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EXHIBIT 10.1
11/28/97 10-Q
RESIGNATION AND RELEASE AGREEMENT
WHEREAS, Xxxxx X. Xxxxxxx (hereinafter "Xx. Xxxxxxx") has worked for
Outlook Group Corp. (hereinafter referred to as the "Company"), most recently
as its Chairman of the Board and Chief Executive Officer; and
WHEREAS, Xx. Xxxxxxx and the Company mutually agree that it is in the
best interest of both parties for Xx. Xxxxxxx to resign his employment as of
the date of this Agreement; and
WHEREAS, Xx. Xxxxxxx and the Company are parties to an Employment
Agreement dated June 1, 1997 (the "Employment Agreement") and wish to
terminate and supersede the Employment Agreement through this Resignation and
Release Agreement, except as specifically noted herein; and
WHEREAS, it is the desire of the parties in the interest of avoiding
further proceedings with respect to their employment relationship to compromise
and finally, fully and completely terminate that relationship in its entirety;
NOW, THEREFORE, in consideration of the provisions of this Agreement,
Xx. Xxxxxxx and the Company do mutually agree and do hereby compromise and
finally, fully and completely settle all of these matters as follows:
1. Xx. Xxxxxxx acknowledges that if he voluntarily resigns under
the Employment Agreement he is entitled to no severance benefits, that the
Company has certain rights under the Employment Agreement which it is willing
to forego and/or modify, that the Company is willing to allow Xx. Xxxxxxx to
pursue the purchase of a portion of the Company's business as described in
paragraph 2(D) below, and that there is therefore adequate consideration for
the mutual promises under this Agreement.
2. Upon the execution of this Agreement and its return to the
Company in final form, the Company will agree to perform the following acts
and/or provide Xx. Xxxxxxx with the following payments and benefits:
A) The Company will pay severance payments to Xx. Xxxxxxx,
pursuant to the Company's normal payroll schedule, equal to his bi-
weekly salary (less required withholding), and will continue to
provide him with employee health, life and disability insurance
benefits (to the extent allowable under existing policies) on the same
basis as if he were an active employee, for a period of one (1) year
from the date of this Agreement. In the event there is a change of
control of the Company within that one
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(1) year period, Xx. Xxxxxxx shall receive an additional one (1) year
of bi-weekly severance payments and insurance benefits.
B) None of these severance payments shall be taken into account
as compensation under any Company welfare, pension, profit sharing
plan or similar program that bases benefits in whole or in part on
compensation received from the Company. Any insurance benefit
provided hereunder to Xx. Xxxxxxx shall cease if and when Xx. Xxxxxxx
becomes eligible for coverage as to that benefit, regardless of level,
through a subsequent employer.
C) Xx. Xxxxxxx will be treated as an employee whose employment
has ended due to resignation as of the date of this Agreement for
purposes of any stock options he may have. Nothing herein shall be
deemed a limitation to the exercise of options available and existing
as of the date of this Agreement in accordance with their terms.
D) Xx. Xxxxxxx shall be allowed to pursue the purchase of the
Company's Outlook Foods, Inc. subsidiary, or its assets and
operations, on the same basis as any potential purchaser. In the
event such purchase is consummated, it shall not be deemed a violation
of paragraph 8 of the Employment Agreement for Xx. Xxxxxxx to operate
that business.
E) Xx. Xxxxxxx may pursue business opportunities in connection
with offset heat-set web printing, including the organization,
establishment and operation of such a business. The Company further
acknowledges and agrees that the organization, establish an operation
of such a business shall not, in and of itself, be deemed a violation
of paragraph 8 of the Employment Agreement.
F) Xx. Xxxxxxx will be allowed to purchase for cash, within 30
days of the date of this Agreement, at book value, the automobile
which the Company is currently providing to him.
