EXHIBIT 10.20
EXECUTIVE
EMPLOYMENT AGREEMENT
P R E A M B L E
This Executive Employment Agreement defines the essential terms and
conditions of our employment relationship with you. The subjects
covered in this Agreement are vitally important to you and to the
Company. Thus, you should read the document carefully and ask any
questions before signing the Agreement. Given the importance of these
matters to you and the Company, all executives shall sign the Agreement
as a condition of employment.
This EMPLOYMENT AGREEMENT, dated and effective this 1st day of August
2003 is entered into by and between Xxxxxxxx X. Xxxxxx ("Executive"), and
Xxxxxxxxxxx Industries ("Company").
W I T N E S S E T H:
WHEREAS, the Company is an Indiana corporation engaged through its
various subsidiary entities in the death care, healthcare and funeral services
industries throughout the United States and abroad;
WHEREAS, the Company is willing to employ Executive in an executive
capacity and Executive desires to be employed by the Company in such capacity
based upon the terms and conditions set forth in this Agreement;
WHEREAS, in the course of the employment contemplated under this
Agreement, it will be necessary for Executive to acquire knowledge of certain
trade secrets and other confidential and proprietary information regarding the
Company as well as its various subsidiary and/or affiliated entities
(hereinafter jointly referred to as the "Companies"); and
WHEREAS, the Company and Executive (collectively referred to herein as
the "Parties") acknowledge and agree that the execution of this Agreement is
necessary to memorialize the terms and conditions of their employment
relationship as well as safeguard against the unauthorized disclosure or use of
the Company's confidential information and to otherwise preserve the goodwill
and ongoing business value of the Company;
NOW THEREFORE, in consideration of Executive's employment, the
Company's willingness to disclose certain confidential and proprietary
information to Executive and the mutual covenants contained herein as well as
other good and valuable consideration, the receipt of which is hereby
acknowledged, the Parties agree as follows:
1. Employment. The Company agrees to employ Executive and Executive agrees
to serve as Vice President, Shared Services.
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2. Duties. Executive agrees to perform all duties and responsibilities
traditionally assigned to, or falling within the normal
responsibilities of, an individual employed in the above-referenced
position. Executive also agrees to perform any and all additional
duties or responsibilities as may be assigned by the Company in its
sole discretion.
3. Best Efforts and Duty of Loyalty. During the term of employment with
the Company, Executive covenants and agrees to perform all assigned
duties in a diligent and professional manner and in the best interest
of the Company. Executive agrees to devote her full working time,
attention, talents, skills and best efforts to further the Company's
business and agrees not to take any action, or make any omission, that
deprives the Company of any business opportunities or otherwise act in
a manner that conflicts with the best interest of the Company or is
otherwise detrimental to its business. Executive agrees not to engage
in any outside business activity, whether or not pursued for gain,
profit or other pecuniary advantage, without the express written
consent of the Company. Executive shall act at all times in accordance
with the Xxxxxxxxxxx Industries, Inc. Code of Ethics, the Xxxxxxxxxxx
Industries Associate Policy Manual, and all other applicable policies
which may exist or be adopted by the Company from time to time.
4. At-Will Employment. Subject to the terms and conditions set forth
below, Executive specifically acknowledges and accepts such employment
on an "at-will" basis and agrees that both Executive and the Company
retain the right to terminate this relationship at any time, with or
without cause, for any reason not prohibited by applicable law upon
proper notice. Executive acknowledges that nothing in this Agreement is
intended to create, nor should be interpreted to create, an employment
contract for any specified length of time between the Company and
Executive.
5. Compensation. For all services rendered by Executive on behalf of, or
at the request of, the Company, Executive shall be paid as follows:
(a) A base salary at the bi-weekly rate of Six Thousand Seven
Hundred Thirty Dollars and Seventy-Seven Cents ($6,730.77),
less usual and ordinary deductions;
(b) Incentive compensation, payable solely at the discretion of
the Company, pursuant to the Company's Exempt Employee
Executive Compensation Program or any other program as the
Company may establish in its sole discretion; and
(c) Such additional compensation, benefits and perquisites as the
Company may deem appropriate.
For purposes of the FY2003 Incentive Compensation, the Parties agree
Executive's payment shall be based on either Xxxxxxxxxxx'x achievement
of its financial objectives or Batesville Casket Company's achievement
of its financial objectives, whichever calculation is greater. The
Company further agrees that Executive will be eligible for a prorata
share of the amount of incentive compensation for FY2004 in the event
her employment is terminated prior to October, 2004 based upon her
performance through the effective date of her termination and the
Company's financial performance through the end of the fiscal year.
Such prorata share will be otherwise determined and paid in accordance
with the Company's standard practices. Notwithstanding anything
contained herein to the contrary, and with the exception of Executive's
Incentive Compensation
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eligibility for FY2003 and FY2004, Executive acknowledges that the
Company specifically reserves the right to make changes to Executive's
compensation in its sole discretion including, but not limited to,
modifying or eliminating a compensation component. The Parties agree
that such changes shall be deemed effective immediately and a
modification of this Agreement unless, within fourteen (14) days after
receiving notice of such change, Executive exercises her right to
terminate this Agreement without cause. The Parties anticipate that
Executive's compensation structure will be reviewed on an annual basis
but acknowledge that the Company shall have no obligation to do so.
6. Direct Deposit. As a condition of employment, and within thirty (30)
days of the effective date of this Agreement, Executive agrees to make
all necessary arrangements to have all sums paid pursuant to this
Agreement direct deposited into one or more bank accounts as designated
by Executive.
7. Warranties and Indemnification. Executive warrants that she is not a
party to any contract, restrictive covenant, or other agreement
purporting to limit or otherwise adversely affecting her ability to
secure employment with any third party. Alternatively, should any such
agreement exist, Executive warrants that the contemplated services to
be performed hereunder will not violate the terms and conditions of any
such agreement. In either event, Executive agrees to fully indemnify
and hold the Company harmless from any and all claims arising from, or
involving the enforcement of, any such restrictive covenants or other
agreements.
8. Restricted Duties. Executive agrees not to disclose, or use for the
benefit of the Company, any confidential or proprietary information
belonging to any predecessor employer which otherwise has not been made
public and further acknowledges that the Company has specifically
instructed her not to disclose or use such confidential or proprietary
information. Based on her understanding of the anticipated duties and
responsibilities hereunder, Executive acknowledges that such duties and
responsibilities will not compel the disclosure or use of any such
confidential and proprietary information.
9. Termination Without Cause. Executive's employment may be terminated at
any time, without cause, by either party upon sixty (60) days' advance
written notice or pay in lieu of notice. In such event, Executive shall
only be entitled to such compensation, benefits and perquisites which
have been paid or fully accrued as of the effective date of her
separation.
10. Termination With Cause. Executive's employment may be terminated at any
time "for cause" without notice or prior warning. For purposes of this
Agreement, "cause" shall mean the Company's good faith determination
that Executive has:
(i) Failed, refused or otherwise been deemed unable to fully and
timely comply with the terms and conditions of this Agreement,
specifically including any reasonable instructions or orders
issued by the Company;
(ii) Acquiesced or participated in any conduct which is dishonest,
fraudulent, illegal (at the felony level), unethical, involves
moral turpitude or is otherwise illegal
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and involves conduct that has the potential, in the Company's
reasonable opinion, to cause the Company, it officers or its
directors embarrassment or ridicule;
(iii) Violated any Company policy or procedures, specifically
including a violation of Xxxxxxxxxxx Industries, Inc.'s Code
of Ethics;
(iv) Disclosed without proper authorization any trade secrets or
other Confidential Information (as defined herein);
(v) Engaged in any act which, in the reasonable opinion of the
Company, is contrary to its best interests or might subject
the Company, its officers or directors to potential or
probable civil or criminal liability; or
(vi) Engaged in such other conduct recognized at law as
constituting cause.
Upon the occurrence or discovery of any event specified above, the
Company shall have the right to terminate Executive's employment,
effective immediately, by providing notice thereof to Executive without
further obligation to him/her, other than accrued wages or other
accrued benefits of employment (collectively referred to herein as
"Accrued Obligations"), which shall be paid in accordance with the
Company's past practice and applicable law.
11. Termination Due to Death or Disability. In the event Executive dies or
suffers a disability (as defined herein) during the term of employment,
this Agreement shall automatically be terminated on the date of such
death or disability without further obligation on the part of the
Company other than the payment of Accrued Obligations. For purposes of
this Agreement, Executive shall be considered to have suffered a
"disability" upon the occurrence of one or more of the following
events:
(i) Executive becomes eligible for or receives any benefits
pursuant to any disability insurance policy as a result of a
determination under such policy that Executive is permanently
disabled;
(ii) Executive becomes eligible for or receives any disability
benefits under the Social Security Act; or
(iii) A good faith determination by the Company that Executive is
and will likely remain unable to perform the essential
functions of her duties or responsibilities hereunder on a
full-time basis, with or without reasonable accommodation, as
a result of any mental or physical impairment.
Notwithstanding anything expressed or implied above to the contrary,
the Company agrees to fully comply with its obligations under the
Americans with Disabilities Act as well as any other applicable
federal, state, or local law, regulation, or ordinance governing the
protection of individual with such disabilities as well as the
Company's obligation to provide reasonable accommodation thereunder.
12. Severance Payments. In the event Executive's employment is terminated
by the Company without cause, and subject to the normal terms and
conditions imposed by the
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Company (including those set forth herein and in the attached
Separation and Release Agreement), Executive shall be eligible to
receive severance pay based upon her base salary at the time of
termination for a period determined in accordance with any guidelines
as may be established by the Company or for a period up to twelve (12)
months (whichever is longer). No severance pay shall be paid if
Executive voluntarily leaves the Company's employ or is terminated for
cause. Any severance pay made payable hereunder shall be paid in lieu
of, and not in addition to, any notice pay or other accrued
compensation. Additionally, such severance pay is contingent upon
Executive fully complying with the restrictive covenants contained
herein and executing a Separation and Release Agreement in a form not
substantially different from that attached to this Agreement as Exhibit
A. Further, the Company's obligation to provide severance shall be
deemed null and void should Executive fail or refuse to execute the
Agreement in such form within any time period as may be proscribed by
law or, in absence thereof, twenty-one (21) days.
13. Assignment of Rights.
(a) Copyrights. Executive agrees that all works of authorship
fixed in any tangible medium of expression by her during the
term of this Agreement relating to the Company's business
("Works"), either solely or jointly with others, shall be and
remain exclusively the property of the Company. Each such Work
created by Executive is a "work made for hire" under the
copyright law and the Company may file applications to
register copyright in such Works as author and copyright owner
thereof. If, for any reason, a Work created by Executive is
excluded from the definition of a "work made for hire" under
the copyright law, then Executive does hereby assign, sell,
and convey to the Company the entire rights, title, and
interests in and to such Work, including the copyright
therein, to the Company. Executive will execute any documents
which the Company deems necessary in connection with the
assignment of such Work and copyright therein. Executive will
take whatever steps and do whatever acts the Company requests,
including, but not limited to, placement of the Company's
proper copyright notice on Works created by Executive to
secure or aid in securing copyright protection in such Works
and will assist the Company or its nominees in filing
applications to register claims of copyright in such Works.
