EXHIBIT 10.11
EXECUTION COPY
SETTLEMENT AND RETENTION AGREEMENT
THIS SETTLEMENT AND RETENTION AGREEMENT ("Agreement") is entered into
this 7th day of August, 2002, by and between THE XXXXXXXX COMPANIES, INC., a
Delaware Corporation ("Company"), and Xxxxxxx X. xxx Xxxxx ("Executive");
WHEREAS, Executive has expressed an interest in retiring immediately
due to health considerations;
WHEREAS, the Company has determined that it is critical to retain the
services of Executive as an employee until January 2, 2003 ("Separation Date")
in order to have sufficient time to appoint Executive's successor and to permit
the orderly transition of projects from Executive to such successor;
WHEREAS, the Company has also determined that the continued
availability of Executive after his retirement is also needed in order to
provide such orderly transition;
WHEREAS, Executive is willing to delay his retirement to the Separation
Date and to provide consulting services after his retirement in accordance with
the provisions of this Agreement and the Consulting Agreement, a copy of which
is attached hereto as Exhibit "A";
WHEREAS, Executive has requested, effective on his Separation Date, a
distribution of his entire interest in the Xxxxxxxx Companies Supplemental
Retirement Plan ("SERP") to be applied as an offset to his stock option loan in
accordance with this Agreement and Executive understands that he will not
receive any further consideration, benefits or payments under the SERP; and
WHEREAS, Executive further understands that his voluntary retirement on
the Separation Date pursuant to this Agreement, will prevent him from receiving
his Company deferred stock awards that would otherwise vest on or after January
2, 2003, unless such awards should vest, in accordance with their respective
terms, during his employment for reasons such as the Executive's death; and
NOW, THEREFORE, in consideration of their mutual promises made herein
and for other good and valuable consideration, and intending to be legally
bound, the Company and Executive hereby agree as follows:
1. Executive Services. Executive agrees to continue to perform
his services as General Counsel until January 2, 2003 or such earlier
time as may be determined by the Company in its sole and absolute
discretion. It is expressly recognized by the parties hereto that
Executive will continue to be employed by the Company as an "at will"
employee and that the Company may terminate his services at any time
with or without any reason. During his employment, Executive shall
receive his current salary and except as otherwise provided in this
Agreement, he shall be entitled to continue to participate in those
employee benefit programs currently made available to him, unless such
employee benefit programs are amended or terminated in accordance with
their respective terms. The termination of Executive's employment prior
to January 2, 2003 shall not in any way relieve Executive of any of his
obligations hereunder including, but not limited to, his duty to
provide consulting services and to provide a written release to the
Company in accordance with the terms hereof.
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2. Company Payments. On, or within ten (10) days of the date
on which the Release Agreement set forth in Exhibit "B" becomes
effective in accordance with its terms, the Company shall, in
consideration of Executive's covenants and obligations hereunder:
(i) Grant Executive's request to receive and
apply his entire benefit with respect to the
SERP, having a total value of Two Million,
One Hundred Ninety-three Thousand, One
Hundred and Thirty-two Dollars
($2,193,132.00), less all amounts required
to be withheld under applicable federal and
state tax laws, as an offset to his stock
option loan;
(ii) Pay Executive the sum of Three Hundred
Thousand Dollars ($300,000.00), less all
amounts required to be withheld under
applicable federal and state tax laws, as a
retention payment, provided the Company
shall be entitled to apply the net amount
due (after applicable tax withholdings) as a
loan offset;
(iii) Pay Executive, in connection with his
retirement on the Separation Date pursuant
to this Agreement, the sum of Five Hundred
and Seventy-one Thousand Dollars
($571,000.00), less all amounts required to
be withheld under applicable federal and
state tax laws, as a severance payment in
lieu of any and all severance payments, that
may be owed to the Executive, provided the
Company shall be entitled to apply
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the net amount due (after applicable tax
withholdings) as a loan offset; and
(iv) Pay Executive the sum of Two Hundred Fifty
Thousand Dollars ($250,000.00), less all
amounts required to be withheld under
applicable federal and state tax laws, for
agreeing to not compete, executing the
Consulting Agreement set forth on Exhibit
"A", and agreeing not to solicit employees,
provided the Company shall be entitled to
apply the net amount due (after applicable
tax withholdings) as a loan offset.
