1
Exhibit 10
PAY AGREEMENT AND RELEASE
OF XXXXXXX XX XXX
This agreement effective on the last date executed below, contains all the
understandings between Xxxxxxx xx Xxx and Xxxxxx, Inc. and its parents,
subsidiaries or affiliates, including without limitation, Xxxxxx, Inc., and
their officers, directors, employees and agents in their individual and
representative capacities, known collectively as the "Company" in connection
with your separation from employment. This agreement provides the specific
details of benefits to be received by you including those under the Company's
Employment and Benefits Upon Termination Plan and the conditions agreed to by
you for the receipt of those benefits.
1. The Company will pay you a gross total amount of $1,032,000, to be paid to
you in a lump sum no later that fifteen days following termination.
Deductions for cash advances, other money due the Company and as required
by statute or regulation, will be made from this allowance. Your official
termination date will be May 31, 1998. Between now and your termination
date you will work with the Partners and your staff to ensure a smooth
transition of responsibilities.
2. In accordance with the BW Holdings LLC Management Equity Plan, your units
will be repurchased at the Ordinary Repurchase Price which is the lesser
of: (a) The Original Purchase Price plus a portion (equal to the vested
percentage) of the amount, if any, by which the Unit Value exceeds the
Original Purchase Price; or (b) the greater of the Modified Book Value Per
Unit (MBV) or the Unit Value. Vesting will be determined as of the
Repurchase Calculation Date, March 1998, and, in accordance with the Plan,
they will be terminated if they are "underwater." Payment will be made by
May 31, 1998.
3. You agree to conduct yourself in a manner that does not disparage the
Company, or is damaging to or otherwise contrary to the Company's best
interests and you agree that this agreement is strictly confidential and
you will not reveal its terms except in connection with an official
investigation, legal process, or to immediate family, attorneys,
accountants, or other professional advisors to whom disclosure is necessary
provided that such persons agree to be subject to non-disclosure and
confidentiality. The Company agrees that its officers, directors and
employees agree that they will not disparage you and further agree that
this agreement is strictly confidential except for required public
disclosures, such as the Company's 10-K.
4. You also understand that your active participation in all active Company
sponsored employee benefit programs ceases on the date of your termination.
You have elected to continue your medical/dental benefits at normal active
associate contributions through May 31, 2000. You will pay Xxxxxx, Inc.
$3,612 by May 31, 1998 for this coverage. Any money due from Company
benefit plans, including, but not limited to, ESPP, Medical Accumulation,
and vested portion of 401(k) balances, will be paid to you in addition to
the amount paid under this Agreement pursuant to the terms of such plans.
You have 31 days from your termination date to convert group
1
2
life coverage to an individual policy without the requirement of a physical
examination.
5. You will be provided, without charge, The Leader in Transition executive
outplacement service through Manchester International in their Xxxxxxxxx
Xxxxxx, XX xx Xxx Xxxx, XX office. The Company does not warrant or
guarantee the results of the services provided and you agree to hold the
Company harmless from any claims in connection with the services provided.
6. You will be reimbursed for documented expenses associated with packing and
shipping your personal and household belongings to Connecticut. You will
also be reimbursed for documented expenses associated with terminating your
apartment lease.
7. You accept the money and benefits to be paid to you under this Agreement as
full settlement of all claims and causes of action arising out of your
employment by the Company and the termination of that employment, except
any vested pension rights and the provisions of this agreement.
8. You agree that you are entering into this agreement and release as your own
free decision in order to receive the payments and other benefits described
above. You understand that the Company would not make these payments or
extend these benefits to you without your voluntary consent to this
Agreement.
You understand that by signing this Agreement you are waiving all rights to
reinstatement or future employment with the Company and that you are giving
up your right to, and agreeing not to, file charges or lawsuits: (a) with
respect to any discrimination you believe you have suffered due to age,
disability, race, sex, religion, national origin or any other reason
related to your employment by the Company, or the termination of that
employment, including, but not limited to, any claims under Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the
Equal Pay Act, the Rehabilitation Act of 1973, Section 1981 of the Civil
Rights Act of 1866, the Civil Rights Act of 1991, the Americans with
Disabilities Act, the Family and Medical Leave Act of 1993, the Worker
Adjustment and Retraining Notification Act, the Older Workers Benefit
Protection Act, the Fair Labor Standards Act, and any other federal, state,
or local statute or regulation regarding employment, worker's compensation,
discrimination in employment or termination of employment; (b) with respect
to any theory of libel, slander, breach of contract, wrongful discharge,
detrimental reliance, infliction of emotional distress, tort, or any other
theory under the common law; and (c) with respect to any claims for
uncompensated expenses, severance pay, incentive or bonus pay, overtime pay
or any other form of compensation, except the executory provisions of this
Agreement.
You intend that this Agreement will bar each and every claim, demand and
cause of action above specified, whether known or unknown to you at the
time of execution of this Agreement. As a result, you acknowledge that you
might, in the future, discover claims or facts in addition to or different
from those which you now know or believe to exist with respect to the
subject matters of this Agreement and which, if known or suspected at the
time of
2
3
executing this Agreement, may have materially affected this settlement.
Nevertheless, you hereby waive any right, claim, or cause of action that
might arise as a result of such different or additional claims or facts.
