Exhibit 10.12
SEVERANCE AND SETTLEMENT AGREEMENT AND RELEASE
This AGREEMENT is entered into by and between Saucony, Inc. (the "Company")
and Xxxxxxxx Xxxxxxx (the "Employee").
WHEREAS, the parties wish to resolve amicably the Employee's separation
from the Company and establish the terms of the Employee's severance
arrangement;
NOW, THEREFORE, in consideration of the promises and conditions set forth
herein, the sufficiency of which is hereby acknowledged, the Company and the
Employee agree as follows:
1. Termination Date. The Employee's effective date of termination from the
Company is January 2, 2004.
2. Monetary Consideration. In return for the execution of the instant
Severance and Settlement Agreement and Release, the Company agrees to pay
the Employee Two Hundred Four Thousand Dollars ($204,000.00), less all
applicable state and federal taxes as severance pay. The severance pay will
be paid to the Employee in one lump sum on January 31, 2004, provided that
the Employee has not revoked his acceptance of the Agreement during the
seven (7) day revocation period.
3. Release. The Employee hereby fully, forever, irrevocably and
unconditionally releases, remises and discharges the Company, its officers,
directors, stockholders, corporate affiliates, subsidiaries, and parent
companies, agents, employees, and attorneys from any and all claims,
charges, complaints, demands, actions, causes of action, suits, rights,
debts, sums of money, costs, accounts, reckonings, covenants, contracts,
agreements, promises, doings, omissions, damages, executions, obligations,
liabilities, and expenses (including attorneys' fees and costs), of every
kind and nature which he ever had or now has against the Company, its
officers, directors, stockholders, corporate affiliates, subsidiaries and
parent companies, agents, employees and attorneys, arising out of his
employment with or separation from the Company including, but not limited
to, all employment discrimination claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. ss. 2000e et seq., the Age Discrimination in
Employment Act, 29 U.S.C. ss. 621 et seq., the Americans With Disabilities
Act of 1990, 42 U.S.C. ss. 12101 et seq., and the Massachusetts Fair
Employment Practices Act, M.G.L. c.151B, ss.1 et seq., all as amended, and
all claims arising out of the Fair Credit Reporting Act, 15 U.S.C. ss. 1681
et seq., the Employee Retirement Income Security Act of 1974 ("ERISA"), 29
U.S.C. ss. 1001 et seq., the Massachusetts Civil Rights Act, M.G.L. c. 12
xx.xx. 11H and 11I, the Massachusetts Equal Rights Act, M.G.L. c. 93 ss.
102 and M.G.L. c. 214, ss. 1C, the Massachusetts Labor and Industries Act,
M.G.L. c. 149, ss. 1 et seq., and the Massachusetts Privacy Act, M.G.L. c.
214, ss. 1B, all as amended, and all common law claims including, but not
limited to, actions in tort, defamation and breach of contract, and any
claim or damage arising out of the Employee's employment with or separation
from the Company (including a claim for retaliation) under any common law
theory or any federal, state or local ordinance not expressly referenced
above, provided, however, that nothing in this Agreement prevents him from
filing, cooperating with, or participating in any proceeding before the
EEOC or a state Fair Employment Practices Agency (except that the Employee
acknowledges that he may not be able to recover any monetary benefits in
connection with any such claim, charge or proceeding).
4. Non-Disclosure. The Employee acknowledges his obligation to keep
confidential all non-public information concerning the Company which he
acquired during the course of his employment with the Company, as stated
more fully in the non-disclosure agreement executed by the Employee at the
inception of his employment which remains in full force and effect.
5. Return of Company Property. The Employee confirms that he has returned to
the Company all keys, files, records (and copies thereof), equipment and
other Company-owned property in his possession or control. In addition, the
Employee agrees to leave intact all electronic Company documents, including
those which he developed or helped develop during his employment.
6. Non-Disparagement. The Employee understands and agrees that as a condition
for payment to him of the consideration described herein, he will not make
any false, disparaging or derogatory statements to any media outlet,
industry group, investors, financial institution or current or former
employee, consultant, client or customer of the Company regarding the
Company or any of its directors, officers, employees, agents or
representatives or about the Company's business affairs and financial
condition.
7. Confidentiality. To the extent permitted by law, the Employee understands
and agrees that as a condition for payment to him of the consideration
herein described, the terms and contents of this Agreement, and the
contents of the negotiations and discussions resulting in this Agreement,
shall be maintained as confidential by the Employee, his agents and
representatives, and none of the above shall be disclosed except to the
extent required by federal or state law or as otherwise agreed to in
writing by the Company.
8. Nature of Agreement. The Employee understands and agrees that this
Agreement is a severance and settlement agreement and does not constitute
an admission of liability or wrongdoing on the part of the Company.
9. Amendment. This Agreement shall be binding upon the parties and may not be
abandoned, supplemented, changed or modified in any manner, orally or
otherwise, except by an instrument in writing of concurrent or subsequent
date signed by a duly authorized representative of the parties hereto. This
Agreement is binding upon and shall inure to the benefit of the parties and
their respective agents, assigns, heirs, executors, successors and
administrators.
10. Waiver of Rights. No delay or omission by the Company in exercising any
rights under this Agreement shall operate as a waiver of that or any other
right. A waiver or consent given by the Company on any one occasion shall
be effective only in that instance and shall not be construed as a bar or a
waiver of any right on any other occasion.
11. Validity. Should any provision of this Agreement be declared or be
determined by any court of competent jurisdiction to be illegal or invalid,
the validity of the remaining parts, terms, or provisions shall not be
affected thereby and said illegal and invalid part, term or provision shall
be deemed not to be a part of this Agreement.
12. Applicable Law. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts, and is binding upon and shall inure to the
benefit of the parties and their respective agents, assigns, heirs,
executors, successors and administrators.
13. Acknowledgments. The Employee acknowledges that he has been given
twenty-one (21) days to consider this Agreement and that the Company
advised him to consult with any attorney of his own choosing prior to
signing this Agreement. The Employee may revoke this Agreement for a period
of seven (7) days after the execution of this Agreement, and the Agreement
shall not be effective or enforceable until the expiration of this seven
(7) day revocation period.
14. Voluntary Assent. The Employee affirms that no other promises or agreements
of any kind have been made to or with him by any person or entity
whatsoever to cause him to sign this Agreement, and that he fully
understands the meaning and intent of this Agreement. The Employee states
and represents that he has had an opportunity to fully discuss and review
the terms of this Agreement with an attorney. The Employee further states
and represents that he has carefully read this Agreement, understands the
contents herein, freely and voluntarily assents to all of the terms and
conditions hereof, and signs his name of his own free act.
15. Entire Agreement. This Agreement contains and constitutes the entire
understanding and agreement between the parties hereto with respect to the
severance and supercedes all previous oral and written negotiations,
agreements, commitments, and writings in connection therewith. Nothing in
this Section shall, however, modify, cancel or supercede the Employee's
obligations set forth in Section 7.
16. Counterparts. This Agreement may be executed in two signature counterparts,
each of which shall constitute an original, but all of which taken together
shall constitute but one and the same instrument.
IN WITNESS WHEREOF, all parties have set their hand and seal to this
Agreement as of the date written below. XXXXXXXX XXXXXXX
/s/ Xxxxxxxx Xxxxxxx Date: 1/7/04
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SAUCONY, INC.
By: /s/ Xxxxxxx Xxxxx Date: 1/2/04
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