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EXHIBIT 10.28
SEPARATION AGREEMENT
XXXXXXX X. XXXXXXX
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EXHIBIT 10.28
SEPARATION AGREEMENT
AGREEMENT made as of the 7th day of October, 1996, by and between
Xxxxxxx Xxxxxxxx Company, Inc., a corporation, having its principal office at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), by itself and on behalf
of all of its subsidiaries and affiliates ("Company Affiliates") and Xxxxxxx X.
Xxxxxxx, ("Employee"), an individual residing at 00 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxx Xxxx 00000.
W I T N E S E T H :
WHEREAS, Employee has been employed by the Company as President and
Chief Executive Officer pursuant to a letter agreement dated July 21, 1993 (the
"Letter Agreement").
WHEREAS, the Company and Employee have agreed upon the terms of
Employee's separation from employment as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, it is hereby agreed by and between the Company
and Employee as follows:
1. Amicable Agreement. Employee and the Company agree that the current
relationship between Employee and the Company should be amicably terminated and
that the terms and conditions of the separation which are specified in this
agreement are fair and equitable, that the Company has appreciated and
appreciates the skill, ability, dedication and integrity of Employee, that
Employee has appreciated and appreciates the skill, ability, dedication and
integrity of the Company as a whole and of his subordinates, superiors and peers
within the Company, and that the decision to change Employee's employment
relationship is without rancor on either side. Employee shall not make any
derogatory comment concerning the Company or Company Affiliates or any of their
current or former officers, directors or employees, which results, or is
reasonably expected to result, in any material adverse effect on the business or
reputation of any such entity or person. The Company and Affiliates shall not
make any derogatory comment concerning Employee which results, or is reasonably
expected to result, in any material adverse effect on the business or reputation
of Employee.
2. Resignation. Employee resigns as President and Chief Executive
Officer of the Company, as a member of the Board of Directors of the Company and
of all Company Affiliates, as a trustee of any and all employee benefit plans of
the Company and all Company Affiliates, and as an officer of any and all Company
Affiliates, effective as of the close of business on October 8,
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1996 (the "Resignation Date"). Employee shall, however, continue to serve as an
employee of the Company until October 8, 1997, at an annual compensation rate of
three hundred thousand dollars ($300,000) per year, payable in monthly
installments. Employee shall perform such reasonable duties as may be assigned
to him from time to time by the Board of Directors of the Company. If Employee
becomes employed by another employer prior to October 8, 1997, his employment
hereunder will nevertheless continue to October 8, 1997. The Company agrees that
Employee will not be terminated during this period unless he takes action which
the Board of Directors of the Company determines to be injurious to the best
interests of the Company.
3. Company Payments and other Obligations.
(a) Except as provided herein, the Company shall have no
obligation to make any further payment to Employee (including without limitation
salary, vacation pay, severance pay, executive incentive plan bonuses or any
other bonuses, performance incentive award plan payments, stock option awards,
pension contributions or payments) and shall have no obligation to provide
Employee with any fringe benefits (including without limitation life insurance,
dental insurance, health and medical insurance, and disability protection), an
office or other amenities. The Company does, however, specifically agree that it
will provide Employee with the following perquisites through October 7, 1997:
(i) four weeks paid vacation; (ii) use of a late model automobile, plus
expenses, plus additional amounts required for taxes payable with respect to
such car; (iii) reimbursement for expenses incurred for the cost of financial
planning and tax preparation, such cost not to exceed five thousand dollars
($5,000) per annum; (iv) initiation fees payable for one lunch club of
Employee's choosing; and (iv) such other perquisites as are customarily provided
to senior officers of the Company. The Company will also continue to cover
Employee under its medical, dental, life , disability and 401(k) plans
(including a non-qualified 401(k) plan to the extent such a plan is available
for other executives) through October 7, 0000.Xx addition, (i) the Company will
make available to Employee, at the Company's expense, the Key Executive
Outplacement Program offered by Right Associates, (ii) the Company will pay
Employee his accrued vacation pay through the Resignation Date, (iii) in the
sole discretion of the Compensation Committee of the Board of Directors of the
Company, Employee may be paid all or a portion of his pro-rata share, if any, of
any bonus earned through the Resignation Date, (iv) the shares of restricted
stock of the Company which Employee purchased under the two stock purchase
agreements dated December 17, 1993 and March 21, 1994, shall continue to vest at
the dates set forth in the respective Stock Purchase Agreements, and the other
provisions of the Stock Purchase Agreements shall continue to apply in
accordance with their terms, as if there had been no termination of employment,
except that the phrase "Termination Event" as to Employee shall be amended to
mean "death"
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in such Agreements, but only so long as no Injurious Action (as hereinafter
defined) occurs, and (v) the stock options granted to Employee under the amended
and restated stock option agreement dated June 28, 1995 (the "Stock Option
Agreement") shall become exercisable at the dates set forth in the Stock Option
Agreement, and thereafter in accordance with the terms of the Stock Option
Agreement, as if there had been no termination of employment; provided, that if,
on or after October 8, 1996, Employee takes any action which the Board of
Directors of the Company determines to be injurious to the best interests of the
Company ("Injurious Action"), no further shares of restricted stock shall
thereafter vest under the Stock Purchase Agreements and no further stock options
shall thereafter become exercisable under the Stock Option Agreement, but only
if such determination is made by the Board of Directors prior to a Change of
Control (as defined in the Incentive Compensation Agreement referred to in
Paragraph 3(b) hereof). The Company shall also reimburse Employee for his legal
expenses incurred in negotiating this Agreement, but not to exceed $4,000.
