RESTATED SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS
Exhibit 10.2
RESTATED
SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS
This Restated Settlement Agreement and
Mutual Release of Claims ("Agreement") hereby restates and replaces in its
entirety the Settlement Agreement and Mutual Release of Claims dated February
24, 2009, between Xxxxxx X. Xxxxxx and Standard Pacific Corp. ("SPC" or
"Company").
1. Xx.
Xxxxxx has been employed at SPC as Executive Vice President - Finance
and
Chief
Financial Officer. A dispute concerning Xx.
Xxxxxx' employment has arisen that includes, but is not limited to,
the following allegations (the "Dispute"):
a. Alleged
breach of agreement concerning the terms and conditions of Xx. Xxxxxx'
employment as provided by certain oral representations made by the Company's
prior CEO, and by implication through the Company's course of
conduct.
b. Alleged
violation by SPC of the terms and conditions of Xx. Xxxxxx' December 1, 2006
Change in Control Agreement.
c. Alleged
constructive termination of Xx. Xxxxxx and retaliation against him for asserting
rights to which he contends he is legally entitled.
2. In
exchange for the payment specified below, and the other promises contained
herein, Xx. Xxxxxx and SPC agree that the Company shall accept Xx. Xxxxxx'
resignation from SPC and all of its affiliates, effective February 24,
2009.
3. The
purposes of this Agreement are:
a. To
effectuate a final and binding disposition of all claims by Xx. Xxxxxx,
including, but not limited to, any and all claims arising out of or related to
the Dispute, and all damages resulting therefrom, including but not limited to
damages for emotional distress and attorneys' fees; and
b. To
release SPC and its past, present and future officers, directors, shareholders,
owners, parent companies, subsidiaries, divisions, affiliates, joint venturers,
predecessors, successors, assigns, agents, employees, attorneys,
representatives, insurers, reinsurers, the SPC Change in Control Agreement, and
related benefit plans, funds or programs (collectively referred to herein as
"Releasees") from any claims for relief, causes of action, disputes, damages,
costs and liabilities of any nature whatsoever, known or unknown, that Xx.
Xxxxxx has or may have against SPC (collectively referred to herein as
"Claims").
c. To
release Xx. Xxxxxx and his agents, representatives and attorneys from any and
all claims for relief, causes of action, disputes, damages, costs and
liabilities of any nature whatsoever, known or unknown, that SPC has or may have
against Xx. Xxxxxx.
4. This
is a compromise settlement of all Claims. This Agreement does not
constitute an admission of liability on the part of any party, nor an admission,
directly or by implication, that any party has violated any law, rule,
regulation, contractual right or any other duty or obligation. This
Agreement is entered into voluntarily by Xx. Xxxxxx and SPC of their own free
will and accord without any coercion or duress whatsoever solely to avoid
further costs, risks and hazards of litigation and to settle all such claims in
a final and binding manner.
5. In
consideration of the mutual promises, covenants and understandings contained
herein, it is hereby agreed:
a. On
August 25, 2009 (the date six (6) months and one (1) day after Xx. Xxxxxx'
separation of employment from SPC), SPC will pay to Xx. Xxxxxx a cash payment in
a single sum, in the amount of two million, four-hundred thousand dollars
($2,400,000.00) (the "Payment"). The Payment shall be broken down as follows:
$571,000 of the Payment shall be payment for Xx. Xxxxxx' 2008 bonus, and the
remaining $1,829,000 of the Payment shall be payment in settlement of Xx.
Xxxxxx' rights under the December 1, 2006 Change in Control Agreement and for
other claims released in this Agreement. Other than as set forth in
this paragraph 5, Xx. Xxxxxx renounces any other claim for wages, compensation,
or other benefits. SPC will issue an IRS W-2 for the amounts paid
under this Agreement. Payment under this Agreement extinguishes all
obligations by SPC under Xx. Xxxxxx' December 1, 2006 Change in Control
Agreement and, except as set forth in this Agreement, any other oral or written
employment or compensation agreements, which are hereby terminated.
b. Xx.
