Exhibit 10(n)
November 8, 2000 - Revised December 18, 2000
PERSONAL AND CONFIDENTIAL
TERMINATION SETTLEMENT AGREEMENT
Xxxxxx X. Xxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Dear Xxx:
This letter describes our proposed agreement concerning the termination of your
employment with Xxx Xxxxxxxx Xxxxxxx. The termination settlement pay and
benefits described below are available to you only if you execute this
Agreement, which includes a release of all claims and a non-competition
agreement.
Your scheduled release date and last day of Xxxxxxxx employment is April 1,
2001. Your present base salary will continue through March 31, 2001 and you will
be eligible to participate in the 2000 Incentive Bonus Plan.
Termination Settlement Pay - During the period April 1, 2001 through March 31,
2003 your total compensation will be at an annual rate of $765,000 payable
semi-monthly, except that, should your Year 2000 Incentive Bonus exceed
$175,000, your annual compensation rate of $765,000 will be increased by the
amount by which the bonus exceeded $175,000. The aforementioned semi-monthly
compensation payments will be included in the calculation of Average Annual
Compensation in accordance with the terms of Xxx Xxxxxxxx Xxxxxxx Retirement
Plan. These payments are hereinafter referred to as termination settlement pay.
Change in Control Employment Agreement - Your change in control Employment
Agreement with Xxxxxxxx dated December 16, 1999, will terminate seven days after
your execution of this Termination Settlement Agreement, when this Agreement
becomes effective.
Benefits Status During Settlement Payments Period - During the period from April
1, 2001 through March 31, 2003 (hereinafter referred to as the "settlement
payments period") you will be eligible to continue participation in a number of
employee benefits and services. These include continuing participation in the
following contributory benefit plans:
Medical Plan
Dental Plan
Supplemental Life Insurance Plan
Employees' Savings Plan
Supplemental Savings Plan
Executive Life Insurance Plan
If you elect to continue your participation in the Xxxxxxxx medical or dental
plans after your scheduled release date and you become eligible for coverage
under any other medical or dental plans, you agree to look to those other plans
for your primary coverage. Coverage under a Xxxxxxxx plan will only apply in
accordance with Xxxxxxxx'x Coordination of Benefits Provision as secondary
payer.
During any settlement payments period, you will also be eligible for many of the
currently provided employee benefits and services. However, following your
scheduled release date you will not be eligible for certain employee benefits,
including:
Incentive Bonuses
Salary Continuation Plan
Long-Term Disability Plan
Vacation Accrual
Holiday Pay
Tuition Refund Plan
The following is information concerning specific benefits provided under this
Agreement as of your scheduled release date, at the end of a settlement payments
period or when you elect to begin receiving pension benefits, as discussed
below.
Xxx Xxxxxxxx Xxxxxxx Retirement Plan - Company records indicate you will be
eligible for a pension as of your scheduled release date. If you continue to
receive termination settlement pay as semi-monthly payments until March 31,
2003, as set forth above, your retirement date for all benefits purposes shall
be April 1, 2003.
You may elect to retire and begin receiving pension payments prior to April 1,
2003, on any date following your scheduled release date. Once you elect to begin
receiving pension payments, the settlement payments period ends and you are
eligible for only those pension benefits and services available to retirees. At
that time, the balance of any termination settlement payments must be taken as a
lump sum or deferred to a specific future date. Lump sum payments and deferred
termination settlement payments made after pension payments begin will not be
included in determining service credit or in computing compensation under the
Retirement Plan.
Group Medical Coverage - If you elect to receive termination settlement pay as
continuing payments, you may elect to continue your current Xxxxxxxx group
medical coverage at the regular employee contribution rate throughout the
settlement payments period.
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Group Dental Coverage - Dental coverage may be continued at the regular employee
contribution rate throughout any settlement payments period. After the
settlement payments period, you may continue group dental coverage for up to an
additional 18 months by paying 102% of the premium cost of such coverage. Dental
coverage is otherwise not available after retirement.
Coverage under the Xxxxxxxx group dental plan will continue through the last day
of the month in which you terminate from the group plan. If you are in the
process of having dental work done which requires more than one visit (for
example, root canal work, etc.), you will have 30 days from the first of the
next month to have it completed. The Xxxxxxxx group dental plan cannot be
converted into an individual membership.
Employee Stock Ownership Plan (ESOP) - When terminated from the payroll, either
on the scheduled release date or the last date of a settlements payments period,
whichever is later, you may take a distribution of your ESOP account, or, if the
account balance is $5,000 or more, defer the distribution. A terminating
employee who is retirement eligible should refer to the Retiree/LTD Medical
Program for information on using the ESOP to fund retiree medical coverage.
Retiree Medical Program - An employee who is retirement eligible and is
terminating from a subsidiary which participates in the Retiree Medical Program
will be eligible for participation upon or after retirement. Employees hired
prior to July 1, 1990 (Group 2) must maintain the full ESOP account balance with
the trustee for continued eligibility for retiree medical coverage.
Life Insurance (Spouse and Child) - Coverage provided under this plan will
continue for a 31-day period following the date you retire or following the last
day of the settlement payments period, whichever is later. During a settlement
payments period, the amount of coverage under spouse or child life insurance
will continue at the coverage level in effect on the scheduled release date.
Within the 31-day period after the date you retire or the end of the settlement
payments period, if applicable, you may convert to an individual policy without
a qualifying exam. If you wish to convert to an individual policy, you must
notify the Employee Benefits Department in order to arrange for an insurance
company representative to contact you with details on conversion options. Please
refer to Your Employee Benefits Book for information on the conversion
privilege.
Executive Life Insurance - Coverage may be continued by payroll deduction during
a settlement payments period, at the same coverage level as an active employee.
At retirement, no further contributions are required and coverage levels are
adjusted to reflect a retirement benefit.
Estate Preservation Plan - You, or the policy owner, may retain the policy by
continuing the scheduled premium payments determined at the time of inception.
If you elect to discontinue this policy, the Company will withdraw its
cumulative premium payments from the policy's cash value and have no further
interest in the policy.
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Savings Plan - You may continue to participate in the Employees' Savings Plan
during any settlement payments period. Participation in the Savings Plan during
a settlement payments period will be at your rate of contribution on the
scheduled release date, unless you change the contribution rate on a subsequent
date. You may, in accordance with the terms of the Plan, retain an account
balance of over $5,000 after your contributions end and defer withdrawal to a
future date. When you want to withdraw your account, you may call the Plan
Record Keeper and Trustee, Fidelity Investments, at 0-000-000-0000. A voluntary
withdrawal taken prior to the end of a settlement payments period may result in
suspension of participation and/or a negative tax impact. Please refer to the
current Employees' Savings Plan booklet.
Supplemental Savings Plan - If you participate in the Supplemental Savings Plan,
deferrals under the Plan may continue during a settlement payments period. On
the scheduled release date or at the end of the settlement payments period,
whichever is later, the Supplemental Savings Plan will be paid to you in a
single lump sum unless you have previously made a timely deferral election.
Stock Equivalent Unit Plan - During a settlement payments period, the value of
any awards will continue to be determined by stock price appreciation and
dividend credits. You will receive additional information from the Manager of
Executive Compensation concerning your payment or deferral election.
Incentive Bonus Plan - You will be eligible for Incentive Bonus Consideration
for the year 2000.
Stock Option Plan - If you are eligible to receive a pension upon your scheduled
release date or upon the end of any settlement payments period, your period for
exercising any vested options will be the time period available to Stock Option
Plan Participants retiring under Xxx Xxxxxxxx Xxxxxxx Retirement. Please refer
to the 1971 Stock Option Plan for detailed information on the exercise of Stock
Options.
Vacation Pay - Any unused current year vacation accrued as of your scheduled
release date will be paid to you at that time. Terminating employees eligible
for retirement benefits under Xxx Xxxxxxxx Xxxxxxx Retirement Plan as of their
scheduled release date will be granted full year vacation accrual for the
current year, even if employment ends before December 31. There will be no
vacation accrual after the scheduled release date.