(b) Except as otherwise specified herein, this Separation
Agreement supersedes the Letter Agreement. In addition, no further contributions
or credits shall be made under the Incentive Compensation Agreement between the
Company and Employee dated as of July 21, 1994 or the "rabbi trust" created as a
part thereof on or after the Resignation Date. However, the other provisions of
said Incentive Compensation Agreement and the "rabbi trust" shall continue to
apply in accordance with their terms.
(c) Notwithstanding anything to the contrary contained in this
Separation Agreement, if Employee dies prior to October 1, 1997, any
compensation which Employee was entitled to receive as an employee of the
Company at the time of his death, shall continue to be paid to his designated
beneficiary (or to his estate if no beneficiary has been designated who survives
Employee) until October 1, 1997.
4. Releases.
(a) Employee agrees that, except as provided herein, he hereby
waives any right to employment, reinstatement or reemployment with the Company
or any Company Affiliate and specifically agrees that he will not apply for
same.
(b) Employee acknowledges and agrees that he is fully aware
that there are various federal, state and municipal laws which prohibit
employment discrimination based on, including without limitation, the following:
race, age, sex, marital status, sexual orientation, citizenship, religion,
creed, national origin, military or national guard service, mental,
psychological record or prior convictions, or entitlement to pension or employee
benefits including retirement, pension and severance.
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(c) Employee also acknowledges and agrees that he fully
understands and is aware that there are federal, state and municipal agencies
which enforce and administer these laws and ensure their enforcement.
(d) In consideration of the payments and other undertakings of
the Company and the undertakings of Employee, described in this Separation
Agreement, and other good and sufficient consideration provided by the parties,
the receipt of which is hereby acknowledged, Employee hereby, for himself, his
heirs, legal representatives, successors and assigns, releases and discharges
the Company and the Company Affiliates and its and their respective officers,
directors, employees, successors and assigns, and the Company and Company
Affiliates hereby, for themselves, their respective successors and assigns,
release and discharge Employee, his heirs, legal representatives, successors and
assigns, from all actions, causes of action, suits, debts, accounts, sums of
money, damages, judgments, claims and demands whatsoever, in law or in equity,
known or unknown, which either hereafter can, shall or may have against the
other for, upon or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the date of this Agreement, including without
limitation all claims arising out of or by reason of the termination of
Employee's employment, except only those arising out of the performance by the
Company and Company Affiliates and Employee of their respective covenants and
agreements contained in this Separation Agreement and Employee's rights under
all retirement, profit sharing, stock option or similar benefit plans sponsored
by the Company (to the extent that such rights survive the termination of
Employee's employment). Further, the Company and the Company Affiliates do not
hereby release Employee from any liability which they or any of them may incur
arising from or related to any act or omission on the part of Employee in his
capacity as a plan administrator or trustee of any retirement plan or trust
maintained by the Company or any Company Affiliate which constitutes gross
negligence, fraud or willful misconduct.
(e) Except as otherwise stated, the releases in the foregoing
Section 4 (d) include but are not limited to releases of any rights the
releasing parties may have for breach of contract (whether express, implied or
oral), tort, wrongful termination, defamation, infliction of emotional distress,
slander, promissory estoppel, prima facie tort, breach of the covenant of fair
dealing, fraud, violation of public policy, claims for physical or emotional
injury, any and all claims based on any federal, state or local laws including,
without limitation, the Age Discrimination in Employment Act (29 U.S.C. '621, et
seq.), the Employee Retirement Income Security Act of 1974, the Civil Rights
Acts, the fair employment laws of the State of New York, and the United States
and New York Constitutions or common laws.
