Exhibit - 10.77
SEPARATION AGREEMENT AND GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL RELEASE is made and entered into
by and between XXXXX X. XXXXXXXXXXXXX (hereinafter referred to as "Employee")
and GOODY'S FAMILY CLOTHING, INC. (hereinafter referred to as "the Company").
STATEMENT OF FACTS
Employee desires to resign from the Company to pursue other
opportunities. Employee desires to accept the following agreements, and Employee
and the Company desire to settle fully and finally any differences and disputes
between them, including, but in no way limited to, any differences and disputes
that might arise, or have arisen, out of Employee's employment with the Company,
and the termination thereof.
STATEMENT OF TERMS
In consideration of the premises and mutual promises herein contained,
it is agreed as follows:
Section 1. Non-Admission of Liability.
--------------------------
This Separation Agreement and General Release (the "Agreement") shall
not in any way be construed as an admission by the Company that it has acted
wrongfully with respect to Employee or any other person, or that Employee has
any rights whatsoever against the Company, and the Company specifically
disclaims any liability to or wrongful acts against Employee or any other
person, on the part of itself, its employees or its agents.
Section 2. Termination of Employment.
-------------------------
Employee represents, understands and agrees that his employment with
the Company terminated on November 1, 1999 (the "Date of Termination").
Section 3. Return of Consideration.
-----------------------
Employee understands that this Agreement is final and binding. Employee
agrees not to challenge its enforceability. If Employee attempts to challenge
the enforceability of this Agreement, he shall initially tender to the Company,
by certified funds delivered to the Company, all monies and other value he
receives pursuant to this Agreement, and shall invite the Company to retain such
monies and agree with him to cancel this Agreement. In the event the Company
accepts this offer, the Company shall retain such monies and this Agreement
shall be cancelled. In the event the Company does not accept such offer, the
Company shall so notify Employee, and shall place such monies in an
interest-bearing escrow account pending resolution of the dispute as to whether
this Agreement shall be set aside and/or otherwise rendered unenforceable.
Section 4. Consideration.
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x. Xxxxxxxxx Payment. The Company agrees to pay Employee a severance
payment in the ------------------ total gross amount of One Hundred Thousand
Dollars ($100,000), less applicable tax withholding and other standard
deductions.
b. Bonus. The Employee waives any right he may have to assert a claim to be
paid a ----- Bonus, as such term is defined in Section 5(b) of the "Employment
Agreement" (as hereinafter defined).
c. Vacation Pay. Except for six (6) days of accrued vacation to be paid by
Company to ------------- Employee, the Employee waives any right he may have to
assert a claim to be paid for accrued vacation days.
Section 5. Cessation of Authority.
----------------------
Employee understands and agrees that effective on the Date of
Termination, he is not authorized to incur any expenses, obligations or
liabilities, or to make any commitments on behalf of the Company. Employee
agrees to submit to the Company within twenty (20) days from the Date of
Termination any and all expenses incurred by him through that date. Such
expenses shall be paid by the Company in accordance with its existing policies
and procedures.
Section 6. Return of Company Materials and Property.
----------------------------------------
Employee understands and agrees that he will turn over to the Company
on or before the Date of Termination all files, memoranda, records, credit cards
and other documents, physical or personal property which he received from the
Company and/or which he used in the course of his employment with the Company
and which are the property of the Company. Employee agrees, represents and
acknowledges that as a result of his employment with the Company, he has had in
his custody, possession and control proprietary documents, data, materials,
files and other similar items concerning proprietary information of the Company
as described in the Employment Agreement dated January 31, 1999 and attached as
Exhibit "A" to this Agreement (the "Employment Agreement"), and Employee
acknowledges, warrants and agrees that he has returned all such items and any
copies or extras thereof and any other property, files or documents obtained as
a result of his employment with the Company and he has held such information in
trust and in strict confidence and will continue to do so, and that he has
complied and will comply with Section 12 of the Employment Agreement regarding
proprietary information.
Section 7. Employment Agreement; No Solicitation.
-------------------------------------
Employee understands and agrees that the terms of Section 12 of the
Employment Agreement are fully enforceable and remain in full force and effect.
Section 8. No Obligation.
-------------
Employee agrees and understands that the consideration described above
in Section 4.a. is not required by the Company's policies and procedures.
Employee further agrees and understands that his entitlement to receive the
consideration set forth above is conditioned upon his execution of this
Agreement and his compliance with the terms of Section 12 of the Employment
Agreement.
Section 9. Severability.
------------
The provisions of this Agreement are severable, and if any part of it
is found to be unenforceable, the other paragraphs shall remain fully valid and
enforceable. This Agreement shall survive the termination of any arrangements
contained herein.
Section 10. Consultation with an Attorney.
The Company advises Employee to consult with an attorney prior to
executing this Agreement. Employee agrees that he has had the opportunity to
consult counsel if he chose to do so. Employee further acknowledges that he has
had ample time in which to execute this Agreement, and that he has had
sufficient time to read and consider this Agreement before executing it.