Xxxxxx will submit all claims for reimbursement for any expenses or accrued
benefits owing to him by SPC as an employee of the Company by March 2, 2009. Xx.
Xxxxxx confirms that he has been reimbursed for all such prior claims submitted
to date. SPC agrees that it will cancel (or otherwise transfer from
Xx. Xxxxxx' name) any and all Company credit cards.
c. All
perquisites and employee benefits and Xx. Xxxxxx' participation in all employee
benefit programs of the Company will be terminated on February 24, 2009, except
as set forth below:
(i) Payout
of Accrued Unused Vacation Time. As of February 23, 2009, Xx. Xxxxxx
shall be entitled to receive payment for his 240 hours of accrued unused
vacation. The value is $60,577. This amount is in addition
to any other payments due under this Agreement. The parties agree
that this amount shall be paid minus withholding on or before February 26,
2009.
(ii) Xx.
Xxxxxx will keep his Company-issued Blackberry and may transfer his telephone
number to his own separate account with a service provider, at his own
expense.
(iii) COBRA/Cal-COBRA
Payments. The Company shall reimburse Xx. Xxxxxx for his monthly
COBRA/Cal-COBRA payments for himself and his covered and eligible dependents for
a period of twenty-four (24) months following February 24, 2009, provided he
exercises his right to continue his insurance pursuant to COBRA/Cal-COBRA. If
Xx. Xxxxxx obtains employment from a company that affords health insurance,
SPC's obligation to reimburse ongoing COBRA/Cal-COBRA payments shall immediately
cease. The reimbursements shall only be for the cost of medical,
vision and dental insurance premiums, and shall not include costs for life
insurance or any other programs. Xx. Xxxxxx has received notice of
his rights to benefits under COBRA/Cal-COBRA, and notice of options regarding
distributions of his account balance in the Standard Pacific Retirement and
Savings Plan, receipt of which notice is hereby acknowledged.
(iv) Xx.
Xxxxxx shall be entitled to his vested rights in the Company's 401(k)
plan.
(v) Xx.
Xxxxxx shall have no right to his unvested stock options. He shall have ninety
(90) days from February 24, 2009 to exercise any vested stock
options.
(vi) SPC
will pay for the continuation of Xx. Xxxxxx’ AYCO financial planning benefit
through June 30, 2009.
d. Xx.
Xxxxxx agrees that the payments set forth herein constitute the entire amount of
consideration provided to him under this Agreement and that he is not entitled
to and will not seek any further compensation of any kind, either monetary or
otherwise, for any other claimed wage, benefit, damage, costs or attorneys' fees
from the Releasees.
6. a. SPC,
on behalf of itself, its agents, subsidiaries, attorneys, successors in
interest, subrogees, subrogors, heirs, executors, administrators and assigns,
hereby irrevocably and unconditionally releases, acquits and forever discharges
Xx. Xxxxxx and his agents, representatives and attorneys, from all claims
(including any claim by stockholders on behalf of the Company in the form of a
derivative suit), debts, liabilities, demands, obligations, promises, acts,
agreements, costs, and expenses (including, but not limited to, attorney's
fees), damages, injuries, actions and causes of action, of whatever kind or
nature, whether legal or equitable, known or unknown, suspected or unsuspected,
contingent or fixed, based upon, arising out of, appertaining to, or in
connection with any matter, event or circumstance occurring or arising on or
prior to the date of the execution of this Agreement, including, but not limited
to, any claims or causes of action related in any manner to Xx. Xxxxxx'
employment with SPC.
b. The
parties hereby waive all rights under section 1542 of the California Civil Code
with respect to the Releasees, which section the parties acknowledge have been
fully explained to them by their attorneys and which they fully
understand. Section 1542 provides as follows:
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.
Notwithstanding
the provisions of Section 1542 of the California Civil Code, the parties
hereby irrevocably and unconditionally release and forever discharge each other
and all of the Releasees from any and all charges, complaints, claims, and
liabilities of any kind or nature whatsoever, known or unknown, suspected or
unsuspected, which they at any time heretofore had or claimed to have had or
which they may have or claim to have regarding events that have occurred as of
the date of this Agreement.
