EXHIBIT 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
This Agreement is made as of this 6th day of January, 2003, by and between
Apogent Technologies Inc., its subsidiaries, successors, and affiliated
companies, assigns, officers, directors, stockholders, agents, and executives
(hereinafter referred to as the "Company") and Xxxxxxx X. Xxxxxx, his executors,
heirs, administrators, and assigns (hereinafter referred to as "Executive").
In consideration of the mutual covenants contained herein, the parties
agree as follows:
1. Resignation. Executive and the Company acknowledge that Executive has
resigned from his employment and position with the Company effective January 6,
2003 (the "Termination Date") pursuant to the letter of resignation attached
hereto as Addendum A. Executive agrees to cooperate with the Company in the
orderly transition of his duties and responsibilities, provided that such
cooperation shall be in a manner reasonably acceptable to Executive.
2. Publicity and Background.
a. Addendum B attached hereto substantially sets forth the text of press
release that has been jointly prepared by the Company and Executive to be issued
on or about the date hereof.
b. The Company and Executive shall consult with each other and mutually
agree on other communications regarding Executive's resignation. The parties
recognize and agree that it is in each party's mutual best interest to amicably
coordinate and work together in this regard, particularly with respect to
communications with other Apogent employees, Apogent customers, lenders,
bankers, vendors and competitors, analysts, investors, rating agencies, and
service providers.
3. Severance Pay and Period.
a. Current Pay Period. On January 15, 2003, the Company shall pay to
Executive his pro rata salary for the period of January 1, 2003 to the
Termination Date as payment of all salary and benefits accrued and owing through
said date.
b. Bonus. Executive will receive a pro rata share of the bonus that he
would have otherwise earned for fiscal 2003 under the Senior Executive
Compensation Plan, which shall be determined under the Company's usual
procedures after the close of the fiscal year (i.e., 98/365 x $321,300 x bonus
target (44%) x company success factor), payable during December 2003 at the same
time that other Plan participants are paid. The pro rata share shall be based on
the number of days Executive was employed by the Company in fiscal 2003.
c. Monthly Payments. The Company shall for a period of twenty-four months,
on the 15th day of each month commencing January 15, 2003, pay to Executive the
sum of $26,775 per month ($642,600 in total). The first twelve months of said
payments shall be in full satisfaction of any salary continuation or severance
obligation under Executive's Employment Agreement or otherwise.
d. Annual Payments. The Company shall pay Executive $191,215 on February
15, 2003, and $191,215 on February 15, 2004. Payment of the amounts in Section
3b and 3d shall be in full satisfaction of any bonus or severance obligation
under Executive's Employment Agreement or otherwise.
4. Insurance and Other Benefits
a. Medical and Dental Insurance. The Company shall continue Executive's
medical and dental benefits on the same basis as active employees for the
twenty-four month period following the Termination Date; provided, however, that
the Company's obligation to continue Executive's health benefits will cease upon
Executive becoming eligible for health insurance coverage from a new employer.
Executive agrees that no additional COBRA period shall be available after the
expiration of the first eighteen months of this benefit.
b. Other Insurance. Other insurance coverage (e.g., life, disability,
accident, etc.) shall cease as of the Termination Date, subject to any
conversion rights contained in said policies.
c. Retirement Plans. Executive shall be entitled to his vested benefit in
the Company's 401(k) plan as determined by the plan provisions. Service credit
under the Company's 401(k) plan as well as its defined benefit pension plan will
cease as of the Termination Date.
d. Auto Allowance. The Company shall pay to Executive $2,100 per month for
a period of twenty-four months in lieu of any auto allowance, auto expense
reimbursements, etc.
e. Outplacement and Other Fees. The Company shall arrange outplacement
services through Xxxxx Xxxx (Exeter, New Hampshire) for a period of six months
commencing on the Termination Date, and shall contribute towards Executive's
legal fees incurred in the review of this agreement; provided, however, that the
Company's aggregate contribution for said outplacement services and fees shall
be capped at $15,000.
f. Stock Options. Executive's employee stock options granted on or before
December 31, 1997 shall continue to be governed by the terms of the applicable
stock option agreements (e.g., those options for 4,706 shares will be
exercisable for only ninety days after the Termination Date). Executive's stock
options granted on or after January 1, 1998 (424,168 shares) shall be amended to
provide for immediate vesting and may be exercised for a period of five years
commencing on the Termination Date. A report of Executive's employee stock
options is set forth on Addendum C hereto.
g. Cessation of Benefits. Unless otherwise provided for expressly in this
Agreement, all other benefits will cease as of the Termination Date, including,
without limitation, the accrual of vacation time.
h. Accrued Vacation. Executive acknowledges and agrees that he has no
accrued and unused vacation.
