EXHIBIT 10.34
SEVERANCE AGREEMENT AND RELEASE OF CLAIMS
This Severance Agreement and Release of Claims ("Release") is entered
into between Xxxxxxx Enterprises, Inc., its officers, agents, directors,
employees, successors, subsidiaries, insurers, parents and/or affiliated
companies, and assigns (the "Company") and XXXXX X. XXXXXXXX (the "Employee").
WHEREAS, the Employee and the Company had entered into an Employment
and Severance Agreement dated March 5, 2001 ("Agreement"), and it is the parties
intent that all the terms of such Agreement shall be superceded on the Effective
Date of this Release and the terms of this Release shall govern the rights and
obligations of the parties after the Employee's termination of employment except
as otherwise set forth in this Release; and
WHEREAS, Employee will be retiring from the position of Executive Vice
President on December 5, 2004 ("Retirement Date") and wishes to be placed on a
paid leave of absence ("LOA") until his Retirement Date; and
WHEREAS, Employee has discontinued his current responsibilities as of
October 5 in order to permit him to begin his LOA; and
WHEREAS, the change in Employee's responsibilities as of October 5
constitutes a "Termination of Employment for Specific Reason" under paragraph
1(m) of the March 1, 2001 Agreement triggering certain rights and benefits in
favor of Employee; and
WHEREAS, Employee and Company desire to enter into this Release to
modify the terms of the March 5, 2001 Agreement to facilitate a transition.
1. TERMINATION OF EMPLOYMENT/LOA/RETIREMENT DATE. Beginning October 5,
2002, Employee will relinquish his existing duties as Executive Vice
President - Procurement, Facilities Management and Joint Venture of
Japan and Chile, and his officer status and begin his LOA. Employee
will maintain his present office at the Company's headquarters until
December 31, 2002 at which time he will no longer have an office at the
Headquarters location or at Company expense. Employee will remain in
his LOA period until his Retirement Date. Provided that Employee has
complied and continues to comply with the terms of this Release, from
the date of this Release until the Retirement Date, in other words
during the LOA period, Employee will continue to receive his present
salary of $348,989 and remain eligible to receive all benefits under
the Company's plans applicable to other executives. In the event of
Employee's death during the LOA, Employee's salary will continue to be
paid to his spouse under the term so this Release and benefits will
continue consistent with the terms of the plan documents. Employee will
continue to be covered under the Executive Medical Plan (i.e., the Plan
that reimburses up to $5,000 annually for
medical and dental expenses). Employee will also remain eligible for an
incentive compensation payment ("bonus") based on the Company's
performance under applicable plans and associated goals subject to the
discretion of the Chairman and the Company's Board of Directors to the
same extent as other senior officers reporting to the Chairman. During
the LOA period and after his Retirement Date, Employee will be eligible
to receive the benefits described in paragraphs 2 and 3 below.
a. Long-Term Incentive Award; Equity-Based Compensation.
i. Employee's interest in any outstanding and
unvested shares of Restricted Stock shall vest on
August 18, 2004. Any unvested stock options shall be
fully vested on the Retirement Date notwithstanding
any provision in a stock option agreement to the
contrary. No further awards, restricted stock, stock
options or other equities will be granted to Employee
beginning on the date of this Release.
ii. From the Retirement Date until December 5, 2006 (the
"Benefit Period"), Employee will be eligible to
participate in those Company health and dental plans
in existence and applying to him on December 5, 2004.
Employee understands that during the Benefit Period
plans existing on December 5, 2004 may be amended,
changed, terminated or added to by the Company and
its Board of Directors. Following the Benefit Period,
Employee shall be entitled to receive continuation
coverage under Part Six of Title 1 of ERISA ("COBRA
Benefits") treating the end of the Benefit Period as
a termination of his employment.
iii. The Company shall fully vest and maintain in
full force, at its own expense, the life insurance in
effect under the Company's Split Dollar Life
Insurance Plan as of Employee's Retirement Date or,
if required by law or changes in Company policies,
the Company may provide at its expense insurance of
similar value to Employee which must be in place and
provided to Employee no later than March 1, 2003.
b. Relocation Benefit. If, within two (2) years after
Employee's Retirement Date, he gives the Company written
notice that he desires to relocate his primary residence
in Fort Xxxxx, Arkansas to a point within the continental
United States, the Company will reimburse the Employee for
any reasonable relocation expenses (in accordance with the
Company's general relocation policy for executives as then
in effect) in connection with such relocation.