Xx.
Xxxxxx agrees that the consideration in this Agreement includes consideration
for the release of any claim of age discrimination under the Age Discrimination
in Employment Act of 1967 (29 U.S.C. §§ 621-634) (the "ADEA").
(i) Xx.
Xxxxxx acknowledges that SPC has advised him that he may consult with an
attorney of his choosing prior to signing this Agreement and that he has no less
than twenty-one (21) days during which to consider the provisions of this
Agreement, although he may sign and return it sooner.
(ii) Xx.
Xxxxxx has carefully read and fully understands all of the provisions of this
Agreement, which is written in a manner that he clearly
understands.
(iii) Xx.
Xxxxxx is, through this Agreement, releasing the Releasees from any and all
claims he may have against the Releasees arising before the execution of this
Agreement.
(iv) Xx.
Xxxxxx knowingly and voluntarily agrees to all of the terms in this
Agreement.
(v) Xx.
Xxxxxx knowingly and voluntarily intends to be legally bound by this
Agreement.
(vi) Xx.
Xxxxxx understands that he has a period of seven (7) calendar days after the
date that he signs this Agreement to revoke this Agreement by having his legal
counsel deliver a written notification in person, by messenger or by facsimile
addressed to SPC c/o Xxxxx Xxxxx, Littler Xxxxxxxxx PC, 0000 Xxxxxxx Xxxx Xxxx,
0xx
Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, fax no. 000.000.0000.
7. Non-Disparagement
and Confidentiality Agreement
a. Xx.
Xxxxxx will not disparage the Company, its officers, directors, employees,
agents, subsidiaries, or affiliates, or publish, republish, comment upon, or
otherwise disseminate any comments suggesting or otherwise accusing the Company
or its agents or employees of any act of discrimination, or
misconduct. Nothing in this provision shall be construed to prevent
Xx. Xxxxxx from giving truthful testimony pursuant to a valid subpoena or other
judicial process. Xx. Xxxxxx agrees to cooperate in the pending legal
claims against Standard Pacific involving Xxxx Xxxxxxxxx and Xxxxxxx Xxxxxxxxxxx
by working with counsel to prepare for his deposition, if necessary, providing
testimony, and responding to questions from SPC's counsel.
b. SPC
agrees that the members of its Board of Directors and Executive Officers (as
such term is defined for Section 16 purposes under the Securities Exchange Act
of 1934) will not disparage Xx. Xxxxxx to third parties. Nothing in
this provision shall be construed to prevent any person from giving truthful
testimony pursuant to a valid subpoena or other judicial process.
c. Xx.
Xxxxxx and his attorneys will keep this Agreement and its amounts and terms
confidential. However, Xx. Xxxxxx and his attorneys may disclose this Agreement
and its terms in their tax returns and to their respective accountants and
attorneys and Xx. Xxxxxx' spouse. SPC shall be obligated to respond
to inquiries from prospective employers only by stating Xx. Xxxxxx' dates of
employment, and last position held.
8. Xx.
Xxxxxx represents that he has not relied upon any advice whatsoever from SPC or
its attorneys, agents, employees or representatives as to the taxability,
whether pursuant to federal, state or local income tax statutes or regulations
or otherwise, of the settlement payment made hereunder. Xx. Xxxxxx is
solely responsible for his own tax obligations or consequences arising from or
relating to the payment of any settlement monies.
9. This
Agreement is binding upon and inures to the benefit of the respective heirs,
successors, assigns, personal representatives, executors and administrators of
Xx. Xxxxxx and SPC.