Employee Loan Program - If you have an outstanding loan with the Company, you
must pay off the unpaid loan balance as stipulated in the loan agreement, which
requires repayment in full no later than the date on which you are terminated
from the payroll, either on the scheduled release date or the last day of a
settlement payments period.
Outplacement Counseling Services - Arrangements will be made with Xxx Xxxxx
Xxxxxxxx, Inc. to assist you in your search for new employment. This service can
be of considerable value and assistance to you in your transition from Xxxxxxxx
employment and you are urged to make maximum use of this resource.
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In order to remain eligible for this outplacement assistance, you must initiate
outplacement services with Xxx Xxxxx Xxxxxxxx, Inc. as soon as possible and in
any event not later than fourteen days following your scheduled release date.
You must also continue active participation in the job search program as it is
established by your outplacement counselor.
Use of the Xxx Xxxxx Xxxxxxxx, Inc. outplacement facility and counseling
services will be available to you for a period of 12 months from your scheduled
release date unless you sooner become re-employed, decline further services or
voluntarily interrupt your participation in the program for a 30-day period.
Basic Fringe Benefit Rights - If you decide not to accept and sign this
Termination Settlement Agreement, your rights to certain fringe benefits upon
termination will not be altered by your decision. These include your rights
under applicable laws and benefit plan provisions to accrued and unused vacation
pay as of your scheduled release date, conversion rights under the group life
insurance plans, continuation of group medical and dental coverage under COBRA,
and as well as any other rights you have as a benefits plan participant under
the federal Employee Retirement Income Security Act of 1974 (ERISA).
Inventions and Confidentiality - You are reminded that you will continue to be
subject to the provisions of your original employment agreement with Xxx
Xxxxxxxx Xxxxxxx even after your scheduled release date, including your
agreement to transfer to Xxx Xxxxxxxx Xxxxxxx all improvements and inventions in
certain fields made by you during your employment and within certain stated
periods thereafter, and your agreement not to disclose or use at any time any
secret or confidential information or knowledge obtained or acquired by you
while in, or by reason of, your employment.
Unemployment Compensation - Eligibility for unemployment compensation is
determined by the Massachusetts Department of Employment and Training and not by
the Company. If you wish to apply for unemployment, you should file an
application according to the attached information promptly after your last day
of work. The regulations of some states may delay the start of unemployment
compensation payments because termination payments are or were being received.
Non Defamatory Behavior - You agree that, except as may be required by law, you
will not make, publish or state, or cause to be made, published or stated, any
defamatory statement, writing or communication pertaining to the character,
reputation, business practices, competence or conduct of Xxx Xxxxxxxx Xxxxxxx,
its affiliates, shareholders, directors, officers, employees, agents, attorneys,
servants, representatives, and successors.
Company Property - You agree that, not later than your scheduled release date,
you will return all equipment, files, documents, credit cards, and any other
property belonging to Xxx Xxxxxxxx Xxxxxxx.
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Non-Assignment - The settlement pay and benefits under this Agreement are
personal to you and are expressly declared to be non-assignable and
non-transferable. You shall have no right to commute, sell, assign, transfer or
convey any payment hereunder. This Termination Settlement Agreement shall be
binding upon any successor to the business of Xxx Xxxxxxxx Xxxxxxx, but shall
not otherwise be assignable.
Payment to Estate - Should you die after executing this Agreement but before all
termination settlement payments are completed, and provided that your acceptance
of the Agreement is not revoked during the seven-day revocation period, your
estate will receive a lump sum payment of any balance of termination settlement
pay due.
Agreement and Best Efforts - Your receipt of termination settlement pay and
benefits under this Agreement is contingent on your agreeing to the following
non-competition agreement and release of all claims, and continuing to use your
best efforts to the Company until your scheduled release date.
