EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made this 2nd day of May, 1995, by and
between Xxxx Atlantic Corporation ("Xxxx Atlantic") and Xxxxx X. Xxxxxx (the
"Executive").
WHEREAS, Xxxx Atlantic seeks to retain the services of the Executive
and to provide for an efficient transition upon any change in the Chief
Executive Officer of Xxxx Atlantic;
WHEREAS, the Executive is willing to remain in the employ of Xxxx
Atlantic upon the following terms and conditions; and
WHEREAS, Xxxx Atlantic and the Executive wish to set forth their
agreement as to the terms and conditions upon which the Executive's employment
will continue.
NOW, THEREFORE, for good and valuable consideration, including the
compensation and benefits recited below, the Executive and Xxxx Atlantic hereby
agree as follows:
1. Definitions:
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(a) Effective Date shall mean the announced effective date of the
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election of any individual to succeed the person who, on the date of
this Agreement, is the incumbent Chief Executive Officer of Xxxx
Atlantic.
(b) Xxxx Atlantic Companies shall mean Xxxx Atlantic and each
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corporate subsidiary and other affiliated company in which Xxxx
Atlantic directly or indirectly owns a fifty percent or greater
interest.
(c) Board shall mean the board of directors of Xxxx Atlantic.
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(d) Chief Executive Officer shall mean the Chief Executive
-----------------------
Officer of Xxxx Atlantic, as elected and serving from time to time.
(e) Committed Employment Period shall mean the period commencing
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on the date of this Agreement and continuing until the earlier of
the second anniversary of the Effective Date or July 1, 1998.
(f) Release shall mean a legal release in the form attached to
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this Agreement as Exhibit A, which shall be signed by the Executive at
the time of his retirement from Xxxx Atlantic as a condition of
receiving any and all pension and severance benefits provided under
the terms of this Agreement.
2. Termination of this Agreement: In the event that the Executive
-----------------------------
is elected Chief Executive Officer as of the Effective Date, this Agreement
shall then terminate and shall be of no further force or effect.
3. Xxxx Atlantic Obligations during the Committed Employment Period:
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During the Committed Employment Period:
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Employment Agreement Page 1
(a) Xxxx Atlantic shall continue to employ the Executive as a Xxxx
Atlantic officer with the title of Vice Chairman, with duties of a type and
level appropriate to such a title;
(b) Xxxx Atlantic shall compensate the Executive at a Salary Grade not
less than 37, and, to the extent not otherwise modified by the terms of
this Agreement, the Executive shall be eligible to participate in all of
the benefit and compensation plans, and the programs of perquisites,
applicable to similarly-situated Senior Managers of Xxxx Atlantic, as those
plans and programs may be amended from time to time;
(c) The Board shall nominate the Executive for election as a director
at each annual meeting of shareowners of Xxxx Atlantic which occurs during
the Committed Employment Period; and
(d) In the event that the Executive does not become Chief Executive
Officer on the Effective Date, Xxxx Atlantic shall, as of the Effective
Date, promote the Executive to Salary Grade 38, and shall for the remainder
of the Committed Employment Period deliver compensation, benefits and
perquisites to the Executive commensurate with that Salary Grade,
including, without limitation, annual base salary increases not less than
one-third of the amount by which the mid-point of Salary Grade 38 exceeds
the Executive's initial salary upon promotion to that Salary Grade.
(e) In the event that Xxxxxxxx X. Xxxxxx, Xx. is elected Chief
Executive Officer as of the Effective Date, the Executive will be elected
Vice Chairman and Chief Operating Officer of Xxxx Atlantic effective as of
the Effective Date, and Xxxx Atlantic shall retain the Executive in that
position, with duties commensurate with that title, through the end of the
Committed Employment Period.
4. Obligations of the Executive during the Committed Employment Period:
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During the Committed Employment Period, the Executive shall have the following
obligations and duties.
