Exhibit 10(h)
SEVERANCE AGREEMENT
SEVERANCE AGREEMENT (the "Agreement") dated July 27,
1998 ("Effective Date") between Xxxx X. Xxxx ("Employee")
and Xxxxx Group, Inc., a New York corporation (as further
defined in Section 13, the "Company").
WHEREAS, in order to accomplish its objectives, the
Company believes it is essential that members of its
Operating Committee, such as Employee, be encouraged to
remain with the Company during management transition and
thereafter and in the event there is any change in corporate
structure which results in a Change in Control.
WHEREAS, Employee wishes to have the protection
provided for in this Agreement and, in exchange for such
protection, is willing to give to the Company, under certain
circumstances, his covenant not to compete.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions.
a. "Cause" means (i) engaging by Employee in
willful misconduct which is materially injurious to the
Company; (ii) conviction of the Employee of a felony;
(iii) engaging by Employee in fraud, material
dishonesty or gross misconduct in connection with the
business of the Company; (iv) engaging by Employee in
any act of moral turpitude reasonably likely to
materially and adversely affect the Company or its
business; or (v) habitual use by Employee of narcotics
or alcohol.
b. "Change of Control" means (i) any person
other than the Company acquiring more than 25 percent
of the Company's Common Stock through a tender offer,
exchange offer or otherwise; (ii) the liquidation or
dissolution of the Company following the sale of all or
substantially all of its assets; or (iii) the Company
not being the surviving parent corporation resulting
from any merger or consolidation to which it has been a
party.
c. "Competitor" shall mean any person, firm,
corporation, partnership or other entity which in its
prior fiscal year had annual gross sales volume or
revenues of shoes of more than $20,000,000 or is
reasonably expected to have such sales or revenues in
either the current fiscal year or the next following
fiscal year.
d. "Confidential Information" shall have the
meaning set forth in Section 10.
e. "Customer" shall mean any wholesale customer
of the Company which either purchased from the Company
during the one (1) year immediately preceding the
Termination Date, or is reasonably expected by the
Company to purchase from the Company in the one (1)
period immediately following the Termination Date, more
than $1,000,000 in shoes.
f. "Good Reason," when used with reference to a
voluntary termination by Employee of his employment
with the Company, shall mean (i) a reduction in
Employee's base salary as in effect on the date hereof,
or as the same may be increased from time to time; or
(ii) a reduction in Employee's status, position,
responsibilities or duties.
g. "Term" means the period commencing on the
Effective Date and terminating three years after the
Effective Date; provided, however, that the Term shall
automatically be extended for successive additional one
year periods unless either party to this Agreement
provides the other party with notice of termination of
this Agreement at least six months prior to the
expiration of such one year periods.
h. "Termination Date" shall mean the effective
date as provided hereunder of the termination of
Employee's employment.
2. Termination During Term -- Change in Control
Severance Inapplicable.
a. Employee's employment may be terminated by
the Company for Cause at any time, effective upon the
giving to Employee of a written notice of termination
specifying in detail the particulars of the conduct of
Employee deemed by the Company to justify such
termination for Cause.
b. Employee's employment may be terminated by
the Company without Cause at any time, effective upon
the giving to Employee of a written notice of
termination specifying that such termination is without
Cause.
c. Employee may terminate his employment with
the Company at any time.
d. Upon a termination by the Company of
Employee's employment for Cause during the Term, but
prior to a Change in Control or more than 24 months
after a Change in Control, Employee shall be entitled
only to the payments specified in Section 3.a. below.
Upon a termination by the Company of Employee's
employment without Cause during the Term, but prior to
a Change in Control or more than 24 months after a
Change in Control, Employee shall be entitled to all of
the payments and benefits specified in Section 3 below.
e. If Employee voluntarily terminates his
employment during the Term, but prior to a Change in
Control or more than 24 months after a Change in
Control, he shall notify Employer in writing if he
believes the termination is for Good Reason. Employee
shall set forth in reasonable detail why Employee
believes there is Good Reason. If such termination is
for Good Reason, Employee shall be entitled to all of
the payments and benefits specified in Section 3 below.
If such voluntary termination is for other than Good
Reason, then Employee shall be entitled only to the
payments specified in Section 3.a. below.
3. Payments and Benefits Upon Termination During Term
-- Change in Control Severance Inapplicable. To the extent
provided in Section 2 above, upon termination of his
employment during the Term, but prior to a Change in Control
or more than 24 months after a Change in Control, Employee
shall receive the following payments and benefits:
a. The Company shall pay to Employee on the
Termination Date (i) the full base salary earned by
employee through the Termination Date and unpaid at the
Termination Date, plus (ii) credit for any vacation
earned by Employee but not taken at the Termination
Date, plus (iii) all other amounts earned by Employee
and unpaid as of the Termination Date.
b. The Company shall continue to pay to Employee
his base monthly salary at the highest rate in effect
at any time during the twelve months immediately
preceding the Termination Date (including his targeted
bonus in the current year) for the eighteen months
succeeding his Termination Date. Such amounts shall be
paid in accordance with the Company's regular pay
period policy for its employees.
c. The Company, at its expense, shall provide to
Employee for a period of eighteen months after the
Termination Date medical and/or dental coverage under
the medical and dental plans maintained by the Company.
Upon Employee's re-employment during such period, to
the extent covered by the new Employer's Plan, coverage
under the Company's plan shall lapse. Additionally,
the Company shall make a cash lump sum payment in an
amount equal to the sum of (i) and (ii) below:
(i) The fair market value (determined
as of the Termination Date) of that number of
shares of non-vested restricted stock of the
Company held by the Employee which would have
vested within the eighteen month period following
the Employee's Termination Date had the Employee
remained employed with the Company; plus
(ii) With respect to each non-vested
option to purchase Company stock held by the
Employee which would have vested within the
eighteen month period following the Employee's
Termination Date had the Employee remained
employed with the Company, the excess, if any, of
the fair market value (determined as of the
Termination Date) of the Company stock subject to
such option over the exercise price of such
option.
Employee's participation in and/or coverage under all
other employee benefit plans, programs or arrangements
sponsored or maintained by the Company shall cease
effective as of the Termination Date.
d. The Company shall pay the reasonable costs of
outplacement services selected by the Company.
e. For purposes of determining Employee's
benefit under the Xxxxx Group, Inc. Supplemental
Employment Retirement Plan, an additional 1.5 years of
Credited Service shall be credited to the Employee's
actual or deemed Credited Service.
4. Termination Within 24 Months After a Change in
Control Which Occurs During the Term.
a. Employee's employment may be terminated by
the Company for Cause at any time, effective upon the
giving to Employee of written notice of termination
specifying in detail the particulars of the conduct of
Employee deemed by the Company to justify such
termination for Cause.
b. Employee's employment may be terminated by
the Company without Cause at any time, effective upon
the giving to Employee of a written notice of
termination specifying that such termination is without
Cause.
c. Employee may terminate his employment with
the Company at any time.
d. Upon a termination by the Company of
Employee's employment for Cause within 24 months after
a Change in Control which occurs during the Term,
Employee shall be entitled only to the payments
specified in Section 5.a. below. Upon a termination by
the Company of Employee's employment without Cause
within 24 months after a Change in Control which occurs
during the Term, Employee shall be entitled to all of
the payments and benefits specified in Section 5 below.
e. If Employee voluntarily terminates his
employment within 24 months after a Change in Control
which occurs during the Term, he shall notify the
Company in writing if he believes the termination is
for Good Reason. Employee shall set forth in
reasonable detail why Employee believes there is Good
Reason. If such termination is for Good Reason,
Employee shall be entitled to all of the payments and
benefits specified in Section 5 below. If such
voluntary termination is for other than Good Reason,
then Employee shall be entitled only to the payments
specified in Section 5.a. below.
5. Payments and Benefits Upon Termination Within 24
Months after a Change in Control Which Occurs During Term.
