EXHIBIT 10.2
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (the
"Agreement") is entered into as of March 5, 2002, by and between Xxxxxx X.
Xxxx ("Employee") and Xxxxxxx & Xxxxxx Products Co. (the "Company").
WHEREAS, Employee and the Company wish to supercede the
Severance Agreement between the parties, dated July 26, 1999, and wish to
resolve all issues between them;
NOW THEREFORE, the Parties agree as follows:
1. Employee's employment with the Company ceased on
January 7, 2002 (the "Resignation Date") due to Employee's voluntary
resignation. The severance agreement, dated July 26, 1999 ("the Severance
Agreement"), is deemed terminated on the Resignation Date, with neither party
having any rights or obligations thereunder and shall be superceded by this
Agreement.
2. In consideration of this Agreement becoming
effective, the Company agrees to pay Employee as severance pay, commencing in
February, 2002, a lump-sum payment in the amount of $425,000 and a monthly
payment of $35,416, less applicable tax and other withholdings, for a period of
12 months ending at January 31, 2003, which shall be payable in accordance with
the Company's regular payment practices, and which amount may be accelerated
upon the bankruptcy of the Company. Additionally, the employee will be eligible
to receive accrued but unused vacation, use of one Company cell phone for 6
months and continuation of executive medical benefits for 12 months or until
employee obtains employment and continuation of the perquisite allowance for 18
months.
3. In consideration of this Agreement becoming
effective, the Company agrees that, with respect to stock option grants awarded
to Employee while he was employed by the Company, all options will be repriced
at $5, will immediately vest on the effective date of this Agreement and will
remain exercisable until one year after the Agreement Date.
4. Employee hereby covenants and represents that he will
not, directly or indirectly, for twelve (12) months commencing upon the date of
this Agreement, do any of the following in any county in which the Company does
business:
(a) own an interest in, operate, join, control, or
participate in, or be connected as an officer, employee, agent,
independent contractor, partner, shareholder, or principal of or in any
corporation, partnership, proprietorship, firm, association, or other
entity, soliciting orders for, selling, distributing, or otherwise
marketing products, and/or services or a business in which less than
five (5%) percent of revenues or $20,000,000 are competitive with
Xxxxxxx & Xxxxxx;
(b) either for himself or for any other person, firm, or
corporation, divert or take away or attempt to divert or take away,
call upon or solicit, or attempt to call upon or solicit, any of
Company's customers, including but not limited to those upon whom he
called or whom he solicited or to whom he catered or with whom he
became acquainted while an employee of the Company. Said customers
shall include, but not be limited to: Xxxxxxx Controls, Inc., Magna
International, Inc., The Rieter Group, Xxxxx Carpet Inc., Xxxx
Corporation and H.P. Xxxxxx (Automotive System), Inc. or their
successors;
(c) undertake planning for or organization of any
business activity competitive with the Company's business, or combine
or conspire with other employees or marketing representatives of the
Company for the purposes of organizing any such competitive business
activity.
The term "customers" of Company as used in this Agreement shall be
defined and construed to mean any and all licensors, manufacturers, suppliers,
vendors, customers and/or other persons who have accepted or provided services
and/or merchandise to the Company, notwithstanding that such customers may have
been induced to become customers and to give their patronage to the Company by
the Employee's efforts and solicitations, or of someone on his behalf,
regardless of the time of solicitation.
Should Employee violate any provision contained in Paragraphs 4, 5, 8
or 9, the Company shall be entitled, in addition to the recovery of damages and
to any all other remedies available at law, to an immediate injunction against
Employee.
5. Employee agrees that he will not for twelve (12)
months recruit, solicit, employ or engage, for or on behalf of himself or any
third party, any employee, officer, director, consultant, or agent of the
Company or any of its affiliates, or induce or attempt to induce any employee,
officer, director, consultant, or agent of the Company to terminate his or her
relationship with, or otherwise cease his or his relationship with, the Company,
or any of its affiliates, through January 31, 2003, except for employees
discharged by the Company, employees who retire from the Company or as agreed by
the Company.
