VOLUNTARY SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit
10.2
VOLUNTARY SEPARATION
AGREEMENT AND GENERAL RELEASE
This Voluntary Separation Agreement and
General Release (the “Agreement and Release”) is made and entered into this
23rd
day of September 2008, by and between Xxxxxxx X. Xxxxxxxx (“Xxxxxxxx”) and
XXXXXXX FURNITURE COMPANY, INC., a Delaware corporation (the
“Company”). The Company and Xxxxxxxx previously entered into an
Employment Agreement (the “Employment Agreement”), attached hereto as Exhibit A,
on or about April 9, 2001. Except as specifically provided herein,
this Agreement and Release supersedes the Employment Agreement. The
Company and Xxxxxxxx have now mutually agreed that it is in the best interest of
both parties that Xxxxxxxx terminate his employment in accordance with the terms
of this Agreement and Release. To assist Xxxxxxxx following his
separation from employment, the Company has offered to provide certain benefits
to Xxxxxxxx, over and above that to which he is presently entitled, in exchange
for his promises and general release contained in this Agreement and
Release. Xxxxxxxx has voluntarily accepted this offer and Xxxxxxxx
and the Company now desire to effect an amicable separation of Xxxxxxxx’x
employment.
THEREFORE, IN CONSIDERATION of the
mutual promises and releases contained in this Agreement and Release, IT IS
AGREED THAT:
1. Termination
Date. Xxxxxxxx hereby resigns as President and Chief Executive
Officer of the Company, and acknowledges his termination as a Company employee,
effective as of September 23, 2008 (the “Termination Date”).
2. Resignation as
Director. Xxxxxxxx agrees to submit his resignation as a
Director of the Company, its affiliates, and/or its subsidiaries, effective as
of Effective Date of this Agreement and Release.
3. Acknowledgement of Adequate
Consideration. Xxxxxxxx agrees and acknowledges that the
compensation and benefits provided under this Agreement and Release are adequate
and sufficient and in excess of what he would otherwise be entitled to receive
from the Company as a result of termination of his employment.
4. Payment to
Xxxxxxxx. The Company shall pay Xxxxxxxx (or his estate) the
gross sum of $1,000,000 (the “Payment”) in one lump sum on the first day of the
seventh month following Xxxxxxxx’x “separation from service” with the Company
within the meaning of Treasury Regulation Section 1.409A-1(h). The
Payment shall be treated as wages for purposes of federal and state taxation and
withholding but shall not be considered as compensation for purposes of any
employee benefit plans sponsored by the Company.
5. COBRA. Eligibility
for health care continuation coverage under the Consolidated Budget
Reconciliation Act of 1985, as amended (“COBRA”), will not be altered by this
Agreement and Release.
6. Confidential
Information. Xxxxxxxx agrees and acknowledges that the
Confidential Information provision of the Employment Agreement (Exhibit A, § 6c)
shall remain in full force and effect. The Company agrees and
acknowledges that the remaining provisions of the Employment Agreement,
including the Non-competition Restriction provision of the Employment Agreement
(Exhibit A, § 6a), do not remain in effect.
7. Non-Solicitation. Xxxxxxxx
agrees and acknowledges that, except with the prior consent in writing of the
Company, for twenty-four (24) months following the Effective Date of this
Agreement and Release, Xxxxxxxx shall not directly or indirectly hire or employ
in any capacity or solicit the employment of or offer employment to or entice
away or in any other manner persuade or attempt to persuade any person (i)
employed by the Company or any of its subsidiaries to leave the employ of any of
them, or (ii) who is an independent sales representative for the Company to
terminate such person's status as an independent sales
representative.
