Exhibit 99.01
SEPARATION AGREEMENT AND GENERAL RELEASES
This Separation Agreement and General Releases (the "Agreement") is dated
as of July 24, 2006, by and between Del Global Technologies Corp., a New York
corporation (who along with its subsidiaries is referred to herein as the
"Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇").
WHEREAS, this Agreement governs the terms of ▇▇▇▇▇▇▇▇▇'▇ separation from
the Company and the Company's financial and other obligations to ▇▇▇▇▇▇▇▇▇.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. TERMINATION DATE. ▇▇▇▇▇▇▇▇▇ acknowledges that his last day of
employment with the Company was July 21, 2006 (the "Termination Date").
▇▇▇▇▇▇▇▇▇ understands and agrees that, as of the Termination Date, he is no
longer authorized to incur any expenses, obligations, or liabilities on behalf
of the Company, and agrees that he shall submit for reimbursement any
outstanding expenses incurred with appropriate documentation for which he seeks
reimbursement within four (4) weeks following the Termination Date. ▇▇▇▇▇▇▇▇▇
further understands and agrees that, as of the Termination Date, he is no longer
authorized to conduct any business on behalf of the Company or to hold himself
out as an employee, agent or representative of the Company. Effective on the
Termination Date, ▇▇▇▇▇▇▇▇▇ resigns as a director of the Company and any and all
positions he may hold on any Board of Directors of Company subsidiaries and/or
affiliates and any executive positions he holds with any Company subsidiaries
and/or affiliates including, without limitation, Villa Sistemi Medicali, S.p.A.
2. SEVERANCE BENEFITS AND OTHER PAYMENTS DUE.
(a) Separate and apart from the severance benefits described below,
the Company shall continue to pay ▇▇▇▇▇▇▇▇▇ his full base salary through the
Termination Date at the rate in effect immediately prior to the Termination
Date, and shall pay ▇▇▇▇▇▇▇▇▇ $19,327 for his earned but unused vacation pay.
Such vacation pay shall be paid to ▇▇▇▇▇▇▇▇▇ as required by law on the next
payday following the Termination Date.
(b) The Company will pay ▇▇▇▇▇▇▇▇▇ a severance payment (the
"Severance Payment") equal to $300,000 which is one (1) times ▇▇▇▇▇▇▇▇▇'▇ annual
base salary in effect immediately prior to the Termination Date. The Severance
Payment shall be paid to ▇▇▇▇▇▇▇▇▇ in pro-rata equal installments pursuant to
the Company's standard payroll practices over a twelve-month period commencing
with the first payday following the Termination Date; provided, however, that in
the event the Company sells any of its assets or the assets of any of its U.S.
subsidiaries for cash and such sale results in net cash proceeds to the Company
of at least $5.0 million, then the Company shall pay to ▇▇▇▇▇▇▇▇▇ any balance
outstanding of the Severance Payment within ten (10) days after the receipt by
the Company of such net cash proceeds from such asset sale.
(c) ▇▇▇▇▇▇▇▇▇ will also be entitled to receive health insurance
coverage for himself and his dependents under the same plan or plans under which
he was covered prior to the Termination Date or substantially similar group
medical plan(s) established by the Company or any one of its subsidiaries
thereafter. Such health insurance coverage shall be paid for by the Company to
the same extent as if ▇▇▇▇▇▇▇▇▇ was still employed by the Company, and ▇▇▇▇▇▇▇▇▇
will be required to make such payments as he would be required to make if he was
still employed by the Company. This coverage will continue for a period of one
(1) year following the Termination Date.
(d) The Company shall withhold from any amounts payable under
subparagraphs (a) and (b) above all federal, state, city or other taxes required
by applicable law to be withheld by the Company and shall make all required
employer payments for Social Security and Medicare.
(e) In the event that the Company fails to make any of the payments
required by subparagraph (b) above on the date due or within five (5) business
days after a written notice of such failure to pay is provided (the "Notice
Period"), then any and all unpaid amounts due shall accelerate and be payable to
▇▇▇▇▇▇▇▇▇. For each day after the date of such Notice Period has expired, and
for every day thereafter that the unpaid amount is not paid in full to
▇▇▇▇▇▇▇▇▇, then the total of all unpaid amounts of the Severance Payment shall
accelerate and be payable to ▇▇▇▇▇▇▇▇▇ immediately and all such unpaid amounts
shall accrue interest at the rate of 9% per annum. If payments due have not been
made prior to the time that the Notice Period has expired, then ▇▇▇▇▇▇▇▇▇ may
commence a lawsuit for any and all unpaid amounts required by subparagraph (b)
above, including the amounts accelerated, plus interest on all such amounts, and
the Company agrees to pay the full amount of ▇▇▇▇▇▇▇▇▇'▇ reasonable attorneys
fees and expenses in such lawsuit. Further, the Company agrees that in any such
lawsuit, the Company will not assert any affirmative defenses, setoffs, or
counterclaims; provided, however, that nothing shall prohibit the Company from
bringing a separate action against ▇▇▇▇▇▇▇▇▇ for breach of this Agreement or of
any other legal obligation that ▇▇▇▇▇▇▇▇▇ may have to the Company. In any such
lawsuit against ▇▇▇▇▇▇▇▇▇, the party who substantially prevails in such action
shall be entitled to payment from the other party for all of its or his costs
and expenses incurred in such action, including reasonable attorneys fees.
(f) ▇▇▇▇▇▇▇▇▇ acknowledges and agrees that he is not otherwise due
any other monies from the Company including any unpaid salary, benefits, change
in control payments, or other compensation other than outstanding expenses for
which he will submit for reimbursement as provided in Section 1 hereof, any
unpaid base salary in the current payroll period through the Termination Date,
any unpaid vacation pay as set forth above and any vested amounts under any
employee benefit plan governed by ERISA that have not yet been paid to him
(including group medical benefits). ▇▇▇▇▇▇▇▇▇ understands that he is not
entitled to any payments from the Company of any kind or nature pursuant to any
other agreement or agreements with the Company other than the payment and
benefits described or referred to within this Agreement. ▇▇▇▇▇▇▇▇▇ further
understands that aside from the foregoing, he is not entitled to and will not
receive any further payment or benefits of any kind from the Company. This is
not intended to be a declination of COBRA coverage or a waiver of any rights
under COBRA.
3. RELEASES. In exchange for the consideration provided for in this
Agreement, without any further deed or action, ▇▇▇▇▇▇▇▇▇ irrevocably and
unconditionally releases the Company, its predecessors, parents, subsidiaries,
affiliates, and past, present and future officers, directors, agents,
consultants, employees, representatives, and insurers, as applicable, together
with all successors and assigns of any of the foregoing (collectively, the
"Releasees"), of and from all claims, demands, actions, causes of action, rights
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of action, contracts, controversies, covenants, obligations, agreements,
damages, penalties, interest, fees, expenses, costs, remedies, reckonings,
extents, responsibilities, liabilities, suits, and proceedings of whatsoever
kind, nature, or description, direct or indirect, vested or contingent, known or
unknown, suspected or unsuspected, in contract, tort, law, equity, or otherwise,
under the laws of any jurisdiction, that ▇▇▇▇▇▇▇▇▇ or his legal representatives,
successors or assigns, ever had, now has, or hereafter can, shall, or may have,
against the Releasees, as set forth above, jointly or severally, for, upon, or
by reason of any matter, cause, or thing whatsoever from the beginning of the
world through, and including, the date of this Agreement ("Claims"), arising out
of ▇▇▇▇▇▇▇▇▇'▇ employment with the Company.
It is understood and agreed that ▇▇▇▇▇▇▇▇▇ hereby expressly waives any and
all laws or statutes, of any jurisdiction whatsoever, which may provide that a
general release does not extend to claims not known or suspected to exist at the
time of executing a release which if known would have materially affected the
decision to give said release. It is expressly intended and agreed that this
Release does in fact extend to such unknown or unsuspected Claims arising out of
▇▇▇▇▇▇▇▇▇'▇ employment with the Company, related to anything which has happened
to the date hereof even if knowledge thereof would have materially affected the
decision to give said release.
