Exhibit 10.8
AGREEMENT AND GENERAL RELEASE
Agreement and General Release (this "Agreement"), dated as of March 31,
2008, by and between Xxxxx Ruger & Company, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx X. Xxxxxxx ("Employee").
WHEREAS, Employee is employed by the Company as its President; and
WHEREAS, Employee desires to voluntarily resign from all offices and other
positions he currently holds with the Company;
NOW, THEREFORE, in consideration of the covenants and conditions set forth
herein, the parties hereby agree as follows:
1. Employment Status. Employee hereby voluntarily resigns, and the Company
hereby accepts Employee's resignation, as President and an employee of the
Company, in each case effective no later than May 1, 2008 (the date of
effectiveness of such resignation is hereinafter referred to as the "Separation
Date").
2. Separation Arrangements. In consideration of the performance by
Employee of his obligations pursuant to this Agreement, the Company agrees to
pay to Employee $325,000, less applicable withholdings for federal, state and
local taxes, which represents a special bonus and the value of all of Employee's
accrued but unused vacation time. Such amount shall be paid by wire transfer of
immediately available funds to an account designated in writing by Employee for
such purpose on the Separation Date.
From and after the Separation Date, Employee shall be entitled to receive
his unused benefits as of the Separation Date under the 401(k) Plan of the
Company and the Salaried Employees' Retirement Income Plan of the Company
(collectively, the "Qualified Plans") in accordance with and subject to the
terms and conditions of the Qualified Plans.
The Company shall promptly process and pay all reasonable and customary
business expenses incurred by Employee through the Separation Date and submitted
by Employee to the Company for payment no later than fifteen (15) days after the
Separation Date in accordance with the Company's ordinary expense payment
procedures.
Page 3 of 8
Employee acknowledges and agrees that Employee is not entitled to and
shall not be entitled to any compensation or benefit of any kind or description
from the Company or as a result of his employment by the Company other than as
set forth herein or as otherwise required by applicable law.
3. Release. In consideration of the Company's obligations pursuant to this
Agreement, Employee, on behalf of himself and his heirs, successors,
administrators and assigns (the "Employee Parties"), hereby releases and forever
discharges the Company and any and all of its current and former directors,
officers, employees, agents, stockholders, administrators, representatives,
attorneys, insurers, fiduciaries, successors and assigns (the "Company Parties")
from any and all manner of actions and causes of action, suits, debts, dues,
accounts, bonds, covenants, contracts, agreements, judgments, charges, claims
and demands whatsoever which the Employee Parties, or any of them, have or may
hereafter have against the Company Parties, or any of them, arising out of or by
reason of any cause, matter or thing whatsoever occurring up to the Separation
Date, including, without limitation, any and all matters relating to Employee's
employment by the Company and the termination thereof, including, but not
limited to, any claims for employment discrimination on the basis of age, sex,
race, national origin, disability or any other protected class and any claims
for wages, salary, bonuses, severance pay or benefits of any kind or nature and
any and all matters arising under any federal, state or local statute, rule or
regulation or principle of contract law or common law, including, but not
limited to, claims arising under the Age Discrimination in Employment Act of
1967, as amended, the Employee Retirement Income Security Act of 1974, 29 U.S.C.
ss. 1001 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. ss. 2000e
et seq., the Americans with Disabilities Act, 42 U.S.C. ss. 12101 et seq., the
Family and Medical Leave Act of 1993, 29 U.S.C. ss. 2601 et seq., and N.H.R.S.A.
ss.354-A, all as amended. If any applicable law, regulation or rule prohibits a
waiver of any such claim(s), Employee hereby represents and warrants that he has
no such valid claim(s). Notwithstanding the foregoing, nothing contained herein
shall constitute a release of Employee's benefits that are vested as of the
Separation Date pursuant to the Qualified Plans and claims arising under this
Agreement.
