Exhibit 99.01
SEPARATION AGREEMENT AND GENERAL RELEASES
This Separation Agreement and General Releases (the "Agreement") is
dated as of September 7, 2006, by and between Del Global Technologies Corp., a
New York corporation (who along with its subsidiaries is referred to herein as
the "Company"), and Xxxx X. Xxxx ("Xxxx").
WHEREAS, this Agreement governs the terms of Xxxx'x separation from the
Company and the Company's financial and other obligations to Xxxx.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. TERMINATION DATE. Xxxx and the Company agree that his last day of
employment with the Company will be the first business day following the filing
by the Company with the U.S. Securities and Exchange Commission of its Annual
Report on Form 10-K for the fiscal year ending July 29, 2006 but in no event
later than November 30, 2006 unless mutually agreed in writing between the
parties (the "Termination Date"). Xxxx understands and agrees that, as of the
Termination Date, he will no longer be authorized to incur any expenses,
obligations, or liabilities on behalf of the Company, and agrees that he shall
submit for reimbursement any outstanding expenses incurred with appropriate
documentation for which he seeks reimbursement within four (4) weeks following
the Termination Date. Xxxx further understands and agrees that, as of the
Termination Date, he will no longer be authorized to conduct any business on
behalf of the Company or to hold himself out as an employee, agent or
representative of the Company. Effective on the Termination Date, Xxxx resigns
from any executive positions he holds with the Company and any Company
subsidiaries and/or affiliates including, without limitation, Villa Sistemi
Medicali, S.p.A. It is further understood and agreed that after September 30,
2006, when the lease on the Company's offices in Valhalla, New York terminates,
Xxxx shall work from his home office, except when necessary to travel on Company
business; provided, however, that any such travel shall be reasonable in nature
and scope, Xxxx shall be paid or reimbursed for his reasonable and necessary
travel, lodging, meal and incidental expenses in accordance with Company policy
if required to travel, and Xxxx shall be excused from work when needed to
interview or otherwise engage in activities in pursuit of employment to begin
with another employer following the Termination Date so long as such absence
from work does not interfere with the performance by Xxxx of his duties to the
Company.
2. SEVERANCE BENEFITS AND OTHER PAYMENTS DUE.
(a) Separate and apart from the severance benefits described
below, the Company shall continue to pay Xxxx his full base salary through the
Termination Date at the rate currently in effect, and shall pay Xxxx for his
earned but unused vacation pay for no more than 10 earned but unused vacation
days or $6,505. Such vacation pay shall be paid to Xxxx as required by law on
the next payday following the Termination Date.
(b) The Company will pay Xxxx a severance payment (the
"Severance Payment") equal to $165,000 which is one (1) times Xxxx'x annual base
salary currently in effect. The Severance Payment shall be paid to Xxxx in
pro-rata equal installments pursuant to the Company's standard payroll practices
over a twelve-month period commencing with the first payday following the
Termination Date; provided, however, that in the event the Company sells any of
its assets or the assets of any of its U.S. subsidiaries for cash and such sale
results in net cash proceeds to the Company of at least $5.0 million, then the
Company shall pay to Xxxx any balance outstanding of the Severance Payment
within ten (10) days after the receipt by the Company of such net cash proceeds
from such asset sale.
(c) Xxxx will also be entitled to receive health insurance
coverage for himself and his dependents under the same plan or plans under which
he was covered prior to the Termination Date or substantially similar group
medical plan(s) established by the Company or any one of its subsidiaries
thereafter. Such health insurance coverage shall be paid for by the Company to
the same extent as if Xxxx was still employed by the Company, and Xxxx will be
required to make such payments as he would be required to make if he was still
employed by the Company. This coverage will continue for a period of one (1)
year following the Termination Date.
(d) The Company shall withhold from any amounts payable under
subparagraphs (a) and (b) above all federal, state, city or other taxes required
by applicable law to be withheld by the Company and shall make all required
employer payments for Social Security and Medicare.
