EXHIBIT 10.9
June 28, 2001
Xx. Xxxxx X. Xxxxxx
0000 Xxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Re: SEPARATION AGREEMENT
Dear Xxxxx:
This letter, upon your signature, will constitute the entire agreement
("Agreement") between you and Xxxxx & Xxxxx Company ("G&E"), and all of its
respective subsidiaries, divisions, affiliates, and related entities
(collectively, the "Company") regarding the termination of your employment with
the Company.
1. You hereby resign as an officer of G&E and as an officer and director of
all subsidiaries of G&E effective June 8, 2001, and you agree to resign
as an employee of the Company, effective June 30, 2001 (your "Termination
Date"), and the Company hereby accepts such resignations. Between the
date of this Agreement and your Termination Date, you will essentially
assist the Company in transitioning your duties and responsibilities to
other persons at G&E.
2. (a) Because you and the Company have an at-will employment
relationship, you acknowledge that your employment can be
terminated at any time, with or without notice and without a
reason. The Company has adopted the Executive Incentive Bonus and
Severance Plan effective June 1, 2000 (the "Bonus and Severance
Plan"). Pursuant to the Bonus and Severance Plan, after the
Effective Date (see Section 14 below) you will receive the
following:
(i) On July 15, 2001, a lump sum in cash equal to Seventy-Two
Thousand One Hundred Eighty-Eight Dollars ($72,188)
representing fifty-five percent (55%) of your calendar year
2001 target bonus pursuant to the Executive Incentive
Compensation Program for Calendar Year 2001 (the "Target
Bonus"), pro-rated to June 30, 2001; and
(ii) Cash payments of Twenty-One Thousand Eight Hundred
Seventy-Five Dollars ($21,875.00) per month, for twelve
months, payable semi-monthly, or an aggregate total of Two
Hundred Sixty-Two Thousand Five Hundred Dollars ($262,500),
representing one year's base salary; and
(iii) Twenty-Five Thousand Twenty-Five and No/100 Dollars
($25,025.00), representing the annual equivalent of your
Company benefits for healthcare, dental, vision, life
insurance, disability coverages, and perquisites for the
twelve month period after the Termination Date, which has
been grossed up to cover your income taxes, payable over a
period of twelve (12) months, semi-monthly;
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all of the above to be reduced by withholding taxes and
customary payroll deductions.
(b) In addition, pursuant to the Bonus and Severance Plan, effective
as of the date of Board approval, the Company shall cancel all
options to purchase stock in the Company that you have (whether or
not then vested) as of June 30, 2001. The number of options
cancelled total one hundred six thousand two hundred ninety-one
(106,291). The Company shall purchase such options for
Twenty-Three Thousand Four Hundred Sixty-Eight and 25/100 Dollars
(23,468.25) (the "Option Payment"). The Option Payment shall be
made to you on or about July 15, 2001 and after the Effective
Date.
(c) In addition, you will be paid your accrued but unused vacation
time pay, less withholding taxes and customary payroll deductions,
through and on your Termination Date.
3. Upon execution of this Agreement, you will no longer be an Executive
Officer of the Company and will thereafter no longer be covered by or
eligible to receive any compensation or benefits pursuant to the
Executive Change of Control Plan, adopted by the Company Board of
Directors on May 10, 1999, as amended (the "CIC Plan"). In consideration
of an extension of your Termination Date to June 30, 2001 and your
acceptance of this Agreement, and provided you have fulfilled your other
obligations set forth in this Agreement, after the Effective Date the
Company shall provide you with the following benefits:
a) up to Ten Thousand Dollars ($10,000) of outplacement benefits from
the company of your choice, upon receipt by the Company of bills
for same by December 31, 2001; and
b) live voicemail until June 31, 2001; and
c) you may keep your portable computer after the Company shall have
deleted therefrom, confidential Company software and information.
4. Except as specifically provided in this Agreement, you hereby abrogate
and repudiate any and all claims you have under the Bonus and Severance
Plan, the CIC Plan, the acknowledgment agreements executed by you in
respect of said plans, any and all other written or oral agreements
between you and the Company regarding the terms of your employment and
any and all compensation to be paid to you by the Company.
