EXHIBIT 10.28
SEVERANCE AGREEMENT AND RELEASE OF CLAIMS
This Severance Agreement and Release of Claims ("Release") is entered
into between Xxxxxxx Enterprises, Inc., its officers, agents, directors,
employees, successors, subsidiaries, insurers, parents and/or affiliated
companies, and assigns (the "Company") and XXXXX X. XXXXX (the "Employee").
WHEREAS, the Employee and the Company had entered into an Employment
Contract dated August 22, 1997, and it is the parties intent that all the terms
of such Agreement shall be superceded on the Effective Date of this Release and
the terms of this Release shall govern the rights and obligations of the parties
after the Employee's termination of employment except as otherwise set forth in
this Release; and
WHEREAS, Employee retired from the position of Non-executive Chairman
of the Board of the Company on December 30, 2001 pursuant to a retirement
transition arrangement authorized by the Company's Board of Directors on January
15, 2001 (attached as Exhibit 1) in recognition of his substantial contributions
to the Company, his change in position from Chairman and CEO to Non-executive
Chairman, and to provide him with both retirement and pension-like benefits.
NOW, THEREFORE, in consideration of the mutual promises and other
consideration described herein, the Company and the Employee agree as follows.
1. Termination of Employment. The Employee hereby tenders, and
the Company hereby accepts, the Employee's termination ("Termination"), as a
result of his retirement, as an officer and employee of the Company effective
December 30, 2001 (the "Termination Date" or "Termination of Employment"). The
parties agree that, upon the Termination Date of this Release, the Employee
shall have no further right or duty to render services to or on behalf of the
Company except as provided for under Section 2(b) hereof. The "Effective Date"
of this Release will be the eighth day following receipt by the Company of an
original of this Release executed by the Employee, provided that there has been
no revocation as specified in Section 4(d) by the Employee.
2. Severance. The Company promises that Employee will receive the
amounts or benefits set forth in this Section 2, subject to the terms of this
Release, and in lieu of all other severance benefits:
(a) Retirement Transition Payment and Pension-like Benefits. The
benefits described in Exhibit 1 constitute Employee's
retirement arrangement from the Company and have been paid
or conferred by the Company as of the date of this Release.
(b) Continuation of Benefits.
(i) For the period of three (3) years from the Termination
Date, the Employee shall be treated as if he had
continued to be an employee for all purposes under the
Company's Medical Plan, Executive Medical Reimbursement
Plan and Dental Plan. Following this period, the
Employee shall be entitled to receive continuation
coverage under Part Six of Title I of ERISA ("COBRA
Benefits") treating the end of this period as a
termination of the Employee's employment.
(ii) The Company shall maintain in force, at its own
expense, for the remainder of the Employee's life, the
vested life insurance in effect under the Company's
Executive Split Dollar Life Insurance Plan as of the
Termination Date.
(c) Relocation Benefit; Office.
(i) If, within three (3) years after the Employee's
Termination Date, the Employee gives the Company
written notice that he desires to relocate within the
continental United States, the Company will reimburse
the Employee for any reasonable relocation expenses (in
accordance with the Company's general relocation policy
for executives as then in effect) in connection with
such relocation.
(ii) For the lesser of three (3) years following Employee's
Termination Date or the date Employee commences
employment which provides an office for Employee, the
Company shall provide Employee with first-class office
space of approximately 800 square feet in the Fort
Xxxxx or Fayetteville area. The Company may elect to
extend its responsibility for paying Employee's office
rental beyond the initial three (3) year period on a
year-to-year basis at its sole discretion. For three
(3) years from Employee's Termination Date, Company
agrees to pay Employee an annual amount of $40,000 for
his administrative/secretarial support. The Employee
shall be solely responsible for the payment of any
applicable taxes.
(d) Executive Retirement Plan. For the year of the Employee's
Termination of Employment, the Company will make the
contribution to the Executive Retirement Plan on behalf of
the Employee that it would have made if the Employee had not
had a Termination of Employment, but in no event less than
the
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percentage contribution it made for the Employee in the
immediately preceding year (and increased to take account of
the additional year of service), in each case taking account
of the Employee's annualized rate of "Compensation" (as
defined in the Executive Retirement Plan) and the percentage
of such Compensation that the Employee is contributing to
the Executive Retirement Plan, as of the date of Termination
of Employment, and the Company's matching contribution rate
for such year (or, if greater, the preceding year). The
portion of the Company's matching contribution which is
based on the preceding year's contribution percentage shall
be contributed to the Executive Retirement Plan on behalf of
the Employee immediately upon the Employee's Termination
Date and any additional contribution required shall be paid
as soon as the amount is determined.