Such release includes, but is not limited to, the violation of any express
or implied contract; any federal, state or local laws, restricting an employer's
right to terminate employees, or otherwise regulating employment; workers
compensation, wage and hour, or other employee relations statutes, executive
orders, ordinance, or regulations, including any rights or claims under Title
VII of the Civil Rights Act of 1964, as amended the Civil Rights Act of 1991,
the Americans with Disabilities Act of 1990, the Rehabilitation Act of 1973, the
Family and Medical Leave Act of 1993, the Civil Rights Act of 1866, the Age
Discrimination in Employment Act of 1967, the Fair Labor Standards Act, the WARN
Act, or any state or local laws covering the same subject matter; tort
(including, without limitation, negligent conduct, invasion of privacy and
defamation); any federal, state, or local laws providing recourse for
retaliation, wrongful discharge, dismissal or other obligations arising out of
public policy, physical or personal injury, fraud, negligent misrepresentations,
and similar or related claims. The laws referred to in this section include
statutes, regulations, other administrative guidance, and common law doctrines.
Any and all claims and/or disputes arising out of or relating to any of the
foregoing shall be, and are, finally compromised, released and settled.
Notwithstanding the foregoing, this release does not include ▇▇▇▇▇▇▇▇▇'▇
right to enforce the terms of this Agreement, his rights under COBRA, or his
rights to vested benefits under ERISA or any other statute whereby a party
cannot waive his rights in a private agreement with his employer. Except to
enforce this Agreement or as otherwise provided by law, ▇▇▇▇▇▇▇▇▇ agrees that he
will not pursue, file or assert or permit to be pursued, filed or asserted any
civil action, suit or legal proceeding seeking equitable or monetary relief (nor
will he seek or in any way obtain or accept any such relief in any civil action,
suit or legal proceeding) in connection with any matter concerning his
employment relationship with the Company and/or the termination thereof with
respect to all of the claims released herein arising from the beginning of the
world up to and including the date of execution of this Agreement (whether known
or unknown to him and including any continuing effects of any acts or practices
prior to the date of execution of this Agreement).
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If ▇▇▇▇▇▇▇▇▇ should bring any action arising out of the subject matter
covered by this Agreement, except to enforce this Agreement or his rights under
law, he understands and recognizes that he will, at the option of the Company,
be considered in breach of this Agreement and shall be required to immediately
return any and all funds received pursuant to this Agreement. Furthermore, if
the Company should substantially prevail in any such lawsuit, ▇▇▇▇▇▇▇▇▇ shall
pay to the Company all of its costs and expenses incurred in such an action,
including reasonable attorney's fees. If ▇▇▇▇▇▇▇▇▇ should bring any action to
enforce this Agreement or defend any action by the Company to enforce this
Agreement, and if he substantially prevails in such action, the Company shall
pay to ▇▇▇▇▇▇▇▇▇ all of his costs and expenses incurred in such an action,
including reasonable attorney's fees.
In exchange for the consideration provided for in this Agreement, and
without any further deed or action, the Company hereby irrevocably and
unconditionally releases and forever discharges ▇▇▇▇▇▇▇▇▇ and his heirs,
executors, and representatives of and from all claims, demands, actions, causes
of action, rights of action, contracts, controversies, covenants, obligations,
agreements, damages, penalties, interest, fees, expenses, costs, remedies,
reckonings, extents, responsibilities, liabilities, suits, and proceedings of
whatsoever kind, nature, or description, direct or indirect, vested or
contingent, which are presently known in contract, tort, law, equity, or
otherwise, or under the laws of any jurisdiction, that the Company now has, or
hereafter can, shall, or may have, against ▇▇▇▇▇▇▇▇▇ for, upon, or by reason of
any matter, cause, or thing whatsoever from the beginning of the world through,
and including, the date of this Agreement (the "▇▇▇▇▇▇▇▇▇ Claims").
