AGREEMENT
Xxxxxxx X. Xxxxxx (herein referred to as "Employee") and The Xxxxxx-Xxxxx
Corporation (herein referred to as the "Company") have reached the following
Agreement.
Whereas, Employee has rendered valuable services to the Company.
Now, therefore, it is mutually agreed as follows:
1. RESIGNATION
(a) Employee and the Company hereby agree that Employee shall resign his
employment and position as an officer with the Company on or before
September 30, 1997 (herein referred to as the "Resignation Date").
If Employee provides Company a written notice of resignation before
September 30, 1997, the date of such notice shall be the Resignation
Date hereunder. On the Resignation Date, Employee will resign from
all directorships and any other positions with subsidiaries of the
Company, with the exception of Strategic Diagnostics Inc. It is the
Company's intention that Employee remain the Company's representative
on the Strategic Diagnostics Inc. Board of Directors.
(b) The Employee shall devote his full business time, attention and best
efforts to the affairs of the Company and its subsidiaries until the
Resignation Date; provided, however, that the Employee may engage in
other activities, such as activities involving charitable,
educational, religious and similar types of organizations, speaking
engagements, membership on the board of directors of other
organizations, and similar types of activities to the extent that
such other activities do not interfere with the performance of his
duties under this Agreement, or inhibit or conflict in any material
way with the business of the Company and its subsidiaries.
2. BENEFITS UPON RESIGNATION OR CERTAIN CONDITIONS OF RESIGNATION
Commencing with the Resignation Date, the Company shall provide Employee
the following:
(a) The Company agrees to make weekly payments to Employee of $6,346.15
inclusive of Employee's weekly car allowance of $288.46. Such
payments shall commence upon the first regular Company payroll
payment date after the Resignation Date and end one hundred four
(104) weeks thereafter. Employee understands that the Company will
deduct from these gross payments federal and state withholding taxes
and other deductions in accordance with normal Company practices.
(b) During the period of time commencing upon the Resignation Date, and
ending twenty four (24) months thereafter, Employee will be
considered to be on a personal leave of absence from the Company
solely in order to be eligible for the following specific
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benefits, such benefits to be provided to Employee by the Company in
accordance with that status and the then current terms of the Company's plans.
(i) coverage under the Company's medical, dental and life insurance
plans (unless Employee commences work for and becomes eligible
for coverage under one or more such plans of another employer
with comparable coverages during such twenty four (24) month
period, in which event one or more of such coverages shall
terminate upon the date of Employee's earliest eligibility for
such comparable coverage).
(ii) participation in the Xxxxxx-Xxxxx Employees Pension and Savings
Plans, the Supplemental Retirement Plan, and the Employee Stock
Purchase Plan.
(c) The last day of the above described personal leave of absence will be
treated as the Employee's termination date for purposes of rights
associated with any options held by the Employee under the Company's
Stock Option Plans and Stock Purchase Plan.
(d) The Company shall make available to Employee the services of an
outplacement consultant in accordance with the Company's standard
executive arrangement with Drake Beam Xxxxx Inc. or Manchester
Partners and will provide financial planning services consistent with
the Company's practice for senior management for a period of 24
months following Resignation Date.
(e) The Company shall pay to Employee a share of the Contingent
Compensation award for fiscal year 1998 that would otherwise be made
to Employee on a pro rata basis for that portion of the fiscal year
prior to Resignation Date. Such payment shall be made on or about
the time Contingent Compensation awards for that fiscal year are made
to other eligible employees. Employee shall not be eligible for any
Contingent Compensation award for any fiscal years after 1998.
(f) The Employee remains eligible for a share of the 3,000 performance
shares subject to the August 15, 1996 Performance Share Plan Award
Agreement. The Company agrees to deliver to Employee a pro rata
share of the 3,000 performance shares earned under said Plan in
fiscal year 1998. The pro rata determination will be based upon that
portion of the fiscal year prior to Resignation Date.
(g) Employee shall receive the value of the 3,333 Series A Performance
Units granted under the Performance Unit Bonus Plan corresponding to
the $80 stock price target if, when and to the extent paid to other
holders of such units who remain with the Company through June 26,
2000.
(h) Employee shall be credited with five (5) years of service as an
employee under the terms of the Pension Plan.
