July 18, 1996
Xx. Xxxx X. Xxxxx
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxx 00000
Dear Xxxx:
This letter will serve as our formal agreement with respect to
your resignation from employment with Xxxxxxx Worldwide Associates, Inc.
("JWA"). In return for your compliance with all of the terms of this
letter JWA will provide the separation arrangements set forth in this
letter.
1. Resignation from Employment. Your employment with JWA,
including your duties as an Executive Officer, shall cease as of Monday,
June 24, 1996. You will resign effective as of that date, from all
positions with JWA, and each of its divisions and subsidiaries, including
positions as an officer and director, and as a member of any committee or
administrative body relating to JWA and its businesses. You will provide
JWA with such written resignations as JWA may request.
2. Compensation Following Termination Date. (a) Upon execution
of this letter JWA will pay to you separation payments in the amount of
Twenty-Eight Thousand Three Hundred Thirty-three and 34/100 Dollars
($28,333.34) net of applicable payroll and withholding taxes, on a monthly
basis for twelve (12) pay periods. The aggregate gross amount of such
payments shall be Three Hundred Forty Thousand Dollars ($340,000.00). JWA
will initiate separation payments within ten (10) days of your execution
of this agreement.
(b). JWA shall make outplacement services available, without
charge to you, through Right/Xxxxxxxx Xxxx for the twelve (12) consecutive
month period ending June 30, 1997.
3. Group Benefits. (a) Your group employee medical, life,
and disability coverage will terminate on your resignation date, and any
continuation or conversion rights under these programs are then available
for the periods prescribed under each program. You will pay the full
costs of any group benefits continued or converted. This letter agreement
does not affect your rights to vested benefits under JWA's 401(k)/deferred
profit sharing plan and any benefit entitlements arising out of your
employment by S. C. Xxxxxxx & Sons, Inc. In addition, you are eligible
for any deferred profit sharing (retirement contribution) that will be
paid to JWA employees for the fiscal year ending September 27, 1996.
(b) Your participation in the Flexible Perquisite Spending
Account program will terminate on your resignation date. You will be
reimbursed for qualified expenses incurred as of your resignation date.
XXX's reimbursement for the cost of your S. C. Xxxxxxx & Son, Inc. monthly
retiree health premium of One Hundred Seventy-eight Dollars ($178.00) will
continue for twelve (12) consecutive months following your resignation
date and will then terminate.
4. JWA Restricted Stock and Stock Options; Supplemental
Retirement Income. (a) You are now vested in Sixteen Thousand Six
Hundred Sixty-Six and 67/100 (16,666.67) shares of restricted stock
granted to you under the 1986 Restricted Stock Plan. JWA will immediately
arrange for the transfer agent to issue to you a certificate without the
restrictive legend for such shares. You shall also be deemed to be fully
vested in your remaining Three Thousand Three Hundred and 33/100
(3,333.33) shares of restricted stock, granted to you under the 1986
Restricted Stock Plan, on the tenth calendar day following your execution
of this agreement. JWA will, immediately following such date, arrange for
the transfer agent to issue to you a certificate for such shares without
the restrictive legend. You are responsible for compliance with all
securities laws, including those regarding xxxxxxx xxxxxxx, with regard to
any JWA stock transactions.
(b) You are seventy-five percent (75%) vested in Thirty-five
Thousand (35,000) shares of the stock option grant awarded to you under
the Amended and Restated 1986 Stock Option Plan on October 1, 1992; you
are seventy-five percent (75%) vested in Five Thousand (5,000) shares of
the stock option grant awarded to you under that plan on December 16,
1992; and you are fifty percent (50%) vested in Twenty-five Thousand
(25,000) shares of the stock option grant awarded to you under that plan
on December 10, 1993. You are thirty-three and one-third percent (33-
1/3%) vested in Twenty-five Thousand (25,000) shares of the stock option
grant awarded to you under the 1994 Long-Term Stock Incentive Plan. Your
vested stock options are exercisable in accordance with the terms of the
Plans and must be exercised no later than the close of business on July
24, 1996. Your nonvested stock options are forfeited and canceled as of
June 24, 1996.
(c) You shall remain entitled to receive any vested
supplemental retirement benefits payable to you or on your behalf under
that certain agreement between you and JWA dated December 16, 1992.
