EXHIBIT 99.02
EXECUTION COPY
Separation Agreement and General Release of Claims
This Agreement, entered into as of April 9, 2003, by and among Xxxxx
Xxxxxxx (hereinafter, the "Director"), Xxxxx Xxxxxxx & Co., P.C. ("DMC") and Del
Global Technologies Corp., a New York corporation (hereinafter, the "Company").
W I T N E S S E T H
WHEREAS, the Director has served as a director of the Company since 1985;
WHEREAS, the Director, acting on behalf of DMC, provided tax consulting
services to the Company between January 1996 and December 2001;
WHEREAS, the Company pays the Director $25,000 per year for serving as a
director of the Company (the "Director Fees");
WHEREAS, as of the date hereof, the Company has granted to the Director
those non-qualified stock options, at such respective per share exercise prices,
set forth on Schedule A (the "Xxxxxxx Options");
WHEREAS, the Company and the Director entered into an Indemnification
Agreement in January 2003 (the "Indemnification Agreement");
WHEREAS, the Director intends to retire from the Board of Directors of the
Company immediately upon execution of this Agreement by him, DMC and the
Company, following approval of the Agreement by the Board of Directors at a
Special Board Meeting to occur on April 9, 2003; and
WHEREAS, it is the desire of the Company and the Director to enter into
this Agreement to acknowledge and accept the retirement of the Director from his
position as a director of the Company and to resolve all matters arising out of
or related to the Director's position with the Company and the termination
thereof.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises contained herein, the parties agree as follows:
1. Departure from the Company. The Director's relationship with the Company
shall terminate immediately upon his and the Company's execution of this
Agreement, following approval of the Agreement by the Board of Directors at a
Special Board Meeting to occur on April 9, 2003 (the "Separation Date"). As of
such date, the Director will relinquish all titles and authorities to which he
has been designated by the Company. The Director shall immediately return any
Company property in his possession.
2. Directors Fees. The Company generally pays Director Fees in arrears. The
Company has paid the Director his Director Fees through March 31, 2003. In
addition, the Company agrees to pay a pro-rated portion of the Director Fees
from March 31, 2003 through the Separation Date.
3. Stock Options. On the date hereof, the Compensation Committee shall have
determined that Section 2(c), or Section 2, as the case may be, of each of the
agreements granting the Xxxxxxx Options (the "Xxxxxxx Option Agreements"), shall
be hereby modified and amended to provide that 100% of the Xxxxxxx Options be
fully exercisable and vested as of the date hereof, and this Agreement, upon
execution by the Company shall constitute and evidence such modifications and
amendments. All of the other terms and conditions of the Xxxxxxx Option
Agreements shall remain in full force and effect. Accordingly, the Director
shall have the right to exercise any or all of the Xxxxxxx Options granted by
the Company and listed on Schedule A hereto any time within their respective
terms and with respect to the 1987 Grant and the 1985 Grant (as defined in
Schedule A), such options shall be exercisable within their respective terms or
within five (5) years from the date hereof, whichever is longer. The Company
hereby agrees and warrants that the Compensation Committee has the authority to
amend and modify the Xxxxxxx Option Agreements as set forth in this Paragraph 3
and that these amendments and modifications have been approved by the
Compensation Committee and Board of Directors.
4. Publicity. Upon the Director's retirement from the Board of Directors of
the Company, the Company will file a Current Report on Form 8-K and/or a press
release announcing the terms of such retirement. Except as set forth in the
immediately preceding sentence, neither the Director, nor DMC nor the Company
shall issue any press release or make any public announcement or disclosure
relating to the subject matter of this Agreement without the prior written
consent of the other parties, which shall not be unreasonably withheld or
delayed; provided, however, that any party may make any public disclosure it or
he believes in good faith is required by applicable law or any listing or
trading agreement concerning its publicly traded securities (in which case the
disclosing party will use its reasonable efforts to advise and obtain the
consent of the other party prior to making the disclosure) and provided further,
that if (a) any such public disclosure is made the other parties may make, or
(b) a party is involved in any proceeding it may make, such public disclosure
(in the form of press releases, announcements, filings in such proceeding or
otherwise) as it or he deems appropriate under the circumstances.
5. Amendment to Indemnification Agreement. Section 2(a) of the
Indemnification Agreement is hereby amended so as to include at the end thereof
the following sentence:
"Notwithstanding the foregoing, the indemnification provided to the
Indemnified Person hereunder shall expressly pertain to any
investigation and/or legal action or administrative proceeding against
the Indemnified Person arising out of the fraud perpetrated by Xxxxxxx
Xxxxxxx and/or certain of the Company's former senior officers,
irrespective of the basis of any claims that might be asserted against
the Indemnified Person; provided, however, that the Company reserves
the right to challenge any indemnification made hereunder."
This Agreement, upon execution by the Company and the Director, shall
constitute and evidence such amendment. All of the other terms and conditions of
the Indemnification Agreement shall remain in full force and effect.
6. Mutual Releases, Etc.
(a) By Director and DMC: In consideration of the payments and any
other benefits provided by the Company herein, the Director and DMC, for
themselves, their successors and their assigns, hereby release and discharge the
Company and all agents, attorneys, employees, directors, officers of the Company
and all of their predecessors and successors, from any and all claims, causes of
action and demands of any kind related to the Director's or DMC's
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relationship with the Company, including, without limitation, the Director's
role as a director and a consultant, and DMC's role as a consultant, or the
termination of such relationships, whether known or unknown, which the Director
or DMC has, ever had, or ever in the future may have and which are based on acts
or omissions occurring up to and including the date hereof. Included within the
release set forth in the preceding sentence, without limiting its scope, are
claims arising under Title VII of the Civil Rights Act of l964, as amended and
the Age Discrimination in Employment Act of 1967, as amended (the "ADEA"), as
well as any other federal, state or local civil rights or labor laws, and/or
contract or tort laws, and which are related to the Director's or DMC's
relationship with the Company or the termination of such relationship. This
release does not waive claims that may arise after the date of this Agreement is
executed and which are based on acts or omissions occurring after the date this
Agreement is executed. The Director and DMC further covenant that they will not
seek recovery in any legal proceeding against the Company for any claim covered
by the above release and that they will be liable for any costs and expenses
incurred by the Company (including attorneys' fees) in defending any such legal
proceeding. This release shall not affect the obligations of the Company set
forth in this Agreement or the Indemnification Agreement.
(b) By Company: In consideration of any benefits provided by the
Director and DMC herein, the Company and all agents, attorneys, employees,
directors, officers of the Company and all of their predecessors, successors and
assigns hereby release and discharge, from any and all claims, causes of action
and demands of any kind related to the Director's or DMC's relationship with the
Company, including, without limitation, the Director's role as a director and a
consultant, and DMC's role as a consultant, or the termination of such
relationships, whether known or unknown, which the Company has, ever had, or
ever in the future may have and which are based on acts or omissions occurring
up to and including the date hereof. This release does not waive claims that may
arise after the date this Agreement is executed and which are based on acts or
omissions occurring after the date this Agreement is executed. The Company
further covenants that it will not seek recovery in any legal proceeding against
the Director or DMC for any claim covered by the above release and that it will
be liable for any costs and expenses incurred by the Director or DMC (including
attorneys' fees) in defending any such legal proceeding. This release shall not
affect the obligations of the Director or DMC set forth in this Agreement or the
Indemnification Agreement.
7. Transfer of Shares. The Company agrees that it will direct the transfer
agent to remove any restrictive legends from certificates representing shares of
common stock of the Company and to reissue to the Director new certificates
without such restrictive legends , all in a manner consistent with applicable
securities laws;
8. Amendment. No amendments or modifications of this Agreement or any of
its provisions shall be binding unless made in writing and signed by the Company
and the Director.
9. Descriptive Headings. The headings in this Agreement are for convenience
of reference only and shall not be considered as part of this Agreement nor
limit or otherwise affect the meaning thereof.
10. Entire Agreement. This Agreement constitutes the entire understanding
of the parties thereto relating to the termination of the Director's and DMC's
relationship with the Company and supersedes all previous agreements, promises,
proposals, representations, understandings and negotiations whether written or
oral, by and among the Company, DMC and the Director concerning the termination
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of DMC's and the Director's relationship with the Company.
11. Notices. All notices, requests, demands and other communications
hereunder must be in writing and shall be deemed to have been duly given if
personally delivered against written receipt or if mailed by prepaid first
class, registered or certified mail, return receipt requested, and addressed as
follows:
(a) If to the Company:
Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Chief Executive Officer
(b) If to the Director:
Xxxxx Xxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
(c) If to Xxxxx Xxxxxxx & Co., P.C.:
Xxxxx Xxxxxxx & Co., P.C.
Seven Xxxx Xxxxx
Xxx Xxxx, XX 00000
Any party, by notice to the other, may change the name and address to which
notices, requests, demands and other communication shall be delivered or mailed.
12. Severability. In the event any one or more of the provisions of this
Agreement (or any part hereof) shall for any reason be held to be invalid,
illegal or unenforceable, the remaining provisions of this Agreement (or part
hereof) shall be unimpaired, and the invalid, illegal or unenforceable provision
(or part hereof) shall be replaced by a provision (or a part thereof), which,
being valid, legal and enforceable, comes closest to the intention of the
parties underlying the invalid, illegal or unenforceable provisions. However, in
the event that any such provision of this Agreement (or part thereof ) is
adjudged by a court of competent jurisdiction to be invalid, illegal or
unenforceable, but that the other provisions (or part thereof) are adjudged to
be valid, legal and enforceable if such invalid, illegal or unenforceable
provision (or part thereof) were deleted or modified, then this Agreement shall
apply with only such deletions or modifications, or both, as the case may be, as
are necessary to permit the remaining separate provisions (or part thereof) to
be valid, legal or enforceable.
13. Counterparts. This Agreement may be executed in any number of
counterparts, all of which shall be deemed to constitute one and the same
instrument.
14. Applicable Law. This Agreement shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
15. Other Matters. No dispute of any nature regarding the compliance by a
party with any term of this Agreement shall permit the other party to refuse to
comply or delay in complying with any other term of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
DEL GLOBAL TECHNOLOGIES CORP.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Chief Executive Officer and
President
XXXXX XXXXXXX & CO., P.C.
/s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: President
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, individually
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Schedule A
.. Non-qualified stock option to purchase 45,000 shares of common stock of the
Company, at an exercise price of $1.00 per share, pursuant to that certain
Stock Option Agreement, dated April 23, 2001, between the Company and the
Director, upon such vesting terms and further conditions set forth therein.
.. Non-qualified stock option to purchase up to 5,000 shares of common stock
of the Company, at an exercise price of $9.125 per share, pursuant to that
certain Stock Option Agreement, dated July 31, 2000, between the Company
and the Director, upon such vesting terms and further conditions set forth
therein;
.. Non-qualified stock option to purchase up to 2,500 shares of common stock
of the Company, at an exercise price of $7.50 per share, pursuant to that
certain Stock Option Agreement, dated October 22, 1999, between the Company
and the Director, upon such vesting terms and further conditions set forth
therein;
.. Non-qualified stock option to purchase up to 2,500 shares of common stock
of the Company, at an exercise price of $7.00 per share, pursuant to that
certain Stock Option Agreement, dated October 9, 1998, between the Company
and the Director, upon such vesting terms and further conditions set forth
therein;
.. Non-qualified stock option to purchase 21,350 shares of common stock of the
Company, at an exercise price of $4.48 per share, pursuant to that certain
Stock Option Agreement, dated August 19, 1991, between the Company and the
Director, upon such vesting terms and further conditions set forth therein.
.. Non-qualified stock option to purchase 19,010 shares of common stock of the
Company, at an exercise price of $2.05 per share, pursuant to that certain
Stock Option Agreement, dated December 18, 1987, between the Company and
the Director, upon such vesting terms and further conditions set forth
therein (the "1987 Grant").
.. Non-qualified stock option to purchase 81,870 shares of common stock of the
Company, at an exercise price of $1.36 per share, pursuant to that certain
Stock Option Agreement, dated December 27, 1985, between the Company and
the Director, upon such vesting terms and further conditions set forth
therein (the "1985 Grant").
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