(e) In the event that the Company fails to make any of the
payments required by subparagraph (b) above on the date due or within five (5)
business days after a written notice of such failure to pay is provided (the
"Notice Period"), then any and all unpaid amounts due shall accelerate and be
payable to Xxxx. For each day after the date of such Notice Period has expired,
and for every day thereafter that the unpaid amount is not paid in full to Xxxx,
then the total of all unpaid amounts of the Severance Payment shall accelerate
and be payable to Xxxx immediately and all such unpaid amounts shall accrue
interest at the rate of 9% per annum. If payments due have not been made prior
to the time that the Notice Period has expired, then Xxxx may commence a lawsuit
for any and all unpaid amounts required by subparagraph (b) above, including the
amounts accelerated, plus interest on all such amounts, and the Company agrees
to pay the full amount of Xxxx'x reasonable attorneys fees and expenses in such
lawsuit. Further, the Company agrees that in any such lawsuit, the Company will
not assert any affirmative defenses, setoffs, or counterclaims; provided,
however, that nothing shall prohibit the Company from bringing a separate action
against Xxxx for breach of this Agreement or of any other legal obligation that
Xxxx may have to the Company. In any such lawsuit against Xxxx, the party who
substantially prevails in such action shall be entitled to payment from the
other party for all of its or his costs and expenses incurred in such action,
including reasonable attorneys fees.
(f) Xxxx acknowledges and agrees that he is not otherwise due
any other monies from the Company including any unpaid salary, benefits, change
in control payments, or other compensation other than outstanding expenses for
which he will submit for reimbursement as provided in Section 1 hereof, any
unpaid base salary in the current payroll period through the Termination Date,
any unpaid vacation pay as set forth above and any vested amounts under any
employee benefit plan governed by ERISA that have not yet been paid to him
(including group medical benefits). Xxxx understands that he is not entitled to
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any payments from the Company of any kind or nature pursuant to any other
agreement or agreements with the Company other than the payment and benefits
described or referred to within this Agreement. Xxxx further understands that
aside from the foregoing, he is not entitled to and will not receive any further
payment or benefits of any kind from the Company. This is not intended to be a
declination of COBRA coverage or a waiver of any rights under COBRA.
3. RELEASES. In exchange for the consideration provided for in this
Agreement, without any further deed or action, Xxxx irrevocably and
unconditionally releases the Company, its predecessors, parents, subsidiaries,
affiliates, and past, present and future officers, directors, agents,
consultants, employees, representatives, and insurers, as applicable, together
with all successors and assigns of any of the foregoing (collectively, the
"Releasees"), of and from all claims, demands, actions, causes of action, rights
of action, contracts, controversies, covenants, obligations, agreements,
damages, penalties, interest, fees, expenses, costs, remedies, reckonings,
extents, responsibilities, liabilities, suits, and proceedings of whatsoever
kind, nature, or description, direct or indirect, vested or contingent, known or
unknown, suspected or unsuspected, in contract, tort, law, equity, or otherwise,
under the laws of any jurisdiction, that Xxxx or his legal representatives,
successors or assigns, ever had, now has, or hereafter can, shall, or may have,
against the Releasees, as set forth above, jointly or severally, for, upon, or
by reason of any matter, cause, or thing whatsoever from the beginning of the
world through, and including, the date of this Agreement ("Claims"), arising out
of Xxxx'x employment with the Company.
It is understood and agreed that Xxxx hereby expressly waives any and
all laws or statutes, of any jurisdiction whatsoever, which may provide that a
general release does not extend to claims not known or suspected to exist at the
time of executing a release which if known would have materially affected the
decision to give said release. It is expressly intended and agreed that this
Release does in fact extend to such unknown or unsuspected Claims arising out of
Xxxx'x employment with the Company, related to anything which has happened to
the date hereof even if knowledge thereof would have materially affected the
decision to give said release.
Such release includes, but is not limited to, the violation of any
express or implied contract; any federal, state or local laws, restricting an
employer's right to terminate employees, or otherwise regulating employment;
workers compensation, wage and hour, or other employee relations statutes,
executive orders, ordinance, or regulations, including any rights or claims
under Title VII of the Civil Rights Act of 1964, as amended the Civil Rights Act
of 1991, the Americans with Disabilities Act of 1990, the Rehabilitation Act of
1973, the Family and Medical Leave Act of 1993, the Civil Rights Act of 1866,
the Age Discrimination in Employment Act of 1967, the Fair Labor Standards Act,
the WARN Act, or any state or local laws covering the same subject matter; tort
(including, without limitation, negligent conduct, invasion of privacy and
defamation); any federal, state, or local laws providing recourse for
retaliation, wrongful discharge, dismissal or other obligations arising out of
public policy, physical or personal injury, fraud, negligent misrepresentations,
and similar or related claims. The laws referred to in this section include
statutes, regulations, other administrative guidance, and common law doctrines.
Any and all claims and/or disputes arising out of or relating to any of the
foregoing shall be, and are, finally compromised, released and settled.