8. Releases. In
exchange and in consideration for the promises, obligations, and agreements of
the Company contained herein, which Xxxxxxxx agrees and acknowledges are
adequate and sufficient consideration, Xxxxxxxx, on behalf of his agents,
representatives, attorneys, assigns, heirs, executors, and administrators,
hereby releases and forever discharges the Company, and all its past and present
parent companies, affiliates, subsidiaries, divisions, officers, members,
employees, partners, directors, shareholders, agents, attorneys,
representatives, predecessors, successors, transferees, and assigns, as well as
all of their past and present directors, shareholders, partners, employees,
members, agents, representatives, and attorneys (collectively referred to as the
“ Company Releasees”) from any and all causes of action, remedies, or claims of
any type Xxxxxxxx now has, or ever has had, as of any day hereof, or at any time
prior to the date hereof, arising out of his employment with the Company or
otherwise, including, but not limited to: (a) all claims for employment
discrimination or retaliation under the Virginia Human Rights Act, Va. Code §
2.2-3900 et seq., Title
VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the
Rehabilitation Act of 1973, the Civil Rights Act of 1866, the Americans With
Disabilities Act, the Family Medical Leave Act, the Age Discrimination in
Employment Act, ERISA Virginia Equal Pay Irrespective of Sex Act, Va. Code §
40.1-28.6 et seq., the
Federal Equal Pay Act and the Fair Labor Standards Act (or any other federal or
state statute relating to employment, discrimination, retaliation or wages); (b)
all claims for wages, compensation, vacation pay, sick pay, compensatory time,
commissions, or benefits including but not limited to those arising under any
state or federal wage and hour law, ERISA, ERISA benefit plan or policy,
Virginia wage payment laws, Va. Code § 40.1-29; and (c) all claims arising under
the common law of any state which relate to or arise out of Xxxxxxxx’x
employment or the termination of his employment including, but not limited to,
claims relating to the Employment Contract (Exhibit A), or any other employment
contracts, promissory estoppel, wrongful discharge, defamation, intentional or
negligent infliction of emotional distress, wrongful termination of benefits,
and wrongful denial of wages and/or commissions (but excluding claims that
cannot legally be released).
Xxxxxxxx
covenants and agrees never to institute directly or indirectly any action or
proceeding of any kind against the Company Releasees related to or arising out
of any claim released herein. Further, Xxxxxxxx releases and forever
discharges the Company and all other Company Releasees from any and all other
demands, claims, causes of action, obligations, agreements, promises,
representations, damages, suits, and liabilities whatsoever, both known and
unknown, in law or in equity, which he has or may have as of the date of this
Agreement; provided that notwithstanding the foregoing, nothing in this
Agreement and Release precludes Xxxxxxxx from filing an
administrative charge of discrimination or an administrative charge within the
jurisdiction of the Equal Employment Opportunity Commission (“EEOC”) or National
Labor Relations Board, or from filing a charge or communicating with any
federal, state or local government office, official or
agency. Xxxxxxxx promises never to seek or accept any damages,
remedies, or other relief for himself personally (any right to which Xxxxxxxx
hereby waives and promises never to accept) with respect to any claim included
in this Paragraph 8 of this Agreement and Release, in any proceeding, including,
but not limited to, any EEOC proceeding. Xxxxxxxx warrants and
represents that, as of the date of execution of this Agreement, Xxxxxxxx is not
aware of any violations of law by the Company or any of the Company Releasees
and has not filed any such charge or complaint.
Xxxxxxxx
has read and understands this Agreement and Release and acknowledges that he was
given twenty-one (21) days to consider the terms of the Agreement and Release
and to decide whether to sign the Agreement and Release. Xxxxxxxx
also acknowledges that he was advised, in writing, to carefully consider the
Agreement and Release and to consult with an attorney before signing
it. Xxxxxxxx understands that he may revoke this Agreement and
Release within seven (7) days of its execution by notifying the Company of that
decision, in writing, within the seven (7) day revocation period. The
Agreement and Release will not become effective until after such seven (7) day
revocation period has expired (the “Effective Date”). Xxxxxxxx agrees
and acknowledges that he has voluntarily signed this Agreement and Release with
the full knowledge of its terms and conditions, which are final and binding upon
him and upon the Company.
In
exchange and in consideration for the promises, obligations, and agreements of
Xxxxxxxx contained herein, which the Company agrees and acknowledges are
adequate and sufficient consideration, the Company, on behalf of its past and
present parent companies, affiliates, subsidiaries, divisions, officers,
members, employees, partners, directors, shareholders, agents, attorneys,
representatives, predecessors, successors, transferees, and assigns, as well as
all of their past and present directors, shareholders, partners, employees,
members, agents, representatives, and attorneys hereby releases and forever
discharges Xxxxxxxx, and all his agents, representatives, attorneys, assigns,
heirs, executors, and administrators (collectively referred to as the “Xxxxxxxx
Releasees”) from any and all causes of action, remedies, or claims of any type
the Company now has, or ever has had, as of any day hereof, or at any time prior
to the date hereof, arising out of Xxxxxxxx’x employment with the Company or
otherwise.