5. Noncompetition. (a) Except as provided by this paragraph
5, there will be no restrictions on your ability to enter into employment
with, be a sole proprietor or partner of, render services to, act as a
consultant to or hold an equity interest in, any entity or person. In
further consideration for the payments and benefits provided hereunder,
particularly the additional compensation described in paragraph 2, you
agree that during the period beginning on your resignation date and ending
January 31, 1998 (the "Restricted Period"), regardless of whether you have
forfeited rights under this agreement due to breach of its terms, you will
not, without the prior written consent of the Chairman of the Board of
JWA, be employed directly or indirectly by, be a sole proprietor or
partner of, or act as a consultant to Brunswick Corp., Xxxxxxx Co., Inc.,
or Outdoor Technologies Group, or any of their respective subsidiaries or
affiliates, in any capacity where confidential information concerning JWA
which was acquired by you during your employment with JWA would reasonably
be considered to be useful; neither will you, directly or indirectly make
sales solicitations to any person, corporation, partnership or other
business entity which is, at the present time and at the time of such
sales solicitation, a customer or prospective customer of JWA and/or its
subsidiaries or affiliates, if the effect of such action would be likely
to cause such customer to substantially reduce existing or future business
relationships with or purchases from JWA.
(b) You further agree to reasonably cooperate with JWA, its
financial and legal advisors and/or government officials, in any claims,
investigations, administrative proceedings including without limitation
environmental proceedings, lawsuits, and other legal, internal or business
matters, as reasonably requested by JWA during the Restricted Period and
for two (2) years thereafter. You will be paid one thousand dollars
($1,000) (in addition to any other amounts to which you may be entitled
hereunder) for each day on which such service is performed at the request
of JWA and, to the extent you incur travel or other expenses with respect
to such activities, JWA will reimburse you for such reasonable expenses
when submitted according to regular corporate procedures.
(c) You agree that JWA will suffer irreparable damage in the
event the provisions of this paragraph 5 are breached and your acceptance
of the provisions of this paragraph 5 was a material factor in your
decision to enter into this letter agreement. You further agree that JWA
shall be entitled as a matter of right to injunctive relief to prevent a
breach by you. Resort to such equitable relief, however, shall not
constitute a waiver of any other rights or remedies JWA may have. In
addition to such equitable relief, and not in limitation of any other
rights or remedies JWA may have, if you breach the provisions of this
paragraph 5 during the Restricted Period JWA shall have the remedies set
forth in paragraph 8 hereof.
6. Nonsolicitation: Confidentiality. (a) You agree that
during the Restricted Period, regardless of whether you have forfeited
rights under this agreement due to breach of its terms, you shall not,
except as provided herein, directly or indirectly solicit for employment
or advise or recommend to any other person that he or she solicit for
employment any person employed at that time by JWA, its subsidiaries or
affiliates. You further agree at all times, whether during the Restricted
Period and for two (2) years thereafter, not to exploit, use, sell,
publish, disclose, communicate or divulge to any person any trade secrets
or confidential information, knowledge or data regarding JWA, its
subsidiaries or affiliates or any of their respective directors, advisors,
officers, employees or agents for so long as such trade secrets or
confidential information, knowledge, or data have not become generally
known to the public or JWA's competitors without your fault or
participation. Good faith negotiations by you, on behalf of yourself or a
principal, for the purchase of goods and/or services from JWA, or any
affiliate of the Company, shall be deemed not to be a violation of the
prohibitions set forth in the preceding sentence. Nothing in this
agreement modifies or reduces your obligation to comply with applicable
laws relating to trade secrets, confidential information, or unfair
competition. You agree that JWA will suffer irreparable damage in the
event the provisions of this paragraph 6 are breached and that your
acceptance of the provisions of this paragraph 6 was a material factor in
your decision to enter into this letter of agreement. You further agree
that JWA shall be entitled as a matter of right to injunctive relief to
prevent a breach by you. Resort to such equitable relief, however, shall
not constitute a waiver of any other rights or remedies JWA may have. In
addition to such equitable relief, and not in limitation of any other
rights or remedies JWA may have, if you breach the provisions of this
paragraph 6 during the Restricted Period JWA shall have the remedies set
forth in paragraph 8 hereof. The provisions of this paragraph 6 shall not
apply to any truthful statement required to be made by you in any legal
proceeding or government or regulatory investigation, provided, however,
that prior to making such statement you will give JWA reasonable notice
and, to the extent you are legally entitled to do so, afford JWA the
ability to seek a confidentiality order.