The Company shall have free and unlimited access at all times
to all Works and all copies thereof and shall have the right
to claim and take possession on demand of such Works and
copies.
(b) Inventions. Executive agrees that all discoveries, concepts,
and ideas, whether patentable or not, including, but not
limited to, apparatus, processes, methods, compositions of
matter, techniques, and formulae, as well as improvements
thereof or know-how related thereto, relating to any present
or prospective product, process, or service of the Company
("Inventions") that Executive conceives or makes during the
term of this Agreement relating to the Company's business,
shall become and remain the exclusive property of the Company,
whether patentable or not, and Executive will, without royalty
or any other consideration:
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(i) inform the Company promptly and fully of such
Inventions by written reports, setting forth in
detail the procedures employed and the results
achieved;
(ii) assign to the Company all of her rights, title, and
interests in and to such Inventions, any applications
for United States and foreign Letters Patent, any
United States and foreign Letters Patent, and any
renewals thereof granted upon such Inventions;
(iii) assist the Company or its nominees, at the expense of
the Company, to obtain such United States and foreign
Letters Patent for such Inventions as the Company may
elect; and
(iv) execute, acknowledge, and deliver to the Company at
the Company's expense such written documents and
instruments, and do such other acts, such as giving
testimony in support of her inventorship, as may be
necessary in the opinion of the Company, to obtain
and maintain United States and foreign Letters Patent
upon such Inventions and to vest the entire rights
and title thereto in the Company and to confirm the
complete ownership by the Company of such Inventions,
patent applications, and patents.
14. Company Property. All records, files, drawings, documents, equipment,
and the like relating to, or provided by, the Company shall be and
remain the sole property of the Company. Upon termination of
employment, Executive shall immediately return to the Company all such
items without retention of any copies. De minimis items such as pay
stubs, 401(k) plan summaries, employee bulletins, and the like are
excluded from this requirement.
15. Confidential Information. Executive acknowledges that the Company and
its affiliated entities (herein collectively referred to as
"Companies") possess certain trade secrets as well as other
confidential and proprietary information which they have acquired or
will acquire at great effort and expense. Such information may include,
without limitation, confidential information regarding the Companies'
products and services, marketing strategies, business plans,
operations, costs, current or prospective customer information
(including customer contacts, requirements, creditworthiness and like
matters), product concepts, designs, prototypes or specifications,
research and development efforts, technical data and know-how, sales
information, including pricing and other terms and conditions of sale,
financial information, internal procedures, techniques, forecasts,
methods, trade information, trade secrets, software programs, project
requirements, inventions, trademarks, trade names, and similar
information regarding the Companies' business (collectively referred to
herein as "Confidential Information"). Executive further acknowledges
that, as a result of her employment with the Company, Executive will
have access to, will become acquainted with, and/or may help develop,
such Confidential Information.
16. Restricted Use of Confidential Information. Executive agrees that all
Confidential Information is and shall remain the sole and exclusive
property of the Company. Except as may be expressly authorized by the
Company in writing, Executive agrees not to
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disclose, or cause any other person or entity to disclose, any
Confidential Information to any third party while employed by the
Company and for as long thereafter as such information remains
confidential (or as limited by applicable law). Further, Executive
agrees to use such Confidential Information only in the course of
Executive's duties in furtherance of the Company's business and agrees
not to make use of any such Confidential Information for Executive's
own purposes or for the benefit of any other entity or person.
17. Acknowledged Need for Limited Restrictive Covenants. Executive
acknowledges that the Company has spent and will continue to expend
substantial amounts of time, money and effort to develop its business
strategies, Confidential Information, customer relationships, goodwill
and employee relationships, and that Executive will benefit from these
efforts. Further, Executive acknowledges the inevitable use of, or
near-certain influence by her knowledge of, the Confidential
Information disclosed to Executive during the course of employment if
allowed to compete against the Company in an unrestricted manner and
that such use would be unfair and extremely detrimental to the Company.
Accordingly, based on these legitimate business reasons, Executive
acknowledges the Company's need to protect its legitimate business
interests by reasonably restricting Executive's ability to compete with
the Company on a limited basis.
18. Non-Solicitation. During Executive's employment and for a period of
eighteen (18) months thereafter, Executive agrees not to directly or
indirectly engage in the following prohibited conduct:
(a) Solicit, offer products or services to, accept orders from, or
otherwise transact business with, any customer or entity with
whom Executive had contact or transacted any business during
the eighteen (18) month period preceding Executive's date of
separation or about whom Executive possessed, or had access
to, confidential and proprietary information;
(b) Attempt to entice or otherwise cause any third party to
withdraw, curtail or cease doing business with the Company,
specifically including customers, venders, independent
contractors and other third party entities;
(c) Disclose to any person or entity the identities, contacts or
preferences of any customers of the Company, or the identity
of any other persons or entities having business dealings with
the Company;
(d) Induce any individual who has been employed by or had provided
services to the Company within the six (6) month period
immediately preceding the effective date of Executive's
separation to terminate such relationship with the Company;
(e) Offer employment to, accept employment inquiries from, or
employ any individual who is or had been employed by the
Company at any time within the six (6) month period
immediately preceding such offer or inquiry; or
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(f) Otherwise attempt to directly or indirectly interfere with the
Company's business or its relationship with its employees,
consultants, independent contractors or customers.
