STATE OF NORTH CAROLINA )
) AGREEMENT AND RELEASE
COUNTY OF ROCKINGHAM )
THIS AGREEMENT, made and entered into this 16th day of September, 1993,
by and between Xxxxxxx X. Xxxxxx ("Xxxxxx"), Martinsville, Virginia and Pluma,
Inc. ("Pluma" or the "Company"), a corporation with its principal offices in
Eden, North Carolina;
WHEREAS, Xxxxxx was hired by Pluma on January 1, 1987 and was employed
by the Company as Secretary Treasurer; and
WHEREAS, the parties have entered into this Agreement for the purpose
of resolving any actual or potential disputes between them; and
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and the Stock Purchase Agreement entered into contemporaneously
herewith, the parties agree as follows:
1. Xxxxxx resigns as a director of Pluma effective September 16, 1993.
2. Pluma will pay to Xxxxxx the sum of Fifty Thousand Dollars
($50,000.00) on September 16, 1993.
3. Other than the payments provided for in this Agreement and the Stock
Purchase Agreement entered into simultaneously with this Agreement, Pluma shall
have no obligation to make any payments to or for the benefit of Xxxxxx or to
provide any benefits to Xxxxxx of any kind available to employees of Pluma and
Xxxxxx expressly releases Pluma of and from any obligation to make any other
payments or provide any benefits to him arising out of or related to his
employment by Pluma. Notwithstanding the foregoing, Pluma acknowledges that
Xxxxxx is a participant in a 401(k) plan available to employees of Pluma and
that this Agreement shall not in any way affect Xxxxxx'x entitlement to benefits
pursuant to such plan.
4. Xxxxxx agrees for a period of two (2) years that he will not in any
fashion, form or manner, either directly or indirectly, solicit or use for his
own purposes or for the purposes of any third party, or divulge, disclose or
communicate to any third party, "confidential business information" in any form
concerning Pluma. As used herein, "confidential business information" means any
information concerning the business and operations of Pluma, its agreements or
relations with agents, contractors, customers or employees, the status of work
in progress, its products, processes, costs, pricing, customers, employees,
trade secrets, plans, commercial intentions, business practices, or financial
matters.
5. Xxxxxx further agrees that he has returned all originals and all
copies of documents or other materials which contain or otherwise reflect
"confidential business information," including,
without limitation, letters, memoranda, notes, reports, calendars, telegrams,
telecopies, contracts, records, tables, charts, photographs, video and audio
tapes and transcriptions thereof, computer records -- including without
limitation any and all computer disks, computer tapes and electronic or "E" mail
-- and business or financial records.
6. Nothing in this Agreement shall preclude Xxxxxx from describing,
without in any way disclosing "confidential business information," in general
terms to prospective employers and to no one else, specifically and solely for
the purpose of securing other employment, the general nature of the work
performed at Pluma.
7. Xxxxxx specifically acknowledges the following:
x. Xxxxxx has been given at least twenty-one (21)
days within which to consider and negotiate the terms resulting in this
Agreement;
x. Xxxxxx has been advised in writing that he has the
right to and may consult with an attorney before executing this Agreement, and
Xxxxxx acknowledges that he has had the opportunity to consult an attorney and
that he has exercised his right to do so;
x. Xxxxxx has seven (7) days following the execution
of this Agreement to revoke the Agreement, and the Agreement will not become
effective or enforceable until after this seven (7) day period has expired. To
revoke the Agreement, Xxxxxx should advise Pluma in writing of his election to
revoke it within the seven (7) day period. If Xxxxxx revokes this Agreement, he
shall immediately repay the sum of Fifty Thousand Dollars ($50,000.00) and his
resignation from the Board shall be null and void;
x. Xxxxxx recognizes that he is specifically
releasing, among other claims, any claims he may have arising under the Age
Discrimination in Employment Act of 1967 ("ADEA") and all amendments thereto;
x. Xxxxxx is not waiving any rights or claims that he
may have which arise after the date this Agreement is executed.
x. Xxxxxx also acknowledges that this Agreement is
intended by the parties to comply with the terms and provisions of the Older
Workers Benefit Protection Act of 1990 (OWBPA") and all amendments thereto.
g. The Effective Date of this Agreement shall be the
first day after the expiration of the seven (7) day period described in
paragraph 7c above.
8a. Xxxxxx for himself and his heirs, executors,
administrators, successors and assigns (collectively "Xxxxxx"), hereby releases,
acquits and forever discharges Pluma, together with those officers and directors
who sign this Agreement (collectively "Pluma"), and their respective
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executors, administrators, successors and assigns of and from all claims and
alleged claims by Xxxxxx, whether or not previously asserted, against Pluma.
