EXHIBIT 10.13
October 25, 2002
VIA FEDERAL EXPRESS
-------------------
Xx. Xxxxxx H. Province
Dear Xxxxxx:
This letter agreement will confirm the understanding we have reached regarding
your employment separation from Midas International Corporation ("Midas"). The
terms of the employment separation are as follows:
1. Your last day of active employment with Midas was September 21, 2002
(the "Separation Date"). Effective as of the Separation Date, you
formally resigned as an officer and director of Midas, Inc., Midas and
all direct and indirect subsidiaries of Midas.
2. Subject to your compliance with the terms of this letter agreement,
you will be provided with twenty-four (24) months of severance
allowance payable as follows (i) a one-time lump sum payment in an
amount equal to Six Hundred Thousand and no/100 Dollars ($600,000.00)
(i.e., one (1) year's base salary, excluding auto allowance) payable
concurrently with your payment to the company of the amount required
under Paragraph 10(a) below, and (ii) twelve (12) months of base
salary continuation (excluding auto allowance) beginning on the first
(1st) day of the calendar month immediately following the date of your
execution of this letter agreement. This severance allowance will be
subject to normal Federal, State (where applicable) and FICA
withholdings.
3. For the twelve (12) month period during which you receive the base
salary continuation referenced in item (ii) of Paragraph 2 above (the
"Severance Period"), you (and your covered dependents, if applicable)
will continue to participate in and be covered by the company's
executive medical, dental and basic life insurance plans under the
same terms and conditions as in effect and applicable to you
immediately prior to the Separation Date. The applicable employee
medical and dental coverage contributions will be deducted from your
severance payments. After the Severance Period, you may continue the
group medical and dental coverage at your own expense for up to
eighteen (18) months. You can expect further correspondence from the
company's Human Resources Department on this matter as well as life
insurance conversion information.
Xx. Xxxxxx H. Province
October 25, 2002
Page 2
4. Immediately following the Separation Date, you will no longer be
eligible to participate in or be covered under any of the company's
other welfare or pension programs (e.g., short and long term
disability, travel accident, Retirement Savings Plan (RSP),
Non-Qualified Deferred Compensation Plan, pension, supplemental and
dependent life) other than those referenced in Paragraph 3 above.
5. Immediately following the Separation Date, you will no longer receive
an allowance for golf club membership dues, airline club membership
dues, financial planning, ex-spousal health coverage or any similar
amounts previously paid by the company.
6. Any distribution to which you are entitled under the Non-Qualified
Deferred Compensation Plan will be made in the manner previously
elected by you.
7. You will not be entitled to any payment for earned vacation time not
taken during calendar year 2002, as you have already taken your
allocated vacation time for the year.
8. Your rights with respect to any vested or unvested stock options owned
by you on the Separation Date will be subject to the terms of the
applicable Nonqualified Stock Option Agreements. Similarly, your
rights with respect to any unvested restricted stock owned by you on
the Separation Date will be subject to the terms of the applicable
Restricted Stock Award Agreements.
9. You will be provided with executive outplacement assistance from a
service selected by Midas in an amount not to exceed $25,000. In no
event will you be entitled to receive any portion of such assistance
in the form of cash.
10. As you are aware, you previously executed a Promissory Note dated
March 17, 1999, in the original principal amount of Two Million Four
Hundred Ninety-Nine Thousand Nine Hundred Ninety-Two and No/100
Dollars ($2,499,992.00) in favor of Midas (the "Stock Note") in order
to acquire 113,636 shares of restricted stock as part of Midas'
Executive Stock Ownership Program (collectively, the "Restricted
Shares"). The Stock Note was, in accordance with its terms, due and
payable in full on or before the one (1) month anniversary of the
Separation Date. However, in consideration of your agreements
contained herein, Midas will agree to an extension under the Stock
Note in accordance with the following terms:
(a) On or before the date of your execution of this letter agreement,
you must pay to the company an amount equal to Seven Hundred
Fifty Thousand and No/100 Dollars ($750,000.00) in immediately
available
Xx. Xxxxxx H. Province
October 25, 2002
Page 3
funds as a partial payment against the current outstanding
principal balance under the Stock Note.
(b) Subject to its timely receipt of the payment described in
subsection (a) above, the company will allow you to repay the
remaining One Million Seven Hundred Forty-Nine Thousand Nine
Hundred Ninety-Two and No/100 Dollars ($1,749,992.00) of
principal balance under the Stock Note (the "Remaining Principal
Balance") in accordance with the payment schedule outlined in
subsection (d) below.
(c) Interest will continue to accrue on the unpaid principal amount
of the Stock Note at the rate of six percent (6%) per annum. In
addition, notwithstanding anything contained in the Stock Note to
the contrary, all interest accruing under the Stock Note from and
after October 21, 2002 (i.e., the original maturity date under
the Stock Note), will not be waived by the company.
(d) The payment schedule for the Remaining Principal Balance and
accrued interest shall be as follows:
(1) An amount equal to Five Hundred Eighty-Three Thousand Three
Hundred Thirty and 67/100 Dollars ($583,330.67) of the
Remaining Principal Balance plus all then accrued and unpaid
interest under the Stock Note (i.e., approximately One
Hundred Four Thousand Nine Hundred Ninety-Nine and 52/100
Dollars ($104,999.52) if paid on October 21, 2003) shall be
due and payable in immediately available funds on or before
October 21, 2003;
(2) An amount equal to Five Hundred Eighty-Three Thousand Three
Hundred Thirty and 67/100 Dollars ($583,330.67) of the
Remaining Principal Balance plus all then accrued and unpaid
interest under the Stock Note (i.e., approximately
Sixty-Nine Thousand Nine Hundred Ninety-Nine and 68/100
Dollars ($69,999.68) if paid on October 21, 2004) shall be
due and payable in immediately available funds on or before
October 21, 2004; and
(3) The remaining Five Hundred Eighty-Three Thousand Three
Hundred Thirty and 66/100 Dollars ($583,330.66) of the
Remaining Principal Balance plus all then accrued and unpaid
interest under the Stock Note (i.e., approximately
Thirty-Four Thousand Nine Hundred Ninety-Nine and 84/100
Dollars
Xx. Xxxxxx H. Province
October 25, 2002
Page 4
($34,999.84) if paid on October 21, 2005) shall be due and
payable in immediately available funds on or before October
21, 2005.
(e) Any failure by you to pay any of the amounts specified in
subsection (d) above as and when required shall result in the
automatic and immediate acceleration of the entire Remaining
Principal Balance and all then accrued and unpaid interest under
the Stock Note.
(f) Until such time as all principal, interest and other amounts owed
under the Stock Note are paid in full, you agree that all of the
Restricted Shares shall be pledged by you to the company as
collateral. Accordingly, during such period, you may not sell,
transfer, assign, pledge, hypothecate, encumber or otherwise
dispose of (whether by operation of law or otherwise) all or any
portion of the Restricted Shares, nor shall any such shares be
subject to execution, attachment or similar process.
11. On or before the date of your execution of this letter agreement, you
must repay to Midas in full, in immediately available funds, the
Forty-Nine Thousand Three Hundred Twenty and No/100 Dollars
($49,320.00) in outstanding travel advances previously made to you by
the company.
12. Midas will, upon its receipt of proof of payment by you, reimburse you
for all legal fees owed by you to Winston & Xxxxxx were outstanding on
the Separation Date and which relate to the subpoena issued to you in
connection with the Exide criminal trial in East St. Louis, Illinois.
Midas will not make any such payment directly to Winston & Xxxxxx on
your behalf. Furthermore, Midas will not reimburse you for any other
currently outstanding legal fees or for any legal fees previously paid
by you. You will be responsible (and Midas will not pay you) for any
taxes resulting from the reimbursement amounts described under this
Paragraph 12.
13. Midas will pay you an amount equal to your taxes (plus your taxes on
such tax reimbursement payment) resulting from all amounts paid by the
company to you (or amounts forgiven by the company, in the case of
item (vi) below) during 2002 for (i) your ex-spouse's health insurance
premiums, (ii) golf club membership dues, (iii) airline club
membership dues, (iv) spousal travel expenses, (v) financial planning
expenses (to the extent incurred prior to the Separation Date), and
(vi) interest accrued under the Stock Note for the period commencing
on January 1, 2002, and ending on October 21, 2002. This reimbursement
amount will be paid to you promptly after your presentation to Midas
of reasonable documentation of the amounts of such taxes. Midas may
withhold from such payments taxes which
Xx. Xxxxxx H. Province
October 25, 2002
Page 5
Midas is required to pay or withhold on your behalf with respect to
such forgiveness and/or payments to you.
14. In partial consideration of the agreements of Midas contained herein,
you agree to execute the attached General Release concurrently with
your execution of this letter agreement.
