EX-10.1 2 dex101.htm RELEASE AND SEVERANCE AGREEMENT RELEASE AND SEVERANCE AGREEMENT
Exhibit 10.1
RELEASE AND SEVERANCE AGREEMENT
This Release and Severance Agreement (this”Agreement”) is made as of March 6, 2006 by and between Trex Company, Inc., a Delaware corporation (“Trex”), and Xxxxxx X. Xxxxx, an individual residing at 00000 Xxxx Xxxxxxxxxx Xxxxx, Xxxxx Xxxxx, XX 00000 (“Employee”).
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be paid in equal bi-weekly installments in accordance with Trex’s regular payroll practices existing as of the date hereof, with payments to begin on Trex’s first regular payroll date after the seven (7) day waiting period set forth in Section 28 has expired, and to continue on Trex’s regular payroll dates thereafter until fully paid. |
4. | Tax Gross-Up. Trex shall make Employee whole on the amount of any tax liability incurred by Employee in 2005 as a result of Employee’s relocation to Virginia from New Jersey, as well as for the automobile leased by Trex for Employee’s use, in each case to the extent Trex has not already made Employee whole for such liability. |
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10. | Automobile. Trex shall reimburse Employee $3,450 in connection with the deposit previously paid by or on behalf of Employee for the automobile leased by Trex for Employee’s use, it being acknowledged and agreed by the parties that Employee has returned such automobile to Trex or the applicable leasing company. |
11. | Waiver and Release of Claims. |
a. | In consideration of the commitments undertaken by Trex and outlined in this Agreement, Employee, for himself, his attorneys, heirs, executors, administrators, successors, and assigns, does hereby fully and forever release and discharge the Trex Affiliates and all of their subsidiaries, affiliate corporations and all related entities, as well as all of their predecessors, successors, assigns, directors, officers, agents, employees, former employees, insurers and attorneys (hereinafter “Releasees”) from all suits, causes of action, and/or claims, demands or entitlements of any nature whatsoever, whether known, unknown, or unforeseen, which he has or may have against the Releasees arising out of or in connection with his employment (and the termination thereof) by Trex, or any related event, transaction, or matter occurring or existing on or before the date of his execution of this Agreement. Employee agrees, without limiting the generality of this Release, not to file or otherwise institute any claim or lawsuit seeking damages and not to otherwise assert any claims that are lawfully released herein. Employee further hereby irrevocably and unconditionally waives any and all rights to recover any relief or damages concerning the claims that are lawfully released herein. Employee represents and warrants that he has not previously filed or joined in any such claims, demands or entitlements against the Releasees and that he shall indemnify and hold harmless the Releasees from all liabilities, claims, demands, costs, and/or expenses incurred as a result of any such claims. |
EMPLOYEE HEREBY ACKNOWLEDGES AND AGREES THAT THIS RELEASE IS A GENERAL RELEASE AND THAT BY SIGNING THIS AGREEMENT, HE IS SIGNING THIS RELEASE.
b. | This Release specifically includes, but is not limited to, all claims relating to Employee’s employment and the termination of that employment, all claims of breach of contract, employment discrimination (including, but not limited to, discrimination on the basis of race, sex, religion, national origin, age, disability or any other protected status, and coming within the scope of Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Americans with Disabilities Act, the Family & Medical Leave Act, the Virginia Human Rights Act, all as amended, or any other applicable state, federal, or local law), claims under the Employee Retirement Income Security Act, as amended, claims under the Fair Labor Standards Act, as amended, the Virginia Wage Payment Act, as amended (or any other applicable federal, state or local statute relating to payment of wages), and claims concerning recruitment, hiring, discharge, promotions, transfers, right to reemployment, wages, bonus or incentive pay, severance pay, stock, stock options, benefits due, |
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sick leave, holiday pay, vacation pay, life insurance, pension, 401(k) or other retirement plan, any other leave, group medical insurance, any other fringe benefits, worker’s compensation, termination, employment status, libel, slander, defamation, fraud, intentional or negligent misrepresentation and/or infliction of emotional distress, together with any and all tort, contract, or other claims which might have been asserted by Employee or on his behalf in any suit, charge of discrimination, or claim against the Releasees. |
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15. | Further Covenants. |