(e) Executive Deferred Compensation Plan. For the year of the
Employee's Termination of Employment, the Company will make
the contribution to its Executive Deferred Compensation Plan
(the "EDC Plan") that it would have made if the Employee had
not had a Termination of Employment determined based on the
Employee's deferral for such year. At Employee's election,
the Company contribution shall be paid to the Employee
immediately upon his Termination of Employment.
(f) Plan Amendments. The Company shall adopt such amendments to
its employee benefit plans and insurance policies as are
necessary to effectuate the provisions of this Agreement. If
and to the extent any benefits under this Paragraph 2 are
not paid or payable or otherwise provided to the Employee or
his dependents or beneficiaries under any such plan or
policy (whether due to the terms of the plan or policy, the
termination thereof, applicable law, or otherwise), then the
Company itself shall pay or provide for such benefits.
(g) Extent of Benefit Eligibility. Employee will cease to be
eligible to participate under any stock option, bonus,
incentive compensation, commission, medical, dental, life
insurance, retirement, and any other compensation or benefit
plans of the Company or any affiliate following the
Termination Date except to the extent described above and
except where the governing documents of those plans provide
otherwise. Any payment from these plans will be in
accordance with the election(s) previously made by Employee.
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In the event of any material breach by the Employee of the terms of
this Release, the Employee's right to receive any further payments or benefits
under the Release shall immediately end, and the Employee will forfeit and be
required to return to the Company any payments or benefits received. Any such
breach shall not relieve the Employee of any obligations under the Release, and
the cessation of any benefits on account of a breach shall not limit the
Company's right to any other relief it may have as a matter of law or equity.
Notwithstanding the foregoing, any challenge as to the validity of the ADEA
release contained in subsection 4(d) of this Release shall not be considered a
material breach, to the extent such treatment is mandated by applicable law.
3. Consideration of Release. Employee acknowledges that, before
signing this Release, he was given at least 21 days in which to consider this
Release. Employee waives any right he might have to additional time within which
to consider this Release. Employee further acknowledges that: (1) he took
advantage of the time he was given to consider this Release before signing it;
(2) he carefully read this Release; (3) he fully understand it; (4) he is
entering into it voluntarily; (5) he is receiving valuable consideration in
exchange for his execution of this Release that he would not otherwise be
entitled to receive; and (6) the Company, in writing, encouraged him to discuss
this Release with his attorney (at his own expense) before signing it, and that
he did so to the extent he deemed appropriate.
4. General Release
(a) In General: Except for obligations established in this
Release, Employee irrevocably and unconditionally releases
all the Claims described in this Section 4 that he may now
have against the Released Parties listed in Section 4(b).
(b) Released Parties: The Released Parties are the Company, all
current and former parents, subsidiaries, related companies,
partnerships, or joint ventures, and, with respect to each
of them, their predecessors and successors; and, with
respect to each such entity, all of its past, present, and
future employees, officers, directors, stockholders, owners,
representatives, assigns, attorneys, agents, insurers,
employee benefit programs (and the trustees, administrators,
fiduciaries, and insurers of such programs), and any other
persons acting by, through, under or in concert with any of
the persons or entities listed in this subsection, and their
successors.
(c) Claims Released: The Claims Employee is releasing under this
Section 4 include all known and unknown claims, promises,
causes of action, or similar rights of any type that
Employee presently may have ("Claims") with respect to any
Released Party listed in Section 4(b). Employee understands
that the Claims Employee is
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releasing might arise under many different foreign,
domestic, national, state, or local laws (including
statutes, regulations, other administrative guidance, and
common law doctrines), as set forth in this Section 4.
