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EXHIBIT 10.50
PROVANT, INC.
00 XXXXXXXXXXXX XXXXXX, XXXXX 000
XXXXXX, XXXXXXXXXXXXX 00000
June 9, 2000
A. Xxxx xxx Xxxxxxxxx
000 0/0 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Dear Xxxx:
This letter agreement (the "Agreement") among you (the "Employee"),
PROVANT, Inc. ("PROVANT") and PROVANT's subsidiary, Star Mountain, Inc. (the
"Company"), is intended to set forth the arrangements with respect to the
termination of the Employee's employment with the Company.
1. Effective March 29, 2000 the Employee resigned from the Executive
Committee of the Board of Directors of PROVANT, and effective May 4, 2000 the
Employee resigned as a member of the Board of Directors of PROVANT. Effective on
the date hereof, the Employee hereby resigns as an officer and director of the
Company and as an officer and director of any of PROVANT's other subsidiaries
for which he serves in such capacities. The Employee hereby resigns effective
July 31, 2000 (the "Termination Date") as an employee of the Company and from
any other position that the Employee may hold with PROVANT or any of its
subsidiaries (PROVANT and its subsidiaries, including the Company, are
collectively referred to herein as the "PROVANT Group"). The Employee and the
PROVANT Group acknowledge and agree that, although the Employee shall remain an
employee of the Company until the Termination Date, he shall not, nor be
required to, take any action on behalf of or have any duties to, any member of
the PROVANT Group or provide any services to any member of the PROVANT Group
(unless requested to do so in writing by an officer of a member of the PROVANT
Group and then, only for such additional compensation as the Employee and such
member may agree). The Employee further acknowledges and agrees that he is not
authorized to incur any expenses on behalf of the Company and shall not be
reimbursed for any such expenses unless such expenses are approved in advance
and in writing by an officer of the Company.
2. 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
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Page 2
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 that are paid
to him (including, without limitation, accrued, unused vacation leave, earned
commissions, and scheduled advances) and any other payments, all as accrued
through May 31, 2000, to which the Employee is entitled in connection with the
Employee's employment with the Company, except for (i) salary for the pay period
ended May 31, 2000 in the amount of $8,076.54 that will be paid on June 15, 2000
and (ii) accrued vacation leave through May 31, 2000 in the amount of $1,262.10.
3. In consideration for the Employee's execution of and compliance with
this Agreement, the Company agrees to continue to provide the Employee with the
benefits described in the following subparagraphs (a), (b), (c) and (d):
(a) From the date hereof through the Termination Date, the Company
shall pay the Employee installments of the Employee's base salary at the rate
currently in effect ($175,000 per year) on the same schedule as executives of
the Company then receive regular salary payments.
(b) The Employee shall continue to receive the benefits that he is
currently entitled to receive under the Employment Agreement through the
Termination Date, on which date all such benefits shall cease. These benefits
will, as of July 31, 2000 include:
(i) vacation pay - $1,824.41;
(ii) holiday (7/4/00) - $673.12;
(iii) deferred compensation - 10% of salary;
(iv) car lease - $1,399.03 and use of the leased car;
(v) car insurance (2 cars) - $208.33;
(vi) recreational expenses (hunting, fishing, etc.) - $4,166.67; and
(vii) premiums on all life insurance policies referred in Schedule 2
of the Employment Agreement (as already paid).
PROVANT and the Company represent and warrant that life insurance
premiums covering a period ending no earlier than the Termination Date have
already been paid with respect to all insurance policies referred to in Schedule
2 to the Employment Agreement. All benefits described in this paragraph (b)
shall be paid in accordance with the Company's normal procedures, but in no
event later than ten (10) business days after the Termination Date.
(c) After the Termination Date, the Company will offer the Employee the
opportunity to continue to participate in its group medical insurance program
(the "Health Plan") pursuant
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to the health care continuation provisions of the federal COBRA law. 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.
(d) PROVANT and the Company represent, warrant and covenant that the
Employee is covered by the PROVANT's directors and officers liability insurance
policy to the same extent as other directors of PROVANT who were or are officers
of subsidiaries and that he will remain so covered as long as such insurance is
maintained by PROVANT.
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, will be returned to the Company
on or before the Termination Date.