Employee understands that he is releasing claims that he may not know
about, which is his knowing and voluntary intent, even though he recognizes that
someday he might learn that some or all of the facts he currently believes to be
true are untrue and even though he might then regret having signed this
Agreement. Nevertheless, Employee expressly assumes that risk and agrees that
Page 4 of 8
this Agreement will remain effective in all respects in any such case. Employee
expressly waives all rights he might have under any law that is intended to
protect him from waiving unknown claims and he understands the significance of
doing so. It is the express intent of the parties that this Agreement resolves
all outstanding issues and/or claims between them, except as otherwise expressly
provided herein.
The Company hereby advises Employee: (a) that he should consult an
attorney regarding this Agreement, (b) that he has twenty-one (21) days from the
date of his receipt of this Agreement to consider whether he wants to sign it
and (c) if he does sign this Agreement, he will have seven (7) days from the
date he signs it to revoke his acceptance of its terms. At the conclusion of
that seven (7) day period, this Agreement will become effective.
4. Confidential Information. Employee acknowledges that during Employee's
employment by the Company Employee has had access to and possession of
non-public and/or proprietary information and materials concerning the Company,
including, but not limited to, information concerning the Company's operations,
systems, services, personnel, marketing, distribution, financial affairs,
strategies and techniques, structure, products, product development, legal
affairs and technology ("Confidential Information and Materials"). Confidential
Information and Materials shall not include (i) information that is publicly
known as of the Separation Date or (ii) information that becomes publicly known
after the Separation Date without the fault of Employee. Employee agrees that
Confidential Information and Materials are the exclusive property of the Company
and that Employee will keep all Confidential Information and Materials
confidential and will not, without the prior written consent of the Chief
Executive Officer of the Company, disclose or otherwise make available any
Confidential Information and Materials to any third person other than as
required by applicable law or legal process or as may be necessary or
appropriate in connection with Employee's carrying out his duties or enforcing
his rights under this Agreement. Except as provided in the preceding sentence,
Employee further agrees that Employee will not use any Confidential Information
and Materials for Employee's personal benefit or for the benefit of any third
person or entity without the prior written consent of the Chief Executive
Officer of the Company.
5. Non-Solicitation. Employee agrees that he will not, directly or
indirectly, whether for his own benefit or for the benefit of any other entity
or individual solicit, encourage, or in any way influence any person employed
by, or engaged to render services on behalf of the Company, to leave the
Company, or to engage in any activity contrary to or conflicting with the
interests of the Company.
Page 5 of 8
6. Non-Disparagement. Employee agrees that Employee will not intentionally
publish or communicate to any person or entity any Disparaging remarks, comments
or statements concerning the Company Parties. "Disparaging" remarks, comments or
statements are those that impugn the character, honesty, integrity or morality
or business acumen or abilities of the individual or entity being disparaged.
The Company agrees that neither it nor its directors and executive officers will
intentionally publish or communicate to any person or entity any Disparaging
remarks, comments or statements concerning Employee. Notwithstanding the
foregoing, nothing contained in this Paragraph 6 shall be deemed to prevent
Employee, on the one hand, or the directors and executive officers of the
Company, on the other hand, from providing truthful testimony in response to any
subpoena, court order or other process of a valid governmental authority or
seeking to enforce the Company's or Employee's rights under this Agreement.
7. Tax Matters. The Company and Employee intend that this Agreement
complies with the provisions of Section 409A of the Internal Revenue Code of
1986, as amended, and the regulations and other guidance of general
applicability that are issued thereunder ("Section 409A"). The Company and
Employee agree to negotiate in good faith regarding any amendments to this
Agreement that may be necessary or desirable to comply with Section 409A.
8. Cooperation. Employee agrees to make himself reasonably available at
the Company's main offices or at such other locations as the Company and
Employee may reasonably agree, following reasonable prior notice from the
Company, to provide reasonable assistance to the executive officers of the
Company in connection (i) with the transitioning of Employee's duties and
responsibilities as President of the Company to a successor or successors and
(ii) the defense of the Company in connection with any actual or threatened
legal proceeding that relates to or arises from activities or events that
occurred during the period of Employee's employment by the Company, provided
that such assistance will be limited to matters involving Employee's personal
knowledge of the underlying facts. The Company agrees to reimburse Employee for
any reasonable out-of-pocket expenses incurred by him in providing such
assistance.
Employee hereby waives the right voluntarily to assist, and will not
provide voluntary assistance to, individuals or entities with claims or defenses
adverse to the Company Parties. If Employee is compelled, pursuant to a
subpoena, court order or other process of a valid governmental authority, to
provide information or discovery to other individuals or entities who are
Page 6 of 8
adverse to the Company Parties he may do so only after giving the Company the
best notice possible unde all of the circumstances, and preferably at least ten
(10) days advance written notice, of (i) any proceeding at which a court order
regarding Employee's testimony or assistance is sought, (ii) any subpoena or
process requiring or requesting Employee's testimony or assistance and (iii) the
date on which the testimony or assistance is proposed or ordered to be made. The
purpose of this notice is to allow the Company Parties to respond thereto and/or
seek appropriate relief under this Paragraph 8. This Paragraph 8 will not
prohibit Employee from assisting in an investigation or proceeding conducted by
an agency of the United States or any state government. Employee nevertheless
waives his right to seek or accept any damages or relief in any proceeding
relating to any act or omission covered by the release in Paragraph 3 of this
Agreement. The terms and conditions of this Paragraph 8 are procedural in
nature, not substantive, and are not intended to and shall not operate to limit
Employee's obligations to provide truthful testimony.
9. Miscellaneous. Employee acknowledges that the benefits from the Company
set forth in Paragraph 2(a) of this Agreement are benefits he would not be
entitled to receive in the absence of this Agreement.
Employee represents and warrants that Employee fully understands the terms
of this Agreement and that Employee knowingly and voluntarily, of Employee's own
free will without any duress, being fully informed and after due deliberation,
accepts its terms and is executing and delivering this Agreement as Employee's
own free act. Employee further represents and warrants that, except as set forth
herein, no promises or inducements for this Agreement have been made, and
employee is entering into this Agreement without reliance upon any statement or
representation by any of the Company Parties or any other person concerning any
fact material hereto.
Employee confirms Employee's understanding that as a result of entering
into this Agreement Employee will not have the right to assert that the Company
unlawfully terminated Employee's employment or violated any rights in connection
with Employee's employment, including Employee's right to assert any claim of
unlawful discrimination.
If the Company or Employee brings a lawsuit or files any claim in
violation of this Agreement, Employee or the Company, as the case may be, may
xxx for breach of contract and any other appropriate cause of action and, if
successful, will be entitled to recover costs and attorneys' fees incurred in
connection with the defense of any such proceeding.
Page 7 of 8
10. Remedies. Employee acknowledges that a breach by Employee of Paragraph
4, 5, 6 or 8 of this Agreement would be material, and would cause irreparable
injury and agrees that the rights and remedies of the Company hereunder may be
enforced both at law and in equity, by injunction or otherwise, without the
requirement that the Company post any bond or security.
11. Entire Agreement. This Agreement constitutes the entire agreement
between Employee and the Company with respect to the subject matter hereof and
supersedes any and all prior agreements or understandings between Employee and
the Company arising out of or relating to Employee's employment and the
cessation thereof. This Agreement may only be changed by written agreement
executed by Employee and the Company. To be effective, any waiver of any
provision of this Agreement must be in writing and signed by the party against
whom enforcement is sought.
12. Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of New York, without giving
effect to the principles of conflicts of law thereof.
13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
14. Headings. The headings in this Agreement are included for convenience
of reference only and shall not affect the interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the day and year first above written.
XXXXX, RUGER & COMPANY, INC.
/s/ Xxxxxxx X. Xxxxxxx April 10, 2007 /s/ Xxxxxxx X. Xxxxx
---------------------- --------------------
Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
Page 8 of 8
