EXHIBIT 10.1
AGREEMENT AND GENERAL RELEASE
Agreement and General Release ("Agreement"), dated February 21, 2003,
by and between Xxxxxxx X. Xxxxxx, a resident of Florida ("Executive", "she",
"her" or "herself") and U.S. Industries, Inc., headquartered in West Palm Beach,
Florida (the "Company").
1. Executive and Company acknowledge that Executive's employment with
the Company will terminate effective March 31, 2003 (the "Termination Date"),
and in accordance with her Restated Employment Agreement dated June 17, 1998, as
amended September 1, 1999 (the "Employment Agreement"), Executive will be
provided with the following entitlements pursuant to Section 8(c) thereof,
subject to withholdings and deductions (all capitalized terms shall be defined
as in the Employment Agreement unless otherwise noted in this Agreement):
(A) (i) In a lump sum within five (5) days after
the Effective Date, as defined in the
Release annexed hereto as Exhibit B, an
amount equal to $520,000; and
(ii) Effective April 1, 2004 and continuing
through March 31, 2005, an amount equal to
$520,000 payable ratably over such period in
accordance with the Company's normal payroll
practices, but not as an employee; and
(iii) Promptly, upon presentation of documentation
any unreimbursed business expenses in
accordance with Section 6 of the Employment
Agreement; and
(iv) Promptly after the Termination Date,
vacation pay amounting to four weeks' pay
based on Executive's Base Salary;
(v) Executive's accrued benefits under the USI
Supplemental Retirement Plan, as increased
hereunder to the extent applicable, on a
fully vested basis and in accordance with
the terms of the Plan.
(B) (i) immediate full accelerated vesting on the
Termination Date of 17,560 shares of
restricted stock (representing 4,762 shares
of the November 13, 1998 grant and 12,798
shares of the September 1, 1999 grant); and
(ii) all options vested as of the Termination
Date, in accordance with the terms of the
applicable equity plans (subject to Section
4(B) below).
(C) Executive's vested benefits under the USI Master
Pension Plan and the USI Retirement Savings and
Investment Plan in accordance with the terms of the
respective Plans;
(D) two years of additional service and compensation
credit (equivalent to Base Salary) under the USI
Supplemental Retirement Plan; and
(E) on December 15, 2004 and December 15, 2005,
respectively, payment of the maximum amount of
Company contribution the Company would have
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made to Executive's account had she participated in
the USI Retirement Savings & Investment Plan for such
calendar years; and
(F) two years of continued coverage under the USI Welfare
Plan (excluding life insurance and long term
disability coverage), at the Company's cost (without
any obligation of payment by Executive) for Executive
and her eligible dependents, as defined under the
Plan;
If there is a Change-in-Control of the Company, as defined in
the Employment Agreement, prior to the amounts payable under (A) and (E) above
are made, such remaining amounts shall be paid in a lump sum within five (5)
days after such Change-in-Control. Upon a Change-in-Control of the Company (as
defined in the applicable plan), all rights and entitlements under the Company's
equity and employee benefit plans shall be determined in accordance with the
Change-in-Control provisions of the applicable plans.
2. All provisions of the Employment Agreement that are intended
to survive the Executive's termination of employment shall continue to survive,
including but not limited to Sections 10, 11, 12, 13 and 14.
3. In exchange for the Executive's waiver of certain claims
against the Company to be executed simultaneous with execution of this Agreement
(the "Waiver", attached as Exhibit A), the Company hereby agrees to pay the
Executive a payment equal to $1.2 million on February 21, 2003. The Executive
agrees to continue to be bound by the Employment Agreement and all other
policies, plans and programs of the Company through the Termination Date.
