EXHIBIT 10.21
RELEASE AND SETTLEMENT AGREEMENT
THIS RELEASE AND SETTLEMENT AGREEMENT ("Agreement") is made and
entered into this 18th day of July, 1997 by and between Xxxxxx-Xxxxxx, Inc.
(hereinafter "the Company") and Xxxxx X. Xxxxxxxx (hereinafter "Xx.
Xxxxxxxx").
WITNESSETH:
WHEREAS, the Company and Xx. Xxxxxxxx entered into a certain
Employment Agreement dated as of May 17, 1996 ("Employment Agreement"); and
WHEREAS, the Company and Xx. Xxxxxxxx entered into a certain Change
In Control Agreement dated as of June 10, 1997 ("Change In Control
Agreement"); and
WHEREAS, Xx. Xxxxxxxx has tendered his resignation as President of
the Company; and
WHEREAS, the Company and Xx. Xxxxxxxx have agreed to resolve all
matters between them, except as otherwise expressly set forth herein; and
WHEREAS, the Company and Xx. Xxxxxxxx wish to enter into an
agreement that is binding on each of them; and
WHEREAS, Xx. Xxxxxxxx understands and agrees that the Company's
willingness to enter into this Agreement is conditioned on Xx. Xxxxxxxx'x
agreement to be bound by various provisions, including, but not limited to,
non-competition, non-solicitation, non-disparagement and release provisions;
and
WHEREAS, the parties intend and agree that various provisions,
including but not limited to, non-competition, non-solicitation,
non-disparagement and release provisions, inure to the benefit of and may be
enforced by the Company's successors and assigns; and
WHEREAS, the Company has accepted Xx. Xxxxxxxx'x resignation;
NOW, THEREFORE, in consideration of the mutual covenants and
promises of the parties to this Agreement, including but not limited to the
Company's agreement to pay Xx. Xxxxxxxx, subsequent to his resignation, the
payments described in this Agreement, the Company and Xx. Xxxxxxxx agree as
follows:
1 RESIGNATIONS. Xx. Xxxxxxxx hereby submits and the Company
hereby accepts his irrevocable written resignation as President, as an
employee of the Company, and as a director and officer of the Company's
subsidiaries and affiliates
(except that Xx. Xxxxxxxx has not resigned as a member of the Board of
Directors of the Company), effective as of July 22, 1997 (hereinafter the
"Termination Date"). From and after the Termination Date, Xx. Xxxxxxxx shall
no longer be an elected officer of the Company or an officer or director of
any of its subsidiaries or affiliates and, except for the purposes of the
indemnification set forth in Section 13 of this Agreement, shall not for any
purpose be considered to be or treated as an elected officer of the Company
or an officer or director of any of its subsidiaries or affiliates. For
purposes of the exercise by Xx. Xxxxxxxx of stock options under the Company's
stock option plans, Xx. Xxxxxxxx'x employment with the Company shall be
deemed to have been terminated without cause (as defined in the applicable
plan).
2 SEVERANCE PAYMENTS.
(a) The Company and Xx. Xxxxxxxx agree that he shall receive the
following in connection with his termination:
(i) Severance payments in the amount of $600,000 per year,
less applicable withholding, payable in accordance with the Company's regular
payroll schedule, for a period beginning on the Termination Date and ending
on May 17, 2001. In the event of Xx. Xxxxxxxx'x death prior to May 17, 2001,
the remaining payments shall be paid to Xx. Xxxxxxxx'x designated beneficiary
or, if none, then to his estate;
(ii) Continuation, until May 17, 2001, of (A) benefits from
all employee welfare benefit plans in which Xx. Xxxxxxxx was entitled to
participate immediately prior to the Termination Date, as such plans may be
amended and replaced from time to time, (B) his car allowance in the current
amount and membership in the Fox Hill Country Club and the Xxxxxxxxxxxx
County Club, and (C) after May 17, 2001 Xx. Xxxxxxxx may elect to continue
health coverage at his cost and to the extent available under the
Consolidated Omnibus Reconciliation Act of 1985 ("COBRA");
(iii) As of the Termination Date, all of Xx. Xxxxxxxx'x
outstanding stock options as set forth in Exhibit A shall become immediately
exercisable and shall be honored by the Company in accordance with their
respective terms and Xx. Xxxxxxxx'x converted bonus shares and premium shares
listed on Exhibit A shall vest;
(iv) Extension by the Company by one year of the maturity
date on that certain Tax Note with a current balance of approximately
$275,000;
(v) The forgiveness by the Company of the Tax Note together
with accrued interest thereon one year from the date hereof, provided that
Xx. Xxxxxxxx has fulfilled his obligations pursuant to Section 6 below;
(vi) The Company's agreement to execute employment agreements
in the form attached hereto as Exhibit B, with Xxxx Xxxxxxxx, Xxxxxx Xxxxxxxx
and Xxxxxxx Xxxxxxx which provide for continued base salary and benefits for
a period of one year upon a non-cause/good reason termination of their
employment;
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(vii) The Company's agreement to make charitable
contributions, in cash or in kind, directly to the Luzerne Foundation for
administrative support at an annual rate of at least $100,000 in value in
1997, 1998, 1999, 2000 and 2001, which agreement shall be evidenced by the
Company's delivery of a letter to the Luzerne Foundation which in substance
provides for the benefits set forth in Exhibit C;
(viii) Xx. Xxxxxxxx shall be entitled to continue to use an
aircraft owned by the Company for twenty hours per year, until May 17, 2001,
to the extent that the Company continues to own and operate an aircraft
provided, however, that the Company reserves the right to provide Xx.
Xxxxxxxx with the economic equivalent of use of the aircraft instead of use
of the aircraft. For purposes of this Section 2(a)(vii), "economic
equivalent" shall mean the cost to the Company of operating its own aircraft;
(ix) Access to the secretarial services of Xx. Xxxxx Xxxxxxxx
for a period of ninety days after execution of this Agreement; and
(x) Payment of Xx. Xxxxxxxx'x Fourth Quarter Bonus for the
time period ending on June 27, 1997.
(b) With respect to the payments and benefits described in (i)
through (x) above, Xx. Xxxxxxxx acknowledges that to the extent any of those
benefits constitute income, they shall be treated as such by the Company
through issuance of appropriate notices, including Forms 1099, and Xx.
Xxxxxxxx agrees that he shall be solely responsible for any tax liability
that is imposed in connection with these payments and benefits. The parties
agree that the payments and benefits described in (i) through (x) above are
not subject to any special excise tax, and the Company agrees that it is its
current understanding and intent that the charitable contributions described
in (vii) above are not taxable income to Xx. Xxxxxxxx, and intends to file
all related documents consistent with those positions, provided, however,
that the Company, its successors and assigns, shall not have liability to or
be required to indemnify Xx. Xxxxxxxx under any circumstances for any special
excise tax or other withholding obligations. If the Company, or its
successors or assigns, later determines that the payments described in (vii)
above constitute taxable income to Xx. Xxxxxxxx, the Company will notify Xx.
Xxxxxxxx of such determination, and upon Xx. Xxxxxxxx'x written request,
discontinue such payments.
(c) From and after the Termination Date, Xx. Xxxxxxxx shall have
no obligation to mitigate damages, to seek or obtain other employment, or to
provide services on a self-employed basis, nor shall the amounts payable to
Xx. Xxxxxxxx under this Agreement be reduced by any amounts earned by Xx.
Xxxxxxxx; provided, however, that Xx. Xxxxxxxx'x coverage under the Company's
welfare benefit plans will terminate when Xx. Xxxxxxxx becomes eligible to be
covered under any employee benefit plan made available by another employer
and covering the same type of benefits (without exclusion for pre-existing
conditions). Xx. Xxxxxxxx shall notify the Company within thirty (30) days
after the commencement of any such benefits.
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3 RELEASE. (a) As a condition to the Company's performance of
this Agreement, except as provided in subsection (c) of this Section 3, Xx.
Xxxxxxxx, on behalf of himself, and his heirs, executors, administrators,
successors, agents and assigns, hereby
(i) acknowledges that the payments and continuing benefits
set forth in Section 2(a) constitute valid consideration for this Agreement,
satisfy in full any and all of Xx. Xxxxxxxx'x rights with respect to the
Employment Agreement, the Change In Control Agreement, the Performance Share
Plan Agreement under the Company's Long Term Performance Compensation Program
(Amended and Restated as of June 24, 1996), the Performance Share Award
Agreement, all other agreements between Xx. Xxxxxxxx and the Company, made on
or prior to the Termination Date, Xx. Xxxxxxxx'x employment with the Company,
its successors and assigns, accrued through the Termination Date, the
termination of such employment, and the discharge in full of all of the
obligations of the Company, its successors and assigns, to Xx. Xxxxxxxx
including, without limitation, salary or vested or accrued vacation pay,
bonuses, benefits, perquisites and any amounts payable under any other plan,
policy or agreement entered into, provided by or relating to the Company, its
successors and assigns; and
(ii) fully releases and forever discharges the Company, JP
Foodservice, Inc. and their respective past, present and future affiliates,
divisions, subsidiaries, facilities, parents, predecessors, successors and
assigns, and each of their officers, directors, managers, shareholders,
agents, representatives, attorneys and employees, (hereinafter collectively
referred to as the "Released Parties"), from any claims, demands,
liabilities, obligations, charges, damages and causes of action, known or
unknown, fixed or contingent, suspected or unsuspected, which occurred or
arose or which relate to, are in connection with, or are in consequence of,
any act, failure to act, decision, matter, event, occurrence, or thing
whatsoever arising from the beginning of time up to and including the
Effective Date set forth in Section 9 with respect to Xx. Xxxxxxxx'x position
as an employee, stockholder, officer, director, member of the Board of
Directors of the Company, and every other capacity of Xx. Xxxxxxxx
whatsoever, or with respect to his employment or termination of employment
with the Company, its successors and assigns, or any policy, practice, plan
or program of the Company, its successors or assigns, or which may be based
upon, related to, or connected therewith, including, but not limited to, any
claim or action under any of the following (as amended): Title VII of the
Civil Rights Act of 1964, the Civil Rights Act of 1866, the National Labor
Relations Act, the Fair Labor Standards Act, the Employee Retirement Income
Security Act, the Labor Management Relations Act, the Age Discrimination in
Employment Act ("ADEA"), the Older Workers Benefit Protection Act, the Civil
Rights Act of 1991, the Worker Adjustment and Retraining Notification Act,
the Americans with Disabilities Act, the Pennsylvania Human Rights Act, the
Pennsylvania Wage Payment and Collection Act, all federal, state and local
antidiscrimination statutes, federal common law, state common law, and/or any
federal, state or local statute, law, ordinance, regulation or order, and
claims under any express or implied contract which Xx. Xxxxxxxx or his heirs,
executors, administrators, successors, agents or assigns may
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claim exist or existed with the Company, its successors or assigns, or
against any of the Released Parties.
