CONFIDENTIAL SEPARATION AGREEMENT AND RELEASE
Exhibit 10.20
CONFIDENTIAL SEPARATION AGREEMENT AND RELEASE
THIS CONFIDENTIAL SEPARATION AGREEMENT AND RELEASE (“Agreement”) is entered into this 2nd day
of April, 2008, by and between THE XXXXXXXX COMPANIES, INC., a Delaware Corporation (“Xxxxxxxx” or
the “Company”), and Xxxxxxx X. Xxxxxxx (“Executive”);
WHEREAS, Executive has expressed an interest in retiring, effective March 31, 2008
(“Separation Date”); and
WHEREAS, the Company has determined that the continued availability of Executive after his
retirement is needed in order to provide an orderly transition of duties to Executive’s successor;
and
WHEREAS, Executive is willing to provide consulting services after his retirement in
accordance with the provisions of this Agreement and the Consulting Agreement, a copy of which is
attached hereto as Exhibit “A”; and
WHEREAS, the Company has agreed to provide the Executive with a Separation Payment in exchange
for Executive’s comprehensive release and agreements concerning, non-disparagement,
non-solicitation of Company’s employees, and maintaining confidentiality;
NOW, THEREFORE, in consideration of their mutual promises made herein and for other good and
valuable consideration, and intending to be legally bound, the Company and Executive hereby agree
as follows:
1. Executive Services. Executive and Company agree that, for a period of up to nine
(9) months following the Separation Date, to be determined by the Company in its sole and absolute
discretion, Executive will provide consulting services to the Company in accordance with the terms
of the Consulting Agreement attached hereto as Exhibit “A”.
2. Company Payments. In accordance with the Company’s normal pay cycle, but not
earlier than eight (8) days following Executive’s execution of this Agreement, which shall not
occur prior to March 31, 2008, the Company shall pay Executive:
a. The sum of Two Hundred Sixty Three Thousand Seven Hundred Fifty Eight Dollars
($263,758.00) (“Consulting Fee”) in exchange for Executive executing the
Consulting Agreement set forth on Exhibit “A” and performing the services described
therein; and
b. The sum of Five Hundred Thousand Dollars ($500,000.00) (“Separation Payment”) in
exchange for Executive’s covenants and promises contained in this Agreement.
3. Financial Planning Services. As further consideration for the Executive’s promises
and covenants and promises contained in this Agreement, Xxxxxxxx shall continue to provide
Executive with financial planning services utilizing The Ayco Company, L.P. through July 31, 2009.
4. Release. In consideration of the Separation Payment and other benefits provided
hereunder, Executive, for himself, his attorneys, and his heirs, executors, administrators,
successors and assigns, does hereby fully, finally and forever release and discharge Company and
its parent company, subsidiaries, affiliates, predecessors, successors and assigns and their
respective officers, directors, employees, representatives, agents and fiduciaries, de facto or de
jure or benefit plans (“Released Parties”) of and from any and all charges, claims, actions (in law
or in equity), suits, demands, losses, expenses, damages, debts, liabilities, obligations,
disputes, proceedings, or any other manner of liability (known or unknown) including without
limitation those arising from, in whole or in part, the employment relationship between Company or
one of its subsidiaries or affiliates and Executive or the termination thereof which exist, or have
heretofore accrued, fixed or contingent, known or unknown, including without limitation any claims
arising under Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991,
42 U.S.C. § 2000e, et seq.; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. § 1985; 42 U.S.C. § 1986;
the Equal Pay Act of 1963, 29 U.S.C. § 206(d); the National Labor Relations Act, as amended, 29
U.S.C. § 160, et seq.; the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.; the
Employee Retirement Income Security Act of 1974, as amended, (“ERISA”), 29 U.S.C. § 1001, et seq.
