EXHIBIT 10(c)
CONFIDENTIAL GENERAL RELEASE AND SEPARATION AGREEMENT
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("AGREEMENT")
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1. This Agreement is entered into on this 1st day of March, 1999, by and
between Xxxxx X. Xxxxxxxx, his or her heirs, successors, administrators,
assigns, agents and representatives (collectively and singularly referred to as
"Employee") and InterTAN, Inc., and its affiliates, subsidiaries, shareholders,
officers, directors, agents, employees and assigns (collectively and singularly
"Employer").
2. Employer is relocating its corporate offices from Fort Worth, Texas to
Toronto, Ontario at some time between February 20, 1999 and May 30, 1999.
Employee and Employer agree that Employee's employment with Employer will
terminate effective on the earlier of April 9, 1999 or the date on which
Employee is released from duty by the Employer (the "Termination Date"). In
order to provide for an orderly termination of employment and to fully and
finally settle all differences or claims which may have arisen between them,
including, but not limited to, any and all claims or obligations arising out of
the employment relationship between Employer and Employee, the parties agree to
the following terms and conditions:
(a) Employee agrees to remain in Employer's employ to continue to perform
Employee's duties in a diligent manner until the Termination Date.
Additionally, Employee agrees to the following terms and conditions of his
continuing employment until the Termination Date:
(i) Employee agrees to work on a full time basis on assignments at
the Employer's Fort Worth and Toronto offices and locations at the
direction of Xxxxx X. Xxxx;
(ii) Employer will reimburse Employee for travel to and from Toronto,
paying for return trips to Fort Worth every two weeks, which may be for
non-business purposes, provided Employer will only pay a maximum of three
hundred fifty United States Dollars (U.S.$ 350.00) per trip and that the
Employee will make advance reservations of commercial air travel;
(iii) Employee will receive a per diem of thirty United States Dollars
(US$ 30.00) per day while working in Canada;
(iv) Employee may rent a car at Employer's expense while working in
Canada, provided that any car rental is expressly agreed upon by Xxxxx Xxxx
prior to renting the vehicle; and,
(v) Employee agrees that all confidential and proprietary
information the Employee has learned or gained during his past and future
employment with the Employer will be maintained in strictest confidence as
attorney-client privileged information, confidential and/or proprietary
information, and that Employee will not waive the Employer's attorney
client privilege without prior notification and the express opportunity for
Employer to assert such privilege.
(b) On or before March 8, 1999, Employer agrees to pay to the Employee a
full and final severance payment equivalent to One hundred thousand and one
United States dollars (US$ 100,001.00) less applicable deductions for tax and
FICA contributions. Employee agrees that none of the severance payment is
eligible for Employer matching under the Employer's stock purchase plan.
(c) On the Termination Date, the Employee shall receive all remaining
unpaid salary, plus accrued but unused vacation through January 1, 1999, which
is due and payable to Employee as a result of Employee's employment through the
Termination Date. Provided, however, vacation schedules will be suspended by
the Employer until the Termination Date, and vacation can only be scheduled and
taken with the prior written approval of Xxxxx X. Xxxx. And further provided
that based on the Employee's current vacation days remaining and future
scheduling items, the parties agree that the amount of vacation pay due and
payable on the Termination Date shall not exceed two weeks.
(d) On or before March 8, 1999, Employer further agrees to pay Employee a
share of his fiscal 1999 incentive bonus prorated to the Termination Date. Such
bonus will be calculated pursuant to the Employer's policies based on the
Employer's profits through January 31, 1999. Employer further agrees that if
Employee participates or contributes to the Employer's stock purchase plan,
and/or 401(k) Plan to the extent eligible under the law, then Employer will
match Employee's contribution at the normal matching rate for purposes of this
bonus.
(e) InterTAN agrees that with the exception of options granted or awarded
to Employee in November, 1998, all incentive stock option granted to Employee
from InterTAN shall immediately vest upon the Termination Date. Further
InterTAN agrees that Employee will be granted an extension of the exercise date
of such option and that such options shall be exercisable at any time within
twelve (12) months of the Termination Date provided that Employee notifies
Employer in writing by termination date of his desire to accept the offered
extension.
(f) InterTAN agrees that its Vice President/Controller will calculate
Employee's Canadian income tax liability for calendar year 1999s and prepare a
Canadian tax return for Employee for calendar year 1999. Such return shall be
delivered to Employee in a timely fashion, but Employee shall be responsible for
submitting the return to Canadian Authorities and for payment of any Canadian
income taxes due on such income.
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(g) Until the Termination Date, Employee shall be eligible to continue
under Employer's health plan, and Employer will continue its contribution
thereto. Thereafter, Employee shall be eligible to continue health benefits to
the extent required by the healthcare continuation provision of the
Comprehensive Omnibus Budget Reconciliation Act of 1986 (COBRA) provided
Employee makes the required election and pays the premiums for such coverage.
Provided, however, if the Employer's health plan is terminated there shall be no
further continuation coverage under COBRA. To the extent required, any HIPPA
certificates will be provided by the Employer or its plan administrator upon
request.
(h) In exchange for the considerations described in paragraph b and c
above, Employee does hereby irrevocably and unconditionally release, acquit and
forever discharge Employer from any and all claims, obligations, actions,
liabilities, claims, actions and causes of action of whatever kind and
character, arising out of or in any way related to Employee's employment,
association or contact with Employer, including but not limited to claims based
upon express or implied contract, wages or benefits owed, covenants of fair
dealing and good faith, option grants, wrongful discharge, the Texas Commission
on Human Rights Act, the Texas Payday Act, Title VII of the Civil Rights Act of
1964, as amended, the Civil Rights Act of 1991, the Civil Rights Acts of 1868
and 1873, the Age Discrimination in Employment Act, the Family Medical Leave Act
of 1993, the Americans with Disabilities Act, the Employee Retirement Income
Security Act, the Fair Labor Standards Act of 1938, and any local, state or
federal law, regulation or ordinance whatsoever. It is the express intent of
Employee to enter into this full and final settlement and compromise of any and
all claims against Employer whatsoever. Employee will not permit any such claim
to be filed on Employee's behalf. This Agreement and Release does not, however,
waive any rights Employee may have to worker's compensation benefits on account
of occupational injury, or vested benefits under the Employer's 401(k) plan.
(i) Employee agrees that Employer has no obligation, contractual, statutory
or otherwise to reemploy or hire Employee in the future.
(j) On or before the Termination Date, Employee shall return to Employer
all tangible and intangible forms of confidential and/or proprietary information
of Employer and other property (collectively, the "Employer Property"), that
Employee may have had in Employee's possession at any time during the term of,
or before, his or her employment by Employer, including without limitation, all
confidential information, whether oral or written, relating to the business of
Employer that is not generally known to others in Employer's area of business,
including without limitation (to the extent confidential), (i) any trade
secrets, work product, processes, analysis, or know-how of Employer; (ii)
Employer's advertising, product development, strategic and business plans and
information; (iii) the company's financial statements or other financial
information (collectively, the "Confidential Information"). In the event that
the Employee has destroyed any Employer Property, including Confidential
Information, Employee certifies that such Employer Property has been so
destroyed in an irretrievable manner and that the Employee will make no attempts
or allow any third parties to make any attempts to retrieve or recover any such
destroyed Employer Property. Employee further acknowledges and agrees that the
Confidential Information is and will be the sole and
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exclusive property of Employer. Employee will not use any Confidential
Information for Employee's own benefit or disclose any Confidential Information
to any third party, subsequent to Employee's employment with Employer. Employee
understands and agrees that Employee's agreement to preserve Confidential
Information is a material inducement for Employer to enter into this Agreement,
that Employer shall suffer irreparable harm in the event of a breach of this
paragraph, and that Employer shall be entitled to an injunction or other
equitable relief to enforce the provisions of this paragraph.
3. Employee agrees that for at least two years following the Termination
Date he will not directly act as in-house counsel, as outside counsel or in any
other manner, for any company, firm, client, person or entity, on any matter in
which InterTAN is an actual or prospective party or target. Employee agrees
that in whatever capacity he is employed in the next two years, that he will
voluntarily remove himself from any discussion, research, comments, or
negotiations which in involve InterTAN operations, practices or methods, or
otherwise would potentially cause Employee to reveal knowledge he has gained of
InterTAN through his provision of services as its General Counsel. Employee
further agrees that any Confidential Information disclosed to him in his
capacity as an officer and General Counsel of Employer shall continue to be
treated as confidential attorney client communications or client confidences and
shall never be disclosed by Employee to any party without Employer's express
written consent.
4. Employee stipulates and agrees not to initiate, join in, continue
and/or institute any legal proceedings or process based upon the released claims
or causes of action before any administrative, judicial or other form against
Employer. Employee further agrees that Employee will not file nor permit to be
filed on his or her behalf and will not agree to be a member of any potential or
existing class seeking relief against Employer for any claim or cause of action
covered by this Agreement.
5. Employer, by virtue of this Agreement, does not admit any liability to
any person or any violation of federal, state or local law, regulation or
ordinance. Employer specifically disclaims any wrongdoing whatsoever against,
or liability to, Employee.
6. Employee warrants and represents:
a. He is fully entitled to give this release and discharge;
b. There are no prior assignments or transfers of any portion of or
interest in any of his or her claims or causes of action;
c. There are no liens or assignments in law or equity against the
claim or cause of action; and
d. Employee is fully aware of all facts and rights with regard to
Employee's claims and/or causes of action.
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7. Should any provision of this Agreement be declared or be determined by
any Court to be illegal or invalid, the validity of the remaining terms or
provisions shall not be affected thereby, and said illegal or invalid provisions
shall be deemed not to be a part of this Agreement.
8. In the event Employee should revoke this Agreement or contend in any
proceeding that this Agreement or any portion of it is invalid or unenforceable,
then as a precondition to making such allegation, Employee agrees to refund in
full to Employer all severance amounts received by Employee under this
Agreement.
9. This Agreement contains the entire agreement and understanding between
the parties. It supersedes any and all prior negotiations, promises,
agreements, understandings or contracts between the parties hereto, or their
agents, pertaining to the subject matter of this Agreement. The terms of this
Agreement are contractual, not a mere recital. Employee understands that
Employee can consult with an attorney about this Agreement and has either done
so or waives the opportunity to do so.
10. This Agreement is made and signed in the state of Texas and it shall
be interpreted, enforced and governed under the laws of Texas.
11. In the event of any breach of this Agreement, the parties agree to
final, binding, confidential and enforceable arbitration. Any controversy or
claim between Employee and Employer arising out of or related to this Agreement
shall be resolved and settled in accordance with the rules and procedures of the
American Arbitration Association for the Resolution of Employment Disputes at
the complaining party's written request filed within 180 days of the act or
occurrence upon which the claim is based.
12. Employee has read and understands this Agreement and enters into it
voluntarily.
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13. This Agreement hereby terminates and revokes Employee's participation in or
rights to any sums or entitlements associated with the Company's deferred
compension plan and related agreement.
WITNESS our signatures this 1st day of March, 1999.
For EMPLOYEE:
/s/ Xxxxx X. Xxxxxxxx
_______________________________________
Xxxxx X. Xxxxxxxx
For InterTAN, Inc.:
/s/ Xxxxx X. Xxxx
_______________________________________
Chief Executive Officer
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