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EXHIBIT 10.13
SEPARATION AGREEMENT AND GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL RELEASE is made as of the 17th
day of December, 1997 (hereinafter referred to as the "Separation Agreement"),
by and among Xxxxxx Xxxxxx (hereinafter referred to as "Huyzer"), BT Office
Products International, Inc. (hereinafter "BTOPI") and NV Koninklijke KNP BT
(hereinafter referred to as "KNP BT").
W I T N E S S E T H:
WHEREAS, pursuant to an Employment Agreement, dated October 3, 1995,
between KNP BT and Huyzer, Huyzer has been employed as President and Chief
Executive Officer of BTOPI (formerly named KNP BT USA, Inc.);
WHEREAS, Huyzer has voluntarily retired from employment with BTOPI
effective August 11, 1997 ( the "Retirement Date"); and
WHEREAS, Huyzer, KNP BT and BTOPI desire to settle fully and finally
any differences, rights and duties arising among them, including,
but in no way limited to, any differences, rights and duties that have arisen
or might arise out of or are in any way related to the Employment Agreement,
Huyzer's employment with BTOPI, and the conclusion of that employment;
NOW, THEREFORE, in consideration of the covenants and mutual promises
herein contained, it is agreed as follows:
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1. BTOPI shall pay Huyzer the amount of $ 853,846.68
(the "Separation Payment"), less all applicable withholding taxes, such
payment to be made by wire transfer no later than the eighth business day
following the date BTOPI receives this Separation Agreement executed by Huyzer
(the "Payment Date"). Other than as specifically set forth herein, Huyzer
acknowledges and agrees that he is not due any compensation or benefits,
including compensation for unpaid salary, unpaid bonus, or accrued and unused
vacation time or vacation pay.
2. In addition to the Separation Payment, on the Payment
Date, BTOPI shall pay Huyzer by wire transfer the amount of $84,000.00, less
all applicable withholding taxes, such sum representing the amount of bonus
compensation Huyzer has received during the twenty four month period
immediately preceding the Retirement Date. In addition, BTOPI shall pay Huyzer
62.5% of the bonus that Huyzer would have otherwise been entitled to receive
under BTOPI's Executive Management Bonus Plan for 1997, such amount to be
calculated and paid in accordance with the terms of the Plan as applicable to
all other executives eligible under the Plan.
3. BTOPI shall pay Huyzer the amount of $122,691.00,
less all applicable withholding taxes, such sum representing Huyzer's total
accrued but unused vacation time. BTOPI shall pay such sum by wire transfer on
the Payment Date.
4. In lieu of reimbursing Huyzer for the cost of
individual outplacement counseling services, BTOPI shall pay Huyzer $25,000,
less all applicable withholding taxes, such sum to be paid by wire transfer on
the Payment Date.
5. Commencing with the Retirement Date, BTOPI/KNP BT
shall continue to contribute monthly on Huyzer's behalf to KNP BT's Pension
Plan for 36 consecutive months in
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accordance with the terms and conditions thereof. Such contributions shall be
based on Huyzer's base salary as of the Retirement Date. Any contributions
already made after the Retirement Date attributable to said 36-month period
shall be credited regarding this obligation.
6. BTOPI shall reimburse Huyzer for the costs associated
with his relocation to Holland, including up to $25,000.00 for the costs
associated with Huyzer's travel and lodging to search for a home in Holland;
provided that Huyzer submits proper documentation for all such costs (the
"Relocation Costs"). In addition to the Relocation Costs, BTOPI shall pay to
Huyzer an additional amount such that the net amount retained by him after the
payment by Huyzer of any federal, state and local income tax incurred as a
result of the Relocation Costs, shall be equal to the Relocation Costs. Such
costs shall include, but not be limited to, brokerage commissions, transfer
taxes, notary and lawyers' fees on the sale of Huyzer's home in the United
States and the purchase by Huyzer of a residence in Holland, and all costs of
shipping Huyzer's furniture and other personal objects to Holland, and costs
and insurance thereon. In addition, such costs shall include, but not be
limited to, a "settling allowance" of $6,000 upon Huyzer's purchase of a
residence in Holland.
7. BTOPI shall pay the costs of covering Huyzer and his
spouse under KNP BT's health insurance plan for a period of eighteen months
following the Retirement Date.
8. BTOPI shall pay the costs of Huyzer's disability
insurance premiums under KNP BT's disability insurance plan for a period of
eighteen months following the Retirement Date.
9. KNP BT represents and warrants that it has modified
the terms of its option plan to enable Huyzer to exercise his KNP BT options in
accordance with their original term and exercise date.
