SEPARATION AGREEMENT AND GENERAL RELEASE
WHEREAS, Xxxxxx Xxxxx (the "Employee") had been employed by Resource
America, Inc. (the "Employer") until his separation from employment which was
effective on September 13, 2000 (the "Separation Date").
WHEREAS, the Employer and the Employee entered into an Employment
Agreement dated October 5, 1999 (the "Employment Agreement"), which superceded
the Employee's previous employment agreement from 1997 to which the Employer was
a party, and the Employee is willing to waive any and all payments, benefits and
rights under such Employment Agreement and any separation benefits which may
otherwise have been applicable to the Employee, in exchange for the payments and
benefits described in this Agreement.
WHEREAS, the Employer and the Employee have determined that, effective
as of the Separation Date, the Employee was separated from employment with the
Employer on the terms and conditions set forth in this Agreement.
WHEREAS, the parties agree that the Employee shall continue to be a
member of the Board of Directors of the Employer (the "Board") as of the
Separation Date, and this Agreement shall not be deemed a termination of the
Employee's service as a member of the Board.
IT IS HEREBY AGREED, by and between the Employee and the Employer,
intending to be legally bound hereby, as follows:
1. The Employee, for and in consideration of the commitments of the
Employer as set forth in paragraph 3 below, for and on behalf of himself, his
successors, beneficiaries, heirs and assigns, does hereby REMISE, RELEASE AND
FOREVER DISCHARGE the Employer and each and every one of its affiliated
entities, and its and their officers, directors, employees, and agents, and its
and their respective successors and assigns, heirs, executors, and
administrators, from all causes of action, suits, debts, claims and demands
whatsoever in law or in equity, which the Employee ever had, now has, or
hereafter may have, or which his heirs, executors, or administrators may have,
by reason of any matter, cause or thing whatsoever, from the beginning of his
employment to the date of this Agreement, and particularly, but without
limitation of the foregoing general terms, any claims arising from or relating
in any way to his employment relationship with the Employer, the terms and
conditions of that employment relationship, and the termination of that
employment relationship, including, but not limited to, any claims arising under
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. ss. 2000e et
seq., the Americans with Disabilities Act, 42 U.S.C. ss. 12101 et seq., the
Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. ss. 2601 et seq., the
Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. ss. 1001 et
seq., the Pennsylvania Human Relations Act, 43 P.S. ss. 951 et seq., and any
other federal or state common law, statutory, or regulatory provision, and any
claim for attorneys' fees and costs.
The Employer, for and in consideration of the commitments of the
Employee as set forth in this Agreement, for and on behalf of itself and each
and every one of its subsidiaries, does hereby REMISE, RELEASE AND FOREVER
DISCHARGE the Employee and his heirs, executors and administrators, from all
causes of action, suits, debts, claims and demands whatsoever in law or in
equity, which the Employer ever had, now has, or hereafter may have, or which
its subsidiaries may have, by reason of any matter, cause or thing whatsoever,
from the beginning of the Employee's employment to the date of this Agreement,
arising from or relating in any way to his employment relationship with the
Employer, the terms and conditions of that employment relationship, and the
termination of that employment relationship if other than that (i) finally
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determined by a court of competent jurisdiction to be a criminal act or (ii) an
action reasonably determined by the Employer to be outside of the scope of his
employment by the Employer or outside the scope of the other activities
contemplated by Section 2 of the Employment Agreement.
In granting the releases contained in this Section 1, the parties are
not releasing their rights under this Agreement, and the Employee is not
releasing his indemnification rights under Section 9 of the Employment Agreement
or his rights to indemnification or contribution under the Employer's by-laws or
certificate of incorporation, or his right to compensation as a non-employee
director or his right to vested benefits accrued under the terms of any section
401(k) plan, employee stock ownership plan or other employee pension benefit
plan governed by the Employee Retirement Income Security Act of 1974, as
amended.
2. The Employee further agrees and recognizes that he has permanently
and irrevocably severed his employment relationship as an employee of the
Employer and that the Employer has no obligation to employ him in the future.