(d) Employee acknowledges that a portion of the amounts or
benefits under this Release is being paid to induce him to
release any claims that he may have under the Age
Discrimination in Employment Act ("ADEA"). Employee
acknowledges that he has adequate and legally sufficient
time to review and seek legal guidance concerning this
Release. Specifically, Employee acknowledges that this
Release was provided to him on January 11, 2002, and that he
has until January 31, 2002 to consider this Release. If
Employee chooses to execute this Release prior to January
31, 2002, it is solely his choice. Employee may revoke the
waiver of the ADEA claims in this Section of this Release
(which Employee acknowledges constitutes an entirely
separate release from the balance of this Release) within
seven (7) days after signing of this Release, in which case
Employee will not be paid that portion of the amounts or
benefits that are being paid to Employee for his release of
ADEA claims. Employee agrees that any revocation will be in
writing and accompanied by all sums received pursuant to
this Release and received by the Executive Vice President,
General Counsel by the end of the seven (7) day period.
Employee has been advised to consult with an attorney or
advisor concerning this Release. Employee understands the
rights that have been waived by this Release, including
rights under the Age Discrimination in Employment Act of
1967, 29 U.S.C.ss.62 1, et seq., as amended. Employee
further represents and warrants that he -- --- freely
negotiated the terms of this Release, and enters into it and
executes it voluntarily. He understands that this is a
voluntary waiver of any claims under the laws and orders
stated below, that relate in any way to his employment with,
complaints about, compensation due, or separation from the
Company.
Anti-discrimination statutes, such as the Age Discrimination
in Employment Act and Executive Order 11141, which prohibit
age discrimination in employment; Title VII of the Civil
Rights Act of 1964, Sections 1981 and 1983 of the Civil
Rights Act of 1866, and Executive Order 11246, which
prohibit discrimination based on race, color, national
origin, religion, or sex; the Equal Pay Act, which prohibits
paying men and women unequal pay for equal work; the
Americans With Disabilities Act and Sections 503 and 504 of
the Rehabilitation Act of 1973, which prohibit
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discrimination based on disability; and any other federal,
state, or local laws prohibiting employment discrimination,
such as the State of Arkansas.
Federal employment statutes, such as the WARN Act, which
requires that advance notice be given of certain work force
reductions; the Employee Retirement Income Security Act of
1974, which, among other things, protects employee benefits;
the Fair Labor Standards Act of 1938, which regulates wage
and hour matters; the Family and Medical Leave Act of 1993,
which requires employers to provide leaves of absence under
certain circumstances; and any other federal laws relating
to employment, such as veterans' reemployment rights laws.
Other laws, such as any federal, state, or local laws
providing workers' compensation benefits, mandating leaves
of absence, restricting an employer's right to terminate
employees, or otherwise regulating employment; any federal,
state, or local law enforcing express or implied employment
contracts or requiring an employer to deal with employees
fairly or in good faith; any other federal, state, or local
laws providing recourse for alleged wrongful discharge,
tort, physical or personal injury, emotional distress,
fraud, negligent misrepresentation, defamation, and similar
or related claims, and any other law, such as the State of
Arkansas.
Examples of released Claims include, but are not limited to
the following (except to the extent explicitly preserved by
Section 1 or 2(a) of this Release): (i) Claims that in any
way relate to Employee's employment with the Company, or the
termination of that employment, such as Claims for
compensation, bonuses, commissions, lost wages, or unused
accrued vacation or sick pay except as otherwise provided in
paragraph 2(a); (ii) Claims that in any way relate to the
design or administration of any employee benefit program;
(iii) Claims that Employee has irrevocable or vested rights
to severance or similar benefits or to post-employment
health or group insurance benefits; (iv) any Claims to
attorneys' fees or other indemnities (such as under the
Civil Rights Attorneys' Fees Act), with respect to Claims
Employee is releasing, or any Claims that Employee has under
his Employment Contract.
(e) Employee represents and covenants that Employee, his heirs,
representatives, executors, administrators, successors, and
assigns have not and will not file any claims, charges, or
complaints
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against the Company, with any Federal, State, or local
agency or court arising out of his employment and/or
separation from the Company. Employee further represents
that if any such agency or court ever assumes jurisdiction
of or otherwise pursues any such lawsuit, claim, charge, or
complaint and/or purports to bring any legal proceeding, in
whole or in part, on behalf of Employee, or Employee's
heirs, representatives, executors, administrators,
successors, and/or assigns, behalf against the Company,
Employee, or Employee's heirs, representatives, executors,
administrators, successors, and/or assigns, promptly, in
writing, will request the agency or court to withdraw from
and/or dismiss the lawsuit, claim, charge or complaint with
prejudice and will take all available legal action to be
removed from any such legal proceeding brought, in whole or
in part, on behalf of Employee. This subsection shall not
apply to challenges to the ADEA release in subsection 4(d)
of this Release, to the extent, if any, prohibited by
applicable law.
