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EXHIBIT 10.52
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (the "Agreement") is
entered into as of October 26, 2000, by and between WestPoint Xxxxxxx Inc., a
Delaware corporation (the "Company") and Xxxx X. Xxxxxx, an individual resident
of New Jersey (the "Executive").
I. STATEMENT OF BACKGROUND INFORMATION
A. Executive has been employed as Executive Vice President/Sales
and Marketing of the Company at the Company's offices in New York, New York, and
the Company and Executive are parties to an Employment Agreement dated as of
July 1, 2000 (the "Employment Agreement").
B. Executive has resigned his employment with the Company
effective October 16, 2000.
C. Executive and the Company desire to enter into this Agreement
to settle fully and finally all differences between them, including any
differences that might arise under the Employment Agreement and Executive's
employment and termination of employment with the Company.
II. STATEMENT OF AGREEMENT
In consideration of the mutual covenants and obligations hereinafter
set forth, the receipt and adequacy of which are expressly acknowledged, the
parties hereto, intending to be legally bound, do hereby agree as follows:
1. Termination of Employment. Executive's Employment shall
terminate effective on the 16th day of October 2000 (the "Termination Date").
For purposes of this Agreement, the word "Term" shall mean a period of three (3)
years from the Termination Date, it being understood that the Term of this
Agreement replaces the Term of Employment under the Employment Agreement, which
is superceded by this Agreement.
2. Compensation to Executive.
In consideration for the general release and for the covenants
contained herein, the Company agrees to pay to Executive, the following amounts,
subject to the terms hereof. Except as set forth in this Agreement, Executive
acknowledges that there is no other compensation, wages, salary, or other
amounts due and owing to him from the Company:
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A. Cash Compensation.
i. Final Paycheck. Company shall pay within 60 days of
the Termination Date, a lump sum amount equal to $27,692, which shall represent
payment of the Executive's base salary through the Termination Date and any
accrued unused vacation pay.
ii. Continued Compensation. For the remainder of the Term
of this Agreement, the Company shall pay the Executive an amount equal to the
Executive's annual base salary in effect as of the Termination Date, payable in
equal installments in accordance with its usual and customary payroll practices.
iii. MIP Bonus Replacement. Company will pay to Executive
three (3) consecutive annual lump sum payments of two-hundred forty thousand
dollars ($240,000.00), payable in February of the next three calendar years.
These payments represent Executive's target bonus under the Management Incentive
Plan.
B. Equity Compensation. The outstanding unvested award of 34,073
shares made to Executive prior to the Termination Date under the Company Key
Employee Stock Bonus Plan shall continue to vest in accordance with the original
vesting schedule related to each individual award. Executive's right to all
unearned shares shall terminate on the Termination Date. Any stock options or
similar awards made to Executive under the Company Stock Option Plan which
require exercise by the holder shall also become immediately exercisable upon
the Effective Date of this Agreement, and may be exercised by Executive within
the time limit set forth in the Plan, ninety (90) days from the Termination
Date, and through the procedure set forth in the Plan.
C. Benefits Compensation. Throughout the Term, the Company shall
continue to make available medical and dental benefits to the Executive, and
members of the Executive's family who are enrolled in the medical and dental
plans at the Termination Date, at least equal to those which would have been
provided in accordance with the benefit plans Executive participated in during
his employment. Executive will be responsible for paying the full cost of
coverage for such benefits. This coverage shall be in addition to and shall not
reduce any continuation coverage required under the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA"); provided, however, that such benefits
shall cease if the Executive becomes eligible to receive medical or dental
benefits under the plan of another employer.
D. Outplacement Services. For a period of twelve (12) months
after the Effective Date, or until such earlier time as Executive obtains other
employment, Company will provide Executive with appropriate outplacement
services, to assist Executive in obtaining other employment, provided, however,
that such outplacement services shall not assist Executive in breaching any of
the non-competition covenants in Section 6 herein.
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3. Deductions and Withholding; Expenses. Executive agrees that
the Company may withhold from any and all compensation paid to and required to
be paid to Executive pursuant to this Agreement, all federal, state, local
and/or other taxes which the Company determines are required to be withheld in
accordance with applicable statutes and/or regulations then in effect. For
purposes of this Agreement and calculations hereunder, all such deductions and
withholdings shall be deemed to have been paid to and received by Executive.
