1
Exhibit 10.1
AGREEMENT AND GENERAL RELEASE
THIS AGREEMENT AND GENERAL RELEASE ("Agreement") is made and entered into
by and between Xxxxxx X. Xxxxxx ("Roller") and Wolverine Tube, Inc., its
directors, officers, employees and agents ("Wolverine").
WITNESSETH:
WHEREAS, Roller agrees that he has voluntarily resigned all of his
positions with Wolverine on March 31, 1997; and
WHEREAS, Roller and Wolverine desire to settle fully and finally all
differences between them, including, but in no way limited to, any differences
that might arise out of Roller's employment with Wolverine, and his resignation
thereof;
NOW, THEREFORE, in consideration of the premises and mutual promises
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Roller and Wolverine agree as
follows:
1. Benefits. On or after the Effective Date (as defined in paragraph 15 hereof)
of this Agreement, Wolverine shall provide Roller with the following benefits:
a. Roller shall be paid, as and when they become due, all of Roller's
retirement benefits, if any, which were vested as to Roller as of March 31, 1997
in accordance with the terms of the underlying plan(s);
b. Roller shall be paid on or before April 30, 1997 all accrued and
earned vacation pay to which Roller is entitled, equal to three (3) weeks of
Roller's current base salary;
c. Roller shall be paid an amount equal to his current base salary
through September 30, 1998 as a series of payments in accordance with the
Company's normal payroll procedures, which the parties acknowledge is a total of
$675,000;
d. The Company shall reimburse Roller for any costs incurred by Roller in
electing continuation coverage, pursuant to the provisions of the Consolidated
Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. xx.xx. 1161-1169, under
only the Company's medical plan, and maintaining life insurance coverage
comparable to that maintained for him by the Company for the period from the
Effective Date until the earlier to occur of:
(X) the date which is eighteen (18) months after the Effective
Date, or
2
(Y) the date on which Roller is covered under the medical plan of
another employer;
e. Upon the presentation of appropriate invoices, the Company shall pay
up to $60,000 for executive outplacement services to be provided by a firm
selected by Roller;
f. On or before April 30, 1997, the Company shall further provide Roller
with a lump sum of $10,000, less appropriate withholdings; and
g. Promptly after the Effective Date, Wolverine, through one of its
outside directors, shall provide Roller with a statement relating to his
separation from Wolverine in the form attached hereto as Exhibit A.
These payments shall be in lieu of and discharge any obligations of Wolverine to
Roller for any rights or claims of any type, including, but not limited to, any
and all rights that Roller may have under his Severance Agreement dated
September 19, 1996 (the "Severance Agreement"), the Wolverine Tube, Inc.
Long-Term Incentive Plan, or arising out of any other plan, agreement, offer
letter, or contract of any type, any and all rights that Roller may have under
the Stock Option Plan or other rights to acquire stock of Wolverine, lost
compensation, lost wages, lost benefits, pain and suffering, or any other
expectation of remuneration or benefit on the part of Roller. Other than the
obligations specifically set forth in this paragraph 1 and other than Roller's
rights, if any, to indemnification under the Articles of Incorporation and
By-laws of Wolverine relating to his conduct as a director and/or officer of
Wolverine, Wolverine shall have no other financial obligations to Roller under
this Agreement. Roller understands and agrees that the payments and benefits
described herein are greater than those to which Roller is otherwise entitled
under applicable agreements, policies and procedures.
2. Non-Admission of Liability. This Agreement shall not in any way be construed
as an admission by Wolverine that it has acted wrongfully with respect to Roller
or any other person, or that Roller has any rights whatsoever against Wolverine,
and Wolverine specifically disclaims any liability to or wrongful acts against
Roller or any other person, on the part of itself, its employees, or its agents.
3. Resignation of Employment; No Reemployment. Roller and Wolverine agree that
active employment with Wolverine has terminated by Roller's voluntary
resignation as an employee, officer and director of Wolverine and in all other
capacities relating to Wolverine, which was effective March 31, 1997. Roller and
Wolverine further agree that he will not be reemployed by Wolverine, and that he
will not apply for or otherwise seek employment with Wolverine at any time. A
breach of this paragraph by Roller will constitute a basis for refusal to employ
Roller or to terminate him if already employed, and he shall have
2
3
no cause of action against Wolverine for such refusal or termination.