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10. BTOPI covenants and agrees that all of Huyzer's
unvested options to purchase stock of BTOPI shall immediately vest as of the
date hereof. Huyzer shall be entitled to exercise all of his options to
purchase stock in BTOPI in accordance with the terms and conditions of BTOPI's
stock option agreements and stock option plan. Notwithstanding the foregoing
or anything else contained in the option agreements or the stock option plan,
Huyzer acknowledges and agrees that Huyzer's options to purchase stock in
BTOPI shall expire on the third anniversary of the Retirement Date.
11. Effective as of the Retirement Date, Huyzer hereby
resigns all appointments he holds with KNP BT, BTOPI and their respective
affiliates as a director, officer, employee, member of any committee of the
Board of Directors or Trustee of any employee benefit or pension plan. As used
in this Separation Agreement, the term "affiliates" shall include, but not be
limited to, any organization with respect to which Huyzer serves at the request
of or in connection with the business of either KNP BT or BTOPI.
12. In consideration of the Separation Payment and other
payments, covenants and benefits set forth in this Separation Agreement, which
Huyzer acknowledges are in excess of any payments to which he would otherwise
be entitled, Huyzer for himself, his children, his heirs, administrators,
representatives, executors, successors and assigns releases and gives up any
and all claims and rights which he may have or hereafter have against KNP BT
and BTOPI, their respective owners, parents, subsidiaries, affiliates,
predecessors, successors, assigns, and all of their respective officers,
directors, shareholders, employees and agents (collectively, the "Releasees")
from the beginning of the world until the date of the execution of this
Separation Agreement, including, but not limited to, any and all charges,
complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, remedies, actions, causes of action,
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suits, right, demands, costs, losses, debts and expenses (including attorney's
fees and costs) of any nature whatsoever, known or unknown, whether in law or
equity (collectively, "Claims"), including, but not limited to, any Claims
related to the Employment Agreement, Huyzer's employment with BTOPI and the
conclusion thereof and any Claims arising under Dutch law, the United States
and/or State Constitutions, federal and/or common law, and/or rights arising
out of alleged violations of any federal, state or other governmental statutes,
regulations or ordinances including, without limitation, the National Labor
Relations Act, Title VII of the 1964 Civil Rights Act, as amended, the Age
Discrimination in Employment Act ("ADEA"), the Older Workers' Benefit
Protection Act, the Illinois Human Rights Act, the Chicago Human Rights
Ordinance, the Rehabilitation Act of 1973, including Section 504 thereof, the
Americans with Disabilities Act, the Civil Rights Act of 1866 (42 U.S.C.
Section 1981), the Civil Rights Act of 1991, the Equal Pay Act, the Family and
Medical Leave Act, the Fair Labor Standards Act and the Employees Retirement
Income Security Act of 1974, as amended, including, but not limited to, the
right to the payment of wages, vacation, pension benefits or any other employee
benefits, or any other rights arising under federal, state or local laws
prohibiting discrimination and/or harassment on the basis of race, color,
religion, creed, sex, national origin, age, sexual orientation, mental or
physical disability or handicap, marital status, alienage/citizenship or any
other basis prohibited by law, all as amended, or any Claim based on contract
whether express or implied, written or oral.
13. In consideration of the Separation Payment and the
other payments, covenants and benefits contained herein, which Huyzer
acknowledges are in excess of any payments to which he would otherwise be
entitled, Huyzer represents that he has not filed against KNP BT, BTOPI or any
of the Releasees, any complaints, charges or lawsuits with any
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governmental agency or any court arising out of the Employment Agreement,
Huyzer's employment by BTOPI or any other matter arising on or prior to the
date hereof. Huyzer covenants and agrees that he will not, directly or
indirectly, commence or prosecute, or assist in the filing, commencement or
prosecution in any court or before any governmental or administrative agency or
self-regulatory body any claim or charge, against KNP BT, BTOPI or any of the
Releasees, arising out of any of the matters set forth in this Separation
Agreement; provided, however, that this shall not limit Huyzer from commencing
a proceeding for the sole purpose of enforcing his rights under this Separation
Agreement.
14. At all times hereafter, Huyzer will maintain the
confidentiality of all information relating to the business, customers, trade
practices, trade secrets and know-how of KNP BT, BTOPI and the Releasees, and
Huyzer will not, directly or indirectly, make any disclosure thereof to anyone,
or make any use thereof, on his own behalf or on behalf of any third party,
without BTOPI's prior written consent. Huyzer has returned or will immediately
return to BTOPI all reports, files, memoranda, records and software, credit
cards, cardkey passes, door and file keys, computer access codes or disks and
instructional manuals, and other physical or personal property which he
received or prepared or helped prepare in connection with his employment with
BTOPI or his service as an employee, officer and/or director of KNP BT, BTOPI
and the Releasees, and Huyzer has not retained and will not retain any copies,
duplicates, reproductions or excerpts thereof. Huyzer agrees to take all
necessary actions, if required by and at the cost of BTOPI, to vest such
property rights in BTOPI.