4. Release of Company. Except for the obligations of Company
under this Agreement, Executive, for himself, his successors, assigns,
attorneys, and all those entitled to assert his rights, now and forever hereby
releases and discharges Company and its respective officers, directors,
stockholders, trustees, employees, agents, parent corporations, subsidiaries,
affiliates, estates, successors, assigns and attorneys, (the "Released Parties")
from any and all claims, actions, causes of action, sums of money due, suits,
debts, liens, covenants, contracts, obligations, costs, expenses, damages,
judgments, agreements, promises, demands, claims for attorney's fees and costs,
or liabilities whatsoever, in law or in equity ("Claims"), which Executive ever
had or now has against the Released Parties, including any Claims arising by
reason of or in any way connected with any employment relationship or Employment
Agreement which existed between Company, or any of its parents, subsidiaries,
affiliates, or predecessors, and Executive. It is understood and agreed that
this Agreement is intended to cover all Claims which may be traced either
directly or indirectly to the aforesaid employment relationship, or the
termination of that relationship, that Executive has, had, or purports to have,
from the beginning of time to the present, whether known or unknown, that now
exists, no matter how remotely they may be related to the aforesaid employment
relationship, including, but not limited to, Claims for employment
discrimination under federal or state law; Claims arising under Title VII of the
Civil Rights Act, 42 U.S.C. ss. 2000(e), et seq., the Americans With
Disabilities Act, 42 U.S.C. ss. 12101 et seq. or the Age Discrimination in
Employment Act, 29 U.S.C. ss. 621, et seq.; Claims for statutory or common law
wrongful discharge; Claims for attorney's fees, expenses and costs; Claims for
defamation; Claims for intentional infliction of emotional distress; Claims for
wages or vacation pay; Claims for benefits, including any Claims arising under
the Employee Retirement Income Security Act, 29 U.S.C. ss. 1001, et seq.
Without limiting the generality of the foregoing, Executive agrees that
by executing this Agreement, he has released and waived any and all Claims he
has or may have as of the date of this Agreement under the Age Discrimination in
Employment Act, 29 U.S.C. ss. 621, et seq. It is understood that Executive is
advised to consult with an attorney prior to executing this Agreement; that he
may, before executing this Agreement, consider this Agreement for a period of
twenty-one (21) calendar days; and that he is receiving consideration for this
Agreement to which he was previously not entitled. It is further understood that
this Agreement is not effective until seven (7) calendar days after the
execution of this Agreement and that Executive may revoke this Agreement within
seven (7) calendar days from the date of execution of this Agreement.
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In the event Executive shall breach or attempt to rescind this
Agreement or shall institute an action that would otherwise be subject to this
release after the Effective Date, Executive agrees that he will first return to
the Company all consideration received hereunder and the Company shall be
entitled to all attorneys' fees and costs incurred in defending any Claim that
Executive purports to release in this Agreement.
5. Return of Company Property. As soon as practicable, but in no
event later than five (5) days after the Effective Date, Executive will return
to the Company all property of the Company then in his possession, including,
but not limited to, any cellular phones, computers, printers, Palm Pilots,
files, records, customer information, Confidential Information, Trade Secrets,
and any written or electronic information that might constitute non-public
insider information under the Securities and Exchange Act of 1934. Upon return
of all property, Executive shall represent to the Company that he has no other
Company property in his possession.
6. Restrictions on Conduct of the Executive.
A. General. The Executive and the Company understand and
agree that the purpose of the provisions of this Section 6 is to protect the
legitimate business interests of the Company, including the protection of
Confidential Information and Trade Secrets, and is not intended to impair or
infringe upon the Executive's right to work, earn a living, or acquire and
possess property from the fruits of his labor. The Executive hereby acknowledges
that the post-employment restrictions set forth in this Section 6 are reasonable
and that they do not, and will not, unduly impair his ability to earn a living.
Therefore, subject to the limitations of reasonableness imposed by law, the
Executive shall be subject to the restrictions set forth in this Section 6.
B. Restrictive Covenants.
i. Restriction on Disclosure and Use of
Confidential Information and Trade Secrets. Executive hereby agrees that the
Executive shall not, directly or indirectly, reveal, divulge, or disclose to any
entity any Confidential Information, and the Executive shall not, directly or
indirectly, at any time for a period of two (2) years from the Termination Date
use or make use of any Confidential Information in connection with any business
activity. The Executive shall not directly or indirectly transmit or disclose
any Trade Secret of the Company to any Person, and shall not make use of any
such Trade Secret, directly or indirectly, for himself or for others. This
Agreement is not intended to, and does not alter either the Company's rights or
the Executive's obligations under any state or federal statutory or common law
regarding trade secrets and unfair trade practices.
