EXHIBIT 10.21
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EXECUTION COPY
SEPARATION AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
This Separation Agreement and General Release of all Claims
(the "Agreement") is entered into by and between Interline Brands, Inc., a New
Jersey corporation formerly named Wilmar Industries, Inc. (the "Company") and
Xxxxxxx Xxxxx (the "Executive") and dated as of December 31, 2001.
In consideration of the promises set forth in the Agreement,
the Executive and the Company (collectively, the "Parties") hereby agree as
follows:
1. ENTIRE AGREEMENT.
The Agreement is the entire agreement between the Parties with respect
to the subject matter hereof and contains all agreements, whether written, oral,
express or implied, between the Parties relating thereto and supersedes and
extinguishes any other agreement relating thereto, whether written, oral,
express or implied, between the Parties, including, without limitation, the
Employment Agreement between the Parties, dated May 16, 2000 and amended as of
September 29, 2000 and December __, 2001 (the "Employment Agreement"). Other
than the Agreement and as otherwise explicitly stated herein, there are no
agreements of any nature whatsoever between the Executive and the Company that
survive the Agreement. The Agreement may not be modified or amended, nor may any
rights under it be waived, except in a writing signed and agreed to by the
Parties.
2. TERMINATION OF EMPLOYMENT.
The Executive and the Company hereby agree that Executive's employment
and any and all appointments he holds with the Company and any of its affiliates
or subsidiaries, whether as officer, director, employee, consultant, agent or
otherwise (including as Chief Executive Officer of the Company) shall cease as
of January 1, 2002 (the "Termination Date").
Notwithstanding the foregoing, following the Termination Date, the
Executive shall continue to serve, in a non-employee and non-executive capacity
and without remuneration, as Chairman of the Board of Directors of the Company
until such time as his successor is elected. The Executive shall be entitled to
reimbursement, in accordance with the Company's policy on the reimbursement of
expenses, for reasonable business expenses incurred as a result of the
Executive's duties, following the Termination Date, as Chairman.
Effective as of the Termination Date, the Executive shall have no
authority to act on behalf of the Company or any of its respective affiliates or
subsidiaries, and shall not hold himself out as having such authority or
otherwise act in an executive or other decision making capacity.
3. ENTITLEMENTS.
The Company shall provide the Executive the following post-termination
payments and benefits:
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A. (i) Any accrued and unpaid "Base Salary" and
"Benefits" (both terms as defined in the Employment Agreement) through the
Termination Date; (ii) accrued vacation pay in accordance with the terms of
Section 6 of the Employment Agreement; (iii) continuation of the Executive's
Base Salary for a period commencing on the Termination Date and ending on
December 31, 2004, payable in installments in accordance with the Company's
standard payroll procedures; (iv) a bonus for the year 2001 payable in cash on
the same terms and at the same time as the bonus to be paid to Xxxxxxx X. Xxxxx;
and (v) a lump sum payment of up to $25,000 per annum, payable on January 1st
for each of the years 2002, 2003, and 2004, to cover the Executive's health
insurance premiums, automobile and other incidental expenses. Each such payment
described herein shall be in lieu and full satisfaction of the amounts described
in Sections 6 and 8(c) of the Employment Agreement.
B. The Company shall provide secretarial support to the
Executive for up to four (4) months following the Termination Date at an
off-site work location selected by the Executive.
C. The Executive may retain the laptop computer
currently in his possession.
D. As of and after the Termination Date, the Executive
shall no longer participate in, accrue service credit or have contributions made
on his behalf under any employee benefit plan sponsored by the Company in
respect of periods commencing on and following the Termination Date, including
without limitation, any plan which is intended to qualify under Section 401(a)
of the Internal Revenue Code of 1986, as amended. The Executive shall be
entitled to all benefits accrued up to the Termination Date, to the extent
vested under all employee benefit plans of the Company, in accordance with the
terms of such plans.
The payments and benefits described in clauses A through C above shall,
under no circumstances, be paid or otherwise provided prior to the expiration of
the seven-day revocation period described in Section 9E below; PROVIDED, that
the Executive has not revoked the Agreement during that period. If the Executive
revokes the Agreement during the period described in the immediately preceding
sentence, the Agreement shall be void, the Executive shall be deemed to have
been terminated by the Company on the Termination Date, and the provisions of
the Employment Agreement relating to a termination without "Cause" shall apply.
4. RETURN OF COMPANY PROPERTY.
No later than the Termination Date, the Executive shall return to the
Company all originals and copies of papers, notes and documents (in any medium,
including computer disks), whether property of the Company or any of its
subsidiaries or affiliates (collectively, the "Company Group") or not, prepared,
received or obtained by the Executive or his counsel during the course of his
employment with the Company or any member of the Company Group, and all
equipment and property of the Company Group (other than the laptop computer
described in Section 3C above) which may be in the Executive's possession or
under his control, whether at the Company's offices, the Executive's home or
elsewhere, including all such papers, work papers, notes, documents and
equipment in the possession of the Executive and his counsel. The Executive
agrees that he and his family and counsel shall not retain copies of any such
papers, work papers, notes and documents. Notwithstanding the foregoing, the
Executive may retain (i) any originals or copies of papers, work papers, notes
and documents received by the Executive in
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his capacity as member of the Board of Directors of the Company until such time
as he ceases to be a member of the Board; and (ii) copies of personal notes,
notebooks and diaries, any employment or benefits agreements between the
Executive and the Company, the Agreement, any publicly filed materials and any
employee benefit plan materials distributed generally to participants in any
such plan by the Company. On the Termination Date, all telephone and other
accounts being paid by the Company on the Executive's behalf, shall be
terminated and all company credit cards shall be returned to the Company and
canceled. To the extent any charges are made by the Executive using company
accounts or credit cards after the Termination Date, such charges will be solely
the Executive's responsibility.
5. CONFIDENTIALITY.
The Executive acknowledges and agrees that all memoranda, notes,
records and other materials made or compiled by the Executive, or made available
to him, in connection with, and during his employment by, the Company remain the
sole and exclusive property of the Company. The Executive acknowledges and
agrees that any trade secrets, information, data, or other confidential
information relating to customers, development programs, costs, marketing,
trading, investment, sales activities, promotion, credit and financial data,
manufacturing processes, financial methods, plans, or other general business and
affairs acquired about any member of the Company Group and each of their
officers, directors, employees and agents, and all material reflecting such
confidential information, is highly confidential and that disclosure of such
information or material could cause serious and irreparable injury to the
Company Group. The Executive agrees that he will not hereafter disclose any such
information or make any such material available to anyone without the written
consent of the Company, whether or not such information subsequently becomes
publicly known, other than as required pursuant to an order of a court,
governmental agency or other authorized tribunal; provided that upon receipt of
such an order, the Executive shall promptly notify the Company thereof and, at
the request of the Company and at the Company's expense, the Executive shall
assist the Company in obtaining a protective or similar order in respect of such
confidential information. The Executive further agrees that he will not retain
or use for his account at any time any trade names, trademark or other
proprietary business designation used or owned in connection with the business
of the Company Group.
The existence of and the terms and conditions of the Agreement shall be
held confidential by the Parties hereto, except for disclosure (i) by the
Company to its legal, actuarial and accounting advisors, (ii) by the Executive
to his legal and financial advisors and immediate family members, (iii) by
either Party if required by order of a court or other body having jurisdiction
over such matter, or otherwise as required under the securities law, and (iv) by
either Party with the written consent of the other. Notwithstanding the
foregoing, nothing in the Agreement shall prevent the Executive from (x) using
on his own behalf or any future employer's behalf, his general knowledge or
experience in any area of professional activity, whether or not involving the
Executive's service with the Company or (y) referring to his performance of
services with the Company as descriptive of his ability or qualification for
employment or engagement by any other entity.
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6. NONCOMPETITION.
The Executive agrees that, for a period commencing on the Termination
Date and ending on the later of (a) December 31, 2005, or (b) one year following
the date on which the Executive ceases to be the non-executive Chairman (the
"Restricted Period"), he shall not directly or indirectly (1) engage in any
business for the Executive's own account that competes with the "Business" (as
defined below) of the Company, (2) enter the employ of, or render any services
to, any person engaged in any business that competes with the Business of the
Company, (3) acquire a financial interest in, or otherwise become actively
involved with, any person engaged in any business that competes with the
Business of the Company, directly or indirectly, as an individual, partner,
shareholder, officer, director, principal, agent, trustee or consultant, or (4)
interfere with business relationships (whether formed before or after the date
of the Employment Agreement) between the Company or any of its affiliates that
are engaged in a business similar to the Business of the Company (the "Company
Affiliates") and customers or suppliers of the Company or the Company
Affiliates. For purposes of this Section 6, "Business" means those business
activities carried on by the Company, or being definitely planned by the
Company, as of the later of (x) December 31, 2004 or (y) the date upon which the
Executive ceases to be the non-executive Chairman.
Notwithstanding anything to the contrary in this Section 6, the
Executive may directly or indirectly own, solely as an investment, securities of
any person engaged in the business of the Company which are publicly traded on a
national or regional stock exchange or on the over-the-counter market if the
Executive (i) is not a controlling person of, or a member of a group which
controls, such person and (ii) does not, directly or indirectly, own one percent
(1%) or more of any class of securities of such person.
