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EXHIBIT 10.35
AGREEMENT AND GENERAL RELEASE
This Agreement and General Release (the "Agreement") is made and
entered into as of the 5th day of September, 2000, by and between Champion
Enterprises, Inc. a Michigan corporation whose address is 0000 Xxxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxxx, 00000, and its subsidiaries, affiliates, and
related entities, and any divisions thereof (together, the "Employer") and
Xxxxxx X. Xxxxxxxxx (the "Employee").
WHEREAS, Employee has been employed by Employer, and Employee has
elected to conclude such employment on or about September 5, 2000; and
WHEREAS, Employee voluntarily and with full knowledge of Employee's
rights and the provisions herein, now desires to waive Employee's rights and to
settle, compromise, and dispose of any claims that Employee has or might have
against Employer (or its affiliates) as set forth herein upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein, and other valuable consideration, it is hereby covenanted and
agreed as follows:
1. Releases.
(a) Employee (for Employee and Employee's family, heirs, executors,
administrators, personal representatives, legal representatives,
successors and assigns), hereby forever and fully releases,
acquits, and discharges Employer together with all of the
officers, directors, agents, employees, successors or assigns of
Employer, of and from any and all claims, causes of action,
agreements, or any other liability of any nature whatsoever,
whether known or unknown, foreseen or unforeseen, arising out of
any matter or event occurring on or prior to the date hereof,
including, but not limited to, claims related in any way to
employment, wrongful discharge, negligent or intentional
infliction of emotional distress, defamation, age discrimination
or any other form of discrimination, breach of contract, claims
for unused vacation pay, or any and all other claims of any nature
arising out of or in any way relating to any employment agreement
that Employee has had with the Employer (including claims for any
payments now or hereafter owed under any such employment
agreement), any other contract or agreement between Employee and
Employer, or Employee's employment with the Employer or conclusion
thereof, including any and all claims under any federal, state or
local laws, regulations, rules or ordinances, including any claims
under the Age Discrimination in Employment Act of 1967 (as
amended), claims for any other benefit, or for violation of the
Employee Retirement Income Security Act of 1974 (as amended).
Employer and Employee recognize and agree that this release does
not prejudice (i) Employee's rights as a shareholder of Employer,
(ii) any rights of Employee under the Champion Enterprises, Inc.
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Deferred Compensation Plan and the Champion Enterprises, Inc.
Corporate Officer Stock Purchase Plan, (iii) any rights of
Employee (through the date of conclusion of employment) to salary
and benefits as specified in the July 3, 2000 letter by and
between the parties, or (iv) or any indemnification rights
Employee may have under law or Employer's by-laws. Employee does
not release any such rights.
(b) Employer and all of the officers, directors, agents, employees,
successors and assigns of Employer hereby forever and fully
releases, acquits and discharges Employee (and his family, heirs,
executors, administrators, personal representatives, legal
representatives, successors and assigns) of and from any and all
claims, causes of action, agreements, or any other liability of
any nature whatsoever, whether known or unknown, foreseen or
unforeseen, arising out of any matter or event occurring on or
prior to the date hereof. The itemization of certain claims in
subpart (a) but not this subpart (b) does not limit in any way the
scope of this release.
2. Unknown Damages or Injuries. It is expressly understood and agreed
by the parties that this is a full and final general release of all matters
whatsoever and that this general release is intended to and does embrace not
only all known and anticipated damages and injury, but also all unknown and
unanticipated damages, injuries or complications that may later develop or be
discovered, including all effects and consequences thereof.
3. Lawsuit Forever Barred by Either Party. It is the intention and
understanding of the parties that this Agreement will forever and for all time
bar any action, claim or administrative proceeding whatsoever which arose or
which might arise in the future from any acts, omissions, agreements or other
occurrences on or prior to the date hereof including the incidents described
above, and that no lawsuit ever will be asserted against any person or entity
hereby released for any injury or damage, whether known or unknown, sustained or
to be sustained, as a result of the foregoing incidents.
4. No Right to Reemployment. Employee waives all right to reinstatement
or reemployment with Employer, its subsidiaries, affiliates, divisions, and
related entities and further agrees that Employee will never apply for
employment with Employer, and that, if Employee does apply, such institutions
may deny Employee such employment and such denial shall not constitute any
violation of any laws, rules or orders of any state or of the United States.
5. Confidential. Employee agrees that Employee will keep strictly
confidential and will not communicate or disclose, except to Employee's
immediate family, Employee's attorneys, tax and financial planners or as
required by law or upon prior written consent of Employer, the contents of any
term or provision contained in this Agreement.
6. Settlement Amount. Upon Employee's execution and delivery to
Employer of this Agreement and the expiration of the revocation period without
revocation of this Agreement by Employee, Employer shall pay the Employee the
lump-
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sum amount listed on Exhibit A and become liable for the other obligations
listed on Exhibit A under the terms set forth on Exhibit A hereto.
7. Full and Final Settlement. Following the discharge by Employer of
all obligations listed on Exhibit A under the terms set forth on Exhibit A, and
except as specifically set forth in Paragraph1(a), no further payment or
consideration of any kind in connection with the release and settlement of the
above-described claims is contemplated or required herein. Employer and Employee
are, as of this same date, executing a consulting agreement. The effectiveness
of this Agreement is contingent on the execution of that Consulting Agreement.
8. Covenant Not to Compete. Employee is currently subject to certain
agreements (the "Employment Agreements") which contain restrictions on
Employee's ability to compete with Employer. The parties agree that those
restrictions shall continue in full force and effect until January 1, 2001 but
only as to the following six companies (or their affiliates or successors):
American Homestar Corporation, Cavalier Homes, Inc. Xxxxxxx Homes, Inc.,
Fleetwood Enterprises, Inc., Oakwood Homes Corporation, or Palm Harbor Homes,
Inc. Without limiting the foregoing, Employee agrees that during that same
period, he shall not personally, directly or indirectly act as a consultant,
director, agent, partner, joint venturer or advisor of any of the six listed
companies. Otherwise all such restrictions on Employee's ability to compete
shall cease when this Agreement becomes effective. For purposes of this
Agreement and the Consulting Agreement also being signed today, the term
"Employment Agreements" shall mean: (i) Employee's original letter of employment
dated Xxxxxxxx 00, 0000, (xx) the January 12, 1998 Non-Qualified Stock Option
Agreement between the parties, (iii) the September 10, 1998 Stock Option
Agreement under the Champion Enterprises, Inc. 1995 Stock Option and Incentive
Plan, and (iv) the January 12, 1998 Champion Enterprises, Inc. Change in Control
Severance Agreement, as amended February 18, 1999.
9. Proprietary Information and Confidentiality. Employee acknowledges
that under the Employment Agreements he is currently subject to various
covenants and duties obligating him to retain as confidential "Confidential
Information" in his possession or of which he is aware. Those obligations shall
continue according to their terms even though Employer no longer employs
Employee.
10. Basic Understandings. Employee understands and agrees that
Employee:
(a) has read this Agreement carefully and understands all
of its terms;
(b) is advised to consult with an attorney prior to
executing this Agreement; and
(c) may take 21 days to consider this Agreement.
11. Revocation Period. Employee understands and agrees that Employee
may revoke this Agreement for a period of seven (7) calendar days following his
execution of this Agreement. The Agreement is not effective until this
revocation period has expired without such revocation taking place. Employee
understands that any revocation, to be effective, must be in writing and either
(a) received by mail, overnight
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courier service or fax transmission within seven (7) days after his execution of
this Agreement and addressed to Xxxx X. Xxxxxxx, Xx. at the address set forth
above for Employer or (b) hand delivered within seven (7) days after the
execution of this Agreement to Xxxx X. Xxxxxxx, Xx.
12. Return of Property. Employee agrees that on September 5, 2000 (or
such earlier date as Employer reasonably requests) he will tender to Employer
all credit cards, documents or any other Employer property in Employee's
possession and submit for review and reimbursement by Employer any outstanding
ordinary and necessary business related expenses incurred on behalf of Employer.
13. No Effect on 401(k) Plan. This Agreement shall not affect
Employee's rights under the terms of the Employer 401(k) Plan (if any). The
terms of the 401(k) Plan shall remain effective as to Employee during the
existence of such plan
14. Stock and Stock Options. Employee's stock options that are vested
but not exercised are hereby immediately canceled, as are those stock options
that are not vested. Employee shall retain free and clear any other Employer
stock which Employee owns and which is vested as of the execution of this
Agreement.
15. Settlement in Compromise. It is expressly understood by the parties
that this Agreement is a compromise and settlement and that none of its terms
and conditions is it to be construed as an admission of liability or wrongdoing
on the part of Employer or Employee.
16. Complete Agreement. This Agreement contains the complete
understanding of the parties and no representations, inducements, promises,
agreements, arrangements or undertakings relating to the matters set forth
herein, whether oral or written, express or implied, between the parties not
herein embodied shall have any force or effect. No modifications or amendments
hereto may be made except by a writing signed by both the parties. On its
effective date, this Agreement will supercede and replace any inconsistent term
or provision of the July 3, 2000 letter between the parties. This Agreement
shall be deemed to be a Michigan contract, and shall be governed by the laws of
the State of Michigan. This Agreement may be executed in counterparts. Facsimile
signatures shall be deemed to be originals.
17. No Inconsistent Action. Each party hereto agrees that they will
take no action (including, but not limited to, an appeal or institution of a
separate lawsuit) inconsistent with this Agreement or which seeks to challenge
any provisions of this Agreement or any document provided for herein.
18. Ongoing Cooperation. Employee agrees that when and if necessary he
will reasonably cooperate and assist Employer in connection with ongoing
projects, program or litigation.
19. Potential Invalidity. Should any covenant or other provision of
this Agreement be declared invalid, illegal or unenforceable by any court of
competent jurisdiction, by administrative order or by reason of any rule of law
or public policy, all other provisions shall nevertheless remain in full force
and effect and no provision shall be deemed dependent upon any other provision
unless so specified.
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20. Enforcement. In the event that either party breaches any
of its duties or obligations under this Agreement, the other party may, at its
sole option, (i) terminate this Agreement by giving written notice of
termination to the other whereupon the nonbreaching party shall be released and
discharged of all liabilities, duties and obligations hereunder whatsoever; (ii)
xxx for specific performance of the duties and obligations hereunder; (iii) seek
injunctive relief to prevent activities prohibited hereby; and/or (iv) exercise
any other right or remedy available at law, in equity or otherwise. The parties
acknowledge and agree that the injury from the breach of certain provisions of
this Agreement will be incalculable and irremediable and that it will be
extremely difficult, if not impossible, to accurately measure the damage from
any such breach. Accordingly, the parties agree that upon any breach of this
Agreement remedies at law may be inadequate. The parties further agree that the
nonbreaching party shall be entitled, in addition to any other rights or
remedies available to it, as a matter of right, to institute legal proceedings
in Oakland County Circuit Court, Pontiac, Michigan and obtain equitable and
legal relief.
(b) No failure by a party to exercise any right, power or remedy
hereunder or under applicable law shall affect such right, power or remedy, nor
shall any single or partial exercise thereof preclude any further exercise
thereof or the exercise of any other right, power or remedy hereunder or under
applicable law. The rights and remedies of the parties are cumulative to all
rights and remedies under applicable law.
21. Mutual Knowing and Voluntary Waiver. The parties acknowledge that
this is a knowing and voluntary waiver of the rights specified in this
Agreement, that each has completely read and understands all of the terms and
provisions of this Agreement and that signing this Agreement is each party's
free act and deed. The parties further acknowledge that they have not relied
upon the representations of any party hereby released or by that party's
representatives concerning the subject matter hereof.
THIS SPACE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the parties have voluntarily and willingly executed
this Agreement as of the date first set forth above.
EMPLOYER: Champion Enterprises, Inc.
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a Michigan corporation, on
behalf of itself, its subsidiaries,
affiliates, and related entities
By: ___________________________
Its: Chairman, President & CEO
EMPLOYEE: ______________________________
Xxxxxx X. Xxxxxxxxx
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WAIVER
Employee specifically waives the 21-day review period set forth in
Paragraph 10 to consider the Agreement and understands that this Agreement shall
not become effective for seven (7) days following the date it is signed by him,
during which time Employee may revoke the Agreement by written notice to
Employer.
______________________________
Xxxxxx X. Xxxxxxxxx
Date: September 5, 2000
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EXHIBIT A
1. Champion will pay the sum of $100,000 as severance paid in a lump sum.
2. In addition, in the event that Employee has not commenced employment in
a new position on or before December 31, 2000, Champion will pay
Employee an additional sum of up to $150,000, paid in six equal monthly
installments of $25,000, starting January 1, 2001. These six additional
monthly payments will continue only until Employee commences new
employment.
3. Champion will continue until June 30, 2001 Employee's health care
insurance on the same terms and conditions as may be in effect from
time to time for Champion Enterprises, Inc. officers. This continued
coverage will, however, cease if Employee commences new employment
prior to that date. This provision will not effect Employee's COBRA
rights.
4. Employer agrees to provide to Employee free of charge
PricewaterhouseCoopers tax services for the preparation of Employee's
personal tax returns for the 2000 calendar year.
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