Exhibit 10.1
SEPARATION AGREEMENT AND RELEASE
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This Separation Agreement and Release (hereinafter the "Agreement") dated
as of the 11th day of December, 2001, contains all terms and compromises reached
between Xxxxxx X. Xxxxx ("Xx. Xxxxx"), CellStar Ltd. (hereinafter the
"Employer"), CellStar Corporation ("CellStar"), and all affiliated entities, in
connection with Xx. Xxxxx'x separation from employment with the Employer. It is
the intent of the parties, by entering into this Agreement, to resolve any and
all disputes, claims or causes of action which might now exist or arise in the
future between them.
IT IS THEREFORE AGREED THAT:
1. Employer and Xx. Xxxxx hereby mutually agree that Xx. Xxxxx'x
employment with Employer, CellStar and their affiliated entities will
automatically terminate effective December 31, 2001 (hereinafter the
"Termination Date"). Furthermore, effective upon the date set forth in the first
paragraph of this Agreement, Xx. Xxxxx resigns from all director and officer
positions with CellStar and its affiliated entities, and any other positions
that he currently holds with the Company and its affiliates. Xx. Xxxxx shall
remain on the payroll as an employee from the date of this Agreement to the
Termination Date and perform the duties reasonably assigned to him from time to
time by the Chief Executive Officer and Board of Directors of CellStar. Xx.
Xxxxx will devote substantially all of his time, energy, skill and best efforts
to the performance of his duties, and will faithfully and diligently perform
such duties. During such time, Xx. Xxxxx'x actions shall be subject to the
direction of the Chief Executive Officer and the Board of Directors of CellStar.
2. In consideration for Xx. Xxxxx'x promises and covenants in this
Agreement, the Employer agrees:
a. to pay Xx. Xxxxx'x current salary through the Termination Date.
b. to pay Xx. Xxxxx, in accordance with the formula set forth in the
Employment Agreement dated November 5, 1999 between Xx. Xxxxx and the
Employer (the "Employment Agreement"), the amount of $670,341.00 (less
required withholding), within fifteen (15) days after the Termination
Date;
c. to pay Xx. Xxxxx for accrued, but unused, vacation upon the
Termination Date; and
d. to pay Xx. Xxxxx the Annual Incentive Payment (less required
withholding) pursuant to paragraph 1.4(b) and 1.6(c) of the Employment
Agreement (which sections, as modified by this paragraph 2, are
incorporated herein by reference) promptly after the amount of such
payment is determined, if such payment is earned in accordance with
the terms of its grant; provided, however, it is specifically
understood and agreed by the parties hereto that Xx. Xxxxx will not be
eligible to participate in the annual incentive plan approved by the
Compensation Committee of Parent's Board of Directors for fiscal 2002.
3. In consideration for the promises, payments and benefits provided
herein by Employer, and in order to fully compromise and settle any and all
claims and causes of action of any kind
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whatsoever relating to or arising out of Xx. Xxxxx'x employment with Employer,
including any claim arising under common law, contractual claim (except for and
as set forth in this Separation Agreement and Release or in any stock option
agreement existing at the Termination Date between Xx. Xxxxx and CellStar), or
any other federal, state or local statute or ordinance, Xx. Xxxxx agrees:
a. that Xx. Xxxxx will and hereby does unconditionally release, acquit
and forever discharge Employer, all of its parent, subsidiary and
affiliated companies, and all of their officers, directors,
representatives, employees and agents from any and all charges,
complaints, claims, causes of action, suits and expenses (including
attorney fees and costs actually incurred) of any nature whatsoever,
known or unknown, regarding any matter existing on or prior to the
date hereof, including without limitation those obligations or matters
relating to or arising out of the Employment Agreement which is hereby
terminated and Xx. Xxxxx'x employment or separation thereof from
Employer, except as specifically expressed in this instrument or under
any stock option agreement existing at the Termination Date between
Xx. Xxxxx and CellStar. THIS RELEASE INCLUDES, BUT IS NOT LIMITED TO,
ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF THE EMPLOYMENT AGREEMENT
(EXCEPT FOR AND AS SET FORTH IN THIS SEPARATION AGREEMENT, AND IN ANY
STOCK OPTION AGREEMENT EXISTING AT THE TERMINATION DATE BETWEEN XX.
XXXXX AND EMPLOYER), XX. XXXXX'X EMPLOYMENT WITH EMPLOYER AND THE
SEPARATION THEREOF, OR ANY BENEFITS ASSOCIATED WITH SUCH EMPLOYMENT,
INCLUDING ANY CLAIM UNDER TITLE VII OF THE CIVIL RIGHTS ACTS OF 1964,
THE AGE DISCRIMINATION IN EMPLOYMENT ACT, OR ANY OTHER COMMON LAW,
CONTRACTUAL OR STATUTORY CLAIM; and
b. that Xx. Xxxxx will not file any charges or complaints against
Employer or any of its affiliates with the Equal Employment
Opportunity Commission, the Texas Commission on Human Rights, or any
other local, state or federal agency or court, and that if Xx. Xxxxx
filed or has filed any such complaint or charge, and/or if any such
agency or court assumes jurisdiction of any complaint or charge
against Employer or any of its affiliates on behalf of Xx. Xxxxx, Xx.
Xxxxx will request such agency or court to withdraw from the matter
and dismiss said action.
4. Employer releases Xx. Xxxxx from any and all claims related to, or
arising out of, Xx. Xxxxx'x performance of his job duties, so long as he acted
in good faith, in a manner he reasonably thought to be in, or not opposed to,
the best interests of the company and had no reasonable cause to believe his
conduct was unlawful or illegal.