19. Limited Non-Compete. For the above reasons, and as a condition of
employment to the fullest extent permitted by law, Executive agrees
during the Relevant Non-Compete Period not to directly or indirectly
engage in the following competitive activities:
(a) Executive shall not have any ownership interest in, work for,
advise, consult, or have any business connection or business
or employment relationship with any Competitor unless
Executive provides written notice to the Company of such
relationship prior to entering into such relationship and,
further, provides sufficient written assurances to the
Company's satisfaction that such relationship will not
jeopardize the Company's legitimate interests or otherwise
violate the terms of this Agreement;
(b) Executive shall not engage in any research, development,
production, sale or distribution of any Competitive Products,
specifically including any products or services relating to
those for which Executive had responsibility for the eighteen
(18) month period preceding Executive's date of separation;
(c) Executive shall not market, sell, or otherwise offer or
provide any Competitive Products within her Geographic
Territory (if applicable), specifically including any products
or services relating to those for which Executive had
responsibility for the eighteen (18) month period preceding
Executive's date of separation; and
(d) Executive shall not distribute, market, sell or otherwise
offer or provide any Competitive Products to any customer of
the Company with whom Executive had contact (either directly
or indirectly) or for which Executive had responsibility at
any time during the eighteen (18) month period preceding
Executive's date of separation.
20. Non-Compete Definitions. For purposes of this Agreement, the Parties
agree that the following terms shall apply:
(a) "Competitive Products" shall include any product or service
which directly or indirectly competes with, is substantially
similar to, or serves as a reasonable substitute for, any
product or service in research, development or design, or
manufactured, produced, sold or distributed by the Company;
(b) "Competitor" shall include any person or entity that offers or
plans to offer any Competitive Products;
(c) "Geographic Territory" shall include any territory formally
assigned to Executive as well as all territories in which
Executive has provided any services, sold any products or
otherwise had responsibility at any time during the eighteen
(18) month period preceding Executive's date of separation;
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(d) "Relevant Non-Compete Period" shall include the period of
Executive's employment with the Company as well as a period of
eighteen (18) months after such employment is terminated,
regardless of the reason for such termination provided,
however, that this period shall be reduced to the greater of
(i) six (6) months or (ii) the total length of Executive's
employment with the Company, including employment with a
parent, subsidiary or affiliated entity, if such employment is
less than eighteen (18) months;
(e) "Directly or indirectly" shall be construed such that the
foregoing restrictions shall apply equally to Executive
whether performed individually or as a partner, shareholder,
officer, director, manager, employee, salesman, independent
contractor, broker, agent, or consultant for any other
individual, partnership, firm, corporation, company, or other
entity engaged in such conduct.
21. Consent to Reasonableness. In light of the above-referenced concerns,
including Executive's knowledge of and access to the Companies'
Confidential Information, Executive acknowledges that the terms of the
foregoing restrictive covenants are reasonable and necessary to protect
the Company's legitimate business interests and will not unreasonably
interfere with Executive's ability to obtain alternate employment. As
such, Executive hereby agrees that such restrictions are valid and
enforceable, and affirmatively waives any argument or defense to the
contrary.
22. Survival of Restrictive Covenants. Executive acknowledges that the
above restrictive covenants shall survive the termination of this
Agreement and the termination of Executive's employment for any reason.
Executive further acknowledges that any alleged breach by the Company
of any contractual, statutory or other obligation shall not excuse or
terminate the obligations hereunder or otherwise preclude the Company
from seeking injunctive or other relief. Rather, Executive acknowledges
that such obligations are independent and separate covenants undertaken
by Executive for the benefit of the Company.
23. Effect of Transfer to Affiliate. Executive acknowledges that the above
restrictive covenants shall survive, and be extended to cover, the
transfer of Executive from the Company to its parent, subsidiary,
sister corporation or any other affiliated entity (hereinafter
collectively referred to as an "Affiliate"). Specifically, in the event
of Executive's temporary or permanent transfer to an Affiliate, she
agrees that the foregoing restrictive covenants shall remain in force
so as to continue to protect the Company for the duration of the
non-compete period, measured from her effective date of transfer to an
Affiliate. Additionally, Executive acknowledges that this Agreement
shall be deemed to have been automatically assigned to the Affiliate as
of her effective date of transfer such that the above-referenced
restrictive covenants (as well as all other terms and conditions
contained herein) shall be construed thereafter to protect the
legitimate business interests and goodwill of the Affiliate as if
Executive and the Affiliate had independently entered into this
Agreement. Executive's acceptance of her transfer to, and subsequent
employment by, the Affiliate shall serve as consideration for (as well
as be deemed as evidence of her consent to) the assignment of this
Agreement to the Affiliate as well as the extension of such restrictive
covenants to the Affiliate. Executive agrees that this provision shall
apply with equal force to any subsequent transfers of Executive from
one Affiliate to another Affiliate.
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24. Scope of Restrictions. If the scope of any restriction contained in any
preceding paragraphs of this Agreement is deemed too broad to permit
enforcement of such restriction to its fullest extent, then such
restriction shall be enforced to the maximum extent permitted by law,
and Executive hereby consents and agrees that such scope may be
judicially modified accordingly in any proceeding brought to enforce
such restriction.
25. Specific Enforcement/Injunctive Relief. Executive agrees that it would
be difficult to measure any damages to the Company from a breach of the
above-referenced restrictive covenants, but that such damages would be
great, incalculable and irremedial, and that monetary damages alone
would be an inadequate remedy. Accordingly, Executive agrees that the
Company shall be entitled to immediate injunctive relief against such
breach, or threatened breach, in any court having jurisdiction. In
addition, if Executive violates any such restrictive covenant,
Executive agrees that the period of such violation shall be added to
the term of the restriction. In determining the period of any
violation, the Parties stipulate that in any calendar month in which
Executive engages in any activity violative of such provisions,
Executive shall be deemed to have violated such provision for the
entire month, and that month shall be added to the duration of the
non-competition provision. Executive acknowledges that the remedies
described above shall not be the exclusive remedies, and the Company
may seek any other remedy available to it either in law or in equity,
including the recovery of compensatory or punitive damages. Executive
further agrees that the Company shall be entitled to an award of all
costs and attorneys' fees incurred by it in any attempt to enforce the
terms of this Agreement.
