EXHIBIT 10.30
XXXXXX'X, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of December 27,
2002, by and among Xxxxxx'x, Inc., a Wisconsin corporation ("Xxxxxx'x"), and
Xxxxxx X. Xxxxxxxx ("Executive"). Certain definitions are set forth in Section 9
of this Agreement.
Executive desires to be employed by Xxxxxx'x, and Xxxxxx'x desires to
employ Executive and to be assured of its right to have the benefit of
Executive's services on the terms and conditions hereinafter set forth.
Xxxxxx'x and Executive desire to enter into this Agreement to, among other
things, set forth the terms and conditions of Executive's employment with
Xxxxxx'x and set forth the obligation of Executive to refrain from competing
with Xxxxxx'x and its Subsidiaries (as defined below) under certain
circumstances as provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Employment
Xxxxxx'x shall employ Executive, and Executive hereby accepts employment
with Xxxxxx'x, upon the terms and conditions set forth in this Agreement for the
period beginning on the Effective Date and ending as provided in Section 4
hereof (the "Employment Period"). Executive's employment shall be "at-will" and
may be terminated by either party at any time subject to the provisions
contained herein.
2. Position and Duties
(a) During the Employment Period, Executive shall serve as the Group
Vice President - Supply Chain of Xxxxxx'x and shall have the normal
duties, responsibilities and authority associated with such position
subject to the power of the board of directors (the "Board") and
Chief Executive Officer of Xxxxxx'x to expand or limit such duties,
responsibilities and authority and to override actions of officers.
(b) During the Employment Period, Executive (i) shall report to the
Chief Executive Officer, (ii) shall devote substantially all of
Executive's business time and attention (except for permitted
vacation periods, periods of illness or other incapacity, and other
permitted absences for which senior executive employees of Xxxxxx'x
are generally eligible from time to time under Xxxxxx'x policies) to
the business and affairs of Xxxxxx'x and its Subsidiaries, (iii)
shall not engage in any other business activity without the prior
written approval of the Board, and (iv) shall perform Executive's
duties and responsibilities hereunder to the best of Executive's
abilities in a diligent, trustworthy, businesslike and efficient
manner.
(c) Executive represents and warrants that he/she is not a party to or
bound by any employment agreement, noncompete agreement or
confidentiality agreement with any person or entity other than
Xxxxxx'x [except as set forth on Schedule 2(c)].
(d) In the performance of Executive's services hereunder, Executive
shall be prohibited from using or disclosing any confidential
information or trade secrets belonging to his or her former
employer(s) that Executive may have learned through his prior
employment with them.
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3. Compensation and Benefits.
(a) Base Salary. During the Employment Period, Executive's base salary
shall be $290,000.00 per annum or such other rate as Xxxxxx'x Chief
Executive Officer may determine from time to time (as adjusted from
time to time, the "Base Salary"), which salary shall be payable by
Xxxxxx'x in regular installments in accordance with Xxxxxx'x general
payroll practices (but in any event no less often than payable in
monthly installments).
(b) Benefits. During the Employment Period, Executive shall be entitled
to four (4) weeks of paid vacation per annum and to participate in
all of Xxxxxx'x employee benefit programs for which senior executive
employees of Xxxxxx'x and its Subsidiaries are generally eligible
(but not those benefits which are the subject of certain resolutions
adopted by the Board on March 19, 2002 relating to deferred
compensation agreements for certain appointed officers and division
presidents, a severance pay plan for certain employees, assignment
of certain life insurance policies, purchase of continuing health
care coverage, and providing certain professional outplacement
services).
(c) Incentive Compensation Plans. Executive shall be eligible to
participate in such incentive and bonus compensation plans and
arrangements, if any, as the Board may from time to time establish
for Xxxxxx'x senior executives generally, in accordance with the
terms and conditions of such plans and arrangements (the amount paid
to Executive pursuant to such plans and arrangements is referred to
herein as the Executive's "Salary Bonus").
(d) Business Expenses. During the Employment Period, Xxxxxx'x shall
reimburse Executive for all reasonable expenses incurred by him/her
in the course of performing his/her duties and responsibilities
under this Agreement to the extent consistent with Xxxxxx'x policies
in effect from time to time with respect to travel, entertainment
and other business expenses for Xxxxxx'x senior executives, subject
to Xxxxxx'x reasonable requirements with respect to reporting and
documentation of such expenses.
(e) Payroll Withholding. All amounts payable to Executive as
compensation hereunder shall be subject to all required withholding
by Xxxxxx'x.
