EXHIBIT 10.1
Xxxxxx X. Xxxxxx
President and
Chief Executive Officer
Direct Line: (000) 000-0000
Facsimile: (000) 000-0000
e-mail: xxx.xxxxxx@xxxxxxxxx.xxx
October 28, 2004
(revised November 30, 2004)
Xx. Xxxxxxx X. X'Xxxxxxxx
0 Xxxxxxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Dear Xxxx:
This letter agreement will document the terms of your separation from X'Xxxxxxxx
Industries, Inc. ("X'Xxxxxxxx"). Both you and X'Xxxxxxxx agree that your last day of employment
with X'Xxxxxxxx will be November 6, 2004.
In recognition of your service, and in consideration of the agreements made by you in this
letter agreement, X'Xxxxxxxx will make the following arrangements for your benefit.
(1) X'Xxxxxxxx will pay you your regular salary for the period from (but not
including November 6, 2004 through and including April 6, 2005. This amount will
continue to be paid through X'Xxxxxxxx'x regular biweekly payroll. If you request, we will
pay you the remaining amount due under this paragraph during the week of January 3,
2005.
(2) X'Xxxxxxxx will continue your automobile allowance through April 6, 2005,
with payments to be made with each of the payments described in paragraph (1) above.
(3) X'Xxxxxxxx will pay you for your accrued but unused vacation time through
November 6, 2004. You will not accrue additional vacation time after November 6, 2004.
(4) Through December 31, 2005, you agree to provide X'Xxxxxxxx consulting
services as an independent contractor with respect to such matters as may be reasonably
requested by persons designated by X'Xxxxxxxx from time to time. X'Xxxxxxxx agrees that
your consulting duties hereunder will not unreasonably interfere with any new employment
duties that you may hereafter undertake. X'Xxxxxxxx will reimburse you for any expenses
you may incur in connection with consulting services to X'Xxxxxxxx.
(5) During the period when you are a consultant to X'Xxxxxxxx, you will be
eligible, at your option, to continue medical and dental insurance coverage for you and
your family at the regular employee contribution rates in effect from time to time. Please
contact Xx. Xxxxxx Xxxx to arrange for continuation of medical and dental insurance. If
you request, we will deduct premiums through June 30, 2005 from the amounts due you
under paragraph (1) above. After December 31, 2005, you will be entitled to continue
your medical and dental coverage under COBRA for 18 months at the applicable COBRA
premium rate established by X'Xxxxxxxx'x Human Resources Department. You should
contact X'Xxxxxxxx'x Human Resources Department as December 31, 2005 approaches to
arrange for payment of the premiums for COBRA coverage if you desire it. In the event
that you become eligible for medical insurance coverage from another employer plan,
X'Xxxxxxxx'x obligation to provide you insurance will terminate. You agree, as a part of
your obligations under this agreement, to tell us promptly if you become eligible for
coverage under another plan.
(6) Distributions under the X'Xxxxxxxx Industries Holdings, Inc. Savings and
Profit Sharing Plan and the X'Xxxxxxxx Industries Holdings, Inc. Deferred Compensation
Plan will be made in accordance with the terms of the respective plans. You will receive
separate documentation and forms about these plans. Similarly, you will continue to hold
your stock in X'Xxxxxxxx Industries Holdings, Inc. subject to the existing agreements
among the various parties thereto. Those agreements are not affected by this Agreement.
Your stock options will be governed by the option agreements between X'Xxxxxxxx and
you, as the agreements may be amended. We agree to recommend to the Compensation
Committee that your stock options continue as though you were still an X'Xxxxxxxx
employee.
(7) X'Xxxxxxxx will maintain the following benefits in place for you through
April 6, 2005:
(a) term life insurance;
(b) long-term disability insurance; and
(c) accidental death and dismemberment insurance.
(8) X'Xxxxxxxx will withhold any taxes required by federal or state governments
from the payments described above.
(9) Your participation in all other benefits, including the Amended and Restated
Termination Protection Agreement dated as of February 1, 1996 between X'Xxxxxxxx
Industries Holdings, Inc. and you, will end effective as of November 6, 2004.
In return for the payments outlined above, you agree to the following.
(A) You agree that you are not eligible for any severance benefits, or any other amounts
from X'Xxxxxxxx or its affiliates, other than those described herein.
