Exhibit (d)(6)
EMPLOYMENT SEVERANCE & CONSULTING AGREEMENT
J. XXXXXXX XXXX
---------------
This is an Agreement made on May 15, 2001 by Fluke Electronics
Corporation, a corporation organized under Washington law and having its
principal offices at 0000 Xxxxxx Xxxxxxxxx, X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxx
00000-0000 ("Fluke") and J. Xxxxxxx Xxxx ("Xxxx"), a resident of the state of
Utah.
Xxxxxxx Corporation, the parent of Fluke, has entered into an
Agreement and Plan of Merger dated as of May 15, 2001 with Saltwater Acquisition
Corp. and Xxxxxxxxxx Industries, Inc. ("Xxxxxxxxxx") (the "Merger Agreement"),
under which Saltwater Acquisition Corp. will acquire all of the issued and
outstanding stock of Xxxxxxxxxx (the "Acquisition"). Xxxx Scientific
Incorporated ("Xxxx") is a wholly-owned subsidiary of Xxxxxxxxxx. Xxxx has been
the president and chief operating officer of Xxxx, and has been a principal
contributor to the success of its business. At or after the Effective Time of
the Acquisition (as such term is defined in the Merger Agreement), Xxxx will
leave Xxxx'x employment. As an inducement to Fluke to complete the Acquisition
and for the employment severance payments described herein, Xxxx agrees not to
compete with the business of Xxxx according to the terms of this Agreement. In
consideration of the mutual benefits to be derived from the making of this
Agreement and the mutual covenants and obligations herein contained, the parties
agree as follows:
1. Payments. Subject to the consummation of the Acquisition and as
--------
consideration for Xxxx'x obligations described below, Fluke will pay to Xxxx
three hundred and thirty thousand dollars ($330,000) upon severance of his
employment with Xxxx.. Of that amount, one hundred and thirty thousand dollars
($130,000) shall be attributable to consulting services provided hereunder by
Xxxx to Fluke and Xxxx. Through July 31, 2001, Xxxx shall continue to receive
salary payments at his current rate and shall be qualified to participate in the
planned executive bonus and general employee incentive compensation bonus to be
computed according to Xxxx'x compensation program and as budgeted in Xxxx'x
current financial projections, all in accordance with Xxxx'x business and
compensation policies. Such bonuses are not to exceed $70,000 for the executive
bonus and $20,000 for the incentive compensation bonus.
2. Consulting Services.
-------------------
(a) Xxxx shall remain a Xxxx employee until the later of the
Effective Time of the Acquisition or July 31, 2001. Thereafter, he shall provide
to Fluke and Xxxx, pursuant to specific requests of either Xxxx or Fluke
management, consulting services relating to the implementation of Fluke's
acquisition of Xxxx, as well as to operations, product development, marketing
and other aspects of Xxxx'x business as shall be agreed to from time to time by
Xxxx and Fluke or Xxxx ("the Services"). Such consulting shall be limited to a
total of 600 hours over a period of one year from the time his employment with
Xxxx is terminated.
(b) Xxxx shall perform the Services for Fluke and Xxxx with due
diligence and skill and in a prompt and professional manner. The Services will
be provided during normal business hours Monday through Friday unless otherwise
agreed by the parties. Xxxx'x reasonable travel expenses incurred on behalf of
Fluke or Xxxx shall comply with Fluke travel policies.
3. Relationship of Parties. As of the later of August 1, 2001 or the Effective
-----------------------
Time, Xxxx shall be an independent contractor and shall perform requested
Services in the manner and by the means determined by Xxxx, subject at all
times, however, to the general direction of Fluke and Xxxx. As of August 1,
2001 Xxxx shall not be an agent or employee of Fluke or Xxxx and shall have no
authority to bind Fluke or Xxxx by contract or otherwise.
4. Employment Taxes and Benefits. As of August 1, 2001, Xxxx shall report on
-----------------------------
his tax returns, in accordance with applicable regulations of the Internal
Revenue Service, all amounts received by him pursuant to this Agreement. Xxxx
shall indemnify each of Fluke and Xxxx and hold it harmless to the extent of any
obligation imposed by law on Fluke or Xxxx to pay any withholding taxes, social
security, unemployment or disability insurance, or similar items in connection
with any payments made to Xxxx by Fluke or Xxxx pursuant to this Agreement.
