EMPLOYMENT AGREEMENT
EXHIBIT 10.4
THIS AGREEMENT (“Agreement”) is entered into as of October 7, 2009 by and between WSI
Industries, Inc. (the “Company”), and Xxxxxxx X. Xxxxx (the “Executive”).
WHEREAS, the parties previously entered into an employment agreement to provide for the
Executive’s services as Chief Executive Officer and President of the Company.
WHEREAS, the Executive is expected to eventually retire as Chief Executive Officer and the
parties decided to establish a transition period, by initially establishing a separate position of
President, which would provide the Company with the opportunity to proactively implement an orderly
succession plan.
WHEREAS, the parties desire to enter into a new employment agreement to set forth their mutual
understanding and agreement on their employment relationship including certain matters regarding
the possibility that Executive would eventually retire as Chief Executive Officer after a
transition period.
NOW, THEREFORE, in consideration of the promises and the respective undertakings of the
Company and Executive set forth below, the Company and Executive agree as follows:
1. Employment. The Company hereby employs Executive and Executive accepts such
employment as an executive officer of the Company reporting to the Company’s Board of Directors.
Except as expressly provided herein, termination of this Agreement by either party shall also
terminate Executive’s employment by the Company.
2. Term. Employment with the Company shall be for a term beginning on the date of
this Agreement and ending on December 31, 2011, subject to earlier termination as provided herein.
3. Position and Duties.
3.1 Service with Company. During the term of this Agreement, Executive agrees to
perform such reasonable employment duties for the Company as shall arise in connection with his
position as Chief Executive Officer of the Company or as otherwise directed by the Company’s Board
of Directors (the “Board”). During the term of this Agreement, for so long as Executive’s
successor continues to serve in the position of President, Executive shall serve in a transitional
role to facilitate an orderly transition of Chief Executive Officer responsibilities to his
successor and provide such other services as may be reasonably requested by the Board or the
successor during the term.
3.2 Performance of Duties. Executive agrees to serve the Company faithfully and to
the best of his ability, and to devote his full time attention and efforts to the business and
affairs of the Company during the term of this Agreement as is reasonably necessary to execute his
duties hereunder. The Executive agrees that during the term of this Agreement, he will not render
or perform services for any other corporation, firm, entity or person which are
inconsistent with the provisions of this Agreement or which are considered in business
competition with the Company.
4. Compensation.
4.1 Base Salary. During the term of this Agreement, as compensation for all services
to be rendered by Executive under this Agreement, the Company shall pay to Executive an annualized
Base Salary (“Base Salary”) of $222,120.00. The Company shall pay the Base Salary in accordance
with normal Company payroll practices, subject to state and federal taxes, social security and any
other applicable withholdings. Notwithstanding the foregoing, the annualized Base Salary would be
reduced to $100,000 during any period of the term after December 31, 2009 in which Executive’s
successor continues to serve in the position of President.
4.2 Fringe Benefits. Executive shall be entitled to such insurance, vacation, profit
sharing and other benefits as are currently available, subject to any limitations on such benefits
to officers, directors or highly paid employees in order that such benefit programs qualify under
federal and state law for favored tax or other treatment. Such benefit programs may be changed
from time to time by the Board provided they are changed uniformly for all officers of the Company.
Executive shall also be entitled to special medical benefits (as currently in effect).
4.3 Business Expenses. The Company will pay or reimburse Executive for all reasonable
and necessary out-of-pocket expenses incurred by him for the benefit of the Company in the
performance of his duties under this Agreement, subject to compliance by Executive with the
Company’s policies for expense reimbursements.
5. Restrictive Covenant Agreement. In consideration of employment, and the severance
offered to Executive under Section 6, to which the Executive was not otherwise entitled to, the
Executive agrees to execute a Restrictive Covenant Agreement, attached hereto as Exhibit A.
6. Termination and Payment to Executive.
6.1 Termination Date. This Agreement and Executive’s employment hereunder shall
terminate upon the occurrence of any one or more of the following:
(a) Death. In the event of Executive’s death, this Agreement and Executive’s
employment hereunder shall automatically terminate on the date of death.
(b) Disability. To the extent permitted by law, in the event of Executive’s physical
or mental disability that prevents Executive from performing the essential functions of Executive’s
duties under this Agreement (with or without reasonable accommodation) for a period of at least 90
consecutive days in any 12-month period or 120 non-consecutive days in any 12-month period,
Employer may terminate this Agreement and Executive’s employment hereunder upon giving written
notice of termination to Executive.
