Separation Agreement and Release of Claims
Exhibit 10.2
This Separation Agreement and Release of Claims (“Agreement”) is made by and between Xxxxx
Xxxxxx an Employee, and Tandy, Employer (collectively, the “Parties”).
R E C I T A L S:
WHEREAS, Xxxxxx and the Company have mutually agreed that he will resign effective January 3,
2011, from the Company;
WHEREAS, Employer desires to provide Employee with separation benefits to assist him/her in
the transition resulting from the termination of his/her position with Employer
WHEREAS, Employer desires that Xxxxxx assist during the transition of his responsibilities to
others in the organization by being available to answer questions and share information as directed
by the Chief Executive Officer of the Company; and
WHEREAS, Employee agrees, in exchange for such separation benefits, to waive and release any
and all claims that s/he may have against Employer.
WHEREAS, Employer agrees to waive and release Employee from the Non-Competition and
Non-Solicitation of Customers provisions contained in sections 5(b) and (c) of Employee’s Bonus
Agreement executed on or about January 27, 2009 (“Bonus Agreement”) and all other Bonus Agreements
executed before or after this Bonus Agreement.
NOW, THEREFORE, in consideration of the mutual promises and releases contained herein, and for
other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties
agree as follows:
1. Salary and Benefits Continuation. Upon the execution of this Agreement, the
Parties agree as follows:
| a. | Employee shall be terminated from employment with Employer effective January 3,
2011 (hereinafter the “Termination Date”). |
| b. | Employee will be provided with his/her final paycheck, including any earned but
unused paid time off, within (6) days of termination date. |
| c. | In an effort to ease the transition into different employment, Employer agrees
to pay Employee nine (9) months of Employee’s current base salary, less FIT and
FICA withholding, as required by law, on regularly scheduled pay days commencing on the
first scheduled pay day after the end of the Revocation Period, as defined herein. |
| d. | Employee agrees that s/he will not apply or reapply for employment with
Employer, and understands that if s/he does, such application will be rejected pursuant
to this Agreement. |
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| e. | Employee acknowledges that by signing this Agreement and accepting the benefits
provided herein, s/he is receiving benefits to which s/he would not otherwise be
entitled. Employee pledges that s/he has carefully read and fully understands all the
provisions of this Agreement, and that s/he is signing it voluntarily because s/he
wants to take advantage of Employer’s separation offer as outlined in this Agreement. |
| f. | Following the Termination Date, Employee shall be entitled to any and all other
rights or benefits afforded to other terminated employees of Employer, including,
without limitation, the right to elect to continue, at Employee’s cost, coverage under
Employer’s health plan, in accordance with the health care continuation coverage
provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) and
applicable law. A separate notice of COBRA rights will be provided to Employee. |
| g. | The Parties understand that any vested rights Employee may have under
Employer’s health care program, life insurance program, employee stock purchase
program, employee investment plan, flexible benefit plan, and flexible spending account
are excluded from the scope of this Agreement, and are not terminated or released by
it. |
2. Release. Employee, on behalf of him/herself, his/her descendants, ancestors,
dependents, heirs, executors, administrators, successors, and assigns, and each of them, hereby
covenants not to xxx and fully releases, acquits and discharges Employer, and its subsidiaries and
affiliates, past, present, future, and each of them, as well as its owners, trustees, directors,
officers, shareholders, agents, servants, employees, representatives, successors, and assigns,
related companies or entities, jointly and individually, and each of them (collectively referred to
as “Releasees”) with respect to and from any and all claims, wages, demands, assistance, support,
rights, liens, agreements, contracts, covenants, actions, suits, rights to appeal, entitlements and
notices, causes of action, obligations, debts, costs, expenses, interests, attorneys’ fees,
contributions, damages, judgments, orders and liabilities of whatever kind or nature in law,
equity, or otherwise, whether known or unknown, suspected or unsuspected, and whether or not
concealed or hidden, which Employee has at any time heretofore owned or held against said
Releasees, including, without limitation, those arising out of or in any way connected with his/her
employment relationship with Employer, or Employee’s layoff or any other transactions, occurrences,
acts or omissions, or any loss, damage, or injury whatever, known or unknown, suspected or
unsuspected, resulting from any of them, committed or omitted prior to the date of this Agreement,
and including, without limitation, claims for breach of contract, libel, slander, wrongful
discharge, intentional infliction of emotional harm, or other tort, or discrimination or harassment
based upon any federal, state, or municipal statute or local ordinance relating to
discrimination in employment. Employee does not waive his/her right to pursue claims for
unemployment compensation. The claims waived and discharged include, but are not limited to those
arising under the following:
Title VII of the Civil Rights Act of 1964; Executive Order 11246; Equal Pay Act;
Vietnam Era Veteran Readjustment Assistance Act; Civil Rights Act of 1991; 42 U.S.C.