(f) Employee understands and agrees that his employment with the
Company has terminated effective December 30, 2001, and he
will not apply for or otherwise seek re-employment with the
Company, or its successors, at any time. The Company shall
have the absolute right, without incurring liability of any
kind, to refuse Employee's consideration for employment and
Employee agrees that he shall not authorize any person or
agency to pursue any claim for such refusal of employment.
The Employee acknowledges that he has received no promise or
assurance that his employment will resume at any point in
the future or that he will ever be rehired by the Company or
its affiliates, parent, or subsidiaries.
(g) As further consideration for the covenants set forth herein,
Employee hereby agrees to cooperate fully with the Company's
Legal Department and/or any lawyer, law firm, or consultant
that the Company designates with respect to any litigation,
deposition, hearing, arbitration, or other proceeding
(including, but not limited to, support of the Company's
position in defending any employment-related lawsuits or
claims concerning which Employee has knowledge or audits,
investigations, lawsuits, complaints or proceedings by
government entities of state or federal law compliance)
where the Company's legal or financial interests are at
issue. Employee further covenants that he will contact the
Company's Legal Department in the event that there is
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any subpoena, notice or other instruction directing the
Employee to appear in any legal proceeding involving the
Company.
(h) To the maximum extent permitted by law, the Company shall
indemnify Employee against all expenses (including
reasonable attorneys' fees), judgments, fines and amounts
paid in settlement actually incurred by himself in
connection with any claim, action, suit or proceeding,
whether civil, criminal, administrative or investigative, to
which Employee becomes a party or in which Employee becomes
otherwise involved by reason of the fact that Employee was a
director, officer, employee or agent of the Company or of
any subsidiary or affiliate of the Company. In addition, the
Company shall continue to include Employee among those
individuals covered by the Company's director and officer
liability insurance, as long as such insurance is available
and the Company elects to maintain such insurance; provided,
however, that the unavailability of such insurance coverage
or the Company's discontinuance of such insurance shall in
no way limit, reduce or otherwise affect Employee's rights
to indemnification by the Company under the first sentence
of this subsection. This subsection shall remain in full
force and effect indefinitely with respect to any claims
based upon events occurring on or prior to December 30,
2001.
(i) Employee also promises neither to contest the validity of
this Release, nor xxx the Company concerning any claim he
may have relating to his employment with the Company or the
termination of that employment. This subsection shall not
apply to challenges to the ADEA release in subsection 4(d)
of this Release, to the extent, if any, prohibited by
applicable law.
5. Transfer of Duties. During the period preceding the
Termination Date and for one (1) year thereafter, the Employee will act at all
times with complete loyalty and good faith in promoting the best interests of
the Company. To this end, the Employee will: (a) fully inform the Company and
the Employee's successor (if any) of all material activities performed by the
Employee and of progress on assigned duties; and (b) transfer or otherwise make
available to the Company and the Employee's successor (if any), to the extent
reasonably possible, the Employee's knowledge and experience regarding his
activities on behalf of the Company. Employee will also promote the goodwill,
reputation, and ongoing business of the Company, and take all steps necessary to
maintain, and in no way act to hinder, the foregoing interests.
6. Company Property: By Employee's last day of work, Employee
will return to the Company all files, memoranda, documents, records, copies of
the
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foregoing, credit cards, keys, and any other property of the Company or its
affiliates in his possession, provided, however, that Employee and his
Administrative Assistant may retain their existing office furniture and
equipment. Company agrees to pay the reasonable and necessary expenses of moving
this furniture and equipment to its first non-Company location.
7. Ownership of Claims: Employee has not assigned or transferred
any Claim he is purporting to release, nor has he attempted to do so.
