EXHIBIT 10.14
March 23, 2000
Xx. Xxxxxx X. Xxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Re: Change of Status and Separation Agreement
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Dear Xxxxxx:
This letter, upon your signature, will constitute the entire agreement
("Agreement") between you and Xxxxx & Xxxxx Company (the "Company" or "G&E"),
and all of its respective subsidiaries, divisions, affiliates, and related
entities (collectively, the "Company") regarding the transition of your
employment status, duties and responsibilities and the termination of your
services as Executive Vice President and Chief Operating Officer of the Company.
1. You have decided that it would be in the best interests of you and your
family for you to remain in Dallas, Texas. You have decided not to move to
the Chicago, Illinois metropolitan area. The Company has acceded to your
wishes and desires.
2. The Company and you mutually desire to repudiate the letter agreement dated
May 21, 1999 between you and the Company regarding your employment with,
and termination of employment from, the Company, and said letter agreement
is hereby terminated and of no further force or effect, and is superseded
in its entirety by this Agreement.
3. You agree to resign your position as Executive Vice President and Chief
Operating Officer of the Company, effectively immediately ("Transition
Date"). You shall remain an employee of the Company until the earlier to
occur of (i) the date you commence employment with a new employer or (ii)
December 31, 2000 (your "Termination Date"). Between the Transition Date
and your Termination Date, you will work out of your home in Dallas, Texas
essentially assisting the Company in transitioning your duties and
responsibilities to other persons at G&E. You also agree to make yourself
available from time to time as and when required by the Chief Executive
Officer of the Company to work on certain strategic and other Company
issues.
4. Because you and G&E have an at-will employment relationship, you
acknowledge that your employment can be terminated at any time, with or
without notice and without a reason. In consideration of your acceptance of
this Agreement and provided you have fulfilled your other obligations set
forth in this Agreement, then on and after the Transition Date, until your
Termination Date, you will receive compensation as follows: Base salary at
the rate of $300,000 per annum, payable bi-monthly, less withholding taxes
and customary payroll deductions. You understand and agree that you will
not be eligible to receive and will not receive any year 2000 bonus or
incentive compensation. In addition, you will be paid your accrued but
unused vacation time pay, less withholding taxes and customary payroll
deductions, through and on your Termination Date.
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5. On August 19, 1999 the Board of Directors granted you options under the
Xxxxx & Xxxxx Company 1998 Stock Option Plan, as amended (the "1998 Plan")
to acquire 200,000 shares of common stock of the Company at $4.75 per
share, vesting ratably over four years (the "Options"). You hereby
repudiate, abrogate and cancel your right to exercise Options for 70,000
shares of common stock of the Company, reducing your Options from 200,000
shares to 130,000 shares. In the event of a change of control of the
Company as defined in the 1998 Plan ("Change of Control") while you are an
employee of the Company, your unvested Options, up to 130,000 shares, will
become vested pursuant to the terms of the 1998 Plan. In the event (i) a
Change of Control occurs prior to December 31, 2000 (or if a contract for
same is executed by all parties prior to December 31, 2000 and the Change
of Control occurs after December 31, 2000), and (ii) your Options for
130,000 shares of Company common stock have expired because you are no
longer an employee of the Company and did not exercise any vested Options,
then the Company will pay you a lump sum in cash, less withholding taxes
and customary payroll deductions, in an amount equal to the product of (A)
130,000 shares of Company common stock (or a lesser number of shares, if
you have previously exercised any vested Options) previously issuable upon
exercise of such Options times (B) the excess, if any, of the Change of
Control consideration per share paid to all other holders of Options over
your Option exercise price of $4.75 per share of Company common stock
previously issuable upon exercise of such Options.
6. On the Transition Date, you will no longer be an Executive Officer of the
Company and will thereafter no longer be covered or eligible to receive any
compensation or benefits pursuant to the Executive Change of Control Plan,
adopted by the Company Board of Directors on May 10, 1999, as amended (the
"CIC Plan") and you hereby abrogate and repudiate any and all claims you
have under the CIC Plan and the acknowledgement agreement executed by you
in respect of the CIC Plan.
7. (a) After the Transition Date, you will continue to be eligible for
the executive perquisites, employee benefits and levels of
reimbursement of travel expenses for Company business which accompany
the position of Chief Operating Officer (other than pursuant to the
CIC Plan for which you no longer will be eligible).
(b) After your Termination Date, you will no longer be covered by or
eligible for any benefits under any Company employee benefit plans in
which you currently participate. After your Termination Date, you
will receive by separate cover information regarding your rights to
health insurance continuation (COBRA) and any 401(k) PLUS plan
benefits. To the extent that you have such rights, nothing in this
Agreement will impair those rights.
8. In addition, provided that you deliver to the Company a general release of
all claims in form and substance attached hereto as of your Termination
Date, the Company will provide you, by the date that such release is
effective, if prior to December 31, 2000, with a lump sum payment in cash
in an amount equal to the remainder of your base salary due you in respect
of calendar year 2000, less withholding taxes and customary payroll
deductions.
9. (a) In exchange for the compensation to be provided to you herein, to
which you are not otherwise entitled except pursuant to this
Agreement, you agree to and hereby do waive and release, and promise
never to assert, any claims of any kind or nature whatsoever, in law
or equity, known or unknown, direct and indirect, that you have or
might in the future have against G&E, and its respective
predecessors, subsidiaries, affiliates,
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associates, owners, divisions, representatives, related entities,
officers, directors, shareholders, agents, partners, insurers,
employee benefit plans (and their trustees, administrators and other
fiduciaries), attorneys, employees, heirs, successors, and assigns
(collectively, the "Released Parties"), arising from or related to
your employment, the transition of your employment, and the
termination of your employment with the Company.
The claims that you are waiving, releasing and promising not to assert
include, but are not limited to, claims arising under federal, state
and local statutory and common law, such as the Age Discrimination in
Employment Act, as amended, the Americans with Disabilities Act of
1990, the Family Medical Leave Act of 1993, Title VII of the Civil
Rights Act of 1964, as amended, the Equal Pay Act of 1963, as amended,
the Civil Rights Act of 1866, as amended, the common law of contract
and tort, and any other laws and regulations relating to employment,
or employment discrimination and/or the payment of wages or benefits.
(b) In consideration of the foregoing and the execution of the Agreement
by you, the Company and the Released Parties hereby waive and release
and promise never to assert any claims of any kind or nature
whatsoever, in law or equity, known or unknown, direct or indirect
that the Company (and/or any of the Released Parties) might have or
might at any time in the future have against you (and including,
without limitation, your partners, associates, agents,
representatives, related entities and/or affiliates, contractors
and/or your attorneys).
10. (a) You understand and agree that the claims that you are waiving,
releasing and promising never to assert include claims that you now
know or have reason to know exist, as well as those that you do not
presently have any reason to know, believe or suspect that you have,
including unknown, unforeseen, unanticipated and unsuspected injuries,
damages, loss and liability and the consequences thereof. By signing
this Agreement you agree that you are expressly waiving any provision
of any state, federal or local statute, and common-law doctrine,
providing, in substance, that a release shall not extend to claims,
demands, injuries or damages, loss or liability, which are unknown or
unsuspected to exist, by the person making the release, when s/he is
making the release.
(b) The Company (and the Released Parties) agree and understand that the
claims that they are waiving, releasing and promising never to assert
include claims that they now know or have reason to know exist, as
well as those that they do not presently have any reason to know,
believe or suspect that they may have, including unknown, unforeseen,
unanticipated and unsuspected injuries, damages, loss and liability
and the consequences thereof. By signing the Agreement the Company (on
behalf of itself and the Released Parties) agrees that the Company
(and the Released Parties) are expressly waiving any provision of any
state, federal or local statute, and common law doctrine, providing in
substance, that a release shall not extend to claims, demands,
injuries or damages, loss or liability, which are unknown or
unsuspected to exist by the party making the release, when it/they are
making the release.
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11. You agree that you will not voluntarily, and without compulsion of legal
process, assist or encourage others to assert claims or to commence or
maintain litigation against the Released Parties. You also agree not to
take any action or make any statement which disparages or is intended to
disparage the Released Parties or their reputations.
12. You will continue to have access to the Company intranet, voicemail and e-
mail platforms through your Termination Date. You agree to return to the
Company, by your Termination Date, any and all information and materials,
whether in paper, magnetic, electronic or other form, that you have about
the Company's practices, procedures, trade secrets, finances, client lists,
or marketing of the Company's services. You may keep your computer. The
Company will pay for the cost of ground transporting your personal files to
your home in Dallas, Texas. You will promptly execute any and all notices
of resignation from any Company position as requested by the General
Counsel. You will take no further action to bind or obligate the Company.
You will turn in your corporate American Express card on or before March
31, 2000.
13. You agree that you will not, unless required by law or otherwise permitted
by express written permission from or request by the Company, disclose to
anyone any information regarding the following:
a. Any non-public information regarding the Company, including its
practices, procedures, trade secrets, finances, client lists, or
marketing of the Company's services.
b. The terms of this Agreement, except that you may disclose this
information to members of your immediate family and to your attorney,
accountant or other professional advisor(s) to whom you must make the
disclosure in order for them to render professional services to you.
You will instruct them, however, to maintain the confidentiality of
this information just as you must, and any breach of this obligation
of confidentiality by such family member or professional advisor(s)
shall be deemed to be a breach by you. If required to disclose the
terms of this Agreement by law, you shall provide the Company with
sufficient notice prior to any such disclosure, including the basis
for the legal requirement to disclose, to allow the Company to seek a
protective order preventing the disclosure.