(a) The Executive shall continue to fully and faithfully perform his
duties and responsibilities (i) as a director, so long as he is elected and
serving, and (ii) as an officer, reporting only to the Chief Executive
Officer and the Board.
(b) The Executive shall serve in such executive capacities, titles and
authorities with respect to the Xxxx Atlantic Companies as the Board or the
CEO may from time to time prescribe, and the Executive shall perform all
duties incidental to such positions, shall cooperate fully with the Board
and the CEO, and shall work cooperatively with the other officers of the
Xxxx Atlantic Companies.
(c) The Executive shall continue to diligently devote his entire
business skill, time and effort to the affairs of the Xxxx Atlantic
Companies in accordance with the duties assigned to him that are not
inconsistent with the terms hereof, and shall perform all such duties, and
otherwise conduct himself, in a manner reasonably calculated in good faith
by him to promote the best interests of the Xxxx Atlantic Companies. Prior
to the Executive's retirement from Xxxx Atlantic, except to the extent
specifically permitted by the Chief Executive Officer or the Board and
except as set forth below, the Officer shall not, directly or indirectly,
render any services of a
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Employment Agreement Page 2
business, commercial or professional nature to any other person or
organization other than a Xxxx Atlantic Company or a venture in which a
Xxxx Atlantic Company has a financial interest, whether or not the services
are rendered for compensation. However, the Executive is not prohibited
from serving on committees or boards of charitable, educational, civic or
other nonprofit organizations, so long as such service does not interfere
with his full-time responsibilities to Xxxx Atlantic.
(d) The failure of the Executive to perform his obligations pursuant
to paragraphs (a) through (c) above shall be excused when such failure is
on account of the Executive's disability within the meaning of the
applicable disability benefit plans in which the Executive participates
from time to time.
5. Retirement. If the Executive is not elected Chief Executive Officer
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as of the Effective Date, the Executive hereby agrees, at any time after the
last day of the Committed Employment Period, upon request of the then-current
Chief Executive Officer or the Board, to retire from active service with Xxxx
Atlantic, effective as of the date specified in the request. The parties
acknowledge that Xxxx Atlantic shall have the right to cause the Executive to be
retired and removed from active service as of any date after the last day of the
Committed Employment Period. On the date of such retirement, as a condition of
eligibility to receive the pension and severance benefits described in Sections
6 and 7 of this Agreement, the Executive shall sign and deliver the Release and
shall not revoke his signature.
6. Retirement Pension Benefits.
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(a) Eligibility for Waiver of Early Retirement Pension Discount. If a
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person other than the Executive is elected Chief Executive Officer as of
the Effective Date, and if the Executive thereafter completes the Committed
Employment Period by remaining in active service with Xxxx Atlantic in
accordance with the terms of this Agreement, the Executive shall at any
time thereafter be entitled, subject to signing and delivering the Release,
to retire with a two-year waiver of any applicable early retirement pension
discount under the terms of the Xxxx Atlantic Senior Management Retirement
Income Plan or any successor to that plan which applies to Senior Managers,
as that plan may be amended from time to time ("RIP"), as more fully
described in the following paragraph. The parties acknowledge that the
pension enhancement described in this Section is part of the consideration
given by Xxxx Atlantic in exchange for the Release and the non-compete and
proprietary information covenants granted by the Executive under Sections
10 and 11 of this Agreement.
(b) Calculation of Waiver of Early Retirement Pension Discount. If
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the Executive qualifies for the waiver of early retirement pension
discount, as described in the previous paragraph, the Executive's target
pension under RIP shall be equal to the greater of:
(i) The target pension determined under the applicable pension
formula under RIP which is in effect and applicable to the Executive
at the time of the Executive's retirement, after adding two additional
years to the Executive's age at the time of retirement for purposes of
determining the amount of any applicable early retirement discount
(but not for any other purpose under RIP); or
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Employment Agreement Page 3
(ii) The target pension which would have been applicable to the
Executive if he had retired at any time during the Committed
Employment Period, under the terms of any early retirement incentive,
pension window, or other special provision of RIP which may then have
been in effect but which is no longer in effect at the time of the
Executive's actual retirement. In such a case, the calculation of the
RIP enhanced benefit shall not be subject to further supplementation
by the discount waiver provisions of the prior paragraph.