5. Return of Property. Executive immediately shall return all papers,
files, documents, computers, reference guides, equipment, keys, identification,
credit cards, software, computer
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access codes, disks and institutional manuals, and any other property belonging
to the Company on or before the Termination Date; provided, however, that
Executive may retain the personal computer and notebook computer located at
Executive's home. Executive shall not retain any copies, duplicates,
reproductions or excerpts thereof, whether hardcopy or electronic versions.
6.Reference. The letter of reference given by the Company to prospective
employers of Executive shall be in substantially the form attached hereto as
Addendum F.
7. Nondisclosure of Confidential Information; Non-compete. Executive
acknowledges that during the course of his employment with the Company he has
become acquainted with and/or developed confidential information belonging to
the Company and its customers. Executive agrees not to use to his own advantage
or to disclose to any person or entity any confidential information of the
Company or of any past or present customer of the Company, including but not
limited to financial data or projections, customer lists, projects, economic
information, systems, plans, methods, procedures, operations, techniques,
know-how, trade secrets or merchandising or marketing strategies. In addition,
Executive shall continue to be bound by the provision of his employment contract
that he signed on or about December 7, 2001 (the "Employment Agreement"),
relating to inventions, intellectual property, proprietary and confidential
information, non-solicitation and non-competition obligations; provided,
however, that the length of the non-competition period shall extend to
twenty-four months commencing the Termination Date as opposed to twelve months.
The Employment Agreement is attached hereto and incorporated by reference as
Addendum D.
8. General Release. In consideration of the severance payments and other
benefits set forth in this Agreement, Executive for himself and his executors,
heirs, administrators, assigns, and anyone else claiming by, through or under
him, irrevocably and unconditionally, releases, and forever discharges the
Company from, and with respect to, any and all debts, demands, actions, causes
of action, suits, covenants, contracts, wages, bonuses, damages and any and all
claims, demands, liabilities, and expenses (including attorneys' fees and costs)
whatsoever of any name or nature both in law and in equity ("Claim") which he
now has, ever had or may in the future have by reason of any matter, cause or
thing which has happened, developed or occurred before the signing of this
Agreement, including, without limitation, any and all suits in tort or contract,
and any Claims or suits relating to salary, wages, bonuses and commissions, the
breach of an oral or written contract, misrepresentation, defamation, and
interference with prospective economic advantage, interference with contract,
intentional and negligent infliction of emotional distress, negligence, breach
of the covenant of good faith and fair dealing, and Claims arising out of, based
on, or connected with his employment by the Company and the termination of that
employment as set forth in this Agreement, including any causes of action or
Claims for unlawful employment discrimination of any kind, arising under or
based on Title VII of the Civil Rights Act of 1964, as amended; the Age
Discrimination in Employment Act, as amended; the Equal Pay Act of 1963; the
Xxxxxxxx-Xxxxx Act of 2002; the New Hampshire Law Against Discrimination R.S.A.
354-A and any other state or federal equal employment opportunity or
anti-discrimination law, policy, order or regulation affecting or relating to
Claims or rights of Executive, which Executive ever had, now has, or claims to
have against the Company. Subject to the provisions of Section 12, Executive
further agrees not to institute any charge, complaint, or lawsuit to challenge
the validity of this Agreement or the circumstances surrounding its execution.
Executive waives any right or claim to reinstatement or re-employment by the
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Company. In consideration of the benefits to it provided in this Agreement, the
Company, for itself and for anyone claiming through it, hereby releases
Executive of and from any and all Claims the Company ever had, now has, or
claims to have against Executive, whether currently known or unknown, which
arise out of any action, omission or event occurring up to the time of this
Agreement. Nothing in this Agreement shall preclude any action by the Executive
or the Company to enforce their respective rights under this Agreement nor shall
anything in this Agreement affect the Company's obligations under the
Indemnification Agreement incorporated herein.
9. Nonadmissions Clause. It is understood and agreed that this Agreement
does not constitute any admission by the Company that any action taken with
respect to Executive was unlawful or wrongful, or that such action constituted a
breach of contract or violated any federal or state law, policy, rule or
regulation.
10. Nondisclosure of this Agreement. Until this Agreement is filed with the
Securities and Exchange Commission by the Company, Executive expressly agrees,
and hereby instructs his attorney, accountant, or tax advisor and immediate
family, if any, that the terms of this Agreement are confidential, and expressly
agrees not to discuss or disclose them, without the prior written consent of the
Company, to any person, except to the Internal Revenue Service, state tax
authorities, his accountant or tax advisor, his attorneys, his immediate family,
his healthcare provider, or as required by law.