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(c) Termination by Employer for Cause. Employer may, at its option, terminate this
Agreement and Executive’s employment hereunder for Cause (as defined below) upon giving written
notice of termination to Executive. “Cause” shall mean any of the following: (i) Executive has
engaged in dishonesty, illegal or other wrongful conduct substantially detrimental to the business
or reputation of the Company or any of its subsidiaries or affiliates; (ii) Executive has
developed or pursued interests substantially adverse to the Company or any of its subsidiaries or
affiliates; (iii) Executive has willfully and continuously failed to substantially perform his
duties with the Company (other than any such failure resulting from Executive’s incapacity due to
physical or mental disability), after written notice of such failure and opportunity to cure; or
(iv) Executive’s conviction of, or guilty plea or nolo contendere plea to a felony involving moral
turpitude, fraud or misrepresentation; provided that an act of Executive shall not be deemed
“willful” unless done or omitted to be done by Executive not in good faith and without reasonable
belief that the act or omission was in the Company’s best interests.
(d) Without Cause by Employer. Employer may, at its option, at any time terminate
this Agreement and Executive’s employment hereunder for no reason or for any reason whatsoever
(other than for Cause or as a result of Executive’s death or Disability) by giving written notice
of termination to Executive.
(e) Termination by Executive. Executive may terminate this Agreement and Executive’s
employment hereunder with or without Good Reason (as defined below) by giving thirty (30) days
prior written notice of termination to Employer. “Good Reason” shall mean, without Executive’s
express written consent, any of the following: (i) a material reduction in Executive’s Base Salary
or benefits required under this Agreement; (ii) a change in Executive’s reporting directly to the
Board of Directors; (iii) a material change in the geographic location at which Executive must
perform services for the Company; and (iv) any other action or inaction that constitutes a
material violation of this Agreement by the Company; provided that no such termination for Good
Reason shall be effective unless: (A) Executive provides written notice to the Chair of the
Compensation Committee of the Board of the existence of a condition specified in clauses (i)
through (iv) of this sentence within 90 days of the initial existence of the condition; (B) the
Company does not remedy such condition within 30 days of the date of such notice; and (C) Executive
terminates his employment within 90 days following the last day of the remedial period described
above.
6.2 Termination for Cause or by Executive without Good Reason. In the event of a
termination of this Agreement and Executive’s employment hereunder pursuant to Sections 6.1 (c) or
6.1(e) (other than a termination for Good Reason), then this Agreement and Executive’s employment
with Employer shall terminate and Employer’s sole obligation under this Agreement or otherwise
shall be to: (i) pay to Executive any Base Salary earned, but not yet paid, prior to the effective
date of the termination of this Agreement and Executive’s employment hereunder (the “Date of
Termination”) and any earned but unused vacation and personal leave, payable in accordance with
Employer’s standard payroll practices; (ii) reimburse Executive for any expenses incurred by
Executive through the Date of such Termination in accordance with Section 4.3 above; and (iii) pay
and/or provide any amounts or benefits that are vested amounts or vested benefits or that Executive
is otherwise entitled to receive under any plan, program, policy or practice (with the exception of
those, if any, relating to severance) on
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the Date of Termination, in accordance with such plan, program, policy, or practice (clauses
(i), (ii), and (iii) of this sentence are collectively referred to herein as the “Accrued
Obligations”).