4. Upon the Executive's execution and delivery on or after the
Termination Date of a full release (the "Release", attached as Exhibit B), and
her not revoking such Release within the time period specified therein, the
Company agrees to provide the Executive with the following additional
entitlements:
(A) Effective on the Termination Date, accelerated
vesting in 18,106 shares of formerly restricted stock
(representing 5,904 shares of the November 13, 1998
grant and 12,202 shares of the September 1, 1999
grant); and
(B) Full vesting in the options granted February 11,
2000, June 10, 2002 and December 4, 2002, as of the
Termination Date; and
(C) Five (5) years of additional service and compensation
credit equivalent to Base Salary under the USI
Supplemental Retirement Plan (in addition to that
under Section 1(D) above); and
(D) On or prior to December 15, 2003, a termination
payment equal to $110,911 multiplied by a factor (up
to 150%) equal to the level of achievement approved
by the Compensation Committee for executive officers
for fiscal year 2003, generally, pursuant to the
Company's annual incentive performance plan; and
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(E) Extension of the option exercise period through the
third annual anniversary of the Termination Date (but
subject to all of the other provisions of the grants
and plans relating to exercise period other than that
related to termination of employment) for all vested
options remaining outstanding following the
Termination Date which were previously granted under
the Company's stock option programs and which are not
forfeited pursuant to Section 5(B) hereof; and
(F) Following the period referenced in 1(F) above,
continued medical/health/vision/dental coverage under
the USI Welfare Plan as it exists from time-to-time
(i.e., COBRA defined coverages excluding life
insurance and long term disability coverage), as a
retired employee, during her lifetime (including any
eligible dependents as defined in such plan), without
charge to her prior to her 60th birthday, provided
however, if such retiree benefits, or related terms,
are modified or terminated for retired participants
in the USI Welfare Plan (or its successor or
replacement plan), such modification or termination
shall also apply to Executive; and
(G) Following the Termination Date, the Company will use
its full best efforts to assure that Executive's
benefits provided under the USI Supplemental
Retirement Plan, or successor plan, will be handled
in the same manner as for the other executive
officers' benefits which accrued under such plan; and
(H) Executive's Long Term Incentive Plan ("LTIP") account
balance, amounting to $129,116.87 as of the
Termination Date, paid to Executive promptly after
the Effective Date; and
(I) A payment of $100,000 paid to Executive promptly
after the Effective Date, in favor of the assistance
and services referenced in 5(C) below.
5. Further, the parties agree as follows:
(A) Section 9 of the Employment Agreement shall be of no
further force or effect after the Termination Date;
and
(B) All options granted to Executive on December 2, 1996,
November 13, 1998, September 1, 1999 and May 3, 2000
shall be forfeited on the day after the Termination
Date; and
(C) The Executive agrees to be reasonably available to
assist the Company at the Company's request, for up
to fifty days during the twenty-four month period
following the Termination Date (as such times as
mutually agreed in good faith between the parties).
Performance of services for more than four (4) hours
in a day shall count as a full day. Performance of
services for less than four (4) hours in a day shall
be aggregated and treated as one (1) day for each
eight (8) hours. The Company will reimburse Executive
for all pre-approved traveling expenses and all other
reasonable out-of-
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pocket expenses incurred by Executive in order for
her to fulfill this obligation; but shall otherwise
not pay the Executive for such services; and
(D) The Executive agrees that she shall not disparage or
encourage or induce others to disparage the Company
Entities. For purposes of this Section, the term
"disparage" includes, without limitation, comments or
statements to the press, or the Company's employees
or any individual or entity with whom the Company
Entities has a business relationship which would
adversely affect in any manner: (i) the conduct of
the business of any Company Entity (including,
without limitation, any business plans or prospects)
or (ii) the business reputation of any Company
Entity. Further, neither the Company formally, nor
its directors or named executive officers, shall
disparage the Executive by any public statement or
encourage or induce others to publicly disparage the
Executive.
(E) The Executive agrees that she will cooperate with the
Company and/or the Company Entities and its or their
respective counsel in connection with any
investigation, administrative proceeding or
litigation relating to any matter that occurred
during her employment in which she was involved or of
which she has knowledge as a result of her employment
with the Company. The obligations of this Section
5(E) shall not count against the fifty days under (C)
above. The Company shall reimburse the Executive for
any reasonable pre-approved out-of-pocket travel,
delivery or similar expenses incurred in providing
such service to the Company.
Further, the Executive agrees that, in the event she
is subpoenaed by any person or entity (including, but
not limited to, any government agency) to give
testimony (in a deposition, court proceeding or
otherwise) which in any way relates to her employment
by the Company and/or the Company Entities, she will
give prompt notice of such request to the General
Counsel of the Company at the offices of the Company
and will make no disclosure until the Company and/or
the Company Entities have had a reasonable
opportunity to contest the right of the requesting
person or entity to such disclosure, unless required
otherwise by law.
(F) The Executive represents that on or prior to the
Termination Date she will return to the Company all
property belonging to the Company and/or the Company
Entities, other than the laptop and pocket PC which
she will use in the course of her consulting
assignments pursuant to Section 5(C), including but
not limited to leased vehicle, keys, card access to
the building and office floors, any applicable
Employee Handbook, phone cards, credit cards, rolodex
(if provided by the Company and/or the Company
Entities), computer user name and password, disks
and/or voicemail code. The Executive further
acknowledges and agrees that the Company shall have
no obligation to make the payment(s) and provide the
benefits referred to in Section 3 above unless and
until she has satisfied all her obligations pursuant
to this paragraph. Executive may retain copies of her
address book and similar references.
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(G) The terms and conditions of this Agreement are and
shall be deemed to be confidential until such time
that this Agreement is filed with the Securities and
Exchange Commission by the Company in its normal
course of business, and until such time shall not be
disclosed by Executive to any person or entity
without the prior written consent of the Company,
except if required by law, and to her accountants,
attorneys and/or domestic partner, provided that, to
the maximum extent permitted by applicable law, rule,
code or regulation, they agree to maintain the
confidentiality of the Release. The Executive further
represents that she has not disclosed the terms and
conditions of the Release to anyone other than her
attorneys, accountants and/or domestic partner.
(H) This Agreement is not intended, and shall not be
construed, as an admission that any of the Company
Entities has violated any federal, state or local law
(statutory or decisional), ordinance or regulation,
breached any contract or committed any wrong
whatsoever against the Executive.
(I) Executive acknowledges that as an officer of the
Company she has a continuing fiduciary obligation to
maintain the confidentiality of the Company's trade
secrets and confidential information.
6. The Executive acknowledges that she understands that in the
event of a willful or material breach of this Agreement by her, including the
Waiver and Release attached and made part of this Agreement, she shall not be
entitled to the benefits and payments referenced in Sections 3 and 4 above, and
that she shall return to the Company, on demand, all such previously provided
benefits and payments.
7. Should any provision of this Agreement require interpretation
or construction, it is agreed by the parties that the entity interpreting or
constructing this Agreement shall not apply a presumption against one party by
reason of the rule of construction that a document is to be construed more
strictly against the party who prepared the document.
8. This Agreement is binding upon, and shall inure to the benefit
of, the parties and their respective heirs, executors, administrators,
successors and assigns.
9. This Agreement shall be construed and enforced in accordance
with the laws of the State of Florida without regard to the principles of
conflicts of law.
For: U.S. Industries, Inc.
By: /s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxx
----------------------------- -----------------------------
Xxxxxx X. Xxxxx Xxxxxxx X. Xxxxxx (Executive)
Senior Vice President, General
Counsel and Secretary
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WAIVER -- EXHIBIT A
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Reference is made to the Agreement and General Release (the
"Agreement") by and between Xxxxxxx X. Xxxxxx ("Executive") dated February 21,
2003 and U.S. Industries, Inc. (the "Company"). All references herein shall have
the same meaning as in the Agreement.
In exchange for the payment in accordance with Section 3 of the
Agreement, the Executive, for herself, and for her heirs, executors,
administrators, trustees, legal representatives and assigns (hereinafter
referred to collectively as "Releasors") hereby waives any claims against the
Company and its past, present and future parent entities, subsidiaries,
divisions, affiliates and related business entities, successors and assigns,
assets, employee benefit plans or funds, and any of its or their respective
past, present and/or future directors, officers, fiduciaries, agents, trustees,
administrators, employees and assigns, whether acting on behalf of the Company
or in their individual capacities (collectively the "Company Entities") from any
and all claims, demands, causes of action, fees and liabilities of any kind
whatsoever, whether known or unknown, which she ever had, now have, or may have
against any of the Company Entities by reason of any act, omission, transaction,
practice, plan, policy, procedure, conduct, occurrence, or other matter up to
and including the date on which she signs this Waiver.
Without limiting the generality of the foregoing, this Waiver is
intended to and shall release the Company Entities from any and all claims,
whether known or unknown, which Releasors ever had, now have, or may have
against the Companies Entities arising out of her employment and/or her
separation from that employment, including, but not limited to: (i) any claim
under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities
Act, the Employee Retirement Income Security Act of 1974 (excluding claims for
vested benefits under any qualified employee benefit or pension plan of the
Company Entities subject to the terms and conditions of such plan and applicable
law), and the Family and Medical Leave Act; (ii) any claim under the New Jersey
Civil Rights Act, the New Jersey Law Against Discrimination and the New Jersey
Conscientious Employee Protection Act (iii) any claim under the Florida Civil
Rights Act, the Florida Equal Pay Law or the Florida AIDS Act; (iv) any other
claim (whether based on federal, state, or local law, statutory or decisional)
relating to or arising out of your employment, the terms and conditions of such
employment, the termination of such employment, and/or any of the events
relating directly or indirectly to or surrounding the termination of that
employment, including but not limited to breach of contract (express or
implied), wrongful discharge, detrimental reliance, defamation, emotional
distress or compensatory or punitive damages; and (v) any claim for attorneys'
fees, costs, disbursements and/or the like, other than pursuant to Section 13 of
the Employment Agreement. This Waiver shall not apply to claim under the Age
Discrimination in Employment Act. Nothing in this Waiver shall be a waiver of
claims that may arise after the date on which this Waiver is executed or rights
of indemnification (including to directors and officer liability insurance) to
which the Executive was entitled immediately prior to the date on which this
Waiver was executed under the Company's Certificate of Incorporation, By-laws,
Employment Agreement or otherwise with regard to her service with the Company or
her rights under the Agreement.
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Further, the Executive hereby acknowledges that it is her intent to
execute the Release attached to the Agreement as Exhibit B. The Executive hereby
confirms that she knows of no reason as of the date of the execution of this
Waiver that would prevent her from executing such Release in a timely fashion.
The Executive acknowledges and confirms that should the Release not be
timely executed, or if the Release is rescinded during the prescribed period,
that the Agreement shall be modified such that Executive shall not be entitled
to the amounts and benefits due under Section 4 thereof, and shall forfeit the
amounts due under Sections A(i) and (ii) thereof, but the Agreement and Waiver
shall otherwise remain fully in force and effect.
AGREED:
/s/ Xxxxxxx X. Xxxxxx Date: February 21, 2003
-----------------------------
Xxxxxxx X. Xxxxxx (Executive)
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RELEASE -- EXHIBIT B
Reference is made to the Agreement and General Release dated February
21, 2003 (the "Agreement"), including Exhibit A (the "Waiver") by and between
Xxxxxxx X. Xxxxxx ("Executive") and U.S. Industries, Inc. (the "Company"). All
references herein shall have the same meaning as in the Agreement.
In accordance with the Agreement and in exchange for the entitlements
in the Agreement, the Executive hereby agrees as follows:
(A) After the Termination Date, the Executive shall not represent
herself as being an employee, officer, agent or representative of the
Company for any purpose, other than pursuant to the consulting
arrangement referenced in Section 4(C) of the Agreement. The Executive
also hereby acknowledges and agrees that the Company and its
subsidiaries shall have no obligation to rehire her, or to consider her
for employment, after the Termination Date. The Executive further
warrants and represents that she will not seek employment with the
Company or its subsidiaries at any time in the future.
(B) The Executive acknowledges and agrees that the payment(s) and other
benefits provided pursuant to Sections 3 and 4 of the Agreement: (i)
are in full discharge of any and all liabilities and obligations of the
Company to her, monetarily or with respect to employee benefits or
otherwise, including but not limited to any and all obligations arising
under the Employment Agreement, any alleged written or oral employment
arrangement or agreement, policy, plan or procedure of the Company
and/or any alleged understanding or arrangement between her and the
Company; and (ii) exceed(s) any payment, benefit, or other thing of
value to which she might otherwise be entitled under any policy, plan,
arrangement or procedure of the Company.
(C) In consideration for the payment and benefits to be provided to
Executive pursuant to Sections 3 and 4 of the Agreement, the Executive,
for herself and her heirs, executors, administrators, trustees, legal
representatives and assigns (hereinafter referred to collectively as
"Releasors"), forever release and discharge the Company and its past,
present and future parent entities, subsidiaries, divisions, affiliates
and related business entities, successors and assigns, assets, employee
benefit plans or funds, and any of its or their respective past,
present and/or future directors, officers, fiduciaries, agents,
trustees, administrators, employees and assigns, whether acting on
behalf of the Company or in their individual capacities (collectively
the "Company Entities") from any and all claims, demands, causes of
action, fees and liabilities of any kind whatsoever, whether known or
unknown, which she ever had, now have, or may have against any of the
Company Entities by reason of any act, omission, transaction, practice,
plan, policy, procedure, conduct, occurrence, or other matter up to and
including the date on which she signs this Release.
Without limiting the generality of the foregoing, this Release is
intended to and shall release the Company Entities from any and all
claims, whether known or unknown, which Releasors ever had, now have,
or may have against the Companies Entities arising out of her
employment and/or her separation from that employment, including, but
not limited to: (i) any claim under Title VII of the Civil Rights Act
of 1964, the Americans with Disabilities Act, the Employee Retirement
Income Security Act of 1974 (excluding
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claims for vested benefits under any qualified employee benefit or
pension plan of the Company Entities subject to the terms and
conditions of such plan and applicable law), and the Family and Medical
Leave Act; (ii) any claim under the New Jersey Civil Rights Act, the
New Jersey Law Against Discrimination and the New Jersey Conscientious
Employee Protection Act (iii) any claim under the Florida Civil Rights
Act, the Florida Equal Pay Law or the Florida AIDS Act; (iv) any other
claim (whether based on federal, state, or local law, statutory or
decisional) relating to or arising out of your employment, the terms
and conditions of such employment, the termination of such employment,
and/or any of the events relating directly or indirectly to or
surrounding the termination of that employment, including but not
limited to breach of contract (express or implied), wrongful discharge,
detrimental reliance, defamation, emotional distress or compensatory or
punitive damages; and (v) any claim for attorneys' fees, costs,
disbursements and/or the like, other than pursuant to Section 13 of the
Employment Agreement. Nothing in this Release shall be a waiver of
claims that may arise after the date on which this Release is executed
or rights of indemnification (including to directors and officer
liability insurance) to which the Executive was entitled immediately
prior to the date on which this Release was executed under the
Company's Certificate of Incorporation, By-laws, Employment Agreement
or otherwise with regard to her service with the Company or her rights
under the Agreement.
(D) The Executive represents and warrants that she has not commenced,
maintained, prosecuted or participated in any action, suit, charge, grievance,
complaint or proceeding of any kind against Company Entities in any court or
before any administrative or investigative body or agency and/or that she is
hereby withdrawing with prejudice any such complaints, charges, or actions that
she may have filed against Company Entities. Executive further acknowledges and
agrees that by virtue of the foregoing, she has waived all relief available to
her (including without limitation, monetary damages, equitable relief and
reinstatement) under any of the claims and/or causes of action waived in
paragraph (C) above.
(E) Executive acknowledges that she: (a) has carefully read this
Release in its entirety; (b) has had an opportunity to consider the terms of
this Release for at least twenty-one (21) days; (c) is hereby advised by the
Company in writing to consult with an attorney of her choice in connection with
this Release; (d) fully understands the significance of all of the terms and
conditions of this Release and has discussed them with her independent legal
counsel, or has had a reasonable opportunity to do so; (e) has had answered to
her satisfaction by her independent legal counsel any questions she has asked
with regard to the meaning and significance of any of the provisions of this
Release; and (f) is signing this Release voluntarily and of her own free will
and agrees to abide by all the terms and conditions contained herein.
(F) The Executive understands that she will have at least twenty-one
(21) days from the date of receipt of this Release to consider the terms and
conditions of this Release and that she may accept this Release by signing it
and returning it to Xxxxxx X. Xxxxx, Senior Vice President and General Counsel
at U. S. Industries, Inc., 000 X. Xxxxxxx Xxxxx (Xxxxx 0000), Xxxx Xxxx Xxxxx,
XX 00000-0000 on or after March 31, 2003, but not after April 10, 2002, the date
this Agreement, if not executed, becomes null and void. After executing this
Release, the Executive shall have seven (7) days (the "Revocation Period") to
revoke the Release by indicating her desire to do so in writing delivered to
Xxxxxx X. Xxxxx at the address above, or by fax to 000-000-0000, by no later
than 5:00 p.m. on the seventh (7th) day after the date of execution. The
effective date of the Release shall be the eighth (8th) day after the date the
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Executive signs the Release (the "Effective Date"). If the last day of the
Revocation Period falls on a Saturday, Sunday or holiday, the last day of the
Revocation Period will be deemed to be the next business day, and the Effective
Date shall be the business day following the last day of the Revocation Period.
In the event the Executive does not accept the Release as set forth above, or in
the event she revoked this Release during the Revocation Period, the provisions
of the last paragraph of the Waiver shall apply.
AGREED:
/s/ Xxxxxxx X. Xxxxxx April 1, 2003
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Xxxxxxx X. Xxxxxx ("Executive") Date
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