Exhibit 10.1
CONSULTING AND RETIREMENT AGREEMENT
-----------------------------------
Xxxx Xxx Corporation (the "Company") and Xxxx X. Xxxxxx ("Executive")
enter into this Consulting and Retirement Agreement (this "Agreement") on the
30th day of January, 2002.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Executive is employed by the Company as an Executive Vice President;
WHEREAS, Executive and the Company desire to enter into an agreement
relating to Executive's retirement.
NOW, THEREFORE, in consideration of the covenants and mutual promises
herein contained, it is agreed as follows:
1. Retirement Date. The Executive's Retirement Date shall be November 1,
2001. Until the Retirement Date, Executive shall continue as an employee of the
Company. Executive hereby resigns his employment and all appointments he holds
with the Company and its affiliates effective as of the Retirement Date.
Executive understands and agrees that his employment with the Company will
conclude on the close of business on the Retirement Date.
2. Salary Continuation Payments.
(a) The Company agrees to continue to pay Executive, commencing on the day
following the Retirement Date and ending on June 30, 2005 (the "Salary
Continuation Period"), the gross amount of $1,312,500.00 in 44 equal monthly
installments of $29,829.55 in accordance with the Company's normal payroll
practices (collectively, the "Salary Continuation Payments"), less all
applicable withholding taxes and other customary payroll deductions. The Salary
Continuation Payments will commence on the first payroll date following the
Retirement Date or following the eighth day after the Executive has signed this
Agreement without revoking it pursuant to Paragraph 16(b) below, whichever is
later.
(b) In the event of the Executive's death during the Salary Continuation
Period, the Salary Continuation Payments, and any awards under the LTPIP and GIS
referred to in Subparagraphs 6(b) and 6(c), shall be payable to the beneficiary
designated by the Executive under this Agreement and delivered to the Company
or, if none, to his estate and, except to the extent benefits contemplated by
this Agreement are provided by their terms to be paid to Executive's heirs and
beneficiaries, the Company shall have no further obligations to Executive's
beneficiaries under this Agreement.
(c) The Salary Continuation Payments shall cease if the Executive becomes
reemployed by the Company or any enterprise in which the Company owns a
controlling interest, provided the Company owns such controlling interest at the
time Executive commences such employment.
3. Receipt of Other Compensation. Executive acknowledges and agrees that,
other than as specifically set forth in this Agreement, following the Retirement
Date, he is not and will not be due any compensation, 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
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accrued or unused vacation time or vacation pay from the Company or any of its
affiliates, and as of and after the Retirement Date, except as provided herein,
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,
including, without limitation, the Company's Consolidated Pension and Retirement
Plan, Employee Stock Ownership Plan ("ESOP"), 401(k) Supplemental Savings Plan,
stock purchase plan, travel accident insurance, personal accident insurance,
accidental death and dismemberment insurance and short-term and long-term
disability insurance. Executive will be entitled to receive benefits, which are
vested and accrued prior to the Retirement Date, pursuant to the employee
benefit plans of the Company, and any participation by the Executive (if any) in
any of the compensation or benefits plans of the Company or any of its
affiliates as of and after the Retirement Date shall be subject to and
determined in accordance with the terms and conditions of such plans, except as
otherwise expressly set forth in this Agreement. The Company shall promptly
reimburse Executive for business expenses incurred in the ordinary course of
Executive's employment on or before the Retirement Date, but not previously
reimbursed, provided the Company's policies of documentation and approval are
satisfied.
4. Short-Term Bonus. Executive shall receive a prorated portion of
Executive's bonus earned under the Annual Incentive Plan of the Company for the
2002 fiscal year. Executive's bonus shall be prorated at 33.3% reflecting his
employment for one-third of the 2002 fiscal year. For purposes of calculating
the bonus, the Company will assume a Superior level of performance by the
Executive. The bonus payment provided for in this Paragraph 4 shall be in lieu
of, not in addition to, all bonuses payable to the Executive and shall be paid
to Executive on the same date or dates on which active participants under such
Annual Incentive Plan are paid bonuses for the applicable bonus periods. The
bonus payment, if any, made by the Company shall be made in cash and shall be
reduced by applicable withholding and other customary payroll deductions.
Executive shall not be entitled to participate in any annual bonus plan of the
Company for any fiscal year ending after the 2002 fiscal year.