1981 (the 1866 Civil Rights Act); Americans with Disabilities Act; Employee
Retirement Income Security Act; Family and Medical Leave Act; Fair Labor Standards
Act; all laws, including the common laws of the State of Texas regarding
employment-related claims; disputed wages, including claims for any back wages or
overtime; wrongful discharge and/or breach of contract claims; and tort claims,
including invasion of privacy, defamation, fraud, and infliction of emotional
distress.
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3. Indemnity Regarding Assignment of Claims. Employee represents and warrants that
s/he has not heretofore assigned or transferred, or purported to assign or transfer, to any person,
entity, or individual whatsoever, any of the claims released as set forth in Paragraph 2, above.
Employee agrees to indemnify and hold harmless the Releasees (as defined in Paragraph 2, above)
against any claim, demand, debt, obligation, liability, cost, expense, right of action, or cause of
action based on, arising out of, or in assignment. Employee agrees that s/he will not bring any
legal action against the Releasees for any claim that occurred prior to signing this Agreement.
However, this stipulation does not prohibit Employee from filing a lawsuit for the sole purpose of
enforcing his/her rights under this Agreement, or from enforcing rights that may arise subsequent
to the signing of this Agreement. Employee agrees that if a claim s/he has waived or discharged
under this Paragraph 3 is prosecuted in his/her name, or on his/her behalf before any court or
administrative agency, s/he waives and agrees not to take any award of money or other damages from
such suit. Employee also agrees that if a claim waived or discharged under this Paragraph 3 is
prosecuted in his/her name, s/he will immediately request in writing that the claim on his/her
behalf be withdrawn. Employee also agrees that s/he waives on behalf of him/herself and his/her
attorneys all claims for attorneys’ fees and expenses, and court costs for any claim waived and
discharged under this Paragraph 3.
4. Release, Waiver, and Covenant Not to Xxx Under the ADEA. By signing this
Agreement, Employee consents to the following:
| a. | Release and Waiver of Rights: Employee irrevocably and unconditionally
releases Employer and the other Releasees, or any of them, from any and all claims,
complaints, liabilities, damages, causes of action, suits, rights, costs and expenses
(including attorneys’ fees) from any and all age discrimination, harassment, and/or
retaliation claims under the Age Discrimination in Employment Act (“ADEA”). |
| b. | Covenant Not to Xxx: Employee agrees that s/he will not bring any
legal action against the Releasees for any claim under the ADEA that existed prior to
the time s/he signed this Agreement; however, this stipulation does not keep Employee
from filing a lawsuit for the sole purpose of enforcing his/her rights under this
Agreement, from enforcing or securing any rights that may arise subsequent to
Employee signing this Agreement, or from enforcing or securing any rights provided
Employee under the ADEA that may not be legally waived. |
5. Employer’s Release of Non-Competition and Non-Solicitation of Customers. Employer
agrees to waive and release Employee from the Non-Competition and Non-Solicitation of Customers
provisions contained in sections 5(b) and (c) of Employee’s Bonus Agreement executed on or about
January 27, 2009 (“Bonus Agreement”) and all other Bonus Agreements executed before or after this
Bonus Agreement.
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6. Entire Agreement. This Agreement constitutes and contains the entire Agreement and
understanding concerning Employee’s employment and layoff, and the other subject matters addressed
herein between the Parties, and supersedes and replaces all prior negotiations and all prior
Agreements proposed or otherwise, whether written or oral, concerning the subject matter hereof.
7. Governing Law. This Agreement shall be governed by and subject to the laws and
exclusive jurisdiction of the courts of the State of Texas. In the event that Employee breaches
any of the provisions of this Agreement, Employee agrees to pay Employer’s reasonable costs of
prosecuting such claims, including costs and attorneys’ fees.