(iii) agrees that the release set forth in this Section
3(a)(ii) shall also specifically and expressly apply to and forever discharge
any claims, demands, liabilities, obligations, charges, damages and causes of
action, known or unknown, fixed or contingent, suspected or unsuspected,
whether as an employee, shareholder, officer, director, or member of the
Board of Directors of the Company, and every other capacity, relating in any
way to: (a) the Approval of the Board of Directors of the Company to merge
with JP Foodservice, Inc. ("Company Merger Approval"); (b) the Approval by
the Board of Directors of JP Foodservice, Inc. to merge with the Company ("JP
Merger Approval"); (c) the Agreement and Plan of Merger by and among JP
Foodservice, Inc., Xxxxxx Acquisition Corp. and Xxxxxx-Xxxxxx, Inc. dated as
of June 30, 1997 ("Merger Agreement"); (d) the merger between the Company and
JP Foodservice, Inc. ("Merger"); (e) the Exchange of Stock between the
Company and JP Foodservice, Inc. in connection with the Merger; and (f) any
act, failure to act, decision, approval, rejection, denial, matter, event,
occurrence or thing whatsoever by the Company, its successors or assigns,
arising from, related to, resulting from, as a consequence of, or in
connection with the Company Merger Approval, JP Merger Approval, the Merger
Agreement, the Merger or the Exchange of Stock, provided, however that
nothing herein shall affect Xx. Xxxxxxxx'x rights to receive the
consideration provided in the Merger Agreement in respect of his shares upon
the closing of the Merger on the same basis as all other stockholders.
(b) Xx. Xxxxxxxx covenants and agrees never to commence,
voluntarily aid in any way, prosecute, or authorize to be commenced against
any other party, any action or other proceeding based upon any claims,
demands, causes of action, obligations, damages, or liabilities which are
being released by this Agreement. Xx. Xxxxxxxx declares that, prior to the
execution of this Agreement, he has apprised himself of sufficient relevant
data, either through experts or other sources of his own selection, in order
that he might intelligently exercise his judgment in deciding whether to
execute, and in deciding on the contents of, this Agreement. Xx. Xxxxxxxx
further declares that his decision is not predicated on or influenced by any
declaration or representations of the Company, its successors or assigns, or
any predecessors in interest. Xx. Xxxxxxxx states that the contents of this
Agreement have been explained to him by his counsel and that this document is
executed voluntarily with full knowledge of its significance.
(c) Except as expressly set forth herein, this Agreement
supersedes the Employment Agreement, the Change In Control Agreement, the
Performance Share Plan Agreement under the Company's Long Term Performance
Compensation Program (Amended and Restated as of June 24, 1996), the
Performance Share Award Agreement, and all other agreements between Xx.
Xxxxxxxx and the Company, its successors or assigns made on or prior to the
Termination Date, provided, however, that this release does not affect any
rights that Xx. Xxxxxxxx may have (i) under applicable law which cannot be
waived pursuant to this Agreement; or (ii) pursuant to this Agreement.
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(d) Subject to the provisions of Section 13(b), the Company and
its subsidiaries hereby fully release and forever discharge Xx. Xxxxxxxx, and
his heirs, executors, administrators, successors and assigns, from any and
all claims, demands, liabilities, obligations, charges, damages and causes of
action, known or unknown, fixed or contingent, suspected or unsuspected, with
respect to Xx. Xxxxxxxx'x employment or directorship with the Company or its
subsidiaries arising from the beginning of time up to and including the
Effective Date set forth in Section 9, including, notwithstanding the
exclusions set forth below, those arising from disclosures, if any, made by
Xx. Xxxxxxxx relating to the existence and terms of the Merger. This release
shall not include or extend to (i) any liability for presently unknown acts
of Xx. Xxxxxxxx finally determined by a court to violate federal, state or
local law, including, but not limited to, state and federal securities laws;
(ii) any liability for presently unknown acts of Xx. Xxxxxxxx which
constitute fraud; (iii) any rights or obligations under applicable law which
cannot be waived or released pursuant to this Agreement; or (iv) any rights
or remedies the Company, its successors or assigns, may have under this
Agreement. When used herein, and in Section 13(b) below, the phrase
"presently unknown acts" shall mean the specific acts for which the majority
of either the Executive Committee (excluding Xx. Xxxxxxxx) or the Board of
Directors of the Company (excluding Xx. Xxxxxxxx) did not have actual
knowledge on or before July 18, 1997, but does not include the specific acts
described in the letter from Xxxx Xxx Xxxxxxxxxxxx to Xxxxxxx X. Xxxxxx dated
July 18, 1997, identified as a letter pursuant to Section 3(d) of Release and
Settlement Agreement dated July 18, 1997.
4 NO ADMISSION. Nothing in this Agreement shall be construed as
an admission by any party as to any liability.
5 NON-DISPARAGEMENT AND OTHER MATTERS. (a) Except as may be
required by law, Xx. Xxxxxxxx agrees that he shall:
(i) not waive any privileges or confidences that the Company, its
successors or assigns may have with respect to any information or
communications with its attorneys or accountants;
(ii) not disclose to any person the terms of this Agreement
excepting disclosures to (A) Xx. Xxxxxxxx'x immediate family members; (B)
persons undertaking an evaluation of Xx. Xxxxxxxx for purposes of extending
credit to him; and (C) Xx. Xxxxxxxx'x attorneys, accountants and financial
advisors; and (D) as may be necessary to enforce the terms of this Agreement.
(iii) not encourage or promote litigation against the Company, its
successors or assigns;
(iv) not communicate with any person, or the attorney or
representative of any person, who Xx. Xxxxxxxx reasonably believes to be
contemplating or pursuing litigation against the Company, its successors or
assigns. Nothing contained herein shall be deemed to prohibit Xx. Xxxxxxxx
from communicating (A) with any attorney
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regarding his personal affairs; and (B) responding to, and complying with,
any subpoena served upon Xx. Xxxxxxxx; provided, however, that Xx. Xxxxxxxx
shall first notify the Company immediately of his receipt of any such
subpoena pursuant to Section 14(f) by facsimile and overnight carrier;
(v) cooperate with the Company, its successors and assigns, in:
(A) its investigation, defense or prosecution of any potential or actual
claim, charge or suit, or investigation by or against the Company, its
successors or assigns; and (B) any inquiry, review or investigation of
business matters or undertakings of the Company, its successors or assigns.
As used herein, the term "cooperate" means: (A) making himself available
from time to time for meetings with counsel to the Company, its successors
and assigns at the Company's reasonable request; (B) not communicating with
parties known to be adverse to the Company, its successors or assigns, or
their counsel, except by way of deposition or trial testimony, or purely
social communications; (C) making himself available for depositions and trial
testimony upon the reasonable instruction of counsel to the Company, it
successors or assigns; and (D) executing those documents and truthful
affidavits requested from time to time by counsel to the Company, its
successors or assigns. The Company agrees to reimburse Xx. Xxxxxxxx for
reasonable out of pocket expenses including for travel, hotel and meal
expenses, incurred in connection with his cooperation under this Section
5(a)(v); and
(vi) to take affirmative steps at the reasonable request of the
Company (such steps to be specified by the Company and reasonably acceptable
to Xx. Xxxxxxxx) (i) to encourage key employees of the Company, its
successors and assigns, to remain with the Company, its successors or
assigns, despite Xx. Xxxxxxxx'x departure, and (ii) to negate any negative
impact that his departure may cause.
(b) From and after the date of this Agreement, neither party shall make
any public statements, whether written or oral, or any other statements which
such party reasonably believes are likely to become public, which statements
disparage or defame the other party.
6 ADDITIONAL COVENANTS OF XX. XXXXXXXX.
(a) ACKNOWLEDGEMENT. Xx. Xxxxxxxx recognizes and acknowledges
that his employment relationship with the Company has been extraordinary in
that, among other things, he has been President of the Company since May 17,
1996, and prior to that time, he was Chief Executive Officer and Chairman of
the Board of Directors of U.S. Foodservice, Inc., which was acquired by the
Company on or about May, 1996. In those positions, Xx. Xxxxxxxx had primary
responsibility for the management of the food service distribution and
manufacturing operations of the Company and its predecessor. Xx. Xxxxxxxx
acknowledges that, in those positions, he had access to and developed
confidential or proprietary business information; customer information and
lists; costs; prices; earnings; systems; operating procedures; merchandising
and marketing plans; and methods; the terms of agreement with employees,
customers and/or suppliers; personal training and development programs;
prospective and executed contracts and other
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business information of the Company, its successors and assigns methods and
strategies; product development ideas and strategies; financial results;
strategic plans; proprietary computer and systems software; and other
important information relating to the Company and JP Foodservice Inc.
