EXHIBIT 10.36
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 XXXXXXX XXXXXXX (the "Employee").
WHEREAS, the Employee is employed by the Company in the capacity of
Executive Vice President - Information Technology and Chief Information Officer;
and
WHEREAS, the Employee and the Company entered into an Employment
Contract dated March 1, 2001, ("Employment Contract"), 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intent that all the terms of such Agreement shall be superceded on the Effective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 is resigning from the Company on October 11, 2002 as
a result of a Termination of Employment without Cause under his Employment
Contract; and
WHEREAS, the Company and the Employee have made arrangements to promote
an orderly transition of the Employee's responsibilities, and the Company had
committed to Employee that he would receive certain benefits in the event his
employment was terminated without Cause under his Employment Contract upon his
execution of a liability release; and
NOW, THEREFORE, in consideration of the mutual promises and other
consideration described herein, the Company and the Employee agree as follows.
1. TERMINATION OF EMPLOYMENT. The Employee hereby tenders, and the
Company hereby accepts, the Employee's resignation under the terms of his
Employment Contract as an officer and employee of the Company effective October
11, 2002 (the "Termination Date"). The parties agree that, upon the Termination
Date of this Release, the Employee shall have no further right or duty to render
services to or on behalf of the Company. The "Effective Date" of this Release
will be the eighth day following receipt by the Company of an original of this
Release executed by the Employee, provided that there has been no revocation as
specified in Section 4(d) by the Employee.
2. SEVERANCE PAYMENT. The Company promises that Employee will receive
the amounts or benefits set forth in this Section 2, subject to the terms of
this Release, and in lieu of all other severance benefits:
(a) Severance Agreement. A single, lump-sum payment in the amount
of nine hundred and forty five thousand dollars ($945,000)
(subject to this Section 2 and less all legally required and
authorized deductions and withholdings), representing two (2)
times the Employee's current base salary and target bonus
amounts (75% of base salary), and a payment representing
earned, but unused 2002 vacation less all legally required and
authorized deductions and withholdings, shall be paid to
Employee on the Effective Date.
(b) Continuation of Benefits. The Company will continue to provide
the Employee with coverage as an executive employee under its
Group Medical, Executive Medical Reimbursement Plan, Executive
Medical and Dental Benefits Plan to the same extent as it
would for active employees, for two (2) years following the
Employee's Termination Date. These benefits shall be reduced
to the extent comparable benefits are provided to Employee
through any subsequent employers.
(c) Relocation Benefit, If, within two (2) years after the
Employee's Termination of Employment by the Company, Employee
gives the Company written notice that he desires to relocate
from Fort Xxxxx, Arkansas to another state 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
then in effect which shall not be materially different or less
beneficial than the Company's relocation policy in effect on
the date of the Release) in connection with such relocation.
(d) Executive Retirement Plan. For the year of the Employee's
Termination of Employment, the Company will make the
contribution to the Executive Retirement Plan on behalf of the
Employee that it would have made if the Employee had not had a
Termination of Employment, 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 Retirement Plan) and the percentage
of such Compensation that the Employee is contributing to the
Executive Retirement Plan, as of the date of Termination of
Employment, and the Company's matching contribution rate for
such year (or, if greater, the preceding year). The portion of
the Company's matching contribution which is based on the
preceding year's
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contribution percentage shall be contributed to the Executive
Retirement Plan on behalf of the Employee immediately upon the
Employee's Termination Date and any additional contribution
required shall be paid as soon as the amount is determined.
(e) Executive Deferred Compensation Plan. For the year of the
Employee's Termination of Employment, the Company will make
the contribution to its Executive Deferred Compensation Plan
(the "EDC Plan") that it would have made if the Employee had
not had a Termination of Employment determined based on the
Employee's deferral for such year. At Employee's election, the
Company contribution shall be paid to the Employee immediately
upon his Termination of Employment.
(f) Long-Term Incentive Award; Equity-Based Compensation.
Employee's stock-related rights are set forth in Attachment 1
to this Agreement. Employee will have ninety (90) days from
his Termination Date in which to exercise vested stock
options.
(g) 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 other compensation or benefit plans
of the Company or any affiliate following the Termination Date
except to the extent described above 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 the 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.
3. 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
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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.
4. GENERAL RELEASE
(a) In General: Except for obligations established in this
Release, Employee irrevocably and unconditionally releases all
the Claims described in this Section 4 that he may now have
against the Released Parties listed in Section 4(b). The
Company and the Released Parties irrevocably and
unconditionally release Employee from all the claims described
in this Section 4 except for obligations established in this
Release.
(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 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 4(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 11, 2002, and that he has until
November 1, 2002 to consider this Release. If Employee chooses
to execute this Release prior to
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November 1, 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 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.
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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.
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 and Severance Agreement.