To the extent provided in 4 above, upon termination of his
employment within 24 months after a Change in Control which
occurs during the Term, Employee shall receive the following
payments and benefits:
a. The Company shall pay to Employee on the
Termination Date (i) the full base salary earned by
employee through the Termination Date and unpaid at the
Termination Date, plus (ii) credit for any vacation
earned by Employee but not taken at the Termination
Date, plus (iii) all other amounts earned by Employee
and unpaid as of the Termination Date.
b. The Company shall pay to Employee in a lump
sum not later than 30 days after his Termination Date
an amount equal to 250 percent of the sum of (i) his
base annual salary at the highest rate in effect at any
time during the twelve months immediately preceding the
Termination Date, and (ii) his targeted bonus for the
current year. In addition, the Company shall pay to
Employee his targeted bonus payment for the year of
termination prorated to the Termination Date.
c. The Company, at its expense, shall provide to
Employee for a period of thirty months after the
Termination Date medical and/or dental coverage under
the medical and dental plans maintained by the Company.
Upon Employee's re-employment during such period, to
the extent covered by the new employer's plan, coverage
under the Company's plan shall lapse. Employee's
participation in and/or coverage under all other
employee benefit plans, programs or arrangements
sponsored or maintained by the Company shall cease
effective as of the Termination Date.
d. The Company shall pay the reasonable costs of
outplacement services selected by the Company.
e. For purposes of determining Employee's
benefit under the Xxxxx Group, Inc. Supplemental
Employment Retirement Plan, an additional 2.5 years of
Credited Service shall be credited to the Employee's
actual or deemed Credited Service.
6. Mitigation or Reduction of Benefits. Employee
shall not be required to mitigate the amount of any payment
provided for in Section 3 or Section 5 by seeking other
employment or otherwise. Except as otherwise specifically
set forth herein, the amount of any payment or benefits
provided in Section 3 or Section 5 shall not be reduced by
any compensation or benefits or other amounts paid to or
earned by Employee as the result of employment by another
employer after the Termination Date or otherwise.
7. Employee Expenses After Change in Control. If
Employee's employment is terminated by the Company within 24
months after a Change in Control which occurs during the
Term and there is a dispute with respect to this Agreement,
then all Employee's costs and expenses (including reasonable
legal and accounting fees) incurred by Employee (a) to
defend the validity of this Agreement, (b) if Employee's
employment has been terminated for Cause, to contest such
termination, (c) to contest any determinations by the
Company concerning the amounts payable by the Company under
this Agreement, or (d) to otherwise obtain or enforce any
right or benefit provided to Employee by this Agreement,
shall be paid by the Company if Employee is the prevailing
party.
8. Release. Notwithstanding anything to the contrary
stated in this Agreement, no benefits will be paid pursuant
to Sections 3 and 5 except under Sections 3.a. and 5.a.
prior to execution by Employee of a release to the Company
in the form attached as Exhibit A.
9. Covenant Not to Compete. Benefits payable
pursuant to Sections 3.b, 3.c, and 3.e are subject to the
following restrictions.
a. Post-Termination Restrictions.
i. Employee acknowledges that (i) the
Company has spent substantial money, time and effort
over the years in developing and solidifying its
relationships with its customers throughout the world
and in developing its Confidential Information;
(ii) under this Agreement, the Company is agreeing to
provide Employee with certain benefits based upon
Employee's assurances and promises contained herein not
to divert the Company's customers' goodwill or to put
himself in a position following his employment with
Company in which the confidentiality of Company's
Confidential Information might somehow be compromised.
ii. Accordingly, Employee agrees that, for
eighteen (18) months after a Termination Date described
in the second sentence of Section 2.d, Employee will
not, directly or indirectly, on Employee's own behalf
or on behalf of any other person, firm, corporation or
entity (whether as owner, partner, consultant, employee
or otherwise):
A. provide any executive- or
managerial-level services in the shoe industry in
the United States in competition with the Company,
for any Competitor;
B. hold any executive- or
managerial-level position with any Competitor in
the United States;
C. engage in any research and
development activities or efforts for a
Competitor, whether as an employee, consultant,
independent contractor or otherwise, to assist the
Competitor in competing in the shoe industry in
the United States;
D. cause or attempt to cause any
Customer to divert, terminate, limit, modify or
fail to enter into any existing or potential
relationship with the Company;
E. cause or attempt to cause any shoe
supplier or manufacturer of the Company to divert,
terminate, limit, modify or fail to enter into any
existing or potential relationship with the
Company; and
F. solicit, entice, employ or seek to
employ, in the shoe industry, any executive- or
managerial-level employee of, or any consultant or
advisor to, the Company.
b. Acknowledgment Regarding Restrictions.
