SEPARATION AGREEMENT
This Separation Agreement, dated October 31, 1996, between Xxxxxx Group
Inc. ("Xxxxxx"), Axe-Houghton Associates, Inc. ("Axe-Houghton"),
0 Xxxxxxxxxxxxx Xxxxx, Xxx Xxxxx, Xxx Xxxx 00000, and J. Xxxxxxx Xxxxxx, 000
Xxxxx Xxxx, Xxxxxxxxxxx, Xxx Xxxx 00000 ("Xxxxxx").
WHEREAS, Xxxxxx is the Chief Investment Officer and Chairman of the Board
of Directors of Axe-Houghton; and
WHEREAS, Xxxxxx is a member of the Board of Directors of Xxxxxx and the
Board of Directors of Axe-Houghton; and
WHEREAS, Xxxxxx has advised Xxxxxx and Axe-Houghton that he wishes to
resign his positions and directorships in order to be free to pursue other
ventures including, possibly, an association with Matrix Asset Advisors, Inc.;
and
WHEREAS, Axe-Houghton and Xxxxxx have agreed to accept Xxxxxx'x
resignations as Chief Investment Officer and Chairman of the Board of
Directors of Axe- Houghton and as a member of the Boards of Directors of
Xxxxxx and Axe-Houghton effective October 31, 1996; and
WHEREAS, the parties wish to memorialize the technical terms of the
separation.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Separation Agreement and other good and valuable consideration, the
parties agree as follows:
1. Axe-Houghton and Xxxxxx accept Xxxxxx'x resignation from his positions
as Chief Investment Officer and Director of Axe-Houghton and his resignation
as a director of Xxxxxx, all effective on October 31, 1996. Such resignation
is not a result of a disagreement with Xxxxxx or Axe-Houghton on any matter
relating to its operations, policies or practices.
2. In return for Xxxxxx'x general release, which is set forth below, Axe-
Houghton agrees to pay to Xxxxxx on January 8, 1997, the amount of $415,000,
less lawful deductions, which sum Xxxxxx acknowledges is in addition to
anything to which he is now, or otherwise may be, entitled, and which is not
subject to any right of set-off.
The foregoing voluntary payment is given in return for Xxxxxx'x
agreement, which is hereby given, to discharge and release Axe-Houghton,
Hoenig, any of their affiliated entities and any of their officers, directors,
employees, or agents, or their heirs, executors, administrators, employees,
agents, representatives, successors, and assigns from all actions, causes of
action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims, and
demands whatsoever, in law, admiralty, or equity, which against them, Xxxxxx
and his heirs, executors, administrators, successors, and assigns ever had,
now have or hereafter can, shall or may, have for, upon, or by reason of any
matter, cause or thing whatsoever from the beginning of the world to the day
of the date of this release. The claims being released include, but are not
limited to, claims under the New York State Human Rights Law, the Age
Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964,
the Civil Rights Act of 1991, the Federal Fair Labor Standards Act, the New
York State Labor Law, the Americans With Disabilities Act, the Employee
Retirement Income Security Act of 1974, and all other federal, state, and
local discrimination, labor or wage laws, claims for breach of contract,
wrongful discharge, and for negligence or any intentional torts, and claims
under any other contract, statute, regulation, agreement, duty, or otherwise.
This Release shall not operate to release any party from its obligations under
this Separation Agreement and any rights or obligations Xxxxxx may have under
any pension or profit-sharing plan.
3. Axe-Houghton and Xxxxxx and all of their affiliated entities and all
of their successors and assigns discharge and release Xxxxxx from all actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, extents, executions,
claims, and demands whatsoever, in law, admiralty, or equity, which against
Xxxxxx they or their successors and assigns ever had, now have or hereafter
can, shall or may, have for, upon, or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the day of the date of this
release. The claims being released include, but are not limited to, claims
under the New York State Human Rights Law, the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of 1964, the Civil Rights
Act of 1991, the Federal Fair Labor Standards Act, the New York State Labor
Law, the Americans With Disabilities Act, the Employee Retirement Income
Security Act of 1974, and all other federal, state, and local discrimination,
labor or wage laws, claims for breach of contract, wrongful discharge, and for
negligence or any intentional torts, and claims under any other contract,
statute, regulation, agreement, duty, or otherwise. This Release shall not
operate to release any party from their or his obligations under this
Separation Agreement, and any rights or obligations Xxxxxx may have under
pension or profit-sharing plans.
