and Xxxxx acknowledge
and agree that each shall be responsible for the payment of their respective
legal fees and costs (and related disbursements) incurred in connection with
Xxxxx' termination and resignation and all matters relating to the negotiation
and execution of this Agreement.
4. RELEASE BY XXXXX.
(a) Xxxxx, for himself and his dependents, successors,
assigns, heirs, executors and administrators (and his and their legal
representatives of every kind), hereby releases, dismisses, remises and forever
discharges Advanced Lighting from any and all arbitrations, claims, including
claims for attorney's fees, demands, damages, suits, proceedings, actions and/or
causes of action of any kind and every description, whether known or unknown,
which Xxxxx now has or may have had for, upon, or by reason of any cause
whatsoever (except that this release shall not apply to the obligations of
Advanced Lighting arising under this Agreement) ("claims"), against Advanced
Lighting, including but not limited to:
(i) any and all claims arising out of or relating to Xxxxx'
employment by or service with Advanced Lighting and his
termination from Advanced Lighting;
(ii) any and all claims of discrimination, including but not
limited to claims of discrimination on the basis of sex, race,
age, national origin, marital status, religion or handicap,
including, specifically, but without limiting the generality
of the foregoing, any claims under the Age
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Discrimination in Employment Act, as amended by the Older
Workers Benefits Protection Act, Title VII of the Civil
Rights Act of 1964, as amended, the Americans with
Disabilities Act, Ohio Revised Code Section 4101.17 and Ohio
Revised Code Chapter 4112, including Sections 4112.02 and
4112.99 thereof; and
(iii) any and all claims of wrongful or unjust discharge or
breach of any contract or promise, express or implied, or any
statutory or common law claim.
(b) Xxxxx understands and acknowledges that Advanced
Lighting does not admit any violation of law, liability or invasion of any of
his rights and that any such violation, liability or invasion is expressly
denied. The consideration provided under this Agreement is made for the purpose
of settling and extinguishing all claims and rights (and every other similar or
dissimilar matter) that Xxxxx ever had or now may have against Advanced Lighting
to the extent provided in this Paragraph 4. Xxxxx further agrees and
acknowledges that no representations, promises or inducements have been made by
Advanced Lighting other than as appear in this Agreement.
(c) Xxxxx further agrees and acknowledges that;
(i) The release provided for in this Paragraph 4 releases
claims to and including the date of this Agreement;
(ii) He has been advised by Advanced Lighting to consult
with legal counsel prior to executing this Agreement and the
release provided for in this Paragraph 4, has had an
opportunity to consult with and to be advised by legal
counsel of his choice, fully understands the terms of this
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Agreement, and enters into this Agreement freely, voluntarily
and intending to be bound;
(iii) He has been given a period of twenty-one (21) days to
review and consider the terms of this Agreement, and the
release contained herein, prior to its execution and that he
may use as much of twenty-one (21) day period as he desires;
and
(iv) He may, within seven (7) days after execution, revoke
this Agreement. Revocation shall be made by delivering a
written notice of revocation to the Human Resources Director
at Advanced Lighting. For such revocation to be effective,
written notice must be actually received by the Human
Resources Director at Advanced Lighting no later than the
close of business on the seventh (7th) day after Xxxxx
executes this Agreement, all of the terms and conditions of
the Agreement shall be of no force and effect and Advanced
Lighting shall not have any obligation to make payments or
provide the benefits to Xxxxx as set forth in Paragraph 2 of
this Agreement.
(d) Xxxxx agrees that he will never file a lawsuit or
other complaint asserting any claim that is released in this Paragraph 4.
(e) Xxxxx waives and releases any claim that he has or
may have to reinstatement.
5. RETURN OF ALL PROPERTY AND DOCUMENTS. At Effective Date,
Xxxxx immediately will return to Advanced Lighting all property of Advanced
Lighting including all keys to Advanced Lighting's premises or property, all
documents (including copies)
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and information, however maintained (including computer files, tapes and
recordings), concerning Advanced Lighting or acquired by Xxxxx in the course and
scope of his services to Advanced Lighting under this Agreement.
6. CONTINUED AVAILABILITY AND COOPERATION.
(a) Xxxxx shall retain responsibility related to the
fiscal year ending June 30, 2002, including, but not limited to the external
audit and SEC 10K reporting.
(b) Xxxxx shall cooperate fully with Advanced Lighting
and with Advanced Lighting's counsel in connection with any present and future
actual or threatened litigation or administrative proceeding involving Advanced
Lighting that relates to events, occurrences or conduct occurring (or claimed to
have occurred) during the period of Xxxxx' employment by Advanced Lighting. This
cooperation by Xxxxx shall include, but not be limited to:
(i) making himself reasonably available for interviews and
discussions with Advanced Lighting's counsel as well as for
depositions and trial testimony;
(ii) if depositions or trial testimony are to occur, making
himself reasonably available and cooperating in the
preparation therefore as and to the extent that Advanced
Lighting or Advanced Lighting's counsel reasonably requests;
(iii) refraining from impeding in any way Advanced Lighting's
prosecution or defense of such litigation or administrative
proceeding; and
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(iv) cooperating fully in the development and presentation of
Advanced Lighting's prosecution or defense of such litigation
or administrative proceeding.
