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EXHIBIT 10.16
STATE OF NORTH CAROLINA
EARLY RETIREMENT AGREEMENT
COUNTY OF MECKLENBURG
THIS EARLY RETIREMENT AGREEMENT (this "Agreement") is entered into as
of June 10, 1998 by and between XXXXX, INC., a North Carolina corporation (the
"Company"), and XXXXX X. XXXXXX ("Xxxxxx").
STATEMENT OF PURPOSE
Xxxxxx has been employed by the Company since July 18, 1994. On
November 11, 1997, the Company and Xxxxxx entered into an Executive Severance
Agreement (the "Severance Agreement"), whereby the Company provided Xxxxxx with
certain benefits. Xxxxxx currently holds the title of Senior Vice President of
the Company.
Xxxxxx has decided to retire from his position with the Company. The
Company and Xxxxxx have entered into negotiations with a view toward resolving
all issues relating to Xxxxxx'x employment with the Company and his retirement
from that employment.
As a result of these negotiations, Xxxxxx and the Company have agreed
that Xxxxxx will retire and that Xxxxxx and the Company will terminate their
relationship on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the Statement of Purpose and the
terms and provisions of this Agreement, the parties hereto mutually agree as
follows:
1. DEFINITIONS. Capitalized terms used in this Agreement that are not
expressly defined herein but are defined in the Severance Agreement have the
respective meanings given those terms in the Severance Agreement. In addition,
as used herein, the following terms shall have the following meanings:
(a) "Affiliate" with reference to the Company means any Person
that directly or indirectly is controlled by, or is under
common control with, the Company. For purposes of this
definition the term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction
of the management and policies of a Person, whether through
ownership of voting securities, by contract or otherwise.
(b) "Person" means any individual, corporation, association,
partnership, business trust, joint stock company, limited
liability company, foundation, trust, estate or other entity
or organization of whatever nature.
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(c) "Effective Date" with reference to this Agreement means the
eighth (8th) day following the execution of this Agreement, if
not a Saturday, Sunday or legal holiday, and if such day is a
Saturday, Sunday or legal holiday, then the first business day
following such eighth (8th) day.
2. RESIGNATION. Xxxxxx hereby retires from employment and resigns from
all offices, committees and positions he holds with the Company and its
Affiliates, including but not limited to, Senior Vice President of the Company,
with said resignation to be effective as of June 10, 1998. Xxxxxx will remain on
the payroll through June 26, 1998 and will be considered during such period as
being on vacation, and in such connection will have no duties or
responsibilities except to consult from time to time with Company officials
regarding the transfer of his responsibilities to others. If requested by the
Company, Xxxxxx will execute any additional resignation letters, forms or other
documents which acknowledge his resignation from such employment, positions,
committees and offices.
3. PAYMENTS BY THE COMPANY AND DEFERRAL. The Company agrees to pay or
provide Xxxxxx with the following:
(a) Compensation and benefits to which Xxxxxx is otherwise
entitled as an employee of the Company at Xxxxxx'x current
rate and status through June 26, 1998, in accordance with the
Company's generally applicable policies and procedures;
(b) Compensation and benefits to which Xxxxxx is otherwise
entitled under the Severance Agreement in accordance with the
terms of the Severance Agreement. For purposes hereof, the
Company acknowledges and agrees that Xxxxxx shall be
considered to have been involuntarily terminated Without
Cause, and shall be due all payments and benefits set forth in
paragraph 4 of the Severance Agreement;
(c) Possession of the Company automobile used by Xxxxxx in
connection with his employment together with conveyance of
title to said automobile promptly following the Effective Date
of this Agreement;
(d) Health benefits for Xxxxxx until December 31, 2000 or his
earlier death under the HMO coverage option under the
Company's group medical plan. During this period, Xxxxxx will
be required to pay those amounts the Company's employees are
customarily required to pay from time to time for such
coverage and will be entitled to obtain at his expense
optional family/dependent medical coverage under the Company's
group medical plan. After December 31, 2000, the Company will
provide to Xxxxxx, at such expense to Xxxxxx as shall then be
required of the Company's retired executives, health benefits
as a "retiree" under such program, if any, as may then be
available to the Company's retired executives and/or their
dependents;
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(e) Xxxxxx has vested interests under Company sponsored 401(k),
Employee Stock Purchase and Incentive Equity plans. Xxxxxx'x
vested interest in these plans shall be paid when and as
provided in, and otherwise subject to, the terms, provisions