5. Supplemental Non-qualified ESOP and Retirement Plan Benefits. For purposes
of determining the amount of Executive's supplemental pension benefit under the
Xxxx Xxx Corporation Supplemental Benefit Plan ("Supplemental Plan") and
Executive's eligibility for such supplemental pension, the Salary Continuation
Period shall be considered as vesting and benefit service and Executive's Salary
Continuation Payments (and any bonus paid pursuant to Section 4) shall be
considered compensation. In the event of Executive's death prior to the end of
the Salary Continuation Period, Executive shall be considered to have attained
age 55 for purposes of determining any benefit his spouse is entitled to receive
under the Supplemental Plan and Executive's spouse shall be entitled to commence
payment of her surviving spouse's benefit beginning on the date Executive would
have attained age 55. Executive has been provided a copy of the calculation of
his estimated pension which is attached as Schedule A to this Agreement. In
addition, for purposes of determining the amount of Executive's supplemental
ESOP benefit under the Supplemental Plan, the Salary Continuation Period shall
be considered as vesting service and Executive's Salary Continuation Payments
shall be considered compensation.
6. Stock Options, LTPIP, GIS and Retention Grant.
(a) Executive shall not be granted any and shall not be entitled to receive
any new stock options or restricted stock awards after November 1, 2001.
Executive's existing stock options as set forth on Schedule B to this Agreement
will continue to vest during the Salary Continuation Period in accordance with
their vesting schedules. Following the end of the Salary Continuation Period or
upon Executive's death during the Salary Continuation Period, Executive shall be
treated as a Retired Participant under the Company's stock option plans. As a
Retired Participant, Executive's then outstanding
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stock options will continue to vest and may be exercised until the earlier of
(i) the expiration date of the option or (ii) June 30, 2010; provided, however,
that with respect to any options granted on or after January 27, 2000, such
options may be exercised at any time prior to the expiration date of the option.
From and after November 1, 2001, Executive shall not be eligible to be issued
replacement stock options upon exercise of any options held by him.
Notwithstanding anything contained in this Section 6, if, at any time prior to
the date of exercise of any stock option, Executive engages in: (i) conduct for
which Executive is convicted of a felony, (ii) conduct that would constitute a
breach of this Agreement under Paragraphs 11, or 12 or 13; or (iii) violation of
the Company's Global Business Standards, in effect on the date of the Agreement,
a copy of which is attached as Schedule C to this Agreement, in a manner that
would constitute a material violation; then the Executive's unexercised stock
options shall terminate effective the date on which Executive enters into such
activity.
(b) Subject to the determination of the Compensation and Employee Benefits
Committee of the Company's Board of Directors (the "Committee"), Executive will
be entitled to a distribution of his awards under the Company's Long-Term
Performance Incentive Plans ("LTPIP") for FY00-02 and FY01-03. The award for
FY00-02 shall be prorated at 28/36th, and the award for FY01-03 shall be
prorated at 16/36th of the respective award earned under the LTPIP for the
relevant performance period. The awards shall be calculated in a manner
consistent with the methodology used to calculate awards generally for other
similar situated participants in the LTPIP. The Company shall recommend to the
Committee that Executive receive an award under the LTPIP.
(c) Executive's April 27, 2000 award of 20,200 Growth Initiative Shares
("GIS") shall continue to vest during the Salary Continuation Period and shall
be paid on the same date or dates on which Growth Initiative Shares are
distributed to Participants in the Plan. The award shall be reduced by
applicable withholding and other customary payroll deductions.
(d) Executive shall forfeit his August 1999 retention award of 15,000
restricted shares of the Company's common stock.