(b) You represent and warrant that you have delivered to JWA
the original and all copies of all documents, records, including computer
disk records, and property of any nature whatsoever which are in your
possession or control and which are the property of JWA or which relate to
the business activities, facilities, or customers of JWA, its
subsidiaries, or its affiliates, including any records, documents or
property created by you. You further understand that all designs,
improvements, writings, and discoveries made by you during your employment
and pertaining to the business of JWA, its subsidiaries, or its affiliates
shall be the exclusive property of JWA.
7. Release and Covenants. (a) In consideration of the
payments and benefits provided hereunder, particularly the additional
compensation described in paragraph 2, you, on behalf of yourself, your
spouse, heirs, executors, administrators, agents, successors, assigns and
representatives of any kind (hereinafter collectively referred to as the
"Releasors") confirm that Releasors have released JWA, and each of its
subsidiaries, affiliates, their employees, successors, assigns, executors,
trustees, directors, advisors, agents and representatives, and all their
respective predecessors and successors (hereinafter collectively referred
to as the "Releasees"), from any and all actions, causes of actions,
charges, debts, liabilities, accounts, demands, damages and claims of any
kind whatsoever including, but not limited to, those arising under any
labor, employment discrimination (including, without limitation, the Age
Discrimination in Employment Act of 1967, as amended, Title VII of the
Civil Rights Act of 1964, as amended, the Americans with Disabilities Act,
the Wisconsin Fair Employment Act, as amended), contract or tort laws,
equity or public policy, or negligence standard, whether certain or
speculative, which against any of the Releasees, any of the Releasors ever
had, now has, or hereafter shall have or can have. You further covenant
that you will not initiate any action, claim or proceeding against any of
the Releasees for any of the foregoing, nor will you participate, assist,
or cooperate in any such action, claim, or proceeding unless required to
do so by law.
(b) Notwithstanding the foregoing, this letter agreement does
not waive rights, if any, you or your successors and assigns may have
under or pursuant to, or release any member of Releasees from obligations,
if any, it may have to you or to your successors and assigns on claims
arising out of, related to or asserted under or pursuant to, this letter
agreement or any indemnity agreement or obligation contained in or adopted
or acquired pursuant to any provision of the charter or by-laws of JWA or
its subsidiaries or affiliates or in any applicable insurance policy
carried by JWA or its affiliates for any matter which arises or may arise
in the future in connection with your employment with JWA.
(c) You hereby acknowledge that you have at least twenty-one
(21) days to review this letter agreement from the date you first receive
it and you have been advised to review it with an attorney of your choice.
You further understand that the twenty-one (21) day review period ends
when you sign this agreement. You also have seven (7) days after your
signing of this agreement to revoke by so notifying JWA in writing. Any
revocation by you under this paragraph 7(c), however, is not effective
with regard to paragraph 1 hereof and your termination of employment with
JWA shall remain in effect as set forth therein. You further acknowledge
that you have carefully read this letter agreement, know and understand
the contents thereof and its binding legal effect. You sign the same of
your own free will and act, and it is your intention that you be legally
bound thereby.
(d) You agree to keep this letter agreement confidential and
not to reveal its contents to anyone other than your attorney, financial
consultant, and immediate family members. The provisions of this
paragraph 7(d) shall not apply to any truthful statement required to be
made by you in any legal proceeding or government or regulatory
investigation, provided, however, that prior to making such statement you
will give JWA reasonable notice and, to the extent you are legally
entitled to do so, afford JWA the ability to seek a confidentiality order.
