Exhibit 10.20
December 20, 2005
VIA HAND DELIVERY -
PERSONAL & CONFIDENTIAL
Mr. Xxxxx Xxxx
0000 Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx
X0X 0X0
Xxxxxx
RE: AGREEMENT AND RELEASE BETWEEN XXXXXXXXX INTERNATIONAL INC. AND XXXXX
XXXX
Dear Xxxxx:
We are writing to document the terms of your amicable departure from Xxxxxxxxx
International Inc. ("Xxxxxxxxx International" or "the Company").
This agreement and release (the "Agreement and Release") sets forth the terms
and conditions of the termination of your employment with Xxxxxxxxx
International.
Please indicate your acceptance of this Agreement and Release on or before
December 23, 2005, by returning a fully executed copy of this letter to the
Company on or before that date, failing which the Company will have no
obligations under this Agreement and Release.
The Company is providing you a period of at least twenty-one days within which
to consider this Agreement and Release in order that you have sufficient time to
seek appropriate legal advice regarding this Agreement and Release.
AGREEMENT AND RELEASE
In consideration of the mutual benefits set out in this Agreement and Release
and other good and valuable consideration, the sufficiency of which Xxxxxxxxx
International together with its parent corporations, affiliates, past and
present officers, directors, stockholders, agents, employees, publications,
legal representatives, successors, and assigns, (hereinafter collectively
referred to as, the "Company") and you, hereby acknowledge, the parties to this
Agreement and Release agree as follows:
1. The date of termination of your employment from the Company shall be
December 31, 2005 (the "Effective Date"). As of the Effective Date you
shall cease to have any on-going relationship with the Company, including
as an officer and or director for the Company or any of its subsidiaries.
You shall receive your regular compensation until
Mr. Xxxxx Xxxx
December 20, 2005
Page 2
the Effective Date and shall continue to be an employee of the Company,
performing your regular duties and responsibilities until the Effective
Date.
2. You shall receive a lump sum payment for any accrued, unused vacation time,
reduced by all applicable statutory withholdings, within thirty (30)
calendar days of signing this Agreement and Release.
3. Your termination shall be designated as an amicable departure (marked on
your Record of Employment as "k" or "Other" and described as a
"settlement") for purposes of Canadian unemployment insurance and for any
pension benefits you may be eligible for under the Company's plan(s). The
Company shall represent that as the basis for your termination to all third
parties.
4. You shall receive a lump sum payment of Five Hundred Thousand (CDN
$500,000.00) Canadian Dollars equal to one full year of your base wage
(less applicable statutory and other deductions) as a severance in lieu of
notice, within thirty (30) calendar days of signing this Agreement and
Release.
5. The Company will discontinue you and your dependents from all Xxxxxxxxx
sponsored benefit programs effective December 31, 2005. In lieu of benefit
continuation, the Company shall pay you a one time lump sum of Thirteen
Thousand (CDN $13,000.00) Canadian Dollars, within thirty (30) calendar
days of the Effective Date.
6. The Company shall reimburse you for outplacement services at a Canadian
firm of your choosing up to a maximum amount of Seventy Five Thousand (CDN
$75,000.00) Canadian Dollars.
7. As further consideration, the Company shall pay you an additional lump sum
of Three Hundred Thousand (CDN $300,000.00) Canadian Dollars, less
applicable statutory and other deductions as a retiring allowance, within
thirty (30) calendar days of the Effective Date.
8. The Company agrees to transfer its ownership of the home office equipment
used by you, consisting of a printer/facsimile/copier, an RIM Blackberry
communications device and a laptop computer, to you, provided you allow the
Company to remove any and all proprietary information from the equipment,
prior to the Effective Date. Additionally, the Company shall reimburse you
for the monthly service charges associated with the RIM Blackberry, for a
period of one year from the Effective Date, provided you arrange to have
your messages routed to a private email account.
9. The Company agrees to reimburse you for the cost of legal fees for the
negotiations of this Agreement and Release, to a maximum amount of Seven
Thousand (CDN $7,000.00) Canadian Dollars.
Mr. Xxxxx Xxxx
December 20, 2005
Page 3
IN CONSIDERATION OF THE PAYMENTS SET OUT IN THIS AGREEMENT AND RELEASE, AND
OTHER GOOD AND VALUABLE CONSIDERATION GIVEN BY THE COMPANY, THE RECEIPT OF WHICH
IS HEREBY ACKNOWLEDGED:
1. You, Xxxxx Xxxx (which term includes your agents, heirs, executors,
administrators, successors, and assigns), hereby remise, release and
forever discharge the Company, it's direct and indirect subsidiary
companies, and all related entities, their officers, directors, servants,
employees, agents and assigns and each of their heirs administrators,
successors and assigns (hereinafter referred to as "Releasee") from any and
all manner of demands, actions, causes of actions, suits, contracts,
claims, damages, costs and expenses of any nature or kind whatsoever,
whether in law or in equity, which as against the Releasee or any of them
you have ever had, now have, or at anytime you or your personal
representative can, shall or may have, by reason of or arising out of your
employment with the Releasee, the termination from your employment with the
Releasee, including but not limited to any of all claims for damages
arising from the termination from your employment, constructive
termination, loss of position, loss of status, loss of future job
opportunity, loss of opportunity to enhance your reputation, the timing of
the termination and the manner in which it was effected, loss of bonuses,
loss of benefits including life insurance and short and long-term
disability benefit coverage and any other type of damages by indemnity or
otherwise.
