EXHIBIT 10.12
SEVERANCE AGREEMENT AND RELEASE
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This Severance Agreement and Release (this "Agreement") is entered into as
of July 16, 1995 between Xxxxx Paper Company, a Pennsylvania corporation
("Xxxxx"), Xxxxxxxx-Xxxxx Corporation, a Delaware Corporation ("Xxxxxxxx-
Xxxxx"), and Xxxxx X. Xxxxxxxx (the "Executive").
WHEREAS, Executive is presently an officer of, and is presently employed by
Xxxxx in the capacity of Vice President-Treasurer and Chief Financial Officer;
WHEREAS, Xxxxxxxx-Xxxxx, Rifle Merger Co. and Xxxxx have entered into an
Agreement and Plan of Merger dated as of July 16, 1995 (the "Merger Agreement"),
pursuant to which Rifle Merger Co. will merge with and into Xxxxx and Xxxxx will
thereby become a wholly-owned subsidiary of Xxxxxxxx-Xxxxx;
WHEREAS, the parties hereto have entered into a Noncompetition Agreement, a
Restricted Stock Exchange Agreement, a Rescission Agreement and a Stock Option
Exchange Agreement (the "Other Agreements") as of the date hereof;
WHEREAS, as of the Effective Time of the Merger (as such terms are defined
in the Merger Agreement), the Executive will cease to be an officer and employee
of Xxxxx;
WHEREAS, Xxxxx and the Executive desire to make appropriate arrangements
for the severance of the Executive from Xxxxx and the release by the Executive
of any and all outstanding claims he may have against Xxxxx;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the adequacy and sufficiency of which are hereby acknowledged,
Xxxxx and the Executive hereby agree as follows:
1. Voluntary Act. The Executive hereby represents to Xxxxx that this
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Agreement is entered into voluntarily, and with a full understanding of and
agreement with its terms, for the purpose of receiving additional benefits from
Xxxxx and releasing all claims the Executive may have against Xxxxx and
Xxxxxxxx-Xxxxx.
2. Cessation of Employment. The Executive's employment with Xxxxx will
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cease as of the Effective Time of the Merger.
3. Additional Benefits. In consideration of the Executive's
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representations and releases in this Agreement, Xxxxx
will pay to the Executive, at the Effective Time of the Merger, the sum of
$621,000, plus the difference between $418,000 and the amount of Termination
Bonus paid to the Executive pursuant to the letter delivered to the Executive of
even date to assist the Executive in making the transition from his current
position to future employment. These benefits are in addition to the
Executive's entitlements under other applicable employee benefit plans of Xxxxx
and compensation for services rendered.
4. Agreements and Acknowledgment. In consideration of the additional
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benefits provided in Section 3 above, and effective as of the Effective Time of
the Merger, the Executive hereby releases and forever discharges Xxxxx and
Xxxxxxxx-Xxxxx, their officers, directors, agents, and employees of and from all
actions, causes of action, suits, debts, contracts, promises, damages, claims
and demands, whether known or unknown, asserted or unasserted, including,
without limitation, all rights or claims under the Age Discrimination in
Employment Act, which he or his heirs or assignee, ever had, may have in the
future, or now have, or which his heirs, executors, administrators and assigns
hereafter can, shall or may have, against Xxxxx or Xxxxxxxx-Xxxxx, their
officers, directors, agents and employees; provided, however, that nothing
contained herein shall relieve Xxxxx or Xxxxxxxx-Xxxxx from any obligation under
(i) this Agreement; (ii) any employee benefit plan, stock option plan or the
like that the officer is a participant in or entitled to the benefits of; (iii)
compensation for services previously provided; or (iv) the Other Agreements.
5. Consultation with Attorney. The Executive represents that he was
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advised to consult with an attorney before signing this Agreement, and that he
has consulted with an attorney and/or other persons to the extent the Executive
desired to do so before signing this Agreement.
6. No Representations or Inducements. The Executive agrees that no
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promises, representations or inducements have been made which caused the
Executive to sign this Agreement other than those expressly set forth above.
7. Successors; Binding Agreement. This Agreement shall inure to the
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benefit of and be enforceable by the Executive and by his personal or legal
representatives, executors, administrators, heirs, distributees, devisees and
legatees, and by Xxxxx, and their respective successors and assigns.
8. Notices. All notices and other communications required or permitted
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under this Agreement shall be in writing and shall be deemed to have been duly
given when personally delivered, when delivered by courier or overnight express
service or five days after having been sent by certified or registered mail,
postage prepaid, addressed (a) if to the Executive, to the
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Executive's address set forth in the records of the Company, or if to Xxxxx or
Xxxxxxxx-Xxxxx, to Xxxxx X. Xxxxxxx, Chairman of the Board and Chief Executive
Officer, 000 Xxxxxx Xxxxx, Xxxxxx, Xxxxx 00000, with a copy to O. Xxxxxx
Xxxxxxxx, Senior Vice President - Law and Government Affairs, 000 Xxxxxx Xxxxx,
Xxxxxx, Xxxxx 00000, or (b) to such other address as either party may have
furnished to the other party in writing in accordance herewith, except that
notices of change of address shall be effective only upon receipt.
9. Guaranty. Xxxxxxxx-Xxxxx hereby guarantees the payment of all amounts
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payable by Xxxxx pursuant to this Agreement.
10. Governing Law; Validity. The interpretation, construction and
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performance of this Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Delaware without regard to the
applicable principles of conflicts of laws. The invalidity or unenforceability
of any provision of this Agreement shall not affect the validity or
enforceability of any of the other provisions of this Agreement, which other
provisions shall remain in full force and effect.
11. Review Period. Executive represents that he was given at least forty-
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five (45) days to consider the terms of this Agreement.
12. Revocation. Executive has seven (7) days from the signing of this
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Agreement to revoke this Agreement. If Executive does not revoke this Agreement
within seven (7) days of the date of this Agreement, this Agreement will become
final and binding.
13. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
14. Miscellaneous. No provision of this Agreement may be modified or
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waived unless such modification or waiver is agreed to in writing and executed
by the Executive and by a duly authorized officer of Xxxxx. No waiver by either
party hereto at any time of any breach by the other party hereto of, or failure
to comply with, any condition or provision of this Agreement to be performed or
complied with by such other party shall be deemed a waiver of any similar or
dissimilar conditions or provisions at the same or at any prior or subsequent
time. Failure by the Executive or Xxxxx to insist upon strict compliance with
any provision of this Agreement or to assert any right which the Executive or
Xxxxx may have hereunder shall not be deemed to be a waiver of such provision or
right or any other provision of or right under this Agreement.
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15. Effectiveness. The provisions of Section 2, 3 and 4 hereof shall be
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effective only upon the Effective Time of the Merger and shall be null and void
if the Merger is not consummated.
IN WITNESS WHEREOF, each of Xxxxx and Xxxxxxxx-Xxxxx has caused this
Agreement to be executed by its duly authorized officer and the Executive has
executed this Agreement as of the day and year first above written.
Xxxxx Paper Company
By_________________________________
Xxxxxxxx-Xxxxx Corporation
By________________________________
Executive
__________________________________
Xxxxx X. Xxxxxxxx
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