7. Health Insurance Continuation, Universal Life. Beginning on the Retirement
Date, Executive shall be eligible to elect COBRA continuation coverage under the
group medical and dental plan available to corporate officers of the Company. If
Executive elects COBRA continuation coverage, the Company will subsidize the
premium for such continuation coverage during the Salary Continuation Period, to
the extent the Executive would otherwise be required to pay more for such
coverage during the Salary Continuation Period than a similarly situated active
employee would be required to pay for comparable coverage. If the Salary
Continuation Period exceeds the COBRA continuation period, the Company will
continue to subsidize the premium for such continuation coverage during the
Salary Continuation Period and the Executive will continue to receive group
medical and dental coverage on the same terms and conditions as during the COBRA
continuation period, until the end of the Salary Continuation Period, subject to
the terms of all applicable group medical and dental plans in effect from time
to time. Executive may elect, during the 30 day period commencing on the
Retirement Date, to participate, effective as of the end of the Salary
Continuation Period, in the Xxxx Xxx Corporation Retiree Medical Plan available
to the Executive Benefit Group of the Company in accordance with the terms and
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conditions of the plan in effect from time to time; provided that, such coverage
shall not be available to the Executive at the conclusion of the Salary
Continuation Period unless he elects such coverage within thirty (30) days
following the Retirement Date. If Executive dies prior to the end of the Salary
Continuation Period and Executive had elected COBRA continuation coverage under
the group medical and dental plan, COBRA continuation coverage shall continue
for Executive's surviving spouse and dependents until the end of the Salary
Continuation Period under the same terms and conditions that coverage would have
been provided to Executive under this Agreement. If Executive dies prior to the
end of the Salary Continuation Period and Executive had elected coverage under
the Xxxx Xxx Retiree Medical Plan effective as of the end of the Salary
Continuation Period, coverage under the Retiree Medical Plan shall be provided
to Executive's surviving spouse and dependents, subject to the terms and
conditions of the plan, beginning as of the end of the Salary Continuation
Period. The premium charged Executive or his surviving spouse or dependents for
such retiree medical coverage may be different from the premium charged an
active employee of the Company for similar coverage. The Company further agrees
to continue to fund the individual universal life insurance policy (in an amount
equal to Executive's base salary) provided to Executive by the Company under the
Company's Executive Life Insurance Plan in accordance with the terms and
conditions of such plan, as such plan is in effect from time to time.
8. Automobile. Following his Retirement Date, Executive may continue to use
the automobile provided to him by the Company in accordance with the terms of
the Company's leased automobile policy until the earlier of (i) the end of the
Salary Continuation Period, (ii) the date on which he accepts full-time
employment with another employer or (iii) the end of the lease term and provided
further that the Company shall only be responsible for the lease payments and
insurance premiums; Executive shall be responsible for all other operating
expenses, including all fuel and maintenance expenses related to the automobile.
Executive shall have the option to purchase the automobile at any time during
the term of this Agreement or upon the termination of this Agreement. In the
event the Executive elects to purchase the automobile, the purchase price shall
be determined in accordance with the Company's then current policy. During the
term of the lease, the Company shall continue to insure or provide insurance
(including collision, comprehensive and liability) for the automobile.
9. Other Benefits.
(a) Executive will be entitled to fulfillment of any matching grant
obligations under the Company's Matching Grants Program with respect to
commitments made by Executive prior to November 1, 2001.
(b) Executive's participation in the Company's Deferred Compensation
Plan shall continue to be governed by all terms and conditions of the Deferred
Compensation Plan. A copy of the amounts deferred and the terms thereof is
attached as Schedule D to this Agreement.10.
10. Consulting Services and Reimbursement of Expenses. Following the
Retirement Date, Executive agrees to make available to Company, during the
Salary Continuation Period, at mutually agreeable times, Executive's services,
experience and knowledge with respect to the operations, practices and policies
of the Company's Branded Apparel Group. Nothing contained in this Section 10
shall be deemed to create an employment relationship between the Company and
Executive. In providing such consulting services, Executive shall be an
independent contractor and shall not have the authority to bind the Company with
respect to any matter. During the Salary Continuation Period, the Company shall
reimburse Executive for all out-of-pocket expenses reasonably
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and necessarily incurred in the performance of such consulting services,
provided that such expenses are incurred at the request of the Company.
Reimbursement shall be made against the submission by Executive of signed
itemized expense reports in accordance with the travel and business expense
reimbursement policies of the Company in effect from time to time. The Company's
sole remedy for breach of this Section 10 shall be an action for specific
performance. The Company may not set off any amounts due to Executive hereunder
in the event Executive fails to render consulting services.
11. Non-Solicitation and Non-Competition. In consideration for receiving the
payments and the other benefits provided herein, Executive agrees that, during
the Salary Continuation Period, Executive:
a. will not, without the prior written consent of Company, solicit for
employment or assist or encourage the solicitation for employment, any
employee of the Company, or any of its operating divisions, subsidiaries or
affiliates.
b. will not, without the prior written consent of Company, counsel or
be employed by, or otherwise engage or participate in any Competing
Business (regardless of whether Executive receives any compensation of any
kind). Notwithstanding the foregoing, Executive's passive ownership of not
more than 4.9% of any publicly held entity that is a Competing Business
shall not be deemed a breach of this provision.
