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Exhibit 10.30
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT ("Agreement") is entered into on December 28,
2000 by and between RENT-WAY, INC., a Pennsylvania corporation (the "Company"),
and XXXXXXX X. XXXXXX, a resident of the State of Pennsylvania (the "Employee").
WHEREAS, the Company and the Employee were parties to an Employment
Agreement dated October 1, 1998 and covering a period of time through and
including September 30, 2002, which the parties seek to terminate early,
contemporaneously with the Employee's resignation of his employment from the
Company; and
WHEREAS, the Company has agreed to pay the Employee certain sums and
benefits in connection with the resignation of his employment under the terms
and conditions set forth herein and in exchange for the Employee's agreements
contained herein; and
WHEREAS, during his employment with the Company, the Employee has had
access to confidential and proprietary information that is valuable to the
Company.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements made herein, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby agree as
follows:
1. TERMINATION; SEPARATION PAY; ETC.
1.1 TERMINATION. The parties agree that the Company's
employment of the Employee will terminate as of December 31, 2000 (the
"Termination Date"). Accordingly, the Employee resigns effective at the close of
business on the Termination Date as an employee, officer and Member of the Board
of the Company, and all of its subsidiaries and all committees thereof,
including the Employee Benefits Committee, and relinquishes all powers and
rights associated therewith (except as expressly set forth herein). The Company
accepts such resipnation, on behalf of itself and its subsidiaries, effective on
the Termination Date.
1.2 PAY AND BENEFITS.
(1) In consideration of the mutual promises contained in this
Agreement, the Company will pay the Employee, in twenty-six (26) equal bi-weekly
payments, the total sum of Two Hundred Seventy-Five Thousand Dollars
($275,000.00) between January 1, 2001 and December31, 2001. Each bi-weekly
payment shall be in the amount of Ten Thousand Five Hundred Seventy Six and
92/100 Dollars ($10,576.92), less any withholdings for federal, state and local
income taxes.
(b) In. addition, the Company will continue to provide, at its
sole cost and expense, medical and life insurance benefits to which the Employee
was entitled immediately prior to the Termination Date for a period of up to
twelve (12) months following the Termination Date.
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Continuing medical benefits, however, will cease earlier than the expiration of
the twelve (12) month period if, and at the time that, the Employee becomes
eligible for medical coverage in any other employer-sponsored medical plan. The
parties hereby acknowledge that COBRA coverage eligibility for the Employee will
commence immediately upon the earlier of a qualifying event under the COBRA
rules (except for the Employee's resignation from the Company) or the cessation
of such benefits from the Company after the twelve (12) month period expires.
(c) The Company shall transfer ownership of the laptop
computer and docking station that Employee has used during the course of his
employment with the Company to the Employee, but first may conduct a reasonable
search of the laptop's drives to remove any Information (as hereinafter defined
in Paragraph 3).
2. LITIGATION CONSULTING AGREEMENT. The parties agree that during
the pendency of any litigation or investigation arising out of or relating to
the accounting irregularities that were brought to the Company's attention in
October 2000 (the "Consulting Period"), the Company may consult with the
Employee about such matters on an as-needed basis and the Employee will provide
reasonable cooperation in connection therewith. For any such consulting services
that occur after one year after the Termination Date, the Company will pay the
Employee an hourly fee of One Hundred Fifty Dollars ($150.00) for all time
actually spent performing such services. In addition to such fee, the Company
will reimburse the Employee for out-of-pocket expenses he incurs in the
performance of his duties under this Section 2, subject to the Company's
standard reimbursement policies. During the Consulting Period, the Employee will
not be entitled to receive, and will not receive, any benefit provided by the
Company or any of its affiliates to employees except as expressly stipulated in
Section 1.2 of this Agreement. Additionally, the Company will not be responsible
for deducting or withholding any taxes or other assessments from any monies paid
to the Employee as a consultant under this Section 2. The parties acknowledge
and agree that the Employee is to act as a consultant and advisor to the Company
and not as an agent or employee in any respect. Accordingly, the Employee will
have no right, authority or power to act for or on behalf of the Company or its
affiliates except as the Company may specifically grant.
3. CONFIDENTIALITY AND PROPRIETARY INFORMATION. The Employee
agrees to keep secret all confidential information, trade secrets or proprietary
information acquired by the Employee during his employment concerning the
business and affairs of the Company (the "Information") and further agrees not
to disclose any such Information to any person, firm or corporation or other
entity other than as directed by the Company, unless and until such Information
becomes known outside of Company (other than through a violation by Employee of
his obligations in this Section 3).
4. RELEASES; CONVENANT NOT TO XXX.
4.1 RELEASE. Except for (a) a breach of this Agreement
and/or (b) a breach of the indemnification obligations set forth in the
Company's by-laws, the Employee hereby fully and forever releases the Company,
its successors and assigns, affiliates, insurers, officers,
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directors, employees and agents, from any and all liability, causes of action,
suits, damages, claims and demands whatsoever that the Employee now has (whether
known or unknown) that arise from or relate in any way to his employment with
the Company or the conduct of the Company's business through the Termination
Date, including any claim under any federal, state or local statute, rule,
regulation, executive order or guideline relating to discrimination.