(c) Xxxxx shall be reimbursed by Advanced Lighting for
reasonable travel, lodging, telephone and similar expenses incurred in
connection with such cooperation, which Advanced Lighting shall reasonably
endeavor to schedule at times not conflicting with the reasonable requirements
of any future employer of Xxxxx, or with the requirements of any third party
with whom Xxxxx has a business relationship that provides remuneration to Xxxxx.
Xxxxx shall not unreasonably withhold his availability for such cooperation.
7. INDEMNIFICATION. Advanced Lighting will defend, indemnify and
hold harmless Xxxxx for any claim, action, lawsuit, or proceeding (whether
civil, criminal, administrative, or investigative), which is brought against
Xxxxx by reason of his employment for Advanced Lighting or because of any acts
taken by Xxxxx on behalf of Advanced Lighting and within the scope of his
employment.
8. SUCCESSORS AND BINDING AGREEMENT.
(a) This Agreement shall be binding upon and inure to the
benefit of Advanced Lighting and any successor of or to Advanced Lighting, but
shall not otherwise be assignable or delegable by Advanced Lighting.
(b) This Agreement shall be binding upon and inure to the
benefit of Xxxxx' personal or legal representatives, executors, administrators,
successors, heirs, distributees and/or legatees.
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(c) This Agreement is personal in nature and none of the
parties hereto shall, without the consent of the other parties, assign, transfer
or delegate this Agreement or any rights or obligations hereunder except as
expressly provided in subparagraphs (a) and (b) of this Paragraph 7.
(d) This Agreement is intended to be for the exclusive
benefit of the parties hereto, and except as provided in subparagraphs (a) and
(b) of this Paragraph 7, no third party shall have any rights hereunder.
9. NON-DISCLOSURE; STATEMENTS TO THIRD PARTIES.
(a) Except to the extent that this Agreement or the terms
hereof become publicly known or available because of a legally mandated
requirement, all provisions of this Agreement and the circumstances giving rise
hereto are and shall remain confidential and shall not be disclosed to any
person not a party hereto (other than each party's attorney, financial advisor
and/or tax advisor to the extent necessary for such advisor to render
appropriate legal, financial and tax advice), except as necessary to carry out
the provisions of this Agreement, and except as may be required by law.
(b) Because the purpose of this Agreement is to settle
amicably any and all potential disputes or claims among the parties, neither
Xxxxx nor Advanced Lighting shall, directly or indirectly, make or cause to be
made any statements to any third parties criticizing or disparaging the other or
commenting on the character or business reputation of the other. Xxxxx further
hereby agrees not (1) to comment to others concerning the status, plans or
prospects of the business of Advanced Lighting as of the Effective Date, or (2)
to engage in any act or omission that would be
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detrimental, financially or otherwise, to Advanced Lighting, or that would
subject Advanced Lighting to public disrespect, scandal or ridicule.
10. NOTICES. For all purposes of this Agreement, all
communications provided for herein shall be in writing and shall be deemed to
have been duly given when delivered, addressed to Advanced Lighting (to the
attention of the Human Resources Director at its principal executive offices and
to Xxxxx at his principal residence, , Ohio , or to
such other address as any party may have furnished to the other in writing and
in accordance herewith. Notices of change of address shall be effective only
upon receipt.
11. MISCELLANEOUS. The death or disability of Xxxxx following the
execution of this Agreement shall not affect or revoke this Agreement or any of
the obligations of the parties hereto. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by Xxxxx and Advanced Lighting. No waiver by either
party hereto at any time of any breach by the other party hereto or compliance
with any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior subsequent time. No agreements or representations,
oral or otherwise, expressed or implied with respect to the subject matter
hereof have been made by any of the parties that are not set forth expressly in
this Agreement and every one of them (if, in fact, there have been any) is
hereby terminated without liability or any other legal effect whatsoever.
12. BREACH AND REMEDIES. In the event it is determined by a court
of competent jurisdiction that a party has breached any of its obligations under
this
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Agreement, the party aggrieved by such breach shall be entitled to recover
reasonable costs and attorneys' fees arising from any such breach in addition to
any other damages to which he or it may be entitled.
13. ENTIRE AGREEMENT. This Agreement shall constitute the entire
agreement among the parties hereto with respect to the subject matter hereof and
shall supersede all prior verbal or written agreements, covenants,
communications, understandings, commitments, representations or warranties,
whether oral or written, by any party hereto or any of its representatives
pertaining to such subject matter.
14. GOVERNING LAW. The validity, interpretation, construction
and performance of this Agreement shall be governed by the substantive laws of
the State of Ohio, without giving effect to the principles of conflict of laws
of such state.
15. VALIDITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement which shall nevertheless remain in full
force and effect.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same Agreement.
17. CAPTIONS AND PARAGRAPH HEADINGS. Captions and paragraph
headings used herein are for convenience and are not part of this Agreement and
shall not be used in construing it.
18. FURTHER ASSURANCES. Each party hereto shall execute such
additional documents, and do such additional things, as may be reasonably be
requested by the other party to effectuate the purposes and provisions of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have had an opportunity to
review the foregoing and have executed this Agreement, voluntarily and without
duress, as of the date first above written.
5/29/02 5/29/02
--------------------------------- -----------------------------------
DATE DATE
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxx
--------------------------------- -----------------------------------
AGENT OF ADVANCED LIGHTING EMPLOYEE - XXXXXX X. XXXXX
TECHNOLOGIES
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