Exhibit 10.1
April 25, 2005
To: Xxxxx Xxxxxx
Re: Separation Agreement and Release and Waiver
Dear Xxxxx:
The purpose of this letter agreement, sometimes referred to as the
"Agreement," is to put into writing our mutual agreement related to the
termination of your employment with Xxxxxxx Fabrics, Inc., sometimes referred to
as the "Company". It also describes the separation pay and certain other
benefits, sometimes referred to as the "Separation Package", the Company will
provide you in consideration of your release of any and all legal claims you
might have against the Company arising out of or related to your employment and
termination of your employment with the Company.
This Agreement sets forth the pay and benefits which you will receive upon
this Agreement becoming effective. In return for the Release and Waiver executed
by you, the Separation Package the Company is offering you exceeds any benefits
the Company is required to provide terminated employees.
You are encouraged, of course, to consult with such persons as you may
choose before you sign this Agreement, including your financial, legal or other
advisors.
After you have signed this Agreement and it becomes effective as described
below, in consideration for your Release and Waiver, the Company will provide
you with the following Separation Package:
1. Upon the effective date of this Agreement, you will be placed on
paid separation leave that will extend through July 24, 2005, during which
time you will receive your regular pay, less withholding required by state
and federal laws (as is the current practice with your pay checks).
Furthermore, the period of paid separation leave will be extended beyond
July 24, 2005, until such time as you have secured other employment;
provided that in no event shall the total period of paid separation leave
under this subparagraph (1) (the "Separation Leave") extend past October
23, 2005. The Company will also maintain you on its medical insurance plans
during the Separation Leave at the present level of employee contribution
to the premium, but you will not be entitled to any other fringe benefits
except as expressly provided by this Agreement.
2. Any restricted stock subject to vesting will continue to vest
during the Separation Leave, and any stock options otherwise exercisable
will remain exercisable during the Separation Leave.
3. The Company's personnel records will reflect that you voluntarily
resigned your employment in good standing effective the last day of the
Separation Leave.
4. You will be allowed to keep your Company car during the Separation
Leave and after termination of your employment. The Company will arrange
for transfer of the title to your name upon termination of your employment.
In order to receive the Separation Package described in this Agreement,
you: (i) must return all Company property upon the Company's request except your
Company car; (ii) agree to abide by the disparagement agreement set forth later
in this letter; (iii) agree to the limited non-competition restrictions
contained in Attachment A to this Agreement, and (iv) agree not to seek
re-employment with the Company in the future.
By accepting this Agreement, you understand and agree that on behalf of
yourself, your heirs, assigns and other representatives, you hereby fully
release Xxxxxxx Fabrics, Inc. and its past, present and future owners, parents,
subsidiaries, affiliates, predecessors, successors, assigns, officers,
directors, stockholders, employees, former employees, and agents from any and
all claims and waive all rights, known or unknown, you may now have or claim to
have arising out of or related to your employment or the termination of your
employment with the Company arising before the date on which you sign this
Agreement, including but not limited to any and all claims, losses, liabilities,
demands, damages, causes of action, costs, expenses, fees including attorney's
fees, compensation, back or front pay, employee benefits and any other
obligation and liability, including but not limited to all claims and causes of
action arising under Title VII of the Civil Rights Act of 1964, as amended; the
Employee Retirement Income Security Act ("ERISA"); The Family and Medical Leave
Act of 1993 ("FMLA"); The Americans with Disabilities Act ("ADA"), The Age
Discrimination in Employment Act, as amended ("ADEA"); The Older Worker Benefit
Protection Act of 1990 ("OWBPA"); and, without limitation, any other federal,
state or local statute, ordinance or regulation, governing employment and
employment discrimination; as well as all claims and causes of action arising
under common law; state tort law; the law of wrongful or retaliatory discharge
(including but not limited to any claim of being a "whistleblower"), or express
or implied contract.