8. Other Representations: In addition to Employee's other
representations in this Release, Employee has made the following representations
to the Company, on which he acknowledges it also has relied in entering into
this Release with Employee: (a) Employee has not suffered any discrimination on
account of his age, sex, race, national origin, marital status, sexual
orientation, or any other protected status, and none of these ever has been an
adverse factor used against Employee by any Released Party; (b) Employee has not
suffered any job-related wrongs or injuries for which he might still be entitled
to compensation or relief, such as an injury for which Employee might receive a
workers' compensation award in the future; (c) Employee has no knowledge of any
wrongdoing by the Company that would subject the Company to any harm, civil or
criminal; and (d) Employee has provided no information, oral or in writing, to
anyone - individual, corporation or any other organization, private, public or
governmental - that involves any wrongdoing, civil or criminal, by the Company.
9. False Claims Representations and Promises: Employee has
disclosed to the Company any information he has concerning any conduct involving
the Company or any affiliate that he has any reason to believe may be unlawful
or that involves any false claims to the United States. Employee promises to
cooperate fully in any investigation the Company or any affiliate undertakes
into matters occurring during Employee's employment with the Company or any
affiliate. Employee understands that nothing in this Release prevents him from
cooperating with any U.S. government investigation. In addition, to the fullest
extent permitted by law, Employee hereby irrevocably assign to the U.S.
government any right he might have to any proceeds or awards in connection with
any false claims proceedings against the Company or any affiliate.
10. Cooperation Required: Employee agrees that, as requested by
the Company, he will fully cooperate with the Company or any affiliate in
effecting a smooth transition of his responsibilities to others.
11. Non-Solicitation. Employee agrees to the following
prohibitions on solicitation of the Company's employees, customers, and business
interests, to wit:
(a) Employee shall not at any time during the period of his
employment with the Company, or during the one (1) year
period immediately following the effective date of his
termination (the
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"Non-Solicitation Period"), without the prior written
consent of the Company, on behalf of himself or any other
person or entity, solicit for employment or employ any of
the current officers or employees of the Company; provided,
however, that nothing contained herein shall prohibit the
Employee from hiring employees of the Company when such
employment results from general solicitations for
employment.
(b) Employee shall not at any time during the period of his
employment with the Company, or during the Non-Solicitation
Period, without the prior written consent of the Company,
solicit for his own benefit, or for the benefit of any
company or persons by whom he is employed, or for whom he
may be acting, any of the current customers of the Company,
nor shall he divulge to any other person any information or
fact relating to the management, business (including
prospective business), finances, or customers of the Company
or the terms of any contracts of the Company which is not
freely available to the public.
(c) Employee covenants and agrees that a material breach of the
foregoing subsections would immediately and irreparably harm
the Company and that a remedy at law would be inadequate to
compensate the Company for its losses by reason of such
breach and therefore that the Company shall, in addition to
any rights and remedies available under this Release, at law
or otherwise, be entitled to an injunction to be issued by
any court of competent jurisdiction enjoining and
restraining the Employee from committing any violation of
the foregoing subsections.
12. Non-Disclosure, Return of Proprietary Information, and
Inventions and Patents. The Company and the Employee agree that during his
employment with the Company, the Employee has received and become acquainted
with confidential, proprietary, and trade secret information of the Company
including, but not limited to, information regarding Company business programs,
plans, and strategies; finances; customers and prospective customers; suppliers
and vendors; marketing plans and results; personnel matters regarding Company
employees, officers, directors, and owners; manners of operation and services
provided; negotiating positions and strategies; legal arguments, theories,
claims, and defenses; pending, threatened, or potential legal actions, claims,
investigations, and audits; or information which could lead to the same; and
similar sensitive information regarding the operation and business of the
Company. The Employee acknowledges that such information has been developed or
acquired by the Company through the expenditure of substantial time, effort, and
money, that such information provides the Company with strategic and business
advantages over others who do not know or use such information, and that the
Company has implemented
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specific policies and practices to keep such information secret. Accordingly,
the Employee acknowledges and agrees to abide by the prohibitions on use and
disclosure of such information set forth in his August 22, 1997 Employment
Contract, to wit:
(a) Proprietary Information. Employee shall not during the term
of employment or at any time thereafter (irrespective of the
circumstances under which Employee's employment terminates), directly
