EXHIBIT 99.01
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (the "Agreement") is dated as
of April 1, 2005, by and between, Del Global Technologies Corp., a New York
corporation (the "Company"), and Xxxxxx Xxxxxx ("Xxxxxx").
WHEREAS, the Company and Xxxxxx are parties to an agreement dated
October 28, 2002 (the "Change in Control Agreement").
WHEREAS, this Agreement governs the terms of Xxxxxx' separation from
the Company.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. As of the close of business April 1, 2005, Xxxxxx' employment by
the Company shall cease. As severance, Ferris will receive a payment of
FOUR-HUNDRED AND SEVENTY-FOUR THOUSAND FOUR HUNDRED AND NINETY-ONE DOLLARS AND
TWENTY-THREE CENTS ($474,491.23) which payment shall be made within five (5)
business days of Xxxxxx' execution and delivery of an executed Agreement to the
Company. Such payment shall be made net of applicable state and federal
withholding and other taxes customarily withheld by the Company. In addition,
the Company will make payment to Xxxxxx in the amount of TWENTY-FIVE THOUSAND
DOLLARS ($25,000.00) which amount represents payment of certain legal fees and
expenses Xxxxxx has incurred or is expected to incur in connection with his
separation from the Company. Xxxxxx understands that the Change in Control
Agreement is hereby terminated and is of no further force and effect and that he
is entitled to no payment from the Company of any kind or nature pursuant to the
Change in Control Agreement or under any other agreement or agreements with the
Company. Xxxxxx further understands that aside from the payments set forth
within this paragraph, he is not entitled to and will not receive any payment of
any kind from the Company.
2. In exchange for the consideration received under this Agreement,
Xxxxxx hereby irrevocably and unconditionally releases and forever discharges
the Company, its predecessors, parents, subsidiaries, affiliates, and past,
present and future officers, directors, agents, consultants, employees,
representatives, attorneys, and insurers, as applicable, together with all
successors and assigns of any of the foregoing (collectively, the "Releasees"),
of and from all claims, demands, actions, causes of action, rights of action,
contracts, controversies, covenants, obligations, agreements, damages,
penalties, interest, fees, expenses, costs, remedies, reckonings, extents,
responsibilities, liabilities, suits, and proceedings of whatsoever kind,
nature, or description, direct or indirect, vested or contingent, known or
unknown, suspected or unsuspected, in contract, tort, law, equity, or otherwise,
under the laws of any jurisdiction, that Xxxxxx or his predecessors, legal
representatives, successors or assigns, ever had, now has, or hereafter can,
shall, or may have, against the Releasees, as set forth above, jointly or
severally, for, upon, or by reason of any matter, cause, or thing whatsoever
from the beginning of the world through, and including, the date of this
Agreement (the "Claims"), arising out of Xxxxxx'x employment with the Company.
It is understood and agreed that Xxxxxx hereby expressly waives any
and all laws or statutes, of any jurisdiction whatsoever, which may provide that
a general release does not extend to claims not known or suspected to exist at
the time of executing a release which if known would have materially affected
the decision to give said release. It is expressly intended and agreed that this
Release does in fact extend to such unknown or unsuspected Claims arising out of
Xxxxxx' employment with the Company related to anything which has happened to
the date hereof even if knowledge thereof would have materially affected the
decision to give said release.
Furthermore, this Release includes, but is not limited to, any and all:
(a) employment and/or benefit related claims under any federal,
state or local law, employment law or civil rights law, including, but not
limited to, the Americans with Disabilities Act, the National Labor Relations
Act, the Fair Labor Standards Act and any other federal, state or local wage,
wage hour or wage payment law, the Employee Retirement Income Security Act of
1974 ("ERISA") including, but not limited to, breach of fiduciary duty and
equitable claims arising under ss.1132(a)(3) of ERISA, Title VII of the Civil
Rights Act of 1964, the Vocational Rehabilitation Act of 1973, the Civil Rights
Acts of 1866, 1871 and 1991, including Section 1981 of the Civil Rights Act, the
Family and Medical Leave Act, the Worker Adjustment and Retraining Notification
Act (all as amended); and
(b) employment and/or benefit related claims arising under
common or other law including any policy, procedure or practice of the
Releasees, and any contract or tort (including but not limited to claims of
defamation, intentional or negligent infliction of emotional distress, tortious
interference, wrongful or abusive discharge, conversion, fraud, negligence, loss
of consortium) claims; and
(c) claims of retaliation under all federal, state, local or
common or other law;
Except to enforce this Agreement, Xxxxxx agrees that he will not
pursue, file or assert or permit to be pursued, filed or asserted any civil
action, suit or legal proceeding seeking equitable or monetary relief (nor will
he seek or in any way obtain or accept any such relief in any civil action, suit
or legal proceeding) in connection with any matter concerning his employment
relationship with the Company and/or the termination thereof with respect to all
of the claims released herein arising from the beginning of the world up to and
including the date of execution of this Agreement (whether known or unknown to
him and including any continuing effects of any acts or practices prior to the
date of execution of this Agreement). Xxxxxx further agrees that should any
class action or collective action lawsuit be brought against the Company in
which he may be a participant, he will opt-out (or not opt-in) to the class.
Except for the payments and benefits set forth herein, Xxxxxx acknowledges that
he has been paid all wages and other amounts due to him and that he is not
entitled to any other payments or benefits of any kind.