Because this Agreement includes a release and waiver as to claims under the
Age Discrimination in Employment Act ("ADEA"), your signature below acknowledges
that you confirm, understand, and agree to the terms and conditions of this
Agreement; that these terms are written in lay person terms, and that you have
been fully advised of your rights to seek the advice and assistance of
consultants, including an attorney, as well as tax advisors, to review this
Agreement. It also acknowledges that you do not waive any rights or claims under
the Age Discrimination in Employment Act that may arise after the date this
Agreement is signed by you, and specifically, under this Agreement, you are
receiving money and benefits beyond anything of value to which you are already
entitled.
You agree that you will make no disparaging remarks about the Company, its
services, its officers and directors, or any of its employees. If you violate
this disparagement agreement, you agree that the Company may terminate any
payments under this Agreement and that you will be obligated to return to the
Company the monies received under this Agreement as liquidated damages.
To ensure that you have adequate time and opportunity to review this
Agreement and consult with legal counsel and other advisors of your choosing,
you have up to 21 days to consider whether to accept and sign this Agreement.
Should you sign and date this Agreement before the expiration of this 21-day
period, your signature will evidence your voluntary election to forego waiting
the full 21 days to sign this Agreement. If you choose not to accept, or the
21-day period expires without your acceptance, then the offer is null and void.
The offer embodied in this letter can in no way be construed as an admission of
wrongdoing by the Company or any other released party.
Your signature also acknowledges that, in compliance with the OWBPA, you
have been fully advised by the Company of your right to revoke and nullify this
Agreement, and that your revocation must be exercised, if at all, within seven
(7) days of the date you sign this Agreement. You may revoke your acceptance at
any time within the seven (7) days following your signing of this Agreement by
notifying me in writing of your decision to revoke your acceptance. Acceptance
of this offer is strictly voluntary.
This letter serves as the only Agreement with respect to the terms of your
separation from the Company and may be modified only in writing expressly
referencing this Agreement signed by you and an authorized Company official.
By signing and accepting this Agreement, you acknowledge that the Company
has already paid you all salary, vacation pay, or other compensation due you
through the date of termination; that the Separation Package offered you exceeds
the pay and benefits otherwise available to you upon the termination of your
employment; and, that there are no other promises or undertakings related to
your employment and the termination of your employment with the Company between
the Company and you except as set out in this Agreement. Consequently, if
accepted by you, the Separation Package provided by this Agreement shall be in
lieu of any other compensation or Company paid benefits.
YOU ALSO AFFIRM THAT YOU HAVE SIGNED THIS AGREEMENT VOLUNTARILY OF YOUR OWN
FREE WILL AND THAT YOU HAVE BEEN GIVEN FULL OPPORTUNITY TO DISCUSS THIS MATTER
PRIVATELY AND THOROUGHLY WITH AN ATTORNEY OF YOUR CHOICE AND THAT YOU FULLY
UNDERSTAND THE MEANING AND INTENT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED
TO ITS FINAL AND BINDING EFFECT.
If accepted and signed by you, this Agreement shall become effective and
enforceable only after the seven (7) day revocation period has expired; provided
that, the paid Separation Leave will be deemed to have commenced on April 26,
2005. Should you decline to accept this Agreement, or if it is revoked by you,
you will not receive the proposed Separation Package.
If you agree to these terms, please sign the Acceptance which appears below
on the enclosed copy of this letter and return a signed copy of the letter and
Acceptance to me.
Sincerely yours,
/s/ Xxxx X. Xxxxxx
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for Xxxxxxx Fabrics, Inc.
Date: April 25, 2005
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ACCEPTANCE
(Must be executed and returned no later than 21 days after initial receipt)
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By signing this Agreement, I represent that I have read this Agreement; I
understand and knowingly agree to its terms; I was in no way coerced to sign
this Agreement; and I understand that I have executed a release of all claims
arising before my execution of this acceptance.
/s/ Xxxxx Xxxxxx April 29, 2005
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Xxxxx Xxxxxx Date