Non-Competition Agreement - In consideration of the termination settlement pay
and other settlement benefits, you agree that during the period ending March 31,
2003 (the "non-competition period"), which equals the number of weeks of
termination settlement pay, you will not, without receiving prior written
approval of Xxx Xxxxxxxx Xxxxxxx, engage in any business which is in competition
with the business of Xxxxxxxx, as defined below, or directly or indirectly
accept employment with or render services on behalf of a competitor of Xxxxxxxx,
or any third party, in any capacity where the confidential information of
Xxxxxxxx acquired by you during your employment with Xxxxxxxx may be considered
to be useful to the competitor or to such other third party to become a
competitor, irrespective of whether or not such competitor or such third party
has any actual or implied intent to use confidential information of Xxxxxxxx.
"The business of Xxxxxxxx" is understood to mean the business of Xxx Xxxxxxxx
Xxxxxxx, including its subsidiaries, affiliates, joint venturers, and other
entities with which Xxxxxxxx has a substantial identity of interest. You
acknowledge that if, at any time during the non-competition period, you perform
services for any such competing business without obtaining prior written
approval, Xxx Xxxxxxxx Xxxxxxx may, in its sole discretion, immediately
terminate all termination settlement payments and settlement benefits and take
whatever other actions it deems appropriate, including an action to enjoin
without bond any breach of this Agreement.
Release of All Claims - The Company wants to be certain that this Termination
Settlement Agreement will resolve any and all dissatisfactions which you might
have and in that regard requests that you carefully consider the following
Release of All Claims.
In consideration of the termination settlement pay and other benefits to be
provided to you, you do hereby, for yourself, your heirs, executors and assigns,
release and agree to indemnify and hold harmless Xxx Xxxxxxxx Xxxxxxx, its
affiliates, shareholders, directors, officers, employees, and successors from
any and all claims,
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charges, complaints, damages, or causes of action, now existing, both known and
unknown, of every name and nature, including but not limited to all claims of
breach of contract or misrepresentation, wrongful discharge, or arising from
alleged violations of Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Older Workers Benefits Protection Act, the
Rehabilitation Act of 1973, the Americans with Disabilities Act, the Fair Labor
Standards Act, the Equal Pay Act, the Employee Retirement Income Security Act,
the Worker Adjustment and Retraining Notification Act, Chapter 151B of
Massachusetts General Laws, or any other local, state or federal law, regulation
or policy or any other claim relating to or arising out of your employment with
Xxx Xxxxxxxx Xxxxxxx or the termination thereof, with the sole exception of any
rights you may have under the Workers' Compensation Act, and you further promise
not to institute any lawsuit to challenge the validity of this release or the
circumstances surrounding its execution.
You also acknowledge that prior to your execution of this release: you have been
provided with the option and opportunity of reviewing this release with
independent counsel of your own choosing; you are competent to exercise this
release; the only consideration for this release is the termination settlement
pay and benefits described herein and no other promise or agreement has been
made; your agreement to execute this release has not been obtained by any
duress; and you fully understand that this document is intended to be a complete
and legally binding general release.
Governing Law - This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
Headings - Headings of the various provisions used herein are for convenience of
reference only and shall not alter the meaning of the provisions.
Severability - You agree that should any of the provisions of this Agreement be
declared or determined by any court to be illegal or invalid, the validity of
the remaining parts, terms or provisions shall not be affected thereby.
Review - No decisions are required of you today. You have adequate time to
review the provisions of this Agreement, to meet with human resources
representatives and/or independent counsel of your own choosing. You are advised
to consult with an attorney before signing this Agreement.
If, after review, you agree to and accept the terms and conditions of this
letter, please sign and return the enclosed copy of this letter not later than
December 24, 2000.
Revision - You agree that the changes from the original reflected in this
revised agreement do not require any extension of time to the review period
stated in the original.
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Revocation - Federal law provides you with the right to revoke this Agreement
during the seven days following your signing of the Agreement.
I would like to take this opportunity to extend my personal thanks for your past
support and my best wishes for your future.
Sincerely,
Xxxxxx X. XxXxxxx
Xx Vice President, Personnel & Administration
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AGREED AND ACCEPTED:
I hereby accept and agree to all of the terms and provisions of this Agreement.
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Signature WITNESS: Signature
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Date
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