[XXXXXXXX & XXXXX, INC. LETTERHEAD]
December 3, 1996
Personal & Confidential
Xx. Xxxxxxx X. Xxxxxxxxxx
00 Xxxxxxxx Xxxxx
Xxxx xx Xxx, XX 00000
Dear Xxxx:
This letter agreement confirms our mutual understanding
regarding your retirement from employment with Xxxxxxxx & Xxxxx, Inc. (the
"Company"). In return for your compliance with all of the terms of this
agreement, the Company will provide the following additional consideration
and benefits:
1. Retirement. (a) Upon execution of this agreement by you
on or before December 14, 1996, you shall advise the Company in writing
(substantially in the form of Exhibit A to this agreement) that you are
retiring from the Company effective as of a specific date not later than
April 1, 1997 (your "Retirement Date") and that you are resigning as an
executive officer and director of the Company effective immediately. You
also agree to provide additional resignations from such other positions as
the Company deems necessary, including positions as officer or director of
any affiliated company or as member of any committee or administrative
body relating to the Company and its businesses. During the period from
your execution of this agreement to your Retirement Date no changes will
be made in your current base salary, benefit plans, or fringe benefits as
a result of your resignation as an executive officer of the Company. Upon
execution of this agreement and receipt by the Company of your notice of
retirement and the related resignations, the Company will issue a press
release, in a form acceptable to you, announcing your retirement effective
as of your Retirement Date.
(b) Provided that you sign this agreement and do not execute
your revocation rights, you will be a consulting employee of the Company
during the period beginning on your Retirement Date and ending on the
first to occur of March 31, 1999, or the last day of the month in which
your death occurs (the "Consulting Employment Period") during which time
the covenants and obligations set forth in this agreement continue to be
satisfied in full.
2. Executive Compensation Programs. (a) Any stock options
and/or restricted stock awards previously issued to you shall remain in
effect during your employment with the Company, including any Consulting
Employment Period, according to their terms. To the extent applicable in
connection with your transactions in the Company's securities, you agree
to make all necessary filings and execute all appropriate documents in
order to comply with the provisions of Section 16 of the Securities
Exchange Act of 1934, as amended.
(b) Your coverage under the Company's Supplemental Executive
Retirement Plan and its Deferred Compensation Plan will also continue
during your employment with the Company, including any Consulting
Employment Period.
(c) Your Key Executive Employment and Severance Agreement shall
cease to be effective as of December 3, 1996. You will not be eligible to
participate in any management incentive or other incentive compensation
plan after December 31, 1996.
(d) Except as provided in Paragraph 2(c) your status as a
"consulting employee" shall not limit, waive or adversely affect any
rights regarding any Company benefit plans which you would have had had
you not tendered you resignation pursuant to Paragraph 1(a) and continued
to remain a regular employee through the Consulting Employment Period.
Except as provided in Paragraph 2(c), your "Retirement Date" will not
control or be derminative respecting your rights under any such plans and
your rights under such plans shall credit you with service provided the
Company during the Consulting Employment Period, regardless of the hours
which you work during the Consulting Employment Period.
(e) On or immediately following April 1, 1997, the Company will
transfer to you title of the Company automobile which you have been using.
You will be responsible for sales tax and any income taxes due from you as
the result of the transfer. Thereafter during the Consulting Employment
Period you will be eligible for the Company's monthly automobile allowance
upon submission of appropriate mileage and expense reports as required by
applicable rules and procedures.
3. Duties During Consulting Employment Period. During the
Consulting Employment Period, your employment duties will be as determined
from time to time by the Chief Executive Officer of the Company. Such
duties shall be consistent with your present skills and training and with
your stature in the Company as a long-service, senior management employee
of the Company. Your assigned duties will be in the nature of consulting
employee services and will not require you to maintain regular office
hours at Company offices and should not conflict with other
entrepreneurial activities of interest to you which are not in violation
of this agreement. In order to assure you substantial control over your
schedule during the Consulting Employment Period you will not be obligated
to perform any services requested by the Company on less than thirty (30)
days advance written notice.
