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Exhibit 10.3
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (hereinafter the
"Agreement") is entered into by and between Xxxxxxx Xxxxxxxx ("Xxxxxxxx") and
The Bon-Ton Stores, Inc. ("Bon-Ton" or the "Company"), and shall be effective
following expiration of the revocation period set forth in paragraph 16 of the
Agreement.
WHEREAS, Wilansky and Bon-Ton are parties to an Employment Agreement
dated February 27, 1998, as amended (the "Employment Agreement");
WHEREAS, Wilansky retired from his employment with Bon-Ton on
June 27, 2000; and
WHEREAS, Wilansky and Bon-Ton mutually desire to amicably resolve
all disputes between them arising out of Wilansky's separation and his rights
under the Employment Agreement;
NOW, THEREFORE, in consideration of the mutual promises and
obligations contained herein, intending to be legally bound, it is hereby agreed
as follows:
1. The foregoing recitals are incorporated herein as if set forth at
length.
2. The Company will pay Wilansky a pro-rated performance bonus of
$170,000 for its fiscal year ending January 31, 2001 on or before March 31,
2001.
3. a. The Company will pay Wilansky his base salary at an annual
rate of $1,000,000 (paid in bi-weekly installments subject to normal deductions)
through January 31, 2003, the remaining term of the Employment Agreement,
subject to the mitigation requirement and offset described in paragraph 3b
herein. On the next business day following the effective date of this Agreement,
the Company will make a lump sum payment to Wilansky retroactive to June 28,
2000.
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x. Xxxxxxxx shall seek senior executive employment not in
violation of paragraph 15 of the Employment Agreement. The Bon-Ton's obligation
for base salary under paragraph 3a above shall be offset up to the maximum
payment due each year during this Agreement by two-thirds of the amount of any
compensation earned by Wilansky through employment or self employment, in excess
of (i) $230,000 from June 27, 2000 through January 31, 2001, (ii) $400,000 from
February 1, 2001 through January 31, 2002 and (iii) $400,000 from February 1,
2002 through January 31, 2003. Compensation shall include Wilansky's base
salary, any signing or performance bonus, variable compensation, deferred
compensation or any other type of compensation earned or payment made to
Wilansky by virtue of any employment or service performed by Wilansky through
January 31, 2003. Compensation shall not include that portion of any signing
bonus which is allocated to compensate Wilansky for relocating to accept new
employment (up to a maximum of $200,000) or non-cash employee benefits such as
health and life insurance, and reimbursement for dues or other expenses.
Wilansky will inform Bon-Ton of any offers of employment accepted by him within
ten (10) days of acceptance and will provide Bon-Ton upon request with copies of
any agreements or other documents evidencing his right to compensation from any
third party.
4. Through January 31, 2003, the Bon-Ton will pay the premiums in
connection with Wilansky's continued participation in the Bon-Ton's group health
plan pursuant to COBRA, subject to such plan's terms, conditions and
restrictions, and make available to Wilansky annually an additional $5000 to
cover supplemental health insurance expenses. Notwithstanding the foregoing, the
Bon-Ton's obligation to continue medical insurance and pay an insurance
supplement shall cease upon Wilansky's acceptance of other employment pursuant
to which group medical coverage is normally provided.
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5. On the effective date of this Agreement, Wilansky shall be vested
in his restricted stock grant awarded under paragraph 3(c) of the Employment
Agreement and stock options granted under paragraph 3(d) of the Employment
Agreement. Wilansky shall have ninety (90) days from June 27, 2000 to exercise
all vested options.
6. Wilansky shall be vested in his entire supplemental retirement
benefit (SERP) as set forth in paragraph 6 of the Employment Agreement. No later
than the first day of the month following the date Wilansky attains age 55, the
Company will purchase an annuity from an insurance company mutually acceptable
to both Wilansky and the Company for distribution to Wilansky to pay his SERP
benefit in the amount set forth in paragraph 6(a) of the Employment Agreement.