(except that the parties agree that by signing this Agreement, Executive does not waive his rights
under any claim for benefits that was or may have been filed prior to the date Executive signed
this Agreement); the Age Discrimination in Employment Act of 1967, as amended by the Older Workers
Benefit Protection Act of 1990, 29 U.S.C.§ 621, et seq.; the Family and Medical Leave Act of 1993,
29 U.S.C.§ 2601 et seq.; the Oklahoma Anti-Discrimination Act, Okla. Stat., tit. 25, §§ 1101, et
seq., and any claims for
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wrongful discharge, defamation, infliction of emotional distress, termination in violation of
public policy, retaliatory discharge, including those based on workers’ compensation retaliation
under state statutes, discrimination on the basis of handicap, or claims arising under any local,
state or federal regulation, statute or common law. Executive acknowledges and affirms that this
Agreement is in nature and character both general and specific and that the specific descriptions
and details hereinafter and hereinabove set forth do not in any manner limit or otherwise affect
the general nature and character of this Agreement or the application thereof to Company and
Executive. This Agreement does not release or discharge any claim or rights which might arise out
of the actions of Company after the date Executive signs this Agreement.
5. Severance. Due to the Executive’s voluntary retirement and the Consulting Fee and
Separation Payment provided hereunder, Executive also hereby voluntarily waives any right which he
may have to receive severance benefits under The Xxxxxxxx Companies Severance Pay Plan or any other
severance pay plan, practices, programs, agreements or arrangements maintained by the Company,
including, but not limited to, any change-in-control severance plan or agreement.
6. No Release of Vested Benefits or Health and Welfare Benefits. Executive does not,
by signing this Agreement, release or discharge any right to any vested, deferred benefit in any
qualified employee benefit or incentive plan which provides for retirement, pension, savings,
thrift and/or employee stock ownership or any benefit due Executive as a participant in any
employee health and welfare plan, as such terms are used under ERISA, maintained by any of the
Released Parties which employed Executive. Executive’s rights under any such employee benefit or
incentive compensation plan shall be governed by the terms of such plan. Furthermore, following
the eighth (8th) day after the Separation Date, and in accordance with Company’s normal
pay cycle, Executive will receive payment for the balance of any accrued and unused Paid Time Off
(PTO) for the calendar year 2008. Executive understands and acknowledges that, pursuant to
the Company’s PTO Policy, Executive will not accrue any additional PTO while performing services as
a consultant under the Consulting Agreement.
7. Confidentiality/Company Property. Executive shall keep confidential the existence
of this Agreement, its terms, contents, conditions, proceedings and negotiations, he will make no
statements or representations relating thereto, except to her attorney or tax advisor, his spouse,
or as may otherwise be allowed or required by law. Executive further acknowledges
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his continuing obligations to maintain confidentiality of Released Parties’ confidential and
proprietary information and he shall not, at any time, use for his personal benefit, or disclose,
communicate or divulge to, or use for the direct or indirect benefit of any person, firm,
association or company other than the Released Parties any confidential information regarding the
employees, business methods, business strategies and plans, policies, procedures, techniques,
research or development projects or results, trade secrets, or other knowledge or processes of or
developed by the Released Parties, including but not limited to, or any other confidential
information relating to or dealing with the business operations, employees or activities of
Released Parties, made known to Executive or learned or acquired by Executive while in the employ
of Company or one of its subsidiaries or affiliates. Executive acknowledges that this Paragraph 7
is a separate agreement, and the Company is granted the right of specific performance to enforce
the provisions of this Paragraph 7. The Executive also acknowledges that this Paragraph 7 is a
material term of this Agreement and that its breach could result in damage to the Company that may
be difficult to ascertain and that upon any such breach or in reasonable anticipation of any such
breach, the Company will be entitled to an order of any court of competent jurisdiction to enjoin
such breach.
8. Continued Cooperation. Upon reasonable request of Company, Executive shall consult
with Company in the orderly transition of business matters in which Executive participated during
his active employment with Company and/or with respect to any litigation, legal proceedings or
other disputes arising in connection with such business matters, including, but not limited to,
matters with respect to Company’s response to inquiries initiated by governmental entities or other
third parties and defense of certain lawsuits against Company and such other matters as shall be
reasonably requested from time to time by Company’s General Counsel.
9. Non-solicitation. For a period of twenty-four (24) months following Executive’s
Separation Date, Executive shall not directly or indirectly induce or attempt to influence any
employee of the Released Parties to terminate his or her employment with the Released Parties.
