December 1, 0000
Xxxx Xxxxxx
00 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
RE: AGREEMENT AND GENERAL RELEASE
--------------------------------------
Dear Xxxx:
The Xxxxxxx Works and its subsidiaries and their respective employees,
officers, directors and agents (collectively, "Xxxxxxx"), and you, agree that:
1. Your last day of employment with Xxxxxxx was September 30, 1999
("last day worked").
2. Xxxxxxx agrees to pay and/or provide you with the following,
provided Xxxxxxx receives the letter from you in the form attached hereto as
Exhibits A and X.
x. Xxxxxxx will pay you the monthly amount of Eighteen
Thousand Seven Hundred Fifty dollars ($18,750.00), (hereafter "base salary"),
less lawful deductions, paid from October 1, 1999, through April 30, 2000, on
the regular payday beginning in October 1999, and ending in April 2000. In the
event you have not secured employment or become self-employed by May 1, 2000, or
earn less than the base salary in any of the six months subsequent to May 1,
2000, Xxxxxxx shall continue to pay you if you so request as severance the
difference between your base salary and your monthly earned income for each
month from May 1, 2000, through October 31, 2000. For any months after May 1,
2000, in which you are employed by another, your monthly income shall be defined
as your gross income. If you are self-employed, your monthly income shall be
defined as your earnings as determined on a cash-flow basis minus your expenses
(but not including expenses for tax withholding, tax payments, or health
insurance). To qualify for any such period(s) of extended severance, you must,
by the tenth calendar day of any month in which you seek to extend your
severance, notify the Manager, Employee Relations, or his designee, in writing
at 00 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000, indicating the amount of your
income for the immediately preceding month. If you are employed by another, you
shall attach a copy of your pay stub to any claim for severance. If you are self
employed, you shall make available to Xxxxxxx within three working days of
receipt of your statement, a copy of a profit and loss statement for the month
supporting the claimed severance payment. Xxxxxxx shall keep all information
contained in such Profit and Loss statement confidential following the
provisions of Section 12 of this Agreement. Xxxxxxx shall make any severance
payments due covering the period of May 1, 2000, through October 31, 2000, on
the regular payday applicable to salaried employees. These payments include all
entitlements you may have under any Xxxxxxx policy, including those covering
payment of vacation and or severance pay.
b. You will continue to participate in The Xxxxxxx Works
qualified and supplemental Retirement Plans, and the Xxxxxxx Account Value Plan
in which you are currently participating, through your last day worked, in
accordance with the terms of the plans, subject to any amendments that are made
to the plans including termination of the plans, or replacement of the plans
with another plan.
c. You will continue to receive your current level of
voluntary and dependent life insurance, and accidental death and dismemberment
coverage through the end of the month in which the payments outlined in section
2(a) are made, provided you continue to make the required contributions. You
will then be eligible to convert your voluntary and dependent life insurance
coverage on the same terms commonly provided terminating employees.
d. You will remain a participant in the Executive Life
Insurance Plan through March 31, 2000. The Executive Life Insurance Plan
underwriter requires full payment for the coverage year in advance. With regard
to, and limited only to, the period of April 1, 2000, through March 31, 2001, if
you wish to continue your coverage under this Plan during this period and have
Xxxxxxx subsidize the cost of your doing so, you must pay that portion (5/12th)
of the premium that is attributable to the time frame outside your possible
severance eligibility as identified in this Agreement (November 1, 2000 - March
31, 2001). As the relevant annual premium for you to continue under this Plan is
expected to be $8,000, you must submit payment to Xxxxxxx'x Vice President,
Human Resources, in the amount of $3,334.00 no later than March 1, 2000. If you
fail to make this payment by Xxxxx 0, 0000, Xxxxxxx will not contribute further
towards your continued coverage under this policy beyond March 31, 2000.
e. You will continue to receive medical and dental coverage
through the end of the month in which the payments outlined in section 2(a) are
made, provided you continue to make the required contributions. You will then
have the same COBRA rights commonly provided terminating employees.