Unless Executive has repaid his stock option loan, the Company
shall not be required to deliver any funds to Executive in order to
satisfy its obligations under this Paragraph 2. The Company's
obligation with respect to such payments shall be limited to: (i)
withholding and remitting to the appropriate governmental agency the
minimum withholding amounts required under applicable federal and state
laws and regulations and (ii) applying the remaining amount of such
payments as an offset to repay the Executive's stock option loan until
such loan is discharged in full with the balance of the payments, if
any, being remitted to Executive. If the payments hereunder are not
sufficient to repay such loan, Executive shall repay the remaining
indebtedness of such loan within thirty (30) days after Executive's
termination of employment, and, upon such payment, Company shall
release the existing collateral for the loan.
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3. SERP. The Executive hereby acknowledges and agrees that his
SERP benefit is being paid to him at his request and that he will not
be entitled to any further payments under the SERP. Executive hereby
releases and forever discharges the SERP, the Company, its subsidiaries
and affiliates (the "Xxxxxxxx Group") from any and all liabilities in
connection with the SERP, including, but not limited to, any liability
to provide any further payments to Executive. In addition, Executive
hereby voluntarily waives any right which he may otherwise have to
participate in the SERP and acknowledges and agrees that his release
and waiver under this Paragraph 3 is part of the consideration for the
agreement of the Company to permit his SERP benefit to be used as an
offset to his loan obligation.
4. Severance. Due to the retention and severance payment being
made hereunder, Executive also hereby voluntarily waives any right
which he may have to receive severance payments (other than the
payments provided hereunder) of any nature whatsoever from the Company,
including but not limited to, the severance payments that are provided
under any severance plans, practices, programs or agreements maintained
by or contributed to by the Xxxxxxxx Group, including, but not limited
to, any change-in-control severance plan or agreement.
5. Forfeiture of Deferred Stock Awards. Since the Executive's
employment will cease on the Separation Date due to his voluntary
retirement on January 2,
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2003, Executive further acknowledges and agrees that all of his
existing deferred stock awards that are scheduled to vest on or after
January 2, 2003 will be forfeited unless such awards vest before that
date pursuant to their existing terms.
6. Consulting. Executive and Company agree that Executive,
upon the termination of his employment, will provide consulting
services to the Company in accordance with the terms of the Consulting
Agreement attached hereto as Exhibit "A".
7. Execution of Release. Executive agrees to execute no
earlier than January 3, 2003, the Release Agreement attached hereto as
Exhibit "B", provided that the Release shall in no way impair
Executive's rights to indemnity from the Xxxxxxxx Group, including, but
not limited to, his rights to indemnification under any certificate of
incorporation, any by-laws, any corporate resolutions, any employee
benefit plans, any insurance policies or any other instrument or
agreement to which a member of the Xxxxxxxx Group is bound. Executive
further understands that the execution of such Release is a material
part of the consideration for the Company payments under Paragraph 2
hereof.
8. EICP Bonus. Executive may receive a bonus under the
Executive Incentive Compensation Program for the 2002 calendar year.
Such bonus, if any, will be determined by the Compensation Committee
and will be based on a target opportunity of sixty-five percent (65%)
of base pay, actual Company financial performance and, as determined by
the Compensation Committee, stock performance and personal performance.
The bonus, if any, will be paid, less all amounts required to be
withheld under applicable federal and state tax laws, in a lump sum at
the same time payment is made to other participants,
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provided the Company shall be entitled to apply the net amount due
(after applicable tax withholdings) as a loan offset.
9. Insurance and Indemnification. To the extent permitted by
law and as provided in its Certificate of Incorporation and By-Laws,
the Company shall use its best efforts to maintain directors and
officers insurance providing coverage to Executive for, and shall
indemnify and hold harmless Executive from, all claims made against him
to the extent they relate to, or arise out of, his employment at the
Company as a director, officer or employee.
10. Benefits. Except as otherwise provided in Paragraphs 3, 4
and 5 hereof, nothing contained herein shall be construed to abrogate
Executive's rights under any employee benefit or incentive compensation
plan. Executive's rights under any such employee benefit or incentive
compensation plan shall be governed by the terms of such plan.