10. Executive’s Miscellaneous Covenants. By signing this Agreement, Executive
covenants, agrees, represents and warrants that:
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(a) The Separation Payment provided hereunder is a benefit to which he is not otherwise
entitled under any Company plan, program or prior agreement;
(b) Executive has not filed and will not in the future file any lawsuits, complaints,
petitions or accusatory pleadings in a court of law against any of the Released Parties
based upon, arising out of or in any way related to any event or events occurring prior to
the signing of this Agreement, including, without limitation, his employment with any of the
Released Parties or the termination thereof;
(c) This Agreement specifically includes, without limitation, all claims asserted by or
on behalf of Executive against any of the Released Parties, together with all claims which
might have been asserted by or on behalf of Executive in any suit, claim (known or unknown),
or grievance against any of the Released Parties for or on account of any matter or things
whatsoever up to and including the date Executive signs this Agreement;
(d) He has not heretofore assigned or transferred, or purported to assign or transfer,
to any person or entity, any claim or any portion thereof or interest therein and
acknowledges that this Agreement shall be binding upon Executive and upon his heirs,
administrators, representatives, executors, successors, and assigns, and shall inure to the
benefit of the Released Parties and each of them, and to their heirs, administrators,
representatives, executors, successors, and assigns;
(e) Executive waives all rights to recovery for any damages or compensation awarded as
a result of any suit or proceeding by any third party or governmental agency on Executive’s
behalf.
11. Mutual Non-disparagement. Company agrees to refrain from making or publishing any
statement critical of Executive or in any way adversely affecting or otherwise maligning
Executive’s reputation. Executive agrees that he will not make or publish any statement critical
of the Released Parties, its affiliates, or their respective executive officers, and directors or
in any way adversely affecting or otherwise maligning the business or reputation of any member of
the Released Parties.
12. No Admission of Liability. Notwithstanding the provisions of this Agreement and
the payments to be made by Company to Executive hereunder, Released Parties do not admit any manner
of liability to Executive. This Agreement has been entered into as a means of
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settling any and all disputes that have or may have arisen between Released Parties and Executive.
13. No Tax Advice. Executive agrees and acknowledges that the Company has made no
representations to him regarding the tax consequences of the money paid pursuant to this Agreement,
and that he shall rely upon his own tax advice with respect to any taxes owed on any of such
monies. Executive shall be solely responsible for the payment of any federal, state or local taxes
owed by Executive as a result of his receipt of money or benefits paid pursuant to this Agreement.
14. Indemnification. Subject to Article VIII of the By-Laws of The Xxxxxxxx
Companies, Inc., and to the extent permitted by law, Company will defend and indemnify Executive
with regard to claims brought against Executive by third parties and arising from actions taken by
Executive in his capacity as an officer and agent of Company.
15. Recovery of Monies Owed to or by the Company. Executive acknowledges and agrees
that any monies he owes to Company, Released Parties, or to Company’s or Released Parties’
vendor(s) contracted to provide business tools or services for use by Executive in his employment,
including but not limited to Company credit card debt, relocation repayment obligations or pre-paid
Educational Assistance Plan benefits, may be deducted from Executive’s Separation Payment.
Xxxxxxxx agrees that Executive shall be entitled to reimbursement of any reasonable expenses
incurred by Executive in connection with his employment with the Company up through March 31, 2008,
provided Executive submits a proper expense report itemizing such expenses no later than April 30,
2008.
16. Opportunity to Consider Agreement and Consult Counsel. Executive acknowledges that
this Agreement is a binding legal document, and that he has been advised by Company to consult with
an attorney before signing this Agreement. By signing this Agreement, Executive acknowledges that
he has been extended a period of twenty-one (21) days within which to consider this Agreement.
17. Revocation Period. For a period of seven (7) days following Executive’s execution
of the Agreement, Executive may revoke the Agreement by notifying Company, in writing, of his
desire to do so. After the seven (7) day period has expired, this Agreement shall become effective
and enforceable.