f. Your short term and long term disability coverage will
cease on your last day worked.
g. You will be a participant in the Management Incentive
Compensation Plan ("MICP") through your last day worked, and will receive a
payment of $125,000 under the 1999 MICP, payable in February, 2000.
h. You will be a participant in the Stock Option Plan ("SOP")
through your last day worked, and will have until May 28, 2000, to exercise your
NQSO shares, under the terms of the Plan.
i. You will be immediately vested in the 4,000 restricted
stock units granted under the Long-Term Incentive Plan.
j. You will be a participant in the Long Term Performance
Award Plan at the senior level through your last day worked, and will receive a
payment of $116,000 under such plan, payable in February, 2000.
k. You may purchase your company provided automobile by your
last day worked at the price of Forty-Seven Thousand Five Hundred Dollars
($47,500.00), or you may instead return such automobile to Xxxxxxx within ten
(10) days after full execution of this Agreement.
x. Xxxxxxx will provide you with outplacement assistance
through Xxx Xxxxx Xxxxxxxx for a period of up to twelve months from your last
day worked. In lieu of outplacement services, Xxxxxxx shall, at your discretion,
pay you the amount of ten thousand dollars ($10,000.00), less lawful deductions,
provided you notify Xxxxxxx of your decision no later than December 1, 1999.
Xxxxxxx shall issue such payment to you within 30 days of the date you notify
Xxxxxxx of your decision.
x. Xxxxxxx shall provide Xx. Xxxxxx with the same level of
assistance in completing his 1999 federal income tax return as he would have
received as an active employee.
x. Xxxxxxx will not contest your receipt of unemployment
compensation benefits.
3. You understand and agree that you would not receive all of the money
and benefits specified in sections 2(a) through (n) above except for your
execution of this Agreement and your fulfillment of the promises contained
herein.
4. You understand that you may revoke this Agreement for a period of
seven business days following the day you execute it and that this Agreement
will not become effective or enforceable until such revocation period has
expired. Any revocation within this period must be submitted, in writing, to the
Corporate Manager, Employee Relations, The Xxxxxxx Works, 00 Xxxxxxxxx Xxxx
Xxxx, Xxxxxxxxxx, XX 00000, and state, "I hereby revoke my acceptance of our
Agreement." Such revocation must be personally delivered, or mailed by certified
mail, within seven business days of execution of this Agreement to the Corporate
Manager, Employee Relations.
5. Except with respect to a claim for any compensation or benefits
under the plans and programs in which you participate by virtue of your
employment and except with regard to this Agreement, you hereby release and
discharge Xxxxxxx of and from any and all debts, obligations, claims, demands,
judgments or causes of action of any kind whatsoever, known or unknown, in tort,
contract, by statute or on any other basis, for equitable relief, compensatory,
punitive or other damages, expenses (including attorneys' fees), reimbursements
of costs of any kind, including but not limited to, any and all claims, demands,
rights and/or causes of action, including those which might arise out of
allegations
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relating to a claimed breach of an alleged oral or written employment
contract, or relating to purported employment discrimination or civil rights
violations, such as, but not limited to, those arising under Title VII of the
Civil Rights Act of 1964 (42 U.S.C. ss.ss.2000e et seq.), the Civil Rights Acts
of 1866 and 1871 (42 U.S.C. ss.ss.1981 and 1983), Executive Order 11246, as
amended, the Age Discrimination in Employment Act (29 U.S.C. ss.621 et seq.),
the Employee Retirement Income Security Act of 1974, the Equal Pay Act of 1963
(29 U.S.C. ss.206(d)(1)), the Civil Rights Act of 1991, the Americans with
Disabilities Act, all statutory provisions of the Connecticut General Statutes
over which the Connecticut Commission on Human Rights and Opportunities is
authorized to exercise jurisdiction, or any other applicable federal, state, or
local employment discrimination statute or ordinance, which you, your executors,
administrators, successors, and assigns might have or assert against Xxxxxxx (a)
by reason of any event which occurred on or before the time of execution of this
Agreement, in connection your employment by Xxxxxxx, or the termination of such
employment, and all circumstances related thereto, or (b) by reason of any
matter, cause or thing whatsoever which may have occurred prior to the time of
execution of this Agreement. Nothing in this Agreement prevents you from
enforcing the terms and conditions of this Agreement.