This release specifically includes all claims by or on behalf of Xxxxxx against
Pluma, together with any and all claims which might have been asserted by or on
behalf of Xxxxxx against Pluma in any suit, claim, or charge, on account of any
matter or things whatsoever up to and including the date of the execution of
this Agreement. Xxxxxx further agrees that he will not institute or be a party
to, whether directly or indirectly, any civil action or administrative
proceeding against Pluma, under any federal, state or local authority or any
common law theory (whether founded in tort or contract), including but not
limited to, 42 U.S.C. 1981, Title VII of the Civil Rights Act of 1964, the Equal
Pay Act of 1963, the Civil Rights Act of 1991, the Age Discrimination in
Employment Act, the Americans With Disabilities Act, the Employee Retirement
Income Security Act of 1974, or any similar legislation, constitutional
provision, executive order or regulation, or any common law theory (whether
founded in tort or contract) in connection with any act, state of facts, or
occurrence or omission, whether or not previously asserted, either occurring
before or existing on the date of the execution of this Agreement.
8b. Pluma, together with those officers and directors who sign
this Agreement and their respective heirs, executors, administrators, successors
and assigns (collectively "Pluma and its officers and directors"), hereby
release, acquit and forever discharge Xxxxxx, and his heirs, executors,
administrators, successors and assigns (collectively "Xxxxxx"), of and from all
claims and alleged claims by Pluma and its officers and directors, whether or
not previously asserted, against Xxxxxx. This Release specifically includes all
claims by or on behalf of Pluma and its officers and directors against Xxxxxx,
together with any and all claims which might have been asserted by or on behalf
of Pluma and its officers and directors against Xxxxxx in any suit, claim, or
charge, on account of any matter or thing whatsoever up to and including the
date of the execution of this Agreement.
8c. In the event of the initiation of any proceeding by either
Xxxxxx or Pluma and its officers and directors against any party released herein
asserting a claim released by this Paragraph 8, such party released shall be
entitled to plead this release in bar to any such claim and to assert a
counterclaim alleging breach of this Agreement, including the release of claims
set forth in this Paragraph 8. Xxxxxx or Pluma and its officers and directors,
as the case may be, shall indemnify and hold harmless the party released of and
from any and all loss or damage whatsoever, costs, direct and indirect, and
attorney's fees incurred in the defense of such proceeding and prosecution of
counterclaim.
9. In the event of a breach or alleged breach of the Agreement by
either party, the non- breaching parties sole remedy shall be to institute an
action for breach of this Agreement and damages therefore or specific
performance of this Agreement. It is specifically acknowledged that in the event
of a breach or alleged breach of this Agreement, neither party shall be entitled
to rescind this Agreement and maintain an action based upon any claims released
by this Agreement.
10. Xxxxxx and Pluma and its officers and directors represent that no
promise, inducement or agreement not herein expressed has been made and that
this Agreement is the entire agreement between the parties hereto.
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11. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
12. This Agreement shall be construed in accordance with the laws of
the state of North Carolina.
13. If any provision of this Agreement is determined by a court of
competent jurisdiction to be void, voidable, unlawful or for any reason
unenforceable, such provision shall be deemed fully severable, and the balance
of the Agreement shall be given full force and effect in accordance with its
terms.
IN TESTIMONY WHEREOF, the parties hereto set their hands and seals the
day and year first above written.
/s/ /s/ Xxxxxxx X. Xxxxxx
Witness Xxxxxxx X. Xxxxxx
ATTEST: PLUMA, INC.
/s/ Xxxxxx X. Xxxx By: /s/ R. Xxxx Xxxxxxx, Xx.
(Affix Corporate Seal)
(SEAL)
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The following officers and directors of Pluma, hereby sign and
acknowledge their agreement to the terms and conditions of the Agreement And
Release entered into between Xxxxxxx X. Xxxxxx and Pluma, Inc. On the 23rd day
of September, 1993.
OFFICERS AND/OR DIRECTORS:
/s/ Kemp D. Box /s/ Xxxxxx X. Xxxx
/s/ X. Xxxxxx Box /s/ Xxxx X. Xxxxx
/s/ X. Xxxxxx Light /s/ R. Xxxx Xxxxxxx, Xx.
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxx
/s/ Xxxxxx X. Box /s/ Xxxxx X. Xxxxx
/s/ X. Xxxxxxxx Xxxxxxx /s/ Xxxxx X. Xxxxxxxxx
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