6. In exchange for the consideration provided for in
this Agreement, Employee for himself, and his heirs, executors, administrators
and assigns (collectively the "Releasors") forever waives, releases and
discharges the Company, its parent Xxxxxxx & Xxxxxx Corporation and their
affiliates and all past and present officers, directors, employees,
representatives, and agents of the foregoing (collectively the "Releasees"),
from any and all claims, demands, causes of actions, fees, liabilities and
expenses of any kind whatsoever, whether known or unknown, which they ever had,
now have, or may have in the future against
the Releasees by reason of any actual or alleged act, omission, transaction,
practice, conduct, occurrence or other matter up to and including the date of
this Agreement. Without limiting the generality of this release, the Releasors
release the Releasees from all claims arising out of any aspect of Employee's
employment with the Company and from all claims in his capacity as a shareholder
of Xxxxxxx & Xxxxxx Corporation including, but not limited to: (i) any claims
under Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights
Act of 1991, 42 U.S.C. Section 1981, the Age Discrimination in Employment Act,
as amended, the Americans With Disabilities Act, the Family and Medical Leave
Act, the Xxxxxxx-Xxxxxx Civil Rights Act or any other federal, state, or local
law (statutory or decisional), regulation, or ordinance; and (ii) any tort
and/or contract claims, including, without limitation, any claims of
constructive discharge, wrongful discharge, breach of contract, breach of
implied covenant of good faith and fair dealing, retaliation, assault,
intentional infliction of emotional distress, defamation, nonphysical injury,
personal injury or sickness or other harm.
The Releasors further acknowledge that they will not bring
suit or authorize suit on any of their behalves against the Releasees or any of
them, and, to the extent permitted by law, they agree not to file any charge or
complaint, commence any proceeding of any kind or participate in any
investigation or proceeding against the Releasees with respect to any matter
released pursuant to this Agreement. Should any charge, complaint, suit or
proceeding be filed, the Releasors agree that they will not accept any relief or
recovery therefrom and pay all of Releasees' actual attorneys' fees.
This release specifically excludes: (1) Employee's right to
vested retirement benefits which shall continue in accordance with the governing
plan documents; (2) any claim
for indemnification Employee may have as provided in the by-laws of the Company;
and (3) any claim by the Company for indemnification.
The Releases similarly waive, release, and discharge the
Releasors from any and all claims, demands, causes of action, fees, liabilities,
and expenses of any kind whatsoever, whether known or unknown, which they ever
had or now have against the Releasors by reason of any actual or alleged act,
omission, transaction, practice, conduct, occurrence, or other matter up to and
including the Resignation Date. Company agrees to indemnify, defend, and hold
Employee harmless from claims of third parties as provided in the by-laws of the
Company.
7. Employee acknowledges that he has been urged by the
Company to consult an attorney before signing this Agreement and that he has
executed this Agreement with the waiver and release set forth above, after
having had the opportunity to consult with an attorney and after having had the
opportunity to consider the terms of this Agreement for twenty-one (21) days
after such terms were proposed to him. Employee further acknowledges that: he
has read this Agreement in its entirety; he understands all of its terms; he
knowingly and voluntarily assents to all of the terms and conditions contained
herein including, without limitation, the waiver and release; he is executing
this Agreement, including the waiver and release, in exchange for consideration
in addition to anything of value to which he is already entitled; and that he
understands that the waiver and release in this Agreement is being requested in
connection with the cessation of his employment with the Company and in exchange
for his receipt of consideration to which he otherwise would not be entitled.
This Agreement, including the waiver and release contained
herein, shall become effective the eighth (8th) day following Employee's
execution of this Agreement and he may at
any time prior to the effective date revoke this Agreement by giving written
notice of such revocation to Xxxxxxx Xxxxxxx, Senior Vice President, Human
Resources.
Employee acknowledges and agrees that all payments and
benefits provided herein shall be null and void and that he will repay the
Company for any payments provided for in paragraph two(2) that the Company has
provided to Employee or on his behalf commencing on and after the Resignation
Date, if he does not execute this Agreement after having had the opportunity to
consider its terms for up to twenty-one (21) days after such terms were proposed
to him or if he revokes this Agreement within seven (7) days of his having
executed it.