6.3 Death, Disability, Termination without “Cause” or by Executive for “Good Reason” or
End of Term. If Executive is terminated without Cause, Executive terminates his employment for
Good Reason, Executive dies or becomes Disabled during the term of this Agreement or Executive
continues to be employed by the Company until this Agreement terminates on December 31, 2011, upon
execution of a release of claims against the Company similar to the attached Exhibit B (other than
in the event of death) no later than the date set forth in that Exhibit B, and following expiration
of the rescission period described therein:
(a) the Company will pay all Accrued Obligations as provided in Section 6.2 above;
(b) the Company will pay Executive a lump sum severance payment equal to $335,000
(approximately 18 months base salary), less applicable taxes and withholdings, on a date that is
six months and 1 day after the effective date of Executive’s termination of employment, except
that, in the event of death or Disability, payment shall be made no later than 30 days after the
date of death or determination of Disability; and
(c) except in the event of death of Executive, the Company will continue to be responsible to
pay the same portion of the monthly premium that it paid immediately prior to Executive’s
employment (the “Employer Premium”) towards Executive’s group health, dental and life insurance
(and special medical) for the eighteen (18) month period following such termination, provided
Executive elects continuation of coverage following separation and continues to be eligible for
continuation coverage under COBRA. In the event the Company’s payment of the Employer Premium is
required to be delayed under Treas. Reg. §1.409A-3(i)(2), the Executive shall be responsible to pay
any COBRA premium due during such delay, and the Company shall reimburse to the Executive, in a
lump sum, at the same time as the payment set forth in Section 6.3(b) the cumulative Employer
Premiums that the Executive paid prior to that date, and thereafter the Company shall pay the
Employer Premium at such time as such premiums are due. Upon the expiration of the eighteen (18)
month period following termination, the Company shall pay Executive a lump sum payment in an amount
equal to the Employer Premium multiplied by the number of months in the period starting with the
first month immediately following the eighteen (18) month period following termination and ending
with the month in which the earlier of the following dates occurs: (i) the date Executive reaches
age 65 or (ii) the date Executive is expected to qualify for Medicare; and
(d) the unvested portion of all outstanding stock options shall become fully vested as of the
last day of Executive’s employment and Executive shall have the ability to exercise all vested
stock options during such eighteen (18) month period following Executive’s termination; provided no
stock option shall be exercisable after its original expiration date, and (b) the restrictions on
all outstanding restricted stock awards shall lapse as of the last day of the Executive’s
employment. The provisions of this Section 6.3 shall supersede any provisions of the stock option
and restricted stock award agreement that is inconsistent herewith, and shall be deemed an
amendment to any such agreement executed by the Company and the Executive. The terms of this
Agreement have been approved by the Compensation Committee of the Board in
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compliance with the terms of the Company’s 2005 Stock Plan.
The Company and the Executive shall take all steps necessary (including with regard to any
post-termination services by Executive) to ensure that any termination of employment described in
this Section 6.3 constitutes a “separation from service” within the meaning of Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”), and notwithstanding anything contained
herein to the contrary, the date of such separation from service shall be the date of termination
of employment under this Agreement.
6.4 Effect of Termination. Notwithstanding any termination of this Agreement,
Executive, in consideration of his employment thereunder to the date of such termination shall
remain bound by the provisions of this Agreement which specifically relate to periods, activities
or obligations upon or subsequent to the termination of Executive’s employment.
6.5 Surrender of Records and Property. Upon termination of his employment with the
Company, Executive shall deliver promptly to the Company all records, manuals, books, blank forms,
documents, letters, memoranda, notes, notebooks, reports, data, tables, calculations or copies
thereof, computers, cellular phones or any other equipment which are the property of the Company or
which relate in any way to the business products, practices or techniques of the Company, and all
other property, trade secrets and confidential information of the Company, including, but not
limited to, all documents which in whole or in part contain any trade secrets, proprietary or
Confidential Information of the Company, which in any of the cases are in his possession or under
his control.
6.6 No Additional Pay/Benefits. Except as specifically set forth above, no
post-termination payments or benefits will be provided to Executive following the termination of
Executive’s employment, including any incentive pay or other bonus, during which the severance pay
is paid, unless otherwise provided under law or agreed to by the parties in writing and such
agreement is not contrary to or otherwise prohibited by a plan document.
6.7 Board Status. Nothing herein shall be construed as a contractual right of the
Executive to serve as a Chairman or as a member of the Board of Directors.
6.8 Grantor Trust. No later than 5 business days following the earlier of (i) a
“change in control” of the Company (as defined in Treas. Reg. §1.409A-3(i)(5)), (ii) the
termination of Executive by the Company without Cause, (iii) the termination by Executive of his
employment for Good Reason or (iv) December 31, 2011, provided Executive continues to be employed
by the Company through such date, the Company shall establish an irrevocable grantor trust in a
form substantially similar to the form of trust set forth in Rev. Proc. 92-64, as modified by
Notice 2000-56, and deposit the amounts required to be paid Executive under the terms of Section
6.3(b) and Section 6.3(c) in cash with the trustee in trust, which will be the initial principal of
the trust to be held, administered and disposed of by trustee as provided in such trust agreement
and this Agreement.