For purposes of this Agreement, Competing Business means each of the following
entities (and any of their respective parents, subsidiaries, affiliates,
successors or assigns, including any successors or assigns through a plan of
reorganization): VF Corporation; Fruit of the Loom; The Warnaco Group;
Maidenform; Xxxxxx Xxxxxxxxxxxxx; Intimate Brands; Xxxxxxx Corporation; Gildan
Activewear; Triumph; Delta Galil Industries; Kellwood Company; Mast; Adidas;
Golden Lady; Xxxxxx Xxxx; Reebok; Tultex; or Nike. "Competing Business" shall
also include any entity which acquires any material portion of the apparel
business of any of the entities described above, whether by acquisition, merger,
reorganization or other method or manner.
12. Confidentiality. At all times hereafter, Executive will maintain the
confidentiality of all information in whatever form concerning the Company or
any of its affiliates relating to its or their businesses, customers, finances,
strategic or other plans, marketing, employees, trade practices, trade secrets,
know-how or other matters which are not generally known outside the Company, and
Executive will not, directly or indirectly, make any disclosure thereof to
anyone, or make any use thereof, on his own behalf or on behalf of any third
party, unless specifically requested by or agreed to in writing by an executive
officer of the Company. 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.
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13. Non-Disparagement. At all times hereafter, Executive will not disparage or
criticize, orally or in writing, the business, products, policies, decisions,
directors, officers or employees of the Company or any of its operating
divisions, subsidiaries or affiliates to any person.
14. Breach of Agreement.
(a) In the event of any dispute under this Agreement, the party who has the
claim under this Agreement shall give the other party written notice, and except
in the case of a breach of this Agreement which is not susceptible to being
cured (such as the disclosure of confidential information), ten calendar days
from the date notice is deemed given.
(b) In the event of a breach of this Agreement, including, but not limited to
Paragraphs 11, 12 and 13 by Executive (i) the Company shall have the right, in
addition to and without waiving any other rights that may be available to the
Company at law or in equity, to immediately discontinue any remaining Salary
Continuation Payments and other obligations of the Company to Executive under
this Agreement, but excluding any obligation to provide vested and accrued
pension benefits under any qualified Company pension plan and any payments due
Executive under any deferred compensation plan of the Company, and (ii) the
Salary Continuation Period shall thereupon cease.
(c) If the Company pursues a claim for actual damages for a breach of Paragraphs
11, 12, or 13 by Executive, any award will first be offset by any monies
remaining owed to the Executive under this Agreement, but excluding any
obligation to provide vested and accrued pension benefits under any qualified
Company pension plan and any payments due Executive under any deferred
compensation plan of the Company.
(d) Executive and the Company acknowledge and agree that the Company will or
would suffer irreparable injury in the event of a breach or violation or
threatened breach or violation of the provisions set forth in Paragraphs 11, 12
or 13 and agree that in event of actual or threatened breach or violation of
such provisions the Company shall be awarded injunctive relief in the federal or
state courts located in Illinois to prohibit any such violation or breach or
threatened violation or breach, without necessity of posting any bond or
security and without first complying with the provisions of Paragraph 16, and
such right to injunctive relief shall be in addition to any other right
available under this Agreement.
15. Release.
(a) Executive on behalf of himself, his heirs, executors, administrators and
assigns, does hereby knowingly and voluntarily release, acquit and forever
discharge the Company and any affiliates, legal representatives, successors,
assigns and past, present and future directors, officers, employees, trustees
and shareholders (collectively, the "Released Parties") from and against any and
all charges, complaints, claims, cross-claims, third-party claims,
counterclaims, contribution claims, liabilities, obligations, promises,
agreements, controversies, damages, actions, causes of action, suits, rights,
demands, costs, losses, debts and expenses (including without limitation
attorneys' fees of any nature whatsoever, known or unknown, suspected or
unsuspected, foreseen or unforeseen, matured or unmatured, which, at any time up
to and including the date on which the Executive signs this Agreement, exists,
have existed, or may arise from any matter whatsoever occurring, including, but
not limited to, any claims arising out of or in any way related to Executive's
employment with the Company or its affiliates and the conclusion thereof, which
Executive, or any of his heirs, executors, administrators and assigns and
affiliates and agents ever had, now has or at any time hereafter may have, own
or hold against any of the Released Parties based on any matter existing on or
before the date on which the Executive signs this Agreement. Executive
acknowledges that in exchange for this release, the Company is providing
Executive with a total consideration, financial or otherwise, which exceeds what
Executive would have been given or entitled to without the release. By executing
this
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Agreement, Executive is waiving, without limitation, all claims against the
Released Parties arising under federal, state and local labor and
antidiscrimination laws and any other restriction on the right to terminate
employment, including, without limitation, Title VII of the Civil Rights Act of
1964, as amended, the Americans with Disabilities Act of 1990, as amended, and
the Illinois Human Rights Act, as amended. Executive represents and warrants
that he has not filed or initiated any legal or equitable proceeding, or any
proceeding involving a private right of action, against any of the Released
Parties and that no such proceedings have been initiated against any of the
Released Parties on his behalf. Executive will not cause or encourage any
lawsuit or any action involving a private right to be maintained or instituted
against any of the Released Parties, and he will not participate in any manner
in any such proceedings against any of the Released Parties, except as required
by law. Nothing herein shall release any party from any obligation under this
Agreement.
