EXHIBIT 10.1
GENERAL RELEASE AND SEVERANCE AGREEMENT
("AGREEMENT")
For good and valuable consideration, receipt of which is hereby
acknowledged, and in order to resolve and settle finally, fully and completely
all matters or disputes that now or may exist between them, as set forth below,
the parties agree as follows:
1. PARTIES. The parties to this Agreement are Xxxxxxxx X. Xxxx, her heirs,
spouse, representatives, successors and assigns (hereinafter referred to
collectively as "Employee"), and Craftmade International, Inc., a Delaware
corporation, and any of its parents, predecessors, successors, subsidiaries,
affiliates or related companies, organizations, officers, directors,
stockholders, employees, attorneys and/or representatives (hereinafter referred
to collectively as the "Company").
2. TERMINATION FROM EMPLOYMENT WITH THE COMPANY AND TERMINATION OF
DIRECTORSHIP. The parties agree that Employee's last day of employment with the
Company was November 9, 2004, and that she was no longer employed by the Company
after that date. The parties further agree that as of November 17, 2004,
Employee voluntarily resigns her position as a director of Company in full
compliance with the provisions set forth in Paragraph 10 of this Agreement.
Employee further agrees that she will not stand for election as a director at
the Company's annual meeting of stockholders to be held on November 30, 2004,
or any adjournments thereof. Employee shall sign a letter for public disclosure
memorializing her resignation as an employee and director of Company.
3. CONSIDERATION. In consideration of Employee's release of claims
against the Company, as described in Paragraph 4, the Company shall pay
Employee the following consideration:
(a) Company shall pay Employee One Hundred Seventy Three Thousand
Nine Hundred Eighty-One and 22/100 Dollars ($173,981.22) ("Funds"), minus
normal withholding and taxes required by law, and;
(b) Pursuant to the terms of this Paragraph, if Employee elects to
continue her group health insurance coverage pursuant to COBRA, Employee
must continue to pay that portion of the premium for her group health
insurance that she was required to pay as an active Employee before the
termination of her employment, but the Company agrees to pay for the
remaining portion of COBRA coverage (excluding Employee's portion),
provided Employee timely elects and pays her portion for COBRA coverage.
However, Company will make such payments only for the lesser period of: (i)
up to 18 months from November 9, 2004, or (ii) until Employee (A) obtains
employment with another employer that provides health insurance coverage
and (B) Employee qualifies for health insurance coverage. No provision of
this Paragraph shall permit Employee to elect COBRA coverage for a period
of time longer than is allowed by federal law.
Employee recognizes and agrees that she is not otherwise entitled to any of the
above-described consideration, and will receive the consideration only as a
condition of signing this Agreement. Payment of the Funds shall be made to
Employee on December 17, 2004. These monies and benefits constitute full and
final settlement of all Employee's claims, whether known or unknown, as set
forth in Paragraph 4 below.
4. MUTUAL RELEASE OF CLAIMS. In consideration of the payments and
promises described herein. Employee and Company release, discharge, and forever
hold the other harmless from any and all claims, demands or suits, whether
civil or criminal, at law or in equity, known or unknown, fixed or contingent,
liquidated or unliquidated, arising or existing on or at
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any time prior to the execution of this Agreement. Such released claims
include, without limitation, claims relating to or arising out of (i)
Employee's employment with the Company, (ii) Employee's separation from
employment with the Company, and (iii) all claims known or unknown that have
been asserted, or that could be asserted, by Employee against the Company, or
by Company against Employee, including, but not limited to, claims under title
VII of the Civil Rights Act of 1964, as amended, ("Title VII"), the Americans
with Disabilities Act ("ADA"), the Texas Commission on Human Rights Act
("TCHRA"), the Employee Retirement Income Security Act ("ERISA"), the Fair
Labor Standards Act ("FLSA"), the Family and Medical Leave Act ("FMLA"), the
Age Discrimination in Employment Act ("ADEA"), and any claim for sex
discrimination, sexual harassment, age discrimination or for violation of
common law, breach of contract, retaliation or for wrongful discharge or
interference with contract.
