Exhibit 10.1
SEPARATION AGREEMENT
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THIS SEPARATION AGREEMENT is made this 19th day of October, 1998, (the
"Agreement") by and between Wickes Inc., a Delaware corporation (the "Company"),
and Xxxxxxx X. Xxxxxxxxx ("Xxxxxxxxx").
W I T N E S S E T H:
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WHEREAS, Xxxxxxxxx currently is serving the Company as its Vice
Chairman, Chief Administrative Officer, General Counsel and Secretary and as a
member of its Board of Directors; and
WHEREAS, the parties wish to set forth their agreements regarding the
termination of Xxxxxxxxx'x positions with the Company, on the terms hereinafter
set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements hereinafter set forth, the parties, intending to be legally bound
hereby, agree as follows:
1. Termination.
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(a) From and after October 19, 1998 (the "Termination Date"),
Xxxxxxxxx shall no longer serve the Company as its Vice Chairman, Chief
Administrative Officer, General Counsel and Secretary and any other employment
relationship that he had with the Company or any of its subsidiaries shall
terminate.
(b) Xxxxxxxxx hereby resigns as a director of the Company and
from the Board of Directors of any subsidiary of the Company on which he serves,
effective as of the Termination Date.
2. Salary and Vacation. Xxxxxxxxx shall receive his regular salary
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payments through the Termination Date, in addition to the sum of $29,322.28 for
accrued, but unused vacation (less any payroll deductions required by law),
payable no later than ten (10) business days after execution and delivery of
this Agreement.
3. Severance. Xxxxxxxxx shall receive the sum of Six Hundred Thirty
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Thousand Dollars ($630,000) (less any payroll deductions required by law)
payable immediately upon execution and delivery of this Agreement, via wire
transfer by the Company to an account designated by Xxxxxxxxx, in writing, in
lieu of any severance pay or bonus which Xxxxxxxxx may be entitled to under the
Company's Special Severance and Stay Incentive Bonus Plan, dated November 25,
1997 (the "Stay Incentive Bonus Plan") or otherwise pursuant to any other
severance pay or bonus plan, practice or arrangement.
4. Options. Pursuant to the terms of the grant of options to
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purchase common stock of the Company set forth in the Option Agreements made
between the Company and Xxxxxxxxx, dated January 27, 1995, November 18, 1996,
and February 16, 1998, respectively, under the Company's 1993 Long Term
Incentive Plan, amended and restated as of November 30, 1994, (the "Long Term
Incentive Plan"), and pursuant to the determination of the Company's Board of
Directors Compensation and Benefits Committee, with respect to the January 27,
1995 and November 18, 1996 Option Agreements, Xxxxxxxxx shall have an option to
purchase the number of shares of common stock of the Company during the exercise
periods and for the exercise prices listed below:
Exercise Period
From and
After the Per Share
Option Termination Exercise
Agreement Date Number of Shares Price
--------- ------------ ---------------- ----------
01/27/95 3 months 48,000 $15.00
11/18/96 3 months 12,000 $ 4.52
02/16/98 2 years 20,000 $ 3.41
5. Termination of Benefits. Xxxxxxxxx'x coverage under the
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Company's employee benefit plans, policies and programs, shall terminate as of
the Termination Date. Promptly following execution of this Agreement, the
Company shall provide Xxxxxxxxx with information regarding his option to
continue his and his dependents' coverage under the Company's group medical
insurance plan in accordance with the Consolidated Omnibus Budget Reconciliation
Act of 1985 ("COBRA"). In addition to the foregoing option pursuant to COBRA,
Xxxxxxxxx shall have whatever conversion rights are provided to him under the
terms of the applicable benefit plans as a terminated employee.
6. Release by Xxxxxxxxx. Xxxxxxxxx, for himself, his heirs,
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executors, administrators, and assigns, does hereby fully, finally and forever
release and discharge the Company its subsidiaries and their respective
predecessors, successors and assigns, and their current or former shareholders,
directors, officers, employees, agents, and attorneys (in their respective
capacities as current or former shareholders, directors, officers, employees,
agents and attorneys of and for the Company) (hereinafter the "Wickes
Releasees") of and from any and all claims, demands, actions, causes of action,
suits, damages, losses, expenses and attorneys' fees of any kind and every
nature whatsoever, whether known or unknown, which he has or may have against
the Wickes Releasees, and each of them, growing out of or arising from or
pertaining to any transaction, dealing, employment relationship, conduct, act or
omission, or any other matters or things occurring or existing at any time prior
to the date of execution hereof, including but not limited to wrongful
discharge, breach of contract, any claims arising out of or related to the Stay
Incentive Bonus Plan, the Long Term Incentive Plan, and the Option Agreements
made pursuant thereto, dated January 27, 1995, November 18, 1996 and February
16, 1998, respectively, tort, defamation, the Civil Rights laws, Employee
Retirement Income Security Act, or any other federal, state or local law
relating to employment, termination of employment, discrimination in employment,
wages, benefits or otherwise, provided, however, that this release excludes any
class-action (other than a class-action initiated by Xxxxxxxxx or a class-action
that Xxxxxxxxx has caused to be initiated) brought on behalf of the shareholders
of the Company, in which Xxxxxxxxx would otherwise be included as a member of
the class. This release also excludes Xxxxxxxxx'x right to enforce the terms of
this Agreement.