26. Publicly Traded Stock. The Parties agree that nothing contained in this
Agreement shall be construed to prohibit Executive from investing her
personal assets in any stock or corporate security traded or quoted on
a national securities exchange or national market system provided,
however, such investments do not require any services on the part of
Executive in the operation or the affairs of the business or otherwise
violate the Xxxxxxxxxxx Industries, Inc. Code of Ethics.
27. Titles. Titles are used for the purpose of convenience in this
Agreement and shall be ignored in any construction of it.
28. Severability. The Parties agree that each and every paragraph,
sentence, clause, term and provision of this Agreement is severable and
that, in the event any portion of this Agreement is adjudged to be
invalid or unenforceable, the remaining portions thereof shall remain
in effect and be enforced to the fullest extent permitted by law.
Further, should any particular clause, covenant, or provision of this
Agreement be held unreasonable or contrary to public policy for any
reason, the Parties acknowledge and agree that such covenant, provision
or clause shall automatically be deemed modified such that the
contested covenant, provision or clause will have the closest effect
permitted by applicable law to the original form and shall be given
effect and enforced as so modified to whatever extent would be
reasonable and enforceable under applicable law.
29. Choice of Forum. Executive acknowledges that the Companies are
primarily based in Indiana, and Executive understands and acknowledges
the Company's desire and need to defend any litigation against it in
Indiana. Accordingly, the Parties agree that any claim
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of any type brought by Executive against the Company or any of its
employees or agents must be maintained only in a court sitting in
Xxxxxx County, Indiana, or Xxxxxx County, Indiana, or, if a federal
court, the Southern District of Indiana, Indianapolis Division.
Executive further understands and acknowledges that in the event the
Company initiates litigation against Executive, the Company may need to
prosecute such litigation in such state where the Executive is subject
to personal jurisdiction. Accordingly, for purposes of enforcement of
this Agreement, Executive specifically consents to personal
jurisdiction in the State of Indiana as well as any state in which
resides a customer assigned to the Executive.
30. Choice of Law. This Agreement shall be deemed to have been made within
the County of Xxxxxx, State of Indiana and shall be interpreted and
construed in accordance with the laws of the State of Indiana. Any and
all matters of dispute of any nature whatsoever arising out of, or in
any way connected with the interpretation of this Agreement, any
disputes arising out of the Agreement or the employment relationship
between the Parties hereto, shall be governed by, construed by and
enforced in accordance with the laws of the State of Indiana without
regard to any applicable state's choice of law provisions.
31. Assignment-Notices. The rights and obligations of the Company under
this Agreement shall inure to its benefit, as well as the benefit of
its parent, subsidiary, successor and affiliated entities, and shall be
binding upon the successors and assigns of the Company. This Agreement,
being personal to Executive, cannot be assigned by Executive, but her
personal representative shall be bound by all its terms and conditions.
Any notice required hereunder shall be sufficient if in writing and
mailed to the last known residence of Executive or to the Company at
its principal office with a copy mailed to the Office of General
Counsel.
32. Amendments and Modifications. Except as specifically provided herein,
no modification, amendment, extension or waiver of this Agreement or
any provision hereof shall be binding upon the Company or Executive
unless in writing and signed by both Parties. The waiver by the Company
of a breach of any provision of this Agreement by Executive shall not
be construed as a waiver of any subsequent breach. Nothing in this
Agreement shall be construed as a limitation upon the Company's right
to modify or amend any of its manuals or policies in its sole
discretion and any such modification or amendment which pertains to
matters addressed herein shall be deemed to be incorporated herein and
made a part of this Agreement.
33. Outside Representations. Executive represents and acknowledges that in
signing this Agreement she does not rely, and has not relied, upon any
representation or statement made by the Company or by any of the
Company's employees, officers, agents, stockholders, directors or
attorneys with regard to the subject matter, basis or effect of this
Agreement other than those specifically contained herein.
34. Voluntary and Knowing Execution. Executive acknowledges that she has
been offered a reasonable amount of time within which to consider and
review this Agreement; that she has carefully read and fully
understands all of the provisions of this Agreement; and that she has
entered into this Agreement knowingly and voluntarily.
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35. Entire Agreement. This Agreement constitutes the entire employment
agreement between the Parties hereto concerning the subject matter
hereof and shall supersede all prior and contemporaneous agreements
between the Parties in connection with the subject matter of this
Agreement. Nothing in this Agreement, however, shall affect any
separately-executed written agreement addressing any other issues
(e.g., the Inventions, Improvements, Copyrights, and Trade Secrets
Agreement, etc.).
IN WITNESS WHEREOF, the Parties have signed this Agreement effective as
of the day and year first above written.
EXECUTIVE XXXXXXXXXXX INDUSTRIES
Signed: ______________________________ By: ______________________________
Printed: _____________________________ Title: ___________________________
Dated: _______________________________ Dated: ___________________________
CAUTION: READ BEFORE SIGNING
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Exhibit A
SEPARATION AND RELEASE AGREEMENT
THIS SEPARATION and RELEASE AGREEMENT ("Agreement") is entered into by
and between Xxxxxxxx X. Xxxxxx ("Employee") and Xxxxxxxxxxx Industries
("Company"). To wit, the Parties agree as follows:
1. Employee's active employment by the Company shall terminate effective
[DATE OF TERMINATION] (Employee's "Effective Termination Date"). Except
as specifically provided by this Agreement, Employee agrees that the
Company shall have no other obligations or liabilities to her following
her Effective Termination Date and that her receipt of the Severance
Benefits provided herein shall constitute a complete settlement,
satisfaction and waiver of any and all claims she may have against the
Company.