3. In consideration of the Employee's promises contained herein, and in
satisfaction of all liabilities and obligations of the Employer to the Employee,
except as otherwise specifically provided in this Agreement, including without
limitation obligations under the Employment Agreement and other obligations with
respect to salary, bonus, severance, notice pay and all other benefits, the
Employer agrees to provide the Employee with the following payments and
benefits:
a. A cash payment (less all applicable tax withholding and other
deductions required by law), by wire transfer or other method of payment
acceptable to the Employee, on or before the third business day following the
execution of this Agreement, equal to $1.5 million and an additional cash
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payment (less all applicable tax withholding and other deductions required by
law) on January 5, 2001 equal to $730,635. The parties acknowledge that the cash
payments described in this paragraph compensate the Employee for relinquishing
his negotiated contract rights under the Employment Agreement, and, thus, does
not constitute wages for Federal income tax withholding or Federal employment
tax withholding purposes.
b. A cash payment (less all applicable tax withholding and other
deductions required by law), by wire transfer or other method of payment
acceptable to the Employee, on or before the third business day following the
execution of this Agreement equal to $32,742 in lieu of the Employee's health
coverage. The parties acknowledge that the Employee may elect COBRA coverage
under the Employer's health benefit plans as required by applicable law.
c. The Employee acknowledges that the payments, benefits and
rights described in this paragraph 3 are adequate consideration for his release
of claims.
4. The Employee has exercised his outstanding stock options granted
under the Employer's 1989 Key Employee Stock Option Plan with respect to 8,454
shares of Employer stock, at an exercise price of approximately $2.73 per share
(total purchase price of $23,073.69). The Employee agrees that all outstanding
stock options to purchase Employer stock granted to the Employee pursuant to the
Employer's 1999 Key Employee Stock Option Plan (an aggregate of 100,000 shares)
shall terminate as of the Separation Date.
5. The Employee's outstanding stock options with respect to an
aggregate of 216,615 shares of Employer stock, which were granted pursuant to
the 1997 Key Employee Stock Plan (the "1997 Plan") shall be fully vested and
exercisable as of the Separation Date. These stock options granted under the
1997 Plan shall continue in effect until the first to occur of (i) the date the
Employee ceases to be a member of the Board or (ii) the end of the applicable
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option term. The Employee and the Employer acknowledge that, as a result of
Internal Revenue Code requirements, the Employee's stock options under the 1997
Plan will be taxed as nonqualified stock options beginning 90 days after the
Employee's separation from employment.
6. The Employee agrees that his relationship with the Employer is one
of confidence and trust. The Employee also recognizes that his position with the
Employer gave him substantial access to Confidential Information (as that term
is defined below), the disclosure of which to competitors of the Employer could
cause the Employer to suffer substantial and irreparable damage. The Employee
recognizes, therefore, that it is in the Employer's legitimate business interest
to limit any potential appropriation of Confidential Information by him for the
benefit of the Employer's competitors and to the detriment of the Employer.
Accordingly, the Employee agrees as follows:
a. For a period of thirty-six months following the date of this
Agreement, as shown below, the Employee will not disclose to any other person or
company, nor use for his own personal benefit (unless the Employee reasonably
believed that the information used was not, or no longer was, Confidential
Information) any Confidential Information disclosed to the Employee, or of which
the Employee becomes or became aware, by reason of his employment or association
with the Employer.
b. The term "Confidential Information" means any and all data and
information relating to the business of the Employer (whether or not it
constitutes a trade secret), which is or has been disclosed to the Employee or
of which the Employee becomes or became aware as a consequence of his employment
or relationship with the Employer, and which has value to the Employer and is
not generally known by its competitors, including but not limited to information
relating to experimental and research work of the Employer, the Employer's
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methods, processes, tools, machinery, formulas, drawings or appliances, and the
financial or business affairs of the Employer relating to services, customers,
customer lists, employees or employees' compensation, projections, plans,
development, accounting and marketing studies or analyses. Confidential
Information shall not include any data or information that has been disclosed
voluntarily to the public by the Employer (except where such public disclosure
has been made by the Employee or some other person without authorization), or
that has been independently developed and disclosed by others, or that otherwise
enters the public domain through lawful and legitimate means.
