Exhibit 10.1
RETIREMENT AGREEMENT
AND
GENERAL RELEASE
This Retirement Agreement and General Release (the "Agreement") is entered
into between Xxxxxx-Xxxxxx Corporation (including its subsidiaries, the
"Company") and Xxxxxxx X. Xxxxxxxxxx, Xx. ("Employee") as follows:
1. Retirement. At the close of business on October 31, 2009 (the
"Retirement Date"), Employee has retired and Employee's employment with the
Company has terminated. Effective on the Retirement Date, Employee will no
longer receive any salary, benefits or other compensation from the Company
except as set forth in this Agreement. Effective on the Retirement Date,
Employee hereby resigns all offices and directorships at the Company and/or any
other entity held as a result of Employee's employment with the Company. Subject
to required withholding of state, local and federal taxes, the Company agrees to
pay employee all salary earned through the Retirement Date and to compensate
Employee for all accrued and unused vacation pay through the Retirement Date
which Employee acknowledges and agrees equals 240 hours of accrued vacation
time.
2. Retirement Payment. Subject to the Employee's execution and
non-revocation of this Agreement and in consideration of Employee's covenants
contained in Sections 5, 6, 7 and 8, the Company will pay Employee $265,225 (the
"Retirement Payment"), payable in a lump sum on November 9, 2009. The Retirement
Payment is subject to required withholding of state, local and federal taxes.
Employee acknowledges and agrees that the Retirement Payment represents a
consideration to Employee over and above anything else of value which Employee
already is entitled to receive from the Company.
3. Options. A list of all outstanding options to purchase Common Stock of
the Company granted to Employee pursuant to the Company's Stock Option Plans is
attached hereto as Schedule 1. All of such outstanding options are Incentive
Stock Options and are vested. In accordance with the Company's 1992, 1999 and
2001 Stock Option Plans pursuant to which the options were granted and the
individual Stock Option Agreements with respect to the outstanding options, all
such options shall be exercisable during the three months after the Retirement
Date to the extent Employee was entitled to exercise such options on the
Retirement Date.
4. Prior Plans or Agreements.
(a) The Company and Employee acknowledge and agree that any right to any
payment as provided in the letter to Employee from the Company dated September
10, 2002, as amended, in connection with the sale of the Company on or before
December 31, 2010, shall terminate after expiration of the Revocation Period
provided in Section 7 and shall be of no force and effect.
(b) Employee acknowledges that he is not entitled to any bonus award for
2009 pursuant to the terms of the 2009 Key Employee Bonus Plan.
(c) The Company's matching contribution for Employee's 2009 salary
earned up to the Retirement Date will be paid pursuant to the terms of the
Company's 401(k) Plan.
5. Confidential Information. Employee had access to, and possession of,
confidential and proprietary information, data, records, documents and physical
property belonging to the Company. On or before the Retirement Date, Employee
agrees to return any and all Company records, documents and physical property.
Employee further agrees not to disclose any confidential or proprietary
information, data, records or documents to any person or entity.
6. Non-disparagement.
(a) Employee agrees that he will not make, whether in oral, print,
electronic or other form, any statement that is disparaging, derogatory, or
untruthful in any material respect as to the Company, its products and services,
its past and present officers, directors, employees or any other affiliate of
the Company or that could adversely affect in any material respect the conduct
of the business of the Company.
(b) The Company agrees that it will use its best efforts to cause its
directors and executive officers not make, whether in oral, print, electronic or
other form, any statement that is disparaging, derogatory, or untruthful in any
material respect as to the Employee.
7. General Release.
(a) As a material inducement to the Company to enter into this Agreement
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Employee, on behalf of himself, his heirs,
administrators, representatives, executors, successors, and assigns, hereby
irrevocably and unconditionally releases, acquits, and forever discharges the
Company and its predecessors, parents, subsidiaries, affiliates, divisions, any
related entity, successors and assigns, and all of their current and former
agents, officers, directors, shareholders, partners, employees, members,
trustees, fiduciaries, representatives, owners, attorneys and all persons acting
by, through, under or in concert with any of them (collectively, the "Released
Parties") from any and all claims, suits, charges, complaints, liabilities,
obligations, promises, agreements, damages, causes of action, demands, losses,
debts, attorneys' fees and expenses of any nature whatsoever, known or unknown
("Claims") which Employee has, had or claims to have had against any Released
Party up to and including the date Employee executes this Agreement. This
General Release of Claims shall include, without limitation, Claims relating to
Employee's employment and separation from employment with the Company, Claims of
discrimination under the common law or any federal, state or local statute or
regulation (including, without limitation, the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, and the Americans with Disabilities Act, as
amended), Claims for wrongful discharge, Claims for the payment of any salary,
wages, bonuses, commissions, vacation pay, severance pay or benefits, Claims of
detrimental reliance, and all other statutory, common law or other Claims of any
nature whatsoever, to the fullest extent permitted by law. This General Release
of Claims does not apply to any claims concerning a breach of this Agreement,
claims for any vested benefits under employee benefit plans of the Company, any
rights to benefits under applicable workers' compensation statutes or
government-provided unemployment benefits, claims that cannot be waived as a
matter of law, or any claims arising after the date Employee executes this
Agreement.
(b) Employee acknowledges that the Company has advised Employee to
consult with an attorney before executing this Agreement. In any event, Employee
should thoroughly review and understand the effect of this Agreement before
taking action upon it. Employee acknowledges that in signing this Agreement, all
claims covered by this Agreement that the Employee has or may have up to the
date of his execution of this Agreement are released to the fullest extent
permitted by law.