2. In consideration of the promises contained in this Agreement and
contingent upon Employee's compliance with such promises, the Company
agrees to provide Employee the following:
(i) Severance , inclusive of any notice pay obligations, to be
paid at the bi-weekly rate of $_______, less applicable
deductions or other set-offs, for a period up to fifty-two
(52) weeks following the Employee's Effective Termination Date
or until Employee becomes employed again, whichever first
occurs;
(ii) Payment for any earned but unused vacation as of Employee's
Effective Termination Date; and
(iii) Life insurance coverage until the above-referenced Severance
Pay terminates.
3. The above Severance Benefits shall be paid in accordance with the
Company's standard payroll practices (e.g. biweekly) and shall begin on
the first normally scheduled payroll following Employee's Effective
Termination Date or the effective date of this Agreement, whichever
occurs last. The Parties agree that the initial four (4) weeks of the
foregoing severance shall be allocated as additional consideration
provided to Employee in exchange for her execution of a release in
compliance with the Older Workers Benefit Protection Act. The balance
of the severance benefits shall be allocated as consideration for all
other promises and obligations undertaken by Employee, including
execution of a general release of claims.
4. As of her Effective Termination Date, Employee will become ineligible
to participate in the Company's health insurance program and
continuation of coverage requirements under COBRA (if any) will be
triggered at that time. However, as additional consideration for the
promises and obligations contained herein, the Company agrees to
continue to pay the employer's share of such coverage as provided under
the health care
1
program selected by Employee as of her Effective Termination Date,
subject to any approved changes in coverage based on a qualified
election, until the above-referenced Severance Pay terminates provided
Employee (i) timely completes the applicable election of coverage forms
and (ii) continues to pay the employee portion of the applicable
premium(s). Thereafter, if applicable, coverage will be made available
to Employee at her sole expense (i.e., Employee will be responsible for
the full COBRA premium) for the remaining months of the COBRA coverage
period made available pursuant to applicable law. The medical insurance
provided herein does not include any disability coverage.
5. Employee agrees to notify the Company in writing within three (3)
business days of Employee's acceptance of any subsequent employment by
providing the name of such employer, her intended duties as well as the
anticipated start date. Such information is required to ensure
Employee's compliance with her non-compete obligations as well as all
other applicable restrictive covenants. This notice will also serve to
trigger the Company's right to terminate the above-referenced severance
benefits and Company-paid COBRA benefits consistent with the above
paragraphs. Failure to timely provide such notice shall be deemed a
material breach of this Agreement entitling the Company to recover as
damages the value of all benefits provided to Employee hereunder.
6. In exchange for the foregoing Severance Benefits, XXXXXXXX X. XXXXXX on
behalf of himself/herself, her heirs, representatives, agents and
assigns hereby COVENANTS NOT TO XXX, RELEASES, INDEMNIFIES, HOLDS
HARMLESS, and FOREVER DISCHARGES (i) XXXXXXXXXXX INDUSTRIES, (ii) its
parent, subsidiary or affiliated entities, (iii) all of their present
or former directors, officers, employees, shareholders, and agents as
well as (iv) all predecessors, successors and assigns thereof from any
and all actions, charges, claims, demands, damages or liabilities of
any kind or character whatsoever, known or unknown, which Employee now
has or may have had through the effective date of this Agreement.
7. Without limiting the generality of the foregoing release, it shall
include: (i) all claims or potential claims arising under any federal,
state or local laws relating to the Parties' employment relationship,
including any claims Employee may have under the Civil Rights Acts of
1866 and 1964, as amended, 42 U.S.C. Sections 1981 and 2000(e) et seq.;
the Civil Rights Act of 1991; the Age Discrimination in Employment Act,
as amended, 29 U.S.C. Sections 621 et seq.; the Americans with
Disabilities Act of 1990, as amended, 42 U.S.C. Sections 12,101 et
seq.; the Fair Labor Standards Act 29 U.S.C. Sections 201 et seq.; the
Worker Adjustment and Retraining Notification Act, 29 U.S.C. Sections
2101, et seq.; and any other federal, state or local law governing the
Parties' employment relationship; (ii) any claims on account of,
arising out of or in any way connected with Employee's employment with
the Company or leaving of that employment; (iii) any claims alleged or
which could have been alleged in any charge or complaint against the
Company; (iv) any claims relating to the conduct of any employee,
officer, director, agent or other representative of the Company; (v)
any claims of discrimination, harassment or retaliation on any basis;
(vi) any claims arising from any legal restrictions on an employer's
right to separate its employees; (vii) any claims for personal injury,
2
compensatory or punitive damages or other forms of relief; and (viii)
all other causes of action sounding in contract, tort or other common
law basis, including (a) the breach of any alleged oral or written
contract, (b) negligent or intentional misrepresentations, (c) wrongful
discharge, (d) just cause dismissal, (e) defamation, (f) interference
with contract or business relationship or (g) negligent or intentional
infliction of emotional distress.