7. NONSOLICITATION.
During the Restricted Period, the Executive will not, directly or
indirectly, (i) solicit or encourage any employee of the Company or the Company
Affiliates to leave the employment of the Company or the Company Affiliates, or
(ii) hire any such employee who has left the employment of the Company or the
Company Affiliates (other than as a result of the termination of such employment
by the Company or the Company Affiliates) within one year after the termination
of such employee's employment with the Company or the Company Affiliates;
PROVIDED, that, it shall not be a breach of this Section 7 for the Executive to
offer employment to, and employ, his personal secretary.
During the Restricted Period, the Executive will not, directly or
indirectly, solicit or encourage to cease to work with the Company or the
Company Affiliates any consultant then under contract with the Company or the
Company Affiliates.
8. NONDISPARAGEMENT.
The Executive hereby agrees not to defame, disparage or criticize any
member of the Company Group, its products, services, finances, financial
condition, capabilities or other aspect of its business, or any former or
existing employees, managers, directors, officers or agents of, or contracting
parties with, any member of the Company Group in any medium to any person or
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entity without limitation in time. Notwithstanding this provision, the Executive
may confer in confidence with his legal representative and make truthful
statements as required by law. The Company shall have sole and complete
discretion regarding the timing, content and any and all aspect of its internal,
external and media communication concerning the termination of the Executive's
employment by the Company. The Executive shall not participate in any such
communication without the advance consent of Xxxxxxx X. Xxxxx or his designee.
9. ACKNOWLEDGMENT AND RELEASE.
A. In consideration of the Company's execution of the Agreement,
and except with respect to the Company's obligations arising under or preserved
in the Agreement, the Executive, for and on behalf of himself and his heirs and
assigns, hereby waives and releases any common law, statutory or other
complaints, claims, charges or causes of action arising out of or relating to
the Executive's employment or termination of employment with, or his serving in
any capacity in respect of, any member of the Company Group, both known and
unknown, in law or in equity, which the Executive may now have or ever had
against any member of the Company Group or any shareholder, employee, director
or officer of any member of the Company Group (collectively, the "Releasees"),
including, without limitation, any claim for any severance benefit which but for
the Agreement might have been due the Executive under any previous agreement
executed by and between any member of the Company Group and the Executive, and
any complaint, charge or cause of action arising out of his employment with the
Company Group under the Age Discrimination in Employment Act of 1967 ("ADEA," a
law which prohibits discrimination on the basis of age), the National Labor
Relations Act, the Civil Rights Act of 1991, the Americans With Disabilities Act
of 1990, Title VII of the Civil Rights Act of 1964, the Employee Retirement
Income Security Act of 1974, all as amended; and all other federal, state and
local laws. By signing the Agreement the Executive acknowledges that he intends
to waive and release any rights known or unknown he may have against the
Releasees under these laws; PROVIDED, that the Executive does not waive or
release claims with respect to the right to enforce the Agreement.
B. The Executive acknowledges that he has not filed any
complaint, charge, claim or proceeding against any of the Releasees before any
local, state or federal agency, court or other body relating to his employment
or the resignation thereof (each individually a "Proceeding"). The Executive
represents that he is not aware of any basis on which such a Proceeding could
reasonably be instituted.
C. The Executive (i) acknowledges that he will not initiate or
cause to be initiated on his behalf any Proceedings and will not participate in
any Proceeding, in each case, except as required by law; and (ii) waives any
right he may have to benefit in any manner from any relief (whether monetary or
otherwise) arising out of any Proceeding, including any Proceeding conducted by
the Equal Employment Opportunity Commission ("EEOC"). Further, the Executive
understands that by entering into the Agreement, he will be limiting the
availability of certain remedies that he may have against the Company and
limiting also his ability to pursue certain claims against the Releasees.
Notwithstanding the above, nothing in this Section 9 shall prevent the Executive
from (i) initiating or causing to be initiated on his behalf any complaint,
charge, claim or proceeding against the Company before any local, state or
federal agency, court or other body challenging the validity of the waiver of
his claims under ADEA contained in
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Section 9 of the Agreement (but no other portion of such waiver); or (ii)
initiating or participating in an investigation or proceeding conducted by the
EEOC with respect to ADEA.