a. | Employee agrees not to make any public statement or statements concerning any Trex Affiliate or any of their business objectives, management practices, or other sensitive information without first receiving Trex’s written approval, it being understood, however, that, subject to the immediately succeeding sentence and Section 2 of the 2004 Agreement, Employee shall be permitted to discuss with prospective employers Employee’s duties and responsibilities at Trex. Employee agrees that he shall not make any disparaging, defamatory or denigrating statements regarding any of the Trex Affiliates or any of their businesses, employees, agents, officers or directors. |
b. | Trex agrees not to publicly disparage, defame or denigrate Employee in any way, and to make reasonable efforts to prevent its officers and directors from doing so as well by informing them of Trex’s obligation and commitment under this Section 15(b). “Publicly” means in any forum or context in which the statements are intended to or would reasonably be expected to be communicated or repeated to a broad audience. The term “publicly” is not intended to preclude purely private social conversation, but would encompass without limitation comments in a context in which they could reasonably be expected to gain wide or notable circulation either in Winchester, Virginia or in executive corporate ranks generally or, in the case of comments by Trex with respect to Employee, become known by an actual or prospective employer. Nothing in this Section 15(b) shall prevent Trex from (i) responding publicly to incorrect, disparaging, defamatory or derogatory public statements or reports after a request for a retraction has been made by Trex and refused by Employee, to the extent reasonably necessary to correct or refute any such public statement or report, or (ii) making any truthful statement to the extent (A) necessary with respect to any litigation, arbitration or mediation involving this Agreement or any Equity Award, including, but not limited to, the enforcement of this Agreement or (B) required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with apparent or actual jurisdiction to order such person to disclose or make accessible such information. In addition, Trex agrees to respond to any inquiries about the reasons for Employee’s separation from Trex with a statement substantially similar to the following: |
“Trex has reorganized its executive management team and eliminated the position of SVP of Sales & Marketing. As a result, Xxxxxx Xxxxxxx will be performing as both COO and SVP of Sales & Marketing, and Xxxx Xxxxx departed. While Trex believes that this is a necessary and cost saving measure, Trex is sad to see Xx. Xxxxx leave. He has made valuable contributions during his tenure with Trex, and we will miss his leadership.”
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will reimburse Employee in accordance with its standard policies therefor for Employee’s out-of-pocket travel and other incidental expenses reasonably incurred by Employee incurred as a result of his cooperation pursuant to this Section 16. |
18. | Effect on Stock Options, Performance Shares and Restricted Stock. |
a. | The following is a full and complete list of the Trex equity compensation awards that Employee holds as of the Termination Date(collectively, the “Equity Awards”), all of which were granted under Trex’s Amended and Restated 1999 Stock Option and Incentive Plan (the “1999 Plan”) prior to the amendment and restatement of the 1999 Plan by Trex’s 2005 Stock Incentive Plan: |
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Number of Shares Remaining | Date of Grant | |||
Stock Option | 60,000 | July 9, 2004 | ||
Stock Option | 2,051 | Xxxxx 0, 0000 | ||
Xxxxx Option | 12,000 | March 9, 2005 | ||
Number of Unvested Shares | Date of Grant | |||
Restricted Stock | 1,159 | March 9, 2005 | ||
Number of Units | Date of Grant | |||
Performance Shares | 4,500 | March 9, 2005 |
b. | Employee’s termination of employment pursuant to this Agreement shall be considered a “termination” for the purpose of Section 10.4 of the 1999 Plan and, in accordance with Section 10.4 of the 1999 Plan, each of the Stock Option grants listed above shall terminate at the close of business on the ninetieth (90th) day following the Termination Date. |
c. | Employee shall be fully vested in the Restricted Stock grant listed above as of the Termination Date. |
d. | Employee’s Performance Share award listed above shall terminate as of the Termination Date in accordance with the terms and conditions of the 1999 Plan and his Performance Share Award agreement. |
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23. | Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia (excluding the choice of laws rules thereof). |
If to Trex:
Trex Company, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxx
If to Employee:
Xxxxxx X. Xxxxx
00000 Xxxx Xxxxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
with a copy (which shall not constitute notice) to:
Xxxxx X. Xxxxx, Esq.
Xxxxxx & Golden LLP
0 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
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/s/ Xxxxxx X. Xxxxx |
Xxxxxx X. Xxxxx |
TREX COMPANY, INC.
By: | /s/ Xxxxxxx X. Xxxxxxx | |
Xxxxxxx X. Xxxxxxx | ||
Chairman of the Board of Directors and Chief Executive Officer |
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