CONSULTING AND RELEASE AGREEMENT
Exhibit 10.1
THIS CONSULTING AGREEMENT (“Agreement”) is made and entered into by and between the
undersigned Neenah Enterprises, Inc. and its related entities (“Company”) and the undersigned, Xxxx
Xxxxxxx, as an individual (“Consultant” or “Xxxxxxx”).
WHEREAS, Xxxxxxx will be retiring as the Corporate Vice President of Manufacturing of the
Company on May 1, 2010; and
WHEREAS, the Company and Consultant wish to enter into an agreement which provides for an
orderly and amicable ending of the employment relationship; and
WHEREAS, the Company desires thereafter to retain the services of Xxxxxxx for a period of time
as a consultant in order to provide transitional assistance to the Company regarding
responsibilities previously performed by Xxxxxxx in his role of Corporate Vice President and to
further provide consultative efforts to the Company for the purposes of furthering and developing
the business; and
WHEREAS, Xxxxxxx is desirous of entering into such an arrangement,
NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the
parties mutually agree as follows:
1. PERFORMANCE BY CONSULTANT:
A. AVAILABILITY: Consultant agrees to provide consultative services to the Company during
the term of this Agreement. The specific schedule of availability and the compensation
arrangements associated with same are outlined in 2. below (Compensation).
B. REPORTING: The Consultant shall report directly to the president of the Company, Xxxxxx
Xxxxxxxxx or his designee.
2. COMPENSATION:
The Consultant will be paid $11,126.25 per month during the term of this Agreement in addition
to any supplemental daily fees as defined below.
In exchange for this payment of $133,515.00, the Consultant agrees to provide ten (10) days of
consultative onsite services to the Company per month of this Agreement. If the Consultant is
required to spend more than ten (10) days in any one month in order to provide consultative
services, the Consultant shall be paid for each supplemental additional day the sum of $1,335.15.
The Company will additionally reimburse the Consultant for all necessary expenses associated
with the performance of his duties including lodging, meals and travel if same is required to
provide said services.
The Consultant agrees to provide the Company with a reasonable itemization including receipts
if requested to substantiate all business related expenses.
3. TAXES:
(a) | Income Taxes. Consultant shall pay all taxes and fees (including penalties and interest) imposed by any Federal, Provincial, State or local government on account of the receipt of income by Consultant for Services rendered under this Agreement. Company shall, as required by law, provide Consultant with IRS Form 1099 (US). |
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(b) | Insurance and Indemnification. The Company hereby agrees to ensure and to indemnify and hold harmless the Consultant from any and all claims and causes of action arising out of the performance of his duties for the Company as a Consultant to the same extent that it ensures and indemnifies its officers and directors. |
The Consultant shall be provided authorization to continue to use the Company gas
credit card to provide payment for automobile expenses including fuel.
The Company further agrees that at option of the Consultant it shall, upon expiration
of the Consulting Agreement, transfer title to the corporate vehicle that has been assigned
to him to utilize during the term of the Consulting Agreement consistent with the Corporate
policy that applies to transferring such vehicles to executives.
4. TERM OF AGREEMENT:
The term of this Agreement shall be for one (1) year commencing upon May 1, 2010 and expiring
April 30, 2011.
5. REASONABLE EFFORTS:
Consultant shall perform Services and consultative efforts in compliance with all applicable
laws and regulations and further shall make every reasonable effort to perform Services hereunder
in a prompt, competent and diligent manner consistent with Company’s standards.
6. PROPRIETARY RIGHTS:
Consultant agrees that all information, discoveries, inventions, improvements, strategies or
overall business plan concepts arising from the services Consultant provides herein under this
Agreement, shall be the sole property of the Company.
7. ENTIRE AGREEMENT:
This Agreement sets forth the entire agreement between the parties hereto with respect to the
consulting relationship. This Agreement may not be changed orally, but only by an agreement in
writing signed by the parties hereto. Nothing in this Agreement is intended to, nor shall it be
construed as affecting, any right, interest or benefit that Xxxxxxx is entitled to as a result of
his employment with the Company and/or his retirement from the Company on May 1, 2010. Nor is
anything herein intended to supersede or impair any right, interest or benefit of Xxxxxxx under his
employment agreement with the Company dated October 8, 2003 and as amended thereafter, including,
but not limited to Andrew’s right to continued pay or severance in the event of a change of
control.