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18. Binding Effect. By signing this Agreement, the parties agree and acknowledge that
they have carefully read and fully understood the contents of this Agreement, and that this
Agreement has been freely signed by the party executing this Agreement. This Agreement is binding
upon and shall inure to the benefit of the parties hereto and their respective successors, assigns,
personal representatives, officers, directors, agents, attorneys, parents, subsidiaries and
affiliates.
19. Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto pertaining to the facts and matters stated herein and supersedes any and all prior
understandings, agreements or representations or understandings, whether written or oral, prior to
the date hereof; provided, however, that this Agreement shall have no effect on the enforceability
of the Consulting Agreement referenced in Paragraph 1 herein and attached hereto as Exhibit “A,” or
on the enforceability of any prior agreement relating to any covenant not to compete, trade
secrets, and/or confidentiality.
20. Governing Law. This Agreement and the rights and obligations hereunder shall be
construed in all respects in accordance with the internal laws of the State of Oklahoma without
reference to the conflict of laws provisions thereof. Should any provision of this Agreement be
found or declared or determined by a court of competent jurisdiction to be invalid, the validity of
the remaining parts, terms or provisions shall not be affected thereby and any such invalid part,
term or provision shall be deemed not to be a part of this Agreement. Any litigation concerning
this Agreement or the facts or matters described herein shall be brought only in a court of
competent jurisdiction in Tulsa County, Tulsa, Oklahoma, and the parties hereby waive personal
jurisdiction and any objections to venue.
21. Amendment of Agreement. This Agreement may not be modified or amended except by
an instrument in writing signed by both Executive and a duly authorized representative of Company.
22. Headings. The heading of paragraphs or subparagraphs herein are included solely
for convenience or reference and will not control the meaning or interpretation of any of the
provisions of this Agreement.
23. Notices: Any and all notices required to be sent pursuant to the terms of this
Agreement will be sent by registered or certified mail or be personally delivered to the parties
hereto at the following addresses or such other addresses as they may designate:
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Executive:
|
Xxxxxxx X. Xxxxxxx | |||
| Tulsa, OK | ||||
Company:
|
The Xxxxxxxx Companies, Inc. | |||
| Attn: Vice President, Human Resources | ||||
| Xxx Xxxxxxx Xxxxxx | ||||
| X. X. Xxx 0000 | ||||
| Xxxxx, Xxxxxxxx 00000 |
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day first written
above.
| THE XXXXXXXX COMPANIES, INC. | ||||||
By: |
||||||
Title: |
||||||
| WITNESS: | ||||||
| Xxxxxxx X. Xxxxxxx | ||||||
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ACKNOWLEDGMENT
I HEREBY ACKNOWLEDGE that The Xxxxxxxx Companies, Inc. (“the Company”), in accordance with the
Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit Protection
Act of 1990, informed me in writing that:
(1) I should consult with an attorney before signing the Confidential Separation
Agreement and Release (“Agreement”) which was provided to me today.
(2) I may review the Agreement for a period of up to twenty-one (21) days prior to
signing the Agreement. If I choose to take less than twenty-one (21) days to review the
Agreement, I do so knowingly, willingly and on advice of counsel.
(3) For a period of seven (7) days following the signing of the Agreement, I may revoke
the Agreement, and that the Agreement will not become effective or enforceable until the
seven day revocation period has elapsed; and
(4) The Consulting Fee and Separation Payment described in Paragraph 2 of this
Agreement will be paid in accordance with the Company’s normal pay cycle, but will not be
paid to me until the seven-day revocation period has elapsed.
I HEREBY FURTHER ACKNOWLEDGE receipt of this Confidential Separation Agreement and Release on
the day of , 2008.
| WITNESS: | ||
Xxxxxxx X. Xxxxxxx |
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EXHIBIT “A”
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is entered into this 2nd day of April, 2008, by and between THE
XXXXXXXX COMPANIES, INC. a Delaware Corporation, (“Xxxxxxxx” or the “Company”) and Xxxxxxx X.
Xxxxxxx (“Consultant”).