4. Consideration. (a) During the Consulting Employment
Period the Company will pay you a monthly salary equal to your current
base salary, payable in the same manner as compensation is provided to
other salaried employees at the Company's Fond du Lac, Wisconsin,
location. In addition, during the Consulting Employment Period, you will
continue to participate in the employee benefit plans and fringe benefits
for the Company's salaried employees located in Fond du Lac Wisconsin, on
the same basis as such other salaried employees. In addition, the Company
will continue to pay dues on your behalf to the South Hills Golf and
Country Club through March 31, 1999. You may, at that time and to the
extent permitted by applicable rules of the country club, elect to
continue membership thereafter at your own expense without reimbursing the
Company for membership fees previously paid by the Company. You shall
retain ownership of stock in the South Hills Golf and Country Club and are
under no obligation to assign such shares to the Company.
(b) The Consulting Employment Period, including the
compensation and benefits provided during such period, is mutually agreed
by us to be additional consideration to you from the Company for your
granting to the Company the covenants and releases set forth in paragraphs
5, 6, and 7, below.
5. Noncompetition. (a) In consideration for the payments and
benefits to be provided to you under paragraph 4, you agree that during
the period from December 3, 1996, to the conclusion of any Consulting
Employment Period (the "Restricted Period"), regardless of whether you
have forfeited rights under this agreement due to breach of its terms, you
will not be employed directly or indirectly by, be a sole proprietor or
partner of, or act as a consultant to, any person or entity which is or is
about to be engaged in any business in North America or Europe which is
substantially similar to or will in any material respect compete with any
portion of the business of the Company and its subsidiaries as currently
conducted, in any capacity where confidential information concerning the
Company which was acquired by you during your employment with the Company
would reasonably be considered to be useful.
(b) You further agree that during the Restricted Period, you
will not join in or participate with any action that would require any
person to file a Schedule 13d (or any successor schedule thereto) under
the Securities Exchange Act of 1934, as amended, with respect to the
Company; you will not make, or participate with any other person who
makes, any proposal for a business combination involving the Company or
the acquisition of the Company, and you will not be a proponent in any
solicitation of proxies with respect to a meeting of shareholders of the
Company.
(c) You further agree to reasonably cooperate with the Company,
its financial and legal advisors and/or government officials, in any
claims, investigations, administrative proceedings including without
limitation environmental proceedings, lawsuits, and other legal, internal
or business matters, as reasonably requested by the Company during the
Restricted Period and for 2 years thereafter. You will be paid a
reasonable daily fee, determined by the Company, for each day after the
Consulting Employment Period on which such service is performed at the
request of the Company and, to the extent you incur travel or other
expenses with respect to such activities, the Company will reimburse you
for such reasonable expenses when submitted according to regular corporate
procedures.
(d) You agree that the Company will suffer irreparable damage
in the event the provisions of this paragraph 5 are breached and your
acceptance of the provisions of this paragraph 5 was a material factor in
your decision to enter into this agreement. You further agree that the
Company shall be entitled as a matter of right to injunctive relief to
prevent a breach by you. Resort to such equitable relief, however, shall
not constitute a waiver of any other rights or remedies the Company may
have. In addition to such equitable relief, and not in limitation of any
other rights or remedies the Company may have, if you breach the
provisions of this paragraph 5 during the Restricted Period the Company
shall have the remedies set forth in paragraph 8 hereof.
6. Nonsolicitation; Confidentiality. (a) You agree that
during the Restricted Period, regardless of whether you have forfeited
rights under this agreement due to breach of its terms, you shall not,
except as provided herein, directly or indirectly solicit for employment
or advise or recommend to any other person that he or she solicit for
employment any person employed at that time by the Company, its
subsidiaries or affiliates. You further agree at all times, whether
during the Restricted Period and for 2 years thereafter, not to exploit,
use, sell, publish, disclose, communicate or divulge to any person any
trade secrets or confidential information, knowledge or data regarding the
Company, its subsidiaries or affiliates or any of their respective
directors, advisors, officers, employees or agents for so long as such
trade secrets or confidential information, knowledge, or data have not
become generally known to the public or the Company's competitors without
your fault or participation. You agree that the Company will suffer
irreparable damage in the event the provisions of this paragraph 6 are
breached and that your acceptance of the provisions of this paragraph 6
was a material factor in your decision to enter into this agreement. You
further agree that the Company shall be entitled as a matter of right to
injunctive relief to prevent a breach by you. Resort to such equitable
relief, however, shall not constitute a waiver of any other rights or
remedies the Company may have. In addition to such equitable relief, and
not in limitation of any other rights or remedies the Company may have, if
you breach the provisions of this paragraph 6 during the Restricted Period
the Company shall have the remedies set forth in paragraph 8 hereof. The
provisions of this paragraph 6 shall not apply to any truthful statement
required to be made by you in any legal proceeding or government or
regulatory investigation, provided, however, that prior to making such
statement you will give the Company reasonable notice and, to the extent
you are legally entitled to do so, afford the Company the ability to seek
a confidentiality order. Nothing herein modifies or reduces your
obligation to comply with applicable laws relating to trade secrets,
confidential information, or unfair competition.