3. BENEFITS TO BE IN LIEU OF ANY SEVERANCE PAYMENTS
Employee acknowledges and agrees that the benefits provided
under Section 2 are in lieu of and in excess of Company's standard
severance benefits. Employee understands and agrees
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that, except for pension or other retirement benefits to which the Employee
may be entitled under the Company's standard retirement programs, Employee
shall receive no further wage, vacation, severance or other benefits from the
Company beyond those described in Section 2 hereof, and, as of the Resignation
Date, Employee's Employment Agreement dated November 16, 1995 shall terminate.
Should the Company become obligated to make payments under such
Employment Agreement prior to the Resignation Date, this Agreement shall
be null and void.
4. UNDERTAKINGS OF EMPLOYEE
Employee agrees not to:
(a) for a period of 24 months following the Resignation Date,
solicit for employment, either directly or through any
corporation or other business entity of which Employee may
become an officer, director, employee, or agent, any then
current employee(s) of the Company, for any business activities,
whether competitive or not;
(b) make any derogatory statement, public or otherwise, concerning
the Company, its officers, or its directors;
(c) criticize, denigrate, or disparage the Company, its officers, or
its directors;
(d) assist or participate in any activities that would trigger a
"Change in Control" as such term is defined in Employee's
Employment Agreement dated November 16, 1995 with the Company;
(e) initiate, participate in, or assist with any activity
specifically directed toward, and not solicited by, the Company,
its officers, or its directors other than good faith,
commercially acceptable activities between business competitors;
or
(f) engage in any other activities, directly or indirectly, which
may be deemed contrary to the best interests of the Company, its
officers, or its directors.
Notwithstanding Section 4(f) but subject to the other restrictions in
this Section 4, the parties acknowledge and agree that Employee shall
not be prevented from entering into employment with, and carrying out
his legitimate obligations to, business associations which may be
competitive with the Company's businesses.
5. CONFIDENTIALITY; RELEASE.
Employee is reminded of the terms of Employee's confidentiality agreement
with the Company, which, among other things, prohibits Employee from
using, or disclosing to others, any confidential business or technical
information belonging to the Company. All of the benefits afforded to
Employee under this Agreement are expressly conditioned upon Employee
executing within 10 days from the Resignation Date an agreement in the
form of Exhibit A.
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6. CONSEQUENCES OF EMPLOYEE VIOLATION OF PROMISES
All of the Company's obligations hereunder beyond those otherwise
required by law are specifically subject to Employee fulfilling
completely each of the promises and requirements set forth herein as well
as under Exhibit A. Employee's failure to comply with each promise and
requirement herein shall be cause for the immediate termination of any
remaining financial benefits accorded Employee by the terms of this
Agreement. If Employee breaks Employee's promise in Section (c) of
Exhibit A to this Agreement and files a lawsuit or proceeding based on
legal claims that Employee has released, Employee will pay for all costs
incurred by the Company, any related companies, or the directors or
employees of any of them, including reasonable attorneys' fees, in
defending against the Employee's claim. Employee and the Company agree
that a breach of Employee's obligations under this Agreement will cause
irreparable harm to the Company, and that, in the event of such a breach,
the Company shall be entitled to obtain a decree specifically enforcing
such covenants in any court of competent jurisdiction. In addition, the
Company expressly reserves the right to exercise any other legal remedies
to which it may be entitled.
7. PERIOD FOR REVIEW AND CONSIDERATION OF AGREEMENT
Employee understands that Employee has been given a period of 21 days to
review and consider this Agreement before signing it. Employee further
understands that Employee may use as much of this 21 day period as
Employee wishes prior to signing.
8. ENCOURAGEMENT TO CONSULT WITH ATTORNEY
Employee is strongly encouraged to consult with an attorney before
signing this Agreement. Employee understands that whether or not to do
so is Employee's decision.
9. SUCCESSORS
This Agreement shall be binding upon and shall inure to the benefit of
Employee's heirs, executors, administrators, assigns, successors,
beneficiaries and agents.
10. ENTIRE AGREEMENT/MODIFICATION
This Agreement constitutes the entire agreement and understanding
concerning the subject matter addressed herein between the parties. This
Agreement can only be modified by a writing signed by both parties and
referencing this Agreement.
