EXHIBIT 99
----------
XXXXXXXX & STRUGGLES
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (this "Agreement")
is made as of this 16th day of February 2007 (the "Effective Date"),
by and between Xxxxxxx X. Xxxxx (the "Employee") and Xxxxxxxx &
Struggles International, Inc. and its affiliates (collectively, the
"Company"), concerning the termination of Employee's employment with
the Company.
WHEREAS, the Company and the Employee entered into a Letter
Agreement dated as of June 21, 2004, as amended September 22, 2005
(the "Letter Agreement");
WHEREAS, the Employee has tendered his resignation as President,
Leadership Consulting (formerly Managing Partner, Leadership Services)
of Xxxxxxxx & Struggles International, Inc., to be effective on March
31, 2007 (the "Termination Date"); and
WHEREAS, the Company and the Employee intend that this Agreement
shall be in complete settlement of all rights of the Employee under
the Letter Agreement or otherwise relating to his employment by the
Company.
NOW THEREFORE, in consideration of the mutual promises and
agreements set forth below, the Company and the Employee agree as
follows:
1. TERMINATION. The Employee's employment with the Company
will terminate as of the close of business on the Termination Date.
Through the Termination Date, the Employee will continue to be paid
his currently monthly salary ($37,500 per month) and be eligible to
participate in all benefit plans and programs available to employees
of Xxxxxxxx & Struggles, Inc. generally including but not limited to
the Company's 401(k) plan, in accordance with the terms of such plans
and programs. Through February 16, 2007 (the "Leave Date"), the
Employee will continue to serve as an employee of the Company with the
same duties and responsibilities as immediately prior to his execution
of this Agreement. During the period beginning the day after the
Leave Date through the Termination Date, the Employee will be relieved
of his customary duties and responsibilities he shall no longer report
to any office of the Company except for reasonable periods in the New
York office of the Company as mutually agreed by the Employee and the
Company. Any business expenses properly incurred by the Employee
prior to the Termination Date will be reimbursed in accordance with
the Company's expense reimbursement policy.
Sears Tower - Suite 4200 000 Xxxxx Xxxxxx Xxxxx Xxxxxxx XX 00000-0000
Phone: 312/000-0000 Fax: 312/000-0000
Xxxxxxxx & Struggles International, Inc.
Offices in Principal Cities of the World xxx.xxxxxxxx.xxx
2. RESIGNATION. The Employee resigns as President, Leadership
Consulting of Xxxxxxxx & Struggles International, Inc. as of the close
of business on the Termination Date. The Employee resigns from all
other officer, director and other positions with the Company and any
or all of its affiliates effective as of the close of business on the
Termination Date.
3. 2006 BONUS PAYMENT. The Employee shall receive a 2006 bonus
payment from the Company ("Bonus Payment") in an amount no less than
$427,500, payable according to such terms and on such date in 2007 as
similarly situated Company employees receive their Bonus Payments.
The entire Bonus Payment will be paid out in cash and the Employee
will not be required to accept restricted stock units in respect of
any portion of his Bonus Payment.
4. SEVERANCE PAYMENT. The Employee shall receive a severance
payment (the "Severance Payment") of: (i) 12 months of Base Salary
equal to $450,000, and (ii) 12 months of Target Bonus equal to
$450,000, for a total a lump-sum severance payment of $900,000. To
avoid subjecting the Employee to the payment of any interest or
additional tax imposed under Section 409A of the Internal Revenue Code
of 1986, as amended (the "Code"), the Severance Payment will be paid
to the Employee on the date six months after the Termination Date.
The Company's obligation to pay the Severance Payment is conditioned
upon the Employee's execution of this Agreement and the General
Release and Waiver, which is attached as Exhibit A to this Agreement
(the "Release") (to be executed during the 21-day period beginning on
the Termination Date), and the continued compliance by the Employee
with all of the terms and conditions of this Agreement.
5. EQUITY AWARDS. Except as otherwise provided for in Exhibit
B, effective as of the Termination Date, (a) the Employee shall
forfeit and/or relinquish any and all interests and rights in and
under all unvested equity awards granted under any plan or program
maintained by the Company, and (b) all equity awards which are vested
as of the Termination Date shall continue to be exercisable for a
period of sixty (60) days following the Termination Date. Other than
the awards set forth on Exhibit B hereto, the Employee acknowledges
and agrees that he does not possess, nor is he entitled to, any other
equity awards under any plan or program of the Company.
6. TERMINATION OF BENEFITS. Except as specifically provided in
this Agreement with respect to plans or arrangements specifically
identified in this Agreement, the Employee's continued participation
in all employee benefit plans (pension and welfare) and compensation
plans will cease as of the Termination Date. Any payments made to the
Employee pursuant to this Agreement, other than with respect to the
continued payment of salary to the Termination Date, shall be
disregarded for purposes of determining the amount of benefits to be
accrued on behalf of the Employee under any pension or other benefit
plan maintained by the Company. Nothing contained herein shall limit
or otherwise impair the Employee's right to receive pension or similar
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benefit payments which are vested as of the Termination Date under any
applicable tax qualified pension or other tax qualified benefit plan.
7. MEDICAL BENEFITS. The Employee's entitlement to continue
family medical coverage, which shall include vision and dental
coverage, under the benefit plans of the Company operated in the
United States will be determined in accordance with the provisions of
COBRA.
8. NO OTHER PAYMENTS. The Employee agrees and acknowledges
that, other than as specifically provided for in this Agreement, no
additional payments are due from the Company on any basis whatsoever.
9. RELEASE. As part of this Agreement, and in consideration of
the additional payments provided to the Employee in accordance with
this Agreement, the sufficiency of which is hereby acknowledged, the
Employee is required to execute the Release during the 21-day period
beginning on the Termination Date, deliver the executed Release to the
Company per Section 16(d) below, and not revoke the Release.
10. ASSISTANCE WITH CLAIMS. The Employee agrees to cooperate
with the Company or any affiliate in the defense, prosecution or
evaluation of any pending or potential claims or proceedings involving
or affecting the Company or any affiliate arising during the period of
Employee's employment with the Company (the "Employment Period") or
relating to any decisions in which the Employee participated or any
matter of which the Employee had knowledge. The Employee agrees,
unless precluded by law, to promptly inform the Company if he is asked
to participate (or otherwise become involved) in any claims that may
be filed against the Company or any affiliate relating to the
Employment Period. The Employee also agrees, unless precluded by law,
to promptly inform the Company if he is asked to assist in any
investigation (whether governmental or private) of the Company or any
affiliate (or their actions) relating to any matter, regardless of
whether a lawsuit has then been filed against the Company or any
affiliate with respect to such investigation. Specifically and
without limitation, the Employee will attend and participate in
meetings and interviews conducted by Company personnel, and/or
attorneys appointed by the Company and may be represented by counsel
who may attend such meetings and interviews, and execute written
affidavits confirming the Employee's statements in such meetings in
respect of any such matters; provided such meetings do not
unreasonably interfere with the Employee's employment or self-
employment entered into after the Termination Date. The Employee will
make himself available for the foregoing at mutually convenient times
during business hours from time to time as reasonably requested by the
Company. Promptly upon the receipt of the Employee's written request,
the Company agrees to reimburse the Employee for all reasonable out-
of-pocket expenses associated with such cooperation, including,
without limitation, meals, lodging, travel, and ground transportation
expenses; provided, however, subject to Section 16(k) of this
Agreement, that such reimbursement shall specifically exclude any fees
3
for legal representation engaged by the Employee, that is not
otherwise reimbursable pursuant to the Company's policies in effect at
such time or the Company's By-Laws. This Paragraph 10 shall not
preclude the Employee from responding to an inquiry in an honest
manner.
11. NON-DISPARAGEMENT. (a) The Employee agrees that on and
after the Effective Date, he will not make any disparaging, critical
or derogatory statement about the Company or any affiliate or their
shareholders or any of their current or former officers, directors or
employees or otherwise make disparaging comment on any aspects of the
Employee's employment with the Company or the termination thereof; (b)
the Company agrees not to make any disparaging, critical or derogatory
statement (defined, solely for purposes of this paragraph 11(b), as a
press release, filing with any governmental agency, web site posting
or similar public disclosure made by the Company's executive officers)
about the Employee or Employee's employment with the Company or the
termination thereof; and (c) the provisions of this paragraph 11(a)
and 11(b) shall not apply to testimony as a witness, any disclosure
required by law to be made by the Company or the Employee, or the
assertion of or defense against any claim of breach of this Agreement
and shall not require either party to make false statements or
disclosures.
12. CONTINUED APPLICATION OF RESTRICTIVE COVENANTS. Except as
may be modified by the following provisions of this Paragraph 12, the
Employee expressly acknowledges and agrees that he will continue to
remain subject to any confidentiality, non-solicitation and non-
competition provisions entered into in connection with the Letter
Agreement and any other agreement or compensation award with the
Company (the "Covenants"), and further agrees that the obligations
under the Covenants are not limited in any way by this Agreement or
termination from employment with the Company.
(a) The Employee shall return all documents, records and
property of the Company and any of its affiliates as of the date
seven (7) days after the Leave Date (the "Return Date"). Without
limiting the generality of the foregoing, the Employee shall
return to the Company no later than the Return Date any and all
original and duplicate copies of all the Employee's work product
and of files, calendars (except for personal calendars), books,
records, notes, notebooks, customer lists and proposals to
customers, manuals, computer equipment (including any desktop
and/or laptop computers, handheld computing devices, home
systems, computer disks and diskettes), mobile telephones
(including SIM cards and the like), Blackberry devices, personal
data assistants (PDAs), fax machines, and any other magnetic and
other media materials the Employee has in his possession or under
his control that belong to the Company or any of its affiliates
that contain confidential or proprietary information concerning
the Company or any of its affiliates or their clients or
operations. The Employee also must return to the Company by the
4
Leave Date any keys, credit cards and I.D. cards that belong to
the Company or any of its affiliates but are in the Employee's
possession or within the Employee's control.
(b) The Employee agrees not to instigate or participate in
any administrative or judicial proceeding against the Company or
any affiliate (except for proceedings to enforce this Agreement)
unless requested by the Company or otherwise required by law.
Excluded from this covenant not to xxx are any claims that by law
cannot be waived, including but not limited to the right to
participate in an investigation conducted by certain government
agencies. The Employee is, however, waiving his right to any
monetary recovery should any such agency (such as the Equal
Employment Opportunity Commission) pursue any claims on his
behalf.
(c) Subject to the foregoing provisions of this Paragraph
12, the Company will continue to have the right to enforce such
obligations of the Covenants.
13. DISCLOSURE TO PROSPECTIVE NEW EMPLOYER(S). The Employee
agrees that, prior to the commencement of any new employment, if prior
to the end of the expiration of the restrictive provisions of the
Covenants, he will furnish the prospective new employer with a copy of
the provisions of this Agreement (and as needed, relevant provisions
of the Letter Agreement or any other agreement with the Company)
relating to the Covenants. The Employee also agrees that, during such
period, the Company may advise any new employer or prospective new
employer of the provisions of this Agreement relating to the Covenants
and furnish the new employer or prospective new employer with a copy
of such provisions (and as needed, relevant provisions of the Letter
Agreement or any other agreement with the Company).
14. WITHHOLDING FOR TAXES. All benefits and payments provided
to the Employee pursuant to this Agreement, which are required to be
treated as compensation shall be subject to all applicable tax
withholding and reporting requirements.
15. ATTORNEYS FEES. In the event of any dispute with respect to
a breach or asserted breach of this Agreement, the prevailing party as
determined by the presiding judge or arbitration panel in said
proceeding shall be entitled to recover such party's reasonable
attorneys' fees and expenses from the other party.
16. MISCELLANEOUS.
(a) BINDING EFFECT. This Agreement shall be binding upon
each of the parties and upon their respective heirs,
administrators, representatives, executors, successors and
assigns, and shall inure to the benefit of each party and to
their heirs, administrators, representatives, executors,
successors and assigns.
5
(b) APPLICABLE LAW. This Agreement shall be construed in
accordance with the laws of the State of Illinois, without regard
to the conflict of law provisions of any jurisdiction.
