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EXHIBIT 10.52
TERMINATION AGREEMENT
This Agreement, by and between X. Xxxxx, Inc., a Massachusetts
corporation together with its subsidiaries and divisions (the "Company") with
its principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
and Xxxxx Xxxxx of Newton, Massachusetts ("Employee") shall be effective as of
the 15th day of March, 1997.
W I T N E S S E T H
WHEREAS, the Employee has been employed by the Company as a senior
executive officer pursuant to an Executive Employment Agreement dated June 12,
1995, as amended by an amendment dated April 5, 1996, (the "Employment
Agreement");
WHEREAS, the parties hereto have agreed that the Employee will resign
from his present positions with the Company upon the terms and conditions
hereafter set forth and that these terms and conditions shall supersede the
terms and conditions of the Employment Agreement.
NOW THEREFORE, in consideration of the agreements contained herein, the
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Effective as of the date hereof, (the "Termination Date"), the
Company and the Employee agree to terminate the Employment Agreement and all
rights and obligations of the parties thereunder, which Employment Agreement
shall be superseded in all respects by the terms and conditions of this
Agreement.
2. Effective as of the date hereof, the Employee shall resign in
writing from any positions he occupies as an executive officer of the Company.
3. (a) During the period beginning on the date hereof and ending on
April 1, 1998 the Employee will continue to receive, as severance pay, his
present base salary on a weekly basis, and shall be entitled to subscribe to the
health and dental programs currently maintained by the Company at the Company's
cost of and pursuant to the provisions of the Consolidated Omnibus Budget
Reconciliation Act.
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(b) During the period beginning on the date hereof and ending
on April 1, 1998, the Employee or his heirs, successors or assigns will receive,
in the aggregate, the sum of two hundred thousand dollars ($200,000) payable in
installments on a weekly basis.
(c) On the date hereof, the Employee will receive from the
Company a lump sum cash payment of one hundred thousand dollars ($100,000)
representing the Company's additional contribution to the costs of the
Employee's relocation from Holmdel, New Jersey to Massachusetts.
The Employee agrees that the Company has the right to deduct from all
such payments set forth in Subparagraphs (a) - (c) above any Federal, state or
local taxes of any kind required by law to be withheld with respect to such
payments. The Employee further agrees that the payments provided for in this
Paragraph 3 shall constitute payment in full of any and all obligations of the
Company to the Employee under the aforementioned Employment Agreement or any
other agreement, whether written or oral, the Employee may have had with the
Company.
4. The Company agrees that through the close of business on May 15,
1997, the Employee shall, at his option, have the right to use the vehicle
leased by the Company for the benefit of the Employee. Through such date, the
Company shall maintain the current level of insurance on the vehicle and
maintain and repair the vehicle in accordance with the Company's fleet leasing
program. The cellular telephone which is currently installed in the vehicle
shall be available for the Employee's use until the vehicle is returned to the
Company. Any charges, however, for use of the telephone including, without
limitation, monthly service fees, peak or off-peak air time charges and
maintenance charges shall be at his sole expense. The Company will arrange for
the billing address for bills in connection with the use of the telephone to be
changed to his home address.
5. Any use of Company credit cards, gasoline cards, telephone cards or
the like shall have terminated effective as of the Resignation Date and the
Employee agrees to return these to the Company immediately.
6. Effective as of the date hereof and thereafter, the Employee agrees
that he will not divulge, use, furnish, disclose or make accessible to anyone
other than the Company or its officers and directors any knowledge or
information with respect to systems, plans, procedures,
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programs, methods, or material relating to the business, products or activities
of the Company or any other confidential, secret or proprietary information
concerning the business, products, properties or activities of the Company
including, without limitation, financial information concerning the Company's
operations and information relating to the Company's customers, suppliers,
vendors, vendees, landlords, licensors or licensees. The provisions of this
paragraph shall not apply to information which is or generally becomes available
to the public other than as a result of breach of this Agreement by the
Employee.
7. The Employee hereby represents, warrants and agrees that as of the
date hereof, he has turned over to the Company or left in its offices all
documents or other materials or things owned by the Company and has not taken
any such documents or materials with him, nor made copies of any such documents
or materials for his own use or the use of any person other than the Company or
persons connected therewith.
8. Effective as of the date hereof and thereafter, the parties agree
that neither will take any action or make any statements with respect to the
Company or the Employee or any persons connected therewith which shall injure
the name or reputation of any such party or which may in any way adversely
affect the ability of such party both to conduct its business and to maintain
harmonious intra-company relations.
9. Effective as of the date hereof and for a period of one year
thereafter, the Employee agrees that neither he nor any new employer will,
without the express written consent of the Company, hire, recruit, solicit or
induce or attempt to induce, any employee or employees of the Company to
terminate their employment with the Company or to become an employee of the
Employee or his new employer.
10. (a) The Employee agrees that he, his representatives, agents,
estates, successors and assigns release and forever discharge the Company and
its affiliates, subsidiaries, predecessors, successors, assigns, and the current
and former officers, directors, shareholders, employees and agents of each of
the foregoing, both individually and in their official capacities with the
Company, from any and all actions, suits, claims, complaints, contracts,
liabilities, agreements, promises, debts and damages, whether existing or
contingent which arise out of the Employee's employment with or his termination
of employment from the Company, except as set forth in this Agreement.
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(b) The Company agrees that it, its successors and assigns
release and forever discharge the Employee, his representatives, agents,
estates, successors and assigns from any and all actions, suits, claims,
complaints, contracts, liabilities, agreements, promises, debts and damages,
whether existing or contingent which arise out of the Employee's employment with
or his termination of employment from the Company, except as set forth in this
Agreement.
11. The Employee and the Company agree that with respect to stock
options granted to the Employee pursuant to the Company's 1985 Amended and
Restated Stock Option Plan or the 1992 Equity Incentive Plan (the "Option
Plans"), any such options to purchase shares of the Company's common stock which
are currently exercisable on the date hereof shall remain exercisable through
June 15, 1997; and any such options to purchase shares which may become
exercisable subsequent to the date hereof shall be forfeited and terminated.
Effective as of the close of business on June 15, 1997 the exercisability of any
stock options granted to the Employee shall terminate and such options shall be
forfeited to the Company.
12. The Company and the Employee acknowledge and agree that a breach by
either party of the provisions of this Agreement will cause the other party
irreparable injury and damage and, therefore, the Company and the Employee
expressly agree that each party shall be entitled to injunctive and/or equitable
relief in any court of competent jurisdiction to prevent or otherwise restrain a
breach of this Agreement for the purpose of enforcing this Agreement or any part
hereof.
13. This Agreement contains the entire contract between the parties,
supersedes all prior agreements, written or oral, and may not be changed except
in writing duly executed by the parties in the same manner as this Agreement.
14. This Agreement is being executed and delivered in the Commonwealth
of Massachusetts and this Agreement shall be construed under and governed by the
laws of such Commonwealth.
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IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the day and year first written above.
X. XXXXX, INC.
By: /s/Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
/s/ Xxxxx X. Xxxxx
Xxxxx Xxxxx
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