or indirectly use for his own purpose or for the benefit of any person
or entity other than Company, nor otherwise disclose, any proprietary
information, as defined below, to any individual or entity, unless
such disclosure has been authorized in writing by the Company or is
otherwise required by law. For purposes of this Agreement, the term
"proprietary information" shall include, but is not limited to: (a)
the name or address of any client or affiliate of Company or any
information concerning the transactions or relations of any client or
affiliate of Company with Company or any of its shareholders; (b) any
information concerning any product, service, methodology, analysis,
presentation, technology or procedure employed by Company but not
generally known to its clients or competitors, or under development by
or being tested by Company but not at the time offered generally to
clients; (c) any information relating to Company's computer software,
computer systems, pricing or marketing methods, capital structure,
operating results, borrowing arrangements or business plans; (d) any
information which is generally regarded as confidential or proprietary
in any line of business engaged in by Company; (e) any information
contained in any of Company's written or oral policies and procedures
or employee manuals; (f) any information belonging to clients or
affiliates of Company which Company has agreed to hold in confidence;
(g) any inventions, innovations or improvements covered by subsection
(c) below; (h) any other information which Company has reasonably
determined to be confidential or proprietary; and (i) all written,
graphic, electronic and other material relating to any of the
foregoing. Information that is not novel or copyrighted or patented
may nonetheless be proprietary information. Proprietary information,
however, shall not include any information that is or becomes
generally known to the industries in which Company competes through
sources independent of Company or Employee or through authorized
publication by Company to persons other than Company's employees.
(b) Confidentiality and Surrender of Records. Employee shall not
during the term of employment or at any time thereafter (irrespective
of the circumstances under which Employee's employment terminates),
except as required by law, directly or indirectly give or disclose any
"confidential records" (as hereinafter defined) to, or permit any
inspection or copying of confidential records by, any individual or
entity other than in the ordinary course and scope of such
individual's or entity's employment or retention by Company, nor shall
he use or retain any of the same following termination of his
employment. Employee shall promptly return to Company all
"confidential records" upon the
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termination of Employee's employment with Company. For purposes
hereof, "confidential records" means all correspondence, memoranda,
files, analyses, studies, reports, notes, documents, manuals, books,
lists, financial, operating or marketing records, computer software,
magnetic tape, or electronic or other media or equipment of any kind
which may be in Employee's possession or under his control or
accessible to him which contain any proprietary information as defined
in subsection (a) above. All confidential records shall be and remain
the sole property of Company during the term of employment and
thereafter.
(c) Inventions, Patents, and Copyrights. All inventions,
innovations or improvements in Company's method of conducting its
business (including policies, procedures, products, improvements,
software, ideas and discoveries, whether or not patentable or
copyrightable) conceived or made by Employee, either alone or jointly
with others, during the term of employment belong to Company. Employee
will promptly disclose in writing such inventions, innovations or
improvements to Company and perform all actions reasonably requested
by Company to establish and confirm such ownership by Company,
including, but not limited to, cooperating with and assisting Company
in obtaining patents and copyrights for Company in the United States
and in foreign countries. Any patent or copyright application filed by
Employee within a year after termination of his employment hereunder
shall be presumed to relate to an invention or work of authorship
which was made during the term of employment unless Employee can
provide conclusive evidence to the contrary.
13. Public Statements. Employee also agrees that he will make no
disparaging remarks to any third parties concerning the Company, its employees,
agents, representatives, subsidiaries, parents, affiliates, and shareholders.
Employee further agrees that he will not disparage the Company's business
capabilities, products, plans, or management to any customer, potential
customer, vendor, supplier, contractor or subcontractor of the Company so as to
affect adversely the good will or business of the Company.
14. Consequences of Violating Promises:
(a) General Consequences: In addition to any other remedies or
relief that may be available, Employee agrees to pay the
reasonable attorneys' fees as a result of his breaching a
promise he made in this Release (such as by suing a Released
Party over a released Claim) or if any representation he
made in this Release was false when made. Employee further
agrees that the Company would be irreparably harmed by any
actual or threatened violation of Sections 11 and 12 that
involves Release-related disclosures or disclosure or use of
confidential information or trade secrets or solicitation of
employees, customers, or suppliers, and that the
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Company will be entitled to an injunction prohibiting
Employee from committing any such violation.