(B) Release. In return for the money X'Xxxxxxxx is paying you, you agree to release
X'Xxxxxxxx, its subsidiaries, parent companies (including without limitation Bruckmann, Xxxxxx,
Xxxxxxxx & Co. II, L.P.) and each of their respective affiliates, employees, directors, officers and
employees (collectively, the "released parties") from any claims you may have against them. That
means you can't xxx the released parties for any reason, whether you know about the claim when
you sign this agreement or not. The types of common law and statutory claims you release and
waive include but are not limited to the following:
o tort claims (for example, personal injury or property damage);
o breach of contract claims, whether express or implied, oral or written;
o claims of wrongful discharge;
o defamation, including libel or slander, published by X'Xxxxxxxx prior to your
retirement date;
o intentional or negligent infliction of emotional distress;
o rights under federal, state or local laws, specifically including laws prohibiting
discrimination on the basis of
o race or color,
o sex (whether sex discrimination or sex harassment),
o age,
o religion,
o national origin,
o handicap or disability
o or other forms of discrimination or any retaliation.
The rights waived specifically include rights under the following federal acts and any state or local
counterparts, including but not limited to the following:
o the Americans with Disabilities Act,
o the Civil Rights Act of 1964, as amended,
o the Civil Rights act of 1991,
o the Age Discrimination in Employment Act ("ADEA"), as amended,
o the Employee Retirement Income Security Act (except as to those rights reserved
below),
o the Consolidated Omnibus Budget Reconciliation Act ("COBRA"),
o the National Labor Relations Act,
o the Family Medical Leave Act,
o the Older Workers Benefit Protection Act,
o the Fair Labor Standards Act,
o the Missouri Service Letter Statute, 290.140 RSMo.,
o 42 U.S.C.ss.ss.1981, 1983 and 1985,
o the Missouri Human Rights Act,
o the Workers Adjustment and Retraining Notification Act,
o the Equal Pay Act,
o the Xxxxxxxx-Xxxxx Act of 2002,
o the Occupational Safety and Health Act, and
o other federal, state or local statutes, laws and ordinances that protect employees.
(C) The only claims arising out of your employment, or the termination of your
employment, which you are reserving and not releasing are these:
o You are not releasing your right to vested benefits under X'Xxxxxxxx'x Savings and
Profit Sharing Plan or X'Xxxxxxxx'x Deferred Compensation Plan.
o You are not releasing your right to continue your medical and dental coverage as
outlined herein and under COBRA at the applicable premium rate.
o You are not releasing any Workers Compensation claims that may arise before
your employment with X'Xxxxxxxx ends. By signing this agreement you are
representing to X'Xxxxxxxx that unless you have already filed a Workers
Compensation claim before the date you sign this agreement, you know of no facts
leading you to believe you have a work related injury or illness, which would
allow or entitle you to file a Workers Compensation claim against X'Xxxxxxxx after
the date on which you sign this agreement.
o This letter agreement does not waive any claims that may arise in the future under
the Age Discrimination in Employment Act. This letter agreement does release
any ADEA claims up to the date this letter agreement becomes effective.
o Of course, you are not releasing your rights under this letter agreement if
X'Xxxxxxxx should not fulfill its obligations hereunder.
o Except with respect to our agreement to recommend an amendment to your
common stock option agreement contained in paragraph (1) above and our release
of you from non-competition covenants contained in paragraph (H) below, this
letter agreement does not change the terms of, or release the rights of any party
with respect to, your X'Xxxxxxxx stock options or your stockholdings in X'Xxxxxxxx
or the agreements executed in connection therewith.
o You are not releasing your rights as a stockholder of X'Xxxxxxxx Industries
Holdings, Inc. to join in any derivative litigation against X'Xxxxxxxx or its affiliates.
However, you agree that you will not, directly or indirectly, commence any such
litigation.
(D) By signing this letter agreement, you are waiving and giving up your right, if any,
to bring suit and collect damages or otherwise recover from X'Xxxxxxxx or the other Released
Parties for any alleged violation by any of them of any federal, state or local statutes, ordinances
or common laws, including but not limited to claims under the ADEA and claims under other
statutes and ordinances which bar discrimination based on age, sex, race, color, national origin,
religion, handicap or veteran status. This letter agreement covers all claims in connection with
your employment and the termination and resignation of your employment.
(E) You agree to return any files, records, documents, plans, drawings, equipment,
software, pictures, spreadsheets and any other property belonging to X'Xxxxxxxx which may be in
your possession.
(F) You agree not to disclose or communicate to any person or to use for your benefit
or the benefit of another person any confidential or proprietary information concerning X'Xxxxxxxx
or any of its affiliates, suppliers or customers, including but not limited to specific processes,
procedures, customer lists, financial information, etc. which may be regarded as confidential.
(G) While you are a consultant for X'Xxxxxxxx, you will not, directly or indirectly,
whether as an individual or on behalf of any other person, firm, corporation, partnership, joint
venture or other entity, solicit, induce or endeavor to entice away from X'Xxxxxxxx any employee
employed by X'Xxxxxxxx, either on your own behalf or on behalf of any firm, person or entity with
whom you are employed or associated, whether as employee, owner, partner, agent, director,
officer, consultant or shareholder. This paragraph shall not be construed as prohibiting you from
hiring an employee of X'Xxxxxxxx who first contacts you with respect to employment.
