EXHIBIT 10.1
March 23, 2005
Xx. Xxxxx X. Xxxxxx
c/o Oneida Ltd.
000-000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Dear Xxxxx:
This letter agreement, dated as of March 23, 2005 (the "Agreement")
sets forth our mutual understandings and agreements concerning your resignation
as President and Chief Executive Officer of Oneida Ltd., a New York corporation,
and any of its subsidiaries or affiliates (the "Company"), effective as of the
close of business on March 23, 2005 (the "CEO Resignation Date").
Notwithstanding your resignation, following the CEO Resignation Date you shall
continue to be an employee of the Company until July 30, 2007, the expiration of
the Term (as defined in the July 28, 2004 Letter Agreement (the "Letter
Agreement")) (the "Transition Period"), and you shall continue to serve as
Chairman of the Board of Directors of the Company (the "Board") following the
CEO Resignation Date until the Company's 2005 annual general meeting (the
"Annual Meeting"), on which date you shall be deemed to resign as a director and
Chairman of the Board. Thereafter, you shall serve as Vice Chairman - Strategic
Alliances and Corporate Development, a non-officer position, until the
expiration of the Term.
During the period through May 25, 2005, the anticipated date of the
Annual Meeting, you agree to remain available, on a regular and continuous
basis, to work with the Board on matters relating to your transition.
Thereafter, as Vice Chairman, you agree to advise the Company in dealing with
the New York State Business Council, the Table Top Association and such other
related trade associations as well as to provide assistance and consultation to
the Company in connection with activities relating to acquisitions, mergers and
refinancing of corporate debt. Furthermore, in such capacity as Vice Chairman,
you agree to advise the Company regarding its licensing activities and product
expansion efforts and, as and when directed, to serve as a liaison for
communications between the Company and any of its customers and suppliers.
Finally, you agree to advise and/or assist the Company on such other special
projects upon which you and the Board may mutually agree. The hours and schedule
for the performance of your obligations hereunder shall be mutually agreed in
good faith by you and the President and Chief Executive Officer.
1. Transition Period. (a) Salary. Subject to your execution of (i) a
unanimous written consent of the Board approving this Agreement, accepting your
resignation as President and Chief Executive Officer pursuant to this Agreement,
and electing your successor as President and Chief Executive Officer, and (ii)
this Agreement, which contains a release of claims against the Company as set
forth in Section 5 below, as well as the Company's release of claims against
you, you shall continue to receive your Base Salary (as such term is defined in
Section 6 of the Letter Agreement) during the Transition Period at the rate in
effect on the CEO Resignation Date. Additionally, for such period you
shall be reimbursed by the Company for such reasonable and necessary business
related expenses incurred by you in your capacity as Vice Chairman - Strategic
Alliances and Corporate Development. Furthermore, the Board specifically agrees
that during the period you are receiving compensation pursuant to this
Agreement, you shall be permitted to seek and accept employment, and work
elsewhere, in any capacity, subject to the limitations set forth in Section 7(a)
of the Letter Agreement, as modified by Section 3(a) below.
(b) Benefits. During the Transition Period, you shall continue to
participate, to the extent eligible, in all the employee benefits plans or
programs of the Company as are generally available to other similarly situated
employees. Specifically, and without limitation, you shall continue to receive
all medical, health, dental and vision plan coverages currently available to you
and your lawful dependents at no additional cost to you (beyond what is
currently charged to you) until the later of (i) the expiration of the
Transition Period or (ii) the expiration of the applicable period of
continuation coverage under COBRA; provided, however, that any such coverage
shall cease upon your employment with an employer with which you are eligible
for any health benefits.
(c) Bonus for Fiscal Years Ending January 2006 and January 2007; No
Participation in Other Incentive Arrangements. You shall be eligible for a bonus
of up to $85,000 for the fiscal year ending January 2006 (even if you secure
other employment during such fiscal year), which shall be paid at the same times
as bonuses are generally paid under the Company's Fiscal 2006 Annual Incentive
Plan-Cash Bonus Plan (the "AIP"). One half of such amount shall be earned based
upon the attainment of EBITDAR goals as follows: at $28.2 million of EBITDAR and
above, the full amount ($42,500) shall be earned; at $25.38 million of EBITDAR,
one-half ($21,250) shall be earned; below $25.38 million of EBITDAR, no portion
shall be earned; and between $25.38 and $28.2 million of EBITDAR, the bonus
shall be linearly interpolated between $21,250 and $42,500. The amount, if any,
of the remaining one half of your potential bonus for fiscal 2006 (up to
$42,500) shall be determined in the full discretion of the President and Chief
Executive Officer and the Compensation Committee of the Board, based upon its
assessment of your overall contribution and efforts made on behalf of the
Company. Provided that you have not commenced employment with any other
employer, you will also be eligible for a bonus of up to $85,000 for the fiscal
year ending January 2007, one half of which will be based on the attainment of
the Company-wide goals established for use under the AIP for that year, and one
half of which shall be subject to the discretion of the President and Chief
Executive Officer and the Compensation Committee. Other than as provided above,
you shall not participate in any annual or long-term incentive plans, programs
or arrangements of the Company, whether formal or informal, written or unwritten
after the CEO Resignation Date.