11. Confidentiality. Executive covenants and agrees that,
during and for six (6) years after termination of Executive's
employment with Company, Executive shall not, unless required by
applicable law, divulge, furnish, disclose or make accessible to any
person, entity or governmental authority any knowledge or information,
techniques, processes, trade secrets, customer information or lists,
plans, devices or material with respect to any secret, confidential or
sensitive research or development work, promotions, ideas,
opportunities, business plans, designs, products or production methods
of the Xxxxxxxx Group or with respect to any other secret, confidential
or sensitive aspect of the business of the Xxxxxxxx Group, except as
may be necessary in the
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furtherance and conduct of the business of the Xxxxxxxx Group. It is
acknowledged that the Xxxxxxxx Group would be irreparably harmed if
Executive should breach the provisions of this Paragraph 11.
Accordingly, the Company is granted the right of specific performance
to enforce the provisions of this Paragraph 11. The Executive also
acknowledges that this Paragraph 11 is a material term of this
Agreement and that its breach could result in damage to the Xxxxxxxx
Group that may be difficult to ascertain and that upon any such breach
or in reasonable anticipation of any such breach, the Company will be
entitled to an order of any court of competent jurisdiction to enjoin
such breach.
12. Exclusive Service. Executive shall devote his full
business time and attention and his best efforts to the performance of
his duties hereunder.
13. Derogatory Remarks. The Executive will not make public
derogatory comments regarding the Xxxxxxxx Group at any time before or
after his termination of employment.
14. Files and Records. Promptly upon termination of his
employment, the Executive will return to the Company all property and
all files and other documentation belonging to or relating or in any
way pertaining to the Xxxxxxxx Group or the business or operations of
the Xxxxxxxx Group, except as may be required by the Executive in the
bona fide enforcement of this Agreement.
15. Cooperation in Litigation. To the extent reasonably
necessary and upon reasonable notice, following his termination of
employment, the Executive will cooperate with the Xxxxxxxx Group in
connection with the prosecution or defense of any claim asserted by or
against any of them (excluding a claim in
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connection with the enforcement of this Agreement) with respect to
which the Executive may have any knowledge.
16. General Provisions.
(a) Binding Agreement: This Agreement will be binding
upon, and inure to the benefit of, Executive and the Company
and their respective permitted successors and permitted
assigns.
(b) Amendment of Agreement: This Agreement may not be
modified or amended except by an instrument in writing signed
by both Executive and a duly authorized representative of
Company.
(c) Waiver: No term or condition of this Agreement
will be deemed to have been waived, nor will there by any
estoppel against the enforcement of any provision of this
Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver will be
deemed a continuing waiver unless specifically stated therein,
and each such waiver will operate only as to the specific term
or condition waived and shall not constitute a waiver of such
term or condition for the future or as to any act other than
that specifically waived.
(d) Headings: The heading of paragraphs or
subparagraphs herein are included solely for convenience or
reference and will not control the meaning or interpretation
of any of the provisions of this Agreement.
(e) Notices: Any and all notices required to be sent
pursuant to the terms of this Agreement will be sent by
registered or certified mail or be personally delivered to the
parties hereto at the following addresses or
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such other addresses as they may designate:
Executive:
Xxxxxxx X. xxx Xxxxx
0000 X. Xxxxx
Xxxxx, XX 00000
Company:
The Xxxxxxxx Companies, Inc.
Attn: Senior Vice President, Human Resources
Xxx Xxxxxxx Xxxxxx
X. X. Xxx 0000
Xxxxx, Xxxxxxxx 00000
(f) Governing Law: All the terms and provisions of
this Agreement and their validity, interpretation, performance
and enforcement will be governed by the laws of the State of
Oklahoma.
(g) Agreement Binding: Except as otherwise expressly
provided herein, the obligations of Executive under this
Agreement will continue after the termination of Executive's
employment with the Company for any reason, and will be
binding on Executive's heirs, executors, legal representatives
and permitted assigns and will inure to the benefit of the
Company and any successors and assigns of the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day first written above.