8. Noncompliance. The additional payments and benefits
provided to you pursuant to paragraphs 2, 3(b), and 4(a) are conditioned
upon your compliance with all of the terms and conditions of this letter
agreement, particularly paragraphs 5, 6, and 7, above. Each of the
aforementioned provisions are material terms of this letter agreement, and
in the event of any violation of any such provision of this letter
agreement by you or anyone acting at your direction or in the event you or
anyone acting at your direction at any time shall substantially denigrate
any of the Releasees, including without limitation by way of news media or
the expression to news media of personal views, opinions or judgments, JWA
shall be entitled to treat your employment as being immediately terminated
for all purposes of this letter agreement and to withhold and terminate
all aforementioned payments provided or to be provided in paragraphs 2,
3(b), and 4(a) above, and you agree to repay to JWA all payments paid to
you pursuant to such paragraphs and/or JWA shall be entitled to recover
any of the amounts paid to you pursuant to such paragraphs without waiving
the right to pursue any other available legal or equitable remedies.
9. Tax Payments, Withholding and Reporting. You recognize
that the payments and benefits provided under this letter agreement
including without limitation those provided pursuant to paragraph 2 may
result in taxable income to you which JWA and its affiliates will report
to their appropriate taxing authorities. JWA and its affiliates shall
have the right to deduct from any payment made under this letter agreement
to you any federal, state, local or other income, employment or other
taxes it determines are required by law to be withheld with respect to
such payments or benefits provided hereunder or to require payment from
you which you agree to pay upon demand, for the purpose of satisfying any
such withholding requirement.
10. Severability. In the event any one or more of the
provisions of this letter agreement (or any part thereof) shall for any
reason be held to be invalid, illegal or unenforceable, the remaining
provisions of this letter agreement (or part thereof) shall be unimpaired,
and the invalid, illegal or unenforceable provision (or part thereof)
shall be replaced by a provision (or part thereof), which, being valid,
legal and enforceable, comes closest to the intention of the parties
underlying the invalid, illegal or unenforceable provisions. However, in
the event that any such provision of this letter agreement (or part
thereof) is adjudged by a court of competent jurisdiction to be invalid,
illegal or unenforceable, but that the other provisions (or part thereof)
are adjudged to be valid, legal and enforceable if such invalid, illegal
or unenforceable provision (or part thereof) were deleted or modified,
then this letter agreement shall apply with only such deletions or
modifications, or both, as the case may be, as are necessary to permit the
remaining separate provisions (or part thereof) to be valid, legal and
enforceable.
11. Indemnification. JWA shall indemnify you and your
successors and assigns against all Liabilities (as now defined in JWA's
bylaws) incurred by you or on your behalf in connection with any
Proceeding (as now defined in JWA's bylaws) in which you are a Party (as
now defined in JWA's bylaws) because you were a director or officer of
JWA, to the fullest extent permitted or required by the Wisconsin Business
Corporation Law, notwithstanding any amendment that may hereafter be made
to the charter or bylaws of JWA.
12. Other Provisions. All the terms of our agreement are
embodied in this letter agreement, which incorporates by reference JWA's
1986 Restricted Stock Plan and Amended and Restated 1986 Stock Option
Plan, the Xxxxxxx Worldwide Associates, Inc. 1994 Long-Term Stock
Incentive Plan, and the supplemental retirement benefits agreement
referred to in paragraph 4(c), and it fully supersedes any and all prior
agreements or understandings between you and any Releasee. This letter
agreement shall be governed by the substantive laws of the State of
Wisconsin without regard to its conflict of laws provisions. The parties
agree that any proceeding to resolve any dispute arising hereunder will be
brought only in the courts of the State of Wisconsin or in the courts of
the United States of America for the Eastern District of Wisconsin, and
that each party irrevocably submits to such jurisdiction, and hereby
waives any and all objections as to venue, inconvenient forum and the
like. It is the intention of the parties hereto, however, that to the
extent practicable, the parties will endeavor to settle any dispute
arising hereunder first through the process of non-binding mediation to be
conducted in Milwaukee, Wisconsin. This agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
legal representatives, successors and assigns.
If you find that the foregoing satisfactorily states our mutual
understanding, please sign and date the enclosed copy of this letter
agreement in the spaces indicated below and return it to me.
Sincerely yours,
XXXXXXX WORLDWIDE ASSOCIATES, INC.
By
Xxxxxxx X. Xxxxxx
Its Chairman, Compensation Committee
of the Board of Directors
Agreed and Accepted this ________ day of _________________, 1996.
Xxxx X. Xxxxx