4. Non-Disparagement. Roller agrees that he will not act in any manner that
might damage the business or reputation of Wolverine and/or any of its related
companies, successors, assigns, officers, or directors. Roller further agrees
that he will not counsel or assist any attorneys or their clients in the
presentation or prosecution of any disputes, differences, grievances, claims,
charges, or complaints against Wolverine and/or any officer, director, employee,
agent, representative, shareholder, or attorney of Wolverine, unless under a
subpoena or other court order to do so. The parties acknowledge that Wolverine
issued a press release on March 31, 1997, regarding Roller's departure. Unless
deemed advisable under applicable securities laws, Wolverine will issue no other
press releases regarding Roller's tenure with Wolverine and his departure from
Wolverine and the circumstances related thereto. Further, Wolverine and its
officers, directors and agents will refrain from making any statements or
comments, written or oral, which might damage the reputation of Roller. In
response to inquiries relating to Roller, Wolverine and its officers, directors
and agents will either (i) issue favorable statements concerning Roller, (ii)
limit their remarks to the statements contained in the March 31 press release
and Exhibit A, or (iii) reference that the relationship was "not a good fit" or
words to that effect.
5. Future Cooperation. With the exception of litigation wherein Roller is an
individually-named and properly served defendant and wishes to take such actions
as he deems appropriate to defend himself, Roller agrees that he will, upon
request by and at the expense of Wolverine, assist and cooperate with Wolverine
in any lawsuits, disputes, differences, grievances, claims, charges, or
complaints brought or threatened by any party against Wolverine or brought by
Wolverine against any party; provided, however, that Roller will be compensated
for his time at the rate of $130 per hour and such cooperation will be provided
in such a way as to not unreasonably interfere with any duties of Roller as to
subsequently obtained employment.
6. Cessation of Authority; Resignation from Board(s). Roller understands and
agrees that effective March 31, 1997, he was and is no longer authorized to
incur any expenses, obligations, or liabilities on behalf of Wolverine. Roller
further agrees that effective March 31, 1997 he has resigned any and all
Directorship(s) and/or other positions of Wolverine or any Wolverine subsidiary
or affiliate.
7. Return of Company Materials and Property. Roller understands and agrees that
he will immediately turn over to Wolverine all files, memoranda, records, credit
cards, and other documents, physical or personal property that Roller received
from Wolverine and that are the property of Wolverine.
3
4
8. Non-Disclosure and Trade Secrets. Roller understands and agrees that in the
course of employment with Wolverine, he has acquired confidential and
proprietary information and trade secrets concerning Wolverine's operations, its
future plans for sales and expansion, its methods of doing business, its
financial situation, which information Roller understands and agrees would be
extremely damaging to Wolverine if disclosed to a competitor or made available
to any other person or corporation. Roller understands and agrees that such
information has been divulged to Roller in confidence and Roller understands and
agrees that he will keep such information secret and confidential. Roller
further agrees that he will not solicit or participate in or assist in any way
in the solicitation of any other employees of Wolverine or of any of its
affiliated companies. In view of the nature of Roller's employment and the
information and trade secrets which Roller has received during the course of his
employment, Roller likewise agrees that Wolverine would be irreparably harmed by
any violation, or threatened violation, of this Agreement and that, therefore,
Wolverine shall be entitled to an injunction prohibiting Roller from any
violation or threatened violation of this Agreement. The undertakings set forth
in this paragraph shall survive the termination of other arrangements contained
in this Agreement. In addition, Roller shall remain bound by those duties and
obligations set forth in paragraph 2, Secrecy, in the Severance Agreement.
9. Complete Release. As a material inducement to Wolverine to enter into this
Agreement and subject to Wolverine's performance of its obligations described in
paragraph 1 hereof, Roller hereby irrevocably and unconditionally releases,
acquits, and forever discharges Wolverine and each of Wolverine's owners,
predecessors, successors, assigns, agents, directors, officers, employees,
representatives, attorneys, and all persons acting by, through, under or in
concert with any of them (collectively "Releasees"), or any of them, from any
and all charges, complaints, claims, promises, and agreements, damages,
(including attorneys' fees and costs actually incurred) of any nature
whatsoever, known or unknown, suspected or unsuspected, including, but not
limited to, rights arising out of alleged violations of any contracts, express
or implied, including, but not limited to, the Severance Agreement, any covenant
of good faith and fair dealing, express or implied, or any tort, including, but
not limited to, fraudulent inducement, promissory estoppel, or detrimental
reliance, or any legal restrictions on Wolverine's right to terminate employees,
or any federal, state or other governmental statute, regulation, or ordinance
("Claim" or "Claims"), which Roller now has, owns or holds, or claims to have,
own or hold, or which Roller at any time heretofore had, owned or held, or
claimed to have, own or hold, or which Roller at any time hereinafter may have,
own or hold, or claim to have, own or hold against each or any of the Releasees.
Likewise, as a material inducement for Roller to execute this Agreement,
Wolverine hereby irrevocably and unconditionally releases, acquits and forever
discharges Roller from any and all
4
5
claims, demands and causes of action of whatever nature which Wolverine now has,
may have or claims to have arising from Roller's employment by Wolverine.
10. No Claims. Roller represents that he has not filed any complaints, charges,
or lawsuits against Wolverine or any of its employees with any governmental
agency or any court, and that he will not do so at any time hereafter, or that
any such complaints, charges, or lawsuits filed prior to execution of this
Agreement will be withdrawn by Roller immediately after this Agreement becomes
effective; provided, however, this shall not limit either party hereto from
filing a lawsuit for the sole purpose of enforcing its rights under this
Agreement.
11. Confidentiality. Roller represents and agrees that he will keep the terms,
amount, and fact of this Agreement completely confidential, and that he will not
hereafter disclose any information concerning this Agreement to anyone other
than Roller's immediate family and professional representatives who will be
informed of and bound by this confidentiality clause; provided, however, that
Roller shall be free to disclose to others any information relating to the
terms, amount and fact of this Agreement to the extent that Wolverine discloses
any such information to the public, including, without limitation, any
information disclosed in securities filings.
12. Consultation with Counsel. Roller represents and agrees that he fully
understands his right to discuss all aspects of this Agreement with his private
attorney, that Roller has availed himself of this right, that Roller has
carefully read and fully understands all of the provisions of this Agreement,
and that Roller is voluntarily entering into this Agreement.
13. Knowing and Voluntary Waiver. For the purpose of implementing a full and
complete release and discharge of both parties, each party expressly
acknowledges that this Agreement is intended to include in its effect, without
limitation, all Claims which a party does not know or suspect to exist in his or
its favor at the time of execution hereof, and that this Agreement contemplates
the extinguishment of any such Claim or Claims. Roller further expressly
acknowledges he is freely and voluntarily executing this Agreement, and that he
has had sufficient and reasonable time to consider this Agreement and its terms
before executing it.
14. No Representations. Roller represents and acknowledges that in executing
this Agreement Roller does not rely and has not relied upon any representation
or statement not set forth herein made by any of the Releasees or by any of the
Releasees' agents, representatives, or attorneys with regard to the subject
matter, basis, or effect of this Agreement or otherwise.
15. Effective Date. This Agreement shall become effective and fully binding upon
execution by Roller ("Effective Date"),
5
6
provided that Wolverine executes this Agreement immediately thereafter.
16. Sole and Entire Agreement. The Agreement sets forth the entire agreement
between the parties hereto, and fully supersedes any and all prior agreements or
understandings between the parties hereto pertaining to the subject matter
hereof.
17. Severability. The provisions of this Agreement are severable, and if any
part of it is found to be unenforceable, the other paragraphs shall remain fully
valid and enforceable. This Agreement shall survive the termination of any
arrangements contained herein.
18. Attorneys' Fees. In the event either party finds it necessary to institute
litigation to enforce the terms of this Agreement, the prevailing party in such
litigation shall be entitled to recover its reasonable attorneys' fees, costs
and expenses in connection with such litigation.
PLEASE READ AND CONSIDER THIS AGREEMENT CAREFULLY BEFORE EXECUTING. THIS
SETTLEMENT AGREEMENT AND GENERAL RELEASE INCLUDES A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
Executed at Carmel, Indiana, this 1st day of April, 1997.
/s/ Xxxxxx X. Xxxxxx
--------------------------
Xxxxxx X. Xxxxxx
Executed at Huntsville, Alabama, this 1st day of April, 1997.
By: /s/ Xxxx X. Xxxxxxx
--------------------------
for Wolverine Tube, Inc.
6