THE XXXXXXXX COMPANIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Title: Senior Vice President
------------------------------
Witness:
/s/ Xxxxxx X. XxxXxxx
------------------------------------
/s/ Xxxxxxx X. xxx Xxxxx
-------------------------------------
Xxxxxxx X. xxx Xxxxx
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EXHIBIT "A"
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is entered into this 7th day of August, 2002,
by and between THE XXXXXXXX COMPANIES, INC. a Delaware Corporation, ("Xxxxxxxx")
and Xxxxxxx X. xxx Xxxxx ("Consultant").
WHEREAS, Xxxxxxxx wishes to avail itself of Consultant's knowledge,
expertise and experience by hiring Consultant as a consultant;
WHEREAS, Consultant is willing to serve as a consultant to Xxxxxxxx
upon the terms and conditions set forth below;
NOW, THEREFORE, in consideration of their mutual promises and for other
good and valuable consideration, Xxxxxxxx and Consultant hereby agree as
follows:
1. Consulting Services.
(a) During the period beginning on the date on which
Consultant ceases to be employed by Xxxxxxxx and continuing until
December 31, 2005 (the "Consulting Period"), Consultant shall provide
to Xxxxxxxx, its subsidiaries and affiliates (the "Xxxxxxxx Group"),
consulting services commensurate with his status and experience with
respect to such matters as shall be reasonably requested from time to
time by the General Counsel of Xxxxxxxx (the "Xxxxxxxx
Representative"), provided that Consultant shall not be required to
provide such services during any period when he is unable to perform
due to his health. Consultant shall provide consulting services to the
Xxxxxxxx Group only as needed and when reasonably requested by the
Xxxxxxxx Representative, provided that, without his prior consent,
Consultant shall not be required to
devote more than one hundred twenty (120) hours in any calendar month
to the performance of any consulting services hereunder. The Consultant
shall determine the time and location at which he shall perform such
services, subject to the right of the Xxxxxxxx Representative to
reasonably request by advance written notice that such services be
performed at a specific time and at a specific location. The Consultant
shall honor any such request unless he is unable to perform due to his
health, or he has a conflicting business commitment that would preclude
him from performing such services at the time and/or place requested by
the Xxxxxxxx Representative, and in such circumstances, shall make
reasonable efforts to arrange a mutually satisfactory alternative.
Xxxxxxxx shall use its reasonable best efforts not to require the
performance of consulting services in any manner that unreasonably
interferes with any other business activity of Consultant.
(b) Consultant shall not, solely by virtue of the consulting
services provided hereunder, be considered to be an officer or employee
of any member of the Xxxxxxxx Group during the Consulting Period, and
shall not have the power or authority to contract in the name of or
bind any member of the Xxxxxxxx Group. Consultant shall at all times be
treated as an independent contractor and shall be responsible for the
payment of all taxes with respect to all amounts paid to him hereunder.
Consultant shall not, by reason of the services performed hereunder, be
entitled to participate in any employee benefits plan, program or
arrangement made available to any employee of the Xxxxxxxx Group.
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(c) This Agreement is personal to the Consultant and all of
the services required of the Consultant hereunder shall be performed
personally by him.
2. Consulting Fees. In respect of the services to be performed
hereunder, Xxxxxxxx shall pay Consultant Three Hundred Fifty Dollars ($350.00)
for each hour of consulting service, within ten (10) business days following
submission by Consultant of an itemized report indicating the hours of service
performed and fully describing the services rendered. Xxxxxxxx shall also
reimburse Consultant for such reasonable travel, lodging and other appropriate
expenses incurred by Consultant in the course or on account of rendering
consulting services hereunder, subject to the submission by the Consultant of
evidence of such expenses in a form reasonably satisfactory to Xxxxxxxx.
3. Confidential Information. The Consultant shall not, at any time
during the Consulting Period, make use of or disclose, directly or indirectly,
any (i) trade secret or other confidential or secret information of the Xxxxxxxx
Group or (ii) other technical, business, proprietary or financial information of
the Xxxxxxxx Group not available to the public generally or to the competitors
of the Xxxxxxxx Group ("Confidential Information"), except to the extent that
such Confidential Information (a) becomes a matter of public record or is
published in a newspaper, magazine or other periodical available to the general
public, other than as a result of any act or omission of the Consultant, (b) is
required to be disclosed by any law, regulation or order of any court or
regulatory commission, department or agency, provided that the Consultant gives
prompt notice of such requirement to Xxxxxxxx to enable Xxxxxxxx to seek an
appropriate protective order, or (c) is necessary to perform properly the
Consultant's duties under this Agreement.