8. Employee agrees that he will keep the terms, amount
and fact of this Agreement completely confidential and that he will not disclose
to any entity or other person the terms and conditions of this Agreement until
such time as it is publicly disclosed by the Company except that he may disclose
the terms of this Agreement: (i) as is necessary to enforce the terms of this
Agreement; (ii) to such persons to whom disclosure is necessary to file a tax
return or contest a denial of tax refund; (iii) to Employee's legal, financial
and tax advisors; and (iv) pursuant to a valid subpoena or court order, provided
that the Company shall have a right to challenge any such subpoena or court
order before Employee complies with it.
9. Employee agrees that he will not disparage, denigrate
or ridicule the Company, its parent, affiliates, successors, or any of their
respective past or present employees, officers, or any individual or entity with
whom the Company or its parent or any of its affiliates has a business
relationship, whether by way of news interviews or the expression of personal
views, opinions or judgments made to the news media, the employees of the
Company, its parent or any of its affiliates or any individual or entity with
whom the Company or any of its affiliates
has a business relationship, or otherwise. Employee and the Company agree to
direct all inquiries regarding employment references to the Senior Vice
President, Human Resources, who will provide a reference and who will not
disparage, denigrate or ridicule the Employee.
10. Employee acknowledges that material to the inducement
for the Company to enter into this Agreement are the waiver and release set
forth in paragraph six (6) herein, and Employee's covenants with respect to
non-competition, non-solicitation of employees, confidentiality, and
nondisparagement set forth in paragraphs four (4), five (5), eight (8) and nine
(9) herein. In the event Employee violates any provision of any of said
paragraphs, Employee shall automatically and immediately be obligated to fully
refund to the Company any and all consideration paid to Employer under this
Agreement, and the Company shall be relieved of any obligation of the Company to
pay any further considerations under this Agreement. The Company may offset
against any monies otherwise due Employee under this Agreement any claims by the
Company against Employee for Employee's breach of any provision of this
Agreement. In such event, Employee's obligation under Paragraphs 4 and 5, 6, 8
and 9 of this Agreement shall nonetheless remain in full force and effect.
11. If any provision of this Agreement is determined by a
court of competent jurisdiction not to be enforceable in the manner set forth in
this Agreement, the Company and Employee agree that it is the intention of the
parties that such provision should be enforceable to the maximum extent possible
under applicable law and that such provision shall be reformed to make it
enforceable in accordance with the intent of the parties.
12. This Agreement shall be binding upon and inure to the
benefit of the heirs, trustees, executors, administrators, successors and
assigns of the respective parties. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which shall constitute the same instrument. This
Agreement shall be governed by and subject to the laws of the State of Michigan
without giving effect to conflict of law rules.
13. Employee understands that the Company's obligations
to make payments hereunder are unfunded and that claims for payments by Employee
or any beneficiary shall be those of a general, unsecured creditor. The
severance payment provided for in paragraph two (2) hereunder shall be subject
to withholding in accordance with applicable federal, state, or local law.
Employee, and not the Company, will be solely responsible for all taxes due
hereunder.
14. Employee and the Company agree to each bear their own
costs, attorneys' fees and any other expenses incurred in connection with this
Agreement and the matters referred to herein.
15. This Agreement contains a complete statement of all
the arrangements between Employee and the Company with respect to his employment
and the cessation of his employment and supercedes the Severance Agreement. This
Agreement may not be changed orally. No other promises or agreements shall be
binding unless in writing and signed by the Company and Employee.
IN WITNESS WHEREOF, the parties hereto have knowingly and
voluntarily executed this Agreement or have caused its duly authorized officer
to execute this Agreement.
By: _____________________________
Xxxxxx X. Xxxx
Dated:
XXXXXXX & XXXXXX PRODUCTS CO.
By: ____________________________
Name:
Title:
Dated:
STATE OF MICHIGAN )
: ss:
COUNTY OF )
On March 5, 2002, before me personally came ______________ to me known
and known to me to be the individual described in, and who executed the
foregoing Separation Agreement and General Release on behalf of Xxxxxxx & Xxxxxx
Products Co. as its _____________________, and he duly acknowledged to me that
he executed the same in such capacity.
______________________________________
Notary Public
STATE OF MICHIGAN )
: ss:
COUNTY OF )
On March 5, 2002 before me personally came Xxxxxx X. Xxxx to me
known and known to be the individual described in, and who executed the
foregoing Separation Agreement and General Release, and he duly acknowledged to
me that he executed the same.
_______________________________________
Notary Public
