EXHIBIT 10.28
[▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION LETTERHEAD]
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (hereinafter the
"Separation Agreement") is entered into by and between ▇▇▇▇ ▇. ▇▇▇▇ (hereinafter
"▇▇▇▇" or "You" and ▇▇▇▇▇▇ & ▇▇▇▇▇, Corporation (hereinafter "T&B"):
1. ▇▇▇▇ has resigned from his position as President and Chief Operating
Officer with ▇▇▇▇▇▇ & ▇▇▇▇▇ effective October 24, 2000. ▇▇▇▇
understands that
a. John's Employment Agreement dated July 1, 2000 will become
invalid as of the date of his termination.
b. We will recommend to the Human Resources Committee that
the restricted stock awards granted during John's service
with T&B be released to him as of the time the
restrictions lapse.
c. John will receive a lump sum payment in the amount of
$70,000 representing his guaranteed bonus payment for
fiscal year 2000.
d. Upon John's termination and retirement, all stock options
that were granted to ▇▇▇▇ by the Corporation prior to his
termination will be treated as a `retirement' in
accordance with the Grant Agreement. Specifically, options
may be exercised in full at any time within six (6) years
of the date of termination, provided, however, that if
such exercise occurs more than three (3) months after the
date of such termination, the Option shall be treated as a
nonqualified stock option. Options cannot extend beyond
their expiration date.
e. As approved by the HR Committee of the Board of Directors
on July 1, 2000, you have been granted additional service
so that you will receive a lump sum benefit payment from
the Executive Retirement Plan based on a total of 5 years
of credited service with ▇▇▇▇▇▇ & ▇▇▇▇▇. A preliminary
calculation is attached.
f. The Company will provide the following assistance in
the sale of your home in ▇▇▇▇▇▇▇ as follows:
- Marketing assistance in the sale of the ▇▇▇▇▇▇▇
residence
- Payment of all traditional closing costs
- Reimbursement of the cost to move your household
goods and possessions to Milan, Tennessee.
- Tax gross ups, as applicable, on any of the above
items to keep you whole on both federal and state tax
returns.
2. ▇▇▇▇ has agreed with the obligations set forth in the Employment
Proprietary Information and Invention Agreement, (a copy of which is attached
hereto as Exhibit A for your review), including, but not limited to, the
post-employment covenant against disclosure contained in paragraph 3 thereof,
all of which hereby are incorporated by reference into this Separation
Agreement.
3. ▇▇▇▇ acknowledges and agrees that, in the absence of this Separation
Agreement, he would have no entitlement to the benefits provided in this
Separation Agreement.
4. ▇▇▇▇ hereby waives, releases, and discharges T&B, its past and
present parents, subsidiaries, divisions, and affiliated companies, their
predecessors, successors and assigns, and their past and present stockholders,
directors, officers, employees and agents (hereinafter collectively the
"Company") from any and all claims, demands, damages, and causes of action of
every kind and nature, whether known or unknown, or suspected or unsuspected,
which ▇▇▇▇ has or may have against the Company, arising out of any matter
whatsoever. This General Release specifically includes, but is not limited to,
any and all claims, demands, damages, and causes of action:
a. Arising out of or in any way related to John's employment
or the termination of his employment with the Company; or
b. Arising under or based on Title VII of the Civil Rights Act
of 1964, the Age Discrimination in Employment Act of
1967, the Americans With Disabilities Act of 1990, the Fair
Labor Standards Act of 1938, the Employee Retirement Income
Security Act of 1974, the Rehabilitation Act of 1973, or any
other federal, state or local law, statute, ordinance,
decision, order, policy or regulation prohibiting employment
discrimination or otherwise creating rights or claims for
employees, including, but not limited to, any and all claims
alleging breach of public policy, the implied obligation of
good faith and fair dealing, or any oral or written contract,
handbook, manual, policy statement or employment practice, or
alleging misrepresentation, defamation, interference with
contractual relations, intentional or negligent infliction of
emotional distress, invasion of privacy, negligence or
wrongful discharge.