Employee recognizes and agrees that the restraints
contained in Section 9.a. (both separately and in
total) are reasonable and should be fully enforceable
in view of the high-level positions Employee has had
with the Company, the national and international nature
of both the Company's business and competition in the
shoe industry, and the Company's legitimate interests
in protecting its Confidential Information and its
customer goodwill and relationships. Employee
specifically hereby acknowledges and confirms that he
is willing and intends to, and will, abide fully by the
terms of Section 9.a. of this Agreement. Employee
further agrees that the Company would not have adequate
protection if Employee were permitted to work for its
competitors in violation of the terms of this Agreement
since the Company would be unable to verify whether
(i) its Confidential Information was being disclosed
and/or misused, and (ii) Employee was involved in
diverting or helping to divert the Company's customers
and/or its customer goodwill.
c. Company's Right to Injunctive Relief. In the
event of a breach or threatened breach of any of
Employee's duties and obligations under the terms and
provisions of Section 9.a. of this Agreement, the
Company shall be entitled, in addition to any other
legal or equitable remedies it may have in connection
therewith (including any right to damages that it may
suffer), to temporary, preliminary and permanent
injunctive relief restraining such breach or threatened
breach. Employee hereby expressly acknowledges that
the harm which might result to Company's business as a
result of noncompliance by Employee with any of the
provisions of Section 9.a. would be largely
irreparable. Employee specifically agrees that if
there is a question as to the enforceability of any of
the provisions of Section 9.a. hereof, Employee will
not engage in any conduct inconsistent with or contrary
to such Section until after the question has been
resolved by a final judgment of a court of competent
jurisdiction. Employee undertakes and agrees that if
Employee breaches or threatens to breach the Agreement,
Employee shall be liable for any attorneys' fees and
costs incurred by Company in enforcing its rights
hereunder.
d. Employee Agreement to Disclose this
Agreement. Employee agrees to disclose, during the
eighteen month period following a Termination Date
described in the second sentence of Section 2.d, the
terms of this Section 9 to any potential future
employer.
10. Confidential Information. The Employee
acknowledges and confirms that certain data and other
information (whether in human or machine readable form) that
comes into his possession or knowledge (whether before or
after the date of this Employment Agreement) and which was
obtained from the Company, or obtained by the Employee for
or on behalf of the Company, and which is identified herein
is the secret, confidential property of the Company (the
"Confidential Information"). This Confidential Information
includes, but is not limited to:
a. lists or other identification of customers or
prospective customers of the Company (and key
individuals employed or engaged by such parties);
b. lists or other identification of sources or
prospective sources of the Company's products or
components thereof (and key individuals employed or
engaged by such parties);
c. all compilations of information,
correspondence, designs, drawings, files, formulae,
lists, machines, maps, methods, models, notes or other
writings, plans, records, regulatory compliance
procedures, reports, specialized or technical data,
schematics, source code, object code, documentation,
and software used in connection with the development,
manufacture, fabrication, assembly, marketing and sale
of the Company's products;
d. financial, sales and marketing data relating
to the Company or to the industry or other areas
pertaining to the Company's activities and contemplated
activities (including, without limitation,
manufacturing, transportation, distribution and sales
costs and non-public pricing information);
e. equipment, materials, procedures, processes,
and techniques used in, or related to, the development,
manufacture, assembly, fabrication or other production
and quality control of the Company's products and
services;
f. the Company's relations with its customers,
prospective customers, suppliers and prospective
suppliers and the nature and type of products or
services rendered to such customers (or proposed to be
rendered to prospective customers);
g. the Company's relations with its employees
(including, without limitation, salaries, job
classifications and skill levels); and
h. any other information designated by the
Company to be confidential, secret and/or proprietary
(including without limitation, information provided by
customers or suppliers of the Company).
