SEVERANCE AND GENERAL RELEASE AGREEMENT
In
accordance with the terms and provisions of the Employment Agreement (the
“Employment Agreement”) made as of June 1, 2008, between Xxxxxx X. Xxxxxxxxxxx
(the “Executive”) and Resources Connection, Inc., (the “Company”) and in
exchange and consideration of the covenants undertaken and releases contained in
this Severance and General Release Agreement (“Agreement”), the Executive and
the Company enter into this Agreement on this 22nd day of July, 2009 (the
“Separation Date”), and agree as follows:
1. Resignation: Executive
hereby resigns from employment by, and from any and all of his positions with
(including without limitation, as a member of the Board of Directors of the
Company and as President and Chief Executive Officer of the Company), the
Company and each of its affiliates effective
immediately. Accordingly, the Company and Executive acknowledge that
any contractual (except as expressly provided herein) or employment relationship
between them terminates immediately, and that they have no further contractual
relationship (except as may arise out of or be expressly provided for in this
Agreement) or employment relationship hereafter.
2. Severance: The
Company shall pay to or provide for the Executive the following:
A. A
lump sum cash payment, payable within ten (10) business days after the
Separation Date, equal to the sum of (i) any accrued but unpaid Base Salary as
of the Separation Date (including any accrued but unpaid personal time off),
plus the Base Salary that the Executive would have earned had he remained
employed through July 31, 2009, (ii) the Earned/Unpaid Annual Bonus, if any, and
(iii) an amount equal to seven times Executive’s current Base Salary of
$500,000, less such federal, state and local taxes as may be required to be
withheld pursuant to any applicable law or regulation. A summary of
payments to be made to the Executive (other than any payments other than accrued
but unpaid personal time off required by clause (i) of this Section 2(A)) is
annexed as Exhibit 1.
B. Continued
participation in the Company’s group health insurance plans for Executive and
Executive’s dependents, including the group medical, vision and dental plans, at
the Company’s expense until the earlier of (i) the expiration of three (3) years
from August 1, 2009, or (ii) Executive’s eligibility for participation in the
substantially comparable group health plan of a subsequent employer or
entity. For the avoidance of doubt, in the event that Executive shall
become eligible to participate in a subsequent employer’s or entity’s
substantially comparable benefits plan(s) offering one or more, but not all, of
the benefits herein described (for example, group medical, but not vision and
dental), Executive shall be entitled to continue to receive from the Company the
benefits that are not offered, and/or for which he is not eligible, under the
subsequent employer’s or entity’s benefits plan(s) until the earliest of the
expiration of three (3) years from August 1, 2009 or he becomes so eligible (if
at all).
Except as
set forth above in this Section 2 and below in Section 3, and except
for Executive’s vested benefits under the Company’s 401(k) plan: (i) Executive
will not be entitled to any other benefits in connection with the termination of
his employment, and (ii) Executive represents and agrees that he has received
all compensation and other benefits which he is due from the Company and its
affiliates and no other compensation or benefits are or will be due to Executive
from the Company or any of its affiliates.
3. Stock
Options: As of the date of Executive’s termination of
employment, any remaining unvested stock options or restricted stock received
during the term of his employment, shall automatically be deemed vested and
remain exercisable for the duration of the term of such award, notwithstanding
any other provision of this Agreement or applicable plans.
4. Company
Property: Executive warrants and represents that he has
returned any and all property belonging to the Company, provided, however, the
Company agrees to allow Executive to keep his Blackberry device and laptop
computer. In connection with and conditioned upon the retention of
these devices, Executive shall agree in writing to delete permanently or return
any and all Company confidential information stored thereon. The
Company and Executive further agree that Executive may use the Company’s e-mail
system through August 31, 2009 for professional and reasonable
transition. Effective September 1, 2009 through December 31, 2009,
the Company will set up auto-forwarding on his email account to redirect
incoming e-mail to an address provided by Executive. Executive may
also retain his personal cell phone number following his separation from the
Company, and the Company shall provide such reasonable assistance as is
necessary in order to cause the transfer of such number to
Executive.