D. The Executive acknowledges that he has been given twenty-one
(21) days from the date of receipt of the Agreement to consider all the
provisions of the Agreement and he does hereby knowingly and voluntarily waive
said given twenty-one (21) day period. THE EXECUTIVE FURTHER ACKNOWLEDGES THAT
HE HAS READ THE AGREEMENT CAREFULLY, HAS BEEN ADVISED BY THE COMPANY TO CONSULT
AN ATTORNEY, AND FULLY UNDERSTANDS THAT BY SIGNING BELOW HE IS GIVING UP CERTAIN
RIGHTS WHICH HE MAY HAVE TO XXX OR ASSERT A CLAIM AGAINST ANY OF THE RELEASEES,
AS DESCRIBED IN THIS SECTION 9 AND THE OTHER PROVISIONS HEREOF. THE EXECUTIVE
ACKNOWLEDGES THAT HE HAS NOT BEEN FORCED OR PRESSURED IN ANY MANNER WHATSOEVER
TO SIGN THE AGREEMENT AND THE EXECUTIVE AGREES TO ALL OF ITS TERMS VOLUNTARILY.
E. The Executive shall have seven days from the date of his
execution of the Agreement to revoke the Agreement, including the release given
under this Section 9 with respect to all claims referred to herein (including,
without limitation, any and all claims arising under ADEA). If the Executive
revokes the Agreement including, without limitation, the release given under
this Section 9, the Executive will be deemed not to have accepted the terms of
the Agreement, including without limitation any action required of the Company
by any Section of the Agreement.
10. AVAILABILITY OF RELIEF.
In the event that the Executive fails to abide by any of the terms of
the Agreement, the Company may, in addition to any other remedies it may have,
terminate any benefits or payments that are subsequently due under the
Agreement, without waiving the release granted herein.
Executive acknowledges and agrees that the remedy at law available to
the Company for breach of any of his post-termination obligations under the
Agreement, including but not limited to his obligations under Sections 5, 6, 7
and 8 of the Agreement, would be inadequate and that damages flowing from such a
breach may not readily be susceptible to being measured in monetary terms.
Accordingly, Executive acknowledges, consents and agrees that, in addition to
any other rights or remedies which the Company may have at law, in equity or
under the Agreement, upon adequate proof of his violation of any such provision
of the Agreement, the Company shall be entitled to immediate injunctive relief
and may obtain a temporary order restraining any threatened or further breach,
without the necessity of proof of actual damage.
11. MISCELLANEOUS.
A. NOTICES.
Any notice given pursuant to the Agreement to any party hereto shall be
deemed to have been duly given when mailed by registered or certified mail,
return receipt requested, or by overnight courier, or when hand delivered as
follows:
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If to the Company:
Interline Brands, Inc
000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxx
If to the Executive:
Xxxxxxx Xxxxx
0000 Xxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
with a copy to:
Drinker, Xxxxxx & Xxxxx LLP
One Xxxxx Square
00xx xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
or at such other address as either party shall from time to time designate by
written notice, in the manner provided herein, to the other party hereto.
B. SUCCESSOR.
The Agreement shall be binding upon and inure to the benefit of the
Parties, their respective heirs, successors and assigns.
C. TAXES.
The Executive shall be responsible for the payment of any and all
required federal, state, local and foreign taxes incurred, or to be incurred, in
connection with any amounts payable to the Executive under the Agreement.
Notwithstanding any other provision of the Agreement, the Company may withhold
from amounts payable under the Agreement all federal, state, local and foreign
taxes that are required to withheld by applicable laws and regulations.
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D. SEVERABILITY.
In the event that any provision of the Agreement is determined to be
invalid or unenforceable, the remaining terms and conditions of the Agreement
shall be unaffected and shall remain in full force and effect. In addition, if
any provision is determined to be invalid or unenforceable due to its duration
and/or scope, the duration and/or scope of such provision, as the case may be,
shall be reduced, such reduction shall be to the smallest extent necessary to
comply with applicable law, and such provision shall be enforceable, in its
reduced form, to the fullest extent permitted by applicable law.
E. COUNTERPARTS.
The Agreement may be executed by one or more of the Parties hereto on
any number of separate counterparts and all such counterparts shall be deemed to
be one and the same instrument. Each party hereto confirms that any facsimile
copy of such party's executed counterpart of the Agreement (or its signature
page thereof) shall be deemed to be an executed original thereof.
F. NON-ADMISSION. Nothing contained in the Agreement shall be
deemed or construed as an admission of wrongdoing or liability on the part of
the Executive or on the part of the Company.
G. NO MITIGATION. The Executive shall not be required to mitigate
the amount of any payment provided for pursuant to the Agreement by seeking
other employment and, to the extent that the Executive obtains or undertakes
other employment, the payment will not be reduced by the earnings of the
Executive from the other employment.
H. GOVERNING LAW/VENUE.
The Agreement shall be governed by, and construed in accordance with
the internal laws of the State of New Jersey, without regard to principles of
conflicts of laws. Any dispute regarding the Agreement shall be adjudicated in
the state or Federal courts located in New Jersey.
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IN WITNESS WHEREOF, the undersigned have executed the
Agreement on the December 31, 2001.
INTERLINE BRANDS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
THE EXECUTIVE
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