Because of that extraordinary relationship and in consideration of the
covenants, undertakings and promises of the Company set forth in this
Agreement, Xx. Xxxxxxxx accepts and agrees to be bound by the covenants set
forth in this Agreement including but not limited to the promises of this
Section 6. Xx. Xxxxxxxx understands that the Company would not enter into
this Agreement if Xx. Xxxxxxxx did not expressly agree to each of the
covenants, undertakings and promises set forth herein, including but not
limited to the provisions of this Section 6. Xx. Xxxxxxxx acknowledges the
broad scope of the covenants in this Section 6, but agrees that such
covenants are reasonable in light of the scope of the duties he performed for
the Company and the extraordinary relationship he had with the Company and
its predecessor. Xx. Xxxxxxxx further acknowledges and agrees that the
covenants contained in this Agreement do not unreasonably restrict his
employment opportunities or unduly burden or deprive him financially.
(b) COMPETITION. During the period from the Termination Date
through May 17, 2001 (hereinafter referred to as the "Restricted Period"),
Xx. Xxxxxxxx shall not, directly or indirectly, own, manage, operate, join or
control, or participate in the ownership, management, operation or control
of, or be a proprietor, director, officer, stockholder, member, partner or an
employee or agent of, or a consultant to, any business, firm, corporation,
partnership or other entity anywhere in the United States of America
(including, without limitation, SYSCO Corporation, Alliant (formerly Kraft)
Corporation, JP Foodservice, Inc., PYA/Monarch, MBM Corporation, ProSource,
Inc., Ameriserve, Inc. and Marriott Distribution Services) which engages in
the Restricted Business as defined in Section 10 of the Employment Agreement,
including but not limited to the current business conducted by JP
Foodservice, Inc. For purposes of this Section, the term "ownership" does
not include ownership of less than a 5% passive interest in such business,
firm, corporation, partnership or other entity.
(c) SOLICITATION OF CUSTOMERS. During the Restricted Period, Xx.
Xxxxxxxx shall not, directly or indirectly, for his own account or as
proprietor, stockholder, member, partner, director, officer, employee, agent or
otherwise for or on behalf of any person, business, firm, corporation,
partnership or other entity other than the Company, its successors or assigns,
sell, broker or solicit or assist in the offer to sell, broker or solicit, any
orders for the purchase of any foodstuffs or other products sold by the Company,
its successors or assigns during the "Measuring Period", which is the three year
period preceding the date of termination of employment with the Company
(hereinafter referred to as "Products") to or from any person, corporation or
other entity which was a customer of the Company, its successors or assigns at
any time during the Measuring Period. For purposes of this Agreement,
"customer of the Company" means and includes: (i) any and all persons, business,
corporations, partnerships or other entities which during the Measuring Period
and/or the Restricted Period (A) have done business with the Company, its
successors or assigns, as a customer, (B) have been contacted by the Company,
its successors or assigns, for the purpose of purchasing
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products or services, or (C) have preexisting business relationships and/or
dealings with Xx. Xxxxxxxx when his employment with the Company terminates;
and (ii) all persons, businesses, corporations, partnerships or other
business, entities which control, or are controlled by the same person,
corporation, partnership or other entity which controls any such customer of
the Company, its successors or assigns. For purposes of this Agreement,
"customers" includes food service brokers, prospective customers and referral
sources of customers.
(d) SOLICITATION OF EMPLOYEES. During the Restricted Period, Xx.
Xxxxxxxx shall not, directly or indirectly, for his own account or as
proprietor, stockholder, partner, director, officer, employee, agent or
otherwise for or on behalf of any person, business, firm, corporation,
partnership or other entity other than the Company, solicit any person who,
at any time during the three-month period prior to the Effective Date and at
any time thereafter was or is an employee of the Company, its successors or
assigns (with the exception of Xxxxxx XxXxxxxx, Xxxx Xxxxxxxx, Xxxxxx
Xxxxxxxx, Xxxxxxx Xxxxxxx and the employee acting as Xx. Xxxxxxxx'x secretary
as of the Termination Date), for employment with any person, business, firm,
corporation, partnership or other entity other than the Company or hire any
employee of the Company, its successors or assigns, either directly or for or
on behalf of any person, business, firm or corporation, partnership or other
entity other than the Company.
(e) CONFIDENTIAL INFORMATION. From and after the date of this
Agreement, Xx. Xxxxxxxx shall not at any time, directly or indirectly, use or
disclose, make known, divulge, reveal or furnish to any person, business,
firm, corporation, partnership or other entity, any confidential or
proprietary information concerning the Company, its successor and assigns or
their business, suppliers or customers except as required by law or to
personal advisors, who are not in the food service industry and who are not
customers, suppliers or employees of the Company, its successors or assigns,
for purposes of enforcing or interpreting this Agreement, provided that such
advisors (other than legal counsel) execute a confidentiality agreement in
form and substance agreeable to the Company, its successors or assigns, prior
to disclosure of such confidential information. All information, except
public information, whether written or otherwise, regarding the business of
Company, its successors and assigns, including but not limited to,
information regarding customers, customer information and lists; costs,
prices, earnings, systems, operating procedures, merchandising and marketing
plans and methods; the terms of agreement with employees, customers and/or
suppliers; personal training and development programs, prospective and
executed contracts and other business information of the Company, its
successors and assigns methods and strategies; product development ideas and
strategies; financial results; strategic plans; proprietary computer and
systems software; and other non-public important information relating to the
Company arrangements, and sources of supply are presumed to be confidential
information of the Company, its successors and assigns for purposes of this
Agreement. Xx. Xxxxxxxx agrees to return to the Company all books, records,
lists and other written, typed or printed materials, whether furnished by the
Company or prepared by Xx. Xxxxxxxx, which contain any confidential
information relating to the Company, its successors and assigns, or their
business, suppliers or customers, promptly upon execution
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of ths Agreement, and Xx. Xxxxxxxx shall neither make nor retain any copies
of such materials without the prior written consent of the Board of Directors
of the Company.
(f) NOTICE OF OBLIGATIONS. Xx. Xxxxxxxx hereby consents to the
notification of persons or entities of Xx. Xxxxxxxx'x obligations under this
Agreement when the Company, its successors or assigns, reasonably believe
that Xx. Xxxxxxxx'x activities are likely to be restricted by this Agreement.
The Company's rights under this Section 6(f) shall be in addition to and not
in preemption of all other rights and privileges the Company, its successors
and assigns, may have under general legal and equitable principles, or by
statute or common law.
(g) CUMULATIVE PROVISIONS. The covenants and agreements contained
in this Section 6 are independent of each other and cumulative.
(h) BINDING EFFECT: THIRD PARTY BENEFICIARIES. The provisions of
this Section 6 shall inure to the benefit of the Company, its successors and
assigns. The provisions of this Section 6 shall inure to the benefit of and
be binding upon Xx. Xxxxxxxx, his heirs, personal representatives, successor
and assigns.
(i) REMEDIES FOR BREACH. Xx. Xxxxxxxx further acknowledges and
agrees that his obligations under this Agreement are unique and that any
breach or threatened breach of such obligations may result in irreparable
harm and substantial damages to the Company, its successors and assigns.
Accordingly, in the event of a breach or threatened breach by Xx. Xxxxxxxx of
any of the provisions of this Agreement, the Company, its successors and
assigns shall have the right, in addition to exercising any other remedies at
law or equity which may be available to it under this Agreement or otherwise
to: (i) obtain EX PARTE, preliminary, interlocutory, temporary or permanent
injunctive relief, specific performance and other equitable remedies in any
court of competent jurisdiction to prevent Xx. Xxxxxxxx from violating such
provision or provisions or to prevent the continuance of any violation
thereof, TOGETHER WITH an award or judgment for any and all damages, losses,
liabilities, expenses and costs incurred by the Company, its successors and
assigns as a result of such breach or threatened breach including, but not
limited to attorneys' fees incurred by the Company, its successors and
assigns in connection with, or as a result of, the enforcement of this
Agreement; and (ii) discontinue any or all of the consideration provided in
Section 2 of this Agreement. The parties expressly agree that the
arbitration provision set forth in Section 13 of the Employment Agreement is
no longer binding on the parties and has been superseded by this Agreement.
(j) DIVISIBILITY. Xx. Xxxxxxxx agrees that the provisions of this
Section 6 are divisible and separable so that if any provision or provisions
hereof shall be held to be unreasonable, unlawful or unenforceable, such
holding shall not impair the remaining provisions hereof. If any provision
hereof is held to be unreasonable, unlawful or unenforceable in duration,
geographical scope or character of restriction by any court of competent
jurisdiction, it is the express desire and agreement of Xx. Xxxxxxxx that
such provision shall be modified to the extent necessary in order that any
such provision or
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portion nthereof shall be legally enforceable to the fullest extent permitted
by law, and the parties hereto do hereby expressly authorize any court of
competent jurisdiction to enforce any such provision or portion thereof or to
modify any such provision or portion thereof in order that any such provision
or portion thereof shall be enforced by such court to the fullest extent
permitted by applicable law.
(k) NONIMPAIRMENT OF OBLIGATIONS. Xx. Xxxxxxxx agrees that his
obligations under Sections 5 and 6 are in addition to, and not in limitation
or preemption of, all other obligations which Xx. Xxxxxxxx may have to the
Company, its successors and assigns, under general legal and equitable
principles or by statute or common law.
