SEPARATION AGREEMENT
Exhibit 10.1
This Separation Agreement (“Agreement”) is made and entered into as of the 1st day of May, 2008, by and between Xxx X. Xxxxxxxx (“I”, “Me”, or “My” as the case may be) and X.X. Xxxxxx Company, a Minnesota corporation, with offices at 0000 Xxxxxx Xxxx Xxxxxxxxx, X.X. Xxx 00000, Xx. Xxxx, Xxxxxxxxx 00000-0000 and all of its divisions, subsidiaries, affiliates, and all of its and their agents, officers, employees, and directors, (hereinafter collectively “Xxxxxx”):
WHEREAS, Xxxxxx and I have agreed that my employment with Xxxxxx will terminate effective June 17, 2008; and
WHEREAS, I have agreed, in lieu of severance, to accept the benefits, obligations and payments provided herein;
NOW, THEREFORE, in consideration of the promises, agreements and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby expressly acknowledged, the undersigned hereby agree and promise as follows:
1. Recitals. The foregoing recitals are hereby incorporated as if fully set forth herein.
2. Employment and Termination. I agree that My employment with Xxxxxx will end June 17, 2008, and that my last day in my current position at Xxxxxx will be April 28, 2008. I understand and acknowledge that My employment with Xxxxxx may be terminated earlier than June 17, 2008, but only for gross violation of working rules or gross misconduct. I further understand and agree that this Agreement will become automatically null, void and unenforceable in the event I am so terminated. I hereby resign as an officer and director, as applicable, of Xxxxxx and all Xxxxxx-controlled entities, including subsidiaries and joint ventures.
3. Separation Payment. Within twenty-one (21) days after my execution of this Agreement, I agree to provide Xxxxxx with an executed Release Agreement in the form attached hereto as Exhibit A (the “Release Agreement”). In return, and in consideration of the promises, agreements and covenants contained in this Agreement, Xxxxxx agrees to pay Me the sum of $86,770.00 (the “Separation Payment”). Unless there is a timely rescission of this Agreement and the Release Agreement as provided in the Release Agreement, the Separation Payment shall be paid in one lump sum (less state and federal taxes and other standard legal deductions) within ten (10) days following termination of My employment on June 17, 2008, subject to Xxxxxx’x receipt of the signed Release Agreement. Except as expressly provided herein, it is understood and agreed that I am waiving and forfeiting any right, claim or interest to any severance payment under any applicable Xxxxxx plan, including, specifically, the X.X. Xxxxxx Company Severance Pay Plan.
4. Benefits. Except as otherwise stated herein, Xxxxxx agrees that, until termination of My employment, I will continue to be eligible for participation as a full time employee under Xxxxxx’x benefit programs, including all key manager benefits. I understand and agree that My rights to benefits under any Xxxxxx benefit plan, including but not limited to Xxxxxx’x Retirement
Plan and Xxxxxx’x Defined Contribution Restoration Plan, are governed and determined by the rules of said plans, as they may exist from time to time. It is further understood and agreed that, except as expressly stated herein, I am not waiving any rights to vested employee benefits extended under any Xxxxxx plan.
5. T&E Reporting. I agree to provide Xxxxxx with all documentation necessary to reconcile My outstanding Travel and Expense Reporting, and will authorize Xxxxxx to deduct from my Separation Pay any amounts for any non-reimbursable expenses or expenses that do not comply with Xxxxxx’x policies regarding Travel and Expense Reporting.
6. Outplacement Services. Xxxxxx agrees to pay up to $12,500.00 for outplacement services utilized by Me during the period commencing with the date of this Agreement and ending on December 31, 2008. Xxxxxx shall at its election either reimburse Me for such amounts upon proper documentation, or pay the outplacement services provider directly on a receipt or invoice basis from the outplacement services provider. Payments will be made as documentation is provided. All documentation must be provided by Me to Xxxxxx by no later than January 15, 2009 and Xxxxxx will make final payment to Me or the provider by no later than February 15, 2009.
7. Grants and Awards. Except as otherwise stated herein, I understand and agree that My rights to any long term incentives pursuant to any Xxxxxx xxxxx or award, including, but not limited to, Restricted Stock Awards and Stock Options, shall be governed and determined by the terms of such grant or award, including the terms and conditions of the plan or plans pursuant to which the grant or award was made
8. Key Employee Deferred Compensation Plan. My participation in the Key Employee Deferred Compensation Plan (“KEDC”) will end as of the date of my termination. Distributions under the KEDC will be made pursuant to the terms of that plan, however, certain distributions may be subject to the six (6) month waiting period mandated under Section 409(A) of the Internal Revenue Code.