c. The Employee agrees that he will not take with him or retain
without written authorization any documents, files or other property of the
Employer, and the Employee will return promptly to the Employer any such
documents, files or property in his possession or custody. In connection with
this Agreement, the Employee recognizes that all documents, files and property
which the Employee has received and will receive from the Employer, including
but not limited to customer lists, handbooks, memoranda, policy manuals, product
specifications, and other materials (with the exception of documents relating to
benefits to which the Employee is entitled), are for the exclusive use of the
Employer and employees who are discharging their responsibilities on behalf of
the Employer, and that the Employee has no claim or right to the continued use,
possession or custody of such documents, files or property after the Separation
Date.
d. The Employee acknowledges and agrees that if he should breach
any of the covenants, restrictions and agreements contained in this Section 6,
irreparable loss and injury would result to the Employer, and that damages
arising out of such a breach may be difficult to ascertain. The Employee
therefore agrees that, in addition to all other remedies provided at law or at
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equity, the Employer may petition and obtain from a court of law or equity all
necessary temporary, preliminary and permanent injunctive relief to prevent a
breach by the Employee of any covenant contained in this Agreement. The Employee
agrees further that if it is finally determined by a court that the Employee has
breached the terms of this Agreement, the Employer shall be entitled to recover
from the Employee all reasonable costs and attorneys' fees incurred as a result
of its attempts to redress such a breach or to enforce its rights and protect
its legitimate interests.
7. The Employee agrees and acknowledges that this agreement by the
Employer, described herein, is not and shall not be construed to be an admission
of any violation of any federal, state or local statute or regulation, or of any
duty owed by the Employer and that this Agreement is made voluntarily to provide
an amicable conclusion of his employment relationship with the Employer.
8. The Employee certifies and acknowledges as follows:
a. That he has read the terms of this Agreement, and that he
understands its terms and effects, including the fact that, subject to the terms
of this Agreement, he has agreed to RELEASE AND FOREVER DISCHARGE the Employer
and each and every one of its affiliated entities from any legal action arising
out of his employment relationship with the Employer and the termination of that
employment relationship; and
b. That he has signed this Agreement voluntarily and knowingly in
exchange for the consideration described herein, which he acknowledges is
adequate and satisfactory to him and which he acknowledges is in addition to any
other benefits to which he is otherwise entitled; and
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c. That he does not waive rights or claims that may arise after
the date this Agreement is executed; and
d. That the Employer has provided him with a reasonable period of
time within which to consider this Agreement and that the Employee has signed on
the date indicated below after concluding that this Agreement is satisfactory to
him.
9. The Employee and the Employer acknowledge and agree that this
Agreement supersedes any and all prior agreements or understandings between the
parties, and that, except as set forth expressly herein, no promises or
representations have been made in connection with the termination of the
Employee's employment, his compensation thereafter or the terms of this
Agreement.
10. If any portion or section of this Agreement is deemed by a court of
competent jurisdiction to be unenforceable, the remaining portions of the
Agreement shall remain in full force and effect.
11. Notwithstanding Section 10, if the Employee contests or otherwise
fails to honor the release contained in Section 1, the Employee shall repay all
amounts paid to him under this Agreement to the Employer.
12. The Employer shall pay the Employee up to $7,500 as reimbursement
for the legal fees paid by the Employee in connection with the negotiation of
this Agreement, including the meaning and effect of the release given by the
Employee under Section 1 and the Confidential Information covenant given by the
Employee under Section 6. The Employer shall maintain directors and officers
insurance coverage for the Employee that is at least as extensive as the
coverage of any other director who serves as a member of the Board of Directors
of the Employer.
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13. The terms of this Agreement should be interpreted under the laws of
the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, and intending to be legally bound hereby, Employee
and Employer hereby execute this Agreement as of this 20th day of October, 2000.
WITNESS:
--------------------------- ---------------------------
Xxxxxx Xxxxx
ATTEST: RESOURCE AMERICA, INC.
--------------------------- By:
-------------------------
Title:
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