Exhibit 10.33
SEPARATION, RELEASE AND WAIVER AGREEMENT
AND COVENANT NOT TO XXX
This Agreement is made between R. Xxxxxx Xxxxxx on behalf of himself,
his spouse, his family and anyone acting for him, including attorneys, agents,
representatives, heirs, executors and assigns (hereinafter referred to as "You"
or "Xxxxxx") and United Stationers Supply Co. ("USSC") on behalf of itself, its
parent company, subsidiaries, affiliates, divisions, companies, predecessors,
successors, assigns, and its and their respective past, present and future
agents, employees, directors, officers, officials, shareholders, partners,
trustees and attorneys (hereinafter collectively referred to as "United").
1. Payments and Other Considerations.
If You sign and do not revoke this Separation, Release and Waiver
Agreement and Covenant Not to Xxx (hereinafter referred to as the
"Agreement"), USSC will:
(1) provide you within 14 days of your signing this Agreement the
amount of $325,000 (Three Hundred and Twenty-Five Thousand
Dollars) (less all required statutory deductions including, but
not limited to, withholding for federal income tax at the minimum
rate of 27%, Illinois state tax, deductions under the Federal
Insurance Contributions Act (FICA), and any other withholding
deductions);
(2) assign to You United's collateral interest in Insurance Policy
No. 1077991, issued by Security Life of Denver Insurance Company
(the "Life Insurance Policy") less all required statutory
deductions with respect to
such an assignment and any and all premiums made on your behalf
by United regarding the Life Insurance Policy, including without
limitation those described in (1) above, to be withheld from the
money provided to You in (1) above.
You and United agree that the monies and other considerations set
forth above constitute extra consideration in exchange for You executing this
Agreement. United and You also agree that the monies and other considerations
set forth above exceed any potentially disputed compensation or benefits which
You may claim are owed to You by United and that said monies and other
consideration paid hereunder constitute full payment of any such disputed wages,
compensation, final compensation and/or other benefits.
You also acknowledge that you have been paid for all hours worked,
have not suffered any on-the-job injuries for which You have not already filed a
claim and have received all such pay and vacation pay owed.
2. Waiver and Release of All Claims.
In exchange for the payments and other considerations listed in
Paragraph 1 above, You agree not to bring any lawsuit or claim against United
and You agree to release, acquit, waive and forever discharge United from any
and all claims, liabilities, charges, actions, causes of actions, obligations,
suits, agreements, damages, compensation, benefits, costs, attorneys' fees,
and/or other liabilities of any kind whatsoever, suspected or unsuspected, known
or unknown, which have or could have arisen out of your employment with and/or
separation
- 2 -
from employment with United and/or any other occurrence arising on or
before the date this Agreement is executed. This includes, but is not limited to
claims that United:
(1) has violated or breached any personnel policies, handbooks,
contracts of employment, severance pay agreements or covenants of
good faith and fair dealing;
(2) has discriminated against You on the basis of age, race, color,
sex, national origin, ancestry, disability, religion, harassment,
marital status, parental status, handicap, source of income,
retaliation, veteran status or entitlement to benefits, in
violation of any local, state or federal law, ordinance or
regulation, including but not limited to the Age Discrimination
in Employment Act of 1967, as amended; Title VII of the Civil
Rights Act of 1964, as amended; 42 U.S.C. Section 1981, as
amended; the Americans With Disabilities Act; the Illinois Human
Rights Act; the Xxxx County Human Rights Ordinance and the
Illinois Constitution; and/or
(3) has violated public policy or common law, including claims for
retaliatory discharge, negligent hiring or supervision, severance
pay, breach of contract, wrongful termination, tort, personal
injury, invasion of privacy, defamation, intentional or negligent
infliction of emotional distress and/or mental anguish,
intentional interference with contract, negligence, detrimental
reliance, loss of consortium to You or to any member of your
family and/or promissory estoppel;
- 3 -
(4) has violated any other federal, state or local law, ordinance or
regulation, including, but not limited to the Employee Retirement
Income Security Act, the Family Medical Leave Act, or the
Illinois Wage Payment and Collection Act, 820 ILCS 115/1, ET
SEQ.;
(5) excluded from this release are any claims which cannot be waived
by law, including but not limited to the right to file a charge
with or participate in an investigation conducted by the Equal
Employment Opportunity Commission ("EEOC"). You are waiving,
however, your right to any monetary recovery or other relief
should the EEOC or any other agency pursue any claims on your
behalf. Also excluded from this Waiver and Release are any claims
of a breach of this Agreement.
3. Resignation.
Xxxxxx agrees that effective September 30, 2001 he resigned his
employment with United other than for Good Reason.