(b) Challenges to Validity: Should Employee attempt to challenge
the enforceability of this Release, Employee agrees first:
(1) to deliver a certified check to the Company for all
amounts he has received because he signed this Release, plus
10 percent interest per annum; (2) to direct in writing that
all future benefits or payments Employee is to receive
because he signed this Release be suspended; and (3) to
invite the Company to cancel this Release. If the Company
accepts Employee's offer, this Release will be canceled. If
it rejects Employee's offer, the Company will notify
Employee and deposit the amount Employee repaid, plus all
suspended future benefits and payments, in an
interest-bearing account pending a determination of the
enforceability of this Release. If the Release is determined
to be enforceable, the Company is to pay Employee the amount
in the account, less any amounts Employee owes the Company.
If the Release is determined to be unenforceable, the amount
credited to the account shall be paid to the entities that
paid the consideration for this Release in proportion to
their payments, and the suspension of future benefits or
payments shall become permanent.
(c) ADEA Claims: This section shall not apply to a challenge to
the ADEA release in subsection 4(b) of this Release to the
extent, if any, prohibited by applicable law.
15. No Admission of Liability. This Release shall not in any way
be construed as an admission by the Company that it has acted wrongfully with
respect to Employee or any other person, entity or agency, or that Employee has
any rights whatsoever against the Company. The Company further specifically
disclaims and denies any liability to or wrongful acts against Employee or any
other person, entity or agency, on the part of itself, its employees and its
agents.
16. Successors and Assigns. This Release shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
successors, legal representatives, and assigns. However, neither this Release
nor any right or interest hereunder shall be assignable by Employee, his
beneficiaries, or legal representatives, except as provided by law or pursuant
to referenced benefit plan documents.
17. Severability and Reformation. The provisions of this Release
are severable. If any provision of this Release shall be determined to be
invalid, illegal, or unenforceable, in whole or in part, neither the validity of
the remaining parts of such provision nor the validity of any other provision of
this Release shall in any way be affected thereby. In lieu of such invalid,
illegal, or unenforceable provision, there shall be
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added automatically as part of this Release a provision as similar in terms to
such invalid, illegal, or unenforceable provision as may be possible and be
valid, legal, and enforceable. Each party also agrees that, without receiving
further consideration, it will sign and deliver such documents and do anything
else necessary in the future to make the provisions of this Release effective.
18. Taxes. Employee understands that he will be responsible for
paying all taxes that may become due on any of the severance benefits provided
herein. If he fails to pay these payments, or any taxing authority alleges that
he has failed to do so or that the Company is responsible for the payment of
these taxes, for any reason, Employee agrees to be fully responsible for any
judgments or orders, fines and penalties, and that he will indemnify the Company
including, but not limited to, the satisfaction of judgments, orders, fines or
penalties in the payment of the Company's defense by counsel of its choice in
such proceedings. The taxability of the amounts contained herein shall not
affect the validity of this Release.
19. Governing Law. This Release shall be governed by the law of
the State of Arkansas.
20. Arbitration of Disputes:
(a) In the event the Company believes that Employee has breached
this Release in any way, prior to seeking any remedy,
including arbitration, the Company's General Counsel will
first contact Employee and inform him of the claimed breach.
Employee will then have seven (7) days within which to
address the Company's claim before it may take any action
under this Release.
(b) Arbitrable Disputes: The Company and Employee agree to
resolve any claims they may have with each other (except, if
either Employee or the Company so elects, any dispute for
which injunctive relief is a principal remedy) through final
and binding arbitration in accordance with this section.
Employee also agrees to resolve in accordance with this
section any claim between him and any other Released Party
who offers or agrees to arbitrate the claim in this manner.
This arbitration requirement applies to, among other things,
disputes about the validity, interpretation, or effect of
this Release or alleged violations of it, claims of
discrimination under federal or state law, or other
statutory violation claims.
(c) The Arbitration: Except as otherwise provided in any other
enforceable arbitration agreement between Employee and the
Company (Another Arbitration Agreement), which the Company
and Employee hereby reaffirm if one exists, the arbitration
shall be
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in accordance with the then-current arbitration rules and
procedures for employment disputes governing arbitrations
administered by the Judicial Arbitration and Mediation
Service (JAMS), except as provided in this section.
