EXHIBIT 10.1


 


SEVERANCE
AGREEMENT AND RELEASE


 


This Severance
Agreement and Release (the “Agreement”) is made by and between Franklin Foster
(“Mr. Foster”) and Marten Transport Ltd. (“Marten”) (Mr. Foster and
Marten are collectively referred to as the “Parties” in this Agreement).


 


RECITALS


 


WHEREAS, Mr. Foster is employed by
Marten as Marten’s Vice President of Finance;


 


WHEREAS, Marten has decided to eliminate the
position of Vice President of Finance;


 


WHEREAS, the
Parties now desire to end their employment relationship on terms that are
amicable and final;


 


NOW, THEREFORE, in exchange for the mutual
promises and consideration specified in this Agreement, the sufficiency of
which is hereby acknowledged, the Parties agree as follows.


 


AGREEMENT


 


1.              Termination of
Employment. The parties agree that Mr. Foster’s employment with Marten
is terminated effective February 9, 2006.


 


2.              Payment. Upon
the execution of this Agreement, Marten shall be obligated to make a severance
payment for the benefit of Mr. Foster of $126,153.75 (representing six
months pay at full salary ($79,576.50), plus six months pay at half salary,
($39,788.25)). Marten Transport Ltd. shall also make a one time payment to Mr. Foster
in the amount of $6,789.00, representing six months of Marten’s contribution toward
Mr. Foster’s group health insurance premium plus an additional six months
contribution toward Mr. Foster’s group health insurance premium at half
the current rate. In addition Marten will assist in job placement services with
an amount of $2,000.00 all payable upon expiration of the revocation period set
forth below. The incentive payment in the amount of $39,476.00 awarded by
Marten’s compensation committee pursuant to the company’s 2005 incentive plan will
be paid upon execution of agreement.


 


All of these payments are made in lieu of
wages and therefore will be subject to withholding of state income taxes,
federal income taxes, and FICA at the rates and in the amounts required by law.


 


3.              Release. Mr. Foster hereby
releases and discharges Marten, any entity affiliated with Marten, and their
respective officers, directors, employees, agents, attorneys, successors, and
assigns (“Released Parties”), from all claims, causes of action, debts,
demands, suits, covenants, contracts, agreements, promises, omissions, and
damages and liabilities of any kind, nature and description whatsoever, whether
known or unknown, which Mr. Foster now has or may have, through the date
of his execution of this Agreement, under federal, state, or local law, ordinance,
rule, statute or regulation, including but not limited to the Age
Discrimination in Employment Act (ADEA), the Older Workers Benefits Protection
Act (OWBPA), the Wisconsin Fair Employment Act (WFEA), the Americans with
Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, the Family
Medical leave Act, the Employee Retirement Income Security Act of 1978, and to
all common law and other claims which he may have as of the date of this
Agreement, whether legal or equitable.


 

















 


This release includes all claims pertaining
to Mr. Foster’s employment relationship with Marten with the following
exceptions as required by law: claims for unemployment insurance benefits,
claims for workers compensation benefits, vested post-termination benefits under
any 401(k) or similar retirement benefit plan, COBRA benefits, the right to
enforce the terms of this Release or to challenge the knowing and voluntary
nature of this Release under the ADEA and OWBPA, the right to assert claims
that are based on events that happened after this Release becomes effective, and
his right to exercise vested stock options covering 8438 shares of common stock
for a period of 90 days after the effective employment termination date under
stock options granted prior termination of employment. Mr. Foster agrees
that Marten reserves any and all defenses which it has or might have against
any claims that he might bring. Nothing in this Release interferes with Mr. Foster’s
right to file a charge with the Equal Employment Opportunity Commission (“EEOC”),
or other local civil rights enforcement agency, or to participate in an EEOC
investigation or proceeding, but he understands and agrees that in this
release, he has waived his right to recover any individual relief or monetary
damages as a result of any filing of such charge.


 


4.               Non-Admission of Liability. This Agreement shall not in any
way be construed as an admission by Marten or any person or entity affiliated
with Marten of any liability or any wrong-doing with respect to Mr. Foster.


