Exhibit 10.11
SEPARATION AGREEMENT AND
GENERAL WAIVER AND RELEASE OF CLAIMS
This Separation Agreement and General Waiver and Release of Claims
(hereinafter the "Agreement") is entered into by and between Xxxxx Xxxxx, Inc.
(the "Company") and Xxxxxxx Xxxxxx ("Employee").
In consideration of the mutual covenants and obligations set forth below,
the parties agree as follows:
1. Payment to Employee. Provided that Employee and the Company elect
--------------------
to enter into this Agreement and it has become final and irrevocable pursuant
to paragraph 5 below, Employee shall receive the benefits described on Exhibit
A hereto.
2. Release by Employee. In consideration of this Agreement, Employee for
--------------------
himself, his attorneys, heirs, executors, administrators, and assigns does
hereby fully, finally, and forever release and discharge the Company, its
parent corporations, subsidiaries, related companies, and their successors,
assigns, officers, employees, directors, agents, and representatives (the
"Released Parties"), of and from all claims, demands, actions, causes of
actions, suits, damages, losses, expenses, attorneys' fees and controversies of
any and every nature whatsoever arising from the beginning of time until the
date of this Agreement including, but not limited to, any claims arising from,
or relating in any way to, Employee's employment as well as Employee's
termination of employment from the Company, or other circumstance arising from
or related to Employee's termination of employment with the Company. Employee
agrees not to xxx or otherwise pursue any claim against the Company or the
Released Parties for any matter arising under the Age Discrimination in
Employment Act, the Fair Labor Standards Act, the Worker Adjustment and
Retraining Notification Act of 1988, Title VII of the Civil Rights Act of 1964,
as amended, the Equal Pay Act, the Americans With Disabilities Act, the Family
and Medical Leave Act, the Washington Law Against Discrimination in Employment
and any other federal, state, or local statute/ordinance/regulation or common
law, excepting only claims under the Workers' Compensation laws.
This release shall not apply to claims, demands, actions or causes of action
arising out of the performance or non-performance by any person of any term,
covenant or condition of this Agreement.
3. Additional Representations and Warranties of Employee. Employee hereby
------------------------------------------------------
further agrees, represents and warrants:
a. That as of the date of his termination of employment, Employee will
return to the Company all Company property, including without limiting the
generality of the foregoing, any keys, computerized access cards, records,
reports, proposals, lists, correspondence, computer disks, Company
documents (except for a copy of Employee's performance reviews), nor does
Employee have knowledge of any Company property having been misappropriated
by Employee or any other party.
b. He shall not seek employment with the Company or any of its
subsidiaries or affiliates at any time in the future. However, the Company
may, in its sole discretion, elect to waive this provision if it so
chooses; such a waiver shall be effective only if it is in writing and
signed by the CEO & President of the Spiegel Group.
c. That all cash and excess travel advances and other overpayments
Employee has received which have not been repaid in full to the Company
may be deducted from the consideration described in Section 1.
d. That he will cooperate fully, subject to reimbursement by the Company
of reasonable out-of-pocket costs and expenses, with the Company and its
counsel with respect to any legal matter (including any litigation,
investigation or governmental proceeding) which relates to matters with
which Employee was involved or acquired knowledge during his employment
with the Company. Such cooperation includes appearing from time to time at
meetings for conferences and interviews and in general providing the
Company, its officers and its counsel with the full benefit of Employee's
knowledge with respect to any matter related to the Company. Employee
agrees to render such cooperation in a timely fashion and at such times as
requested by the Company.
e. That he will not disparage, publicly or privately, the Company or its
subsidiary or affiliated companies or any of their respective employees or
products.
f. Agrees that during his employment and for the one year (1) year period
commencing with the date of his termination of employment with the
Company, not to cause, induce, or assist, either directly or indirectly,
any exempt (as defined under the Fair Labor Standards Act) level,
supervisory and/or management employee who was employed by the Company
during a twelve month period either before or after the date of Employee's
execution of this Agreement ("Prohibited Employee") to become employed,
either directly or indirectly, by Employee or any entity which either
directly or indirectly employs him/her. For each breach of this provision
by Employee during said one (1) year period, in addition to the other
rights and remedies available to the Company as provided in this
Agreement, Employee hereby agrees to pay the Company, not as a penalty but
as liquidated damages to reimburse the Company for training and recruiting
costs incurred in replacing such Prohibited Employee, a sum equal to fifty
percent (50%) of the employee's annual salary as of the date of the
Prohibited Employee's termination of employment with the Company. Employee
hereby agrees that in the event a Prohibited Employee becomes employed by
Employee or his/her employer and is within the chain of Employee's
reporting structure (i.e., reports either directly or indirectly to
him/her or the person to whom he/she reports), shall be deemed to be a
breach of this Agreement and the Company shall be entitled to all of the
rights and remedies at law, equity and/or as provided in this Agreement.
Employee further agrees that during his employment and for the one (1) year
period commencing with his date of termination of employment from the
Company, to refer all requests for references for current (as of the date
of such
2
request) or former employees of the Company to the Human Resources
Department of Company and to provide no information whatsoever regarding
any current or former employee, unless the Vice President for Human
Resources of the Company specifically authorizes Employee in writing to
respond to such request. As used in this sentence, "former employees"
shall mean persons who were employed by the Company within two (2) years
of the date of such request for information.
g. That Employee has voluntarily resigned his employment with the
Company.
h. Any breach of Employee's obligations, representations or warranties
under any provision of this Section 3 of the Agreement will cause
irreparable damage to the Company and therefore, in addition to any other
remedies at law or in equity or under this Agreement available to the
Company for his/her breach or threatened breach of this Agreement, the
Company is entitled to specific performance or injunctive relief against
Employee to prevent such damage or breach.
Employee further agrees that in addition to any rights of the Company at law or
in equity, he will reimburse the Company for all costs and expenses incurred by
the Company in connection with collecting any amounts due from him under this
Section 3 and that as of the date of any breach whatsoever by him of any of his
obligations under this Agreement, the Company shall have no further obligation
and is hereby released by Employee from any obligations to continue to make any
future payments or provide any part of the consideration described in Section
1. Employee agrees that the consideration paid to him through the date that the
breach occurred shall be deemed to be sufficient consideration for Employee in
exchange for his obligations, representations and promises made under this
Agreement. Failure of Employee to continue to perform his obligations under
this Section 3 shall be deemed to be a breach and entitle the Company to the
remedies set forth in this Agreement in addition to any other rights or
remedies available at law or in equity,
4. CONFIDENTIALITY. Employee agrees not to disclose to any person any
----------------
confidential and/or proprietary information learned during the course of his/her
employment with the Company. "Confidential and proprietary information"
includes any information or materials concerning the Company's business,
technical or otherwise, which is not known to the public at large or not
generally known to the employees of the Company except on a need to know basis
based on Employee's specific job duties for which such information is required
in order to accomplish their specific job objectives as designated by the
Company. It includes, but is not limited to information and materials
developed, collected or used by Company personnel and information disclosed to
the Company by its employees, agents or representatives. Confidential and
proprietary information may relate to the past, present or future and may
concern, but is not limited to, business strategies, financial data, business
plans, technology, contract provisions, client lists or personnel data or
information and need not necessarily be reduced to a tangible form.
Employee hereby further warrants and represents that as of the date of his
execution of this Agreement, he has returned to Xxxxxx Xxxxxxx and/or Xxxxxxxx
3
Xxxxxxxx, all Company materials and information including all copies thereof,
including without limiting the generality of the foregoing, any records or
documents he prepared or received while employed by the Company and all
confidential and proprietary information or other information of or related to
the Company which Employee acquired during his employment (other than copies of
Employee's own performance review or other materials which as of the date of
this Agreement have been widely disseminated by the Company to the
public-at-large). Employee hereby further represents that as of the date of his
execution of this Agreement, he has not disclosed to any person, other than any
employee of the Company (on a need to know basis) any confidential or
proprietary information to which Employee has had access during his employment.
Employee further agrees not to disclose the settlement amount, any term of
this Agreement to any other person or entity except to his spouse, his attorney
retained in connection with this matter, his financial planner and such
disclosure as is necessary for tax purposes, or as otherwise required by law.
Employees agree that each of the foregoing parties shall also be bound by this
commitment of Confidentiality and Employee shall be responsible for any
disclosure by them.
Employee hereby warrants and represents that he has not made any
disclosures to date prohibited by this Agreement.
Upon request from time to time based upon the Company's reasonable belief
that a breach of this Agreement has occurred, Employee agrees to respond to any
inquiry related to such suspected breach within ten (10) days of receipt of
such inquiry, including providing verification whether a breach of this
Agreement has occurred. Failure to timely furnish such verification shall be
deemed to be prima facie evidence of a breach of Employee's obligations under
this Section 4.
This confidentiality provision is a material term of this Agreement. In
the event of any breach of Employee's obligations under this Section 4,
including any misrepresentation of the representations and warranties contained
herein, Employee hereby agrees to pay the Company, not as a penalty, but as
liquidated damages an amount equal to the Additional Compensation described in
Section 1 and to reimburse the Company for all costs and expenses incurred by
the Company as a result of such breach including reasonable attorney fees and
other costs incurred in connection with or related to the collection of any
amounts due.
5. Employee acknowledges and understands that:
a. he is advised to consult with an attorney before signing this
Agreement which contains a general release and waiver of claims;
b. he has been given a period of at least 21 days from the date of
presentment of this Agreement within which to review and consider this
Agreement before signing it. Employee further understands that if he elects to
accept the conditions of this Agreement, he will advise the Company accordingly
by delivering three (3) executed copies of this Agreement to the Company on or
prior to the close of business on January 11, 2002. A copy of this Agreement
was originally delivered to Employee on or about December 20,2001;
4
c. he may revoke this Agreement by providing written notice to the
Company within seven (7) days following its execution. Any notice of revocation
of this Agreement shall not be effective unless given in writing and received
by the Company via personal delivery, overnight courier or U .S. Mail, postage
prepaid, to the following address:
Xx Xxxxxxx
Spiegel Management Group, Inc.
0000 Xxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
d. This Agreement shall become effective and enforceable after expiration
of the revocation period described in c. above and execution of this Agreement
by the Company.
6. Employee represents and warrants that, in connection with his/her
decisions to accept the severance benefits and execute this Agreement, he/she
has not relied on any representations, promises, or agreements of any kind
except for those set forth in this Agreement.
7. Employee represents and warrants that his/her decision to enter into
this Agreement is completely voluntary and uncoerced, and that he/she is
entering into this Agreement with a full understanding of its terms and effect.
8. This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Washington, the state and/or federal courts of which
shall have sole jurisdiction over any dispute arising hereunder.
9. This Agreement constitutes the entire Agreement between the parties
and supersedes all previous understandings, communications, representations and
agreements whether oral or written, with respect to the subject matter of this
Agreement including without limiting the generality of the foregoing, that
certain Employment Agreement dated as of January 15,1998 between Employee and
Company (the "Employment Agreement"). Employee hereby waives any right to claim
any benefits under the Employment Agreement and by executing this Agreement,
the Employment Agreement is hereby declared null and void. There are no oral or
written conditions, representations, warranties, undertakings or agreements
between the parties except as expressly provided in this Agreement. This
Agreement may not be modified except in writing signed by both parties.
5
10. If any terms or provisions of this Agreement shall, to any extent and
under any circumstance, be illegal, invalid or unenforceable, the remainder of
this Agreement shall not be affected thereby and shall be valid and enforceable
to the extent permitted by law.
XXXXX XXXXX, INC.
/s/ Xxxxxxx Xxxxxx By:
---------------------- -----------------------------------
XXXXXXX XXXXXX
Title: CEO
--------------------------------
Date:12/21/01 Date: Jan 2, 2002
----------------------- ---------------------------------
6
EXHIBIT A
For and in consideration of Employee's execution of the attached SEPARATION
AGREEMENT AND GENERAL WAIVER AND RELEASE OF CLAIMS, the following additional
benefits will be provided by the Company, less applicable deductions:
.. A lump sum payment of Two Million Dollars ($2,000,000). Payment to be made
on or before the thirtieth (30) day of the month in the calendar month
immediately following Employee's termination date (i.e., the last day of
the transition period).
.. Commencing Jan 1, 2002, Company agrees to pay Employee One Hundred Thousand
----- --
.. Dollars ($100,000) per month (with a minimum guarantee of five (5) months)
in lieu of Employee's base salary during a transition period to be
determined by the Company in its sole discretion. The Company agrees to
provide Employee with at least fourteen (14) days notice of the last day
of the transition period. Employee's date of termination of employment
with Company will be the last day of the transition period.
.. The Company will buy out the lease of Employee's current company
automobile and will purchase and assign the title of that automobile to
Employee.
.. Employee and his eligible family members will be immediately eligible to
participate in and receive their current level of medical coverage through
the Retiree Medical Program. If Employee elects this option, Employee will
be responsible for paying the premiums for coverage under the Retiree
Program.
.. Employee and his eligible (as defined in the Company's discount policy)
family members will receive a forty-percent (40%) employee discount on
products sold by The Spiegel Group subject to the other terms of the
Company's discount policy.
.. Employee will be eligible for Executive Service Level of outplacement for
a period of up to twelve (12) months provided by a service provider
mutually agreed to by Company and Employee. Employee must commence such
service within six (6) months after his date of termination of employment
with the Company and the cost of such service may not exceed Fifteen
Thousand Dollars ($15,000.00).
.. Employee will be eligible to continue to access resources and personnel
provided through Working Solutions through twelve (12 months) following
his date of termination.
7
Employee will be eligible to continue to be covered under the Company's
split dollar insurance program at your current level (based upon three
times a base compensation of $1,000,000) until the postretirement death
benefit funding objectives of the policy have been achieved (i.e., there
is enough cash value in the policy to allow The Spiegel Group to recover
its premiums and to permit Employee to continue his policy). Though the
program is funded assuming a decrease in the level of death benefit of 50%
at plan maturity, under the current plan design, Employee may choose the
amount of death benefit he wishes to maintain when he takes over the
policy.
The Company will continue to pay, on the same basis that it currently
does, the Company share of the premium for Employee until he reaches age
65. Employee will continue to be responsible for payment of the Employee
portion of the premiums. At plan maturity, all Company premiums will be
returned to The Spiegel Group.
XXXXX XXXXX, INC.
/s/ Xxxxxxx Xxxxxx
--------------------------------
XXXXXXX XXXXXX
By: Date: 12/21/01
-------------------------- -----------------------------
Title: CEO
-----------------------
Date: Jan 2, 2002
------------------------
8
