EXHIBIT 10.33
June 5, 1996
Xx. Xxxxx X. Xxxx
00000 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Dear Xxx:
This letter memorializes our agreement with respect to your termination
of employment from Yale International, Inc./Spreckels Industries, Inc. (together
"Yale"). As used in this letter agreement ("Agreement"), "you" means you, all of
your heirs, successors, representatives and assigns and "Yale" means Yale
International, Inc./Spreckels Industries, Inc., its successors, assignees, and
its past, present and future managers, agents, affiliates, trustees,
shareholders, directors, representatives, indemnitors, attorneys and employee
benefit plans and its affiliated companies and their past, present and future
managers, agents, affiliates, trustees, shareholders, directors,
representatives, indemnitors, attorneys and employee benefit plans. Employee
benefit plans for purposes of this Agreement, does not and shall not include the
Spreckels Industries, Inc. New Management Stock Option Plan (effective September
2, 1993) or any other stock option plan of Yale, under which you hold shares of
the capital stock of Yale, or the right to acquire shares of the capital stock
of Yale.
AGREEMENT AND RELEASE OF CLAIMS
1. Yale agrees to pay you a severance payment in the amount of
$175,000, less statutory deductions (the "severance payment"). The severance
payment will be paid in twelve (12) monthly installments beginning July 1, 1996.
In addition, any payments due you under the Fiscal 1996 Management Incentive
Plan will be paid within 15 days after approval of Fiscal 1996 Plan awards by
the Board of Directors. Such payment will be computed based on actual Fiscal
1996 Industrial results and your earnings for 12 months. You will be maintained
as an active employee with full pay and benefits through June 30, 1996. The
severance payment represents all payments due you by Yale under any severance,
executive severance, retention, or any other such policy or practice. It does
not restrict your rights to additional benefits under the Executive Severance
Policy. It also does not restrict your rights to medical, dental and life
insurance coverages for 12 months from June 30, 1996, provided you continue to
make any required contributions. Yale's policy provides that to be eligible for
payment under the policy, "you must in writing, release the
Xx. Xxxxx X. Xxxx
June 5, 1996
Page 2
Company, its subsidiaries and its employees from all claims, including those
regarding discrimination because of age, sex, race, national origin or physical
or mental impairment." This Agreement is the release that you must sign in order
to receive a severance payment under the policy. You will not receive any
benefits or payments under this Agreement if you do not sign the Agreement or if
you exercise your right to revoke this Agreement, as set forth in paragraph 10.
2. If you sign this Agreement, you agree to the terms below, and the
waivers and releases set forth in the paragraphs below will be effective.
3. You release Yale from any and all claims, demands, actions and
causes of action, of any and every sort, whether known or unknown, arising out
of any source from the beginning of time up to and including the date of this
Agreement.
4. You understand that this Agreement shall not be considered as an
admission by Yale of (a) any liability whatsoever, (b) your rights or the rights
of any other person under any order, law or statute, (c) a breach of any
contract and (d) any act of discrimination against you or any other person. Yale
specifically disclaims (a) any liability to you or discrimination against you or
any other person, (b) any alleged violation of your rights or the rights of any
person under any order, law or statute and (c) any breach or violation of any
contract, wage order or law. Except in an action for breach of this Agreement or
to enforce its provisions, this Agreement may not be presented or used as
evidence against Yale in any action, proceeding or claim against Yale.
5. You agree and represent that you have not and will not, file any
claim or action against Yale with any administrative agency, arbitrator, board
or court. You further agree that if any agency, arbitrator, board or court
assumes jurisdiction of any claim or action against Yale that relates to your
employment in any way, you will join with Yale to request in writing that the
matter be dismissed with prejudice. You agree that you will not cooperate or
participate in the investigation or prosecution of any such claim or action
unless compelled to do so by legal process and then only to such extent.
6. Notwithstanding anything to the contrary, you irrevocably and
unconditionally release and forever discharge Yale from any and all actions or
liabilities of any kind (including attorneys' fees, interest, expenses, and
costs actually incurred) of any nature whatsoever, known or unknown, suspected
or unsuspected, arising out of your hiring, employment with Yale or termination
from Yale.
7. You understand that various statutes provide you with the right to
bring actions against Yale if you believe that you have been discriminated
against on the basis of race, ancestry, color, religion, sex, marital status,
sexual orientation, status as a veteran of the Vietnam Era, national origin,
disability or medical condition or if you believe that you have been retaliated
against
Xx. Xxxxx X. Xxxx
June 5, 1996
Page 3
for filing such a claim. Such statutes include, but are not limited to, Title
VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991,
the Vietnam Era Veterans' Readjustment Assistance Act of 1974, the Uniformed
Services Employment and Reemployment Act of 1994, the Employee Retirement Income
Security Act of 1984, as amended ("ERISA"), the Family and Medical Leave Act,
the Rehabilitation Act of 1973, the Equal Pay Act, ss.1981 of Title 42 of the
United States Code and the Americans with Disabilities Act, (collectively, the
"Acts"). ERISA also provides you with the right to bring actions against Yale if
you believe that Yale violated ERISA's provisions. You understand the rights
afforded under the Acts and agree that you will not file any action against Yale
based upon any alleged violations of the Acts. You waive any rights to assert a
claim for relief available under the Acts against Yale including, but not
limited to, back pay, attorneys' fees, damages, reinstatement or injunctive
relief. You waive and agree that you have no right to be recalled, or to
reemployment or reinstatement.
8. You represent and agree that you have not relied upon any
representations made by Yale with regard to the subject matter of this Agreement
other than what is contained in this Agreement itself. You agree that this
Agreement reflects the full understanding of the parties and supersedes,
replaces and renders void and unenforceable all prior oral and written
agreements relating to your hiring or termination of employment with Yale in any
way.
9. You specifically understand and acknowledge that the Age
Discrimination in Employment Act of 1967, as amended ("ADEA"), provides you with
the right to bring a claim against Yale, if you believe that you have been
discriminated against on the basis of age. You understand the rights afforded
under ADEA and agree that you will not file any claim or action against Yale
based on any alleged violation or violations of ADEA arising prior to the date
you execute this Agreement. You hereby waive any right to assert a claim for
relief under ADEA, including but not limited to, back pay, attorneys' fees,
damages, reinstatement or injunctive relief.
10. A copy of this Agreement was delivered to you on June 4, 1996. You
understand and agree that you:
a. have carefully read and fully understand all of the
provisions of this Agreement;
b. waive and release Yale from any and all claims or
rights that you may have against Yale, including
without limitation, claims arising under the Age
Discrimination in Employment Act of 1967 (29 U.S.C.
ss.621, et seq.);
c. are not waving any ADEA rights or claims that may
arise after the date of this Agreement is executed;
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June 5, 1996
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d. are waiving any rights and claims in exchange for
consideration in addition to anything of value to
which you are already entitled;
e. were advised, are hereby advised in writing, and have
had the opportunity to consider the terms of this
Agreement and consult with an attorney of your choice
prior to executing this Agreement;
f. have twenty-one (21) calendar days to review this
Agreement before signing it; and
g. understand that for a period of seven (7) days
following the execution of this Agreement, you may
revoke this Agreement, and this Agreement shall not
become effective or enforceable until the revocation
period has expired.
11. In addition to the payments and benefits outlined in paragraphs 1
and 2 above, and pursuant to the Executive Severance Policy attached, Yale
agrees to provide you with the following additional benefits:
(a) Vacation pay of $16,825 equal to twenty-five (25)
days pay.
(b) A one time payment of $115,750, which include
$100,000 of additional severance payment, $15,000 in
lieu of outplacement services and $750 to cover the
total cost of your legal fees in connection with the
review of this document by your lawyer.
(c) Both the vacation pay ("a" above) and the one time
payment ("b" above) will be paid in a lump sum ten
(10) days after receipt of a signed copy of this
agreement.
(d) A one-time payment of the vested portion of your
Supplemental Employee Retirement Plan will be paid to
you within 15 days' after calculation of the amount
you are owed by Xxxxxxx Xxxxxx, Inc. This calculation
will determine the present value payment utilizing
long-term treasury rates for the discount factor.
With the payment of this amount, you will not be
eligible for any additional payments under the
Company's Supplemental Employee Retirement Plan.
(e) Vesting in the 1994 Stock Option grant, providing you
with vesting of one-third of the options, which
vesting would have otherwise occurred on June 30,
1996, covering options of 2,167.
Xx. Xxxxx X. Xxxx
June 5, 1996
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(f) Vesting in the 1995 Stock Option grant, providing you
with vesting of 5,000 options which vesting would
have otherwise occurred on June 30, 1996.
(g) You will have one (1) full year from signing this
Agreement to exercise these options.
12. In addition, you agree to enter into a Non-Competition Agreement,
as follows:
(a) Covenant Not to Compete. During a period of two years
following the execution of this Agreement, you shall
not, directly or indirectly, engage in any business
or activity in which Yale or any subsidiary of Yale
is engaged ("Competitive Business") nor be employed
by, render services of any kind to, advise or receive
compensation in any form from, nor invest or
participate in any manner or capacity in, any entity
or person which directly or indirectly engages in a
Competitive Business.