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7. Miscellaneous.
7.1 Governing Law. This Agreement is made under and shall be governed by and
construed in accordance with the laws of the state of Minnesota other than its law dealing with
conflicts of law.
7.2 Venue. Any action at law, suit in equity, or judicial proceeding arising
directly, indirectly, or otherwise in connection with, out of, related to or from this Agreement or
any provision hereof, shall be litigated only in the courts of the state of Minnesota, County of
Hennepin, or the Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxx of Minnesota, Fourth Division. Executive waives
any right Executive may have to transfer or change the venue of any litigation brought against
Executive by the Company. Executive also waives any claim of inconvenient forum.
7.3 Severability. To the extent any provision of this Agreement shall be invalid or
unenforceable, it shall be considered deleted therefrom and the remainder of such provision and of
this Agreement shall be unaffected and shall continue in full force and effect. In furtherance and
not in limitation of the foregoing, should the duration or geographical extent of, or business
activities covered by, any provision of this Agreement be in excess of that which is valid and
enforceable under applicable law, then such provision shall be construed to cover only that
duration, geographical extent or business activities which may be valid and enforceable under
applicable law. Executive acknowledges the uncertainty of the law in this respect and expressly
stipulates that this Agreement be given the construction which renders its provisions valid and
enforceable to the maximum extent (not exceeding its express terms possible under applicable law.)
7.4 Prior Agreements. This Agreement contains the entire agreement of the parties
relating to the employment of Executive by the Company and the ancillary matters discussed therein,
including all Exhibits and supersedes all prior agreements and understandings with respect to such
matters, including without limitation the Employment (Change in Control) Agreement dated January
11, 2001, as amended, and the Employment Agreement dated October 22, 1993, as amended, and the
parties thereto have made no agreements, representations or warranties relating to such employment
or ancillary matters except as expressly set forth herein.
7.5 Withholding Taxes. The Company may withhold from any benefits payable under this
Agreement all federal, state, city or other taxes as shall be required pursuant to any law or
governmental regulation or ruling. It is intended that any amounts payable under this Agreement
will comply with Section 409A of the Code, and treasury regulations relating thereto, so as not to
subject Executive to the payment of any interest and tax penalty which may be imposed under Section
409A of the Code, provide however that the Executive, and not the Company shall be responsible for
any such interest and tax penalties. The timing of the payments or benefits provided herein may be
modified to so comply with Section 409A of the Code.
7.6 Amendments. No amendment or modification of this Agreement shall be deemed
effective unless made in writing and signed by both Executive and the Company.
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7.7 No Waiver. No term or condition of this Agreement shall be deemed to have been
waived, nor there any estoppel to enforce any provision of this Agreement, except by a statement in
writing signed by the party against whom enforcement of the waiver or estoppel is sought. Any
written waiver shall not be deemed a continuing waiver unless specifically stated, shall operate
only as to the specific term or condition waived and shall not constitute a waiver of such term or
condition for the future or as to any act other than that specifically waived.
7.8 Assignment. This Agreement shall not be assignable, in whole or in part, by the
Executive. This Agreement shall be binding upon and inure to the benefit of the Company and its
successors and assigns and upon any person acquiring, by merger, consolidation, purchase of assets
or otherwise, all or substantially all of the assets and business of the Company, and the successor
shall be substituted for the Company under this Agreement.
7.9 Legal Fees. The Company shall reimburse Executive for the reasonable, and
appropriately documented, fees and expenses of legal counsel to Executive in connection with the
negotiation and execution of this Agreement, up to a maximum total reimbursement of $5,000.
7.10 Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which shall constitute one and the same
instrument.
7.11 Captions and Headings. The captions and paragraph headings used in this
Agreement are for convenience of reference only, and shall not affect the construction or
interpretation of this Agreement or any of the provisions thereof.
IN WITNESS WHEREOF, Executive and the Company have executed this Agreement as of the date set
forth in the first paragraph.
| WSI Industries, Inc. |
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| By | /s/ Xxxx X. Xxxxxx | |||
| Its Chief Financial Officer | ||||
| Executive |
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| /s/ Xxxxxxx X. Xxxxx | ||||
| Xxxxxxx X. Xxxxx | ||||
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EXHIBIT A
RESTRICTIVE COVENANT AGREEMENT
THIS RESTRICTIVE COVENANT AGREEMENT (“Agreement”) is entered into as of October 7, 2009, by
and between Xxxxxxx X. Xxxxx (“Employee”) and WSI Industries, Inc., (the “Company” or the
“Employer”).