7. Further Consideration for Non-Compete Agreement:
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(a) If a person other than the Executive is elected Chief Executive
Officer as of the Effective Date, and if the Executive thereafter completes
the Committed Employment Period by remaining in active service with Xxxx
Atlantic in accordance with the terms of this Agreement, then, subject to
the Executive signing and delivering the Release, Xxxx Atlantic shall pay
the Executive a cash severance payment, as described in the following
paragraph, upon the Executive's retirement at any time thereafter. The
parties acknowledge that the severance payment described in this Section is
part of the consideration given by Xxxx Atlantic in exchange for the
Release and the non-compete and proprietary information covenants granted
by the Executive under Sections 10 and 11 of this Agreement.
(b) The severance benefit described in the previous paragraph shall be
equal to two times the sum of (i) the annualized amount of the Executive's
then-current base salary, plus (ii) the greatest of (A) the value of the
Executive's most recent award of cash and deferred stock under the Senior
Management Short Term Incentive Plan or any successor to that plan (the
"STIP"), or (B) the value of the most recent award of cash and deferred
stock under the STIP for the Executive's salary grade without taking into
account any individual performance adjustments to the award, or (C) 150% of
the target STIP award for the Executive's salary grade as of the date of
retirement. This cash separation benefit shall be payable in one
installment, not later than 30 days after the termination of employment
date, subject to the Executive's continuing compliance with the terms of
this Agreement.
8. Retirement or Discharge for Cause during Committed Employment Period.
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(a) In the event that the Executive voluntarily resigns or retires for
any reason (except a "constructive discharge", as defined in Section 9(c)),
or is discharged by Xxxx Atlantic for "cause" (as hereinafter defined),
prior to the end of the Committed Employment Period, the Executive shall
forfeit any and all rights to receive the special supplementary pension
benefits and the severance benefits set forth in Sections 6 and 7 of this
Agreement, but shall otherwise be eligible to receive any and all
compensation and benefits for which a similarly-situated retiring Senior
Manager would be eligible under the applicable provisions of the
compensation and benefit plans, as those plans may be amended from time to
time. In such event, the Executive shall be subject to the terms of the
covenant not to compete, as described in Section 10 of this Agreement, for
a period which shall extend from the actual date of retirement through the
second anniversary of the end of the Committed Employment Period.
(b) For purposes of this Agreement, the term "cause" shall mean a
violation of law (other than a traffic violation or other minor civil
offense), or behavior that Xxxx
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Employment Agreement Page 4
Atlantic concludes amounts to a material breach of any company policy or
provision of the Employee Code of Business Conduct, and including, by way
of example: dishonesty; working outside the Xxxx Atlantic Companies in
violation of Section 4(c) or 10 of this Agreement in competition with any
Xxxx Atlantic Company; other conduct that poses a material conflict of
interest; revealing confidential or proprietary information of any Xxxx
Atlantic Company in violation of Section 11 of this Agreement; or a
substantial and deliberate abuse of the voucher or expense reimbursement
processes of any Xxxx Atlantic Company.
