EXHIBIT 10(DD)
AGREEMENT AND RELEASE
This Agreement is made and entered into this 27th day of December 2005 between
VF Corporation (the "Company") and Xxxx X. Xxxxxxxxxxx ("Employee");
WHEREAS, Employee is currently employed by the Company in the position of Vice
President-Cross Coalition in an at-will employment relationship; and
WHEREAS, the Parties agree that Employee will separate from his employment with
the Company on March 31, 2006.
NOW, THEREFORE, in consideration of the mutual agreements and promises set forth
within this Agreement, the Company and Employee voluntarily agree to the
following terms, each of which is material.
1. CASH CONSIDERATION. As valuable and sufficient consideration for each
and all of the Employee's obligations and promises set forth below,
the Company will provide the following:
1.1 The Company shall pay Employee $340,350.00 on September 31, 2006
and $56,725.00 (salary/car allowance) per month for the period
beginning October 1, 2006 and running through the Final Payment
Date (hereinafter defined), subject to applicable federal, state
and local taxes. In the event of the death of Employee before the
Final Payment Date, the balance of such payments shall be paid to
Employee's estate. Except as otherwise provided in Section 3.1 of
this Agreement, if Employee remains in compliance with his
obligations pursuant to this Agreement, payments made pursuant to
this section will not be rescinded, regardless of future
earnings. "Final Payment Date" means March 31, 2008, or, if
earlier, the date payments cease pursuant to Section 3 hereof.
Agreement and Release for Xxxx X. Xxxxxxxxxxx
1.2 Employee shall be eligible to receive a 2005 bonus under the
Company's Executive Incentive Compensation Plan at the time 2005
bonuses are awarded to other executives of the Company in 2006.
Employee will not be eligible to receive a 2006 bonus. Employee
will not receive any equity awards in 2006 or thereafter.
In accordance with and subject to the provisions of the Company's 1996 Stock
Compensation Plan (the "Stock Compensation Plan"), Employee will be eligible to
exercise outstanding stock options, which are otherwise exercisable in
accordance with the Stock Compensation Plan, up to and including the Final
Payment Date. If employee elects to retire under the VF Pension Plan prior to
the Final Payment Date, stock options may be exercised through March 31, 2009.
1.3 In accordance with and subject to the terms of the Mid-Term Plan
established under the Company's 1996 Stock Compensation Plan,
Employee is eligible to receive payout with respect to the
2003-2005 cycle under the Mid-Term Plan at the time the payout is
made to other eligible executives.
1.4 In accordance with and subject to the terms of the 2004 Mid-Term
Plan established under the Company's 1996 Stock Compensation
Plan, Employee is eligible to receive a pro rata payout for the
2004-2006 cycle and a pro rata payout for the 2005-2007 cycle,
payable at the time the payout is delivered to other eligible
executives. Such pro rata payout shall be determined from the
beginning of the cycle to the earlier of the end of the cycle or
the Final Payment Date.
1.5 The Parties agree that the Company has no prior legal obligation
to make the payments or provide the benefits agreed to in Section
1.1 through 1.5
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2. OTHER EMPLOYEE BENEFITS. As valuable and sufficient consideration for
each and all of the Employee's obligations and promises set forth
below, the Company will also provide the following:
2.1 Employee shall be eligible for continued coverage under the
Company's medical insurance plan at active employee rates from
April 1, 2006 through the Final Payment Date.
2.2 Employee shall be eligible for Company sponsored financial
counseling through the Final Payment Date.
2.3 Employee will not be eligible to make contributions to the VF
Executive Deferred Savings Plan II after March 31, 2006.
2.4 The Parties agree that the Company has no prior legal obligation
to make the payments or provide the benefits agreed to in Section
2.1 through 2.3.
3. EMPLOYEE'S REPRESENTATIONS. Employee hereby represents and warrants to
and agrees with the Company as follows, with full knowledge that the
Company intends to rely thereon:
3.1 Covenant not to Compete.
a) From the date of this Agreement through March 31, 2008,
Employee agrees not to serve as an employee, director,
consultant or advisor to any of the following companies or
their subsidiaries or affiliates: Xxxx Xxx Corporation, Levi
Xxxxxxx & Co., NIKE Inc, Columbia Sportswear Company, The
Timberland Company, Wal*Mart, Target, Xxxxx, X.X. Penney.