Arbitration shall take place before a panel of three
arbitrators experienced in employment law licensed to
practice in the state of Arkansas selected in accordance
with subsection (c). The arbitrators may not modify or
change this Release in any way. Employee, the Company, and
any Released Party who agrees to arbitrate an Arbitrable
Dispute under this section agree to submit to personal
jurisdiction in the state listed in the first Section of
this Release for such arbitration and in any jurisdiction
necessary for the enforcement of any arbitration award.
(d) Selection of the Arbitrators: The arbitrators shall be
selected as follows: JAMS shall give each party a list of 11
arbitrators drawn from its panel of employment dispute
arbitrators from the state of Arkansas. Each party may
strike all names on the list it deems unacceptable. If only
three common names remain on the lists of both parties,
those individuals shall be designated as the Arbitrators. If
more than three common names remain on the lists of both
parties, the parties shall strike names alternately from the
list of common names until only three remain. The party who
did not initiate the claim shall strike first. If no common
name exists on the lists of both parties, JAMS shall furnish
an additional list and the process shall be repeated. If the
arbitrators have been selected after two lists have been
distributed, then the parties shall strike alternately from
a third list, with the party initiating the claim striking
first, until only three names remain. Those persons shall be
designated as the arbitrators. Striking decisions must be
made and communicated to the other party and JAMS within 10
calendar days after the date of the transmittal
communication relaying the arbitrators remaining for
selection. In the event a party does not make a timely
strike, the other party may select the arbitrators from the
names remaining.
(e) Exclusive Remedy: Arbitration in this manner shall be the
exclusive remedy for any claim that must be arbitrated
pursuant to this section. Should Employee or the Company
attempt to resolve such a claim by any method other than
arbitration pursuant to this section, the responding party
will be entitled to recover from the initiating party all
damages, expenses, and attorneys' fees incurred as a result
of that breach.
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(f) Fees and Expenses: Each party shall pay the fees of his or
her attorneys, the expenses of his or his witnesses, and any
other expenses that party incurs in connection with the
arbitration, but all other costs of the arbitration,
including the fees of the arbitrator, the cost of any record
or transcript of the arbitration, administrative fees, and
other fees and costs shall be paid in equal shares by the
Employee and Company. Except as provided in Another
Arbitration Agreement, the party losing the arbitration
shall reimburse the party who prevailed for all attorneys'
fees and expenses the prevailing party paid pursuant to the
preceding sentence.
21. Entire Release. This Release constitutes the entire Release
between the parties with respect to the subject matter hereof and supersedes all
prior agreements, oral and written, between the parties hereto to the extent
such agreements are inconsistent herewith, including but not limited to, any
prior agreements with respect to severance benefits. This Release may be
modified or amended only by an instrument in writing signed by both parties
hereof.
================================================================================
READ THIS RELEASE, AND CAREFULLY CONSIDER ALL OF ITS PROVISIONS BEFORE SIGNING
IT: IT INCLUDES A RELEASE OF KNOWN AND UNKNOWN CLAIMS, AND ITS
ARBITRATION-OF-CLAIMS REQUIREMENT WAIVES EMPLOYEE'S RIGHT TO A JURY TRIAL. IF
EMPLOYEE WISHES, HE SHOULD TAKE ADVANTAGE OF THE FULL CONSIDERATION PERIOD
AFFORDED BY SECTION 3 AND YOU SHOULD CONSULT AN ATTORNEY.
================================================================================
Employee represents that as of December 30, 2001, he has not
filed any lawsuits, charges, complaints, or claims relating to his employment or
any other matters that involve the Company. Employee agrees to cause the
withdrawal or dismissal with prejudice of all of these matters unless otherwise
stated by the Company, to the extent still pending within five (5) days after
this Release becomes irrevocable, and until such withdrawal or dismissal is
accepted or ordered, no amounts otherwise due Employee under this Release shall
become payable.
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IN WITNESS WHEREOF, the Company and the Employee have executed this
Release as of the day and year indicated below.
Xxxxxxx Enterprises, Inc.
Dated: By:
--------------------------
Xxxxxxx X. Xxxxx
Chairman of the Board,
President and Chief Executive Officer
Employee
Dated: --------------------------------------
-------------------------- Xxxxx X. Xxxxx
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