EXHIBIT 10.18
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 March,
2001, is entered into by and between Xxxxxxxxxxx Industries, Inc., an Indiana
corporation (the "Company"), and Xxxxx X. Xxxxxxxx, ("Executive").
W I T N E S S E T H:
WHEREAS, the Company is an Indiana corporation engaged through its
various subsidiaries in the healthcare and death care 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 and its subsidiaries (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 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 and Chief Financial Officer.
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, specifically including his agreement to provide the necessary
oversight concerning all financial and SEC matters relating to the
Company. 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 his 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. Handbook of Ethical Business
Conduct, the Corporate Compliance Handbook and all other applicable
policies which may exist or be adopted by the Company from time to
time. The Parties agree that nothing contained herein shall be
construed to prohibit Executive from serving on other corporate boards
provided, however, such activities are disclosed in advance to the
Company and have the approval of the Company's CEO, do not interfere
with Executive's ability to perform all duties and responsibilities
contemplated hereunder and do not otherwise violate the terms and
conditions of this Agreement.
4. At-Will Employment. Subject to the terms and conditions set forth below
in Paragraph No. 8, Executive specifically acknowledges and accepts
such employment on an "at-will" basis and agrees that, notwithstanding
anything contained herein to the contrary, 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.
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 under this Agreement or on
behalf of the Company, Executive shall be paid as follows:
(a) A base salary at the bi-weekly rate of Thirteen Thousand, Four
Hundred, Sixty-one Dollars and Fifty-four Cents ($14,423.08),
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; and
(c) Such additional compensation, benefits and perquisites as the
Company, in its sole discretion, may deem appropriate.
Notwithstanding anything contained herein to the contrary, 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 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. Warranties and Indemnification. Executive warrants that he is not a
party to any contract, restrictive covenant, or other agreement
purporting to limit or otherwise adversely affecting his ability to
provide the services contemplated under this Agreement. 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,
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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.
7. 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 him not to disclose or use such confidential or proprietary
information. Based on his 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.
8. Termination of Employment. Executive's employment may be terminated at
any time, without cause, by either party upon sixty (60) days' written
notice or pay in lieu of notice. Executive's employment may be
terminated at any time, without notice, for cause. For purposes of this
Agreement, cause shall be defined to include but shall not be limited
to dishonesty, nonperformance of duties, violation of Company policy or
procedures, conviction of a felony, violation of the Xxxxxxxxxxx
Industries, Inc. Handbook of Ethical Business Conduct, unfaithfulness
or a failure to act or not act in accordance with the direction of the
Company or in a manner contrary to the best interests of the Company.
In addition, Executive's employment shall immediately terminate upon
his death. In the event Executive is unable to perform services
hereunder because of disability, he shall not be entitled to any
compensation except such as is ordinarily paid to disabled executive
employees under the regular fringe benefit programs of the Company. In
the event Executive voluntarily leaves the Company's employ or is
terminated with or without cause prior to the end of the fiscal year,
Executive shall not be entitled to any of the compensation, benefits
and perquisites identified in Paragraphs 5(b) and 5(c) above for any
portion of such fiscal year which have not already been paid to
Executive as of the date of his separation.
9. Severance Payments. Subject to the terms and conditions set out below,
if Executive's employment is terminated by the Company without cause,
the Company shall pay Executive severance pay based upon his base
salary at the time of termination for a period figured in accordance
with any guidelines established by the Company or 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.
Moreover, any severance pay made payable hereunder shall be offset
against any amount of notice pay paid pursuant to Paragraph 5 and is
contingent upon Executive complying with the covenants and agreements
of Paragraphs 12 through 15 and executing a Separation and Release
Agreement in a form not substantially different from that attached to
the Agreement as Exhibit A.
10. Documents, Inventions, Etc. All records, files, drawings, documents,
equipment, and the like relating to the Company shall be and remain the
sole property of the Company. Executive, on the termination of his
employment hereunder, 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. Executive shall fully and promptly
disclose to the Company all ideas, conceptions, inventions,
discoveries, and designs that are conceived or contemplated by him
within the scope of his employment and pertaining to the business of
the Company (whether alone or with others and whether patentable or
unpatentable hereinafter called "Inventions") and shall assign to the
Company his entire right, title and interest in and to the Inventions.
Executive shall take all reasonable action requested by the Company to
protect, obtain title to and/or patent in any country in the name of
the Company or its nominee, any of such Inventions, including execution
and delivery of all applications, assignments and
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other papers deemed necessary by the Company, provided he is reimbursed
reasonable expenses incurred by him in so doing.