(c) Employee shall have twenty-one (21) days from the date he receives
this Agreement to complete his review and sign it. Employee will also have seven
(7) days following his execution of this Agreement to revoke it (the "Revocation
Period"). If Employee wishes to revoke his acceptance of this Agreement, he must
submit his revocation in writing at the Company's headquarters within the
Revocation Period. The terms of this Agreement shall not become effective or
enforceable until after the expiration of the Revocation Period.
8. Non-Compete, Non-Solicitation.
(a) In consideration of the Retirement Payment to be paid to Employee
pursuant to this Agreement, Employee agrees that, during the period commencing
on the Retirement Date and ending on the first anniversary of the Retirement
Date (the "Noncompete Period"), Employee shall not directly or indirectly own
any interest in, manage, control, participate in, consult with, or render
services as an employee or otherwise for any person or entity that (i) engages
in any activity competitive with the business being conducted by the Company as
of the Retirement Date, (ii) manufactures, distributes, markets or sells any
products that are being manufactured, distributed, marketed or sold by the
Company as of the Retirement Date, (iii) solicit orders from or seek to do
business with any customer of the Company in any manner that is competitive with
the business being conducted by the Company as of the Retirement Date, or (iv)
engage in any other business in which the Employee knows or has a reasonable
basis for believing the Company is planning to operate, as of the Retirement
Date. Nothing herein shall prohibit Employee from being a passive owner of not
more than 1% of the outstanding stock of any class of a corporation which is
publicly traded, so long as Employee has no active participation in the business
of such corporation.
(b) During the period commencing on the Retirement Date and ending on
April 30, 2011, Employee shall not directly, or indirectly through another
entity, (i) induce or attempt to induce any employee of the Company to leave the
employ of the Company, or in any way interfere with the relationship between the
Company and any employee thereof, (ii) hire any person who was an employee of
the Company during the preceding eighteen (18) months, or (iii) induce or
attempt to induce any customer, supplier, licensee, licensor, franchisee or
other business relation of the Company to cease doing business with the Company,
or in any way interfere with the relationship between any such customer,
supplier, licensee, licensor, franchisee or business relation and the Company.
9. Enforcement. If, at the time of enforcement of this Agreement, a court
holds that the restrictions stated herein are unreasonable under circumstances
then existing, the parties hereto agree that the maximum period, scope or
geographical area reasonable under such circumstances shall be substituted for
the stated period, scope or area. Because Employee has access to confidential
information, the parties hereto agree that money damages would not be an
adequate remedy for any breach of this Agreement. Therefore, in the event a
breach or threatened breach of this Agreement, the Company or its successors or
assigns may, in addition to other rights and remedies existing in their favor,
apply to any court of competent jurisdiction for specific performance and/or
injunctive or other relief in order to enforce, or prevent any violations of,
the provisions hereof (without posting a bond or other security). In addition,
in the event of an alleged breach or violation by Employee of Section 8, the
Noncompete Period pursuant to Section 8(a) and/or the nonsolicitation period
pursuant to Section 8(b), as the case may be, shall be tolled until such breach
or violation has been duly cured. In the event of a breach or violation by
Employee of Sections 5, 6, 7 or 8 of this Agreement, Employee shall repay the
Retirement Payment to the Company. Employee agrees that the restrictions
contained in Section 8 are reasonable.
10. Cooperation. Employee agrees to cooperate with the Company after the
Retirement Date and to make himself reasonably available and to answer questions
and furnish information requested by officers, directors or agents of the
Company relating to the business or customers of the Company.
11. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the full understanding
and entire agreement between Employee and the Company and supersedes any other
agreements of any kind, whether oral or written, formal or informal; provided
however, that Employee shall remain bound by any continuing obligations to
preserve the Company's trade secrets, intellectual property, and confidential
information. Employee represents and acknowledges that in signing this
Agreement, Employee has not relied upon any representation or statement not set
forth in this Agreement.
(b) Amendment. This Agreement may be amended or modified only by a
written instrument signed by the parties.
(c) Waiver. The parties agree that the failure of a party at any time to
require performance of any provision of this Agreement shall not affect,
diminish, obviate or void in any way the party's full right or ability to
require performance of the same or any other provision of this Agreement at any
time thereafter.
(d) Successor and Assigns. This Agreement shall inure to the benefit of
and shall be binding upon Employee, his heirs, administrators, representatives,
executors, successors and assigns and upon the successors and assigns of the
Company.
(e) Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the Commonwealth of Massachusetts without regard to
the conflict of law principles thereof.
(f) Severability. This Agreement is intended to be severable. Should any
portion, term or provision of this Agreement be declared or determined by any
court to be illegal, invalid or unenforceable, the validity of the remaining
portions, terms and provisions, and the application of such portion, term or
provision in circumstances other than those as to which it is so declared
illegal or unenforceable, shall not be affected thereby, and the illegal,
invalid or unenforceable portion, term or provision shall be valid and
enforceable to the fullest extent permitted by applicable law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
XXXXXX-XXXXXX CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx, Xx. Date: 9/3/09
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Name: Xxxxxxxx X. Xxxxxx, Xx.
Title: Chairman
/s/ Xxxxxxx X. Xxxxxxxxxx, Xx. Date: 9/3/09
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Xxxxxxx X. Xxxxxxxxxx, Xx.
RETIREMENT AGREEMENT
AND
GENERAL RELEASE
Schedule 1
Outstanding Options to Purchase Common Stock Option Exercise Price Per Share
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1992 Stock Option Plan 249,560 $ 1.36
1999 Stock Option Plan 94,124 $ 1.36
2001 Stock Option Plan 39,161 $ 1.36
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Total 382,845
