RETIREMENT AGREEMENT
Exhibit 10.1
Horizon Lines, Inc. (the “Company”) and Xxxx X. Xxxxx (“Executive”) enter into this Retirement
Agreement (this “Agreement”) on the 21st day of January, 2009 (the “Agreement Date”).
W I T N E S S E T H:
WHEREAS, Executive is employed by the Company as an Executive Vice President;
WHEREAS, Executive has expressed a desire to retire early from his employment with the Company
due to personal matters; and
WHEREAS, the Company and Executive have agreed that as of January 31, 2009 (the “Retirement
Date”) Executive shall retire and resign as Executive Vice President of the Company and from all
other positions with the Company and its affiliates.
NOW, THEREFORE, in consideration of the covenants and mutual promises contained in this
Agreement, the parties agree as follows:
1. Retirement Date. Effective on the Retirement Date, Executive’s service as an
officer, employee, director or otherwise to the Company and all of its subsidiaries and affiliates
shall terminate.
2. Retirement Benefits. In consideration for Executive’s retirement and subject to
Executive’s execution and non-revocation of this Agreement, the Company shall pay to Executive the
following retirement benefits:
(a) Retirement Payment. The Company will pay to Executive $388,881 in a single
lump sum cash payment on the later of (i) the first business day following the Retirement
Date, or (ii) the first business day following the end of the seven (7) day revocation
period described in Section 6(b).
(b) Treatment of Stock Options. Effective on the Retirement Date, the stock
options awarded to Executive on April 7, 2006, March 26, 2007 and April 24, 2008 under the
Horizon Lines, Inc. Amended and Restated Equity Incentive Plan (the “Plan”) shall become
fully vested and immediately exercisable and such stock options shall remain exercisable
until the respective expiration dates specified in the award agreements for such stock
options. The award agreements for such stock options are hereby amended by the Stock Option
Award Amendment attached to this Agreement as Exhibit A.
(c) Treatment of Restricted Stock. Effective on the Retirement Date, the
70,000 restricted shares awarded to Executive under the Plan on February 2, 2006 (the
“Restricted Stock”) shall be fully vested and nonforfeitable. The award agreement for the
Restricted Stock is hereby amended by the Restricted Stock Award Amendment attached to this
Agreement as Exhibit B. Effective on the Retirement Date, Executive shall forfeit
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all outstanding and unvested shares of restricted stock (other than the Restricted
Stock Award) that have been awarded to him under the Plan.
The Company and Executive acknowledge and agree that Executive had no legally binding right to
the benefits described in this Section 2 prior to the Agreement Date and such benefits are not
intended to act as a substitute for, or replacement of, amounts earned by Executive under a
“nonqualified deferred compensation plan” (as that term is defined in Section 409A of the Internal
Revenue Code of 1986, as amended and applicable regulations thereunder).
3. Other Compensation or Benefits. Executive acknowledges and agrees that, except as
specifically set forth in this Agreement, following the Retirement Date, he is not and will not be
due any compensation as an employee, including, but not limited to, compensation for unpaid salary
(except for amounts unpaid and owing for Executive’s employment with the Company and its affiliates
prior to the Retirement Date), unpaid bonus, severance and accrued or unused vacation time or
vacation pay from the Company or any of its affiliates, and he will not be eligible to participate,
except as a retired employee, in any of the compensation or benefit plans of the Company or any of
its affiliates. Executive will be entitled to receive benefits, that are vested and accrued prior
to the Retirement Date or which become vested or accrued under the provisions of this Agreement or
pursuant to the employee benefit plans of the Company, and will be entitled to elect COBRA
continuation coverage under the Company’s health and dental insurance plans. The Company shall
promptly reimburse Executive for business expenses incurred in the ordinary course of Executive’s
employment before the Retirement Date, in accordance with the Company’s expense reimbursement
policies.
4. Covenants
(a) Noncompetition. For the period beginning on the Retirement Date and ending
on January 31, 2010 (the “Restricted Period”), the Executive will not become a director,
officer, employee or consultant for any business which is in competition with any line of
business of the Company and its subsidiaries and affiliates (the “Company Group”) and which
does business in the geographic footprint of the Company Group. Executive expressly
acknowledges the reasonableness of such restrictions. Further, during the Restricted
Period, Executive will not acquire an equity or equity-like interest in such an organization
for Executive’s own account, except that Executive may acquire equity interests of not more
than 5% of any such organization from time to time as an investment. Upon Executive’s
request to the Company’s Chief Executive Officer, the Company will provide an advance
opinion as to whether a proposed activity would violate the provisions of this Section 4(a).
(b) Nonsolicitation. During the Restricted Period, Executive shall not,
without the prior written consent of the Company, directly or indirectly, hire or recruit or
solicit the employment or services of (whether as an employee, officer, director, agent,
consultant or independent contractor) any employee, officer, director, agent, consultant or
independent contractor of the Company Group. During the Restricted Period, Executive shall
not, without prior written consent of the Company, directly or indirectly, solicit, attempt
to do business with, do business with any business partners of, business affiliates of the
Company Group, or encourage (regardless of who initiates the contact) any
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customers of the Company Group to use the services of any competitor of the Company
Group.
(c) Confidentiality. Executive shall hold in fiduciary capacity for the
benefit of the Company all secret, non-public or confidential information, knowledge or data
relating to the Company Group and its related businesses, which shall have been obtained by
Executive during Executive’s employment by the Company or any member of the Company Group.
After the Retirement Date, Executive shall not, without the prior written consent of the
Company or as may otherwise be required by law or legal process (including in connection
with any arbitration or legal proceeding with regard to the enforcement of this Agreement),
communicate or divulge any such information, knowledge or data to anyone other than the
Company and those designated by it.
(d) Return of Property. Executive will promptly after the Retirement Date
return to the Company all reports, files, memoranda, records, computer equipment and
software, credit cards, cardkey passes, door and file keys, computer access codes or disks
and instructional manuals, and other physical or personal property which he received or
prepared or helped prepare in connection with his employment with the Company, its
subsidiaries and affiliates, and Executive will not retain any copies, duplicates,
reproductions or excerpts thereof (other than material that is reasonably necessary to
enable Executive to perform consulting services under a separate agreement with the
Company).
(e) Cooperation. If requested by the Company, Executive shall promptly,
truthfully, and fully respond to all inquiries from the Company and its representatives
(including its auditors, and/or attorneys), without requiring service of a subpoena,
relating to any litigation or any inquiry by government agencies regarding Executive’s
employment or events occurring during Executive’s employment. Executive shall cooperate in
good faith with the Company in connection with any such legal and investigatory matters,
including, without limitation, attending conferences and meetings as requested by the
Company, and submitting to such interviews, depositions, or court testimony that may be
requested by the Company or by a government agency. The Company agrees that it will
reimburse Executive for any reasonable expenses, upon presentation of reasonably detailed
receipts, incurred by Executive in connection with any such matters. The obligations set
forth in this Section 4(e) apply during the period commencing on the Retirement Date and
shall continue in full force and effect thereafter.
(f) Non-Disparagement. Executive will refrain from taking any action or making
any statements, written or oral, which are intended to or which disparage the business,
goodwill or reputation of the Company or any member of the Company Group, or their
respective directors, officers, executives or other employees, or which could adversely
affect the morale of employees of the Company or any member of the Company Group (except to
the extent required by applicable law, including under applicable securities laws).
(g) Exit Checklist / Associate Questionnaire & Certification. Executive shall
complete and return on or before the Retirement Date the Company’s Associate
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Questionnaire & Certification, which is part of the Company’s Separating Associate
Checklist.
(h) Breach of Covenants. In the event of a breach or threatened breach of this
Section 4, Executive agrees that the Company shall be entitled to seek injunctive relief in
a court of appropriate jurisdiction to remedy any such breach or threatened breach and the
Company may, in its sole discretion, terminate the exercise period of any unexercised stock
options granted under the Company’s equity plans to Executive. Executive acknowledges that
monetary damages would be an inadequate and insufficient remedy for a breach or threatened
breach of this Section 4.
(i) Subsequent Employment. Executive hereby agrees that prior to accepting
employment with any other person or entity during the Restricted Period, the Executive will
provide such prospective employer with written notice of the existence of this Agreement and
the provisions of this Section 4, with a copy of such notice delivered simultaneously to the
Company in accordance with the notice procedures of Section 10.
5. General Release of Claims and Promise Not to Xxx. To the maximum extent permitted
by law and in consideration for the Company’s promises and obligations in this Agreement, Executive
agrees for Executive and Executive’s heirs, successors, and assigns, hereby forever to release,
discharge, and promise not to xxx the Company, its parent, subsidiary, other affiliated entities,
and all of its owners, shareholders, directors, officers, employees, agents, and employee benefit
plans of such entities from or for any and all claims, debts, and causes of action of every kind
and character whatever (including attorneys’ fees and costs) known or unknown which Executive has
against such entities as of the execution of this Agreement, including without limitation any and
all claims arising out of Executive’s employment with the Company or the ending of that employment,
and any and all claims arising under federal, state, or local laws relating to employment,
including without limitation claims of wrongful discharge, retaliation, breach of express or
implied contract, fraud, misrepresentation, defamation, or liability in tort, claims of any kind
that may be brought in any court or administrative agency, including without limitation claims
under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age
Discrimination in Employment Act, the Employee Retirement Income Security Act, the Family and
Medical Leave Act, and similar state or local statutes, ordinances, and regulations, provided,
however, that this general release shall not extend to (i) claims for pension, retirement, or
savings benefits which are or are required to be inalienable under the terms of any Company
employee benefit plan and (ii) clams with respect to the enforcement of this Agreement, including
rights to receive the indemnifications specified in Section 16 .
6. Release of Age Discrimination Claims; Periods for Review and Reconsideration.
(a) Executive understands and agrees that this Agreement includes a release of claims
arising under the Age Discrimination in Employment Act (“ADEA”), and that this Agreement
does not waive rights or claims that may arise after the date the waiver is executed.
Executive understands that he has been given a period of twenty-one (21) days to review and
consider this Agreement. Executive is hereby advised to consult with an attorney prior to
executing the Agreement. By Executive’s signature below, Executive
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represents that he has had the opportunity to be fully and fairly advised by that legal
counsel as to the terms of the Agreement. Executive further understands that he may use as
much or all of this 21-day period as he wishes before signing, and represents that he has
done so.
(b) Executive further understands that he has seven (7) days after signing this
Agreement to revoke the Agreement by notice in writing to Xxxx Xxxxxxxxxxx, Vice President
— Human Resources (the “Company Contact”) in accordance with the notice procedures of
Section 10. This Agreement shall be binding, effective, and enforceable upon Executive upon
the expiration of this seven-day revocation period without the Company Contact having
received such revocation, but not before such time. Executive understands and agrees that
any payments hereunder shall not be made prior to the expiration of this seven-day
revocation period.
(c) Notwithstanding the provisions of Section 5, the promise not to xxx contained
therein shall not apply to claims arising under ADEA. However, the release contained
therein shall apply in full to such claims.
7. Executive’s Understanding. Executive acknowledges by signing this Agreement that
Executive has read and understands this document, that Executive has conferred with or had
opportunity to confer with Executive’s attorney regarding the terms and meaning of this Agreement,
that Executive has had sufficient time to consider the terms provided for in this Agreement, that
no representatives or inducements have been made to Executive except as set forth in this
Agreement, and that Executive has signed the same knowingly and voluntarily.
8. Non-Reliance. Executive represents to the Company and the Company represents to
Executive that in executing this Agreement they do not rely and have not relied upon any
representation or statement not set forth herein made by the other or by any of the other’s agents,
representatives or attorneys with regard to the subject matter, basis or effect of this Agreement
or otherwise.
9. Severability of Provisions. In the event that any one or more of the provisions of
this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Moreover, if any one or more of the provisions contained in this Agreement are held to be
excessively broad as to duration, scope, activity or subject, such provisions will be construed by
limiting and reducing them so as to be enforceable to the maximum extent compatible with applicable
law.
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10. Notice. Any notice to be given hereunder shall be in writing and shall be deemed
given when mailed by certified mail, return receipt requested, addressed as follows:
To Executive at:
To the Company at:
Horizon Lines, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxx,
Vice President — Human Resources
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxx,
Vice President — Human Resources
With a copy to:
11. Assignment. The Company may assign this Agreement to any other entity acquiring
all or substantially all of the assets of the Company or to any other entity into which or with
which the Company may be merged or consolidated. Upon such assignment, merger, or consolidation,
the rights of the Company under this Agreement, as well as the obligations and liabilities of the
Company hereunder, shall inure to the benefit of and be binding upon the assignee,
successor-in-interest, or transferee of the Company. This Agreement is not assignable in any
respect by Executive.
12. Multiple Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which together shall constitute
one and the same instrument.
13. Governing Law. This Agreement shall be governed by the statutes and common law of
the State of North Carolina, without regard to its conflicts or choice of law principles. Except
with respect to the Company’s right to injunctive relief for matters arising under Section 4 of
this Agreement, Executive agrees that any dispute covered by the Company’s Dispute Resolution
Program shall be brought pursuant to the terms of that program and that disputes between the
parties not covered by the Dispute Resolution Program shall be brought exclusively in any of the
State or Federal courts serving Mecklenburg County in the State of North Carolina.
14. Withholding. All payments made under this Agreement shall be subject to the
Company’s withholding of all required federal, state and local income and employment/payroll taxes
(including FICA taxes), and all such payments shall be net of such tax withholding unless Executive
makes other arrangements with the Company in advance for the payment of such tax withholding.
15. Entire Agreement; Modification. This Agreement constitutes the entire agreement
of the parties and supersedes all prior representations, proposals, discussions, and
communications, whether oral or in writing. This Agreement may be modified only in writing and
signed by both parties. This Agreement shall be enforceable in accordance with its terms when
signed by the party sought to be bound.
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16. Indemnification/D&O Liability Insurance. Executive shall continue to be
indemnified for acts and omissions occurring on or prior to the Retirement Date pursuant to the
corporate governance documents of the Company and of any other member of the Company Group in
accordance with their terms from time to time. Executive shall be covered under the Company’s
directors’ and officers’ liability insurance policies in effect from time to time on the same basis
that other former officers are covered.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| HORIZON LINES, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx | ||||
| President, Chief Executive Officer
and Chairman of the Board of Directors |
||||
| EXECUTIVE |
||||
| /s/ Xxxx X. Xxxxx | ||||
| Xxxx X. Xxxxx | ||||
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EXHIBIT A
Stock Option Award Amendment
WHEREAS, Horizon Lines, Inc., a Delaware corporation (the “Company”) has entered into Stock
Option Award Agreements with Xxxx X. Xxxxx (“Executive”), dated April 7, 2006, March 26, 2007 and
April 24, 2008 (collectively, the “Option Agreements”);
WHEREAS, Executive is employed by the Company as an Executive Vice President;
WHEREAS, the Company and Executive have agreed that effective as of January 31, 2009 Executive
shall retire and resign as Executive Vice President of the Company and from all other positions
with the Company and its affiliates.
WHEREAS, the Company and Executive have the authority to amend the Option Agreements pursuant
to the terms and conditions of the Option Agreements; and
WHEREAS, the Company and Executive have agreed to make certain modifications to the applicable
vesting schedules and the exercise periods of the stock options granted to Executive pursuant to
the Option Agreements.
NOW THEREFORE, the Company and Executive agree to amend the Option Agreements in the following
respects:
1. The section entitled “Vesting Schedule” shall be amended in its entirety to read as
follows:
“Vesting Schedule. The Option shall vest and become exercisable with respect to one
hundred percent (100%) of the Shares covered by the Option on January 31, 2009.”
2. The section entitled “Exercisability of Option” shall be amended by adding the following
sentence to the end thereof:
“Notwithstanding anything in the Plan or this Stock Option Award Agreement to the contrary,
the Option shall be exercisable until the last day of the Option Period.”
3. In all other respects not amended, the Option Agreements are hereby ratified and confirmed.
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EXHIBIT B
Restricted Stock Award Amendment
WHEREAS, Horizon Lines, Inc., a Delaware corporation (the “Company”) has entered into a
Restricted Stock Agreement with Xxxx X. Xxxxx (“Executive”), dated February 1, 2006, (the
“Agreement”);
WHEREAS, Executive is employed by the Company as an Executive Vice President;
WHEREAS, the Company and Executive have agreed that effective as of January 31, 2009 Executive
shall retire and resign as Executive Vice President of the Company and from all other positions
with the Company and its affiliates.
WHEREAS, the Company and Executive have the authority to amend the Agreement; and
WHEREAS, the Company and Executive have agreed to make certain modifications to the vesting
schedule of the restricted stock granted to Executive pursuant to the Agreement.
NOW THEREFORE, the Company and Executive agree to amend the Agreement in the following
respects:
1. Section 1(a) shall be amended by deleting it in its entirety and replacing it with the
following:
“All 70,000 shares shall vest on January 31, 2009.
2. Section 1(b) shall be amended by adding the following new sentence at the end thereof:
“Notwithstanding the foregoing, all dividends paid on or before January 31, 2009 pursuant to
subsections (i) and (ii) above (and any earnings credited thereto) shall be paid to the
Grantee in a single lump sum payment within seven business days following January 31, 2009.”
3. In all other respects not amended, the Agreement is hereby ratified and confirmed.
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