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c. Executive SavingsPlus Plan. For 2002, the Company will
make the contribution to the SavingsPlus Plan on behalf of
the Employee that it would have made if the Employee had
not had a Termination of Employment for Specific Reason,
but in no event less than the percentage contribution it
made for the Employee in the immediately preceding year
(and increased to take account of the additional year of
Service), in each case taking account of the Employee's
annualized rate of "Compensation" (as defined in the
Executive SavingsPlus Plan) and the percentage of such
Compensation that the Employee is contributing to the
Executive SavingsPlus Plan) and the percentage of such
Compensation that the Executive is contributing to the
Executive SavingsPlus Plan, as of the date of Termination
of Employment, and the Company's matching contribution
rate for such year (or, if great, the preceding year). The
portion of the Company's matching contribution which is
based on the preceding year's contribution percentage
shall be contributed to the Executive SavingsPlus Plan on
behalf of the Employee immediately upon the Employee's
Termination of Employment any additional contribution
required shall be paid as soon as the amount is
determined.
d. Deferred Compensation Plan (the "Frozen DCP"). Existing
balances will be paid out in the manner Employee elected
and in accordance with the current plan.
e. Repayment of Loan; Supplemental Executive Retirement
Plan. Employee agrees to repay in full the outstanding
amount of his loan from Regions Bank in Fort Xxxxx,
Arkansas (approximately $323,000 as of the date of this
Release) prior to December 4, 2004. Provided that Employee
has provided evidence that this loan has been repaid prior
to December 4, 2004, Employee shall be deemed fully vested
in the Company's Supplemental Executive Retirement Plan
("SERP") upon his attainment of age 60 on December 4,
2004. For purposes of determining Employee's benefits
under the SERP, the Company will use the estimated amount
of three hundred forty eight thousand nine hundred and
eighty nine dollars ($348,989) as Employee's final average
compensation. Employee shall receive retirement benefits
under the SERP in the manner he elects and in accordance
with the current plan.
f. Extent of Benefit Eligibility. Employee will cease to
be eligible to participate under any stock option, bonus,
incentive compensation, commission, medical, dental, life
insurance, retirement, and any other compensation or
benefit plans of the Company or any affiliate following
the Termination Date except to the extent described above
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and except where the governing documents of those plans
provide otherwise. Any payment from these plans will be in
accordance with the election(s) previously made by
Employee.
In the event of any material breach by the Employee of the terms of
this Release, the Employee's right to receive any further payments or benefits
under the Release shall immediately end, and the Employee will forfeit and be
required to return to the Company any payments or benefits received. Any such
breach shall not relieve the Employee of any obligations under the Release, and
the cessation of any benefits on account of a breach shall not limit the
Company's right to any other relief it may have as a matter of law or equity.
Notwithstanding the foregoing, any challenge as to the validity of the ADEA
release contained in subsection 4(d) of this Release shall not be considered a
material breach, to the extent such treatment is mandated by applicable law.
2. BENEFITS DURING LOA. Provided that the Employee has complied and
continues to comply with the terms of this Release, while the Employee
is on LOA, he will remain eligible for the health care, life and
disability insurance benefits and other benefit programs applicable to
other executives. Employee understands that during the LOA, the benefit
plans in existence may be amended, changed, terminated or added to by
the Company and its Board of Directors.
3. BENEFITS UPON AND AFTER RETIREMENT. Provided that the Employee has
complied and continues to comply with the terms of this Release, the
Company promises that he will receive the benefits set forth in this
Section 3 on his Retirement Date subject to the terms of this Release
and in lieu of all other termination benefits. Employee specifically
waives any other rights to any and all benefits, except as otherwise
provided herein, in his Employment and Severance Agreement dated March
5, 2001 and his Employment dated August 22, 1997.
4. CONSIDERATION OF RELEASE. Employee acknowledges that, before signing
this Release, he was given at least 21 days in which to consider this
Release. Employee waives any right he might have to additional time
within which to consider this Release. Employee further acknowledges
that: (1) he took advantage of the time he was given to consider this
Release before signing it; (2) he carefully read this Release; (3) he
fully understand it; (4) he is entering into it voluntarily; (5) he is
receiving valuable consideration in exchange for his execution of this
Release that he would not otherwise be entitled to receive; and (6) the
Company, in writing, encouraged him to discuss this Release with his
attorney (at his own expense) before signing it, and that he did so to
the extent he deemed appropriate.
5. GENERAL RELEASE
a. In General: Except for obligations established in this
Release, Employee irrevocably and unconditionally releases
all the Claims
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described in this Section 4 that he may now have against
the Released Parties listed in Section 5(b). Company
irrevocably and unconditionally releases any and all
claims it may have or could assert against Employee.
b. Released Parties: The Released Parties are the Company,
all current and former parents, subsidiaries, related
companies, partnerships, or joint ventures, and, with
respect to each of them, their predecessors and
successors; and, with respect to each such entity, all of
its past, present, and future employees, officers,
directors, stockholders, owners, representatives, assigns,
attorneys, agents, insurers, employee benefit programs
(and the trustees, administrators, fiduciaries, and
insurers of such programs), and any other persons acting
by, through, under or in concert with any of the persons
or entities listed in this subsection, and their
successors.
c. Claims Released: The Claims Employee is releasing under
this Section 4 and the claims Company is releasing against
Employee include all known and unknown claims, promises,
causes of action, or similar rights of any type that
Employee presently may have ("Claims") with respect to any
Released Party listed in Section 5(b). Employee
understands that the Claims Employee is releasing might
arise under many different foreign, domestic, national,
state, or local laws (including statutes, regulations,
other administrative guidance, and common law doctrines),
as set forth in this Section 4.
d. Employee acknowledges that a portion of the amounts or
benefits under this Release is being paid to induce him to
release any claims that he may have under the Age
Discrimination in Employment Act ("ADEA"). Employee
acknowledges that he has adequate and legally sufficient
time to review and seek legal guidance concerning this
Release. Specifically, Employee acknowledges that this
Release was provided to him on October 16, 2002, and that
he has until November 6, 2002 to consider this Release. If
Employee chooses to execute this Release prior to November
6, 2002, it is solely his choice. Employee may revoke the
waiver of the ADEA claims in this Section of this Release
(which Employee acknowledges constitutes an entirely
separate release from the balance of this Release) within
seven (7) days after signing of this Release, in which
case Employee will not be paid that portion of the amounts
or benefits that are being paid to Employee for his
release of ADEA claims. Employee agrees that any
revocation will be in writing and accompanied by all sums
received pursuant to this Release and received by the
Executive Vice President, General Counsel by the end of
the seven (7) day period. Employee has
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been advised to consult with an attorney or advisor
concerning this Release. Employee understands the rights
that have been waived by this Release, including rights
under the Age Discrimination in Employment Act of 1967, 29
U.S.C. Section 62 1, et seq., as amended. Employee further
represents and warrants that he freely negotiated the
terms of this Release, and enters into it and executes it
voluntarily. He understands that this is a voluntary
waiver of any claims under the laws and orders stated
below, that relate in any way to his employment with,
complaints about, compensation due, or separation from the
Company.
Anti-discrimination statutes, such as the Age
Discrimination in Employment Act and Executive Order
11141, which prohibit age discrimination in employment;
Title VII of the Civil Rights Act of 1964, Sections 1981
and 1983 of the Civil Rights Act of 1866, and Executive
Order 11246, which prohibit discrimination 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 and
Sections 503 and 504 of the Rehabilitation Act of 1973,
which prohibit discrimination based on disability; and any
other federal, state, or local laws prohibiting employment
discrimination, such as the State of Arkansas.
Federal employment statutes, such as the WARN Act, which
requires that advance notice be given of certain work
force reductions; the Employee Retirement Income Security
Act of 1974, which, among other things, protects employee
benefits; the Fair Labor Standards Act of 1938, which
regulates wage and hour matters; the Family and Medical
Leave Act of 1993, which requires employers to provide
leaves of absence under certain circumstances; and any
other federal laws relating to employment, such as
veterans' reemployment rights laws.
Other laws, such as any federal, state, or local laws
providing workers' compensation benefits, mandating leaves
of absence, restricting an employer's right to terminate
employees, or otherwise regulating employment; any
federal, state, or local law enforcing express or implied
employment contracts or requiring an employer to deal with
employees fairly or in good faith; any other federal,
state, or local laws providing recourse for alleged
wrongful discharge, tort, physical or personal injury,
emotional distress, fraud, negligent misrepresentation,
defamation, and similar or related claims, and any other
law, such as the State of Arkansas.
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Examples of released Claims include, but are not limited
to the following (except to the extent explicitly
preserved by Section 1 or 2(a) of this Release): (i)
Claims that in any way relate to Employee's employment
with the Company, or the termination of that employment,
such as Claims for compensation, bonuses, commissions,
lost wages, or unused accrued vacation or sick pay except
as otherwise provided in paragraph 2(a); (ii) Claims that
in any way relate to the design or administration of any
employee benefit program; (iii) Claims that Employee has
irrevocable or vested rights to severance or similar
benefits or to post-employment health or group insurance
benefits; (iv) any Claims to attorneys' fees or other
indemnities (such as under the Civil Rights Attorneys'
Fees Act), with respect to Claims Employee is releasing,
or any Claims that Employee has under his Employment
Contract.
e. Employee represents and covenants that Employee, his
heirs, representatives, executors, administrators,
successors, and assigns have not and will not file any
claims, charges, or complaints against the Company, with
any Federal, State, or local agency or court arising out
of his employment and/or separation from the Company.
Employee further represents that if any such agency or
court ever assumes jurisdiction of or otherwise pursues
any such lawsuit, claim, charge, or complaint and/or
purports to bring any legal proceeding, in whole or in
part, on behalf of Employee, or Employee's heirs,
representatives, executors, administrators, successors,
and/or assigns, behalf against the Company, Employee, or
Employee's heirs, representatives, executors,
administrators, successors, and/or assigns, promptly, in
writing, will request the agency or court to withdraw from
and/or dismiss the lawsuit, claim, charge or complaint
with prejudice and will take all available legal action to
be removed from any such legal proceeding brought, in
whole or in part, on behalf of Employee. This subsection
shall not apply to challenges to the ADEA release in
subsection 4(d) of this Release, to the extent, if any,
prohibited by applicable law.
f. Employee understands and agrees that his employment
with the Company will terminate on his Retirement Date,
and he will not apply for or otherwise seek re-employment
with the Company, or its successors, at any time. The
Company shall have the absolute right, without incurring
liability of any kind, to refuse Employee's consideration
for employment and Employee agrees that he shall not
authorize any person or agency to pursue any claim for
such refusal of employment. The Employee acknowledges that
he has received no promise or assurance that his
employment will resume at any point in
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the future or that he will ever be rehired by the Company
or its affiliates, parent, or subsidiaries.
g. As further consideration for the covenants set forth
herein, Employee hereby agrees to cooperate fully with the
Company's Legal Department and/or any lawyer, law firm, or
consultant that the Company designates with respect to any
litigation, deposition, hearing, arbitration, or other
proceeding (including, but not limited to, support of the
Company's position in defending any employment-related
lawsuits or claims concerning which Employee has knowledge
or audits, investigations, lawsuits, complaints or
proceedings by government entities of state or federal law
compliance) where the Company's legal or financial
interests are at issue. Employee further covenants that he
will contact the Company's Legal Department in the event
that there is any subpoena, notice or other instruction
directing the Employee to appear in any legal proceeding
involving the Company.
h. To the maximum extent permitted by law, the Company
shall indemnify Employee against all expenses (including
reasonable attorneys' fees), judgments, fines and amounts
paid in settlement actually incurred by himself in
connection with any claim, action, suit or proceeding,
whether civil, criminal, administrative or investigative,
to which Employee becomes a party or in which Employee
becomes otherwise involved by reason of the fact that
Employee was a director, officer, employee or agent of the
Company or of any subsidiary or affiliate of the Company.
In addition, the Company shall continue to include
Employee among those individuals covered by the Company's
director and officer liability insurance, as long as such
insurance is available and the Company elects to maintain
such insurance; provided, however, that the unavailability
of such insurance coverage or the Company's discontinuance
of such insurance shall in no way limit, reduce or
otherwise affect Employee's rights to indemnification by
the Company under the first sentence of this subsection.
This subsection shall remain in full force and effect
indefinitely with respect to any claims based upon events
occurring on or prior to December 5, 2004.
i. Employee also promises neither to contest the validity
of this Release, nor xxx the Company concerning any claim
he may have relating to his employment with the Company or
the termination of that employment. This subsection shall
not apply to challenges to the ADEA release in subsection
5(d) of this Release, to the extent, if any, prohibited by
applicable law.
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6. TRANSFER OF DUTIES. During the LOA period and Benefit Period, the
Employee will act at all times with complete loyalty and good faith in
promoting the best interests of the Company. To this end, the Employee
will: (a) fully inform the Company and the Employee's successor (if
any) of all material activities performed by the Employee and of
progress on assigned duties; and (b) transfer or otherwise make
available to the Company and the Employee's successor (if any), to the
extent reasonably possible, the Employee's knowledge and experience
regarding his activities on behalf of the Company. Employee will also
promote the goodwill, reputation, and ongoing business of the Company,
and take all steps necessary to maintain, and in no way act to hinder,
the foregoing interests.
