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EXHIBIT 10.49
PROVANT, Inc.
00 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
March 31, 2000
Xxxx X. Xxxx
0000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Dear Xxxx:
This letter agreement (the "Agreement") among you (the "Employee"),
PROVANT, Inc. ("PROVANT") and PROVANT's subsidiary, XXXX Learning, Inc. (f/k/a
Learning Systems Sciences, Inc.) (the "Company"), is intended to set forth the
arrangements with respect to the termination of the Employee's employment with
the Company.
1. The Employee hereby resigns effective March 31, 2000 (the
"Termination Date") as an employee and officer of the Company and from any other
position that the Employee may hold with PROVANT or any of its subsidiaries
(PROVANT and its subsidiaries are collectively referred to herein as the
"PROVANT Group"). The Employee, the Company and PROVANT (collectively referred
to as the "Parties") agree that the Employment Agreement dated as of May 4, 1998
between the Employee and the Company (the "Employment Agreement") is hereby
terminated as of the Termination Date, except for the provisions of Sections 7
through 23, inclusive, of the Employment Agreement which shall remain in full
force and effect. The Employee acknowledges and agrees that he has received
payment in full of all amounts due to the Employee from the PROVANT Group for
accrued wages, benefits (including, without limitation, accrued, unused vacation
leave, earned commissions, and scheduled advances) and any other payments
accrued through the Termination Date or to which the Employee is otherwise
entitled in connection with the Employee's employment with the Company or the
termination of such employment.
2. In consideration for the Employee's execution of and compliance with
this Agreement, the Company agrees to provide the Employee with the "Severance
Benefits" described in the following subparagraphs (a), (b) and (c):
(a) From the Termination Date through October 4, 2001 (the "Payment
Period"), the Company shall pay the Employee installments of the Employee's base
salary at the rate in effect at the Termination Date ($175,000 per year) and on
the same schedule as executives of the Company then receive regular salary
payments, such payments to begin on the Company's first regular payroll date
following the Effective Date of this Agreement (as defined in paragraph 13) (the
"Severance Payments"). The Severance Payments and the Bonus Payment
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March 31, 2000
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(as defined in paragraph 1(b)) shall be subject to all applicable withholding
taxes and similar required or authorized deductions.
(b) On or before August 15, 2000, the Company shall pay the Employee a
one-time payment of $52,500 (the "Bonus Payment") if the Company achieves its
revenue and EBIT (earnings before interest and taxes) targets for the fiscal
year ended June 30, 2000 such that the Executive would have been eligible for
the Bonus Payment had he continued to be employed with the Company.
(c) The Company will offer the Employee the opportunity to continue to
participate in its group medical insurance program (the "Health Plan") pursuant
to the health care continuation provisions of the federal COBRA law. If the
Employee is eligible for COBRA coverage, elects to continue coverage under the
Health Plan pursuant to COBRA and timely makes all required contributions in
full for such coverage and otherwise maintains eligibility for COBRA coverage,
then in consideration of the Employee's execution of and compliance with this
Agreement, the Company agrees to pay the Employee in substantially equal
installments for the Payment Period, or if shorter, the period beginning on the
Effective Date and ending on the date the Employee's right to continue coverage
under the Health Plan pursuant to COBRA expires, an amount equal to the portion
of the premium for health care coverage paid by the Company for similarly
situated active executives of the Company for coverage under the Health Plan.
The Employee hereby authorizes and requests the Company to (i) withhold from the
Severance Payments the Employee's portion of premiums for COBRA coverage under
the Health Plan, and (ii) forward to the Health Plan insurer such withheld
amount and the amounts described in the preceding sentence. The Employee's
eligibility to participate in and receive benefits under the Health Plan shall
remain subject to the terms and conditions of the Health Plan.
The Employee hereby acknowledges and agrees that (i) the foregoing
Severance Benefits are in excess of all other payments, benefits, and things of
value to which the Employee would be entitled if the Employee did not execute
and comply with this Agreement; and (ii) the Severance Benefits shall not be
deemed to be salary or other compensation to the Employee for purposes of any
plans, programs or arrangements maintained or contributed to by the Company to
provide benefits to its employees, directors or officers ("Benefit Plans").
3. The Employee acknowledges that (a) there are no other benefits,
compensation or remuneration of any kind owing to the Employee from the PROVANT
Group, including, without limitation, any accrued vacation or sick pay, other
than the Employee's rights, if any, under COBRA, and (b) if the Employee
hereafter serves as an independent contractor of the Company, then in such
capacity the Employee shall not be entitled to participate in, accrue any
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March 31, 2000
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benefits under, or receive any payments from any Benefit Plans (except as
otherwise expressly provided under the terms of such plans).