Employee acknowledges that he is responsible for any costs and fees resulting
from his attorney reviewing this Agreement. Employee agrees that he has
carefully read this Agreement and understands its contents, that he signs this
Agreement voluntarily, with a full understanding of its significance, and
intending to be bound by its terms.
Section 11. Right to Revoke.
---------------
Employee may revoke and cancel this Agreement at any time within seven
(7) days after each party's execution of this Agreement by: (i) providing
written notice of revocation to the Company and (ii) returning to the Company
the severance payment paid by Company to Employee as specified in Section 4.a.
herein above. If Employee does so revoke, this Agreement will be null and void.
This Agreement shall not become effective and enforceable until after the
expiration of this seven (7) day revocation period; after such time, if there
has been no revocation, the Agreement shall be fully effective and enforceable.
Section 12. Complete Release.
----------------
As a material inducement to the Company to enter into this Agreement,
Employee hereby irrevocably and unconditionally releases, acquits and forever
discharges the Company and each of the Company's owners, stockholders,
predecessors, successors, assigns, agents, directors, officers, employees,
representatives, attorneys, parent companies, divisions, subsidiaries,
affiliates (and agents, directors, officers, employees, representatives and
attorneys of such parent companies, divisions, subsidiaries and affiliates), and
all persons acting by, through, under or in concert with any of them
(collectively "Releasees"), or any of them, from any and all, but not limited
to, rights arising out of alleged violations or breaches of any contracts,
express or implied, or any tort, or any legal restrictions on the Company's
right to terminate employees, or any federal, state or other governmental
statute, regulation, or ordinance, including, without limitation: (1) Title VII
of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991,
(race, color, religion, sex, and national origin discrimination); (2) 42 U.S.C.
ss. 1981 (discrimination); (3) the Americans with Disabilities Act (disability
discrimination); (4) 29 U.S.C. xx.xx. 621-624 (the Age Discrimination in
Employment Act); (5) 29 U.S.C. ss. 206(d)(1) (equal pay); (6) Executive Order
11246 (race, color, religion, sex and national origin discrimination); (7)
Executive Order 11141 (age discrimination); (8) Section 503 of the
Rehabilitation Act of 1973 (handicap discrimination); (9) intentional or
negligent infliction of emotional distress or "outrage"; (10) defamation; (11)
interference with employment; (12) wrongful discharge; and (13) invasion of
privacy, which Employee now has, owns or holds, or claims to have, own or hold,
or which Employee at any time heretofore had, owned or held, or claimed to have,
owned or held, against each or any of the Releasees at any time up to and
including the date of this Agreement.
As a material inducement to the Employee to enter into this Agreement,
the Company hereby irrevocably and unconditionally releases acquits and forever
discharges the Employee from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, controversies, damages, actions,
causes of action, suits, rights, demands, costs, losses, debts, and expenses of
any nature whatsoever, known or unknown, suspected or unsuspected, related to
Employee's employment relation with the Company; provided, however, that the
Company does not release the Employee from any claims related to a breach by the
Employee of his obligations hereunder.
Section 13. Indemnification.
---------------
As a further material inducement to the Company to enter into this
Agreement, Employee hereby agrees to indemnify and hold each and all of the
Releasees harmless from and against any and all loss, costs, damages, or
expenses, including, without limitation, attorneys' fees incurred by Releasees,
or any of them, arising out of any breach of this Separation Agreement and
General Release by Employee or the fact that any representation made herein by
Employee was false when made.
Section 14. No Other Representations.
------------------------
Employee represents and acknowledges that in executing this Separation
Agreement and General Release he does not rely, and has not relied, upon any
representation or statement not set forth herein made by any of the Releasees or
by any of the Releasees' agents, representatives, or attorneys with regard to
the subject matter, basis or effect of this Separation Agreement and General
Release or otherwise.
Section 15. Sole and Entire Agreement.
-------------------------
This Agreement sets forth the entire agreement between the parties
hereto, and supersedes any and all prior agreements or understandings between
the parties pertaining to the subject matter hereof with the exception of
Section 12 of the Employment Agreement, which remains in effect to the extent it
is not inconsistent with this Separation Agreement and General Release.
Employee warrants that he has had ample time to consider this
Agreement, that he understands its provisions, and that he enters into this
Agreement voluntarily and after having the opportunity to receive the advice and
counsel of his attorney.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
Executed at Knoxville, Tennessee this __19__ day of November, 1999.
Sworn to and subscribed __/s/ Xxxxx X. Reichelderfer__________
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before me this _19__ day Xxxxx X. Xxxxxxxxxxxxx
--
of November 1999.
__/s/ Xxxxxxxx X. Williams_____________
------------------------
NOTARY PUBLIC
My Commission Expires: November 5, 2003
[NOTARY SEAL]
Executed at Knoxville, Tennessee this _19__ day of November, 1999.
GOODY'S FAMILY CLOTHING, INC.
By: /s/ Xxxxx Xxx Xxxxx
h:cbt\forms\sepagree.doc