IN CONSIDERATION of employment, and the severance and other benefits offered Employee under
the Employment Agreement dated this date between Employee and Employer, to which Employee was not
otherwise entitled to, the Company and Employee agree as follows:
1. Confidential Information.
1.1 “Confidential Information” Defined. “Confidential Information” means information
not generally known and proprietary to the Company or to a third party for whom the Company is
performing work, including, without limitation, information concerning any patents or trade
secrets, confidential or secret designs, processes, formulae, source codes, plans, devices or
material, research and development, proprietary software, analysis, techniques, materials or
designs (whether or not patented or patentable), directly or indirectly useful in any aspect of the
business of the Company, any vendor names, customer and supplier lists, databases, management
systems and sales and marketing plans, accounting and financial reports, evaluations, statements,
audits of the Company or other affiliated entity, any confidential secret development or research
work of the Company, or any other confidential information or proprietary aspects of the business
of the Company. All information which Employee acquires or becomes acquainted with during
Employee’s employment by the Company (including employment by an affiliated company), whether
developed by Employee or by others, which Employee has a reasonable basis to believe to be
Confidential Information, or which is treated by the Company as being Confidential Information,
shall be presumed to be Confidential Information.
1.2 Disclosures and Use by Employee. Employee will not, during or at any time after
the term of employment under this Agreement, divulge, disclose or communicate to any person or
entity, or use for Employee’s benefit or for the benefit of any third party, in any manner
whatsoever, whether directly or indirectly, any information concerning any matters affecting or
relating to the business of Employer, including any of its customers, the prices it obtains or has
obtained from the sale of, or at which it sells or has sold, its products, or any other information
concerning its business, its manner of operation, its plans, processes, specifications,
merchandising techniques, or other data. Employee understands that such matters and information
are important, material, and confidential and are necessary to the effective and successful conduct
of Employer’s business and goodwill, and that any breach of the terms of this paragraph shall be a
material breach of this agreement.
1.3 Scope of Obligation. The foregoing obligations of confidentiality shall not apply
to any knowledge or information which is now published or which subsequently becomes generally
publicly known in the form in which it was obtained from the Company, other than as a direct or
indirect result of the breach of this Agreement by Employee.
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1.4 Ownership Rights: Confidentiality. Employee shall not acquire any rights
hereunder or during employment to any documents, records, tangible property, goodwill, trade
secrets, customer lists, proprietary interests, Confidential Information, or other property of
Employer, whether tangible or intangible. All such technical and business information of Employer,
including any records or documents which Employee shall compile while employed with Employer, are
to be considered confidential.
2. Non-competition and Non-solicitation.
2.1 Non-competition.
(a) During and After Employment. Throughout the period of Employee’s
employment with Employer, and thereafter for the period described in Section 2.1(c)
set forth below, Employee shall not, for any reason whatsoever, directly or
indirectly, plan, organize, advise, own, manage, operate, control, be employed by,
participate in or be connected in any manner with the ownership, management,
operation or control of any business similar to the type of business conducted by
Employer, and will not conspire with others to do so as a shareholder, officer,
director, agent, employee, advisor, consultant or independent contractor of any
competing business. A competing business includes any corporation, limited
liability company, partnership, proprietorship, association, or other entity or
person engaged in developing, producing, designing, providing, soliciting orders
for, selling, distributing or marketing products or services that directly or
indirectly compete with any of the Company’s products, services or business.
Ownership by Employee, as a passive investment, of capital stock or other securities
of any corporation dissimilar from the Company shall not constitute a breach of this
Section 2.1(a).
(b) Restriction as to Territory. Employee’s agreement not to compete
against Employer shall extend throughout the territory where it actually does
business or may reasonably expect to do business and the territory where its
customers are located.
(c) Restriction as to Duration. The duration of this agreement not to
compete shall extend throughout the term of Employee’s employment with Employer and
for an additional twelve (12) months thereafter; provided, however, that the
duration of the foregoing covenant shall be extended beyond the time period set
forth herein for a period equal to the duration of any breach or default of such
covenant by Employee. Employee agrees that this restriction as to duration is
reasonable in light of the nature of Employee’s job.
