EXHIBIT 10.34
SEPARATION AND RELEASE AGREEMENT
THIS SEPARATION and RELEASE AGREEMENT ("Agreement") is entered into by and
between R. Xxxxxx Xxxxxx ("Employee") and Hill-Rom, Inc. ("Company"). To wit,
the Parties agree as follows:
1. Employee's active employment by the Company shall terminate effective July
31, 2005 (Employee's "Effective Termination Date"). Except as specifically
provided by this Agreement, Employee agrees that the Company shall have no
other obligations or liabilities to him following his Effective Termination
Date and that his receipt of the Severance Benefits provided herein shall
constitute a complete settlement, satisfaction and waiver of any and all
claims he may have against the Company.
2. Employee further submits, and the Company hereby accepts, his resignation
as an employee, officer and director, as of his Effective Termination Date
for any position he may hold. The Parties agree that this resignation shall
apply to all such positions Employee may hold with the Company or any
subsidiary or affiliated entity thereof. Employee agrees to execute any
documents needed to effectuate such resignation. Employee further agrees to
take whatever steps are necessary to facilitate and ensure the smooth
transition of his duties and responsibilities to others.
3. Employee acknowledges that he has been advised of the American Jobs
Creation Act of 2004, which added Section 409A to the Internal Revenue
Code, and significantly changed the taxation of nonqualified deferred
compensation plans for certain executives. Under regulations not yet
published as of the date of this Agreement, Employee has been advised that
his severance pay may be treated by the Internal Revenue Service as
providing "nonqualified deferred compensation," and therefore subject to
Section 409A. In that event, several provisions in Section 409A may affect
Employee's receipt of severance compensation. These include, but are not
limited to, a provision which requires that distributions to "key
employees" at public companies on account of separation from service may
not be made earlier than six (6) months after the date of separation. If
applicable, failure to comply with Section 409A can lead to immediate
taxation of deferrals, with interest and a 20% penalty. As a result of the
requirements imposed by the American Jobs Creation Act of 2004, Employee
agrees that the lump sum severance pay benefits shall not be paid until six
(6) months following his Effective Termination Date. Employee acknowledges
that the Company has made no representation as to whether any of the
Severance Pay Benefits provided for in this Agreement may be deemed to have
been deferred prior to January 1, 2005, by virtue of any obligation by the
Company to provide certain Severance Pay Benefits to Employee pursuant to
the Parties' executed Employment Agreement.
4. In consideration of the promises contained in this Agreement and contingent
upon Employee's compliance with such promises, the Company agrees to
provide Employee the following:
(i) Severance Pay, inclusive of any contractual, notice or statutory pay
obligations, to be paid in a lump sum payment in the gross amount of
Four Hundred Fifteen Thousand Six Hundred Thirty-six Dollars and
Fifty-two Cents ($415,636.52), less applicable deductions or other
set-offs, based on a biweekly rate of Fifteen Thousand Nine Hundred
Eighty-six Dollars and Two Cents ($15,986.02) for a period of
fifty-two (52) weeks (the "Severance Period");
(ii) Payment for any earned but unused vacation as of Employee's Effective
Termination Date, less applicable deductions required by law; and
(iii) Company-provided Group Life insurance coverage for the total duration
of Employee's Severance Period (e.g. 12 months) or until Employee
obtains other employment.
5. The Parties agree that a portion of the lump sum payment in an amount
equivalent to four (4) weeks' pay shall be allocated as consideration
provided to Employee in exchange for his execution of a release in
compliance with the Older Workers Benefit Protection Act. The balance of
the severance benefits and other obligations undertaken by the Company
pursuant to this Agreement shall be allocated as consideration for all
other promises and obligations undertaken by Employee, including execution
of a general release of claims.
6. The Company further agrees to provide Employee with limited out-placement
counseling with a company of its choice provided that Employee participates
in such counseling immediately following termination of employment.
7. As of his Effective Termination Date, Employee will become ineligible to
participate in the Company's health insurance program and continuation of
coverage requirements under COBRA (if any) will be triggered at that time.
However, as additional consideration for the promises and obligations
contained herein, and provided Employee has elected such coverage prior to
his Effective Termination Date, the Company agrees to continue to pay the
employer's share of such coverage as provided under the health care
program(s) subject to any approved changes in coverage based on a qualified
election, for the duration of the above-referenced Severance Period or
until Employee becomes eligible for other coverage through a subsequent
employer provided Employee (i) timely completes the applicable election of
coverage forms and (ii) continues to pay an amount equivalent to the
employee portion of the applicable premium(s). Thereafter, if applicable,
coverage will be made available to Employee at his sole expense (i.e.,
Employee will be responsible for the full COBRA premium) for any remaining
months of the COBRA coverage period made available pursuant to applicable
law or (if Employee is eligible) any Extended Healthcare Benefits made
available through the Plan. The medical insurance provided herein does not
include any disability coverage.
8. Employee agrees to fully indemnify and hold the Company harmless for any
taxes, penalties, interest, cost or attorneys' fee assessed against or
incurred by the Company on account of such benefits having been provided to
him or based on any alleged failure to withhold taxes or satisfy any
claimed obligation. Employee understands and acknowledges that neither the
Company, nor any of its employees, attorneys, or other representatives has
provided him with any legal or financial advice concerning taxes or any
other matter, and that he has not relied on any such advice in deciding
whether to enter into this Agreement. To the extent applicable, Employee
understands and agrees that he shall have the responsibility for, and he
agrees to pay, any and all appropriate income tax or other tax obligations
for which he is individually responsible and/or related to receipt of any
benefits provided in this Agreement not subject to federal withholding
obligations.
9. Employee agrees to notify the Company in writing within five (5) business
days of Employee's acceptance of any subsequent employment or third-party
consulting engagement by providing the name of such employer, his intended
duties as well as the anticipated start date. Such information is required
to ensure Employee's compliance with his restrictive covenant obligations.
This notice will also serve to trigger the Company's right to terminate the
above-referenced severance benefits (to the extent applicable) as well as
the Company-paid COBRA benefits consistent with
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the above paragraphs. Failure to timely provide such notice shall be deemed
a material breach of this Agreement entitling the Company to recover as
damages the value of all benefits provided to Employee hereunder.
10. In exchange for the foregoing Severance Benefits, R. XXXXXX XXXXXX on
behalf of himself, his heirs, representatives, agents and assigns hereby
RELEASES, INDEMNIFIES, HOLDS HARMLESS, and FOREVER DISCHARGES (i) Hill-Rom,
Inc. (ii) its parent, subsidiary or affiliated entities, (iii) all of their
present or former directors, officers, employees, shareholders, and agents
as well as (iv) all predecessors, successors and assigns thereof from any
and all actions, charges, claims, demands, damages or liabilities of any
kind or character whatsoever, known or unknown, which Employee now has or
may have had through the effective date of this Agreement.
11. Without limiting the generality of the foregoing release, it shall include:
(i) all claims or potential claims arising under any federal, state or
local laws relating to the Parties' employment relationship, including any
claims Employee may have under the Civil Rights Acts of 1866, 1964, and
1991, as amended, 42 U.S.C. Sections 1981 and 2000(e) et seq.; the Age
Discrimination in Employment Act, as amended, 29 U.S.C. Sections 621 et
seq.; the Americans with Disabilities Act of 1990, as amended, 42 U.S.C.
Sections 12,101 et seq.; the Fair Labor Standards Act 29 U.S.C. Sections
201 et seq.; the Worker Adjustment and Retraining Notification Act, 29
U.S.C. Sections 2101, et seq.; the Xxxxxxxx-Xxxxx Act of 2002, specifically
including the Corporate and Criminal Fraud Accountability Act, 18 USC
Section 1514A et seq.; and any other federal, state or local law governing
the Parties' employment relationship; (ii) any claims on account of,
arising out of or in any way connected with Employee's employment with the
Company or leaving of that employment; (iii) any claims alleged or which
could have been alleged in any charge or complaint against the Company;
(iv) any claims relating to the conduct of any employee, officer, director,
agent or other representative of the Company; (v) any claims of
discrimination, harassment or retaliation on any basis; (vi) any claims
arising from any legal restrictions on an employer's right to separate its
employees; (vii) any claims for personal injury, compensatory or punitive
damages or other forms of relief; and (viii) all other causes of action
sounding in contract, tort or other common law basis, including (a) the
breach of any alleged oral or written contract, (b) negligent or
intentional misrepresentations, (c) wrongful discharge, (d) just cause
dismissal, (e) defamation, (f) interference with contract or business
relationship or (g) negligent or intentional infliction of emotional
distress.
12. Employee further agrees and covenants that he will not bring suit against
the Company or any entity or individual subject to the foregoing General
Release with respect to any claims, demands, liabilities or obligations
released by this Agreement provided, however, that nothing contained in
this Agreement shall prevent Employee from bringing an action under the Age
Discrimination in Employment Act (or any similar law) challenging the
knowing or voluntary nature of this Agreement.
13. The Parties acknowledge that it is their mutual and specific intent that
the above waiver fully comply with the requirements of the Older Workers
Benefit Protection Act (29 U.S.C. Section 626) and any similar law
governing release of claims. Accordingly, Employee hereby acknowledges
that:
(a) He has carefully read and fully understands all of the provisions of
this Agreement and that he has entered into this Agreement knowingly
and voluntarily;
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(b) The Severance Benefits offered in exchange for Employee's release of
claims exceed in kind and scope that to which he would have otherwise
been legally entitled absent execution of this Agreement;
(c) Prior to signing this Agreement, Employee had been advised, and is
being advised by this Agreement, to consult with an attorney of his
choice concerning its terms and conditions; and
(d) He has been offered at least forty-five (45) days within which to
review and consider this Agreement.
14. The Parties agree that nothing contained herein shall purport to waive or
otherwise affect any of Employee's rights or claims that may arise after he
signs this Agreement. It is further understood by the Parties that nothing
in this Agreement shall affect any rights Employee may have under any the
Company's Deferred Compensation Program, any Executive Life Insurance Bonus
Plan, any Stock Grant Award, any Stock Option Grant, any Restricted Stock
Unit Award, the Company's Pension Plan and/or Savings Plan (i.e., 401(k)
plan) provided by the Company as of the date of his termination, such items
to be governed exclusively by the terms of the applicable agreements or
plan documents.
15. Similarly, notwithstanding any provision contained herein to the contrary,
this Agreement shall not constitute a waiver or release or otherwise affect
Employee's rights with respect to any vested benefits, any rights he has to
benefits which can not be waived by law, any coverage provided under any
Directors and Officers ("D&O") policy, any rights Employee may have under
any indemnification agreement he has with the Company prior to the date
hereof, any rights he has as a shareholder, or any claim for breach of this
Agreement, including, but not limited to the benefits promised by the terms
of this Agreement.
16. Except as provided herein, Employee acknowledges that he will not be
eligible to receive or vest in any additional stock options, stock awards
or restricted stock units ("RSUs") as of his Effective Termination Date.
Failure to exercise any vested options within the applicable period (e.g.
thirty (30) days post termination) will result in their forfeiture.
Employee acknowledges that any stock options, stock awards or RSUs held for
less than one (1) year shall be deemed forfeited as of the effective date
of this Agreement. Except as specifically provided herein, all other terms
and conditions of such stock options, stock awards or RSUs shall remain in
full force and effect, and shall govern the Parties' rights with respect to
such equity offerings.
17. The Parties agree that this Agreement shall not become effective and
enforceable until the date this Agreement is signed by both Parties or
seven (7) calendar days after its execution by Employee, whichever is
later. Employee may revoke this Agreement for any reason by providing
written notice of such intent to the Company within seven (7) days after he
has signed this Agreement, thereby forfeiting Employee's right to receive
any Severance Benefits provided hereunder not otherwise required by law and
rendering this Agreement null and void in its entirety.
18. Employee represents and agrees that he has been provided relevant cohort
information based on the information available to the Company as of the
date this Agreement was tendered to Employee. This information is attached
hereto as Exhibit A. The Parties acknowledge that simply providing such
information does not mean and should not be interpreted to mean that the
Company was obligated to comply with 29 C.F.R. Section 1625.22(f).
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19. Except as modified herein, Employee hereby affirms and acknowledges his
continued obligations to comply with the post-termination covenants
contained in his Employment Agreement, including but not limited to, the
non-compete, trade secret and confidentiality provisions. Employee
acknowledges that a copy of the Employment Agreement has been attached to
this Agreement as Exhibit B or has otherwise been provided to him and, to
the extent not inconsistent with the terms of this Agreement or applicable
law, the terms thereof shall be incorporated herein by reference. The
Parties agree that Employee's non-compete period shall be reduced from
twenty-four (24) months to fifteen (15) months from his Effective Date of
Termination. The Parties further agree that nothing contained therein is
intended to prohibit Employee's ownership, employment or other involvement
with a company in which the competing products or services represent less
than 15% of the company's total revenues provided Employee (i) provides
advance notice of his intention to join such company, (ii) agrees in
writing that any duties performed on behalf of such Company will not
involve or relate in any way to such competing products or services, (iii)
any concerns raised by the Company have been adequately addressed and (iv)
such employment or relationship does not otherwise pose a risk to the
Company's legitimate business interests. Employee acknowledges that the
restrictions contained in the Employment Agreement, as amended, are valid
and reasonable in every respect and are necessary to protect the Company's
legitimate business interests. Employee hereby affirmatively waives any
claim or defense to the contrary.
20. Employee acknowledges that the Company as well as its parent, subsidiary
and affiliated companies ("Companies" herein) possess, and he has been
granted access to, certain trade secrets as well as other confidential and
proprietary information which they have acquired at great effort and
expense. Such information may include, without limitation, confidential
information regarding products and services, marketing strategies, business
plans, operations, costs, current or prospective customer information
(including customer contacts, requirements, creditworthiness and like
matters), product concepts, designs, prototypes or specifications,
regulatory compliance issues, research and development efforts, technical
data and know-how, sales information, including pricing and other terms and
conditions of sale, financial information, internal procedures, techniques,
forecasts, methods, trade information, trade secrets, software programs,
project requirements, inventions, trademarks, trade names, and similar
information regarding the Companies' business (collectively referred to
herein as "Confidential Information").
21. Employee agrees that all such Confidential Information is and shall remain
the sole and exclusive property of the Companies. Except as may be
expressly authorized by the Company in writing, or as may be required by
law after providing due notice thereof to the Company, Employee agrees not
to disclose, or cause any other person or entity to disclose, any
Confidential Information to any third party for as long thereafter as such
information remains confidential (or as limited by applicable law) and
agrees not to make use of any such Confidential Information for Employee's
own purposes or for the benefit of any other entity or person. The Parties
acknowledge that Confidential Information shall not include any information
that is otherwise made public through no fault of Employee or other wrong
doing.
22. On or before Employee's Effective Termination Date or upon the Company's
request, Employee agrees to immediately return the original and all copies
of all things in his possession or control relating to the Company or its
business, including but not limited to any and all contracts, reports,
memoranda, correspondence, manuals, forms, records, designs, budgets,
contact information or lists (including customer, vendor or supplier
lists), ledger sheets or other financial information, drawings, plans
(including, but not limited to, business, marketing and strategic plans),
personnel or other business files, computer hardware, software, or access
codes, door and file keys (including key fobs), identification, credit
cards, pager, phone, and any and all other physical,
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intellectual, or personal property of any nature that he received,
prepared, helped prepare, or directed preparation of in connection with his
employment with the Company. Nothing contained herein shall be construed to
require the return of any non-confidential and de minimis items regarding
Employee's pay, benefits or other rights of employment such as pay stubs,
W-2 forms, 401(k) plan summaries, benefit statements, etc.
23. Notwithstanding the foregoing, the Company agrees that Employee may retain
his company-provided cell phone, laptop computer, associated docking
station and any individually provided printer provided all company-related
programs and information have been permanently removed and imaged to
another electronic storage medium by a designated representative of the
Company's Information Technology group. Additionally, the Company agrees to
continue to provide/pay for cellular service for Employee's
Company-provided cell phone for sixty (60) days following Employee's
Effective Termination Date following which such coverage shall be cancelled
without further notice. Employee shall be permitted to transfer his cell
number to another personal account or provider.
24. Employee hereby consents and authorizes the Company to deduct as an offset
from the above-referenced severance payments the value of any Company
property not returned or returned in a damaged condition as well as any
monies paid by the Company on Employee's behalf (e.g., payment of any
outstanding American Express xxxx).
25. Employee agrees to cooperate with the Company in connection with any
pending or future litigation, proceeding or other matter which has been or
may be brought against or by the Company with any agency, court, or other
tribunal and concerning or relating in any way to any matter falling within
Employee's knowledge or former area of responsibility. Employee agrees to
provide reasonable assistance and completely truthful testimony in such
matters including, without limitation, facilitating and assisting in the
preparation of any underlying defense, responding to discovery requests,
preparing for and attending deposition(s) as well as appearing in court to
provide truthful testimony. The Company agrees to reimburse Employee for
all reasonable out of pocket expenses incurred at the request of the
Company associated with such assistance and testimony.
26. Employee agrees not to make any written or oral statement that may defame,
disparage or cast in a negative light so as to do harm to the personal or
professional reputation of (a) the Company, (b) its employees, officers,
directors or trustees or (c) the services and/or products provided by the
Company and its subsidiaries or affiliate entities. Similarly, in response
to any written inquiry from any prospective employer or in connection with
a written inquiry in connection with any future business relationship
involving Employee, the Company agrees not to provide any information that
may defame, disparage or cast in a negative light so as to do harm to the
personal or professional reputation of Employee. The Parties acknowledge,
however, that nothing contained herein shall be construed to prevent or
prohibit the Company from providing truthful information in response to any
court order, discovery request, subpoena or other lawful request.
27. EMPLOYEE SPECIFICALLY AGREES AND UNDERSTANDS THAT THE EXISTENCE AND TERMS
OF THIS AGREEMENT ARE STRICTLY CONFIDENTIAL AND THAT SUCH CONFIDENTIALITY
IS A MATERIAL TERM OF THIS AGREEMENT. Accordingly, except as required by
law or unless authorized to do so by the Company in writing, Employee
agrees that he shall not communicate, display or otherwise reveal any of
the contents of this Agreement to anyone other than his spouse, legal
counsel or financial advisor provided, however, that they are first advised
of the confidential nature of this Agreement and Employee obtains their
agreement to be bound by the same. The Company agrees that Employee may
respond to
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legitimate inquiries regarding the termination of his employment by stating
that the Parties have terminated their relationship on an amicable basis
and that the Parties have entered into a Confidential Separation and
Release Agreement which prohibits him from further discussing the specifics
of his separation. Nothing contained herein shall be construed to prevent
Employee from discussing or otherwise advising subsequent employers of the
existence of any obligations as set forth in his Employment Agreement.
Further, nothing contained herein shall be construed to limit or otherwise
restrict the Company's ability to disclose the terms and conditions of this
Agreement as may be required by law or business necessity.
28. In the event that Employee breaches or threatens to breach any provision of
this Agreement, he agrees that the Company shall be entitled to seek any
and all equitable and legal relief provided by law, specifically including
immediate and permanent injunctive relief. Employee hereby waives any claim
that the Company has an adequate remedy at law. In addition, and to the
extent not prohibited by law, Employee agrees that the Company shall be
entitled to discontinue providing any additional Severance Benefits upon
such breach or threatened breach as well as an award of all costs and
attorneys' fees incurred by the Company in any successful effort to enforce
the terms of this Agreement. Employee agrees that the foregoing relief
shall not be construed to limit or otherwise restrict the Company's ability
to pursue any other remedy provided by law, including the recovery of any
actual, compensatory or punitive damages. Moreover, if Employee pursues any
claims against the Company or others subject to the foregoing General
Release or Covenant Not to Xxx, or breaches the above confidentiality
provision, Employee agrees to immediately reimburse the Company for the
value of all benefits received under this Agreement to the fullest extent
permitted by law.
29. Employee acknowledges that this Agreement is entered into solely for the
purpose of terminating his employment relationship with the Company on an
amicable basis and shall not be construed as an admission of liability or
wrongdoing by the Company and further acknowledges that the Company has
expressly denied any such liability or wrongdoing.
30. Each of the promises and obligations shall be binding upon and shall inure
to the benefit of the heirs, executors, administrators, assigns and
successors in interest of each of the Parties.
31. The Parties agree that each and every paragraph, sentence, clause, term and
provision of this Agreement is severable and that, if any portion of this
Agreement should be deemed not enforceable for any reason, such portion
shall be stricken and the remaining portion or portions thereof should
continue to be enforced to the fullest extent permitted by applicable law.
32. This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Indiana without regard to any applicable state's
choice of law provisions.
33. Employee represents and acknowledges that in signing this Agreement he does
not rely, and has not relied, upon any representation or statement made by
the Company or by any of the Company's employees, officers, agents,
stockholders, directors or attorneys with regard to the subject matter,
basis or effect of this Agreement other than those specifically contained
herein.
34. This Agreement represents the entire agreement between the Parties
concerning the subject matter hereof, shall supercede any and all prior
agreements which may otherwise exist between them concerning the subject
matter hereof (specifically excluding, however, the post-termination
obligations contained in Employee's Employment Agreement (as amended), any
obligations contained in the existing Indemnity Agreement, and any
obligation contained in any or other
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legally-binding document), and shall not be altered, amended, modified or
otherwise changed except by a writing executed by both Parties.
PLEASE READ CAREFULLY. THIS SEPARATION AND RELEASE
AGREEMENT INCLUDES A COMPLETE RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS.
IN WITNESS WHEREOF, the Parties have themselves signed, or caused a duly
authorized agent thereof to sign, this Agreement on their behalf and thereby
acknowledge their intent to be bound by its terms and conditions.
"EMPLOYEE" HILL-ROM, INC.
Signed: By:
----------------------------- ------------------------------------
Printed: Title:
---------------------------- ---------------------------------
Dated: Dated:
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EXHIBIT A
29 C.F.R. SECTION 1625.22(F)
Decisional Unit Affected: All elected officers of Xxxxxxxxxxx Industries, Inc.
and its subsidiaries including, without limitation,
Batesville Services, Inc. and Hill-Rom, Inc.
including their respective Executive Management
Teams (EMTs).
Eligibility Factors: To be eligible for the severance benefits provided
under this program, individuals must have been
selected for involuntary termination solely as a
result of the Project Fusion Reduction-in-Force. All
other employees, specifically including any employee
who voluntarily quits, resigns or is involuntarily
terminated for any reason other than the
reduction-in-force (even if previously selected),
are not eligible for severance benefits.
Additionally, employees who are selected for
involuntary termination but are successfully
redeployed elsewhere within the Company are not
eligible.
Time Limits: Employees selected for the reduction-in-force must
execute the Separation and Release Agreement within
forty-five (45) days after receipt of the
documentation.
JOB TITLES AGE * SELECTED NOT SELECTED/REDEPLOYED
---------- ----- -------- -----------------------
CEO 49 X
CEO 60 X
Interim Company President & CEO 59 X
VP Business Information Systems 43 X
VP CFO 40 X
VP CFO 41 X
VP CFO 43 X
VP Controller 42 X
VP Corp Development 49 X
VP Corporate Tax 50 X
VP ELD 52 X
VP General Counsel 45 X
VP General Counsel 48 X
VP General Counsel 50 X
VP Global Supply Chain 49 X
VP GM Clinical 44 X
VP GM Services 41 X
VP Human Resources 46 X
VP Human Resources 50 X
VP Human Resources 50 X
VP Internal Audit 44 X
VP Investor Relations 52 X
VP Legal 49 X
VP Logistics 47 X
VP Marketing 51 X
VP Operations 45 X
VP Sales 51 X
VP Sales Americas/AP 44 X
VP Shared Services 38 X
VP Strategy 39 X
VP Strategy & Planning 35 X
VP Treasurer 50 X
* Age calculated as of July 31, 2005
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