TRANSITION, SEPARATION AND COMPLETE RELEASE AGREEMENT
EXHIBIT
10.1
This
Transition, Separation and Complete Release Agreement (this “Agreement”) is
entered into by and between Magnetek, Inc., a Delaware corporation (the
“Company”), and Xxxxxx X. Xxxxxxxx (“Executive”). Executive enters
into this Agreement on behalf of herself, her spouse, heirs, successors,
assigns, executors and representatives of any kind, if any.
WHEREAS,
Executive’s employment with the Company shall terminate on April 23, 2010 (the
“Termination Date”), and the Company shall continue Executive’s current level of
salary and benefits during the period between the date of this Agreement and the
Termination Date (the “Transition Period”), provided that Executive performs the
transition duties as described in this Agreement.
WHEREAS,
in recognition of Executive’s years of loyal service with the Company, and to
provide an incentive for Executive both to assist in the transition process and
to make the other promises contained in this Agreement, the Company will offer
Executive additional benefits as set forth in this Agreement.
WHEREAS,
Executive accepts these additional benefits in return for a full release of any
claims she might have against the Company and related others, and for the other
promises contained herein.
THEREFORE,
in consideration of the mutual promises and agreements made herein and the good
and valuable consideration described herein, the sufficiency of which is hereby
expressly acknowledged, the Company and Executive, intending to be legally
bound, agree as follows:
1. Non-Liability. Neither
the Company’s or Executive’s signing of this Agreement, nor any
actions taken by either the Company or Executive toward compliance with the
terms of this Agreement, constitute an admission by either the Company or
Executive that it or she has acted improperly or unlawfully, or that it or she
has violated any state or federal law.
2. Transition Period
Duties. During the Transition Period, Executive shall, to the
reasonable satisfaction of the Company’s President and Chief Executive Officer,
diligently assist with the transfer of Executive’s responsibilities to other
employees, consultants or third-party service providers, and otherwise advise
and assist the Company as requested. Up to the Termination Date,
Executive shall perform or be available to perform, at the discretion of the
President and Chief Executive Officer or his designee, substantial services that
shall not amount to less than an average of forty (40) hours per week, including
such services as the Company may request in connection with the
transition. Accordingly, Executive shall not maintain other full-time
employment until after the Termination Date. The Company shall
continue Executive’s existing base salary and benefits during the Transition
Period. Upon completion of the Transition Period, to be eligible for
the additional benefits described in this Agreement, Executive must execute and
deliver to the Company a Supplemental General Release Agreement, releasing the
Company and related others from any and all claims, in the form attached to this
Agreement as Exhibit A.
3. Separation
Benefits. Subject to Executive’s strict compliance with the
terms of this Agreement, the Company shall provide the following
benefits:
a. Separation
Pay: The Company shall pay to Executive in a lump sum the gross
amount of Eighty-Seven Thousand and Five Hundred Dollars ($87,500.00), minus
required withholdings, representing twenty-six (26) weeks of Executive’s base
salary. The payment shall be made within ten (10) business days after
the Supplemental General Release Agreement becomes effective.
b. Restricted
Stock Award: Executive’s Restricted Stock Awards granted on January
30, 2008 (in the amount of 9,000 shares) and November 11, 2009 (in the amount of
24,114 shares) of Magnetek, Inc. common stock will vest on April 23, 2010
provided the Executive continues to be employed in accordance with this
Agreement through such date. Executive is advised to consider the
Section 16(b) short-swing trade regulations under the Securities and Exchange
Act of 1934.
c. Stock
Option Exercise Period: Executive’s unvested Stock Option Grants will
vest on April 23, 2010, provided the Executive continues to be employed in
accordance with this Agreement through such date. Executive will have
a period of twelve (12) months from April 23, 2010 to exercise all vested
options. Executive is advised to consider the Section 16(b)
short-swing trade regulations under the Securities and Exchange Act of
1934.
d. Retirement
Savings Plan: The rights and duties of Executive and the
Company with respect to the Magnetek FlexCare Plus Retirement Savings Plan will
be discharged by Executive and the Company or the relevant plan in accordance
with the terms and provisions of the respective plans.
e. Expenses: The
Company shall reimburse Executive for all pre-approved business expenses
incurred by Executive prior to the Termination Date, pursuant to its regular
policies and practices in this regard, provided that Executive submits a final
expense report with customary documentation on or before April 23,
2010.