4. The Employee agrees that all source code, object code, memoranda,
notes, records, charts, reports, letters and other documents and software made,
compiled, received, held or used by the Employee while employed by the Company,
concerning any phase of the business of the Company or the PROVANT Group, are
the property of the Company or the PROVANT Group, as the case may be, and,
together with all reproductions or abstracts thereof and together with all
Company or PROVANT Group credit cards and keys, have been returned to the
Company.
5. The Employee hereby acknowledges and agrees that this Agreement is
intended to be a complete and final settlement of any and all causes of action
or claims that the Employee has had, now has or may now have, whether known or
unknown against the PROVANT Group or any of the persons or entities specified
below. The Employee hereby, on behalf of the Employee, the Employee's executors,
heirs, administrators, assigns and anyone else claiming by, through or under the
Employee, waives, releases, covenants not to xxx and forever discharges the
PROVANT Group, its predecessors, successors, related corporations, subsidiaries,
divisions and affiliated organizations, and each and all of their present and
former officers, directors, shareholders, representatives, agents, promoters,
employees and attorneys (hereinafter "Releasees"), and each and all of them of,
from and with respect to any and all debts, demands, actions, causes of action,
suits, covenants, contracts, agreements, promises, torts, damages, claims,
demands and liabilities whatsoever of any name and nature, both in law and in
equity (hereinafter "Claims") which the Employee now has, ever had, or may in
the future have against each or any of the Releasees by reason of any matter,
cause or thing whatsoever from the beginning of the world to the Effective Date
of this Agreement (as defined in paragraph 13), including, but not limited to,
any Claims arising out of, based upon or connected with the Employee's
engagement and/or employment by the Company, the compensation, benefits and
working conditions for that employment and/or the termination of that
employment, or the acquisition by PROVANT of Xxxxxx X. Xxxxxxxxx, Ph.D. and
Associates, Inc., a California corporation (d/b/a Learning Systems Sciences),
pursuant to the Agreement and Plan of Merger dated as of May 4, 1998 among
PROVANT, the Company, Xxxxxx X. Xxxxxxxxx, Ph.D. and Associates, Inc., a
California corporation (d/b/a Learning Systems Sciences), the Employee and
certain other individuals, or any transactions related thereto and any Claims
that may exist under federal, state or local laws, including, but not limited
to, any Claims based on race, disability, color, national origin, marital
status, age or sex. The foregoing waiver and release includes, without
limitation, a waiver and release of any rights and Claims that Employee may have
under Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the
Americans with Disabilities Act, the Family and Medical Leave Act,
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the Employee Retirement Income Security Act of 1974, the Worker Adjustment and
Retraining Notification Act, the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. Section 621 et seq. (the "ADEA")(except that this
Agreement does not waive or release any rights or claims under the ADEA that may
arise after the execution of this Agreement or otherwise bar the Employee from
challenging this Agreement's compliance with the provisions of 29 U.S.C. Section
627(f)(1)), the Fair Labor Standards Act, the state and local laws of
Massachusetts and California.
6. The Company represents and warrants that as of the date hereof, the
Company knows of no claims or causes of action of whatever kind or nature which
the PROVANT Group has or may have against the Employee which arose on or before
the date hereof, including, but not limited to, any claims for relief, whether
injunctive, declaratory, statutory, monetary or otherwise arising under any
federal, state or local law, ordinance, regulation or order arising from or in
connection with the Employee's employment by the Company whether based on
contract, tort including negligence, or otherwise.
7. The Employee hereby agrees not to disclose to any person (except the
Employee's spouse, attorney or financial advisor), organization or agency the
terms of this Agreement except as required by law and then only after notice is
given by the Employee or the Employee's attorney to the Company such that, where
feasible, the Company will have a reasonable prior opportunity to oppose such
disclosure. The Employee also acknowledges and agrees that the restrictions
against disclosure and use of confidential and/or proprietary information set
forth in Section 8 of the Employment Agreement shall survive the Termination
Date and shall remain in full force and effect and shall apply to any
Confidential Information (as defined in the Employment Agreement) obtained by
the Employee during the Payment Period. The Employee further acknowledges and
agrees that the non-competition and non-solicitation restrictions set forth in
Section 7 of the Employment Agreement shall survive the Termination Date and
remain in full force and effect until May 4, 2001. The Employee hereby reaffirms
the Employee's obligations under Sections 7 and 8 of the Employment Agreement.
The Employee further acknowledges and agrees that the non-competition,
non-solicitation and non-disclosure restrictions set forth in the Employee's
Non-Competition and Non-Disclosure Agreement dated May 4, 1998 remain in full
force and effect until May 4, 2003.
