Exhibit 10.1
Xxxxxxx Worldwide Associates
March 9, 1999
Xx. Xxx Xxxxxxxx
0000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Dear Xxx:
This letter will serve as our formal agreement with respect to your
resignation from employment with Xxxxxxx Worldwide Associates, Inc. ("JWA"). In
return for your compliance with all of the terms of this letter JWA will provide
the separation arrangements set forth in this letter.
1. Resignation from Employment. You hereby resign your employment with
JWA, including your duties as an Executive Officer, effective March 9, 1999.
Your resignation from all positions with JWA, and each of its divisions and
subsidiaries, including positions as an officer and director, and as a member of
any committee or administrative body relating to JWA and its businesses, is
effective as of such date. You will provide JWA with such written resignations
as JWA may request.
Compensation Following Termination Date. 2. Commencing as of the eighth
day after your execution of this letter agreement, provided there is no
intervening revocation of the release given in paragraph 6 (referred to in this
letter agreement as the "Effective Date"), JWA will pay to you monthly
separation payments in the amount of Forty-three Thousand Eight Hundred
Thirty-three Dollars and 33/100s ($43,833.33), reduced by applicable payroll and
withholding taxes, for twelve (12) consecutive monthly pay periods. The period
from the Effective Date to the end of the twelfth consecutive pay period
thereafter is referred to in this letter agreement as the "Severance Payment
Period." The aggregate gross amount of all such payments shall be Five Hundred
Twenty-six Thousand Dollars ($526,000.00). JWA will initiate separation payments
within five (5) business days of the beginning of the Severance Payment Period.
(b) JWA shall make outplacement services available, without charge to
you, through Right/Xxxxxxxx Xxxx during the Severance Payment Period.
3. Benefit Benefits. (a) Your group employee medical coverage may
continue during the Severance Payment Period provided you make a timely coverage
continuation election pursuant to Internal Revenue Code Section 4980B and
Sections 601-
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March 9, 1999
Page 2
608 of the Employee Retirement Income Security Act of 1974 as amended ("COBRA
continuation rights") following your resignation. You must pay active employee
costs for any continued medical benefits during the Severance Payment Period and
full COBRA continuation rights costs thereafter while medical benefits are
continued pursuant to your COBRA continuation rights election. Your group life
and disability benefits will end on your resignation date, and conversion
rights, if any, under those programs are then available for the periods
prescribed under each program.
(b) Your participation in the Flexible Perquisite Spending Account
program will terminate on your resignation date. You will be reimbursed for
qualified expenses incurred as of your resignation date.
(c) This letter agreement does not affect your rights to vested benefits
under JWA's 401(k)/deferred profit sharing plan. You are, however, not eligible
for any deferred profit sharing (retirement contribution) that will be paid to
JWA employees for the fiscal year ending in 1999. In lieu of the amount that
would otherwise have been contributed to your account for such fiscal year JWA
will pay to you additional severance compensation equal to such amount in the
month following the month such amount is finally determined. This payment of
additional severance compensation is specifically identified as consideration
for the release provided by you under paragraph 6.
4. JWA Restricted Stock and Stock Options. (a) You are now vested in One
Thousand Six Hundred Sixty-seven (1,667) shares of the Two Thousand Five Hundred
(2,500) shares of restricted stock granted to you on January 1, 1997.
Immediately following the Effective Date JWA will arrange for the transfer agent
to issue to you a certificate without the restrictive legend for such shares.
You shall also be deemed to be fully vested in the remaining Eight Hundred
Thirty-three (833) shares of that restricted stock grant on the Effective Date.
JWA will, immediately following such date, arrange for the transfer agent to
issue to you a certificate for such shares without the restrictive legend. You
are responsible for compliance with all securities laws, including those
regarding xxxxxxx xxxxxxx, with regard to any JWA stock transactions.
(b) You are two-thirds (2/3) vested in Seventy-five Thousand (75,000)
shares of the stock option grant awarded to you under the 1994 Long-Term
Incentive Plan on December 21, 1996, which plan is incorporated herein by this
reference; you are one-third (1/3) vested in Twenty-five Thousand (25,000)
shares of the stock option grant awarded to you under that plan on December 18,
1997; and you are not vested in any of the Fifteen Thousand (15,000) shares of
the stock option grant awarded to you under that plan on December 16, 1998. Your
vested stock options are exercisable in accordance with the terms of the
Long-Term Incentive Plan and must be exercised no later than the close of
business on the thirtieth day following your resignation date. Your nonvested
stock options are forfeited and canceled as of your resignation date.