4. Mutual Complete
Releases.
a. In
consideration for the benefits to be received by Executive pursuant to this
Agreement, Executive hereby releases and forever discharges the Company, its
related and affiliated entities, and its and their past and present owners,
employees, directors, officers, agents, insurers, attorneys, executors, assigns
and other representatives of any kind (collectively referred to in this
Agreement as “Released Parties”), from any and all claims, liabilities or causes
of action of any kind, known or unknown, arising through the date Executive
executes this Agreement, including, but not limited to, any claims, liabilities
or causes of action arising in connection with Executive’s employment or
termination of employment with the Company. Executive hereby releases
and waives any claim or right to further compensation, salary, bonuses,
commissions, benefits, equity, incentive awards, damages, penalties, attorneys’
fees, costs or expenses of any kind from either the Company or any of the other
Released Parties, except as provided in this Agreement.
b. This
release specifically includes, but is not limited to, a release of any and all
claims under the Age Discrimination in Employment Act of 1967; the Older
Workers
Benefit
Protection Act of 1990; the Employee Retirement Income Security Act of 1974; the
Consolidated Omnibus Budget Reconciliation Act of 1985; Title VII of the Civil
Rights Act of 1964; Section 1981 of the Civil Rights Act of 1866; the Civil
Rights Act of 1991; the Americans with Disabilities Act; the Family Medical
Leave Act; any state or federal wage payment laws; any state and local fair
employment law(s), including the Wisconsin Fair Employment Act; and any other
federal, state or local laws or regulations of any kind, whether statutory or
decisional. This release also includes, but is not limited to, a
release of any claims for wrongful termination, any tort, any breach of express
or implied contract, estoppel, defamation, misrepresentation, violation of
public policy or invasion of privacy and any other common law claim of any kind,
but this release does not release or waive any claims that cannot be released or
waived as a matter of law. Executive understands and agrees that the
Company is not using this Agreement to interfere with Executive’s right to file
a charge with the Equal Employment Opportunity Commission (“EEOC”) or to
participate in an EEOC investigation or proceeding for claims arising under the
Age Discrimination in Employment Act or under any other federal law that the
EEOC enforces.
c. The
Company hereby releases and forever discharges Executive from any and all
claims, liabilities or causes of action of any kind, known or unknown, arising
through the date the Company executes this Agreement, including, but not limited
to, any claims, liabilities or causes of action arising in connection with
Executive’s employment or termination of employment with the
Company.
5. Covenant Not to
Xxx. Executive represents that she has not brought, and
covenants and agrees that she will not bring, or join or cause to be filed in
court, any claims, demands, suits or actions, against the Company or any of the
Released Parties arising out of, connected with or related in any way to her
dealings with the Company or any of the Released Parties that occurred prior to
the date of this Agreement, and/or that are released pursuant to this Agreement
or the Supplemental General Release Agreement, including, without limitation,
claims related to her employment or the termination of that
employment. Notwithstanding the foregoing, nothing herein prevents
Executive from enforcing the terms of this Agreement or from filing in good
faith any charge with an appropriate government enforcement agency, provided
that Executive shall refuse to receive and will not obtain any recovery or
anything of economic value in relation to such charge.
