Exhibit 10.51
RELEASE AND CONFIDENTIALITY
AGREEMENT
THIS AGREEMENT ("Agreement"), is made as of this 4th day of February, 2003,
by and between Xxxxxxx X. Xxxxxxx, Xx. ("Employee"), and WestPoint Xxxxxxx Inc.,
a Delaware corporation.
It is understood that Employee's employment with WestPoint Xxxxxxx Inc.
(which term shall include its predecessors, successors, subsidiaries, and
affiliates, all of which are hereinafter referred to as "WPS") will terminate on
January 15, 2003. In order to effect a complete and full satisfaction of any and
all claims of either party related to Employee's separation from WPS the parties
agree as follows:
1. CONSIDERATION. For and in consideration of the execution and delivery of
this Agreement, and Employee's adherence to the covenants set forth herein, WPS
agrees 1) to pay Employee (or his estate in the case of his death) a total of
Three Hundred Nine Thousand Dollars ($309,000) (less applicable taxes, premiums
and other required withholdings) paid in equal semi monthly installments
commencing on the first regular WPS pay period following the seventh day after
Employee's execution of this Agreement; 2) to continue paying Employee's current
automobile allowance for a period of twelve (12) months from the date of
separation; 3) to continue Employee's current group life insurance coverage
subject to the payment of the current premium for a period of twelve (12) months
from the date of separation; and 4) to allow the continuation of Employee's
current group medical and group dental coverage under the provisions of COBRA
but paying only the premium paid by active employees for the earlier to occur of
twelve (12) months from the date of separation or until Employee first becomes
employed. Thereafter any coverage you are entitled to under COBRA will be at
employee rates.
Employee shall be entitled to receive, as his vested benefit in the
WestPoint Xxxxxxx Supplemental Plan, 96,577 shares of WestPoint Xxxxxxx Inc.
common stock. The final distribution of Employee's vested benefit in the
WestPoint Xxxxxxx Key Employee Stock Bonus Plan has previously been distributed
to Employee and Employee has earned and will receive no Management Incentive
Bonus for the year 2002.
2. RELEASE. Employee hereby unconditionally releases WPS and all past or
present officers, directors, employees, representatives, and agents of WPS from
any and all claims arising out of his employment and termination from employment
including, but not limited to claims for breach of any implied or express
employment contracts or covenants; claims for wrongful discharge, public policy
violations, defamation, emotional distress or related claims; or for
discrimination based upon age, race, color, religion, sex, national origin, or
handicap which he now may have against them. This release will not prevent
Employee from exercising any post-termination rights provided by the normal
terms of any WPS employee benefit plans subject to the terms of ERISA; provided,
however, Employee acknowledges that he is not entitled to any benefit under the
WestPoint Xxxxxxx Inc. Employee Separation Plan.
In addition, Employee agrees not to institute any charge, claim, demand, or
action based upon any federal, state, or local statutory law, regulation, or any
common law theory including, but not limited to, any claims for wrongful
discharge or for discrimination based upon the Age Discrimination in Employment
Act of 1967 or Title VII of the Civil Rights Act of 1964 (which prohibits
discrimination based on race, color, religion, sex, or national origin) or the
Americans with Disabilities Act of 1990, against WPS or any of the past or
present officers, directors, employees, representatives, or agents of WPS
concerning any aspect of his employment or the termination of his employment
with WPS.
3. CONFIDENTIAL INFORMATION AND TRADE SECRETS
x.XXXXX SECRETS. Employee promises not to use, disclose or exploit any
Trade Secret of the Company at any time for as long as such information
shall remain a trade secret under Georgia law, Section Section 10-1-760,
et. seq.. "Trade secret(s)" means information, without regard to form,
including, but not limited to, technical or non-technical data, a formula,
a pattern, a compilation, a program, a device, a method, a technique, a
drawing, a process, financial data, financial plans, product plans, or a
list of actual or potential customers or suppliers which is not commonly
known by or available to the public and which information: (a) derives
economic value, actual or potential, from not being generally known to, and
not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use.
b.CONFIDENTIAL INFORMATION. For three (3) years immediately following the
Execution Date of the Agreement, Employee shall not, on Employee's own
behalf or on behalf of any person, firm, partnership, association,
corporation or business organization, entity or enterprise use or disclose
any Confidential Information of the
Company. Confidential Information" means data and information relating to
the business of the Company (which may not rise to the level of a Trade
Secret under applicable law) which is or has been disclosed to Employee or
of which Employee became aware as a consequence of or through his
relationship to the Company and is not generally known to its competitors
or to the public. Confidential Information shall not include any data or
information that has been voluntarily disclosed to the public by the
Company (except where such public disclosure has been made by Employee
without authorization) or that has been independently developed and
disclosed by others, or that otherwise enters the public domain through
lawful means.
c. NOTICE OF TRADE SECRET AND CONFIDENTIAL INFORMATION. Employee
acknowledges that the Company designates Trade Secrets and Confidential
Information to include, without limitation, confidential customer and
prospective customer lists; information provided to the Company by its
customers or clients or prospective customers or clients; customer
preferences; client contacts; marketing plans, presentations and
strategies; methods of operations and cost data; internal policies and
procedures; contracts; personnel information; credit terms; or financial
information (including without limitation information regarding fee and
pricing structures, assets, status of client accounts or credit).
Employee agrees that he will keep the terms of this Agreement and the
amount of the payments specified in paragraph 1 above confidential and he will
not disclose the terms of this Agreement or the amount of said payments to
anyone unless required by law; provided however, that Employee may disclose to
his spouse, accountants, attorneys, tax advisors, financial consultants or
advisors such information as may be necessary and required for legal advice, ,
financial or tax advice, tax planning, financial planning or the preparation of
tax returns. This paragraph is subject to and shall be construed in accordance
with all applicable federal, state and local laws, statutes and regulations.
4. RETURN OF COMPANY PROPERTY. As soon as practicable, but in no event
later than five (5) days after the Termination Date, Executive will return to
the Company all property of the Company then in his possession, including, but
not limited to, cellular phones, computers, printers, Palm Pilot type devices,
files, records, customer information, Confidential Information, Trade Secrets,
and any written or electronic information that might constitute non-public
insider information under the Securities and Exchange Act of 1934. Upon return
of all property, Executive shall represent to the Company that the has no other
Company property in his possession.
5. NEUTRAL REFERENCE. The Company agrees, in the event it receives
inquiries about Employee from third parties, that the Company will provide only
a neutral reference which will consist of the confirmation of the fact and dates
of Employee's prior employment with the Company, that he resigned from the
Company, the positions which he held, his job duties and responsibilities, and
the amount of his compensation. Employee agrees that he will direct any inquiry
into his employment with the Company to Xxx Xxxxxx.
6. ENFORCEABILITY IN ALL JURISDICTIONS. Employee intends to and hereby
confers jurisdiction to enforce any arbitral decision pursuant to Section 10
hereof upon the courts of any jurisdiction within the geographic scope of such
covenants and agreements.
7. BREACH OF AGREEMENT. Should Employee breach this agreement WPS shall be
entitled to immediately terminate any payments then being made to Employee
pursuant to this agreement and shall be entitled to the return of any and all
payments previously made hereunder. WPS shall, in addition be entitled to
enforce the equitable remedies set forth below.
8. EQUITABLE RELIEF. Employee acknowledges that a breach by him of this
Agreement cannot reasonably or adequately be compensated in damages in an action
at law, and that a breach of any of the provisions contained in this Agreement
will cause WPS irreparable injury and damage. By reason thereof, Employee agrees
that WPS will be entitled, in addition to any other remedies it may have under
this Agreement or otherwise, to temporary, preliminary and permanent injunctive
and other equitable relief to prevent any breach of this Agreement; provided,
however, that no specification in this Agreement of a specific legal or
equitable remedy is to be construed as a waiver or prohibition against pursuing
other legal or equitable remedies in the event of such a breach.
9. MISCELLANEOUS. The covenants, terms and provisions set forth herein
shall inure to the benefit of, and shall be enforceable by WPS and affiliates of
WPS.
(a) AMENDMENTS. No amendment or modification of the terms and
conditions hereof shall be effective unless contained in a writing signed by
Employee and WPS.
(b) GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Georgia.
(c) OTHER AGREEMENTS. The terms of this Agreement shall be cumulative
of, and shall not void or supersede, the terms of any agreement by Employee
regarding confidentiality or inventions in favor of WPS.
10. DISPUTE RESOLUTION. Except as necessary to specifically enforce, or
enjoin the breach of this Agreement or any provision herein (to the extent such
remedies may otherwise be available), any dispute arising out of or relating to
this Agreement shall be submitted to binding arbitration by one arbiter under
the then existing Commercial Arbitration Rules of the American Arbitration
Association in arbitration proceedings conducted in Atlanta, Georgia. The
arbiter shall have no power or authority in making his award to modify, enlarge
or add to the terms and provisions of this Agreement, except as otherwise
expressly agreed herein. The arbiter shall provide the parties a draft of the
tentative award and the reasons therefor and permit them to submit briefs
supporting or challenging the tentative award. Judgment upon the final award of
the arbiter shall be binding upon the parties and may be entered in any court
having jurisdiction. The arbiter shall award to the prevailing party reasonable
attorneys' fees and expenses from the other party, including any expert fees,
which fees and expenses shall be in addition to any other relief which may be
awarded.
11. COUNTERPART EXECUTION. This Agreement may be executed in any number of
counterparts with the same effect as if both parties signed the same document.
All counterparts shall be construed together and shall constitute one agreement.
Employee represents that he has read and understands this Agreement and he
voluntarily and knowingly intends to be bound by its terms, that he has been
given at least twenty-one (21) days to review and consider the Agreement and
understands that he has the right to consult any person or advisor, including
his attorney, before signing it. Employee understands that he may revoke this
Agreement within seven (7) days of acceptance by giving written notice to L. Xxx
Xxxxxx, III, Vice President - Human Resources, WestPoint Xxxxxxx Inc., 000 Xxxx
00xx Xxxxxx, Xxxx Xxxxx, Xxxxxxx 00000. This Agreement will not be effective
until the seven-day revocation period has passed and compensation will commence
thereafter. Employee's failure to execute and return this Agreement to WPS
within thirty (30) days of employment termination or receipt hereof will result
in forfeiture of any right to compensation hereunder.
Should Employee challenge, fail, or refuse to abide by the terms hereof,
WPS shall be entitled to the return of all monies paid on behalf of WPS in
consideration for this Agreement and shall be entitled to attorneys' fees and
any other claims that it may have against him for his breach of the terms
hereof.
IN WITNESS WHEREOF, the parties hereto have affixed their hands and seals
as of the date first written above.
XXXXXXX X. XXXXXXX, XX.
Xxxxxxx X. Xxxxxxx, Xx.
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WESTPOINT XXXXXXX INC.
By: L. Xxx Xxxxxx, III
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Title: V.P.-Human Resources
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