EXHIBIT 10.8
AGREEMENT
THIS AGREEMENT made this 12th day of September, 1995, by and
between BANDAG, INCORPORATED, an Iowa Corporation, ("Bandag") and XXXXXXX
X. XXXX ("Herd").
WHEREAS, Herd has been employed by Bandag in a senior executive
capacity for a number of years; and
WHEREAS, the parties hereto desire to cease this relationship
under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
following mutual agreements, it is agreed between the parties hereto as
follows:
1. Herd agrees to consult with an attorney prior to signing
this agreement and shall have twenty-one (21) days within which to
consider this agreement. If this agreement is signed by Herd, he may
revoke this agreement within seven (7) days following signing of this
agreement by Bandag and this agreement will become effective and
enforceable on, but not before, the date on which the seven-(7)-day
revocation period has expired.
2. Herd has voluntarily resigned as an officer and employee of
Bandag effective September 1, 1995.
3. Bandag agrees to pay Herd twelve (12) payments of
$103,750.00 each, subject to withholding of applicable federal and state
taxes. Herd acknowledges receipt from Bandag on September 8, 1995, of the
amount of $207,500.00 as an interest free loan due for repayment in full
on January 1, 1996. Effective January 1, 1996, Bandag shall accelerate
the first four (4) of the above-mentioned twelve (12) payments. Herd
irrevocably authorizes and directs that $207,500.00 of the net after tax
amount shall be retained by Bandag in full repayment of the above loan and
the balance of the net after tax amount shall be remitted to Herd. The
remaining eight (8) payments shall be paid on a quarterly basis commencing
April 1, 1996 and ending January 1, 1998.
4. Bandag shall retain an outplacement agency (selected by
Herd) and pay the reasonable cost thereof through September 1, 1996.
5. Bandag shall provide or reimburse Herd for the reasonable
and necessary costs of telephone and secretarial services associated with
his employment search prior to September 1, 1996.
6. Herd and his eligible dependents shall continue to receive
medical and dental insurance benefits under the group plan of Bandag until
his qualification for immediate coverage under the plan of another
employer or September 1, 1998, whichever first occurs. Bandag agrees to
waive COBRA premiums but shall not be responsible for any taxes on
payments to Herd or his dependents other than withholding required under
federal or state tax laws.
7. Subject to the performance by Bandag of its obligations
under this agreement, Herd agrees as to Bandag and all corporations,
divisions, subsidiaries, parent organizations, directors, officers,
shareholders, employees, agents, consultants, predecessors, successors,
assigns, heirs or other entities or persons that are now, have been, or
may in the future be directly or indirectly related to or affiliated with
Bandag in any way (the "Releasees") that he unconditionally releases,
discharges, waives and promises not to xxx with respect to all claims,
demands, actions, causes of action, rights, obligations, liabilities,
damages or losses or any kind, known or unknown, fixed or contingent
("Claims"), that he may have or subsequently claim to have against the
Releasees or any one of them relating to his employment with Bandag or his
separation from that employment, which released Claims include but are not
limited to all Claims arising under any constitution, law, statute,
ordinance, regulations, rule, guideline or common-law theory, and
specifically all claims arising under all employment, discrimination, or
wrongful discharge laws, regulations, or common-law theories, including
but not limited to the Age Discrimination in Employment Act of 1967, the
Iowa Statutes, the Employment Income Retirement Security Act of 1974, the
Civil Rights Act of 1866, the Civil Rights Act of 1964, the Civil Rights
Act of 1991, and the Americans with Disabilities Act of 1990 (all as
amended from time to time). He agrees that he cannot and will not bring
any lawsuit or charges on his behalf, whether civil, criminal, or
administrative, against the Releasees or any one of them with respect to
such released Claims, and that he unconditionally releases, discharges,
waives, and gives up his right to accept any relief obtained by any other
party on his behalf with respect to such released Claims.
8. Herd agrees that in the event that Bandag becomes involved
in any legal or administrative claims or other proceedings relating to
events that occurred during his employment and as to which he might in the
opinion of Bandag have personal knowledge, he will cooperate to the
fullest extent possible in the preparation and presentation by Bandag of
its prosecution or defense, including but not limited to the signing of
affidavits or other documents providing information requested by Bandag.
