EXHIBIT 10(w)
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release ("Agreement") is entered into by
and between Xxxxxxx Xxxxxx ("Executive") and Xxxxx Realty Investors, Inc., a
Michigan corporation ("Company").
The Executive and the Company are parties to a certain Employment
Agreement dated August 10, 2000 ("Employment Agreement"). This Agreement shall
supercede the Employment Agreement in all respects.
Executive hereby irrevocably resigns as an employee and president of
the Company and effective August 9, 2002 ("Separation Date"). Further, Executive
resigns as trustee of the Company's 401(k) trust fund effective on the date he
signs this Agreement. Executive shall remain on a leave of absence from January
31, 2002 through August 9, 2002 "Leave of Absence"). While on the Leave of
Absence, from time to time, the Company may seek information from the Executive,
but Executive is not expected to perform day-to-day or management duties on
behalf of the Company. During the Leave of Absence, the Executive shall have no
authority to represent the Company or bind the Company to any obligations.
Executive shall not accrue any benefits such as vacation or sick pay during the
Leave of Absence and shall receive only the benefits expressly set forth in the
following paragraph.
In consideration of Executive's agreement to enter into this Agreement,
Company agrees to the following:
1. The Company shall continue Executive's current annualized salary of
$180,000 from the January 31, 2002 through August 9, 2002 ("Salary
Continuation"). The Salary Continuation shall paid in accordance with
the Company's regular payroll practices.
2. Immediately following August 10, 2002, the Company shall pay
Executive a lump sum payment in the amount of Fifteen Thousand Dollars
($15,000) ("Separation Pay").
3. The Company shall pay Executive the sum of Fifty-Four Thousand
Dollars ($54,000) ("Additional Pay") in a lump sum as soon as
administratively feasible following the expiration of the Revocation
Period as defined below. The Additional Pay shall be in lieu of any
bonus pursuant to the Employment Agreement.
4. The Company will continue to contribute to Executive's 401(k)
account through August 9, 2002 ("Retirement Benefit).
5. The Company will maintain Executive on its group health insurance
policy through August 9, 2002 ("Insurance Benefit") and will pay the
corresponding premiums in accordance with its regular practices.
The Salary Continuation, Separation Pay, Additional Pay, Retirement Benefit and
Insurance Benefit are cumulatively referred to as "Separation Benefits". The
Salary Continuation, Separation Pay and Additional Pay shall be subject to
withholding required by law.
Executive acknowledges that Company has paid to Executive all wages and
benefits, such as vacation pay, that Executive earned prior to the date
Executive signs this Agreement and that the Separation Benefits is a compromise
of disputed claims and is not owed to Executive pursuant to contract, whether
express or implied.
In consideration of Company's promise to pay the Separation Benefits,
Executive releases Company, as well as its subsidiaries and affiliates, and its
and their respective directors, officers, agents, representatives, employees,
successors and assigns from all claims existing as of the date Executive signs
this Agreement arising from or relating to Executive's employment or the
termination of his/her employment and any claims which arise under the common
law of contract, implied contract, tort, public policy, or statute, such as
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment
Act, Section 1981 of the Civil Rights Act of 1866, the Equal Pay Act of 1963,
the Executive Retirement Income Security Act of 1974, the Rehabilitation Act of
1973, the Americans With Disabilities Act of 1990, the Family and Medical Leave
Act of 1993, the Michigan Civil Rights Act, the Michigan Equal Pay Law, the
Michigan Bias Against Persons with Disabilities Law, and amendments to these
acts, any other state equal employment opportunity or age discrimination law,
wage payment law, or any other federal or state law, statute, decision, order,
policy or regulation establishing or relating to claims or rights of employees,
including, but not limited to, any and all claims alleging interference with the
attainment of any rights under any insurance, pension, profit sharing or other
employee benefit plan, and any and all claims in tort or contract, based upon
public policy, and any and all claims alleging breach of an express or implied,
or oral or written, contract, policy manual or employee handbook or alleging
misrepresentation, defamation, interference with contract, intentional or
negligent infliction of emotional distress, negligence, or wrongful discharge.
Nothing in this Agreement shall waive Executive's claims for benefits under any
applicable pension or retirement plan.
Employee shall not, directly or indirectly, disclose confidential
information of the Company and of its subsidiaries and affiliates, and shall
hold such confidential information in strict confidence and refrain from
disclosing confidential information to others. Confidential information shall be
deemed to include, but shall not be limited to, the terms of this Agreement
(which may be disclosed only to Employee's attorney and financial advisor), as
well as any and all information relating to sales; any and all customer lists;
any and all pricing information; any and all statistical information and related
financial data including but not limited to, profit and loss statements, balance
sheets, and production data; any and all annual strategic plans; any and all
business development plans; any and all marketing plans; and any and all
personnel information, including but not limited to payroll and performance
reviews specific to any employee.
Employee shall not disparage the Company or any of its affiliates,
directors, officers or employees in any manner whatsoever. For as long as they
are employed by the Company, neither Xxxx Xxxxx, Xxxxxxx Xxxxxxxxx, nor Xxxx
Xxxxxx shall not disparage Executive. For the purpose of this paragraph, failure
or refusal to respond to a question or comment regarding Executive shall not be
deemed a disparagement. In any event, Executive, Xxxxx, Xxxxxxxxx and Xxxxxx may
respond truthfully to any government inquiry or in the course of a deposition or
other discovery without violating their obligation under this paragraph.
In the event that Employee violates the covenants contained in this
Agreement, the Company will be excused from paying or providing Executive with
any unpaid Separation Benefits and upon demand, and in addition to any relief
available to the Company at law or in equity, Employee agrees to return to the
Company all Separation Benefits paid to Employee. In the event that any of the
Company Representatives violate the covenant not to disparage Executive, the
Company shall pay Executive the sum of $15,000 as liquidated damages.
By entering into this Agreement, neither Executive nor Company admits
liability, wrongdoing or violating any law.
The Company has delivered this Agreement to Executive on January 28th,
2002. Employee and the Company acknowledge that the Company offered Executive
twenty-one (21) days within which to deliberate the terms of this Agreement.
Executive acknowledges that the Company advised Executive in writing to consult
with legal counsel prior to executing this Agreement. If Executive executes this
Agreement, he may revoke his release of claims that arise under the Age
Discrimination in Employment Act ("ADEA") portion of the release set forth above
within a period of seven (7) calendar days following the date on which he
executes this Agreement ("Revocation Period"). Such revocation by Executive
shall be communicated in writing to Xxxx Xxxxx, 00000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxx 00000 and must be received by Xx. Xxxxx before the
Revocation Period expires. If Executive exercises his right of revocation within
the Revocation Period, this Agreement shall have full force and effect as to all
of its terms except the release of claims under the ADEA, and the Company will
have three (3) business days within which to rescind the entire Agreement in
writing if it elects to do so. Such election by the Company shall be
communicated in writing to Executive. If Executive does not exercise his right
to revoke prior to the expiration of the Revocation Period, this Agreement shall
become effective and enforceable immediately following the expiration of the
Revocation Period.
XXXXX REALTY INVESTORS, INC.
Dated: 2/03/02 By: /s/Xxxxxxx X. Xxxxx
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Dated: 1/30/02 /s/Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