4. Employment Contract.
Except as specifically set forth herein, the parties agree that
Xxxxxx'x Employment Agreement dated as of June 19, 2001 (the "2001 Agreement")
and any predecessor agreement are terminated and no longer of force or effect;
provided, however, that Sections 4 (Confidential Information and Proprietary
Materials), 5 (Non-Competition and Non-Solicitation) and 6 (Mutual
Non-Disparagement) of the 2001 Agreement and their respective sub-parts shall
survive such termination and remain in effect; provided, further that for
purposes of Paragraph 6.2, only
- 4 -
an act of an executive officer or member of the Board of Directors of United
Stationers, Inc. shall constitute an act of United or otherwise form the basis
for a violation of Section 6.2.
5. Trailing Expenses.
You shall not, after June 1, 2002, submit for payment to United or any
of United's benefits carriers, any additional claims for expenses, benefits or
other reimbursement whatever the date of claim, nor shall any such claims be
reimbursable. Additionally, You acknowledge that you were ineligible for any
benefit continuation or any benefits from or paid by United, other than those
contained herein, after September 30, 2001, including but not limited to any
former officer medical reimbursement plan or retiree health plan benefits.
6. Confidentiality.
You agree that, as a condition of this Agreement, You shall not
disclose, publicize, publish, indicate or, in any other manner communicate the
terms and provisions of this Agreement, to or with any other person except your
immediate family, any attorney(s) or other tax advisor(s), or as required by law
or court order. With respect to any individual referred to above to whom You
disclose any information regarding this Agreement and its terms, You agree that
You will inform such individual that the information is strictly confidential
and may not be reviewed, discussed or disclosed, orally or in writing, with any
other person, organization or entity. You further represent that no disclosures
inconsistent with this confidentiality provision have been made by You prior to
the date of this Agreement. Should You or someone You have disclosed any
information to regarding this Agreement and its terms be found by a court of
competent jurisdiction to have violated any of the provisions of this Paragraph
6, or any
- 5 -
provisions of the 2001 Agreement in effect pursuant to Paragraph 4 of this
Agreement, United's obligations under this Agreement shall be nullified and any
payments or benefits, except One Thousand Dollars ($1,000) and retention of the
Life Insurance Policy, that were made to You under this Agreement shall be
forfeited and immediately returned to USSC. United also retains the right to
pursue all other remedies available to it at law or equity, including injunctive
relief and/or monetary damages.
Notwithstanding anything contained herein to the contrary, it shall
not be a breach of this Paragraph 6 for You, if asked, to respond that any
dispute regarding your cessation of employment at United has been amicably
resolved.
7. Covenant Not To Xxx.
In exchange for the consideration provided to You in Paragraph 1,
herein, You agree and covenant not to xxx United regarding or relating to any
matter encompassed within the Release contained in Paragraph 2 herein or become
a party to any such suit, claim or action. In addition, You agree that You will
not in any way institute or encourage the institution or prosecution of any
suit, action or claim of any kind or any other kind of relief against United and
hereby waive any right to recover any relief as a result of any such proceeding
or any proceeding initiated on your behalf. This Covenant Not to Xxx and the
Release and Waiver contained in Paragraph 2 are comprehensive and are intended
to be limited only to the extent any rights and claims cannot be waived by law.
- 6 -
8. Re-Employment.
In further consideration for the monies and benefits described in
Paragraph 1 hereof, Xxxxxx waives any claim or right to re-employment with
United and agrees never to seek employment with United in the future.
9. Cooperation.
Xxxxxx agrees to cooperate with United as reasonably directed by
United by responding to questions, depositions, administrative proceedings and
court hearings, executing documents, and cooperating with United and its
accountants and legal counsel with respect to business issues, and/or claims and
litigation of which he has personal or corporate knowledge. Xxxxxx further
agrees, except as required by subpoena or other applicable legal process (after
United has been given reasonable notice and opportunity to seek relief from such
requirement) to maintain, in strict confidence, any information of which he has
knowledge regarding current and/or future claims, administrative proceedings and
litigation. Xxxxxx agrees, except as required by subpoena or other applicable
legal process (after United has been given reasonable notice and opportunity to
seek relief from such requirement) not to communicate with any party(ies), their
legal counsel or others adverse to United, and/or any of its direct or indirect
subsidiaries in any such claims, administrative proceedings or litigation except
as specifically requested by United and then only through United's designated
legal counsel. Xxxxxx also shall make himself available at reasonable times and
upon reasonable notice to answer questions or provide other information within
his possession and requested by United relating to United, its subsidiaries
and/or their respective operations in order to facilitate the smooth transition
of Xxxxxx'x duties to
- 7 -
his successor. United shall reimburse Xxxxxx for any documented out-of-pocket
expenses reasonably incurred by Xxxxxx in complying with this paragraph. To the
extent Xxxxxx'x services are required pursuant to this paragraph in excess of 40
hours, Xxxxxx will not be obligated to provide any further cooperation unless
United agrees to pay Xxxxxx a per diem amount as mutually agreed to, but not
greater than an amount calculated based on Xxxxxx'x annual base salary in effect
immediately prior to September 30, 2001.