5. NO ADMISSION OF LIABILITY. This Agreement shall not in any way be
construed as an admission by the Company of any acts of wrongdoing or violation
of any statute, law, or legal right. Rather, the Company specifically denies
and disclaims that it has any liability to Employee, but is willing to pay the
sum described above at this time to definitively resolve once and forever this
matter and to avoid the costs, expense, and delay of litigation.
6. UNEMPLOYMENT BENEFITS. Company agrees that it will not contest any
application by Employee for unemployment benefits with the Texas workforce
Commission.
7. INDEMNIFICATION. The Company agrees that it shall indemnify, defend
and hold Employee harmless for her actions as the Chief Financial Officer and
as a Director of Company, but only as required pursuant to the certificate of
incorporation or by-laws of the company for lawful actions in the proper scope
and course of her employment.
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8. NON-DISCLOSURE, CONFIDENTIALITY AND NON-DISPARAGEMENT. The Company
and Employee agree to the following non-disclosure and confidentiality terms:
(a) EMPLOYEE NON-DISCLOSURE AND CONFIDENTIALITY. Employee agrees that
she will not discuss the facts or terms of this Agreement, other than to
say that any dispute she had with Company has been resolved. She may,
however, disclose the terms of this Agreement to her CPA or tax advisor,
attorney, spouse, or as required by law. Furthermore, Employee may refer
people to the public filing of this Agreement with the Securities and
Exchange Commission.
(b) NON-DISPARAGEMENT. Employee agrees that she shall make no adverse
comments about or otherwise disparage the Company. Employee agrees not to
discuss, disclose, or otherwise communicate to any third party in any
malicious, disparaging, defamatory or derogatory manner any information
concerning the Company. Further, Employee agrees not to make or authorize
any written or oral statement that may disparage the Company.
9. NEUTRAL REFERENCE. If contacted by third-parties, the Company will
provide a neutral reference regarding Employee's former employment with the
Company. All requests for a neutral reference should be directed to the
Company's Director of Human Resources.
10. NO DISAGREEMENT WITH THE COMPANY'S OPERATIONS, POLICIES OR PRACTICES.
The Employee, effective on the date of this Agreement, has resigned as a
Director of the Company. For and in further consideration of the benefits
provided to Employee by the Company, Employee acknowledges that she has, in her
capacity as a director, no disagreement with the Company on any matter relating
to the Company's operations, policies or practices. Furthermore, Employee will
not furnish the Company with a letter, or any other written
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correspondence, describing such disagreement or the circumstances surrounding
her resignation from employment with the Company in accordance with Item
5.02(a)(2) and Item 5.02(a)(3)(iii) of Form 8-K.
11. RETURN OF CONFIDENTIAL INFORMATION. Employer agrees to return to
Company all of the Company's Confidential Items in the Employee's possession or
subject to the Employee's control, and that Employee shall not retain any
copies, abstracts, sketches, or other physical embodiment of any of the
Company's Confidential Items. For purpose of this Paragraph, "Confidential
Information" shall mean all information that is used in Company's business and
(a) is proprietary to, about or created by Company; (b) gives Company some
competitive advantage, the opportunity of obtaining such advantage or the
disclosure of which could be detrimental to the interests of Company; (c) is not
typically disclosed to non-employees by Company, or otherwise is treated as
confidential by Company; or (d) is designated as Confidential Information by
Company or from all the relevant circumstances should be reasonably be assumed
by Employee to be confidential to Company. Confidential Information shall not
include information publicly known (other than as a result of a direct or
indirect disclosure by the Employee). The phrase "publicly known" shall mean
readily accessible to the public in a written publication.
