XXXXXX XXXX
THIS
TERMINATION AND SEVERANCE AGREEMENT AND MUTUAL RELEASE (“Agreement and
Release”) is made by and between FRESH BRANDS, INC. (along with and including its
subsidiaries and affiliates, “FBI”) and XXXXXX X. XXXX (“Xxxx”)
effective as of this November 14, 2003.
WHEREAS,
to further the best interests of both FBI and Xxxx, Xxxx has elected to voluntarily resign
from FBI effective as of this November 14, 2003 (“Resignation Date”), and
FBI has elected to accept such resignation, on the terms and conditions set forth below.
WHEREAS,
in consideration of Xxxx agreeing to the terms and conditions of this Agreement and
Release, FBI is willing to provide Xxxx with the severance payments and other additional
benefits described below, to which he would not otherwise be entitled.
NOW
THEREFORE, FBI and Xxxx, in consideration of the mutual promises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
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1. |
Voluntary
Resignation. As a result of Xxxx’x decision to voluntarily
resign from FBI on the terms set forth herein, Xxxx’x employment
with FBI will terminate in all respects effective for all purposes
immediately. Xxxx also hereby resigns as an officer and director of
FBI (including Fresh Brands Distributing, Inc. (“FBDI”) and
Dick’s Supermarkets, Inc. (“DSI”)), effective
immediately. FBI hereby accepts such resignations, including on
behalf of FBDI and DSI. |
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2. |
Transition
Plan; Consulting Services. In exchange for the severance payments
and other additional benefits provided hereunder to which he would not
otherwise have been entitled, Xxxx: (i) has prepared and submitted to
FBI a list of all of his pending matters that he is working on and a
transition plan associated with each such matter and (ii) from the
Resignation Date through February 13, 2004, Xxxx shall provide
telephonic consulting services on an “as needed” basis as
may be reasonably requested by or on behalf of FBI. |
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3. |
Severance
Payments and Other Additional Benefits. Subject to Xxxx’x
compliance with this Agreement and Release: |
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A. |
On or before November 26, 2003, FBI will pay Xxxx for his 20 unused vacation
days (less required withholdings). After the Resignation Date, as severance
payments hereunder and in consideration of Xxxx’x other covenants
hereunder, FBI will continue to pay Xxxx the pro rata amount of his current base
salary compensation (less required withholdings) through February 13, 2004. Such
severance payments will be paid on FBI’s normal payroll dates. |
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B. |
After the Resignation Date, Xxxx will be offered COBRA coverage eligibility for
family health and dental insurance coverage. Should Xxxx wish to carry COBRA
coverage, he will be responsible for personally paying all of the necessary
premium payments. Details of COBRA coverage will be provided separately to Xxxx
upon his request. |
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C. |
Other than as set forth above, Xxxx’x coverage under all other group
benefits programs maintained by FBI will cease as of the Resignation Date. |
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D. |
After the Resignation Date, Xxxx may exercise his currently outstanding stock
options (the “Option Agreements”) pursuant to the terms and conditions
of such Option Agreements. |
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E. |
After the Resignation Date, subject to the terms of FBDI’s Retirement
Savings Plan and Executive Benefit Restoration Plan, Xxxx shall be entitled to
receive the vested balances in his accounts within such plans. |
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F. |
FBI shall provide mutually agreed upon appropriate positive job references to
third parties upon Xxxx’x or such parties’ request. FBI shall not
discuss Xxxx or his job performance with any third parties in a manner that is
inconsistent with such job references. |
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G. |
During the three month period immediately following the Resignation Date, FBI
shall continue to provide Xxxx a cellular telephone with the cost thereof to be
paid by FBI so long as such cost is reasonable in light of previous costs
incurred by FBI for Xxxx’x telephone. |
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X. |
Xxxx is not entitled to, and hereby waives, any other severance, compensation or
bonuses, or other benefits, except as otherwise specifically provided in this
Agreement and Release or in the Option Agreements. |
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4. |
Access.
Xxxx’x access to FBI’s offices will end on Sunday, November 16,
2003. When Xxxx delivers this Agreement and Release to FBI, he shall
also deliver all keys and/or access cards. |
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5. |
Return
of All FBI Documents and Property. No later than Sunday, November
16, 2003, Xxxx will return to FBI all documents and property
(including, without limitation, all records, memoranda, notes,
correspondence, client information, reports, manuals, plans, computer
discs, tapes and files, printouts, software, presentations and the
like, including all copies thereof, computers, telephones, PDAs,
equipment, and the like) in his possession or under his control pertaining
to FBI’s business, excluding only Xxxx’x personal files and
property; provided, however, that Xxxx shall return the cellular
telephone provided to him by FBI on or before February 13, 2004. Xxxx
will not copy or cause to be copied any of FBI’s records nor
cause a removal of any record, document or property belonging to FBI
from the premises without authorization from FBI. |
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6. |
Noncompetition
and Confidentiality Obligations. In exchange for the severance
payments and other additional benefits provided hereunder to which he
would not otherwise have been entitled: |
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X. |
Xxxx hereby agrees not to, for a period from and after the Resignation Date
through December 31, 2004 (the “Noncompetition Period”): |
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(i) |
engage
in, continue in or carry on any business which competes with any of
FBI’s existing corporate or franchised supermarkets (the
“Stores”), including owning or controlling any financial
interest in any corporation, partnership, firm or other form of
business organization which is so engaged; |
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(ii) |
consult
with, advise or assist in any way, whether or not for consideration, any
corporation, partnership, firm or other business organization which
is now or becomes a competitor of any of the Stores in any respect
including, but not limited to, advertising or otherwise endorsing the
products of any such competitor; soliciting customers or otherwise
serving as an intermediary for any such competitor; loaning money or
rendering any other form of financial assistance to or engaging in
any form of business transaction on other than an arm’s length
basis with any such competitor; |
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(iii) |
hire,
offer to hire, or solicit for employment any person who, at any time
during the Noncompetition Period, has been an employee of FBI,
without the prior consent of FBI, until such person has been
separated from employment by FBI for at least 180 days; or |
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(iv) |
engage
in any practice, the purpose of which is to evade the provisions of this
covenant not to compete or to commit any act which adversely affects
any of the Stores or FBI; |
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provided,
however, that the foregoing shall not prohibit the ownership of securities of
corporations which are listed on a national securities exchange or traded in the national
over-the-counter market in an amount which shall not exceed 5% of the outstanding shares
of any such corporation. FBI and Xxxx agree that the geographic scope of this covenant
not to compete shall be limited to the State of Wisconsin. FBI and Xxxx agree that FBI
may sell, assign or otherwise transfer this covenant not to compete, in whole or in part,
to any person, corporation, firm or entity. In the event a court of competent
jurisdiction determines that the provisions of this covenant not to compete are
excessively broad as to duration, geographical scope or activity, it is expressly agreed
that this covenant not to compete shall be construed so that the remaining provisions
shall not be affected, and shall remain in full force and effect, and any such over broad
provisions shall be deemed, without further action on the part of any person, to be
modified, amended and/or limited, but only to the extent necessary to render the same
valid and enforceable in such jurisdiction. Xxxx recognizes and agrees that additional
consideration to which he would not otherwise be entitled is being provided to him
hereunder in exchange for his foregoing obligations. |
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X. |
Xxxx
hereby agrees not to, for a period of two years from and after the
Resignation Date, participate or engage in any activity whatsoever, either
directly or indirectly, in connection with or in support of any indication
of interest, proposal, offer or other transaction to acquire all, or any
substantial part, of FBI. |
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C. |
Prior
to and for an indefinite period after the Resignation Date, Xxxx will not
directly or indirectly disclose to any person or entity (other than FBI or
one of its representatives or agents), or otherwise use for Xxxx’x
own or any other purposes, any confidential or proprietary information
related in any way to FBI or its clients or prospects that Xxxx has
received or learned of as an employee of FBI, without the prior written
consent of an FBI officer. Xxxx understands and agrees that this is an
absolute and strict obligation of confidentiality and nonuse of
information important to FBI’s continued business success.