(d) Independent Covenant. Employee’s agreement not to compete as set
forth in this Section 2.1 is understood to be an independent covenant and agreement
on Employee’s part which may be enforced against Employee regardless of any claim
Employee may have or assert against Employer.
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(e) Court Ruling. In the event that the foregoing agreement not to
compete is determined by a court of competent jurisdiction to be excessive in its
duration or in the area to which it applies, it shall be considered modified and
valid for such duration and for such area as said court may determine to be
reasonable under the circumstances.
2.2 Non-solicitation. Employee further agrees that Employee will not at any time
during employment with the Company and for the period of twelve (12) months following the last day
of employment with the Company, directly or indirectly, induce or influence any employee of the
Company to leave the employ of the Company or any consultant or other independent contractor for
the Company to change or terminate any relationship between that person and the Company.
2.3 Prohibited Activity. Employee further agrees that, Employee will not, directly or
indirectly, assist or encourage any other person in carrying out, directly or indirectly, any
activity that would be prohibited by the above provisions of this Section 2 if such activity were
carried out by Employee, directly or indirectly, or induce any employee of the Company to carry
out, directly or indirectly, any such activity.
3. Copy to New Employer. Throughout the term of this Agreement, and for a period of
twelve (12) months thereafter, Employee will inform Employee’s new or prospective employer, prior
to accepting employment, of the existence of this Agreement and will provide such employer a copy
thereof.
4. Termination. Notwithstanding any termination of employment, Employee, in
consideration of employment through the date of such termination, shall remain bound by the
provisions of this Agreement, which specifically relate to periods, activities or obligations upon
or subsequent to the termination of Employee’s employment.
5. Settlement of Disputes.
5.1
Resolution of Certain Claims - Injunctive Relief. Claims brought by the Company
asserting a violation of this Agreement, or seeking to enforce, by injunction or otherwise, the
terms this Agreement may be maintained by the Company in a lawsuit subject to the terms of Section
5.2. Employee agrees that, in addition to, but not to the exclusion of any other available remedy,
the Company shall have the right to enforce the provisions of this Agreement by applying for and
obtaining temporary and permanent restraining orders or injunctions from a court of competent
jurisdiction without the necessity of filing a bond therefore, and the Company shall be entitled to
recover from Employee its reasonable attorneys’ fees and costs in enforcing this Agreement.
5.2 Venue. Any action at law, suit in equity, or judicial proceeding arising
directly, indirectly, or otherwise in connection with, out of, related to or from this Agreement or
any provision hereof, shall be litigated only in the courts of the state of Minnesota, or the
Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxx of Minnesota. Employee waives any right Employee may have to
transfer or change the venue of any litigation brought against Employee by the Company. Employee
also waives any claim of inconvenient forum.
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5.3 Severability. In the event any provision of this Agreement is found to be illegal
or unenforceable, such provision shall be severed or modified to the extent necessary to make it
enforceable, and as so severed or modified, the remainder of this Agreement shall remain in full
force and effect. Employee expressly stipulates that this Agreement be given the construction
which renders its provisions valid and enforceable to the maximum extent (not exceeding its express
terms possible under applicable law).
6. Miscellaneous.
6.1 Governing Law. This Agreement is made under and shall be governed by and
construed in accordance with the laws of the state of Minnesota other than its law dealing with
conflicts of law.
6.2 Amendments. No amendment or modification of this Agreement shall be deemed
effective unless made in writing and signed by both Employee and the Company.
6.3 No Waiver. No term or condition of this Agreement shall be deemed to have been
waived, nor there any estoppel to enforce any provision of this Agreement, except by a statement in
writing signed by the party against whom enforcement of the waiver or estoppel is sought. Any
written waiver shall not be deemed a continuing waiver unless specifically stated, shall operate
only as to the specific term or condition waived and shall not constitute a waiver of such term or
condition for the future or as to any act other than that specifically waived.
6.4 Assignment. This Agreement shall not be assignable, in whole or in part, by the
Employee. This Agreement is freely assignable by the Company in connection with a sale of
substantially all of the equity or assets of the Company
6.5 Effect of Agreement. Nothing contained in this Agreement is intended to create an
express or implied contract of employment or guarantee of employment. Employee agrees that
Employee is employed “at will” and agrees that the Company is not by reason of this Agreement
obligated to continue Employee’s employment at any time, for any reason.
6.6 Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which shall constitute one and the same
instrument.
