EXHIBIT 10.15
EMPLOYMENT AGREEMENT
This Employment Agreement ("Employment Agreement") dated this 2nd day of
January, 2002, and effective as of January 2, 2002 (the "Effective Date") is
made by and between X.X. XXXXXXX & COMPANY, a Delaware corporation ("X.X.
Xxxxxxx") and Xxxxxx X. Xxxxxxxxx ("Xxxxxxxxx").
RECITALS
A. J.D. Xxxxxxx is engaged in the business of developing, marketing and
supporting enterprise software and supply chain computing solutions.
X. Xxxxxxxxx is to be employed by X.X. Xxxxxxx in the position of President
and Chief Executive Officer and X.X. Xxxxxxx and Xxxxxxxxx contemplate that
X.X. Xxxxxxx will employ Dutkowsky for a period of at least two (2) years
from the Effective Date of this Employment Agreement.
It is agreed between X.X. Xxxxxxx and Xxxxxxxxx as follows:
1. EMPLOYMENT AND STATUS.
1.1 EMPLOYMENT. X.X. Xxxxxxx hereby agrees to employ Dutkowsky as its
President and Chief Executive Officer and Dutkowsky agrees to perform
the duties and responsibilities of such offices, together with such
other duties and responsibilities as shall be assigned to him by the
X.X. Xxxxxxx Board of Directors. Dutkowsky shall have ultimate
responsibility for the operations of X.X. Xxxxxxx and shall report
directly to the X.X. Xxxxxxx Board of Directors. Dutkowsky accepts
such employment with X.X. Xxxxxxx upon the terms and conditions of
this Employment Agreement and agrees to fulfill and responsibly
perform the duties and responsibilities inherent in being a President
and Chief Executive Officer of a public company. During the term of
his employment, Dutkowsky agrees to devote his full time and
attention, skills and efforts to the performance of his duties and
responsibilities on behalf of X.X. Xxxxxxx and to maintain and
promote the business of X.X. Xxxxxxx. Dutkowsky covenants that he
holds no board of director positions with any company which competes
with X.X. Xxxxxxx and agrees that he will accept no such position
during the term of this Employment Agreement.
1.2 BOARD OF DIRECTORS.
o As of the Effective Date, Dutkowsky will be appointed a member
of the Board of Directors and will be elected Chairman of the
Board of Directors at the March, 2002 Annual Shareholders
meeting. Dutkowsky will also serve on
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the Governance Committee.
o C. Xxxxxx XxXxxxx will retire as Chairman of the Board at the
March, 2002 Annual Shareholder meeting and will resign from
membership on the Board on or before the expiration of his
current term in March, 2003. He will select someone to fill his
Board seat after his resignation and continuing after March,
2003. XxXxxxx, and upon his resignation, his successor, will be
members of the Governance Committee of the Board of Directors.
2. TERM. Subject to the terms of Xxxxxxx 0, Xxxxxxxxxxx, Xxxxxxxxx shall be
employed by X.X. Xxxxxxx as President and Chief Executive Officer for a period
of not less than two (2) years commencing on the Effective Date (the "Initial
Employment Term").
3. COMPENSATION.
3.1 ANNUAL BASE SALARY AND BONUS. Dutkowsky's base compensation from the
Effective Date until January 1, 2003, shall be set at an annual base
salary of $650,000, payable in accordance with X.X. Xxxxxxx standard
payroll procedures, with an annual bonus incentive ("Target Bonus")
of up to one hundred percent (100%) of such annual base salary based
upon the achievement of those certain objectives as determined and
approved by the Compensation Committee of the Board of Directors of
X.X. Xxxxxxx. Notwithstanding anything to the contrary, guaranteed
bonus payments of at least $162,500 will be made on each of March 31,
2002, June 30, 2002, September 30, 2002 and December 31, 2002 provided
that Dutkowsky is an employee of X.X. Xxxxxxx on the applicable
payment dates (subject however to earlier payment in full of all such
unpaid guaranteed bonus amounts if Dutkowsky's employment is
terminated without Cause by X.X. Xxxxxxx or is terminated due to
Dutkowsky's death or "Disability" (as defined in Section 5 below)).
Additionally, the Compensation Committee of the X.X. Xxxxxxx Board of
Directors may award Dutkowsky a bonus amount in excess of the
guaranteed amount (or the annual Target Bonus for fiscal years after
2002) for superior achievement. Compensation for subsequent periods
shall be established by a written addendum to this Employment
Agreement as approved by the Compensation Committee of X.X. Xxxxxxx
Board of Directors but in no event will be less than the annual base
salary of $650,000 and annual Target Bonus of up to one hundred
percent (100%) of the new base salary based upon the achievement of
those certain objectives as determined with input from Dutkowsky and
approved by the Compensation Committee of the Board of Directors of
X.X. Xxxxxxx.