The
Company covenants and agrees never to institute directly or indirectly any
action or proceeding of any kind against the Xxxxxxxx Releasees related to or
arising out of any claim released herein. Further, the Company
releases and forever discharges Xxxxxxxx and all other Xxxxxxxx Releasees from
any and all other demands, claims, causes of action, obligations, agreements,
promises, representations, damages, suits, and liabilities whatsoever, both
known and unknown, in law or in equity, which it has or may have as of the date
of this Agreement.
9. No Assignment of
Claims. Xxxxxxxx represents and warrants that he has not
assigned any of the claims described in Paragraph 8, above, and that he has not
authorized any other person or entity to assert any such claim on his
behalf.
10. Binding
Effect. This Agreement and Release shall be binding upon and
inure to the benefit of Xxxxxxxx, the Company and their respective
representatives, predecessors, heirs, successors, and assigns.
11. Non-Disparagement. Xxxxxxxx
agrees that, in discussing his relationship with the Company, or the Company
generally, he will not disparage, discredit, or otherwise treat the Company, its
officers or employees, in a detrimental way or in any way that would interfere
with the Company’s business. The Company agrees that, in discussing
its relationship with Xxxxxxxx, or Xxxxxxxx generally, the Company and its
officers will not disparage, discredit, or otherwise treat Xxxxxxxx in a
detrimental way.
12. Applicable
Law. The Company and Xxxxxxxx agree that this Agreement and
Release shall be interpreted, applied, and enforced in Virginia courts in
accordance with Virginia law.
13. Entire
Agreement. This instrument constitutes and contains the entire
Agreement and Release between the parties concerning Xxxxxxxx’x employment with
the Company and the termination thereof, and supersedes all prior agreements
(including, but not limited to, the Employment Agreement, except as specified
herein), negotiations, proposed agreements, and understandings, if any, between
the parties. No other promises or agreements shall be binding unless
signed by the parties contemporaneously with, or after signing this Agreement
and Release, and supported by adequate consideration.
14. Severability. In
the event that any provision(s) of this Agreement and Release is found or held
to be invalid or unenforceable, the remaining provisions of the Agreement and
Release shall, nevertheless, continue to be valid and enforceable as though the
invalid and unenforceable provision(s) had not been included
herein.
15. Counterparts. This
Agreement and Release may be executed in one or more counterparts, each and all
of which shall constitute, and shall be construed as a single original
instrument upon execution, delivery and exchange of such signed counterparts by
and among the parties hereto. A fully executed copy of this Agreement
and Release may be used with the same force and effect as the original of this
Agreement and Release, and in the event this Agreement and Release is signed by
a party and delivered to the other via facsimile, the transmitting party intends
to be bound by the facsimile signatures thereon as if an original.
16. Headings. The
headings contained in this Agreement and Release are inserted for convenience
only and are not to be considered in the construction of provisions
herein.
17. Voluntary Execution of
Agreement Authority; By signing below, the parties indicate
that they: (a) have carefully read and understand the terms of this Agreement
and Release; (b) are entering into the Agreement and Release knowingly,
voluntarily, and of their own free will; and (c) understand its terms and
significance and intend to abide by its provisions without
exception. Xxxxxxxx represents and warrants that he has the capacity
to enter into this Agreement and Release and that he is voluntarily and
willingly consenting to this Agreement and Release. The Company represents and
warrants that the signatory for the Company is executing this Agreement and
Release under authority granted to him/her by the Company, that he/she has the
power and authority to bind the Company to the terms of this Agreement and
Release, and that the Company is voluntarily and willingly consenting to this
Agreement and Release.
s/Xxxxxxx X.
Xxxxxxxx 9/23/08
Xxxxxxx
X.
Xxxxxxxx
Date
Accepted
for XXXXXXX FURNITURE COMPANY, INC.:
By: s/Xxxxxxx X.
Xxxxx
Title:
Executive
Vice President – Finance and Administration
Date: 9/23/08
Exhibit
A
Employment
Agreement
[Employment Agreement made as of April
9, 2001 between Xxxxxxx X. Xxxxxxxx and Xxxxxxx Furniture Company, Inc. is filed
as Exhibit 10.1 to the Xxxxxxx Furniture Company, Inc. Form 10-Q (Commission
File No. 014938) for the quarter ended June 30, 2001 and is incorporated herein
by reference.]