7 ASSERTION OF CLAIMS. Xx. Xxxxxxxx represents and warrants, with
the understanding that such representation and warranty is material to this
transaction, that (a) he is not aware of a person having asserted or having a
valid basis to assert, with any federal, state or local judicial or
administrative agency or body any claim against the Company, its successors or
assigns, of any kind or character based on or arising out of or alleged to be
suffered in or as a consequence of Xx. Xxxxxxxx'x employment with the Company,
its termination, or his contacts or relationships with the Company or any
Released Party, and (b) Xx. Xxxxxxxx has no current intention to assert, in any
manner or by any means, any such claim before any federal, state or local
judicial or administrative agency or body. If any such claim is asserted in the
future by Xx. Xxxxxxxx or any person or entity authorized by Xx. Xxxxxxxx to do
so, Xx. Xxxxxxxx agrees and acknowledges that this Agreement and release set
forth in Section 3 hereof shall act as a total and complete bar to his
reemployment or to recovery of any sum or amount whatsoever from the Company,
its successors or assigns, whether labeled "award, liability, damages, judgment,
back pay, wages, or fine" or otherwise resulting directly or indirectly from any
lawsuit, remedy, charge or complaint whether brought privately by him or by any
one else, including any federal, state or local agency, whether or not on his
behalf or at his request.
8 REEMPLOYMENT. Xx. Xxxxxxxx hereby releases and waives any and
all rights or claims he may have to reemployment by the Company, its successors
and assigns, and agrees that he shall not reapply for any position with the
Company, its successors or assigns.
9 CONSIDERATION OF TERMS AND EFFECTIVE DATE.
XX. XXXXXXXX ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT,
THAT HE KNOWS AND UNDERSTANDS THE CONTENTS THEREOF AND THAT HE EXECUTES THE SAME
AS HIS OWN FREE, KNOWING AND VOLUNTARY ACT AND DEED. XX. XXXXXXXX FURTHER
REPRESENTS AND ACKNOWLEDGES THAT HE HAS BEEN ADVISED BY THE COMPANY IN WRITING
TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT IF HE CHOSE TO DO
SO, THAT HE HAS HAD AN OPPORTUNITY TO CONSULT FULLY WITH HIS
11
PERSONAL ATTORNEY REGARDING THE TERMS OF THIS AGREEMENT, THAT HE FULLY
UNDERSTANDS THE TERMS, CONDITIONS, AND FINAL BINDING EFFECT OF THIS
AGREEMENT, AND THAT THE RELEASE CONTAINED HEREIN IS A RELEASE OF ALL CLAIMS
WITH FINAL AND BINDING EFFECT.
XX. XXXXXXXX ACKNOWLEDGES THAT HE HAS BEEN GIVEN A PERIOD OF AT LEAST
21 DAYS WITHIN WHICH TO CONSIDER THIS AGREEMENT PRIOR TO HIS EXECUTION HEREOF.
FURTHERMORE, IT IS AGREED THAT XX. XXXXXXXX SHALL HAVE THE RIGHT TO REVOKE THIS
AGREEMENT BY WRITTEN NOTICE TO THE COMPANY WITHIN SEVEN DAYS FOLLOWING ITS
EXECUTION. FOR THIS REVOCATION TO BE EFFECTIVE, WRITTEN NOTICE MUST BE RECEIVED
BY THE COMPANY'S CHIEF EXECUTIVE OFFICER NO LATER THAN THE CLOSE OF BUSINESS ON
THE SEVENTH DAY AFTER XX. XXXXXXXX SIGNS THIS AGREEMENT.
IF XX. XXXXXXXX DOES SO REVOKE, THIS AGREEMENT WILL BE NULL AND VOID
AND, SUBJECT TO APPLICABLE LAW, THE COMPANY SHALL HAVE NO OBLIGATION WHATSOEVER
TO XX. XXXXXXXX, AND XX. XXXXXXXX WILL NOT RECEIVE THE CONSIDERATION DESCRIBED
IN SECTION 2.
THIS AGREEMENT SHALL NOT BECOME EFFECTIVE AND ENFORCEABLE UNTIL AFTER
THE EXPIRATION OF THIS SEVEN-DAY REVOCATION PERIOD; AFTER SUCH TIME, IF THERE
AHS BEEN NO REVOCATION, THIS AGREEMENT SHALL BE FULLY EFFECTIVE AND
ENFORCEABLE. IF THIS AGREEMENT IS REVOKED BY XX. XXXXXXXX IN ACCORDANCE
WITH THIS SECTION 9, XX. XXXXXXXX SHALL RETURN TO THE COMPANY ALL
CONSIDERATION AND BENEFITS PROVIDED BY THE COMPANY TO WHICH XX. XXXXXXXX
WOULD NOT BE ENTITLED ABSENT THIS AGREEMENT.
10 ACKNOWLEDGEMENT AND CONSIDERATION. The consideration described
in Section 2 is being provided in return for Xx. Xxxxxxxx'x accepting the terms
of this Agreement, including but not limited to the covenants set forth in
Section 6 as well as the giving of a release, a covenant not to xxx, and not
revoking under Section 9 so that this Agreement becomes effective.
Xx. Xxxxxxxx acknowledges that the payments and agreements set forth in
Section 2 constitute adequate consideration supporting his obligations and
releases given under this Agreement.
11 LEGAL FEES AND EXPENSES. In the event of litigation between the
parties regarding interpretation or enforcement of this Agreement, the parties
agree that the prevailing party shall be entitled to recover reasonable
attorneys' and related fees and expenses incurred in connection with the
litigation. The parties expressly agree that this provision modifies and
supersedes Section 21 of the Employment Agreement.
12
12 NO AUTHORITY OR RESPONSIBILITY. Xx. Xxxxxxxx acknowledges
that he shall have no supervisory, managerial or agency responsibility or
authority from and after the Termination Date and agrees not to involve
himself in any activities of the Company, except as may be requested by the
Chairman and Chief Executive Officer of the Company. Xx. Xxxxxxxx also
acknowledges that effective as of the Termination Date, he does not have
authority to bind the Company to any contracts or commitments and agrees that
he shall not create any obligation for or bind or attempt to bind the
Company, its successors or assigns, in any manner whatsoever.
13 INDEMNIFICATION. (a) This Agreement shall not affect Xx.
Xxxxxxxx'x rights to coverage or indemnification under the charter or by-laws
of the Company or policies of insurance as in effect on or prior to the
Termination Date, with respect to acts of commission or omission or events
occurring on or prior to the Termination Date; and
(b) Xx. Xxxxxxxx shall indemnify the Company, its successors or
assigns, for monetary expense or loss arising out of a claim brought by a
third party or governmental investigation based upon any breach of the
confidentiality provisions of his Employment Agreement, to the extent that
such claim or investigation arises directly from facts in existence prior to
the Termination Date but not known to the Company (defined as "presently
unknown acts" in Section 3(d) above), and are not otherwise covered by the
Company's insurance policies, except policies of self-insurance or risk
retention.
14 MISCELLANEOUS.
(a) AFFILIATE DEFINITION. "Affiliate" shall mean any person, firm or
corporation which directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, the persons
specified.
(b) COMPANY, SUCCESSORS AND ASSIGNS DEFINITIONS. "The Company,
its successors and assigns" shall mean the Company and its past, present and
future affiliates, divisions, subsidiaries, facilities, parents, successors,
predecessors and assigns, and their respective past, present and future
officers, directors, managers, shareholders, agents, representatives,
attorneys and employees. "The Company, its successors or assigns" shall mean
the Company and/or its past, present and future affiliates, divisions,
subsidiaries, facilities, parents, successors, predecessors and assigns, and
their respective past, present and future officers, directors, managers,
shareholders, agents, representatives, attorneys and employees.
(c) AMENDMENTS. This Agreement may be amended only by a writing
executed by each of the parties hereto.
(d) ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter
hereof, and supersedes all prior contracts, agreements, arrangements,
communications, discussions,
13
representations and warranties, whether oral or written, between the parties
other than any confidentiality agreement executed by Xx. Xxxxxxxx while an
employee of the Company.
(e) LAW AND INTERPRETATION. This Agreement shall be governed by,
construed and interpreted in accordance with the laws of the State of
Pennsylvania. With respect to each and every term and condition in this
Agreement, the parties understand and agree that the same have or has been
mutually negotiated, prepared and drafted, and that if at any time the
parties hereto desire or are required to interpret or construe any such term
or condition or any agreement or instrument subject hereto, no consideration
shall be given to the issue of which party hereto actually prepared, drafted
or requested any term or condition of this Agreement or any agreement or
instrument subject hereto.
(f) NOTICES. Any notice, request or other communication required
or permitted hereunder shall be in writing and shall be deemed to have been
duly given (i) when received if personally delivered, (ii) within 12 hours
after being sent by telecopy, with telecopy confirmation, and (iii) when
received (as established by written receipt) if sent by established overnight
courier to the parties (and to the persons to whom copies shall be sent) at:
To the Company: Xxxxxx-Xxxxxx, Inc.
000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxx Xxxxxxxxx Center
Xxxxxx-Xxxxx, Pennsylvania 18702-6980
Attention: Xxxx Xxx Xxxxxxxxxxxx
Telecopy No.: (000) 000-0000
With a copy to: Xxxxx, Day, Xxxxxx & Xxxxx
00 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
To Xx. Xxxxxxxx: 000 X. Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
With a copy to: Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx
Telecopy No.: 212/309-6080
Any party by notice given to the other party in accordance with this Section
14(f) may change the address or the persons to whom notices or copies thereof
shall be directed.
