SEPARATION AGREEMENT AND RELEASE
Exhibit 10.92
Execution Copy
SEPARATION AGREEMENT AND RELEASE
This
Separation Agreement and Release (the “Agreement”) is made and entered into this 26th day
of September, 2011 (the “Execution Date”) by and between XXXXX & WESSON HOLDING CORPORATION, a
Nevada corporation (“S&W”) and XXXXXXX X. XXXXXX (“Golden”).
RECITALS
A. Golden has served as the President and Chief Executive Officer of S&W since December 2004.
B. The terms and conditions of Golden’s employment as S&W’s President and Chief Executive
Officer are set forth in an Amended and Restated Employment Agreement executed on December 31, 2010
as of July 12, 2010 (the “Employment Agreement”).
C. S&W and Golden have determined that it is an appropriate time to execute the succession
plan that the Board of Directors has been discussing with Golden for more than a year.
D. In recognition of Golden’s long service to S&W, his cooperation in the succession plan
process, and his willingness to surrender various post-employment benefits, S&W and Golden have
reached a mutual agreement concerning Golden’s voluntary separation from employment with S&W, the
terms of which, by mutual agreement, vary from certain terms set forth set forth in the Employment
Agreement.
E. In return for the consideration to be provided to him by S&W as set forth in this
Agreement, Golden has voluntarily resigned his employment with
S&W effective September 26, 2011
(the “Separation Date”).
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual covenants set forth in this
Agreement, the parties hereto as follows:
1. Recitals; Effective Date. The recitals set forth above are true, accurate, and correct,
and are incorporated into the Agreement by this reference and made a material part of the
Agreement. The Agreement shall become effective on the eighth (8th) calendar day after the
Execution Date, so long as Golden has not revoked the Agreement prior to that time pursuant to
Section 14 herein (hereinafter, the “Effective Date”).
2. Employment-Related Compensation. Golden acknowledges and agrees that he has received from
S&W all compensation to which he is entitled for services provided to S&W through the Separation
Date and that he has received reimbursement from S&W of all reasonable business expenses incurred
by him through the Separation Date, if any, in accordance with S&W’s expense reimbursement policy
and practices.
3. Termination of Employment Agreement. In entering into this Agreement, the parties intend
to terminate the Employment Agreement in full and therefore acknowledge and agree that the
Employment Agreement shall be and is terminated as of the Execution Date.
4. Adequacy of Consideration. In consideration of the payment to be made to him by S&W as
provided in Section 5 below, which Golden acknowledges and agrees is sufficient consideration to
support the release of the Releasees identified in Section 6 of this Agreement, and which is in
addition to anything of value to which Golden is entitled, Golden waives all benefits and rights
arising under the Employment Agreement or arising under or out of his status as an employee of S&W,
including any base salary, bonus (including any bonus pursuant to the 2012 cash incentive bonus
plan), fringe benefits, restricted stock unit grants, vacations, reimbursement for business
expenses, reimbursement for insurance premiums (excluding coverage for COBRA), key person
insurance, and reimbursement for spousal attendance, to which he could be entitled under the
Employment Agreement or otherwise. S&W acknowledges and agrees that Golden’s agreement to accept
the payment to be made to him by S&W as provided in Section 5 below and to terminate the Employment
Agreement is sufficient consideration for its agreement to waive all benefits and rights it had
arising under the Employment Agreement, including its right to enforce those restrictive covenants
set forth in Section 5 of the Employment Agreement.
5. One Time Payment. Provided Golden does not revoke this Agreement pursuant to Section 14
herein, S&W shall make a one time, lump sum payment to Golden in
the gross amount of $987,835.00,
from which standard deductions for federal and state withholdings shall be made, within five days
of the Effective Date.
6. Release. Golden, for himself, his spouse, his marital community, and, as applicable, his
agents, attorneys, successors, and assigns, hereby fully, irrevocably, and unconditionally releases
S&W, its predecessors, subsidiaries, parent companies, affiliated entities, and the past and
present officers, directors, employees, fiduciaries, shareholders, agents, successors,
representatives and assigns of each and all of them, and all persons acting by, through, under or
in concert with them (hereinafter collectively referred to as “Releasees”), from any and all
claims, charges, complaints, liabilities, and obligations (collectively, “Claims”), which Golden
may have against S&W or any of the Releasees, whether now known or unknown, and whether asserted or
unasserted, that pertain, relate, or arise out of his employment relationship with S&W, including
the circumstances of his termination of employment and any Claims arising out of or relating to the
Employment Agreement. It is the intent of Golden and S&W that this release be limited solely to
any employment-related Claims, known or unknown, that could be asserted by Golden, including any
Claims under the Age Discrimination in Employment Act. By signing this Agreement, Golden does not
waive any rights or Claims that may arise after the Effective Date, nor does he waive any vested
rights he may have, if any, under any S&W sponsored group benefit plan, nor any Claim that cannot
be released as a matter of applicable law.
7. No Pending Claims; Covenant Not to Xxx; Preclusive Effect. Golden represents that he has
not filed, and he agrees not to file, any action or suit against S&W based on any of the Claims
released by this Agreement, and he acknowledges and agrees that this Agreement may be pled as a
complete bar to any action or suit by him asserting any Claims released by this Agreement against
any of the Releasees.
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8. Return of Property. Except as required in his capacity as a member of S&W’s Board of
Directors, Golden shall promptly return all items of S&W property he has or over which he has
control, including all records, designs, patents, business plans, financial statements, manuals,
memoranda, lists, and other property delivered to or compiled by Golden by or on behalf of S&W (or
its subsidiaries) or its representatives, vendors, or customers that pertain to the business of S&W
(or its subsidiaries), all equipment belonging to S&W, all code and computer programs and
information of whatever nature, tools, manuals, and any and all other materials, documents or
information, including Confidential Information in his possession or control, and that he will
retain no copies thereof. Golden also shall deliver promptly to S&W upon the Separation Date all
correspondence, reports, records, charts, advertising materials, and other similar data pertaining
to the business, activities or future plans of S&W (or its
subsidiaries) that has been collected by Golden.
9. Trade Secrets/Confidentiality. Golden acknowledges that, during the course of his
employment with S&W, he had access to various trade secrets, whether in existence or proposed, and
confidential information of S&W. Such information includes business plans, schematics, blue
prints, software, hardware, financial information, manuals, training programs, profit margins,
marketing plans, customer information, and the specific terms of S&W’s relationships or agreements
with its respective significant vendors or customers. Golden agrees that he shall not disclose such
information or use it in any way, at any time in the future, except to the extent such information
becomes publicly available through lawful and proper means, or to the extent that Golden is
required to disclose such information pursuant to subpoena. If such information is requested
pursuant to a subpoena, Golden must give immediate and timely notice to S&W, so that S&W has a
reasonable opportunity to seek judicial relief to preclude disclosure, if necessary. Without
limitation, the prohibition in this section includes Golden’s use of such information to directly
or indirectly solicit any manufacturer, manufacturer’s representative, or customer of S&W with whom
Golden had contact during his employment, and Golden’s use of such information to directly or
indirectly interfere with the advantageous business relationship(s) between S&W and any of its
customers, vendors or suppliers.
10. Confidential Information. Notwithstanding Golden’s termination of employment with S&W, at
all times following the Separation Date, Golden agrees to maintain in strict secrecy all
confidential or trade secret information relating to the business of S&W (the “Confidential
Information”) obtained by him in the course of his employment, and Golden shall not, unless first
authorized in writing by S&W, disclose to, or use for Golden’s benefit or for the benefit of, any
person, firm, or entity, any Confidential Information, except as required in the performance of his
duties, and consistent with his fiduciary obligations, as a member of S&W’s Board of Directors.
For purposes hereof, Confidential Information shall include without limitation any materials, trade
secrets, knowledge, or information with respect to management, operational, or investment policies
and practices of S&W; any business methods or forms; any names or addresses of customers or data on
customers or suppliers; and any business policies or other information relating to or dealing with
the management, operational, or investment policies or practices of S&W.
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11. Non-Solicitation.
a. Of Customers. Golden agrees that, for a period of 24 months following the Effective Date,
he will not directly or indirectly, for himself, or on behalf of, or in conjunction with, any other
person, company, partnership, corporation, or governmental entity, solicit or attempt to solicit or
otherwise disrupt or attempt to S&W’s relationship with or business expectancy with any customer of
S&W for the purpose of offering to provide or providing similar products or services as those
offered or provided S&W.. For purposes of this Agreement, “customer” means: (i) any person,
company, business, or any other entity that S&W did business with or that S&W reasonably expected
to do business with; and (ii) with which Golden had contact or learned confidential information
about during the 24 month period prior to the Separation Date, and includes the employees, agents,
and affiliates of the persons or entities which have a relationship with Company, if they have the
authority to make or affect decisions of those entities.
b. Of Employees. Golden agrees that, for a period of 24 months following the Effective
Date, he will not directly or indirectly, for himself, or on behalf of, or in conjunction with, any
other person, company, partnership, corporation, or governmental entity, solicit for employment,
seek to hire, or hire any person or persons who is employed by or was employed by S&W within 12
months of the Separation Date for the purpose of having any such employee engage in services that
are the same as or similar or related to the services that such employee provided for S&W.