5. No
Admission of Liability: The Company expressly denies any
violation of any of its policies, procedures, state or federal laws or
regulations. Accordingly, while this Agreement resolves all issues
between Executive and the Company relating to alleged violation of the Company’s
policies or procedures or any state or federal law or regulation, if any, this
Agreement does not constitute an adjudication or finding on the merits and it is
not, and shall not be construed as, an admission by the Company of any violation
of its policies, procedures, state or federal laws or
regulations. Moreover, neither this Agreement nor anything in this
Agreement shall be construed to be or shall be admissible in any proceeding as
evidence of or an admission by the Company of any violation of its policies,
procedures, state or federal laws or regulations. This Agreement may
be introduced, however, in any proceeding to enforce the
Agreement. Such introduction shall be pursuant to an order protecting
its confidentiality. The Company acknowledges that, as of the
Separation Date, the Company is not aware of any violation by Executive during
the course of his employment by the Company of any of its policies, procedures,
rules of governance, corporate compliance plans or similar corporate governing
documents or any state or federal laws or regulations.
6. Release:
BY
EXECUTIVE: Except for those obligations created by or arising out of
this Agreement, Executive, on behalf of himself, his descendants, dependents,
heirs, executors, administrators, assigns, and successors, and each of them,
hereby acknowledges the full and complete satisfaction by the Company of its
obligations under the Employment Agreement, and hereby releases and discharges
and covenants not to xxx the Company, its divisions, affiliated corporations,
past and present, and each of them, as well as its and their directors,
officers, managers, shareholders, representatives, assignees, successors, agents
and executives, past and present, and each of them (individually and
collectively, the “Releasees”). This release applies to any and all
claims, wages, agreements, obligations, demands, rights, causes of action and
liabilities of whatever kind or nature in law, equity or otherwise, whether now
known or unknown, suspected or unsuspected (collectively “Claims”), arising out
of or in any way connected with Executive’s employment relationship with, or his
resignation, separation or termination from, the Company, including, without
limitation, any Claims for severance pay, bonus or similar benefit, sick leave,
personal time off, retirement, vacation pay, holiday pay, life insurance, health
or medical insurance or any other non-ERISA fringe benefit, workers’
compensation or disability, or any other Claims resulting from any act or
omission by or on the part of Releasees committed or omitted prior to the
Separation Date, including, without limitation, any Claims under Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the New Jersey antidiscrimination laws, or any
other federal, state or local law, regulation or ordinance.
BY THE
COMPANY: Except for (i) those obligations created by or arising out of this
Agreement or (ii) any and all claims, agreements, obligations, demands, rights,
causes of action and liabilities arising out of Executive’s intentional
misconduct, the Company, on behalf of itself and on behalf of the Company’s
divisions, affiliated corporations, past and present, and each of them, as well
as on behalf of its and their directors, officers, managers, shareholders,
representatives, assignees, successors, agents and executives, past and present,
and each of them, hereby acknowledges the full and complete satisfaction by
Executive of his obligations under the Employment Agreement, and hereby releases
and discharges and covenants not to xxx Executive, his descendants, dependents,
heirs, executors, administrators, assigns, and successors, and each of
them. This release applies to any and all claims, agreements,
obligations, demands, rights, causes of action and liabilities of whatever kind
or nature, in law, equity or otherwise, whether now known or unknown, suspected
or unsuspected, arising out of or in any way connected with any acts or
omissions by Executive engaged in during the course of Executive’s employment by
the Company and/or arising out of or in any way connected with Executive’s
employment relationship with, or his resignation, separation or termination
from, the Company.