and conditions of said plans, and nothing in this Agreement
shall modify or override the terms, provisions or conditions,
except that the Company shall request the Compensation/Stock
Option Committee of the Board of Directors of the Company to
amend Xxxxxx'x nonqualified stock option agreements to provide
that vested shares may be exercised for three years after June
26, 1998 and to amend Xxxxxx'x performance restricted stock
award agreements to provide that the awards be prorated
monthly;
(f) As of June 2, 1998, Xxxxxx has a balance of $14,675 in the
Company sponsored Profit Sharing Retirement Plan, $640 in the
Company sponsored 401(k) Plan and a balance of $7,582 in the
Company sponsored Benefit Restoration Plan. None of these
balances are vested; however, as an additional severance
benefit, the Company will pay Xxxxxx an amount equal to those
unvested balances, plus an amount equal to the income taxes
payable by Xxxxxx on such amount, provided, that the Company
shall not be obligated to pay these amounts to Xxxxxx until
December 31, 1998 and provided further, to the extent that
amendments to the Profit Sharing Retirement Plan, 401(k) Plan
or the Benefit Restoration Plan permit vesting and immediate
payment of such balances prior to December 31, 1998 for
Xxxxxx, the Company shall not be obligated to make such
payments;
(g) The Company will provide Xxxxxx, at no expense to him,
outplacement services for a period of up to twelve months
beginning in 1998 at a cost not to exceed $30,000;
(h) Xxxxxx hereby elects to defer until January 31, 1999 $200,000
of the compensation payable pursuant to Section 3(b) hereof
and the Company agrees to pay such deferred amount to Xxxxxx
no earlier than January 4, 1999 and no later than January 31,
1999, plus interest at 6% on such amount from June 26, 1998
until paid;
(i) Xxxxxx hereby elects to defer until December 31, 2000 $25,000
of the compensation payable pursuant to Section 3(b) hereof
and the Company agrees to pay such deferred amount to Xxxxxx
no earlier than December 15, 2000 and no later than December
31, 2000, plus interest at 6% on such amount from June 26,
1998 until paid;
(j) In consideration for the non-competition agreements of Xxxxxx
contained in Section 7 hereof, the sum of $90,544. No
withholdings for income or employment taxes shall be made from
the amount paid pursuant to this Section 3(j).
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4. TERMINATION OF THE COMPENSATION AND BENEFITS ASSURANCE AGREEMENT AND
ALL OTHER BENEFITS NOT SPECIFIED IN THIS AGREEMENT. On November 11, 1997, Xxxxxx
and the Company entered into a Compensation and Benefits Assurance Agreement
which was intended to provide Xxxxxx with certain compensation and benefits in
the event of the termination of his employment under certain specified
circumstances in connection with a Change in Control, as defined in the
Compensation and Benefits Assurance Agreement. It is agreed that this Agreement
is not being entered into in connection with a Change in Control, that Xxxxxx is
not entitled to receive any compensation or benefits under the Compensation and
Benefits Assurance Agreement, that the Compensation and Benefits Assurance
Agreement is hereby terminated and that neither party has any further rights and
obligations thereunder. The Company and Xxxxxx acknowledge and agree that all
other benefits and perquisites related to or resulting from Xxxxxx'x employment
and positions with the Company and its Affiliates, which are not described and
provided for in this Agreement, terminate on the Effective Date, and that the
Company has no further obligations with respect thereto.
5. CONFIDENTIAL INFORMATION AND COMPANY PROPERTY. Xxxxxx acknowledges
that by reason of Xxxxxx'x employment by the Company, Xxxxxx has had access to
certain Company "Trade Secrets" (as defined in the North Carolina Trade Secrets
Protection Act, N.C.G.S. ss.66-152) and confidential product formulations
(collectively "Confidential Information"). Xxxxxx agrees that he shall not
directly or indirectly use, reveal, disclose or remove from the Company's
premises Confidential Information or material containing Confidential
Information, without the prior written consent of the Company. In addition,
Xxxxxx agrees that he will turn over and return to the Company no later than
June 26, 1998 all property whatsoever of the Company now in his possession
(including keys and credit cards).
6. EMPLOYMENT TAXES AND WITHHOLDINGS. Xxxxxx acknowledges and agrees
that the Company shall withhold from the payments and benefits described in this
Agreement all taxes, including income and employment taxes, required to be so
deducted or withheld under applicable law.
7. NON-COMPETITION. Xxxxxx agrees that in consideration of the payment
by the Company under Section 3(j) hereof, he will not during the period June 27,
1998 through December 26, 1999, become employed by, perform services for or
consult with the following corporations, their subsidiaries or affiliates which
are involved in the manufacture or sale of sandwich crackers, or their
successors or assigns: Frito Lay, Tom's, Nabisco, Keebler and Austin.