9. Certain Involuntary Terminations of Employment:
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(a) Consequences of Certain Involuntary Terminations. Except in the case
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of a discharge for cause, in the event that Xxxx Atlantic involuntarily
discharges the Executive, or the Executive is "constructively discharged" (as
hereinafter defined), prior to the end of the Committed Employment Period, then
the Executive shall be entitled to receive, as liquidated damages, subject to
signing and delivering the Release, an amount of cash equal to the compensation
and benefits which he would have been entitled to receive had Xxxx Atlantic
fulfilled its obligation to employ the Executive in accordance with the
provisions of Section 3 of this Agreement, calculated and paid in accordance
with paragraph (b) of this Section. In such a case, in addition to the
liquidated damages described in the previous sentence, subject to signing and
delivering the Release, the Executive shall be entitled to receive the benefits
set forth in Sections 6 and 7 of this Agreement, but calculated as though the
Executive had actually remained in active service with Xxxx Atlantic, earning
the compensation described in Section 3 of this Agreement, until the end of the
Committed Employment Period, with the payment of the cash separation benefit
under Section 7 to be made within 30 days after the termination of employment
date. Under the circumstances described in this paragraph, the Executive shall
be subject to the non-compete covenants of this Agreement through the period
ending on the second anniversary of the date of termination of the Executive's
employment.
(b) Calculation and Payment of Liquidated Damages. The liquidated damages
---------------------------------------------
described in the first sentence of the previous paragraph shall consist of all
five of the following items, but only the following items. All of the following
items of liquidated damages shall be subject to applicable withholding taxes.
Each payment contemplated by this subsection (b) shall be contingent upon the
absence, as of the time of such payment, of any knowing and material violation
by the Executive of any of the covenants contained in Sections 10 and 11.
(i) Salary: The liquidated damages shall be paid monthly in cash, in
an amount each month equal to the salary which would have been paid to
the Executive under Section 3 of this Agreement, assuming salary
adjustments annually at a percentage equal to the merit increase
budget percentage for Xxxx Atlantic Senior Managers.
(ii) Short-Term Incentives: The liquidated damages for foregone short-
term incentives under STIP shall be paid annually in cash, not later
than 30 days after the date on which incentives are awarded by Xxxx
Atlantic under the STIP for the prior year's performance, in an amount
equal to the value of the cash and deferred stock which the Executive
would have been entitled to receive under the STIP, without adjustment
for individual performance.
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Employment Agreement Page 5
(iii) Long-Term Incentives: The liquidated damages for foregone long-
term incentives shall be paid annually in cash, within 30 days of the
granting of stock options for the year, in an amount equal to the
Black-Scholes value of options which the Executive would have been
entitled to receive.
(iv) RIP Pension Benefits: The RIP target pension will be
recalculated after the completion of the Committed Employment Period
taking into account the liquidated damages under paragraphs (i) and
(ii) above as though they were earned as salary and short-term
incentives during a period of employment ending on the last day of the
Committed Employment Period, and (A) Xxxx Atlantic shall pay the
Executive a true-up payment based on said recalculation if the
Executive has elected a lump-sum payment of the benefit provided by
Section 6(a), and (B) if the Executive has elected a pension in the
form of an annuity, the Executive's RIP pension benefits thereafter
shall be based on said recalculation.
(v) Miscellaneous Benefits: The liquidated damages for all other
foregone benefits shall be paid monthly in an amount equal to the sum
of: (A) the BellFlex allowance that the Executive would have been
entitled to receive, plus (B) one-twelfth of the annual maximum
company matching contribution that the Executive would have been
eligible to receive if the Executive made the maximum contributions to
the Xxxx Atlantic Savings Plan then permitted by law.
(c) Constructive Discharge: The Executive shall be deemed to have
----------------------
been "constructively discharged" for purposes of this Agreement, if, in the
absence of conduct amounting to cause for discharge on the part of the
Executive, and without the Executive's express written consent, any of the
following events has occurred within 12 months prior to the Executive
electing to retire: (i) the Executive's status as a "Senior Manager" has
been revoked; (ii) the Executive's base recurring salary has been reduced
by more than 10%; (iii) the Executive has suffered a negative individual
performance adjustment which causes the Executive's short term award under
the STIP for a particular year to be reduced by 25% or more; or (iv) the
Executive's responsibilities have been substantially reduced in type or
scope, other than in a general reorganization of the management functions
of one or more Xxxx Atlantic Companies, with the result that the Executive
has materially less status and authority. Nothing in this Section 9(c)
shall limit or qualify the obligations of Xxxx Atlantic under Section 3 of
this Agreement, which are absolute.