7. Bar to
Claims: It is a further condition of the consideration hereof
and is the intention of both parties in executing this instrument that the same
shall be effective as a bar as to each and every claim, demand and cause of
action hereinabove specified and, in furtherance of this intention, Executive
hereby expressly consents that this Agreement shall be given full force and
effect according to each and all of its express terms and conditions, including
those relating to unknown and unsuspected claims, demands and causes of actions,
if any, as well as those relating to any other claims, demands and causes of
actions hereinabove specified. Nothing contained in this Agreement
shall be interpreted to prevent any governmental agency from pursuing any matter
which it deems appropriate or to prevent Executive from filing a charge or
administrative complaint with any governmental administrative agency; provided,
however, that any and all remedies available on behalf of Executive are covered
by the releases in this Agreement.
8. Unknown
Claims: It is the intention of Executive in executing this
instrument that the same shall be effective as a bar to each and every claim,
demand and cause of action hereinabove specified. In furtherance of
this intention, Executive hereby expressly waives any and all rights and
benefits conferred upon him by the provisions of SECTION 1542 OF THE CALIFORNIA
CIVIL CODE and expressly consents that this Agreement shall be given full force
and effect according to each and all of its express terms and provisions,
including those related to unknown and unsuspected claims, demands and causes of
action, if any, as well as those relating to any other claims, demands and
causes of action hereinabove specified. SECTION 1542
provides:
“A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR.”
Executive
acknowledges that he may hereafter discover claims or facts in addition to or
different from those which he now knows or believes to exist with respect to the
subject matter of this Agreement and which, if known or suspected at the time of
executing this Agreement, may have materially affected this
Agreement. Nevertheless, Executive hereby waives any right, claim or
cause of action that might arise as a result of such different or additional
claims or facts. Executive acknowledges that he understands the
significance and consequence of such release and such specific waiver of SECTION
1542.
9. ADEA
Waiver: Executive expressly acknowledges and agrees that, by
entering into this Agreement, he is waiving any and all rights or claims that he
may have arising under the Age Discrimination in Employment Act of 1967, as
amended, which have arisen on or before the Separation Date. Executive further
expressly acknowledges and agrees that:
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A.
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In
return for this Agreement he will receive compensation beyond that which
he already was entitled to receive before entering into this
Agreement;
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B.
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He
is hereby advised in writing by this Agreement to consult with an attorney
before signing this Agreement;
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C.
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He
was given a copy of this Agreement on July 20, 2009, and informed that he
had 21 days within which to consider the Agreement; however, Executive may
waive the 21-day period; and
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D.
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He
was informed that he has seven (7) days following the Separation Date in
which to revoke the Agreement.
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Any
revocation pursuant to clause D above should be in writing, expressly reference
the Agreement, and be addressed and delivered as provided in Section 23 so that
it is received prior to the expiration of such 7-day period.
10. Non-Disparagement:
Executive and the Company agree that they will not make any defamatory or
disparaging oral or written comments or statements (hereinafter, “Disparaging
Comments”) concerning the other, his or its business, reputation, executives, or
past or present directors or affiliates or subsidiaries. The parties
agree that this non-disparagement clause is a material term of the Agreement
and, if breached, damages would be difficult to
ascertain. Accordingly, either party found in breach of this
provision shall pay to the non-breaching party liquidated damages in the amount
of $25,000.00 per occurrence, plus reasonable attorneys’ fees incurred to
enforce this provision. For purposes of this provision, “Disparaging
Comments” is defined to include any verbal, electronic, or written statement
which would affirmatively discredit, belittle, or ridicule Executive or the
Company, as the case may be, either personally or professionally.
11. Severability: If
any provision of this Agreement or its application is held invalid, the
invalidity shall not affect other provisions or applications of the Agreement
which can be given effect without the invalid provisions or application and,
therefore, the provisions of this Agreement are declared to be
severable.
12. Restrictive
Covenants: In accordance with the terms of his Employment
Agreement, for a period of two years following the Separation Date, the
Executive will continue to be bound by the provisions of paragraph 14, Restrictive Covenants, in the
Employment Agreement.
13. Confidentiality:
In accordance with paragraph 15, Confidentiality, of the
Executive’s Employment Agreement, Executive will not at any time, unless
compelled by lawful process, disclose or use for his own benefit or purposes or
the benefit or purposes of any other person, firm, partnership, joint venture,
association, corporation or other business organization, entity or enterprise
other than the Company and any of its subsidiaries or affiliates, any trade
secrets, or other confidential data or information relating to customers,
development programs, costs, marketing, trading, investment, sales activities,
promotion, credit and financial data, manufacturing processes, financing
methods, plans, or the business and affairs of the Company generally, or of any
subsidiary or affiliate of the Company; provided that the
foregoing shall not apply to information which is not unique to the Company or
which is generally known to the industry or the public other than as a result of
Executive’s breach of this covenant. Executive agrees that upon
termination of his employment with the Company for any reason, he will return to
the Company immediately all memoranda, books, papers, plans, information,
letters and other data, and all copies thereof or therefrom, in any way relating
to the business of the Company and its affiliates, except that he may retain
personal notes, notebooks and diaries that do not contain confidential
information of the type described in the preceding
sentence. Executive further agrees that he will not retain or use for
his account at any time any trade names, trademark or other proprietary business
designation used or owned in connection with the business of the Company or its
affiliates.
14. Entire
Agreement: This Agreement embodies the entire agreement of the
parties hereto respecting the matters within its scope. This
Agreement supersedes all prior agreements of the parties hereto on the subject
matter hereof. Any prior negotiations, correspondence, agreements,
proposals, or understandings relating to the subject matter hereof shall be
deemed to be merged into this Agreement and to the extent inconsistent herewith,
such negotiations, correspondence, agreements, proposals, or understandings
shall be deemed to be of no force or effect. There are no
representations, warranties, or agreements, whether express or implied, or oral
or written, with respect to the subject matter hereof, except as set forth
herein. Notwithstanding the foregoing, this Agreement is not intended
to modify or extinguish any rights or obligations contained in (i) any stock
option, restricted stock or other equity or equity-based award agreement between
Executive and the Company that was executed prior to the Separation Date or (ii)
any indemnification agreement between Executive and the Company prior to
Separation Date.
15. No
Assignment: Executive warrants and represents that he has not
heretofore assigned or transferred to any person not a party to this Agreement
any released matter or any part or portion thereof and Executive shall defend,
indemnify and hold harmless the Company from and against any claim based on or
in connection with or arising out of any such assignment or transfer made,
purported or claimed.
16. Non-Binding
Mediation: Except as provided otherwise herein, before
commencing any legal proceeding in any court of law, any controversy arising out
of or relating to this Agreement, its enforcement or interpretation, or because
of an alleged breach, default, or misrepresentation in connection with any of
its provisions, or any other controversy arising out of Executive’s employment,
including, but not limited to, any state or federal statutory claims, shall
first be submitted to non-binding mediation in Orange County, California, before
a sole mediator selected from Judicial Arbitration and Mediation Services, Inc.,
Orange County, California, or its successor (“JAMS”), or if JAMS is no longer
able to supply the mediator, such mediator shall be selected from the American
Arbitration Association, provided, however, that provisional injunctive relief
may, but need not, be sought by either party to this Agreement in a court of law
while mediation proceedings are pending.
17. Telecopied
Signatures: In order to expedite the execution of this
Agreement, telecopied signatures may be used in place of original signatures on
this Agreement or any document delivered pursuant hereto. Executive
and the Company intend to be bound by the signatures on the telecopied document,
are aware that the other party will rely on the telecopied signatures, and
hereby waive any defenses to the enforcement of the terms of this Agreement
based on the use of and reliance upon telecopied
signatures. Following any facsimile transmittal, the respective party
shall deliver the original instrument by reputable overnight courier in
accordance with the notice provisions of this Agreement.
18. Governing
Law: The rights and obligations of the parties hereunder shall
be construed and enforced in accordance with, and governed by, the laws of the
State of California without regard to principles of conflict of
laws.
