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EXHIBIT 10.13
AGREEMENT
1. This agreement ("Agreement") is entered into between Xxxxxx Xxxxxx
("Bridel") and Barry's Jewelers, Inc., a California corporation ("Barry's"), to
set forth the severance arrangements Barry's has made for Bridel and to resolve
all other matters between Barry's and Bridel. Specifically, the purpose of this
Agreement is, among other things, to (i) set forth the parties' agreements
concerning severance and other benefits to be provided to Bridel pursuant to
the Employment Agreement between the parties dated as of April 8, 1996 (the
"Employment Agreement"), as well as other benefits described herein, and (ii)
provide for mutual general releases. A copy of the Employment Agreement is
attached hereto as Exhibit "A".
2. The parties agree and acknowledge that Bridel resigned as an officer,
director and employee of Barry's (and each of its subsidiary and affiliated
entities, as applicable) effective as of February 13, 1997.
3A. Pursuant to the Employment Agreement (as modified herein), Barry's
agrees to provide the following severance and other benefits to Bridel:
3A.1 In accordance with Section 4.3(x) of the Employment Agreement,
$371,250.00 (the "Severance Amount"), computed as the amount of salary at
Bridel's rate of salary in effect immediately prior to February 13, 1997, for
the period from February 17, 1997 through April 8, 1998, payable in cash as
follows (subject to the last paragraph of this Section 3A): Bridel will receive
monthly or biweekly payments from Barry's in the same amounts and with the same
periodicity that salary was paid to Bridel immediately prior to February 13,
1997, commencing with the next regular payroll after that date and through and
including a final payment (on or about April 8, 1998) to fully satisfy the
Severance Amount. The Severance Amount does not include Bridel's salary for the
period up through February 16, 1997, which he acknowledges has previously been
paid in cash by Barry's.
3A.2 In accordance with Section 3.2 and Section 4.3 of the Employment
Agreement, the 10,000 shares of restricted Common Stock of Barry's referred to
therein is deemed immediately and fully vested as of February 13, 1997.
Accordingly, Barry's has paid Bridel $8,230.63 in cash, representing the
special bonus in respect of certain tax obligations of Bridel (fully "grossed
up" for taxes) corresponding to one-half (1/2) of the restricted stock referred
to in said Section 3.2.
3A.3 In accordance with Section 3.2 and Section 4.3 of the Employment
Agreement, the stock options referred to therein are hereby deemed immediately
and fully vested as of February 13, 1997.
3A.4 In accordance with Section 3.7 and Section 4.3 of the Employment
Agreement and applicable law, Barry's will pay Bridel $3,082.50 in cash
promptly following the execution date hereof, representing Barry's obligation
for accrued vacation benefits.
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3A.5 In accordance with Section 3.5 and Section 4.3 of the Employment
Agreement, for the period from February 13, 1997 through April 8, 1998, Bridel
shall continue to be included, at Barry's expense, in Barry's medical insurance
plan. This benefit shall be effected by Bridel's election of COBRA coverage;
Barry's will then pay or reimburse Bridel for the cost of the election of such
coverage during the period specified in the preceding sentence.
In addition to the foregoing items of severance and benefits, nothing in this
Agreement shall be deemed to affect Bridel's benefits and rights under Barry's
401(k) plan and deferred compensation plan for senior managers (the "Tophat
Plan"); all rights and elections that may be available to Bridel under the
terms of those plans with respect to his account interests therein shall
continue to be available to him. Among other things, in the event that Barry's
elects to terminate the Tophat Plan, then Bridel shall have all of the rights
specified therein in connection with a termination. All amounts payable to
Bridel and other benefits to be provided to Bridel in accordance with this
Section 3A and Section 3B below shall be subject to withholding in accordance
with applicable law.
3B. In addition to the benefits provided for in the Employment Agreement,
Barry's agrees to provide the following benefits to Bridel:
3B.1 Barry's will pay the fees of an outplacement services firm for
outplacement services to be provided to Bridel, up to a maximum of $25,000,
upon presentation of invoices and/or other appropriate supporting documentation
evidencing such fees.
3B.2 For the period from February 13, 1997 through April 8, 1998,
Bridel shall continue to be included, at Barry's expense, in Barry's life
insurance and disability insurance plans.
3B.3 For the period from February 13, 1997 through April 8, 1998,
Barry's shall continue to provide the same automobile-related benefits to
Bridel as provided under the existing Employment Agreement (including lease
payments and payment of maintenance, gas, oil, insurance and license as
provided in the existing Employment Agreement). Further, at April 8, 1998, if
Bridel so requests, Barry's will consider (but shall be under no obligation to)
transfer the lease (including the purchase option contained therein, if any)
relating to the automobile currently provided for Bridel's use to Bridel.