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(f) Employee acknowledges (i) that he has been given the
opportunity to consult with his attorney regarding this agreement, (ii) that he
fully understands this agreement and the effect of his signing it, (iii) that he
has been given up to twenty-one (21) days to consider this agreement and (iv)
that he may revoke this agreement within seven (7) days following the date that
he signs it and that this agreement will not become effective or enforceable
until after seven (7) days have expired.
5. Confidential Information; Company Property; Nonsolicitation; Company
Interests. By and in consideration of the benefits to be provided by the Company
hereunder, including the severance arrangements set forth herein, Employee
agrees that:
(a) Employee shall hold in a fiduciary capacity for the
benefit of the Company all secret or confidential information, knowledge or data
relating to the Company or any Company Affiliate, and their respective
businesses, (i) obtained by Employee during his employment by the Company or any
Company Affiliates and (ii) not otherwise public knowledge (other than by reason
of an unauthorized act by Employee). After termination of Employee's employment
with the Company hereunder, Employee shall not, without the prior written
consent of the Company, unless compelled pursuant to an order of a court or
other governmental body having jurisdiction over such matter, communicate or
divulge any such information, knowledge or data to anyone other than the Company
and those designated by it.
(b) Except as expressly provided herein, promptly following
Employee's termination of employment, Employee shall return to the Company all
property of the Company and all copies thereof in Employee's possession or under
his control, except that Employee may retain his personal notes, diaries,
Rolodexes, calendars and correspondence. No later than October 1, 1997, Employee
shall return to the Company, in good condition and working order, the automobile
of the Company which Employee has in his possession at a place mutually
agreeable to the parties.
(c) During the period commencing on the date hereof through
October 8, 1997, Employee will not solicit or otherwise induce any employee of
the Company or any Company Affiliate to leave the employ of the Company or such
Company Affiliate or to become associated, whether as an employee, officer,
partner, director, consultant or otherwise, with any business organization.
(d) If Employee fails to comply with any of his undertakings
hereunder, no further payments or benefits shall be provided to or in respect of
Employee by the Company pursuant to this Separation Agreement or otherwise, and
his employment may, at the discretion of the Board of Directors of the Company,
be terminated.
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(e) The Company shall indemnify, defend and hold Employee
harmless from and against and in respect of any and all claims, losses, damages,
expenses, obligations and liabilities (including accountant fees, attorneys fees
and other costs of defense by Employee) in any action, suit or proceeding
brought in connection with his duties and responsibilities as an officer and
director of the Company, other than a claim brought by Employee against the
Company, or a counterclaim by the Company against Employee.
6. Entire Agreement. This Separation Agreement contains the entire
understanding of the parties hereto relating to the subject matter hereof and
cannot be changed or altered orally.
7. Governing Law. This Separation Agreement has been entered into in
the State of New York, and the validity, interpretation and legal effect of this
Separation Agreement shall be governed by the laws of the State of New York.
Furthermore, any claim, dispute or disagreement which may arise must be resolved
within the State of New York and in accordance with the substantive laws of the
State of New York governing contracts entered into and performed within the
State.
8. Severability. The invalidity or unenforceability of any provisions
of this Separation Agreement in any circumstance shall not affect the validity
or enforceability of any other provision of this Separation Agreement, and
except to the extent such provision is invalid or unenforceable, this Separation
Agreement shall remain in full force and effect. Any provision in this
Separation Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective only to the extent that such
provision is prohibited or unenforceable, without invalidating or affecting the
remaining provisions hereof in such jurisdiction, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9. Notices. Any notice required or permitted to be given under this
Separation Agreement shall be sufficient if in writing and if sent by registered
mail, to his then residence in the case of Employee or to its then principal
office in the case of the Company, and shall be deemed given when deposited in
the United States mails, postage prepaid.
10. Successors and Assigns. This Agreement shall be binding upon
Employee, the Company, and the Company's successors and assigns.
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Before witnesses, the parties hereto have executed this Separation
Agreement on this 8 day of October, 1996, but as of the date written at its
head.
XXXXXXX XXXXXXXX COMPANY, INC.
ILLEGIBLE SIGNATURE By: ILLEGIBLE SIGNATURE
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Witness
ILLEGIBLE SIGNATURE /s/ Xxxxxxx X. Xxxxxxx
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Witness Xxxxxxx X. Xxxxxxx
