Contract
Exhibit 10.1 JELD-WEN, Inc. 0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000 XXX xxx.xxxx-xxx.xxx [DATE] CONFIDENTIAL [ADDRESS] Re: Separation Agreement Dear [NAME], Your employment with JELD-WEN, Inc. (“the Company”) will end effect upon your resignation from the Company on [DATE] (the “Resignation Date”). Pursuant to the terms of your employment agreement with the Company dated [DATE] (the “Employment Agreement”), you also resigned your position as a [TITLE] of [the Company] [and any of the Company’s subsidiaries] on [DATE]. You are sometimes referred to as “Executive” in this Agreement. In connection with your departure, the Company is making available to you this departure and release agreement (this “Agreement”). Under this Agreement, if you choose to accept it and do not exercise your right to revoke, as set forth in Paragraph 9, you will receive severance compensation above and beyond your final paycheck in accordance with Section 5(d) of your Employment Agreement as set forth below (less applicable withholdings and payment of any outstanding credit card charges or other debts owed to the Company): A. Payments Pay in Lieu of Notice $ [●] In lieu of working a 30 days’ notice period, the Company will pay you at your annual salary rate in effect on the date of resignation for an additional [●] days beyond the Resignation Date. Payment will be made on the next payroll date following [●] days after your return of an executed original of this Agreement to [NAME], [TITLE], provided that you have not revoked this Agreement. Severance Pay $ [●] Representing one year’s base pay and your target annual bonus, severance pay will be made in [●] equal [bi-weekly/monthly] installments, commencing within [●] days after, either (1) your return of an executed original of this Agreement to [NAME] or (2) the resignation date, whichever is later (the “Severance Period”), provided that you have not revoked this Agreement.
2 [YEAR] Bonus $ [●] You are otherwise eligible to receive a prorated bonus for MIP plan year [●]. Given the 6+6 estimated annual performance falls below threshold performance, the payment will be $[●]. Please note that applicable state and federal tax withholding rules may require the Company to withhold taxes from these amounts at a higher percentage than typically is required for payments of regular wages. B. Equity Your stock options, restricted stock units and performance stock units will continue to be governed by the applicable agreements under which they were granted; [provided, however, that (i) you shall have [●] years from the Resignation Date to exercise any vested and exercisable stock options, if you chose to do so; and (ii) that, notwithstanding the foregoing, in consideration of you making yourself available to the Company for all inquiries and questions during the Severance Period,] the restricted stock units and performance stock units granted on [DATE] shall vest in accordance with the terms of such restricted stock units or performance stock units (based on actual performance), as applicable, on [DATE] as though you were still employed by the Company. [You will have [●] days from your date of termination to exercise any vested stock options if you choose to do so. ]In the event you decide to exercise your options, you will login into the Shareworks website and follow the instructions. C. COBRA You are eligible to participate in the Company’s Health Plan through COBRA. Details about COBRA elections will be sent separately. [If you elect to continue participation through COBRA and have completed all necessary paperwork to make a COBRA election,] effective the first of the month following your termination date, the Company will reimburse you for health coverage through COBRA for a period of up to [●] months up to the amount the Company would have paid for insurance on your behalf if you remained employed. [This payment will be provided to you in form of one lump sum, as soon as practicable following the Resignation Date, but in no event more than [●] days after the Release becomes effective and irrevocable in accordance with its terms.] To obtain reimbursement, send COBRA receipts to: JELD-WEN, Inc. Attn: [NAME] [ADDRESS] D. Outplacement Services You are eligible for outplacement services at a value of up to $[●] to be utilized within one year of your date of termination. Please coordinate with [NAME] to arrange for such services.
