Separation and Release Agreement
THIS
SEPARATION AND RELEASE AGREEMENT (this “Agreement”) is made as of the
13th day of May, 2010, by and between Xxxx X. Xxxxxxxxx (the “Executive”) and Xxxxxxxx-Alco
Stores, Inc., a Kansas corporation (the “Company”).
WHEREAS,
the Executive’s employment as an executive of the Company has terminated;
and
WHEREAS,
pursuant to Section
6(b)(2) of the Employment Agreement by and between the Company and the
Executive dated July 24, 2008 (the “Employment Agreement”), the
Company has agreed to pay the Executive certain amounts, subject to the
execution of this Agreement.
NOW
THEREFORE, in consideration of these premises and the mutual promises contained
herein, and intending to be legally bound hereby, the parties agree as
follows:
1. Consideration. The
Executive acknowledges that: (i) the payments set forth in Section 6(b) of the
Employment Agreement constitute full settlement of all his rights under the
Employment Agreement, (ii) he has no entitlement under any other severance or
similar arrangement maintained by the Company, and (iii) except as otherwise
provided specifically in this Agreement, the Company does not and will not have
any other liability or obligation to the Executive. The Executive
further acknowledges that, in the absence of his execution of this Agreement,
the benefits and payments specified in Section 6(b) of the
Employment Agreement would not otherwise be due to him.
2. Release and Covenant Not to
Xxx.
2.1The Executive, his heirs and
representatives release, waive and forever discharge the Company, its
predecessors and successors, assigns, stockholders, subsidiaries, parents,
affiliates, officers, directors, trustees, current and former employees, agents
and attorneys, past and present and in their respective capacities as such (the
Company and each such person or entity is each referred to as a “Released Person”) from all
pending or potential claims, counts, causes of action and demands of any kind
whatsoever or nature for money or anything else, whether such claims are known
or unknown, that arose prior to the Executive’s signing this Agreement or that
relate in any way to the Executive’s employment or termination of employment
with the Company. This release includes, but is not limited to, any and all
claims of race discrimination, sexual discrimination, national origin
discrimination, religious discrimination, disability discrimination, age
discrimination and unlawful retaliation and any and all claims under the
following: Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e et seq.; Civil Rights Act of 1866, 42 U.S.C. § 1981 et seq.; the Family
and Medical Leave Act, as amended, 29 U.S.C. § 2601, et seq.; the Americans with
Disabilities Act, as amended, 42 U.S.C. § 12101, et seq.; the Age Discrimination
in Employment Act, as amended by the Older Workers Benefit Protection Act, 29
U.S.C. § 621, et seq.; Kansas Act Against Discrimination, Chapter 44, Art. 10,
K.S.A.; Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §
1001, et seq.; Rehabilitation Act of 1973, 29 U.S.C. § 706, et seq.; any state,
municipal and other local anti-discrimination statutes; any and all claims for
alleged breach of an express or implied contract; any and all tort claims
including, but not limited to, alleged retaliation for assertion of workers’
compensation rights; any and all claims under workers’ compensation law; and any
and all claims for attorney’s fees.
2.2 The Executive expressly
represents that he has not filed a lawsuit or initiated any other administrative
proceeding against a Released Person and that he has not assigned any claim
against a Released Person. The Executive further promises not to
initiate a lawsuit or to bring any other claim against any Released Person
arising out of or in any way related to the Executive’s employment by the
Company or the termination of that employment. This Agreement will
not prevent the Executive from filing a charge with the Equal Employment
Opportunity Commission (or similar state agency) or participating in any
investigation conducted by the Equal Employment Opportunity Commission (or
similar state agency); provided, however, that any claims by
the Executive for personal relief in connection with such a charge or
investigation (such as reinstatement or monetary damages) would be barred. In
addition, this release shall not affect the Executive’s rights under the Older
Workers Benefit Protection Act to have a judicial determination of the validity
of this release and waiver.
2.3 The foregoing will not be
deemed to release the Company from (a) claims solely to enforce this Agreement,
(b) claims solely to enforce Section 6(b) of the
Employment Agreement, (c) claims solely to enforce the terms of any equity
incentive award agreement between the Executive and the Company, (d) claims for
indemnification under the Company’s By-Laws and/or any applicable
indemnification agreements, and/or (e) claims to continue health care coverage
under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended or
similar state law. The foregoing will not be deemed to release any
person or entity from claims arising after the date of this Agreement, whether
under this Agreement, under the Employment Agreement or otherwise.