Notwithstanding the foregoing, the term "Confidential
Information" shall not consist of any data or other
information which has been made publicly available or
otherwise placed in the public domain other than by the
Employee in violation of this Employment Agreement.
11. Certain Additional Payments by the Company.
a. Anything in this Agreement to the contrary
notwithstanding and except as set forth below, in the
event it shall be determined that any payment or
distribution by the Company to or for the benefit of
the Employee (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement
or otherwise, but determined without regard to any
additional payments required under this Section) (a
"Payment") would be subject to the excise tax imposed
by Section 4999 of the Internal Revenue Code of 1986,
as amended (the "Code"), or any interest or penalties
are incurred by the Employee with respect to such
excise tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then the Employee
shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that after
payment by the Employee of all taxes (including any
interest or penalties imposed with respect to such
taxes), including, without limitation, any income taxes
(and any interest and penalties imposed with respect
thereto) and Excise Tax imposed upon the Gross-Up
Payment, the Employee retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon the
Payments. Notwithstanding the foregoing provisions of
this Section 11.a., if it shall be determined that the
Employee is entitled to a Gross-Up Payment, but that
the Payments do not exceed 110 percent of the greatest
amount (the "Reduced Amount") that could be paid to the
Employee such that the receipt of Payments would not
give rise to any Excise Tax, then no Gross-Up Payment
shall be made to the Employee, and the Payments, in the
aggregate, shall be reduced to the Reduced Amount.
b. Subject to the provisions of Section 11.c.,
all determinations required to be made under this
Section 11, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up
Payment and the assumptions to be utilized in arriving
at such determination, shall be made by Ernst & Young
or such other certified public accounting firm as may
be designated by the Employee (the "Accounting Firm")
which shall provide detailed supporting calculations
both to the Company and the Employee within 15 business
days of the receipt of notice from the Employee that
there has been a Payment, or such earlier time as is
requested by the Company. In the event that the
Accounting Firm is serving as accountant or auditor for
the individual, entity or group effecting the Change of
Control, the Employee shall appoint another nationally
recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All
fees and expenses of the Accounting Firm shall be borne
solely by the Company. Any Gross-Up Payment, as
determined pursuant to this Section 11, shall be paid
by the Company to the Employee within five days of the
receipt of the Accounting Firm's determination. Any
determination by the Accounting Firm shall be binding
upon the Company and the Employee. As a result of the
uncertainty in the application of Section 4999 of the
Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company
should have been made ("Underpayment"), consistent with
the calculations required to be made hereunder. In the
event that the Company exhausts its remedies pursuant
to Section 11.c. and the Employee thereafter is
required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to
or for the benefit of the Employee.
c. The Employee shall notify the Company in
writing of any claim by the Internal Revenue Service
that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such notification
shall be given as soon as practicable but no later than
ten business days after the Employee is informed in
writing of such claim and shall apprise the Company of
the nature of such claim and the date on which such
claim is requested to be paid. The Employee shall not
pay such claim prior to the expiration of the 30-day
period following the date on which the Employee gives
such notice to the Company (or such shorter period
ending on the date that any payment of taxes with
respect to such claim is due). If the Company notifies
the Employee in writing prior to the expiration of such
period that it desires to contest such claim, the
Employee shall:
i. give the Company any information
reasonably requested by the Company relating to
such claim,
ii. take such action in connection with
contesting such claim as the Company shall
reasonably request in writing from time to time,
including, without limitation, accepting legal
representation with respect to such claim by an
attorney reasonably selected by the Company,
iii. cooperate with the Company in good faith
in order to effectively contest such claim, and
iv. permit the Company to participate in any
proceedings relating to such claim;
provided, however, that the Company shall bear and pay
directly all costs and expenses (including additional
interest and penalties) incurred in connection with
such contest and shall indemnify and hold the Employee
harmless, on an after-tax basis, for any Excise Tax or
income tax (including interest and penalties with
respect thereto) imposed as a result of such
representation and payment of costs and expenses.
