SEPARATION AND RELEASE AGREEMENT
This
Separation and Release Agreement ("Agreement") is entered into by and between
HURCO COMPANIES, INC. (the "Company"), and XXXXX X. XXXXXX
("Xxxxxx”).
Recitals
X. Xxxxxx
has been employed with the Company since July 1, 1988. Fabris and the
Company are parties to that certain letter agreement dated November 18, 1997
(the "Letter"). The Company and Fabris have agreed that Fabris'
employment with the Company will terminate effective October 31,
2009.
B. In
recognition of Fabris’ loyal service to the Company and in consideration of
Fabris’ release and waiver of any and all claims he may have against the Company
Released Parties (as defined in Section 4 below) and his compliance with the
other covenants of this Agreement, the Company is willing to provide certain
special severance benefits to Fabris in accordance with the terms of this
Agreement. In exchange for certain special severance benefits as
described in this Agreement, Fabris is willing to waive, and to release the
Company Released Parties from, any and all rights or claims that he may have,
and to abide by the covenants and provisions contained in this
Agreement.
X. Xxxxxx is
a “specified employee” within the meaning of Section 409A(a)(2)(B) of the
Internal Revenue Code of 1986, as amended (“Code”), such that any deferred
compensation, within the meaning of Code section 409A, that is payable to Fabris
on account of his separation from service with the Company is subject to the
six-month delay requirement of Code Section 409A(a)(2)(B). Accordingly,
the parties have designed the terms of the special severance benefits payable
under Section 2 of this Agreement such that any amounts payable under that
Section during the 6-month period after Fabris’ separation from service fall
within the exemption from Code Section 409A under Treasury Regulation
§1.409A-1(b)(9) for a separation pay plan providing benefits in the event of an
involuntary separation and not in excess of specified dollar and time
limits. As such, the amounts payable under Section 2 during the 6-month
period following Fabris’ separation from service were designed not to exceed,
and shall not exceed, the dollar limits specified in Treasury Regulation
§1.409A-1(b)(9). Any payments under this Agreement that are not so exempt
from Code Section 409A are, under the terms of this Agreement, payable on a date
that is more than 6 months after Fabris’ separation from service
date.
Agreement
In
consideration of the covenants and promises hereby provided, the actions taken
pursuant thereto, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and Fabris agree as
follows:
1. Separation of
Employment. The Company and Fabris agree that Fabris’
employment with the Company will terminate effective October 31, 2009 (the
"Separation Date"). Fabris hereby resigns, effective as of the
Separation Date, from his positions of President/Chief Operating Officer of the
Company and from any and all other positions he may hold with Company or any of
its subsidiaries or other affiliates. The Company will pay Fabris his
earned but unpaid salary through the Separation Date and any accrued but unused
vacation as of the Separation Date (such earned salary and accrued but unused
vacation being collectively referred to as the “Final Wages”). The
Company and Fabris acknowledge that his accrued but unused vacation as of
September 24, 2009, totals twenty-five (25) days. The Company will
pay Fabris the Final Wages on or before the Company’s first customary payroll
date after the Separation Date. Fabris acknowledges that, except for
the Final Wages, the Company has paid Fabris all salary, wages and other
compensation to which Fabris is entitled in connection with Fabris’s employment
with the Company and that, except as provided in this Agreement, Fabris is not
entitled to any additional compensation, including, without limitation, salary,
wages, vacation or bonuses, from the Company. Fabris will be entitled
to continue to participate in the Company’s employee benefit plans through the
Separation Date. The Company’s obligation to pay Fabris the Final
Wages is not contingent on Fabris’s execution of this Agreement, and the Company
will pay Fabris the Final Wages regardless of whether Fabris enters into this
Agreement.
2. Special Severance
Benefits. Contingent on this Agreement becoming effective, the
Company agrees to provide Fabris with the following severance benefits, which
Fabris would not otherwise be entitled to receive:
x. Xxxxxxxxx
Compensation. The Company will pay
Fabris severance compensation in the total gross sum of Four Hundred Fifty-Two
Thousand Two Hundred Fifty Dollars ($452,250.00) (the "Severance Compensation"),
which sum is equal to eighteen (18) months of Fabris' current salary, provided
Fabris complies with his non-disclosure and restrictive covenant obligations set
forth in Sections 6 and 7 of this Agreement. The Company will pay
such Severance Compensation in thirty-nine (39) bi-weekly installments of Eleven
Thousand Five Hundred Ninety-Six and 15/100 Dollars ($11,596.15) each, less all
applicable payroll tax withholdings, on the Company's customary payroll dates
during the 18-month period following the Separation Date, with the first such
bi-weekly installment commencing on the Company’s first customary payroll date
after the Separation Date. If Fabris materially breaches any
non-disclosure or restrictive covenant provisions set forth in Sections 6
or 7 of this Agreement, then in such event Fabris will have forfeited his right
to receive, and the Company will have no obligation to pay, any unpaid portion
of the Severance Compensation. The Company and Fabris acknowledge and
agree that such forfeiture is in addition to, and not in lieu of, any and all
other legal and/or equitable remedies that may be available to the Company in
connection with Fabris’s material breach of any non-disclosure or restrictive
covenant provision set forth in Sections 6 or 7 of this
Agreement.
