Exhibit 10.16
CONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE
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This Confidential Severance Agreement and General Release (this "Severance
and Release") is made and entered into by and between ABC-NACO INC. (the
"Company") and Xxxxxx X. Xxxxx ("Employee") (collectively, the "Parties").
WHEREAS, the Company informed Employee on or about April 1, 2001 that his
employment was being terminated effective April 1, 2001;
WHEREAS, the Company and Employee, each denying any wrongdoing or liability
whatsoever, desire to sever their employment relationship in an amicable
fashion;
WHEREAS, the Company and Employee desire to reach a final, full and
complete settlement of all matters relating to Employee's employment with the
Company up to the date of this Severance and Release;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the sufficiency of which is hereby acknowledged:
1. For and in consideration of the payment provided for in paragraph 2 of
this Severance and Release, Employee agrees that by executing this Severance and
Release he does hereby, for himself, his heirs, executors, administrators,
representatives, successors and assigns, irrevocably and unconditionally release
and forever discharge the Company, its parent companies, subsidiaries,
divisions, business units, and all affiliated or related companies, successors,
predecessors, assigns or representatives, present and former employees, and any
agents, present and former officers, directors, attorneys, insurers, and all
persons acting for, by, through, under or in concert with any of them
(hereinafter "Released Parties"), of and from any and all claims, demands,
causes of action, suits, debts, accounts, claims for attorneys' fees, interest,
expenses and costs, damages, judgments, and executions of any nature whatsoever,
which Employee, his heirs, executors, administrators, representatives,
successors, or assigns, had, now have, or may hereafter have, from the beginning
of time to the date hereof, against the Company or any of the Released Parties,
whether based on federal or state statute, common law, rule, regulation or any
ordinance, whether in law or in equity, contract or tort, whether liquidated or
unliquidated, whether known or unknown, related to Employee's employment with
the Company and/or the termination therefrom, and particularly without limiting
the foregoing, any and all such claims under the following statutes, if
applicable: the Age Discrimination in Employment Act (29 U.S.C. (S) 261 et
seq.), the Americans with Disabilities Act (42 U.S.C. (S)12101 et seq.), Title
VII of the Civil Rights Act of 1964, as amended (42 U.S.C. (S)2000e et seq.),
the Illinois Human Rights Act (775 ILCS 5/1-101 et seq.), the Employee
Retirement Income Security Act of 1974, as amended, and the Fair Labor Standards
Act, as amended.
2. The Parties agree on the following payment terms:
a. Effective April 1, 2001, Employee will receive twenty four (24)
months salary as severance pay which will be paid over a period of
one hundred four (104) weeks, less standard deductions. Employee
will be paid for any earned and unused vacation pay up to and
including March 31, 2001; however, no accrual of vacation pay occurs
during period of severance payments ("Severance Pay").
b. During the period that Employee is receiving periodic severance
payments, Employee will continue to participate in the same Company
employee benefit programs (except short-term disability, long-term
disability, the 401k Plan) in which he participated immediately
prior to April 1, 2001, and his continuing participation in these
programs will be on the same basis and terms as Employee
participated in them immediately prior to April 1, 2001, subject to
the Company's right to modify or terminate such programs at any
time. When Employee's periodic severance payments cease, his
participation in these programs will cease.
c. The Company shall make such other payments pursuant to that certain
written Employment Agreement dated June 22, 1999.
Further, Employee understands that neither the Company nor its counsel
have made, and Employee does not rely upon, any representations regarding the
tax treatment of the Severance Pay, and agrees that he is solely responsible for
determining the tax consequences of the Severance Pay, and is legally bound to
make payment of taxes, if any, which are determined to be owed by him (including
penalties and interest related thereto) by any taxing authority.
3. Employee understands and agrees that the payment of monies and other
consideration set forth in this Severance and Release does not constitute an
admission of liability or violation of any applicable law, regulation, or
agreement, and in fact the Company and the Released Parties expressly deny any
such liability or violation.
4. Employee represents that he has not filed any complaint or charge
against the Company or any of the Released Parties involving any events up to
and including the date of this Severance and Release. Employee agrees that he
will not voluntarily cooperate or participate in an investigation or prosecution
of any action against any or all of the Released Parties. Employee further
agrees that he will not solicit in any manner any former, current, or future
employee of the Released Parties to pursue a claim against any of the Released
Parties.
Further, Employee agrees that in the event that the Company becomes
involved in any legal or administrative claims or other proceedings relating to
events that
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occurred during his employment and as to which Employee might in the Company's
opinion have personal knowledge, Employee will cooperate to the fullest extent
possible in the preparation and presentation by the Company of its prosecution
or defense, including but not limited to the signing of affidavits or other
documents providing information requested by the Company. The Company agrees to
indemnify Employee and hold Employee harmless from any claims, demands,
liabilities, or damages incurred by Employee as a result of his performance
under the preceding provisions of this paragraph, and to reimburse Employee for
reasonable attorneys' fees incurred by Employee in connection with any such
claims, demands, liabilities, or damages, provided, however, that the Company
will be obligated to make such reimbursements only for attorneys' fees covering
attorneys' services for which Employee obtained the Company's prior written
approval.
5. Employee agrees, to the extent Employee has previously failed to do
so, to return immediately all equipment, tools, documents, files, whether or not
Employee was solely responsible for same, keys, credit cards, keycards,
computers, programs, software and discs, including, but not by way of
limitation, those programs, software and discs generated during Employee's
employment with the Company, and all other items which are the property of the
Company and/or its subsidiaries, or contain information which belongs to the
Company or any of the Released Parties.
Further, Employee agrees that, upon the Company's request at any time,
he will provide and disclose to it in good faith and with full cooperation, all
information obtained or developed by Employee during his employment with the
Company which the Company considers pertinent to its affairs, whether such
information is in the form of items in Employee's memory, Employee's mental
impressions, or any other form.
Employee also acknowledges that it is the Company's policy,
communicated to Employee by other Company employees, that Employee is requested
to bring to the Company's attention any incidents of misconduct or wrongdoing in
the area of government contract procurement policies and practices. Employee
hereby affirms that he has acted in accord with such policy and that Employee
has at this time no knowledge of any such incident which he has not brought to
the attention of the Company in writing. In addition to said policy, the
Employee acknowledges that he has complied with all applicable laws, rules and
regulations during his employment with respect to his employment with the
Company.
6. Employee agrees to waive any employment rights with any of the
Released Parties that he might otherwise have now or in the future, including
reinstatement or re-employment. Employee agrees that he will not apply for
employment with the Company or with any of its divisions, subsidiaries, or
successors, at any time in the future. If Employee inadvertently should apply
for employment with the Company or any of its divisions, subsidiaries, or
successors, he agrees to withdraw immediately any such application upon being
advised of the identity of the prospective employer.
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7. Employee agrees that he will continue to treat as confidential,
property of the Company and will not disclose or use any information or
knowledge obtained or developed by Employee during Employee's employment with
the Company which is not in the public domain and which consists of, or relates
to, the Company's products, inventions, discoveries, processes, techniques,
formulas, substances, designs, patterns, improvements, ideas, plans, projects,
programs, research, test results, writings, notes, patents, copyrights,
trademarks, know-how, trade secrets, customer and supplier lists, or business,
financial, marketing, sales, pricing, engineering, manufacturing, or other
operational matters and plans. Employee agrees that all Company confidentiality,
nondisclosure, and secrecy agreements to which he became a party in connection
with his employment with the Company, or may become a party to in connection
with this Severance and Release, will remain in full force and effect in
accordance with their terms. Employee agrees that if he becomes employed by a
person, business, or other entity that provides substantially the same products
and services as the Company, Employee will be required to prove that he has
complied with the provisions of this paragraph in any proceeding that the
Company might bring to enforce the provisions of this paragraph.
8. Employee understands and agrees that he shall keep confidential, and
make no disclosure or reference to, the terms or contents of this Severance and
Release or discussions specifically leading to this Severance and Release to any
person, firm, corporation, association, partnership, or any entity of any kind
or identity whatever, including, but not limited to, current and former
employees of the Company or any of the Released Parties. In the event contact
regarding the existence or terms of this Severance and Release is initiated by
any third party, Employee (or others to whom disclosure is allowed as set forth
in this paragraph) shall strictly limit their response, either verbatim, or in
substance, to the statement that "the matter has been resolved by mutual
agreement." In the event the confidentiality requirements set forth herein are
breached, Employee shall be liable to the Company for monetary and equitable
losses. This confidentiality requirement shall not prohibit Employee from
disclosure to his spouse, accountants, financial advisors, and attorneys,
provided that Employee will relay the instant confidentiality requirement to
such individuals, or to taxing authorities, or under court order or subpoena.