5. After your Termination Date, you will no longer be covered by or eligible
for any benefits under any Company employee benefit plans in which you
currently participate. After your Termination Date, you will receive by
separate cover information regarding your rights to health insurance
continuation (COBRA) and any 401(k) PLUS plan benefits. To the extent
that you have such rights, nothing in this Agreement will impair those
rights.
6. (a) In exchange for the compensation to be provided to you herein, to
which you are not otherwise entitled except pursuant to this
Agreement, you agree to and hereby do waive and release, and
promise never to assert, any claims of any kind or nature
whatsoever, in law or equity, known or unknown, direct and
indirect, that you have against the Company, and its respective
predecessors, subsidiaries, affiliates, associates, owners,
divisions, representatives, related entities, officers, directors,
shareholders, agents,
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partners, insurers, employee benefit plans (and their trustees,
administrators and other fiduciaries), attorneys, employees,
heirs, successors, and assigns (collectively, the "Released
Parties"), arising from or related to your employment, the
transition of your employment, and the termination of your
employment with the Company.
The claims that you are waiving, releasing and promising not to
assert include, but are not limited to, claims arising under
federal, state and local statutory and common law, such as the Age
Discrimination in Employment Act, as amended, the Americans with
Disabilities Act of 1990, the Family Medical Leave Act of 1993,
Title VII of the Civil Rights Act of 1964, as amended, the Equal
Pay Act of 1963, as amended, the Civil Rights Act of 1866, as
amended, the common law of contract and tort, and any other laws
and regulations relating to employment, or employment
discrimination and/or the payment of wages or benefits.
(b) In consideration of the foregoing and the execution of the
Agreement by you, the Company and the Released Parties hereby
waive and release and promise never to assert any claims of any
kind or nature whatsoever, in law or equity, known or unknown,
direct or indirect that the Company (and/or any of the Released
Parties) might have against you (and including, without
limitation, your partners, associates, agents, representatives,
related entities and/or affiliates, contractors and/or your
attorneys).
7. (a) You understand and agree that the claims that you are waiving,
releasing and promising never to assert include claims that you
now know or have reason to know exist, as well as those that you
do not presently have any reason to know, believe or suspect that
you have, including unknown, unforeseen, unanticipated and
unsuspected injuries, damages, loss and liability and the
consequences thereof. By signing this Agreement you agree that you
are expressly waiving any provision of any state, federal or local
statute, and common-law doctrine, providing, in substance, that a
release shall not extend to claims, demands, injuries or damages,
loss or liability, which are unknown or unsuspected to exist, by
the person making the release, when s/he is making the release.
(b) The Company (and the Released Parties) agree and understand that
the claims that they are waiving, releasing and promising never to
assert include claims that they now know or have reason to know
exist, as well as those that they do not presently have any reason
to know, believe or suspect that they may have, including unknown,
unforeseen, unanticipated and unsuspected injuries, damages, loss
and liability and the consequences thereof. By signing the
Agreement the Company (on behalf of itself and the Released
Parties) agrees that the Company (and the Released Parties) are
expressly waiving any provision of any state, federal or local
statute, and common law doctrine, providing in substance, that a
release shall not extend to claims, demands, injuries or damages,
loss or liability, which are unknown or unsuspected to exist by
the party making the release, when it/they are making the release.
8. You agree that you will not voluntarily, and without compulsion of legal
process, assist or encourage others to assert claims or to commence or
maintain litigation against the Released Parties. You also agree not to
take any action or make any statement which disparages or is intended to
disparage the Released Parties or their reputations.
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9. You agree to return to the Company, by your Termination Date, any and all
information and materials, whether in paper, magnetic, electronic or
other form, that you have about the Company's practices, procedures,
trade secrets, finances, client lists, or marketing of the Company's
services. You will promptly execute any and all notices of resignation
from any Company position as requested by the General Counsel. You will
take no further action to bind or obligate the Company. You will
immediately turn in your corporate American Express card.
10. You agree that you will not, unless required by law or otherwise
permitted by express written permission from or request by the Company,
disclose to anyone any information regarding the following:
a. Any non-public information regarding the Company, including its
practices, procedures, trade secrets, finances, client lists, or
marketing of the Company's services.
b. The terms of this Agreement, except that you may disclose this
information to members of your immediate family and to your
attorney, accountant or other professional advisor(s) to whom you
must make the disclosure in order for them to render professional
services to you. You will instruct them, however, to maintain the
confidentiality of this information just as you must, and any
breach of this obligation of confidentiality by such family member
or professional advisor(s) shall be deemed to be a breach by you.