14. Except as required by law or administrative agency or stock exchange rules,
the Company will keep the terms of this Agreement confidential.
15. In the event that you breach any of your obligations under this Agreement
or as otherwise imposed by the law, the Company will be entitled to recover
the benefits paid under the Agreement and to obtain all other relief
provided by law and equity. This Agreement will be governed by the law of
the State of Illinois without regard to principles of conflicts of laws
thereof.
16. To accept the Agreement, please date and sign this Agreement and return it,
either by personal delivery or by mail, to XXXXX & XXXXX COMPANY, c/o
Xxxxxx X. Xxxxxx, General Counsel, 0000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, XX 00000. An extra original for your records is enclosed.
a. You understand that you have the right to consult with an attorney
before signing this Agreement.
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b. You have up to 21 days from the date you receive this Agreement to
accept the terms of this Agreement, although you may accept it at any
time within those 21 days.
c. Once you accept this Agreement, you will have seven (7) days after
signing to revoke your acceptance. To revoke, you must send, either
by personal delivery or by mail, to the General Counsel as indicated
above, a written statement of revocation. If you do not revoke, the
eighth day after the date of your acceptance will be the "Effective
Date" of this Agreement.
17. Nothing in this Agreement shall constitute an admission of liability or
wrongdoing by the Company or by you. This Agreement shall not be binding
on the Company unless and until it is signed, in unaltered form, and
returned to the Company as provided above.
18. For all public relations purposes (both internally and in the marketplace)
the parties will acknowledge that the reason for the transition is due to
your decision that it is in the best interest of your family for you to
remain in Dallas, Texas.
19. You shall not have any restriction or limitation to engage in any business
opportunity.
20. In the event that any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, then to the maximum extent permitted by law,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement.
21. This Agreement represents the sole and entire agreement between you and the
Company regarding the transition and then termination of your services as
Executive Vice President and Chief Operating Officer and supersedes any and
all previous verbal or written promises, representations, agreements,
negotiations and/or discussions, if any, between you and the Company with
respect to the subject matters covered herein. This Agreement cannot be
terminated or changed except in writing by you and a duly authorized
representative of G&E.
22. All notices, requests, demands and other communications which are required
or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given when received if personally delivered; when
transmitted if transmitted by telecopy, electronic or digital transmission
method, with electronic confirmation; when received, if sent for next day
delivery to a domestic address by recognized overnight delivery service
(e.g., Federal Express); and upon receipt, if sent by certified or
----
registered mail, return receipt requested. In each case notice shall be
sent to:
If to you, addressed to:
Xxxxxx X. Xxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
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If to Xxxxx & Xxxxx Company, addressed to:
Xxxxx & Xxxxx Company
0000 Xxxxxxx Xxxx, 0/xx/ Xxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others.
XXXXX & XXXXX COMPANY
/s/ Xxxx Xxxxx
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By: Xxxx Xxxxx
Dated: March 23, 2000 Chairman & Chief Executive Officer
By signing this Agreement, I acknowledge that I have had the opportunity to
review it carefully with an attorney of my choice, that I understand the terms
of the agreements contained therein, and that I voluntarily agree to them.
Dated: March 23, 2000 /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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GENERAL RELEASE
In consideration of the Change of Status and Separation Agreement between
Xxxxx & Xxxxx Company and me dated as of March 23, 2000 (the "Agreement") and
the payments and benefits provided to me as described therein, the receipt of
which is hereby acknowledged, I hereby fully and forever RELEASE and DISCHARGE
Xxxxx & Xxxxx Company, a Delaware corporation and its related and affiliated
corporations (collectively, the "Company"), their predecessors, subsidiaries,
affiliates, associates, divisions, representatives, related entities, officers,
directors, shareholders, agents, employees, partners, insurers, employer-
sponsored employee pension, benefit and welfare benefit plans (and their
trustees, administrators and other fiduciaries), attorneys, heirs, successors,
and assigns (hereinafter, collectively called the "Released Parties") from all
claims and causes of action arising out of or relating in any way to my
employment with the Company, including but not limited to employment
discrimination, the payment of wages or benefits, and/or termination of my
employment. Should I maintain any action or claim against the Released Parties
for workers' compensation benefits, which action or claim results in an award or
payment to me, the Company will be entitled to a dollar-for-dollar offset of any
award or payment against the Payment.