Additionally, Xxxx will not at any time divulge the circumstances or terms
of this Agreement (however, Xxxx is free to discuss the terms of this
Agreement with his immediate family members and with legal and tax
advisors as necessary to obtain advice and assistance, as required by any
court order or as reasonably required to prosecute or defend an action for
breach of this Agreement). Xxxx recognizes and agrees that additional
consideration to which he would not otherwise be entitled is being
provided to him hereunder in exchange for his foregoing obligations. |
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D. |
In
the event of any breach by Xxxx of any of the covenants herein contained in
this Section 6, it is specifically understood and agreed that FBI
shall be entitled, in addition to any other remedy which it may have, to
equitable relief by way of injunction or otherwise. |
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E. |
The
foregoing restrictions in this Section 6 are deemed fair and reasonable
to FBI and Xxxx, and Xxxx acknowledges and agrees that these restrictions
are necessary to protect FBI from the unfair competition of Xxxx who, as a
result of his association and position with FBI, has had access to, used
and acquired confidential information of FBI pertaining to its customers,
business and operation. Xxxx acknowledges and agrees that such
confidential information is of special and unique value to, and
constitutes a valuable asset of, FBI, and that the duration and scope of
the restrictive covenants contained herein are reasonable and necessary to
protect FBI. |
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A. |
In
consideration of the severance payments and additional benefits provided to
Xxxx herein to which he would not otherwise have been entitled, Xxxx,
individually, and as an officer, director, employee and shareholder of FBI
and in all other capacities, does hereby fully and completely forever
discharge, waive and release, and covenants not to xxx, FBI and its past,
present and future employees, agents, representatives, officers, directors
and shareholders, from and with respect to any and all actions, causes of
action, claims, demands, damages, liabilities, costs, expenses and/or
compensation of any kind and nature whatsoever (collectively and
individually, “Claims”) on account of, or in any way growing out
of, any and all known and unknown facts, circumstances or matters
resulting from or related to (i) Xxxx’x employment with FBI;
and/or (ii) the termination of Xxxx’x employment with FBI;
provided, however, that this release does not relate to any claims for a
breach or default by FBI of this Agreement and Release and/or the Option
Agreements. |
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B. |
By
way of example only and without in any way limiting the generality of the
foregoing language, Xxxx’x release includes a complete release of any
and all Claims under the Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §2000e et seq.; the Americans with
Disabilities Act of 1991, 42 U.S.C. §12l1-1217; the Rehabilitation
Act of 1973, as amended, through 1988; the Employment Retirement Income
Security Act of 1974, 29 U.S.C. §1001 et seq.; the Fair Labor
Standards Act of 1938, 29 U.S.C. §201 et seq.; the National
Labor Relations Act, 29 U.S.C. §151 et seq.; the Family and Medical Leave Act
of 1993, 29 U.S.C. §2601 et seq.; the Wisconsin Fair Employment Law, § 111.33,
et seq., Wis. Stats.; the Wisconsin Family and Medical Leave Act,
§ 103.10, Wis. Stats., and any other federal, state or local statute,
ordinance or regulation dealing in any respect with employment,
discrimination or termination of employment, and in addition, from any
Claims brought on the basis of alleged wrongful or retaliatory discharge,
breach of an oral or written contract, misrepresentation, defamation,
interference with contract or tortuous conduct. |
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C. |
It
is the intention of Xxxx in executing this Agreement and Release that these
provisions of this Section 7 shall be effective as a complete bar to
each and every Claim hereinabove described and that these provisions shall
be binding upon Xxxx and his agents, attorneys, personal representatives,
executors, administrators, heirs, beneficiaries, successors and assigns. |
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A. |
FBI
does hereby fully and completely forever discharge, waive and release, and
covenants not to xxx, Xxxx and his agents, attorneys, representatives,
successors and assigns from any and all Claims on account of, or in any
way growing out of, any and all known and unknown facts, circumstances or
matters resulting from or related to Xxxx’x employment or the
termination of his employment or both at FBI; provided, however, that this
release does not relate to any claims for a breach or default by Xxxx of
this Agreement and Release and/or the Option Agreements. |
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B. |
It
is the intention of FBI in executing this Agreement and Release that these
provisions of this Section 8 shall be effective as a complete bar to
each and every Claim hereinabove described and that these provisions shall
be binding upon FBI and its past, present and future employees, agents,
attorneys, representatives, officers, directors, successors and assigns. |
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9. |
Non-Disparagement; Cooperation; Publicity. From and after the execution
of this Agreement and Release, Xxxx will not act in any way to harm or disrupt