3C. In the event of Bridel's death prior to the full Severance Amount
having been paid as provided in Section 3A above, Barry's shall be obligated to
continue to provide such benefit to Bridel's spouse, subject to the terms and
elections available under the Tophat Plan, as applicable.
4. Bridel agrees that he will comply with Section 9 of the Employment
Agreement, notwithstanding the termination of his employment by Barry's. In
this regard, Barry's acknowledges that Bridel has made himself reasonably
available to Barry's for the purpose of returning confidential information to
Barry's as provided in said Section 9. Bridel acknowledges, however, that
Barry's has no means of independently verifying full
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compliance by Bridel with said Section 9, and as a result Bridel agrees that he
will in the future fully comply with the document return and other provisions
of said Section.
5. Bridel agrees that any and all claims or obligations, including any
claim for violation of any state or federal statute (such as statutes
concerning discrimination based on disability or perceived disability, race,
sex, or national origin), which he may have against Barry's are fully and
completely settled by this Agreement, and all liability or potential liability
on any such claim is hereby released. This release of claims includes claims
against Barry's directors, officers, employees and representatives
(collectively, "Representatives"), and against any and all present and future
affiliated companies of Barry's and their respective Representatives. This
release also includes all claims arising out of Bridel's employment with
Barry's and the termination of that employment, including all rights and
benefits under the Employment Agreement. Bridel does not, by signing this
Agreement, release claims with respect to fulfillment of the promises contained
in this Agreement. Barry's (on behalf of itself and its present and future
affiliated companies and their respective Representatives) similarly agrees
that any and all claims or obligations which it may have against Bridel
relating to Bridel's service as an officer, director and employee of Barry's
are fully and completely settled by this Agreement, and all liability or
potential liability on any such claim is hereby released. Barry's does not, by
signing this Agreement, release claims with respect to fulfillment of the
promises contained in this Agreement.
6. Except as specifically noted in Section 5 above, each of Barry's and
Bridel waives any and all rights it/he may have to invoke, or in any other way
to seek the benefits of, Section 1542 of the California Civil Code (or any
other similar statute). Section 1542 provides as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor.
7. Bridel understands and acknowledges that (a) this Agreement
constitutes a voluntary waiver of any and all claims he has against Barry's as
of the date of his execution of this Agreement, including claims under the Age
Discrimination Act of 1967, 29 U.S.C. Sec. 621 et seq.; (b) he has waived any
and all such claims pursuant to this Agreement and in exchange for
consideration, the value of which is substantial; (c) he has been, and is now,
advised to consult with an attorney concerning this Agreement before signing
it; (d) he has been, and is now, informed that he has a period of at least 21
days to consider the terms of this Agreement (though he need not take the full
21 days if he, in his sole discretion, does not wish to do so); and (e) he may
revoke this Agreement at any time during the 7 days following the date of his
signing of the Agreement, and this Agreement shall not become effective or
enforceable until the eighth day after Bridel's signing of the Agreement. If
Bridel so revokes this Agreement, Bridel agrees and acknowledges that Barry's
will likewise not be bound by the agreements set forth herein and will reserve
the right, among others, to assert that Bridel's termination is for "cause"
under the Employment Agreement, seek a return of the Severance Amount and other
benefits described in Section 3 above and seek other remedies available at law
or in equity.
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8. Each party agrees that this Agreement is confidential and neither
will voluntarily disclose its terms, except that Bridel and the management of
Barry's may discuss the Agreement with their spouses, their attorneys, and
their tax advisers (including, in the case of Barry's management, Barry's
attorneys and tax advisers).
9. In connection with Bridel's separation from Barry's, Barry's is
providing a reference letter, addressed to Bridel, in the form attached hereto
as Exhibit "B".
10. Bridel promises that he will not in the future file a claim against
Barry's with respect to a matter released herein. Barry's promises that it will
not in the future file a claim against Bridel with respect to a matter released
herein.
11. If either Barry's or Bridel files a claim to enforce this Agreement
or a claim otherwise arising in any way out of this Agreement, the claim will be
decided by binding and final arbitration. The procedures for conducting that
arbitration will be decided by the parties.
12. Each party acknowledges that he or it has had an opportunity to
negotiate with regard to the terms of this Agreement, to receive advice with
regard to it, and carefully to read and consider the terms of the Agreement
before signing it.
13. This Agreement contains the entire agreement of Barry's and Bridel
concerning the subjects covered in the Agreement. This Agreement supersedes any
previous discussions or agreements about those subjects.
Date:
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Xxxxxx Xxxxxx
Date: BARRY'S JEWELERS, INC.
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By:
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Its:
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