14
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
(h) ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, assigns
and heirs, as set forth herein, but no rights, obligations or liabilities
hereunder shall be assignable by Xx. Xxxxxxxx without the prior written
consent of the Company, its successors and assigns.
(i) WAIVERS AND AMENDMENTS. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be
waived, only by a written instrument signed by the parties or, in the case of
a waiver, by the party waiving compliance. No delay on the part of either
party in exercising any right, power or privilege hereunder shall operate as
a waiver thereof, nor shall any waiver on the part of either party of such
right, power or privilege nor any single or partial exercise of any such
right, power or privilege, preclude any other further exercise thereof or the
exercise of any other such right, power or privilege.
(j) HEADINGS. The headings in this Agreement are solely for
convenience of reference and shall not be given any effect in the
construction or interpretation of this Agreement.
(k) EXPENSE REIMBURSEMENT. The Company will reimburse Xx. Xxxxxxxx
for the reasonable fees of Xx. Xxxxxxxx'x attorney in connection with his
resignation, including such attorney's review of this Agreement and
consultation with Xx. Xxxxxxxx on its implications; provided, however, that
such fees not exceed $40,000.
IN WITNESS WHEREOF, Xx. Xxxxxxxx has executed, and the Company has
caused its duly authorized representative to execute, this Agreement as of
the date first above written.
Xxxxxx-Xxxxxx, Inc.
By: /s/
--------------------------------
/s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
15
EXHIBIT A
[RYKOFF XXXXXX LOGO]
------------------------------------------------------------------------------
STOCK OPTION REPORT - XXXXX X. XXXXXXXX 25-JUN-97
------------------------------------------------------------------------------
EXERCISED
GRANT EXERCISE VESTED --------------------------------------------------
DATE PRICE SHARES SHARES SHARES DATE SHARES DATE SHARES DATE
----------------------------- --------- --------------------------------------------------
RSI 1988 STOCK OPTION AND COMPENSATION PLAN
6/24/96 $14.125 35,000 8,750
-------- --------- -------- -------- --------
35,000 8,750
USFI 1992 STOCK OPTION PLAN
9/4/92 $10.540 86,146 86,146 -34,458 11/25/96
3/24/95 $3.470 3,814 3,814 -3,814 11/25/96
3/24/95 $10.540 17,402 17,402 -6,960 11/25/96
-------- --------- -------- -------- --------
107,362 107,362 -45,232
USFI 1993 STOCK OPTION PLAN
3/24/95 $14.730 6,711 4,474
-------- --------- -------- -------- --------
6,711 4,474
USFI MANAGEMENT STOCK OPTION PLAN
3/24/95 $9.410 17,019 17,019 -17,019 11/25/96
3/24/95 $9.410 3,721 3,721
-------- --------- -------- -------- --------
20,740 20,740 -17,019
CANCELLED
-------------- SHARES
SHARES DATE OUTSTANDING
-------------- -----------
RSI 1988 STOCK OPTION AND COMPENSATION PLAN
35,000
--------- -----------
35,000
USFI 1992 STOCK OPTION PLAN
51,688
0
10,442
--------- -----------
62,130
USFI 1993 STOCK OPTION PLAN
6,711
--------- -----------
6,711
USFI MANAGEMENT STOCK OPTION PLAN
0
3,721
--------- -----------
3,721
-------- --------- -------- -------- --------
TOTAL FOR XXXXX X. XXXXXXXX: 169,813 141,326 -62,251
-------- --------- -------- -------- --------
-------- --------- -------- -------- --------
--------- -----------
TOTAL FOR XXXXX X. XXXXXXXX: 107,582
--------- -----------
--------- -----------
[RYKOFF XXXXXX LOGO]
------------------------------------------------------------------------------
ESTRICTED STOCK REPORT - XXXXX X. XXXXXXXX 25-JUN-97
------------------------------------------------------------------------------
PRICE PER VESTING VESTED UNVESTED REPURCHASED CANCELLED
SHARES SHARE DATE SHARES SHARES SHARES SHARES
----------------------------------------------------------------------------------------
RSI CONVERTIBLE AWARD PLAN (FISCAL YEAR 1997)
GRANT DATE:
3,448 (2) 14.50 (2) 3,448
1,724 (2) 14.50 (2) 1,724
574 (3) 0.00 (3) 574
1,148 (3) 0.00 (3) 1,148
-------- -------- -------- --------- --------
6,894 6,894
-------- -------- -------- --------- --------
TOTAL FOR XXXXX X. XXXXXXXX:
6,894 6,894
-------- -------- -------- --------- --------
-------- -------- -------- --------- --------
2) Converted Bonus Shares - Convertible Award Plan.
3) Premium Shares - Convertible Award Plan.
EXHIBIT B
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into
this __th day of ____, 1997 by and between Xxxxxx-Xxxxxx, Inc. (hereinafter
"the Company") and ____________________ (hereinafter "Employee").
In consideration of the mutual covenants contained herein, it is agreed
as follows:
1 EMPLOYMENT. The Company hereby agrees to employ the Employee and
the Employee hereby agrees to be employed by the Company upon the terms and
conditions set forth herein.
2 TERM. Employment shall be continued until terminated pursuant to
Section 4.
3 COMPENSATION. During the term of this Agreement, the Company
shall pay to the Employee a base salary of $__________ per annum,
[equal to current base salary] which base salary may be adjusted from time to
time by the Company, payable at the times and in the manner consistent with
the Company's general policies regarding compensation of executive employees.
Such base salary shall include any salary reduction contributions to (i) any
Company-sponsored plan that includes a cash-or-deferred arrangement under
Section 401(k) of the Code, (ii) any other plan of deferred compensation
sponsored by the Company, or (iii) any Company-sponsored "cafeteria plan"
under Section 125 of the Code.
4 TERMINATION
(a) INVOLUNTARY TERMINATION. The Employee's employment hereunder
may be terminated by the Company, its successors or assigns, for any reason.
The Employee will be treated for purposes of this Agreement as having been
involuntarily terminated by the Company, its successors and assigns, if the
Employee terminates his employment within 90 days of a reduction in the
Employee's base salary, unless such reduction in base salary is part of a
reduction applicable generally to employees at his level.
(b) VOLUNTARY TERMINATION. The Employee may voluntarily terminate
the Agreement at any time by written notice to the Company, its successors and
assigns. The Employee's death or disability during the term of the Agreement
shall constitute a voluntary termination of employment for purposes of
eligibility for Termination Payments and Benefits as provided in Section 5.
(c) VOLUNTARY AND INVOLUNTARY TERMINATION. Subject to Section 5 and
any benefit continuation requirements of applicable law, in the event the
Employee's
1
employment hereunder is voluntarily or involuntarily terminated for any
reason whatsoever, the compensation obligations of the Company, its
successors and assigns, under Section 3 shall cease as of the effective date
of such termination, except for any compensation earned or accrued but unpaid
through such date. The Employee shall be entitled to receive any other
compensation or benefits accrued by unpaid through such date. In the event
that the Employee's employment with the Company, its successors or assigns,
is terminated voluntarily by the Employee, or is terminated by the Company,
its successors or assigns, for Cause as defined in Section 5(e) below, then
the Company, its successors and assigns, shall have no obligation to provide
termination payments or benefits to the Employee pursuant to Section 5.
5 TERMINATION PAYMENTS AND BENEFITS. If the Employee's
employment hereunder is involuntarily terminated by the Company, its
successors and assigns, other than for Cause (as defined herein) prior to the
end of the term of this Agreement, subject to the condition precedent that
the Employee execute a valid Release and Settlement Agreement in the form
attached hereto as Exhibit 1, then Company shall be obligated to provide for
the termination payments and benefits set forth below:
(i) Severance payments in the amount equivalent to the
Employee's annual base salary, less applicable withholding, payable in
accordance with the Company's regular payroll schedule, for a one-year period
beginning on the Termination Date (the "Termination Period"). In the event
of Employee's death during the Termination Period, the remaining payments
shall be paid to Employee's designated beneficiary, or, if none, then to his
estate; and
(ii) Continuation of benefits from all employee welfare
benefit plans in which Employee was entitled to participate immediately prior
to the Termination Date, during the Termination Period, as such plans may be
amended or replaced from time to time.
(b) With respect to the payments and benefits described in (i) and
(ii) above, Employee acknowledges that to the extent any of those benefits
constitute income, they shall be treated as such by the Company, its successors
and assigns, through issuance of appropriate notices, and Employee agrees that
he shall be solely responsible for any tax liability that is imposed in
connection with these payments and benefits.
(c) Notwithstanding the foregoing, any right of the Employee to
receive termination payments hereunder, shall be forfeited to the extent of any
amounts payable after any breach of Section 6 by the Employee.
(d) From and after the Termination Date, Employee shall have no
obligation to mitigate damages or to seek or obtain other employment; provided,
however, that Employee's coverage under the Company's welfare benefit plans will
terminate when Employee becomes covered under any employee benefit plan made
available by another employer and covering the same type of benefits. Employee
shall notify the Company, its successors and assigns, within thirty (30) days
after the commencement of any such benefits.
2
(e) For purposes of this Agreement, "Cause" shall mean either:
(i) that the Employee shall have failed, after 30 days notice to cure
deficiencies, to meet the objectives set forth in the Company's,
its successors and assigns, performance appraisal standards as
applied to the Employee; or
(ii) that the Employee shall have committed:
(A) an intentional act of fraud, embezzlement or theft in
connection with his duties or in the course of his employment
with the Company, its successors and assigns;
(B) intentional wrongful damage to property of the Company, its
successors and assigns;
(C) intentional misconduct that is materially injurious to the
Company, its successors and assigns, monetarily or otherwise; or
(D) an intentional breach of the confidentiality, non-
competition and non-solicitation covenants set forth in Section
6.
