RETIREMENT AND GENERAL RELEASE AGREEMENT
Exhibit
10
This
Retirement and General Release Agreement ("Agreement") is made and entered
into
this 30th
day of
January, 2006, by and between Xxxxx X. Xxxxx ("Employee") and Cabela’s
Incorporated (“Company”).
RECITALS
WHEREAS,
Employee has been an employee and an officer of Company, serving most recently
as Chairman, President and Chief Executive Officer of Company’s wholly-owned
subsidiary, World’s Foremost Bank, a Nebraska banking corporation
(“WFB”);
WHEREAS,
Employee’s position as an employee, officer and director of WFB and as an
officer of Company and other Company subsidiaries has terminated following
Employee’s voluntary retirement;
WHEREAS,
Company and Employee have agreed with respect to certain future obligations
of
Employee to Company including confidentiality, noncompetition and cooperation;
and
WHEREAS,
Company desires to pay Employee certain separation compensation on the terms
and
conditions set forth below and to avoid the expense, delay and uncertainty
attendant to any claims that may arise from Employee’s service with and
retirement from his positions and employment with Company.
NOW
THEREFORE, consistent with the above Recitals, which are hereby incorporated
into this Agreement by this reference, and in consideration of the promises
and
covenants contained below, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties, intending
to be legally bound, agree as follows:
1. Retirement/References.
Employee retired from his position as an employee of WFB and an officer of
WFB
and Company and other Company subsidiaries effective January 6, 2006 (the
“Retirement Date”).
2. Final
Compensation and COBRA.
All
compensation and benefits terminated as of the Retirement Date except that
Employee is eligible to continue Company’s group health insurance coverage to
the extent provided by law commonly referred to as COBRA. Employee’s final
paycheck has been calculated and paid in accordance with Company’s regular
payroll practices and policies and included $72,562.12, less applicable
withholdings, as payment for all accrued, unused vacation time owed to Employee.
Employee acknowledges and agrees that Company has fully paid Employee and
that
Employee is not entitled to any additional amounts from Company for wages,
bonuses or benefits except as set forth in this Agreement.
3. 401(k)
Plan/Employee Stock Purchase Plan.
Employee was a participant in Company’s 401(k) Plan. Employee’s vested account
balance will be available for distribution as allowed by the Plan. Employee
was
also a participant in Company’s Employee Stock Purchase Plan (“Stock Plan”). The
balance of the funds accumulated in Employee’s Stock Plan account will be used
to purchase Company’s common stock on the next Exercise Date as defined in the
Stock Plan, and Employee may retain his account or sell his account in
accordance with the Stock Plan.
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4. 2004
Stock Option Plan.
Employee was a participant in Company’s 2004 Stock Plan, and Employee and
Company are parties to Stock Option Agreements executed May 1, 2004 and April
14, 2005. As of the Retirement Date, Employee is vested in 71,380 stock options
(the “Covered Options”). Any Covered Options in the name of Employee held on the
Retirement Date shall be exercisable in accordance with the applicable terms
of
the 2004 Stock Plan and Stock Option Agreements governing a participant’s
termination of employment for reasons other than Retirement, death, Disability
or Cause as defined in the 2004 Stock Plan. Employee and Company agree that
the
2004 Stock Plan and Stock Option Agreements provide that the Covered Options
shall remain exercisable until the 90th day following the Retirement Date.
Any
options held by Employee that have not become vested on or before the Retirement
Date shall terminate and be canceled immediately upon the Retirement
Date.
5. 1997
Stock Option Plan.
Employee and Company are parties to that certain Stock Restriction Agreement
dated September 10, 2003 (the “Stock Restriction Agreement”). With regard to the
remaining 18,350 unvested shares of common stock issued pursuant to Employee’s
early exercise of the stock options granted under Company’s 1997 Stock Option
Plan (the “Unvested Shares”), Company hereby accelerates Employee’s vesting of
the Unvested Shares and waives its right to purchase the Unvested Shares
as set
forth in the Stock Restriction Agreement.