Employee and the Company shall not make any negative, derogatory or disparaging
statements, remarks or comments of any kind or nature whatsoever, either oral or
written, directly or indirectly, to any person or entity about, in reference to,
or with respect to each other. Notwithstanding the preceding sentence, this
Severance and Release shall not be interpreted to restrict communications to or
between any officers, directors, members, management employees, or attorneys of
the Company, to the extent such communications occur during the normal course of
business.
Further, Employee agrees that if anyone attempts to induce or compel
Employee to disclose, release, produce, or make known any information concerning
the Company, he will (a) immediately notify the Company of this occurrence in
writing; (b) fully cooperate with the Company in any of its efforts to resist
such a disclosure by any lawful means; and (c) ensure that neither Employee nor
anyone acting on Employee's behalf impairs or defeats in any matter any
objection to disclosure or privilege which
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might be available to the Company with respect to such information. The Company
agrees to indemnify Employee and hold Employee harmless from any claims,
demands, liabilities, or damages incurred by Employee as a result of Employee's
performance under the preceding provisions of this paragraph, and to reimburse
Employee for reasonable attorneys' fees incurred by Employee in connection with
any such claims, demands, liabilities, or damages, provided, however, that the
Company will be obligated to make such reimbursements only for attorneys' fees
covering attorneys' services for which Employee obtained the Company's prior
written consent.
9. If Employee breaches any provision of this Severance and Release, the
Company shall be entitled to be reimbursed by Employee for all legal fees,
costs, and expenses incurred by the Company in defending itself or enforcing its
rights relative to such matters.
10. This Severance and Release constitutes the entire and complete
agreement between the parties. No other promises or agreements, either express
or implied, shall be binding unless in writing and signed by all parties.
11. The parties agree to the extent that any portions of this Severance
and Release may be declared invalid, the remaining portion(s) shall not be
affected and shall be given full force and effect.
12. Employee acknowledges that he has entered into this Severance and
Release freely and voluntarily, and that he has had adequate time to read this
Severance and Release and to consult with his attorney on its terms and to
reflect upon the consequences of his execution thereof. Employee acknowledges
that the Company offered him twenty-one (21) days within which to consider this
Severance and Release, and that the Company advised him to consult with legal
counsel prior to executing this Severance and Release. Moreover, Employee is
advised that he has seven (7) days following his execution of this Severance and
Release to revoke it, and this Severance and Release shall not become effective
or enforceable until this seven-day revocation period has expired. Any such
revocation must be in writing and delivered via personal delivery or overnight
mail to ABC-NACO Inc., 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxx
00000; Attention: Xxxx Xxxxxxxx. In the event Employee exercises his right of
revocation, this Severance and Release shall be null and void.
13. Employee agrees that, except as otherwise provided in this Severance
and Release and except for any Company pension plans in which Employee
participated during his employment with the Company, this Severance and Release
constitutes the entire agreement between Employee and the Company and supersedes
all prior agreements between Employee and the Company. Employee agrees that
Employee is not relying, and will not rely, upon any statements or
representations that are not contained in this Severance and Release. Employee
agrees that this Severance and Release cannot be amended, extended, or
terminated except by a written instrument signed by Employee and an authorized
officer of the Company. Employee agrees that if any portion of this Severance
and Release is held to be invalid by a court, the remaining
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portions will automatically be severed from the invalid portion and will remain
in full force and effect.
14. This Severance and Release shall be construed in accordance with the
laws of the State of Illinois. The Parties consent to the exclusive jurisdiction
of federal and state courts seated in Xxxx County, Illinois.
IN WITNESS WHEREOF, the Parties have executed this Severance and Release
on the respective date written below.
Date: _______________________
ABC-NACO INC. EMPLOYEE
By:____________________________ By:________________________________
Xxxxxx X. Xxxxxx
Chief Executive Officer
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