Exhibit 10.4
XXX XXXXXXXX CORPORATION
0000 XXXXXX XXXXXX
XX. XXXXX, XXXXXXXX 00000
NOVEMBER 7, 2002
Xxxxx X. Xxxxxxxx
00 Xxxxx Xxxx
Xxxxxx, XX 00000
Dear Xx. Xxxxxxxx:
This is to confirm our agreement relating to your
separation from employment.
1. In consideration of the terms hereof, your employment
with the Xxx Xxxxxxxx Corporation (the "Company") and its affiliates ended by
mutual agreement effective as of the close of business, October 31, 2002. In
addition to any salary payments owing for the final payroll period through
October 31, 2002 and whatever vested rights you may have under the Company
retirement and 401(k) plans, you shall receive the following payment(s) for the
period(s) indicated, less any payroll deductions required by law, which shall be
in lieu of any other payments or benefits (including vacation or other paid
leave time) to which you otherwise might be entitled:
(a) All accrued but unpaid salary through October 31, 2002,
including $13,846.15, which represents fifteen (15) days
of accrued but unused vacation time;
(b) A lump sum payment of $112,500 payable by the Company
seven (7) days from the date of execution of this
agreement;
(c) Twelve (12) equal monthly payments of $18,750 payable in
accordance with the Company's normal payroll practices
provided that you have not breached any of the
provisions of Sections 2.5, 2.6 or 2.7 of that certain
Executive Employment Agreement, dated as of January 31,
2002, by and between you and the Company (the
"Employment Agreement");
(d) A one time payment of $75,000 in respect of the
Non-Discretionary Bonus payable pursuant to Section 2.3
of the Employment Agreement, payable on December 1,
2002, provided that you provide any and all transition
services reasonably requested by the Company from the
date hereof through December 1, 2002; and
(e) Pursuant to that certain Amendment No. 1 (the "Option
Agreement Amendment") to the Standard Stock Option
Agreement, dated November 20, 1997 (the "November 1997
Standard Option Grant Letter"), between you and Xxx
Xxxxxxxx Holdings Inc. ("Holdings") (formerly named "Xxx
Xxxxxxxx Corporation), 100,000 of the Standard Options
granted pursuant to the November 1997 Standard Stock
Option Grant Letter shall remain outstanding and
fully-exercisable pursuant to the terms thereunder (as
amended by the Option Agreement Amendment); it being
understood and agreed that all other stock options
previously granted to you under any stock option
agreement, including, without limitation, any stock
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options promised to you under or in connection with any
option cancellation agreement between you and Holdings,
shall be terminated as of the date hereof and that you
will not be entitled to, under any circumstances, any
other stock options in Holdings.
2. In consideration of the terms hereof, you have agreed to
and do waive any claims you may have for employment by the Company and have
agreed not to seek such employment or reemployment by the Company in the future.
You have further agreed to and do release and forever discharge the Company, its
parent, subsidiaries and affiliates and their respective past and present
officers, directors, shareholders, employees and agents from any and all claims
and causes of action, known or unknown, arising out of or relating to your
employment by the Company or the termination thereof, including, but not limited
to, wrongful discharge, breach of contract, tort, fraud, defamation, the Civil
Rights Acts, Age Discrimination in Employment Act, Americans with Disabilities
Act, Employee Retirement Income Security Act, Family Medical Leave Act or any
other federal, state or local law relating to employment, discrimination in
employment, termination of employment, wages, benefits or otherwise. This
release does not include your right to enforce the terms of this agreement, and
does not include any right to indemnification you may have as a director,
officer or employee pursuant to applicable law and/or the Company's certificate
of incorporation and bylaws.
3. Concurrently with the execution of this agreement, you
agree to resign from all directorships and officerships held by you with the
Company or any of its affiliates and you shall deliver a letter in form and
substance satisfactory to the Company effecting such resignations.
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4. An appropriate notice of your rights under COBRA and an
election form which will enable you to elect any COBRA continuation coverage for
which you may be eligible under a Company health plan will be sent to you under
separate cover.
5. You agree that the car that has been provided for your
use during your employment by the Company will be returned to the Company no
later than October 31, 2002. The Company will no longer maintain a country club
membership on your behalf effective October 31, 2002.
6. You agree to return to the Company with five (5) days of
your execution of this letter agreement all company property and documents in
your possession, custody or control, including, without limitation, credit
cards, keys, instructional and policy manuals, mailing lists, computer software,
financial and accounting records, reports and files, and any other physical or
personal property which you obtained in the course of your employment by the
Company, and you further agree not to retain copies of any such Company
documents, excluding publicly available documents and documents relating
directly to your own compensation and employee benefits. Notwithstanding the
foregoing, you shall be allowed to keep the computer provided for your use
during your employment by the Company, provided that you immediately make such
computer available to representatives of the Company for the purpose of purging
all proprietary Company information from such computer, and you may retain the
cellular phone provided for your use during your employment by the Company,
provided that you shall be responsible for any and all charges related to such
cellular phone and shall promptly transfer the billing of such phone from the
Company to you personal account and provide the Company with evidence of such
transfer.
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7. You acknowledge that in the course of your employment
with the Company you have acquired information concerning the Company which is
not publicly available, including non-public financial information and trade
secrets ("Proprietary Information"). You agree that you will keep such
Proprietary Information confidential pursuant to the terms Section 2.5 of the
Employment Agreement. You acknowledge and agree that, notwithstanding anything
to the contrary, Sections 2.5, 2.6 and 2.7 of the Employment Agreement shall
continue in full force and effect and you agree to be bound by such provisions
pursuant to their terms.
8. You agree to keep the terms of this agreement
confidential to the extent practicable and as permitted by law.
9. Neither by offering to make nor by making this agreement
does either party admit any failure of performance, wrongdoing, or violation of
law.
10. Except with respect to Sections 2.5, 2.6 and 2.7 of the
Employment Agreement which shall survive and continue in full force and effect,
this agreement sets forth the entire understanding of the parties and supersedes
any and all prior agreements, oral or written, relating to your employment by
the Company or the termination thereof and any payments or other benefits due or
payable to you upon termination of employment. This agreement may not be
modified except by a writing, signed by you and by a duly authorized officer of
the Company. This agreement shall be binding upon your heirs and personal
representatives, and the successors and assigns of the Company.
11. You acknowledge that before entering into this
agreement, you have had the opportunity to consult with any attorney or other
advisor of your choice, and you have been advised to do so if you choose. You
further acknowledge that you have entered into this agreement of your own free
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will, and that no promises or representations have been made to you by any
person to induce you to enter into this agreement other than the express terms
set forth herein. You further acknowledge that you have read this agreement and
understand all of its terms, including the waiver and release of claims set
forth in paragraph 2 above.
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If the foregoing is acceptable to you, please sign the
annexed copy of this agreement and return it to Xxxxxx Xxxxxxx. You may take up
to 21 days from today to consider, sign and return this agreement. In addition,
you may revoke the agreement after signing it, but only by delivering a signed
revocation notice to Xxxxxx Xxxxxxx within seven days of your signing this
agreement.
Very truly yours,
XXX XXXXXXXX CORPORATION
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
XXX XXXXXXXX HOLDINGS INC.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
ACCEPTED AND AGREED:
/s/ Xxxxx Xxxxxxxx
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Xxxxx X. Xxxxxxxx
November 7, 2002
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Date Signed