10. Xx.
Xxxxxx warrants and represents that he has not assigned or transferred any
claims in whole or in part to any other person or entity, and that he has
pending no complaints, charges, lawsuits or claims for benefits against SPC or
against (1) any current or former employee of SPC; (2) any affiliates or related
entities of SPC; or (3) the employees of the Releasees, with any governmental
agency or any court. Xx. Xxxxxx represents that he will not file or
refile any complaint, charge, lawsuit, or claim for benefits (other than for
unemployment benefits) against any of these entities or persons at any time
hereafter for any act or event occurring prior to the date of this Release, and
that if any agency or court assumes jurisdiction of any complaint, charge or
lawsuit against any of these entities or persons on behalf of any party, he will
request such agency or court to withdraw from the matter; provided, however,
this shall not limit any party from filing a lawsuit for the sole purpose of
enforcing its rights under this Release. Nothing in this Agreement
shall be construed to prohibit Xx. Xxxxxx from filing a charge or complaint,
including a challenge to the validity of this Agreement, with the Equal
Employment Opportunity Commission ("EEOC") or participating in any investigation
or proceeding conducted by the EEOC. This release is, however,
intended to be construed to the broadest extent possible by law, and the Company
reserves any and all rights to assert this release to the fullest extent allowed
by law, including, but not limited to, before the EEOC.
11. Xx.
Xxxxxx and SPC agree that this Agreement satisfies and extinguishes any and all
claims concerning attorneys' fees and costs incurred in connection with the
Dispute and this settlement.
12. This
Agreement shall not eliminate, limit or modify any contractual, common law or
statutory duty or obligation by SPC to indemnify Xx. Xxxxxx from third party
claims arising out of his employment; nor shall it eliminate, limit or modify,
any rights he may have independent of this Agreement under any of the Company's
insurance policies based on his employment through February 24,
2009. This Agreement shall not eliminate, limit or modify any
of the terms of the Indemnification Agreement between Xx. Xxxxxx and the Company
dated August 14, 1991, which shall remain in full force and effect.
13. This
Agreement shall be interpreted in accordance with the plain meaning of its terms
and not strictly for or against either of the parties. This Agreement
is entered into in California, shall be enforceable in California, and shall be
governed by the laws of the State of California. This Agreement may
be entered into in counterparts, by fax, and in electronic format (including
email transmittal by PDF or other electronic means).
14. If
any terms or provisions of this Agreement are determined to be invalid or
unenforceable by a court of law of competent jurisdiction, the parties hereto
agree that such a determination will not affect the validity or enforceability
of the remaining terms and provisions of this Agreement, which will remain in
full force and effect.
15. The
parties agree that any dispute regarding the application, interpretation or
breach of this Agreement (including, but not limited to, any misrepresentation
made herein) will be subject to final and binding arbitration before
JAMS/Endispute of Orange County, California. Attorneys' fees, costs
and damages (where appropriate) shall be awarded to the prevailing party in any
dispute, and any resolution, opinion or order of JAMS/Endispute may be entered
as a judgment of a court of competent jurisdiction. This Agreement
shall be admissible in any proceeding to enforce its terms.
16. This
instrument contains the entire agreement between the parties and supersedes any
previous negotiations, agreements or understandings of any kind relating to the
subject matter hereof. Any oral representations or modifications
concerning this instrument will be of no force or effect. Any
representation not expressly contained in this Agreement was not material to any
party's decision to enter into this Agreement. This Agreement can be
modified only in the form of a writing signed by the parties hereto and
specifically identified as an amendment to this Agreement.
17. Having
read the foregoing, having fully understood and agreed to the terms and
provisions of this Agreement, having been advised by independent legal counsel
and intending to be bound hereby, the parties voluntarily and of their own free
will execute this Agreement as follows:
PLEASE
READ CAREFULLY. THIS SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
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DATED:
February 27, 2009
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/s/ Xxxxxx X. Xxxxxx
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XXXXXX
X. XXXXXX
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Approved
as form:
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XXXXXXX
X. XXXXXXXXX, ESQ.
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DATED:
February 27, 2009
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By: /s/ Xxxxxxx X.
Xxxxxxxxx
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Attorneys
for Xx. Xxxxxx
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STANDARD
PACIFIC CORP.
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DATED:
February 27, 2009
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By: /s/ Xxxxx X. Xxxxxxx
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Authorized
Representative
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Approved
as form:
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XXXXX
XXXXX, ESQ.
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DATED:
February 27, 2009
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By: /s/ Xxxxx Xxxxx
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Attorneys
for Standard Pacific Corp.
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