9. Confidential Information. I agree that, from and after the date this Agreement is executed by both parties, all the information, facts, or occurrences relating to business methods, plans and strategies, formulas, designs, specifications, processes, product know how and ideas, customer lists, customer purchasing histories, pricing and other contract terms, financial and accounting information including budgets, forecasts, projections, costs, prices, margins, profits and sales, purchasing and supplier and potential supplier information, computer user identifiers and passwords, and all other information, not generally known and proprietary to Xxxxxx, relating to research, development, manufacturing, marketing or sale of Xxxxxx’x products shall be and are hereby deemed to be confidential information of the Company (“Confidential Information”). I agree, from and after the date this Agreement is executed by both parties, not to use or disclose any Confidential Information at any time during or after My employment by Xxxxxx, except by written consent of Xxxxxx or as may be required by law or court process. Upon termination of My employment, I agree that all Confidential Information, including all copies, excerpts and summaries in My possession or control, any other information related to Xxxxxx’x business or My Xxxxxx work and all other Xxxxxx property shall be immediately returned to Xxxxxx.
Information shall be considered Confidential Information regardless of the means, media or format in which it is maintained or communicated. This includes all documents, computers and electronic storage devices such as flash drives, pdas, cds, dvds, floppy discs, keys, credit cards and software that belong to Xxxxxx. Confidential Information shall not include information the entirety of which is now or subsequently becomes generally and publicly known, other than as a direct or indirect result of the breach of this Agreement by Me or a breach of a confidentiality obligation owed to Xxxxxx by any third party.
10. Non-Competition. For a period of one (1) year following the date of termination of My employment, I will not serve, directly or indirectly (individually or as an officer, director, employee, consultant, partner or co-venturer, or as a stockholder or other proprietor owning a beneficial interest of more than five percent (5%)) in any enterprise which develops, produces or sells a Conflicting Product without the written consent of Xxxxxx. This means, by way of illustration but not limitation, that I will not sell or solicit orders for any “Conflicting Product” to or from any customer of Xxxxxx, and that I will not serve any organization or person engaged in the development, production or sale of a “Conflicting Product.” For the purposes of this illustration, “Conflicting Product” means any product, process, equipment, concept or service (in existence or under development) of any person or organization that competes with a product, process, equipment, concept or service of Xxxxxx or concerning which I acquired Confidential Information at any time through My work with Xxxxxx.
In the event I am presented with an opportunity that I believe might violate this covenant, I can submit in writing to Xxxxxx, in care of the Vice President of Human Resources, a description of the opportunity, asking for Xxxxxx’x written consent to pursue that opportunity. Xxxxxx agrees to promptly reply in writing to any such written request within five (5) business days.
I understand that this covenant is not intended to limit My subsequent employment in any industry or for any employer producing a product or service different from Xxxxxx’x. I acknowledge and represent that I have substantial experience and knowledge such that I can readily obtain employment that does not violate this covenant.
11. Non-Solicitation. For a period of one (1) year following the date of termination of My employment, I agree that I will not hire or induce, attempt to induce, or in any way assist or act in concert with any other person or organization in hiring, inducing or attempting to induce any employee, agent or consultant of Xxxxxx to terminate such employee’s, agent’s or consultant’s relationship with Xxxxxx.
12. Information, Assistance, Testimony. I understand that Xxxxxx may occasionally ask me to provide information, assistance or testimony regarding litigation or legal matters, and I agree to cooperate, provided that Xxxxxx reimburses me for any out-of-pocket expenses. In the event I am required to provide assistance totaling in excess of two (2) business days, Xxxxxx will provide me with a reasonable per diem payment to compensate me for my time. This provision is not intended, of course, to affect the content of any testimony I shall give in any matter.
13. Non-Disparagement. Xxxxxx and I agree that neither of us will voluntarily make statements, publicly or otherwise, which disparage, defame or are adverse to either of our interests.
14. Remedies. The parties hereto acknowledge that the provisions of this Agreement are reasonable and necessary for their mutual protection and that any violation of this Agreement may cause irreparable harm for which the non-breaching party would be entitled to temporary or permanent injunctive relief, and for money damages insofar as they can be determined.
15. Jurisdiction and Venue. If any dispute arises under this Agreement, I agree that this Agreement will be interpreted and construed under the laws of Minnesota. I also agree that all disputes arising out of or relating to this Agreement shall be brought, if at all, in a court located in Minnesota to the exclusion of the courts of any other state or jurisdiction. I agree that any court located in Minnesota has jurisdiction over me in connection with any such disputes, regardless whether Xxxxxx or I bring the claim or action.
16. Integration and Modification. Except as provided herein, this Agreement represents the entire agreement between Me or anyone who has or obtains any legal rights or claims through Me and Xxxxxx with respect to the subject matter covered herein. It replaces any other oral or written agreements, representations, promises or discussions between Me and Xxxxxx. This Agreement may not be changed orally. To be valid, any waiver or modification must be in writing and signed by all of the parties hereto. If any part of this Agreement is declared by a court of competent jurisdiction to be illegal, invalid or unlawful, in whole or in part, then said part shall be modified or suspended, as the case may require, but only to the extent necessary and all other parts will remain valid and in full force and effect. This Agreement may be executed in any number of counterparts which, taken together, shall constitute but one Agreement. A copy of this Agreement is as valid as the original.