WHEREAS, Xxxxxxxx wishes to avail itself of Consultant’s knowledge, expertise and experience
by utilizing the services of Consultant; and
WHEREAS, Consultant is willing to serve as a consultant to Xxxxxxxx upon the terms and
conditions set forth below;
NOW, THEREFORE, in consideration of their mutual promises and for other good and valuable
consideration, Xxxxxxxx and Consultant hereby agree as follows:
1. Consulting Services.
(a) During the period beginning on the date on which Consultant ceases to be employed
by Xxxxxxxx and continuing through December 31, 2008 (the “Consulting Period”), Consultant
shall provide to Xxxxxxxx, including its subsidiaries and affiliates, consulting services
commensurate with his status and experience as Xxxxxxxx’ Senior Vice President and Chief
Administrative Officer to enable a smooth transition of his duties to his successor with
respect to such matters as shall be reasonably requested from time to time by the Chief
Executive Officer of Xxxxxxxx (the “Xxxxxxxx Representative”), provided that Consultant
shall not be required to provide such services during any period when he is unable to
perform due to his health.
(b) Consultant shall provide consulting services to Xxxxxxxx only as needed and when
reasonably requested by the Xxxxxxxx Representative, provided that, without his
prior consent, Consultant shall not be required to devote more than eighty (80) hours in any
calendar month to the performance of any consulting services hereunder. Consultant agrees
that in the event it becomes necessary for him to devote more than eighty (80) hours in any
calendar month to performing services under this Agreement, Consultant will obtain approval
from Xxxxxxxx’ Chief Executive Officer and the Executive Officer Team member for whom the
services are being provided prior to providing such services. Consultant shall determine the
time and location at which he shall perform such services, subject to the right of the
Xxxxxxxx Representative to reasonably request by advance written notice that such services
be performed at a specific time and at a specific location. Consultant shall honor any such
request unless he is unable to perform due to his health, or he has a conflicting business
commitment that
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would preclude him from performing such services at the time and/or place requested by
the Xxxxxxxx Representative, and in such circumstances, shall make reasonable efforts to
arrange a mutually satisfactory alternative. Xxxxxxxx shall use its reasonable best efforts
not to require the performance of consulting services in any manner that unreasonably
interferes with any other business activity of Consultant.
(c) Consultant shall not, solely by virtue of the consulting services provided
hereunder, be considered to be an officer or employee of any member of Xxxxxxxx during the
Consulting Period, and shall not have the power or authority to contract in the name of or
bind any member of Xxxxxxxx. Consultant shall at all times be treated as an independent
contractor and shall be responsible for the payment of all taxes with respect to all amounts
paid to him hereunder. Consultant shall not, by reason of the services performed hereunder,
be entitled to participate in any employee benefits plan, program or arrangement made
available to any employee of Xxxxxxxx.
(d) This Agreement is personal to Consultant and all of the services required of
Consultant hereunder shall be performed personally by him.
2. Consulting Fees. In accordance with its normal pay cycle, but not before the eighth
(8th) day following Consultant’s execution of this Agreement, Xxxxxxxx shall pay
Consultant the sum of Two Hundred Sixty Three Thousand Seven Hundred Fifty Eight Dollars
($263,758.00) (“Consulting Fee”) as consideration for executing this Agreement and providing the
services set forth hereunder. Consultant shall not be entitled to receive any other compensation,
bonuses or benefits provided to Xxxxxxxx’ employees in exchange for the services provided by
Consultant under the terms of this Agreement. However, Xxxxxxxx will reimburse Consultant for
reasonable and necessary travel expenses, including costs for transportation, meals and lodging
that Consultant may incur in connection with his performance of services under this Agreement.
During the Consulting Period, Consultant may also utilize Xxxxxxxx’ corporate aircraft for travel
necessary to his performance of services under this Agreement, subject to the approval of the
Xxxxxxxx Representative and the availability of the aircraft.