7. Confidential Information.
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(a) Xxxxxxxxx agrees that he shall not hereafter, at any time,
disclose in any manner or for any reason, without the Company's prior written
consent, any confidential business information (not already or hereafter
otherwise made public) about the affairs and business of the Company and its
subsidiaries or make the same available, to any competitor of the Company
(including its subsidiaries), or a subsidiary or affiliate of such competitor,
or any person or organization (except to other employees of the Company or its
subsidiaries in the course of their employment) unless Xxxxxxxxx is required to
make such disclosure pursuant to a valid subpoena or court order or otherwise
required under the law.
(b) Xxxxxxxxx understands and agrees that the covenants,
restrictions and prohibitions against disclosure of confidential information in
paragraph 7(a), above, are in addition to, and not in lieu of, any rights or
remedies which the Company or its subsidiaries may have available pursuant to
the laws of any jurisdiction or at common law to prevent disclosure of trade
secrets or proprietary information, and the enforcement by the Company or its
subsidiaries of their respective rights and remedies pursuant to this Agreement
shall not be construed as a waiver of any other rights or available remedies
which they may possess in law or equity absent this Agreement.
8. Release by the Company. The Company and its subsidiaries do
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hereby fully, finally and forever release and discharge Xxxxxxxxx, his heirs,
executors, administrators, and assigns, (hereinafter the "Xxxxxxxxx Releasees")
of and from any and all claims, demands, actions, causes of action, suits,
damages, losses, expenses and attorneys' fees of any kind and every nature
whatsoever, whether known or unknown, which the Company or its subsidiaries, or
any of them, have or may have against the Xxxxxxxxx Releasees, and each of them,
growing out of or arising from or pertaining to any transaction, dealing,
employment relationship, conduct, act or omission, or any other matters or
things occurring or existing at any time prior to the date of execution hereof,
provided, however, that this release excludes any claims, involving or relating
to any fraud or criminal conduct by Xxxxxxxxx and any direct or derivative
claims brought against Xxxxxxxxx by shareholders arising out of or relating to
Xxxxxxxxx'x service as a director of the Company or its subsidiaries, subject to
Xxxxxxxxx'x rights to indemnification, as provided in paragraph 9, below. This
release also excludes the Company's and its subsidiaries' respective rights to
enforce the terms of this Agreement.
9. Indemnity. The Company and each of its subsidiaries for whom the
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Xxxxxxxxx has served as an employee, officer or director shall indemnify, defend
and hold harmless Xxxxxxxxx in such capacity as an employee, officer or director
to the extent permissible under the corporate law of the state of incorporation
of such entity, but, as applicable, not less than the extent provided in the
certificate of incorporation and by-laws of such entity on the date of this
Agreement.
10. Return of Property; Access to Former Office. (a) Within twenty
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(20) business days after the date hereof, Xxxxxxxxx will return to the Company
all property of the Company in his possession or control (whether maintained at
his former office, home or elsewhere), including, without limitation, all lists,
books and records of the Company (and all copies thereof), all data or other
information concerning the Company recorded, stored, maintained or operated by
electronic, mechanical or photographic process, whether computerized or not, all
copies of all management studies, business or strategic plans, budgets,
notebooks and all other printed, typed or written materials, documents and data
of or relating to the Company or any of its subsidiaries, except Xxxxxxxxx shall
be permitted to purchase the Company's laptop computer currently in his
possession for the sum of $1,000.00 (provided that all information concerning
the Company stored therein is deleted therefrom) and the Company's cellular
telephone designated for Xxxxxxxxx'x use for $200.00.
(b) The Company shall for a period of five business days after the
date hereof allow Xxxxxxxxx to have access to his former office for the purpose
of retrieving his personal property and documents. At the Company's option,
Xxxxxxxxx shall have such access after business hours.
11. Non-Disparagement. Xxxxxxxxx agrees he will not make any false,
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disparaging or derogatory statements regarding the Company or its subsidiaries
or any of their respective current or former shareholders, directors, officers,
employees, agents or representatives (in their respective capacities as current
or former shareholders, directors, officers, employees, agents or
representatives of the Company or its subsidiaries). The Company shall cause
the senior officers and directors of the Company (in their respective capacities
as senior officers and directors of the Company) not to make any false,
disparaging or derogatory statements regarding Xxxxxxxxx. The foregoing shall
not preclude the filing and prosecution of any legal claims in respect of the
matters excluded from the releases set forth in this Agreement.