FBI’s business or personal relationships with its shareholders,
franchisees, franchisee prospects, acquisition prospects, employees, vendors,
banks, bank prospects, landlords, landlord prospects or other business
relationships, or disparage in any way FBI or any of its directors, officers,
employees, shareholders or business operations. |
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10. |
Unemployment Compensation. This Agreement and Release will not xxx Xxxx
from filing for unemployment compensation. FBI will not contest any unemployment
compensation claim by alleging voluntary resignation or misconduct, if such a
claim is filed. |
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11. |
Acceptance. Xxxx acknowledges that he has had sufficient time to read
this Agreement and Release and consider his acceptance of this Agreement and
Release and voluntarily enters into this Agreement and Release with full
knowledge of its meaning and consequences. In entering into this Agreement and
Release, Xxxx is relying on his own judgment and knowledge and not on
representations or statements made by FBI, its shareholders, directors,
officers, employees or agents. Xxxx is aware of his right to consult an attorney
before entering into this Agreement and Release. Xxxx has executed this
Agreement and Release in consideration for the substantial severance benefits
described above and Xxxx acknowledges and agrees that these payments represent
substantial consideration in addition to anything of value that he is otherwise
entitled to receive from FBI. These severance payments are sufficient to fully
support this Agreement and Release and the termination of Xxxx’x
employment. |
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12. |
Revocation. For a period of seven (7) days following the execution of
this Agreement and Release, Xxxx may revoke it in writing to the Chairman of the
Board of Directors of FBI. This Agreement and Release will not become effective
or enforceable until the revocation period has expired. If this Agreement and
Release is revoked by Xxxx, then any payment made in accordance with it shall be
immediately repaid by Xxxx to FBI and all future obligations or agreements of
FBI and Xxxx hereunder shall be null and void. |
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13. |
Non-Admission. The parties’ participation in this Agreement and
Release is not to be construed an admission of any wrongdoing or liability
whatsoever by or on behalf of FBI, its employees or agents or Xxxx. |
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14. |
Governing Law. This Agreement and Release shall be construed and enforced
in accordance with the laws of the State of Wisconsin. |
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15. |
Relationship of Severance Benefits to Xxxx’x Rights Under Other Benefit
Plans. Xxxx agrees that the severance payments and other additional benefits
and other consideration payable to him hereunder shall not be taken into account
for purposes of determining his benefits under any other qualified or
nonqualified plans of FBI. |
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16. |
Violation of this Agreement and Release-Loss of Benefits and Payment of
Costs. If Xxxx breaches or violates this Agreement and Release in any way or
if Xxxx brings an action asking that the Agreement and Release be declared
invalid or unenforceable, Xxxx will tender back to FBI all payments, severance
payments and other additional benefits and other consideration which Xxxx has
received as consideration for this Agreement and Release (including under the
Option Agreements and together with interest thereon at the prime rate), and all
such future payments, severance benefits and other consideration shall
immediately cease and be null and void. If Xxxx’x action is unsuccessful or
if FBI successfully brings an action for his failure to comply with the terms of
this Agreement and Release, Xxxx further agrees that he will pay all costs,
expenses and reasonable attorneys’ fees incurred by FBI in its successful
defense against the action Xxxx brought or in its successful prosecution of the
action FBI brought. However, the previous two sentences shall not be applicable
if Xxxx brings an action challenging the validity of this release under the Age
Discrimination in Employment Act (which Xxxx may do without penalty under this
Agreement and Release). |
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17. |
Entire Agreement. This Agreement and Release constitutes the entire
agreement between the parties. |
IN
WITNESS WHEREOF, the parties have duly executed this Agreement and Release as of the
date first set forth above.
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FRESH BRANDS, INC. |
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By: /s/ Xxxxxx X. Winding, III |
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Xxxxxx X. Winding, III |
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Chairman of the Board |
I HEREBY ACKNOWLEDGE THAT I HAVE READ
THE FOREGOING DOCUMENT, UNDERSTAND ITS CONTENTS, AND AGREE TO ITS TERMS AND CONDITIONS OF
MY OWN FREE WILL. I UNDERSTAND THAT MY AGREEMENT CONTAINS A FINAL GENERAL RELEASE AND THAT
I CAN MAKE NO FURTHER CLAIMS AGAINST FBI, OR AGAINST ANY OF ITS PRESENT OR FORMER
SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES IN CONNECTION WITH
MY EMPLOYMENT BY FBI OR THE TERMINATION OF MY EMPLOYMENT WITH FBI.
/s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
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