EXHIBIT 10.23
EXECUTIVE
EMPLOYMENT AGREEMENT
PREAMBLE
This Executive Employment Agreement defines the essential terms and
conditions of our employment relationship with you. The subjects covered
in this Agreement are vitally important to you and to the Company. Thus,
you should read the document carefully and ask any questions before
signing the Agreement. Given the importance of these matters to you and
the Company, all executives shall sign the Agreement as a condition of
employment.
This EMPLOYMENT AGREEMENT, dated and effective this 20th day of April 2004
is entered into by and between Xxxxxxxxxxx Industries, Inc. ("Company"), and
Xxxxx Xxxxxxxxx ("Executive").
WITNESSETH:
WHEREAS, the Company is an Indiana corporation engaged through its various
subsidiary entities in the death care, healthcare and funeral services
industries throughout the United States and abroad;
WHEREAS, the Company is willing to employ Executive in an executive
capacity and Executive desires to be employed by the Company in such capacity
based upon the terms and conditions set forth in this Agreement;
WHEREAS, in the course of the employment contemplated under this
Agreement, it will be necessary for Executive to acquire knowledge of certain
trade secrets and other confidential and proprietary information regarding the
Company as well as its parent, subsidiary and/or affiliated entities
(hereinafter jointly referred to as the "Companies"); and
WHEREAS, the Company and Executive (collectively referred to herein as the
"Parties") acknowledge and agree that the execution of this Agreement is
necessary to memorialize the terms and conditions of their employment
relationship as well as safeguard against the unauthorized disclosure or use of
the Company's confidential information and to otherwise preserve the goodwill
and ongoing business value of the Company;
NOW THEREFORE, in consideration of Executive's employment, the Company's
willingness to disclose certain confidential and proprietary information to
Executive and the mutual covenants contained herein as well as other good and
valuable consideration, the receipt of which is hereby acknowledged, the Parties
agree as follows:
1. Employment. The Company agrees to employ Executive and Executive agrees to
serve as Vice President, Human Resources.
2. Duties. Executive agrees to perform all duties and responsibilities
traditionally assigned to, or falling within the normal responsibilities
of, an individual employed in the above-referenced position. Executive
also agrees to perform any and all additional duties or responsibilities
as may be assigned by the Company in its sole discretion.
3. Best Efforts and Duty of Loyalty. During the term of employment with the
Company, Executive covenants and agrees to perform all assigned duties in
a diligent and professional manner and in the best interest of the
Company. Executive agrees to devote his full working time, attention,
talents, skills and best efforts to further the Company's business and
agrees not to take any action, or make any omission, that deprives the
Company of any business opportunities or otherwise act in a manner that
conflicts with the best interest of the Company or is otherwise
detrimental to its business. Executive agrees not to engage in any outside
business activity, whether or not pursued for gain, profit or other
pecuniary advantage, without the express written consent of the Company.
Executive shall act at all times in accordance with the Xxxxxxxxxxx
Industries, Inc. Code of Ethical Business Conduct, the Corporate
Compliance Handbook and all other applicable policies which may exist or
be adopted by the Company from time to time.
4. At-Will Employment. Subject to the terms and conditions set forth below,
Executive specifically acknowledges and accepts such employment on an
"at-will" basis and agrees that both Executive and the Company retain the
right to terminate this relationship at any time, with or without cause,
for any reason not prohibited by applicable law upon proper notice.
Executive acknowledges that nothing in this Agreement is intended to
create, nor should be interpreted to create, an employment contract for
any specified length of time between the Company and Executive.
5. Compensation. For all services rendered by Executive on behalf of, or at
the request of, the Company, Executive shall be paid as follows:
(a) A base salary at the bi-weekly rate of Nine Thousand Six Hundred
Fifteen Dollars and Thirty-eight Cents ($9,615.38), less usual and
ordinary deductions;
(b) Incentive compensation, payable solely at the discretion of the
Company, pursuant to the Company's Exempt Employee Executive
Compensation Program or any other program as the Company may
establish in its sole discretion; and
(c) Such additional compensation, benefits and perquisites as the
Company may deem appropriate, including, without limitation, those
set forth in the letter from Xxxx Xxxxxxxx to Executive dated of
even date herewith (the terms of which shall be incorporated herein
by reference).
Notwithstanding anything contained herein to the contrary, Executive
acknowledges that the Company specifically reserves the right to make
changes to Executive's compensation in its sole discretion including, but
not limited to, modifying or eliminating a compensation component. The
Parties agree that such changes shall be deemed effective immediately and
a modification of this Agreement unless, within fourteen (14) days after
receiving notice of such change, Executive exercises his right to
terminate this Agreement without cause. The Parties anticipate that
Executive's compensation structure will be reviewed on an annual basis but
acknowledge that the Company shall have no obligation to do so.
6. Direct Deposit. As a condition of employment, and within thirty (30) days
of the effective date of this Agreement, Executive agrees to make all
necessary arrangements to have all sums paid pursuant to this Agreement
direct deposited into one or more bank accounts as designated by
Executive.
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7. Warranties and Indemnification. Executive warrants that he is not a party
to any contract, restrictive covenant, or other agreement purporting to
limit or otherwise adversely affecting his ability to secure employment
with any third party. Alternatively, should any such agreement exist,
Executive warrants that the contemplated services to be performed
hereunder will not violate the terms and conditions of any such agreement.
In either event, Executive agrees to fully indemnify and hold the Company
harmless from any and all claims arising from, or involving the
enforcement of, any such restrictive covenants or other agreements.