6. Confidentiality
Covenant. Executive acknowledges that during the course of her
employment with the Company, she has been entrusted with certain personnel,
business, financial, technical, sales, marketing, and other proprietary
information and materials which are the property of the Company and which
involve confidential information concerning the Company’s business, services,
products, dealings, strategies, plans and employees (“Proprietary
Information”). Proprietary Information includes any information, not
generally known in the relevant trade or industry, which was obtained from the
Company or which was learned, discovered, developed, conceived, originated, or
prepared by Executive in the course of her employment. Such
Proprietary Information includes, but is not limited to, software, technical and
business information relating to the Company’s inventions or products, research
and development, production processes, manufacturing and engineering processes,
machines and equipment, finances, customers, marketing, pricing, suppliers,
production, future business plans, personnel information, and any other
information which is identified as confidential by the Company.
Executive will maintain in strictest
confidence, and will not communicate or disclose to any third party, or use for
her own benefit, without the prior express written consent of the
Company,
any Proprietary Information, except as required by law, unless and until such
information becomes generally available to the public through no fault of
Executive. In the event the disclosure of Proprietary Information is
required by law, Executive will give immediate written notice to the Company so
as to enable it to seek an appropriate protective order. These
obligations with respect to Proprietary Information extend to information
belonging to customers and suppliers of the Company who may have disclosed such
information to Executive.
To the extent that such Proprietary
Information constitutes a “trade secret” as defined by applicable law, this
confidentiality obligation shall remain for so long as the particular
information remains a “trade secret.” However, to the extent that any
particular Proprietary Information does not constitute a “trade secret” as
defined by applicable law, this confidentiality obligation shall remain for a
period of two (2) years following the Termination Date or the termination of
Executive’s employment, if earlier, and shall only prohibit disclosures that are
likely to or do in fact cause competitive harm to the Company in a country in
which the Company conducts business or is actively pursuing business as of the
time of the termination of Executive’s employment.
7. Non-solicitation. For
a period ending two (2) years after the Termination Date or termination of
employment if earlier, Executive shall not, in any capacity whatsoever, directly
or indirectly, solicit any persons who either are, or within the ninety (90)
days prior to the solicitation were, employees of the Company or any of its
subsidiaries, for purposes of providing services to or employment with any
business. This non-solicitation covenant shall only apply to those
individuals with whom Executive interacted during the last two (2) years of
employment with the Company, and any others about whom Executive learned
Proprietary Information.
8. Return of Company Property
and Information. Executive shall return to the Company, no
later than the Termination Date or the date of termination of employment if
earlier, all of the following:
a. The
originals and all copies of any business records or documents of any kind
belonging to, or related to, the Company, regardless of the sources from which
such records were obtained, together with all notes and summaries relating
thereto. This obligation extends to paper and electronic versions of
such records and documents.
b. All
keys, security cards and other means of access to the Company’s facilities,
offices, files and other property.
c. All
computer equipment, hardware and software belonging to the Company, including
any and all program and/or data disks, manuals and all hard copies of the
Company’s information and data, and shall disclose to the Company any and all
passwords utilized by Executive with regard to the Company’s computer, hardware
and software so that the Company has immediate, full and complete access to all
of the Company’s data and information stored, used and maintained by Executive,
or to which Executive had access.
9. Full
Disclosure. Executive confirms that she has given written
notification to the President and Chief Executive Officer of every
circumstance of which Executive is aware that may constitute a violation of any
law, regulation, licensing requirement, contract requirement, Company policy or
ethical practice of any kind by the Company, any of its affiliated
organizations, or any of its or their directors, officers, employees or agents,
including Executive.
10. Acknowledgment of
Intellectual Property Rights. Executive agrees that all ideas,
inventions, trade secrets, know-how, documents and data of any kind developed in
connection with or pursuant to her employment with the Company are and shall
remain the exclusive property of the Company. Therefore, to the
extent not already assigned, Executive hereby assigns all such intellectual
property rights to the Company and agrees to provide any reasonable assistance
required by the Company to perfect or enforce such rights.
11. Non-disparagement. Executive
shall not make any oral or written comments that disparage, discredit or
otherwise refer to the Company or its officers, directors, employees, products,
services or business practices in a negative or otherwise detrimental
manner. The Company shall not make any oral or written comments that
disparage, discredit or otherwise refer to the Executive in a negative or
otherwise detrimental manner.