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March 9, 1999
Page 3
5. Noncompetition, Confidentiality, Etc. (a) The Management Employee
Agreement entered into between you and JWA is incorporated herein by this
reference as a part of this letter agreement and shall remain in effect
according to its terms and conditions, subject to the following regarding its
restrictions against competition with JWA. It is mutually agreed between you and
JWA that the term "JWA Competitor," as used in your Management Employee
Agreement, means businesses that manufacture and/or distribute wholesale small
motor or non-motor personal water craft and leisure boats, electric motors for
water craft, personal or commercial tents, personal scuba diving equipment,
fishing rods, reels, and line, and camping equipment in North America, Europe,
Asia, or Australia.
(b) You further agree to reasonably cooperate with JWA, its financial and
legal advisors and/or government officials, in any claims, investigations,
administrative proceedings including without limitation environmental
proceedings, lawsuits, and other legal, internal or business matters, as
reasonably requested by JWA during the Restricted Period and for two (2) years
thereafter. You will be paid One Thousand Dollars ($1,000) (in addition to any
other amounts to which you may be entitled hereunder) for each day on which such
service is performed at the request of JWA and, to the extent you incur travel
or other expenses with respect to such activities, JWA will reimburse you for
such reasonable expenses when submitted according to regular corporate
procedures.
6. Release and Covenants. (a) In consideration of the payments and
benefits provided hereunder, particularly the additional compensation described
in paragraphs 2 and 3, you, on behalf of yourself, your spouse, heirs,
executors, administrators, agents, successors, assigns and representatives of
any kind (hereinafter collectively referred to as the "Releasors") confirm that
Releasors have released JWA, and each of its subsidiaries, affiliates, their
employees, successors, assigns, executors, trustees, directors, advisors, agents
and representatives, and all their respective predecessors and successors
(hereinafter collectively referred to as the "Releasees"), from any and all
actions, causes of actions, charges, debts, liabilities, accounts, demands,
damages and claims of any kind whatsoever including, but not limited to, those
arising under any labor, employment discrimination (including, without
limitation, the Age Discrimination in Employment Act of 1967, as amended, Title
VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities
Act, the Wisconsin Fair Employment Act, as amended), contract or tort laws,
equity or public policy, or negligence standard, whether certain or speculative,
which against any of the Releasees, any of the Releasors ever had, now has, or
hereafter shall have or can have. You further covenant that you will not
initiate any action, claim or proceeding against any of the Releasees for any of
the foregoing, nor will you participate, assist, or cooperate in any such
action, claim, or proceeding unless required to do so by law.
(b) Notwithstanding the foregoing, this letter agreement does not waive
rights, if any, you or your successors and assigns may have under or pursuant
to, or release any member of Releasees from obligations, if any, it may have to
you or to your successors
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March 9, 1999
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and assigns on claims arising out of, related to or asserted under or pursuant
to, this letter agreement or any indemnity agreement or obligation contained in
or adopted or acquired pursuant to any provision of the charter or by-laws of
JWA or its subsidiaries or affiliates or in any applicable insurance policy
carried by JWA or its affiliates for any matter which arises or may arise in the
future in connection with your employment with JWA.
(c) You hereby acknowledge that you have at least twenty-one (21) days to
review this letter agreement from the date you first receive it and you have
been advised to review it with an attorney of your choice. You further
understand that the twenty-one (21) day review period ends when you sign this
agreement. You also have seven (7) days after your signing of this agreement to
revoke the grant of this release by so notifying JWA in writing. Any revocation
by you under this paragraph 6(c), however, is not effective with regard to
paragraph 1 hereof and your termination of employment with JWA shall remain in
effect as set forth therein. You further acknowledge that you have carefully
read this letter agreement, know and understand the contents thereof and its
binding legal effect. You sign the same of your own free will and act, and it is
your intention that you be legally bound thereby.
(d) You agree to keep this letter agreement confidential and not to
reveal its contents to anyone other than your attorney, financial consultant,
tax auditor, and immediate family members. The provisions of this paragraph 6(d)
shall not apply to any truthful statement required to be made by you in any
legal proceeding or government or regulatory investigation, provided, however,
that prior to making such statement you will give JWA reasonable notice and, to
the extent you are legally entitled to do so, afford JWA the ability to seek a
confidentiality order.