(E) the Employee shall have committed a felony or any crime
punishable by imprisonment (other than minor traffic violations).
6 ADDITIONAL COVENANTS OF EMPLOYEE.
(a) ACKNOWLEDGEMENT. Employee recognizes and acknowledges in the
course of his employment with the Company, its successors and assigns, he had
access to and developed confidential or proprietary business information;
customer information and lists; costs; prices; earnings; systems; operating
procedures; merchandising and marketing plans; methods and strategies;
product development ideas and strategies; financial results; strategic plans;
proprietary computer and systems software; and other important information
relating to the Company, its successors and assigns. Because of that
relationship and in consideration of the covenants, undertakings and promises
of the Company, its successors and assigns, set forth in this Agreement,
Employee accepts and agrees to be bound by the covenants set forth in this
Agreement including but not limited to the promises of this Section 6.
Employee understands that the Company, its successors and assigns, would not
enter into this Agreement if Employee did not expressly agree to each of the
covenants, undertakings and promises set forth herein, including but not
limited to the provisions of this Section 6. Employee acknowledges the broad
scope of the covenants in this Section 6, but agrees that such covenants are
reasonable. Employee further acknowledges and agrees that the covenants
contained in this Agreement do not unreasonably restrict his employment
opportunities or unduly burden or deprive him financially.
3
(b) COMPETITION. During his employment with the Company, its
successors and assigns, and for a period of one year after the Termination
Date (hereinafter referred to as the "Restricted Period"), the Employee shall
not, directly or indirectly, own, manage, operate, join or control, or
participate in the ownership, management, operation or control of, or be a
proprietor, director, officer, stockholder, member, partner or an employee or
agent of, or a consultant to, any business, firm, corporation, partnership or
other entity anywhere in the United States of America (including, without
limitation, SYSCO Corporation, Alliant (formerly Kraft) Corporation, JP
Foodservice, Inc., PYA/Monarch, MBM Corporation, ProSource, Inc., Ameriserve,
Inc. and Marriott Distribution Services) which engages in (i) the current
business of the Company and/or JP Foodservice, Inc. or (ii) any other
principal line of business developed or acquired by the Company, its
successors or assigns, prior to the Termination Date. For purposes of this
Section, the term "ownership" does not include ownership of less than a 5%
passive interest in such business, firm, corporation, partnership or other
entity.
(c) SOLICITATION OF CUSTOMERS. During his employment with the
Company, its successors and assigns, and during the Restricted Period, the
Employee shall not, directly or indirectly, for his own account or as
proprietor, stockholder, member, partner, director, officer, employee, agent
or otherwise for or on behalf of any person, business, firm, corporation,
partnership or other entity other than the Company, its successors or
assigns, sell, broker or solicit or assist in the offer to sell, broker or
solicit, any orders for the purchase of any foodstuffs or other products sold
by the Company, its successors or assigns during the "Measuring Period",
which is the three year period preceding the date of termination of
employment with the Company (hereinafter referred to as "Products") to or
from any person, corporation or other entity which was a customer of the
Company, its successors and assigns, at any time during the Measuring Period.
For purposes of this Agreement, "customer of the Company" means and
includes: (i) any and all persons, business, corporations, partnerships or
other entities which during the Measuring Period and/or the Restricted Period
(A) have done business with the Company, its successors or assigns, as a
customer, (B) have been contacted by the Company, its successors or assigns,
for the purpose of purchasing products or services, or (C) have preexisting
business relationships and/or dealings with the Employee when his employment
with the Company, its successors and assigns, terminates; and (ii) all
persons, businesses, corporations, partnerships or other business, entities
which control, or are controlled by the same person, corporation, partnership
or other entity which controls any such customer of the Company, its
successors or assigns. For purposes of this Agreement, "customers" includes
food service brokers, prospective customers and referral sources of customers.
(d) SOLICITATION OF SUPPLIERS. During his employment with the
Company, its successors and assigns, and during the Restricted Period,
Employee shall not, directly or indirectly, for his own account or as
proprietor, stockholder, partner, director, officer, employee, agent or
otherwise for or on behalf of any business, firm, corporation, partnership or
other entity other than the Company, purchase or broker or offer to purchase
or broker any Products from any person, corporation or other entity which was
or is a supplier or vendor to the Company, its successors or assigns, at any
time during
4
the Measuring Period. For purposes of this Agreement, "suppliers and vendors
to the Company" means and includes any and all persons, businesses,
corporations, partnerships, or other entities which have done or do business
with the Company, its successors or assigns, as a supplier or vendor during
the Measuring Period and/or Restricted Period, and all persons, businesses,
corporations, partnerships or other entities which control, or are controlled
by, the same person, business, corporation, partnership or other entity which
controls, any such supplier or vendor to the Company, its successors or
assigns.
(e) SOLICITATION OF EMPLOYEES. During his employment with the
Company, its successors and assigns, and during the Restricted Period,
Employee shall not, directly or indirectly, for his own account or as
proprietor, stockholder, partner, director, officer, employee, agent or
otherwise for or on behalf of any person, business, firm, corporation,
partnership or other entity other than the Company solicit any person who was
or is an employee of the Company, its successors or assigns, at any time
during the Measuring Period and/or Restricted Period for employment with any
person, business, firm, corporation, partnership or other entity other than
the Company or hire any employee of the Company, its successors or assigns,
either directly or for or on behalf of any person, business, firm or
corporation, partnership or other entity other than the Company.
(f) CONFIDENTIAL INFORMATION. From and after the date of this
Agreement, Employee shall not at any time, directly or indirectly, use or
disclose, make known, divulge, reveal or furnish to any person, business,
firm, corporation, partnership or other entity, any confidential or
proprietary information concerning the Company, its successor and assigns or
their business, suppliers or customers. All information, whether written or
otherwise, regarding the business of Company, its successors and assigns,
including but not limited to, information regarding customers, customer
lists, costs, prices, earnings, systems, operating procedures, prospective
and executed contracts and other business arrangements, and sources of supply
are presumed to be confidential information of the Company, its successors
and assigns for purposes of this Agreement. Employee agrees to return to the
Company, its successors and assigns, all books, records, lists and other
written, typed or printed materials, whether furnished by the Company, its
successors and assigns, or prepared by Employee, which contain any
information relating to the Company, its successors and assigns, or their
business, suppliers or customers, promptly upon execution of this Agreement,
and Employee shall neither make nor retain any copies of such materials
without the prior written consent of the Board of Directors of the Company.
(g) NOTICE OF OBLIGATIONS. Employee hereby consents to the
notification of persons or entities of Employee's obligations under this
Agreement when the Company, its successors or assigns, reasonably believe
that Employee's activities are likely to be restricted by this Agreement.
The Company's rights under this Section 6(g) shall be in addition to and not
in preemption of all other rights and privileges the Company, its successors
and assigns, may have under general legal and equitable principles, or by
statute or common law.
5
(h) CUMULATIVE PROVISIONS. The covenants and agreements contained
in this Section 6 are independent of each other and cumulative.
(i) BINDING EFFECT: THIRD PARTY BENEFICIARIES. The provisions of
this Section 6 shall inure to the benefit of the Company, its successors and
assigns. The provisions of this Section 6 shall inure to the benefit of and
be binding upon Employee, his heirs, personal representatives, successor and
assigns.
(j) REMEDIES FOR BREACH. Employee further acknowledges and agrees
that his obligations under this Agreement are unique and that any breach or
threatened breach of such obligations may result in irreparable harm and
substantial damages to the Company, its successors and assigns. Accordingly,
in the event of a breach or threatened breach by Employee of any of the
provisions of this Agreement, the Company, its successors and assigns shall
have the right, in addition to exercising any other remedies at law or equity
which may be available to it under this Agreement or otherwise to: (i) obtain
EX PARTE, preliminary, interlocutory, temporary or permanent injunctive
relief, specific performance and other equitable remedies in any court of
competent jurisdiction to prevent Employee from violating such provision or
provisions or to prevent the continuance of any violation thereof, TOGETHER
WITH an award or judgment for any and all damages, losses, liabilities,
expenses and costs incurred by the Company, its successors and assigns as a
result of such breach or threatened breach including, but not limited to
attorneys' fees incurred by the Company, its successors and assigns in
connection with, or as a result of, the enforcement of this Agreement; and
(ii) discontinue any or all of the consideration provided in Sections 3 and 5
of this Agreement, other than unpaid compensation or benefits already earned
or accrued. Employee expressly waives any requirement based on any statute,
rule or procedure, or other source, that the Company, its successors or
assigns post a bond as a condition to obtaining any of the above described
remedies.
(k) DIVISIBILITY. Employee agrees that the provisions of this
Section 6 are divisible and separable so that if any provision or provisions
hereof shall be held to be unreasonable, unlawful or unenforceable, such
holding shall not impair the remaining provisions hereof. If any provision
hereof is held to be unreasonable, unlawful or unenforceable in duration,
geographical scope or character of restriction by any court of competent
jurisdiction, it is the express desire and agreement of Employee that such
provision shall be modified to the extent necessary in order that any such
provision or portion thereof shall be legally enforceable to the fullest
extent permitted by law, and the parties hereto do hereby expressly authorize
any court of competent jurisdiction to enforce any such provision or portion
thereof or to modify any such provision or portion thereof in order that any
such provision or portion thereof shall be enforced by such court to the
fullest extent permitted by applicable law.
7 COOPERATION AND OTHER MATTERS. Except as may be required by
law, Employee agrees that he shall:
6
(a) not make any public statements, whether written or oral, or
any other statements which Employee reasonably believes are likely to become
public, which statements disparage the Company, its successors and assigns;
(b) not waive any privileges or confidences that the Company, its
successors and assigns may have with respect to any information or
communications with its attorneys or accountants;
(c) not disclose to any person the terms of this Agreement
excepting disclosures to (i) Employee's immediate family members; (ii)
persons undertaking an evaluation of Employee for purposes of extending
credit to him; and (iii) Employee's attorneys and accountants and personal
advisors, and (iv) as may be necessary to enforce the terms of this Agreement;
(d) not encourage or promote litigation against the Company, its
successors and assigns;
(e) not communicate with any person, or the attorney or
representative of any person, who Employee reasonably believes to be
contemplating or pursuing litigation against the Company, its successors or
assigns. Nothing contained herein shall be deemed to prohibit Employee from
communicating (i) with any attorney regarding his personal affairs; and (ii)
responding to, and complying with, any subpoena served upon Employee;
provided, however, that Employee shall first notify the Company, its
successors and assigns, immediately of his receipt of any such subpoena; and
(f) cooperate with the Company, its successors and assigns, in:
(A) its investigation, defense or prosecution of any potential or actual
claim, charge or suit, or investigation by or against the Company, its
successors or assigns; and (B) any inquiry, review or investigation of
business matters or undertakings of the Company, its successors or assigns.
As used herein, the term "cooperate" means: (A) making himself available
from time to time for meetings with counsel to the Company, its successors
and assigns at the Company's reasonable request; (B) not communicating with
parties known to be adverse to the Company, its successors or assigns, or
their counsel, except by way of deposition or trial testimony, or purely
social communications; (C) making himself available for depositions and trial
testimony upon the reasonable instruction of counsel to the Company, it
successors or assigns; and (D) executing those documents and truthful
affidavits requested from time to time by counsel to the Company, its
successors or assigns. The Company agrees to reimburse the Employee for
reasonable out of pocket expenses including for travel, hotel and meal
expenses, incurred in connection with his cooperation under this subsection
(f); and
(g) agrees that the obligations under Sections 6 and 7 are in
addition to, and not in limitation or preemption of, all other obligations
which Employee may have to the Company, its successors and assigns under
general legal and equitable principals or by statute or common law.
7
8 MISCELLANEOUS.
(a) AFFILIATE DEFINITION. "Affiliate" shall mean any person, firm
or corporation which directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with,
the persons specified.
(b) COMPANY, SUCCESSORS AND ASSIGNS DEFINITIONS. "The Company,
its successors and assigns" shall mean the Company and its past, present and
future affiliates, divisions, subsidiaries, facilities, parents, successors,
predecessors and assigns, and their respective past, present and future
officers, directors, managers, shareholders, agents, representatives,
attorneys and employees. "The Company, its successors or assigns" shall mean
the Company and/or its past, present and future affiliates, divisions,
subsidiaries, facilities, parents, successors, predecessors and assigns, and
their respective past, present and future officers, directors, managers,
shareholders, agents, representatives, attorneys and employees.
(c) AMENDMENTS. This Agreement may be amended only by a writing
executed by each of the parties hereto.
(d) ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter
hereof, and supersedes all prior contracts, agreements, arrangements,
communications, discussions, representations and warranties, whether oral or
written, between the parties other than any confidentiality agreement
executed by Employee while an employee of the Company.
(e) LAW AND INTERPRETATION. This Agreement shall be governed by,
construed and interpreted in accordance with the laws of the State of
Pennsylvania. With respect to each and every term and condition in this
Agreement, the parties understand and agree that the same have or has been
mutually negotiated, prepared and drafted, and that if at any time the
parties hereto desire or are required to interpret or construe any such term
or condition or any agreement or instrument subject hereto, no consideration
shall be given to the issue of which party hereto actually prepared, drafted
or requested any term or condition of this Agreement or any agreement or
instrument subject hereto.
(f) NOTICES. Any notice, request or other communication required
or permitted hereunder shall be in writing and shall be deemed to have been
duly given (a) when received if personally delivered, (b) within 12 hours
after being sent by telecopy, with telecopy confirmation, and (c) when
received (as established by written receipt) if sent by established overnight
courier to the parties (and to the persons to whom copies shall be sent) at:
Xxxxxx-Xxxxxx, Inc.
000 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxx Xxxxxxxxx Center
Xxxxxx-Xxxxx, Pennsylvania 18702-6980
Attention: Xxxx Xxx Xxxxxxxxxxxx
8
Telecopy No.: (000) 000-0000
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of
which together shall constitute one and the same instrument.
(h) ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, assigns
and heirs, as set forth herein, but no rights, obligations or liabilities
hereunder shall be assignable by Employee without the prior written consent
of the Company, its successors and assigns.
(i) WAIVERS AND AMENDMENTS. This Agreement may be amended,
superseded, canceled, renewed or extended, and the terms hereof may be
waived, only by a written instrument signed by the parties or, in the case of
a waiver, by the party waiving compliance. No delay on the part of either
party in exercising any right, power or privilege hereunder shall operate as
a waiver thereof, nor shall any waiver on the part of either party of such
right, power or privilege nor any single or partial exercise of any such
right, power or privilege, preclude any other further exercise thereof or the
exercise of any other such right, power or privilege.
(k) HEADINGS. The headings in this Agreement are solely for
convenience of reference and shall not be given any effect in the
construction or interpretation of this Agreement.
(l) EXPENSE REIMBURSEMENT. The Company will reimburse Employee for
the reasonable fees of Employee's attorney in connection with such attorney's
review of this Agreement and consultation with Employee on its implications.
IN WITNESS WHEREOF, Employee has executed, and the Company has
caused its duly authorized representative to execute, this Agreement as of
the date first above written.
Xxxxxx-Xxxxxx, Inc.
By-------------------------------------
---------------------------------------
[TO COME]
9
EXHIBIT 1
RELEASE AND SETTLEMENT AGREEMENT
This Release and Settlement Agreement is entered into as of the __ day
of ____, ____ (hereinafter "Effective Date") by and between Xxxxxx-Xxxxxx,
Inc. (hereinafter "Company") and ___________________ (hereinafter "Employee").
WHEREAS, the Employee has terminated his employment with the Company and
the Company and Employee have agreed to resolve all matters between them;
NOW, THEREFORE, in consideration of the promises of the parties to this
Agreement, including but not limited the Company's agreement to pay Employee,
subsequent to his termination, the Termination Payments set forth in Section
3 of his Employment Agreement, the Company and Employee agree as follows:
1 RELEASE (a) As a condition to receipt of the Termination Payments
and Benefits set forth in Section 5 of the Employment Agreement dated as of
_____________ ("Employment Agreement"), except as provided in subsection (c)
of this Section 1, Employee, on behalf of himself, and his heirs, executors,
administrators, successors, agents and assigns, hereby
(i) acknowledges that the payments and continuing benefits set forth in
Section 4(c) and 5 of the Employment Agreement constitute valid consideration
for this Agreement, satisfy in full any and all of Employee's rights with
respect Employee's employment with the Company, and termination of such
employment, and discharge in full all of the Company's obligations to
Employee including, without limitation, salary or vested or accrued vacation
pay, bonuses, benefits, perquisites and any amounts payable under any other
plan, policy or agreement entered into, provided by or relating to the
Company; and
(ii) fully releases and forever discharges the Company, JP Foodservice,
Inc. and their respective past, present and future affiliates, divisions,
subsidiaries, facilities, parents, predecessors, successors, and assigns, and
each of their officers, directors, managers, shareholders, agents,
representatives, attorneys and employees, (hereinafter collectively referred
to as the "Released Parties"), from any claims, demands, liabilities,
obligations, charges, damages and causes of action, known or unknown, fixed
or contingent, suspected or unsuspected, arising prior to the Effective Date,
with respect to Employee's position as a stockholder, officer or director, or
with respect to his employment or termination of employment with the Company,
or any policy, practice, plan or program of the Company, its successors or
assigns, or which may be based upon, related to, or connected therewith,
including, but not limited to, any claim or action under any of the following
(as amended): Title VII of the Civil Rights Act of 1964, the Civil Rights
Act of 1866, the National Labor Relations Act, the Fair Labor Standards Act,
the Employee Retirement Income Security Act, the Labor Management Relations
Act, the Age Discrimination in Employment Act ("ADEA"), the Older Workers
Benefit
1
Protection Act, the Civil Rights Act of 1991, the Worker Adjustment and
Retraining Notification Act, the Americans with Disabilities Act, the
Pennsylvania Human Rights Act, the Pennsylvania Wage Payment and Collection
Act, all federal, state and local antidiscrimination statutes, federal common
law, state common law, and/or any federal, state or local statute, law,
ordinance, regulation or order, and claims under any express or implied
contract which Employee or his heirs, executors, administrators, successors,
agents or assigns may claim exist or existed with the Company or against any
of the Released Parties.