8. The Parties acknowledge that it is their mutual and specific intent
that the above waiver fully comply with the requirements of the Older
Workers Benefit Protection Act (29 U.S.C. Section 626) and any similar
law governing release of claims. Accordingly, Employee hereby
acknowledges that:
(a) She has carefully read and fully understands all of the
provisions of this Agreement and that she has entered into
this Agreement knowingly and voluntarily;
(b) The Severance Benefits offered in exchange for Employee's
release of claims exceed in kind and scope that to which she
would have otherwise been legally entitled;
(c) Prior to signing this Agreement, Employee had been advised,
and is being advised by this Agreement, to consult with an
attorney of her choice concerning its terms and conditions;
and
(d) She has been offered at least twenty-one (21) days within
which to review and consider this Agreement.
9. The Parties agree that nothing contained herein shall purport to waive
or otherwise affect any of Employee's rights or claims that may arise
after she signs this Agreement.
10. The Parties agree that this Agreement shall not become effective and
enforceable until the date this Agreement is signed by both Parties or
seven (7) calendar days after its execution by Employee, whichever is
later. Employee may revoke this Agreement for any reason by providing
written notice of such intent to the Company within seven (7) days
after she has signed this Agreement, thereby forfeiting Employee's
right to receive any Severance Benefits provided hereunder and
rendering this Agreement null and void in its entirety.
11. The Parties agree that nothing contained herein shall purport to waive
or otherwise affect any of Employee's rights or claims that may arise
after she signs this Agreement. It is further understood by the Parties
that nothing in this Agreement shall affect any rights Employee may
have under any Pension Plan and/or Savings Plan (i.e., 401(k) plan)
provided by the Company as of the date of her termination, such items
to be governed exclusively by the terms of the applicable plan
documents.
12. Employee acknowledges that her termination and the Severance Benefits
offered hereunder were based on an individual determination and were
not offered in conjunction
3
with any group termination or group severance program and waives any
claim to the contrary.
13. Employee hereby affirms and acknowledges her continued obligations to
comply with the post-termination covenants contained in her Employment
Agreement, including but not limited to, the non-compete, trade secret
and confidentiality provisions. Employee acknowledges that a copy of
the Employment Agreement has been attached to this Agreement as Exhibit
A or has otherwise been provided to her and, to the extent not
inconsistent with the terms of this Agreement or applicable law, the
terms thereof shall be incorporated herein by reference. Employee
acknowledges that the restrictions contained therein are valid and
reasonable in every respect and are necessary to protect the Company's
legitimate business interests. Employee hereby affirmatively waives any
claim or defense to the contrary.
14. Employee acknowledges that the Company possesses, and she has been
granted access to, certain trade secrets as well as other confidential
and proprietary information which the Company has acquired at great
effort and expense. Such information includes, without limitation,
confidential information regarding products and services, marketing
strategies, business plans, operations, costs, current or prospective
customer information (including customer contacts, requirements,
creditworthiness and like matters), product concepts, designs,
prototypes or specifications, regulatory compliance issues, research
and development efforts, technical data and know-how, sales
information, including pricing and other terms and conditions of sale,
financial information, internal procedures, techniques, forecasts,
methods, trade information, trade secrets, software programs, project
requirements, inventions, trademarks, trade names, and similar
information regarding the Companies' business (collectively referred to
herein as "Confidential Information").
15. Employee agrees that all such Confidential Information is and shall
remain the sole and exclusive property of the Company. Except as may be
expressly authorized by the Company in writing, or as may be required
by law after providing due notice thereof to the Company, Employee
agrees not to disclose, or cause any other person or entity to
disclose, any Confidential Information to any third party for as long
thereafter as such information remains confidential (or as limited by
applicable law) and agrees not to make use of any such Confidential
Information for Employee's own purposes or for the benefit of any other
entity or person.
16. On or before Employee's Effective Termination Date or per the Company's
request, Employee agrees to return the original and all copies of all
things in her possession or control relating to the Company or its
business, including but not limited to any and all contracts, reports,
memoranda, correspondence, manuals, forms, records, designs, budgets,
contact information or lists (including customer, vendor or supplier
lists), ledger sheets or other financial information, drawings, plans
(including, but not limited to, business, marketing and strategic
plans), personnel or other business files, computer hardware, software,
or access codes, door and file keys, identification, credit cards,
pager, phone, and any and all other physical, intellectual, or personal
property of any nature that
4
she received, prepared, helped prepare, or directed preparation of in
connection with her employment with the Company. Nothing contained
herein shall be construed to require the return of any non-confidential
and de minimis items regarding Employee's pay, benefits or other rights
of employment such as pay stubs, W-2 forms, 401(k) plan summaries,
benefit statements, etc.
17. Employee hereby consents and authorizes the Company to deduct as an
offset from the above-referenced severance payments the value of any
Company property not returned or returned in a damaged condition as
well as any monies paid by the Company on Employee's behalf (e.g.,
payment of any outstanding American Express xxxx).
18. Employee agrees not to make any written or oral statement that may
defame, disparage or cast in a negative light so as to do harm to the
personal or professional reputation of (a) the Company, (b) its
employees, officers, directors or trustees or (c) the services and/or
products provided by the Company and its subsidiaries or affiliate
entities.
19. Employee specifically agrees and understands that the existence and
terms of this Agreement are strictly CONFIDENTIAL and that such
confidentiality is a material term of this Agreement. Accordingly,
except as required by law or unless authorized to do so by the Company
in writing, Employee agrees that she shall not communicate, display or
otherwise reveal any of the contents of this Agreement to anyone other
than her spouse, legal counsel or financial advisor provided, however,
that they are first advised of the confidential nature of this
Agreement and Employee obtains their agreement to be bound by the same.
