CONFIDENTIAL SETTLEMENT AGREEMENT AND GENERAL RELEASE
Exhibit 10.1
CONFIDENTIAL SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Confidential Settlement Agreement and General Release (“Agreement”) is entered into this
27th day of March, 2009, by and between Xxxxx Xxxxxxx (the “Employee”) and BlueLinx
Corporation (“BlueLinx Corporation”), on its own behalf and on behalf of its parents, subsidiaries
and affiliates, and their respective predecessors, successors, assigns, representatives, officers,
directors, agents and employees. The term “BlueLinx Corporation,” when used in this Agreement,
includes BlueLinx Corporation, its parents, subsidiaries or affiliates, and their respective
predecessors, successors, assigns, representatives, past or present officers, directors, agents or
employees.
WHEREAS Employee’s employment will be terminated effective April 1, 2009.
NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions hereinafter set
forth, the parties hereto, intending to be legally bound, do hereby agree as follows:
| 1. | Payable to Employee: BlueLinx Corporation agrees to pay Employee a lump sum
payment of $500,000.00, less all applicable withholdings, taxes, and payroll deductions for
which an IRS Form W-2 shall be issued to the Employee. |
| 2. | No Further Compensation Owed. Employee agrees and represents that no other
form of monetary compensation, including but not limited to: wages, commissions, benefits,
bonuses, vacation pay, sick pay, stock, stock options, or severance, is owed to Employee
other than that which is provided for in Paragraph 1 above. Employee further agrees that
Employee will not continue to accrue any additional vacation and /or additional monetary
benefit during the period Employee is receiving payment. |
| 3. | Waiver and Release of Claims. The Employee, on behalf of Employee, Employee
descendants, dependents, heirs, executors, administrators, assigns, and successors,
covenants not to xxx, and fully, finally and forever releases and discharges BlueLinx
Corporation from any and all claims and rights of any kind that Employee may have, whether
now known or unknown, suspected or unsuspected, arising out of or in any way connected with
Employee employment relationship with BlueLinx Corporation as of the date this Agreement is
executed. These claims and rights released include, but are not limited to, claims under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the Equal Pay Act, the
Americans With Disabilities Act, the Age Discrimination in Employment Act, state fair
employment statutes, and under other federal, state, local, statutory, common law, and the
law of contract, tort and any and all claims for attorneys’ fees. |
| 4. | Payment of Applicable Taxes. The Employee is and shall be solely responsible
for all federal, state and local taxes that may be owed by Employee by virtue of the
receipt of any portion of the monetary payment provided under this Agreement. The Employee
agrees to indemnify and hold BlueLinx Corporation harmless from any and all liability,
including, without limitation, all penalties, interest and other costs that may be imposed
by the Internal Revenue Service or other governmental agencies regarding Employee share of
any tax obligations that may arise from the monetary consideration made to the Employee
under this Agreement. |
| 5. | Assistance to BlueLinx Corporation. The Employee agrees to cooperate with
BlueLinx Corporation to provide all information that BlueLinx Corporation may hereafter
reasonably request with respect to matters involving the Employee’s present or former
relationship with BlueLinx Corporation, the work the Employee has performed, or present or
former employees or customers of BlueLinx Corporation, so long as such requests do not
unreasonably interfere with any other job in which the Employee is engaged. BlueLinx
Corporation agrees to reimburse the Employee for all reasonable out-of-pocket costs
Employee incurs in connection herewith. |
| 6. | Confidentiality and Non-Disclosure. The Employee shall not disclose the fact
of this Agreement, the settlement amount, the terms of this Agreement, the facts and
circumstances giving rise to this Agreement, or the existence of any claim that Employee
has, or may have, that is subject to the release of claims contained in this Agreement, to
anyone other than the Employee’s spouse, immediate family members, attorney and/or tax and
financial advisors unless legally required to do so. Should the Employee disclose
information about this Agreement to the Employee’s spouse, immediate family members,
attorney and/or tax and financial advisors, the Employee shall advise such persons that
they must maintain the strict confidentiality of such information and must not disclose it.