(b) You represent and warrant that you will, on or before your
Retirement Date, deliver to the Company the original and all copies of all
documents, records, and property of any nature whatsoever which are in
your possession or control and which are the property of the Company or
which relate to the business activities, facilities, or customers of the
Company, its subsidiaries, or its affiliates, including any records,
documents or property created by you.
7. Release and Covenants. (a) In consideration of the
benefits and payments provided and to be provided by the Company, you, on
behalf of yourself, your spouse, heirs, executors, administrators, agents,
successors, assigns and representatives of any kind (hereinafter
collectively referred to as the "Releasors") confirm that Releasors have
released the Company, and each of its subsidiaries, affiliates, their
employees, successors, assigns, executors, trustees, directors, advisors,
agents and representatives, and all their respective predecessors and
successors (hereinafter collectively referred to as the "Releasees"), from
any and all actions, causes of action, charges, debts, liabilities,
accounts, demands, damages and claims of any kind whatsoever including,
but not limited to, those arising out of the changes in the terms and
conditions of your relationship with the Company described in this
agreement and those arising under any labor, employment discrimination
(including, without limitation, the Age Discrimination in Employment Act
of 1967, as amended, Title VII of the Civil Rights Act of 1964, as
amended, the Wisconsin Fair Employment Act, as amended), contract or tort
laws, equity or public policy, or negligence standard, whether known or
unknown, certain or speculative, which against any of the Releasees, any
of the Releasors ever had, now has, or hereafter shall have or can have.
You further covenant that you will not initiate any action, claim or
proceeding against any of the Releasees for any of the foregoing, nor will
you participate, assist, or cooperate in any such action, claim, or
proceeding unless required to do so by law.
(b) Notwithstanding the foregoing, this agreement does not
waive rights, if any, you or your successors and assigns may have under or
pursuant to, or release any member of Releasees from obligations, if any,
it may have to you or to your successors and assigns on claims arising out
of, related to or asserted under or pursuant to, this agreement, any
insurance contract, or any indemnity agreement or obligation contained in
or adopted or acquired pursuant to any provision of the charter or by-laws
of the Company or its subsidiaries or affiliates or in any applicable
insurance policy carried by the Company or its affiliates for any matter
which arises or may arise in the future in connection with your employment
with the Company. The Company also agrees to provide such indemnification
and insurance coverage to you for services rendered during the Consulting
Employment Period as is customarily provided to active executive employees
of the Company. Notwithstanding the foregoing, this agreement does not
waive any rights under the Wisconsin Workers' Compensation Act or for any
claim arising after the execution of this agreement.
(c) You hereby acknowledge that you have at least 21 days to
review this agreement from the date you first receive it and you have been
advised to review it with an attorney of your choice. You further
understand that the 21 day review period ends when you sign this
agreement. You also have 7 days after your signing of this agreement to
revoke by so notifying the Company in writing. Any revocation by you
under this paragraph 7(c), however, does not revoke the resignations
provided under paragraph 1(a), and your retirement with the Company shall
remain in effect as set forth herein. You further acknowledge that you
have carefully read this agreement, know and understand the contents
thereof and its binding legal effect. You sign the same of your own free
will and act, and it is your intention that you be legally bound thereby.
(d) You agree to keep this agreement confidential and not to
reveal its contents to anyone other than your attorney, financial
consultant, and immediate family members. The provisions of this
paragraph 7(d) shall not apply to any truthful statement required to be
made by you in any legal proceeding or government or regulatory
investigation, provided, however, that prior to making such statement you
will give the Company reasonable notice and, to the extent you are legally
entitled to do so, afford the Company the ability to seek a
confidentiality order.
(e) The Company hereby releases you from any liability to the
Company arising out of your employment with the Company through the date
of this agreement except to the extent of the obligations set forth in
this agreement.