4. Term; Termination; Severance
(a) The Employment Period shall commence on the date hereof and shall
continue until the first to occur of (i) Executive's death or
Incapacity; (ii) a termination by Xxxxxx'x at any time with or
without Cause; and (iii) a termination by Executive at any time for
any reason, with or without Good Reason (such a termination without
Good Reason being referred to herein as a "Voluntary Termination");
provided, that notwithstanding the foregoing, the Employment Period
shall, if not terminated sooner in accordance with the foregoing
provisions, automatically terminate on a date three (3) years after
the Effective Date, subject to extension of that date by Xxxxxx'x in
accordance with the following subparagraph 4(a)(i) (such date,
including as and if so extended, being referred to as the
"Expiration Date"). Any termination of the Executive's employment
with Xxxxxx'x (including automatic termination upon the Expiration
Date) shall be a "Termination." The date of any Termination of
Executive's employment with Xxxxxx'x - (including automatic
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termination upon the Expiration Date, if applicable) shall be the
"Termination Date."
(i) At any time during the original or any extended term of
this Agreement, prior to the then-effective Expiration
Date, Xxxxxx'x may, at its option, extend the Expiration
Date by one (1) year. Such extension shall be effected
by written notice from Xxxxxx'x to the Executive
delivered at any time prior to the then-effective
Expiration Date. Upon such notice, the Expiration Date
shall thereupon be extended to a date one (1) year after
the then-effective Expiration Date; all other provisions
of this Agreement shall remain in force and effect in
accordance with their original terms.
(b) Upon any Termination, Executive shall be entitled to receive
Executive's Base Salary earned through Executive's Termination Date,
prorated on a daily basis, together with all accrued but unpaid
vacation time earned by Executive during the fiscal year in which
such Termination occurs. Except as set forth in Section 4(d),
Executive shall not be entitled to receive Executive's Base Salary
or any bonuses or other benefits from Xxxxxx'x for any period after
the Termination Date.
(c) In the event Executive's employment is terminated by Xxxxxx'x with
Cause, upon a Voluntary Termination without Good Reason, upon
Executive's death or Incapacity, or automatically upon the
Expiration Date, Xxxxxx'x shall have no obligation to make any
severance or other similar payment to or on behalf of Executive.
(d) In the event that Executive's employment is terminated by Xxxxxx'x
without Cause, or by Executive with Good Reason, and in either case
such termination occurs prior to the Expiration Date (or, in event
of a termination by Executive for Good Reason based on a
"Non-Extension" (as defined below), at any time within six (6)
months after the Expiration Date), then following such Termination
and so long as Executive executes and delivers to the Company within
twenty-one (21) days following the Termination Date the General
Release in the form of Annex A attached hereto, subject to any
changes that may be reasonably required to effectuate a valid
release/waiver under the Age Discrimination in Employment Act of
1967 or other state or federal laws governing the relationships of
employers and their employees, Xxxxxx'x shall (i) continue to pay
Executive his Base Salary (at the rate in effect on the Termination
Date) for a period of one (1) year following the Termination Date,
(ii) following the end of the fiscal year in which the Termination
Date occurs, pay to Executive a prorated portion of the Salary Bonus
(if any) to which Executive would otherwise have been entitled for
that fiscal year (prorated based on the number of days of that
fiscal year during which Executive was employed hereunder), such
payment to be made not later than the time that similar bonuses are
paid to other senior executives of Xxxxxx'x for that fiscal year,
and (iii) continue to provide Executive his existing group health
insurance benefits until the first anniversary of the Termination
Date, or such earlier date as Executive obtains
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other employment that provides him or her with reasonably equivalent
health insurance coverage. Each severance payment hereunder shall be
payable in accordance with Xxxxxx'x normal payroll procedures and
cycles and shall be subject to withholding of applicable taxes and
governmental charges in accordance with federal and state law. After
payment of the severance amounts described in this Section 4(d),
Xxxxxx'x shall have no obligation to make any further severance or
other payment to or on behalf of Executive except as otherwise
expressly contemplated hereby. Notwithstanding the foregoing, in the
event that Executive shall breach any of Executive's obligations
under Sections 5, 6, 7 or 8 of this Agreement, then, in addition to
any other rights that Xxxxxx'x may have under this Agreement or
otherwise, Xxxxxx'x shall be relieved from and shall have no further
obligation to pay Executive any amounts to which Executive would
otherwise be entitled pursuant to this Section 4.