(b) Purpose of Covenant. It is agreed by both parties
hereto that the covenants contained in Subsection (a)
of Paragraph 12 above, are reasonable and necessary
to protect the confidentiality of the customer lists
and trade secrets, and other confidential information
concerning Yale, acquired by you.
(c) Specific Performance. You and Yale recognize and
agree that (i) because of the nature of the
businesses in which Yale and its subsidiaries are
engaged and because of the nature of the confidential
information which you have acquired or will acquire
with respect to the businesses of Yale and its
subsidiaries, it would be impracticable and
excessively difficult to determine the actual damages
of Yale or its subsidiaries in the event that you
breach any of such covenants. Accordingly, if you
commit any breach of such covenants or threaten to
commit any such breach, then Yale shall have the
right to have the covenants contained in Subsection
(a) of paragraph 12 above, specifically enforced by
any court having equity jurisdiction, without posting
bond or other security, it being acknowledged and
agreed by both parties hereto that any such breach or
threatened breach would cause irreparable injury to
Yale and its subsidiaries and that an injunction may
be issued against you. The rights described in this
Subsection (c) shall be in addition to, and not in
lieu of, any other rights or remedies available to
Yale under law or in equity.
Xx. Xxxxx X. Xxxx
June 5, 1996
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13. No Solicitation or Hiring. During the two-year period following the
execution of this Agreement, you shall not, directly or indirectly:
(a) Contact any employee or consultant of Yale or any of
its subsidiaries to solicit such employee or
consultant (or any entity in which such employee or
consultant has a significant equity interest) to
become an employee, partner or independent contractor
of you or any other person; or
(b) Employ or retain any present or former employee or
consultant of Yale or any of its subsidiaries (or any
entity in which such employee or consultant has a
significant equity interest) as an employee, partner
or independent contractor of you or any other person.
14. You acknowledge that in the course of your employment with Yale,
you had access and became acquainted with information concerning the business
operations of Yale. Such information would include, without limitation,
financial information, personnel information, sales data, client lists,
technical data and other information that is owned by Yale and regularly used in
Yale's business operations (collectively referred to as "confidential
information"). You agree that you will not disclose (except in the course of
your ongoing employment at Yale or as may be required by process of law or as
required by legal regulation) any confidential information, directly or
indirectly, or use it in any way. You also agree that you will not disclose
(except as may required by process of law or legal regulation), the existence or
terms of this Agreement except that you may disclose it to your spouse or
attorney or financial professional on an as needed basis and only after
obtaining that individual's agreement not to disclose the contents of this
Agreement.
15. You understand and agree that if at any time a violation of any
term of this Agreement is asserted by any party to this Agreement, that party
shall have the right to seek specific performance of that term and/or necessary
and proper relief, including but not limited to, damages from any court of
competent jurisdiction, and the prevailing party shall be entitled to recover
reasonable costs and attorneys' fees.
16. Modification by Court. If any of the covenants contained in this
Agreement is determined to be unenforceable because of the duration of such
covenants or the area covered thereby, then the court making the determination
shall have the power to reduce the duration of such covenants and/or the area
covered thereby, and such covenants, in their reduced form, shall be
enforceable.
17. Different Jurisdictions. If any of the covenants contained in this
Agreement is determined to be wholly unenforceable by the courts of any domestic
or foreign jurisdiction, then the determination shall not bar or in any way
affect Yale's right to relief in the courts of any other
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June 5, 1996
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jurisdiction with respect to any breach of such covenants in such other
jurisdiction. Such covenants, as they relate to each jurisdiction, shall be
severable into independent covenants and shall be governed by the laws of the
jurisdiction where a breach occurs.
18. This Agreement shall be binding upon the parties to this Agreement
and upon their spouses, heirs, administrators, representatives, executors,
successors and assigns. You expressly warrant that you have not transferred and
will not transfer to any person or entity any rights, causes of action or claims
released in this Agreement. No promise or agreement made after the execution of
this Agreement shall be binding unless it is in writing and signed by the
authorized representatives of the parties.
19. This Agreement shall be construed and governed under the laws of
the State of North Carolina.
Date: _____________________, 1996 /s/ XXXXX X. XXXX
---------------------------
XXXXX X. XXXX
YALE INTERNATIONAL, INC./
SPRECKELS INDUSTRIES, INC.
Date: _____________________, 1996 By: /s/ XXXX X. XXXXXXXXX
-------------------------
Xxxx X. Xxxxxxxxx
Its: President and Chief Executive
Officer