12. RIGHT TO CONSULT ATTORNEY AND VOLUNTARY NATURE OF AGREEMENT. Employee
represents and agrees that she has had a reasonable time to review the Agreement
and has been advised to consult with an attorney if she chooses, that she fully
understands all the provisions of the Agreement, and that she is voluntarily
entering into this Agreement.
13. NO ASSIGNMENT OF CLAIMS. Employee and Company represent and agree that
they have not transferred or assigned, to any person or entity, any claim
involving the Company or Employee, or any portion thereof, or interest therein.
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14. BINDING EFFECT OF AGREEMENT. This Agreement shall be binding upon the
Company and upon Employee and her heirs, administrators, representatives,
executors, successors and assigns.
15. CONTROLLING LAW. This Agreement shall in all respects be interpreted,
enforced, and governed under the laws of the State of Texas.
16. SEVERABILITY. Should any provision of this Agreement be declared or
determined to be illegal or invalid by any government agency or court of
competent jurisdiction, the validity of the remaining parts, terms or
provisions of this Agreement shall not be affected and such provisions shall
remain in full force and effect.
17. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
between the parties, and fully supersedes any and all prior agreements,
understandings, or representations between the parties pertaining to Employee's
job with the Company, the subject matter of this Agreement or any other term or
condition of the relationship between the Company and Employee. Employee
represents and acknowledges that in executing this Agreement, she does not
rely, and has not relied, upon any representation(s) by the Company or its
agents except as expressly contained in this Agreement.
18. RIGHT TO CONSIDER AGREEMENT. The Company and Employee agree and
acknowledge that Employee has twenty-one (21) days to consider this Agreement
prior to signing. Employee is not required, however, to wait 21 days to execute
this Agreement and may execute this Agreement at any time.
19. RIGHT OF REVOCATION. The Company and Employee agree that Employee may
revoke this Agreement at any time up to seven (7) days after signing.
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PLEASE READ CAREFULLY - THIS AGREEMENT INCLUDES A RELEASE OF CLAIMS
MY SIGNATURE BELOW MEANS THAT I HAVE READ THIS RELEASE AND SEVERANCE
AGREEMENT AND AGREE AND CONSENT TO ALL THE TERMS AND CONDITIONS CONTAINED
IN THE AGREEMENT.
EMPLOYEE
Dated: 11-18-04 /s/ Xxxxxxxx X. Xxxx
_____________________________ __________________________________
Xxxxxxxx X. Xxxx
STATE OF TEXAS SECTION
SECTION
COUNTY OF Dallas SECTION
Before me, a Notary Public, on this day personally appeared Xxxxxxxx X.
Xxxx, known to me to be the person whose name is subscribed to the foregoing
instrument and acknowledged to me that she executed the same for the purposes
and consideration therein expressed.
Given under my hand and seal this 18th day of Nov., 2004.
[SEAL] /s/ Xxxx Xxxxxxxx
XXXX XXXXXXXX ____________________________
Notary Public
State of Texas Notary Public in and for the
My Comm. Expires 06-27-08] State of Texas
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CRAFTMADE INTERNATIONAL, INC.
Dated: 11-23-04 By: /s/ Xxxxx X. Xxxxxxx
--------------- ------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President, Chief Executive Officer and
Chairman of the Board of Directors
STATE OF TEXAS |
|
COUNTY OF DALLAS |
Before me, a Notary Public, on this day personally appeared Xxxxx X.
Xxxxxxx, known to me to be the person and officer whose name is subscribed to
the foregoing instrument and acknowledged to me that the same was the act of
the Craftmade International, Inc., and that he has executed the same on behalf
of said corporation for the purposes and consideration therein expressed, and
in the capacity therein stated.
Given under my hand and seal of office this 23rd day of Nov., 2004,
(SEAL) /s/ Xxxxx X Xxxxxx
-------------------------------------------
Notary Public in and for the State of Texas
(NOTARY SEAL)
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