10. Prohibition Against Competitive Activities:
------------------------------------------
(a) Prohibited Conduct by the Executive: During the period of the
-----------------------------------
Executive's employment with any Xxxx Atlantic Company, and for a period of
two years (or any longer period expressly provided under any applicable
provision of this Agreement) following the Executive's retirement or
termination of employment for any other reason from any and all Xxxx
Atlantic Companies, the Executive, without the prior written consent of the
Chief Executive Officer, shall not:
(i) personally engage in "Competitive Activities" (as defined in
paragraph 10(b)) within any geographic area in which any Xxxx Atlantic
Company is then engaged (or, at the time of the Executive's
termination of employment,
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Employment Agreement Page 6
had a board-approved business plan under which it planned to engage)
in such Competitive Activities;
(ii) work for, own, manage, operate, control or participate in
the ownership, management, operation or control of, or provide
consulting or advisory services to, any individual, partnership, firm,
corporation or institution engaged in Competitive Activities within
any geographic area described in Section 10(a)(i); provided, however,
that the Executive's purchase or holding, for investment purposes, of
securities of a publicly-traded company shall not constitute
"ownership" or "participation in ownership" for purposes of this
paragraph so long as the Executive's equity interest in any such
company is less than a controlling interest;
(iii) interfere with the relationship of any Xxxx Atlantic
Company with any of its employees, agents, representatives, suppliers
or vendors under contract, or joint venturers, where any such person
or entity cooperates with or supports a Xxxx Atlantic Company in its
performance of any Competitive Activities; or
(iv) directly or indirectly attempt to divert from any Xxxx
Atlantic Company any business in connection with Competitive
Activities.
(b) Competitive Activities: For purposes of Section 10(a) hereof,
----------------------
"Competitive Activities" means business activities relating to products or
services of the same or similar type as those for which the Executive had
responsibility to plan, develop, manage or oversee within the last 24
months of the Executive's employment with any Xxxx Atlantic Company.
(c) Notice. Xxxx Atlantic shall send the Executive written notice
------
in the event that Xxxx Atlantic believes that the Executive has violated
any of the prohibitions of this Section 10; provided, however, that any
failure by Xxxx Atlantic to give notice under this provision or to enforce
its rights under this Agreement in any one or more instances shall not be a
bar to Xxxx Atlantic giving notice and taking action to enforce its rights
under this Agreement at any later time. For a period of 15 days after the
giving of such notice, the Executive shall have the opportunity to respond
and discuss with Xxxx Atlantic the underlying facts and the basis for Xxxx
Atlantic's belief that the Executive is in breach of this Section 10.
During such 15-day period, Xxxx Atlantic shall not pursue any remedy
provided by this Agreement or at law or in equity.
(d) Forfeiture of Benefits. The Executive acknowledges that the
----------------------
Executive's violation of any of the prohibitions of this Section 10 or the
rules against wrongful competitive activity by the Executive as defined
under the RIP and the Xxxx Atlantic Performance Share Plan ("PSP"), as the
terms of those plans may be amended from time to time, may result in the
Executive's forfeiture of any and all rights to benefits or awards under
the RIP and the PSP.
(e) Waiver: Nothing in this Agreement shall bar the Executive from
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requesting, at the time of the Executive's retirement or at any time
thereafter, that the then-current Chief Executive Officer waive Xxxx
Atlantic's rights to enforce the non-compete covenants of this Section 10,
and the Chief Executive Officer shall have the
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Employment Agreement Page 7
power to agree to such a waiver if the Chief Executive Officer determines
that it is not inconsistent with the interests of Xxxx Atlantic to do so.