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3.2 STOCK GRANT. Dutkowsky will be granted stock options to purchase the
common stock of X.X. Xxxxxxx pursuant to the terms of X.X. Xxxxxxx
1997 Equity Incentive Plan, or its successor option plan, if any, in
accordance with the schedule below (the "Stock Option Grant"):
o 1,100,000 stock options granted on the Effective Date with the
per share exercise price equal to the lesser of (a) the fair
market value, i.e., the closing bid price of a X.X. Xxxxxxx
common share on the NASD stock market ("Fair Market Value") on
the Effective Date or (b) the Fair Market Value on the date of
execution of this Employment Agreement. These options will vest
as follows:
(a) 275,000 shares vest on the Effective Date;
(b) 825,000 shares vest at the rate of 17,187.5 shares on the last day
of each month following the Effective Date for 48 months.
o 500,000 performance stock options ("Performance Options")
granted on the Effective Date with the per share exercise price
equal to the lesser of (a) the Fair Market Value on the
Effective Date or (b) the Fair Market Value on the date of
execution of this Employment Agreement. The Performance Options
will vest in full on the fifth anniversary of the Effective Date
or will vest earlier as follows:
(a) 250,000 shares vest on the date on which the average Fair Market
Value over any sixty (60) consecutive trading days has reached (or
exceeded) two (2) times the original per share exercise price of the
Performance Options.
(b) 250,000 shares vest on the date on which the average Fair Market
Value over any sixty (60) consecutive trading days has reached (or
exceeded) three (3) times the original per share exercise price of
the Performance Options.
o 100,000 shares of restricted common stock of X.X. Xxxxxxx,
granted on the Effective Date at a price of $0.01 per share,
which will vest as follows:
(a) 50,000 shares on the first anniversary of the Effective Date; and
(b) 50,000 shares on the second anniversary of the Effective Date.
o Dutkowsky shall be eligible to receive future stock option
grants as may be determined by the X.X. Xxxxxxx Board of
Directors, or a committee thereof.
o X.X. Xxxxxxx shall permit and facilitate the implementation of
a Rule 10b5-1 trading plan, as provided under rules
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promulgated by the Securities and Exchange Commission ("SEC"),
for Dutkowsky upon Dutkowsky's election to establish such a plan.
o Should Dutkowsky voluntarily resign from employment with X.X.
Xxxxxxx or be terminated by X.X. Xxxxxxx for Cause at any time
during the Initial Employment Term, the Stock Option Grant will
be cancelled effective upon the date of resignation or
termination for Cause and Dutkowsky will have the right to
exercise any portion of his stock options which are vested as of
the date of termination of employment. Should Dutkowsky's
employment be terminated by X.X. Xxxxxxx Without Cause or due to
death or Disability, all of Dutkowsky's unvested stock options
and restricted stock which vest purely as a function of time and
which are due to vest within one (1) year after the termination
of employment will be accelerated and vest on the date of
termination and provided further that if any of the share price
goals of the Performance Options are subsequently attained within
sixty (60) days after termination of employment then such
Performance Options shall also vest on such date of goal
attainment. Moreover, if Dutkowsky's employment is terminated
Without Cause by X.X. Xxxxxxx (or its successor) in connection
with a "Change in Control" (as such term is defined in the X.X.
Xxxxxxx & Company Management Change in Control Plan) of X.X.
Xxxxxxx or within 18 months after a Change in Control, or under
circumstances described in Section 5.2 of this Employment
Agreement, then all of Dutkowsky's unvested stock options and
restricted stock shall fully vest on the date of termination of
employment. All options not vested by the terms hereof will
otherwise terminate. Dutkowsky shall have a period of six (6)
months commencing upon termination of employment to exercise his
vested stock options under this Section.
4. EMPLOYEE BENEFITS. Dutkowsky will be eligible to participate in all
employee benefits provided by X.X. Xxxxxxx to employees or to executive
management, based upon his position and tenure, including, but not limited to,
the following:
4.1 HEALTH AND LIFE INSURANCE. X.X. Xxxxxxx agrees to provide to
Dutkowsky (and his spouse and dependents) coverage under X.X. Xxxxxxx'
group health and life insurance plan, the coverage, terms and benefits
of which shall be determined, from time to time, in the sole
discretion of X.X. Xxxxxxx' Board of Directors. In addition, X.X.
Xxxxxxx will reimburse Dutkowsky for premiums on a life insurance
policy providing coverage in an amount of his annual salary plus
Target Bonus. At such time as X.X. Xxxxxxx institutes a company
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sponsored life insurance program for executives which provides life
insurance coverage of at least the amount of Dutkowsky's life
insurance set forth in the preceding sentence, Dutkowsky's personal
life insurance will be converted to such company insurance plan with
premiums paid by X.X. Xxxxxxx.
4.2 PAID TIME OFF. Dutkowsky shall be entitled to the maximum paid time
off provided for in X.X. Xxxxxxx paid time off policy in effect from
time to time.
4.3 QUALIFIED/NON-QUALIFIED PLAN(S). Dutkowsky shall be entitled to
participate in any qualified or non-qualified plan(s) adopted by X.X.