In the event of Wilansky's death prior to age 55, the Company will purchase and
distribute to his spouse an annuity in the amount set forth in paragraph 6(d) of
the Employment Agreement. The Company may at its sole option make a lump sum
payment to Wilansky or his spouse as provided by paragraph 6(e) of the
Employment Agreement.
7. Wilansky shall invest his Retirement Account maintained pursuant
to paragraph 6(h) of the Employment Agreement in a conservative fixed income
fund, until Wilansky attains age 55. The accumulated value of the account shall
offset the actuarial values used for determining the benefits to be provided by
the Company under paragraph 6 above. Wilansky shall continue to provide monthly
statements to the Company concerning the Retirement Account as required by
paragraph 6(h) of the Employment Agreement.
8. No later than August 31, 2000, Wilansky shall repay to the
Company the principal and all accrued but unpaid interest associated with all
tax loans made to Wilansky by the Company pursuant to paragraph 7(b) of the
Employment Agreement. The Company will
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issue to Wilansky the share certificates for the stock upon Wilansky's
satisfaction of these obligations.
9. Except as to any claim for breach of this Agreement, Wilansky, in
consideration of the promises contained herein, unconditionally and irrevocably
discharges, releases and remises the Bon-Ton and any and all past, present and
future subsidiary, parent or related companies and their past, present and
future officers, directors, shareholders, attorneys, supervisors, employees,
insurers and agents, in their individual as well as official capacities and the
respective successors and assigns of each of them (collectively "Releasees"),
jointly and severally, all and singularly, of and from any and all claims,
causes of action, suits, charges, debts, dues, sums of money, accounts,
reckonings, bonds, bills, covenants, contracts, torts, acts or omissions,
controversies, agreements, promises, damages, judgments, rights and demands
whatsoever, known or unknown, in law or equity, from the beginning of the world
to the date of the execution hereof, whether or not capable of proof as of the
date of the Agreement, including but not limited to: (a) all claims arising out
of Wilansky's employment with the Bon-Ton and the cessation of that employment;
(b) all common law claims, now existing or hereafter recognized, including but
not limited to libel, slander, defamation, interference with actual or
prospective contractual relations, infliction of emotional distress, promissory
estoppel, equitable estoppel, misrepresentation, fraud, breach of contract,
wrongful discharge, negligence, loss of consortium, assault, battery and breach
of covenant of good faith and fair dealing; (c) any claims for unpaid or
withheld wages, overtime compensation, severance pay, bonuses, stock,
commissions or other compensation or employee benefits of any kind, including
but not limited to violations of the Employee Retirement Income Security Act,
committed up to the date of the execution of this Agreement; (d) any and all
claims under the Employment Agreement; (e) any and all claims for
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attorney's fees, costs and expenses; and (f) any claims of discrimination based
on age, sex, disability, perceived disability, race, religion, color, creed,
citizenship, national origin or any other factor prohibited by federal, state or
local law (including but not limited to The Age Discrimination in Employment Act
and all claims under the Pennsylvania Human Relations Act), and any claims of
retaliation for raising, asserting or supporting such claims of discrimination,
which have arisen before the date of the execution of this Agreement. Plaintiff
specifically waives any claim for reinstatement or reemployment.
10. Wilansky remains bound by and shall comply with paragraphs 14
and 15(a)-(f) of the Employment Agreement and represents that as of the date
hereof, he has fully complied therewith. For purposes of paragraph 15(a)(ii) the
term "traditional retail department store" shall be defined as The May Company
(Xxxxxxxx and Xxxxx divisions), Xxxxx'x, Filene's and Boscov's. Wilansky further
agrees that until January 31, 2003 he will not directly or indirectly solicit
for employment or hire any person who was employed by Bon-Ton on the effective
date of this Agreement. The Bon-Ton's obligations under paragraphs 2-6 above
shall cease in the event that Wilansky breaches any of the restrictions set
forth in paragraphs 14 or 15(a)-(f) of the Employment Agreement, or this
Agreement but the remaining obligations under this Agreement shall remain in
full force and effect.