Without limitation on the foregoing provisions of this
Section 11.c., the Company shall control all
proceedings taken in connection with such contest and,
at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of
such claim and may, at its sole option, either direct
the Employee to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner,
and the Employee agrees to prosecute such contest to a
determination before any administrative tribunal, in a
court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine;
provided, however, that if the Company directs the
Employee to pay such claim and xxx for a refund, the
Company shall advance the amount of such payment to the
Employee, on an interest-free basis and shall indemnify
and hold Employee harmless, on an after-tax basis, from
any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with
respect to such advance; and further provided that any
extension of the statute of limitations relating to
payment of taxes for the taxable year of the Employee
with respect to which such contested amount is claimed
to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall
be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and the Employee
shall be entitled to settle or contest, as the case may
be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
d. If, after the receipt by the Employee of an
amount advanced by the Company pursuant to
Section 11.c., the Employee becomes entitled to receive
any refund with respect to such claim, the Employee
shall (subject to the Company's complying with the
requirements of Section 11.c.) promptly pay to the
Company the amount of such refund (together with any
interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by the
Employee of an amount advanced by the Company pursuant
to Section 11.c., a determination is made that the
Employee shall not be entitled to any refund with
respect to such claim and the Company does not notify
the Employee in writing of its intent to contest such
denial of refund prior to the expiration of 30 days
after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the
amount of such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be
paid.
12. Notice. All notices hereunder shall be in writing
and shall be deemed to have been duly given (a) when
delivered personally or by courier, or (b) on the third
business day following the mailing thereof by registered or
certified mail, postage prepaid, or (c) on the first
business day following the mailing thereof by overnight
delivery service, in each case addressed as set forth below:
a. If to the Company
Xxxxx Group, Inc.
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
Attention: Chief Executive Officer
b. If to Employee:
Xxxx X. Xxxx
000 Xxxxxxxxx Xxxxxxx Xxxxx
Xx. Xxxxx, XX 00000
Any party may change the address to which notices are to be
addressed by giving the other party written notice in the
manner herein set forth.
13. Successors; Binding Agreement.
a. The Company will require any successor
(whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all
of the business and/or assets of the Company, upon or
prior to such succession, to expressly assume and agree
to perform this Agreement in the same manner and to the
same extent that the Company would have been required
to perform it if no such succession had taken place. A
copy of such assumption and agreement shall be
delivered to Employee promptly after its execution by
the successor. Failure of the Company to obtain such
agreement upon or prior to the effectiveness of any
such succession shall be a breach of this Agreement and
shall entitle Employee to benefits from the Company in
the same amounts and on the same terms as Employee
would be entitled hereunder if Employee terminated his
employment for Good Reason. For purposes of the
preceding sentence, the date on which any such
succession becomes effective shall be deemed the
Termination Date. As used in this Agreement, "Company"
shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid
which executes and delivers the agreement provided for
in this Section 13.a. or which otherwise becomes bound
by the terms and provisions of this Agreement by
operation of law.
b. This Agreement is personal to Employee and
Employee may not assign or delegate any part of his
rights or duties hereunder to any other person, except
that this Agreement shall inure to the benefit of and
be enforceable by Employee's legal representatives,
executors, administrators, heirs and beneficiaries.
14. Severability. If any provision of this Agreement
or the application thereof to any person or circumstance
shall to any extent be held to be invalid or unenforceable,
the remainder of this Agreement and the application of such
provision to persons or circumstances other than those as to
which it is held invalid or unenforceable shall not be
affected thereby, and each provision of this Agreement shall
be valid and enforceable to the fullest extent permitted by
law.
15. Headings. The headings in this Agreement are
inserted for convenience of reference only and shall not in
any way affect the meaning or interpretation of this
Agreement.
16. Counterparts. This Agreement may be executed in
one or more identical counterparts, each of which shall be
deemed an original but all of which together shall
constitute one and the same instrument.