(c) ENTIRE AGREEMENT. This Agreement reflects the entire
agreement between the Employee and the Company and, except as
specifically provided herein, supersedes all prior agreements and
understandings, written or oral relating to the subject matter
hereof, it being acknowledged, however, that the Employee shall
continue to be subject to the Covenants. To the extent that the
terms of this Agreement (including Exhibits to this Agreement)
are to be determined under, or are to be subject to, the terms or
provisions of any other document, this Agreement (including
Exhibits to this Agreement) shall be deemed to incorporate by
reference such terms or provisions of such other documents.
(d) NOTICES. Any notice pertaining to this Agreement shall
be in writing and shall be deemed to have been effectively given
on the earliest of (a) when received, (b) upon personal delivery
to the party notified, (c) one business day after delivery via
facsimile with electronic confirmation of successful
transmission, (d) one business day after delivery via an
overnight courier service or (e) five days after deposit with the
United Postal Service, and addressed as follows:
to the Employee at: Xxxxxxx X. Xxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Or such other address as the Employee duly notifies the Company.
to the Company at: Xxxxxxxx & Struggles International, Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attn: General Counsel
Fax: (000) 000-0000
(e) WAIVER OF BREACH. The waiver by either party to this
Agreement of a breach of any provision of this Agreement shall
not operate as or be deemed a waiver of any subsequent breach by
such party. Continuation of benefits hereunder by the Company
following a breach by the Employee of any provision of this
Agreement shall not preclude the Company from thereafter
exercising any right that it may otherwise independently have to
terminate said benefits based upon the same violation.
(f) AMENDMENT. This Agreement may not be modified or
amended except by a writing signed by the parties to this
Agreement.
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(g) COUNTERPARTS. This Agreement may be signed in multiple
counterparts, each of which shall be deemed an original. Any
executed counterpart returned by facsimile shall be deemed an
original executed counterpart.
(h) NO THIRD PARTY BENEFICIARIES. Unless specifically
provided herein, the provisions of this Agreement are for the
sole benefit of the parties to this Agreement and are not
intended to confer upon any person not a party to this Agreement
any rights hereunder.
(i) TERMS AND CONSTRUCTION. Each party has cooperated in
the drafting and preparation of this Agreement. The language in
all parts of this Agreement shall be in all cases construed
according to its fair meaning and not strictly for or against
either party.
(j) ADMISSIONS. Nothing in this Agreement is intended to
be, or will be deemed to be, an admission of liability by the
Employee or the Company to each other, or an admission that they
or any of their agents, affiliates, or employees have violated
any state, federal or local statute, regulation or ordinance or
any principle of common law of any jurisdiction, or that they
have engaged in any wrongdoing towards each other.
(k) INDEMNIFICATION. The Employee shall continue to be
eligible for indemnification by the Company to the extent
provided to other former Executives of the Company, as provided
in the Company by-laws as currently in effect, any policy of
insurance obtained by the Company or as may be required by
Delaware law.
IN WITNESS WHEREOF, this Separation Agreement and General Release
has been duly executed as of the Effective Date.
Xxxxxxxx & Struggles International, Inc.
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxxx X. Xxxxxxx
------------------------- ---------------------------------------
Xxxxxxx X. Xxxxx By: Xxxxxxxx X. Xxxxxxx
Title: Chief Human Resources Officer
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EXHIBIT A
---------
GENERAL RELEASE AND WAIVER
--------------------------
1. This document (the "Release") is attached to, is
incorporated into, and forms a part of, a Separation Agreement and
General Release, dated _______________ ___, 2007 (the "Agreement") by
and between Xxxxxxxx & Struggles International, Inc. (the "Company")
and Xxxxxxx X. Xxxxx (the "Employee"). Except for (i) a Claim (as
defined below) based upon a breach of the Agreement, (ii) a Claim
which is expressly preserved by the Agreement, (iii) a Claim duly
filed pursuant to the group welfare and retirement plans of the
Company, or (iv) a claim filed pursuant to any policy of liability
insurance or the Company's bylaws, the Employee, on behalf of himself
and the other Employee Releasors (as defined below), releases and
forever discharges the Company and the other Company Releasees (as
defined below) from any and all Claims which the Employee now has or
claims, or might hereafter have or claim, whether known or unknown,
suspected or unsuspected (or the other Employee Releasors may have, to
the extent that it is derived from a Claim which the Employee may
have), against the Company Releasees based upon or arising out of any
matter or thing whatsoever, from the beginning of time to the date
affixed beneath the Employee's signature on this General Release and
Waiver and shall include, without limitation, Claims (other than those
specifically excepted above) arising out of or related to the Letter
Agreement dated June 21, 2004, as amended September 22, 2005 and
Claims arising under (or alleged to have arisen under) (a) the Age
Discrimination in Employment Act of 1967, as amended; (b) Title VII of
the Civil Rights Act of 1964, as amended; (c) The Civil Rights Act of
1991; (d) Section 1981 through 1988 of Title 42 of the United States
Code, as amended; (e) the Employee Retirement Income Security Act of
1974, as amended; (f) The Immigration Reform Control Act, as amended;
(g) The Americans with Disabilities Act of 1990, as amended; (h) The
National Labor Relations Act, as amended; (i) The Occupational Safety
and Health Act, as amended; (j) any state or local anti-discrimination
law; (k) any other local, state or federal law, regulation or
ordinance; (l) any public policy, contract, tort, or common law; or
(m) any allegation for costs, fees, or other expenses including
attorneys' fees incurred in these matters. The Employee further
releases any rights to recover damages or other personal relief based
on any claim or cause of action filed on the Employee's behalf in
court or any agency.