3. Xx. Xxxxxxx acknowledges that he has resigned his employment
with the Company or any subsidiary of the Company as of the date of this
Agreement and has resigned all director positions or other offices he may hold
with the Company or any subsidiary of the Company, with no right of
reemployment or reappointment to such positions.
4. Xx. Xxxxxxx agrees and promises that none of the provisions of
this Agreement shall be published, displayed, discussed, disclosed, or revealed
in any way to anyone (other than Xx. Xxxxxxx'x immediate family, attorney and
tax advisor, who shall similarly agree not to make any such further disclosure)
by him under any circumstances other than those required by law. The Company
and Xx. Xxxxxxx shall prepare a "joint" news release in connection with the
resignation.
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5.
A) Except for the covenants contained in this Agreement, to the extent
permitted by law, Xx. Xxxxxxx agrees never to xxx, in any way complain of, or
grieve against the Company, its parent corporations, or its or their affiliates
or subsidiaries, or its or their past, current or future officers, directors,
agents, and employees, and their predecessors, successors or assigns
(hereinafter collectively referred to as the "Releasees") and he releases them
from any and all claims, liabilities and obligations which he may now or in the
future have against the Releasees in connection with or arising from the
employment agreement, his employment, or occurring prior to the date of this
Agreement, whether known or unknown. Xx. Xxxxxxx releases the Releasees of and
from any and all such claims whether brought by or on behalf of Xx. Xxxxxxx,
including, without limitation by enumeration, claims for back pay, front pay,
personal injury, compensatory and punitive damages, injunctive and declaratory
relief, attorneys' fees, and for future damages allegedly arising from the
alleged continuation of the effects of any past action, omission or event.
This Release includes any and all suits, charges, liability and damages, in law
or in equity (including, without limitation by enumeration, any complaints,
claims and suits under the United States and Wisconsin Constitutions; 42 U.S.C.
Sections 1981, 1981a, 1983, 1985, 1986 and 1988; Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq.; the Americans
With Disabilities Act, 42 U.S.C. Section 12101 et seq.; the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. Section 621 et seq.; the
Federal Family and Medical Leave Act, 29 U.S.C. Section 2601 et seq.; the
Employment Retirement Income Security Act of 1974, as amended, 29 U.S.C.
Section 1001 et seq.; Executive Order 11246; the Wisconsin Fair Employment
Act, Wis. Stat. Section 111.31 et seq.; the Wisconsin Family and Medical Leave
Act, Wis. Stat. Section 103.10; and any other law, ordinance or regulation
prohibiting discrimination in employment or otherwise regulating the employment
relationship). This Release includes any and all matters in connection with or
based wholly or partially upon, without limitation by enumeration, acts of age
or other discrimination, retaliation, suspension, discharge, promotion,
transfer, harassment, libel, slander, interference with prospective business
relationships, invasion of privacy, failure to interview, hire or appoint,
terms and conditions of employment, breach of employment contract, wrongful
discharge or constructive discharge allegedly committed against Xx. Xxxxxxx by
the Releasees, or in any way arising directly or indirectly out of Xx.
Xxxxxxx'x employment with and resignation from the Company, up to and including
the date Xx. Xxxxxxx signs this Agreement, whether such claims are known or
unknown at the time Xx. Xxxxxxx signs this Agreement.
B) The Company hereby agrees that Xx. Xxxxxxx shall continue to be
indemnified to whatever extent he is currently entitled to be indemnified, by
law or otherwise, in connection with his prior duties. The indemnity shall not
extend to any matter as to which indemnification is not permitted under Wis.
Stats. Section 180.0858(2).
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6. Xx. Xxxxxxx agrees not to make disparaging remarks about any
of the Releasees, or their products or practices (including, but not limited
to, personnel practices) provided, however, that he may give non-malicious and
truthful testimony about these matters if properly subpoenaed to do so. Except
as provided herein, nothing herein shall be deemed a limitation on the exercise
of Xx. Xxxxxxx'x rights or independent judgment as a shareholder of the
Company.