5. Notwithstanding anything herein contained to the contrary, from and
after the date hereof Xx. Xxxxx shall have full rights as described in Article 4
of the Employment Agreement with respect to actions taken or omitted by him on
behalf of the Employer during his employment and also with respect to any
third-party claims.
6. Except as required by law, all parties agree that they will keep the
terms, amount and existence of this Agreement confidential, except for
disclosures to Xx. Xxxxx'x spouse, attorney and
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financial advisors, and that neither party hereto will make any disparaging
statements or allegations about the other to any person or governmental agency,
including comments about Employer's employees, officers, directors or agents or
about the reputations of Employer or any such person. It is recognized that
CellStar may be required to file a copy of this Agreement with the Securities
and Exchange Commission, issue a press release relating to Xx. Xxxxx'x
separation, and make other disclosures required of a public company pursuant to
applicable law, and any such filing, press release or disclosure shall not be
deemed to violate the provisions of this Agreement.
7. The provisions of Article 2 of the Employment Agreement are
incorporated herein and remain in effect as if set forth herein in their
entirety, for a period of one (1) year following the Termination Date.
8. As a further material inducement to enter into this Agreement, any
party who breaches this Agreement must reimburse the non-breaching party for any
and all loss, cost, damage or expense, including, without limitation, attorneys
fees incurred as a result of any effort, action or lawsuit to enforce this
Agreement. In addition, any breach of the Agreement will entitle the
non-breaching party to seek injunctive relief to enforce this Agreement and to
recover any actual damages incurred as a result of said breach. In the event of
litigation, the losing party must pay the attorneys fees of the prevailing
party.
9. Xx. Xxxxx represents and acknowledges that in executing the Agreement
he does not rely and has not relied upon any representation made by Employer or
its agents, representatives or attorneys with regard to the subject matter,
basis or fact of said Agreement, except on those contained in this Agreement.
The parties agree that this Agreement represents a resolution of various matters
and shall not be construed to be an admission of any liability or obligation by
either party to the other party.
10. This Agreement shall be binding upon and inure to the benefit of Xx.
Xxxxx and, upon Xx. Xxxxx'x death, his heirs, administrators, representatives,
executors, successors and assigns. This Agreement shall be binding upon and
inure to the benefit of the Employer, all of its parent, subsidiary and
affiliated companies, and any corporation or other entity into which or with
which any thereof shall be liquidated, merged or consolidated.
11. This Agreement is made within the State of Texas and shall in all
respects be interpreted, enforced and governed under the laws thereof, and shall
in all cases be construed as a whole (according to its fair meaning and not
strictly for or against any of the parties).
12. Should any provision of this Agreement be declared or be determined
illegal and invalid, the validity of the remaining parts will not be affected.
13. The parties, by their signatures below, represent and agree that (a)
each has read this Agreement carefully and completely, and understands all
provisions contained therein; (b) Xx. Xxxxx has been given a period of at least
twenty-one (21) days to consider and review this Agreement; (c) Xx. Xxxxx has
seven (7) days after he signs this Agreement to revoke it, in which case this
Agreement and all obligations contained herein are null and void; and (d) Xx.
Xxxxx is aware of his right to consult with legal counsel and has ample
opportunity to do so if he so desires.
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14. No change or modification of this Agreement shall be valid unless in
writing and signed by all parties hereto.
15. Xx. Xxxxx will cooperate with Employer in response to requests for
information or assistance by Employer in connection with all matters relating to
or arising out of his employment with Employer.
16. Xx. Xxxxx represents that he has not disclosed, and agrees that he will
not disclose material non-public information about Employer or any of its
parent, subsidiary or affiliate companies to anyone other than Employer's
officers, directors, attorneys and accountants.
17. CellStar guarantees the payment and performance of all obligations of
Employer under this Separation Agreement and Release and agrees it will pay or
perform those obligations if for any reason Employer fails to do so. This
guarantee is absolute, continuing, irrevocable and not conditional or
contingent. Any notice given hereunder to either Employer or Parent will be
deemed to be notice to Parent for purposes of this guaranty.
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18. MY SIGNATURE BELOW INDICATES THAT I HAVE READ THE ABOVE AGREEMENT AND
VOLUNTARILY AGREE AND CONSENT TO THE TERMS AND CONDITIONS THEREIN.
/s/ XXXXXX X. XXXXX Signed in Carrollton, Texas
----------------------- on JANUARY 11, 2002
Xxxxxx X. Xxxxx
SUBSCRIBED AND SWORN to before me, the undersigned Notary Public on this
the 11 day of JANUARY 2002.
/s/ XXXXXX X. XXXXXX
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Notary Public in and for the
State of Texas
CELLSTAR LTD.
By: National Auto Center, Inc.
By: /s/ XXXXXX XXXX XXXXXXXXX Signed in Carrollton, Texas
-------------------------- on JANUARY 11, 2002
Xxxxxx Xxxx Xxxxxxxxx
Xx. Vice President
And General Counsel
CELLSTAR CORPORATION
By: /s/ XXXXXX XXXX XXXXXXXXX Signed in Carrollton, Texas
-------------------------- on JANUARY 11, 2002
Xxxxxx Xxxx Xxxxxxxxx
Xx. Vice President
And General Counsel
SUBSCRIBED AND SWORN to before me, the undersigned Notary Public on this
the 11 day of JANUARY 2002.
/s/ XXXXXX X. XXXXXX
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Notary Public in and for the
State of Texas
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