(d) Unpaid Vacation Leave. Within 10 days of execution of this
Agreement, you shall be reimbursed at your daily rate, for three weeks of
accrued and/or earned vacation, which the parties hereby agree represents all
accrued and/or earned vacation leave existing as of the date of execution of
this Agreement. You shall not earn or accrue any vacation during the Transition
Period.
(e) Reimbursement for Other Non-Specified Expenses. The Company agrees
to reimburse you, within 10 days of execution of this Agreement, in the amount
of $25,000 for unspecified expenses, which shall be subject to withholding.
(f) Office Space; Home Telecommunication Equipment. The Company shall
provide you with office space and secretarial assistance during the Transition
Period. During the Transition Period,
the Company also shall continue to furnish and support your current home
telecommunication equipment.
2. Duties. During your service as Chairman and Vice Chairman of the
Board, you shall report to the Company's Board and the President and Chief
Executive Officer.
3. Restrictive Covenants. (a) In General. You agree and acknowledge
that the terms of the restrictive covenants set forth in Section 7 of the Letter
Agreement shall remain in full force and effect; provided, however, that the
"Restricted Period" thereunder shall be deemed to expire on July 30, 2007.
(b) Non-Disparagement. The parties agree not to criticize,
denigrate or disparage each other, including your work record and the operations
and policies of the Company, its parent, directors, officers, agents, employees,
successors and assigns.
4. Releases. (a) General Release. In consideration of the payments
provided to you herein, and after consultation with counsel, you and each of
your heirs, executors, administrators, representatives, agents, successors and
assigns (collectively, the "Releasors") hereby irrevocably and unconditionally
release and forever discharge the Company and each of its officers, employees,
directors, shareholders and agents from any and all claims, actions, causes of
actions, rights, judgments, obligations, damages, demands, accountings or
liabilities of whatever kind or character (collectively, "Claims"), including,
without limitation, any Claims under federal, state, local or foreign law, that
the Releasors may have, or in the future may possess, arising out of (i) your
employment relationship with and service as an employee, officer or director of
the Company, and the termination thereof, (ii) the Letter Agreement, or (iii)
any event, condition, circumstance or obligation that occurred, existed or arose
on or prior to the date hereof; provided, however, that the release set forth in
this Section 4(a) shall not apply to the obligations of the Company under this
Agreement. The Releasors further agree that the payments described in this
Agreement shall be in full satisfaction of any and all Claims for payments or
benefits, whether express or implied, that the Releasors may have against the
Company arising out of your employment relationship with the Company, your
service as an employee, officer or director of the Company and the termination
thereof. The foregoing release of claims shall not apply to any pre-existing
obligations of the Company with respect to any retirement plan, SERP, QSERP or
401(K) plan or benefit in which you participate.
(b) Specific Release of ADEA Claims. In further consideration of the
payments provided to you under this Agreement, the Releasors hereby
unconditionally release and forever discharge the Company and each of its
officers, employees, directors, shareholders and agents from any and all Claims
that the Releasors may have as of the date you sign this Agreement arising under
the Federal Age Discrimination in Employment Act of 1967, as amended, and the
applicable rules and regulations promulgated thereunder ("ADEA"). By signing
this Agreement, you hereby acknowledge and confirm the following: (i) you were
advised by the Company in connection with your resignation to consult with any
attorney of your choice prior to signing this Agreement and to have such
attorney explain to you the terms of this Agreement, including, without
limitation, the terms relating to your release of claims arising under ADEA;
(ii) you were given a period of not fewer than 21 days to consider the terms of
this Agreement and to consult with an attorney of your choosing with respect
thereto; (iii) you are providing the release and discharge set forth in this
Section 4(b) only in exchange for consideration
in addition to anything of value to which you are already entitled; and (iv)
that you knowingly and voluntarily accept the terms of this Agreement.