12. Consideration and
Revocation. Executive acknowledges that she has carefully read
and fully understands all of the provisions of this
Agreement. Executive further acknowledges that the benefits provided
for in this Agreement are greater than those to which she otherwise would be
entitled by any contract, employment policy, or otherwise. Executive
further acknowledges that she is entering into this Agreement voluntarily, that
she has been provided more than twenty-one (21) days to consider the provisions
set forth in this Agreement, or has voluntarily waived the twenty-one (21) day
consideration period upon advice of counsel. Executive understands
that she has a right to obtain advice of legal counsel of her choosing regarding
this Agreement prior to signing it and is encouraged by the Company to do
so. For a period of seven (7) days following her signing of this
Agreement, Executive may revoke it, and this Agreement will not become
enforceable or effective until the seven-day revocation period has
expired. To revoke, Executive must send a written notice of
revocation that is received by the Company’s Director of Corporate Human
Relations within the seven-day revocation period.
13. No Other
Inducements. To induce the Company to provide her the
consideration recited in this Agreement, Executive voluntarily executes this
Agreement, and acknowledges that the only consideration for executing this
Agreement is that recited herein, and that no other promise, inducement, threat,
agreement or understanding of any kind has been made by anyone to cause her to
execute this Agreement.
14. Consequences of
Breach. In the event that Executive breaches any of the
promises contained in this Agreement, the Company shall be entitled to
immediately terminate, and be relieved of providing, all remaining
benefits. Any such termination, however, shall not relieve Executive
of any of the obligations contained in this Agreement, all of which shall remain
in full force and effect, and the Company shall be entitled to pursue any and
all remedies available to it as a result of such breach, whether at law or in
equity. Additionally, if any court of competent jurisdiction
determines that either party breached this Agreement, the breaching party shall
be obligated to pay to the other party, in addition to any damages and other
relief awarded, an amount equal to the reasonable attorney’s fees and costs
incurred to enforce the Agreement.
15. Entire
Agreement. This Agreement sets forth the entire agreement
between the Company and Executive and supersedes all prior oral and written
agreements between the parties, except as provided herein, including, without
limitation, the Retention Agreement between the Company and Executive and any
other previous letters or agreements regarding compensation, benefits or
termination of Executive’s employment. This Agreement cannot be
amended or
modified,
except in writing signed by Executive and a representative of the
Company authorized to sign on behalf of the Company in this
matter.
16. Choice of Law and
Severability. This Agreement will be interpreted and construed
and all rights and remedies determined under the present and future laws of the
State of Wisconsin without reference to the conflict of laws provisions of the
State of Wisconsin. If any portion of this Agreement is found to be
unenforceable, all other portions that can be separated from it, or
appropriately limited in scope, shall remain fully valid and enforceable to the
full extent permitted by law.
17. Signatures. This
Agreement, or any amendment hereto, may be signed in any number of counterparts,
including counterparts signed and delivered by fax or electronic transmission,
each of which shall be and deemed an original, but all of which taken together
shall constitute one agreement (or amendment as the case may be).
18. Other
Agreement. The Executive acknowledges and agrees that the
Employee Proprietary Information and Invention Agreement (Current Employee)
dated August 6, 2008 remains in full force and effect, and she remains subject
to the terms of that Agreement notwithstanding the execution and delivery of
this agreement.
EXECUTIVE
FULLY UNDERSTANDS THE MEANING AND INTENT OF THIS AGREEMENT AND ITS FINAL AND
BINDING EFFECT ON HER.
IN WITNESS WHEREOF, Executive and the
Company, by its duly authorized representative agent, have each placed their
signatures on the dates indicated below.
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/s/
Xxxxxx X. Xxxxxxxx
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Date:
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March
2, 2010
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Xxxxxx X.
Xxxxxxxx
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/s/
Xxxxx X. XxXxxxxxx
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Date:
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March
2, 2010
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Xxxxx
X. XxXxxxxxx
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President & Chief
Executive Officer
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