EXHIBIT 10.1
------------
Confidential Separation Agreement
Between
X. X. Xxxxx Corporation
and
Xxxxxx Xxxxx
This Agreement is made and entered into on the 10th day of March, 2004
by and between X. X. Xxxxx Corporation, 00000 Xxxxxxxx Xxxx, X.X., Xxxxxxxxxxxx,
Xxxx 00000 ("Xxxxx") and Xxxxxx Xxxxx, 000 X. Xxxxxxxx, Xxxxxx, Xxxx 00000
("Zacks").
Background Information
A. Zacks has agreed to voluntarily retire and terminate his
employment with Xxxxx, pursuant to the Employment Agreement made effective July
1, 2001 (the "Employment Agreement"); and
B. Zacks has agreed to provide certain additional services as a
member of the Board of Directors of Xxxxx; and
C. The Board of Directors (the "Board") of Xxxxx believes it to
be in Barry's best interest to resolve all items with respect to Zacks' position
with Xxxxx and his future activities therewith.
NOW THEREFORE, in consideration of the mutual covenants contained
herein, Xxxxx and Zacks agree as follows:
1. Employment Termination and Resignation. Zacks and Xxxxx agree
that Zacks is retiring and his employment will be terminated as of July 1, 2004,
(i) entitling Zacks to certain benefits provided by section 13, (ii) subjecting
Zacks to certain obligations required by sections 11 and 12, and (iii) providing
a means for resolving disputes pursuant to section 14 of the Employment
Agreement. Except for the forgoing sections and except as otherwise provided in
this Agreement, the Employment Agreement shall terminate effective upon the
execution of this Agreement, and Xxxxx and Zacks agree that all remaining
provisions of the Employment Agreement shall be of no further force and effect
as of the date of this Agreement.
Effective on the date of this Agreement, Zacks shall cease having any
authority or responsibility for the day-to-day operations of Xxxxx (except as
Senior Chairman of the Board with respect to the take-out financing as described
in the next paragraph) and shall become and be a non-operational employee of
Xxxxx until July 1, 2004 with authority and responsibility only as set forth in
this Agreement. Also effective on the date of this Agreement, Zacks hereby
resigns all of his positions as an officer of Xxxxx or any of its subsidiaries,
but shall remain as a member of the Board of Xxxxx.
Zacks shall be designated by the Board as the "Senior Chairman of the
Board" of Xxxxx and Xxxxx agrees shall take such actions as are necessary and in
its view appropriate to create this position under the Company's Code of
Regulations. As Senior Chairman of the Board, Zacks shall preside over meetings
of shareholders and of the Board until a Chairman of the Board is duly elected.
Zacks, as Senior Chairman of the Board, shall be the Board's representative,
unless and until otherwise determined by the Board, to work with consultants or
other representatives of Xxxxx in Barry's negotiation of the take-out financing
currently being considered by Xxxxx (i.e., continuing to be consulted regarding
the selection of and negotiation with potential lenders and to receive copies of
term sheets, letters of intent and loan documents being exchanged between Xxxxx
and potential lenders). The Board's present intention is to propose to Barry's
shareholders at its next annual meeting an amendment to the Code of Regulations
that would permit the Chairman of the Board to be someone other than the Chief
Executive Officer. If shareholders approve such amendment, it is the present
intention of the Board to nominate and elect Zacks such Chairman of the Board.
However, there is no obligation on the part of Xxxxx or its Board to nominate
Zacks.
2. Continued Services to Xxxxx. Zacks shall continue as a member
of the Board subject to the will of Barry's shareholders, and as long as so
serving shall receive Director's fees on the same basis as the independent
directors. Zacks' retainer compensation as such director for 2004 shall be
pro-rated based upon his months of service. If Zacks becomes a member of a
special committee, he will receive committee fees for that committee. It is the
present intention of the Board and the members of the nominating committee to
nominate Zacks to stand for election as a Board member at the Xxxxx annual
meeting 2005. However, there is no obligation on the part of Xxxxx or its Board
to nominate Zacks. Until a successor is elected, Zacks will preside over
meetings of Barry's shareholders and of the Board. Zacks will perform special
matters reasonably requested by the Chief Executive Officer of Xxxxx or the
Board. Zacks will be notified of all Board or committee meetings and shall have
the right to observe, but not to vote at any such meetings of committees, unless
he is a member of the committee. Zacks understands and agrees the Board or a
committee may request an executive session at any time, and Zacks agrees to
exclude himself from any portion of such meetings. So long as Zacks remains a
member of the Board, Zacks shall receive copies of all minutes prepared of
meetings of the Board, its committees, including any committee reports to the
board, and of any meeting of outside directors. As of July 1, 2004, Zacks shall
be eligible to participate in proceedings of the non-management directors, if
and for so long as he is determined to be a "non-management" director under
applicable laws and under applicable rules and interpretations of the New York
Stock Exchange or such other exchange or quotation service that Barry's common
stock is then traded.