3 In exchange for these benefits, which you would otherwise not be entitled to receive, you agree to the terms described below, which include a general release of claims. E. Tax Reimbursement/Tax Services [The Company will reimburse you for your costs associated with [your chosen tax advisor] assisting in the filing of your U.S. Federal and state and foreign income tax returns for calendar year [YEAR] to the extent those costs directly relate to your assignment with the Company (“Assignment Income”) and do not extend to personal tax advice or financial planning. Your U.S. Federal and state tax returns must be completed by no later than [DATE]. When your actual U.S. Federal and state tax returns are completed, [your chosen tax advisor] will calculate your final [theoretical] (U.S.) tax liability related to your Assignment Income. If the hypothetical tax amount previously withheld by the Company related to your Assignment Income exceeds this amount, you will be refunded the excess within [●] days after completion of the tax equalization settlement calculation. If the hypothetical tax amount withheld by the Company related to your Assignment Income is insufficient to cover this liability, you will be responsible to pay the difference to the Company within [●] days after completion of the tax equalization settlement.] Separation Agreement 1. Release of Claims Executive hereby irrevocably, fully and finally releases the Company, its parent, subsidiaries, affiliates, directors, officers, agents and employees (“Releasees”) from all causes of action, claims, suits, demands or other obligations or liabilities, whether known or unknown, suspected or unsuspected, that Executive ever had or now has as of the time that Executive signs this release which relate to his hiring, his employment with the Company, the termination of his employment with the Company and claims asserted in shareholder derivative actions or shareholder class actions against the Company and its officers and Board, to the extent those derivative or class actions relate to the period during which Executive was employed by the Company. The claims released include, but are not limited to, any claims arising from or related to Executive’s employment with the Company, such as claims arising under (as amended) Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1974, the Americans with Disabilities Act, the Equal Pay Act, the Fair Labor Standards Act, the California Fair Employment and Housing Act, the California Labor Code, the Employee Retirement Income and Security Act of 1974 (“ERISA”) (except for any vested right Executive has to benefits under an ERISA plan), the state and federal Worker Adjustment and Retraining Notification Act, and the California Business and Professions Code; any other local, state, federal, or foreign law governing employment; and the common law of contract and tort. In no event, however, shall any claims, causes of action, suits, demands or other obligations or liabilities be released pursuant to the foregoing if and to the extent they relate to: (i) claims for workers’ compensation benefits under any of the Company’s workers’ compensation insurance policies or funds; (ii) claims related to Executive’s COBRA rights;
4 (iii) claims for indemnification from the Company to which Executive is or may become entitled, including but not limited to claims submitted to an insurance company providing the Company with directors and officers liability insurance; and (iv) any claims for benefits under any employee benefit plans of the Company that become due or owing at any time following Executive’s termination of employment, including, but not limited to, any ERISA plans, deferred compensation plans or equity plans. Executive represents and warrants that he has not filed any claim, charge or complaint against any of the Releases. Executive intends that this release of claims cover all claims, whether or not known to Executive. Executive further recognizes the risk that, subsequent to the execution of this release, Executive may incur loss, damage or injury which Executive attributes to the claims encompassed by this release. Executive expressly assumes this risk by signing this release and voluntarily and specifically waives any rights conferred by California Civil Code section 1542 which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor which if known by him or her must have materially affected his or her settlement with the debtor. Executive also hereby waives any rights under the laws of the Commonwealth of Virginia, the State of New York, or any other jurisdiction which Executive may otherwise possess that are comparable to those set forth under California Civil Code section 1542. Executive represents and warrants that there has been no assignment or other transfer of any interest in any claim by Executive that is covered by this release. Executive acknowledges that he has been given at least 21 days in which to review and consider this release, although Executive is free to execute this release at any time within that 21- day period. Executive acknowledges that he has been advised to consult with an attorney about this release. Executive also acknowledges his understanding that if Executive signs this release, Executive will have an additional 7 days from the date that Executive signs this release to revoke that acceptance, which Executive may effect by means of a written notice sent to the General Counsel of the Company at the Company’s corporate headquarters. If this 7-day period expires without a timely revocation, Executive acknowledges and agrees that this release will become final and effective on the eighth day following the date of Executive’s signature, which eighth day will be the effective date of this release. Executive acknowledges and agrees that his execution of this release is supported by independent and adequate consideration in the form of payments and/or benefits from the Company to which Executive would not have become entitled if he had not signed this release. 2. Section 409A. a) It is intended that all of the severance payments payable under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the