Employee acknowledges and agrees that this covenant serves
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the legitimate business interests of the Company to protect
its confidential information, trade secrets, good will and
customer contacts. Employee further acknowledges and agrees
that in the event that he breaches this covenant not to
compete the damage to the Company would be irreparable and
that money damages will not adequately compensate the
Company for its injuries. Accordingly, Employee agrees that
in the event he breaches this covenant not to compete the
Company will be entitled to an immediate order from a court
of competent jurisdiction commanding Employee to cease his
violation and enjoining Employee from further violation of
the covenant not to compete. Employee further agrees that
the Company would be entitled to recovery of its cost and
attorney fees incurred as a result of the violation.
In the event of a breach of this Section 3.1 (a), the
Company shall have no further obligation under Sections 1
and 2 above. In the event that injunctive relief is
requested by and granted the Company, the Company shall be
obligated under Sections 1 and 2 for the period of time
during which the injunction is in effect up to and including
March 31, 2008.
b) Employee agrees to advise the Chief Executive Officer of the
Company in writing if he seeks to be hired prior to March
31, 2008 as an employee, director, consultant or advisor of
any company significantly engaged in the apparel business
not listed in Section 3.1. In the event of such hire without
the prior written consent of the Company, the Final Payment
Date shall be the date of such hiring.
3.2 Confidential Information. Employee acknowledges that as an
employee of the Company he has had access to and may be in
possession of non-public information about the Company and its
business plans and
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strategies. Therefore, Employee and each other person
controlling, controlled by or under common control with Employee,
shall not disclose directly or indirectly to any person or entity
outside the employ of the Company, without the express written
authorization of the Company, unless required by subpoena of a
court of law, any business plans, customer list, pricing
strategies, customer files and records, any proprietary data or
trade secrets, or any other confidential information of the
Company, or any financial information about the Company or its
business not in the public domain. For purposes of this Section,
the term "Company" shall include the Company and its
subsidiaries, related corporations and affiliates.
3.3 Non-disparagement. Employee agrees never to disparage or make
false statements about the Company, its predecessors, successors,
or affiliates, or any employees or agents of the Company.
3.4 No Contact. From April 1, 2006 through March 31, 2008, the
Employee agrees not to initiate or maintain contact with any
officer, director, or employee of the Company or its affiliates
regarding the Company's or any affiliate's business, prospects,
operations, or finances, except with the express written
permission of the Company, other than as initiated by the
Company.
3.5 No Solicitation. From April 1, 2006 through March 31, 2008,
Employee will not, directly or indirectly, for himself or on
behalf of any third party solicit for employment or otherwise
cause any employee or officer of the Company or any of its
subsidiaries to terminate his or her employment relationship with
the Company or any of its subsidiaries.
3.6 Return of Company Property. Employee shall promptly return any
and all items in his possession which are owned by or otherwise
the
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property of the Company or its affiliates, including the Company
credit card, cell phone, laptop computer, and Blackberry.
3.7 Board Resignation. Employee hereby resigns, effective April 1,
2006, from all positions as an officer or director of the
Company, its subsidiaries and affiliates, to which he has been
elected or appointed.
3.8 Confidentiality. Employee will not reveal the terms and
understandings contained in this Agreement other than to his
legal and financial advisors, unless he becomes legally compelled
to do so, provided, however, that, prior to any such disclosure,
Employee shall give prompt written notice to the Company so that
the Company may take any action that it deems necessary or
appropriate to seek a protective order or other appropriate
remedy. These restrictions do not apply to Sections 3.1 through
3.6.
3.9 Remedies for Breach by Employee. Employee understands and agrees
that the Company's obligation to perform under this Agreement is
conditioned upon Employee's covenants and promises to the Company
as set forth herein. In the event Employee breaches any such
covenants and promises, or causes any such covenants or promises
to be breached, Employee acknowledges and agrees that the
Company's obligations to perform under this Agreement shall
automatically terminate and the Company shall have no further
liability or obligation to Employee, or alternatively, that the
Company may seek injunctive relief to enforce the provisions of
this Agreement. Employee acknowledges and agrees that in the
event that he materially breaches any provision of this
Agreement, the damage to the Company would be irreparable and
that money damages will not adequately compensate the Company for
its injuries.
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Accordingly, Employee agrees that in the event of a material
breach, the Company will be entitled to an immediate order from a
court of competent jurisdiction commanding Employee to cease his
violation and enjoining Employee from further violation. Employee
further agrees that the Company would be entitled to recovery of
its cost and attorney fees incurred as a result of the violation.
The remedies available to the Company as set out is this section
are not intended to be exclusive of any other remedies to which
the Company may be entitled at law or equity, (including but not
limited to monetary damages, specific performance, and other
injunctive relief), due to breach or threatened breach of any
provision of this Agreement.