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. Effective on the Effective Date (as defined in Section 13) and subject to
the continued effectiveness of this Agreement), 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 "PROVANT 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 PROVANT Releasees by reason of any
matter, cause or thing whatsoever from the beginning of the world to the date of
this Agreement, 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, the acquisition by PROVANT of Star
Mountain, Inc., a Virginia corporation, pursuant to the Agreement and Plan of
Merger dated as of May 4, 1998 among PROVANT, the Company, Star Mountain, Inc.,
a Virginia corporation, the Employee and
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certain other individuals (the "Merger Agreement"), 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; provided, however, that nothing
herein shall be construed as a waiver or release by the Employee of (i) any
surviving indemnity obligations of the Company or PROVANT under the Merger
Agreement or Section 10 of the Employment Agreement or (ii) any claims that the
Employee may have for breach of this Agreement by the Company or PROVANT. 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, 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 Virginia.
6. PROVANT and the Company hereby acknowledge and agree that this
Agreement is intended to be a complete and final settlement of any and all
causes of action or claims that any member of the PROVANT Group has had, now has
or may now have, whether known or unknown against the Employee or any of the
persons or entities specified below. Effective on the Effective Date (as defined
in Section 13) and subject to the continued effectiveness of the this Agreement,
each of PROVANT (on behalf of itself and the other members of the PROVANT Group)
and the Company for themselves and their past, present and future affiliates
hereby waives, releases, covenants not to xxx and forever discharges the
Employee and the Employee's executors, heirs, administrators and assigns
(collectively, the "Employee Releasees"), and each and all of them of, from and
with respect to any and all Claims which any member of the PROVANT Group
(including PROVANT and the Company) now has, ever had, or may in the future have
against each or any of the Employee Releasees by reason of any matter, cause or
thing whatsoever from the beginning of the world to the date of this Agreement,
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
acquisition by PROVANT of Star Mountain, Inc., a Virginia corporation, pursuant
to the Merger Agreement, any transactions related thereto or any Claims that may
exist under federal, state or local laws; provided, however, that nothing herein
shall be construed as a waiver or release by either PROVANT or the Company of
(i) any surviving indemnity obligations of the Employee Releasees under the
Merger Agreement, (ii) any claims or rights under the provisions of Sections 7,
8 or 9 of the Employment Agreement, (iii) any claims or rights under the
Employee's Non-Competition and Non-Disclosure Agreement dated May 4, 1998 (the
"Non-
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Comp. Agreement"), (iv) any claims for theft or embezzlement in connection
with the Employee's employment by the Company or (v) any claims for personal
charges made on the Employee's corporate credit card since April 1, 2000.
7. Unless previously disclosed by any member of the PROVANT Group, 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. 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, 2003. 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 Non-Comp.
Agreement remain in full force and effect until May 4, 2003. PROVANT and the
Company reaffirm the Employee's continuing right to own and manage Xxxxx
Corporation, so long as Xxxxx Corporation does not engage in conduct that would
violate Section 7 of the Employment Agreement or Section 1 of the Non-Comp.
Agreement.
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
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.
Nothing in this Section 8 shall limit the right of the Employee to discuss any
matters mentioned in this Section 8 with his spouse or any professional advisor.
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.
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10. All payments 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. The
performance by the Employee of his obligations hereunder shall be conditioned on
the PROVANT Group's continued compliance with the covenants set forth in this
Agreement and the surviving portions of the Employment Agreement and the Merger
Agreement. Nothing in this Section 10, however, shall affect the releases of the
parties in Sections 5 and 6 of this Agreement.
11. The Company and the Employee agree that irreparable damages would
occur in the event that Sections 4, 5, 6, 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, that he understands the provisions
of this Agreement, and that his acceptance and execution of this Agreement are
knowing and voluntary. 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 twenty-one (21) 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 the eighth (8th) day after the Employee signs this
Agreement, provided that before such day the Employee has not revoked this
Agreement (the "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.
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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 PROVANT
Group (including PROVANT 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 or any member of the PROVANT Group's
surviving obligations under the Employment Agreement, the Merger Agreement, the
Employee's Investment Representation Letter to PROVANT dated May 4, 1998 and the
Non-Comp. Agreement.
15. This Agreement may be amended or modified only upon the written
mutual consent of the Parties.
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 each member of
the PROVANT Group on the basis set forth above.
Very truly yours,
PROVANT, INC., for itself and on behalf of
the PROVANT Group
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
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STAR MOUNTAIN, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer
Agreed to and accepted this
____ day of __________, 2000:
/s/ A. Xxxx xxx Xxxxxxxxx
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A. Xxxx xxx Xxxxxxxxx
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