Xxxxxxx Board of Directors provided Dutkowsky fulfills all eligibility
requirements under the terms and conditions of such plan. The X.X.
Xxxxxxx Board of Directors reserves the sole right and discretion to
adopt or terminate a plan and to establish all eligibility
requirements and other terms and conditions of such plan.
4.4 COMMUTING EXPENSES. Dutkowsky will perform his services under this
Employment Agreement by commuting between his residence in Boston and
the Company's offices in Denver for an initial term. This initial
commuting term will terminate no later than December 31, 2003, by
which time Dutkowsky will have relocated to Denver. Dutkowsky agrees
to use reasonable efforts to relocate to Denver by September, 2003.
During the commuting period, X.X. Xxxxxxx will cover Dutkowsky's
reasonable expenses associated with commuting, to include apartment
rental, hotel, rental car, air travel, and airport parking. Dutkowsky
will submit documentation of his actual expenses to be reimbursed
under this section.
4.5 RELOCATION EXPENSES. X.X. Xxxxxxx will cover all reasonable and
customary expenses associated with Dutkowsky's relocation to Denver,
including shipment/storage of household goods, 90 days temporary
living, two house hunting trips, closing costs associated with
purchase of a new residence in the Denver area, shipment of
automobiles, tax assistance, and miscellaneous reasonable expenses.
X.X. Xxxxxxx' reimbursement obligations under this section will be
subject to a one-time grossing up (assuming the maximum federal and
state marginal tax rates) so that Dutkowsky receives such additional
amount as will be necessary to defray income taxation incurred by him
on the reimbursed amount. Dutkowsky will submit documentation of his
actual expenses to be reimbursed under this section.
5. SEVERANCE PAY. If Dutkowsky's employment is terminated by X.X. Xxxxxxx
Without Cause (as defined below) or due to death or Disability, then Dutkowsky
shall be entitled to receive severance pay in the amount of two (2) years of
Dutkowsky's then current base salary and two (2) years of Target Bonus
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("Severance Allowance"), conditioned upon Dutkowsky and X.X. Xxxxxxx entering
into a Separation Agreement substantially in the form attached hereto.
Additionally, Dutkowsky shall be paid for any accrued vacation, unpaid bonuses
or unreimbursed expenses and for any earned bonus in the year of termination.
For purposes of this Employment Agreement, Disability shall mean that Dutkowsky
is unable to perform his duties for 180 consecutive days as a result of
incapacity due to physical or mental illness. This severance payment will be
made to Dutkowsky within 10 days after execution of the Separation Agreement in
a one-time, lump sum payment subject to appropriate tax withholding.
Notwithstanding the foregoing, however, no Severance Allowance shall be paid if
termination is for Cause or if Dutkowsky voluntarily terminates employment
within the Initial Employment Term, or any renewed term.
5.1 COBRA MEDICAL INSURANCE. If Dutkowsky's employment is terminated
Without Cause or because of death or Disability, in addition to the
severance payment in accordance with Section 5, Dutkowsky and his
dependents will be eligible for medical insurance (for himself and
his spouse and dependant(s)) under COBRA commencing on the date of
his termination for a period of two (2) years at X.X. Xxxxxxx' sole
expense.
5.2 MANAGEMENT CHANGE IN CONTROL PLAN. The X.X. Xxxxxxx & Company
Management Change in Control Plan (the "Plan") will remain in full
force and effect as to Dutkowsky for the term of this Employment
Agreement and will continue thereafter only so long as Dutkowsky
remains an employee of X.X. Xxxxxxx. Xxxxxxxxx will be issued a
Notice of Participation in the Plan designating his severance payment
percentage as two hundred percent (200%) of Annual Compensation, and
his benefits continuation period as 24 months. Notwithstanding
anything to the contrary in the Plan, in the event that it is
determined that any payment or distribution of any type to or for the
benefit of Dutkowsky made by X.X. Xxxxxxx, by any of its affiliates,
by any person who acquires ownership or effective control or
ownership of a substantial portion of the assets of X.X. Xxxxxxx
(within the meaning of section 280G of the Internal Revenue Code of
1986, as amended, and the regulations thereunder (the "Code")) or by
any affiliate of such person, whether paid or payable or distributed
or distributable pursuant to the terms of an employment agreement or
otherwise (the "Total Payments"), would be subject to the excise tax
imposed by section 4999 of the Code or any interest or penalties with
respect to such excise tax (such excise tax, together with any such
interest or penalties, are collectively referred to as the "Excise
Tax"), then Dutkowsky shall be entitled to receive an additional
one-time payment (an "Excise Tax Restoration Payment") from the
Company in an amount sufficient to pay such Excise Tax (the "One
Time 280G Gross Up"). Unless X.X. Xxxxxxx and Xxxxxxxxx agree
otherwise in writing, the determination of Dutkowsky's Excise Tax
liability and the amount
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required to be paid under this Section shall be made in writing by X.X.
Edward's independent accountants (the "Accountants"). For purposes of
making the calculations required by this Section, the Accountants may
make reasonable assumptions and approximations concerning applicable
taxes and may rely on interpretations of the Code for which there is a
"substantial authority" tax reporting position. X.X. Xxxxxxx and
Dutkowsky shall furnish to the Accountants such information and
documents as the Accountants may reasonably request in order to make a
determination under this Section. X.X. Xxxxxxx shall bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this Section. In addition, if Plan benefits are
triggered, all of Dutkowsky's unvested stock options and restricted
stock will fully vest, notwithstanding the vesting requirements of the
X.X. Xxxxxxx 1997 Equity Incentive Plan, or of Section 3.2 of this
Employment Agreement. Upon execution of this Employment Agreement, the
X.X. Xxxxxxx Board of Directors agrees that it waives all rights under
the Plan to remove Dutkowsky as a participant in the Plan, terminate
the Plan with respect to Dutkowsky, amend or otherwise modify the Plan
in any manner that would be detrimental to Dutkowsky or serve to reduce
the Severance Benefits payable to Dutkowsky under the Plan. In addition
to the triggering events provided in the Plan, Dutkowsky's entitlement
to all Plan benefits will be triggered if there has been a public
announcement of an agreement to a transaction, which if consummated,
would constitute a Change in Control, and, prior to consummation,
Dutkowsky's employment is subjected to an "Involuntary Termination," as
defined in the Plan, at the initiative of a party to the transaction
other than X.X. Xxxxxxx. Xxxxxxxxx will be entitled to receive a
payment of cash severance benefits under the Plan or under Section 5 of
this Employment Agreement, whichever Dutkowsky elects to receive, but
shall not be entitled to both such payments. Dutkowsky's entitlement to
benefits under the Plan are conditioned upon Dutkowsky and X.X. Xxxxxxx
entering into a Separation Agreement substantially in the form attached
hereto. In the event of a Change in Control and either an Involuntary
Termination or if Dutkowsky does not continue to serve as President and
Chief Executive Officer of the ultimate parent entity of X.X. Xxxxxxx,
but Dutkowsky's employment has not been terminated by an acquiring
entity. Dutkowsky agrees to remain in employment for six months, at the
option of the acquiring entity, and will then have 30 additional days
in which to decide whether or not to resign and invoke Plan benefits.
In the event Dutkowsky's employment is extended pursuant to the
foregoing sentence, he shall remain entitled to receive all severance
benefits under the Plan or under Section 5 of this Employment
Agreement, including the full vesting of stock options and restricted
stock, upon the termination, for whatever reason, of his employment or
Dutkowsky's
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resignation.
5.3 INDEMNIFICATION AGREEMENT. The parties executed the X.X. Xxxxxxx
& Company Indemnification Agreement on January 2, 2002 (the
"Indemnification Agreement").
5.4 CONFIDENTIALITY AND NON-SOLICITATION. Dutkowsky acknowledges that
he has signed the X.X. Xxxxxxx Employee Nondisclosure Agreement
effective January 2, 2002, and confirms that he will continue to
abide by the obligations contained therein. Subject to compliance
with applicable laws and regulations, including but not limited
to disclosure requirements imposed by the SEC, or any judicial
orders, the parties agree to maintain the confidentiality of the
terms of this Employment Agreement and in the event a dispute
should arise between the parties, neither party shall disclose
publicly the existence of any such dispute.
6. TERMINATION. X.X. Xxxxxx shall have the right to terminate Dutkowsky's
employment prior to the expiration of this Employment Agreement for "Cause"
or "Without Cause" as set forth below:
6.1 TERMINATION FOR CAUSE. For the purpose of this Employment
Agreement, Cause shall mean the good faith determination by the
X.X. Xxxxxxx Board of Directors that Dutkowsky's employment
should be terminated due to one or more of the following, each of
which have materially harmed or materially damaged X.X. Xxxxxxx:
(a) Dutkowsky has willfully engaged in an act or acts of gross
misconduct;
(b) Dutkowsky's willful failure to follow the lawful
instruction of the X.X. Xxxxxxx Board of Directors;
(c) Dutkowsky has willfully misappropriated X.X. Xxxxxxx
property; or
(d) Dutkowsky has been convicted of, or plead "no contest" to,
a felony.
For purposes of this Section 6.1, no act or failure to act shall
be considered "willful" unless it is done, or omitted to be done,
in bad faith without reasonable belief that the action or
omission was in the best interest of X.X. Xxxxxxx. A termination
for Cause under Sections 6.1(a) or (b) shall not occur until such
event, conduct or condition has not been cured to the
satisfaction of the X.X. Xxxxxxx Board of Directors within thirty
days after written notice of the intention to terminate for Cause
has been delivered to Dutkowsky by X.X. Xxxxxxx. Such written
notice shall specifically describe the circumstances and reasons
for the intention to terminate for Cause.