3. Confidential Information. Consultant shall not, at any time during the Consulting
Period, make use of or disclose, directly or indirectly, any (i) trade secret or other confidential
or
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secret information of Xxxxxxxx or (ii) other technical, business, proprietary or financial
information of Xxxxxxxx not available to the public generally or to the competitors of Xxxxxxxx
(“Confidential Information”), except to the extent that such Confidential Information (a) becomes a
matter of public record or is published in a newspaper, magazine or other periodical available to
the general public, other than as a result of any act or omission of Consultant, (b) is required to
be disclosed by any law, regulation or order of any court or regulatory commission, department or
agency, provided that Consultant gives prompt notice of such requirement to Xxxxxxxx to enable
Xxxxxxxx to seek an appropriate protective order, or (c) is necessary to perform properly
Consultant’s duties under this Agreement. Promptly following the termination of the Consulting
Period, Consultant shall surrender to Xxxxxxxx all records, memoranda, notes, plans, reports,
computer tapes and software and other documents and data which constitute Confidential Information
which he may then possess or have under his control (together with all copies thereof).
4. Exclusive Services/Non-solicitation.
(a) Consultant acknowledges that during the Consulting Period he will become familiar
with trade secrets and other confidential information concerning Xxxxxxxx and that his
services will be of special, unique and extraordinary value to Xxxxxxxx.
(b) Consultant agrees that during the Consulting Period he shall not in any manner,
directly or indirectly, through any person, firm or corporation, alone or as a member of a
partnership or as an officer, director, stockholder, investor or employee of or consultant
to any other corporation or enterprise or otherwise, engage or be engaged, or assist any
other person, firm corporation or enterprise in engaging or being engaged, in
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any business, in which Consultant was involved or of which he has knowledge is being
conducted by Xxxxxxxx during the Consulting Period. Notwithstanding the provisions of this
subparagraph 4(b) to the contrary, Consultant may act as a director, stockholder, investor
or employee of or consultant to any corporation or enterprise with regard to the business or
businesses referred to above with the prior written consent of Xxxxxxxx, such consent not to
be unreasonably withheld.
(c) Consultant further agrees that during the Consulting Period he shall not in any
manner, directly or indirectly, induce or attempt to induce any employee Xxxxxxxx to
terminate or abandon his or her employment for any purpose whatsoever.
(d) Nothing in this Paragraph 4 shall prohibit Consultant from being (i) a stockholder
in a mutual fund or a diversified investment company or (ii) a passive owner of not more
than two percent (2%) of the outstanding stock of any class of a corporation, or any
securities of which are publicly traded, so long as Consultant has no active participation
in the business of such corporation.
(e) If, at any time of enforcement of this Paragraph 4, a court holds that the
restrictions stated herein are unreasonable under circumstances then existing, the parties
hereto agree that the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and that the court
shall be allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law. This Agreement shall not authorize a court to increase or
broaden any of the restrictions in this Paragraph.
5. Hold Harmless. Consultant shall hold harmless Xxxxxxxx, its subsidiaries and
affiliates, and its and their respective shareholders, officers, directors, employees and attorneys
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against any damage, injury, death, claim, loss, charge or expense (including, without
limitation, attorneys’ fees and court costs and the costs of investigation) of any party, including
Consultant, arising out of or relating to, or claimed to arise out of or relate to, Consultant’s
gross negligence or willful misconduct in performing under this Agreement.
6. No Tax Advice. Consultant agrees and acknowledges that Xxxxxxxx has made no
representations to him regarding the tax consequences of the money paid pursuant to this Agreement,
and that he shall rely upon his own tax advice with respect to any taxes owed on any of such
monies. Consultant shall be solely responsible for the payment of any federal, state or local
taxes owed by Consultant as a result of his receipt of money or benefits provided to him by
Xxxxxxxx pursuant to this Agreement.
7. Termination of the Consulting Services. Xxxxxxxx may terminate this Agreement at
any time prior to December 31, 2008, but the parties agree and acknowledge that Xxxxxxxx shall only
be entitled to a pro-rata refund of the Consulting Fee in the event that the Agreement is
terminated solely for cause, which shall be limited to either (i) the conviction of Consultant of a
felony which has a substantial effect on Xxxxxxxx’ business or reputation, or (ii) the continual
and repeated failure of Consultant to perform the services required of him hereunder, after written
notice of the alleged failures and an opportunity to cure has been given. Consultant may only
terminate this Agreement due to a material breach hereof by Xxxxxxxx.