11. Confidential Information. Executive acknowledges that the Company
possesses certain trade secrets as well as other confidential and
proprietary information which the Company has 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 his employment with the Company, Executive will have access
to, will become acquainted with, and/or may help develop, such
Confidential Information.
12. 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 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.
13. Non-Solicitation. During Executive's employment and for a period of
twelve (12) months thereafter, Executive agrees not to engage in the
following prohibited conduct:
(a) Solicit, offer products or services to, accept orders from, or
otherwise transact commercial business with, any customer or
entity with whom Executive had contacted or transacted any
business during the twelve (12) 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) Directly or indirectly 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, accepted employment inquiries from, or
employ any individual who had been employed by the Company at
any time within the six (6) month period immediately preceding
the effective date of Executive's separation of employment; 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.
14. Acknowledged Need for Limited Non-Compete. 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 his 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.
15. Limited Non-Compete. For the above reasons, and as a condition of
employment, 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
employment prior to accepting such employment and, further,
provides sufficient written assurances to the Company's
satisfaction that such employment 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 twelve
(12) month period preceding Executive's date of separation;
(c) Executive shall not market, sell, or otherwise offer or
provide any Competitive Products within the applicable
Geographic Territory, specifically including any products or
services relating to those for which Executive had
responsibility for the twelve (12) 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 twelve (12) month period preceding
Executive's date of separation.
Executive agrees that the foregoing restrictions apply equally to
Executive whether performed individually, directly or indirectly, 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.
16. 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
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product or service in research, development or design, or
manufactured, produced, sold or distributed by the Companies;
(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 twelve
(12) month period preceding Executive's date of separation;
(d) "Relevant Non-Compete Term" shall include the period of
Executive's employment with the Company as well as a period of
twelve (12) 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 length of Executive's
employment with the Company, if such employment is less than
twelve (12) months.
17. Consent to Reasonableness. In light of the above-referenced concerns,
including Executive's knowledge of and access to the Company's
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.
18. 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.
19. 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.
20. 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 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
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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, if the Company prevails.
21. Publicly Traded Stock. The Parties agree that nothing contained in this
Agreement shall be construed to prohibit Executive from investing his
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. Handbook of Ethical Business
Conduct.
22. Titles. Titles are used for the purpose of convenience in this
Agreement and shall be ignored in any construction of it.
23. 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 covenant, provision or clause 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.
24. Choice of Forum. The Company is 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 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 Executive's forum state, in the state of
Indiana, or in such other state where the Executive is subject to
personal jurisdiction. Accordingly, the Parties agree that the Company
can pursue any claim against Executive in any forum in which Executive
is subject to personal jurisdiction. 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.
25. 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.
26. Successors and Assigns. The rights and obligations of the Company under
this Agreement shall inure to its benefit, its successors and
affiliated companies and shall be binding upon the successors and
assigns of the Company. This Agreement, being personal to Executive,
cannot be assigned by Executive, but his personal representative shall
be bound by all its terms and conditions.
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27. Assignment-Waiver-Notices. The rights and obligations of the Company
under this Agreement shall inure to the benefit of its successors and
affiliated companies and shall be binding upon the successors and
assignees of the Company. This Agreement, being personal to the
Executive, cannot be assigned by Executive, but his personal
representative shall be bound by all its terms and conditions. The
waiver by the Company of breach of any provision of this Agreement by
Executive shall not be construed as a waiver of any subsequent breach
by Executive. Any notice 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.
28. 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. Nothing in this Agreement
shall be construed as a limitation upon the Company's right to modify
or amend any of its manuals at its sole discretion and any such
modification or amendment which pertains to matters addressed herein
shall be deemed to be incorporated in and made a part of this
Agreement.
29. Outside Representations. Employee represents and acknowledges that in
signing this Agreement he 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.
30. 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). Finally, the Parties further agree that no verbal or other
statements, discussions, or impressions, other than those provisions
contained in this Agreement, have been relied upon by either party in
executing this Agreement.
IN WITNESS WHEREOF, the parties have signed this Agreement effective as
of the day and year first above written.
EXECUTIVE XXXXXXXXXXX INDUSTRIES, INC.
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 [EMPLOYEE'S FULL NAME] ("Employee") and Xxxxxxxxxxx Industries, Inc.
("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"). As of
that date, all Company benefits and obligations shall terminate except
as specifically provided by this Agreement. Employee agrees that the
Company shall have no other obligations or liabilities to him and that
his receipt of the severance benefits provided herein shall constitute
a complete settlement and satisfaction of any and all claims he 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 pay, inclusive of any notice pay obligations, to be
paid at the bi-weekly rate of $_______, less applicable
deductions, for a period of [WEEKS OF SEPARATION] (___) weeks
following the date of termination or until Employee becomes
employed again, whichever first occurs;
(ii) Payment for any earned but unused vacation as of [DATE OF
TERMINATION]; and
(iii) Life insurance coverage until the above-referenced Severance
Pay terminates.