4. By entering into this Separation Agreement, Axe-Houghton and Xxxxxx
and Xxxxxx specifically deny that Axe-Houghton, Hoenig, and Xxxxxx or their
representatives, agents, affiliated entities or their respective officers,
directors, or employees violated the New York Human Rights Law, the Age
Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964,
the Civil Rights Act of 1991, the Federal Fair Labor Standards Act, the New
York State Labor Law, the Americans With Disabilities Act, The Employee
Retirement Income Security Act of 1974, and any other federal, state, and
local discrimination or wage laws, or that they have any liability for breach
of contract, wrongful discharge, or for any claims of negligence or for
intentional torts or claims under any other contract, statute, regulation,
agreement or duty.
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5. Xxxxxx hereby confirms its obligation under Article VIII, Section 7,
paragraph (g) of the Amended and Restated By-Laws (the "By-Laws") of Xxxxxx to
continue the indemnification and advancement of expenses provided by, or
granted pursuant to, such Section as it relates to Xxxxxx. For purposes of
Section 7 of Article VIII of the By-Laws, Xxxxxx acknowledges and agrees that
Xxxxxx was serving as a director and officer of Axe-Houghton at the request of
Xxxxxx.
6. The parties agree that the press release concerning this Separation
Agreement, as attached hereto, has been agreed upon by Axe-Houghton, Hoenig,
and Xxxxxx, and other than such press release, the terms of this Separation
Agreement shall be confidential. Notwithstanding the foregoing, the parties
acknowledge and agree that Xxxxxx and Axe-Houghton may be required to disclose
or describe this Separation Agreement and its terms, including filing a copy
hereof with the Securities and Exchange Commission, in either complying with
its reporting obligations under applicable laws or the rules of various
self-regulatory bodies, or in response to a regulatory inquiry, subpoena,
compulsory process, or mandate of a court or administrative tribunal. In the
event that any party to this Separation Agreement should be confronted with a
demand for disclosure of any of its terms pursuant to subpoena, compulsory
process, or mandate of a court or administrative tribunal, he or it will
immediately inform each other party of the demand so that any party may take
appropriate steps to protect his or its interests. Xxxxxx may disclose the
terms of this Separation Agreement to his legal and financial advisors and to
members of his immediate family.
7. This Separation Agreement supersedes all other agreements, term
sheets, and written or oral agreements, understandings of any type between the
parties except that (a) Xxxxxx'x obligations under paragraphs 7, 8, 9, and
13(c) of the Employment Agreement dated August 31, 1994, between Axe-Houghton
and Xxxxxx (the "Employment Agreement") shall remain in full force and effect,
and (b) Xxxxxx'x obligation under paragraph 6(c) of the Employment Agreement
shall remain in effect until October 31, 1997.
8. In the event that Xxxxxx may be requested or required to assist Xxxxxx
or Axe-Houghton pursuant to paragraph 13(c) of the Employment Agreement, he
will be paid an hourly fee of $250.00 and reimbursed for the reasonable costs
and expenses incurred in rendering any such assistance. Such payments will be
made monthly.
9. If any of the provisions of this Separation Agreement, including the
covenants contained in paragraph 7 hereof, or any part thereof, is hereafter
construed to be invalid or unenforceable, the same shall not affect the
remainder of the Separation Agreement, which shall be given full effect
without regard to the invalid portions, and the parties agree that the court
making such determination shall have the power and shall be requested to
reduce the duration and/or area covered by this Separation Agreement only to
the extent necessary to make this Separation Agreement enforceable and, in its
reduced form, such provision shall then be enforceable.
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10. By executing this Separation Agreement, Xxxxxx acknowledges that he
has been provided an opportunity to consult with an attorney or other advisor
of his choice regarding the terms of this Separation Agreement, that he has
been given twenty-one (21) days in which to consider whether he wishes to
enter into this Separation Agreement, and that he has elected to enter into
this Separation Agreement knowingly and voluntarily. Xxxxxx may revoke his
assent to this Separation Agreement within seven (7) days of its execution by
him (the "Revocation Period"), in which event the Agreement shall be null and
void.
11. This Separation Agreement shall be governed and construed in
accordance with the laws of the State of New York without reference to the
conflict of laws provisions thereof.
This Separation Agreement sets forth the entire agreement between the
parties and it may not be changed, altered, or modified or amended except in a
writing signed by all of the parties hereto.
Dated: New York, New York
October 31, 1996
AXE-HOUGHTON ASSOCIATES, INC.
By:
--------------------------------
Xxxx X. Xxxx
President
XXXXXX GROUP INC.
By:
---------------------------------
Xxxxxxx X. Xxxxxxxxxx
Chief Executive Officer
---------------------------------
J. Xxxxxxx Xxxxxx
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