5 Code and the regulations and other guidance thereunder and any state law of similar effect (collectively, "Section 409A") provided under Treasury Regulations Sections 1.409A- 1(b)(4) and 1.409A-1(b)(9), and this Agreement will be construed in a manner that complies with Section 409A so as not to subject Executive to the payment of the tax, interest and any tax penalty which may be imposed under Section 409A. The provisions of this Agreement shall be interpreted in a manner consistent with such intent. To the extent that any provision of this Agreement would otherwise result in Executive being subject to payment of any tax, interest or tax penalty under Section 409A, the Company and Executive agree to amend this Agreement in a manner that brings this Agreement into compliance with Code Section 409A and preserves to the maximum extent possible the economic value of the relevant payment or benefit under this Agreement to Executive. b) With respect to any payments or benefits provided to Executive under this Agreement which arc subject either in whole or in part to Section 409A, the Company shall discharge its obligations under this Agreement and the Employment Agreement with respect to such payments or benefits in compliance with all applicable requirements of Section 409A. If Executive incurs any taxes or interest as a result of failure by the Company or any agent of the Company to discharge its obligations under this Agreement in compliance with the requirements of Section 409A, the Company shall reimburse Executive in full for the amount of such taxes and interest (and for the amount of any additional taxes payable with respect to such reimbursement) so that Executive is restored to the same after-tax position in which Executive would have been in had the noncompliance with Section 409A not occurred. c) No severance payments will be made under this Agreement unless Executive's termination of employment constitutes a "separation from service" (as defined under Treasury Regulation Section 1.409A-1(h)). d) For purposes of Section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A-2(b)(2)(iii)), Executive's right to receive any installment payments under this Agreement (whether severance payments or otherwise) shall be treated as a right to receive a series of separate payments and, accordingly, each installment payment hereunder shall at all times be considered a separate and distinct payment. e) If Executive is a specified employee for purposes of Section 409A(a)(2)(B)(i), any payment or provision of benefits that is nonqualified deferred compensation subject to Section 409A and that is made in connection with a separation from service payment event (as determined for purposes of Section 409A) shall not be paid prior to the earlier of (x) the expiration of the six-month period measured from the date of Executive's separation from service or (y) the date of Executive's death (the "409A Deferral Period"). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefit may be provided during the 409A Deferral Period at Executive's expense, with Executive having a right to reimbursement from the Company once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled. 3. Knowing and Voluntary Acceptance of Agreement and Release
6 You acknowledge that you have carefully read the Agreement, understand its contents, and have had the opportunity to consult with an attorney if you wish to do so. You acknowledge that the Company advises you to consult with an attorney regarding this agreement. You understand that you are releasing legal rights, including, without limitation, those identified in the Release of Claims set forth above. You also acknowledge that, as consideration for executing this Agreement, including the Release of Claims, you are receiving additional benefits and compensation to which you would not otherwise necessarily be entitled. 4. Applicable Law and Dispute Resolution This Agreement shall be construed in accordance with and governed by the statutes and common law of the state of North Carolina. Any disputes arising in connection with the terms or enforcement of this Agreement shall be resolved by confidential mediation or binding arbitration in the State of North Carolina in accordance with the procedures of the American Arbitration Association or other procedures agreed upon by you and the Company; provided, however, that either party shall be entitled to seek provisional remedies in a court of competent jurisdiction. The costs of mediation and arbitration shall be borne equally by you and the Company. 5. Confidential and Proprietary Information and Non-Competition; Continuing Duties You acknowledge that you have a fiduciary duty as a former employee and officer of the Company to keep confidential all proprietary and/or confidential information obtained by you during the course of your employment (including, but not limited to, as set forth in your Employment Agreement). You further acknowledge that you have continuing obligations to the Company and its subsidiaries under the terms of your Employment Agreement, including but not limited to non-compete and non-solicitation obligations. Additionally, you acknowledge that as a former Section 16 officer of the Company, you have continuing obligations with respect to reporting trades in the Company’s stock. For a period of 6 months following your termination date, you will continue to notify the Corporate Secretary both in advance and following any such trades made by you or by any affiliated individual. 6. Intellectual Property You acknowledge that all intellectual property (including without limitation any invention, design, technique, patent, or the like) conceived or created by you during your employment with the Company is the property of the Company. You also acknowledge that you have an obligation to cooperate with the Company in disclosing such intellectual property to the Company, and in assigning such intellectual property to the Company, including signing any necessary documents. You hereby acknowledge and expressly reaffirm these obligations, and further agree to cooperate with the Company after your employment ends by disclosing and confirming the Company's ownership in any such intellectual property conceived or created during your employment with the Company (including without limitation signing necessary documents at the Company's request), in exchange for the consideration provided to you under this Agreement. 7. Indemnity
