Exhibit 10.29(a)
AGREEMENT AND GENERAL RELEASE
Agreement and General Release ("Agreement"), by and between Xxxxx X.
Xxxxxxxx ("Employee" or "you") who resides at 00 Xxxxxx Xxxxx, Xxxxxxxxx, XX
00000, and Philipp Brothers Chemicals, Inc., its divisions, subsidiaries and
affiliates, (collectively referred to as the "Company").
1. You acknowledge that your employment with the Company will terminate
effective September 11, 2002 (the "Termination Date"), and that after the
Termination Date you shall not represent yourself as being an employee, officer,
agent or representative of the Company for any purpose. The Termination Date
shall be the termination date of your employment for purposes of participation
in and coverage under all benefit plans and programs sponsored by the Company.
2. Following the Effective Date of this Agreement and in exchange for your
waiver of claims against the Company and compliance with other terms and
conditions of this Agreement and the enclosed Employee Severance Pay Plan (the
"Plan"), the Company agrees to pay you severance in accordance with the terms
and conditions of the Plan, in a gross amount equal to 12 months of your base
pay (e.g., in the gross amount of $200,000.00). Your severance will be subject
to applicable tax withholdings and other payroll deductions and be paid in equal
installments on the Company's regular payroll dates in accordance with normal
payroll practices.
3. You acknowledge and agree that the severance provided pursuant to the
Plan and this Agreement is more than any payment, benefit, or other thing of
value to which you might otherwise be entitled under any policy, plan or
procedure of the Company and/or any agreement between you and the Company.
4. You will be eligible for continued medical, dental, vision and
prescription benefits at the same standard employee contribution rates from the
Termination Date for a length of time equal to the end of the month in which
your Termination Date occurred. To be eligible for continued benefits, you must
have been covered by such benefits at the time of termination. The benefits to
be continued include medical, dental, vision and prescription coverage, but not
life and AD&D insurance, disability, worker's compensation and 401(k)
contributions and flexible spending. The Company will contribute to the cost of
such continued coverage at the same rate and under the same terms and condition
as are applicable to similarly situated active employees of the Company for the
time period noted above. To continue the group health benefits beyond the end of
the month of your Termination Date, you must elect continued coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA").
The group health benefit contributions by the Company will automatically
terminate when you (or your eligible dependents if such coverage is elected) is
covered by a group health plan of a subsequent employer. However, in such event,
such coverage may continue at your own expense in accordance with and subject to
the limitations and requirements of COBRA.
5. (a) In consideration for the payment to be provided you pursuant to
paragraph 2 above, you, for yourself and for your heirs, executors,
administrators, trustees, legal representatives and
Xxxxx X. Xxxxxxxx September 11, 2002
assigns (hereinafter referred to collectively as "Releasors"), forever release
and discharge the Company and its past, present and future parent entities,
subsidiaries, divisions, affiliates and related business entities, successors
and assigns, assets, employee benefit plans or funds, and any of its or their
respective past, present and/or future directors, officers, fiduciaries, agents,
trustees, administrators, employees and assigns, whether acting on behalf of the
Company or in their individual capacities (collectively the "Company Entities")
from any and all claims, demands, causes of action, fees and liabilities of any
kind whatsoever, whether known or unknown, which you ever had, now have, or may
have against any of the Company Entities by reason of any act, omission,
transaction, practice, plan, policy, procedure, conduct, occurrence, or other
matter up to and including the date on which you sign this Agreement.
(b) Without limiting the generality of the foregoing, this Agreement is
intended to and shall release the Company Entities from any and all claims,
whether known or unknown, which Releasors ever had, now have, or may have
against the Companies Entities arising out of your employment and/or your
separation from that employment, including, but not limited to: (i) any claim
under the Age Discrimination in Employment Act, Title VII of the Civil Rights
Act of 1964, the Americans with Disabilities Act, the Employee Retirement Income
Security Act of 1974 (excluding claims for accrued, vested benefits under any
employee benefit or pension plan of the Company Entities subject to the terms
and conditions of such plan and applicable law), and the Family and Medical
Leave Act; (ii) any claim under the New Jersey Law Against Discrimination, the
New Jersey Equal Pay Act, the New Jersey Family Leave Act, the New Jersey
Conscientious Employee Protection Act, (iii) any other claim (whether based on
federal, state, or local law, statutory or decisional) relating to or arising
out of your employment, the terms and conditions of such employment, the
termination of such employment, and/or any of the events relating directly or
indirectly to or surrounding the termination of that employment, including but
not limited to breach of contract (express or implied), wrongful discharge,
detrimental reliance, defamation, emotional distress or compensatory or punitive
damages; and (iv) any claim for attorneys' fees, costs, disbursements and/or the
like. Nothing in this Agreement shall be a waiver of claims that may arise after
the date on which you sign this Agreement.
(c) You acknowledge that you have been advised by legal counsel and/or are
familiar with the provision of Section 1542 of the California Civil Code, which
provides as follows: a general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his settlement
with the debtors. Being aware of said Code section, you hereby expressly waive
and relinquish any rights or benefits you may have thereunder, as well as under
any other state or federal statutes of common law principles of similar effect.
6. You represent and warrant that you have not commenced, maintained,
prosecuted or participated in any action, suit, charge, grievance, complaint or
proceeding of any kind against Company Entities in any court or before any
administrative or investigative body or agency. You further acknowledge and
agree that by virtue of the foregoing, you have waived all relief available to
you (including without limitation, monetary damages, equitable relief and
reinstatement) under any of the claims and/or causes of action waived in
paragraph 4 above.
7. You acknowledge that during the course of your employment with the
Company, you have had access to information relating to the Company that is not
generally known by persons not
Xxxxx X. Xxxxxxxx September 11, 2002
employed by the Company and that could not easily be determined or learned by
someone outside of the Company. You agree not to disclose or use such
confidential information at any time in the future.
8. You represent that you have returned (or will return) to the Company
all property belonging to the Company. You further acknowledge and agree that
the Company shall have no obligation to make the payment referred to in
paragraph 2 above unless and until you have satisfied all your obligations
pursuant to this paragraph.
9. If any provision of this Agreement is held by a court of competent
jurisdiction to be illegal, void or unenforceable, such provision shall have no
effect; however, the remaining provisions shall be enforced to the maximum
extent possible. Further, if a court should determine that any portion of this
Agreement is overbroad or unreasonable, such provision shall be given effect to
the maximum extent possible by narrowing or enforcing in part that aspect of the
provision found overbroad or unreasonable.
10. This Agreement is not intended, and shall not be construed, as an
admission that any of the Company has violated any federal, state or local law
(statutory or decisional), ordinance or regulation, breached any contract or
committed any wrong whatsoever against you.
11. This Agreement is binding upon, and shall inure to the benefit of, the
parties and their respective heirs, executors, administrators, successors and
assigns.
12. This Agreement shall be construed and enforced in accordance with the
laws of the State of New Jersey without regard to the principles of conflicts of
law.
13. You understand that this Agreement constitutes the complete
understanding between the Company and you, and, supersedes any and all
agreements, understandings, and discussions, whether written or oral, between
you and any of the Company Entities. No other promises or agreements shall be
binding unless in writing and signed by both the Company and you after the
Effective Date of this Agreement.
14. You acknowledge that you: (a) have carefully read this Agreement in
its entirety; (b) have had an opportunity to consider it for at least forty-five
(45) days the terms of this Agreement; (c) are hereby advised by the Company in
writing to consult with an attorney of your choice in connection with this
Agreement; (d) fully understand the significance of all of the terms and
conditions of this Agreement and have discussed them with your independent legal
counsel, or have had a reasonable opportunity to do so; (e) have had answered to
your satisfaction by your independent legal counsel any questions you have asked
with regard to the meaning and significance of any of the provisions of this
Agreement; and (f) are signing this Agreement voluntarily and of your own free
will and agree to abide by all the terms and conditions contained herein.
15. You understand that you will have forty-five (45) days from the date
of receipt of this Agreement to consider the terms and conditions of this
Agreement. You may accept this Agreement by signing it and returning it to
Xxxxxxxx Xxxxxxx, Vice President of Human Resources, Xxx Xxxxxx Xxxxx, Xxxx Xxx,
Xxx Xxxxxx 00000 (or by fax at 000-000-0000 to be followed by mail) by no later
than the 21st day after receiving it and no earlier than your termination date.
This Agreement will not be accepted by the Company if signed before your
termination date. After signing this Agreement,
Xxxxx X. Xxxxxxxx September 11, 2002
you shall have seven (7) days (the "Revocation Period") to revoke this Agreement
by indicating your desire to do so in writing delivered to Xxxxxxxx Xxxxxxx at
the address above or by fax at 000-000-0000 by the close of business on the
seventh (7th) day after the date you sign this Agreement. The effective date of
this Agreement shall be the eighth (8th) day after you sign the Agreement (the
"Effective Date"). If the last day of the Revocation Period falls on a Saturday,
Sunday or holiday, the last day of the Revocation Period will be deemed to be
the next business day. In the event you do not accept this Agreement as set
forth above, or in the event you revoke this Agreement during the Revocation
Period, this Agreement, including but not limited to the obligation of the
Company to provide the payment referred to in paragraph 2 above, shall be deemed
automatically null and void.
Name: Xxxxx X. Xxxxxxxx
Signature: /s/ Xxxxx X. Xxxxxxxx Date:
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Xxxxx X. Xxxxxxxx
STATE OF )
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) ss.:
COUNTY OF )
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On this __ day of ________ 2002, before me personally came _______________ to be
known and known to me to be the person described and who executed the foregoing
Agreement, and (s)he duly acknowledged to me that (s)he executed the same.
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Notary Public
THE COMPANY
By: /s/ Xxxxxxxx Xxxxxxx Date:
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Xxxxxxxx Xxxxxxx
Vice President Human Resources
Xxxxx X. Xxxxxxxx September 11, 2002