8. GOVERNING LAW:
This Agreement shall be governed for all purposes by the laws of the State of Wisconsin. If
any provision of this Agreement is declared void, such provision shall be deemed severed from this
Agreement which shall otherwise remain in full force and effect. Proper venue for any actions
arising out of the breach of this Agreement shall be in a court of competent jurisdiction within
Outagamie County, State of Wisconsin.
9. AGREEMENT:
The Consultant, by his signature hereto, confirms the following:
(a) the Consultant has an employer identification number and/or social security number.
(b) the Consultant by this Agreement will perform specific services for specific amounts of
money under which Consultant controls the means of the performance of services work.
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(c) the Consultant will receive compensation for work or services performed under this
contract.
10. RENEWAL:
This Agreement upon its expiration may be renewed upon terms mutually agreeable to the parties
providing same is reduced to writing and signed by the parties hereto.
11. CONFIDENTIALITY:
During the course of providing services, it is possible that the Consultant will obtain
information that is considered to be confidential and proprietary information of the Company. Such
information may include, but is not limited to, compositions, specifications, formula, designs,
manufacturing processes, programs, systems, products, patent applications, marketing, business and
other commercial information. Consultant agrees to maintain as confidential all confidential
information received or obtained as a result of the services provided for a period of five (5)
years from the date on which the Consultant’s services are terminated. At no time shall such
confidential information be disclosed to any third party without the prior written consent of the
Company.
12. NON-COMPETITION:
The Consultant hereby agrees that during the term of his Consultant relationship and for a
period of one (1) year upon the cessation of said relationship, the Consultant shall not directly
or indirectly, work as an employee or a consultant on behalf of a competitor of the Company, in a
capacity wherein he would provide any comparable consultative services to the competitor that he
provided to the Company during the period of the Consultant relationship.
This provision relating to non-competition is not designed to prevent the Consultant from
becoming employed or providing services to a competitor so long as said employment or consultative
effort does not result in the Consultant providing the same or similar services to the competitor
that he provided to the Company during the period of his Consultant relationship with the Company.
Furthermore, this restriction on employment is limited geographically only to those
competitors who are compete within the continental United States and who have competed during the
period of the consulting agreement or during the three (3) year period prior to the execution of
this Agreement.
13. MUTUAL RELEASE OF ALL CLAIMS:
Subject only to the performance by the Company of its promises in this Agreement, the Employee
hereby releases the Company, its officers, directors, agents, members, employees, owners,
shareholders, attorneys and its affiliates (as described above), predecessors, successors, assigns
and all persons acting by, through, under, or in concert with them (the “Released Parties”) from
any and all charges, claims, demands, damages or causes of action whatsoever which the Employee
has, had or might have been able to assert or claim, based on any act, omission or conduct of any
kind on the part of the Released Parties from the inception of any relationships or dealing between
the Employee and any of the Released Parties up through the execution date of this Agreement
including without limitation any and all claims arising under federal, state, or local laws; Title
VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq.); Age Discrimination in Employment
Act of 1967 (29 U.S.C. §621 et seq.); Employee Retirement Income Security Act of 1974 (29 X.X.X.
§0000 et seq.); the Rehabilitation Act of 1973 (29 U.S.C. §791 et seq.); the Americans With
Disabilities Act (42 U.S.C. §12112 et seq.); the Wisconsin Fair Employment Act, all as amended;
refusal to rehire claims and safe place claims under the Wisconsin Workers Compensation Act, as
amended; Older Worker Benefit Protection Act; or under any other applicable federal, state or local
laws or regulations (which claims, if proven, provide for remedies that may include back pay, front
pay, liquidated damages, attorney’s fees and reinstatement); any claims for wrongful discharge or
termination of employment whether arising under a tort, contract, promissory estoppel or statutory
basis or any other legal or equitable theory; or any claims in any way arising directly or
indirectly out of the Employee’s services for the Company, whether as an officer or an employee,
under federal law or any state law including Wisconsin law or any other applicable law. The
Company likewise releases the Consultant from any and all claims which have arisen to date.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the 14th day of
September, 2009.
Neenah Enterprises, Inc. | ||||
By
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/s/ Xxxxxx Xxxxxxxxx | |||
Xxxxxx Xxxxxxxxx | ||||
President | ||||
Consultant | ||||
/s/ Xxxx Xxxxxxx | ||||
Name:
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Xxxx Xxxxxxx |
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