After July 31, 2001, Xxxx shall not be entitled to participate in any plans,
arrangements or distributions by Fluke or Xxxx pertaining to any bonus, stock
option, profit sharing, or similar benefits for employees of Fluke or Xxxx.
5. Non-Compete Provisions.
----------------------
(a) Xxxx acknowledges that the covenants he is providing in this
Agreement, are reasonable and necessary to the protection of the legitimate
interests of Fluke and, its subsidiaries and parent, including, but not limited
to, the goodwill of Xxxxxxxxxx. Xxxx further acknowledges that by virtue of his
position with Xxxx he has developed considerable expertise in the business
operations of Xxxx. Xxxx acknowledges that Fluke and its subsidiaries and
2
parents would be irreparably damaged and its substantial investment in Xxxx
materially impaired were Xxxx to engage in an activity that competes with the
business of Xxxx, Fluke or any subsidiary of Xxxxxxx Corporation in the in
violation of the terms of this Agreement. Accordingly, Xxxx acknowledges that
he is voluntarily entering into this Agreement and that the terms and conditions
of this Agreement are fair and reasonable to him in all respects and that Fluke,
in addition to any other remedies that it may have, shall be entitled to obtain
injunctive relief, including specific performance, in the event of any actual or
threatened breach by Xxxx of any of the provisions of this Agreement.
(b) Accordingly, Xxxx covenants and agrees that during for a period
of three years from the Effective Time of the Acquisition, (the "Covenant
Period"), he shall not, directly or indirectly within the Market Area, perform
any services for any person or entity engaged in a competing business as defined
herein or, without limiting the generality of the foregoing, be or become or
agree to be or become, interested in or associated with, in any capacity
(whether as a partner, shareholder, owner, officer, director, employee,
principal, agent, creditor, trustee, consultant, coventurer or otherwise) in any
competing business as defined herein. Xxxx agrees that Xxxx provides goods and
services both at its facilities and at the locations of its customers and that
by the nature of its business, it operates globally. Therefore, the Market Area
shall be defined as anywhere in the world. Notwithstanding the provisions of
this Article 5(b), Xxxx may own, solely as an investment, not more than one
percent (1%) of any class of securities of any competing business that is
publicly-traded on any United States National Security Exchange or reported on
the National Association of Securities Dealers Automated Quotation System.
(c) Fluke acknowledges that Xxxx and/or members of his family are
currently engaged in a business called ThermoWorks that engages in the sale of
low-end temperature measurement equipment. Nothing in this Agreement shall
prohibit Xxxx or any company with which he is affiliated from (i) engaging in
that business or other businesses so long as they do not conflict with the
noncompetition provisions of this Agreement, or (ii) purchasing equipment
manufactured or sold by Xxxx or Fluke under reasonable terms and conditions that
are agreeable to Xxxx or Fluke.
(d) Xxxx acknowledges that, during the Covenant Period, he may engage
in any business activity or gainful employment of any type and in any place
except as described herein. Xxxx acknowledges that he will be reasonably able to
earn a livelihood without violating the terms of this Agreement.
3
6. Competing Business Defined. For purposes of this Agreement, a "competing
--------------------------
business" is one engaged in research, development, marketing or sale of any of
the following types of temperature metrology equipment:
(a) Liquid calibration baths with stability of +0.02C or better;
-
(b) Calibration dry-blocks with accuracy of +0.5C or better;
-
(c) Primary standards artifacts and their apparatus (cells, SPRTs, and
furnaces or baths); and
(d) High accuracy thermometers with a "system accuracy" of +0.03C or
better.
as well as any products that have the same or substantially the same
specifications as any Xxxx manufactured products in Xxxx'x 2001-2002 product
catalog, including derivatives thereof. Xxxx'x rights hereunder shall not be
limited if a derivative Xxxx product is brought into the range of specifications
within which Xxxx is permitted to sell, so long as the competing product does
not include the higher range of specifications prohibited in this Article 6.
