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EXHIBIT 10.1
XXXXX COMPANIES, INC.
XXXXX COMPANIES
October 25, 2000
Xxxxxxx Xxxxx
Xxxxx Companies, Inc
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Dear Ray:
This letter sets forth the substance of the resignation and consulting agreement
(the "Agreement") that XXXXX COMPANIES, INC. (the "Company") is offering to you
to aid in your employment transition.
1. RESIGNATION. The parties agree that you are resigning effective as of
November 17, 2000 (the "Resignation Date") as an officer and employee of the
Company and from any office or position you may hold with the Company or any
affiliated entity of the Company (including, but not limited to, your position
as Chief Executive Officer ("CEO") of the Company). On the Resignation Date, the
Company will pay you all accrued salary and all accrued and unused vacation time
and personal days earned through the Resignation Date, subject to standard
payroll deductions and withholdings.
2. CONSULTANCY. The Company agrees to retain you as a consultant, and you
agree to make yourself available to provide consulting services, under the terms
specified below.
a. CONSULTING PERIOD. The consulting relationship commences on the
Resignation Date and continues for twelve (12) months thereafter (the
"Consulting Period").
b. CONSULTING DUTIES. You agree to make yourself available to provide,
upon the Company's reasonable request, consulting services in any area of your
expertise, up to a maximum of forty (40) hours of consulting services per month
(the "Consulting Duties"). You will perform the Consulting Duties at the request
and direction of the Chairman of the Board ("Chairman"). You agree to exercise
the highest degree of professionalism and utilize your expertise and creative
talents in performing the Consulting Duties.
c. CONSULTING FEES. You will be compensated at a rate of $250 per hour
for any consulting services you perform for the Company pursuant to this
Agreement (the "Consulting Fees"). The Company will not deduct or withhold any
amount from the Consulting Fees for taxes, social security, or other payroll
deductions. The Company will issue you an IRS 1099 form with respect to your
Consulting Fees, if any. You acknowledge that you will be entirely responsible
for the payment of all taxes due and owing as a result of your Consulting
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XXXXX COMPANIES, INC. FORM 10-Q
Fees. You hereby indemnify the Company and hold it harmless from any liability
for any taxes, contributions, penalties, and interest that may be assessed by
any taxing or governmental authority with respect to the Consulting Fees. The
Company will reimburse you, according to its standard practice, for all
reasonable, documented, pre-approved expenses incurred in performing your
Consulting Duties.
d. PROTECTION OF CONSULTING INFORMATION. You agree that, during the term
of this Agreement and thereafter, you will not use or disclose any confidential
or proprietary information or materials of the Company which you obtain or
develop in the course of performing the Consulting Duties, except with the
written permission of the Company's Chairman. Any and all work product you
create in connection with the Consulting Duties will be the sole and exclusive
property of the Company. You hereby assign to the Company all right, title, and
interest in all inventions, techniques, processes, materials, and other
intellectual property developed in the course of performing the Consulting
Duties.
e. INDEPENDENT CONTRACTOR RELATIONSHIP. You acknowledge that in providing
the Consulting Duties to the Company you will be an independent contractor to
the Company and not an employee, partner, or joint venturer of the Company. As
an independent contractor, you will have no authority, in the absence of the
express written consent of the Chairman, to bind the Company (or to represent
that you have authority to bind the Company) to any contractual obligations,
whether written, oral or implied. You hereby agree that after the Resignation
Date, you will not represent or purport to represent the Company in any manner
whatsoever to any third party unless authorized to do so in writing by the
Chairman. During the Consulting Period, you may engage in employment, consulting
or other work activities in addition to your Consulting Duties, provided that
they do not conflict with your ability to perform the Consulting Duties or cause
you to violate any other contractual obligation to the Company. The Company
agrees to make reasonable arrangements to enable you to perform the Consulting
Duties at such times and in such manner so that they do not unreasonably
interfere with other activities in which you may engage, including full time
employment.
f. EMAIL AND TELEPHONE USAGE DURING CONSULTING PERIOD. You will continue
to have use of Company email and voicemail until the end of the Consulting
Period or until you obtain other full time employment, whichever occurs first.