(e) Unknown Claims: Employee understands that he is releasing
Claims that he may not know about. That is his knowing and
voluntary intent even though he recognizes that someday he
might regret having signed this Release. Nevertheless,
Employee is assuming that risk and agrees that this Release
shall remain effective in all respects in any such case.
Employee expressly waives all rights he might have under any
law that is intended to protect him from waiving unknown
claims (such as California Civil Code Section 1542). Employee
understands the significance of doing so.
(f) 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
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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.
(g) Employee understands and agrees that his employment with the
Company has terminated effective October 11, 2002, 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 the
future or that he will ever be rehired by the Company or its
affiliates, parent, or subsidiaries.
(h) 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 agrees to provide up to a maximum of ten (10) hours
of time in any given month to assist the Company under this
paragraph without compensation. Any assistance Employee
provides to Company under this paragraph in excess of ten (10)
hours in any given month shall be compensated on an hourly
basis as mutually agreed by Employee and Company. In
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addition, Company agrees to compensate Employee on a mutually
acceptable basis for any time incurred in assisting the
Company under this paragraph after Employee has worked in
excess of forty (40) hours of accumulated time. Company will
reimburse Employee for reasonable and necessary business
expenses incurred in providing assistance under this
paragraph. 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.
(i) 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 October 11, 2002.
(j) 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 4(d) of this
Release, to the extent, if any, prohibited by applicable law.
5. TRANSFER OF DUTIES. During the period preceding the Termination Date
and for two (2) years thereafter, 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
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(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.
6. COMPANY PROPERTY. By Employee's last day of work, 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.
7. OWNERSHIP OF CLAIMS. Employee has not assigned or transferred any
Claim he is purporting to release, nor has he attempted to do so.
8. 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.
9. 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 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 assign 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.
10. 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.
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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 period of his
employment with the Company, or during the two (2) year period
immediately following the effective date of his termination
(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.
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
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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 as
follows:
(a) The Employee shall not during the term of employment or at any
time thereafter directly or indirectly use for his own purpose
or for the benefit of any person or entity other than the
Company, or otherwise disclose or permit others to obtain
access to, any proprietary of confidential information 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 provision, the Company's
proprietary information shall include, but is not limited to,
information and material identified in this section and that
identified in Section 17 of Employee's March 1, 2002
Employment Contract. Information or material that is not novel
or copyrighted or patented may nonetheless be proprietary
information. Proprietary information shall not include,
however, any information that is or becomes generally known to
the industries in which the Company competes through sources
independent of the Company or the Employee or through
authorized publication by the Company to persons other than
Company employees.
(b) The Employee shall not during his employment or at any time
thereafter, except as required by law, directly or indirectly
give or disclose any records containing confidential
information or material to, or permit any inspection or
copying of such records by, any individual or entity other
than in the authorized course and scope of such individual's
or entity's employment or retention by the Company. In
addition, the Employee shall promptly return to the Company
all such records upon his resignation hereunder and shall not
use or retain any such records thereafter. Records subject to
this subsection shall include, but not be limited to, 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 that may be
in the Employee's possession or under his control or
accessible to his which contain or may be derived from
proprietary or confidential
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information covered by this section or by Section 17 of
Employee's March 1, 2002 Employment Contract. All such records
are and will remain the sole property of the Company.
(c) Employee acknowledges his responsibilities with respect to
inventions, patents, and copyrights as set forth in Section 17
of his March 1, 2002 Employment Contract. Employee
acknowledges that there are no inventions, innovations or
improvements that should be disclosed as required by Section
17(c).
13. CONFIDENTIALITY. The Employee agrees that he will keep confidential
the existence and terms of this Release; provided, however, that nothing herein
shall prevent the Employee from disclosing the fact and terms of this Release
with his attorney, accountant, or financial advisor for the purposes of
receiving professional advice from such individual in that capacity. The
Employee will advise those individuals that the existence and terms of this
Release shall be kept confidential.
14. PUBLIC STATEMENTS. Except as necessary to secure other employment
or for other necessary reasons, Employee agrees that he will make no public
statements concerning his employment or the termination thereof with the
Company. 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 and Company agrees to make
same commitment with respect to 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.
15. 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 and any damages Released Parties
may incur 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.
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(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 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.
16. 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.
17. 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.
18. 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
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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.
19. 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 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.
20. GOVERNING LAW. This Release shall be governed by the law of the
State of Arkansas.
21. 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) ARBITRATION 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) 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
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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 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
15
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.
22. 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.
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 October 11, 2002, he has not filed 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.
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Xxxxxxx Enterprises, Inc.
Dated: By:
---------------------------- ------------------------------------
Xxxxxxx X. Xxxxx
President and Chief Executive Officer
Employee
Dated:
----------------------------- ---------------------------------------
Xxxx Xxxxxxx
17