4. COMPANY INFORMATION AND PROPERTY. ▇▇▇▇▇▇▇▇▇ agrees to immediately
return to the Company all Company property and information in his possession
including, but not limited to, Company files, financial models, strategies,
compilations, studies, manuals, memoranda, client lists or other client
information, or other documents or records related to the Company's business and
operations, in any form in which they are maintained, and agrees that he will
not retain any copies, duplicates, reproductions, or excerpts thereof in any
form. ▇▇▇▇▇▇▇▇▇ also agrees to immediately return any computer equipment,
Blackberry equipment, cell phones, access codes, discs, software, or other
Company-owned items in his possession; provided, however, that ▇▇▇▇▇▇▇▇▇ shall
be allowed to keep the Company laptop computer currently in his possession.
5. COOPERATION; INDEMNIFICATION. ▇▇▇▇▇▇▇▇▇ agrees that, upon reasonable
request, he will cooperate with the Company so long as such cooperation does not
interfere in any material respects with any full-time job he may have or
business he is conducting at the time. The obligation to cooperate will extend
only to these matters with which ▇▇▇▇▇▇▇▇▇ may have been involved while he was
employed by the Company. The Company agrees to reimburse ▇▇▇▇▇▇▇▇▇ for any and
all expenses reasonably incurred by him in connection with any such request made
by the Company. The Company acknowledges and confirms that ▇▇▇▇▇▇▇▇▇ is entitled
to indemnification to the extent provided for in the Company's charter and
bylaws, the charter and bylaws of any of the Company's subsidiaries that
▇▇▇▇▇▇▇▇▇ served as an officer and/or director, including Villa Sistemi
Medicali, S.p.A., and any insurance policies of the Company or its subsidiaries
providing for indemnification coverage to ▇▇▇▇▇▇▇▇▇.
6. CONFIDENTIALITY. ▇▇▇▇▇▇▇▇▇ agrees that he will not disclose, directly
or indirectly, the underlying facts that led up to this Agreement or the terms
or amount to be paid under this Agreement. ▇▇▇▇▇▇▇▇▇ represents that
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he has not and will not, in any way, publicize the terms of this Agreement and
agrees that its terms are confidential and will not be disclosed by him, except
that he may discuss the terms of this Agreement with his attorneys, financial or
tax advisors, and members of his immediate family, or as otherwise required by
law.
7. NON-DISPARAGEMENT. ▇▇▇▇▇▇▇▇▇ represents and agrees that he shall
refrain from making any written or oral statements to any person or entity with
whom the Company or ▇▇▇▇▇▇▇▇▇ has had or may have a business or social
relationship which may reasonably be expected to impugn or degrade the
character, integrity, or ethics of the Company, its affiliates, directors,
employees, or clients, or which may reasonably be expected to damage the
business, image or reputation of the Company, its affiliates, directors,
employees, or clients.
8. APPLICABLE LAW AND JURISDICTION. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
regard to its conflicts of law principles. Any dispute regarding this Agreement,
or relating to ▇▇▇▇▇▇▇▇▇'▇ employment with the Company shall be brought in the
courts located in New York County, New York which will be the exclusive
jurisdiction for such disputes. The Company and ▇▇▇▇▇▇▇▇▇ hereby expressly waive
a right to a jury trial in any such actions.
9. ENTIRE AGREEMENT. This Agreement may not be changed or altered, except
by a writing signed by both parties. Until such time as this Agreement has been
executed and subscribed by both parties hereto: (i) its terms and conditions and
any discussion relating thereto, without any exception whatsoever, shall not be
binding nor enforceable for any purpose upon any party; and (ii) no provision
contained herein shall be construed as an inducement to act or to withhold an
action, or be relied upon as such. This Agreement constitutes an integrated,
written contract, expressing the entire agreement and understanding between the
parties with respect to the subject matter hereof and supersedes any and all
prior agreements and understandings, oral or written, between the parties,
including but not limited to the Severance Benefits Agreement dated May 23, 2005
between the Company and you (the "Severance Benefits Agreement") EXCEPT THAT
that the terms and conditions of Article IV of the Severance Benefits Agreement
shall survive and shall be of full force and effect after the execution of this
Agreement, except that Article 4.3 of the Severance Benefits Agreement shall be
amended to add the words "property containing any" before the words
"Confidential Information."