 


5.               Non-disparagement. Mr. Foster
agrees that he shall not make, to any person or entity, any disparaging
statement, either orally or in writing, about Marten, any entity affiliated
with Marten, and any present or former employee, officer, or director of Marten
or any entity affiliated with Marten, nor shall Mr. Foster cause any other
person to make any such disparaging statement. Marten agrees that its officers
and directors shall not make any disparaging statement about Mr. Foster or
his former employment with Marten.


 


6.               Agreement Not to Seek Reemployment. Mr. Foster understands and agrees that his employment with
Marten shall be terminated effective February 9, 2006, that he is not now
an employee of Marten, and that he is not entitled to any reinstatement or
reemployment with Marten following his termination date. Mr. Foster
further agrees that he will not in the future seek any employment with Marten
or any entity affiliated with Marten, and that Marten may use this
agreement as the sole reason to reject any inquiry or application for
employment Mr. Foster may make.


 


7.               Covenant Not to Sue. Mr. Foster
understands and agrees that this Agreement prohibits him from initiating
or continuing any lawsuit against the Released Parties for any claim released in
paragraph 3 above, and prohibits him from recovering any amounts or obtaining
any remedy for any claim released in paragraph 3 above through an action or
proceeding brought by others. Mr. Foster understands that this covenant
not to sue does not apply to challenges to the validity of this Severance
Agreement and Release under the OWBPA. Mr. Foster represents that he has
not filed any complaints, charges, or lawsuits of any kind or nature with any
governmental agency or court related to the Released Parties. Mr. Foster
further represents and warrants that he has not assigned any claims or
authorized any other person or entity to assert any claim on his behalf against
any Released Party.


 


8.               Letter of Reference. Marten will execute a Letter of
Reference in the form attached hereto as “Exhibit A.”


 


9.               Non-admissibility. The Parties agree that this Agreement is
made in furtherance of federal and state law and that, in furtherance of public
policy and by agreement, this Agreement is not


 

















 


admissible in evidence and will not be
offered as evidence in any proceeding except to enforce the terms of this
Agreement.


 


10.         Consulting an Attorney. Mr. Foster
understands that he should consult an attorney of his own choice about this
Agreement or any matter that it covers before signing this Agreement.


 


11.         Representations. By signing this Agreement Mr. Foster
represents that he has read this entire Agreement and understands all of its
terms. Mr. Foster further represents that he is of legal age and has full
legal authority to release any and all claims as specified herein and to
undertake all other obligations as specified herein. Mr. Foster warrants
that no promise or inducement has been offered to him except as set forth
herein, and that this Agreement is executed without reliance upon any statement
or representation by Marten or any of the other Released Parties.


 


12.         Twenty-One Day Consideration Period. Mr. Foster
represents and agrees that prior to the execution of this Agreement he was
fully advised to consult with an attorney to discuss all aspects of this
Agreement, and that to the extent desired, he has availed himself of that
right. Mr. Foster further represents and agrees that he has been given a
period of at least twenty-one (21) days to consider this Agreement and to the
extent he has executed this Agreement prior to the expiration of that period,
he has done so knowingly and voluntarily. He further represents and agrees that
he has read this Agreement carefully and fully understands all the provisions
of this Agreement and that he has knowingly and voluntarily entered into this
Agreement.


 


13.         Rescission Period. Mr. Foster
understands that he may revoke or rescind this Agreement within seven (7) calendar
days after signing it. To be effective, the revocation or rescission must be in
writing and delivered to Susan Deetz, Marten Transport Ltd., 129 Marten Street,
Mondovi, WI 54755, facsimile (800) 461-0377, either by hand or by facsimile,
within the seven-day rescission period.