8. Restricted Duties. Executive agrees not to disclose, or use for the
benefit of the Company, any confidential or proprietary information
belonging to any predecessor employer which otherwise has not been made
public and further acknowledges that the Company has specifically
instructed him not to disclose or use such confidential or proprietary
information. Based on his understanding of the anticipated duties and
responsibilities hereunder, Executive acknowledges that such duties and
responsibilities will not compel the disclosure or use of any such
confidential and proprietary information.
9. Termination Without Cause. Executive's employment may be terminated at any
time, without cause, by either party upon sixty (60) days' advance written
notice or pay in lieu of notice. In such event, Executive shall only be
entitled to such compensation, benefits and perquisites which have been
paid or fully accrued as of the effective date of his separation, except
as otherwise explicitly provided herein. For purposes of this Agreement,
Executive's employment will be deemed to have been terminated "without
cause" upon the occurrence, without Executive's consent, of any of the
following circumstances:
(i) The assignment to Executive of duties that are materially
inconsistent with the position initially held by the Executive or a
change in his reporting relationship to the CEO;
(ii) The failure to elect or reelect Executive to the office of Vice
President, Human Resources (unless such failure is related in any
way to the Company's decision to terminate Executive for cause);
(iii) The failure of the Company to continue to provide Executive with
office space, related facilities and support personnel (including,
but not limited to, administrative and secretarial assistance)
within the Company's principal executive offices commensurate with
his responsibilities to, and position within, the Company;
(iv) A reduction by the Company in the amount of Executive's base salary
or the discontinuation or reduction by the Company of Executive's
participation at the same level of eligibility as other peer
executives in any incentive compensation, additional compensation,
benefits, policies or perquisites;
(v) The relocation of the Company's principal executive offices or
Executive's place of work to a location of more than 100 miles
outside of Batesville, Indiana; or
(vi) The failure by the Company to timely reimburse Executive for any
valid documented business expenses.
10. Termination With Cause. Executive's employment may be terminated at any
time "for cause" without notice or prior warning. For purposes of this
Agreement, "cause" shall mean the Company's good faith determination that
Executive has:
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(i) Failed, refused or otherwise been deemed unable to fully and timely
comply with the terms and conditions of this Agreement, specifically
including any reasonable instructions or orders issued by the
Company, provided such noncompliance is not based primarily on
Employee's good faith compliance with applicable legal or ethical
standards;
(ii) Acquiesced or participated in any conduct that is dishonest,
fraudulent, illegal (at the felony level), unethical, involves moral
turpitude or is otherwise illegal and involves conduct that has the
potential, in the Company's reasonable opinion, to cause the
Company, it officers or its directors embarrassment or ridicule;
(iii) Violated any Company policy or procedures, specifically including a
violation of Xxxxxxxxxxx Industries, Inc.'s Handbook of Ethical
Business Conduct;
(iv) Disclosed without proper authorization any trade secrets or other
Confidential Information (as defined herein); or
(v) Engaged in any act that, in the reasonable opinion of the Company,
is contrary to its best interests or would hold the Company, its
officers or directors up to probable civil or criminal liability,
provided that, if Executive acts in good faith in compliance with
applicable legal or ethical standards, such actions shall not be
grounds for termination for cause.
Upon the occurrence or discovery of any event specified above, the Company
shall have the right to terminate Executive's employment, effective
immediately, by providing notice thereof to Executive without further
obligation to him, other than accrued wages, deferred compensation or
other accrued benefits of employment (collectively referred to herein as
"Accrued Obligations") which shall be paid in accordance with the
Company's past practice and applicable law. To the extent any violation of
this Paragraph is capable of being cured by Executive in a reasonable
amount time, the Company agrees to provide Executive with a reasonable
opportunity to so cure such defect. Absent mutual agreement, the Parties
agree that it is not possible for Executive to cure any violations of
Paragraph Nos. 10(ii) or (iv) and, therefore, no opportunity for cure need
be provided in those circumstances.
11. Termination Due to Death or Disability. In the event Executive dies or
suffers a disability (as defined herein) during the term of employment,
this Agreement shall automatically be terminated on the date of such death
or disability without further obligation on the part of the Company other
than the payment of Accrued Obligations. For purposes of this Agreement,
Executive shall be considered to have suffered a "disability" upon the
occurrence of one or more of the following events:
(i) Executive becomes eligible for or receives any benefits pursuant to
any disability insurance policy as a result of a determination under
such policy that Executive is permanently disabled;
(ii) Executive becomes eligible for or receives any disability benefits
under the Social Security Act; or
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(iii) A good faith determination by the Company that Executive is and will
likely remain unable to perform the essential functions of his
duties or responsibilities hereunder on a full-time basis, with or
without reasonable accommodation, as a result of any mental or
physical impairment.
Notwithstanding anything expressed or implied above to the contrary, the
Company agrees to fully comply with its obligations under the Americans
with Disabilities Act as well as any other applicable federal, state, or
local law, regulation, or ordinance governing the protection of individual
with such disabilities as well as the Company's obligation to provide
reasonable accommodation thereunder.
12. Severance Payments. In the event Executive's employment is terminated by
the Company without cause, and subject to the normal terms and conditions
imposed by the Company (including those set forth herein and in the
attached Separation and Release Agreement), Executive shall be eligible to
receive severance pay based upon his base salary at the time of
termination for a period determined in accordance with any guidelines as
may be established by the Company or for a period up to twelve (12) months
(whichever is longer). No severance pay shall be paid if Executive
voluntarily leaves the Company's employ or is terminated for cause. Any
severance pay made payable hereunder shall be paid in lieu of, and not in
addition to, any notice pay or other accrued compensation. Additionally,
such severance pay is contingent upon Executive fully complying with the
restrictive covenants contained herein and executing a Separation and
Release Agreement in a form not substantially different from that attached
to this Agreement as Exhibit A. Further, the Company's obligation to
provide severance shall be deemed null and void should Executive fail or
refuse to execute the Agreement in such form within any time period as may
be proscribed by law or, in absence thereof, twenty-one (21) days.
13. Assignment of Rights.
(a) Copyrights. Executive agrees that all works of authorship fixed in
any tangible medium of expression by him during the term of this
Agreement relating to the Company's business ("Works"), either
solely or jointly with others, shall be and remain exclusively the
property of the Company. Each such Work created by Executive is a
"work made for hire" under the copyright law and the Company may
file applications to register copyright in such Works as author and
copyright owner thereof. If, for any reason, a Work created by
Executive is excluded from the definition of a "work made for hire"
under the copyright law, then Executive does hereby assign, sell,
and convey to the Company the entire rights, title, and interests in
and to such Work, including the copyright therein, to the Company.
Executive will execute any documents which the Company deems
necessary in connection with the assignment of such Work and
copyright therein. Executive will take whatever steps and do
whatever acts the Company requests, including, but not limited to,
placement of the Company's proper copyright notice on Works created
by Executive to secure or aid in securing copyright protection in
such Works and will assist the Company or its nominees in filing
applications to register claims of copyright in such Works. The
Company shall have free and unlimited access at all times to all
Works and all copies thereof and shall have the right to claim and
take possession on demand of such Works and copies.
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(b) Inventions. Executive agrees that all discoveries, concepts, and
ideas, whether patentable or not, including, but not limited to,
apparatus, processes, methods, compositions of matter, techniques,
and formulae, as well as improvements thereof or know-how related
thereto, relating to any present or prospective product, process, or
service of the Company ("Inventions") that Executive conceives or
makes during the term of this Agreement relating to the Company's
business, shall become and remain the exclusive property of the
Company, whether patentable or not, and Executive will, without
royalty or any other consideration:
(i) inform the Company promptly and fully of such Inventions by
written reports, setting forth in detail the procedures
employed and the results achieved;
(ii) assign to the Company all of his rights, title, and interests
in and to such Inventions, any applications for United States
and foreign Letters Patent, any United States and foreign
Letters Patent, and any renewals thereof granted upon such
Inventions;
(iii) assist the Company or its nominees, at the expense of the
Company, to obtain such United States and foreign Letters
Patent for such Inventions as the Company may elect; and
(iv) execute, acknowledge, and deliver to the Company at the
Company's expense such written documents and instruments, and
do such other acts, such as giving testimony in support of his
inventorship, as may be necessary in the opinion of the
Company, to obtain and maintain United States and foreign
Letters Patent upon such Inventions and to vest the entire
rights and title thereto in the Company and to confirm the
complete ownership by the Company of such Inventions, patent
applications, and patents.
14. Company Property. All records, files, drawings, documents, equipment, and
the like relating to, or provided by, the Company shall be and remain the
sole property of the Company. Upon termination of employment, Executive
shall immediately return to the Company all such items without retention
of any copies. De minimis items such as pay stubs, 401(k) plan summaries,
employee bulletins, and the like are excluded from this requirement.
15. Confidential Information. Executive acknowledges that the Company and its
affiliated entities (herein collectively referred to as "Companies")
possess certain trade secrets as well as other confidential and
proprietary information which they have acquired or will acquire at great
effort and expense. Such information may include, without limitation,
confidential information regarding the Companies' products and services,
marketing strategies, business plans, operations, costs, current or
prospective customer information (including customer contacts,
requirements, creditworthiness and like matters), product concepts,
designs, prototypes or specifications, research and development efforts,
technical data and know-how, sales information, including pricing and
other terms and conditions of sale, financial information, internal
procedures, techniques, forecasts, methods, trade information, trade
secrets, software programs, project requirements, inventions, trademarks,
trade names, and similar information regarding the Companies' business
(collectively referred to herein as "Confidential Information"). Executive
further acknowledges that, as a result of his employment with the Company,
Executive will have access to, will become acquainted with, and/or may
help develop, such Confidential Information.
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16. Restricted Use of Confidential Information. Executive agrees that all
Confidential Information is and shall remain the sole and exclusive
property of the Company. Except as may be expressly authorized by the
Company in writing, Executive agrees not to disclose, or cause any other
person or entity to disclose, any Confidential Information to any third
party while employed by the Company and for as long thereafter as such
information remains confidential (or as limited by applicable law).
Further, Executive agrees to use such Confidential Information only in the
course of Executive's duties in furtherance of the Company's business and
agrees not to make use of any such Confidential Information for
Executive's own purposes or for the benefit of any other entity or person.
17. Acknowledged Need for Limited Restrictive Covenants. Executive
acknowledges that the Company has spent and will continue to expend
substantial amounts of time, money and effort to develop its business
strategies, Confidential Information, customer relationships, goodwill and
employee relationships, and that Executive will benefit from these
efforts. Further, Executive acknowledges the inevitable use of, or
near-certain influence by his knowledge of, the Confidential Information
disclosed to Executive during the course of employment if allowed to
compete against the Company in an unrestricted manner and that such use
would be unfair and extremely detrimental to the Company. Accordingly,
based on these legitimate business reasons, Executive acknowledges the
Company's need to protect its legitimate business interests by reasonably
restricting Executive's ability to compete with the Company on a limited
basis.
18. Non-Solicitation. During Executive's employment and for a period of
eighteen (18) months thereafter, Executive agrees not to directly or
indirectly engage in the following prohibited conduct:
(a) Solicit, offer products or services to, accept orders from, for any
Competitive Products or otherwise transact any competitive business
with, any customer or entity with whom Executive had contact or
transacted any business on behalf of the Company during the eighteen
(18) month period preceding Executive's date of separation or about
whom Executive possessed, or had access to, confidential and
proprietary information;
(b) Attempt to entice or otherwise cause any third party to withdraw,
curtail or cease doing business with the Company, specifically
including customers, venders, independent contractors and other
third party entities;
(c) Disclose to any person or entity the identities, contacts or
preferences of any customers of the Company, or the identity of any
other persons or entities having business dealings with the Company;
(d) Induce any individual who has been employed by or had provided
services to the Company within the six (6) month period immediately
preceding the effective date of Executive's separation to terminate
such relationship with the Company;
(e) Offer employment to, accept employment inquiries from, or employ any
individual who is or had been employed by the Company at any time
within the six (6) month period immediately preceding such offer or
inquiry; or
(f) Otherwise attempt to directly or indirectly interfere with the
Company's business or its relationship with its employees,
consultants, independent contractors or customers.
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19. Limited Non-Compete. For the above reasons, and as a condition of
employment to the fullest extent permitted by law, Executive agrees during
the Relevant Non-Compete Period not to directly or indirectly engage in
the following competitive activities:
(a) Executive shall not have any ownership interest in, work for,
advise, consult, or have any business connection or business or
employment relationship with any Competitor unless Executive
provides written notice to the Company of such relationship prior to
entering into such relationship and, further, provides sufficient
written assurances to the Company's satisfaction that such
relationship will not jeopardize the Company's legitimate interests
or otherwise violate the terms of this Agreement;
(b) Executive shall not engage in any research, development, production,
sale or distribution of any Competitive Products, specifically
including any products or services relating to those for which
Executive had responsibility for the eighteen (18) month period
preceding Executive's date of separation;
(c) Executive shall not market, sell, or otherwise offer or provide any
Competitive Products within his Geographic Territory (if
applicable), specifically including any products or services
relating to those for which Executive had responsibility for the
eighteen (18) month period preceding Executive's date of separation;
and
(d) Executive shall not distribute, market, sell or otherwise offer or
provide any Competitive Products to any customer of the Company with
whom Executive had contact (either directly or indirectly) or for
which Executive had contact or for which Executive had
responsibility at any time during the eighteen (18) month period
preceding Executive's date of separation.
20. Non-Compete Definitions. For purposes of this Agreement, the Parties agree
that the following terms shall apply:
(a) "Competitive Products" shall include any product or service which
directly or indirectly competes with, is substantially similar to,
or serves as a reasonable substitute for, any product or service in
research, development or design, or manufactured, produced, sold or
distributed by the Company;
(b) "Competitor" shall include any person or entity that offers or is
actively planning to offer any Competitive Products;
(c) "Geographic Territory" shall include any territory formally assigned
to Executive as well as all territories in which Executive has
provided any services, sold any products or otherwise had
responsibility at any time during the eighteen (18) month period
preceding Executive's date of separation;
(d) "Relevant Non-Compete Period" shall include the period of
Executive's employment with the Company as well as a period of
eighteen (18) months after such employment is terminated, regardless
of the reason for such termination provided, however, that this
period shall be reduced to the greater of (i) six (6) months or (ii)
the total length of Executive's employment with the Company,
including employment with a parent, subsidiary or affiliated entity,
if such employment is less than eighteen (18) months;
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(e) "Directly or indirectly" shall be construed such that the foregoing
restrictions shall apply equally to Executive whether performed
individually or as a partner, shareholder, officer, director,
manager, employee, salesman, independent contractor, broker, agent,
or consultant for any other individual, partnership, firm,
corporation, company, or other entity engaged in such conduct.
21. Consent to Reasonableness. In light of the above-referenced concerns,
including Executive's knowledge of and access to the Companies'
Confidential Information, Executive acknowledges that the terms of the
foregoing restrictive covenants are reasonable and necessary to protect
the Company's legitimate business interests and will not unreasonably
interfere with Executive's ability to obtain alternate employment. As
such, Executive hereby agrees that such restrictions are valid and
enforceable, and affirmatively waives any argument or defense to the
contrary.
22. Survival of Restrictive Covenants. Executive acknowledges that the above
restrictive covenants shall survive the termination of this Agreement and
the termination of Executive's employment for any reason. Executive
further acknowledges that any alleged breach by the Company of any
contractual, statutory or other obligation shall not excuse or terminate
the obligations hereunder or otherwise preclude the Company from seeking
injunctive or other relief. Rather, Executive acknowledges that such
obligations are independent and separate covenants undertaken by Executive
for the benefit of the Company.
23. Effect of Transfer to Affiliate. Executive acknowledges that the above
restrictive covenants shall survive, and be extended to cover, the
transfer of Executive from the Company to its parent, subsidiary, sister
corporation or any other affiliated entity (hereinafter collectively
referred to as an "Affiliate"). Specifically, in the event of Executive's
temporary or permanent transfer to an Affiliate, he agrees that the
foregoing restrictive covenants shall remain in force so as to continue to
protect the Company for the duration of the non-compete period, measured
from his effective date of transfer to an Affiliate. Additionally,
Executive acknowledges that this Agreement shall be deemed to have been
automatically assigned to the Affiliate as of his effective date of
transfer such that the above-referenced restrictive covenants (as well as
all other terms and conditions contained herein) shall be construed
thereafter to protect the legitimate business interests and goodwill of
the Affiliate as if Executive and the Affiliate had independently entered
into this Agreement. Executive's acceptance of his transfer to, and
subsequent employment by, the Affiliate shall serve as consideration for
(as well as be deemed as evidence of his consent to) the assignment of
this Agreement to the Affiliate as well as the extension of such
restrictive covenants to the Affiliate. Executive agrees that this
provision shall apply with equal force to any subsequent transfers of
Executive from one Affiliate to another Affiliate.
24. Scope of Restrictions. If the scope of any restriction contained in any
preceding paragraphs of this Agreement is deemed too broad to permit
enforcement of such restriction to its fullest extent, then such
restriction shall be enforced to the maximum extent permitted by law, and
Executive hereby consents and agrees that such scope may be judicially
modified accordingly in any proceeding brought to enforce such
restriction.
25. Specific Enforcement/Injunctive Relief. Executive agrees that it would be
difficult to measure any damages to the Company from a breach of the
above-referenced restrictive covenants, but that such damages would be
great, incalculable and irremedial, and that monetary damages alone would
be an inadequate remedy. Accordingly, Executive agrees that the Company
shall be entitled to immediate injunctive relief against such breach, or
threatened breach, in any court having jurisdiction. In addition, if
Executive violates any such restrictive covenant, Executive agrees that
the period of such violation shall be added to the term of the
restriction. In
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determining the period of any violation, the Parties stipulate that in any
calendar month in which Executive engages in any activity violative of
such provisions, Executive shall be deemed to have violated such provision
for the entire month, and that month shall be added to the duration of the
non-competition provision. Executive acknowledges that the remedies
described above shall not be the exclusive remedies, and the Company may
seek any other remedy available to it either in law or in equity,
including the recovery of compensatory or punitive damages. Executive
further agrees that the Company shall be entitled to an award of all costs
and attorneys' fees incurred by it in any attempt to enforce the terms of
this Agreement.
26. Publicly Traded Stock. The Parties agree that nothing contained in this
Agreement shall be construed to prohibit Executive from investing his
personal assets in any stock or corporate security traded or quoted on a
national securities exchange or national market system provided, however,
such investments do not require any services on the part of Executive in
the operation or the affairs of the business or otherwise violate the
Xxxxxxxxxxx Industries, Inc. Code of Ethical Business Conduct.
27. Titles. Titles are used for the purpose of convenience in this Agreement
and shall be ignored in any construction of it.
28. Severability. The Parties agree that each and every paragraph, sentence,
clause, term and provision of this Agreement is severable and that, in the
event any portion of this Agreement is adjudged to be invalid or
unenforceable, the remaining portions thereof shall remain in effect and
be enforced to the fullest extent permitted by law. Further, should any
particular clause, covenant, or provision of this Agreement be held
unreasonable or contrary to public policy for any reason, the Parties
acknowledge and agree that such covenant, provision or clause shall
automatically be deemed modified such that the contested covenant,
provision or clause will have the closest effect permitted by applicable
law to the original form and shall be given effect and enforced as so
modified to whatever extent would be reasonable and enforceable under
applicable law.
29. Choice of Forum. Executive acknowledges that the Companies are primarily
based in Indiana, and Executive understands and acknowledges the Company's
desire and need to defend any litigation against it in Indiana.
Accordingly, the Parties agree that any claim of any type brought by
Executive against the Company or any of its employees or agents must be
maintained only in a court sitting in Xxxxxx County, Indiana, or Xxxxxx
County, Indiana, or, if a federal court, the Southern District of Indiana,
Indianapolis Division. Executive further understands and acknowledges that
in the event the Company initiates litigation against Executive, the
Company may need to prosecute such litigation in such state where the
Executive is subject to personal jurisdiction. Accordingly, for purposes
of enforcement of this Agreement, Executive specifically consents to
personal jurisdiction in the State of Indiana as well as any state in
which resides a customer assigned to the Executive.
30. Choice of Law. This Agreement shall be deemed to have been made within the
County of Xxxxxx, State of Indiana and shall be interpreted and construed
in accordance with the laws of the State of Indiana. Any and all matters
of dispute of any nature whatsoever arising out of, or in any way
connected with the interpretation of this Agreement, any disputes arising
out of the Agreement or the employment relationship between the Parties
hereto, shall be governed by, construed by and enforced in accordance with
the laws of the State of Indiana without regard to any applicable state's
choice of law provisions.
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31. Assignment-Notices. The rights and obligations of the Company under this
Agreement shall inure to its benefit, as well as the benefit of its
parent, subsidiary, successor and affiliated entities, and shall be
binding upon the successors and assigns of the Company. This Agreement,
being personal to Executive, cannot be assigned by Executive, but his
personal representative shall be bound by all its terms and conditions.
Any notice required hereunder shall be sufficient if in writing and mailed
to the last known residence of Executive or to the Company at its
principal office with a copy mailed to the Office of General Counsel.
32. Amendments and Modifications. Except as specifically provided herein, no
modification, amendment, extension or waiver of this Agreement or any
provision hereof shall be binding upon the Company or Executive unless in
writing and signed by both Parties. The waiver by the Company of a breach
of any provision of this Agreement by Executive shall not be construed as
a waiver of any subsequent breach. Nothing in this Agreement shall be
construed as a limitation upon the Company's right to modify or amend any
of its manuals or policies in its sole discretion and any such
modification or amendment which pertains to matters addressed herein shall
be deemed to be incorporated herein and made a part of this Agreement.
33. Outside Representations. Executive represents and acknowledges that in
signing this Agreement he does not rely, and has not relied, upon any
representation or statement made by the Company or by any of the Company's
employees, officers, agents, stockholders, directors or attorneys with
regard to the subject matter, basis or effect of this Agreement other than
those specifically contained herein.
34. Voluntary and Knowing Execution. Executive acknowledges that he has been
offered a reasonable amount of time within which to consider and review
this Agreement; that he has carefully read and fully understands all of
the provisions of this Agreement; and that he has entered into this
Agreement knowingly and voluntarily.
35. Entire Agreement. This Agreement constitutes the entire employment
agreement between the Parties hereto concerning the subject matter hereof
and shall supersede all prior and contemporaneous agreements between the
Parties in connection with the subject matter of this Agreement. Nothing
in this Agreement, however, shall affect any separately-executed written
agreement addressing any other issues (e.g., the Inventions, Improvements,
Copyrights and Trade Secrets Agreement, etc.).
IN WITNESS WHEREOF, the Parties have signed this Agreement effective as of
the day and year first above written.
XXXXX XXXXXXXXX XXXXXXXXXXX INDUSTRIES, INC.
Signed: ____________________________ By: ___________________________________
Printed: ___________________________ Title: ________________________________
Dated: _____________________________ Dated: ________________________________
CAUTION: READ BEFORE SIGNING
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Exhibit A
SEPARATION AND RELEASE AGREEMENT
THIS SEPARATION and RELEASE AGREEMENT ("Agreement") is entered into by and
between [EMPLOYEE'S FULL NAME] ("Employee") and [NAME OF OPERATING COMPANY]
("Company"). To wit, the Parties agree as follows:
1. Employee's active employment by the Company shall terminate effective
[DATE OF TERMINATION] (Employee's "Effective Termination Date"). Except as
specifically provided by this Agreement, Employee agrees that the Company
shall have no other obligations or liabilities to him following his
Effective Termination Date and that his receipt of the Severance Benefits
provided herein shall constitute a complete settlement, satisfaction and
waiver of any and all claims he may have against the Company.
2. In consideration of the promises contained in this Agreement and
contingent upon Employee's compliance with such promises, the Company
agrees to provide Employee the following:
(i) (a) Fifty-two (52) weeks of Employee's base salary at the time of
termination paid as a lump sum, without set off for any other income
over and above such severance or any Accrued Obligations and (b) any
Accrued Obligations;
(ii) Payment for any earned but unused vacation as of Employee's
Effective Termination Date; and
(iii) Life insurance coverage until the above-referenced Severance Pay
terminates.
"Accrued Obligations" collectively refers to accrued wages, deferred
compensation, or other compensation, benefits, or perquisites which have been
fully paid or fully accrued as of the Employee's Effective Termination Date, in
accordance with the Company's past practice and applicable law.
3. The above Severance Pay Benefits shall be paid in accordance with the
Company's standard payroll practices (e.g. biweekly) and shall begin on
the first normally scheduled payroll following Employee's Effective
Termination Date or the effective date of this Agreement, whichever occurs
last. The Parties agree that the initial four (4) weeks of the foregoing
severance shall be allocated as additional consideration provided to
Employee in exchange for his execution of a release in compliance with the
Older Workers Benefit Protection Act. The balance of the severance
benefits shall be allocated as consideration for all other promises and
obligations undertaken by Employee, including execution of a general
release of claims.
4. As of his Effective Termination Date, Employee will become ineligible to
participate in the Company's health insurance program and continuation of
coverage requirements under COBRA (if any) will be triggered at that time.
However, as additional consideration for the promises and obligations
contained herein, the Company agrees to continue to pay the employer's
share of such coverage as provided under the health care program selected
by Employee as of his Effective Termination Date, subject to any approved
changes in coverage based on a qualified election, until the
above-referenced Severance Pay terminates provided Employee (i) timely
completes the applicable election of coverage forms and (ii) continues to
pay the employee portion of the applicable premium(s). Thereafter, if
applicable, coverage will be made available to Employee at his sole
expense (i.e., Employee will be responsible for the full COBRA premium)
for the
remaining months of the COBRA coverage period made available pursuant to
applicable law. The medical insurance provided herein does not include any
disability coverage.
5. Employee agrees to notify the Company in writing within three (3) business
days of Employee's acceptance of any subsequent employment by providing
the name of such employer, his intended duties as well as the anticipated
start date. Such information is required to ensure Employee's compliance
with his non-compete obligations as well as all other applicable
restrictive covenants. This notice will also serve to trigger the
Company's right to terminate the above-referenced severance benefits and
Company-paid COBRA benefits consistent with the above paragraphs. Failure
to timely provide such notice shall be deemed a material breach of this
Agreement entitling the Company to recover as damages the value of all
benefits provided to Employee hereunder.
6. In exchange for the foregoing Severance Benefits, [EMPLOYEE'S FULL NAME]
on behalf of himself, his heirs, representatives, agents and assigns
hereby COVENANTS NOT TO XXX, RELEASES, INDEMNIFIES, HOLDS HARMLESS, and
FOREVER DISCHARGES (i) [NAME OF OPERATING COMPANY], (ii) its parent,
subsidiary or affiliated entities, (iii) all of their present or former
directors, officers, employees, shareholders, and agents as well as (iv)
all predecessors, successors and assigns thereof from any and all actions,
charges, claims, demands, damages or liabilities of any kind or character
whatsoever, known or unknown, which Employee now has or may have had
through the effective date of this Agreement.
7. Without limiting the generality of the foregoing release, it shall
include: (i) all claims or potential claims arising under any federal,
state or local laws relating to the Parties' employment relationship,
including any claims Employee may have under the Civil Rights Acts of 1866
and 1964, as amended, 42 U.S.C. Sections 1981 and 2000(e) et seq.; the
Civil Rights Act of 1991; the Age Discrimination in Employment Act, as
amended, 29 U.S.C. Sections 621 et seq.; the Americans with Disabilities
Act of 1990, as amended, 42 U.S.C. Sections 12,101 et seq.; the Fair Labor
Standards Act 29 U.S.C. Sections 201 et seq.; the Worker Adjustment and
Retraining Notification Act, 29 U.S.C. Sections 2101, et seq.; and any
other federal, state or local law governing the Parties' employment
relationship; (ii) any claims on account of, arising out of or in any way
connected with Employee's employment with the Company or leaving of that
employment; (iii) any claims alleged or which could have been alleged in
any charge or complaint against the Company; (iv) any claims relating to
the conduct of any employee, officer, director, agent or other
representative of the Company; (v) any claims of discrimination,
harassment or retaliation on any basis; (vi) any claims arising from any
legal restrictions on an employer's right to separate its employees; (vii)
any claims for personal injury, compensatory or punitive damages or other
forms of relief; and (viii) all other causes of action sounding in
contract, tort or other common law basis, including (a) the breach of any
alleged oral or written contract, (b) negligent or intentional
misrepresentations, (c) wrongful discharge, (d) just cause dismissal, (e)
defamation, (f) interference with contract or business relationship or (g)
negligent or intentional infliction of emotional distress.
8. The Parties acknowledge that it is their mutual and specific intent that
the above waiver fully comply with the requirements of the Older Workers
Benefit Protection Act (29 U.S.C. Section 626) and any similar law
governing release of claims. Accordingly, Employee hereby acknowledges
that:
(a) He has carefully read and fully understands all of the provisions of
this Agreement and that he has entered into this Agreement knowingly
and voluntarily;
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(b) The Severance Benefits offered in exchange for Employee's release of
claims exceed in kind and scope that to which he would have
otherwise been legally entitled;
(c) Prior to signing this Agreement, Employee had been advised, and is
being advised by this Agreement, to consult with an attorney of his
choice concerning its terms and conditions; and
(d) He has been offered at least twenty-one (21) days within which to
review and consider this Agreement.
9. The Parties agree that nothing contained herein shall purport to waive or
otherwise affect any of Employee's rights or claims that may arise after
he signs this Agreement.
10. The Parties agree that this Agreement shall not become effective and
enforceable until the date this Agreement is signed by both Parties or
seven (7) calendar days after its execution by Employee, whichever is
later. Employee may revoke this Agreement for any reason by providing
written notice of such intent to the Company within seven (7) days after
he has signed this Agreement, thereby forfeiting Employee's right to
receive any Severance Benefits provided hereunder and rendering this
Agreement null and void in its entirety.
11. The Parties agree that nothing contained herein shall purport to waive or
otherwise affect any of Employee's rights or claims that may arise after
he signs this Agreement. It is further understood by the Parties that
nothing in this Agreement shall affect any rights Employee may have under
any Pension Plan and/or Savings Plan (i.e., 401(k) plan) provided by the
Company as of the date of his termination, such items to be governed
exclusively by the terms of the applicable plan documents.
12. Employee acknowledges that his termination and the Severance Benefits
offered hereunder were based on an individual determination and were not
offered in conjunction with any group termination or group severance
program and waives any claim to the contrary.
13. Employee hereby affirms and acknowledges his continued obligations to
comply with the post-termination covenants contained in his Employment
Agreement, including but not limited to, the non-compete, trade secret and
confidentiality provisions. Employee acknowledges that a copy of the
Employment Agreement has been attached to this Agreement as Exhibit ___ or
has otherwise been provided to him and, to the extent not inconsistent
with the terms of this Agreement or applicable law, the terms thereof
shall be incorporated herein by reference. Employee acknowledges that the
restrictions contained therein are valid and reasonable in every respect
and are necessary to protect the Company's legitimate business interests.
14. Employee acknowledges that the Company possesses, and he has been granted
access to, certain trade secrets as well as other confidential and
proprietary information which the Company has acquired at great effort and
expense. Such information includes, without limitation, confidential
information regarding products and services, marketing strategies,
business plans, operations, costs, current or prospective customer
information (including customer contacts, requirements, creditworthiness
and like matters), product concepts, designs, prototypes or
specifications, regulatory compliance issues, research and development
efforts, technical data and know-how, sales information, including pricing
and other terms and conditions of sale, financial information, internal
procedures, techniques, forecasts, methods, trade information, trade
secrets, software
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programs, project requirements, inventions, trademarks, trade names, and
similar information regarding the Companies' business (collectively
referred to herein as "Confidential Information").
15. Employee agrees that all such Confidential Information is and shall remain
the sole and exclusive property of the Company. Except as may be expressly
authorized by the Company in writing, or as may be required by law after
providing due notice thereof to the Company, Employee agrees not to
disclose, or cause any other person or entity to disclose, any
Confidential Information to any third party for as long thereafter as such
information remains confidential (or as limited by applicable law) and
agrees not to make use of any such Confidential Information for Employee's
own purposes or for the benefit of any other entity or person.
16. On or before Employee's Effective Termination Date or per the Company's
request, Employee agrees to return the original and all copies of all
things in his possession or control relating to the Company or its
business, including but not limited to any and all contracts, reports,
memoranda, correspondence, manuals, forms, records, designs, budgets,
contact information or lists (including customer, vendor or supplier
lists), ledger sheets or other financial information, drawings, plans
(including, but not limited to, business, marketing and strategic plans),
personnel or other business files, computer hardware, software, or access
codes, door and file keys, identification, credit cards, pager, phone, and
any and all other physical, intellectual, or personal property of any
nature that he received, prepared, helped prepare, or directed preparation
of in connection with his employment with the Company. Nothing contained
herein shall be construed to require the return of any non-confidential
and de minimis items regarding Employee's pay, benefits or other rights of
employment such as pay stubs, W-2 forms, 401(k) plan summaries, benefit
statements, etc.
17. Employee hereby consents and authorizes the Company to deduct as an offset
from the above-referenced severance payments the value of any Company
property not returned or returned in a damaged condition as well as any
monies paid by the Company on Employee's behalf (e.g., payment of any
outstanding American Express xxxx).
18. Employee agrees not to make any written or oral statement that may defame,
disparage or cast in a negative light so as to do harm to the personal or
professional reputation of (a) the Company, (b) its employees, officers,
directors or trustees or (c) the services and/or products provided by the
Company and its subsidiaries or affiliate entities.
19. Employee specifically agrees and understands that the existence and terms
of this Agreement are strictly CONFIDENTIAL and that such confidentiality
is a material term of this Agreement. Accordingly, except as required by
law or unless authorized to do so by the Company in writing, Employee
agrees that he shall not communicate, display or otherwise reveal any of
the contents of this Agreement to anyone other than his spouse, legal
counsel or financial advisor provided, however, that they are first
advised of the confidential nature of this Agreement and Employee obtains
their agreement to be bound by the same. The Company agrees that Employee
may respond to legitimate inquiries regarding the termination of his
employment by stating that the Parties have terminated their relationship
on an amicable basis and that the Parties have entered into a Confidential
Separation and Release Agreement which prohibits him from further
discussing the specifics of his separation. Nothing contained herein shall
be construed to prevent Employee from discussing or otherwise advising
subsequent employers of the existence of any obligations as set forth in
his Employment Agreement. Further, nothing contained herein shall be
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construed to limit or otherwise restrict the Company's ability to disclose
the terms and conditions of this Agreement as may be required by business
necessity.
20. In the event that Employee breaches or threatens to breach any provision
of this Agreement, he agrees that the Company shall be entitled to seek
any and all equitable and legal relief provided by law, specifically
including immediate and permanent injunctive relief. Employee hereby
waives any claim that the Company has an adequate remedy at law. In
addition, and to the extent not prohibited by law, Employee agrees that
the Company shall be entitled to discontinue providing any additional
Severance Benefits upon such breach or threatened breach as well as an
award of all costs and attorneys' fees incurred by the Company in any
successful effort to enforce the terms of this Agreement. Employee agrees
that the foregoing relief shall not be construed to limit or otherwise
restrict the Company's ability to pursue any other remedy provided by law,
including the recovery of any actual, compensatory or punitive damages.
Moreover, if Employee pursues any claims against the Company subject to
the foregoing General Release, or breaches the above Confidential
provision, Employee agrees to immediately reimburse the Company for the
value of all benefits received under this Agreement to the fullest extent
permitted by law.
21. Employee acknowledges that this Agreement is entered into solely for the
purpose of terminating his employment relationship with the Company on an
amicable basis and shall not be construed as an admission of liability or
wrongdoing by the Company and further acknowledges that the Company has
expressly denied any such liability or wrongdoing.
22. Each of the promises and obligations shall be binding upon and shall inure
to the benefit of the heirs, executors, administrators, assigns and
successors in interest of each of the Parties.
23. The Parties agree that each and every paragraph, sentence, clause, term
and provision of this Agreement is severable and that, if any portion of
this Agreement should be deemed not enforceable for any reason, such
portion shall be stricken and the remaining portion or portions thereof
should continue to be enforced to the fullest extent permitted by
applicable law.
24. This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Indiana without regard to any applicable state's
choice of law provisions.
25. Employee represents and acknowledges that in signing this Agreement he
does not rely, and has not relied, upon any representation or statement
made by the Company or by any of the Company's employees, officers,
agents, stockholders, directors or attorneys with regard to the subject
matter, basis or effect of this Agreement other than those specifically
contained herein.
26. This Agreement represents the entire agreement between the Parties
concerning the subject matter hereof, shall supercede any and all prior
agreements which may otherwise exist between them concerning the subject
matter hereof (specifically excluding, however, the post-termination
obligations contained in any existing Employment Agreement or other
legally-binding document), and shall not be altered, amended, modified or
otherwise changed except by a writing executed by both Parties.
PLEASE READ CAREFULLY. THIS SEPARATION AND RELEASE
AGREEMENT INCLUDES A COMPLETE RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS.
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IN WITNESS WHEREOF, the Parties have themselves signed, or caused a duly
authorized agent thereof to sign, this Agreement on their behalf and thereby
acknowledge their intent to be bound by its terms and conditions.
"EMPLOYEE" [NAME OF OPERATING COMPANY]
Signed: ________________________________ By: _________________________________
Printed:________________________________ Title: ______________________________
Dated: _________________________________ Dated: ______________________________
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