7. COMPANY PROPERTY: By December 31, 2002, Employee will return to the
Company all files, memoranda, documents, records, copies of the
foregoing, credit cards, keys, and any other property of the Company or
its affiliates in his possession, provided, however, that Employee and
his Administrative Assistant may retain their existing office furniture
and equipment. Company agrees to pay the reasonable and necessary
expenses of moving this furniture and equipment to its first
non-Company location.
8. OWNERSHIP OF CLAIMS: Employee has not assigned or transferred any
Claim he is purporting to release, nor has he attempted to do so.
9. OTHER REPRESENTATIONS: In addition to Employee's other
representations in this Release, Employee has made the following
representations to the Company, on which he acknowledges it also has
relied in entering into this Release with Employee: (a) Employee has
not suffered any discrimination on account of his age, sex, race,
national origin, marital status, sexual orientation, or any other
protected status, and none of these ever has been an adverse factor
used against Employee by any Released Party; (b) Employee has not
suffered any job-related wrongs or injuries for which he might still be
entitled to compensation or relief, such as an injury for which
Employee might receive a workers' compensation award in the future; (c)
Employee has no knowledge of any wrongdoing by the Company that would
subject the Company to any harm, civil or criminal; and (d) Employee
has provided no information, oral or in writing, to anyone -
individual, corporation or any other organization, private, public or
governmental - that involves any wrongdoing, civil or criminal, by the
Company.
10. FALSE CLAIMS REPRESENTATIONS AND PROMISES: Employee has disclosed
to the Company any information he has concerning any conduct involving
the Company or any affiliate that he has any reason to believe may be
unlawful or that involves any false claims to the United States.
Employee promises to cooperate fully in any investigation the Company
or any affiliate undertakes into matters occurring during Employee's
employment with the
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Company or any affiliate. Employee understands that nothing in this
Release prevents him from cooperating with any U.S. government
investigation. In addition, to the fullest extent permitted by law,
Employee hereby irrevocably assigns to the U.S. government any right he
might have to any proceeds or awards in connection with any false
claims proceedings against the Company or any affiliate.
11. COOPERATION REQUIRED: Employee agrees that, as requested by the
Company, he will fully cooperate with the Company or any affiliate in
effecting a smooth transition of his responsibilities to others.
11. NON-SOLICITATION. Employee agrees to the following prohibitions on
solicitation of the Company's employees, customers, and business
interests, to wit:
(a) Employee shall not at any time during the LOA period or
the Benefit Period (the "Non-Solicitation Period"), without
the prior written consent of the Company, on behalf of himself
or any other person or entity, solicit for employment or
employ any of the current officers or employees of the
Company; provided, however, that nothing contained herein
shall prohibit the Employee from hiring employees of the
Company when such employment results from general
solicitations for employment.
(b) Employee shall not at any time during the period of his
employment with the Company, or during the Non-Solicitation
Period, without the prior written consent of the Company,
solicit for his own benefit, or for the benefit of any company
or persons by whom he is employed, or for whom he may be
acting, any of the current customers of the Company, nor shall
he divulge to any other person any information or fact
relating to the management, business (including prospective
business), finances, or customers of the Company or the terms
of any contracts of the Company which is not freely available
to the public.
(c) Employee covenants and agrees that a material breach of
the foregoing subsections would immediately and irreparably
harm the Company and that a remedy at law would be inadequate
to compensate the Company for its losses by reason of such
breach and therefore that the Company shall, in addition to
any rights and remedies available under this Release, at law
or otherwise, be entitled to an injunction to be issued by any
court of competent jurisdiction enjoining and restraining the
Employee from committing any violation of the foregoing
subsections.