4. RELEASE.
4.1 IN PARTIAL CONSIDERATION OF THE PERFORMANCE BY THE COMPANY OF ITS
OBLIGATIONS UNDER THIS AGREEMENT AND OTHER GOOD AND VALUABLE
CONSIDERATION, EMPLOYEE DOES HEREBY FOR HIMSELF, HIS HEIRS,
EXECUTORS, ADMINISTRATORS AND ASSIGNS, FOREVER RELEASE, REMISE
AND DISCHARGE THE COMPANY, ITS OFFICERS, DIRECTORS, PARENTS,
SUBSIDIARIES, AFFILIATES AND THEIR OFFICERS AND DIRECTORS AND
THEIR SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY CLAIMS AND
CAUSES OF ACTION WHICH HE HAS, HAD OR MAY HAVE EVER HAD,
INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS WHICH EMPLOYEE HAS,
HAD, OR MAY HAVE HAD ARISING OUT OF HIS EMPLOYMENT WITH THE
COMPANY OR OTHERWISE RELATING TO OR ARISING OUT OF ANY
RELATIONSHIP OR STATUS HE MAY HAVE HAD IN THE PAST WITH THE
COMPANY, OR ANY OF ITS AFFILIATES OR SUBSIDIARIES. THE PARTIES
SPECIFICALLY CONTEMPLATE THAT THIS RELEASE COVERS ANY POTENTIAL
CLAIM BY EMPLOYEE OF AGE DISCRIMINATION OR EMPLOYMENT
DISCRIMINATION AGAINST THE COMPANY UNDER THE AGE DISCRIMINATION
IN EMPLOYMENT ACT, THE CIVIL RIGHTS ACT OF 1964, AND ANY OTHER
FEDERAL, STATE OR
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LOCAL LAWS OR ORDINANCES, AND ANY COMMON LAW CLAIMS UNDER TORT,
CONTRACT OR ANY OTHER THEORIES NOW OR HEREAFTER RECOGNIZED.
4.2 Employee agrees that no other person (including but not limited
to attorneys, heirs, executors, administrators, successors, and
assigns) may assert any claim that he has or might have against
the Company and further agrees that he will fully cooperate with
the Company in seeking dismissal of any such claim that might be
raised on his behalf.
4.3 The Parties agree that this Agreement may be treated as a
complete defense to any legal, equitable, or administrative
action that may be brought, instituted, or taken by Employee, or
on his behalf, against the Company and shall forever be a
complete bar to the commencement or prosecution of any claim,
demand, lawsuit, charge, or other legal proceeding of any kind
against the Company, any related companies and subsidiaries, and
the directors, officers, employees, and agents of them, including
any successors and assigns, relating to employment with the
Company and/or the termination of employment with the Company.
4.4 The release contained in Section 4.1 hereof is not intended to
relieve the Company of its obligations under this Agreement to
make the payments and provide the benefits under Sections 1 and 2
hereof, but is otherwise fully effective in accordance with its
terms as to all other rights, claims or causes of action which
Employee has, had or may have had as set forth in Section 4.1
hereof.
4.5 Employee received this Agreement on December 9, 2005 and had at
least forty-five (45) days to consider its terms and conditions,
including without limitation, the release provisions of Section
4.1. By receipt of this proposed Agreement and Release, Employee
was advised by the
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Company to consult with an attorney of Employee's choice before
signing this Agreement.
4.6 Employee's execution of this Agreement is knowing and voluntary,
without duress and after an opportunity to consult with his
attorney.
5. WAIVER, DISCHARGE, ETC. This Agreement may not be released,
discharged, abandoned, changed or modified in any manner, except by an
instrument in writing signed on behalf of each of the parties hereto.
The failure of any party hereto to enforce at any time any of the
provisions of this Agreement shall in no way be construed as a waiver
of any such provision, nor in any way to affect the validity of this
Agreement or any part thereof or the right of any party thereafter to
enforce each and every such provision. No waiver of any breach of this
Agreement shall be held to be a waiver of any other or subsequent
breach.
6. RIGHTS OF PERSONS NOT PARTIES. Nothing contained in this Agreement
shall be deemed to create rights in persons not parties hereto, other
than the personal representatives or successors of the parties hereto.
7. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
between the parties, and no other statements, representations or
understandings form a basis for the mutual promises contained herein,
and this Agreement supersedes any other agreements between the parties
with respect to the subject matter hereof.
8. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of North Carolina without regard to its
conflict of laws principles.
