Exhibit 10.38
SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS
(INCLUDES ADEA)
This Settlement Agreement and Release of All Claims (the
"Agreement") is made and entered into as of the 31st day of October, 2003,
by and between Xxxxxxxx Corporation ("Xxxxxxxx") and Xxxxx X. Xxxx (herein
referred to as "Employee"), collectively referred to as "the parties."
W I T N E S S E T H:
WHEREAS, without any admission of fault, liability or wrongdoing
by the parties, Xxxxxxxx and Employee desire to forever resolve and
compromise all claims which could be asserted by or on behalf of Employee
in connection with his employment by Xxxxxxxx or the termination thereof
upon the terms set forth below;
NOW THEREFORE, in consideration of the premises, and the promises,
covenants and agreements contained herein, the parties agree as follows:
1. For purposes of this Agreement, "Xxxxxxxx" shall mean
Xxxxxxxx Corporation and any of its past or present parent or subsidiary
corporations, affiliates, predecessors, successors, assigns, insureds,
underwriters, and/or its agents, officers, directors, partners,
shareholders, employees and attorneys. For purposes of this Agreement,
"Employee" shall mean Xxxxx X. Xxxx, his heirs, beneficiaries, executors,
administrators, successors and assigns.
2. The parties acknowledge and agree that, notwithstanding
anything to the contrary contained herein, Employee's employment with Xxxxxxxx
terminated effective October 31, 2003.
3. Xxxxxxxx will pay Employee any and all regular base salary
that has been earned, accrued and is due him through October 31, 2003, as
well as all earned and accrued but unused vacation pay determined as of that
date.
4. During the twelve (12) month period beginning November 1,
2003, and ending October 31, 2004, Xxxxxxxx will pay Employee semi-monthly
the amount of $8,208.33, less applicable taxes, withholdings and standard
deductions.
5. Employee is entitled to continue his health and dental
insurance in accordance with the Consolidated Omnibus Budget Reconciliation
Act ("COBRA"). For purposes of COBRA, Employee's employment termination date
shall be October 31, 2003.
6. Employee is informed and understands that his participation
in the Xxxxxxxx Accident, Death & Dismemberment Plan, the Xxxxxxxx Life
Insurance Plan and the Xxxxxxxx Xxxx Term Disability Plan terminates as of
October 31, 2003.
7. Subject to the respective terms and conditions of the
benefit plans and programs in which Employee participated during his
employment by Xxxxxxxx, Employee is entitled to such payments and/or
benefits which would have accrued and/or vested thereunder as of October 31,
2003, and which are not forfeited. Employee will be provided with
information about those payments and/or benefits and they will be paid or
become available to Employee in accordance with the respective terms and
conditions of each such plan or program.
8. Employee, on his own behalf and on behalf of his heirs,
beneficiaries, executors, administrators, and assigns, hereby releases and
forever discharges Xxxxxxxx, its past or present parents, subsidiaries,
affiliates, predecessors, successors, assigns, insured underwriters and/or
their agents, officers, directors, partners, shareholders, employees and
attorneys from any and all claims, demands, actions or other causes of
action, in whatever form, whether legal or equitable, known or unknown,
foreseen or unforeseen, and which arise from or relate in any way to any
aspect of Employee's employment with Xxxxxxxx, including his termination
from employment, or any employment custom, practice, policy, conduct, or
decision of Xxxxxxxx relating to any term or condition of Employee's
employment, including but not limited to:
(1) any claims or rights that could be asserted under
(a) the Age Discrimination in Employment Act,
as amended, 29 U.S.C. Section 621 et seq.;
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(b) any Missouri or other applicable state law
prohibiting or otherwise relating
to employment discrimination, including,
but not limited to any statutory or
common law giving rise to a cause of
action for retaliation for filing a
worker's compensation claim or otherwise
engaging in protected conduct;
(c) the common law of the State of Missouri;
(d) Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. Sections 2000e
et seq.;
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(e) the Civil Rights Act of 1871, 42 U.S.C.
Section 1981;
(f) the Civil Rights Act of 1991;
(g) the Consolidated Omnibus Budget
Reconciliation Act of 1986 (COBRA);
(h) the Employee Retirement Income Security
Act of 1974, as amended, 29 U.S.C.