6.7 Captions and Headings. The captions and paragraph headings used in this Agreement
are for convenience of reference only, and shall not affect the construction or interpretation of
this Agreement or any of the provisions thereof.
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IN WITNESS WHEREOF, Employee and the Company have executed this Agreement as of the date set
forth in the first paragraph.
WSI INDUSTRIES, INC. |
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| By: | ||||
| Its: | ||||
| EMPLOYEE |
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| Xxxxxxx X. Xxxxx, individually | ||||
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EXHIBIT B
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (hereafter “Agreement”) is entered into by and between
Xxxxxxx X. Xxxxx (hereinafter referred to as “Xxxxx,” “you” or “your”) and WSI Industries, Inc.
(“WSI”).
RECITALS:
WHEREAS, Xxxxx was employed by WSI as an at-will employee under the terms of the certain
Employment Agreement dated as of October 7, 2009 (“Employment Agreement”), which means that either
Xxxxx or WSI may terminate that employment relationship at any time with or without cause; and
WHEREAS, effective , WSI and Xxxxx separated their employment relationship
(“Separation Date”); and
WHEREAS, in accordance with the Employment Agreement, WSI has offered Xxxxx xxxxxxxxx to which
Xxxxx was not otherwise entitled to, in return for a release of all claims against WSI;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants
herein, and for other good and valuable consideration, the receipt and sufficiency of which is
specifically acknowledged by Xxxxx and WSI, the parties knowingly and voluntarily agree as follows:
7. Payment of Accrued Obligations. WSI will pay and provide to you the Accrued
Obligations as set forth in Section 6.3(a) of the Employment Agreement, subject to applicable
withholding, at the time and in the manner provided therein.
8. Payment of Severance and Other Benefits. WSI will pay you the amounts set forth in
Section 6.3(b) and (c) of the Employment Agreement, subject to applicable withholding, at the time
and in the manner provided therein, following expiration of the rescission period described in
Paragraph 5 of this Agreement and WSI’s receipt of Exhibit A, signed and dated by you after
expiration of the rescission period. Exhibit A is your certification that you have taken no steps
to exercise your right of rescission.
9. Release. In consideration for the benefits outlined in Section 2 above, you agree
to the following:
| a. | You hereby release, agree not to xxx, and forever discharge WSI, Inc., its affiliates, and related entities, and its officers, governors, members, agents, employees, successors and assigns, from any and all manner of claims, demands, actions, causes of action, administrative claims, liability, damages, claims for punitive or liquidated damages, claims for attorneys’ fees, costs and disbursements, individual or class action claims, or demands of any kind whatsoever, you have or might have against them or |
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any of them, whether known or unknown, in law or equity, contract or tort,
arising out of or in connection with your employment with WSI, or the
termination of that employment, or otherwise, and however originating or
existing, from the beginning of time through the date of your signing this
Agreement.
| b. | This release includes, without limiting the generality of the foregoing, any claims you may have for wages, bonuses, commissions, penalties, deferred compensation, vacation pay, separation pay and/or benefits, defamation, improper discharge (based on contract, common law, or statute, including any federal, state or local statute or ordinance prohibiting discrimination or retaliation in employment), the Minnesota Human Rights Act, Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act, the Americans with Disabilities Act, Minn. Stat. § 181.932, Minn. Stat.§ 176.82 and any claim for discrimination or retaliation based on a protected class under state or federal law. You hereby waive any and all relief not provided for in this Agreement. | ||
| c. | You affirm that you have not caused or permitted, and to the full extent permitted by law, will not cause or permit to be filed (to the extent that you are able to control such filing), any charge, complaint, or action of any nature or type against WSI, and its successors and assigns, including but not limited to any action or proceeding raising claims arising in tort or contract, or any claims arising under federal, state or local laws, including discrimination laws. |
10. Consideration Period. You may review this Agreement with an attorney of your
choosing. You have 21 days from , 20___, to consider whether you wish to sign it. You
acknowledge that if you sign this Agreement before the end of the 21 day period, it is your
voluntary decision to do so, and you waive the remainder of the 21 day period.