19. Drafting
of Agreement: Each party has cooperated in the drafting and
preparation of this Agreement. Hence, this Agreement shall not be
construed against any party on the basis that the party was the drafter, and
Executive waives the benefits of any statutory or other presumption to the
contrary.
20. Advice of
Counsel: In entering this Agreement, the parties represent
that they have relied upon (or been given an opportunity to rely upon) the
advice of their attorneys, who are attorneys of their own choice, and that the
terms of this Agreement have been completely read and explained to them by their
attorneys (or they have chosen to forgo such advice and explanation), and that
those terms are fully understood and voluntarily accepted by them.
21. Waiver of
Breach: No waiver of any breach of any term or provision of
this Agreement shall be construed to be, or shall be, a waiver of any other
breach of this Agreement. No waiver shall be binding unless in
writing and signed by the party waiving the breach.
22. Supplementary
Documents: All parties agree to cooperate fully and to execute
any and all supplementary documents and to take all additional actions that may
be necessary or appropriate to give full force to the basic terms and intent of
this Agreement and which are not inconsistent with its terms.
23. Notice: Any
notice required to be given to the Company pursuant to this Agreement, shall be
in writing and shall be deemed to have been sufficiently given either when
served personally or via facsimile and addressed to the appropriate
party. Any notice required to be given to Executive pursuant to this
Agreement shall be in writing and shall be deemed to have been sufficiently
given when served personally, by first class mail or via facsimile.
Notices
to the Company shall be effective only when addressed to:
Xxxx X.
Xxxxxxx, Chief Legal Officer
Resources
Connection, Inc.
00000
Xxxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxx 00000
With a
copy to:
Xxxxx X. Xxxxxxx, Esq.
O’Melveny & Xxxxx, LLP
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx
0000
Xxxxxxx Xxxxx, XX 00000
Notices
to Executive shall be effective only when addressed to:
Xxxxxx X. Xxxxxxxxxxx
000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx Xxxxx, XX 00000
With a
copy to:
Xxxxxx X. Xxxx, Esq.
Xxxxxxxxxx Xxxxxxxx, PC
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
24. Headings
Not Controlling: Headings are used only for ease of reference
and are not controlling.
The
undersigned have read and understand the consequences of this Agreement and
voluntarily sign it. The undersigned declare under penalty of perjury
that the foregoing is true and correct.
EXECUTED
on the Separation Date in Irvine, Orange County, California.
_____/s_____________________
Xxxx X.
Xxxxxxx
Chief
Legal Officer
For
Resources Connection, Inc.
EXECUTED
on the Separation Date in Franklin Lakes, Bergen County, New
Jersey.
_________/s__________________
Xxxxxx X.
Xxxxxxxxxxx
ACKNOWLEDGMENT AND
WAIVER
I, Xxxxxx
X. Xxxxxxxxxxx, hereby acknowledge that I was given 21 days to consider the
foregoing Agreement and voluntarily chose to sign the Agreement prior to the
expiration of the 21-day period.
I declare
under penalty of perjury under applicable law that the foregoing is true and
correct.
EXECUTED
this 22nd day of
July, 2009, at Bergen County, New Jersey.
___________/s_______________
Xxxxxx X.
Xxxxxxxxxxx
Exhibit
1
EXHIBIT
1
CASH PAYOUT
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Base
Salary Payout:
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$3,500,000,
less applicable withholding taxes
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(Computed
on a Base Salary of $500,000)
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FY
2009 Bonus Award:
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$281,250
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Accrued
& Unpaid Time Off:
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$
53,845.12
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TOTAL
CASH PAYOUT:
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$3,835,095.12,
less applicable withholding
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ACCERATION OF EQUITY
AWARDS
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Grant
No.
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Award
Amount
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Price
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Term
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G0006090
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150,000
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$20.46
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June
2, 2018
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G0006372
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90,000
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$14.48
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February
19,
2019
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