(H) The provisions of paragraphs (F) and (G) are in addition to, and do not supersede,
similar covenants you have already agreed to in other agreements between X'Xxxxxxxx any
yourself. Nothing in this agreement shall be construed as an agreement not to compete with
X'Xxxxxxxx, and X'Xxxxxxxx hereby releases you from any non-competition covenants contained
in agreements between X'Xxxxxxxx and you, including specifically the Amended and Restated
Management Stock Agreement dated as of August 2000 and the Common Stock ISO Agreement
dated as of June 19, 2000. You are free to work for whomever you choose subject to the
confidentiality and non-solicitation covenants contained in paragraphs (F) and (G) of this letter
agreement and similar covenants contained in other agreements X'Xxxxxxxx and you (and, in
certain instances, other parties).
(I) You acknowledge that you have freely entered into this Agreement and that no
representations or promises other than those stated herein have been made to you. You are
advised to consult with an attorney before signing this letter agreement. By signing this letter
agreement, you acknowledge that you have had the opportunity to consult with your attorney,
accountant or financial advisor at your expense and that you have had 45 days in which to
consider whether you want to sign this letter agreement. It is agreed that any changes to this letter
agreement, whether material or not, do not restart the running of this 45-day period. You may
sign and return this agreement in less than 45 days if you do not wish to use the entire 45 days
to decide whether you want to sign this agreement. If you sign, date, and return this agreement
in less than 45 days, you are agreeing that you did not need the full 45 days to decide whether you
want to sign this agreement, and you are waiving your right to use the unused portion of the 45
days. If you sign, date, and return this agreement in less than 45 days, the required seven-day
revocation period will start to run on the date you sign the agreement. The agreement will
become final and irrevocable only when the seven-day revocation period has expired, and
X'Xxxxxxxx will not issue its check for your lump sum payment until after the seven-day revocation
period has expired and the agreement has become final and fully enforceable.
(J) In the event of a breach or threatened breach by you, X'Xxxxxxxx may cancel any
remaining payments to you and cease any further benefits. This will not be construed, however,
to limit the remedies available to X'Xxxxxxxx in the event of such breach and your release and
waiver of claims against X'Xxxxxxxx shall continue to be valid and in effect.
(K) If any provision of the covenants and agreements set forth in paragraphs (F) or (G)
of this agreement shall be held invalid or unenforceable because of the scope of the territory or
the actions thereby restricted, or the period of time within which such covenant or agreement is
operative, or for any other reason, it is the intent of the parties hereto that such provision shall
be construed by limiting and reducing it, or, if necessary, eliminating it so that the provisions
hereof be valid and enforceable to the extent compatible with applicable law as determined by a
court of competent jurisdiction.
(L) You and X'Xxxxxxxx agree not to make any disparaging or critical remarks
concerning each other or any of X'Xxxxxxxx'x affiliates and their respective officers, directors and
employees and will assist each other in preserving and promoting their respective goodwill and
other business interests. You expressly acknowledge you will obey all laws in connection with
rendering services to X'Xxxxxxxx and will be governed by the highest moral and ethical standards,
reflecting these values: integrity, honesty, loyalty, trust, fairness and responsibility. You will
analyze your duties hereunder in order to avoid any action that could be interpreted as a conflict
of interest. X'Xxxxxxxx has informed you that it will suffer serious damages in the event of a
violation of this paragraph.
(M) You acknowledge that neither X'Xxxxxxxx nor its legal counsel has made any
representations regarding the tax implications of any payments made by X'Xxxxxxxx under this
letter agreement. You understand that any liability for federal, state and local income and other
withholding taxes remains with you.
(N) You agree to cooperate in any investigations conducted by X'Xxxxxxxx for which
X'Xxxxxxxx believes You to be a holder of information or to have knowledge of relevant facts.
You agree to participate in interviews and cooperate in X'Xxxxxxxx'x efforts to gather information
concerning any allegations of improper or unlawful conduct or occurrences or other matters
investigated by X'Xxxxxxxx. You also agree to cooperate with X'Xxxxxxxx and its counsel in any
litigation or anticipated litigation involving X'Xxxxxxxx, by making yourself available for
interviews, fact gathering, and questioning, and for appearing at depositions and/or trial without
the necessity of being served with a subpoena. To the maximum extent permitted by applicable
law, you shall not assist or facilitate in the prosecution of any civil claims or litigation against
X'Xxxxxxxx, and if requested to do so, you shall promptly notify X'Xxxxxxxx. This Agreement shall
not affect X'Xxxxxxxx'x obligations to indemnify current and former officers and directors pursuant
to Article VIII of X'Xxxxxxxx'x Second Amended and Restated Certificate of Incorporation or
Article VI of X'Xxxxxxxx'x By-Laws.
(O) This Agreement constitutes the entire agreement between the parties with respect
to the matters contemplated by this Agreement. Except as otherwise provided in this Agreement,
no change, modification or waiver of any provision of this Agreement will be valid unless in
writing and signed by both X'Xxxxxxxx and you.
X'Xxxxxxxx and you agree that if a dispute arises regarding this letter agreement, other than
one involving a breach of paragraphs (F) or (G), such dispute shall be submitted to binding
arbitration in Kansas City, Missouri. The arbitration is to be conducted before an arbitrator
mutually agreed upon by X'Xxxxxxxx and you and pursuant to procedures to be mutually agreed
upon by us. However, if X'Xxxxxxxx and you cannot agree upon an arbitrator and/or the
procedures for the arbitration, the choice of an arbitrator and the procedures to be followed in the
arbitration shall be determined in accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association ("AAA"), except to the extent the
parties agree otherwise in writing. Except to the extent federal law applies or preempts state law,
Missouri law, without reference to its conflicts of law rules, shall govern the interpretation of this
agreement, whether in any such arbitration or otherwise. The arbitrator shall follow applicable
federal and state law and award such relief as is allowed under applicable federal and state law.
X'Xxxxxxxx and you further agree that judgment upon the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof. The reasonable attorneys' fees and expenses
of appearing at the arbitration and preparing for the arbitration proceeding, and the fees and
expenses of the arbitrator and any fees of AAA shall be determined by the arbitrator, who will
be authorized to require the loser to pay the winner's reasonable fees and expenses to the extent
allowed by applicable federal and state law or to fairly apportion the attorneys' and arbitrator's
fees and expenses between the parties if both parties prevail on some aspects of the dispute in
accordance with applicable federal and state law. However, if an arbitrator or a court should
determine that the allocation of fees and expenses of the arbitration and the arbitrator as set forth
above is unenforceable or illegal, this Agreement shall be construed to require X'Xxxxxxxx to pay
the fees and expenses of the arbitration and the arbitrator in accordance with applicable federal
and state law, and a party should only recover attorneys fees from the adverse party if such
recovery is permitted under applicable federal and state law.
A breach of paragraphs (F) or (G) above could result in irreparable and continuing damage
to X'Xxxxxxxx for which there will be no adequate remedy at law, and in the event of such breach,
X'Xxxxxxxx shall be entitled to injunctive and other and further relief, including damages,
attorneys' fees and litigation costs, as may be proper. X'Xxxxxxxx may apply to any court of
competent jurisdiction for such relief and damages.
Under the Older Workers Benefit Protection Act, X'Xxxxxxxx must give workers over 40
years old certain information and allow them to consider this offer for at least 45 days. Attached
is information regarding salaried personnel changes being made at X'Xxxxxxxx, along with a list
of all salaried positions and the respective ages of the incumbents.
We encourage you to take this letter agreement home with you and to consider it carefully.
If you have questions regarding this letter agreement, please call Xxxxxxx Xxxxxx. We encourage
you to reflect on the rights being released by you in this letter agreement and to discuss this letter
agreement and the release language contained in it with your attorney. In any event, you should
thoroughly review and understand the effect of this letter agreement and the release language
before signing it. You have until December 13, 2004 to consider this letter agreement and
indicate whether you will sign this letter agreement.
To accept X'Xxxxxxxx'x offer, you must sign and return this letter agreement no later than
December 13, 2004.
Pursuant to the Older Workers Benefit Protection Act, this letter agreement cannot become
effective and enforceable until seven days following its execution. Hence, the monies payable
under this letter agreement may not be paid until seven days have elapsed after you sign this letter
agreement. This letter agreement will not become effective or enforceable until the eighth day
following its execution by you. For seven days following your execution of this letter agreement,
you may revoke it by giving written notice of revocation to Xxxxx XxXxxxxx or Xxxxxxx Xxxxxx.
If you revoke this letter agreement, X'Xxxxxxxx will not owe you any money under this letter
agreement. If you sign and do not revoke this letter agreement within seven days after signing
it, X'Xxxxxxxx will make the payments to you as described herein at the times specified herein.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION
PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.
Very truly yours,
X'XXXXXXXX INDUSTRIES, INC.
By: ____________________________________
Xxxxxx X. Xxxxxx
President and Chief Executive Officer
Accepted and Agreed to this
____ day of __________, 2004
____________________________________
Xxxxxxx X. X'Xxxxxxxx