2. You further agree (except for any vested or accrued benefits to which you
are entitled under the Company's employee benefit plans and any rights you
may have under COBRA) to WAIVE any and all rights in connection with, and
to fully RELEASE and forever discharge the Company from, any and all torts,
contracts, claims, suits, actions, causes of action, demands, rights,
damages, costs, expenses, attorneys fees, and compensation in any form
whatsoever, whether now known or unknown, which you have (up through and
including the date hereof) against the Company on account of or in any way
growing out of your employment by the Company or your separation therefrom,
including but not limited to, any and all claims for damages or injury to
any entity, person, property or reputation arising therefrom, claims for
wages, employment benefits, tort claims and claims under Title VII of the
Civil Rights Act of 1964, the Civil Rights Act of 1991, the Civil Rights
Act of 1866, the Employee Retirement Income Security Act of 1974, the
National Labor Relations Act, the Fair Labor Standards Act, the
Rehabilitation Act of 1973, the Family and Medical Leave Act of 1993, the
Americans with Disabilities Act of 1990, the New York Fair Employment
Practice Act, the Xxxx-Xxxxx Act, the New York Wage Payment Act, the
Illinois Human Rights Act, the Illinois Wage Payment and Collection Act,
the Xxxx County Human Rights Ordinance, the Chicago Human Rights Ordinance
and any other federal, state or local law, statute, ordinance, guideline,
regulation, order or common-law principle of any state relating to
employment, employment contracts, wrongful discharge or any other matter.
Release of Age Discrimination Claims. In further consideration of the
promises made by the Company in this Agreement and Release, you
specifically release the Company from all claims or rights you may have as
of the date you sign this Agreement and Release arising under the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Sec. 621,
et seq. You further agree that:
Mr. Xxxxx Xxxx
December 20, 2005
Page 4
(a) your waiver of rights under this release is knowing and voluntary and
in compliance with the Older Workers Benefit Protection Act of 1990
(OWBPA);
(b) you understand the terms of this release;
(c) the consideration provided in this Agreement and Release represents
consideration over and above that to which you otherwise would be
entitled, that the consideration would not have been provided had you
not signed this release, and that the consideration is in exchange for
the signing of this release;
(d) the Company is hereby advising you in writing to consult with your
attorney prior to executing this release;
(e) the Company is giving you a period of twenty-one days within which to
consider this release;
(f) following your execution of this release you have seven days in which
to revoke this release by written notice. To be effective, the
revocation must be made in writing and delivered to and received by
Xxxxxx X. Xxxxxxxx, Assistant Corporate Counsel, Xxxxxxxxx
International Inc., 000 Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000, no
later than 4:00 p.m. on the seventh day after you execute this
release. An attempted revocation not actually received by Xx. Xxxxxxxx
before the revocation deadline will not be effective; and
(g) this entire Agreement shall be void and of no force and effect if you
choose to so revoke, and if you choose not to so revoke this Agreement
and Release shall then become fully effective and enforceable.
This Section does not waive rights or claims that may arise under the ADEA
after the date you sign this Agreement and Release.
3. You agree to fully cooperate with the Company in the resolution and
investigation of all remaining open issues relating to the Company,
including but not limited to pending and future legal matters, internal
investigations and the like, and in executing such further documentation as
is deemed reasonably necessary in the opinion of the Company and you to
effect your separation; and your agreement to the terms of this Agreement
and Release.
4. You further acknowledge that the consideration given to you pursuant to
this Agreement and Release represents a negotiated settlement as relates to
the terms and conditions of your amicable departure from the Company and
does not and shall not be construed or considered as an admission of
liability on the part of either party.
5. You further hereby acknowledge, understand and agree that this Agreement
and Release includes any and all claims arising under the Ontario
Employment Standards Act, Human Rights Code, Workplace Safety and Insurance
Act and/or other applicable legislation and that the consideration provided
includes any amount that you may be entitled to under
Mr. Xxxxx Xxxx
December 20, 2005
Page 5
such legislation and you agree to immediately withdraw any complaint as
settled and not to file any complaint pursuant to such legislation with
respect to your employment or the termination of your employment with the
Company.
6. You further agree not to make any claims or initiate proceedings against
any other person, corporation or other entity that might claim contribution
or indemnity under the provisions of any statute or otherwise against the
Releasee.
7. You understand and agree to indemnify and hold harmless the Releasee from
any assessment for income tax and other statutory deductions that may be
made under statutory authority, relating to the payments being made to you
under this Agreement and Release.
8. You further understand and agree that it is a condition of this Agreement
and Release that the terms of the agreement between the parties are
strictly confidential and both parties agree not to disclose either the
whole or part of this Agreement and Release to anyone except their legal,
tax, financial advisors and/or spouse. In particular, but without limiting
the generality of the foregoing, you agree that you will not, under any
circumstances, discuss the terms and conditions of this Agreement and
Release, nor the circumstances under which your employment with the
Releasee ended, with any known client(s), supplier(s) or consumer(s) of the
Releasee.
9. You acknowledge and agree that during your employment with the Releasee you
had or may have had access to certain confidential and proprietary
information of the Releasee, the disclosure of which could be harmful to
the interests of the Releasee. You acknowledge and agree that you have
taken and will in the future take appropriate precautions to safeguard such
confidential and proprietary information. Further, you agree that you will
respect and abide by the terms of any employee confidentially agreement
that you may have executed with the Releasee.
10. You agree to immediately return, without making copies or disclosing
information relating thereto, any and all property, equipment, information,
material, records or documents, including but not limited to vehicles,
parking passes, security passes, credit cards, keys, computer and computer
programs, in your possession or control belonging to or respecting the
Releasee, to the Releasee on or before the Effective Date, except those
items specifically set forth in Paragraph 8 of the consideration section of
this Agreement and Release.
11. You further agree to refrain from making any disparaging comments regarding
the Releasee, your employment with the Releasee. or termination thereof, to
any person including but not limited to any known former or current
employees of the Releasee, suppliers or related business contacts,
advertisers or associates of the Releasee. You understand and agree that
this confidentiality provision is a critical and fundamental condition of
the settlement and is an essential part of the consideration for this
Agreement and Release.
Mr. Xxxxx Xxxx
December 20, 2005
Page 6
12. You further agree that: the consideration provided in this Agreement and
Release represents consideration over and above that to which you otherwise
would be entitled, that the consideration would not have been provided had
you not signed this Agreement and Release, and that the consideration is in
exchange for the signing of this Agreement and Release.
13. You hereby represent and warrant that: (a) you have no pending claims
against the Company with any Canadian or United States municipal,
state/provincial, federal or other governmental or non-governmental entity;
and (b) that you will not file any claims with respect to any events
occurring on or before the date hereof. You also acknowledge and agree that
by entering into this Agreement and Release you can never make claim or
demand upon or xxx the Company for any reason whatsoever relating to
anything that has happened through the date hereof.
14. The parties agree that the provisions of this Agreement and Release are
severable. If any provision is held to be invalid or unenforceable, it
shall not affect the validity or enforceability of any other provision.
This Agreement and Release sets forth the entire agreement between Xxxxx
Xxxx and the Releasee and supersedes any and all prior oral or written
agreements or understandings between Xxxxx Xxxx and the Releasee concerning
the subject matter of this Agreement and Release.
15. This Agreement and Release shall be governed by laws of Ontario or any
other applicable Federal or Provincial laws of Canada.
16. You hereby acknowledge (a) that the Releasee has given you a period of at
least twenty one (21) days in which to review and consider this Agreement
and Release; (b) that the Company has advised, and does hereby in writing
advise, you have had opportunity to consult with counsel before signing
this Agreement and Release; (c) that you have read this Agreement and
Release in its entirety; (d) that you have had at least twenty one (21)
days in which to confer with your own attorney for assistance and advice
concerning this Agreement and Release; (e) that you understand the terms of
this Agreement and Release; (f) that you understand that the terms of this
Agreement and Release are legally enforceable; (g) that you have entered
into this Agreement and Release freely, voluntarily, knowingly and
willingly and were in no manner coerced into signing it; (h) that neither
this Agreement and Release nor the discussion and negotiation leading to it
are or were, in any manner, discriminatory; (i) that you were, and hereby
are, encouraged to discuss any questions, problems, or issues concerning
this Agreement and Release with the Company BEFORE signing it; (j) that you
are waiving rights and claims you may have in exchange for consideration in
addition to things of value to which you are already entitled; and (k) that
after signing this Agreement and Release you have a period of seven (7)
days in which to revoke your agreement, however, any such revocation must
be in writing and must be addressed to Xxxxxx X. Xxxxxxxx, Assistant
Corporate Counsel, Xxxxxxxxx International Inc., 000 Xxxxx Xxxxxxx,
Xxxxxxx, Xxxxxxxx 00000.
Mr. Xxxxx Xxxx
December 20, 2005
Page 7
Xxxxx, please indicate your understanding and acceptance of this Agreement and
Release by executing both copies below, and retaining one fully executed
original for your files and returning one fully executed original to me.
Very truly yours,
XXXXXXXXX INTERNATIONAL INC.
By:
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Xxxxxx Xxxxx,
President and Chief Executive
Officer
I hereby accept the terms of this agreement
and agree to abide by the provisions hereof:
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Xxxxx Xxxx
Dated:
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