Exhibit 10.10
AGREEMENT
THIS AGREEMENT, made as of June 10, 2002 (the "Effective Date"), by
MAZEL STORES, INC., an Ohio corporation, with its principal place of business at
000 Xxxxx Xxxxxx, Xxxxx Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "Company") and XXXXX
X. CHURCHES, an individual residing at 0000 Xxxxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000 (the "Executive").
WITNESSETH:
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WHEREAS, the Company and Executive were parties to an employment
agreement dated February 25, 2000, effective as of August 14, 2000 (the
"Employment Agreement");
WHEREAS, Executive filed a lawsuit against the Company styled as XXXXX
X. CHURCHES X. XXXXX STORES, INC., Case No. 02-CVH 04-4337, Franklin County,
Ohio Court of Common Pleas on April 19, 2002 alleging, among other things, the
Company constructively and effectively terminated Churches employment;
WHEREAS, the Company alleges that Churches voluntarily terminated his
employment with the Company and commenced employment with Value City Stores,
Inc.;
WHEREAS, it is deemed prudent and advisable to avoid the uncertainty
and burden of further litigation and to settle and forever resolve disputes and
claims that Churches claims or may claim in the future on account of or in
connection with any acts or omissions of the Company or any of its directors,
officers or employees, prior to the date of this Agreement in connection with or
arising out of Churches' employment with the Company and disputes and claims
that the Company claims or may claim in the future on account of or in
connection with any acts or omissions of Churches prior to the date of this
Agreement; and
WHEREAS, Executive has been given twenty-one (21) days after receipt of
this Agreement within which to consider it before signing it.
NOW, THEREFORE, the parties hereto agree as follows:
1. TERMINATION OF EMPLOYMENT. The parties agree that the
Executive's employment with the Company and all of its
Affiliates (as defined in the Employment
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Agreement), terminated as of February 2, 2002. Executive
further resigns as a director and officer of the Company and
as an officer and director of each of its Affiliates as of the
Effective Date. Executive agrees to execute and deliver to the
Secretary of the Company a letter evidencing and affirming
such resignations as of the Effective Date.
2. SEVERANCE PAYMENT. In consideration of the terms set forth in
this Agreement, the Company agrees to pay Executive,
concurrently with the execution and delivery of this
Agreement, the sum of Five Hundred Thousand Dollars
($500,000), subject to all applicable federal, state and local
withholding taxes ("Severance Pay"). Notwithstanding the
foregoing, due to Executive's right to revoke the release and
waiver of claims under the ADEA (as set forth in section 4(A)
herein), thereby relieving the Company of its obligation to
provide Executive the Separation Pay, the Company's obligation
to provide Executive with the Severance Pay will take effect
eight days after Executive has signed this Agreement (on the
condition that Executive fails to revoke the release of his
ADEA claims); provided, however, that Executive provides a
notice confirming that he is not revoking the release of his
ADEA claim.
Therefore, upon execution and delivery of this Agreement, the Company
shall deposit the Severance Pay with Executive's legal counsel, Xxxx X.
Xxxxxxxxx, to be held in escrow during the ADEA Waiting Period. Upon receipt of
a written notice from Executive eight days after Executive has signed this
Agreement stating that Executive did not revoke his release and waiver of claims
under the ADEA, Xxxx X. Xxxxxxxxx shall immediately distribute the Severance Pay
to Executive and shall have no further obligations to Company or Executive
regarding the Severance Pay. If Executive does revoke the release of his ADEA
claims (or fails to provide notice before June 30, 2002 confirming that he is
not revoking the release of his ADEA claim), Xxxx X. Xxxxxxxxx shall immediately
return the Severance Pay to the Company.
3. DISMISSAL OF LAWSUIT WITH PREJUDICE. In consideration of the
terms set forth in this Agreement, Executive shall cause his
counsel to
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file an entry with the Franklin County Court of Common Pleas
dismissing with prejudice the Lawsuit.
4. RELEASE OF CLAIMS AND COVENANT NOT TO XXX.
A. In further consideration for the amounts to
be paid by the Company to Executive
hereunder, Executive does hereby release and
forever discharge the Company and each
Affiliate and their respective directors,
officers, executives, shareholders, agents
(including, but not limited to, accountants
and attorneys) (such individuals, the
Company and the Affiliates are hereunder
collectively referred to as "Released
Parties") from all claims, causes of action
and liabilities of every kind and
description whatsoever, known and unknown,
foreseen and unforeseen, suspected and
unsuspected, asserted or unasserted, which
Executive has or may have against them or
any of them by reason of any fact, matter or
thing from the beginning of the world to the
date of this Agreement, with the sole
exception of: (i) claims arising out of the
breach of any of Company's obligations under
this Agreement; (ii) payment of medical
claims in accordance with the terms of the
Company's insurance policy for services
rendered prior to February 2, 2002; and
(iii) payments due Executive under the
Company's 401(k) Plan (collectively, the
"Retained Claims"). Without limiting the
generality of the preceding sentence,
Executive does hereby release the Released
Parties from all claims, causes of action
and liabilities arising from or relating to:
(i) his employment or other association with
the Company
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or with any Affiliate; (ii) any right which
Executive has, had or may have had to
receive any sum of money of the Company or
of any Affiliate; (iii) any rights or claims
which Executive may have against the Company
or any Affiliate for any cause whatsoever;
(iv) any claims for salary, bonuses,
vacation pay, fringe benefits, director's
fees, business expenses and allowances or
severance pay; (v) claims based on oral or
written contracts; (vi) claims arising under
any federal or state statutes, including but
not limited to, claims asserting
discrimination on account of age, race,
color, sex, religion, national origin or
veteran or handicap status and claims under
the Age Discrimination in Employment Act of
1967 ("ADEA"), as amended, ERISA, Title VII
of the 1964 Civil Rights Act and the Older
Worker Benefit Protection Act; (vii) claims
for damages for breach of contract or
implied contract; (viii) claims based on
personal injury, including without
limitation, infliction of emotional
distress; (ix) wrongful termination or
breach of covenant of good faith and fair
dealing; (x) claims asserting defamation,
interference with contract or business
relationships or promissory estoppel; and
(xi) claims relating to Executive's
ownership, acquisition and/or sale of
Company stock.
Executive covenants and agrees that he will never assert a
claim or institute any cause of action or file a charge based on claims, causes
of action and liabilities of every kind and description whatsoever, known and
unknown, foreseen and unforeseen, suspected and unsuspected, asserted or
unasserted, which Executive
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has or may have against the Company, any Affiliate, or any other Released Party
by reason of any fact, matter or thing from the beginning of the world to the
date of this Agreement (except for Retained Claims) with any court of law or
administrative tribunal, and further agrees that should he violate the foregoing
covenant not to xxx by asserting a claim, instituting an action or filling a
charge against the Company, any Affiliates, or any other Released Party which is
prohibited under this Agreement, Executive will pay all of Company's costs and
expenses (including, without limitation, attorneys' fees) of defending against
the suit incurred by the Company or any other Released party. Executive
acknowledges and agrees that the monetary benefits provided in this Agreement
constitute sufficient consideration for the Release and Covenant Not to Xxx
contained herein, that there are substantial benefits to Executive, and
Executive further acknowledges that he has voluntarily and knowingly entered
into this Agreement with an understanding of its terms and meanings.
Executive acknowledges that the Company has notified him that,
under federal law: (i) Executive has twenty-one (21) days from the date of
receipt by Executive of this Agreement to consider and release and covenant not
to xxx solely with respect to claims arising under the ADEA; and (ii) the
release of claims and covenant not to xxx under the ADEA are not enforceable for
a period of seven (7) days following the execution by Executive of this
Agreement ("ADEA Waiting Period") and may be revoked by Executive during such
time. Revocation of the release of claims under ADEA may be effected by
Executive solely by notifying the Company in writing of his revoke and
delivering such notice to the Company within the aforesaid ADEA Waiting Period.
Such revocation shall not affect any of the other terms and provisions of this
Agreement.
B. In consideration for Executive's agreements,
obligations and covenants contained in this
Agreement, the Company does hereby release
and forever discharge Executive and his
heirs, executors administrators, personal
representatives, successors and permitted
assigns, from all claims, causes of action
and liabilities of every kind and
description whatsoever, known and unknown,
foreseen and unforeseen, suspected or
unsuspected, asserted or unasserted, which
the Company has
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or may have against Executive by reason of
any fact, matter or thing from the beginning
of the world to the date of this Agreement,
except for claims arising out of the breach
by Executive of any of his obligations,
representations, warranties and covenants
under this Agreement. Without limiting the
generality of the preceding sentence, the
Company does hereby release Executive from
all claims, causes of action and liabilities
arising from or relating to Executive's
previous employment (including his services
as a director) with the Company and/or the
circumstances giving rise to the execution
and delivery of this Agreement. The Company
covenants and agrees that it will never
assert or institute any cause of action or
file a charge arising from or relating to
Executive's previous employment with the
Company and/or the circumstances giving rise
to the execution and delivery of this
Agreement, and further agrees that should
the Company violate the foregoing covenant
not to xxx by instituting an action or
filing a charge against Executive which is
prohibited under this Agreement, Company
will pay all costs and expenses (including,
without limitation, attorneys' fees) of
defending against the suit incurred by
Executive.
5. INDEMNIFICATION. The Company agrees to indemnify the Executive
from and against any loss, expense, damage or injury suffered
or sustained by Executive by reason of any acts, omissions
arising out of his activities on behalf of the Company or in
furtherance of the interests of the Company, including, but
not limited to, any judgment, award,
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settlement, reasonable attorney's fees and other costs or
expenses incurred in connection with the defense of any actual
or threatened action, proceeding or claim; providing that the
acts, omissions or alleged acts or omissions, upon which such
actual or threatened action, proceeding or claims is based
were not performed or omitted fraudulently or in bad faith or
as a result of willful misconduct by Executive or as a result
of a breach of fiduciary duty; and provided that Executive
reasonably believed that the acts, omissions or alleged acts
or omissions were in the best interests of the Company and/or
its Affiliates.
6. NON-COMPETITION; TERMINATION OF EXISTING EMPLOYMENT AGREEMENT.
By this Agreement, the parties agree that the termination of
the Employment Agreement occurred on February 2, 2002.
Notwithstanding the terms of the Employment Agreement, the
non-competition provision of Section 6.1 thereof shall
terminate as of the Effective Date.
7. STOCK OPTIONS. The parties confirm that as of the Effective
Date, all of Executive's unexercised, non-vested or vested
stock options for Common Stock of the Company have expired.
8. CONFIDENTIALITY. Executive agrees to keep the substance of the
negotiations and the terms and conditions of this Agreement
strictly confidential. Executive further agrees not to
disclose the substance of the negotiations or the terms and
conditions of this Agreement, except to his tax, financial
and/or legal advisors or members of his immediate family, each
of whom will also have an obligation of confidentiality.
9. NON-DISPARAGEMENT. The Company agrees not to disparage
executive's professional or personal reputation. Executive
agrees not to disparage the Company or the professional or
personal reputation of any Company officer, director or
employee.
10. MISCELLANEOUS.
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A. NOTICES. All notices, request, demands or other
communications hereunder must be in writing executed by an authorized
representative of the party responsible therefor, and must be given either by
hand delivery or telecopy or other telecommunications device capable of creating
a written record (confirmed by registered or certified mail or by overnight
courier):
If to Company: Mazel Stores, Inc.
000 Xxxxx Xxxxxx
Xxxxx Xxxxxxxxxx, XX 00000
ATTN: Xxxxx X. Xxxxx
Telecopier Number: (000) 000-0000
With a copy to: Kahn, Kleinman, Xxxxxxxx & Xxxxxx Co., L.P.A.
2600 Tower at Erieview
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopier Number: (000) 000-0000
If to Executive: Xxxxx Churches
0000 Xxxxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Telecopier Number: (000) 000-0000
With a copy to: Shayne & Xxxxxxxxx Co., L.P.A.
000 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Telecopier Number: (000) 000-0000
B. COUNTERPARTS. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one
and the same instrument.'
C. ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding between the parties with
respect to the subject matter hereof and supersedes and
cancels any and all prior discussions, correspondence,
agreements or understandings (whether oral or written)
between the parties hereto with respect to such matters,
including, but not limited to, the Employment Agreement
(which shall be null and
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void and of no further force and effect).
D. BINDING EFFECT/NON-ASSIGNABILITY. This Agreement shall
inure to the benefit of and shall bind the Company and its
successors and assigns (whether by way of sale of assets,
merger, consolidation, combination, reorganization,
bankruptcy or other proceedings), and Executive, his heirs,
representatives, successors and permitted assigns.
Notwithstanding anything herein contained to the contrary,
this Agreement and the rights and obligations of Executive
hereunder are personal to Executive and may not be assigned
or delegated to any Third Party.
E. SEVERABILITY. All provisions of this Agreement are intended
to be severable. In the event any provision or restriction
contained herein is held to be invalid or unenforceable in
any respect, in whole or in part, such finding shall in no
way affect the Agreement. The parties hereto further agree
that any such invalid or unenforceable provision shall be
deemed modified so that it shall be enforced to the
greatest extent permissible under law, and to the extent
that any court of competent jurisdiction determines any
restriction herein to be overly broad or unenforceable,
such court is hereby empowered and authorized to limit such
restriction so that it is enforceable for the longest
duration of time and greatest scope possible.
F. GOVERNING LAW/JURISDICTION AND VENUE. This Agreement shall
be governed by and construed in accordance with the laws of
the State of Ohio. Any claim or action arising hereunder
shall be settled before a single arbitrator in Columbus,
Ohio under the commercial rules of the American Arbitration
Association then in effect, and judgment upon such award
rendered by the arbitrator may be entered in any court of
competent jurisdiction. The arbitrators' fee shall be split
equally among the parties.
IN WITNESS WHEREOF, the parties hereto have set their hands as of the
date written above.
MAZEL STORES, INC.
By:
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Xxxxx X. Xxxxx,
Chief Executive Officer
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XXXXX X. CHURCHES
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