11. Prohibition Against Disclosure of Proprietary Information:
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(a) Prohibited Conduct by the Executive: The Executive acknowledges
-----------------------------------
that, as one of the most senior officers of the Xxxx Atlantic Companies,
the Executive has continuing access to confidential and proprietary
information of Xxxx Atlantic Companies. The Executive shall, therefore, at
all times during the period of active employment with any Xxxx Atlantic
Company, and for a period of three years thereafter, preserve the
confidentiality of all proprietary information of any Xxxx Atlantic
Company. The three-year limitation under this paragraph shall not in any
way limit any Xxxx Atlantic Company's common law and statutory rights to
protect its trade secrets or intellectual property rights at any time, to
the full extent of the law. "Proprietary information" includes, but is not
limited to, information in the possession or control of a Xxxx Atlantic
Company that has not been fully disclosed in a writing which has been
generally circulated to the public at large, and which gives the Xxxx
Atlantic Company an opportunity to obtain or maintain advantages over its
current and potential competitors, such as strategic or tactical business
plans, and undisclosed financial data; ideas, processes, methods,
techniques, systems, patented or copyrighted information, models, devices,
programs, computer software or related information; documents relating to
regulatory matters and correspondence with governmental entities; pricing
and cost data; reports and analyses of business prospects; business
transactions which are contemplated or planned; research data; personnel
information and data; identities of users and purchasers of any Xxxx
Atlantic Company's products or services; and other confidential matters
pertaining to or known by one or more Xxxx Atlantic Companies, including
confidential information of a third party which a Xxxx Atlantic Company is
bound to protect.
(b) Obligation to Return Company Property: If and when the Executive
-------------------------------------
retires or terminates employment for any other reason with all Xxxx
Atlantic Companies, the Executive shall, prior to the last day of active
employment and without charge to any Xxxx Atlantic Company, return to the
employing Xxxx Atlantic Company (or the rightful Xxxx Atlantic Company) all
company property, including, without limitation, originals and copies of
records, papers, programs, computer software, documents and other materials
which contain Proprietary Information, as defined in Section 11(a). The
Executive shall thereafter cooperate with each applicable Xxxx Atlantic
Company in executing and delivering documents requested by the company that
are necessary to assist the Xxxx Atlantic Company in patenting or
registering any programs, ideas, inventions, discoveries, copyright
material or trademarks, and to vest title thereto in the Xxxx Atlantic
Company.
(c) Forfeiture of Benefits. The Executive acknowledges that the
----------------------
Executive's violation of the prohibitions of this Section 11, or other
"misconduct" by the Executive (as that term is interpreted by the Human
Resources Committee of the Board under the RIP and PSP plans, as those
plans may be amended from time to time), may result in the Executive's
forfeiture of any and all rights to benefits or awards under the RIP and
the PSP.
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Employment Agreement Page 8
12. Remedies in Addition to Forfeiture of Benefits. The Executive
----------------------------------------------
recognizes that irreparable injury will result to one or more Xxxx Atlantic
Companies, and to the business and property of any of them, in the event of a
breach by the Executive of any of the provisions of Section 10 or 11 of this
Agreement, and that the Executive's continued employment is predicated on the
commitments made by the Executive in those Sections. In the event of any breach
of any of the Executive's commitments under Section 10 or 11, any Xxxx Atlantic
Company that is damaged by such breach shall be entitled, in addition to
declaring a forfeiture of benefits as described herein, and in addition to any
other remedies and damages available, to injunctive relief to restrain the
violation of such commitments by the Executive or by any person or persons
acting for or with the Executive in any capacity whatsoever.
13. Miscellaneous Provisions.
------------------------
(a) Legal Release: Notwithstanding any provision of this Agreement,
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no liquidated damages or benefits under the terms of this Agreement shall
be payable in connection with a separation from service by the Executive
unless and until the Executive signs the Release in a form satisfactory to
Xxxx Atlantic; provided, however, that nothing in this Agreement is
intended to cause the Executive to waive his right to submit claims for
employee benefits in accordance with the terms of any employee benefit
plans in which the Executive remains a participant.