Sections 1001 et seq.;
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(i) the Americans with Disabilities Act, 42
U.S.C. Section 12101;
(j) the Vietnam Era Veteran's Readjustment
Assistance Act, 38 U.S.C. Section 4212;
(k) any other federal, state or local law,
constitution, regulation, statute,
order, ordinance, decision or common law
claim concerning
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employment, wages, discrimination in
employment or termination of employment,
including unfair labor practices;
(2) any and all claims for compensation, back pay,
front pay, additional pension credits, vacation
or sick pay, or fringe benefits;
(3) any and all claims for personal injury, emotional
distress, libel, slander, defamation, and other
physical, economic or emotional injury; and
(4) any and all claims for punitive damages,
penalties, costs and attorneys' fees, including,
without limitation, any claim for attorneys' fees
which may arise or accrue by reason of this
Agreement.
9. Employee covenants and warrants to the fullest extent
permitted by law that he will not xxx or cause any action, charge,
complaint, or proceeding of any sort to be brought or join in or permit any
action or charge, complaint, proceeding, or lawsuit by any third party
against Xxxxxxxx based in whole or in part upon claims arising from or
relating to Employee's employment and which are being released in this
Agreement. Employee further agrees that in the event any person or entity
should bring such a charge, claim, complaint or action on Employee's behalf,
he hereby waives and forfeits any right to recover under said claim and will
exercise every good faith effort to have such claim dismissed.
10. Because this agreement contains a release of claims under
the Age Discrimination in Employment Act ("ADEA"), Employee shall have
twenty-one (21) days from the day he receives it to consider it. Employee
may accept the offer contained in this agreement at any time within that
twenty-one (21) day period by signing it and delivering it to Xxxxxxxx. If
Employee does not accept this offer prior to the end of the twenty-one (21)
day period, it shall be automatically revoked. If Employee does accept the
offer, he shall have seven (7) days after delivery of the signed agreement
to Xxxxxxxx to revoke his acceptance. The payment provided in paragraph 4
shall be made only after the seven (7) day revocation period expires. In
order to revoke his acceptance, the revocation must be in writing and
delivered to Xxxxxxxx by 4:00 p.m. of the seventh (7th) day after Employee
delivered the acceptance to Xxxxxxxx. Employee's signature on the agreement
will acknowledge that he has consulted an attorney before signing it. All
acceptances, revocations and other notices, documents and things to be
delivered to Xxxxxxxx under this Agreement shall be delivered to: Xxxxxxxx
Corporation, 000 Xxxxx Xxxxx Xxxx Xx., Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxx,
00000, Attn: General Counsel.
11. Employee covenants and warrants that he is the sole owner of
the claims hereby being released and that he has not assigned, in whole or
in part, any of such claims to any other person or entity.
12. This Agreement is binding upon and inures to the benefit of
Employee, his heirs, successors and assigns, and Xxxxxxxx, and its
successors and assigns.
13. This settlement and all payments, as well as all terms and
provisions of this Agreement, are made for the purpose of settlement and
compromise only and are made without any
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admission by Xxxxxxxx as to fault, liability or wrongdoing of Xxxxxxxx, its
employees, agents, officers or directors, all of which are expressly denied.
14. Employee shall keep, and cause his attorneys and agents
to keep, the terms of this Agreement and the circumstances surrounding its
negotiation and execution strictly confidential, and shall not directly or
indirectly disclose or divulge any of the same to anyone (including, but not
limited to, by way of oral or written communication) except (a) that
Employee may discuss such circumstances, this Agreement and its contents
with his attorney or accountant on a confidential basis to the extent
necessary to prepare his tax returns and interpret the Agreement; (b) to the
extent that Employee is compelled by a court or governmental authority with
jurisdiction and the power to compel testimony, to the extent the same is
directly and specifically requested, provided, however, that Employee will
immediately advise Xxxxxxxx of any attempt (including all details) to serve
him with process or otherwise compel him to testify in such manner as will
provide Xxxxxxxx the maximum time and opportunity to contest the same, or
pursuant to a protective order agreeable to Employee and Xxxxxxxx; or (c) in
a suit to enforce or for breach of this Agreement, provided the Agreement is
kept under seal by the Court pursuant to a protective order.