15. Also in partial consideration of the agreements of Midas contained
herein, you must, at all times from and after the Separation Date,
refrain from disparaging or otherwise making any negative public
statements or remarks regarding: (i) Midas or any of its parent
corporations, subsidiaries, affiliates or franchisees, or any of their
respective shareholders, directors, officers, members, managers,
employees, representatives, agents, successors or assigns, (ii) any of
Midas' branded or non-branded products or services, whether now
offered or hereafter developed, or (iii) the Midas name or system
generally. In addition, at all times from and after the Separation
Date until the first (1st) anniversary thereof, you must refrain from
soliciting or encouraging, whether directly or indirectly through a
third party, any current employee of Midas to leave or otherwise
terminate his or her employment with Midas for any reason.
16. Also in partial consideration of the agreements of Midas contained
herein, you must, at all times from and after the date of this General
Release, maintain in the strictest of confidence, and refrain from
disclosing to or discussing with any third party for any purpose
whatsoever: (a) any confidential and proprietary information of Midas
which was made known to you as a result of your employment with Midas,
or (b) any of the terms of this letter agreement (other than to your
legal, business or accounting advisors, and except as may be required
by law).
You agree that you have carefully read and fully understand the provisions
of this letter agreement and that you have had the opportunity to consult
with an attorney of your choice regarding its implications. This letter
agreement sets forth the entire agreement between you and Midas, and you
agree that you have not relied upon any representation, written or oral,
not contained herein. This letter agreement supersedes all other prior
agreements or understandings between you and Midas. This agreement shall
inure to the benefit of and be binding upon your heirs, executors,
administrators, successors and assigns, and shall inure to the benefit of
Midas' administrators, representatives, successors and assigns.
This letter agreement is being entered into and is to be performed within
the State of Illinois and shall be governed by Illinois law. Any dispute
under this letter agreement shall be subject to binding arbitration before
the American Arbitration Association in Chicago, Illinois.
Xx. Xxxxxx H. Province
October 25, 2002
Page 6
Please confirm your understanding of and agreement with the foregoing terms
by signing this letter agreement where indicated below and returning the
executed original to me on or before November 16, 2002. In the event that
we do not receive your signed confirmation on or before that date, this
letter agreement shall be immediately and automatically revoked and
rescinded and shall be of no further force or effect. Notwithstanding such
event, the effective date of termination of your employment with Midas
shall remain September 21, 2002.
Very truly yours,
MIDAS INTERNATIONAL CORPORATION
/s/ Xxxx X. Xxxxxxx
-----------------------------------
Xxxx X. Xxxxxxx
Vice President, Human Resources
UNDERSTOOD AND AGREED TO
this 30th day of October, 2002.
/s/ Xxxxxx X. Province
----------------------------
Xxxxxx X. Province
Xx. Xxxxxx H. Province
October 25, 2002
Page 7
GENERAL RELEASE
The undersigned, XXXXXX X. PROVINCE ("Province"), for and in consideration
of the mutual promises and covenants contained in that separate letter agreement
by and between Province and MIDAS INTERNATIONAL CORPORATION (the "Company")
dated October 25, 2002 (the "Letter Agreement") and other good and valuable
consideration, the receipt, adequacy and sufficiency of which is hereby
acknowledged, hereby releases and forever discharges the Company and its
officers, directors, representatives, agents, employees, and insurers, and its
related and affiliated entities (including, without limitation, all past and
present parent corporations, subsidiaries and affiliated companies), and their
respective officers, directors, representatives, agents, employees, and insurers
(hereinafter collectively and individually "Releasees") from any and all rights,
claims, demands, debts, dues, sums of money, accounts, attorneys' fees,
complaints, judgments, executions, actions and causes of action of any nature
whatsoever, cognizable at law or equity, which Province now has or claims or
might hereafter have or claim, against Releasees based upon or arising out of
any matter or thing whatsoever prior to the execution of this General Release,
including but not limited to, any rights, claims, complaints or actions or
causes of action which were or could have been asserted by Province arising out
of or related to (i) that certain employment offer letter dated December 11,
1997, from Xxxxxxx Corporation to Province, (ii) that certain Change in Control
Agreement dated October 12, 2001, by and between Province and Midas, Inc., as
amended, and (iii) his employment by the Company or his separation therefrom, or
under any local, state or federal law dealing with employment discrimination
including the Illinois Human Rights Act, the Age Discrimination in Employment
Act, as amended by the Older Workers Benefit Protection Act, Title VII of the
Civil Rights Act of 1964, the Civil Rights Act of 1991, the Vocational
Rehabilitation Act of 1973, the Americans with Disabilities Act, and any and all
claims for retaliatory or wrongful discharge, it being the intention of both
parties to make this release as broad and general as the law provides.