Zacks will sign all representation letters to Barry's accountants and
all certifications required by the Securities and Exchange Commission ("SEC")
with respect to Barry's financial statements for the year ended December 31,
2003. If the individual who succeeds Zacks as Chief Executive Officer of the
Company agrees to provide any such certification to the SEC covering a time
period during which Zacks served as Chief Executive Officer of the Company,
Zacks agrees to provide to such successor an appropriate "back-up" certificate
confirming the accuracy of the certification provided to the SEC with respect to
the period during which Zacks served as Chief
Executive Officer, provided that he is given access to documents and Xxxxx
personnel as is necessary for him to perform the due diligence required for such
back-up certificate.
3. Consideration. In consideration of the agreements contained
herein, Xxxxx agrees to the following payments or benefits to be made to Zacks:
(a) Zacks will continue on Barry's payroll and receive his
current salary and benefits through July 1, 2004 as a
non-operational employee. Zacks will be paid on July 1, 2004
all previously deferred compensation to which he is entitled
under Barry's deferred compensation plan. In addition, he will
begin receiving payments under and in accordance with the
terms of the Company's qualified retirement plans in which he
participates, which benefits will commence on or about April
1, 2004 as provided in such plans, and he will begin receiving
payments under and in accordance with the terms of the
Company's non-qualified supplemental employee retirement plans
in which he participates, which payments will begin on or
about July 1, 2004 as provided by the terms of such plans.
(b) Xxxxx will continue to pay the lease payments under the
current car lease for Zacks' car through the term of the
lease. At the end of the term, Xxxxx will offer Zacks the
right to purchase the vehicle pursuant to the terms of the
lease agreement.
(c) Xxxxx will reimburse Zacks for his legal fees incurred in
connection with the preparation and review of this Agreement
in an amount not to exceed $10,000.
(d) Xxxxx will continue to provide the insurance benefits
provided for in section 13(a) of the Employment Agreement
pursuant to the current policies through the respective policy
period in which Zacks attains the age of 75 or until his
death, whichever occurs first. If Zacks survives until age 75,
ownership of the policies of insurance maintained pursuant to
section 3(b)(i) of the Employment Agreement shall be assigned
to Zacks or his order, and Xxxxx shall be relieved from all
obligations with respect to paying the premiums thereof. If
Zacks survives until age 75, Xxxxx shall use the cash value
that Xxxxx would have had under the split-dollar policy of
insurance maintained pursuant to section 13(b)(ii) without
regard to any borrowings thereof by Xxxxx to continue the
policy's death benefit for each policy period until Zacks'
death unless doing so for a policy period will result in
reducing such cash value (without regard to any borrowings by
Xxxxx) to an amount less than the aggregate amount of all
premiums paid by Xxxxx over the life of the policy and of a
predecessor policy which was replaced by the current policy.
4. Restricted Stock. Zacks was granted certain restricted stock
by Xxxxx pursuant to a Restricted Stock Agreement, dated May 13, 1999. All
Restricted Stock shall become vested as provided by section 6(e)(v) of the
Employment Agreement, and such Restricted Stock Agreement shall remain in full
force and effect without alteration, other than the provisions in section 3 of
the agreement, relating to the May 13, 2004 lapse date, shall be changed such
that all restricted stock issues under that agreement shall become unrestricted.
5. Stock Options. Zacks has been granted stock options under
Barry's 2002 Stock Incentive Plan, its 1997 Incentive Stock Plan, and the 1994
Stock Option Plan. All stock options granted pursuant to those plans shall
become fully exercisable pursuant to section 6(e)(iv) of the Employment
Agreement and shall continue subject to the provision in each of the plans and
applicable stock option agreements dealing with the right to exercise options
after termination of employment, which, for purposes of those plans, shall be
deemed to be July 1, 2004.
6. Office and Facilities. In order to minimize expense for Xxxxx
for a transitional period, Zacks intends to work out of his Columbus, Florida,
and Maine homes until at least September 2004. Through September 2004, Xxxxx
will continue to provide payment for all Xxxxx and phone lines and communication
equipment (including fax machines) currently in place between Barry's office and
the homes. During such period, Zacks will be provided with full-time secretarial
support. The five-year obligation of Xxxxx to make available outside office
space and the one-year obligation to provide a full-time secretary required by
section 13(c) and (d) of the Employment Agreement will commence September 1,
2004 as set forth in section 13 of the Employment Agreement. Xxxxx agrees that
at the August 2004 Board meeting, the location and timing of Zacks' office space
and secretarial assistance consistent with the terms of his Employment Agreement
will be determined by the Board. Until then, Zacks will visit Barry's
headquarters only on Board matters or at the request of the CEO, and Zacks'
office at the Xxxxx headquarters will be available to him for such visits.