 


14.         Effective Date. This Agreement shall become
effective as of the date Mr. Foster executes this Agreement and returns it
to Susan Deetz, Marten Transport Ltd., 129 Marten Street, Mondovi, WI 54755,
facsimile (800) 461-0377, either by hand or by facsimile, however, Martens’
obligations under paragraph 1 shall not become effective until seven (7) days
after Mr. Foster executes this Agreement, Martens’ obligations under
paragraph 1 also will not become effective if Mr. Foster exercises his
revocation or rescission rights under Paragraph 14.


 


15.         Entire
Agreement. The Parties understand and agree that this Agreement
contains the entire agreement between them relating to the claims referenced in
this Agreement, and that this Agreement supersedes any prior agreements and
discussions relating to such matters.


 


16.       Successors and Assigns. Mr. Foster agrees that his promises in
this Agreement benefit Marten and also any successor or assignee of
Marten’s business or operations. Marten agrees that its promises in this
Agreement shall be binding on any successor or assignee of Marten’s business or
operations.


 


17.         Final and
Binding Effect and Voluntary Agreement. In entering into this
Agreement, the Parties expressly state that they have carefully read and fully
understand the terms of this Agreement, that they enter into this Agreement
knowingly, voluntarily and of their own free will. The Parties understand that
this Agreement will have a final and binding effect and that by executing this
Agreement they may be giving up legal rights. The Parties further state
that their


 

















 


willingness to enter into this Agreement was
not induced by, or based upon, any representation by any other Party hereto, or
their agents or employees which is not contained in this Agreement.


 


18.         Dispute
resolution. In the event that any dispute related to this Agreement
arises between the Parties, the Parties agree to confer and attempt to resolve
such disputes for a period of thirty days before seeking any further relief. In
the event that a dispute is not resolved through such negotiations, any action
bought by either Party to enforce this Agreement shall be subject to binding
arbitration in Wisconsin before the American Arbitration Association under its
rules. The Parties agree that the arbitration award is fully enforceable.


 


19.         Severability.
The Parties understand and agree that the provisions of this
Agreement shall be deemed severable, and that the invalidity or
unenforceability of any one or more of the provisions or clauses hereof shall
not affect the validity or enforceability or the other provisions or clauses in
this Agreement.


 


20.         Modification.
This Agreement shall not be deemed or construed to have been
modified, amended, rescinded, canceled or waived, in whole or part, except by a
written instrument signed by each Party.


 


21.         Authority. Marten
represents and warrants that the person executing this Agreement on behalf of
Marten has the full power and authority to enter into Agreement and bind Marten
to this Agreement. Mr. Foster represents and warrants that he has the capacity
to act on his own behalf and on behalf of all who might claim through him to
bind them to the terms and conditions of the Agreement.


 


22.         Interpretation
and Governing law. This Agreement shall be interpreted and governed
under the laws of the State of Wisconsin, without reference to Wisconsin’s
choice of law rules.


 


23.         No
Assignment. Mr. Foster warrants
and represents that he has not heretofore assigned or transferred in any
manner, or purported to assign or transfer in any manner, to any person or entity,
any claim or portion thereof or interest therein that is the subject of this
Agreement.


 


24.         Counterparts.
This Agreement may be executed in counterparts, each of which
shall be deemed an original and said counterparts shall constitute but one and the
same original. All such counterparts may be evidenced by facsimile and
each such facsimile shall be deemed an original, shall be binding upon the
Parties for all purposes herein, and, together with any other counterpart,
shall constitute one and the same instrument.


 


25.         Full and Complete Defense. It is
specifically agreed that in the event of any legal proceeding against Marten
concerning any claim released herein, this Agreement shall serve as a full and
complete defense to any such proceeding.


 


	
   

  	
  Marten Transport Ltd.

  
	
   

  	
   

  
	
    /s/ Franklin Foster

  	
   

  	
    /s/ Robert Smith

  	
   

  
	
  Franklin
  Foster

  	
  Robert
  Smith, Chief Operating Officer

  
	
   

  	
   

  
	
    March 6, 2006

  	
   

  	
    March 6, 2006

  	
   

  
	
  Date

  	
  Date

  



 

















 


EXHIBIT A


 


[EXHIBIT PROVIDED TO SEC
UPON REQUEST]