17. Execution in Counterpart. This Agreement may be executed in counterparts. Each such counterpart, when executed and delivered, shall be deemed to be an original and, taken together, shall constitute but one in the same instrument.
18. Facsimile Signatures. The signatures to this Agreement may be evidenced by facsimile copies reflecting the party’s signature hereto, and such facsimile copy shall be sufficient to evidence the signature of such party just as if it were an original signature.
THIS IS A FINAL AGREEMENT AND RELEASE. READ BEFORE SIGNING.
| Dated: May 1, 2008 | X.X. XXXXXX COMPANY | |||
| By: | /s/ Xxx X. Xxxxxxxx | |||
| Its: | Vice President, Human Resources | |||
| Dated: May 1, 2008 | /s/ Xxx X. Xxxxxxxx | |||
| Xxx X. Xxxxxxxx | ||||
EXHIBIT A
Release Agreement
In consideration of the promises, agreements and covenants contained herein and in My Separation Agreement dated May 1, 2008 (“My Separation Agreement”), I, on behalf of Myself, My heirs, assigns, spouses, representatives, and agents do hereby fully release and forever discharge X.X. Xxxxxx Company, a Minnesota corporation, with offices at 0000 Xxxxxx Xxxx Xxxxxxxxx, X.X. Xxx 00000, Xx. Xxxx, Xxxxxxxxx 00000-0000 and all of its divisions, subsidiaries, affiliates, and all of its and their agents, officers, employees, directors, and shareholders (hereinafter collectively “Xxxxxx”), from any and all liability, remedies, claims for relief, demands, actions, causes of action, suits, grievances, arbitrations and administrative proceedings under every local, state, or federal law, statute, ordinance or common-law, and any and all other claims of any kind or nature whatsoever occurring as of the date of this Agreement, whether in law or in equity, contract or tort, known or unknown, asserted or unasserted, suspected or unsuspected, of any kind or nature whatsoever which I may now have or hereafter have or claim to have against Xxxxxx for, upon, or by reason of any matter, event, cause or thing occurring prior to the date of this Agreement, including without limitation, any and all claims of any kind arising out of or in anyway relating to My employment with Xxxxxx, and further including without limitation:
(i) Any claims, demands, or causes of action arising under, or any claim for relief on the basis of, an alleged violation of the Civil Rights Act of 1991, Title VII of the Civil Rights Act of 1964, the Age Discrimination In Employment Act of 1967, as amended, the Employee Retirement Income Security Act, Title 00 X.X. Xxxxxxx 0000, the Americans With Disabilities Act, the Older Workers Benefit Protection Act, the Minnesota Human Rights Act, and/or any other federal, state or local statute, ordinance, or regulation dealing in any way with employment or employment discrimination;
(ii) Any claims, demands, or causes of action on the basis of any breach of an express or implied employment contract under the common-law of the State of Minnesota, or any other state, or on the basis of any claim of defamation, wrongful discharge and/or any other common-law, statute or tort or any other claim whatsoever arising out of or in any way relating to My employment with Xxxxxx or any other occurrence prior to the date of this Agreement, but excluding claims which I cannot by law waive and claims for breach of this Agreement.
It is specifically agreed and understood that I am not waiving or releasing any right I may have under Xxxxxx’x corporate undertakings or pursuant to any applicable policy of insurance, to defense and/or indemnity for third party claims.
I warrant that I am legally competent to execute this Release and accept full responsibility therefore. I also agree that I am signing this Release voluntarily and with full knowledge of its significance and legal consequence. I also agree that I have been advised to consult with any attorney before signing this Agreement and that Xxxxxx has given Me a full twenty-one (21) days within which to consider this Agreement, before signing below, if I so desire.
I understand that I may rescind (that is, cancel) this Agreement within seven (7) calendar days of signing it to reinstate claims under the Age Discrimination In Employment Act of 1967 and within fifteen (15) calendar days to reinstate claims under the Minnesota Human Rights Act. To be effective, My rescission must be in writing and delivered to Xxxxxx in care of the Vice President of Human Resources, 0000 Xxxxxx Xxxx Xxxxxxxxx, X.X. Xxx 00000, Xx. Xxxx, Xxxxxxxxx 00000-0000. If delivered by mail, such rescission may be postmarked within the seven (7) or fifteen (15) day period and sent by Certified Mail, Return Receipt Requested to X.X. Xxxxxx Company at 0000 Xxxxxx Xxxx Xxxxxxxxx, X.X. Xxx 00000, Xx. Xxxx, Xxxxxxxxx 00000-0000, attention Vice President of Human Resources.
I understand that timely rescission of any portion of this Agreement as provided herein, shall constitute a material breach of this Agreement and My Separation Agreement resulting in immediate withdrawal and rescission of all promises, agreements and covenants contained herein and in my Separation Agreement.
| Dated: , 2008 |
| |
| Xxx X. Xxxxxxxx |