12. Knowing and Voluntary; ADEA Waiver. Golden specifically understands and acknowledges that
the Age Discrimination in Employment Act (“ADEA”), as amended, provides him the right to bring a
claim against S&W if he believes that he has been discriminated against on the basis of age.
Golden represents and warrants that he was advised by the Company to consult with an attorney of
his own choosing concerning the provisions set forth herein, and that he has thoroughly discussed
all aspects of the Agreement with counsel of his choosing, or that he had the opportunity to do so.
Golden further represents and warrants that he has carefully read and fully understands all of the
provisions of the Agreement, including the fact that he is releasing all claims and potential
claims against S&W and the other Released Parties, and that he is entering into the Agreement
without coercion and with full knowledge of its significance and the legal consequences thereof.
Golden represents and warrants that as part of the Agreement, he is knowingly and voluntarily
releasing and waiving any claims he believes he may have under the ADEA.
13. Review. A copy of this Agreement was delivered to Golden on September 26, 2011. Golden
is advised that he has twenty-one (21) days from the date this Agreement was delivered to him to
consider this Agreement. If Golden executes the Agreement before the expiration of this 21 day
period, he acknowledges that he has done so for the purpose of expediting payment of the
consideration provided for herein, and that he has expressly waived his right to take 21 days to
consider the Agreement. This Agreement must be signed by Golden and returned to the individual
identified in Section 14 below no later than 21 days after the date it was delivered to Golden. If
this Agreement is not signed and returned by such date, it shall be void and have no legal effect.
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14. Revocation Period. Golden may revoke this Agreement for a period of seven (7) calendar
days from the date he signs this Agreement. Golden agrees that he must provide written notice of
revocation of this Agreement before the expiration date to Xxxxxxx X. Xxxxxxxx, Executive Vice
President, Chief Financial Officer and Treasurer, Xxxxx & Wesson, 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, XX 00000. Receipt of proper and timely notice of revocation by S&W cancels and voids
this Agreement. Provided that Golden does not provide notice of revocation, the Agreement will
become effective upon expiration of the revocation period, as provided in Paragraph 1 above.
15. Headings. The headings are for convenience of the parties, and are not to be
construed as terms and conditions of this Agreement.
16. Severability. Should any provision in this Agreement be declared or determined to be
illegal or invalid (with the exception of Section 6, in whole or in part), the validity of the
remaining parts, terms, or provisions shall not be affected and the illegal or invalid part, term,
or provisions shall be deemed not to be part of this Agreement.
17. Choice of Law. This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.
18. Amendment. This Agreement shall be binding upon the parties and may not be amended,
supplemented, changed, or modified in any manner, orally or otherwise, except by an instrument in
writing of concurrent or subsequent date signed by the parties.
19. Successors and Assigns. This Agreement is and shall be binding upon and inure to the
benefit of the heirs, executors, successors and assigns of each of the parties.
20. Non-Admission. This Agreement shall not in any way be construed as an admission by S&W
that it has acted wrongfully with respect to Golden, and S&W specifically denies the commission of
any wrongful acts against Golden.
21. Non-Disparagement. Golden agrees that he will not make any written or oral statement or
take any action which he knows or reasonably should know constitutes an untrue, disparaging, or
negative comment concerning S&W. S&W agrees that no authorized representative speaking on S&W’s
behalf will make any written or oral statement or take any action which he or she knows or
reasonably should know constitutes an untrue, disparaging, or negative comment concerning Golden.
If S&W’s Human Resources Department is contacted by prospective employers of Golden, S&W will
provide only the starting and ending dates of Golden’s employment at S&W and the last position
Golden held at S&W. S&W also will advise any such prospective employers that it is S&W’s policy to
release only such information.
22. Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together constitute one and the same instrument.
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| XXXXX & WESSON HOLDING CORPORATION | ||||||
9/26/11
|
By: | /s/ Xxxx X. Xxxxxx | ||||
Date
|
Its: | |||||
9/26/11
|
/s/ Xxxxxxx X. Xxxxxx | |||||
Date
|
Xxxxxxx X. Xxxxxx | |||||
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