3. SEVERANCE BENEFITS. Subject to your compliance with your obligations
contained in Sections 7,9 and 11 hereof, the Company will provide you the
following, as your sole severance benefits:
x. XXXXXXXXX PAYMENTS. During the Consulting Period, the Company will
make severance payments to you in the amount of your base salary in effect as of
the Resignation Date (the "Severance Payments"). The Severance Payments will be
made on the Company's ordinary payroll dates, and will be subject to standard
payroll deductions and withholdings.
b. PRORATED BONUS PAYMENT. The Company will pay you a prorated annual
bonus for Fiscal Year 2001 at target level, in the amount of $206,250,
representing the five and one-half months that you were employed by the Company
in Fiscal Year 2001. The prorated
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XXXXX COMPANIES, INC. FORM 10-Q
annual bonus will be added to your Severance Payments and made on the Company's
ordinary payroll dates (currently semi-monthly), and will be subject to standard
payroll deductions and withholdings. These bonus payments will constitute the
full bonus owed to you, if any, under the Xxxxx Bonus Plan or any other bonus or
incentive compensation plan of the Company.
c. STOCK AND STOCK OPTION VESTING. All restricted stock and stock options
previously granted to you during your employment with the Company that are not
fully vested as of the expiration of the Consulting Period shall vest as of the
last day of the Consulting Period. You will have ninety (90) days following the
expiration of the Consulting Period in which to exercise such vested stock
options. Any such stock options not exercised within ninety (90) days after the
expiration of the Consulting Period shall lapse.
d. HEALTH INSURANCE CONTINUATION. During the Consulting Period, you may
continue group health benefits under the same employee contribution rates as
active employees. To the extent provided by the federal COBRA law or, if
applicable, state insurance laws, and by the Company's current group health
insurance policies, you will be eligible to continue your group health insurance
benefits at your own expense for up to an additional eighteen (18) months
following the Consulting Period.
e. FINANCIAL PLANNING SERVICES. During the Consulting Period, the Company
will reimburse you, in a total amount not to exceed seven thousand five hundred
dollars ($7,500), for financial planning and tax preparation services from a
provider selected by you, upon your submission of proof of your payment(s) to
the provider.
4. OTHER COMPENSATION OR BENEFITS. You acknowledge that, except as expressly
provided in this Agreement, you will not receive any additional compensation,
severance, bonus, or benefits (including, but not limited to, vacation or
personal day accrual) after the Resignation Date.
5. EXPENSE REIMBURSEMENTS. You agree that, within ten (10) days of the
Resignation Date, you will submit your final documented expense reimbursement
statement reflecting all business expenses you incurred through the Resignation
Date, if any, for which you seek reimbursement. The Company will reimburse you
for these expenses pursuant to its regular business practice.
6. RETURN OF COMPANY PROPERTY. By the Resignation Date, you agree to return
to the Company all Company documents (and all copies thereof) and other Company
property in your possession or control, including, but not limited to: Company
files, correspondence, memoranda, notes, notebooks, drawings, books, records,
plans, forecasts, reports, proposals, financial information, personnel
information, sales and marketing information, research and development
information, specifications, computer-recorded information, computer programs,
tangible property and equipment (including your Company-provided laptop
computer), credit cards, entry cards, identification badges, keys and computer
access codes; and any materials of any kind that contain or embody any
proprietary or confidential information of the Company (and all reproductions
thereof in whole or in part).
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7. PROPRIETARY INFORMATION OBLIGATIONS. You understand and acknowledge that
during your employment with the Company, you have been exposed to Confidential
Information (defined herein), all of which is proprietary and which rightfully
belongs to the Company. You shall hold in a fiduciary capacity for the Company's
benefit all such Confidential Information obtained by you during your employment
within the Company and shall not, directly or indirectly, at any time, either
during or after your employment with the Company, without the Company's prior
written consent, use any of such Confidential Information or disclose any of
such Confidential Information to any individual or entity other than authorized
Company employees except as required in the performance of your duties for the
Company. You shall take all reasonable steps to safeguard such Confidential
Information and to protect such Confidential Information against disclosure,
misuse, loss or theft. The term "Confidential Information" shall mean any
information not generally known in the relevant trade or industry, which was
obtained from the Company or which was learned, discovered, developed,
conceived, originated or prepared during or as a result of the performance of
any services by you as a Company employee or on behalf of the Company,
including, without limitation, information concerning the provision of freight
forwarding services such as the cost of such services, price lists, marketing
programs or plans, lists of customers, dealers and contacts and other
compilations of confidential information.
8. CONFIDENTIALITY. The provisions of this Agreement will be held in
strictest confidence by you and the Company and will not be publicized or
disclosed in any manner whatsoever; provided, however, that: (a) you may
disclose this Agreement to your immediate family; (b) the parties may disclose
this Agreement in confidence to their respective attorneys, accountants,
auditors, tax preparers, and financial advisors; (c) the Company may disclose
this Agreement as necessary to fulfill standard or legally required corporate
reporting or disclosure requirements; and (d) the parties may disclose this
Agreement insofar as such disclosure may be necessary to enforce its terms or as
otherwise required by law. In particular, and without limitation, you agree not
to disclose the terms of this Agreement to any current or former Company
employee.