If Xxxxxx should bring any action arising out of the subject matter
covered by this Agreement, except to enforce this Agreement, he understands and
recognizes that he will, at the option of Company, be considered in breach of
this Agreement and shall be required to immediately return any and all funds
received pursuant to this Agreement.
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The release set forth within this paragraph shall not include any
rights Xxxxxx may have pursuant to the Company's 401(k) plan, rights to medical
and dental coverage benefits, rights to participate in COBRA, and any rights
Xxxxxx may have under the October 14, 2002 Officers' Stock Option Agreement or
under the December 16, 2002 Indemnification Agreement.
3. Upon execution of this Agreement, the Company hereby irrevocably
and unconditionally releases and forever discharges Xxxxxx of and from all
claims, demands, actions, causes of action, rights of action, contracts,
controversies, covenants, obligations, agreements, damages, penalties, interest,
fees, expenses, costs, remedies, reckonings, extents, responsibilities,
liabilities, suits, and proceedings of whatsoever kind, nature, or description,
direct or indirect, vested or contingent, which are presently known in contract,
tort, law, equity, or otherwise, under the laws of any jurisdiction, that the
Company now has, or hereafter can, shall, or may have, against Xxxxxx, for,
upon, or by reason of any matter, cause, or thing whatsoever from the beginning
of the world through, and including, the date of this Agreement (the "Claims").
The Company represents that, as of the date of this Agreement, it is not aware
of any claims that may be made against Xxxxxx by reason of his employment with
the Company.
4. Xxxxxx agrees that in the future, upon reasonable request, he
will cooperate with the Company so long as such cooperation does not interfere
in any material respects with any full-time job he may have. The obligation to
cooperate will extend only to those matters with which Xxxxxx may have been
involved while he was employed by the Company. The Company agrees to reimburse
Xxxxxx for any and all expenses reasonably incurred in connection with any such
request made by the Company and to abide by any obligations provided for in the
December 16, 2002 Indemnification Agreement.
5. Xxxxxx agrees that he will not disclose, directly or indirectly,
the underlying facts that led up to this Agreement or the terms or existence of
this Agreement except to his tax preparers and financial, tax and legal
advisors. Notwithstanding the foregoing, this paragraph shall not xxx Xxxxxx
from disclosure to the extent legally necessary to enforce this Agreement, nor
does it prohibit disclosures to the extent otherwise legally required (but only
if Xxxxxx promptly notifies the Company of such a disclosure obligation such
that the Company may take whatever action it deems appropriate to prevent or
limit the required disclosure).
6. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its conflicts of law
principles. Any dispute regarding this Agreement, or relating to Xxxxxx'
employment with the Company, shall be brought in the courts located in New York
County, New York which will be the exclusive jurisdiction for such disputes.
Xxxxxx hereby expressly waives a right to a jury in any such actions.
7. This Agreement may not be changed or altered, except by a writing
signed by both parties. Until such time as this Agreement has been executed and
subscribed by both parties hereto: (i) its terms and conditions and any
discussion relating thereto, without any exception whatsoever, shall not be
binding nor enforceable for any purpose upon any party; and (ii) no provision
contained herein shall be construed as an inducement to act or to withhold an
action, or be relied upon as such.
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8. This Agreement constitutes an integrated, written contract,
expressing the entire agreement and understanding between the parties with
respect to the subject matter hereof and supersedes any and all prior agreements
and understandings, oral or written, between the parties, except to the extent
that matters covered within the October 14, 2002 Officers' Stock Option
Agreement or the December 16, 2002 Indemnification Agreement may survive.
9. Any and all notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given and effective on the
earliest of (i) the date of transmission, if such notice or communication is
delivered via facsimile to the Company's facsimile prior to 5:30 p.m. (New York
City time) on a Business Day, (ii) the Business Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Agreement later than 5:30 p.m. (New
York city time) on any date and earlier than 11:59 p.m. (New York City time) on
such date, (iii) the Business Day following the date of mailing, if sent by
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be Xxxxxx' current residence and the Company's
current office address.
10. Xxxxxx represents that has not assigned or transferred any Claim
he is releasing. This Agreement binds Xxxxxx' heirs, administrators,
representatives, executors, successors, and assigns, and will insure to the
benefit of all Releasees and their respective heirs, administrators,
representatives, executors, successors, and assigns.
11. If any provision in this Agreement is found to be unenforceable,
all other provisions will remain fully enforceable.
12. Xxxxxx acknowledges that he has consulted with, or had a full
and fair opportunity to consult with, independent legal counsel regarding the
legal effect of this Agreement, and is entering into this Agreement freely and
voluntarily.
13. 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.
Xxxxxx hereby certifies that he has read the terms of this Agreement
and that he understands the terms and effects of this Agreement. Xxxxxx
acknowledges that he is executing this Agreement without relying on any
representations other than those contained within this Agreement. Xxxxxx
acknowledges that he has been afforded a reasonable time to review, consider,
and execute this Agreement and understands that this Agreement becomes effective
immediately upon execution.
Xxxxxx understands and agrees that he has until June __, 2005, to
sign and return this Agreement to the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the first date set forth above.
DEL GLOBAL TECHNOLOGIES CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, Chief Executive Officer
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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