11. Nondisparagement. Executive agrees that he will not disparage or make
negative statements about the Company or any of its officers, directors, agents,
executives, successors and assigns, programs or products. The Company agrees
that it will not, and will instruct its executive officers and representatives
not to, disparage or make negative statements about Executive. Nothing herein
shall be deemed to prohibit any party from making truthful statements that are
required to be made pursuant to a legal proceeding.
12. Breach. In the event that Executive institutes legal proceedings to
enforce this Agreement, he agrees that the sole remedy available to him shall be
enforcement of the terms of this Agreement and/or a claim for damages resulting
from the breach of this Agreement, but that under no circumstances shall he be
entitled to receive or collect any damages for claims that he has released under
this Agreement in accordance with the General Release contained in Section 8 of
this Agreement.
13. Taxes. The Company shall make the normal and required withholding
deductions from each of the payments described above. The Company makes no
representations as to the employment tax or income tax consequences (including
related penalties and interest) to Executive of the above payments, and it is
further understood that any future employment and income tax consequences
(including related penalties and interest) that may arise to Executive will not
provide a basis to set aside or in any way alter this Agreement. Executive shall
be solely responsible for the proper and full payment of any amounts owed by
Executive to any taxing authorities or agencies as a result of any payments made
pursuant to this Agreement.
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14. No Amounts Due. Executive acknowledges that other than reimbursement
for some travel, lodging, and other normal business expenses recently incurred
in accordance with Company policies and practices, there are no sums due and
owing him from the Company.
15. Representations. Executive acknowledges that in exchange for entering
into this Agreement he has received good and valuable consideration in excess of
that to which he would otherwise have been entitled in the absence of this
Agreement. This consideration includes, but is not limited to, the severance
payments and other benefits as described in Sections 3 and 4. Executive further
acknowledges the sufficiency of that consideration.
16. Time To Consider Agreement. Executive acknowledges that he has been
advised in writing to consult with an attorney and has had ample opportunity to
consult with and review this Agreement with an attorney of his choice and has
been given a period of at least twenty-one (21) days within which to consider
whether to sign this Agreement. Executive may sign this Agreement prior to the
end of this twenty-one (21) day period.
17. Revocation. It is agreed and understood that for a period of seven (7)
days following the execution of this Agreement, which period shall end at 5:00
p.m. on the seventh day following the date of execution, Executive may revoke
this Agreement. This Agreement will not become effective or enforceable until
this revocation period has expired.
18. Severability. If any of the terms of this Agreement shall be held to be
invalid and unenforceable, the remaining terms of this Agreement are severable
and shall not be affected thereby.
19. Indemnification. The Company hereby acknowledges its Indemnification
obligations to Executive pursuant to the Indemnification Agreement between the
Company and Executive dated October 1, 2001 and hereby agrees and affirms that
said agreement shall continue to apply to Executive for all matters relating to
his tenure as a director and/or executive officer of the Company and its
subsidiaries, successors, and affiliated companies. Said agreement is hereby
incorporated by reference into this Agreement, and a copy of said agreement is
attached hereto as Addendum E.
20. Entire Agreement. This Agreement and its Exhibits constitutes the
entire agreement between the parties about or relating to Executive's
termination of employment from the Company, or the Company's obligations to him
with respect to his termination and fully supersedes any and all prior
agreements or understanding between the parties except for the obligations with
respect to indemnification, inventions, intellectual property, proprietary
information, non-solicitation, and non-competition obligations, which remains in
full force and effect. The terms of this Agreement are contractual in nature and
not a mere recital, and they shall take effect as a sealed document. This
Agreement shall be governed by the law of New Hampshire, and may not be changed
orally, but only by agreement in writing signed by both parties. The parties
acknowledge that no other representations were made regarding this Agreement
other than those contained herein.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when executed and delivered constitutes an original
of this Agreement, but all the
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Counterparts shall together constitute one and the same agreement. No
counterpart shall be effective until each party has executed at least one
counterpart.
22. Successors and Assigns. The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had taken
place. Failure of the Company to obtain such assumption and agreement prior to
the effectiveness of any such succession shall be a breach of this Agreement.
Furthermore, this Agreement shall inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors, administrators,
successors, heirs, devisees and legatees. If Executive should die while any
amount would still be payable to him hereunder if Executive had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Executive's spouse or, if there
is no spouse, to Executive's estate.
23. Arbitration. Any dispute arising out of this Agreement shall be
resolved by the American Arbitration Association in accordance with their
established rules, practices and procedures. The arbitration process shall take
place in Portsmouth, New Hampshire. The Company shall pay the arbitration fee.
Each party shall be permitted legal representation (at their own cost).
APOGENT TECHNOLOGIES INC.
By: /s/ XXXXXXX X. XXXXXXX /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxx
Title: Executive Vice President -
General Counsel and Secretary
January 6, 2003 1/6/03
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Date Date
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