9. VENUE. The Company and Employee agree that any dispute arising out of
this Agreement shall be subject to the exclusive jurisdiction of both
the state and federal courts in North Carolina. For that purpose,
Employee irrevocably submits to the jurisdiction of the state and
federal courts of Guilford County, North Carolina.
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10. SUCCESSORS, ASSIGNS, AND REPRESENTATIVES. This Agreement shall inure
to and be binding upon the parties hereto, their respective heirs,
legal representatives, successors, and assigns.
11. PARTIAL INVALIDITY. The Parties agree that the provisions of this
Agreement shall be deemed severable and that the invalidity or
unenforceability of any portion or any provision shall not affect the
validity or enforceability of the other portions or provisions. Such
provisions shall be appropriately limited and given effect to the
extent that they may be enforceable. The Parties further agree that in
the event any provision of this Agreement shall be declared invalid
and unenforceable by a court of competent jurisdiction that the entire
Agreement may be declared voided, ab initio, at the election of the
Company.
12. REVOCATION. Employee understands that this Agreement may be revoked by
Employee within seven (7) days after the signing of the Agreement. To
revoke the Agreement, Employee understands that he must notify in
writing that he no longer wishes to be bound by this Agreement and
desires to revoke the Agreement immediately. Any revocation should be
sent in writing to Xxxxx X. Xxxxxxxx, Vice President, Human Resources,
VF Corporation, 000 Xxxxxxxxx Xxxxxx Xxxx., Xxxxxxxxxx, XX 00000. This
Agreement shall not become effective and enforceable until seven (7)
days after it has been signed by Employee.
13. EMPLOYEE'S ACKNOWLEDGEMENTS.
13.1 EMPLOYEE AFFIRMS THAT HE HAS CAREFULLY READ THIS ENTIRE
AGREEMENT. HE ATTESTS THAT HE POSSESSES SUFFICIENT EDUCATION
AND/OR EXPERIENCE TO FULLY UNDERSTAND THE EXTENT AND IMPACT OF
ITS PROVISIONS.
13.2 EMPLOYEE ATTESTS THAT HE HAS BEEN AFFORDED THE OPPORTUNITY TO
CONSIDER THIS AGREEMENT FOR A PERIOD OF FORTY-FIVE (45) DAYS.
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EMPLOYEE FURTHER ATTESTS THAT HE HAS BEEN ADVISED BY THE COMPANY
TO DISCUSS THIS AGREEMENT WITH AN ATTORNEY OF CHOICE.
13.3 EMPLOYEE AFFIRMS THAT HE IS FULLY COMPETENT TO EXECUTE THIS
AGREEMENT AND THAT HE DOES SO VOLUNTARILY AND WITHOUT ANY
COERCION, UNDUE INFLUENCE, THREAT, OR INTIMIDATION OF ANY KIND OR
TYPE.
13.4 EMPLOYEE ACKNOWLEDGES THAT HE HAS RECEIVED A DOCUMENT IDENTIFYING
THE JOB TITLES AND AGES OF EACH EMPLOYEE IN THE DECISIONAL UNIT,
WHETHER OR NOT EACH EMPLOYEE WAS SELECTED FOR TERMINATION. EACH
EMPLOYEE TERMINATED IN THIS REORGANIZATION IS ELIGIBLE FOR
SEVERANCE AND RELATED BENEFITS.
14. COMPLIANCE WITH SECTION 409A OF THE INTERNAL REVENUE CODE. The Parties
agree that any payments to be made to Employee hereunder or to be made
pursuant to any other plans maintained by the Company in which
Employee is a participant, such as the VF Supplemental Executive
Retirement Plan, and the VF Executive Deferred Savings Plans that are
subject to the requirements of Section 409A of the Internal Revenue
Code, will be made in a manner intended to comply with the provisions
of Section 409A to avoid, to the extent possible, the imposition of
any excise or other penalty tax on the Employee or the Company and
that the provisions of this Agreement and such plans will be
interpreted accordingly. .
THE UNDERSIGNED HEREBY STATE THAT THEY HAVE CAREFULLY READ THE FOREGOING
AGREEMENT AND RELEASE AND KNOW THE CONTENTS THEREOF AND SIGN THE SAME OF THEIR
OWN FREE ACT.
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of
the dates set forth below.
VF Corporation EMPLOYEE:
By: /s/ Xxxxx X. Xxxxxxxx /s/ Xxxx X. Xxxxxxxxxxx
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Xxxxx X. Xxxxxxxx Xxxx X. Xxxxxxxxxxx
Vice President, Human Resources
Date: January 11, 2006 Date: January 11, 2006
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