6. Deferred
Compensation Plan.
Employee is a participant in the Cabela’s Incorporated Third Amended and
Restated Deferred Compensation Plan, as amended (“Deferred Compensation Plan”).
Employee shall receive a lump-sum payout of Employee’s vested Deferred
Compensation Account (as defined in the Deferred Compensation Plan), plus
accrued interest, less applicable withholding, within one hundred eighty
(180)
calendar days after the Retirement Date. The nonvested portion of Employee’s
Deferred Compensation Account shall be forfeited. The gross vested balance
of
Employee’s Deferred Compensation Account as of January 27, 2006, totaled
$505,626.92.
7. Consideration.
In
additional consideration for Employee’s promises and covenants contained in this
Agreement, including, without limitation, the covenants contained in Section
9
of this Agreement, and in full satisfaction of any claim by Employee relating
to
Company’s discretionary bonus plan for 2005 and all prior years, Company agrees
to pay Employee the aggregate amount of $613,500.00, less applicable tax
withholding (the “Separation Compensation”). The Separation Compensation shall
be paid to Employee in thirty-nine (39) biweekly installments of $15,730.77
each, without interest and less applicable withholding, on a payment schedule
consistent with Company’s regular paydays beginning on the first regular payday
following the Effective Date (as defined below). Employee acknowledges that
all
Separation Compensation is in addition to any amounts to which Employee would
have been entitled absent this Agreement.
8. Nondisparagement.
Employee agrees not to make disparaging, critical or otherwise detrimental
comments to any person or entity concerning Company, its subsidiaries,
affiliates and their officers, directors or employees; the products, services
or
programs provided or to be provided by Company or any of its subsidiaries;
the
business affairs or the financial condition of Company or any of its
subsidiaries; or the circumstances surrounding Employee’s employment and/or
separation of employment from Company or any of its subsidiaries. Company
agrees
to direct its Board of Directors and Executive Officers not to make disparaging,
critical or otherwise detrimental comments to any person or entity concerning
Employee.
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9. Confidentiality
and Noncompetition.
Employee
acknowledges that he remains bound by the terms and conditions of the
Confidentiality and Noncompetition Agreement between Company and Employee
dated
April 14, 2005. Employee further agrees that, if within eighteen (18) months
following Employee’s Retirement Date, Employee becomes affiliated, directly or
indirectly, as an employee, independent contractor or otherwise, with Bass
Pro,
Inc., Gander Mountain Company, Sportsman’s Warehouse, Inc. or The Sportsman’s
Guide, Inc., or
any
parent, subsidiary or affiliate of such entities, it shall be legally presumed
that Employee has violated said Confidentiality and Noncompetition
Agreement.
10. Cooperation.
Employee shall cooperate with Company and WFB to the extent reasonably required
in all matters relating to the winding up of his pending work. Employee further
agrees, upon request by Company, to cooperate fully in preparation for, or,
giving depositions or testifying in the defense or prosecution of any litigation
arising from events, acts or omissions alleged, or that may be alleged in
the
future, to have occurred during the term of Employee’s employment with Company
and WFB (collectively, the “Litigation Support Services”). Employee shall be
reimbursed for any reasonable out-of-pocket expenses incurred in connection
with
such Litigation Support Services. Company shall also pay Employee $247.00
per
hour for Employee’s Litigation Support Services as may be requested by Company;
provided, however, Employee will not be paid for Employee’s mandatory
involvement in any litigation such as may be required pursuant to a lawfully
issued subpoena or otherwise.
11. Return
of Property.
Employee agrees to return to Company all Company property of every kind,
including but not limited to, all computers, laptops, cell phones, manuals,
books, keys, access cards, credit cards, calling cards, records, computer
passwords, personnel lists, customer lists, and all other lists and other
written or printed materials, which contain any confidential information,
whether furnished by Company or prepared by Employee. Employee agrees that
Employee will neither make nor retain any copies of such materials after
the
Retirement Date.
12. Release.
Employee voluntarily and forever discharges Company, its subsidiaries,
affiliates, and their respective current and former shareholders, directors,
officers, employees, attorneys, representatives and/or agents, collectively
and
individually, from any and all claims, damages (including attorney fees),
demands, actions, or causes of actions of any kind or nature, whether under
contract or tort, whether known or unknown, that Employee, Employee’s heirs,
executors, administrators, successors, and assigns, has, or may have, up
to and
including the date of this Agreement arising out of Employee’s employment with
Company and WFB and any of their affiliates and/or the termination of Employee’s
employment with Company and WFB and any of their affiliates (collectively
the
“Claims”) including, without limitation, any Claims under any agreement between
the parties, or any Claims under any federal, state or local statutory or
common
laws, including, without limitation, the Age Discrimination in Employment
Act,
the Older Workers’ Benefit Protection Act, Title VII of the Civil Rights Act,
the Americans with Disabilities Act, the Fair Labor Standards Act, the Family
and Medical Leave Act, the Employee Retirement Income Security Act, the Nebraska
Act Prohibiting Unjust Discrimination in Employment Because of Age, the Nebraska
Fair Employment Practices Act, and the Nebraska Wage Payment and Collection
Act,
all as amended. The foregoing notwithstanding, Employee is not releasing
any
claims with respect to the Indemnification Agreement between Employee and
Company dated June 17, 2004.
Company
voluntarily and forever discharges Employee from any and all Claims arising
out
of Employee’s employment with Company and WFB and any of their affiliates and/or
the termination of Employee’s employment with Company and WFB and any of their
affiliates. Company’s release shall not include Claims against Employee, if any,
founded in fraud, self dealing or fiduciary breaches. The foregoing
notwithstanding, Company is not aware of any such Claims against Employee
as of
the Effective Date of this Agreement.
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13. No
Admission.
Employee and Company expressly acknowledge that this Agreement is not an
admission by either party of any violation of any law, regulation, ordinance
or
administrative procedure, liability for which is expressly denied by both
parties.
14. Interest.
Employee represents and warrants that Employee has the sole right and exclusive
authority to execute this Agreement, and that Employee has not sold, assigned,
transferred, conveyed, or otherwise previously disposed of any claim or demand
relating to any matter covered by this Agreement. Employee acknowledges that,
as
of the date of this Agreement, Employee has not initiated any administrative
or
legal proceeding of any kind against Company or any of its
subsidiaries.
15. Confidentiality
of Agreement.
Excluding disclosures regarding Section 9, Employee’s discussions with his
spouse, attorney, accountant or where either party is compelled by law, such
as
Company’s SEC and NYSE disclosures, Employee and Company agree to keep
confidential both the fact of and the terms of this Agreement, and will not
disclose, display, discuss, or make public in any way the terms of or existence
of this Agreement.
16. Assignment.
This
Agreement and the rights, interests and obligations of Company hereunder
shall
be assignable by Company to and shall inure to the benefit of any assignee.
This
Agreement is not assignable by Employee.
17. Complete
Agreement.
This
Agreement is a complete agreement between the parties and supersedes all
prior
discussions, negotiations and agreements with regard to the subject matter
herein, whether oral or written. This Agreement shall not be modified except
by
mutual agreement, in writing and signed by both parties.
18. Severability.
Employee and Company intend and agree that if a court of competent jurisdiction
determines that the scope of any provision of this Agreement is too broad
to be
enforced as written, the court should reform such provision(s) to such narrower
scope as it determines to be enforceable. Employee and Company further agree
that if any provision of this Agreement is determined to be unenforceable
for
any reason, and such provision cannot be reformed by the court, such provision
shall be deemed separate and severable and the unenforceability of any such
provision shall not invalidate or render unenforceable any of the remaining
provisions hereof.
