EXHIBIT 10.37
[XXXXXXXX.XXX LOGO]
November 16, 2001
Xxxxxxx X. Xxxxx
000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Separation from Xxxxxxxx.Xxx, Inc.
Dear Rich:
In accordance with our recent discussions, the following shall
constitute our agreement ("Agreement") regarding your
termination of employment from Xxxxxxxx.Xxx, Inc., effective
November 23, 2001 (the "Effective Date").
For good and valuable consideration, the sufficiency of which
is hereby acknowledged, Xxxxxxx X. Xxxxx ("Employee") and
Xxxxxxxx.Xxx, Inc. ("Xxxxxxxx.Xxx") (Employee and Xxxxxxxx.Xxx
are sometimes hereinafter referred to collectively as the
"Parties") agree as follows:
TERMINATION OF EMPLOYMENT. The Parties acknowledge that
Employee's employment with Xxxxxxxx.Xxx terminates as of
November 23, 2001. The Parties further agree that after
such date Employee will have no further right to
employment with Xxxxxxxx.Xxx and shall not be entitled to
receive from Xxxxxxxx.Xxx any further compensation,
benefits, or other form of remuneration except as
provided herein.
SEVERANCE BENEFITS. Provided that Employee satisfies the
conditions of this Agreement and does not revoke this
Agreement, Xxxxxxxx.Xxx will, in consideration of the
promises, covenants and warranties contained herein:
Separation Payments. On the eighth day after Employee
signs and returns this Agreement, commence payments
to Employee at a pay rate equal to Employee's annual
base salary on the Effective Date divided by 12, plus
total bonuses earned by Employee in 2001 under the
executive bonus plan divided by 10.77 for a period of
Twelve (12.0) months (the "Separation Pay Period") as
per your Employment Agreement. Such severance shall
be paid in accordance with Xxxxxxxx.Xxx's regular
payroll practices of two times per month. The total
amount paid will be $308,807.52, which payment shall
be subject to all state and federal withholdings as
may be required by law;
Paid Time Off. Pay Employee $15,769.60 as payment for
his accrued paid time off as of the Effective Date.
Such payment shall be paid on the first scheduled pay
period of the Separation Pay Period;
Quarterly Bonus Payment. Pay Employee his prorated
quarterly bonus for the fourth quarter of 2001 and
special merger and acquisition bonus. Such payment
will be made on November 16, 2001; and
Medical Coverage. Continue Employee's health
insurance coverage for a period of 12.0 months.
Coverage will be provided to Employee and Employee's
eligible dependents at the same cost such coverage is
offered to Xxxxxxxx.Xxx's employees. At the end of
the Separation Pay Period, employee benefits under
the group plan will be terminated and employee will
be notified of his COBRA conversion options. The type
of health insurance is subject to change with or
without notice, but will be consistent with the
coverage offered to Xxxxxxxx.Xxx's employees.
Employee represents and warrants that inasmuch as the severance benefit to
Employee as described herein is conditioned upon Employee's compliance with his
promises, waivers and releases contained in this Agreement, if Employee breaches
any of the provisions of this Agreement, Xxxxxxxx.Xxx shall be entitled to
recover from Employee, as damages, all amounts paid pursuant to this Agreement
in addition to all other available damages and remedies, including, but not
limited to, the recovery of reasonable attorneys' fees, unless prohibited by
applicable law.
RELEASE OF XXXXXXXX.XXX BY EMPLOYEE. For and in consideration of the promises,
covenants and warranties contained herein, and other good and valuable
consideration the sufficiency of which is acknowledged, on behalf of himself,
his heirs, executors, administrators, successors and assigns, Employee does
hereby release, remise, acquit and forever discharge Xxxxxxxx.Xxx and each and
all of Xxxxxxxx.Xxx's subsidiaries, affiliates, respective past and present
officers, directors, agents, servants, employees, and attorneys, from any and
all rights, demands, claims, damages, losses, costs, expenses, actions, and
causes of action whatsoever, whether in tort or in contract, at law or equity,
known or unknown, contingent or fixed, suspected or unsuspected, foreseen or
unforeseen, arising out of, asserted in, assertable in, or any way related to
Employee's employment at Xxxxxxxx.Xxx, termination therefrom, and/or Employee's
layoff, or any other matter occurring or existing at any time from the beginning
of time through the date of the execution of this Agreement. The rights,
demands, claims, damages, losses, costs, expenses, actions and causes of action
which Employee waives and releases in this Agreement include, to every extent
allowed by law, but is not limited to, those arising under any commission or
compensation agreements between Employee and Xxxxxxxx.Xxx, the Age
Discrimination in
Employment Act of 1967, as amended, the Older Workers Benefit Protection Act,
the Georgia Prohibition of Age Discrimination in Employment, the Worker
Adjustment and Retraining Notification Act, the Employee Retirement Income
Security Act of 1974, the Civil Rights Acts of 1866, 1871, 1964 and 1991, the
Rehabilitation Act of 1973, the Equal Pay Act of 1963, the Vietnam Era Veteran's
Readjustment Assistance Act of 1974, as amended, the Immigration Reform and
Control Act of 1986, the Americans with Disabilities Act, the Fair Labor
Standards Act of 1938, the Family and Medical Leave Act, and/or any other
federal or state statute, law or regulation.
WAIVER UNDER ADEA AND OWBPA. Employee acknowledges and agrees that in regard to
his release and waiver of claims under the Age Discrimination in Employment Act
("ADEA") and the Older Workers' Benefit Protection Act ("OWBPA") (29 U.S.C.
xx.xx. 621 et seq.), and the Georgia Prohibition of Age Discrimination in
Employment (O.C.G.A. ss. 34-1-2), as discussed in Paragraph 3 herein, that he
was informed that he does not waive age rights or claims that may arise after
the date this Agreement is executed, that he has been advised to consult with an
attorney prior to executing this Agreement, and that he has been informed that
he has forty-five (45) days after receiving this Agreement within which to
consider this Agreement. If Employee signs before the end of such 45-day period,
he acknowledges that his decision to do so was knowing, voluntary, and not
induced by fraud, misrepresentation, or a threat to withdraw, alter, or provide
different terms prior to the expiration of the 45-day period. This Agreement
shall not be effective for a period of seven (7) days following the execution of
this Agreement, and during such seven (7) days, Employee may revoke this
Agreement. Employee further understands and acknowledges that if he revokes,
this Agreement shall not be effective or enforceable, and he will lose all
benefits under this Agreement, including payment of the Severance Benefits
described in Paragraph 2 above. Employee understands and agrees that this
Agreement is written in a manner he understands and that he waives rights and
claims he may have under the OWBPA and ADEA, but only in exchange for payments
and/or benefits in addition to anything of value to which Employee is already
entitled.
This waiver is requested in connection with an employment termination program
(the "Program".) Xxxxxxxx.Xxx offered the Program to a group or class of
employees. Xxxxxxxx.Xxx informed Employee (in the attached Exhibit A), in a
manner Employee understands of:
Any class, unit or group of individuals covered by the Program;
Any eligibility factors for this Program;
Any time limits applicable to this
Program;
The job titles and ages of all individuals eligible to be selected for
the Program; and
The ages of all individuals in the same job classification or organizational
unit who are not eligible or selected for the Program.
EXERCISE OF STOCK OPTIONS. Pursuant to Xxxxxxxx.Xxx's Stock Option Agreement,
Employee's option(s) to acquire shares of Xxxxxxxx.Xxx's common stock (the
"Options") granted to
Employee pursuant to a Stock Option Grant or Stock Incentive Agreement, as the
case may be (in either case, the "Option Agreement"), incorporated herein by
reference, that have vested as of the Effective Date shall be exercisable for
eighteen (18) months after the consummation of Xxxxxxxx.Xxx's proposed merger
with a wholly-owned subsidiary of Verso Technologies, Inc. (the "Merger"),
subject to the Affiliate Agreement. In addition, consistent with the terms of
the Option Agreement, as governed by the applicable Xxxxxxxx.Xxx stock incentive
plan, Employee's unvested Options will vest upon the consummation of the Merger.
However, Employee hereby acknowledges and affirms that, consistent with the
terms of the Merger, any of Employee's unvested Options that are not
"in-the-money" at the effective time of the Merger will be cancelled. Except as
provided in this, paragraph, the Options will continue to be governed by the
Option Agreement.
COOPERATION. Employee agrees to cooperate with Xxxxxxxx.Xxx in any pending or
future matters, including, but not limited to, the Merger and any litigation,
investigation or other dispute in which Employee has knowledge or information.
Employee agrees to execute an Affiliate Agreement if so requested by
Xxxxxxxx.Xxx in connection with the Merger, and do all such acts to facilitate
the consummation of the Merger as Xxxxxxxx.Xxx may reasonably request. In
connection with any investigation, lawsuit or dispute in which Employee has
knowledge or information, if Employee has any contact with any party known by
Employee to be adverse to Xxxxxxxx.Xxx in such investigation, lawsuit or
dispute, Employee agrees to immediately notify Xxxxxxxx.Xxx's Chairman first by
telephone and as soon as possible thereafter in writing. If Employee has any
contact with any party not known by Employee at the time of such contact to be
adverse to Xxxxxxxx.Xxx in any investigation, lawsuit or dispute, Xxxxxxxx
agrees to notify Xxxxxxxx.Xxx's Chairman, first by telephone and as soon as
possible thereafter in writing, immediately upon Employee becoming aware that
such party is adverse to Xxxxxxxx.Xxx. Xxxxxxxx.Xxx will pay Employee a
reasonable fee for any time and expense incurred to comply with this provision.
CONFIDENTIALITY. Employee hereby represents, warrants and agrees that he will
hereinafter keep completely confidential any information concerning the terms,
amount and fact of this Agreement, and will not hereinafter disclose any such
information to anyone except his attorneys, immediate family, and tax
preparation advisors, and that he will cause each such person not to disclose
such information to any other person. Employee also agrees not to make
disparaging, defamatory, or derogatory statements or allegations, whether verbal
or written (including, but not limited to, statements made anonymously or under
fictitious user names on Internet message boards), concerning Xxxxxxxxx.Xxx.
CORPORATE CREDIT CARD. Employee agrees to return his corporate credit card to
Xx. Xxxx Xxxxxxxx on or before Friday, November 30, 2001. Employee acknowledges
and agrees that he remains liable for all charges placed on the corporate credit
card, prior to its return, and which are not reimbursable by Xxxxxxxx.Xxx
pursuant to its reimbursement policies. If, on the Effective Date, Employee has
any outstanding obligations to the credit card company or to Xxxxxxxx.Xxx for
charges incurred on the credit card, Employee acknowledges that Xxxxxxxx.Xxx is
authorized to deduct from the Severance Benefits due to Employee under Paragraph
2 above (1) any amounts owed to the credit card company for non-reimbursable
charges, (2) any amounts owed
to the credit card company for authorized business charges for which
Xxxxxxxx.Xxx has reimbursed Employee, and (3) any amounts otherwise owed to
Xxxxxxxx.Xxx.
XXXXXXXX.XXX'S PROPERTY. Simultaneously with the execution of this Agreement,
Employee agrees to return all property in his possession, custody or control
belonging to Xxxxxxxx.Xxx, including, but not limited to, all documents, data,
records, notes, memoranda, drawings, manuals, computer programs, compilations
and all other tangible information and material in whatever form, which belongs
to or pertains to Xxxxxxxx.Xxx, or which constitute or pertain to its trade
secrets, confidential information, product services, employees, distributors,
dealers, agents, contractors or customers.
GOVERNING LAW. This Agreement shall be deemed to have been executed in the State
of Georgia, and all matters pertaining to the validity, construction,
interpretation, and effect of this Agreement shall be governed by the laws of
the State of Georgia.
FINAL AGREEMENT -- NO ORAL MODIFICATION. This Agreement and the Employment
Agreement executed by Employee on March 2, 2001 (the "Prior Agreement")
(collectively, the "Agreements") constitute the entire agreement between
Employee and Xxxxxxxx.Xxx. The Prior Agreement is incorporated by reference, and
any post-termination obligations contained in the Prior Agreement shall remain
in full force and effect, and shall survive cessation of Employee's employment.