b. Special
Payment. The Company will pay Fabris a special one-time
payment of Fifty-Two Thousand Two Hundred Sixty Dollars ($52,260.00), less all
applicable payroll tax withholdings (the "Special Payment"). The
Company will make this Special Payment to Fabris on or before November 13,
2009.
c. Conditional Additional
Severance Compensation. If Fabris does not obtain Other
Employment/Work at any time during the eighteen (18) months after the Separation
Date, the Company will pay additional severance compensation to Fabris in the
form of bi-weekly severance payments in the amount of Twelve Thousand Three
Hundred Thirty-Four and 61/100 Dollars ($12,334.61) each, less all applicable
payroll withholdings, for a period commencing on May 1, 2011 and ending on the
earlier of (i) the date Fabris begins Other Employment/Work or
(ii) October 31, 2011 (the "Conditional Additional Severance
Compensation"). In no event will the Conditional Additional Severance
Compensation exceed the gross sum of One Hundred Sixty Thousand Three Hundred
Forty-Nine and 93/100 Dollars ($160,349.93). For purposes of this
Agreement, "Other Employment/Work" means when Fabris (A) becomes employed
with another employer in any capacity in which he is expected to work more than
thirty-five (35) hours per week on a regular basis or (B) is engaged
as a consultant or independent contractor and is expected to work more than
thirty-five (35) hours per week in connection with such
engagement. If Employee obtains Other Employment/Work at any time
before October 31, 2011, Employee shall immediately notify the Company of such
Other Employment/Work and the date such Other Employment/Work commenced or is to
commence. Fabris agrees to actively pursue obtaining Other
Employment/Work at all times during the period he is receiving any severance
payments under this Agreement.
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3. Termination of Employee
Benefits. Fabris’ eligibility to participate in the Company’s
employee benefits plans, including but not limited to participation in the
Company’s group health insurance plan and other welfare or retirement plans,
will terminate as of the Separation Date. Except as expressly
provided in this Agreement, Fabris’ eligibility to participate in and/or his
receipt of any employee perquisites will terminate as of the Separation
Date. Effective immediately after the Separation Date, Fabris will
become eligible to continue health insurance benefits pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), as amended, at
Fabris’ expense. The Company will provide Fabris with the applicable
COBRA information in a separate writing.
4. General Release of
Claims. To the fullest extent permitted by applicable laws,
Fabris hereby generally, irrevocably and unconditionally releases and forever
discharges and covenants not to xxx the Company and all of its parents,
subsidiaries and affiliates and all of its and their current and/or former
employees, officers, directors, shareholders, members, managers,
representatives, agents, attorneys, employee benefit plans and their fiduciaries
and administrators, and all persons acting by, through, or under or in concert
with any of them, both individually and in their representative capacities
(collectively, including without limitation the Company, the “Company Released
Parties”), from any and all complaints, claims, demands, liabilities, damages,
obligations, injuries, actions or rights of action of any nature whatsoever,
(including without limitation claims for damages, attorneys’ fees, interest and
costs), whether known or unknown, disclosed or undisclosed, administrative or
judicial, suspected or unsuspected, that exist in whole or in part as of the
date Fabris signs this Agreement, including, but not limited to, any claims
based upon, arising out of or in any manner connected with Fabris’s employment
with the Company, the separation of Fabris’s employment with the Company, the
Letter and/or any acts, omissions or events occurring on or before the date
Fabris signs this Agreement; provided, however, the Company and Fabris
acknowledge that the foregoing release/covenant not to xxx does not release or
affect (a) any rights Fabris may have under any stock option plan or
(b) any rights Fabris may have under that certain Restated Split-Dollar
Insurance Agreement between Fabris and the Company dated as of December 31, 2008
(the "Restated Split-Dollar Insurance Agreement"). Without limiting
the generality of the foregoing, Fabris acknowledges that the foregoing
release/covenant not to xxx is to be construed as broadly as possible and
includes, but is not limited to, and constitutes a complete waiver of, any and
all possible claims Fabris has or may have against the Company Released Parties
under or with respect to the Age Discrimination in Employment Act of 1967, as
amended (including the Older Workers Benefit Protection Act),
29 U.S.C. § 621 et seq., the Civil Rights Act