7. Xx. Xxxxxxx agrees not to participate in, counsel, assist or
cooperate with any investigation of or litigation against any of the Releasees,
involving alleged discrimination against Xx. Xxxxxxx or against any other
person or persons, whether that investigation or litigation is conducted by any
federal, state or local agency or any individual or otherwise, except that he
may testify in such investigation or litigation to the extent required by law.
8. Xx. Xxxxxxx and the Company each acknowledge that:
A. each has read the foregoing document, understands its
contents and agrees to its terms and conditions freely and voluntarily;
B. each has had an opportunity, with their attorney, to
negotiate various changes to this Agreement;
C. each has made an independent investigation of the
facts and does not rely on any statements or representations by the other, its
agents or representatives, in entering into this Agreement;
D. each has been advised to and has consulted with legal
counsel before signing this Agreement;
E. each has had twenty-one (21) days from the date of
receipt of this Agreement within which to consider it;
F. each understands and agrees that this Agreement
includes a final general release and that, as stated in paragraph 5 of this
Agreement, each can make no further claims against any of the Releasees for any
matters having connection with the events covered therein; and
G. Xx. Xxxxxxx may, within seven (7) calendar days
following the date he executes this Agreement and returns it to the Company,
cancel and terminate this Agreement by giving written notice of his intent to
terminate to the Company and by returning to the Company any amounts specified
in paragraph 2 of this Agreement, to the extent he has already received such
payments, and this Agreement shall not become effective or enforceable until
this seven-day period has expired. TIME IS OF THE ESSENCE WITH REGARD TO THIS
SUBPARAGRAPH.
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9. Each party understands and agrees that any breach by either of
them of any of the foregoing covenants shall entitle the non- breaching party
to bring an action for failure to comply with the terms of this Agreement and,
further, should the non-breaching party prevail in such action, it or he shall
be entitled to recover its or his actual attorneys' fees and costs as part of
such action. In addition, the parties agree that the remedy at law for breach
of this Agreement shall be inadequate and that the prevailing party shall be
entitled to injunctive relief and any other remedy or relief ordered by a
court.
10. Xx. Xxxxxxx and the Company each acknowledge that this
Agreement is a joint product and shall not be construed against either party on
the grounds of sole authorship.
11. Each party hereby authorizes and ratifies all that such
party's attorneys may have done or may do in the effectuation of this
Agreement.
12. Neither the Company's signing of this Agreement nor any
actions taken by the Company in compliance with the terms of this Agreement
constitute an admission by the Company that it has unlawfully discriminated
against or wrongfully discharged Xx. Xxxxxxx, breached the Employment
Agreement, or that it has violated any federal, state or local law, Executive
Order or regulation.
13. If any part of this Agreement is held to be illegal,
unenforceable or void, then the balance of the Agreement shall nonetheless
remain in full force and effect, except as provided below in this paragraph.
Each party understands that the other would not have entered into this
Agreement if paragraph 5 above were not enforceable as to all of his or its
current and potential claims. In the event paragraphs 5(A) or 5(B) are not
valid or enforceable, the party benefitting from that paragraph shall have the
option to terminate this Agreement; provided, however, that such termination
shall not affect the resignations referred to in Section 3. If the Company
exercises such right, it shall be entitled to the return of all sums provided
to Xx. Xxxxxxx under paragraph 2 of this Agreement.
14. This Agreement constitutes the complete understanding between
the Company and Xx. Xxxxxxx. No other promises or agreements shall be binding
unless signed by these parties, and the Employment Agreement is hereby
superseded and terminated, with the specific exception of paragraphs 8, 9 and
10, which shall remain in full force and effect except as modified or waived in
this Agreement.
/s/ Xxxxx X. Xxxxxxx December 13, 1997
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Xxxxx X. Xxxxxxx
Outlook Group Corp.
By: /s/ Xxxxx X. Xxxx December 17, 1997
--------------------- Date
Its Authorized Representative
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