10. ASSIGNMENT. ▇▇▇▇▇▇▇▇▇ represents and warrants that he has not assigned
or transferred any claim he is releasing, nor has he purported to do so. This
Agreement binds ▇▇▇▇▇▇▇▇▇'▇ heirs, administrators, representatives, executors,
successors, and assigns, and will insure to the benefit of all Released Parties
and their respective heirs, administrators, representatives, executors,
successors, and assigns. This Agreement is binding upon the Company and its
successors and assigns.
11. SEVERABILITY. If any provision in this Agreement is found to be
unenforceable, all other provisions will remain fully enforceable.
12. INDEPENDENT LEGAL COUNSEL. ▇▇▇▇▇▇▇▇▇ acknowledges that he has
consulted with independent legal counsel regarding the legal effect of this
Agreement, and is entering into this Agreement freely and voluntarily.
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13. BINDING EFFECT. This Agreement will be deemed binding and effective
immediately upon its execution by ▇▇▇▇▇▇▇▇▇; provided, however, that in
accordance with the Age Discrimination in Employment Act of 1967 ("ADEA") (29
U.S.C. ss. 626, as amended), ▇▇▇▇▇▇▇▇▇'▇ waiver of ADEA claims under this
Agreement is subject to the following: ▇▇▇▇▇▇▇▇▇ may consider the terms of his
waiver of claims under the ADEA for twenty-one (21) days before signing it.
▇▇▇▇▇▇▇▇▇ may revoke his waiver of claims under the ADEA within seven (7) days
of the day he executes this Agreement. ▇▇▇▇▇▇▇▇▇'▇ waiver of claims under the
ADEA will not become effective until the eighth (8th) day following his signing
of this Agreement. ▇▇▇▇▇▇▇▇▇ may revoke his waiver of ADEA claims under this
Agreement by delivering written notice of such revocation via facsimile before
the end of the seventh (7th) day following his signing of this Agreement to: Del
Global Technologies Corp., facsimile number 847-288-7011, Attention: Chairman of
the Board. In the event that ▇▇▇▇▇▇▇▇▇ revokes his waiver of ADEA claims under
this Agreement prior to the eighth (8th) day after signing it, the remaining
portions of this Agreement shall remain in full force in effect, provided that
the obligation of the Company to provide the payments and benefits set forth in
Agreement shall be null and void. ▇▇▇▇▇▇▇▇▇ further understands that if he does
not revoke the ADEA waiver in this Agreement within seven (7) days after signing
this Agreement, his waiver of ADEA claims will be final, binding, enforceable,
and irrevocable.
▇▇▇▇▇▇▇▇▇ UNDERSTANDS THAT FOR ALL PURPOSES OTHER THAN HIS WAIVER OF CLAIMS
UNDER THE ADEA, THIS AGREEMENT WILL BE FINAL, EFFECTIVE, BINDING, AND
IRREVOCABLE IMMEDIATELY UPON ITS EXECUTION.
14. ACKNOWLEDGEMENT. ▇▇▇▇▇▇▇▇▇ acknowledges that he: (a) has carefully
read this Agreement in its entirety; (b) has had an opportunity to consider it
for at least twenty-one (21) days; (c) has been advised to consult and has had
an opportunity to consult with legal counsel of his choosing in connection with
this Agreement; (d) fully understands the significance of all of the terms and
conditions of this Agreement and has discussed them with independent legal
counsel; (e) has had answered to his satisfaction any questions asked with
regard to the meaning and significance of any of the provisions of this
Agreement; and (f) is signing this Agreement voluntarily and of his own free
will and agrees to abide by all the terms and conditions contained herein.
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
first date set forth above.
DEL GLOBAL TECHNOLOGIES CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman of the Board
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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