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Notwithstanding the foregoing, this release does not include Xxxx'x
right to enforce the terms of this Agreement, his rights under COBRA, or his
rights to vested benefits under ERISA or any other statute whereby a party
cannot waive his rights in a private agreement with his employer. Except to
enforce this Agreement or as otherwise provided by law, Xxxx agrees that he will
not pursue, file or assert or permit to be pursued, filed or asserted any civil
action, suit or legal proceeding seeking equitable or monetary relief (nor will
he seek or in any way obtain or accept any such relief in any civil action, suit
or legal proceeding) in connection with any matter concerning his employment
relationship with the Company and/or the termination thereof with respect to all
of the claims released herein arising from the beginning of the world up to and
including the date of execution of this Agreement (whether known or unknown to
him and including any continuing effects of any acts or practices prior to the
date of execution of this Agreement).
If Xxxx should bring any action arising out of the subject matter
covered by this Agreement, except to enforce this Agreement or his rights under
law, he understands and recognizes that he will, at the option of the Company,
be considered in breach of this Agreement and shall be required to immediately
return any and all funds received pursuant to this Agreement. Furthermore, if
the Company should substantially prevail in any such lawsuit, Xxxx shall pay to
the Company all of its costs and expenses incurred in such an action, including
reasonable attorney's fees. If Xxxx should bring any action to enforce this
Agreement or defend any action by the Company to enforce this Agreement, and if
he substantially prevails in such action, the Company shall pay to Xxxx all of
his costs and expenses incurred in such an action, including reasonable
attorney's fees.
In exchange for the consideration provided for in this Agreement, and
without any further deed or action, the Company hereby irrevocably and
unconditionally releases and forever discharges Xxxx and his heirs, executors,
and representatives of and from all claims, demands, actions, causes of action,
rights of action, contracts, controversies, covenants, obligations, agreements,
damages, penalties, interest, fees, expenses, costs, remedies, reckonings,
extents, responsibilities, liabilities, suits, and proceedings of whatsoever
kind, nature, or description, direct or indirect, vested or contingent, which
are presently known in contract, tort, law, equity, or otherwise, or under the
laws of any jurisdiction, that the Company now has, or hereafter can, shall, or
may have, against Xxxx for, upon, or by reason of any matter, cause, or thing
whatsoever from the beginning of the world through, and including, the date of
this Agreement (the "Xxxx Claims").
4. COMPANY INFORMATION AND PROPERTY. Xxxx agrees to immediately
return to the Company all Company property and information in his possession
including, but not limited to, Company files, financial models, strategies,
compilations, studies, manuals, memoranda, client lists or other client
information, or other documents or records related to the Company's business and
operations, in any form in which they are maintained, and agrees that he will
not retain any copies, duplicates, reproductions, or excerpts thereof in any
form. Xxxx also agrees to immediately return any computer equipment, Blackberry
equipment, cell phones, access codes, discs, software, or other Company-owned
items in his possession.
5. COOPERATION; INDEMNIFICATION. Xxxx agrees that, upon reasonable
request, he will cooperate with the Company so long as such cooperation does not
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interfere in any material respects with any full-time job he may have or
business he is conducting at the time. The obligation to cooperate will extend
only to these matters with which Xxxx may have been involved while he was
employed by the Company. The Company agrees to reimburse Xxxx for any and all
expenses reasonably incurred by him in connection with any such request made by
the Company. The Company acknowledges and confirms that Xxxx is entitled to
indemnification to the extent provided for in the Company's charter and bylaws,
the charter and bylaws of any of the Company's subsidiaries that Xxxx served as
an officer and/or director, including Villa Sistemi Medicali, S.p.A., and any
insurance policies of the Company or its subsidiaries providing for
indemnification coverage to Xxxx.
6. CONFIDENTIALITY. Xxxx agrees that he will not disclose, directly
or indirectly, the underlying facts that led up to this Agreement or the terms
or amount to be paid under this Agreement. Xxxx represents that he has not and
will not, in any way, publicize the terms of this Agreement and agrees that its
terms are confidential and will not be disclosed by him, except that he may
discuss the terms of this Agreement with his attorneys, financial or tax
advisors, and members of his immediate family, or as otherwise required by law.
7. NON-DISPARAGEMENT. Xxxx represents and agrees that he shall
refrain from making any written or oral statements to any person or entity with
whom the Company or Xxxx has had or may have a business or social relationship
which may reasonably be expected to impugn or degrade the character, integrity,
or ethics of the Company, its affiliates, directors, employees, or clients, or
which may reasonably be expected to damage the business, image or reputation of
the Company, its affiliates, directors, employees, or clients.