(b) Assignment by Xxxx Atlantic: Xxxx Atlantic may assign this
---------------------------
Agreement without the Executive's consent to any company that acquires all
or substantially all of the assets of Xxxx Atlantic, or into which or with
which Xxxx Atlantic or the company which is then the Executive's employing
company is merged or consolidated. If and when the Executive transfers
employment to a Xxxx Atlantic Company other than Xxxx Atlantic, that
employing company shall automatically be deemed to be a party to this
Agreement in addition to Xxxx Atlantic. This Agreement may not be assigned
by the Executive, and no person other than the Executive or his estate may
assert the rights of the Executive under this Agreement. The right to
receive further compensation or benefits of any kind under this Agreement
shall be forfeited upon the death of the Executive, except as expressly
provided to the contrary under the terms of any applicable compensation and
benefit plan in which the Executive was a participant on the date of his
death, and except that, in the event of the death of the Executive during
the Committed Employment Period, the cash severance payment provided for by
Section 7 of this Agreement shall become payable in full.
(c) Waiver: The waiver by any Xxxx Atlantic Company of a breach by
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the Executive of any provision of this Agreement shall not be construed as
a waiver of any subsequent breach by the Executive.
(d) Severability: If any clause, phrase or provision of this
------------
Agreement, or the application thereof to any person or circumstance, shall
be invalid or unenforceable under any applicable law, such event shall not
affect or render invalid or unenforceable the remainder of this Agreement
and shall not affect the application of any clause, phrase or provision
hereof to other persons or circumstances. Furthermore, in the event that a
court of law or equity determines that the geographic scope of the
covenants under Section 10, or the duration of any of the restrictions
under this Agreement, are not enforceable, this Agreement shall hereby be
deemed to be
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Employment Agreement Page 9
amended to the extent necessary, but only to the extent necessary, to
permit the enforcement of the terms of this Agreement.
(e) Governing Law: This Agreement shall be construed and enforced in
-------------
accordance with the laws of the Commonwealth of Pennsylvania.
(f) Entire Agreement: This Agreement supersedes the Non-Compete and
----------------
Proprietary Information Agreements, between Xxxx Atlantic and the
Executive, dated August 10, 1993 and January 24, 1994, and each of those
Agreements is hereby cancelled. Except for the terms and conditions of the
compensation and benefit plans applicable to the Executive (as such plans
may be amended by the applicable Xxxx Atlantic Company from time to time),
this Agreement sets forth the entire understanding of BAC and the Executive
and supersedes all prior agreements, arrangements, and communications,
whether oral or written, pertaining to the subject matter hereof; and this
Agreement shall not be modified or amended except by written agreement of
the Executive, Xxxx Atlantic and the Xxxx Atlantic Company which then
employs the Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
XXXX ATLANTIC CORPORATION
By:
-----------------------------------------------
Xxxxxxx X. Xxxxx
Chairman of the Board and
Chief Executive Officer
THE EXECUTIVE
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Xxxxx X. Xxxxxx
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Employment Agreement Page 10
EXHIBIT A
RELEASE
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THIS RELEASE (the "Release") is entered into by XXXXX X. XXXXXX (the
"Executive"), for the benefit of XXXX ATLANTIC CORPORATION ("Xxxx Atlantic"),
and all companies, and their officers, directors and employees, which are
affiliated with Xxxx Atlantic (Xxxx Atlantic and said affiliated companies are
sometimes referred to collectively herein as "Xxxx Atlantic Companies").
WHEREAS, the Executive has retired from his employing Xxxx Atlantic
Company on ____________ (the "Retirement Date") pursuant to the terms of an
Employment Agreement, dated _______________, 1995, between Xxxx Atlantic and the
Executive (the "Agreement"), and he wishes to execute this Release as
contemplated under the terms of the Agreement.