8. Noncompliance. The additional payments and benefits
provided to you pursuant to paragraph 4 are conditioned upon your
compliance with all of the terms and conditions of this agreement,
particularly paragraphs 5, 6 and 7. Each of the aforementioned provisions
are material terms of this agreement, and (i) in the event of any
violation of any such provision of this agreement by you or anyone acting
at your direction or (ii) in the event you or anyone acting at your
direction at any time shall substantially denigrate any of the Releasees,
including without limitation by way of news media or the expression to
news media of personal views, opinions or judgments, the Company shall be
entitled to withhold and terminate all aforementioned payments and
benefits provided or to be provided in paragraph 4, above, and you agree
to repay to the Company all payments paid to you pursuant to such
paragraph and/or the Company shall be entitled to recover any of the
amounts paid to you pursuant to paragraph 4, without waiving the right to
pursue any other available legal or equitable remedies. The Company
agrees that neither it, nor its officers, directors, or employees, whether
past, present or future, will substantially denigrate you in any manner,
including, but not limited to, statements made to the news media or an
expression of such entities' or individuals' views opinions or judgments.
9. Tax Payments, Withholding and Reporting. You recognize
that the payments and benefits provided under this agreement including
without limitation those provided pursuant to paragraph 4 may result in
taxable income to you which the Company and its affiliates will report to
their appropriate taxing authorities. The Company and its affiliates
shall have the right to deduct from any payment made under this agreement
to you any federal, state, local or other income, employment or other
taxes it determines are required by law to be withheld with respect to
such payments or benefits provided hereunder or to require payment from
you which you agree to pay upon demand, for the purpose of satisfying any
such withholding requirement.
10. Severability. In the event any one or more of the
provisions of this agreement (or any part thereof) shall for any reason be
held to be invalid, illegal or unenforceable, the remaining provisions of
this agreement (or part thereof) shall be unimpaired, and the invalid,
illegal or unenforceable provision (or part thereof) shall be replaced by
a provision (or part thereof), which, being valid, legal and enforceable,
comes closest to the intention of the parties underlying the invalid,
illegal or unenforceable provisions. However, in the event that any such
provision of this agreement (or part thereof) is adjudged by a court of
competent jurisdiction to be invalid, illegal or unenforceable, but that
the other provisions (or part thereof) are adjudged to be valid, legal and
enforceable if such invalid, illegal or unenforceable provision (or part
thereof) were deleted or modified, then this agreement shall apply with
only such deletions or modifications, or both, as the case may be, as are
necessary to permit the remaining separate provisions (or part thereof) to
be valid, legal and enforceable.
11. Other Agreements. (a) This agreement does not limit or
restrict in any way your rights under the Company's employee benefit
plans, including, but not limited to, the Retirement Plan, the Retirement
Savings Plan and the Company's group medical plan. During the Consulting
Employment Period, you will be provided with the same medical benefits
provided to the Company's active executive employees. Thereafter, you and
your spouse will be provided access to such medical coverage, provided you
pay the full premium charges by the Company for such coverage, until you
and your spouse have reached the age for Medicare eligibility as may then
be provided by law.
(b) Subject to paragraph 11(a), and the provisions of this
Agreement, all the terms of our agreement are embodied in this agreement,
which incorporates by reference the Company's Supplemental Executive
Retirement Plan, Deferred Compensation Plan, and Stock Option and
Restricted Stock Plans, and it fully supersedes any and all prior
agreements or understandings between you and any Releasee. This agreement
shall be governed by the substantive laws of the State of Wisconsin
without regard to its conflict of laws provisions. The parties agree that
any proceeding to resolve any dispute arising hereunder will be brought
only in the courts of the State of Wisconsin or in the courts of the
United States of America for the Eastern District of Wisconsin, and that
each party irrevocably submits to such jurisdiction, and hereby waives any
and all objections as to venue, inconvenient forum and the like. It is
the intention of the parties hereto, however, that to the extent
practicable, the parties will endeavor to settle any dispute arising
hereunder first through the process of non-binding mediation to be
conducted in Milwaukee, Wisconsin. This agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
legal representatives, successors and assigns.
12. The Company represents that the Chairman and Chief
Executive Officer has been authorized by the Company's Board of Directors
to prepare and sign this Agreement.
If you find that the foregoing satisfactorily states our mutual
understanding, please sign and date the enclosed copy of this agreement in
the spaces indicated below and return it to me.
Sincerely yours,
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
Xxxxxxxx & Xxxxx, Inc.
Xxxxxx and Accepted this 3rd day of December, 1996.
/s/ Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxx
