Exhibit 10.26
July 10, 2001
DELIVERY BY HAND
Xxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Dear Mr. Xxxxxx:
This letter contains the terms of a mutual agreement ("Agreement") regarding
your separation from World Kitchen, Inc. (the "Company"). As a full and binding
resolution of all matters relating to your employment with and separation from
the Company, You and the Company agree as follows:
1. Resignation. You agree to resign and the Company agrees to accept your
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resignation effective July 10, 2001 (the "Separation Date").
2. Payments Due. The Company will tender to You the following payments:
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(a) pursuant to the terms of your April 11, 2000 Employment Agreement,
(i) severance equal to the gross amount of $240,000 (less deductions
for federal, state and other income taxes, social security insurance,
and other payroll withholding), to be made in twelve equal monthly
payments commencing with the month following the termination of the
Independent Contractor Agreement referred to in Paragraph 3(a) below,
and (ii) executive outplacement services for six months through a
management consulting service of the Company's choice at a location
convenient to you; and
(b) payment for any accrued but unused vacation days in 2001.
3. Additional Separation Benefits. In consideration of the terms and
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conditions set out in the paragraphs that follow in this Agreement, the
Company will provide additional separation benefits as follows:
(a) Independent Contractor Agreement. The opportunity to enter into a
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mutually-agreeable written contract with the Company, under which You
as an independent contractor will provide consulting services as
assigned by WKI's Chief Executive Officer for a period of six months
or until You commence employment, in return for compensation in the
gross amount of $20,000 (twenty-thousand dollars) per month.
(b) Group Medical Insurance. The Company will pay the Company's share
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of the premium for your continued coverage in the WKI group medical
insurance plans in which You presently participate (medical, dental
and life insurance), for the period required by COBRA, to a maximum of
18 months.
(c) Sale of your House at 000 Xxxxxxx Xxxxxx, Xxxxxx, XX. The Company
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will cover the sale of your home at 000 Xxxxxxx Xxxxxx, Xxxxxx, XX,
under the Home Sale provision of the Transferring Homeowner Policy
with Remax.
(d) Storage and Moving. The Company will pay you Fifteen Thousand
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Dollars ($15,000) when you close on your home in Elmira as
compensation for the moving and storage of your household effects.
You also agree and acknowledge that the total of the benefits described in
Paragraph 3 are in full consideration of the terms You agree to in this
Agreement and that You would have no entitlement to them absent this
Agreement.
4. Release
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(a) Except for any right You (as defined in Paragraph 4(b) below) may
have to challenge that You are entering into this Agreement knowingly
and voluntarily, by signing this Agreement, You agree and acknowledge
that You are waiving your right to assert and are releasing and
discharging the Company and each of the Company's successors, assigns,
divisions, subsidiaries, current or prior parents and affiliates, and
the directors, officers, agents, employees, representatives, and
attorneys of the Company or any divisions, current or prior parents,
subsidiaries and affiliates, from any and all claims of any sort,
known or unknown, which You now have or have ever had that in any way
relate to your employment relationship with the Company or the
termination of the employment relationship with the Company (the
"Release"). This Release specifically includes, but is not limited to,
any claims under the Age Discrimination in Employment Act, 29 U.S.C.
Sec. 621, et seq., Title VII of the Civil Rights Act of 1964, 42
U.S.C. Sec. 2000e, et seq., 42 U.S.C. Sec. 1981, the Employment
Retirement Income Security Act, 29 U.S.C. Sec. 1001, et seq., the
Americans With Disabilities Act, 42 U.S.C. Sec. 12101, et seq., the
Civil Rights Act of 1991,
the Fair Labor Standards Act, 19 U.S.C. Sec. 201, et seq., the Family
and Medical Leave Act, 29 U.S.C. Sec. 2601, et seq., the Equal Pay
Act, 29 U.S.C. Sec. 206(d), et seq., the Rehabilitation Act, 29 U.S.C.
Sec. 794, et seq., and the New York Human Rights law, and New York
State Labor Law, each as amended, or under any other federal, state or
local statute, law, regulation, or ordinance banning any type of
employment discrimination or in any way pertaining to or regulating
employment relationships as well as any claim of unlawful retaliation,
wrongful discharge, breach of contract (express or implied), breach of
good faith and fair dealing, emotional distress, claims of personal
injury, injury to personal reputation, any equitable or any other type
of claim whatsoever in any way related to your employment or the
termination of your employment.
(b) For purposes of this Release, "You" shall include Xxxxx Xxxxxx, his
spouse, issue, agents, representatives, guardians, assigns,
dependents, heirs, executors, administrators, and attorneys.
(c) You represent that You have not filed any lawsuit, petition, charge
of discrimination, grievance or action of any nature against the
Company, or anyone else released above, asserting any claims that are
released in Paragraph 4(a).
5. Consultation with Legal Counsel. You acknowledge that the Company here
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has advised You in writing to consult with counsel and has granted You at
least twenty-one (21) days to consider this Agreement, including its
Release, before signing it.
6. Revocation Period. Following your execution of this Release, You will
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have seven (7) days during which to revoke your agreement to this Release.
Any revocation must be in writing, and received by the Company's General
Counsel Xxxxxxx Xxxxx, before 5:00 p.m. Eastern Standard Time on the 8th
day following your execution. If You execute and do not revoke your
agreement, this Release shall become effective and enforceable upon the
expiration of the revocation period, and the separation benefits described
above in Paragraph 3 will then be provided to You.
7. No Solicitation of Employees. You acknowledge that the Company has a
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highly qualified and loyal work force and a consequent valuable and strong
interest in maintaining that work force. You here agree that, for a period
of one year after the Separation Date, You will not contact any employees
of the Company,
directly, indirectly or through a third party, for the purpose of
soliciting or inducing them in any fashion to quit at any time their
employment with the Company for any purpose.
8. Cooperation in Investigations, Claims and Litigation. You agree that, at
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the request of the Company, You will cooperate with the Company and its
subsidiaries and affiliates and their officers, directors and counsel in
connection with any investigation, claim or litigation relating to any
matter in which You were involved during your employment with the Company
or of which You have knowledge. The Company agrees to reimburse You for all
reasonable expenses incurred by You in providing such assistance and to pay
a reasonable per diem rate for any services requested of You in connection
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therewith.
9. Breach of Paragraphs 7 or 8. In the event that You breach Paragraphs 7
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or 8, You agree that effective with such breach the Company's obligation to
make any payments to You or to provide You with any benefits pursuant to
Paragraph 3 shall cease immediately, without prejudice to the Company's
right to seek any other remedy, including injunctive relief, and without
prejudice to the Company's right to enforce the Release in Paragraph 4.
10. Final Settlement of Claims and Employment. You understand and agree
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that, except for any right You may have to challenge the knowing and
voluntary nature of this Agreement, any claims or disputes in any way
related to your employment relationship and separation from the Company are
fully compromised, settled and released on the effective date of this
Agreement.
11. No Admission of Fault. You acknowledge and understand that nothing in
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this Agreement is an admission of fault or wrongdoing by the Company.
12. Nature of Separation. You agree that You are resigning from the Company
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and that if asked about your separation from the Company, You and any
authorized Company representative will respond that You resigned for
reasons and on terms mutually acceptable to You and the Company.
13. Voluntary Nature of Agreement. Both parties acknowledge that they have
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read this Agreement before executing it, understand its terms and have
knowingly and voluntarily chosen to enter into this Agreement. The parties
also acknowledge that no promise or representation has been made by You to
the Company or by the Company to You other than as set out in this
Agreement.
14. Confidentiality of The Terms of This Agreement. You agree not to
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disclose the terms and provisions of this Agreement to anyone other than
your spouse, your current attorney, tax advisor or financial advisor. You
further agree that because of the difficulty of enforcing this provision,
and harm to the Company, the Company is entitled to injunctive relief
against any breach of this provision in addition to any other relief to
which it may be entitled.
15. Severability. This Agreement is expressly made subject to the
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provisions of applicable federal laws and the internal laws of the State of
New York, without regard to its choice of law rules. If any provision of
this Agreement is invalidated or held unenforceable because of any conflict
with any such law (or any other law deemed applicable), the remaining
provisions hereof shall not be affected but shall continue to be valid and
enforceable to the fullest extent permitted by law.
16. Return of Company Property. You represent that You have returned all
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Company files, documents, proprietary information, keys, credit cards
bearing the Company's name, and Company-owned equipment, including but not
limited to pagers, telephones, facsimile equipment and computers.
17. Other Agreements or Plans. Execution of this Agreement will not alter
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the rights or obligations of You or of the Company under the April 11, 2000
Employment Agreement, and the $240,000 (two hundred and forty thousand
dollars) severance payment, less applicable federal, state and local taxes
and deductions, due under the Employee Agreement thus will be made in
twelve equal installments commencing with the month following the
termination of the Independent Contractor Agreement described in Paragraph
3(a) of this Agreement. Execution of this Agreement further will not alter
the rights or obligations of You or of the Company under the Management
Stockholder's Agreement, including but not limited to the provisions on
non-disclosure of confidential information and the covenant not to compete
contained in its paragraph 26. Further, execution of this Agreement will
not effect any vested rights that You may have under the World Kitchen,
Inc. pension plan, the Investment Plan 401(k), or the Xxxxxx, Inc.
Supplemental Pension Plan.
18. Modification. The provisions of this Agreement are severable, and to
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the extent one provision is determined to be invalid, the remaining
provisions shall remain binding on the Parties. This Agreement constitutes
the complete understanding between You and the Company. The Agreement may
be modified or amended only by a written instrument executed by all of the
parties hereto. It may not be amended, modified, changed or added to in any
manner by verbal statements, acts
or conduct. Any party's failure to enforce this Agreement in the event of
one or more events which violate this Agreement shall not constitute a
waiver of any right to enforce this Agreement against subsequent
violations.
The Company acknowledges its agreement to the terms and conditions contained
above by having a duly authorized representative sign below.
If You mutually agree to these terms and conditions, sign and date this
Agreement below and postmark an executed copy to the attention of Xxxxxxx Xxxxx
no later than August 1, 2001, which is at least 21 days after you were tendered
this Agreement. THIS IS A LEGAL DOCUMENT. PLEASE CONSULT AND ATTORNEY, AND
CONSIDER IT CAREFULLY BEFORE SIGNING IT.
Sincerely,
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XXXXXX X. XXXX, PRESIDENT & CEO
Acknowledged and agreed to this
day of , 2001
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Xxxxx X. Xxxxxx
Subscribed and sworn to before
me this day of ,
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2001.
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Notary Public
My commission expires: