Exhibit 10.14
RESIGNATION AGREEMENT
This Resignation Agreement (the "Agreement") is made, entered into and effective
as of the 25th day of January 2002, by and between FRESH AMERICA CORP., a Texas
corporation (the "Company"), and XXXX XXXXXX, an individual resident of the
State of Texas ("Wiener").
RECITALS
WHEREAS, Wiener has been employed by the Company and desires to resign his
employment with the Company, the Company accepts such resignation, and Wiener
and the Company desire to provide herein the terms and conditions relating to
such resignation; and
WHEREAS, Wiener understands that signing this Agreement is an important legal
act and acknowledges that the Company has advised him to consult an
attorney before signing this Agreement and acknowledges that he has twenty-one
(21) days to consider the terms set forth in this Agreement; and
WHEREAS, Wiener understands that for a period of seven (7) days following the
signing of this Agreement he may revoke his acceptance of the offer by either
delivering or mailing a written statement revoking his acceptance to Human
Resources, Fresh America Corp., 0000 Xxxxxx X Xxxx, Xxxxxxxxx, XX 00000 and this
Agreement will not become effective. In the event Wiener revokes his acceptance
of the offer, the Company shall have no obligation to provide any rights or
benefits under this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements herein
contained, and for other good and valuable consideration, the receipt and legal
sufficiency which are hereby acknowledged, the Company and Wiener hereby agree
as follows:
ARTICLE 1
RESIGNATION
Wiener hereby resigns as an employee of the Company effective at 5:00 p.m. on
January 25, 2002 (the "Resignation Date"), and the Company hereby accepts such
resignation. Wiener shall return all Company property in his possession to the
Company on or before January 25, 2002, including but not limited to, all Company
files and proprietary data in whatever form.
ARTICLE 2
NON-SOLICITATION AND NON-COMPETITION COVENANTS
2.1 Non-Solicitation Covenant.
Wiener acknowledges that his employment with the Company was governed by an
Employment Agreement dated October 5, 2001 (the "Employment Agreement"). Wiener
acknowledges that he is subject to certain obligations as a result of entering
into the Employment Agreement, including those contained in Article 4 of the
Employment Agreement. Wiener hereby
affirms that the obligations contained therein are reasonable in scope, are
necessary to protect Company's goodwill and legitimate business interests, are
not harmful to the public interest, and will not impose any undue hardship on
him or affect his ability to earn a living or otherwise engage in any chosen
occupation and career. Wiener also understands that the covenants contained
therein are continuous in nature and do not terminate as a result of Wiener's
resignation, except as specifically noted herein.
In accordance with the terms of the Employment Agreement, Wiener agrees that for
the period after employment up to and including the Non-Competition Termination
Date, i.e., January 25, 2003, as defined in the Employment Agreement, he shall
not directly or indirectly, solicit for hire any person then employed by Company
or otherwise encourage any employee to leave the employ of Company, either on
employee's own behalf or on behalf of another person or entity.
Moreover, Wiener agrees that for the period after employment up to and including
the Non-Competition Termination Date, i.e., January 25, 2003, he will not
solicit business or be involved in the solicitation of business from any
customers of Company within any region or locality in which the Company or such
Affiliate is then doing business or marketing its products. It is agreed that
this provision will not prevent Wiener on behalf of a new employer from
attending a sales meeting in an operational capacity if a business relationship
has been established between the new employer and a customer.
Moreover, Wiener agrees to remain bound by the Confidentiality
provision of the Employment Agreement.
2.2 Non-Competition Covenant.
The Company and Wiener hereby agree that Article 4 (b) of the Employment
Agreement is excluded from the enforceable obligations of the parties noted
herein, and that Wiener shall not be obligated to comply with said provision of
the Employment Agreement.
ARTICLE 3
CONSULTATION SERVICES
Wiener shall, as requested from time to time by the Company, consult and advise
regarding business matters of the Company, including, but not limited to,
business plans, litigation matters, organizational development and any special
projects as may be identified and defined by the Company and assist in the
orderly transition of his duties and responsibilities to others as designated by
the Company (collectively the "Services").
Wiener agrees to perform Services as requested by Company, as mutually
agreeable, provided such hours are reasonable and do not exceed forty (40) hours
in a week. It is agreed that upon completion of the Severance payments set forth
in Article 6, any request for Services will not unduly interfere with other
employment Wiener has secured.
For the performance of the Services specifically requested by the Company, the
Company shall pay to Wiener $75.00 per hour. Wiener shall be reimbursed for
expenses approved in advance
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and reasonably incurred in the performance of the Services. Wiener's requests
for expense reimbursement should include appropriate and available receipts or
other evidence of the expenses within thirty (30) days of incurring same.
It is the intention of the parties hereto that in his performance of the
Services, Wiener shall act as, and be deemed in all respects to be, an
independent contractor and not an employee or agent of the Company or any of its
Affiliates for any purpose. Wiener shall not be empowered to and shall not enter
into any agreement or incur any obligations on behalf of the Company or any of
its Affiliates, or commit the Company or any of its Affiliates in any manner,
without the Company's prior written consent, and Wiener shall indemnify and hold
the Company and its Affiliates harmless from and against any and all expenses,
costs and damages which the Company or any of its Affiliates may incur as a
result of any breach, or alleged breach, of this covenant.
ARTICLE 4
BENEFITS
It is agreed that Wiener shall not be eligible to participate in any employee
benefit plan, program or policy sponsored by the Company or any Affiliate other
than those, if any, specifically set forth in this Agreement. Accordingly,
Wiener will not be eligible to participate in any employee welfare or pension
benefit plans sponsored by the Company or any Affiliate except where Wiener is
entitled to participate by virtue of his former employment, with the Company or
any Affiliate. It is agreed as a former employee, Wiener will be entitled to
eighteen (18) months of coverage under the Company's medical and dental plans
pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended ("COBRA").
ARTICLE 5
CONFIDENTIALITY
5.1 Definition of Confidential Information
Confidential Information includes, but is not limited to, information that is
used or processed by the Company or its Affiliates and: (1) is proprietary to,
about or created by the Company or its Affiliates; (2) gives the Company or its
Affiliates some competitive business advantage, the opportunity of obtaining
such advantage, or disclosure of which might be detrimental to the interest of
the Company or its Affiliates; or (3) is not typically disclosed by the Company
or its Affiliates to, or known by, persons who are not employed by the Company
or its Affiliates.
5.2 Confidentiality and Nondisclosure Covenant
Wiener understands and agrees that he has and may continue to acquire
information of a proprietary and/or confidential nature relating to the business
of the Company and its Affiliates. Wiener hereby expressly agrees to maintain in
strictest confidence and not to use in any way (including without limitation in
any future business relationship of Wiener), publish, disclose or authorize
anyone else to use, publish or disclose in any way, any proprietary,
confidential or other non-public information or document of any kind relating in
any manner to the business or affairs of the Company and its Affiliates. Wiener
agrees further not to retain any figures, calculations, letters,
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documents, lists, papers, or copies thereof, which embody confidential and/or
proprietary information of the Company and its Affiliates, and to return, prior
to Wiener's resignation date, any such information in Wiener's possession. If
Wiener discovers, or comes into possession of, any such information after his
termination date, he shall promptly return it to the Company.
ARTICLE 6
SEVERANCE
In consideration for the waiver and release contained herein (Article 7), the
Company agrees to pay Wiener severance in the amount of $53,334.00, less all
withholding and other applicable taxes, (the "Severance"). The Severance will be
paid on a bi-weekly basis of $6,666.75, less all withholding and other
applicable taxes until the Severance amount is paid. The Company and Wiener
agree that the Severance shall be in lieu of any other severance benefits
offered under any plan or program, to which Wiener may have been entitled to
during his employment by the Company or as a result of his resignation from the
Company. The Severance does not include reimbursement for reasonable business
expenses incurred up to and including January 25, 2002 which have not been paid
by the Company.
In addition, the Company will pay Wiener for three weeks vacation at his
regular rate of pay, payable with his final paycheck.
In the event Fresh America fails to make a Severance payment within ten (10)
days after receiving appropriate written demand by Wiener, Wiener would be
released from the non-solicitation restrictions set forth in Article 2 of this
Agreement.
ARTICLE 7
WAIVER AND RELEASE
The Employment Agreement is hereby terminated and the parties shall immediately
cease the performance of the mutual obligations contained therein and neither
party shall have further obligation to the other hereunder, except for the
obligations of Wiener set forth herein.
The Severance set forth in Article 6 constitutes a full and complete
satisfaction of any claims Wiener may have against the Company by reason of his
former employment (or his separation therefrom) with the Company, or any of its
affiliates or employee benefit plans excluding any 401(k) matching that may be
owed. Wiener hereby releases, acquits, and forever discharges the Company, its
successors, assigns, insurers, attorneys, representatives, officers, directors,
agents, employees, subsidiaries and parent and affiliated corporations from any
and all claims, potential claims, demands, suits, complaints, liabilities,
obligations, promises, agreements, actions, causes of action, rights, damages,
costs, losses, debts, charges, expenses or other liability, known or unknown,
fixed or contingent, liquidated or unliquidated, and waives and releases any and
all rights of any kind and description, known or unknown, that he has or may
have had against the Company as of the date of
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this Agreement. This waiver and release includes, but is not limited to, all
claims and causes of action under Title VII of the Civil Rights Act of 1964, as
amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act
of 1967, as amended; the Civil Rights Act of 1866; the Texas Commission on Human
Rights Act; the Texas Payday Law; the Americans with Disabilities Act; the Older
Workers Benefit Protection Act of 1990; the Employee Retirement Income Security
Act of 1974, as amended; the Worker Adjustment and Retraining Notification Act;
the Family and Medical Leave Act; the Fair Labor Standards Act; the Texas Labor
Code, including Chapter 61 of the Texas Labor Code; all state and federal
statutes and regulations; all oral or written contract rights, including all
rights under common law such as breach of contract, tort or personal injury of
any sort.
This Agreement also precludes Wiener from recovering any relief as a result of
any lawsuit, grievance or claims brought on his behalf and arising out of his
employment or separation from employment provided that nothing in this Agreement
and Release will affect his entitlement, if any, to workers' compensation or
unemployment compensation. Additionally, nothing in this Agreement restricts
Wiener in any way from communications with, filing a charge or complaint with,
or full cooperation in the investigations of, any governmental agency on matters
within their jurisdictions or with the Company or Company-sponsored programs.
However, as stated above, this Agreement does prohibit Wiener from recovering
any relief, including monetary relief, as a result of such communications,
charges or complaints.
Wiener acknowledges and agrees that his decision to accept the $53,334.00
severance in consideration of the above stated wavier and release has been made
by him on a voluntary basis. No other promise, inducement, threat, agreement or
understanding of any kind or description whatsoever has been made with or to him
by any person or entity to cause him to sign this Agreement.
It is also agreed that the Company denies any liability of any kind or type
owing Wiener and this Agreement is not to be construed as an admission of
liability for either party.
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ARTICLE 8
MISCELLANEOUS
8.1 Director and Officer Insurance
Wiener shall continue to be entitled to protection under the Company's Directors
and Officers Liability policy, as he would have been entitled during his
employment with the Company, for all acts occurring prior to his resignation
from employment and which were conducted within the course of his employment and
consistent with Company policy, direction, and applicable laws. In the defense
of such acts, the Company also agrees to pay reasonable attorney's fees provided
it approves or selects Wiener's counsel. The Company agrees to indemnify, defend
and hold harmless Wiener for acts of employment which were consistent with
Company policy and direction and applicable laws, not covered by the applicable
Directors and Officers Liability Policy.
8.2 Severability; Judicial Modification
If any term, provision, covenant, or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of this Agreement and the other terms, provisions, covenants and
restrictions hereof shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. It is hereby stipulated and declared to be
the intention of the parties that they would have executed this Agreement had
the terms, provisions, covenants and restrictions which may be hereafter
declared invalid, void, or unenforceable not initially been included herein.
8.3 Assignment
This Agreement is personal between Company and Wiener, and neither Company nor
Wiener may sell, assign, transfer any rights or interests created under this
Agreement or delegate any of their duties without the prior written consent of
the other, which consent shall not be unreasonably withheld.
8.4 Further Assurances
The parties agree to perform any further acts and to execute and deliver any
further documents which may be necessary or appropriate to carry out the
purposes of this Agreement.
8.5 Governing Law; Attorney's Fees and Costs
This Agreement has been made, delivered and is to be performed in Tarrant
County, Texas. This Agreement shall be governed by, construed and enforced in
accordance with the laws of the State of Texas, except for any laws which refer
a dispute to another jurisdiction.
In the event any issue arising out of this Agreement is litigated by the
parties, the prevailing party shall be entitled to recover from the other party
its reasonable attorneys' fees and costs.
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8.6 Authority
Each party hereto hereby acknowledges and agrees that it has had the opportunity
to consult with its own legal counsel in connection with the negotiation of this
Agreement.
8.7 Notices
All notices from one party to the other shall be deemed to have been duly
delivered when hand delivered or sent by United States certified mail, return
receipt requested, postage prepaid, as follows:
If to Wiener: If to the Company:
__________________________________ Fresh America
__________________________________ 0000 Xxxxxx X Xxxx
__________________________________ Xxxxxxxxx, XX 00000
8.8 Entirety of Agreement
This Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes and replaces any and all
prior negotiations, undertakings, understandings or agreements (whether written
or oral).
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
I have read this Agreement and I understand all of its terms. I enter into and
sign this Agreement knowingly and voluntarily, with full knowledge of what it
means.
COMPANY:
FRESH AMERICA CORP.
Date: January 25, 2002 By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
Title: Chief Executive Officer and President
WIENER:
Date: January 25, 2002 /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
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