11. Rescission. You are hereby notified of your right to rescind this Agreement
within seven (7) calendar days of your signing to reinstate federal claims under the Age
Discrimination in Employment Act and your right to rescind this Agreement within 15 calendar days
with regard to claims arising under the Minnesota Human Rights Act. In order to be effective, the
rescission must be in writing and delivered to Xxxx Xxxxxx, Vice
President - Finance, WSI
Industries, Inc., 000 Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000, by hand or by mail within the required
period; and if delivered by mail, the rescission must be postmarked within the required period,
properly addressed to Xxxx Xxxxxx and sent by certified mail, return receipt requested. This
Agreement will be effective upon the expiration of the 15 day period without rescission. You
understand that if you rescind this Agreement in accordance with this paragraph, you will not
receive the severance payment described in Paragraph 1 above.
12. Return of All Property. You acknowledge return of all WSI property, including
keys, credit cards, security access cards, codes, personal computers, memoranda, data, records,
notes and other information in your possession or under your control in any media form. You
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will be permitted supervised access to the computer you used during employment to copy and
remove all personal data and software.
13. Non-Disclosure of Confidential Information. By signing this Agreement, you
acknowledge and agree that you have had access in your employment with WSI to confidential
information of and further acknowledge and agree that the release or disclosure of any confidential
information will cause WSI irreparable injury. By signing this Agreement, you acknowledge that you
have not used or disclosed, and agree that you will not at any time use or disclose, directly or
indirectly, to any other entity or person, any confidential information of WSI.
14. Confidentiality of this Agreement. You also promise and agree not to disclose the
contents and terms of this Agreement. You agree that the only people with whom you may discuss
this Agreement are your spouse and legal and financial advisors, provided they agree to keep the
information confidential or as otherwise required by law. WSI may disclose the terms of this
Agreement to its officers, directors, outside auditors, and employees or agents who have a
legitimate need to know the terms of the Agreement in the course of performing their duties or as
required by law or regulation of the Securities and Exchange Commission. Other than as set forth
above, the terms of the Agreement shall not be disclosed, except pursuant to written authorization
by the other party.
15. Non-disparagement. The parties agree that they will not disparage or defame each
other in any respect or make any negative comments concerning the employment relationship, the
termination thereof, or the matters contained in this Agreement. You agree that you will not
assist or encourage any individual or group of individuals to bring or pursue a lawsuit, charge,
complaint or grievance, or in making any other demand against WSI, or any of its officers,
employees, or agents.
16. No Admission. This Agreement shall not in any way be construed as an admission by
WSI of any liability or unlawful conduct whatsoever. WSI specifically denies any liability or
unlawful conduct.
17. Severability. In the event that any provision of this Agreement is found to be
illegal or unenforceable, such provision shall be severed or modified to the extent necessary to
make it enforceable, and as so severed or modified, the remainder of this Agreement shall remain in
full force and effect.
18. Governing Law. This Agreement shall be governed and construed in accordance with
laws of the State of Minnesota, other than its law dealing with conflicts of law.
19. Entire Agreement. This Agreement contains the full agreement between you and WSI
and may not be modified, altered, or changed in any way, except by written agreement signed by the
parties. The parties agree that this Agreement supersedes and terminates any and all other written
and oral agreements and understandings between the parties on this matter. You are not eligible
for any other payment or benefits, except for those expressly described in this Agreement, provided
that you sign and do not rescind this Agreement. Notwithstanding the foregoing, the terms of the
Restrictive Covenant Agreement and any remaining terms under the
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Employment Agreement between you and WSI that continue following your termination of
employment shall remain in full force and effect.
20. Acknowledgement of Release. By signing this Agreement, you acknowledge that you
have read this Agreement, including the release of claims contained in this Agreement, and
understand that the release of claims is a full and final release of all claims you may have
against WSI and the other entities and individuals covered by the release. By signing, you also
acknowledge and agree that you have entered into this Agreement knowingly and voluntarily.
By: |
||||
| Its: | ||||
I have read and understand and agree to the terms and conditions set forth above and have signed
this Agreement freely, voluntarily and with full knowledge and understanding of its meaning.
Dated , 20__
| Xxxxxxx X. Xxxxx | ||||
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EXHIBIT A
to
SEPARATION AGREEMENT AND RELEASE
to
SEPARATION AGREEMENT AND RELEASE
CERTIFICATION
, 20__
Dear :
This letter, signed and dated more than 15 days after I signed the Separation Agreement and Release
between WSI and me dated , 20___, is to certify that I have taken no steps to
exercise my right of rescission, as described in the Agreement.
Sincerely,
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