7 The Company acknowledges that it has previously agreed to certain indemnification obligations as it relates to you (including, but not limited to, as set forth in your Employment Agreement). The Company further acknowledges and reaffirms that those obligations continue and survive your resignation. [In addition to the indemnification obligations previously agreed to, the Company also agrees to provide you with reasonable compensation for your time assisting, preparing, traveling, or testifying in any Proceeding (as defined in the Employment Agreement), whether as a witness, party, or otherwise, in the amount of $[●] per hour.] 8. Company Property You acknowledge that you must immediately return to the Company all Company-owned equipment furnished to you, including but not limited to your company credit card, computer, printer, fax machine, keys, etc. You may keep your company provided tablet (iPad) and cellular phone (iPhone). This equipment must be returned in the same condition as it was when assigned to you, excepting normal wear, and you must not alter, delete, or otherwise modify any information contained on any such devices. The Company’s obligations under this Agreement are contingent upon your return of all such property, and no payments will be made to you until such property has been returned. 9. Acknowledgement You acknowledge that this Agreement contains the entire agreement and understanding between you and the Company and supersedes and replaces all prior negotiations and agreements concerning the subjects of this Agreement, except to the extent that your Employment Agreement continues to apply. You acknowledge that (a) you have read the Agreement and understand the effect of your release and that you are releasing legal rights including without limitation those identified in Paragraph 1; (b) are not relying on any representations or statements made by the Company or its representatives, other than those specifically contained in this Agreement; (c) you have had adequate time to consider this Agreement (as set forth below); (d) as consideration for executing this Agreement, you have received additional benefits and compensation of value to which you would not otherwise be entitled; and (e) you have been and hereby are advised in writing to review this Agreement with legal counsel of your choice prior to execution. 10. Time for Consideration of Offer and Agreement You acknowledge that this offer provides you with a period of at least [●] days from the date of receipt for your consideration of the offer (the “Consideration Period”). In the event you have not executed this Agreement by the expiration of the Consideration Period, the offer shall expire. You may execute this Agreement at any time during this Consideration Period. This Agreement shall be effective on the date it is signed. However, you shall have a period of [●] days from your execution of this Agreement in which you may revoke this Agreement. Notice of this revocation, if any, shall be made in writing addressed to [NAME] in the [OFFICE NAME] office with a copy to:
8 JELD-WEN Benefits and Administrative Services Department Attn: [NAME] [ADDRESS] In the event you do not exercise your right to revoke this Agreement, this Agreement shall remain in effect and shall become effective and irrevocable on the date immediately following the [●] day revocation period described above. 11. Mutual Non-Disparagement You agree that you will not make any untrue or misleading written or oral statement about the Company and its current officers and directors, or about your employment at JELD- WEN, Inc., that is intended or would reasonably be expected to cause harm to its and/or their reputation. Similarly, the Company agrees that its current officers and directors (including anyone acting expressly on their behalf) shall not make any untrue or misleading written or oral statement about you or your employment at JELD-WEN, Inc. that is intended or would reasonably be expected to cause harm to your reputation. You agree that you will not discuss your employment, termination, or any other Company matters with any investors, analysts, or other third parties; provided, however, that you and the Company will agree to appropriate responses to be given by each party in response to inquiries from your future prospective employers. 12. Severability If any term, clause or portion of this Agreement shall, for any reason, be held to be invalid or unenforceable or to be contrary to public policy or any law, then the remainder of this Agreement shall not be affected by such invalidity or unenforceability but shall remain in full force and effect, as if the invalid or unenforceable term or portion thereof had not existed within this Agreement. Sincerely, JELD-WEN, Inc. By: [NAME] [TITLE]
9 I have read and understand the foregoing Agreement and, by signing below, I knowingly and voluntarily enter into this Agreement and understand that I am waiving and releasing legal claims that I may have against the Company. I also understand that the Company may be required to file this Agreement with the Securities and Exchange Commission pursuant to applicable regulations. Accepted: , 2022 _________________________________ __________________________________________ [NAME]