9. NONDISPARAGEMENT. Both you and the Company agree not to disparage the
other party, and the other party's officers, directors, employees, shareholders
and agents, in any manner likely to be harmful to them or their business,
business reputation or personal reputation; provided that both you and the
Company will respond accurately and fully to any question, inquiry or request
for information when required by legal process.
10. PRESS RELEASE. The parties agree to issue a press release no later than
November 10, 2000, which shall announce your departure from the Company, and the
portion of the press release announcing your departure shall be mutually
agreeable to you and the Company.
11. RESTRICTIVE COVENANTS. The parties agree that during the Consulting
Period:
a. You will not, directly or indirectly, either for yourself or any
other person, own, manage, control, participate in, invest in, permit your name
to be used by, act as consultant or advisor to, render services for (whether
alone or in association with any individual, entity, or other business
organization), or otherwise assist in any manner, any individual or entity that
engages in or owns, invests in, manages or controls any venture or enterprise
engaged in the
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provision of services that are similar to, or in competition with, or may
materially detract from, any services provided by the Company or as to which the
Company had firm plans as of the Resignation Date. Nothing herein shall prohibit
you from being a passive owner of not more than two percent (2%) of the
outstanding stock of any class of securities of a corporation engaged in such
business which is publicly traded, so long as you have no active participation
in the business of such corporation.
b. You will not, directly or indirectly: (i) induce or attempt to induce
or aid another in inducing any Company employee to leave the Company's employ,
or in any way interfere with the relationship between the Company and any
Company employee, or (ii) induce or attempt to induce any customer of the
Company to cease doing business with the Company, or in any way interfere with
the relationship between the Company and any customer or other business relation
of the Company.
c. You will not, directly or indirectly, employ any Company employee who
voluntarily terminates such employment until three (3) months have passed
following such termination.
d. In the event a court shall refuse to enforce the agreements contained
herein, either because of the scope of the geographical area specified in this
Agreement or the duration of the restrictions, the parties hereto expressly
confirm their intention that the geographical areas covered hereby and the time
period of the restrictions be deemed automatically reduced to the minimum extent
necessary to permit enforcement.
e. Each of the parties hereto acknowledges and agrees that the extent of
damages to the Company in the event of your breach of this Agreement would be
impossible to ascertain and there is and will be available to the Company no
adequate remedy at law to compensate it in the event of such a breach.
Consequently, you agree that, in the event that you breach any of the covenant
contained herein, the Company shall be entitled, in addition to any other relief
to which it may be entitled including, without limitation, money damages, to
enforce any or all of such covenants by injunctive or other equitable relief
ordered by any court of competent jurisdiction.
12. RELEASE BY XXXXX. In exchange for the severance benefits and other
consideration under this Agreement, you hereby release, acquit and forever
discharge the Company, its parents and subsidiaries, and its and their
respective officers, directors, agents, servants, employees, partners,
attorneys, shareholders, successors, assigns and affiliates, of and from any and
all claims, liabilities, demands, causes of action, costs, expenses, attorneys
fees, damages, indemnities and obligations of every kind and nature, in law,
equity, or otherwise, known and unknown, suspected and unsuspected, disclosed
and undisclosed, arising out of or in any way related to agreements, events,
acts or conduct at any time prior to and including the date you sign this
Agreement, including but not limited to: all such claims and demands directly or
indirectly arising out of or in any way connected with your employment with the
Company or the termination of that employment; claims or demands related to
salary, bonuses, commissions, stock, stock options, or any other ownership
interests in the Company, vacation or other time off pay, fringe benefits,
expense reimbursement, severance pay, or any other form of compensation; claims
pursuant to any federal, state or local law, statute, or cause of action
including, but not
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XXXXX COMPANIES, INC. FORM 10-Q
limited to, the Federal Civil Rights Act of 1964, as amended; the Federal
Americans with Disabilities Act of 1990; the Federal Age Discrimination in
Employment Act of 1967, as amended (the "ADEA"); the California Fair Employment
and Housing Act, as amended; pregnancy discrimination law; tort law; contract
law; wrongful discharge; discrimination; harassment; retaliation; fraud;
defamation; emotional distress; and breach of the implied covenant of good faith
and fair dealing.