Employee acknowledges that the post-termination obligations contained in the
Prior Agreement are valid, enforceable and reasonably necessary to protect the
interests of Xxxxxxxx.Xxx, and Employee agrees to abide by such obligations.
These Agreements supersede any prior communications, agreements or
understandings, whether oral or written, between Employee and Xxxxxxxx.Xxx
arising out of or relating to Employee's employment and the termination of that
employment. Other than this Agreement, no other representation, promise or
agreement has been made with Employee to cause him to sign this Agreement. This
Agreement shall not be amended, altered, revised, modified, terminated or
changed except by further written agreement signed by all Parties.
SUCCESSORS AND ASSIGNS. The terms and covenants set forth herein shall be
binding upon and inure to the benefit of the Parties subsidiaries, affiliates,
parent corporations, officers, directors, agents, servants, employees,
attorneys, successors, assigns, heirs, and representatives, as applicable.
ENFORCEABILITY OF AGREEMENT. This Agreement is intended to be performed in
accordance with and only to the extent permitted by all applicable laws,
ordinances, rules or regulations. If any provision of this Agreement or the
application thereof to any person, entity or circumstance shall, for any reason
and to any extent, be invalid or unenforceable, the remainder of this Agreement
and the application of such provision to other persons or circumstances should
not be effected thereby, but rather shall be enforced to the greatest extent
permitted by law.
HEADINGS. The headings that have been used to designate the various sections of
this Agreement are solely for the convenience in reading and ease of reference
and shall not be construed in any event or manner as interpretative of this
Agreement.
COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which when taken together shall
constitute one and the same Agreement.
NO ADMISSION OF LIABILITY. This Agreement is in compromise and settlement and is
not to be used or construed in any court or administrative proceeding of any
nature or in any subsequent actions by or between the parties hereto as an
admission, direct or indirect, of liability or wrongdoing whatsoever. The
Parties specifically deny any such liability or wrongdoing each to the other.
VALIDITY AND ENFORCEMENT. This Agreement is intended to be performed in
accordance with and only to the extent permitted by all applicable laws,
ordinances, rules and regulations. If any provision of this Agreement or the
application thereof to any person, entity or circumstance shall, for any reason,
to any extent, be invalid or unenforceable, the remainder of this Agreement and
the application of such provision to the other persons, entities or
circumstances shall not be effected thereby but rather should be enforced to the
greatest extent permitted by law.
AMBIGUITIES. This Agreement was drafted with the full participation of both
Parties. Accordingly, if there is an ambiguity in this agreement, it should not
be resolved against any particular party, but rather should be resolved by a
fair reading of what the Agreement was intended to provide.
VOLUNTARY ASSENT. In the negotiation, drafting, and execution of this Agreement,
the Parties have been represented by, and/or had the right and access to,
independent legal counsel of their choice, and each party does hereby affirm
that he has read and understands the terms of this Agreement, and executes the
same as his own free and voluntary act.
ACCESS TO INDEPENDENT COUNSEL. THE PARTIES ACKNOWLEDGE THAT THEY HAVE BEEN
REPRESENTED BY, OR HAD ACCESS TO, INDEPENDENT LEGAL COUNSEL OF HIS OWN CHOOSING
IN CONNECTION
WITH ITS/HIS ENTERING INTO THIS AGREEMENT, AND EACH PARTY HEREBY ACKNOWLEDGES
THAT HE OR IT FULLY UNDERSTANDS THE TERMS AND CONDITIONS OF THIS AGREEMENT AND
AGREES TO BE FULLY BOUND BY AND SUBJECT THERETO.
If the terms set forth in this Agreement are acceptable, please sign below and
deliver two (2) executed copies of this Agreement to me, and I will return to
you an executed version for your records.
Sincerely,
XXXXXXXX.XXX, INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx
Its: Chairman
Read, acknowledged, agreed to and accepted by:
Employee: /s/ Xxxxxxx X. Xxxxx
----------------------------
Date: 11-16-01