11. SEVERABILITY
If any provision of this Agreement or the application thereof is held
invalid, the invalidity shall not affect other provisions or applications
of the Agreement, which can be given effect without the invalid
provisions or applications, and to this end the provisions of this
Agreement are declared to be severable. Notwithstanding the foregoing,
if the release contained in Exhibit A is challenged by Employee as to its
enforceability and is held to be
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unenforceable or void by a court of competent jurisdiction, then all
benefits paid or to be paid hereunder shall be forfeited by Employee.
12. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of Connecticut.
13. EFFECTIVE DATE
Employee may revoke this Agreement in writing for a period of seven (7)
calendar days after Employee's execution of this Agreement (the
"revocation period"). Revocation must be made by delivering a written
notice of revocation to the Company's Vice President - Human Resources at
000 Xxxx Xxxxxx, Xxxxxxx, XX, 00000-0000. For revocation to be
effective, such written notice must be received no later than midnight on
the seventh (7th) day after Employee signs this Agreement. If Employee
revokes this Agreement it shall not be effective or enforceable and
Employee will not receive the benefits described herein. The Agreement
shall become effective automatically upon the expiration of the
revocation period.
14. TERMINATION
Employee acknowledges that, if this Agreement becomes effective,
Employee's employment with the Company will end irrevocably and forever
on the Resignation Date, and will not be resumed again at any time in the
future. The Employee will not seek or accept employment in the future
with the Company and the Company shall have no obligation to consider any
application for employment from the Employee. Notwithstanding the
foregoing, if Company offers Employee a position with Company that
Employee accepts, this agreement shall become null and void and no
further benefits as specified hereunder shall continue except the release
contained in Exhibit A shall continue to be valid and in force.
15. LIABILITY INSURANCE
The Company acknowledges that Employee remains covered under its
applicable Directors and Officers Liability Insurance Policy for any
conduct through and including the Resignation Date.
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EMPLOYEE ACKNOWLEDGES READING THIS AGREEMENT, UNDERSTANDING IT, AND
VOLUNTARILY ENTERING INTO IT.
XXXXXXX X. XXXXXX THE XXXXXX-XXXXX CORPORATION
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxx
Dated: September 30, 1997 Dated: September 30, 1997
Chairman, President and
Chief Executive Officer
WITNESS
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxxxxx
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EXHIBIT A
RELEASE
(a) In consideration of the benefits under the Agreement to which this Release
is an exhibit, Employee releases, waives, and forever discharges the
Company, any related companies, and the employees, officers,
representatives, agents and directors of any of them from all claims,
demands, actions, suits, covenants, contracts, agreements, promises and
liabilities of any kind whatsoever, known or unknown which Employee,
Employee's heirs, executors or assigns may have had, now have or could in
the future have including, without limitation, those based on Employee's
employment with the Company, or the termination of that employment. This
includes, for example, a release of any rights or claims Employee may have
under the Age Discrimination in Employment Act, which prohibits age
discrimination in employment; Title VII of the Civil Rights Act of 1964,
which prohibits discrimination in employment based on race, color,
national origin, religion or sex; the Equal Pay Act, which prohibits
paying men and women unequal pay for equal work; or any other federal,
state or local laws or regulations prohibiting employment discrimination.
This also includes a release by Employee of any claims for wrongful
discharge or breach of employment agreement. This release covers both
claims that Employee knows about and those he may not know about.
(b) This Release does not include, however, a release of Employee's right, if
any, to benefits under the Company's Employee Pension and Savings Plans,
whether qualified or non-qualified for federal income tax purposes, a
release of any claim made by Employee under any welfare benefit plan prior
to the signing of this Agreement, or a release of any rights or claims
that Employee may have under the Age Discrimination in Employment Act
which arise after the date the Employee signs this Release. Furthermore,
this Release does not include a release of any rights of Employee or
Employee's heirs, executors, or assigns relating to enforcement of
obligations of the Company: (i) under the Agreement to which this Release
is an exhibit; or (ii) pertaining to indemnification of Employee as an
officer, director, or employee of the Company.
(c) Employee further promises never to file or join in a lawsuit or other
proceeding asserting any claims that are released in Section (a) hereof.
(d) Nothing in this Agreement shall be inferred to be an admission of any
fault by the Company.
Employee
Date:
