SEVERANCE AGREEMENT AND RELEASE OF CLAIMS
This SEVERANCE AGREEMENT AND RELEASE OF CLAIMS ("Agreement") is made
and entered into by and between Xxxxx Xxxxxx ("Xxxxxx") and WPL Holdings,
Inc., a Wisconsin Corporation, ("Company") to extinguish all obligations
and claims between the parties arising out of the employment of Xxxxxx by
Company and his termination from said employment.
NOW, THEREFORE, for and in consideration of the mutual promises set
forth herein, the adequacy and sufficiency of which is hereby expressly
acknowledged by each of the parties hereto, the parties mutually agree as
follows:
1. Preliminary Statement. Xxxxxx'x employment with Company shall
terminate effective November 21, 1997 (hereinafter the "Termination
Date"). The parties agree that, pursuant to Paragraph 2 of the Key
Executive Employment and Severance Agreement between Xxxxxx and Company
entered into on June 25, 1994 (hereinafter the "KEESA," attached hereto as
Exhibit A), the termination of Xxxxxx'x employment with Company is a
termination or cancellation prior to a change in control of Company.
Accordingly, the KEESA is of no further force and effect and this
Agreement supersedes and extinguishes all of the parties' rights and
obligations under the KEESA, or any other letter agreement or oral
promise.
2. Communications to Third Parties . Xxxxxx hereby agrees that
except to the extent necessary required to comply with this Agreement, he
shall not directly or indirectly disclose, publicize, or publish the terms
or conditions of this Agreement to anyone other than his spouse, attorney,
and tax-preparer. The parties mutually agree that any communications to
third parties regarding the termination of Xxxxxx'x employment shall state
only that Xxxxxx'x employment terminated with the mutual agreement of the
parties.
3. Financial Obligations. Company shall pay to Xxxxxx his salary
and benefits to and including the Termination Date specified in Paragraph
1. Company further shall pay Xxxxxx'x performance bonus for 1997 on a
pro-rated basis to the extent that performance criteria for the Heartland
Development Corporation bonus are met. Within the (10) days after the
Effective Date of this Agreement (see Paragraph 9), Company shall pay
Xxxxxx, a severance payment of Seven Hundred Sixty Eight Thousand, Nine
Hundred Dollars ($768,900). Additionally, Company shall make three
installment payments in the amount of Two Hundred and Four Thousand, One
Hundred Ninety Dollars ($204,190) according to the following payment
schedule: First Payment of Sixty Eight Thousand, Sixty Three Dollars
($68,063) on January 9, 1998; Second Payment of Sixty Eight Thousand,
Sixty Three Dollars ($68,063) on January 8, 1999; and a Third Payment of
Sixty Eight Thousand, Sixty Four Dollars ($68,064) on January 7, 2000.
The parties agree that all amounts discussed in this Paragraph 3 are gross
amounts which are subject to appropriate tax withholding. The parties
further agree that the payments discussed in this Paragraph 3 constitute
the entire financial obligation of Company to Xxxxxx.
4. Release and Covenant Not to Xxx. In consideration for the
promises made by Company contained in this Agreement, Xxxxxx hereby
releases and discharges Company, its subsidiaries, affiliates, agents,
employees, officers, directors, shareholders, successors, and assigns from
all claims, liabilities, demands and causes of action whether known or
unknown, fixed or contingent, arising out of or in any way connected with
Xxxxxx'x employment with Company or the termination thereof, and does
hereby covenant not to file a lawsuit to assert such claims. This
Agreement includes, but is not limited to, all matters in law, in equity,
in contract, or in tort, pursuant to statute, including any claim for
discrimination arising under the Age Discrimination in Employment Act,
Title VII of the Civil Rights Act of 1964, the Americans with Disabilities
Act, or any other federal, state, or local law or ordinance. This
agreement does not apply to: (1) any claim or rights that may arise under
the Age Discrimination in Employment Act after the date this Agreement is
executed; (2) to any claim or rights that may arise under the Consolidated
Omnibus Budget Reconciliation Act of 1985 or the Health Insurance
Portability Protection Act; or (3) to any claims resulting from any duty
to indemnify Xxxxxx assumed by Company during the course of Xxxxxx'x
employment.
It is expressly agreed Xxxxxx will not institute, or cause to be
instituted, any action, lawsuit, complaint, charge, or proceeding against
Company which relates to, or arises out of Xxxxxx'x employment with
Company or the termination thereof, and will pay Company's costs in the
event that any such action is brought. However, this provision shall not
prohibit either party from taking such steps as are necessary to enforce
the terms and conditions of this Agreement.
5. No Competition. In further consideration for the promises made
by Company contained in this Agreement, Xxxxxx agrees that he will not,
for a period expiring one year after the Termination Date, without the
prior written approval of Company's Board of Directors, participate in the
management of, be employed by, or own any business enterprise at a
location within the United States that engages in substantial competition
with Company or its subsidiaries, where such enterprise's revenues from
any competitive activities amount to 10% or more of such enterprise's net
revenues and sales for its most recently completed fiscal year; provided,
however, that nothing in this Paragraph 4 shall prohibit Xxxxxx from
owning stock or other securities of a competitor amounting to less than
five percent of outstanding capital stock of such competitor.
6. Confidentiality. In further consideration for the promises made
by Company contained in this Agreement, Xxxxxx agrees to hold in strictest
of confidence, and not use to compete with Company or disclose to anyone
except as expressly authorized in writing by the Board of Directors of
Company, any proprietary or confidential information of Company or other
information and data pertaining to the activities and operations of
Company and not made available to the general public by Company or with
Company's consent. Proprietary and confidential information includes, but
is not limited to, trade secrets, information relating to the business,
financial, legal, and personnel matters of Company, information relating
to the internal operations of Company such as operations methods,
equipment, and quality control procedures, information relating to
development projects, information relating to actual or potential
customers or suppliers, marketing plans, price and cost data, and
proprietary information of other companies or individuals which has been
disclosed to Company under a requirement of secrecy. Proprietary and
confidential information may or may not be in documentary form and
includes computer software programs, drawings, plans, letters, and
databases.
This obligation shall remain in effect for so long as Xxxxxx has
knowledge or possession of information that remains confidential and
secret. Xxxxxx shall promptly return to Company, and not deliver to
anyone else, all documents and materials containing proprietary and
confidential information, including the original and all copies and
summaries of such documents and materials.
7. Entire Agreement. This Agreement contains the entire agreement
between the parties, and there are no other understandings or terms,
either express or implied, that are not expressly stated herein. This
Agreement shall be amended only by a written agreement signed by both
parties.
8. Voluntary Agreement; Advice of Counsel; 21-Day Period. Xxxxxx
acknowledges and states that:
a. He has read this Agreement, understands its legal and binding
effect, and is acting voluntarily and freely in executing this
Agreement.
b. He has had an opportunity to seek, and was advised in writing to
seek, legal counsel prior to signing this Agreement.
c. He was given at least 21 days to consider the terms of this
Agreement prior to signing it.
9. Revocation. The eighth day following Xxxxxx'x execution of this
Agreement will be the Effective Date of this Agreement. Xxxxxx and
Company expressly agree that Xxxxxx may revoke this Agreement within seven
(7) days after he signs it, and that this Agreement shall not become
effective or enforceable if revoked.
10. Severability. The provisions of this Agreement shall be deemed
severable, and the invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of any other term
or provision hereof, and this Agreement shall be treated as though such
invalid or unenforceable provision had never been a part of this
Agreement.
11. Choice of Law. This Agreement shall be construed under the laws
of the State of Wisconsin. The venue of any action necessary under this
Agreement shall be Madison, Wisconsin. In the event of any necessary
action, the prevailing party shall be entitled to reasonable costs and
attorney's fees as the court may adjudge reasonable.
12. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of each of the parties hereto, and their respective
subsidiaries, affiliates, legal and personal representatives, estates,
purchasers, successors, assigns, heirs, executors, and administrators.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date(s) written below.
Date: By:
Xxxxx Xxxxxx
WPL Holdings, Inc.
Date: By:
Xxxxxx X. Xxxxx, Xx.
President & CEO