(b) EXECUTIVE SPECIFICALLY WAIVES AND RELEASES THE RELEASED PARTIES FROM ALL
CLAIMS EXECUTIVE MAY HAVE AS OF THE DATE EXECUTIVE SIGNS THIS AGREEMENT
REGARDING CLAIMS OR RIGHTS ARISING UNDER THE AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967, AS AMENDED, 29 U.S.C. ss. 621 ("ADEA"). EXECUTIVE FURTHER AGREES:
(A) THAT EXECUTIVE'S WAIVER OF RIGHTS UNDER THIS RELEASE IS KNOWING AND
VOLUNTARY AND IN COMPLIANCE WITH THE OLDER WORKER'S BENEFIT PROTECTION ACT OF
1990; (B) THAT EXECUTIVE UNDERSTANDS THE TERMS OF THIS RELEASE; (C) THAT THE
SALARY CONTINUATION PAYMENTS AND OTHER BENEFITS CALLED FOR IN THIS AGREEMENT
WOULD NOT BE PROVIDED TO ANY EXECUTIVE TERMINATING HIS OR HER EMPLOYMENT WITH
THE COMPANY WHO DID NOT SIGN A RELEASE SIMILAR TO THIS RELEASE, THAT SUCH
PAYMENTS AND BENEFITS WOULD NOT HAVE BEEN PROVIDED, AND WOULD NOT OTHERWISE BE
OWING TO EXECUTIVE PURSUANT TO ANY PREEXISTING OBLIGATION OF ANY KIND, HAD
EXECUTIVE NOT SIGNED THIS RELEASE, AND THAT THE PAYMENTS AND BENEFITS ARE IN
EXCHANGE FOR THE SIGNING OF THIS RELEASE; (D) THAT EXECUTIVE HEREBY IS AND HAS
BEEN ADVISED IN WRITING BY THE COMPANY TO CONSULT WITH AN ATTORNEY PRIOR TO
EXECUTING THIS RELEASE; (E) THAT THE COMPANY HAS GIVEN EXECUTIVE A PERIOD OF AT
LEAST TWENTY-ONE (21) DAYS WITHIN WHICH TO CONSIDER THIS RELEASE; (F) THAT
EXECUTIVE REALIZES THAT FOLLOWING EXECUTIVE'S EXECUTION OF THIS RELEASE,
EXECUTIVE HAS SEVEN (7) DAYS IN WHICH TO REVOKE THIS RELEASE BY WRITTEN NOTICE
TO THE UNDERSIGNED, AND (G) THAT THIS ENTIRE AGREEMENT SHALL BE VOID AND OF NO
FORCE AND EFFECT IF EXECUTIVE CHOOSES TO SO REVOKE, AND IF EXECUTIVE CHOOSES NOT
TO SO REVOKE, THAT THIS AGREEMENT AND RELEASE THEN BECOME EFFECTIVE AND
ENFORCEABLE UPON THE EIGHTH DAY AFTER HE SIGNS THIS AGREEMENT.
(c) To the maximum extent permitted by law, Executive covenants not to xxx or to
institute or cause to be instituted any action in any federal, state, or local
agency or court against any of the Released Parties, including, but not limited
to, any of the claims released in this Agreement. Notwithstanding the foregoing,
nothing herein shall prevent Executive or any of the Released Parties from
instituting any action required to enforce the terms of the Agreement and this
release. In addition, noting herein shall be construed to prevent Executive from
enforcing any rights Executive may have under the Employee Retirement Income
Security Act of 1974.