Notwithstanding the foregoing, this release shall not be construed as releasing
any insurer from any applicable insurance coverage, specifically including any
directors' and officers' liability coverage, for any lawsuit or investigation
that arises out of or relates to the Employee's employment with the Company,
including the accounting irregularities that were brought to the Company's
attention in October 2000. Nor shall this release be construed as releasing any
claims, counterclaims, or cross-claims that the Employee may have against any
former employees of the Company arising out of or related to the accounting
irregularities that were brought to the Company's attention in October 2000,
provided that any such claims, counterclaims or cross-claims do not give rise to
indemnity obligations of the Company to such former employees. This Release,
subject to the exceptions noted herein, is intended to cover all possible legal
and/or equitable relief, including attorney's fees and costs.
4.2 COVENANT NOT TO XXX. Except for (a) breach of this
Agreement, and/or (b) a breach of the indemnification obligations set forth in
the Company's by-laws, the Employee covenants that he will not initiate or bring
any proceeding, suit, claim, cross-claim, cause of action, or administrative
proceeding against the Company arising out of or in any way related to the
Employee's employment by the Company or the conduct of the Company's business
prior to the Termination Date. The Employee further covenants that, unless
required to do so by law or by means of a valid court order or subpoena, he will
not cooperate with any person in the institution or prosecution of any such
proceeding, suit, claim or investigation brought, initiated or conducted by any
person against the Company. The parties further warrant and represent that they
have filed no complaint in any federal, state or local court against one
another, nor commenced any other action in any federal, state or local agency
against one another. Nothing contained herein is intended to affect the
obligation of the Employee or the Company to give truthful testimony in any
proceeding when and as may be required by law or to otherwise discharge
obligations imposed by law.
5. INDEMNIFICATION. In accordance with and subject to
the terms of the Company's by-laws, the Company hereby agrees to indemnify and
hold the Employee harmless from and against any and all loss, costs, damages, or
expenses, including, without limitation, attorneys' fees incurred by the
Employee, arising out of the Employee's employment with the Company or any legal
action arising out of or otherwise related to the Employee's employment with the
Company, and pursuant to a letter dated November 3, 2000 from the Company's
counsel, to pay the Employee's legal fees and costs to date and in the future as
provided for in the Company's by-laws and subject to the November 6, 2000
undertaking signed by the Employee.
6. NO ADMISSION OF LIABILITY. Nothing contained in this
Agreement shall be construed as an admission of liability or wrongdoing on the
part of either the Employee or the Company, and both parties expressly deny any
wrongdoing or violation of law.
7. SUCCESSORS AND ASSIGNS. The provisions of this
Agreement shall inure to
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the benefit of and be binding upon the respective successors, assigns and legal
representatives of the parties. This Agreement does not, and is not intended to,
confer any rights on third parties who are not parties to this Agreement.
8. GOVERNING LAW. This Agreement shall be interpreted
under, subject to and governed by the substantive laws of the Commonwealth of
Pennsylvania, except to the extent pre-empted by federal law, without reference
to its conflicts of laws provisions, and all questions concerning its validity,
construction, and administration shall be determined in accordance thereby.
9. WAIVERS. The waiver of a breach by either party of a
term or provision of this Agreement, at any time or times, shall not be deemed
or construed to be a waiver of any subsequent breach or breaches of the same or
of any other terms or provisions of this Agreement at any time or times.
10. INVALIDITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect any other provision hereof and this
Agreement shall be construed in all respects as if such invalid or unenforceable
provision was omitted. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part of this
Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
11. EXCLUSIVENESS. This Agreement constitutes the entire
understanding and agreement between the parties with respect to the employment
and resignation of the Employee and supersedes any and all other agreements,
oral or written, directly and solely between the parties, including but not
limited to that certain Employment Agreement dated October 1, 1998. Furthermore,
each party to this Agreement represents that they have had advice from counsel
of their choosing in connection with the execution of this Agreement.
12. MODIFICATION. This Agreement may not be modified or
amended except in writing signed by the parties. No term or condition of this
Agreement will be deemed to have been waived except in writing by the party
charged with waiver. A waiver shall operate only as to the specific term or
condition waived and will not constitute a waiver for the future or act on
anything other than that which is specifically waived.
13. NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
made when mailed first-class postage prepaid by registered mail, return receipt
requested, or when delivered by hand, overnight delivery service or confirmed
facsimile transmission.
14. CONFIDENTIALITY. Except to the extent any party to
this Agreement is required to disclose such information to its lenders,
insurers, auditors, accountants, successors-in interest, legal representatives,
or governmental authority, the terms of this Agreement, including the amount of
consideration paid, shall not be directly or indirectly disclosed by any party
or their respective employees, agents, attorneys, or legal representatives,
except by written consent
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of all parties or a court order or as may be required by legal process or
applicable law. Disclosure of the terms of this Agreement to the immediate
family members of the parties shall not violate this Paragraph.
15. ENFORCEABILITY. In the event of a breach or default
by any party to this Agreement, the non-breaching party may enforce the terms of
this Agreement in a court of competent jurisdiction, in which event the
substantially prevailing party shall be entitled to reasonable costs and
expenses, including reasonable attorneys' fees.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
"COMPANY"
RENT-WAY, NC.
By: /s/ Xxxxxxx Xxxxxxxxxxx
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Its: Chairman and CEO
"EMPLOYEE"
XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
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