8. No Waiver of Vested Benefits. Nothing in this Agreement shall be construed to
limit, reduce, offset or otherwise impair Consultant’s rights to any benefits or compensation
vested or accrued under the terms of the employee benefit plans, programs or arrangements
maintained by Xxxxxxxx other than those benefits that were released or waived by Consultant
pursuant to the Confidential Separation Agreement and Release dated April 2, 2008.
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9. Computer/Office Support and Access. During the Consulting Period, Xxxxxxxx shall
provide Consultant with office space at Xxxxxxxx’ principal place of business, which will include
telephone and computer access and administrative support. In addition, Xxxxxxxx shall provide and
maintain Consultant’s computer and access to Xxxxxxxx’ network and telephone systems via his home
office as shall be reasonably necessary for Consultant to provide the consulting services requested
by Xxxxxxxx during the Consulting Period and under the terms of this Agreement. At the termination
of the Consulting Period, Consultant shall return all of Xxxxxxxx’ property within his possession
to Xxxxxxxx.
10. Enforcement. The parties hereto agree that Xxxxxxxx would be damaged irreparably
in the event that any provision of Paragraph 3 or 4 of this Agreement were not performed in
accordance with its terms or were otherwise breached and that money damages would be an inadequate
remedy for any such nonperformance or breach. Accordingly, Xxxxxxxx and its successors and
permitted assigns shall be entitled, in addition to other rights and remedies existing in their
favor, to an injunction or injunctions to prevent any breach or threatened breach of any of such
provisions and to enforce such provisions specifically (without posting a bond or other security).
Consultant agrees any litigation concerning this Agreement or the facts or matters described herein
shall be brought only in a court of competent jurisdiction in Tulsa County, Tulsa, Oklahoma, and
Consultant agrees that he will submit himself to the personal jurisdiction of the courts of the
State of Oklahoma in any action by Xxxxxxxx to enforce the terms of this Agreement or to obtain
injunctive or other relief.
11. Miscellaneous. This Agreement may only be amended by a written instrument signed
by Xxxxxxxx and Consultant. Except as otherwise expressly provided hereunder, this Agreement shall
constitute the entire agreement between Xxxxxxxx and Consultant with respect
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to the subject matter hereof The parties further agree and acknowledge that this Agreement
constitutes the entire agreement between the parties hereto pertaining to the facts and matters
stated herein and supersedes any and all prior understandings, agreements or representations or
understandings, whether written or oral, prior to the date hereof; provided, however, that this
Agreement shall have no effect on the enforceability or terms of the Confidential Separation
Agreement and Release dated April 2, 2008, or on the enforceability of any prior agreement relating
to non-solicitation, trade secrets, and/or confidentiality. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
12. Notices. Any and all notices required to be sent pursuant to the terms of this
Agreement will be sent by registered or certified mail, or be personally delivered to the parties
hereto at the following addresses, or such other addresses as they may designate:
Consultant:
|
Xxxxxxx X. Xxxxxxx | |||
| Tulsa, OK | ||||
Company:
|
The Xxxxxxxx Companies, Inc. | |||
| Attn: Vice President, Human Resources | ||||
| Xxx Xxxxxxx Xxxxxx | ||||
| X. X. Xxx 0000 | ||||
| Xxxxx, Xxxxxxxx 00000 |
13. Successor and Assigns. This Agreement shall be enforceable by Consultant and his
heirs, executors, administrators and legal representatives, and by Xxxxxxxx and its successors and
assigns.
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14. Survival. Paragraphs 3, 4, and 10 of this Agreement shall survive and continue in
full force and effect in accordance with their respective terms, notwithstanding any termination of
the Consulting Period.
15. Governing Law. This Agreement shall be governed by the laws of the State of
Oklahoma, without reference to the principles of conflicts of law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day first written
above.
| THE XXXXXXXX COMPANIES, INC. | ||||||
By: |
||||||
Title: |
||||||
| WITNESS: | ||
Xxxxxxx X. Xxxxxxx |
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