of 1964 and 1991, as amended, 29 U.S.C. § 2000(e), the Americans
With Disabilities Act of 1990, as amended, 42 U.S.C. § 12,101
et seq., the Employee
Retirement Income Security Act of 1974, as amended,
29 U.S.C. § 1001 et seq., all other federal,
state and local laws and statutes, all wrongful discharge or other state law
claims and all contract claims or other theories of recovery as of the date
Fabris signs this Agreement. This Agreement does not prohibit Fabris
from filing an administrative charge against the Company with the United States
Equal Employment Opportunity Commission (“EEOC”) relating to Fabris’s employment
with the Company; provided, however, Fabris waives and releases, to the fullest
extent permitted by applicable law, any and all entitlement to any form of
personal relief arising from such charge or any legal action relating to such
charge. If the EEOC or any other administrative agency or person
brings a complaint, charge or legal action on Fabris’s behalf or for Fabris’s
benefit against any of the Company Released Parties based on any acts, omissions
or events occurring on or before the date Fabris signs this Agreement, Fabris
hereby waives any rights to, and will not accept, any remedy obtained through
the efforts of such agency or person.
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5. Return of Company
Property. Fabris represents and covenants (a) that he will
return on or before the Separation Date, to the Company all property belonging
to the Company, including, but not limited to, keys, access cards, files,
equipment, business plans, financial statements, computer disks or files,
documents and/or any such other Company property in Fabris’ possession or
custody or under Fabris’ control, and (b) that he will not retain copies of any
the Company's files, documents or other property.
6. Non-Disclosure of Confidential
Information. Fabris acknowledges his continuing
responsibilities to the Company with respect to confidential and proprietary
information and materials. Fabris therefore agrees and covenants as
follows:
a. Return of Confidential
Information. Fabris has returned, or will return on or before
the Separation Date of this Agreement, to the Company all originals and all
copies (including all computer or other electronically-stored data) of all
materials of any kind whatsoever, constituting or containing any "Confidential
Information" which are or were in Fabris’ possession or custody or under Fabris’
control during Fabris’ employment up to and including the Separation
Date. For purposes of this Agreement, the term "Confidential
Information" means any and all of the Company's trade secrets, confidential and
proprietary information and all other non-public information of or about the
Company, including, without limitation, customer data, business methods and
processes, product or service data, pricing data, research and development
information, sales and marketing data, cost data, business plans, financial
information, personnel information, information about prospective products or
customers, and confidential or proprietary information received or acquired from
the Company's customers, joint ventures, contractors, agents, vendors or
suppliers, whether or not reduced to writing or other tangible medium of
expression, including work product created by Fabris in rendering services to or
for the Company. The Company and Fabris agree that Confidential
Information shall not include any information that becomes generally available
to the public through no act or omission of Fabris.
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b. Non-Disclosure of
Confidential Information. Subsequent to Fabris’ employment
with the Company, Fabris will not, without the Company's prior written consent,
use or disclose to anyone any of the Confidential Information. Fabris
acknowledges and agrees that his obligations hereunder are in addition to, and
not in lieu of, any and all confidentiality and/or non-disclosure agreements
executed by Fabris during his employment with the Company.
7. Restrictive
Covenants. The Company and Fabris acknowledge and agree that
the following restrictive covenants are reasonably necessary to protect the
legitimate interests of the Company, including the protection of the Company’s
trade secrets and goodwill, and such covenants are an essential part of and
consideration for this Agreement.
a. During
the Restricted Time Period, Fabris will not solicit, recruit, hire, employ,
attempt to hire or employ, or assist any person or entity in the recruitment or
hiring of, any person who is an employee of the Company (or any of its
subsidiaries or other affiliates), or otherwise urge, induce or seek to induce
any person to terminate his/her employment with the Company (or any of its
subsidiaries or other affiliates). For purposes of this Agreement,
the term "Restricted Time Period" means the period from the effective date of
this Agreement through October 31, 2011.
b. During
the Restricted Time Period, Fabris will not urge, induce or seek to induce any
of the Company’s independent contractors, subcontractors, distributors, dealers,
brokers, consultants, sales representatives, vendors, suppliers or any other
person or entity with whom the Company has a business relationship to terminate
their relationship with, or representation of, the Company or to cancel,
withdraw, reduce, limit or in any manner modify any such person’s or entity’s
business with or representation of, the Company.
c. During
the Restricted Time Period, Fabris will not will not make or publish any
statements or comments that disparage or in any way injure the reputation and/or
goodwill of the Company, including, but not limited to, making or publishing any
comments or statements to the Company’s customers, distributors or employees
that disparage the Company or that otherwise injure or diminish the Company’s
relationship with such customers, distributors or employees; provided, however,
nothing in this section is intended to prohibit Fabris from making any
disclosures as may be required or compelled by law or legal
process. During the Restricted Time Period, the Company's officers
and members of its Board of Directors will not make or publish any statements or
comments that disparage or in any way injure the reputation of Fabris; provided,
however, nothing in this section is intended to prohibit the Company (or its
officers or Board members) from making any disclosures as may be required or
compelled by law or legal process.
x. Xxxxxx
acknowledges and agrees that the restrictions imposed upon Fabris under this
Section 7 are reasonable and necessary for the protection of the Company’s
legitimate interests, including without limitation for the protection of the
Company’s trade secrets, confidential information and goodwill, particularly
given that: (i) the Company is engaged in a highly competitive
business, (ii) Fabris has served a key executive role with the Company,
(iii) Fabris has substantial knowledge of trade secrets and confidential
information relating to the Company’s business and (iv) Fabris has
developed significant relationships with many of the Company's employees,
customers and Dealers.
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8. Cooperation. Fabris
agrees to cooperate with the Company in any work transition issues, including
without limitation making himself reasonably available, if requested, to answer
questions or otherwise provide information concerning business transition
matters. Fabris further agrees and covenants that if the Company
desires Fabris to provide any information or testimony relating to any judicial,
administrative or other proceeding involving the Company (or any of its
subsidiaries or other affiliates), Fabris will cooperate in making himself
reasonably available for such purposes and will provide truthful information
and/or testimony. The Company agrees to reimburse Fabris for all
necessary and reasonable out-of-pocket expenses Fabris incurs in connection with
such matters. Should Fabris be served with a subpoena in any legal
proceeding relating to the Company (or any of its subsidiaries or other
affiliates), Fabris agrees: (a) to inform the Company
immediately of the subpoena; (b) to cooperate with the Company and its
attorneys in preparing for any hearings, depositions or other formal process by
which evidence is taken or received; and (c) to provide truthful evidence
in response to questions that are within the scope of proper
discovery. Fabris further agrees to comply with any reasonable,
lawful directions by the Company’s attorneys should any litigation relating to
the Company (or any of its subsidiaries or other affiliates) involve Fabris as a
witness.
9. No Other Severance Plan
Benefits. Fabris acknowledges that, except as expressly
provided in this Agreement, he is not entitled to any other severance payments
or other benefits under any other plan or program that may be maintained by the
Company, and Fabris hereby waives any and all rights he may have under any such
plans or programs.
10. Restated Split-Dollar Insurance
Agreement. This Agreement does not affect any of the parties'
respective rights and/or obligations under the Restated Split-Dollar Insurance
Agreement.
11. Section 409A
Compliance. The parties have designed the terms of the special
severance benefits payable under Section 2 of this Agreement such that any
amounts payable under that Section during the 6-month period after Fabris’
separation from service fall within the exemption from Code Section 409A under
Treasury Regulation §1.409A-1(b)(9) for a separation pay plan providing benefits
in the event of an involuntary separation and not in excess of specified dollar
and time limits. However, to the extent any payments under this
Agreement constitute deferred compensation as defined in, and subject to, Code
Section 409A, any such deferred compensation payments otherwise payable because
of a separation from service will not be paid to Fabris prior to the first day
of the seventh month following the month in which Fabris's last day of
employment occurs. Further, to the extent that any payments under
this Agreement constitute deferred compensation subject to the requirements of
Code Section 409A, the provisions of this Agreement applicable to such payments
shall be interpreted and applied in a manner consistent with the standards for
nonqualified deferred compensation plans established by Code Section 409A and
its interpretive regulations and other regulatory guidance. To the
extent that any terms of this Agreement would subject Fabris to gross income
inclusion, interest, or additional tax pursuant to Code Section 409A, those
terms are to that extent superseded by, and shall be adjusted to the minimum
extent necessary to satisfy, the applicable Code Section 409A
standards.