For purposes of this Agreement, "Confidential Information"
means all information regarding the Company, its activities, business or clients
that is the subject of reasonable efforts by the Company to maintain its
confidentiality and that is not generally disclosed by practice or authority to
persons not employed by the Company, but that does not rise to the level of a
Trade Secret. Confidential Information shall include, but is not
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limited to, financial plans and data concerning the Company; management planning
information; business plans; operational methods; market studies; marketing
plans or strategies; product development techniques or plans; customer lists;
details of customer contracts; current and anticipated customer requirements;
past, current and planned research and development; business acquisition plans;
and new personnel acquisition plans. Confidential Information shall not include
information that has become generally available to the public by the act of one
who has the right to disclose such information without violating any right or
privilege of the Company. This definition shall not limit any definition of
"confidential information" or any equivalent term under state or federal law.
"Trade Secrets" means all information, with regard to form, including,
but not limited to, technical or nontechnical data, a formula, a pattern, a
compilation, a program, a device, a method, a technique, a drawing, a process,
financial data, financial plans, product plans, distribution lists or a list of
actual or potential customers, advertisers or suppliers which is not commonly
known by or available to the public and which information: (A) derives economic
value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use; and (B) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy. Without limiting the
foregoing, Trade Secret means any item of Confidential Information that
constitutes a "trade secret(s)" under the common law or statutory law of the
State of New York.
ii. Nonsolicitation of Protected Employees. Executive
hereby agrees that for a period of two (2) years from the Termination Date, the
Executive shall not directly or indirectly on the Executive's own behalf or as a
principal, owner, partner, shareholder, joint venturer, investor, member,
trustee, director, officer, manager, employee, agent, representative or
consultant of any individual, corporation, partnership, joint venture, limited
liability company, association or other entity or enterprise, solicit or induce
any Protected Employee to terminate his or her employment relationship with the
Company or to enter into employment with any other Person. "Protected Employees"
means employees of the Company who were employed by the Company at any time
within six (6) months prior to the Termination Date.
iii. Restriction on Relationships with Protected
Customers. Executive hereby agrees that for a period of two (2) years from the
Termination Date, the Executive shall not directly or indirectly on the
Executive's own behalf or as a principal, owner, partner, shareholder, joint
venturer, investor, member, trustee, director, officer, manager, employee,
agent, representative or consultant of any individual, corporation, partnership,
joint venture, limited liability company, association or other entity or
enterprise, solicit, divert, take away or attempt to solicit, divert or take
away a Protected Customer for the purpose of providing competitive services or
products with the Company; provided, however, that the prohibition of this
covenant shall apply only to Protected Customers with whom the Executive had
Material Contact on the Company's behalf during the twelve (12) months
immediately preceding the termination of his employment hereunder. For purposes
of this Agreement, the Executive had "Material Contact" with a Protected
Customer if (a) he had business dealings with the Protected
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Customer on the Company's behalf; (b) he was responsible for supervising or
coordinating the dealings between the Company and the Protected Customer; or (c)
he obtained Trade Secrets or Confidential Information about the customer as a
result of his association with the Company. "Protected Customers" means any
Person to whom the Company has sold its products or services or solicited to
sell its products or services during the twelve (12) months prior to the
Termination Date.
iv. Noncompetition with the Company. In
consideration of the compensation and benefits being paid and to be paid by the
Company to the Executive hereunder, and in consideration of Executive's former
employment with the Company, Executive hereby agrees that, for a period of two
(2) years from the Termination Date, the Executive will not, without prior
written consent of the Company, directly or indirectly seek or obtain a
Competitive Position in the Restricted Territory with a Competitor. "Competitive
Position" means any employment with a Competitor in which the Executive will use
or is likely to use any Confidential Information or Trade Secrets, or in which
the Executive has duties for such Competitor that are the same or similar to
those services performed by Executive for the Company. "Restricted Territory"
means the United States of America. "Competitor" means any corporation,
partnership, joint venture, limited liability company, association or other
entity or enterprise engaged in the direct sale and marketing to retailers of
textile home fashion products within the same distribution channels and market
as the Company.