In the event that the Employee is legally required to disclose the information covered by
this paragraph, Employee agrees to immediately notify BlueLinx Corporation’s Legal
Department in writing. |
| 7. | Transfer of Claims. The Employee represents and warrants that Employee has not
assigned, transferred, or purported to assign or transfer, to any person, firm,
corporation, association or entity whatsoever, any released claim. The Employee agrees to
indemnify and hold BlueLinx Corporation harmless against, without any limitation, any and
all rights, claims, warranties, demands, debts, obligations, liabilities, costs, court
costs, expenses (including attorney’s fees), causes of action or judgments based on or
arising out of any such assignment or transfer. |
| 8. | Termination of Employment/Re-Employment. The Employee’s employment
relationship with BlueLinx Corporation has been terminated. The Employee understands and
agrees that, Employee is ineligible to be re-employed by BlueLinx Corporation, its
subsidiaries, affiliates, parents or divisions in the future and that Employee will not
knowingly apply for a position with BlueLinx Corporation. |
| 9. | Return of Property. As a condition precedent to the Employee’s receipt of the
monetary payment provided under this Agreement, the Employee shall return all BlueLinx
Corporation property possessed by the Employee to BlueLinx Corporation Human Resources
Department, including all documents, disks, and other items containing confidential and/or
proprietary information, as defined in paragraph 9, below. |
| 10. | Confidential and/or Proprietary Information. The Employee agrees that Employee
has not and in the future will not use or disclose to any third party Confidential
Information, unless compelled by law and after notice to BlueLinx Corporation, and further
agrees to return all documents, disks, or any other item or source containing Confidential
Information, or any other BlueLinx Corporation property, to BlueLinx Corporation upon
execution of this Agreement. If the Employee has any question regarding what data or
information would be considered by BlueLinx Corporation to be information subject to this
provision, the Employee agrees to contact BlueLinx Corporation’s Legal department in
writing for written clarification. |
| 11. | Non-Admission. This Agreement does not constitute an admission by BlueLinx
Corporation or Employee of any violation of any law or statute. |
| 12. | Non-Disparagement and Incitement of Claims. The Employee agrees that the
Employee will not make or cause to be made any statements that disparage, are inimical to,
or damage the reputation of BlueLinx Corporation. In the event such a communication is
made to anyone, including but not limited to the media, public interest groups and
publishing companies, it will be considered a material breach of the terms of this
Agreement and the Employee will be required to reimburse BlueLinx Corporation for any and
all compensation and benefits paid under the terms of this Agreement. The Employee also
agrees that Employee will not encourage or incite other current or former employees of
BlueLinx Corporation to disparage or assert any complaint, claim or charge, or to initiate
any legal proceeding, against BlueLinx Corporation. |
| 13. | Material Breach. The Employee acknowledges that if Employee materially
breaches or threatens to materially breach this Agreement, including but not limited to the
Employee’s obligations in the paragraphs pertaining to Confidentiality and Non-Disclosure,
Return of Property, Confidential and/or Proprietary Information, and Assistance to BlueLinx
Corporation, and/or commences a suit or action or complaint in contravention of this
release and waiver of claims, BlueLinx Corporation’s obligations to pay the monies and/or
provide the benefits referred to above shall immediately cease and BlueLinx Corporation
shall be entitled to all other remedies allowed in law or equity, including but not limited
to the return of any payments made to Employee under this Agreement. |
| 14. | Entire Agreement. This Agreement contains the entire agreement and
understanding between the Employee and BlueLinx Corporation with respect to Employee’s
separation from BlueLinx any and all disputes or claims that the Employee has, or could
have had, against BlueLinx Corporation as of the date this Agreement is executed, and
supersedes all other agreements between the Employee and BlueLinx Corporation with regard
to Employee’s employment, compensation or any disputes or claims. This Agreement shall not
be changed unless in writing and signed by both the Employee and BlueLinx Corporation. |
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| 15. | Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect or impair any other provisions, which shall remain in full force
and effect. |
| 16. | Governing Law. This Agreement has been made in the State of Georgia and the
laws of Georgia shall apply to it. |
| 17. | Employee’s Acknowledgement. The Employee acknowledges that no representation,
promise or inducement has been made other than as set forth in this Agreement, and that the
Employee enters into this Agreement without reliance upon any other representation, promise
or inducement not set forth herein. The Employee further acknowledges and represents that
Employee assumes the risk for any mistake of fact now known or unknown, and that Employee
understands and acknowledges the significance and consequences of this Agreement and
represents that its terms are fully understood and voluntarily accepted. The Employee also
acknowledges (a) that Employee has consulted with or has had the opportunity to consult
with an attorney of Employee choosing concerning this Agreement and has been advised to do
so by BlueLinx Corporation, and (b) that Employee has read and understands this Agreement,
is fully aware of its legal effect, and has entered into it freely and voluntarily based on
Employee own judgment. The Employee acknowledges that Employee has been given a reasonable
time to consider the terms of this Agreement. |
| 18. | Twenty-One Day Consideration Period. The Employee acknowledges that Employee
has been given a period of at least twenty-one (21) days to consider the terms of this
Agreement and, if Employee should execute it prior to the expiration of the twenty-one day
consideration period, knowingly waives Employee right to consider this Agreement for
twenty-one days. |
| 19. | Seven-Day Revocation Period. The Employee acknowledges that Employee may, for
a period of seven (7) days following the execution of this Agreement, revoke acceptance
thereof. This revocation must be done in writing and delivered to BlueLinx Corporation’s
Legal Department before the close of business on the seventh day. This Agreement shall not
become effective until the expiration of this seven-day revocation period. |
| 20. | Headings. The headings contained in the Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this Agreement. |
| XXXXX XXXXXXX | BLUELINX CORPORATION | |||||||||
| /s/ Xxxxx Xxxxxxx | By: | /s/ Xxxxxx Xxxx | ||||||||
| Title: | President and CEO | |||||||||
| Date: 3/27/2009 | Date: 3/27/2009 | |||||||||
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