16. Dispute Resolution.
(a) In the event of any dispute between the parties (other than pursuant to
Paragraph 14(d) above), the party who has the claim under this Agreement shall
give the other party reasonable notice and, except in an emergency situation, a
reasonable opportunity
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to cure. The party who has the claim agrees to promptly submit such dispute to
binding arbitration. The arbitration hearing shall be completed within ninety
(90) days of the first to occur of the notice referred to above or submission to
arbitration if no such notice is given.
(b) Such arbitration shall be conducted in accordance with this Agreement and,
where not inconsistent, the appropriate commercial arbitration rules of the
American Arbitration Association (the "AAA"), and shall be held in Chicago,
Illinois, at such location within Chicago as shall be determined by the AAA.
Each side shall name one arbitrator. The two arbitrators shall select a third
arbitrator either by mutual agreement or from a list submitted by the AAA in
accordance with AAA rules. The arbitrators shall permit reasonable discovery in
accordance with Federal Rules of Civil Procedure and the local Rules of the U.S.
District Court for the Northern District of Illinois. The arbitrators shall make
written findings of fact and conclusions of law reflecting the appropriate
substantive law. The decision of the arbitrators shall be rendered within 30
days of the close of the arbitration hearing and shall be final and binding. The
parties shall pay their own expenses of arbitration and legal fees, and the
expenses of the arbitrators and the AAA shall be equally shared; providing,
however, that if, in the opinion of the arbitrators, any claim under the
Agreement or any defense in objection thereto was unreasonable, the arbitrator
may assess, as part of their award, all or any party of the arbitration expenses
(including reasonable attorneys' fees of the other party and arbitrators' fees
under the standards and law applicable under Rules 11 and 27 of the Federal
Rules of Civil Procedure) against the party raising such unreasonable claim,
defense or objection.
(c) In any arbitration proceeding pursuant to Paragraph 16(b) hereof, this
Agreement shall be governed as to all matters, including validity, construction
and performance, by the laws of the State of Illinois, except as superseded by
the laws of the United States.
(d) The parties agree that any attempt to avoid arbitration by instituting
procedures in any other forum except as provided in Paragraph 14(d) will
constitute a material breach of this Agreement and will cause irreparable harm
to the other party, including, but not limited to disrupting business and
incurring legal expenses, thereby requiring an immediate judicial order to
return the cause to arbitration and terminate any other proceedings. Judicial
orders to enforce the arbitration provisions of this Agreement and otherwise in
aid of arbitration may be entered by the federal and state courts located in
Xxxx County, Illinois, at any time prior to or after a final decision by the
arbitrators, and the parties hereby submit to personal jurisdiction in the State
of Illinois and to venue in such courts.
17. 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.
18. 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.
19. 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
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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.
20. Non-Admission of Liability. Executive agrees that neither this Agreement nor
the performance by the parties hereunder constitutes an admission by any of the
Released Parties of any violation of any federal, state, or local law,
regulation, common law, breach of any contract, or any other wrongdoing of any
type.
21. Non-Assignability. The rights and benefits under this Agreement are personal
to Executive and such rights and benefits shall not be subject to assignment,
alienation or transfer, except to the extent such rights and benefits are
lawfully available to the estate or beneficiaries of Executive upon death.
22. Entire Agreement. This Agreement sets forth all the terms and conditions
with respect to the compensation, remuneration of payments and benefits due
Executive from the Company and supersedes and replaces any and all other
agreements or understandings Executive may have had with respect thereto. It may
not be modified or amended except in writing and signed by both Executive and an
authorized representative of the Company.
[This space intentionally left blank]
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23. Notice. Any notice to be given hereunder shall be in writing and shall be
deemed given (a) when delivered by hand, or (b) three days after being mailed by
certified mail, return receipt requested, in each case addressed as follows:
To Executive at:
[Intentionally Omitted]
To the Company at:
Xxxx Xxx Corporation
Three First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
EXECUTIVE XXXX XXX CORPORATION
/s/ Xxxx X. Xxxxxx By: /s/ Xxx X. Xxxxxx
---------------------------------- ----------------------------------
Xxxx X. Xxxxxx Name: Xxx X. Xxxxxx
Title: Senior Vice President -
Human Resources
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