11. Wilansky represents that he has returned any and all documents
and computer information, including disks and information stored on any computer
drive, relating in any way to the business of the Bon-Ton and that he has
retained no copies. Wilansky further represents that he has returned all
tangible Bon-Ton property, including his leased automobile, all computers,
computer programs, telephones and credit cards he has received in connection
with
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his employment with the Bon-Ton. At his option, Wilansky may purchase the Dell
computer previously provided to him for the amount of $1,800.00.
12. Wilansky shall retain his Bon-Ton store discount until January
31, 2003.
13. The Company will transfer ownership of the Company's whole life
insurance policies with New York Life and Guardian applicable to Wilansky, to
the extent permitted by the terms and conditions thereof, upon the payment by
Wilansky to the Bon-Ton of the cash surrender value of the policies and the
amount of any premiums paid on the policies after July 14, 2000.
14. Wilansky agrees and represents that:
(a) He has read carefully the terms of this Agreement;
(b) He has been advised in writing to and has been given ample
opportunity to review this Agreement with the attorney of his
choice;
(c) He understands the meaning and effect of the terms of this
Agreement;
(d) The entry into and execution of this Agreement is his own
free and voluntary act, without compulsion, coercion, or duress of
any kind;
(e) His obligations, waivers and releases pursuant to this
Agreement are in exchange for valuable and adequate consideration to
which he is not otherwise entitled;
(f) He has had a reasonable period of time to consider the
Agreement and has had at least twenty-one days to review this
Agreement prior to signing it; and
(g) No promises or inducements have been made to him except as
expressly provided herein.
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15. Wilansky shall have seven (7) days following execution of this
Agreement within which he may revoke his acceptance of it, and the Agreement
shall not be effective or enforceable until the revocation period has expired.
Any revocation must be in writing, signed by Wilansky and delivered to Xxxxxx X.
Xxxxxxx of Xxxx, Block, Xxxxxx and Xxxxx-Xxxxx LLP on or before the day of
expiration.
16. This Agreement is intended by the parties hereto to create
legally binding obligations. This Agreement supersedes all prior verbal and
written communications between the parties on the subject matter addressed
herein, and all prior agreements between the parties, other than the provisions
of the Employment Agreement expressly referred to herein.
17. Any amendment or modification of this Agreement must be
expressed in a writing signed by each party or else shall not be effective. This
Agreement shall be binding upon the parties hereto and their heirs, successors
or assigns. Any action which either party might take to enforce its rights
and/or recover damages under this Agreement shall have no effect on any of the
other party's promises and obligations (including the General Release in
paragraph 9) set forth in this Agreement and these promises and obligations,
(including the General Release in paragraph 9) shall remain in full force and
effect.
18. Wilansky agrees that the Company may withhold any amounts which
are required by law to be withheld from any payment due to him. Each party shall
be responsible for payment of its own taxes due in connection with this
Agreement, and Wilansky has had the opportunity to obtain independent tax advice
regarding this Agreement.
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19. In the event that any provision in this Agreement is determined
to be legally invalid, the affected provision shall be stricken from the
Agreement, and the remaining terms of the Agreement and its enforceability shall
remain unaffected thereby.
20. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same agreement.
21. This Agreement shall be governed under Pennsylvania law.
IN WITNESS WHEREOF, the parties hereby execute this Agreement as set
forth below.
INTENDING TO BE LEGALLY BOUND:
/s/ Xxxxxxx Xxxxxxxx Date Aug. 18, 2000
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Xxxxxxx Xxxxxxxx
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Witness
/s/ M. Xxxxxx Xxxxxxxxxx Date Sept 6, 2000
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The Bon-Ton Stores, Inc.
/s/ Xxxxxxx X. Xxxxx
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Witness