5. As part of the foregoing General Release, ▇▇▇▇ is waiving all claims
which he may have against the Company for legal, equitable or injunctive relief,
including, but not
limited to, compensatory damages, punitive damages, backpay, front pay,
attorneys' fees, and reinstatement to employment, for age discrimination or any
other matter whatsoever.
6. This Separation Agreement includes a General Release, as well as a
specific release of all claims, demands, damages and causes of action referred
to above. No reference herein to any specific claim is intended to limit the
scope of this release and, notwithstanding any such reference, this Separation
Agreement shall be effective, without limitation, as a full and final bar to all
claims, demands, damages, and causes of action of every kind and nature
whatsoever which ▇▇▇▇ has or may have against the Company.
7. ▇▇▇▇ understands and agrees that if he, or anyone on his behalf,
initiates or prosecutes any administrative, judicial or other action arising out
of or in any way related to any of the claims, demands, damages or causes of
action hereinabove released, then ▇▇▇▇ shall be liable for payment of all costs
and attorneys' fees incurred in connection with any such action by the Company.
8. Nothing in this Separation Agreement constitutes or shall be
construed as an admission of liability on the part of the Company. The Company
expressly denies any liability of any kind to ▇▇▇▇, and particularly any
liability arising out of or in any way related to his employment or the
termination of his employment with the Company.
9. Except as otherwise provided herein, ▇▇▇▇ shall keep the terms of
this Separation Agreement confidential and agrees that neither he, nor his
attorneys, nor any of his agents, shall make any statements, oral or written,
regarding the terms of this Agreement unless written consent is given by the
President of T&B or unless required by a court or other tribunal in connection
with litigation being conducted before it.
10. ▇▇▇▇ understands and agrees that this Separation Agreement is
binding on him and his spouse, heirs, executors, administrators, successors and
assigns.
11. ▇▇▇▇ understands that he has a period of twenty-one (21) days
within which to consider the Agreement.
12. ▇▇▇▇ understands that he has the right to revoke this Separation
Agreement at anytime within seven (7) days after its execution and that the
Agreement shall not become effective or enforceable until this revocation period
has expired, provided, however, that any such revocation shall not affect John's
independent obligations under the above-referenced Agreement For Assignment Of
Inventions And Covenant Against Disclosure, which shall survive and be
enforceable notwithstanding the revocation of this Separation Agreement.
13. ▇▇▇▇ acknowledges that he has carefully read and fully understands
all of the provisions of this Separation Agreement and that he has entered into
the Agreement knowingly and voluntarily, after having been given sufficient time
to study the Agreement and to consult with an attorney, if desired.
14. The provisions of this Separation Agreement are fully severable and
are intended to be interpreted in a manner which makes then valid and
enforceable. In the event any provision of this Separation Agreement is found by
any court or tribunal to be partially or wholly invalid or unenforceable, the
remainder of the Agreement nevertheless shall be
enforceable and binding on the parties, and the invalid or unenforceable
provisions shall be modified or restricted to the extent and in the manner
necessary to render the same valid and enforceable, or, if such provision cannot
under any circumstances be so modified or restricted, it shall be excised from
the Agreement without affecting the validity or enforceability of any of the
remaining provisions. The parties agree that any such modification, restriction
or excision may be accomplished by their mutual written agreement or,
alternatively, by disposition of a court or other tribunal.
15. Except as otherwise provided herein, this Separation Agreement
constitutes the sole and entire agreement between ▇▇▇▇ and T&B with respect to
the subjects addressed in it, and supersedes all prior or contemporaneous
agreements, understandings, and representations, oral and written, with respect
to those subjects.
16. This Separation Agreement and any amendments hereto shall be
governed by and construed in accordance with the laws of the State of Tennessee.
17. No waiver, modification or amendment of any of the provisions of
this Separation Agreement shall be valid and enforceable unless in writing and
executed by ▇▇▇▇ and the Chairman and CEO of T&B.
November 2, 2000 /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Date ▇▇▇▇ ▇. ▇▇▇▇
November 7, 2000 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Date ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Vice President-Human Resources