(c) Representations. You hereby represent that you have not filed any
action, complaint, charge, grievance or arbitration against the Company or any
of its officers, employees, directors or agents.
(d) Company Release of Claims. In exchange for the benefits and
consideration provided to it pursuant to the terms of this Agreement, the
Company, hereby waives, releases and forever discharges you, your heirs,
representatives, successors and assigns, from any and all claims, known or
unknown, that it has or may have against you arising from any event, condition,
circumstance or obligation that occurred, existed or arose on or prior to the
date hereof, including, but not limited to, any claims relating to, arising out
of, or resulting from your employment by the Company, and/or separation
therefrom.
5. Revocation. This Agreement may be revoked by you within the
seven-day period commencing on the date you sign this Agreement (the "Revocation
Period"). In the event of any such revocation by you, all obligations of the
Company under this Agreement shall terminate and be of no further force and
effect as of the date of such revocation. No such revocation by you shall be
effective unless it is in writing and signed by you and received by the Company
prior to the expiration of the Revocation Period. Notwithstanding anything to
the contrary herein, in the event of any such revocation by you, your
resignation as President and Chief Executive Officer of the Company shall
continue to be effective as of the CEO Resignation Date.
6. Cooperation. You understand that you may be required to execute a
representation letter addressed to the Company's auditors with respect to fiscal
year 2005, as well as other certifications or representations under
Xxxxxxxx-Xxxxx or other applicable law or regulations (to the extent you are
legally permitted to execute such documents), and you hereby agree to do so at
the request of the Board in connection with your service as President and Chief
Executive Officer during such fiscal year. Your obligation to execute such
representation letter and other certifications or representations shall be
conditioned upon your good faith belief that all necessary underlying reports
made by others in connection with such year-end representations, certifications
and disclosures have also been made in good faith. You agree that, following the
CEO Resignation Date, you shall in good faith use your best efforts to make
yourself available to assist and cooperate with the Company, in connection with
any pending or future governmental or regulatory investigation, civil or
administrative proceeding, litigation or arbitration related to the business of
the Company or to your services as an employee or officer of the Company.
7. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York applicable to contracts
executed in and to be performed entirely within the state (without regard to the
choice of law provisions thereof).
8. Public Information Release. The parties agree that a mutually
agreed-to press release/public information statement, in the form of the
attached Exhibit "A," shall be released concerning your separation from the
Company.
9. Notices. Any notices required or made pursuant to this Agreement
shall be in writing and shall be deemed to have been given when personally
delivered or mailed by United States certified mail, return receipt requested,
postage prepaid, as follows:
If to Xxxxx X. Xxxxxx:
At the address and/or facsimile number maintained
by the Company in its records
If to the Company:
Oneida Ltd.
c/o General Counsel
000-000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
or to such other address as either party may furnish to the other in writing in
accordance with this Section 9. Notice of change of address shall be effective
only upon receipt.
10. Successors. This Agreement shall inure to the benefit of and be
binding upon and enforceable by the Company and its successors, permitted
assigns, heirs, legal representatives, executors and administrators. The Company
agrees that in the event of your death, your personal representative(s) shall be
entitled to receive any and all payments then due under this Agreement, and any
and all payments due hereunder through July 28, 2007 (the expiration of the
Transition Period).
11. Miscellaneous Agreements. (a) Notwithstanding any other provision,
the Board and the Company acknowledge that there did not exist at the time of
execution of this Agreement any reason to terminate your services for Cause (as
such term is defined in the Letter Agreement).
(b) The Company agrees that during your services as Vice Chairman you
shall, at your election, be entitled to exclusively utilize your current office
and receive such clerical and administrative support as you deem appropriate.
12. Counterparts. All executed copies of this Agreement shall have the
same force and effect and shall be as legally binding and enforceable as the
original. This Agreement may be executed in counterparts, each of which shall
constitute a single enforceable instrument.
13. Entire Agreement. All prior negotiations and agreements between the
parties hereto with respect to the matters contained herein (including without
limitation, the Letter Agreement) are superseded by this Agreement, and there
are no representations, warranties, understandings or agreements other than
those expressly set forth herein.
Your signature below constitutes your agreement with each provision
contained in this Agreement.
ONEIDA LTD.
By: /s/ XXXX XXXXXX
-----------------------
Name: Xxxx Xxxxxx
Title: Chairman of the Management Development
And Executive Compensation Committee
Accepted and agreed:
/s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
Date: 3/23/05
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