SEPARATION AGREEMENT AND RELEASE OF CLAIMS
EXHIBIT
10.1
AND
RELEASE OF CLAIMS
This
SEPARATION AGREEMENT AND RELEASE OF CLAIMS (“the “Agreement”) is made and
entered into as of the 21st day of September, 2005, by and between PCA LLC,
a
Delaware Limited Liability Company with its principal place of business in
Mecklenburg County, North Carolina, USA (the "Company"), and Xxx Xxxxxxxxxx
a
resident of Charlotte, NC (the “Employee”).
STATEMENT
OF PURPOSE
The
Employee's employment with the Company will end on the date stated below. The
Company has decided to offer this Agreement to Employee to provide compensation
not otherwise owed to Employee and in exchange for the obligations of Employee
described below.
NOW
THEREFORE, in consideration of the mutual covenants and agreements contained
herein and other good and valuable consideration, the Company and Employee
hereby agree as follows:
1.
Date of Separation.
Employee's employment with the Company and/or the Company's subsidiaries is
hereby separated as of September 21, 2005 and Employee hereby tenders Employee's
resignation from any positions now held with the Company and/or its
subsidiaries, all such resignations to be effective as of September 21,
2005.
2.
Separation Payment.
Subject
to Employee's full compliance with the terms of this Agreement, including the
conditions set forth below, the Company shall continue to pay the base salary
of
Employee for a period of twenty-six (26) weeks from the date of separation
set
forth in paragraph 1 above. These separation payments shall be payable at a
time
and in accord with the regular payroll practices of the Company, except that
payment may be by check rather than direct deposit. All such amounts shall
be
subject to and reduced by any applicable federal and state withholding
taxes.
3.
Benefit Plans and Fringe Benefits.
From
and after the employment separation date set forth in paragraph 1 above,
Employee shall not have the right to participate in or receive any benefit
under
any employee benefit plan of the Company, any fringe benefit plan of the
Company, or any other plan, policy or arrangement of the Company providing
benefits or perquisites to employees of the Company generally or individually.
Provided, however, that Employee shall be entitled, if otherwise eligible,
(i)
to exercise Employee’s right to continued coverage under the Company medical
benefit plan as provided by federal law (and with respect to which the Company
will provide Employee with a separate notice as required by federal law) and
for
which, for the period of six months, the Company will charge no more than the
cost of similar insurance to active employees of the Company, with the Company
paying the difference in the employee rate and the COBRA rate if necessary
(payment to be made by deduction from amounts payable to Employee hereunder)
and
thereafter at the normal COBRA rate in effect at the time of the charge; and
(ii) to elect the payment of benefits to which Employee is entitled under any
employee pension benefit plan of the Company as provided under the terms of
any
such plan.
4.
Vacation Pay.
Upon
the first regularly scheduled payday following the execution hereof, the Company
shall pay to Employee all accrued and unused vacation pay as per the Associate
Handbook in effect on the date of Separation.
5.
Return of Company Property.
Employee agrees to return immediately to the Company all originals and copies
of
all documents, software or any other materials or property (including keys)
relating to Employee's employment or obtained or created in the course of such
employment, except for his cell phone, phone number, laptop computer and flat
screen monitor.
6.
Public Statements and Reference.
Employee agrees not to make any public statements, written or oral, regarding
employee's departure from the Company's employment except as may be approved
by
the Company in advance, and further agrees not to make any statement (including
to any media source) that would disrupt, impair or affect adversely the Company,
or its employees, officers or directors, or place the Company or such
individuals in any negative light.
7.
Admissions.
Employee acknowledges that the payment by the Company of the benefits described
herein is made in good faith and shall never for any purpose be considered
an
admission of liability on the part of the Company, by whom liability is
expressly denied, and no past or present wrongdoing on the part of the Company
shall be implied by such payment.
8.
Release.
As
consideration for the payments to be made by the Company to Employee pursuant
to
paragraph 2 hereof, Employee agrees for Employee and for Employee's heirs,
executors, administrators and assigns, to release and forever discharge the
Company and Wal-Mart Stores, Inc., and all of their parent and subsidiary
corporations, together with each of their respective agents, officers,
employees, directors and attorneys, from and to waive any and all rights with
respect to all manner of claims, actions, causes of action, suits, judgments,
rights, demands, debts, damages, or accountings of whatever nature, legal,
equitable or administrative, whether the same are now known or unknown, which
Employee ever had, now has or may claim to have, upon or by reason of the
occurrence of any matter, cause or thing whatsoever up to the date of this
Agreement, including without limitation: (i) any claim whatsoever (whether
under
federal or state statutory or common law) arising from or relating to Employee's
employment or changes in Employee's employment relationship with the Company,
including Employee's separation, termination or resignation therefrom, (ii)
all
claims and rights for additional compensation or benefits of whatever nature;
(iii) any claim for breach of contract, implied or express, impairment of
economic opportunity, intentional or negligent infliction of emotional distress,
wage or benefit claim, prima facie tort, defamation, libel, slander, negligent
termination, wrongful discharge, or any other tort, whether intentional or
negligent; and (iv) all claims and rights under Title VII of the Civil Rights
Act of 1964, the Civil Rights Acts of 1866, 1871, or 1991, the Age
Discrimination in Employment Act, the Employee Retirement Income Security Act,
the Americans With Disabilities Act of 1993, the Family and Medical Leave Act,
all as amended, or any other federal, state, county or municipal statute or
ordinance relating to any condition of employment or employment discrimination.