If and when an office outside of Barry's headquarters is set up for
Zacks, at the option of Xxxxx, Zacks will either be provided with the use of the
furniture currently in his office at headquarters or Xxxxx will purchase
furniture of comparable quality to be used in the new office space. Xxxxx will
also pay for all office equipment to operate the new office, or will relocate
present equipment from Barry's office to the new location. Xxxxx will continue
to make space available at its offices for Zacks' files and for his secretarial
assistance for as long as Zacks' secretary is located at such offices.
7. Medical and Dental Insurance. Zacks and his spouse shall be
entitled to medical and dental insurance benefits as provided in section 13 (b)
of the Employment.
8. Agreement Not to Compete. Zacks agrees that he will be subject
to the agreement not to compete provided in section 12 of the Employment
Agreement.
9. Confidentiality. Zacks covenants and agrees that he will
protect confidential information as provided in section 11 of the Employment
Agreement.
10. Press Release. Zacks and Xxxxx shall mutually agree upon an
appropriate press release to be issued at such time as determined by Xxxxx. In
the event that Zacks and Xxxxx cannot agree on the wording of a press release,
the decision by the Board of Directors of Xxxxx shall be the final decision.
11. Arbitration. Any controversy or claim arising out of, or
relating to, this Agreement of the Employment Agreement, or the breach thereof,
shall be submitted to arbitration as provided in section 14 of the Employment
Agreement.
12. Benefit of Counsel: Informed Review. Each party to this
Agreement acknowledges and represents to each of the other parties to this
Agreement that: (a) the provisions of this Agreement and their legal effect have
been fully explained to it or him by its or his own counsel; (b) it or he has
received independent legal advice from counsel of their own selection; (c) it or
he fully understands the facts and has been fully informed as to the legal
rights and obligations under this Agreement; (d) this Agreement is being entered
into and signed knowingly, freely, and voluntarily, after having received such
legal advice and with such knowledge; and (e) its or his execution and delivery
of this Agreement is not the result of any duress or any undue influence.
13. Complete Agreement. Except as set forth herein, this Agreement
sets forth the entire agreement among the parties and supersedes any prior
discussions, negotiations, or representations among them regarding its subject
matter. No additions or other changes to this Agreement will be made or be
binding on any party unless made in writing and signed by each party to this
Agreement. No promise, inducement, or agreement not expressed herein has been
made by any party to influence the execution of this Agreement.
14. Successors. This Agreement shall be binding upon, inure to the
benefits of, and be enforceable by and against the respective heirs, legal
representatives, successors, and assigns of the parties to this Agreement.
15. Non-Waiver. No failure by any party to insist upon strict
compliance with any term of this Agreement, to exercise any option, enforce any
right, or seek any remedy upon any default of the other party, shall affect or
constitute a waiver of the first party's right to insist upon such strict
compliance, exercise that option, enforce that right, or seek that remedy with
respect to that default or any prior, contemporaneous, or subsequent default. No
custom or practice of the parties at variance with any provision of this
Agreement shall affect or constitute a waiver of any party's right to demand
strict compliance with all provisions of this Agreement.
16. Notices. Any notice or other communication required or desired
to be given to any party under this Agreement shall be in writing and shall be
deemed given when delivered personally to that party at the address for that
party specified at the beginning of this Agreement.
17. Gender and Numbers. When permitted by the context, each
pronoun used in this Agreement includes the same pronoun in other genders and
numbers, and each noun used in this Agreement includes the same noun in other
numbers.
18. Evidence. The parties agree that this Agreement may be used as
evidence in any subsequent proceeding in which either of the parties alleges a
breach of this Agreement.
19. Validity. If and to the extent that any court of competent
jurisdiction holds that part or all of any provision of this Agreement is
invalid, such invalidity shall not affect the balance of that provision or the
remaining provisions of this Agreement which shall remain in full force and
effect.
20. Governing Law. All questions concerning the validity,
intention, or meaning of this Agreement or relating to the rights and
obligations of the parties with respect to the performance hereunder shall be
construed and resolved under the laws of the state of Ohio.
21. Captions. Captions to the various sections of the Agreement
are not part of the context hereof, but are labels to assist in locating those
sections and shall be ignored in construing this Agreement.
22. Counterparts. This Agreement may be executed in several
counterparts, and each executed counterpart shall be considered as an original
of this Agreement.
23. Voluntary Execution. By signing below, each party represents
to the other that he/it is entering into this Agreement of his/its own free will
and his/its own voluntary act and deed and that no representations, inducements,
promises, covenants, or agreements have been made except as set forth expressly
herein.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
effective as of the date first set forth above.
X. X. Xxxxx Corporation Xxxxxx Xxxxx
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxx Xxxxx
-------------------------------------- ----------------
By: Xxxxxx X. Xxxxx
Title: Sr. VP Finance - CFO