The Company agrees that Employee may respond to legitimate inquiries
regarding the termination of her employment by stating that the Parties
have terminated their relationship on an amicable basis and that the
Parties have entered into a Confidential Separation and Release
Agreement which prohibits her from further discussing the specifics of
her separation. Nothing contained herein shall be construed to prevent
Employee from discussing or otherwise advising subsequent employers of
the existence of any obligations as set forth in her Employment
Agreement. Further, nothing contained herein shall be construed to
limit or otherwise restrict the Company's ability to disclose the terms
and conditions of this Agreement as may be required by business
necessity.
20. In the event that Employee breaches or threatens to breach any
provision of this Agreement, she agrees that the Company shall be
entitled to seek any and all equitable and legal relief provided by
law, specifically including immediate and permanent injunctive relief.
Employee hereby waives any claim that the Company has an adequate
remedy at law. In addition, and to the extent not prohibited by law,
Employee agrees that the Company shall be entitled to discontinue
providing any additional Severance Benefits upon such breach or
threatened breach as well as an award of all costs and attorneys' fees
incurred by the Company in any successful effort to enforce the terms
of this Agreement. Employee agrees that the foregoing relief shall not
be construed to limit or otherwise restrict the Company's ability to
pursue any other remedy provided by law, including the recovery of any
actual, compensatory or punitive damages. Moreover, if Employee pursues
any claims against the Company subject to the foregoing General
Release, or
5
breaches the above Confidential provision, Employee agrees to
immediately reimburse the Company for the value of all benefits
received under this Agreement to the fullest extent permitted by law.
21. Employee acknowledges that this Agreement is entered into solely for
the purpose of terminating her employment relationship with the Company
on an amicable basis and shall not be construed as an admission of
liability or wrongdoing by the Company and further acknowledges that
the Company has expressly denied any such liability or wrongdoing.
22. Each of the promises and obligations shall be binding upon and shall
inure to the benefit of the heirs, executors, administrators, assigns
and successors in interest of each of the Parties.
23. The Parties agree that each and every paragraph, sentence, clause, term
and provision of this Agreement is severable and that, if any portion
of this Agreement should be deemed not enforceable for any reason, such
portion shall be stricken and the remaining portion or portions thereof
should continue to be enforced to the fullest extent permitted by
applicable law.
24. This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Indiana without regard to any applicable
state's choice of law provisions.
25. Employee represents and acknowledges that in signing this Agreement she
does not rely, and has not relied, upon any representation or statement
made by the Company or by any of the Company's employees, officers,
agents, stockholders, directors or attorneys with regard to the subject
matter, basis or effect of this Agreement other than those specifically
contained herein.
26. This Agreement represents the entire agreement between the Parties
concerning the subject matter hereof, shall supercede any and all prior
agreements which may otherwise exist between them concerning the
subject matter hereof (specifically excluding, however, the
post-termination obligations contained in any existing Employment
Agreement or other legally-binding document), and shall not be altered,
amended, modified or otherwise changed except by a writing executed by
both Parties.
PLEASE READ CAREFULLY. THIS SEPARATION AND RELEASE
AGREEMENT INCLUDES A COMPLETE RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS.
6
IN WITNESS WHEREOF, the Parties have themselves signed, or caused a
duly authorized agent thereof to sign, this Agreement on their behalf and
thereby acknowledge their intent to be bound by its terms and conditions.
"EMPLOYEE" XXXXXXXXXXX INDUSTRIES
Signed: ______________________________ By: ______________________________
Printed: _____________________________ Title: ___________________________
Dated: _______________________________ Dated: ___________________________
7
December 22, 2003
Xxxxxxxx X. Xxxxxx
Xxxxxxxxxxx Industries, Inc.
000 Xxxxx Xxxxx 00 Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Dear Xxx:
Re: Amendment to Employment Agreement
This is to confirm that, notwithstanding anything in Paragraphs 9 and
12 of the Employment Agreement dated August 1, 2003, between you and Xxxxxxxxxxx
Industries, Inc. ("Company") (hereinafter "Employment Agreement"), in the event
your employment is involuntarily terminated by the Company without cause, you
shall, subject to the terms and conditions set out below, be entitled to receive
the greater of:
(i) (a) Fifty-two (52) weeks of your base salary at the time of
termination paid as a lump sum, without set off for any other
income over and above such severance or any Accrued
Obligations and (b) any Accrued Obligations; or
(ii) (a) Severance pay determined in accordance with any guidelines
established by the Company, without set off for any other
income over and above such severance or any Accrued
Obligations and (b) any Accrued Obligations;
"Accrued Obligations" collectively refers to accrued wages, deferred
compensation, or other compensation, benefits, or perquisites which have been
fully paid or fully accrued as of the effective date of your separation, in
accordance with the Company's past practice and applicable law.
This severance pay will be in lieu of, and not in addition to, any amount of
severance pay previously described in Paragraph 12 of your Employment Agreement
as payable to you in the event your employment with the Company is involuntarily
terminated without cause.
No severance pay shall be paid if you voluntarily leave the Company's employ or
are terminated for cause. Any severance pay made payable hereunder shall be paid
in lieu of, and not in addition to, any notice pay.
Additionally, such severance pay is contingent upon you (1) fully complying with
any restrictive covenants contained in your Employment Agreement and (2)
executing a Separation and Release Agreement in a form not substantially
different from that attached to your Employment Agreement as Exhibit A
("Separation Agreement") and including the terms contained in this Amendment.
Except to the extent explicitly amended herein, all terms and conditions
contained in your Employment Agreement, in any document specifically
incorporated therein by reference, and in any other agreement between you and
the Company, shall remain in full force and effect.
Sincerely,
Xxxxxxxxx X. Xxxxxxxx
President and CEO
Xxxxxxxxxxx Industries, Inc.
THIS AMENDMENT IS MADE PART OF AND SHOULD BE KEPT WITH YOUR EMPLOYMENT AGREEMENT