Provided, however, this Release shall not (i) include any claims relating to
the
obligations of the Company under this Agreement, (ii) operate to release
Employee's ownership of any common stock of the Company, (iii) affect Employee's
vested and accrued rights as a participant in the Company's 401(k) plan, or
(iv)
affect Employee's rights to exercise any conversion rights provided to Employee
in the Company's group life insurance plan.
9.
Disclosure of Confidential Information.
For a
period of two (2) years from the date of this Agreement, Employee shall not
disclose to anyone outside the Company any confidential or proprietary
information of the Company. For purposes of this paragraph, "confidential and
proprietary information" shall mean information not generally known to the
public that was created by, disclosed or made available to Employee in the
course of employee's employment by the Company, and shall include, but not
be
limited to the following: digital technology information, proprietary production
processes, confidential pricing information or sales results, market or
merchandising research, and any confidential information concerning employees
of
the Company.
10.
Governing Law and Forum Selection.
Employee agrees that any claim against the Company or any of its affiliates
or
their employees arising out of or relating in any way to this Agreement or
to
Employee's employment with the Company shall be brought exclusively in the
Superior Court of Mecklenburg County, North Carolina, or the United States
District Court for the Western District of North Carolina, and in no other
forum. Employee hereby irrevocably consents to the personal and subject matter
jurisdiction of these courts for the purpose of adjudicating any claims subject
to this forum selection clause. Employee also agrees that any dispute of any
kind arising out of or relating to this Agreement or to Employee's employment
(including without limitation any claim released herein by Employee) shall
at
the Company's sole election or demand be submitted to final, conclusive and
binding arbitration before and according to the rules then prevailing of the
American Arbitration Association in Mecklenburg County, North Carolina, which
election or demand may be made by the Company at any time prior to the last
day
to answer and/or respond to a summons and/or complaint or counterclaim made
by
Employee. The results of any such arbitration proceeding shall be final and
binding both upon the Company and upon Employee, and shall be subject to
judicial confirmation as provided by the Federal Arbitration Act or the North
Carolina Arbitration Act, including specifically the terms of N.C. Gen. Stat.
§
1-567.2, which are incorporated herein by reference.
11.
Acknowledgment of Waiver.
Employee acknowledges that Employee’s waiver of rights and claims under the
Release of Claims includes a waiver of rights and claims under the Federal
Age
Discrimination in Employment Act of 1967, as amended, and that such waiver
and
the waiver and release of all other rights and claims contemplated by the
release set forth in paragraph 8 above are made knowingly and voluntarily.
Employee acknowledges the Employee has been given a period of at least
twenty-one (21) days to consider the provisions of the release stated above,
and
to consult with Employee’s attorney, accountant, tax advisor, spouse or other
persons prior to making a decision to sign this document. Employee further
acknowledges that the Company has not pressured or coerced Employee to execute
this Release of Claims prior to the expiration of 21 days from the date it
was
furnished to Employee and that any decision to execute this Release of Claims
prior to such time is done freely and voluntarily. Employee certifies that
the
Company has advised Employee in writing to consult an attorney regarding the
legal consequences of the execution of this Release of Claims.
12.
Company’s Obligation Ends.
The
obligations of the Company set forth in paragraph 2 hereof are conditional
upon
the Employee’s execution of this Agreement no later than twenty-one (21) days
following the date on which such Agreement is submitted to the Employee, as
well
as the Employee’s failure to revoke the same following the expiration of seven
(7) days following such execution. In the event that the Employee fails to
execute such Agreement within such 21-day period or revokes the execution
thereof, the Company’s obligations under paragraph 2 shall be null and
void.
13.
Waiver of Right or Claim to Reinstatement.
Employee
waives any right or claim he/she may have to reinstatement as an employee of
PCA
of any of its parent, subsidairy, or affiliated companies at any time and agrees
never to file or submit an application for employment with any of
them.
14.
Entire Agreement.
This
Agreement contains the entire agreement between the Company and Employee and
supersedes all prior agreements relating to the subject matter hereof, and
may
be changed only by a writing signed by the parties hereto. Any and all prior
representations, statements and discussions regarding the subject matter of
this
Agreement have been merged into and/or replaced by the terms of this
Agreement.
15.
Ratification and Return of Consideration.
Any
attempt by Employee to challenge this Agreement or attempt to declare any
provision herein void or voidable, must be preceded by a return of any and
all
consideration received hereunder, including all payments made to Employee
pursuant to paragraph 2 herein. In particular, should Employee fail to return
any part of such consideration within forty-five days hereof, Employee shall
be
deemed to have accepted the full benefits of this Agreement and shall be bound
by all provisions herein. Provided, however, that nothing in this paragraph
shall be deemed to preclude Employee's ratification of this Agreement in any
other way allowed or permitted by law.
16.
Severability.
If any
of the provisions set forth in this Agreement be held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement
shall
be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
17.
Voluntary Agreement.
Employee hereby represents that Employee has carefully read and completely
understands the provisions of this Agreement and that Employee has entered
into
this Agreement voluntarily and without any coercion whatsoever, and in order
to
receive benefits not otherwise owed to Employee by the Company.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement, or caused
this Agreement to be duly executed by their authorized representatives as of
the
day and year first above written.
FOR
PCA
INTERNATIONAL, INC. FOR
EMPLOYEE
By:
/s/
Xxxxx Feld_______________ /s/
Don Norsworthy______(SEAL)
Position:
CEO