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12. NON-DISCLOSURE, RETURN OF PROPRIETARY INFORMATION, AND INVENTIONS
AND PATENTS. The Company and the Employee agree that during his employment with
the Company, the Employee has received and become acquainted with confidential,
proprietary, and trade secret information of the Company including, but not
limited to, information regarding Company business programs, plans, and
strategies; finances; customers and prospective customers; suppliers and
vendors; marketing plans and results; personnel matters regarding Company
employees, officers, directors, and owners; manners of operation and services
provided; negotiating positions and strategies; legal arguments, theories,
claims, and defenses; pending, threatened, or potential legal actions, claims,
investigations, and audits; or information which could lead to the same; and
similar sensitive information regarding the operation and business of the
Company. The Employee acknowledges that such information has been developed or
acquired by the Company through the expenditure of substantial time, effort, and
money, that such information provides the Company with strategic and business
advantages over others who do not know or use such information, and that the
Company has implemented specific policies and practices to keep such information
secret. Accordingly, the Employee agrees to abide by the prohibitions on use and
disclosure of such information set forth hereinafter:
(a) Proprietary Information. Employee shall not during the
term of employment or at any time thereafter (irrespective of
the circumstances under which Employee's employment
terminates), directly or indirectly use for his own purpose or
for the benefit of any person or entity other than Company,
nor otherwise disclose, any proprietary information, as
defined below, to any individual or entity, unless such
disclosure has been authorized in writing by the Company or is
otherwise required by law. For purposes of this Agreement, the
term "proprietary information" shall include, but is not
limited to: (a) the name or address of any client or affiliate
of Company or any information concerning the transactions or
relations of any client or affiliate of Company with Company
or any of its shareholders; (b) any information concerning any
product, service, methodology, analysis, presentation,
technology or procedure employed by Company but not generally
known to its clients or competitors, or under development by
or being tested by Company but not at the time offered
generally to clients; (c) any information relating to
Company's computer software, computer systems, pricing or
marketing methods, capital structure, operating results,
borrowing arrangements or business plans; (d) any information
which is generally regarded as confidential or proprietary in
any line of business engaged in by Company; (e) any
information contained in any of Company's written or oral
policies and procedures or employee manuals; (f) any
information belonging to clients or affiliates of Company
which Company has
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agreed to hold in confidence; (g) any inventions, innovations
or improvements covered by subsection (c) below; (h) any other
information which Company has reasonably determined to be
confidential or proprietary; and (i) all written, graphic,
electronic and other material relating to any of the
foregoing. Information that is not novel or copyrighted or
patented may nonetheless be proprietary information.
Proprietary information, however, shall not include any
information that is or becomes generally known to the
industries in which Company competes through sources
independent of Company or Employee or through authorized
publication by Company to persons other than Company's
employees.
(b) Confidentiality and Surrender of Records. Employee shall
not during the term of employment or at any time thereafter
(irrespective of the circumstances under which Employee's
employment terminates), except as required by law, directly or
indirectly give or disclose any "confidential records" (as
hereinafter defined) to, or permit any inspection or copying
of confidential records by, any individual or entity other
than in the ordinary course and scope of such individual's or
entity's employment or retention by Company, nor shall he use
or retain any of the same following termination of his
employment. Employee shall promptly return to Company all
"confidential records" upon the termination of Employee's
employment with Company. For purposes hereof, "confidential
records" means all correspondence, memoranda, files, analyses,
studies, reports, notes, documents, manuals, books, lists,
financial, operating or marketing records, computer software,
magnetic tape, or electronic or other media or equipment of
any kind which may be in Employee's possession or under his
control or accessible to him which contain any proprietary
information as defined in subsection (a) above. All
confidential records shall be and remain the sole property of
Company during the term of employment and thereafter.
(c) Inventions, Patents, and Copyrights. All inventions,
innovations or improvements in Company's method of conducting
its business (including policies, procedures, products,
improvements, software, ideas and discoveries, whether or not
patentable or copyrightable) conceived or made by Employee,
either alone or jointly with others, during the term of
employment belong to Company. Employee will promptly disclose
in writing such inventions, innovations or improvements to
Company and perform all actions
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reasonably requested by Company to establish and confirm such
ownership by Company, including, but not limited to,
cooperating with and assisting Company in obtaining patents
and copyrights for Company in the United States and in foreign
countries. Any patent or copyright application filed by
Employee within a year after termination of his employment
hereunder shall be presumed to relate to an invention or work
of authorship which was made during the term of employment
unless Employee can provide conclusive evidence to the
contrary.
13. PUBLIC STATEMENTS. Employee also agrees that he will make no
disparaging remarks to any third parties concerning the Company, its employees,
agents, representatives, subsidiaries, parents, affiliates, and shareholders nor
will Company make any disparaging remarks about Employee. Employee further
agrees that he will not disparage the Company's business capabilities, products,
plans, or management to any customer, potential customer, vendor, supplier,
contractor or subcontractor of the Company so as to affect adversely the good
will or business of the Company.
14. CONSEQUENCES OF VIOLATING PROMISES:
(a) GENERAL CONSEQUENCES: In addition to any other remedies or
relief that may be available, Employee agrees to pay the
reasonable attorneys' fees as a result of his breaching a
promise he made in this Release (such as by suing a Released
Party over a released Claim) or if any representation he made
in this Release was false when made. Employee further agrees
that the Company would be irreparably harmed by any actual or
threatened violation of Sections 11 and 12 that involves
Release-related disclosures or disclosure or use of
confidential information or trade secrets or solicitation of
employees, customers, or suppliers, and that the Company will
be entitled to an injunction prohibiting Employee from
committing any such violation.
(b) CHALLENGES TO VALIDITY: Should Employee attempt to
challenge the enforceability of this Release, Employee agrees
first: (1) to deliver a certified check to the Company for all
amounts he has received because he signed this Release, plus
10 percent interest per annum; (2) to direct in writing that
all future benefits or payments Employee is to receive because
he signed this Release be suspended; and (3) to invite the
Company to cancel this Release. If the Company accepts
Employee's offer, this Release will be canceled. If it rejects
Employee's offer, the Company will notify Employee and deposit
the amount Employee repaid, plus all suspended future benefits
and payments, in an interest-bearing
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account pending a determination of the enforceability of this
Release. If the Release is determined to be enforceable, the
Company is to pay Employee the amount in the account, less any
amounts Employee owes the Company. If the Release is
determined to be unenforceable, the amount credited to the
account shall be paid to the entities that paid the
consideration for this Release in proportion to their
payments, and the suspension of future benefits or payments
shall become permanent.
(c) ADEA CLAIMS: This section shall not apply to a challenge
to the ADEA release in subsection 4(b) of this Release to the
extent, if any, prohibited by applicable law.
15. NO ADMISSION OF LIABILITY. This Release shall not in any way be construed as
an admission by the Company that it has acted wrongfully with respect to
Employee or any other person, entity or agency, or that Employee has any rights
whatsoever against the Company. The Company further specifically disclaims and
denies any liability to or wrongful acts against Employee or any other person,
entity or agency, on the part of itself, its employees and its agents.
16. SUCCESSORS AND ASSIGNS. This Release shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, successors, legal
representatives, and assigns. However, neither this Release nor any right or
interest hereunder shall be assignable by Employee, his beneficiaries, or legal
representatives, except as provided by law or pursuant to referenced benefit
plan documents.
17. SEVERABILITY AND REFORMATION. The provisions of this Release are severable.
If any provision of this Release shall be determined to be invalid, illegal, or
unenforceable, in whole or in part, neither the validity of the remaining parts
of such provision nor the validity of any other provision of this Release shall
in any way be affected thereby. In lieu of such invalid, illegal, or
unenforceable provision, there shall be added automatically as part of this
Release a provision as similar in terms to such invalid, illegal, or
unenforceable provision as may be possible and be valid, legal, and enforceable.
Each party also agrees that, without receiving further consideration, it will
sign and deliver such documents and do anything else necessary in the future to
make the provisions of this Release effective.
18. TAXES. Employee understands that he will be responsible for paying all taxes
that may become due on any of the severance benefits provided herein. If he
fails to pay these payments, or any taxing authority alleges that he has failed
to do so or that the Company is responsible for the payment of these taxes, for
any reason, Employee agrees to be fully responsible for any judgments or orders,
fines and penalties, and that he will indemnify the Company including, but not
limited
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to, the satisfaction of judgments, orders, fines or penalties in the payment of
the Company's defense by counsel of its choice in such proceedings. The
taxability of the amounts contained herein shall not affect the validity of this
Release.
19. GOVERNING LAW. This Release shall be governed by the law of the State of
Arkansas.
20. ARBITRATION OF DISPUTES:
(a) In the event the Company believes that Employee has
breached this Release in any way, prior to seeking any remedy,
including arbitration, the Company's General Counsel will
first contact Employee and inform him of the claimed breach.
Employee will then have seven (7) days within which to address
the Company's claim before it may take any action under this
Release.
(b) ARBITRABLE DISPUTES: The Company and Employee agree to
resolve any claims they may have with each other (except, if
either Employee or the Company so elects, any dispute for
which injunctive relief is a principal remedy) through final
and binding arbitration in accordance with this section.
Employee also agrees to resolve in accordance with this
section any claim between him and any other Released Party who
offers or agrees to arbitrate the claim in this manner. This
arbitration requirement applies to, among other things,
disputes about the validity, interpretation, or effect of this
Release or alleged violations of it, claims of discrimination
under federal or state law, or other statutory violation
claims.
(c) THE ARBITRATION: Except as otherwise provided in any other
enforceable arbitration agreement between Employee and the
Company (Another Arbitration Agreement), which the Company and
Employee hereby reaffirm if one exists, the arbitration shall
be in accordance with the then-current arbitration rules and
procedures for employment disputes governing arbitrations
administered by the Judicial Arbitration and Mediation Service
(JAMS), except as provided in this section. Arbitration shall
take place before a panel of three arbitrators experienced in
employment law licensed to practice in the state of Arkansas
selected in accordance with subsection (c). The arbitrators
may not modify or change this Release in any way. Employee,
the Company, and any Released Party who agrees to arbitrate an
Arbitrable Dispute under this section agree to submit to
personal jurisdiction in the state listed in the first Section
of this Release for
15
such arbitration and in any jurisdiction necessary for the
enforcement of any arbitration award.
(d) SELECTION OF THE ARBITRATORS: The arbitrators shall be
selected as follows: JAMS shall give each party a list of 11
arbitrators drawn from its panel of employment dispute
arbitrators from the state of Arkansas. Each party may strike
all names on the list it deems unacceptable. If only three
common names remain on the lists of both parties, those
individuals shall be designated as the Arbitrators. If more
than three common names remain on the lists of both parties,
the parties shall strike names alternately from the list of
common names until only three remain. The party who did not
initiate the claim shall strike first. If no common name
exists on the lists of both parties, JAMS shall furnish an
additional list and the process shall be repeated. If the
arbitrators have been selected after two lists have been
distributed, then the parties shall strike alternately from a
third list, with the party initiating the claim striking
first, until only three names remain. Those persons shall be
designated as the arbitrators. Striking decisions must be made
and communicated to the other party and JAMS within 10
calendar days after the date of the transmittal communication
relaying the arbitrators remaining for selection. In the event
a party does not make a timely strike, the other party may
select the arbitrators from the names remaining.
(e) EXCLUSIVE REMEDY: Arbitration in this manner shall be the
exclusive remedy for any claim that must be arbitrated
pursuant to this section. Should Employee or the Company
attempt to resolve such a claim by any method other than
arbitration pursuant to this section, the responding party
will be entitled to recover from the initiating party all
damages, expenses, and attorneys' fees incurred as a result of
that breach.
(f) FEES AND EXPENSES: Each party shall pay the fees of his or
her attorneys, the expenses of his or his witnesses, and any
other expenses that party incurs in connection with the
arbitration, but all other costs of the arbitration, including
the fees of the arbitrator, the cost of any record or
transcript of the arbitration, administrative fees, and other
fees and costs shall be paid in equal shares by the Employee
and Company. Except as provided in Another Arbitration
Agreement, the party losing the arbitration shall reimburse
the party who prevailed for all attorneys' fees and expenses
the prevailing party paid pursuant to the preceding sentence.
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21. ENTIRE RELEASE. This Release constitutes the entire Release between the
parties with respect to the subject matter hereof and supersedes all prior
agreements, oral and written, between the parties hereto to the extent such
agreements are inconsistent herewith, including but not limited to, any prior
agreements with respect to severance benefits. This Release may be modified or
amended only by an instrument in writing signed by both parties hereof.
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READ THIS RELEASE, AND CAREFULLY CONSIDER ALL OF ITS PROVISIONS BEFORE SIGNING
IT: IT INCLUDES A RELEASE OF KNOWN AND UNKNOWN CLAIMS, AND ITS
ARBITRATION-OF-CLAIMS REQUIREMENT WAIVES EMPLOYEE'S RIGHT TO A JURY TRIAL. IF
EMPLOYEE WISHES, HE SHOULD TAKE ADVANTAGE OF THE FULL CONSIDERATION PERIOD
AFFORDED BY SECTION 3 AND YOU SHOULD CONSULT AN ATTORNEY.
Employee represents that as of the date of this Release, he
has not filed, and during the LOA period and Benefit Period, he will not file
any lawsuits, charges, complaints, or claims relating to his employment or any
other matters that involve the Company. Employee agrees to cause the withdrawal
or dismissal with prejudice of all of these matters unless otherwise stated by
the Company, to the extent still pending within five (5) days after this Release
becomes irrevocable, and until such withdrawal or dismissal is accepted or
ordered, no amounts otherwise due Employee under this Release shall become
payable.
IN WITNESS WHEREOF, the Company and the Employee have executed this
Release as of the day and year indicated below.
Xxxxxxx Enterprises, Inc.
Dated: By:
--------------------------- ----------------------------------
Xxxxxxx X. Xxxxx
Chairman of the Board,
President and Chief Executive Officer
Employee
Dated:
---------------------------- -------------------------------------
Xxxxx X. Xxxxxxxx
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