8. APPLICABLE LAW AND JURISDICTION. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without
regard to its conflicts of law principles. Any dispute regarding this Agreement,
or relating to Xxxx'x employment with the Company shall be brought in the courts
located in New York County, New York which will be the exclusive jurisdiction
for such disputes. The Company and Xxxx hereby expressly waive a right to a jury
trial in any such actions.
9. ENTIRE AGREEMENT. This Agreement may not be changed or altered,
except by a writing signed by both parties. Until such time as this Agreement
has been executed and subscribed by both parties hereto: (i) its terms and
conditions and any discussion relating thereto, without any exception
whatsoever, shall not be binding nor enforceable for any purpose upon any party;
and (ii) no provision contained herein shall be construed as an inducement to
act or to withhold an action, or be relied upon as such. This Agreement
constitutes an integrated, written contract, expressing the entire agreement and
understanding between the parties with respect to the subject matter hereof and
supersedes any and all prior agreements and understandings, oral or written,
between the parties, including but not limited to the Severance Benefits
Agreement dated May 23, 2005 between the Company and you (the "Severance
Benefits Agreement") EXCEPT THAT that the terms and conditions of Article IV of
the Severance Benefits Agreement shall survive and shall be of full force and
effect after the execution of this Agreement, except that Article 4.3 of the
Severance Benefits Agreement shall be amended to add the words "property
containing any" before the words "Confidential Information."
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10. ASSIGNMENT. Xxxx represents and warrants that he has not assigned
or transferred any claim he is releasing, nor has he purported to do so. This
Agreement binds Xxxx'x heirs, administrators, representatives, executors,
successors, and assigns, and will insure to the benefit of all Released Parties
and their respective heirs, administrators, representatives, executors,
successors, and assigns. This Agreement is binding upon the Company and its
successors and assigns. 11. SEVERABILITY. If any provision in this Agreement is
found to be unenforceable, all other provisions will remain fully enforceable.
12. INDEPENDENT LEGAL COUNSEL. Xxxx acknowledges that he has
consulted with independent legal counsel regarding the legal effect of this
Agreement, and is entering into this Agreement freely and voluntarily.
13. BINDING EFFECT. This Agreement will be deemed binding and
effective immediately upon its execution by Xxxx; provided, however, that in
accordance with the Age Discrimination in Employment Act of 1967 ("ADEA") (29
U.S.C. ss. 626, as amended), Xxxx'x waiver of ADEA claims under this Agreement
is subject to the following: Xxxx may consider the terms of his waiver of claims
under the ADEA for twenty-one (21) days before signing it. Xxxx may revoke his
waiver of claims under the ADEA within seven (7) days of the day he executes
this Agreement. Xxxx'x waiver of claims under the ADEA will not become effective
until the eighth (8th) day following his signing of this Agreement. Xxxx may
revoke his waiver of ADEA claims under this Agreement by delivering written
notice of such revocation via facsimile before the end of the seventh (7th) day
following his signing of this Agreement to: Del Global Technologies Corp.,
facsimile number 847-288-7011, Attention: Chairman of the Board. In the event
that Xxxx revokes his waiver of ADEA claims under this Agreement prior to the
eighth (8th) day after signing it, the remaining portions of this Agreement
shall remain in full force in effect, provided that the obligation of the
Company to provide the payments and benefits set forth in Agreement shall be
null and void. Xxxx further understands that if he does not revoke the ADEA
waiver in this Agreement within seven (7) days after signing this Agreement, his
waiver of ADEA claims will be final, binding, enforceable, and irrevocable.
XXXX UNDERSTANDS THAT FOR ALL PURPOSES OTHER THAN HIS WAIVER OF CLAIMS
UNDER THE ADEA, THIS AGREEMENT WILL BE FINAL, EFFECTIVE, BINDING, AND
IRREVOCABLE IMMEDIATELY UPON ITS EXECUTION.
14. ACKNOWLEDGEMENT. Xxxx acknowledges that he: (a) has carefully
read this Agreement in its entirety; (b) has had an opportunity to consider it
for at least twenty-one (21) days; (c) has been advised to consult and has had
an opportunity to consult with legal counsel of his choosing in connection with
this Agreement; (d) fully understands the significance of all of the terms and
conditions of this Agreement and has discussed them with independent legal
counsel; (e) has had answered to his satisfaction any questions asked with
regard to the meaning and significance of any of the provisions of this
Agreement; and (f) is signing this Agreement voluntarily and of his own free
will and agrees to abide by all the terms and conditions contained herein.
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This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
first date set forth above.
DEL GLOBAL TECHNOLOGIES CORP.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chairman of the Board
/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
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