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Promptly following the termination of the Consulting Period, the Consultant
shall surrender to Xxxxxxxx all records, memoranda, notes, plans, reports,
computer tapes and software and other documents and data which constitute
Confidential Information which he may then possess or have under his control
(together with all copies thereof).
4. Noncompetition; Nonsolicitation.
(a) The Consultant acknowledges that during the Consulting
Period he will become familiar with trade secrets and other
confidential information concerning the Xxxxxxxx Group and that his
services will be of special, unique and extraordinary value to the
Xxxxxxxx Group.
(b) The Consultant agrees that during the Consulting Period he
shall not in any manner, directly or indirectly, through any person,
firm or corporation, alone or as a member of a partnership or as an
officer, director, stockholder, investor or employee of or consultant
to any other corporation or enterprise or otherwise, engage or be
engaged, or assist any other person, firm corporation or enterprise in
engaging or being engaged, in any business, in which the Consultant was
involved or had knowledge, being conducted by, or contemplated by, the
Xxxxxxxx Group during the Consulting Period, in any geographic area in
which the Xxxxxxxx Group is then conducting such business.
(c) The Consultant further agrees that during the Consulting
Period he shall not in any manner, directly or indirectly, induce or
attempt to induce any employee of Xxxxxxxx Group to terminate or
abandon him or his employment for any purpose whatsoever.
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(d) Nothing in this Paragraph 4 shall prohibit the Consultant
from being (i) a stockholder in a mutual fund or a diversified
investment company or (ii) a passive owner of not more than two percent
(2%) of the outstanding stock of any class of a corporation, any
securities of which are publicly traded, so long as the Consultant has
no active participation in the business of such corporation.
(e) If, at any time of enforcement of this Paragraph 4, a
court or an arbitrator 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 and that the court or arbitrator shall be allowed to
revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law. This Agreement shall not authorize a
court or arbitrator to increase or broaden any of the restrictions in
this Paragraph.
5. Hold Harmless. Consultant shall hold harmless Xxxxxxxx, its
subsidiaries and affiliates, and its and their respective shareholders,
officers, directors, employees and attorneys against any damage, injury, death,
claim, loss, charge or expense (including, without limitation, attorneys' fees
and court costs and the costs of investigation) of any party, including
Consultant, arising out of or relating to, or claimed to arise out of or relate
to, Consultant's performance of this Agreement.
6. Termination of the Consulting Services. Xxxxxxxx may terminate this
Agreement solely for Cause, which shall be limited to either (i) the conviction
of the Consultant of a felony which has a substantial effect on the business or
reputation of the business or reputation of the Xxxxxxxx Group or (ii) the
continual and repeated failure of
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the Consultant to perform the services required of him hereunder, after written
notice of the alleged failures and an opportunity to cure has been given. The
Consultant may only terminate this Agreement due to a material breach hereof by
Xxxxxxxx.
7. Termination of Benefits. Nothing in this Agreement shall be
construed to limit, reduce, offset or otherwise impair Consultant's rights to
any benefits or compensation vested or accrued under the terms of the employee
benefit plans, programs or arrangements maintained by Xxxxxxxx, other than those
benefits which were released or waived by Consultant pursuant to the Settlement
and Retention Agreement dated August 7, 2002.
8. Enforcement. The parties hereto agree that the Xxxxxxxx Group would
be damaged irreparably in the event that any provision of Paragraph 3 or 4 of
this Agreement were not performed in accordance with its terms or were otherwise
breached and that money damages would be an inadequate remedy for any such
nonperformance or breach. Accordingly, Xxxxxxxx and its successors and permitted
assigns shall be entitled, in addition to other rights and remedies existing in
their favor, to an injunction or injunctions to prevent any breach or threatened
breach of any of such provisions and to enforce such provisions specifically
(without posting a bond or other security). The Consultant agrees that he will
submit himself to the personal jurisdiction of the courts of the State of
Oklahoma in any action by Xxxxxxxx to enforce an arbitration award against him
or to obtain interim injunctive or other relief pending an arbitration decision.