8. RELEASE OF THE COMPANY. Xxxxxx, on behalf of himself and his heirs,
personal representatives, successors and assigns, hereby releases and forever
discharges the Company and its Affiliates, and each and every one of their
respective present and former shareholders, directors, officers, employees and
agents, and each of their respective successors and assigns, from and against
any and all claims, demands, actions, causes of action, damages, costs and
expenses, including without limitation all "Employment-Related Claims," which
Xxxxxx now has or may have by reason of any thing occurring, done or omitted to
be done to the date of this Agreement; provided, however, this release shall not
apply to (i) any claims which Xxxxxx may
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have for the payments or benefits expressly provided for Xxxxxx or otherwise
specifically referred to in this Agreement; or (ii) the Company's obligation to
defend and indemnify Xxxxxx in accordance with the provisions of the Company's
Bylaws and Restated Articles of Incorporation. For purposes of this Agreement,
"Employment-Related Claims" means all rights and claims Xxxxxx has or may have:
(i) related to his employment by or status as an employee of the
Company or any of its Affiliates or the termination of that
employment or status or to any employment practices and
policies of the Company, or its Affiliates; or
(ii) under the federal Age Discrimination in Employment Act of
1967, as amended ("ADEA").
9. SPECIAL ADEA WAIVER ACKNOWLEDGEMENTS. XXXXXX ACKNOWLEDGES AND AGREES
THAT HE HAS READ THIS AGREEMENT IN ITS ENTIRETY AND THAT THIS AGREEMENT CONTAINS
A GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS, INCLUDING RIGHTS AND CLAIMS
ARISING UNDER THE FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS
AMENDED ("ADEA"). XXXXXX FURTHER ACKNOWLEDGES AND AGREES THAT:
(a) THIS AGREEMENT DOES NOT RELEASE, WAIVE OR DISCHARGE ANY RIGHTS
OR CLAIMS THAT MAY ARISE AFTER THE DATE OF THIS AGREEMENT;
(b) HE IS ENTERING INTO THIS AGREEMENT AND RELEASING, WAIVING AND
DISCHARGING RIGHTS OR CLAIMS ONLY IN EXCHANGE FOR
CONSIDERATION WHICH HE IS NOT ALREADY ENTITLED TO RECEIVE;
(c) HE HAS BEEN ADVISED, AND IS BEING ADVISED IN THIS AGREEMENT,
TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING THIS AGREEMENT
AND IS EXECUTING THIS AGREEMENT WITH THE ADVICE OF COUNSEL;
(d) HE HAS BEEN ADVISED, AND IS BEING ADVISED IN THIS AGREEMENT,
THAT HE HAS UP TO TWENTY-ONE DAYS (21) DAYS WITHIN WHICH TO
CONSIDER THIS AGREEMENT AND THAT IF HE EXECUTES THIS AGREEMENT
PRIOR TO THE EXPIRATION OF THE TWENTY-ONE (21) DAY PERIOD,
THEN HE EXPRESSLY WAIVES HIS RIGHTS WITH RESPECT TO THE
REMAINING TIME AND THAT THE AGREEMENT WILL BECOME EFFECTIVE
FOLLOWING THE EXPIRATION OF THE SEVEN (7) DAY PERIOD REFERRED
TO IN PARAGRAPH 8 (e) BELOW; AND
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(e) HE IS AWARE THAT THIS AGREEMENT WILL NOT BECOME EFFECTIVE OR
ENFORCEABLE UNTIL SEVEN (7) DAYS FOLLOWING HIS EXECUTION OF
THIS AGREEMENT AND THAT HE MAY REVOKE THIS AGREEMENT AT ANY
TIME DURING SUCH PERIOD BY DELIVERING (OR CAUSING TO BE
DELIVERED) TO THE PRINCIPAL OFFICE OF THE COMPANY NOTICE OF
HIS REVOCATION OF THIS AGREEMENT NO LATER THAN 5:00 P.M.
EASTERN TIME ON THE SEVENTH (7TH) FULL DAY FOLLOWING HIS
EXECUTION OF THIS AGREEMENT.
10. CONFIDENTIALITY OF THIS AGREEMENT; EMPLOYMENT REFERENCE. Xxxxxx
shall not at any time, directly or indirectly, discuss with or disclose to
anyone (other than to members of his immediate family, his attorney, his tax
advisors and the appropriate taxing authorities or as otherwise required by law,
hereinafter "Qualified Persons") the terms of this Agreement, including the
amounts payable hereunder. Xxxxxx further agrees that he shall not discuss with
anyone other than Qualified Persons the circumstances surrounding the
termination of his employment. If any person asks Xxxxxx about the above
matters, he will simply say that he retired from the Company and all issues
relating to his employment have been resolved. Xxxxxx further agrees that for a
period of five years from the Effective Date, he will refrain from making
derogatory comments about the Company or its agents or affiliates to the
Company's customers, suppliers or employees. The Company agrees that for a
period of five years from the Effective Date, the Company and its officers will
likewise refrain from making derogatory comments about Xxxxxx to the Company's
customers, suppliers or employees. The Company further agrees that if any person
makes inquiry concerning Xxxxxx, the Company will advise such person only as to
the dates of Xxxxxx'x employment with the Company, the positions held and that
he voluntarily retired from the Company.