8. The Company and the Employee each agree with the other not to discuss
with any person or entity the circumstances surrounding the Employee's
employment with or separation from the Company, except to the extent required by
law. The Employee agrees not to make any adverse remarks whatsoever concerning
the business, operations, strategies, policies, prospects, affairs and financial
condition of the Company. The Company agrees that it will not make any adverse
remarks whatsoever concerning the Employee and that it will instruct its
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March 31, 2000
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officers not to make any adverse remarks whatsoever concerning the Employee. The
Company and the Employee agree that any public disclosure of this Agreement or
of the circumstances of the Employee's departure from the Company shall be
agreed upon by both parties prior to its disclosure, other than disclosure
required by law, including, without limitation, applicable securities laws.
9. It is expressly understood and agreed that by entering into this
Agreement, the Company in no way thereby admits that it unlawfully or wrongfully
discriminated against the Employee due to the Employee's age or status or
otherwise treated the Employee unlawfully.
10. All payments (including, without limitation, the Severance Benefits)
to be made to the Employee and benefits to be made available to the Employee in
accordance with the terms of this Agreement, and the performance by the Company
of its other obligations hereunder, shall be conditioned on the Employee's
continued compliance with the covenants set forth in this Agreement and the
surviving provisions of the Employment Agreement.
11. The Company and the Employee agree that irreparable damages would
occur in the event that Sections 4, 5, 7 and 8 of this Agreement are not
performed by the party obligated thereunder in accordance with their specific
terms. It is accordingly agreed that the other party will be entitled to an
injunction or injunctions to prevent breaches of the party obligated thereunder
and to enforce specifically the terms and provisions hereof in any court having
jurisdiction, this being in addition to any other remedy to which it is entitled
at law or in equity.
12. If any term or provision of this Agreement or the application thereof
to any person, property or circumstance shall to any extent be invalid or
unenforceable, then at the election of the party primarily benefitted by such
term or provision, the remainder of this Agreement or the application of such
term or provision to persons, property or circumstances other than those as to
which it is invalid or unenforceable shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
13. The Employee acknowledges that the Employee has been given a full and
fair opportunity to consider this Agreement. The Employee is hereby advised to
consult with an attorney before signing this Agreement and, by the Employee's
signature below, the Employee acknowledges that the Employee has consulted with
an attorney before signing this Agreement. From the date that the Employee
receives this Agreement, the Employee has forty-five (45) days to consider it.
Should the Employee decide to sign the Agreement, the Employee has seven (7)
days following the signing to revoke the Agreement, and the Agreement will not
become effective and enforceable until that seven (7) day revocation period has
expired (the
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"Effective Date"). Should the Employee either decide not to sign this Agreement
or should the Employee sign it and elect to revoke it during the seven (7) day
revocation period, then this Agreement shall be null and void. No payments or
benefits provided for by this Agreement will be made until after this seven (7)
day period has expired without the Employee revoking this Agreement.
14. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts without regard to conflicts of law
principles. The obligations of the Company and the Employee hereunder shall
inure to the benefit of and be binding on the respective heirs, personal
representatives, successors and assigns of the Parties. This Agreement embodies
the entire agreement and understanding between the Employee and the Company
concerning the Employee's employment and the termination thereof and
incorporates and supersedes all other agreements with regard to the Employee's
employment and the termination thereof. This Agreement shall not affect the
Employee's surviving obligations under the Employment Agreement, the Agreement
and Plan of Merger dated as of May 4, 1998 among PROVANT, the Company, Xxxxxx X.
Xxxxxxxxx, Ph.D. and Associates, Inc., a California corporation (d/b/a Learning
Systems Sciences), the Employee and certain other individuals, the Employee's
Investment Representation Letter to PROVANT dated May 4, 1998 and the Employee's
Non-Competition and Non-Disclosure Agreement dated May 4, 1998.
15. This Agreement may be amended or modified only upon the written
mutual consent of the parties.
16. The Employee hereby acknowledges and agrees that (a) the Employee
understands the provisions of this Agreement, (b) the Employee's acceptance and
execution of this Agreement is knowing and voluntary, (c) the Employee has been
afforded a full and reasonable opportunity of at least forty-five (45) days to
consider its terms and to consult with or seek advice from any attorney or any
other persons of the Employee's choosing, (d) the Employee has been advised by
the Company to consult with an attorney prior to executing this Agreement and
has, in fact, consulted with an attorney and (e) at the same time the Employee
was first presented with this Agreement, the Employee was provided with an
appendix to this Agreement containing information, including job titles and
ages, relating to the group of employees, if any, considered for eligibility to
receive special severance benefits of the type described in this Agreement and
those employees, if any, in the same decisional unit who were not eligible.
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If the foregoing is in accordance with your understanding, please sign
and return the enclosed copy of this letter, whereupon this letter and such copy
will constitute a binding agreement under seal between you and the Company on
the basis set forth above.
Very truly yours,
PROVANT, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
XXXX LEARNING, INC.
By: /s/ Xxxxx Xxxxx
---------------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Acknowledged and Agreed to:
/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
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