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12. Age Act
Advisements. Fabris acknowledges : (a) that
the Company has advised him that by entering into this Agreement, Fabris is
waiving and releasing all claims against the Company Released Parties under the
Age Discrimination in Employment Act of 1967, as amended (including the Older
Workers Benefit Protection Act), 29 U.S.C. § 621 et seq., as of the date
Fabris signs this Agreement; (b) that the Company has advised him to
consult with an attorney prior to signing this Agreement; (c) that the
Company has advised him that he has up to twenty-one (21) days to consider and
accept this Agreement by signing and returning this Agreement to the Company;
(d) that the Company has advised him that for a period of seven (7) days
following Fabris’ signing of this Agreement, Fabris may revoke this Agreement by
written notice to the Company; and (e) this Agreement will not become
binding and enforceable until the seven-day revocation period has expired
without Fabris having exercised his right of revocation.
13. No Admission. This
Agreement and the actions taken pursuant to this Agreement do not constitute an
admission by either party of any wrongdoing or liability, and each party
expressly denies any wrongdoing or liability.
14. Successors. The
Company shall have the right to assign this Agreement. This Agreement
shall inure to the benefit of and may be enforced by the Company and its
successors and assigns, including, without limitation, by asset assignment,
merger consolidation or other corporate reorganization. Fabris shall
not have the right to assign this Agreement.
15. Entire Agreement;
Modification. This Agreement constitutes the entire agreement
of the parties with respect to the subject matter addressed herein and
supersedes any prior agreements, understandings or representations, oral or
written, with respect to the subject matter addressed in this
Agreement. Fabris acknowledges that he is not relying on any
representations, statements, promises or inducements, whether oral or written,
made by the Company or its representatives except those expressly stated in this
Agreement. This Agreement may not be amended, supplemented, or
modified except by a written agreement signed by both Fabris and a duly
authorized officer of the Company.
16. Governing Law. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Indiana, without application of its conflict of law
rules. The Company and Fabris agree that any legal action relating to
this Agreement shall be commenced and maintained exclusively before any
appropriate state court of record in Xxxxxx County, Indiana, or in the United
States District Court for the Southern District of Indiana, Indianapolis
Division, and the parties hereby submit to the jurisdiction and venue of such
courts and waive any right to challenge or otherwise object to personal
jurisdiction or venue in any action commenced or maintained in such
courts. This Agreement is the result of negotiations between the
parties, and no party shall be deemed to be the drafter of this
Agreement. The language of this Agreement shall in all cases be
construed as a whole, according to its fair meaning, and not strictly for or
against either party.
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17. Severability;
Reformation. The provisions of this Agreement are separate and
divisible, and to the extent any provision or portion of this Agreement is
determined to be unenforceable or invalid for any reason, such unenforceability
or invalidity shall not affect the enforceability or validity of the remainder
of the Agreement. If any particular provision or portion of this
Agreement is determined to be invalid or unenforceable for any reason,
including, without limitation, the time period, geographical area and/or scope
of activity covered by any restrictive covenant, provision or clause, such
covenant, provision or portion shall automatically be deemed reformed such that
the contested covenant, provision or portion will have the closes effect
permitted by applicable law to the original form and shall be given effect and
enforced as so reformed to whatever extent would be reasonable and enforceable
under applicable law. The Company and Fabris agree that any court
interpreting any restrictive covenant or other provision of this Agreement
shall, if necessary, reform any such provision to make it enforceable under
applicable law.
18. Counterparts. This
Agreement may be executed in one or more counterparts (or upon separate
signature pages bound together into one or more counterparts), all of which
taken together shall constitute but one agreement. Signatures
transmitted by facsimile or other electronic means are acceptable the same as
original signatures for execution of this Agreement.
19. Acknowledgment. Fabris
acknowledges that he has read this Agreement, that he has had ample time to
consider this Agreement, that he has had the opportunity to consult with his own
attorney concerning this Agreement if he so chooses, and that he is knowingly
and voluntarily entering into this Agreement.
[Remainder
of page intentionally left blank; signature page follows.]
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IN
WITNESS WHEREOF, the Company and Fabris have executed this Agreement on the
dates indicated below, intending it to become effective as set forth
above.
| FABRIS |
HURCO
COMPANIES, INC.
|
|||
| /s/ Xxxxx X. Xxxxxx |
By:
|
/s/ Xxxxxxx Xxxx
|
||
| Xxxxx X. Xxxxxx |
Xxxxxxx
Xxxx
|
|||
|
Chairman
and CEO
|
||||
| Date: |
October 1, 2009
|
Date:
|
October 1, 2009 | |
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