1. I understand and agree that this RELEASE is a full and complete waiver
of all claims, including, but not limited to, claims of wrongful
discharge, breach of contract, breach of the covenant of good faith
and fair dealing, violation of public policy, defamation, personal
injury, emotional distress, claims arising under Title VII of the
Civil Rights Act of 1964, as amended, the Equal Pay Act of 1963, as
amended, the Age Discrimination in Employment Act of 1967, as amended,
the Americans with Disabilities Act, the Civil Rights Act of 1866, as
amended, the Family Medical Leave Act of 1993, the Employee Retirement
Income Security Act ("ERISA"), (except to the extent of currently
vested benefits under any ERISA plan and the benefits provided
specifically therein), wage and hour laws, and any and all other
federal, state or local laws, regulations, or common law relating to
employment, including but not limited to employment discrimination,
the payment of wages or benefits, and/or termination of employment,
that are or may be applicable to my employment with the Company. I
further understand that by signing this RELEASE I agree not to assist,
encourage, institute or cause to be instituted the filing of any
administrative charge or lawsuit in any forum against the Released
Parties relating to employment, payment of wages or benefits, or
employment discrimination, excluding any claims I might have for
unemployment insurance benefits, state disability compensation and/or
workers' compensation benefits. I also agree that I will not, in the
absence of legal compulsion, assist, encourage, or participate in any
administrative or legal proceedings brought by any other individual
against the Released Parties asserting claims relating to employment,
including but not limited to employment discrimination, the payment of
wages or benefits, and/or termination of employment.
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2. I also hereby agree that nothing contained in this RELEASE shall
constitute or be treated as an admission of liability or wrongdoing by
the Released Parties.
3. In addition, and in further consideration of the foregoing, I hereby
expressly waive and release and promise never to assert claims that I
now know or have reason to know exist, as well as those that I do not
presently have any reason to know, believe or suspect that I have,
including unknown, unforeseen, unanticipated and unsuspected injuries,
damages, loss and liability and the consequences thereof. By signing
this release, I agree that I am expressly waiving any provision of any
state, federal or local statute, and common-law doctrine, providing in
substance, that a release shall not extend to claims, demands,
injuries or damages, loss or liability which are unknown or
unsuspected to exist, by the person making the release, when s/he is
making the release.
4. Notwithstanding anything to the contrary in this RELEASE, my rights,
if any, to indemnification from the Company for ongoing defense costs
and any other liabilities or losses pursuant to the Company's Bylaws
and/or pursuant to any indemnification agreement with the Company to
which I am a party, and/or arising out of or in connection with my
performance or non-performance of services to or on behalf of the
Released Parties, including without limitation independent contractor
sales agents, and/or in connection with matters for which any of the
Released Parties has maintained or maintains insurance coverage in the
past, present or future, are not waived by this RELEASE.
5. I acknowledge and agree that a) except as provided in the Agreement
and this RELEASE, this RELEASE renders null and void any and all prior
agreements between myself and the Company with respect to my
employment; and b) if any part or any provision of this RELEASE is
held void or invalid under any law, such provision is severable and
shall be disregarded and all of the remaining provisions shall remain
in force and be fully binding.
6. I acknowledge and agree that, except as provided in the Agreement and
this RELEASE, I am not entitled to any compensation, including accrued
and unused vacation pay, from the Company which has not already been
paid, other than reimbursement for any business-related expenses
incurred prior to the date of termination of my employment which are
reimbursable under the Company's expense policy and for which I
provide proper substantiation in accordance with such policy. I
understand that I will receive under separate cover information
regarding my rights to health insurance continuation under the
Comprehensive Omnibus Budget Reconciliation Act ("COBRA") and any
401(k) PLUS Plan benefits, and that to the extent that I have such
rights and benefits, nothing in this RELEASE will impair those rights.
This Release shall not affect any unpaid claims under any medical,
accident or disability insurance policy or employee medical care
account.
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7. I agree to return to the Company by my termination date, any and all
information and materials, whether in paper, magnetic, electronic or
other form, that I possess about the Company's practices, procedures,
trade secrets, finances, client lists, or marketing of the Company's
services.
8. I hereby acknowledge that I have read and understand the foregoing
RELEASE and that I sign it voluntarily and without coercion. I further
acknowledge that if I am age 40 or over, I was given forty-five
calendar days, and if I am under age 40, I was given seven (7)
calendar days within which to consider and review this RELEASE and to
consult with an attorney of my own choosing concerning the waivers
contained in this RELEASE, that I have done so and that the waivers
made herein are knowing, conscious and with full appreciation that I
am forever foreclosed from pursuing any of the rights so waived.
9. If I am age 40 or over, I further understand that for a period of
seven (7) days after signing this RELEASE I have the right to revoke
it and that this RELEASE shall not become effective or enforceable
until the eighth day following those (7) days.
Date delivered to employee: March 23, 2000.
Signed this ___ day of ______________, 2000.
/s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Employee
Xxxxxx X. Xxxxxx
---------------------------------------------
Printed Name
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