8. Severability. In the event that one or more of the provisions of this Agreement
shall for any reason be held to be illegal or unenforceable, this Agreement shall be revised only
to the extent necessary to make such provision(s) legal and enforceable.
9. Enforceability. Before Employee takes any legal action to challenge the validity
or enforceability of this Agreement, for any reason, including, without limitation, any claim that
Employee did not knowingly or voluntarily enter into in this Agreement, Employee agrees that s/he
must first return to Employer the payment(s) received by Employee; provided, however, that this
Paragraph 8 shall not apply to the release and waiver and covenant not to xxx under the ADEA.
10. Return of Property. Employee agrees to return to Employer any and all property
belonging to Employer or the other Releasees, including, but not limited to: originals and all
copies of files, memoranda, records, software and related program passwords, computer printouts and
disks, door and file keys, laptop computers, (excluding cell phones, smart phones, Blackberry),
electronic cards, and all other property which Employee received or created in connection with
his/her employment with Employer. All such property must be returned to Employer upon Employee’s
execution of this Agreement. Employee agrees and guarantees that s/he has not kept any copies,
electronic or otherwise, of any of Employer’s property. Upon request by Employer, Employee will
provide a sworn certificate that s/he is in compliance with this Agreement, that s/he has returned
all of Employer’s property, and that s/he is not using any confidential information belonging to
Employer.
11. Confidential Information. During his/her employment with Employer, Employee was
provided with, and had access to, information regarding Employer’s methods of business, and was
also provided with, and had access to, other confidential information. Confidential information
includes, but is not limited to, customer lists, customer information,
business plans, marketing plans, cost information, sourcing information, compensation figures,
product pricing information, product design specification, future business plans, any and all
documents, memoranda, records and files, correspondence, notes, specifications, and plans, policies
and procedures, computer programs, software, and other proprietary data of whatever type or nature.
Employee understands that this confidential information is in the nature of a trade secret, and is
the sole property of Employer. Employee promises and agrees that s/he will not directly or
indirectly, use for his/her benefit, use to the injury of Employer, or divulge to persons other
than authorized representatives of Employer, any confidential information of the Employer for a
period of nine (9) months after the execution of this agreement. Upon execution of this Agreement,
all confidential information shall be left with or returned to Employer. Employee agrees that
his/her obligations under this Paragraph 10 shall outlast the execution of this Agreement.
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12. Nondisparagement. Employee agrees that s/he will not make any offensive remarks
or statements to anyone regarding Employer and/or any of the other Releasees, including, but not
limited to, statements or remarks regarding his/her employment with Employer or the termination of
that employment. Employee also agrees that s/he will instruct his/her attorney and spouse (if
married) to abide by the disparagement prohibition contained in this Paragraph 11. Employee also
agrees that s/he will not say or do anything that damages or impairs in any way the business
organization, goodwill, or reputation of Employer or any of the other Releasees.
13. No Solicitation of Employees. Employee understands and agrees that s/he will not
solicit or hire, directly or indirectly, any individual employed by Employer, or who worked for
Employer during the previous six (6) months, for a period of nine (9) months after execution of
this Agreement.
14. Violation of Agreement. Employee understands and agrees that if s/he violates any
of the promises made in this Agreement, s/he will not receive any additional payments due under
this Agreement, must return any payments already received, and may be liable for additional
damages, including costs and attorneys’ fees.
15. Voluntary Agreement. The Parties acknowledge that they have read the foregoing
Agreement, understand its contents, and accept and agree to the provisions it contains, and hereby
execute it voluntarily and knowingly, and with full understanding of its consequences. Employee
acknowledges in executing this Agreement that s/he is not relying, and has not relied on, any
guarantee or statement (except those contained in this Agreement) made by any of the Releasees or
any agent of the Releasees with regard to the subject matter or effect of this Agreement or
otherwise. This Agreement sets forth the entire Agreement between Employee and Employer, and takes
the place of any and all prior arrangements or understandings between Employee and Employer. This
Agreement is entered into in the State of Texas, and shall be interpreted in accordance with the
laws of the State of Texas and in Tarrant County, Texas. The waiver by Employer of a breach of any
provision of this Agreement by Employee shall not function or be construed as a waiver of any
subsequent breach by Employee. Employee agrees that the provisions contained in this Agreement are
fair and reasonable. Employee acknowledges that irreparable injury will result to Employer in the
event of Employee’s breach of any of the provisions herein. Accordingly, in addition to any other
rights or remedies
available to Employer for breach of this Agreement by Employee, Employer shall be entitled to
enforcement by preliminary restraining order and injunction. Employee covenants and agrees to keep
this Agreement confidential, and promises not to disclose its existence or terms in any form or
fashion without the prior written consent of Employer, unless disclosure is legally required.