12. Non-Admissions. Neither by offering to make nor by making this
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Agreement does any party admit any failure of performance, wrongdoing, or
violation of law.
13. Representations and Warranties.
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(a) Xxxxxxxxx represents and warrants to the Company as follows:
(i) he has full legal right, power and authority to enter into and perform all
of his obligations under this Agreement; (ii) this Agreement and all terms
hereof are fair, reasonable and are not the result of any fraud, duress,
coercion, pressure or undue influence exercised by the Company or its
representatives; (iii) the execution and delivery of this Agreement by him will
not violate any other agreement to which he is a party; (iv) no consent of any
third party is required for the execution and performance of this Agreement by
him; and (v) this Agreement has been duly executed and delivered by him and
constitutes a legal, valid and binding agreement of him, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws, now or hereafter in
effect, affecting creditors' rights and remedies generally and to general
principles of equity.
(b) The Company represents and warrants to Xxxxxxxxx as follows:
(i) the Company has all requisite corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby; (ii) the
execution, delivery and performance of this Agreement has been duly authorized
and approved by all required corporate action on the part of the Company,
including approval by its Board of Directors; (iii) this Agreement has been duly
executed and delivered by the Company and is a legal, valid and binding
obligation of the Company, enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, xxxx
torium and similar laws, now or hereafter in effect, affecting creditors' rights
and remedies generally and to general principles of equity; (iv) the execution
and delivery of this Agreement by the Company will not constitute a breach under
(with or without notice or the passage of time or both) or violate the Company's
certificate of incorporation or by-laws, any agreement to which the Company is a
party or any law, regulation, rule or ordinance to which the Company is subject
and (v) no consent of any third party is required for the execution and per
formance of this Agreement by the Company.
14. Notice. All notices, requests and other communications to any
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party hereunder shall be given or made in writing and mailed (by registered or
certified mail or by overnight courier) or delivered by hand as follows:
(a) if to the Company, to it at its principal executive office,
Attention: Xxxxxxx X. Xxxxx, Director of Human Resources
(b) if to Xxxxxxxxx, to him at:
Holland & Knight LLP
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
or such address as such party may hereafter specify for the purpose of notice to
the other party hereto. Each such notice, request or other communication shall
be effective when, if delivered by hand, received by the party to which it is
addressed or, if mailed in the manner described above, on the third business day
after the date of mailing.
15. Successors and Assigns. The rights and obligations of the
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Company and its subsidiaries under this Agreement shall inure to the benefit and
be binding upon their successors and assigns and any entity to which their
assets and business may be transferred by operation of law or otherwise. This
Agreement is personal to Xxxxxxxxx, and Xxxxxxxxx shall not, without the written
consent of the Company, assign his rights or obligations hereunder other than by
will or the laws of descent and distribution, but the provisions hereof shall
inure to the benefit of and be enforceable by Xxxxxxxxx'x heirs and legal
representatives.
16. Governing Law. This Agreement shall be construed in accordance
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with and governed by the substantive laws of the State of Illinois, without
regard to the choice of law rules thereof.
17. Press Release. Xxxxxxxxx and the Company agree on the text of a
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press release announcing his departure from the Company and resignation from the
Company's Board of Directors in the form attached hereto as Exhibit A.
18. Complete Understanding. This Agreement supersedes any prior
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contracts, understandings, discussions and agreements between Xxxxxxxxx and the
Company and constitutes the complete understanding between the parties with
respect to the subject matter hereof. No statement, representation, warranty or
covenant has been made by either party with respect hereto except as expressly
set forth therein.
19. Modification; Waiver.
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(a) This Agreement may be amended or waived if, and only if,
such amendment or waiver is in writing and signed, in the case of an amendment,
by the Company and Xxxxxxxxx or in the case of a waiver, by the party against
whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and shall not be exclusive of any
rights or remedies provided by law or at equity.
20. Headings. The section headings in this Agreement are for
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convenience of reference only and shall not control or affect the meaning or
construction of this Agreement.
21. Counterparts. This Agreement may be signed in any number of
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counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each party hereto shall have received counterparts
hereof signed by the other party hereto.
IN WITNESS WHEREOF, Xxxxxxxxx and the Company have executed this
Agreement to be effective as of the 19th day of October, 1998.
WICKES INC.
By:
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Xxxxxxx X. Xxxxxx
Director
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Xxxxxxx X. Xxxxxxxxx
STATE OF __________ )
: ss.:
COUNTY OF ___________)
On the _____ day of October, 1998, before me personally came Xxxxxxx
X. Xxxxxxxxx, to me known and known to me to be the individual described in and
who executed the foregoing instrument, and he duly acknowledged to me that he
executed the same.
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Notary Public