11. APPLICABLE LAW. This Agreement is made and executed with the
intention that the construction, interpretation and validity hereof shall be
determined in accordance with and governed by the laws of the State of North
Carolina.
12. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the Company, its successors and assigns. This Agreement shall be
binding upon and inure to the benefit of Xxxxxx, his heirs, executors and
administrators.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes and
cancels all prior or contemporaneous oral or written agreements and
understandings between them with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by its duly authorized officers and its corporate seal to be hereunto affixed,
and Xxxxxx has hereunto set his hand and seal, all as of the day and year first
above written.
XXXXX, INC.
[CORPORATE SEAL]
ATTEST: By s/ Xxxx X. Xxxxxx, III
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President
s/ Xxxxxx X. Xxxxxx
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Secretary
s/ Xxxxx X. Xxxxxx [SEAL]
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Xxxxx X. Xxxxxx
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AMENDMENT AGREEMENT
THIS AMENDMENT AGREEMENT (the "Agreement") is entered into as of June
26, 1998 by and between XXXXX, INC., a North Carolina corporation (the
"Company"), and XXXXX X. XXXXXX ("Xxxxxx").
STATEMENT OF PURPOSE
The Company through its Compensation/Stock Option Committee has
heretofore granted to Xxxxxx certain nonqualified stock options and performance
restricted stock awards. Pursuant to Early Retirement Agreement dated as of June
10, 1998 Xxxxxx has retired from the Company. The Committee has authorized
amendments to certain Nonqualified Stock Option Agreements and Performance
Restricted Stock Award Agreements between the Company and Xxxxxx on the terms
and conditions contained herein.
NOW, THEREFORE, in consideration of the Statement of Purpose and the
terms and provisions of this Agreement, the parties hereto mutually agree as
follows:
1. AMENDMENT OF NONQUALIFIED STOCK OPTION AGREEMENTS.
(a) The Nonqualified Stock Option Agreement dated April
19, 1996 between the Company and Xxxxxx is hereby
amended to provide that the vested option to purchase
6,350 shares of the Common Stock of the Company may
be exercised by Xxxxxx at any time prior to three
years from the date hereof, through June 25, 2001.
(b) The Nonqualified Stock Option Agreement dated April
18, 1997 between the Company and Xxxxxx is hereby
amended to provide that the vested option to purchase
2,512 shares of the Common Stock of the Company may
be exercised by Xxxxxx at any time prior to three
years from the date hereof, through June 25, 2001.
2. AMENDMENT OF PERFORMANCE RESTRICTED STOCK AWARD AGREEMENTS.
(a) The Performance Restricted Stock Award Agreement
dated April 18, 1997 between the Company and Xxxxxx
is hereby amended to provide that the Shares are
vested pro rata based on the number of full months
from the date of award through the date hereof to the
date three years after the award date which results
in the vesting of 603 shares of Common Stock of the
Company which shares shall be issued to Xxxxxx
without restriction. The balance of the Shares shall
be forfeited.
(b) The Performance Restricted Stock Award Agreement
dated April 16, 1998 between the Company and Xxxxxx
is hereby amended to provide that the Shares are
vested pro rata based on the number of full months
from the
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date of award through the date hereof to the date
three years after the award date which results in the
vesting of 78 shares of Common Stock of the Company
which shares shall be issued to Xxxxxx without
restriction. The balance of the Shares shall be
forfeited.
3. MISCELLANEOUS. Except as expressly modified herein the above
described Nonqualified Stock Option Agreements and Performance Restricted Stock
Award Agreements shall remain in full force and effect. This Agreement shall be
governed by and construed in accordance with the laws of the State of North
Carolina. This Agreement shall be binding upon and inure to the benefit of the
Company, its successors and assigns. This Agreement shall be binding upon and
inure to the benefit of Xxxxxx, his heirs, executors and administrators.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by its duly authorized officer and Xxxxxx has hereunto set his hand and seal,
all as of the day and year first above written.
XXXXX, INC.
By s/ Xxxx X. Xxxxx
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Vice President
s/ Xxxxx X. Xxxxxx [SEAL]
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Xxxxx X. Xxxxxx
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