Employer agrees, however, that Employee may inform his/her spouse (if married), and also his/her
attorney, accountant, and CPA of the existence and terms of this Agreement as required for legal
and/or financial planning or advice.
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16. NOTICE TO EMPLOYEE. EMPLOYEE SHOULD CAREFULLY REVIEW AND UNDERSTAND THIS
AGREEMENT BEFORE SIGNING IT. THIS AGREEMENT INCLUDES A RELEASE AND WAIVER OF LEGAL RIGHTS AND
CLAIMS. EMPLOYER ADVISES EMPLOYEE TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT.
BY SIGNING THIS AGREEMENT, EMPLOYEE AGREES THAT S/HE FULLY UNDERSTANDS HIS/HER RIGHTS TO DISCUSS
THIS AGREEMENT WITH AN ATTORNEY OF HIS/HER CHOICE (AT HIS/HER EXPENSE), AND THAT S/HE HAD ADEQUATE
OPPORTUNITY TO DO SO. EMPLOYEE MAY ACT UPON THIS AGREEMENT ANYTIME PRIOR TO FEBRUARY 18, 2010,
WHICH WILL ALLOW EMPLOYEE MORE THAN 45 DAYS TO CONSIDER IT AFTER IT HAS BEEN DELIVERED TO EMPLOYEE.
IF EMPLOYEE WISHES TO ACCEPT AND AGREE TO THESE TERMS, EMPLOYEE SHOULD SIGN THE AGREEMENT IN THE
PRESENCE OF A NOTARY PUBLIC, AND DELIVER IT TO XXX XXXXXXX PRIOR TO FEBRUARY 18, 2010. FOR A PERIOD
OF 7 DAYS AFTER EMPLOYEE’S EXECUTION OF THIS AGREEMENT, EMPLOYEE MAY REVOKE THIS AGREEMENT BY
DELIVERING A WRITTEN NOTICE TO XXX XXXXXXX. THIS AGREEMENT WILL NOT BECOME EFFECTIVE OR
ENFORCEABLE (AND THE SALARY CONTINUATION PAYMENTS TO EMPLOYEE WILL NOT BEGIN UNTIL THIS 7-DAY
REVOCATION PERIOD HAS PASSED.
17. Employee’s Representations. By signing this Agreement, Employee represents and
warrants that s/he:
| 1. | Understands completely his/her right to review all
aspects of this Agreement with an attorney of his/her choice (at
his/her expense), and that s/he has had adequate opportunity to do so; |
| 2. | Was given at least 45 days from the date s/he received
this Agreement to consider it, and understands s/he has 7 days after
signing it to revoke it (“Revocation Period”); |
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| 3. | Has been provided and has reviewed a list of
departmental employees, along with the job titles and ages of all
individuals eligible for Employer’s cash separation program; and |
| 4. | Has been provided and has reviewed a list of the job titles and ages
of all individuals in the same department who were not selected for
Employer’s cash separation program. This list is set out on Exhibit
“A” attached hereto, and made a part of this Agreement for all
purposes. |
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF
KNOWN AND UNKNOWN CLAIMS.
KNOWN AND UNKNOWN CLAIMS.
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| EMPLOYEE | TANDY | |||
/s/ Xxxxx Xxxxxx
|
By: | /s/ Xxx Xxxxxxx
|
||
| Chief Performance Officer | ||||
| Date: 1/7/11 | Date: 1/7/11 | |||
STATE OF TEXAS §
COUNTY OF DALLAS §
SWORN TO AND SUBSCRIBED before me, the undersigned Notary Public, by Xxxxx Xxxxxx, on this
7th day of January, 2011.
| /s/ Xxxxxx Xxxxx | ||||
| NOTARY PUBLIC in and for | ||||
| The State of Texas | ||||
My Commission Expires: 6-18-13 |
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