(5) Confidential Information
Executive acknowledges that by reason of Executive's duties to and
association with Xxxxxx'x, Executive has had and will have access to and has and
will become informed of Confidential Information. During the Employment Period,
Executive agrees to keep in strict confidence and not, directly or indirectly,
make known, disclose, furnish, make available or use any Confidential
Information, except for use in Executive's regular authorized duties on behalf
of Xxxxxx'x. For a period of two (2) years after the end of the Employment
Period, Executive agrees to keep in strict confidence and not, directly or
indirectly, make known, disclose, furnish, make available or use any
Confidential Information in the Geographic Area. Executive acknowledges and
agrees that all documents and other property including or reflecting
Confidential Information furnished to Executive by Xxxxxx'x or any of its
shareholders, investors or affiliates or otherwise acquired or developed by
Executive or known by Executive shall at all times be the sole and exclusive
property of Xxxxxx'x. During the Employment Period and for a period of two (2)
years thereafter, Executive shall take all necessary and appropriate steps to
safeguard Confidential Information and protect it against disclosure,
misappropriation, misuse, loss and theft. Executive shall deliver to Xxxxxx'x at
the termination of the Employment Period, or at any other time Xxxxxx'x may
request, all memoranda, notes, plans, records, reports, computer disks or tapes,
printouts and software and other documents and data (and copies thereof)
relating to or containing any Confidential Information, Work Product or the
business of Xxxxxx'x or any of its shareholders, investors or affiliates which
Executive may then possess or have under Executive's control and shall erase all
embodiments of the Confidential Information from all storage devices. If
Executive is required to disclose Confidential Information pursuant to any
applicable law or court order, Executive shall provide Xxxxxx'x with prior
written notice of the requirement for disclosure that details the Confidential
Information to be disclosed and shall cooperate with Xxxxxx'x to preserve the
confidentiality of such information to the extent possible.
6. Common Law of Torts or Trade Secrets
In addition to Xxxxxx'x rights and Executive's duties as specifically set
out in this Agreement, Xxxxxx'x will retain all such rights, and Executive will
be bound by all such duties, to protect Xxxxxx'x Confidential Information, as
are or may be provided under the law, including without limitation the Wisconsin
Trade Secrets Act (Wis. Stat. 134.90). Nothing herein will diminish Xxxxxx'x
common law and statutory rights to:
(a) keep such information secret for as long as the law allows;
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(b) protect such information from disclosure to any third party,
wherever located;
(c) protect such information from use by any person, including
Executive, not authorized by Xxxxxx'x; and
(d) seek any remedies and take any measures necessary to protect
Xxxxxx'x Confidential Information.
7. Inventions and Patents
(a) Executive acknowledges that all Work Product is the exclusive
property of Xxxxxx'x. Executive hereby assigns all right, title and
interest in and to all Work Product to Xxxxxx'x. Any copyrightable
works that fall within Work Product will be deemed "works made for
hire" under Section 201(b) of the 1976 Copyright Act, and Xxxxxx'x
shall own all of the rights comprised in the copyright therein;
provided, however, that to the extent such works may not, by
operation of law, constitute "works made for hire," Executive hereby
assigns to Xxxxxx'x all right, title and interest therein.
(b) Executive shall promptly and fully disclose all Work Product to
Xxxxxx'x and shall cooperate and perform at the expense of Xxxxxx'x
all actions reasonably requested by Xxxxxx'x (whether during or
after the Employment Period) to establish, confirm and protect
Xxxxxx'x right, title and interest in such Work Product. Without
limiting the generality of the foregoing, Executive agrees to assist
Xxxxxx'x, at Xxxxxx'x expense, to secure Xxxxxx'x rights in the Work
Product in any and all countries, including the execution of all
applications and all other instruments and documents which Xxxxxx'x
shall deem necessary in order to apply for and obtain rights in such
Work Product and in order to assign and convey to Xxxxxx'x the sole
and exclusive right, title and interest in and to such Work Product.
If Xxxxxx'x is unable because of Executive's mental or physical
incapacity or for any other reason (including Executive's refusal to
do so after request therefor is made by Xxxxxx'x) to secure
Executive's signature to apply for or to pursue any application for
any United States or foreign patents or copyright registrations
covering Work Product belonging to or assigned to Xxxxxx'x pursuant
to Section 7(a) above, then Executive hereby irrevocably designates
and appoints Xxxxxx'x and each of its duly authorized officers and
agents as Executive's agent and attorney-in-fact to act for and in
Executive's behalf and stead to execute and file any such
applications and to do all other lawfully permitted acts to further
the prosecution and issuance of patents or copyright registrations
thereon with the same legal force and effect as if executed by
Executive. Executive agrees not to apply for or pursue any
application for any United States or foreign patents or copyright
registrations covering any Work Product other than pursuant to this
paragraph in circumstances where such patents or copyright
registrations are or have been or are required to be assigned to
Xxxxxx'x.
8. Non-Compete, Non-Solicitation; Non-Interference.
(a) Executive agrees that, during the Employment Period, Executive shall
not directly or indirectly own any interest in, manage, control,
participate in (whether as an officer, director, employee, partner,
agent, representative or otherwise), consult with, render services
for, or in any other manner engage in any business which is,
directly or
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indirectly, engaged in any business in which Xxxxxx'x or any of its
Subsidiaries engages or proposes to engage during the Employment
Period.
(b) Subject to Section 8(h) below, Executive agrees that, during the
Noncompete Period, Executive shall not directly or indirectly own
any interest in, or in any capacity that requires Executive to
provide, in any material respect, services, advice, and/or
consultation similar to the services, advice and/or consultation he
provided on behalf of Xxxxxx'x or any of its Subsidiaries during the
Reference Period, manage, control, participate in (whether as an
officer, director, employee, partner, agent, representative or
otherwise), consult with, render services for, or in any manner
engage in any business which is located, in whole or in part, in the
Geographic Area and which is engaged in a Competitive Business.
(c) Nothing herein shall prohibit Executive from being a passive owner
of not more than 2% of the outstanding securities of any class of a
corporation which is publicly traded, so long as Executive has no
active participation in the business of any such corporation.
(d) During the Employment Period and (subject to Section 8(h) below) the
Noncompete Period, Executive shall not directly or indirectly
(including through another Person) solicit or attempt to solicit,
induce or attempt to induce any employee, consultant, agent,
independent contractor or any other person otherwise engaged in a
services or business relationship (including, without limitation,
any customer, supplier, licensee or licensor) with Xxxxxx'x or any
of its Subsidiaries to leave the employ of or terminate or otherwise
adversely alter such person's relationship with Xxxxxx'x or any of
its Subsidiaries, or in any way interfere with the relationship
between Xxxxxx'x or any of its Subsidiaries and any such person;
provided, however, Executive shall not be prohibited from
engaging the services of any such person which is also engaged by
Xxxxxx'x or any of its Subsidiaries (other than any employee of
Xxxxxx'x or any of its Subsidiaries, or any consultant or agent
providing services substantially on a full-time basis to Xxxxxx'x or
any of its Subsidiaries relating primarily to the Food Industries)
so long as any such engagement would not otherwise constitute a
breach of this Section 8(d).
(e) Subject to Section 8(h) below, during the Noncompete Period,
Executive shall not directly or indirectly (including through
another Person) hire or otherwise engage the services of any person
who was an employee of Xxxxxx'x or any Subsidiary at any time during
the ninety (90) day period immediately preceding the Termination
Date.
(f) During the Employment Period and (subject to Section 8(h) below) the
Noncompete Period, Executive shall not directly or indirectly
(including through another Person) acquire or attempt to acquire any
business in the United States of America to which Xxxxxx'x or any of
its shareholders, investors, affiliates or Subsidiaries has made any
proposal during the Reference Period relating to the possible
acquisition of such business by Xxxxxx'x or any of its shareholders,
investors, affiliates or Subsidiaries (an "Acquisition Target"), or
take any action to induce or attempt to induce any Acquisition
Target to consummate any acquisition, investment or other similar
transaction with any
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Person other than Xxxxxx'x or any of its shareholders, investors,
affiliates or Subsidiaries).
(g) If, at the time of enforcement of any covenant or agreement
contained in Section 5, 6, 8(a), 8(b), 8(d) or 8(e) of this
Agreement, a court shall hold that the duration, scope, or area
restrictions stated herein are unreasonable under circumstances then
existing, the parties hereto agree that the maximum period, scope or
geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area and that the court
shall be allowed and directed to revise the restrictions contained
herein to cover the maximum period, scope and area permitted by law.
Because Executive's services are unique and because Executive has
access to Confidential Information and Work Product, the parties
hereto agree that monetary damages would not be an adequate remedy
for any breach of this Agreement. Therefore, in the event a breach
or threatened breach of this Agreement, Xxxxxx'x or its successors
or assigns may, in addition to other rights and remedies existing in
their favor, apply to any court of competent jurisdiction for
specific performance and/or injunctive or similar relief in order to
enforce, or prevent any violations of, the provisions hereof. In
addition, in the event of a breach or violation by Executive of any
covenant or agreement in Section 8(a), 8(b), 8(d) or 8(e), the
Noncompete Period set forth in such Section with respect to such
covenant or agreement shall be tolled until such breach or violation
has been duly cured.
(h) Notwithstanding the foregoing provisions of this Section 8, in the
event the Executive's employment is terminated by Xxxxxx'x without
Cause or by the Executive for Good Reason, in either case on or
after the Expiration Date (as a result of which the Executive is not
entitled to the post-Termination compensation provided for under
Section 4(d)), then the provisions of Sections 8(b) and 8(e) shall
not apply, and the provisions of Sections 8(d) and 8(f) shall apply
only during the Employment Period.
9. Definitions
"Active Targets" means a company or a division of a company in the Food
Industries which, during the Reference Period, either Xxxxxx'x or any of its
Subsidiaries has spent a significant amount of time investigating as a possible
investment or acquisition candidate.
"Affiliate" of a Person means any other Person or investment fund
controlling, controlled by or under common control with the Person and, in the
case of a Person which is a partnership, any partner of the Person.
"Agreement" has the meaning set forth in the Preamble.
"Base Salary" has the meaning set forth in Section 3.
"Board" has the meaning set forth in Section 2(a).
"Cause" means any one or more of the following: (i) the commission by
Executive of a felony or crime involving moral turpitude or the commission of
any other act or omission involving dishonesty or fraud with respect to
Xxxxxx'x, any of its Affiliates or any their customers or suppliers; (ii)
conduct which brings Xxxxxx'x or any of its Affiliates into public disgrace or
disrepute in any material respect; (iii) Executive's gross negligence or willful
misconduct in the performance of his duties and responsibilities as an officer
of Xxxxxx'x (or one or more of its subsidiaries or Affiliates); (iv) the willful
and continuing failure of Executive to carry out the duties and responsibilities
of his office, or to follow a specific and lawful directive of the Board or an
officer of Xxxxxx'x (or one or more
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of its subsidiaries or Affiliates) to whom he or she reports (provided such
directive is consistent with Executive's office or position); (v) Executive's
willful disclosure of material Confidential Information to or for the benefit of
a competitor of Xxxxxx'x, to the extent such information was not available
publicly; or (vi) any intentional misrepresentation by the Employee to the
Board. For purposes of the preceding definition, no act, failure to act, or
omission on the part of Executive will be deemed to have been "willful" or
"intentional" if done or omitted to be done in good faith and in the reasonable
belief that it was in or not opposed to the best interests of Xxxxxx'x. Any such
act or omission or failure to act based upon the advice of counsel for Xxxxxx'x
will be conclusively deemed to have been done or omitted to be done in good
faith and in the best interests of Xxxxxx'x.
"Common Stock" has the meaning set forth in the Preamble.
"Competitive Business" means the business of the wholesale distribution or
retail sale of food, groceries, prescription and non-prescription drug
products,general merchandise (but only if such general merchandise business is
part of a business a material component of which is the sale or distribution of
food or groceries) and other goods and services related to the wholesale or
retail sale or distribution of food or groceries.
"Confidential Information" means all information of a confidential or
proprietary nature (whether or not specifically labeled or identified as
"confidential"), in any form or medium, that is or was disclosed to, or
developed or learned by, Executive in connection with Executive's relationship
with Xxxxxx'x or any of its stockholders, investors, Subsidiaries or Affiliates
prior to the date hereof or during the Employment Period and that relates to the
actual or anticipated business, products, services, financing, research or
development of Xxxxxx'x or any of its stockholders, investors, Subsidiaries or
Affiliates or their respective suppliers, distributors or customers.
Confidential Information includes, but is not limited to, the following: (i)
internal business information (including information relating to strategic and
staffing plans and practices, business, training, marketing, promotional and
sales plans and practices, cost, rate and pricing structures, accounting and
business methods); (ii) identities of, individual requirements of, specific
contractual arrangements with, information about and confidential and
proprietary information of any of Xxxxxx'x or any of its Subsidiaries or
Affiliates' suppliers, distributors and customers; (iii) trade secrets,
compilations of data and analyses, techniques, systems, formulae, research,
records, reports, manuals, documentation, models, data and data bases relating
thereto; (iv) inventions, innovations, improvements, developments, methods,
designs, analyses, drawings, reports and all similar or related information
(whether or not patentable); and (v) Acquisition Targets and Active Targets.
Confidential Information shall not include information that (a) is or becomes
publicly known through no wrongful act or breach of obligation of
confidentiality; (b) was rightfully received by Executive from a third party
(other than Xxxxxx'x or its Subsidiaries or Affiliates or any of Xxxxxx'x or any
its Subsidiaries' or Affiliates' suppliers, distributors or customers) without a
breach of any obligation of confidentiality by such third party known to
Executive or (c) was known to Executive prior to his employment with Xxxxxx'x.
"Employment Period" has the meaning set forth in Section 1.
"Expiration Date" has the meaning set forth in Section 4(a).
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"Executive" has the meaning set forth in the Preamble.
"Food Industries" means the wholesale distribution or retail sale of food,
groceries, prescription and non-prescription drug products, general merchandise
(but only if such general merchandise business is part of a business a material
component of which is the sale or distribution of food or groceries) and other
goods and services related to the wholesale or retail sale or distribution of
food or groceries.
"Geographic Area" means the States of Illinois, Indiana, Michigan, Ohio,
Wisconsin, any other state in which the Company or any of its Subsidiaries
conduct significant business after the date hereof, and any other state in which
an Active Target is located.
"Good Reason" shall mean any of the following (in each case, effected by
Xxxxxx'x (or its Subsidiary or Affiliate by which Executive is employed),
without the Executive's voluntary concurrence), occurring within six (6) months
prior to the Executive's resignation: (a) the relocation of Xxxxxx'x principal
executive offices anywhere outside the greater Milwaukee, Wisconsin area, unless
Executive agrees to such relocation; (b) if Executive is forced or required to
relocate; (c) the requirement that Executive report to anyone other than the
Board or the Chief Executive Officer of Xxxxxx'x; (d) a substantial diminution
of or adverse change in Executive's authorities, functions, duties or level of
responsibility in Xxxxxx'x; (e) a material breach of Xxxxxx'x obligations under
this Agreement, which breach, if curable, is not cured within fifteen (15) days
after written notice thereof to Xxxxxx'x describing such breach with reasonable
specificity; or (f) a Change of Control. "Good Reason" shall also include any
failure by Xxxxxx'x to extend the Expiration Date (whether at the end of the
initial term or at the end of any extended term of this Agreement), under
Section 4(a)(i) above, prior to the then-effective Expiration Date (a
"Non-Extension").
"Incapacity" means the disability of Executive caused by any physical or
mental injury, illness or incapacity as a result of which Executive is unable to
effectively perform the essential functions of Executive's duties as determined
by the board of directors of Xxxxxx'x in good faith, for a period of ninety (90)
consecutive days or a period of 120 days during any 180-day period.
"Investors" means Xxxxxx Xxxxx & Partners III, L.P., Xxxxxx Xxxxx &
Partners Dutch III-A, L.P., Xxxxxx Xxxxx & Partners Dutch III-B, L.P., and
Xxxxxx Xxxxx & Partners III-C, L.P.
"Noncompete Period" means the one (1) year period following the
Termination Date.
"Person" means an individual or a corporation, partnership, limited
liability company, trust, unincorporated organization, association or other
entity.
"Reference Period" means the one (1) year period immediately preceding the
Termination Date.
"Xxxxxx'x" has the meaning set forth in the Preamble.
"Salary Bonus" has the meaning set forth in Section 3(c).
"Subsidiary" means, with respect to any Person, any corporation, limited
liability company, partnership, association or business entity of which (i) if a
corporation, a majority of the total voting power of shares of stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or a
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combination thereof, or (ii) if a limited liability company, partnership,
association or other business entity (other than a corporation), a majority of
partnership or other similar ownership interest thereof is at the time owned or
controlled, directly or indirectly, by any Person or one or more Subsidiaries of
that Person or a combination thereof. For purposes hereof, a Person or Persons
shall be deemed to have a majority ownership interest in a limited liability
company, partnership, association or other business entity (other than a
corporation) if such Person or Persons shall be allocated a majority of limited
liability company, partnership, association or other business entity gains or
losses or shall be or control any managing director or general partner of such
limited liability company, partnership, association or other business entity.
"Termination" has the meaning set forth in Section 4(a).
"Termination Date" has the meaning set forth in Section 4(a).
"Voluntary Termination" has the meaning set forth in Section 4(a).
"Work Product" means all inventions, innovations, improvements,
developments, methods, processes, designs, analyses, drawings, reports and all
similar or related information (whether or not patentable or reduced to practice
or comprising Confidential Information) and any copyrightable work, trade xxxx,
trade secret or other intellectual property rights (whether or not comprising
Confidential Information) and any other form of Confidential Information, any of
which relate to Xxxxxx'x or any of its Affiliates' actual or anticipated
business, research and development or existing or future products or services
and which were or are conceived, reduced to practice, contributed to, developed,
made or acquired by Executive (whether alone or jointly with others) while
employed (both before and after the date hereof) by Xxxxxx'x (or its
predecessors, successors or assigns) and its Affiliates.
10. Notices
Any notice provided for in this Agreement must be in writing and must be
either personally delivered, mailed by first class mail (postage prepaid and
return receipt requested) or sent by reputable overnight courier service
(charges prepaid) to the recipients at the address indicated below:
If to Executive: 0000 X. Xxxxxx
Xxxxxx Xxxxx, XX 00000
If to Xxxxxx'x: Xxxxxx'x, Inc.
00000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
with a copy to: Xxxxxx, Xxxxx & Partners III, L.P.
Xxx Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
and a copy to: Xxxxx Xxxxxxxxxxx Xxxxx S.C.
000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
and a copy to: Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxxxx
10
or to such other address or to the attention of such other person as the
recipient party shall have specified by prior written notice to the sending
party. Any notice under this Agreement shall be deemed to have been duly given
or made as follows: (a) if sent by registered or certified mail in the United
States, return receipt requested, upon actual receipt; (b) if sent by reputable
overnight air courier (such as DHL or Federal Express), two business days after
being so sent; (c) if sent by telecopy or facsimile transmission (and receipt is
confirmed), when transmitted at or before 5:00 p.m. local time at the location
of receipt on a business day, and if received after 5:00 p.m. or on a day other
than a business day, on the next following business day, but only if also sent
by reputable overnight air courier within one business day following
transmission; or (d) if otherwise actually personally delivered, when so
delivered.
11. General Provisions.
(a) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held
to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provision
or any other jurisdiction, but this Agreement shall be reformed,
construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
The parties specifically acknowledge and agree that each covenant
and agreement contained in Section 5, 6, 7, 8(a), 8(b), 8(d) or 8(e)
of this Agreement is separate and independent.
(b) Complete Agreement. This Agreement, together with the Stock Purchase
Agreement and the Investor Rights Agreement between the Executive
and Xxxxxx'x Acquisition Corp. and those other documents expressly
referred to herein and other documents of even date herewith embody
the complete agreement and understanding among the parties and
supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may
have related to the subject matter hereof in any way.
(c) Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of
which taken together constitute one and the same agreement.
(d) Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable
by Executive, Xxxxxx'x and their respective successors and assigns;
provided that the rights and obligations of Executive under this
Agreement are personal to Executive and shall not be assignable by
him or her.
(e) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin without giving
effect to any choice of law or conflict of law provision or rule
(whether of the State of Wisconsin or any other jurisdiction) that
would cause the application of the law of any jurisdiction other
than the State of Wisconsin.
11
(f) Remedies. Each of the parties to this Agreement shall be entitled to
enforce its rights under this Agreement specifically, to recover
damages and costs (including reasonable attorney's fees) caused by
any breach of any provision of this Agreement and to exercise all
other rights existing in its favor. The parties hereto agree and
acknowledge that money damages would not be an adequate remedy for
any breach of the provisions of this Agreement and that any party
may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or deposit) for
specific performance and/or other injunctive relief in order - to
enforce or prevent any violations of the provisions of this
Agreement.
(g) Survival. The provisions set forth in Sections 4 through 8 shall
survive and continue in full force and effect in accordance with
their terms notwithstanding any termination of the Employment
Period.
(h) Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of Xxxxxx'x
and Executive.
(i) Third-Party Beneficiaries. The parties hereto acknowledge and agree
that the Investors are third party beneficiaries of this Agreement.
This Agreement will inure to the benefit of and be enforceable by
the Investors and their respective successors and assigns.
(j) Strict Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties
hereto, and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any
provisions of this Agreement.
(k) Other Laws. Nothing in this Agreement shall be construed to limit or
negate any common or statutory law, including, without limitation,
any laws of fiduciary duties, torts or trade secrets, where it
provides the parties hereunder with broader protection than that
provided herein.
(I) WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) BETWEEN OR AMONG ANY OF THE PARTIES ARISING
OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE
EMPLOYMENT RELATIONSHIP CONTEMPLATED HEREBY.
12
IN WITNESS WHEREOF, the parties hereto have executed this Executive
Agreement on the date first written above.
XXXXXX'X ACQUISITION CORP.
By: /s/ XXXXXX X. XXXXXXX
----------------------
Its: President
XXXXXX'X, INC.
By: /s/ XXXXXX X. XXXXXXX
----------------------
Its: Chairman and CEO
EXECUTIVE:
/s/ XXXXXX X. XXXXXXXX
----------------------
Xxxxxx X. Xxxxxxxx
13
ANNEX A
FORM OF GENERAL RELEASE
I, _____________ in consideration of and subject to the terms and
conditions set out in the Executive Employment Agreement dated as of ________ ,
2002 between Xxxxxx'x, Inc. and the undersigned ("Executive") (as amended from
time to time, the "Agreement"), and other good and valuable consideration, do
hereby release and forever discharge as of the date hereof Xxxxxx'x Inc., a
Wisconsin corporation (the "Company"), its parents, subsidiaries and affiliates
and each of their respective present and former directors, officers, partners,
members, agents, representatives, employees, successors and assigns
(collectively, the "Released Parties") to the extent provided below.
1. I understand and agree that I will not receive the benefits
specified in Section 4(d) of the Agreement unless I execute this General
Release.
2. I knowingly and voluntarily release and forever discharge the
Company and the other Released Parties from any and all claims, known or
unknown, which I, my heirs, executors, administrators and assigns, may have,
which arise out of my employment with, and my separation from, Xxxxxx'x Inc. and
the other Released Parties (including, but not limited to, any allegation, claim
or violation, arising 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 (including the Older Workers Benefit Protection Act); the
Equal Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990;
the Family and Medical Leave Act of 1993; the Civil Rights of 1866, as amended;
the Worker Adjustment Retraining and Notification Act; Section 510 of the
Employee Retirement Income Security Act of 1974; any applicable Executive Order
Programs; the Fair Labor Standards Act; or their state or local counterparts; or
under any other federal, state or local civil or human rights law, or under any
other local, state, or federal law, regulation or ordinance; or under any public
policy, contract or tort, or under common law, for wrongful discharge; or
arising under any policies, practices or procedures of the Companies; or any
claim for breach of contract, infliction of emotional distress, defamation; or
any claim for costs, fees, or other expenses including attorney' fees, incurred
in these matters); provided, however, that the foregoing release and discharge
shall not apply to rights and benefits I have with respect to any equity I own
in the Company or any of its Affiliates (including rights and benefits under the
Investor Rights Agreement between me and Xxxxxx'x Acquisition Corp.), to rights
I have with respect to any severance or other payments or health benefits
pursuant to Section 13(d) of the Agreement or to any benefits vested under any
employee benefit plans.
3. I agree that this General Release does not waive or release any
rights or claims that I may have under the Age Discrimination in Employment Act
of 1967 which arise after the date I execute this General Release.
4. I agree not to file any charge or complaint on my own behalf, based
upon claims arising from, or attributable in any way to, my employment with, and
the separation of my employment with Xxxxxx'x Inc. and any other of the Released
Parties, before any federal, state or local court, or administrative agency, or
to participate in any such charge or complaint which may be made by any other
person or organization on my behalf. I also agree to withdraw and/or dismiss any
such pending charges or complaints.
5. I agree that neither this General Release, nor the furnishing of the
consideration for this General Release, shall be deemed or construed at any time
to be an admission of any improper or unlawful conduct of myself or any of the
Released Parties.
6. I agree that if I challenge the validity of this General Release I
will immediately repay to the Company any amounts paid pursuant to Section 4(d)
of the Agreement, though I acknowledge that such repayment will not vitiate any
of the rights of the Released Parties under this General Release. I also agree
that if I violate this General Release by suing the Company or any of the other
Released Parties, I will pay all costs and expenses of defending against the
suit incurred by the Released Parties, including reasonable attorneys' fees.
7. I agree that this General Release is confidential and agree not to
disclose any information regarding the terms of this General Release, except to
my immediate family and any tax, legal or other counsel I have consulted
regarding the meaning or effect hereof or as required by law, and I will
instruct each of the foregoing not to disclose the same to anyone.
8. Any non-disclosure provision in this General Release does not
prohibit or restrict me (or my attorney) from responding to any inquiry about
this General Release or its underlying facts and circumstances by the Securities
and Exchange Commission (SEC), the National Association of Securities Dealers,
Inc. (NASD), any other self-regulatory organization or governmental entity.
9. I agree to make myself available to and cooperate with the Company
in any internal investigation or administrative, regulatory, or judicial
proceeding. I understand and agree that my cooperation will include, but not be
limited to, making myself available to the Company or the Released Parties upon
reasonable notice for interviews and factual investigations; appearing at the
Company's (or Released Parties') request to give testimony without requiring
service of a subpoena or other legal process; volunteering to the Company or the
Released Parties pertinent information; and turning over all relevant documents
which are or may come into my possession. I understand that in the event the
Company or the Released Parties ask for my cooperation in accordance with this
provision, the Company or the Released Parties will reimburse me for reasonable
expenses, including travel, lodging, meals and attorneys employed by me in
connection with such availability and cooperation, upon my submission of
receipts. The Company and the Released Parties agree that any request for my
cooperation will not unreasonably interfere with my efforts to find new
employment or any new employment I may have following the termination of my
employment with the Company and further agree that, without my prior consent, I
will not be required to cooperate with the Company and the Released Parties for
more than ten (10) hours per month or an aggregate of fifty (50) hours per year.
10. Whenever possible, each provision of this General Release shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this General Release is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this General Release shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
BY SIGNING THIS GENERAL RELEASE, I STATE THAT:
1. I HAVE READ IT;
2. I UNDERSTAND IT AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS,
INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF 1967, AS AMENDED;
THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH DISABILITIES ACT OF 1990; AND THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED;
3. I CONSENT TO EVERYTHING IN IT;
4. I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT
AND I HAVE DONE SO;
5. I HAVE BEEN GIVEN WHAT I CONSIDER A SUFFICIENT PERIOD OF TIME TO
REVIEW AND CONSIDER THIS GENERAL RELEASE BEFORE SIGNING IT;
6. I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY; AND
7. I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE
AMENDED, WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED
BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME.
DATE: Signed:
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