17. Waiver. Neither any course of dealing nor any
failure or neglect of either party hereto in any instance to
exercise any right, power or privilege hereunder or under
law shall constitute a waiver of such right, power or
privilege or of any other right, power or privilege or of
the same right, power or privilege in any other instance.
Without limiting the generality of the foregoing, Employee's
continued employment without objection shall not constitute
Employee's consent to, or a waiver of Employee's rights with
respect to, any circumstances constituting Good Reason. All
waivers by either party hereto must be contained in a
written instrument signed by the party to be charged
therewith, and, in the case of the Company, by its duly
authorized officer.
18. Entire Agreement. This instrument constitutes the
entire agreement of the parties in this matter and shall
supersede any other agreement between the parties, oral or
written, concerning the same subject matter.
19. Amendment. This Agreement may be amended only by
a writing which makes express reference to this Agreement as
the subject of such amendment and which is signed by
Employee and by a duly authorized officer of the Company.
20. Governing Law. In light of Company's and
Employee's substantial contacts with the State of Missouri,
the facts that the Company is headquartered in Missouri and
Employee resides in and/or reports to Company management in
Missouri, the parties' interests in ensuring that disputes
regarding the interpretation, validity and enforceability of
this Agreement are resolved on a uniform basis, and
Company's execution of, and the making of, this Agreement in
Missouri, the parties agree that: (i) any litigation
involving any noncompliance with or breach of the Agreement,
or regarding the interpretation, validity and/or
enforceability of the Agreement, shall be filed and
conducted exclusively in the state or federal courts in St.
Louis City or County, Missouri; and (ii) the Agreement shall
be interpreted in accordance with and governed by the laws
of the State of Missouri, without regard for any conflict of
law principles.
IN WITNESS WHEREOF, Employee and the Company have
executed this Agreement as of the day and year first above
written.
XXXXX GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Vice President, General Counsel
and Corporate Secretary
EMPLOYEE
By: /s/ Xxxx X. Xxxx
----------------------------------
Exhibit A
RELEASE
RELEASE (the "Release") dated _____________, 199__ between
Xxxx X. Xxxx ("Employee") and Xxxxx Group, Inc., a New York
corporation (as further defined in Section 13 of the Severance
Agreement, the "Company").
WHEREAS, the Company and Employee are parties to a Severance
Agreement dated ____________, 1998 (the "Severance Agreement"),
which provides certain protection to Employee during management
transition and thereafter and in the event there is any change in
corporate structure which results in a change in control of the
Company.
WHEREAS, the execution of this Release is a condition
precedent to, and material inducement to, the Company's provision
of certain benefits under the Severance Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Mutual Promises. The Company undertakes the
obligations contained in the Severance Agreement, which are in
addition to any compensation to which Employee might otherwise be
entitled, in exchange for Employee's promises and obligations
contained herein. The Company's obligations are undertaken in
lieu of any other severance benefits.
2. Release of Claims; Agreement Not to File Suit.
a. Employee, for and on behalf of himself and his heirs,
beneficiaries, executors, administrators, successors,
assigns and anyone claiming through or under any of the
foregoing, agrees to, and does, remise, release and forever
discharge the Company and its subsidiaries and affiliates,
each of their shareholders, directors, officers, employees,
agents and representatives, and its successors and assigns
(collectively, the "Company Released Persons"), from any and
all matters, claims, demands, damages, causes of action,
debts, liabilities, controversies, judgments and suits of
every kind and nature whatsoever, foreseen or unforeseen,
known or unknown, which have arisen or could arise from
matters which occurred prior to the date of this Release,
which matters include without limitation: (i) the matters
covered by the Severance Agreement and this Release, (ii)
Employee's employment, and/or termination from employment
with the Company, and (iii) any claims which might otherwise
arise in the future as a result of arrangements or
agreements in effect as of the date of this Release or the
continuance of such arrangements and agreements.