6. You waive your right to file any charge or complaint, except as such
waiver is prohibited by law, and agree that you will not accept any relief or
recovery from any charge or complaint against Xxxxxxx before any federal, state,
or local administrative agency. You further waive all rights to file any action
before any federal, state, or local court against Xxxxxxx. You confirm that no
charge, complaint, or action exists in any forum or form. Except as prohibited
by law, in the event that any such claim is filed, it shall be dismissed with
prejudice upon presentation hereof and you shall reimburse Xxxxxxx for the
costs, including attorney's fees, of defending any such action.
7. You agree not only to release Xxxxxxx from any and all claims as
stated above which you could make on your own behalf, but also those which may
be made by any other person or organization on your behalf. You specifically
waive any right to become, and promise not to become, a member of any class in a
case in which a claim against Xxxxxxx is made involving any events up to and
including the date of this Agreement, except where such waiver is prohibited by
law. You further agree not to in any way voluntarily assist or cooperate with
any individual or entity in commencing or prosecuting any action or proceeding
against Xxxxxxx including, but not limited to, any charges, complaints, or
administrative agency claims, except as required by law.
7a. Xxxxxxx knowingly and voluntarily releases and forever discharges
you of and from any and all actions or causes of action, suits, claims, charges,
complaints, contracts (whether oral or written, express or implied from any
source), and promises, whatsoever, in law or equity, which, against you, Xxxxxxx
may now have or hereafter can, shall or may have, including all unknown,
undisclosed and unanticipated losses, wrongs, injuries, debts, claims, or
damages to Xxxxxxx, for upon, or by reason of any matter, cause or thing
whatsoever including, but not limited to, any and all matters arising from your
good faith performance of your duties as an employee of Xxxxxxx. Xxxxxxx does
not, however, herein release or discharge you of and from actions or causes of
action, suits, claims, charges, complaints, or
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contracts based on acts of intentional misconduct or any other such acts
performed outside of your good faith performance of your duties as an
employee of Xxxxxxx, including but not limited to illegal acts, provided further
that nothing contained herein is intended to prevent Xxxxxxx from enforcing the
terms and conditions of this Agreement.
8. With respect to any secret or confidential information obtained by
you during your employment at Xxxxxxx, you will not disclose or use for any
purpose any such secret or confidential information. For purposes hereof, secret
or confidential information includes any process, technique, formula, recipe,
drawing, apparatus, method for or result of cost calculation, result of any
investigation or experiment made by or on behalf of Xxxxxxx, and any sales,
production or other competitive information, acquired by you during the course
of your employment by Xxxxxxx and all other information that Xxxxxxx itself does
not disclose to the public.
You further agree that any work, design, discovery, invention or
improvement conceived, made, developed or received by you during the period of
your employment with Xxxxxxx, which relates to the actual or anticipated (as of
the date hereof) business, operations or research of Xxxxxxx, including but not
limited to any process, art, machine, manufacture, materials or composition of
matter, which could be manufacturing or used by Xxxxxxx, whether patentable or
not, is the sole property of Xxxxxxx. The terms invention and improvement as
used herein, in addition to their customary meaning, shall mean creative
concepts and ideas relating to advertising, marketing, promotional and sales
activities.
You further state that you have assigned or hereby do assign to
Xxxxxxx or its designee all right, title and interest in any or to any idea,
work, design, discovery, invention or improvement made or created during your
employment at Xxxxxxx and to any application for letters patent or for trademark
registration made thereon, and to any common law or statutory copyright therein,
and that you will cooperate with Xxxxxxx in order to enable it to secure any
patent, trademark, copyright, or other property right therefor in the United
States or any foreign country, and any division, renewal, continuation or
continuation-in-part thereof, or for any reissue of any patent issued thereon.
