Exhibit 10.14
RESIGNATION AGREEMENT
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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
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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
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2.1 Non-Solicitation Covenant.
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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.
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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
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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
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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
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5.1 Definition of Confidential Information
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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
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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
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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
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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
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8.1 Director and Officer Insurance
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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
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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
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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
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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
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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
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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
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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
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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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