If required to disclose the terms of this Agreement by law, you
shall provide the Company with sufficient notice prior to any such
disclosure, including the basis for the legal requirement to
disclose, to allow the Company to seek a protective order
preventing the disclosure.
11. You agree that, commencing on the Effective Date, and thereafter for a
period of six months after your Termination Date, you shall not, directly
or indirectly, on behalf of yourself or any other person or entity
solicit for employment any then current executive, employee or
independent contractor of the Company, or request or induce any then
current executive, employee or independent contractor of the Company to
leave the employ of, or association with, the Company. Notwithstanding
the above, you may, however, offer to hire, and hire, Xxxxxxxxx
Xxxxxxxxx.
12. Except as required by law or administrative agency or stock exchange
rules, the Company will keep the terms of this Agreement confidential. It
is expected that the Company will file this Agreement as an exhibit to
its SEC filings.
13. In the event that you breach any of your obligations under this Agreement
or as otherwise imposed by the law, the Company will be entitled to
recover the benefits paid under the Agreement and to obtain all other
relief provided by law and equity. This Agreement will be governed by the
law of the State of Illinois without regard to principles of conflicts of
laws thereof.
14. To accept the Agreement, please date and sign this Agreement and return
it, either by personal delivery or by mail, to XXXXX & XXXXX COMPANY, c/o
Xxxxxx X. Xxxxxx, General Counsel, 0000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, XX 00000. An extra original for your records is enclosed.
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A. YOU SHOULD CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT.
B. YOU HAVE UP TO 21 DAYS FROM THE DATE YOU RECEIVE THIS AGREEMENT TO
ACCEPT THE TERMS OF THIS AGREEMENT, ALTHOUGH YOU MAY ACCEPT IT AT
ANY TIME WITHIN THOSE 21 DAYS.
C. ONCE YOU ACCEPT THIS AGREEMENT, YOU WILL HAVE SEVEN (7) DAYS AFTER
SIGNING TO REVOKE YOUR ACCEPTANCE. TO REVOKE, YOU MUST SEND,
EITHER BY PERSONAL DELIVERY OR BY MAIL, TO THE GENERAL COUNSEL AS
INDICATED ABOVE, A WRITTEN STATEMENT OF REVOCATION. IF YOU DO NOT
REVOKE, THE EIGHTH DAY AFTER THE DATE OF YOUR ACCEPTANCE WILL BE
THE "EFFECTIVE DATE" OF THIS AGREEMENT.
15. Nothing in this Agreement shall constitute an admission of liability or
wrongdoing by the Company or by you. This Agreement shall not be binding
on the Company unless and until it is signed, in unaltered form, and
returned to the Company as provided above.
16. In the event that any one or more of the provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, then to the maximum extent permitted by
law, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement.
17. This Agreement represents the sole and entire agreement between you and
the Company regarding the transition and then termination of your
services as Executive Vice President and supersedes any and all previous
verbal or written promises, representations, agreements, negotiations
and/or discussions, if any, between you and the Company with respect to
the subject matters covered herein. This Agreement cannot be terminated
or changed except in writing by you and a duly authorized representative
of G&E.
18. All notices, requests, demands and other communications which are
required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when received if personally
delivered; when transmitted if transmitted by telecopy, electronic or
digital transmission method, with electronic confirmation; when received,
if sent for next day delivery to a domestic address by recognized
overnight delivery service (E.G., Federal Express); and upon receipt, if
sent by certified or registered mail, return receipt requested. In each
case notice shall be sent to:
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If to you, addressed to:
Xxxxx X. Xxxxxx
0000 Xxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
If to Xxxxx & Xxxxx Company, addressed to:
Xxxxx & Xxxxx Company
0000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others.
XXXXX & XXXXX COMPANY
BY:/s/ XXXXX X. XXXXXXXX
--------------------------------
Xxxxx X. Xxxxxxxx
Dated: June 28, 2001 President & Chief Executive Officer
By signing this Agreement, I acknowledge that I have had the opportunity to
review it carefully with an attorney of my choice, that I understand the terms
of the agreements contained therein, and that I voluntarily agree to them.
Dated: June 30, 2001 /s/ XXXXX X. XXXXXX
-----------------------------------
Xxxxx X. Xxxxxx
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