You also agree that Xxxxxxx has all rights to, possession of, and
all title in and to, all electronic files, papers, documents and drawings,
including copies thereof, which you may have originated or which came into your
possession during your employment with Xxxxxxx and which related to the business
of Xxxxxxx, regardless of whether such electronic files, papers, documents and
drawings are kept at your office, at your home or somewhere else, without
retaining any copies thereof, except for any personnel, benefit or compensation
information of a personal nature and any general business reference materials or
documents which do not contain any confidential or proprietary information.
You also agree that during the period you receive any payments
outlined in section 2(a) above you will not work in any capacity, including as a
consultant or independent contractor, for the following businesses: Xxxxxxx
Corp. except its Xxxxxx Root entity, Xxxxxx, Xxxxxxxxx-Xxxx, or Snap-On. This
prohibition shall not apply to divisions or entities
5
that do not deal in products or services offered by Xxxxxxx. In addition, you
agree that you will not solicit any Xxxxxxx employee for any employment purpose
during such period.
8a. Xxxxxxx agrees to indemnify and hold you harmless from all acts
arising from your employment by Xxxxxxx on the same basis Xxxxxxx would have
prior to your last day worked.
9. You agree that you will not make any disparaging remarks or
demeaning comment, of any kind or nature, regarding Xxxxxxx or any of its
officers, directors, agents or employees. No officer or director of Xxxxxxx will
make any disparaging remarks or demeaning comment about you, and will favorably
comment upon and recommend you to all persons and entities who make any inquiry
about you or your performance or your abilities.
10. You agree not to disclose any information regarding the substance
of this Agreement. Notwithstanding this agreement of non-disclosure, you may
disclose the substance of this Agreement to members of your immediate family,
your financial advisor, and to any attorney with whom you choose to consult
concerning the execution or enforcement of this Agreement; provided that you
agree that any such person to whom disclosure is made will not disclose any
information regarding such disclosure to any third party.
An initial violation of this section will subject you to damages in
an amount which Xxxxxxx actually proves.
11. All disputes and controversies of every kind and nature between the
parties to this Agreement arising out of or in connection with this Agreement as
to the existence, construction, validity, interpretation or meaning,
performance, non-performance, enforcement, operation, breach, continuance, or
termination of this Agreement shall be submitted to and determined by
arbitration pursuant to the procedure set forth in this Agreement.
Either party may demand such arbitration by notice ("notice
procedure": if to Xxxxxxx, sent to the attention of the Corporate Manager,
Employee Relations, by fax (000-000-0000) and confirmed by UPS overnight express
or a comparable service sent to Corporate Manager, Employee Relations, 00
Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000; and if to you, sent to you at your
address set forth at the beginning of this Agreement by UPS overnight express or
a comparable service) in writing sent within 90 days after the time the
demanding party becomes aware, or should have become aware, that a controversy
exists. Within 30 days after such demand has been sent, the demanding party will
request in writing (with a copy to the other party sent in accordance with the
"notice procedure") the Arbitration Committee of the American Arbitration
Association to name an arbitrator to hear the dispute in the New Britain, CT
area.
An award rendered by the arbitrator appointed under this section
shall be final and binding on all parties to the proceeding, and judgment on
such award may be entered by
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either party in the highest court, state or federal, having jurisdiction.
Nothing contained in this Agreement shall be deemed to give the arbitrator any
authority, power, or right to alter, change, amend, modify, add to, or subtract
from any of the provisions of this Agreement.
Each party will pay its own arbitration costs and expenses
(including legal fees).
12. You will not apply in the future for any employment with Xxxxxxx.
13. This Agreement is made in the State of Connecticut and shall be
interpreted under the laws of such state. If any portion of this Agreement is
declared illegal or unenforceable and cannot be modified to be enforceable,
including the general release language, such portion shall immediately become
void, leaving the remainder of this Agreement in full force and effect. However,
if in any proceeding it is asserted by you or anyone else on your behalf and
with your approval that any portion of the general release language of
paragraphs 5, 6, or 7 is unenforceable and any portion of such language is, in
fact, ruled to be unenforceable in such proceeding for any reason, you will
return the consideration paid hereunder to Xxxxxxx.