2. For purposes of this Release, the terms set forth below
shall have the following meanings:
(a) The term "Agreement" shall include the Agreement and
the Exhibits thereto.
(b) The term "Claims" shall include any and all rights,
claims, demands, debts, dues, sums of money, accounts, attorneys'
Page 1
fees, experts' fees, complaints, judgments, executions, actions
and causes of action of any nature whatsoever, cognizable at law
or equity.
(c) The term "Company Releasees" shall include the Company
and its affiliates and their current, former and future officers,
directors, trustees, members, employees, shareholders, partners,
assigns and administrators and fiduciaries under any employee
benefit plan of the Company and of any affiliate, and insurers,
and their predecessors and successors.
(d) The term "Employee Releasors" shall include the
Employee, and his family, heirs, executors, representatives,
agents, insurers, administrators, successors, assigns, and any
other person claiming through the Employee.
3. The Employee acknowledges that: (a) the Employee has read
and understands this Release and the Agreement in their entirety; (b)
the payments and other benefits provided to the Employee under the
Agreement exceed the nature and scope of that to which the Employee
would otherwise have been entitled to receive from the Company; (c)
the Employee has been advised in writing to consult with an attorney
about this Release and the Agreement before signing and has had ample
opportunity to do so; (d) the Employee has been given twenty-one (21)
days to consider this Release and the Agreement before signing; (e)
the Employee has the right to revoke this Release in full within seven
(7) calendar days of signing it by providing written notice to the
Company per the notice provisions of Section 16(d) of the Agreement,
and that this Release and the Agreement shall not become effective
until that seven-day revocation period has expired; and (f) the
Employee enters into this Release knowingly and voluntarily, without
duress or reservation of any kind, and after having given the matter
full and careful consideration.
* * * *
[Not to be signed until the
Termination Date, as defined
in the Agreement]
______________________________
Xxxxxxx X. Xxxxx
Date:_________________________
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EXHIBIT B
---------
NON-QUALIFIED STOCK OPTIONS
---------------------------
Number Option Vested as of Forfeited as Expiration
Grant Of Exercise Termination of Termination of Vested
Date Shares Price Date Date Options
---- ------ ----- ----------- ------------- -------
7-1-04 30,000 $29.16 20,000 10,000 All vested
options
have been
exercised
3-10-05 5,000 $36.17 3,333 1,667 60 days
after
Termination
Date
3-3-06 10,000 $32.96 3,333 6,667 60 days
after
Termination
Date
TOTAL 45,000 26,666 18,334
RESTRICTED STOCK UNITS
-----------------------
Vested as of Forfeited as Shares Subject
Grant Number of Termination of Termination to Continued
Date Shares Date Date Vesting
---- ------ ---------- -------------- --------------
3-10-05 5,000 3,333 1,667 0
3-3-06 5,000 1,666 3,334 0
3-3-06 20,000 0 20,000 0
3-3-06 2,336 778 1,558 0
TOTAL 32,336 5,777 26,559 0
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