EXHIBIT 10.1
XXXXXX ENTERPRISES, INC.
LETTER FROM THE COMPANY TO XXXXXX X. XXXXXXX, DATED JANUARY
15, 2008
[LETTERHEAD OF XXXXXX ENTERPRISES, INC.]
January 15, 2008
Xxxxxx X. Xxxxxxx
Re: Separation Agreement
Dear Xxx:
This letter describes the components of your separation
package with Xxxxxx Enterprises, Inc. ("Werner"). Any
references to "Werner" or "Xxxxxx Enterprises" in this
agreement shall include Xxxxxx Enterprises, Inc. and/or its
affiliates and subsidiaries, as the context may require. If
you agree to the terms of this letter agreement you will
receive the benefits described below.
Termination Date
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Your last day of active employment with Xxxxxx will be
January 15, 2008, ("Termination Date"). Your 401(k)
participation eligibility will end on your Termination Date.
Vesting is according to the plan design schedule. Any
banked PTO will be paid to you on the first payday following
your Termination Date in accordance with the Director Level
PTO Policy.
In exchange for your agreement to the remaining terms of
this letter agreement which will become effective once you
have signed it and you have not exercised your right to
revoke within the Revocation Period described below, Xxxxxx
will, solely for the purpose of allowing you to exercise
your currently vested stock options pursuant to the terms
and conditions of the Xxxxxx Enterprises, Inc. Stock Option
Plan (210,421 shares), characterize your termination as a
voluntary resignation.
1. Post Employment Obligations:
You agree to make yourself reasonably available to
Xxxxxx, and will:
a. Personally provide reasonable assistance and
cooperation in providing or obtaining
information for Xxxxxx, and its
representatives, concerning any Xxxxxx matter
of which you are knowledgeable.
b. Personally provide to Xxxxxx, or its
representatives, reasonable assistance and
cooperation relating to any pending or future
lawsuits or claims, about which you are
knowledgeable.
c. Promptly notify me, in writing, if you receive
any request from anyone other than Xxxxxx for
information regarding any potential claims or
proposed litigation against Xxxxxx or any of
its affiliates.
d. Refrain from engaging in any conduct, making
comments, disparaging remarks or statements,
the purpose or effect of which is to harm the
reputation, good will, or commercial interests
of Xxxxxx, its management or leadership, or
any of its affiliates.
e. Refrain from providing any information related
to any claim or potential litigation against
Xxxxxx, or its affiliates to any non-Xxxxxx
representatives, without either Xxxxxx'x
written permission or being required to
provide information pursuant to legal process.
f. If required by law to provide sworn testimony
on Xxxxxx matters, you will consult with and
have Xxxxxx -designated legal counsel present
for such testimony. Xxxxxx will be
responsible for the costs of such designated
counsel and you will bear no cost for same.
You will confine your testimony to items about
which you have actual knowledge rather than
speculation, unless otherwise directed by
legal process.
g. You will be reimbursed shortly after an
expense statement is received for reasonable
preapproved travel, food, lodging and similar
out-of-pocket expenses required to fulfill the
cooperation provisions above.
h. For one year from the effective date of this
agreement you will not directly or indirectly
contact or solicit (or assist another in
soliciting) any of the following Xxxxxx
customers or any parent, subsidiary or
affiliate thereof:
Anheuser-Xxxxx Incorporated
Xxxxxxx & Xxxxxx Distributing LLC
The Home Depot U.S.A., Inc
Sears Logistics Services, Inc
Oldcastle, Inc.
2. Confidentiality Agreement:
As an employee of Xxxxxx, you agree that Xxxxxx has
developed and continues to develop and use commercially
valuable confidential and/or proprietary technical and
non-technical information which is vital to the success
of Xxxxxx'x business, and furthermore, that Xxxxxx
utilizes confidential information, trade secrets and
proprietary customer information in promoting and
selling its products and services. For purposes of the
Agreement, you acknowledge that "Confidential
Information" means Xxxxxx'x: marketing plans, market
positions, pricing information, strategy, budgets,
long-range plans, customer information, sales data,
personnel information; privileged information, or other
information used by or concerning Xxxxxx, where such
information is not publicly available, or has been
treated as confidential.
You agree that from this time forward you will not,
either directly or indirectly, disclose, or use for the
benefit of any person, firm, corporation or other
business organization or yourself, any "Confidential
Information" related to Xxxxxx.
You agree and acknowledge that, except as expressly
modified in this Agreement, any agreements that you may
have signed with Xxxxxx concerning confidentiality,
non-competition and non-solicitation remain in full
force and effect.
You agree that you have and will keep the terms and
amount of this Agreement completely confidential,
except as required by applicable law, and that you have
not, nor will you hereafter disclose any information
concerning this Agreement to any person other than your
present attorneys, accountants, tax advisors, or
immediate family, and only if those persons agree to
abide by the provisions of the paragraph.
3. Return of Company Property
You agree to return to the Company immediately upon
termination, as applicable, your company vehicle and
all files, records, documents, reports, computers,
cellular telephones and other business equipment,
keys, and other physical, personal or electronically
stored property of the Company in your possession or
control and to further agree that you will not keep,
transfer or use any copies or excerpts of the foregoing
items without the approval of the Company. You agree
to return to the Company immediately upon termination
all company-issued credit cards, to immediately cease
use of all such cards and to make payment of any and
all outstanding balances in accordance with cardholder
agreements and the time limitations contained therein.
You agree to provide no later than fourteen (14) days
after your Termination Date, expense statements for all
company authorized expenses, and where charged on
company-issued credit cards, to use any reimbursement
payments for the purpose of paying such charges.
4. Use of Vehicle:
Xxxxxx will allow you the continued use of your company
vehicle as requested until January 25, 2008.
5. Health Insurance:
Your active employee health and dental coverage will
terminate on January 31, 2008. You will have the right
to elect to continue coverage under Xxxxxx'x group
health plan pursuant to the Consolidated Omnibus Budget
Reconciliation Act (COBRA). If you elect COBRA
coverage, the Company will subsidize the COBRA rates
(that is, you will pay the same rates as if you
continued to be employed ($87.00)) through March 31,
2008 or your re-employment, whichever occurs first.
This period will be included within your total COBRA
continuation eligibility. The Company will not
subsidize the rates for coverage after March 31, 2008.
You will receive a COBRA notice from the Benefits
Department explaining your rights, how to make your
election, and the premium payment due dates.
6. Release of Xxxxxx:
In exchange for the benefits provided to you by Werner,
and except for Xxxxxx'x obligations hereunder, you
hereby release Xxxxxx Enterprises, Inc., and each of
its agents, directors, officers, employees,
representatives, attorneys, affiliates, subsidiaries
and its and their predecessors, successors, heirs,
executors, administrators and assigns, and all persons
acting by, through, or under or in concert with any of
them (collectively "Releasees"), or any of them, of and
from any and all claims of any nature whatsoever, in
law or equity, which you ever had, now have, or may
have had relating to your employment, or termination of
employment. This includes (i) all claims relating to
salary, overtime, vacation pay, PTO, incentive bonus
plans, and/or severance pay, stock options, and any and
all other fringe benefits, for which you were eligible
during your employment and (ii) all claims under any
employment agreement, change-in-control agreement or
other agreements between you and Xxxxxx Enterprises,
Inc., and/or its subsidiaries or affiliates; (iii) and
all claims you may have against the Company or its
employees under Title VII of the Civil Rights Act of
1964; the Employee Retirement Income Security Act of
1974; the Americans with Disabilities Act; the Age
Discrimination in Employment Act; the Older Workers
Benefit Protection Act; or any other federal, state, or
local law or regulation regarding your employment or
termination of employment.
This release shall not preclude an action to enforce
the specific terms of this letter agreement; to any
claims based on acts or events after this agreement has
become effective; to any unemployment or workers
compensation benefits to which you may be entitled; nor
to benefits in which you have become vested under the
Employee Retirement Income Security Act.
You understand that you may take up to twenty-one (21)
days to decide whether to accept this Agreement. You may
also consult with your personal attorney before signing.
If we have not received an executed Agreement from you
within twenty-one (21) days, any offers made by us in
this letter are withdrawn. If you wish, you may sign
the Agreement before this deadline, but in no case may
you sign it before your Termination Date. If you do
decide to sign the Agreement, you have up to seven (7)
days after signing (the "Revocation Period") to change
your mind. To revoke this Agreement, please notify Xxxx
Xxxxxx, Executive Vice President and General Counsel, in
writing within the Revocation Period. No stock options
may be exercised until the expiration of the Revocation
Period. Therefore the timing of your signature may
affect the timing of your ability to exercise options.
If the above meets with your agreement, please sign and
return one copy of this letter to me. An executed copy
will be returned to you. In the event that Xxxxxx has a
reasonable basis to believe you have breached the terms
of this Agreement, Xxxxxx will consider such breach to
be activity contrary to the best interest of Xxxxxx and
Werner may, in addition to any other rights and
remedies, terminate this agreement; offset any claims
against you from any current or future sums, stocks,
stock options, or rights which may be due you or in
which you may claim and interest.
Sincerely,
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Executive Vice President, General Counsel
ACCEPTANCE
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/s/ Xxxxxx X. Xxxxxxx 1-18-08
______________________________ _______________
Signature Date
Xxxxxx X. Xxxxxxx
______________________________
Printed Name
(First Name) (Last Name)