You also agree that should you breach this agreement by filing any charge
or beginning any suit as described in this paragraph you will immediately
repay to the Company the sums you have received under paragraph 1, above,
less $100.00 and further agree that in such event the Company will have no
further obligation to provide you with additional pay or benefits under
this agreement, but that all other provisions of this agreement will remain
in effect.
9. You agree that, following execution of the Agreement by all Parties, and
before May 31, 1998, you will return to the Company all Company credit
cards, keys, customer lists and records, policy and procedure manuals,
price lists, business contracts and other documents and information
belonging to the Company. You also agree to return all Company property,
including but not limited to cell phones, Palm Pilot and laptop/personal
computers.
10. You recognize that the Company possesses certain business and financial
information about its operations, information about new or envisioned
products or services, manufacturing methods, product research, product
specifications, records, plans, prices, costs, customer lists, concepts and
ideas, and is the owner of proprietary rights in certain systems, methods,
processes, procedures, technical and non-technical information, inventions,
machinery, research and other things which constitutes valuable trade
secrets of the Company. You acknowledge that you have been employed in
positions in which you have had access to such information and that the
Company has a legitimate interest in protecting such confidential and
proprietary information in order to maintain and enhance a competitive edge
within its industries. Accordingly, you agree that you will not use or
remove, duplicate or disclose, directly or indirectly, to any persons or
entities outside the Company any information, property, trade secrets or
other things of value which have not been publicly disclosed. In the event
that you are requested or required in a judicial, administrative or
governmental proceeding to disclose any information that is the subject
matter of this Paragraph, you will provide the Company with prompt written
notice of such request and all related proceedings so that the Company may
seek an appropriate protective order or remedy or, as soon as practicable,
waive your compliance with the provisions of this Paragraph.
11. You agree not to consult or provide services to any pasta business for a
period of two (2) years following your termination on May 31, 1998 without
the express written consent of Xxxxxx, Inc. which shall not be unreasonably
withheld. This agreement supersedes the non-compete clause included in the
BW Holdings LLC Management Equity Plan. You further agree that you will
not, directly or indirectly, solicit or recruit other employees of the
Company to leave their employment with the Company for a period of two (2)
years.
12. By entering into this Agreement, the Company does not admit to the breach
of any contractual or other promises to you, and does not admit to the
violation of any federal, state, local or other statute or law, including,
but not
3
4
limited to, those laws referred to in Paragraph 8 of this Agreement, and
any claimed breaches or violations are hereby specifically denied.
13. In consideration of the terms hereof and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
the Company hereby agrees to release and waive all claims and never to
commence, prosecute or cause to permit, advise or assist to be commenced or
prosecuted any lawsuits, actions, charges or proceedings of any kind upon
any claims, demands, causes of action, obligations, damages or liabilities
against you and/or your agents, successors or assigns which were asserted
or could have been asserted by the Company through the day of execution of
the Agreement in any State, Federal or Agency action and any claims for
attorneys' fees that exist or may exist as of the date of the signing of
this Agreement.
14. This Agreement constitutes our entire agreement and supersedes all prior
agreements, with the exception of the BW Holdings LLC Management Equity
Plan, and cannot be changed or modified orally, but only by an instrument
in writing signed by the parties hereto.
15. This Agreement shall inure to the benefit of the parties hereto and their
respective successors, executors, trustees, administrators and assigns.
16. The waiver of any provisions hereof shall not be construed as a waiver of
any other provision of this Agreement. The failure of any party hereto to
enforce at any time any provision shall not be construed to be a waiver of
such provision nor affect the validity hereof or any part hereof or the
right of any party thereafter to enforce each such provision.
17. All parties agree to cooperate fully and execute any and all supporting
documents, and take all additional actions which may be necessary to give
full force and affect to the basic terms of this Agreement.
18. The Parties agree that this Agreement shall be construed in accordance with
Ohio law, and that any action brought by any party hereunder may be
instituted and maintained only in the appropriate court having jurisdiction
over Franklin County, Ohio.
19. In making your decision, you recognize that you have the right to seek
advice and counsel from an attorney, if you so choose. You also have
twenty-one (21) days from the date this agreement is presented to you to
decide whether to sign this agreement.
20. You have seven (7) calendar days from the date you sign this Agreement to
cancel it in writing. You also understand that this Agreement will not bind
either you or the Company until after the seven-day period you have to
cancel. No payments will be made under this Agreement until it becomes
4
5
binding. You may cancel this Agreement by signing the cancellation box
below (or by any other written signed notice) and delivering it to the
Company within seven days of your signing this Agreement.
Very truly yours,
/s/ C. Xxxxxx Xxxxxx
C. Xxxxxx Xxxxxx
CEO, Xxxxxx, Inc.
April 29, 1998
ACCEPTED:
/s/ Xxxxxxx xx Xxx
---------------------
Associate's Signature
Date: 4/29/98 WITNESS:
--------------
At Columbus, OH /s/ Xxxxx X. Xxxxxxx
----------------- -------------------------
[Location]
CANCELLATION NOTICE:
(To cancel this Agreement, sign below and deliver this copy of the Agreement to
the Company within 7 days of the date you signed the Agreement.)
I hereby cancel this Agreement.
------------------------ -----------------------------------
Date Signature
5