b. Employee, for and on behalf of himself and his heirs,
beneficiaries, executors, administrators, successors,
assigns, and anyone claiming through or under any of the
foregoing, agrees that he will not file or otherwise submit
any charge, claim, complaint, or action to any agency,
court, organization, or judicial forum (nor will Employee
permit any person, group of persons, or organization to take
such action on his behalf) against any Company Released
Person arising out of any actions or non-actions on the part
of any Company Released Person arising before the date of
this Release or any action taken after the date of this
Release pursuant to the Severance Arrangement. Employee
further agrees that in the event that any person or entity
should bring such a charge, claim, complaint, or action on
his behalf, he hereby waives and forfeits any right to
recovery under said claim and will exercise every good faith
effort to have such claim dismissed.
c. The charges, claims, complaints, matters, demands,
damages, and causes of action referenced in Sections 2(a)
and 2(b) include, but are not limited to: (i) any breach of
an actual or implied contract of employment between Employee
and any Company Released Person, (ii) any claim of unjust,
wrongful, or tortuous discharge (including any claim of
fraud, negligence, retaliation for whistleblowing, or
intentional infliction of emotional distress), (iii) any
claim of defamation or other common law action, or (iv) any
claims of violations arising under the Civil Rights Act of
1964, as amended, 42 U.S.C. 2000e et seq., the Age
Discrimination in Employment Act, 29 U.S.C. 621 et seq.,
the Americans with Disabilities Act of 1990, 42 U.S.C.
12101 et seq., the Fair Labor Standards Act of 1938, as
amended, 29 U.S.C. 201 et seq., the Rehabilitation Act of
1973, as amended, 29 U.S.C. 701 et seq., or of the Missouri
Human Rights Act, 213.000 R.S. Mo. et seq., the Missouri
Service Letter Statute, 209.140 R.S. Mo. or any other
relevant federal, state, or local statutes or ordinances, or
any claims for pay, vacation pay, insurance, or welfare
benefits or any other benefits of employment with any
Company Released Person arising from events occurring prior
to the date of this Release other than those payments and
benefits specifically provided herein.
d. This Release shall not affect Employee's right to any
governmental benefits payable under any Social Security or
Worker's Compensation law now or in the future.
3. Release of Benefit Claims. Employee, for and on behalf
of himself and his heirs, beneficiaries, executors,
administrators, successors, assigns and anyone claiming through
or under any of the foregoing, further releases and waives any
claims for pay, vacation pay, insurance or welfare benefits or
any other benefits of employment with any Company Released Person
arising from events occurring prior to the date of this Release
other than claims to the payments and benefits specifically
provided for in the Severance Agreement.
4. Revocation Period; Knowing and Voluntary Agreement.
a. Employee acknowledges that he was given a copy of this
Agreement when the Severance Agreement was executed and he,
therefore, has been given a period of at least forty-five
(45) days to consider whether or not to accept this
Agreement. Furthermore, Employee may revoke this Agreement
for seven (7) days following its execution.
b. Employee represents, declares and agrees that he
voluntarily accepts the payments described above for the
purposes of making a full and final compromise, adjustment
and settlement of all potential claims hereinabove
described. Employee hereby acknowledges that he has been
advised of the opportunity to consult an attorney and that
he understands the Release and the effect of signing the
Release.
5. Severability. If any provision of this Release or the
application thereof to any person or circumstance shall to any
extent be held to be invalid or unenforceable, the remainder of
this Release and the application of such provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby, and each provision
of this Release shall be valid and enforceable to the fullest
extent permitted by law.
6. Headings. The headings in this Release are inserted
for convenience of reference only and shall not in any way affect
the meaning or interpretation of this Release.
7. Counterparts. This Release may be executed in one or
more identical counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the
same instrument.
8. Entire Agreement. This Release and Related Severance
Agreement constitutes the entire agreement of the parties in this
matter and shall supersede any other agreement between the
parties, oral or written, concerning the same subject matter.
9. Governing Law. This Release shall be governed by, and
construed and enforced in accordance with, the laws of the State
of Missouri, without reference to the conflict of laws rules of
such State.
IN WITNESS WHEREOF, Employee and the Company have executed
this Release as of the day and year first above written.
XXXXX GROUP, INC.
By:-----------------------------
EMPLOYEE
By:-----------------------------
Xxxx X. Xxxx