NOW, THEREFORE, the Executive affirms as follows:
1. Except for any as-yet unfulfilled obligations of Xxxx Atlantic
under the terms of the Agreement, or any benefits which the Executive is
entitled to receive under the terms of the benefit plans in which he
participates (as those plans may be amended from time to time), the Executive,
as his free and voluntary act, hereby releases and discharges Xxxx Atlantic, its
affiliates, and their successors and assigns, and the directors, officers,
employees, and agents of each of them, 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 or 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 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. Section 2000e et seq.), the Civil Rights Acts of 1866 and 1871 (42 U.S.C.
Sections 1981 and 1983), Executive Order 11246, as amended, the Age
Discrimination in Employment Act of 1967, as amended (29 U.S.C. Section 621 et
seq.), the Equal Pay Act of 1963 (29 U.S.C. Section 206(d)(1)), the
Rehabilitation Act of 1973 (29 U.S.C. Sections 701-794), the Civil Rights Act of
1991, the Americans with Disabilities Act, or any other applicable federal,
state or local employment discrimination statute or ordinance, which the
Executive might have or assert against any of said entities or persons (a) by
reason of the Executive's active employment by Xxxx Atlantic or any Xxxx
Atlantic Company, or the termination of said employment and all circumstances
related thereto; or (b) by reason of any other matter, cause or thing whatsoever
which may have occurred prior to the date of execution of this Release.
2. No Litigation or Other Legal Action. Except for any as-yet
-----------------------------------
unfulfilled obligations of Xxxx Atlantic under the terms of the Agreement, or
any benefits which the Executive is entitled to receive under the terms of the
benefit plans in which he participates (as those plans may be amended from time
to time), the Executive promises not to initiate a lawsuit or to bring a claim
against Xxxx Atlantic or any Xxxx Atlantic Company or their successors or
assigns, or the directors, officers, employees, or agents of any of them, in any
court, government agency, or otherwise, relating to the Executive's employment,
the termination of said employment, or
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Release Page 1
other events, including, but not limited to, any claim under any federal, state
or local statute, ordinance, or rule of law. The Executive waives any remedy or
recovery in any action which may be brought on the Executive's behalf by any
government agency or other person.
3. The Executive hereby reaffirms the terms and conditions of the
Agreement in all respects.
4. Should any provision of this Release be declared or be determined
by any court to be illegal or invalid, the validity of the remaining parts,
terms or provisions shall not be affected thereby, and said illegal or invalid
part, term or provision shall be deemed not to be a part of this Release.
STATEMENT BY THE EXECUTIVE WHO IS SIGNING BELOW: XXXX ATLANTIC HAS
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ADVISED ME IN WRITING TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THIS
RELEASE. I HAVE CAREFULLY READ AND FULLY UNDERSTAND THE PROVISIONS OF THIS
RELEASE AND HAVE HAD SUFFICIENT TIME AND OPPORTUNITY (OVER A PERIOD OF
SUBSTANTIALLY MORE THAN 21 DAYS) TO CONSULT WITH MY PERSONAL TAX, FINANCIAL AND
LEGAL ADVISORS PRIOR TO EXECUTING THIS DOCUMENT, AND I INTEND TO BE LEGALLY
BOUND BY ITS TERMS. I UNDERSTAND THAT I MAY REVOKE THIS RELEASE WITHIN SEVEN
(7) DAYS FOLLOWING MY SIGNING, AND THIS RELEASE WILL NOT BECOME ENFORCEABLE OR
EFFECTIVE UNTIL THAT SEVEN-DAY PERIOD HAS EXPIRED.
THE UNDERSIGNED, intending to be legally bound, has executed this
Release as of the _____ day of __________, 19___, that being the Executive's
Retirement Date.
THE EXECUTIVE
Witness: Signed:
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Xxxxx X. Xxxxxx
THIS IS A RELEASE
READ CAREFULLY BEFORE SIGNING
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