9. Disputes. Any controversy or claim arising out of or relating to
this Agreement, or any breach thereof, shall be settled by arbitration in
accordance with the
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rules of the American Arbitration Association then in effect in the State of
Oklahoma, and judgment upon such award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. The arbitration shall be held
in Tulsa, Oklahoma, each party to bear its own costs. The arbitrator shall have
the authority to award any remedy or relief that a court of competent
jurisdiction could order or grant, including, without limitation, the issuance
of an injunction. However, either party may, without inconsistency with this
arbitration provision, apply to any court having jurisdiction over such dispute
or controversy and seek interim provisional, injunctive or other equitable
relief until the arbitration award is rendered or the controversy is otherwise
resolved. Xxxxxxxx and the Consultant acknowledge that this Agreement evidences
a transaction involving interstate commerce.
10. Xxxxxxxx Policies. The Consultant will comply with and abide by
Xxxxxxxx' policies on alcohol and drug abuse and no smoking, each of which is
attached hereto as an exhibit hereto and incorporated herein by reference.
11. Miscellaneous. This Agreement may only be amended by a written
instrument signed by Xxxxxxxx and Consultant. Except as otherwise expressly
provided hereunder, this Agreement shall constitute the entire agreement between
Xxxxxxxx and Consultant with respect to the subject matter hereof. This
Agreement may be executed in counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
12. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed given when (i) delivered
personally or by overnight courier to the following address of the other party
hereto (or such other
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address for such party as shall be specified by notice given pursuant to this
Paragraph) or (ii) sent by facsimile to the following facsimile number of the
other party hereto (or such other facsimile number for such party as shall be
specified by notice given pursuant to this address of such party pursuant to
this Paragraph:
If to Xxxxxxxx, to:
The Xxxxxxxx Companies, Inc.
Attn: Senior Vice President, Human Resources
Xxx Xxxxxxx Xxxxxx
X. X. Xxx 0000
Xxxxx, Xxxxxxxx 00000
If to the Consultant, to:
Xxxxxxx X. xxx Xxxxx
0000 X. Xxxxx
Xxxxx, Xxxxxxxx 00000
13. Successor and Assigns. This Agreement shall be enforceable by the
Consultant and his heirs, executors, administrators and legal representatives,
and by Xxxxxxxx and its successors and assigns.
14. Survival. Paragraphs 3, 4 and 9 of this Agreement shall survive and
continue in full force and effect in accordance with their respective terms,
notwithstanding any termination of the Consulting Period.
15. Governing Law. This Agreement shall be governed by the laws of the
State of Oklahoma, without reference to the principles of conflicts of law.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day first written above.
THE XXXXXXXX COMPANIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Title: Senior Vice President
------------------------------
Witness: /s/ Xxxxxx X. XxxXxxx
------------------------------
/s/ Xxxxxxx X. xxx Xxxxx
------------------------------------
Xxxxxxx X. xxx Xxxxx
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EXHIBIT "B"
RELEASE
THIS RELEASE (this "Agreement") is entered into this ____ day of
January, 2003, by and between The Xxxxxxxx Companies, Inc. ("Xxxxxxxx") and
Xxxxxxx X. xxx Xxxxx ("Xx. xxx Xxxxx") and is effective seven days after the
execution hereof by Xx. xxx Xxxxx (hereinafter the "Effective Date").
WHEREAS, the parties entered into a Settlement and Retention Agreement
dated August 7, 2002 ("Settlement and Retention Agreement"); and
WHEREAS, such Settlement and Retention Agreement provided for the
execution of this Agreement on or after January 3, 2003.
NOW, THEREFORE, in consideration of the mutual promises made herein,
and for other good and valuable consideration, the parties hereby agree as
follows:
COVENANTS AND OBLIGATIONS OF XXXXXXXX
1. Xxxxxxxx Payments and Obligations. Xxxxxxxx shall pay to Xx. xxx
Xxxxx the payments required under Paragraph 2 of the Settlement and Retention
Agreement and apply such payments in accordance with such agreement. The Company
will also perform its obligations under the Settlement and Retention Agreement.