The above Severance Benefits shall be paid in accordance with the
Company's standard payroll practices 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.
3. As of the Effective Termination Date, Employee will become ineligible
to participate in the Company's health insurance program and
continuation of coverage requirements under COBRA will be triggered at
that time. However, as additional consideration for the promises and
obligations contained herein, and provided Employee completes the
applicable election of coverage forms, the Company further agrees to
pay the cost of such continued coverage under the Company's health care
program until the above-referenced Severance Pay terminates.
Thereafter, if applicable, coverage will be made available to Employee
at his sole expense 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.
4. Should Employee become employed before the above-referenced Severance
Benefits are exhausted or terminated, Employee agrees to so notify the
Company in writing within three (3) business days of Employee's
acceptance of such employment, providing the name of such employer as
well as the anticipated start date.
5. It is understood by the Parties that, unless it is specifically stated
otherwise, nothing in this Agreement shall affect any rights Employee
may have under any Profit Sharing and Savings Plan (401(k)) and/or
Pension Plan provided by the Company as of the date of his termination,
such items to be governed by the terms of the applicable plan
documents.
6. In exchange for the foregoing Severance Benefits, [EMPLOYEE'S FULL
NAME] on behalf of himself, his heirs, representatives, agents and
assigns hereby COVENANTS NOT TO XXX, RELEASES, INDEMNIFIES, HOLDS
HARMLESS, and FOREVER DISCHARGES (i) Xxxxxxxxxxx Industries, Inc., (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.; 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
or harassment 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, 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). Accordingly,
Employee hereby acknowledges that:
(a) He has carefully read and fully understands all of the
provisions of this Agreement and that he 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 he
would have otherwise been legally entitled;
(c) Prior to signing this Agreement, Employee had been advised in
writing and given an opportunity to consult with an attorney
of his choice concerning its terms and conditions; and
(d) He 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 which may arise
after this Agreement is signed by him.
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10. The Parties agree that this Agreement shall not become effective and
enforceable until seven (7) calendar days after its execution by
Employee or Employee's last day of active employment, whichever occurs
last. Employee may revoke this Agreement for any reason by providing
written notice of such intent to the Company within seven (7) days
after he 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. Employee acknowledges that his termination and the severance benefits
offered hereunder were based on an individual determination and were
not offered in conjunction with any group termination or group
severance program.
12. Employee hereby affirms and acknowledges his continued obligations to
comply with the post-termination covenants contained in his 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
___ or has otherwise been provided to him and, to the extent not
inconsistent with the terms of this Agreement, 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.
13. On or before [DATE OF TERMINATION], Employee agrees to return to the
Company the original and all copies of all things in his 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 he
received, prepared, helped prepare, or directed preparation of in
connection with his 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.
14. Employee agrees not to discuss or disclose, directly or indirectly, any
proprietary or confidential information regarding the Company without
its express written consent. Employee further 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.
15. 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.
16. 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 he shall not communicate, display or
otherwise reveal any of the contents of this Agreement to anyone other
than his spouse, legal counsel or financial advisor provided,
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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 his 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 him from further discussing the specifics of
his 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 his 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 it sees fit in its sole discretion.
17. In the event that Employee breaches or threatens to breach any
provision of this Agreement, he 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 as well as an award of all
costs and attorneys' fees incurred by the Company in any effort to
enforce the terms of this Agreement if the Company prevails. 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 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.
18. Employee acknowledges that this Agreement is entered into solely for
the purpose of terminating his 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.
19. 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.
20. This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Indiana.
21. Employee represents and acknowledges that in signing this Agreement he
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.
22. 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.
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PLEASE READ CAREFULLY. THIS SEPARATION AND RELEASE
AGREEMENT INCLUDES A COMPLETE RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS.
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, INC.
Signed: ______________________________ By: ______________________________
Printed: _____________________________ Title: ___________________________
Dated: _______________________________ Dated: ___________________________
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December 22, 2003
Xxxxx X. Xxxxxxxx
Xxxxxxxxxxx Industries, Inc.
000 Xxxxx Xxxxx 00 Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Dear Xxxxx:
Re: Amendment to Employment Agreement
This is to confirm that, notwithstanding anything in Paragraphs 8 and 9
of the Employment Agreement dated March 1, 2001, between you and Xxxxxxxxxxx
Industries, Inc, 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 9 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