7. Noncompliance. The additional payments and benefits provided to you
pursuant to paragraphs 2, 3(c), and 4(a) are conditioned upon your compliance
with all of the terms and conditions of this letter agreement, particularly
paragraphs 4, 5, and 6. Each of the aforementioned provisions are material terms
of this letter agreement, and in the event of any violation of any such
provision of this letter agreement by you or anyone acting at your direction or
in the event you or anyone acting at your direction at any time shall
substantially denigrate any of the Releasees, including without limitation by
way of news media or the expression to news media of personal views, opinions or
judgments, JWA shall be entitled to withhold and terminate all aforementioned
payments provided or to be provided in paragraphs 2, 3(c), and 4(a), and you
agree to repay to JWA all payments paid to you pursuant to such paragraphs
and/or JWA shall be entitled to recover any of the amounts paid to you pursuant
to such paragraphs without waiving the right to pursue any other available legal
or equitable remedies.
8. Tax Payments, Withholding and Reporting. You recognize that the
payments and benefits provided under this letter agreement including without
limitation those provided pursuant to paragraphs 2 and 3(c) may result in
taxable income to you which JWA and its affiliates will report to their
appropriate taxing authorities. JWA and its affiliates
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March 9, 1999
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shall have the right to deduct from any payment made under this letter agreement
to you any federal, state, local or other income, employment or other taxes it
determines are required by law to be withheld with respect to such payments or
benefits provided hereunder or to require payment from you which you agree to
pay upon demand, for the purpose of satisfying any such withholding requirement.
9. Severability In the event any one or more of the provisions of this
letter agreement (or any part thereof) shall for any reason be held to be
invalid, illegal or unenforceable, the remaining provisions of this letter
agreement (or part thereof) shall be unimpaired, and the invalid, illegal or
unenforceable provision (or part thereof) shall be replaced by a provision (or
part thereof), which, being valid, legal and enforceable, comes closest to the
intention of the parties underlying the invalid, illegal or unenforceable
provisions. However, in the event that any such provision of this letter
agreement (or part thereof) is adjudged by a court of competent jurisdiction to
be invalid, illegal or unenforceable, but that the other provisions (or part
thereof) are adjudged to be valid, legal and enforceable if such invalid,
illegal or unenforceable provision (or part thereof) were deleted or modified,
then this letter agreement shall apply with only such deletions or
modifications, or both, as the case may be, as are necessary to permit the
remaining separate provisions (or part thereof) to be valid, legal and
enforceable.
10. Indemnification. JWA shall indemnify you and your successors and
assigns against all Liabilities (as now defined in JWA's bylaws) incurred by you
or on your behalf in connection with any Proceeding (as now defined in JWA's
bylaws) in which you are a Party (as now defined in JWA's bylaws) because you
were a director or officer of JWA, to the fullest extent permitted or required
by the Wisconsin Business Corporation Law, notwithstanding any amendment that
may hereafter be made to the charter or bylaws of JWA.
11. Other Provisions. All the terms of our agreement are embodied in this
letter agreement, which incorporates by reference your Management Employee
Agreement and the Xxxxxxx Worldwide Associates, Inc. 1994 Long-Term Stock
Incentive Plan, and it fully supersedes any and all prior agreements or
understandings between you and any Releasee. This letter agreement shall be
governed by the substantive laws of the State of Wisconsin without regard to its
conflict of laws provisions. The parties agree that any proceeding to resolve
any dispute arising hereunder will be brought only in the courts of the State of
Wisconsin or in the courts of the United States of America for the Eastern
District of Wisconsin, and that each party irrevocably submits to such
jurisdiction, and hereby waives any and all objections as to venue, inconvenient
forum and the like. It is the intention of the parties hereto, however, that to
the extent practicable, the parties will endeavor to settle any dispute arising
hereunder first through the process of non-binding mediation to be conducted in
Milwaukee, Wisconsin. This agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, legal representatives,
successors and assigns.
Xx. Xxx Xxxxxxxx
March 9, 1999
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If you find that the foregoing satisfactorily states our mutual
understanding, please sign and date the enclosed copy of this letter agreement
in the spaces indicated below and return it to me.
Sincerely yours,
XXXXXXX WORLDWIDE ASSOCIATES, INC.
By /s/ Xxxxxx X. Xxxx, Xx.
Xxxxxx X. Xxxx, Xx., Compensation
Committee Chairman
Agreed and Accepted this 9th day of March, 1999.
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