14. You and Xxxxxxx agree that neither this Agreement nor the
furnishing of the consideration for this Release will be deemed or construed at
anytime for any purpose as an admission by you or by Xxxxxxx of any liability or
unlawful conduct of any kind.
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15. This Agreement may not be modified, altered or changed except by
you and Xxxxxxx in a writing that specifically references this Agreement. This
Agreement sets forth the entire agreement between you and Xxxxxxx, and fully
supersedes any prior agreements or understandings between us.
THE PARTIES HAVE READ AND FULLY CONSIDERED THIS AGREEMENT AND ARE
MUTUALLY DESIROUS OF ENTERING TO THIS AGREEMENT. THE TERMS OF THIS AGREEMENT ARE
THE PRODUCT OF MUTUAL NEGOTIATION AND COMPROMISE BETWEEN XXXXXXX AND YOU; YOU
UNDERSTAND THAT THIS AGREEMENT SETTLES, BARS, AND WAIVES ANY AND ALL CLAIMS THAT
YOU HAVE OR COULD POSSIBLY HAVE AGAINST XXXXXXX. YOU HAVE BEEN AFFORDED AT LEAST
21 DAYS TO CONSIDER THIS AGREEMENT AND HAVE BEEN ADVISED TO CONSULT WITH AN
ATTORNEY. HAVING SUBSEQUENTLY ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL THE
PROMISES SET FORTH HEREIN, AND TO RECEIVE THEREBY THE SUMS AND BENEFITS SET
FORTH IN PARAGRAPHS 2(A) THROUGH 2(N) ABOVE, YOU FREELY AND KNOWINGLY, AND AFTER
DUE CONSIDERATION, ENTER INTO THIS AGREEMENT INTENDING TO WAIVE, SETTLE AND
RELEASE ALL CLAIMS YOU HAVE OR MIGHT HAVE AGAINST XXXXXXX.
You and Xxxxxxx now voluntarily and knowingly execute this Agreement.
Xxxx Xxxxxx
-----------------------------
Xxxx Xxxxxx
Signed and sworn before me this 21st day of December, 1999.
Xxxxxx X. Xxxxx
------------------------------------------
(Notary Public/Commissioner of the Superior Court)
THE XXXXXXX WORKS:
By: Xxxx Xxxxxxx
--------------------------------------
Xxxx Xxxxxxx
Vice President, Human Resources
Signed and sworn before me this 30th day of December, 1999.
Xxxxx X. Xxxxxxxxx
------------------------------------------
(Notary Public/Commissioner of the Superior Court)
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EXHIBIT A
--------------
Date
Xxxx Xxxxxxx
Vice President, Human Resources
0000 Xxxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
RE: Agreement
Dear Xxxx:
On ______________ 1999, I executed an Agreement and General Release
(the "Agreement") between The Xxxxxxx Works and me. Xxxxxxx advised me, in
writing, to consult with an attorney of my choosing prior to executing the
Agreement.
More than 7 days have elapsed since I executed the Agreement. I have
never revoked my acceptance or execution of the Agreement and hereby reaffirm my
acceptance of the Agreement. Therefore, in accordance with the terms of the
Agreement, I hereby request payment of the benefits described in paragraphs 2(a)
through 2(n) of the Agreement.
Very truly yours,
Xxxx Xxxxxx
EXHIBIT B
--------------
Date
Xxxx Xxxxxxx
Vice President, Human Resources
0000 Xxxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
RE: Agreement
Dear Xxxx:
I hereby resign my office of President, Consumer Sales, effective
September 30, 1999.
Further, effective September 30, 1999, I resign all offices and
directorships that I hold with The Xxxxxxx Works, and any and all of its
subsidiaries and divisions.
Very truly yours,
Xxxx Xxxxxx
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