9. Herd agrees that he will not attempt to cause or induce any
employees to leave their employment with Bandag or otherwise interfere
with their employment for a period of two (2) years. He agrees that he
will not at any time speak or act in any manner that is intended to or
does damage to the goodwill or the business or personal reputations of the
Releasees or any one of them, and that he will not engage in any other
conduct or communications that disparages the Releasees or any one of
them.
10. Herd agrees that he will treat as the confidential property
of Bandag and will not disclose or use any information or knowledge
obtained or developed by him during his employment with Bandag which is
not in the public domain and which consists of or related to Bandag's
products, inventions, discoveries, processes, techniques, formulas,
substances, designs, patterns, improvements, plans, projects, programs,
research, test results, writings, notes, patents, copyrights, trademarks,
know-how, trade secrets, customer and supplier lists, or business,
financial, marketing, sales, pricing, engineering, manufacturing, or other
operational matters and plans.
11. Herd agrees to keep all matters concerning this agreement,
including but not limited to the circumstances and contents of this
agreement, completely confidential, except as may be otherwise
specifically authorized in writing by Bandag.
12. Herd agrees to deliver to Bandag all information in any
recorded or retrievable form, records, documents, drawings, materials,
equipment, and other items belonging to Bandag which are in his possession
or control.
13. Subject to the performance by Herd of his obligations under
this agreement, Bandag unconditionally releases, discharges, waives, and
promises not to xxx with respect to all claims, demands, actions, causes
of action, rights, obligations, liabilities, damages, or losses of any
kind, known or unknown, fixed or contingent that Bandag may have or
subsequently claim to have against Herd relating to his employment with
Bandag or his separation from that employment.
14. Bandag and Herd agree that all vested benefits accrued
under qualified benefit plans sponsored by Bandag are payable in
accordance with the terms of such plans on the basis of his resignation
and severance of employment effective September 1, 1995. Herd agrees that
neither the payments under this agreement nor the term thereof shall be
considered as employment or service beyond September 1, 1995 for purposes
of benefits provided by Bandag to any of its employees. In this regard
Herd expressly acknowledges that by virtue of Paragraph 5(e) of the
Bandag, Incorporated Restricted Stock Grant Plan he shall forfeit all
shares of Restricted Stock and any undistributed dividends thereon being
held by the nominee of the Committee administering said Plan as of
September 1, 1995 and shall have no other rights under the Plan.
15. Herd agrees that he shall not, prior to August 31, 1998
(without express written consent of Bandag), engage directly or
indirectly, whether as an employee, consultant or independent contractor,
alone or in conjunction with others in any tire retreading venture, or in
the manufacture, sale, or distribution of any machinery, equipment or
product relating thereto, which is in competition with the process,
products or retreading system, of Bandag. This covenant not to compete
shall extend to any geographical area within North America or Western
Europe in which the products of Bandag or any Bandag affiliate are
manufactured or marketed into any customers or markets of Bandag or any
Bandag affiliates which now exist. The parties agree that the
aforementioned covenant not to compete shall be subject to specific
performance in any jurisdiction selected by Bandag in which it conducts
business.
16. This agreement constitutes the entire agreement between the
parties and shall be binding upon the successors and assigns of the
parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this
agreement as of the day and year first above written.
/s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx
BANDAG, INCORPORATED
By:
/s/ Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxxx, Secretary
Xxxxxxx X. Xxxx
Xxxxxxxxx Payments
12-Sep-95 Loan $207,500
01-Jan-96 Loan Repayment (207,500)
01-Jan-96 4 415,000*
01-Apr-96 1 103,750*
01-Jul-96 1 103,750*
01-Oct-96 1 103,750*
01-Jan-97 1 103,750*
01-Apr-97 1 103,750*
01-Jul-97 1 103,750*
01-Oct-97 1 103,750*
01-Jan-98 1 103,750*
Total $1,245,000*
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* Subject to Tax Withholding