C. Enforcement of Restrictive Covenants.
i. Rights and Remedies Upon Breach. In the
event the Executive breaches, or threatens to commit a breach of, any of the
provisions of the Restrictive Covenants, the Company shall have (a) the right
and remedy to enjoin the Executive from violating or threatening to violate the
Restrictive Covenants it being agreed that any breach or threatened breach of
the Restrictive Covenants would cause irreparable injury to the Company and that
money damages would not provide an adequate remedy to the Company; and (b) the
right and the remedy to cease payment of any continuing compensation that would
otherwise be due to Executive under this Agreement.
ii. Severability of Covenants. The Executive
acknowledges and agrees that the restrictive covenants herein are reasonable and
valid in time and scope and in all other respects. The covenants set forth in
this Agreement shall be considered and construed as separate and independent
covenants. Should any part or provision of any covenant be held invalid, void or
unenforceable in any court of competent jurisdiction, such invalidity, voidness
or unenforceability shall not render invalid, void or unenforceable any other
part or provision of this Agreement. If any portion of the foregoing provisions
is found to be invalid or unenforceable by a court of competent jurisdiction
because its duration, the territory, the definition of activities or the
definition of information covered is considered to be invalid or unreasonable in
scope, the invalid or unreasonable term shall be redefined, or a new enforceable
term provided, such that the intent of the Company and the Executive in agreeing
to the provisions of this Agreement
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will not be impaired and the provision in question shall be enforceable to the
fullest extent of the applicable laws.
7. Confidentiality and Non-Disparagement. Executive and the
Company covenant and warrant that they have not and will not disclose or
publish, verbally, in writing or otherwise, to any person or entity the amount
of consideration passing pursuant to this Agreement, or any other term or
consideration passing pursuant to this Agreement. The parties specifically
except from this limitation the following: as to Executive, his tax advisor(s),
his immediate family, and the Internal Revenue Service; as to the Company, its
attorneys, accountants, directors, and only those employees determined to have a
bona fide need to know the information, in the Company's good faith
determination, as well as any disclosures required by state or Federal law,
including, but not limited to the Securities and Exchange Act of 1934. Executive
and the Company further covenant and warrant that neither will make any
statements or comments of a defamatory or disparaging nature to third parties,
including the Company's customers or potential employers of Executive, regarding
Executive, the Company or its directors, officers, personnel, or products.
Executive further agrees that, should he breach the obligations set forth in
this Paragraph 7, the Company will be entitled to cease payment of all
continuing consideration for the remainder of the Term of this Agreement.
Executive further agrees that any breach of this paragraph shall cause
irreparable harm to the Company, and nothing herein shall prohibit the Company
from seeking equitable relief, including an injunction, in the case of a breach
of the terms of this paragraph.
8. Entire Agreement. This Agreement embodies the entire agreement
of the parties and supercedes any prior written or oral Agreement, including,
without limitation, the Employment Agreement between the parties. This Agreement
may not be changed or terminated orally but only by an agreement in writing
signed by the parties hereto.
9. Waiver. The waiver by the Company of a breach of any provision
of this Agreement by the Executive shall not operate or be construed as a waiver
of any subsequent breach by him. The waiver by the Executive of a breach of any
provision of this Agreement by the Company shall not operate or be construed as
a waiver of any subsequent breach by the Company.
10. Governing Law. This Agreement shall be subject to, and
governed by, the internal laws of the State of New York, without regard to
choice of law principles.
11. Assignability; Successors. The obligations of Executive may
not be delegated and, Executive may not, without the Company's written consent
thereto, assign, transfer, convey, pledge, encumber, hypothecate or otherwise
dispose of this Agreement or any interest herein. Any such attempted delegation
or disposition shall be null and void and without effect.
12. Effective Date. The Effective Date of this Agreement shall be
seven (7) days after it is fully executed by the parties, and Executive shall
have the right to revoke the Agreement during that period (the "Revocation
Period"); provided, however, that
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Executive shall be bound by all restrictive covenants dating from the
Termination Date during the Revocation Period, and any breach of this Agreement
by Executive during that Revocation Period shall be construed as a revocation of
this Agreement.
13. Paragraph Headings. The paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
14. 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
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
WESTPOINT XXXXXXX INC.
By: /s/ Xxxxxxxx X. Xxxxx, Xx.
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Xxxxxxxx X. Xxxxx, Xx.
Chairman of the Board and Chief
Executive Officer
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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