Exhibit 99.01
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (the "Agreement") is dated as of
September 1, 2004, by and between, Del Global Technologies Corp., a New York
corporation (the "Company"), and Xxxxxx X. Xxxxxx ("Xxxxxx").
WHEREAS, on or about August 23, 2004, Xxxxxx tendered his voluntary
resignation to the Company.
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'x 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 August 31, 2004, Xxxxxx'x employment by the
Company shall cease. As severance, Xxxxxx will receive a payment of one hundred
and forty-thousand dollars ($140,000) which payment shall be made as follows:
(i) fifty-thousand dollars ($50,000) within five (5) business days of Xxxxxx'x
execution and delivery of an executed Agreement to the Company, and (ii)
ninety-thousand dollars ($90,000) within sixty (60) days of Xxxxxx'x execution
and delivery of an executed Agreement to the Company. Such payments shall be
made net of applicable state and federal withholding and other taxes customarily
withheld by the Company. Xxxxxx further 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.
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
2
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'x 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.
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,
2
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, 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. Such cooperation shall include, without
limitation, assisting the Company in the year-end audit process and the
preparation of its Annual Report on Form 10-K for the fiscal year ended July 31,
2004.
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. 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'x
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.
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.
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
3
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'x 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'x 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 September 22, 2004, to sign
and return this Agreement to the Company.
4
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
--------------------------------
Xxxxxx X. Xxxxxxxxx, Chief Executive Officer
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