(iii) agrees that the release set forth in this Section 1(a)(ii) shall
also specifically and expressly apply to and forever discharge any claims,
demands, liabilities, obligations, charges, damages and causes of action,
known or unknown, fixed or contingent, suspected or unsuspected, whether as
an employee or shareholder, and every other capacity, relating in any way to:
(a) the Approval of the Board of Directors of the Company to merge with JP
Foodservice, Inc. ("Company Merger Approval"); (b) the Approval by the Board
of Directors of JP Foodservice, Inc. to merge with the Company ("JP Merger
Approval"); (c) the Agreement and Plan of Merger by and among JP Foodservice,
Inc., Xxxxxx Acquisition Corp. and Xxxxxx-Xxxxxx, Inc. dated as of June 30,
1997 ("Merger Agreement"); (d) the merger between the Company and JP
Foodservice, Inc. ("Merger"); (e) the Exchange of Stock between the Company
and JP Foodservice, Inc. in connection with the Merger; and (f) any act,
failure to act, decision, approval, rejection, denial, matter, event,
occurrence or thing whatsoever by the Company, its successors or assigns,
arising from, related to, resulting from, as a consequence of, or in
connection with the Company Merger Approval, JP Merger Approval, the Merger
Agreement, the Merger or the Exchange of Stock, provided, however that
nothing herein shall affect the Employee's rights to receive the
consideration provided in the Merger Agreement in respect of his shares upon
the closing of the Merger on the same basis as all other stockholders.
(b) Employee covenants and agrees never to commence, voluntarily aid in
any way, prosecute, or authorize to be commenced against any other party, any
action or other proceeding based upon any claims, demands, causes of action,
obligations, damages, or liabilities which are being released by this
Agreement. Employee declares that, prior to the execution of this Agreement,
he has apprised himself of sufficient relevant data, either through experts
or other sources of his own selection, in order that he might intelligently
exercise his judgment in deciding whether to execute, and in deciding on the
contents of, this Agreement. Employee further declares that his decision is
not predicated on or influenced by any declaration or representations of the
Company, its successors and assigns, or any predecessors in interest.
Employee states that the contents of this Agreement have been explained to
him by his counsel and that this document is executed voluntarily with full
knowledge of its significance.
(c) Except as expressly set forth herein, this Agreement supersedes any
other agreement between Employee and the Company, provided, however, that
this release does not effect any waiver by Employee of any rights that he may
have (i) under applicable law which cannot be waived pursuant to this
Agreement, or (ii) pursuant to this Agreement. Furthermore, this Agreement
does not affect or supersede Employee's
2
Covenants to the Company made in the Employment Agreement, including but not
limited to Covenants set forth in Section 6 of the Employment Agreement.
(d) Nothing in this Agreement shall be construed as an admission by any
party as to any liability.
2 REAFFIRMATION OF COVENANTS. Employee hereby reaffirms his
obligations to the Company, its successors and assigns, under the Employment
Agreement, including but not limited to, the applicability and validity of
Sections 6, 7 and 8 of the Employment Agreement.
3 ASSERTION OF CLAIMS. Employee represents and warrants, with
the understanding that such representation and warranty is material to this
transaction, that (a) he is not aware of a person having asserted or having a
valid basis to assert, with any federal, state or local judicial or
administrative agency or body any claim against the Company, its successors
or assigns, of any kind or character based on or arising out of or alleged to
be suffered in or as a consequence of Employee's employment with the Company,
its termination, or his contacts or relationships with the Company or any
Released Party, and (b) Employee has no current intention to assert, in any
manner or by any means, any such claim before any federal, state or local
judicial or administrative agency or body. If any such claim is asserted in
the future by Employee or any person or entity authorized by Employee to do
so, Employee agrees and acknowledges that this Agreement and release set
forth in Section 3 hereof shall act as a total and complete bar to his
reemployment or to recovery of any sum or amount whatsoever from the Company,
its successors or assigns, whether labeled "award, liability, damages,
judgment, back pay, wages, or fine" or otherwise resulting directly or
indirectly from any lawsuit, remedy, charge or complaint whether brought
privately by him or by any one else, including any federal, state or local
agency, whether or not on his behalf or at his request.
4 REEMPLOYMENT. Employee hereby releases and waives any and all
rights or claims he may have to reemployment by the Company, its successors
and assigns, and agrees that he shall not reapply for any position with the
Company, its successors or assigns.
5 CONSIDERATION OF TERMS AND EFFECTIVE DATE.
EMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT,
THAT HE KNOWS AND UNDERSTANDS THE CONTENTS THEREOF AND THAT HE EXECUTES THE
SAME AS HIS OWN FREE, KNOWING AND VOLUNTARY ACT AND DEED. EMPLOYEE FURTHER
REPRESENTS AND ACKNOWLEDGES THAT HE HAS BEEN ADVISED BY THE COMPANY IN
WRITING TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT IF HE
CHOSE TO DO SO, THAT HE HAS HAD AN OPPORTUNITY TO CONSULT FULLY WITH HIS
PERSONAL ATTORNEY REGARDING THE TERMS OF THIS AGREEMENT, THAT HE FULLY
UNDERSTANDS THE TERMS, CONDITIONS, AND FINAL BINDING
3
EFFECT OF THIS AGREEMENT, AND THAT THE RELEASE CONTAINED HEREIN IS A RELEASE
OF ALL CLAIMS WITH FINAL AND BINDING EFFECT.
EMPLOYEE ACKNOWLEDGES THAT HE HAS BEEN GIVEN A PERIOD OF AT LEAST
21 DAYS WITHIN WHICH TO CONSIDER THIS AGREEMENT PRIOR TO HIS EXECUTION
HEREOF. FURTHERMORE, IT IS AGREED THAT EMPLOYEE SHALL HAVE THE RIGHT TO
REVOKE THIS AGREEMENT BY WRITTEN NOTICE TO THE COMPANY WITHIN SEVEN DAYS
FOLLOWING ITS EXECUTION. FOR THIS REVOCATION TO BE EFFECTIVE, WRITTEN NOTICE
MUST BE RECEIVED BY THE COMPANY'S CHIEF EMPLOYEE OFFICER NO LATER THAN THE
CLOSE OF BUSINESS ON THE SEVENTH DAY AFTER EMPLOYEE SIGNS THIS AGREEMENT.
IF EMPLOYEE DOES SO REVOKE, THIS AGREEMENT WILL BE NULL AND VOID
AND, SUBJECT TO APPLICABLE LAW, THE COMPANY SHALL HAVE NO OBLIGATION
WHATSOEVER TO EMPLOYEE, AND EMPLOYEE WILL NOT RECEIVE THE CONSIDERATION
DESCRIBED IN SECTION 1.
THIS AGREEMENT SHALL NOT BECOME EFFECTIVE AND ENFORCEABLE UNTIL
AFTER THE EXPIRATION OF THIS SEVEN-DAY REVOCATION PERIOD; AFTER SUCH TIME, IF
THERE HAS BEEN NO REVOCATION, THIS AGREEMENT SHALL BE FULLY EFFECTIVE AND
ENFORCEABLE. IF THIS AGREEMENT IS REVOKED BY EMPLOYEE IN ACCORDANCE WITH THIS
SECTION 5, EMPLOYEE SHALL RETURN TO THE COMPANY ALL CONSIDERATION AND
BENEFITS PROVIDED BY THE COMPANY TO WHICH EMPLOYEE WOULD NOT BE ENTITLED
ABSENT THIS AGREEMENT.
6 ACKNOWLEDGEMENT AND CONSIDERATION. The consideration
described in Section 1 is being provided in return for Employee's providing
this release and not revoking under Section 5 so that this release becomes
effective. Employee acknowledges that the payments set forth in Section 1 is
more than the Company is required to provide under its normal policies and
procedures, and any existing agreements between Employee and the Company or
its successors or assigns, and is an amount to which he would not otherwise
be entitled by virtue of any contract, Company policy or practice, or any
federal, state or local statute, ordinance, order or law.
7 LEGAL FEES AND EXPENSES. In the event of litigation between
the parties regarding interpretation or enforcement of this release, the
parties agree that the prevailing party shall be entitled to recover
reasonable attorneys' and related fees and expenses incurred in connection
with the litigation.
8 NO AUTHORITY OR RESPONSIBILITY. Employee acknowledges that he
shall have no supervisory, managerial or agency responsibility or authority
from and after the Termination Date and agrees not to involve himself in any
activities of the Company, except as may be requested below by the Chairman,
President and Chief Employee
4
Officer of the Company. Employee also acknowledges that effective as of the
termination of his employment, he does not have authority to bind the Company
to any contracts or commitments and agrees that he shall not create any
obligation for or bind or attempt to bind the Company, its successors or
assigns, in any manner whatsoever.
9 MISCELLANEOUS.
(a) AFFILIATE DEFINITION. "Affiliate" shall mean any person, firm
or corporation which directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with,
the persons specified.
(b) LAW AND INTERPRETATION. This release shall be governed by,
construed and interpreted in accordance with the laws of the State of
Pennsylvania. With respect to each and every term and condition in this
release, the parties understand and agree that the same have or has been
mutually negotiated, prepared and drafted, and that if at any time the
parties hereto desire or are required to interpret or construe any such term
or condition or any agreement or instrument subject hereto, no consideration
shall be given to the issue of which party hereto actually prepared, drafted
or requested any term or condition of this Agreement or any agreement or
instrument subject hereto.
IN WITNESS WHEREOF, Employee has executed this release as of the
date first above written.
---------------------------------------
[NAME OF EMPLOYEE]
5
EXHIBIT C
July__,1997
Xxxxxxx Xxxxxxxx
Executive Director
The Luzerne Foundation
[ADDRESS]
Dear Xx. Xxxxxxxx:
Xxxxxx-Xxxxxx, Inc. is pleased to announce that it has decided to
make a $100,000 per year contribution of cash or in-kind services (valued at
cost) to The Luzerne Foundation ("Foundation") for each of 1997, 1998, 1999,
2000, and 2001. In-kind services may include office space, salary and
benefits for an Executive Director and/or other such positions as the
Foundation may need, and payment of reasonable expenses associated with
travel or other Foundation business.
We look forward our continued relationship with the Foundation.
Very truly yours,
Xxxx Xxx Xxxxxxxxxxxx
Xxxxxx-Xxxxxx, Inc.