7. No Solicitation Provisions. Xxxx further agrees that during the Covenant
--------------------------
Period he will not, without Fluke's prior written consent, directly or
indirectly (i) induce or attempt to influence any employee of Xxxx or Fluke or
their respective subsidiaries or parents to leave its employ, (ii) hire any
person who shall have been an employee of Xxxx or Fluke or their respective
subsidiaries or parents, within one year preceding the termination of his
employment with Xxxx, (iii) aid or agree to aid any competitor, customer or
supplier of Xxxx or Fluke or their respective subsidiaries or parents in any
attempt to hire any person who shall have been employed by Xxxx within one year
preceding the termination of Xxxx'x employment with Xxxx or Fluke or their
respective subsidiaries or parents, or (iv) induce or attempt to influence any
person or business entity who was a customer of Xxxx during any portion of the
Covenant Period to transact business with a competing business as defined
herein.
8. Proprietary Information. Xxxx acknowledges and understands that
-----------------------
Proprietary Information is an important Xxxx asset and Xxxx shall return to Xxxx
all Proprietary Information in his possession upon the termination of his
employment with Xxxx. Furthermore, Xxxx shall not disclose, publish, or use
Proprietary Information unless and until its owner discloses such information to
the public or ownership rights terminate pursuant to law. Proprietary
Information for purposes of this Agreement shall include Xxxx information that
otherwise is not generally known to the public and that is or has been
developed, owned or obtained by either Xxxx or Xxxx. "Proprietary Information"
includes, without limitation, any technical data, trade secrets,
4
good will or know-how, including without limitation, information related to
operations, employee roles and functions, products, research, inventions,
designs, processes, methods, product proposals and development, products yet to
be announced, development engineering, technology-based components research,
computer software, source code, specifications, confidential manuals, sales and
financial materials, forecasts, pricing and cost data, customer lists, sales
figures, projections and plans, business strategies, unannounced products, or
other oral, written or computer-generated information, including non-technical
and non-sales-related information. Proprietary information shall not include the
skills or general knowledge and information obtained by Xxxx while employed at
Xxxx that pertains to business management or the temperature metrology equipment
industry that one would expect to use when employed elsewhere. It shall apply to
the business information specific to Xxxx that Xxxx, or any other company, would
not want divulged to those outside the company because of the potential that
such disclosure could cause economic harm to the company or deprive it of
financial benefit.
9. Independence of Obligations. The covenants of Xxxx set forth in this
---------------------------
Agreement shall be construed as independent of any other agreement or
arrangement between Xxxx and Fluke or Xxxx. The existence of any claim or cause
of action by Xxxx against Fluke or Xxxx shall not constitute a defense to the
enforcement of such covenants against Xxxx.
10. Termination of Employment Agreements. Upon the Effective Time, this
------------------------------------
Agreement shall supercede and render null and void, and as of the Effective Time
Xxxx waives any rights arising from, any employment agreement and any other
agreement Xxxx has or may have had, written or oral, pertaining to his
employment with Xxxx including any agreement that may pertain to compensation as
a result of a sale or acquisition of Xxxx or Xxxxxxxxxx. In addition, Xxxx
consents and agrees that all options to purchase common stock of Xxxxxxxxxx or
any of its subsidiaries shall be cancelled in the manner and for the
consideration set forth in Section 2.9 of the Merger Agreement.
11. Release of Claims. For Xxxx and his respective legal successors and
-----------------
assigns, Xxxx as of the Effective Time of the Acquisition (a) releases and
absolutely discharges Xxxx and Xxxxxxxxxx and all of their respective
subsidiaries, affiliates, stockholders, parent, employees, agents, attorneys,
legal successors and assigns of and from any and all claims, actions and causes
of action, whether now known or unknown, suspected or unsuspected, which Xxxx
now has, owns or holds, or at any other time had, owned or held, or will or may
have, own or hold
5
based upon or arising out of any matter, cause, fact, thing, act or omission
whatsoever occurring or existing at any time up to and including the date of the
Effective Time of the Acquisition, and (b) releases and discharges any and all
rights of first refusal, options and other claims or preemptive rights he has
with respect to any securities, assets, properties or businesses of Xxxx and
Xxxxxxxxxx and any of their respective subsidiaries, affiliates or parent.
Nothing in this Release of Claims waives any of Xxxx'x right to xxx to enforce
this Agreement. In addition to this Release of Claims, Xxxx will, at or prior to
the Effective Time, execute and deliver to Xxxxxxxxxx the agreement attached
hereto as Exhibit A.
12. Severability, Reformation. If any provision of this Agreement is held by a
-------------------------
court of competent jurisdiction to be excessively broad as to duration,
activity, subject or geographic scope, this Agreement shall be modified to
extend only over the maximum duration, activity or subject as to which such
provision shall be valid and enforceable under applicable law. If any provision
of this Agreement shall, for any reason, be held by a court of competent
jurisdiction to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
agreement, but this agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
13. Specific Enforcement. Xxxx acknowledges that it would be difficult to
--------------------
measure the damages that might result from any breach of any of his agreements
or covenants contained herein, and that any breach of any such covenants or
agreements will result in injury to Fluke or to Xxxx, for which money damages
could not adequately compensate. If a breach of such covenants or agreement
occurs, Fluke shall be entitled, in addition to all of the rights and remedies
that it may have at law or in equity, to
(a) reimbursement by Xxxx to Fluke of any amount paid to him pursuant to
Article 1 of this Agreement, and
(b) injunctive relief to enjoin and restrain Xxxx and all other persons
and entities involved therein from continuing such breach. If Fluke resorts to
litigation to enforce any of the covenants or agreements contained herein that
have a fixed term, then such term shall be extended for a period of time equal
to the period during which a breach of the covenant or agreement was occurring,
or, if later, the last day of the original fixed term of such covenant or
agreement.
6
14. Notices. All notices and other communications given pursuant to this
-------
Agreement shall be in writing and shall be delivered in hand, sent by telecopier
and confirmed by mailing of a copy thereof by ordinary mail on the same or
immediately following business day, or sent by certified mail, return receipt
requested, with postage and fees prepaid, addressed or delivered to the party
for whom the notice or other communication is intended at that party's address
set forth in the heading of this Agreement or to such other address for a party
notice of which, complying with these provisions, has been give by that party to
the other. All such notices, requests, demands or other communications will be
deemed to have been effectively given when received by the person addressed.
15. Waiver.
------
(a) No failure on the part of any party to exercise any power, right,
privilege or remedy under this Agreement and no delay on the party of any party
in exercising any power, right, privilege or remedy under this Agreement, shall
operate as a waiver of the power, right, privilege or remedy; and no single or
partial exercise of any such power, right, privilege or remedy shall preclude
any other or further exercise thereof or of any other power, right, privilege or
remedy.
(b) No party will be deemed to have waived any claim arising out of this
Agreement or any power, right, privilege or remedy provided under this Agreement
unless the waiver of the claim, power, right, privilege or remedy is set forth
expressly in a written instrument duly executed and delivered on behalf of the
waiving party; and any such waiver shall not be applicable or have any effect
except in the specific instance in which it is given.
16. Survival. The respective obligations of the parties under this Agreement
--------
that by their nature would continue beyond the termination, cancellation or
expiration, shall survive termination, cancellation, or expiration, including
but not limited to Articles 9 through 20 of this Agreement.
17. Assignment. This Agreement shall be assignable by Xxxx or Fluke to any
----------
person, firm or corporation that may become a successor in interest to Xxxx,
Fluke and their respective subsidiaries, affiliates and parents. Such assignment
can include Articles 5 through 7. The duties and obligations under this
Agreement are personal to Xxxx and he shall have no right to assign this
Agreement.
7
18. Binding Effect. This Agreement shall be binding upon and shall inure to
--------------
the benefit of Fluke and its successors and assigns and upon Xxxx and his heirs
and legal representatives.
19. Applicable Law; Jurisdiction. Except to the extent governed by federal
----------------------------
law, this Agreement shall be governed by and construed in accordance with the
laws of the State of Utah without giving effect to the conflict of laws
provisions thereunder. Each of the parties hereby absolutely and irrevocably
consents and submits to the jurisdiction of the courts of the State of
Washington or the State of Utah and of any federal court sitting in Salt Lake
City or in Seattle in connection with any actions or proceedings brought against
any party arising out of or relating to this Agreement. In any such action or
proceeding, the parties each hereby absolutely and irrevocably (i) waive any
objection to jurisdiction or venue, (ii) waive personal service of any summons,
complaint, declaration or other process, and (iii) agree that the service
thereof may be made by certified or registered first-class mail directed to such
party, as the case may be, at their addresses set forth under the signature
lines of this Agreement.
20. Counterparts. This Agreement may be executed in several counterparts, each
------------
of which shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
21. Termination. This Agreement shall terminate and have no effect and be
-----------
void, and no party hereto shall have any obligation hereunder, upon termination
of the Offer (as defined in the Merger Agreement) or termination of the Merger
Agreement.
IN WITNESS WHEREOF, the undersigned have executed this agreement as of the date
first above written.
FLUKE ELECTRONICS CORPORATION
By /s/ Xxxxxxxxxxx X. XxXxxxx /s/ J. Xxxxxxx Xxxx
------------------------------- ------------------------------------
J. Xxxxxxx Xxxx
Address: Address:
0000 Xxxxxx Xxxx.
X.X. Xxx 0000, XX 203A
Xxxxxxx, XX 00000-0000
8
EXHIBIT A
[__] Company's Copy
[__] Xxxx'x Copy
PLEASE READ THIS AGREEMENT CAREFULLY.
IT CONTAINS A RELEASE OF KNOWN AND UNKNOWN CLAIMS.
To X. Xxxxxxx. Xxxx:
This Agreement establishes the terms under which Xxxxxxxxxx Industries,
Inc. and its subsidiaries (collectively, the "Company") and you have agreed to
end your employment effective as of the close of business on the later of July
31, 2001 or the Effective Time of the Acquisition (the "Separation Date") and of
your release of the Company and others described below from any claims you might
have against any of them related to your employment and other matters described
and of the Company's release of you.
Resignation. You have indicated your agreement to remain employed by the
Company until the Separation Date. As of the Separation Date or a mutually
agreed later date, you are resigning as an employee, officer, director, and
other representative of the Company. You agree that you will no longer have any
connection with the Company after the Separation Date, except as this Agreement
provides.
Services. You agree to provide consulting services to the Company under your
Consulting Agreement with Fluke Electronics Corporation, dated as of May 15,
2001 (the "Consulting Agreement").
Payment. The Company will, contingent upon receipt of this Release Agreement
signed by you, the lapse of the Revocation Period, and the Effective Time of the
merger provided in the Agreement and Plan of Merger dated as of May 15, 2001
with Saltwater Acquisition Corp. and the Company, pay you or your estate
$330,000 under the Consulting Agreement in consideration for the Release. You
agree that you are not entitled to this payment under your employment
relationship or otherwise and that the payment is more than adequate
consideration for the Release.
Limitations on Other Benefits or Compensation. You understand and agree that
you will receive no other wage, back pay, severance, or other payments or
benefits from the Company or affiliates of the Company other than those set
forth in this and the preceding paragraph and your regular bonus for fiscal year
2001, except for any generally applicable retirement benefit plans for which you
have qualified. If covered by the Company's medical plan, you will remain
eligible for continued health coverage under Section 4980B of the Internal
Revenue Code of 1986 at your own expense for the period required for such
coverage.
9
Duties. As part of this Agreement, through the Separation Date, you agree to:
(i) continue to perform all of your current duties and comply with your
employment agreement and other obligations to the Company; (ii) assist with the
merger; and (iii) carry out any other tasks the Company reasonably requests to
facilitate the Effective Time of the merger.
No Disparaging Comments. Except as the law may require, you agree that you will
not in any way, directly or indirectly, to any employee of the Company or to any
other person (including but not limited to any communications with the press or
other media), make any statement that could reasonably be interpreted to
criticize or disparage the performance, competency, or ability of the Company or
its affiliates as a provider of products and services, or the officers,
directors, trustees, partners, members, employees, or agents of any of them at
any time after the execution of this Agreement, nor will you do or say anything
that likely would have the effect of disrupting or impairing the Company's
normal, ongoing business operations or harming the Company's reputation with its
associates, employees, clients, investors, suppliers, dealers, acquisition
prospects, or the public. It will not be a violation of this paragraph for you
to make truthful statements, under oath, as required by law or formal legal
process.
Entire Agreement. This is the entire agreement between you and the Company and
the other parties released, with respect to matters provided in this Agreement.
The Company has made no promises to you other than those in this Agreement with
respect to matters covered by it. The parties expressly agree that your current
employment agreement and any predecessor agreements have no force or effect
after the Separation Date and cannot be enforced by either party against the
other, except as expressly noted above, provided that you agree that you remain
bound by the restrictive covenants in your Consulting Agreement. The Company
has made no promises to you other than those in this Agreement and in the
Consulting Agreement.
No Reliance. You acknowledge and agree that, in deciding to execute this
Agreement and the Release, (i) you have relied entirely upon your own judgment,
(ii) you have been advised to and have [had the opportunity to consult]
[consulted] with legal, financial, and other personal advisors of your choosing
as you consider appropriate in assessing whether to execute this Agreement, and
(iii) you have read and fully understood all the terms of this Agreement.
Except as written into this Agreement, neither you nor the Company is relying or
has relied upon any statements, representations, warranties, or other promises,
express or implied, oral or written, as to fact or as to law, made by the other
party, or any other person, including, without limitation, any attorney or agent
of either party, or upon any consideration of any form received or to be
received by any party from any other person, including, without limitation, any
attorney or agent of a party.
Settlement. The parties have reached this Agreement and Release to, among
other things, settle any potential claims relating to the termination of your
employment that you have or may have against the Company and any related
entities including parent, subsidiaries, successors, or affiliates, and their
present, former and future
10
employees, officers, trustees, partners, shareholders, counsel, and anyone
acting or purporting to act on behalf of any of them. Neither this Agreement nor
any other document or written or oral statement prepared or made in connection
with this Agreement, nor any discussion of the matters referred to in this
Agreement nor any payment under this Agreement, constitutes, or should be deemed
to constitute, (A) an admission of law or fact or an admission of any liability
or wrongdoing by you or the Company with respect to any claims, unasserted
claims, or demands relating to or arising out of or in connection with any
matter whatsoever (and the Company specifically denies any such liability or
wrongdoing) or (B) evidence of any matter whatsoever, except for the agreement
expressly set forth in this Agreement.
Binding Effect This Agreement binds any and all successors and assigns of the
Company and your heirs and beneficiaries.
Mutual Release of Claims. You, for yourself and your heirs, executors,
administrators, representatives, and assigns, as a free and voluntary act,
release and discharge the Company, Xxxxxxx Corporation, Fluke Corporation and
any entities related to any of them, including parent, divisions, subsidiaries,
or affiliates, and their present, former, and future employees, officers,
directors, stockholders, counsel, and anyone acting or purporting to act on
behalf of any of them, from any and all debts, obligations, demands, claims,
judgments or causes of action of any kind whatsoever, whether now known or
unknown, in tort, in contract, by statute, or any other basis for compensatory,
punitive or other damages, expenses, reimbursements or costs of any kind. This
release and discharge includes, but is not limited to, any and all claims,
demands, rights and/or causes of action, arising up to the date of this Release,
including those that might arise out of allegations relating to any claimed
breach of an alleged oral or written contract, or any purported employment
discrimination or civil rights violations, or any alleged acts of slander,
libel, or intentional infliction of emotional distress. This release and
discharge includes, but is not limited to, any and all claims, demands, rights,
and/or causes of action you might have or assert against any of the Company and
the other described entities or persons by (1) reason of active employment by
the Company or any associated or affiliated company or the cessation of such
employment relationship and all circumstances related thereto, or (2) reason of
any other matter, case or thing whatsoever that may have occurred before the
dates of execution of this Release. The Company specifically disclaims any
liability to, or for wrongful acts against, you or any other person on the part
of itself, its shareholders, subsidiaries, affiliates, and successors and the
directors, officers, employees and agents of each of them.