15. Employee agrees to cooperate with Xxxxxxxx and its
representatives in connection with the investigation, litigation, or other
handling of any matter that may have occurred during the period of his
employment. Xxxxxxxx will reimburse Employee for all reasonable expenses he
may incur under this paragraph.
16. Employee will not, for a period of one (1) year following his
acceptance of this Agreement, either for himself or on behalf of any person,
firm or corporation (whether for profit or otherwise) engage in any form of
competition with Xxxxxxxx, directly or indirectly, through any commercial
venture, as a partner, officer, director, stockholder, advisor, employee,
consultant, agent, salesman, venturer or otherwise, in the business
conducted by Angelica's Life Uniform Stores business segment in the United
States. This requirement, however, will not limit Employee's right to invest
in the capital stock or other equity securities of any corporation, the
stock or securities of which are publicly owned or are regularly traded on
any public securities exchange. Furthermore, Employee will not, during the
said one (1) year period, directly or indirectly or by aid to others, do
anything which could be expected to divert from Xxxxxxxx any trade or
business with any customer of Angelica's Life Uniform Stores business
segment.
17. Employee will not use or disclose any confidential, financial,
or personnel information of or concerning Xxxxxxxx or its employees,
customers or suppliers, of which Employee became aware by reason of his
employment. Employee shall return to Xxxxxxxx all writings, records
(including computer records), papers, customer lists, business plans,
papers, keys, key cards, computers and other equipment and all other
property produced or developed by or at the request of Employee, or coming
into his possession, by way or reason of his employment by Xxxxxxxx.
18. Employee will not, for a period of one (1) year following his
acceptance of this Agreement, solicit or encourage any employee of Xxxxxxxx
to terminate his or her employment with Xxxxxxxx.
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19. Employee will not make any statement or publish any
communication which does or which could be expected to defame, disparage or
reflect adversely upon Xxxxxxxx or any of its employees, officers,
directors, customers or suppliers.
20. Employee acknowledges and agrees that in the event he
violates any of the terms or conditions of this Agreement, Xxxxxxxx shall
have no further obligation to pay to Employee any of the payments otherwise
to be made to Employee hereunder.
21. This Agreement shall be governed by, construed and
interpreted according to the internal laws of the State of Missouri without
reference to conflicts of law principles.
22. This Agreement constitutes the entire agreement between the
parties concerning the subject matter hereof and supersedes all prior oral
or written communications or agreements between the parties concerning such
subject matter; provided, however, that any obligations, restrictions,
prohibitions or other provisions contained in any benefit plan or program in
which Employee was a participant at the time his employment by Xxxxxxxx was
terminated, which, by their terms, survive the termination of Employee's
employment, shall survive the termination of Employee's employment and
remain in effect in accordance with the terms of such plan or program.
Neither this Agreement nor any of its terms may be changed, waived or added
to except in a writing signed by both parties.
23. The parties agree that should any provision in this Agreement
be determined to be unenforceable, such finding shall not affect the
enforceability of the remaining provisions of this Agreement. The waiver by
Xxxxxxxx of a breach of this Agreement by Employee shall not operate or be
construed as a waiver of any subsequent breach by Xxxxxxxx of like or
similar kind.
24. Employee acknowledges that he has been given a reasonable
period of time within which to consider the terms of this Settlement
Agreement and Release.
25. Employee acknowledges that he has carefully read this
Agreement, understands all its terms, and has signed it voluntarily with
full knowledge of its significance after adequate opportunity for
consideration and consultation with his attorney, family and/or his advisors
and after having had the opportunity to consult with his attorney, before
signing this Agreement. Employee represents that no payments or
considerations have been promised to him for executing and delivering this
Agreement other than the payments, agreements, and benefits described
herein, which payments, benefits and agreements constitute adequate and
sufficient consideration for the claims herein released and his other
agreements outlined in this Agreement, and that no attorney or counsel is
entitled to any fees from Xxxxxxxx as a result of this Agreement except as
specifically set forth herein.
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IN WITNESS WHEREOF, the parties have executed this Settlement
Agreement and Release of All Claims as of the day and year first written
above.
Xxxxx X. Xxxx
Date: 10/31/03 /s/ Xxxxx X. Xxxx
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Xxxxxxxx Corporation
Date: 10/31/03 By: /s/ Xxxxxxx X. X'Xxxx
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