COVENANTS AND OBLIGATIONS OF XX. XXX XXXXX
1. Release. Except for the obligations specifically set forth in this
Agreement and the Settlement and Retention Agreement, including Paragraphs 7 and
9 thereof, Xx. xxx Xxxxx for himself, his attorneys, and his heirs, executors,
administrators, successors and assigns, does hereby fully, finally and forever
release and discharge Xxxxxxxx and its subsidiaries, affiliates, predecessors,
successors and assigns and their respective officers, directors, employees,
representatives, agents and fiduciaries, de facto or de jure ("Released
Parties") of and from any and all charges, claims, actions (in law or in
equity), suits, demands, losses, expenses, damages, debts, liabilities,
obligations, disputes, proceedings, or any other manner of liability (known or
unknown) including without limitation those arising from, in whole or in part,
the employment relationship between Xxxxxxxx and Xx. xxx Xxxxx or the
termination thereof which exist, or have heretofore accrued, fixed or
contingent, known or unknown, including without limitation any claims arising
under 42 U.S.C. Section 1981, 42 U.S.C. Section 1983, 42 U.S.C. Section 1985, 42
U.S.C. Section 1986, the Equal Pay Act, 29 U.S.C. Section 206(d), the National
Labor Relations Act, as amended, 29 U.S.C. Section 160, et seq., the Americans
With Disabilities Act, 42 U.S.C. Section 12101, et seq.,
the Employee Retirement Income Security Act of 1974, as amended, ("ERISA"), 29
U.S.C. Section 1001, et seq., the Age Discrimination in Employment Act, 29
U.S.C.Section 621, et seq., Title VII of the Civil Rights Act of 1964 as amended
by the Civil Rights Act of 1991, 42 U.S.C. Section 2000e, et seq., the Family
and Medical Leave Act, 29 U.S.C.Section 2601 et seq., and claims of wrongful
discharge, defamation, infliction of emotional distress, termination in
violation of public policy, retaliatory discharge, including those based on
workers' compensation retaliation under state statutes, discrimination on the
basis of handicap, or claims related to employee benefits or arising under any
federal or state statute or common law.
2. Xx. xxx Xxxxx'x Covenants. By signing this Agreement, Xx. xxx Xxxxx
covenants, agrees, represents and warrants that:
(a) He has not filed and will not in the future file any
lawsuits, complaints, petitions or accusatory pleadings against any of
the Released Parties in any court based upon, arising out of or in any
way related to any event or events occurring prior to the signing of
this Agreement, including, without limitation, his employment with any
of the Released Parties or the termination thereof;
(b) This Agreement specifically includes, without limitation,
all claims asserted by or on behalf of Xx. xxx Xxxxx against any of the
Released Parties, together with all claims which might have been
asserted by or on behalf of Xx. xxx Xxxxx in any suit, claim (known or
unknown), charge or grievance against any of the Released Parties for
or on account of any matter or things whatsoever up to and including
the effective date of this Agreement; and
(c) Xx. xxx Xxxxx waives all rights to recovery for any
damages or compensation awarded as a result of any suit or proceeding
by any third party or governmental agency on Xx. xxx Xxxxx'x behalf
related to claims released in Section 1 herein.
3. No Admission of Liability. Notwithstanding the provisions of this
Agreement and the payments to be made by Xxxxxxxx to Xx. xxx Xxxxx hereunder,
Xxxxxxxx does not admit any manner of liability to Xx. xxx Xxxxx but has entered
into this Agreement as a means of settling any and all disputes between Xxxxxxxx
and Xx. xxx Xxxxx.
4. Independent Advice. Xx. xxx Xxxxx has been encouraged to seek
independent legal and tax advice concerning the provisions of this Agreement in
general and, after such advice and consultation, Xx. xxx Xxxxx has freely and
knowingly entered into this Agreement. Xx. xxx Xxxxx acknowledges, understands
and affirms that:
(a) This Agreement is a binding legal document;
(b) Xx. xxx Xxxxx voluntarily signs and enters into this
Agreement without reservation after having given the matter full and
careful consideration;
(c) Xx. xxx Xxxxx acknowledges that he has been provided with
the opportunity of at least twenty-one (21) days in which to consider
this Agreement and that he has been advised to consult with an attorney
before signing this Agreement. If Xx. xxx Xxxxx elects to take less
than twenty-one (21) days to consider this Agreement, he does so
knowingly, willingly and on advice of counsel, with full understanding
that he is waiving a statutory right to take the full twenty-one (21)
days. Xx. xxx Xxxxx warrants that after careful review and study of
this Agreement, he understands that the terms set forth herein are
those actually agreed upon. Further, Xx. xxx Xxxxx acknowledges and
understands that he has seven (7) days from his execution of this
Agreement to revoke or rescind it, in writing, and that after the
expiration of such seven (7) day period this Agreement is effective and
enforceable and may not be revoked.
5. No Release of Vested Benefit. Xx. xxx Xxxxx does not, by this
Agreement, release or discharge any right to any vested, deferred benefit in any
qualified employee benefit plan which provides for retirement, pension, savings,
thrift and/or employee stock ownership, as such terms are used under ERISA,
maintained by any of the Released Parties which employed Xx. xxx Xxxxx.
Provided, Xx. xxx Xxxxx agrees that he is not entitled to any other severance
payment except as set forth in the Settlement and Retention Agreement.
GENERAL PROVISIONS
1. Binding Effect. This Agreement is binding upon and shall inure to
the benefit of the parties hereto and their respective successors, assigns,
personal representatives, officers, directors, agents, attorneys, parents,
subsidiaries and affiliates.
2. Waiver or Amendment. No waiver, alteration, or modification of any
of the provisions of this Agreement shall be binding unless in writing and
signed both by Xx. xxx Xxxxx and a duly authorized representative of Xxxxxxxx.
3. Entirety. This Agreement and the Settlement and Retention Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof. This Agreement and the Settlement and Retention Agreement
supersede any and all other negotiations, understandings or agreements, whether
oral or in writing between the parties with respect to the subject matter hereof
including, without limitation, any and all compensation or benefits payable to
Xx. xxx Xxxxx.
4. Miscellaneous. This Agreement and the rights and obligations
hereunder shall be construed in all respects in accordance with the internal
laws of the State of Oklahoma without reference to the conflict of laws
provisions thereof. Should any provision of this Agreement be found or declared
or determined by a court of competent jurisdiction to be invalid, the validity
of the remaining parts, terms or provisions shall not be affected thereby and
any such invalid part, term or provision shall be deemed not to be a part of
this Agreement. Any litigation concerning this Agreement or the facts or matters
described herein shall be brought only in a court of competent jurisdiction in
Tulsa County, Tulsa, Oklahoma.
5. Authorization. Each person signing this Agreement as a party or on
behalf of a party represents that he is duly authorized to sign this Agreement
and such party's behalf and is executing this Agreement voluntarily, knowingly
and without any duress or coercion.
XX. XXX XXXXX FURTHER STATES THAT HE HAS CAREFULLY READ THIS DOCUMENT
AND KNOWS AND UNDERSTANDS THE CONTENTS HEREOF AND THAT HE SIGNS THIS AGREEMENT
AS HIS OWN FREE ACT AND DEED. THE PROVISIONS OF THIS AGREEMENT SHALL BE
EFFECTIVE THE DATE ON WHICH XX. XXX XXXXX SIGNS THIS AGREEMENT.
WITNESS: THE XXXXXXXX COMPANIES, INC.
By:
------------------------ -----------------------------------
Title:
--------------------------------
Date signed:
--------------------------
--------------------------------------
XXXXXXX X. XXX XXXXX
Date signed:
--------------------------
ACKNOWLEDGMENT
I HEREBY ACKNOWLEDGE that _________________________, in accordance with
the Age Discrimination in Employment Act, as amended by the Older Workers
Benefit Protection Act of 1990, informed me in writing that:
(1) I should consult with an attorney before signing the
Release Agreement ("Release");
(2) I may review the Release for a period of up to twenty-one
(21) days following the Separation Date. If I choose to take less than
twenty-one (21) days to review the Release, I do so knowingly,
willingly and on advice of counsel;
(3) For a period of seven days following the signing of the
Release, I may revoke the Release, and that the Release will not become
effective or enforceable until the seven day revocation period has
elapsed which is the "Effective Date" set forth in the Release; and
(4) The sums described in Paragraph 2 of the Settlement and
Retention Agreement will not be paid to me until the seven day
revocation period has elapsed.
I HEREBY FURTHER ACKNOWLEDGE receipt of this Release Agreement on the
7th day of August, 2002.
WITNESS:
-----------------------------
-------------------------------
Xxxxxxx X. xxx Xxxxx