10. Liability for Taxes.
In the event that any taxing body determines that amounts should have
been withheld from the payment (or any portion thereof) provided for in
Paragraph 1 above or additional taxes are due from Xxxxxx, Xxxxxx acknowledges
and assumes all responsibility for the payment of any such taxes and hereby
agrees to indemnify, defend, and hold United harmless for the payment of such
taxes, the failure to withhold, and any interest or penalties imposed thereon.
11. Entire Agreement.
This Agreement sets forth the entire agreement between You and USSC
and supersedes any other written or oral understandings. No modification of any
provision of this Agreement shall be effective unless made in writing and signed
by You and USSC. This Agreement is deemed made and entered into in the State of
Illinois, and in all respects shall be interpreted, enforced and governed under
the laws of the State of Illinois. In the event of any dispute regarding this
Agreement, You shall be subject to the jurisdiction of the State of Illinois.
- 8 -
12. Severability.
Xxxxxx and his attorneys, and United and its attorneys, agree and
represent that they intend and believe that this Agreement is lawful and
enforceable in its entirety. Xxxxxx and United agree that, to the extent any
portion, provision, or covenant of this Agreement may be held to be invalid or
legally unenforceable by an agency or court of competent jurisdiction, the
remaining portions of this Agreement shall not be affected and shall be given
full force and effect; provided, however, if any release, waiver, or agreement
set forth in Paragraph 2 above or any portion of the covenant not to xxx set
forth in Paragraph 7 above is declared or alleged to be invalid illegal, or
unenforceable in whole or in part through any action initiated by Xxxxxx, or if
Xxxxxx initiates, conducts, encourages or participates in proceedings or
litigation seeking relief or recovery for himself based on any of the released
claims and causes of action, United's obligations under this Agreement shall be
nullified and any payments or benefits that had been or were to be afforded to
Xxxxxx under this Agreement shall be forfeited and immediately returned to
United.
13. Injunction.
Xxxxxx hereby expressly acknowledges that any breach or threatened
breach by Xxxxxx of Paragraphs 4, 6 or 7 of this Agreement may result in
significant and continuing injury and irreparable harm to United, the monetary
value of which would be impossible to establish. Therefore, Xxxxxx agrees that
United shall be entitled to injunctive relief in a court of appropriate
jurisdiction with respect to such provisions. Attorneys' fees with respect to
any action seeking injunctive relief shall be paid by Xxxxxx if such action is
successful or by United if such action is
- 9 -
unsuccessful. The parties agree that this provision is a material inducement to
entering into this Agreement.
14. Non-Admission.
All parties agree and acknowledge that this Agreement does not
constitute an admission by United of any liability or wrongdoing whatsoever, but
results from the desire to expeditiously resolve disputed issues of fact and
law, and further acknowledge that United denies all possible allegations of
violations of any law, statute, ordinance, regulation, common law, tort or
contract. United and Xxxxxx further agree that this Agreement shall not be
admissible as evidence in any future proceeding of any kind, except one for
breach of this Agreement.
15. Breach of Agreement.
In the event that either party takes action, in law or equity, to
assert a breach of this Agreement or to enforce its rights under any provision
of this Agreement and it prevails, the other party shall be liable for the
reasonable attorneys' fees and costs incurred by the non-breaching party in
connection with such action.
16. Time to Review and Attorney Consultation.
Xxxxxx acknowledges that he was encouraged to consult and did consult
with an attorney before signing below and has been given at least twenty-one
(21) days to review this Agreement. Xxxxxx further understands that he may
revoke this Agreement within seven (7) days after executing this Agreement by
signing below and that the Agreement shall not become effective or enforceable
until eight (8) days after the date on which he signs below. If Xxxxxx wishes to
revoke the Agreement, he must deliver via overnight delivery within the seven
(7) day
- 10 -
period a written revocation to Xxxxxx X. Gold, United Stationers Inc., 0000 Xxxx
Xxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxx 00000. If Xxxxxx does not revoke the Agreement,
United will tender the payment described in Paragraph 1, subject to the other
terms of this Agreement.
17. Full Knowledge, Consent and Voluntary Signing.
Xxxxxx acknowledges that: (1) he has carefully read this Agreement and
fully understands its meaning, intent and terms; (2) he understands its legal
consequences; (3) he agrees to all the terms of the Agreement and is voluntarily
signing below; and (4) the only consideration for him signing this Agreement are
the terms stated herein and no other promise or representations of any kind have
been made by any person or entity whatsoever to cause him to sign this
Agreement; (5) he is legally competent and has all necessary authority to
execute this Agreement for himself and others and accepts full responsibility
therefor.
UNITED STATIONERS SUPPLY CO.
By:
---------------------- ----------------------------
R. Xxxxxx Xxxxxx Senior Vice President, General
Counsel and Secretary
Date: Date:
----------------------- ---------------------------
- 11 -