In view of the nature of Huyzer's employment and the nature of the
confidential information of KNP BT, BTOPI and the Releasees to which he has had
access during the course of his employment, Huyzer agrees that any unauthorized
disclosure to third parties of any such
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material confidential information or other violation, or threatened violation,
of this paragraph would cause irreparable damage to the trade secret status of
such confidential information and to KNP BT, BTOPI, the Releasees that KNP BT,
BTOPI and the Releasees have no adequate remedy at law and, therefore, in the
event such a material violation or threatened violation is proven KNP BT, BTOPI
or the Releasees will be entitled to an injunction, prohibiting Huyzer from any
such disclosure, attempted disclosure, violation or threatened violation.
15. This Separation Agreement does not constitute or
imply an admission of liability or wrong-doing by KNP BT, BTOPI and/or any of
the Releasees.
16. Huyzer agrees that he shall not make any statements
or comments to the media concerning KNP BT, BTOPI, the Releasees, his
employment with BTOPI or the termination thereof, and that any such comments or
statements shall be made by BTOPI only at the request of the media. In the
event that BTOPI or KNP BT is contacted by the media, BTOPI or KNP BT will not
make any further statements to the media other than to confirm the existence of
this Separation Agreement and the terms and conditions thereof.
17. The parties represent that in executing this
Separation Agreement they do not rely and have not relied upon any
representation or statement not set forth herein made by any party or by any
party's agents, representatives, or attorneys with regard to the subject
matter, basis or effect of this Separation Agreement or otherwise.
18 The parties agree that they will not make, or cause
to be made, any statements, observations or opinions, or communicate any
information (whether oral or written) that disparages or is likely in any way
to harm the reputation of the other including the reputation of any of KNP BT,
BTOPI and/or the Releasees.
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19. BTOPI has advised Huyzer to consult with an attorney
of his choosing prior to the signing of this Separation Agreement and Huyzer
hereby represents to BTOPI that he has been offered an opportunity to consult
with an attorney prior to the execution of this Separation Agreement. Huyzer
shall have twenty-one days to consider the waiver of his rights under ADEA and
once he has signed this Separation Agreement he shall have seven additional
days from the date of execution to revoke his consent to the waiver of his
rights under ADEA. If no such revocation occurs, Huyzer's waiver of rights
under ADEA shall become effective seven days from the date of execution by the
parties. In the event that Huyzer revokes his waiver of rights under ADEA,
BTOPI shall have no further obligation to make any of the payments or provide
any of the benefits set forth herein.
20. This Separation Agreement shall be construed in
accordance with the laws of the State of Illinois without regard to Illinois's
conflict of law provisions.
21. If at any time, after the date of the execution of
this Separation Agreement, any provision of this Separation Agreement shall be
held in any court of competent jurisdiction to be illegal, void or
unenforceable, such provision shall be of no force and effect. However, the
illegality or unenforceability of such provision shall have no effect upon, and
shall not impair the enforceability of, any other provision of this Separation
Agreement.
22. This Separation Agreement sets forth the entire
agreement between the parties with respect to the subject matter hereof. This
Separation Agreement supersedes any and all prior understandings and agreements
between the parties. Huyzer acknowledges and agrees that the Employment
Agreement shall be of no further force and effect. This Separation Agreement
may not be modified except in writing signed by all parties.
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23. Huyzer expressly represents and warrants that he has
carefully read and fully understands that this Separation Agreement is a
general release of all claims, that he has had a full opportunity to review
this agreement with an attorney and that he has executed this Separation
Agreement voluntarily, without duress, coercion or undue influence and with
such advice from his attorney as appropriate.
IN WITNESS WHEREOF, the parties have executed this Separation
Agreement as of the date first written above.
Xxxxxx Xxxxxx NV KONINKLIJKE KNP BT
/s/Xxxxxx Xxxxxx By: /s/ Xxxxx X.X. Koffrie
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Name: Xxxxx X.X. Koffrie
Title: Member Executive Board
BT OFFICE PRODUCTS INTERNATIONAL, INC.
By: /s/ Xxxxx X.X. Koffrie
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Name: Xxxxx X.X. Koffrie
Title: CEO and President
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