13. ADEA WAIVER. You acknowledge that you are knowingly and voluntarily
waiving and releasing any rights you may have under the ADEA, as amended, and
that the consideration given for the waiver and release in the preceding
paragraph hereof is in addition to anything of value to which you are already
entitled. You further acknowledge that you have been advised, as required by the
ADEA, that: (a) your waiver and release do not apply to any rights or claims
that may arise after the date you execute this Agreement; (b) you have the right
to consult with an attorney prior to executing this Agreement; (c) you have
twenty-one (21) days to consider this Agreement (although you may choose to
voluntarily execute this Agreement earlier); (d) you have seven (7) days
following the execution of this Agreement by the parties to revoke the
Agreement; and (e) this Agreement will not be effective until the date upon
which the revocation period has expired, which will be the eighth day after this
Agreement is executed by you (the "Effective Date" of the Agreement).
14. RELEASE BY THE COMPANY. The Company hereby releases, acquits and forever
discharges you from any and all claims, liabilities, demands, causes of action,
costs, expenses, attorneys fees, damages, indemnities, and obligations of every
kind and nature, in law, equity or otherwise, known and unknown, suspected and
unsuspected, disclosed and undisclosed arising out of or in any way related to
your actions in the course and scope of your employment at any time prior to and
including the date the Company executes this Agreement, with the exception of
any claims arising out of your obligations under this Agreement, your
proprietary information obligations, criminal misconduct, regulatory violations,
or fraud.
15. SECTION 1542 WAIVER. In granting the releases herein, which include
claims that may be unknown to you or the Company at present, both you and the
Company acknowledge that each has read and understands section 1542 of the Civil
Code of the State of California.
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Both you and the Company hereby expressly waive and relinquish all rights and
benefits under that section and any law or legal principle of similar effect in
any jurisdiction with respect to the release of unknown and unsuspected claims
granted in this Agreement.
16. ARBITRATION. To ensure rapid and economical resolution of any and all
disputes that may arise in connection with this Agreement, you and the Company
agree that any and all disputes, claims, causes of action, in law or equity,
arising from or relating to this Agreement or its enforcement, performance,
breach, or interpretation, will be resolved by final and binding confidential
arbitration held in San Francisco, California and conducted by Judicial
Arbitration
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XXXXX COMPANIES, INC. FORM 10-Q
and Mediation Services, Inc. ("JAMS"). In the event that JAMS ceases to operate
as an arbitration service, such arbitration shall be conducted by the American
Arbitration Association ("AAA"). The arbitrator shall be empowered to provide
any remedy that could be awarded by a court of law. The prevailing party in the
arbitration shall be entitled to recover his or its reasonable attorneys' fees
and costs. Both you and the Company acknowledge that each is waiving the right
to resolve such disputes in a trial or administrative proceeding. Nothing in
this paragraph is intended to prevent either you or the Company from obtaining
injunctive relief in court to prevent irreparable harm pending the conclusion of
any such arbitration.
17. MISCELLANEOUS. This Agreement constitutes the complete, final and
exclusive embodiment of the entire agreement between you and the Company with
regard to the subject matter hereof. It is entered into without reliance on any
promise or representation, written or oral, other than those expressly contained
herein, and it supersedes any other such agreements, promises, warranties or
representations, including, but not limited to, the Employment and Noncompete
Agreement between you and the Company dated June 1, 2000 and the Change of
Control Agreement between you and the Company dated January 20, 2000, both of
which shall terminate effective as of the Resignation Date. This Agreement may
not be modified or amended except in a writing signed by both you and a duly
authorized officer of the Company. This Agreement will bind the heirs, personal
representatives, successors and assigns of both you and the Company, and inure
to the benefit of both you and the Company, their heirs, successors and assigns.
If any provision of this Agreement is determined to be invalid or unenforceable,
in whole or in part, this determination will not affect any other provision of
this Agreement and the provision in question will be modified by the court so as
to be rendered enforceable in a manner consistent with the intent of the parties
insofar as possible. This Agreement will be deemed to have been entered into and
will be construed and enforced in accordance with the law of State of California
as applied to contracts made and to be performed entirely within California.
If this Agreement is acceptable to you, please sign below and return the
original to me.
I wish you the best in your future endeavors.
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XXXXX COMPANIES, INC. FORM 10-Q
Sincerely,
XXXXX COMPANIES, INC.
By:
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/s/ Xxxx X. Xxxxx
Chairman of the Board of Directors
UNDERSTOOD AND AGREED:
--------------------------------------------
/s/ Xxxxxxx X. Xxxxx
Date: 11/1/00
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