In the event corrective action is not timely taken, in each case
as
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determined by the X.X. Xxxxxxx Board of Directors, a final written
notice of termination shall be provided to Dutkowsky by X.X.
Xxxxxxx.
6.2 TERMINATION WITHOUT CAUSE. For the purposes of this Employment
Agreement, termination of employment "Without Cause" shall be for
any reason as determined by X.X. Xxxxxxx Board of Directors in the
good faith exercise of its business judgment. Termination "Without
Cause" shall include any of the following:
o A reduction in the position, titles or duties of Dutkowsky. In
the event there is an acquisition, recapitalization, merger,
reorganization, Change in Control involving X.X. Xxxxxxx or a
similar corporate transaction, Dutkowsky shall continue to serve
as President and Chief Executive Officer of the ultimate parent
entity of X.X. Xxxxxxx or else Dutkowsky's employment will be
deemed to have been terminated Without Cause;
o Any requirement that Dutkowsky relocate to a site outside of the
Denver Metropolitan Area or the relocation of the headquarters
facility of X.X. Xxxxxxx to a location outside of the greater
metropolitan area of Denver, Colorado;
o Any reduction in Dutkowsky's pay, base salary, Target Bonus or
benefits;
o Any purported termination of Dutkowsky by X.X. Xxxxxxx which is
not effected for Cause, or any act or set of facts or
circumstances which would, under Colorado case law or statute,
constitute a constructive termination of Dutkowsky;
o The failure of X.X. Xxxxxxx to obtain the assumption of this
Employment Agreement by any of its successors contemplated in
Section 8.2 below;
o The failure to re-elect Dutkowsky to the X.X. Xxxxxxx Board of
Directors or the failure to re-elect Dutkowsky as Chairman of
the Board of Directors;
o A material breach of this Employment Agreement by X.X. Xxxxxxx;
or
o The failure of C. Xxxxxx XxXxxxx to either (a) timely resign
from the X.X. Xxxxxxx Board of Directors or (b) timely retire
or resign as Chairman of the X.X. Xxxxxxx Board of Directors as
described above in Section 1.1 of this
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Employment Agreement, or any action by which C. Xxxxxx XxXxxxx
remains or reassumes any such position following resignation or
retirement.
Any resignation of employment by Dutkowsky after the occurrence of
any of the above events shall be treated as a termination of
Dutkowsky's employment Without Cause by X.X. Xxxxxxx (and not as a
voluntary resignation or voluntary termination by Dutkowsky) for
purposes of this Employment Agreement.
6.3 DISPUTE RESOLUTION. Should Dutkowsky dispute whether X.X. Xxxxxxx has
been reasonable in interpreting "Cause or "Without Cause," or Section
5.2 of this Employment Agreement then in such event Dutkowsky may
submit the matter to arbitration. Dutkowsky agrees that arbitration
shall be the exclusive forum for resolution of such a dispute, and
that no court proceeding may be commenced. The arbitration proceeding
shall be conducted under the applicable rules of the American
Arbitration Association and shall be located in Denver, Colorado. If
such organization ceases to exist, the arbitration shall be conducted
by its successor, or by a similar arbitration organization, at the
time a demand for arbitration is made.
The decision of the arbitrator shall be final and binding on both
parties. Each party shall be responsible for its or his own expenses
for the arbitrator's fee, attorneys' fees, expert testimony, and for
other expenses of presenting its or his case. Other arbitration costs,
including fees for records or transcripts, shall be borne equally by
the parties.
6.4 COMPENSATION EARNED PRIOR TO TERMINATION AND OTHER PAYMENTS. In the
event that X.X. Xxxxxxx terminates Dutkowsky's employment for Cause
during the Initial Employment Term or any renewal period, Dutkowsky
shall be entitled to the salary and benefits earned prior to the date
of termination as provided for in this Employment Agreement computed
pro rata up to and including that date along with any accrued vacation
and unreimbursed expenses. Dutkowsky shall be entitled to no further
compensation as of the date of termination.
6.5 RENEWAL. This Employment Agreement shall be deemed automatically
renewed following the Initial Employment Term for successive one (1)
year periods without any further act of the parties, unless, not later
than thirty (30) days prior to the end of any term, either party
provides the other with written notice of intent not to renew;
notwithstanding the foregoing, however, X.X. Xxxxxxx shall have no
obligation to re-grant the specific grants of options and stock set
forth in the first three bullets of Section 3.2, Stock
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Option Grant of this Employment Agreement after the initial two (2)
year period. Neither party may purport to renew or extend this
Employment Agreement with any changes or modifications without the
written consent of the other party.
6.6 NON-RENEWAL. Any non-renewal of this Employment Agreement shall be
treated as a termination of Dutkowsky's employment Without Cause and
be governed by the provisions of this Employment Agreement applicable
to terminations Without Cause, including, but not limited, to the
payments and benefits due to Dutkowsky under Sections 3, 5, and 6 of
this Employment Agreement.
7. COOPERATION. The parties hereto agree that, at all times during
Dutkowsky's employment, and following termination of his employment, each party
shall avoid making any remarks about the other party, which for X.X. Xxxxxxx
shall include its affiliates, officers, directors, employees and agents, that
would be false and defamatory of the other party.
8. MISCELLANEOUS.
8.1 COSTS OF AGREEMENT. X.X. Xxxxxxx will reimburse Dutkowsky all attorney
and consultant fees reasonably incurred by him in connection with the
preparation, negotiation, execution and interpretation of this
Employment Agreement, up to, and including, the date this Employment
Agreement and all other agreements referred to within this Employment
Agreement are fully executed. Dutkowsky will provide documentation to
X.X. Xxxxxxx of the actual expenses incurred.
8.2 ASSIGNMENT. Neither X.X. Xxxxxxx nor Dutkowsky may assign this
Employment Agreement or any of their respective obligations hereunder.
Notwithstanding the previous sentence, any successor to X.X. Xxxxxxx
(whether direct or indirect and whether by purchase, lease, merger,
consolidation, liquidation, by operation of law or otherwise) or to
all or substantially all of X.X. Xxxxxxx' business and/or assets
shall assume the obligations under this Employment Agreement and agree
expressly to perform the obligations under this Employment Agreement
by executing a written agreement.
8.3 NOTICES. Any notice or other communication provided for or required by
this Employment Agreement shall be deemed given within (i) three (3)
business days after mailing by registered or certified mail, postage
prepaid, return receipt requested, (ii) one (1) business day after
deposit with a recognized overnight courier (such as Federal Express)
or (iii) upon delivery if sent by facsimile
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transmission or in person in each case to the following address:
TO X.X. XXXXXXX:
X.X. Xxxxxxx & Company
Xxx Xxxxxxxxxx Xxx
Xxxxxx, Xxxxxxxx 00000
Attn: Vice President, General Counsel
Fax: 000-000-0000
TO DUTKOWSKY:
Xxxxxx X. Xxxxxxxxx
0 Xxxxx Xxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Fax: 000-000-0000
or at such other address or addresses as X.X. Xxxxxxx or
Dutkowsky may designate, in writing.
8.4 GOVERNING LAW. This Employment Agreement and each term thereof
shall be subject to and governed by the laws of the State of
Colorado.
8.5 SEVERABILITY. If any portion of this Employment Agreement shall
be, for any reason, invalid or unenforceable, the remaining
portion or portions shall nevertheless be valid, enforceable and
effective unless such result would clearly violate the present
legal and valid intention of the parties hereto.
8.6 ENTIRE AGREEMENT. This Employment Agreement (and the executed
agreements referenced herein) constitutes the entire agreement
between the parties and contains all of the agreements between
the parties with respect to the subject matter hereof. This
Employment Agreement supersedes any and all other agreements,
either oral or written, between the parties hereto with respect
to the subject matter hereof, including, without limitation,
that certain "Term Sheet" dated December 10, 2001.
8.7 AMENDMENT. No change or modification of this Employment
Agreement shall be valid unless the same shall be in writing and
signed by Dutkowsky and a duly authorized officer of X.X.
Xxxxxxx. No waiver of any provision of this Employment Agreement
shall be valid unless in writing and signed by the party or
party to be charged.
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8.8 BENEFIT. This Employment Agreement shall be binding upon and
inure to the benefit of X.X. Xxxxxxx and Xxxxxxxxx and their
respective successors, heirs, legal representatives and
permitted assigns. This Employment Agreement is hereby executed
as of the date set forth above.
X.X. XXXXXXX & COMPANY DUTKOWSKY
By: /s/ XXXXXXX X. XXXX, XX. By: /s/ XXXXXX X. XXXXXXXXX
---------------------------------- ----------------------------------
(Authorized Signature) Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxx, Xx.
Vice President, General
Counsel & Secretary
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SCHEDULE OF ATTACHMENTS
ATTACHMENT A - SEPARATION AGREEMENT
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ATTACHMENT A - SEPARATION AGREEMENT
This Separation Agreement (referred to as "the Agreement") is made by and
between X.X. Xxxxxxx & Company, X.X. Xxxxxxx World Solutions Company and X.X.
Xxxxxxx World Source Company (collectively "X.X. Xxxxxxx"), corporations having
their principal place of business at 0000 Xxxxxxxxxx Xxx, Xxxxxx, Xxxxxxxx
00000, and ______________________ (referred to as "You" and by "Your"). You and
X.X. Xxxxxxx are each referred to as a "party" and both are referred to as
"parties."
Whereas, Your employment with X.X. Xxxxxxx has been terminated effective
____________;
Whereas, You and X.X. Xxxxxxx desire to resolve any and all claims and disputes
between You and X.X. Xxxxxxx, including, without limitation, those related to
Your employment by, or separation from, X.X. Xxxxxxx or alleged
representations, contracts, and agreements (written, oral, or implied)
regarding Your employment by X.X. Xxxxxxx; and
In consideration of the mutual promises expressed herein and the payment to be
made to You, You and X.X. Xxxxxxx agree as follows:
1. PAYMENTS. No later than twenty (20) calendar days following the Effective
Date of this Agreement and provided that this Agreement has not been revoked by
You under section 5, X.X. Xxxxxxx will pay You the gross sum of USD __________.
X.X. Xxxxxxx will reimburse You for Your premiums for Your existing medical,
dental, and vision health insurance for a period of XXX (XX) months, or until
Your coverage under the Consolidated Omnibus Budget Reconciliation Act
("COBRA") terminates, whichever period is shorter.) The parties expressly agree
that the payments made under this section exceed any compensation or benefits
that You would otherwise be entitled to if You had not executed this Agreement.
The payments will be reduced by any amounts owed X.X. Xxxxxxx and the amount
of applicable taxes withheld by X.X. Xxxxxxx, which will be withheld at the
supplemental tax rate.
2. MUTUAL RELEASE. You irrevocably and unconditionally release and forever
discharge X.X. Xxxxxxx, X.X. Xxxxxxx' past and present directors, officers,
shareholders, employees, successors, attorneys, agents, representatives, and
assigns (each a "Releasee") from any and all liabilities, claims, (including
attorneys' fees), demands, rights, and causes of actions, whether known or
unknown, that You may have or claim to have against any Releasee, including,
without limitation, those relating to Your employment by, or separation from,
X.X. Xxxxxxx. Without limiting the generality of this section, and by way of
example and not limitation, this section shall specifically apply to rights and
claims under Title VII of the Civil Rights Act of 1964 as amended, the Age
Discrimination in Employment Act (ADEA) of 1967, as amended, the Older Workers
Benefit Protection Act, the Civil Rights Act of 1966 and 1971, the Civil Rights
Act of 1991, the Rehabilitation Act of 1973, Executive Order 11246, the Equal
Pay Act of 1963, the Americans with Disabilities Act, breach of contract,
defamation, infliction of emotional distress, wrongful discharge, breach of a
covenant of good faith and fair dealing, and any other federal, state or local
statute, law, ordinance, regulation, order or principle of Law. By signing this
Agreement, You represent that You have not filed nor caused to be filed any
charge, complaint, lawsuit, or other claim (collectively "Claims") against any
Releasee and You specifically waive the right to recover any remedies, monetary
or otherwise, that might be available if You file any such Claims. This
Agreement may be used by any Releasee as a complete defense to any Claims
asserted by You or anyone on Your behalf against a Releasee. If You or anyone
on Your behalf violates this section of the Agreement, You shall pay all costs
and expenses (including reasonable attorneys' fees) incurred by a Releasee in
defending against the claims. Notwithstanding the foregoing, this release shall
not extend to Your rights to indemnification or coverage under the X.X. Xxxxxxx
directors and officers liability insurance policy.
X.X. Xxxxxxx irrevocably and unconditionally releases and forever discharges
You and Your successors, attorneys, agents, representatives, and assigns (each
a "JDEC Releasee") from any and all liabilities, claims (including attorneys'
fees), demands, rights, and causes of actions, whether known or unknown, that
X.X. Xxxxxxx may have or claim to have against any JDEC Releasee, including,
without limitation, those relating to Your employment by, or separation from,
X.X. Xxxxxxx. Without limiting the generality of this section, and
Dutkowsky Employment Agreement
Page 15 of 17
by way of example and not limitation, this section shall specifically apply to
rights and claims under breach of contract, defamation, infliction of emotional
distress, breach of a covenant of good faith and fair dealing, and any other
federal, state or local statute, law, ordinance, regulation, order or principle
of law. By signing this Agreement, X.X. Xxxxxxx represents that it has not filed
nor caused to be filed any charge, complaint, lawsuit, or other claim
(collectively "JDEC Claims") against any JDEC Releasee and X.X. Xxxxxxx
specifically waives the right to recover any remedies, monetary or otherwise,
that might be available if it files any such JDEC Claims. This Agreement may be
used by any JDEC Releasee as a complete defense to any JDEC Claims asserted by
X.X. Xxxxxxx or anyone on its behalf against a JDEC Releasee. If X.X. Xxxxxxx or
anyone on its behalf violates this section of the Agreement, X.X. Xxxxxxx shall
pay all costs and expenses (including reasonable attorneys' fees) incurred by a
JDEC Releasee in defending against the JDEC Claims.
3. MISTAKE. Both parties understand that, after the date of this Agreement,
each may discover facts different from, or in addition to, those which each now
know or believe to be true with respect to the claims released or waived above
and that, as part of the consideration contained in this Agreement, each party
expressly assumes the risk that the Agreement was made on the basis of mistake
or mistakes, mutual or unilateral, of any nature whatsoever. Each party intends
that this Agreement shall not be rescinded, reformed, modified, voided, or
changed in any way on the basis of any mistake or mistakes whatsoever.
