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EXHIBIT 10.43
SEPARATION AGREEMENT AND GENERAL RELEASE
This Agreement is entered into by and between BOYDS WHEELS, INC.,
("Employer"), a California corporation, and XXXX XXXXXXXXXX, an individual
("Employee").
RECITALS
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A. Employee has been employed by Employer in the positions of Chairman
of the Board and Chief Executive Officer.
B. Employer and Employee desire to terminate Employee's employment and
to have Employee resign from such positions.
C. Employee has previously hereto received consideration in the amount
of $16,154, representing Employee's accrued and unused vacation benefits through
October 31, 1997, together with Employee's final paycheck.
D. Employer and Employee are desirous of entering into a Consulting
Agreement (the "Consulting Agreement") and provide for the settlement and
release of Employer for any claims related to Employee's employment or the
termination of that employment.
NOW, THEREFORE, in consideration of the terms, conditions and
agreements set forth below, the parties agree as follows:
1. Review Period. Employee shall have until the close of business on
October 31, 1997 to accept the terms of this Separation Agreement and General
Release ("Separation Agreement"). Employee has been encouraged to consult with
an attorney before signing the Release. Employee understands that whether or not
to do so is Employee's decision.
2. Termination of Employment. Employer agrees to accept Employee's
resignation. By entering into this Separation Agreement, Employee tenders and
Employer accepts Employee's resignation from employment effective on October 31,
1997 ("Termination Date"). Employer will ensure that all of its records reflect
a resignation from employment on the Termination Date. Notwithstanding the
foregoing, Employee shall continue to serve on Employer's Board of Directors for
the term prescribed by, and otherwise in accordance with, the Bylaws of
Employer, although Employee shall cease being Chairman of the Board.
3. Payments and Benefits. Employer will provide to Employee the
Consulting Agreement generally described in subparagraph 3.1 below. Employee
understands that the amounts to be paid to Employee pursuant to the Consulting
Agreement are all that Employee is entitled to receive from Employer. Employee
acknowledges that the payments to be made pursuant to the Consulting Agreement
below are being made by Employer in lieu of the
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remaining payments under Employee's Employment Agreement, dated as of January 1,
1995 (the "Employment Agreement").
3.1 Consulting Agreement. In lieu of receipt of the remaining
payments under the Employment Agreement which is hereby terminated, Employee and
Employer will enter into a Consulting Agreement. In consideration for Employee's
agreement to be available and consult with the Company for a period of five
years upon the terms and conditions set forth therein, and for a covenant by
Employee not to compete with Employer for the term thereof, Employee will
receive (i) base compensation equal to $6,000 per month for the first thirteen
months and $12,500 per month for each month thereafter plus (ii) incentive
compensation payable annually equal to one-half of one percent (1/2%) of
Employer's sales in excess of $24,000,000, not to exceed $60,000 annually.
3.2 Medical Coverage. Employer has given Employee written
notification of his rights to continuation of insurance coverage under the
provisions of the Consolidated Omnibus Budget Reconciliation Act of 1986
("COBRA"). Employee will be responsible for the full cost of continued coverage
in accordance with the provisions of COBRA.
4. Press Release. Employer and Employee shall jointly agree on the form
and content of the press release to be issued in connection with Employee's
termination.
5. Release of Claims. Subject only to paragraph 6, Employee on his own
behalf, and on behalf of his successors and assigns, releases the Employer and
its officers, directors, employees, agents, and attorneys and any parent,
subsidiary, affiliated or related companies and their respective successors and
assigns, ("Released Parties") from all claims, demands, actions, or other legal
responsibilities of any kind which Employee may have based on, or pertaining to
Employee's employment with the Employer or the termination of that employment.
This release includes (but is not limited to) any claims Employee may have to
indemnification pursuant to that certain Indemnification Agreement between
Employee and Employer, dated as of July 24, 1995, Employer's Bylaws, and
California Corporate and Labor Codes, respectively, in connection with claims,
suits or proceedings brought by the Employer against Employee, which rights are
hereby expressly terminated and/or waived, as well as, the Age Discrimination in
Employment Act, which prohibits age discrimination in employment, Title VII of
the Civil Rights Act, which prohibits discrimination in employment based on
race, color, sex, religion or national origin, or any other federal, state or
local law or regulation prohibiting employment discrimination. This release also
includes any claim for wrongful discharge arising under public policy or any
contract or policy of the Employer.
6. Claims Not Affected by Release. This Release does not affect
Employee's right to receive benefits under and to apply for continuation of
conversion of insurance coverage to the extent that the Employer's insurance
plans or applicable law provide for such continuation or conversion. In
addition, this Release does not apply to any claim for workers' compensation
under any federal or state workers' compensation or occupational disease law.
Finally, this
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Release does not waive any rights or claims that Employee may have under the Age
Discrimination in Employment Act which arise after the date Employee signs this
Agreement.
7. Unknown Claims. Employee understands that the release of claims set
forth in paragraph 6 above covers claims which the Employee knows about and
those he may not know about. Employee expressly waives all rights under Section
1542 of the California Civil Code, which Section Employee has read and
understands, and which provides as follows:
Section 1542. A general release does not extend to
claims which the creditor does not know or suspect to exist in
his favor at the time of executing the release, which if known
by him must have materially affected his settlement with the
debtor.
8. Agreement not to Xxx. Employee promises never to file a lawsuit
asserting any claims that are released in paragraph 5 above.
9. Representations and Warranties. Employee represents and warrants
that (i) he has not assigned to any other person or entity the claims which are
the subject of paragraph 5 above and (ii) except for matters specifically set
forth in Section 13, there is no litigation, arbitration or proceeding pending
or, to the best of Employee's knowledge, threatened against or relating to the
properties or business of Employer, nor has any person manifested to Employee an
awareness of a reasonable basis for any claim against Employer which could have
a material adverse effect on the business or financial condition of Employer.
10. Consequences of Employee's Violation of Promises. If Employee
violates Employee's promises contained in paragraphs 5 or 8 above, Employee will
pay for all costs incurred by Employer, any related companies, or the directors
or employees of any of them, including reasonable attorneys' fees, in defending
against Employee's claim.
11. Confidentiality. Employee and Employer both agree not to disclose
the terms and conditions of this Agreement nor the substance of any discussions
or negotiations leading up to this Agreement for any reason to any person or
entity not a party hereto unless such communication is required by law or is
necessary to comply with the law including, without limitation, federal or state
tax or securities laws (e.g., communications to a tax preparer for purposes of
submitting a tax return to the Internal Revenue Service, disclosures which are
required by the rules of the Securities and Exchange Commission, etc.)
12. Confidential Information. Employee agrees to return all documents,
disks, programs, or other materials that he has received during his employment.
Employee further agrees to maintain the confidentiality of all confidential,
proprietary and trade secret information that Employee learned during his
employment.
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13. Indemnification. Employee agrees to indemnify and hold Employer
harmless against any and all liabilities of any nature arising after the date of
this Agreement, whether known or unknown, accrued, absolute, contingent or
otherwise including, without limitation, any claims, damages, fines, penalties,
assessments or similar charges, which arise out of or are related to (i) any
breach of this Agreement or (ii) any activity by Employee during the course and
scope of his retention pursuant to the terms of the Consulting Agreement which
is either ultra xxxxx or unauthorized or which may constitute a breach of
fiduciary duty, duty of loyalty or other duty owed to Employer plus any
liabilities resulting from claims made by Xxxxxxxx Xxxxx, Yoshi Nakarama,
American Motoring Accessories and Ousyu Hambai Company, Ltd. Notwithstanding
anything in this Agreement or the Consulting Agreement to the contrary, Employer
may withhold and set off against amounts due to Employee hereunder or under the
Consulting Agreement any amount as to which Employee is obligated to indemnify
Employer pursuant to this Agreement or otherwise.
14. No Waiver. Nothing herein shall constitute a waiver or
relinquishment of any right, power or claim that Employer may have against
Employee of any kind or nature, whether known or unknown, accrued, absolute,
contingent or otherwise including, without limitation, any claims, damages,
fines, penalties, assessments or similar charges, which arise out of or are
related to any activity by Employee during the course and scope of his
employment or otherwise including actions which may have been ultra xxxxx or
unauthorized or which may have constituted a breach of fiduciary duty, duty of
loyalty or other duty owed to Employer.
15. Amendments. No addition, modification, amendment or waiver of any
part of this Agreement shall be binding or enforceable unless executed in
writing by both parties hereto.
16. Severability. Should any part of this Agreement be declared
invalid, void or unenforceable, all remaining parts shall remain in full force
and effect and shall in no way be invalidated or affected.
17. Survival. The representations, warranties, covenants and agreements
made in this Agreement shall survive the execution hereof and shall be binding
upon and inure to the benefit of the respective parties hereto.
18. Non-Admissions. Employer and Employee agree that neither this
Agreement nor the consideration given shall be construed as an admission of any
wrongdoing or liability by Employer, and that all such liability is expressly
denied.
19. Arbitration. Any dispute arising out of or related to this
Agreement shall be submitted to arbitration in Orange County, California, before
an arbitrator selected from Judicial Arbitration and Mediation Services, Inc.,
Orange County, California and shall be conducted in accordance with the
provisions of California Code of Civil Procedure Section 1280 et seq. as the
exclusive remedy of such dispute; provided, however, that provisional injunctive
relief may, but need not, be sought in a court of law while arbitration
proceedings are pending,
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and any provisional injunctive relief granted by such court shall remain
effective until the matter is finally determined by the Arbitrator. Final
resolution of any dispute through arbitration may include any remedy or relief
which the Arbitrator deems just and equitable, including permanent injunctive
relief or specific performance, or both, and the Arbitrator is hereby empowered
to award such relief. Any award or relief granted by the Arbitrator hereunder
shall be final and binding on the parties hereto and may be enforced by any
court of competent jurisdiction.
20. Future Employment. Employee waives any rights to future employment
with the Employer or any of its affiliated or related companies.
21. Entire Agreement. This is the entire Agreement between Employee and
Employer. Employer has made no promises other than those set forth in this
Agreement and the Consulting Agreement.
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EMPLOYEE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT, UNDERSTANDS IT
AND IS VOLUNTARILY ENTERING INTO IT WITH THE INTENTION OF RELINQUISHING ALL
CLAIMS AND RIGHTS OTHER THAN THOSE SET FORTH HEREIN.
"EMPLOYER" "EMPLOYEE"
BOYDS WHEELS, INC.,
a California corporation By:_________________________
Xxxx Xxxxxxxxxx
By:____________________________
Title:_________________________ Date:______________________
Date:________________________
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