19. Enforcement,
Damages and Injunctive Relief.
If
Employee violates any of the terms of this Agreement, all Company obligations
to
Employee regarding Separation Compensation shall cease. To the extent that
Employee violates any provisions of this Agreement following receipt of
Separation Compensation, Employee shall be required to refund such amounts
to
Company. In addition to the foregoing and the recovery of any additional
damages
and any other legal relief to which Company may be entitled in the event
of
Employee’s violation of this Agreement, Company shall also be entitled to
equitable relief, including such injunctive relief as may be necessary to
protect the interests of Company and as may be necessary to specifically
enforce
this Agreement. Employee further acknowledges that the remedies of forfeiture,
reimbursement and/or injunctive relief are cumulative and the said
forfeiture/reimbursement is not intended as a “buyout” option for Employee or as
a substitute for Employee’s performance under this Agreement.
20. Choice
of Law.
This
Agreement shall be construed and enforced pursuant to the laws of the State
of
Nebraska.
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21. Company
Recommends Consultation with Attorney.
Employee is hereby cautioned and advised to consult with an attorney prior
to
signing this Agreement. Employee shall be responsible for any attorney’s fees
incurred by Employee in connection with this Agreement.
22. Review
Period.
Employee confirms and acknowledges that Employee has read and understands
this
Agreement, and that Employee has signed this Agreement freely and voluntarily
with the intent to fully release Company, its subsidiaries, affiliates and
all
of their respective current and former shareholders, officers, directors,
employees, attorneys, representatives and/or agents from any and all Claims.
Employee further acknowledges that Employee has been given up to twenty-one
(21)
days to consider signing this Agreement (the “Review Period”), and Employee
agrees that the changes, whether material or immaterial, did not restart
the
running of the Review Period. Employee may sign this Agreement before the
expiration of the Review Period by signing and delivering to Company this
Agreement and the Waiver of the 21-Day Review Period attached hereto as Exhibit
“A” and incorporated herein by this reference.
23. Revocation
Period.
Employee may revoke this Agreement any time within seven (7) days after the
execution of the Agreement (“Revocation Period”). To revoke this Agreement,
Employee must give written notice to Company stating that Employee wishes
to
revoke the Agreement. The written notice must be hand delivered, or mailed
via
first class mail, and received by Xxxx Xxxxxxx, Corporate Counsel, no later
than
midnight on the last day (seventh (7th) day) of the Revocation Period. This
Agreement shall become effective and enforceable on the eighth day following
Employee's signing of this Agreement (“Effective Date”).
IN
WITNESS WHEREOF, the parties hereto have executed this Retirement and General
Release Agreement as of the day and year first above written.
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CABELA’S
INCORPORATED
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XXXXX
X. XXXXX
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By:
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/s/
Xxxxxx Xxxxxx
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/s/
Xxxxx X. Xxxxx
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Xxxxxx
Xxxxxx, President and CEO
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Exhibit
“A”
Waiver
of 21-Day Review Period
I,
the
undersigned, hereby knowingly and voluntarily waive the twenty-one (21) day
review period to consider the Retirement and General Release Agreement
(“Agreement”) set forth above. I fully understand and agree that by signing this
WAIVER I surrender for all time whatever right(s) and/or claim(s) I may have
to
challenge the Agreement set forth above because a full twenty-one (21) days
did
not expire before I signed said Agreement in exchange for expediting
implementation of the terms of the Agreement. I have read, fully understand
and
consent to the terms of this WAIVER and I sign it in the absence of fraud,
duress, undue influence or reliance upon any oral and/or written representations
not included in the terms of this WAIVER. This WAIVER shall be interpreted
in
accordance with the plain meaning of its terms and not strictly for or against
any interested party.
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Dated:
January 30, 2006
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/s/
Xxxxx X. Xxxxx
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Xxxxx
X. Xxxxx
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