Company Release of Claims. Likewise, the Company, as a free and voluntary act,
releases and discharges you from any and all debts, obligations, demands,
claims, judgments, or causes of action of any kind whatsoever, whether known or
unknown, under or with respect to your employment or your employment agreement,
arising up to the date of this Release. This release of you does not waive any
defenses the Company may have with respect to indemnifying you, nor does it
cover any acts of a criminal or fraudulent nature.
11
Release of Statutory Claims. This Release includes but is not limited to a
release of any rights or claims you may have under the Age Discrimination in
Employment Act of 1967, as amended ("ADEA"), which prohibits age discrimination
in employment; Title VII of the Civil Rights Act of 1964, as amended, which
prohibits discrimination in employment based on race, color, national origin,
religion or sex; the Equal Pay Act, which prohibits paying men and women unequal
pay for equal work; the Americans with Disabilities Act of 1990, which prohibits
discrimination against disabled persons; the Vocational Rehabilitation Act of
1973, which prohibits discrimination against handicapped persons; the Civil
Rights Act of 1991, and any other federal, state, or local laws or regulations
prohibiting employment discrimination; and any claim for reinstatement. This
also includes your release of any claims for wrongful discharge, breach of
contract (express or implied), breach of any covenant of good faith and fair
dealing (express or implied), any claims that the Company has dealt with you
unfairly or has denied you any rights under its policies and procedures or any
other claims arising under common or civil law and relating to your employment
or termination, and any claims under the Employee Retirement Income Security Act
of 1974, which prohibits actions taken to discharge or discriminate against
someone to prevent his exercising any right under an employee benefit plan or to
interfere with his attainment of any such right. It does not release claims
under ADEA or on any other basis that arise after the date you sign this
Release, but you agree that your termination of employment as of the Separation
Date and the other matters described in the Agreement "arise" before the date
you sign below.
Known and Unknown Claims. To implement a full and complete release and
discharge, you expressly acknowledge that this Release is intended to include in
its effect, without limitation, all claims you do not know or suspect to exist
in your favor at the time of execution of this Release. You agree that this
Release contemplates the extinguishment of any such claim or claims.
Indemnification. The Company agrees that you are not releasing any claims you
may have for indemnification under state or other law or the charter, articles,
or by-laws of the Company and its affiliated companies, or under any insurance
policy providing directors' and officers' coverage for any lawsuit or claim
relating to the period when you were a director or officer of the Company or any
affiliated company.
Period for Consideration. You acknowledge that, as ADEA requires, you have been
given a period of 21 days to review and consider the release of claims under
ADEA contained in this Release before signing and you have been informed that
you may use as much or as little of this period as you wish before signing. As
ADEA also requires, you may revoke (that is, cancel) the release of ADEA claims
in this Release before the release becomes effective as to ADEA. ADEA provides
a seven day period for such revocation, which the Company and you agree will
start on the Separation Date. You would make this revocation by delivering a
written notice of revocation to NAME, ADDRESS. For this revocation to be
effective, the NAME must receive this notice no later than the close of business
on seventh day following the Separation Date. If you
12
revoke the release of claims under ADEA before that deadline, this Release will
not be effective or enforceable as to those claims; however, the Company will
then not pay you and you will not be entitled to retain the amounts described in
the Agreement to which this Release is attached.
Governing Law. The laws of the State of Utah (other than its conflict of laws
provisions) govern this Agreement.
Effectiveness. This Agreement does not become effective until it has been
executed and delivered by both the Company and you and the Merger has closed.
You acknowledge that you have read this Agreement, understand it, and are
voluntarily entering into it.
Xxxxxxxxxx Industries, Inc.
By: ________________________________
____________________________________
Date Signed
Name:_______________________________
Title: _____________________________
This agreement includes a release -- read carefully before signing. You should
consult with an attorney.
Accepted and agreed to this ____ day of _______ 2001:
_________________________________
J. Xxxxxxx Xxxx
_________________________________
Date Signed
13