4. NO LIABILITY. The Payment is not intended to be, and shall not be
construed as, an admission of liability or wrongdoing on the part of any
Releasee or JDEC Releasee. No Releasees or JDEC Releasees have admitted, nor do
they admit, that they engaged in any wrongful or unlawful act, or that they
violated any federal, state, or local statute, law, regulation, order, or
principle of law, and further expressly deny such violation.
5. REVOCATION. You have seven (7) calendar days after Your execution of this
Agreement (the "Revocation Period") in which to revoke this Agreement by so
notifying ___________________ at X.X. Xxxxxxx. This Agreement shall be
effective the eighth day after Your execution of this Agreement (the "Effective
Date"), provided that You have not revoked this Agreement.
6. FUTURE COOPERATION. You shall cooperate, upon a reasonable request by X.X.
Xxxxxxx with reasonable advance notice, at X.X. Xxxxxxx' expense, with X.X.
Xxxxxxx in connection with any legal proceeding in which X.X. Xxxxxxx is or may
become a party.
7. EFFECT ON EXISTING AGREEMENTS. Notwithstanding this Agreement, the limited
specific provisions of any agreements between You and X.X. Xxxxxxx relating to
confidentiality, unfair competition, noncompetition, employee solicitations, and
inventions are unaffected and remain in full force and effect. All other
provisions of all other agreements between You and X.X. Xxxxxxx shall be
superseded and become null and void upon the effective date of this Agreement.
8. CONFIDENTIALITY/NON-DISPARAGEMENT. Subject to compliance with applicable
laws or regulations, each party shall not disclose the existence, facts, or
terms of this Agreement to anyone other than immediate family, employees,
accountants, attorneys, or financial or tax advisors who have been advised of,
and agree to maintain, its confidentiality. Each party shall not do or say
anything that portrays the other party or their family members, successors,
agents, management, employees, products, or services in a negative light.
9. MISCELLANEOUS. This Agreement constitutes the complete and exclusive
agreement between the parties concerning this subject matter hereof and
supersedes any prior communication regarding such subject matter. This Agreement
may not be cancelled or modified unless in writing signed by You and a
vice-president or more senior officer of X.X. Xxxxxxx. Any waiver of any default
or breach of this Agreement shall be effective only if in writing and signed by
an authorized representative of the party providing the waiver. No such waiver
shall be deemed to be a waiver of any other or subsequent breach or default. In
entering into this Agreement, You represent and warrant that You are not
relying, and will not rely, on any promises, inducements, or representations
made by or on behalf of any Releasee with respect to the subject
Dutkowsky Employment Agreement
Page 16 of 17
matter of this Agreement. This Agreement shall be binding on and shall inure to
the benefit of the parties and their respective heirs, legal representatives,
successors, assigns, directors, officers, agents, and employees. This Agreement
will be governed by the internal laws of the State of Colorado, without regard
to conflict of law principles. If any judicial or administrative authority
determines that any term of this Agreement is invalid or illegal, such
determination shall not apply to the remaining terms of this Agreement and all
remaining provisions of this Agreement shall remain in full force and effect.
YOU HAVE FULLY READ, UNDERSTAND THE SIGNIFICANCE AND CONSEQUENCES OF, AND
FREELY AGREE TO BE BOUND BY THIS AGREEMENT. YOU HAVE BEEN ADVISED TO CONSULT
WITH AN ATTORNEY REGARDING THE PURPOSE AND EFFECT OF THIS AGREEMENT BEFORE
SIGNING.
YOU UNDERSTAND THAT APPLICABLE LAW PROVIDES YOU WITH TWENTY-ONE (21) CALENDAR
DAYS IN WHICH TO CONSIDER THIS AGREEMENT. [REMOVE THIS IF EMPLOYEE IS NOT
FREELY WAIVING THIS PERIOD -> BY SIGNING THIS AGREEMENT BEFORE THE END OF THE
21-DAY PERIOD, YOU ARE INDICATING THAT YOU ARE FREELY WAIVING THE BALANCE OF
THIS PERIOD.]
YOU HAVE SEVEN (7) CALENDAR DAYS FROM THE DATE OF YOUR SIGNATURE BELOW IN WHICH
TO REVOKE THIS AGREEMENT AS PERMITTED IN SECTION 5.
X.X. XXXXXXX
By
------------------------------- ---------------------------------
(Authorized Signature) (Your Signature)
------------------------------- ---------------------------------
(Print or Type Name) (Print or Type Name)
------------------------------- ---------------------------------
(Title) (Print Address)
---------------------------------
(Date)
[***USE BELOW WHEN YOU ARE NOT
WITNESSING SIGNATURE]
STATE OF )
) ss
COUNTY OF )
SUBSCRIBED AND SWORN TO before me
this____Day of________, 20 ___ by
.
--------------------------------
Witness my hand and official seal
My commission expires:__________.
--------------------------------
Notary Public
Dutkowsky Employment Agreement
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