3. Restrictive
Covenants. The Executive acknowledges that the restrictive
covenants contained in Sections 7 and 8 of
the Employment Agreement (the “Restrictive Covenants”) will
survive the termination of Executive’s employment. The Executive
affirms that the Restrictive Covenants are reasonable and necessary to protect
the legitimate interests of the Company, that he received adequate consideration
in exchange for agreeing to those restrictions and that he will abide by those
restrictions. The Company acknowledges that its obligations contained in Section 8(h) of the
Employment Agreement will survive the termination of the Executive’s
employment.
4. Return of Company
Property. The Executive represents and warrants that he has returned all
property belonging to the Company, including, but not limited to, all keys,
access cards, office equipment, computers, cellular telephones, notebooks,
documents, records, files, written materials, electronic information, credit
cards bearing the Company’s name, and other Company property (originals or
copies in whatever form) in the Executive’s possession or under the Executive’s
control.
5. Cooperation. The
Executive further agrees that, subject to reimbursement of his reasonable
expenses, he will cooperate fully with the Company and its counsel with respect
to any matter (including litigation, investigations, or governmental
proceedings) in which the Executive was in any way involved during his
employment with the Company; provided that such cooperation shall not
unreasonably interfere with Executive’s employment with another employer after
termination of his employment with the Company. The Executive shall
render such cooperation in a timely manner on reasonable notice from the
Company.
6. Rescission
Right. The Executive expressly acknowledges and recites that
(a) he has read and understands the terms of this Agreement in its entirety, (b)
he has entered into this Agreement knowingly and voluntarily, without any duress
or coercion; (c) he has been advised orally and is hereby advised in writing to
consult with an attorney with respect to this Agreement before signing it; (d)
he was provided twenty-one (21) calendar days after receipt of the Agreement to
consider its terms before signing it; and (e) he is provided seven (7) calendar
days from the date of signing to terminate and revoke this Agreement, in which
case this Agreement shall be unenforceable, null and void. The
Executive may revoke this Agreement during those seven (7) days by providing
written notice of revocation to the Company at the address specified in Section
12(d) of the Employment Agreement.
7. Challenge. If
the Executive violates or challenges the enforceability of any provisions of the
Restrictive Covenants or this Agreement, no further payments, rights or benefits
under Section
6(b)(2) of the Employment Agreement will be due to the
Executive.
8. Miscellaneous.
8.1 No Admission of
Liability. This Agreement is not to be construed as an
admission of any violation of any federal, state or local statute, ordinance or
regulation or of any duty owed by the Company to the Executive. There
have been no such violations, and the Company specifically denies any such
violations.
8.2 No
Reinstatement. The Executive agrees that he will not without
the consent of the Company apply for reinstatement with the Company or seek in
any way to be reinstated, re-employed or hired by the Company in the
future.
8.3 Successors and
Assigns. This Agreement shall inure to the benefit of and be
binding upon the Company and the Executive and their respective successors,
permitted assigns, executors, administrators and heirs. The Executive
may not make any assignment of this Agreement or any interest herein, by
operation of law or otherwise. The Company may assign this Agreement
to any successor to all or substantially all of its assets and business by means
of liquidation, dissolution, merger, consolidation, transfer of assets, or
otherwise.
8.4 Severability. Whenever
possible, each provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law. However, if any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability will not affect any
other provision, and this Agreement will be reformed, construed and enforced as
though the invalid, illegal or unenforceable provision had never been herein
contained.
8.5 Entire Agreement;
Amendments. Except as otherwise provided herein, this
Agreement contains the entire agreement and understanding of the parties hereto
relating to the subject matter hereof, and merges and supersedes all prior and
contemporaneous discussions, agreements and understandings of every nature
relating to the subject matter hereof. This Agreement may not be
changed or modified, except by an agreement in writing signed by each of the
parties hereto.
8.6 Governing
Law. This Agreement shall be governed by, and enforced in
accordance with, the laws of the State of Kansas, without regard to the
application of the principles of conflicts of laws.
8.7 Counterparts and
Facsimiles. This Agreement may be executed, including
execution by facsimile signature, in multiple counterparts, each of which shall
be deemed an original, and all of which together shall be deemed to be one and
the same instrument.
IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by its
duly authorized officer, and the Executive has executed this Agreement, in each
case as of the date first above written.
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EMPLOYEE:
/s/Xxxx X. Xxxxxxxxx
Xxxx
X. Xxxxxxxxx
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COMPANY:
XXXXXXXX-ALCO
STORES, INC.
/s/ Xxxxxxx X. Xxxxxx
By:
Xxxxxxx X. Xxxxxx
Its:
President & CEO
Date:
May 13, 2010
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