Xx. Xxxxxx H. Province
October 25, 2002
Page 8
Notwithstanding the foregoing and the covenant not to xxx, nothing contained
herein shall constitute a release by Province of any rights that he may have on
the date hereof or in the future based upon an effective date of employment
termination of September 21, 2002, under (i) any Company ERISA plans in which
Province currently participates or (ii) the Letter Agreement. Province
acknowledges and agrees that this release, the release contained in the next
paragraph, and the covenant not to xxx, are essential terms of the Letter
Agreement and that, without this release and covenant not to xxx, no agreement
would have been reached.
SPECIFICALLY INCLUDED IN PROVINCE'S AGREEMENT TO RELEASE AND DISCHARGE THE
COMPANY ARE ANY AND ALL RIGHTS AND CLAIMS PROVINCE MAY HAVE UNDER THE AGE
DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED, 29 U.S.C. SEC 621 AND
FOLLOWING ("ADEA"), AS OF THE DATE PROVINCE SIGNS THIS GENERAL RELEASE. THIS
PARAGRAPH DOES NOT WAIVE RIGHTS OR CLAIMS THAT MAY ARISE AFTER THE DATE THIS
GENERAL RELEASE IS SIGNED. PROVINCE AGREES THAT THIS GENERAL RELEASE AND THE
LETTER AGREEMENT PROVIDE BENEFITS TO WHICH HE IS NOT OTHERWISE ENTITLED AND THAT
THE COMPANY HAS HEREBY ADVISED PROVINCE TO CONSULT WITH AN ATTORNEY PRIOR TO
SIGNING THIS GENERAL RELEASE.
PROVINCE HAS BEEN PROVIDED WITH A MIMIMUM OF TWENTY-ONE (21) DAYS WITHIN
WHICH TO CONSIDER WHETHER TO SIGN THIS GENERAL RELEASE AND WAIVE AND RELEASE ALL
CLAIMS AND RIGHTS ARISING UNDER THE ADEA. PROVINCE UNDERSTANDS AND AGREES THAT
HE HAS SEVEN (7) DAYS AFTER EXECUTION OF THIS GENERAL RELEASE WITHIN WHICH TO
REVOKE IT. ANY SUCH REVOCATION MUST BE MADE IN WRITING AND DELIVERED TO THE
GENERAL COUNSEL OF THE COMPANY BY 5:00 P.M. ON THE SEVENTH (7TH) DAY
Xx. Xxxxxx H. Province
October 25, 2002
Page 9
FROM EXECUTION OF THIS GENERAL RELEASE. REVOCATION OF THIS GENERAL RELEASE BY
PROVINCE SHALL, WITH NO ACTION REQUIRED TO BE TAKEN BY THE COMPANY, ALSO CAUSE
THE LETTER AGREEMENT TO BE AUTOMATICALLY REVOKED AND RESCINDED AND SHALL RESULT
IN THE AUTOMATIC AND IMMEDIATE TERMINATION OF PROVINCE'S EMPLOYMENT EFFECTIVE AS
OF THE DATE OF THE LETTER AGREEMENT.
To the maximum extent permitted by law, Province covenants not to xxx or to
institute, or cause to be instituted, any action or other proceeding in any
Federal State, or local agency or court against the Company or any of the
Releasees, concerning any matter or matters released in the preceding
paragraphs.
This General Release shall be governed by and construed in accordance with
the Laws of the State of Illinois.
Province acknowledges and agrees that he has carefully read and understands
this General Release, has been represented by counsel of his choosing who has
reviewed this General Release and advised him regarding its terms. Province
further states that, based on his careful reading of this General Release and
his knowledge of the contents hereof, and upon the advice of his attorney, he
freely and voluntarily assents to all the terms and conditions hereof, and is
signing this General Release as his free act.
[Signature Page Follows]
Xx. Xxxxxx H. Province
October 25, 2002
Page 10
IN WITNESS WHEREOF, Province has executed this General Release at Itasca,
Illinois, this 30th day of October, 2002.
/s/ Xxxxxx X. Province
--------------------------
XXXXXX X. PROVINCE
