TERMINATION AGREEMENT
and
RELEASE
and
AGREEMENT TO PROVIDE CONSULTING SERVICES
between
XXXXXXX XXXXXXXXX
and
TODAY'S MAN, INC.
This Agreement ("Agreement") is made this 31st day of January 2000 by
and between Xxxxxxx Xxxxxxxxx, residing at 000 Xxxxxxxxxxxx Xxxxxxxxx Xxxxxxxxx
#000, Xxxx Xxxxxx, Xxxxxxxxxxxx 00000 ("Consultant" or "Xxxxxxxxx") and Today's
Man, Inc., with an address at Moorestown West Corporate Center, 000 Xxxxxx
Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 ("TM"). Xxxxxxxxx and TM are each a party to
this Agreement and are collectively referred to hereunder as the "Parties".
NOW, THEREFORE, in consideration of the promises, agreements and
undertakings set forth herein, and other good and valuable consideration which
the Parties deem adequate, and in addition, following Xxxxxxxxx'x separation
from TM as Executive Vice President, TM desires to retain Xxxxxxxxx as an
independent contractor to consult on special projects and Xxxxxxxxx desires to
serve in such capacity on the terms and conditions set forth herein, Xxxxxxxxx
and TM each agree to be legally bound to all the terms and conditions set out in
this Agreement as follows:
1. Definitions. As used in this Agreement, any reference to TM
shall include its
predecessors and successors, and all of its past, present and
future shareholders, directors, officers, employees (other
than Xxxxxxxxx), representatives, attorneys, agents, assigns,
controlling corporations, affiliates and subsidiaries; and any
reference to Xxxxxxxxx shall include his respective heirs,
administrators, representatives, executors, legatees,
successors, attorneys, agents and assigns.
2. Consulting Duties. Effective February 1, 2000, Xxxxxxxxx will
cease his regular employment as Executive Vice President of
TM. For a period of twenty-one (21) months commencing February
1, 2000, Xxxxxxxxx will, upon request of the Chairman of the
Board or CEO of TM, make himself available from time to time
to perform such consulting assignments as shall be mutually
agreed upon. Xxxxxxxxx'x consulting obligation to TM shall not
be deemed to preclude him from consulting with, or becoming
employed by, any other entity.
3. General Release. Xxxxxxxxx acknowledges that TM has met any
and all obligations arising from his prior relationships with
TM. Xxxxxxxxx hereby releases and forever discharges TM of and
from any and all claims of any kind, whether or not now known,
which Xxxxxxxxx ever had, now has or hereafter may have,
individually or in any other capacity, against TM relating to
anything that occurred before the signing of this agreement
arising out of his relationship with TM, and specifically
including all contract claims, including but not limited to,
claims under the severance pay plan, and all common law
claims, all claims under the Age Discrimination in Employment
Act, the Civil Rights Act of 1964, as amended, the New Jersey
Law Against
2
Discrimination, the New Jersey Conscientious Employee
Protection Act, the Pennsylvania Human Relations Act, Older
Workers Benefit Protection Act and any other federal, state or
local law or regulation. It is understood that this release
does not apply to any claim arising out of events occurring
after the date of this Agreement.
4. Employment Rights. Xxxxxxxxx expressly acknowledges that he
is aware of his legal right to consider this Agreement for a
period of twenty-one (21) days and that the Agreement will
remain open during this period. At the sole option of
Xxxxxxxxx, this Agreement may be executed prior to the
expiration of this twenty-one (21) day period. TM hereby
advises Xxxxxxxxx to consult with an attorney prior to
executing this Agreement. Xxxxxxxxx acknowledges that he has
done so since being given this Agreement. Further, Xxxxxxxxx
has the right to revoke this Agreement within seven (7) days
of the execution thereof. Xxxxxxxxx expressly agrees that any
notice of revocation hereunder shall be in writing and shall
be deemed to have been duly given to TM if hand-delivered, or
if mailed, postage prepaid, by certified mail, return receipt
requested, within seven (7) days of the execution of this
Agreement to Xxxxx Xxxxxxx, Human Resources Department,
Moorestown West Corporate Center, 000 Xxxxxx Xxxxx,
Xxxxxxxxxx, XX 00000. The Agreement shall not become effective
until after such seven (7) day period has expired. Xxxxxxxxx
understands that if he revokes this Agreement, he will not be
entitled to the monies provided for hereunder.
5. Proprietary Information. At all times both during and after
this Agreement, Xxxxxxxxx shall not, except with TM's express
prior written consent, directly
3
or indirectly, communicate, disclose or divulge to any
individual, sole proprietorship, joint venture, partnership,
corporation, association or any governmental or
non-governmental entity or authority (collectively "Person")
or use for his own benefit or the benefit of any Person, any
confidential or proprietary knowledge or information (no
matter when or how acquired), concerning the conduct and
detail of the business of TM.
6. Return of Property.
a. Upon execution of this Agreement, Xxxxxxxxx will
immediately return to TM all of its "Property."
"Property" means all assets, correspondence, files,
customer and prospects lists, other lists, price
books, catalogues, technical data, notes, memoranda,
drawings, papers, books, disks, computers and related
materials, tapes, documents and any other materials
which contain business, confidential and/or
proprietary information of TM. Property also means
all duplicates or copies thereof.
b. Should Xxxxxxxxx require any of TM's Property to
fulfil his obligations under this Agreement such
Property will be provided as determined by TM.
7 Nature of Consulting Relationship. Xxxxxxxxx shall perform his
consulting duties in his capacity as an independent contractor
and not an employee of TM. Xxxxxxxxx shall be free to exercise
his discretion and independent judgment as to method and means
of performance of his services pursuant to this Agreement and
shall in no sense be considered to be an employee. Xxxxxxxxx
will devote such business time and effort to the services set
forth
4
hereunder to fully, timely and properly complete all assigned
projects and tasks. Xxxxxxxxx will perform on a best effort
basis and shall be provided with appropriate personnel and
equipment as to be agreed.
8. Non disparagement. Xxxxxxxxx and TM both agree that they will
make no statements calculated or intended to be harmful or
derogatory concerning each of them or their respective
officers, agents, or employees, except as required under
subpoena or other governmental compulsion.
9. Non solicitation. Xxxxxxxxx agrees that for the term of this
Agreement, he will not solicit or seek to persuade any
employee, consultant or independent contractor of TM to
discontinue his/her employment or relationship with TM, or to
become employed or engaged in any business directly or
indirectly competitive with TM.
10. Payment to Xxxxxxxxx.
a. In consideration for the promises, agreement and
undertakings set forth herein, TM agrees to pay
Xxxxxxxxx Twenty-One Thousand, Six Hundred Forty-Two
Dollars and sixty-seven cents ($21,642.67) on
February 1, 2000 and on the first day of each
succeeding calendar month through and including
October 1, 2001.
b. TM will also pay Xxxxxxxxx health insurance premiums
at the same level of coverage on the date hereof
through October 31, 2001.
c. In addition to any other remedies available to it,
upon receipt of competent evidence of any breach of
this Agreement by Xxxxxxxxx, XX may cease payment
under this paragraph, provided it first notifies
Xxxxxxxxx and affords an opportunity for discussion
and/or
5
remediation within thirty (30) days of such notice.
d. If TM breaches this Agreement by missing any payment
required hereby (a payment which is not made within
seven (7) days of written notice from Xxxxxxxxx to TM
- Attention CFO is a missed payment) then in his sole
discretion, Xxxxxxxxx may:( i) xxx to enforce the
terms of this Agreement; or (ii) pursue before the
appropriate Courts or Agencies any claims previously
waived in this Agreement. TM agrees not to plead any
statute of limitations as an affirmative defense in
the event of pursuing such claims.
11. Nature of Agreement. It is understood and agreed by the
parties that this Agreement does not constitute an admission
of liability or wrongdoing on the part of TM; and that by
entering into this Agreement, TM does not admit that there has
been any unlawful or wrongful act whatsoever committed against
any party or person, which makes TM liable in any manner.
Except to the extent necessary to enforce the Agreement, it is
further agreed that neither this Agreement nor any part of it
is to be considered or used or admitted into evidence in any
proceeding of any character, judicial, administrative, or
otherwise. In the event this Agreement is not finally
consummated, it and any preceding discussions concerning the
proposed terms of this Agreement shall be without prejudice to
any party, and shall not be used in any subsequent proceeding,
judicial, administrative, or otherwise.
12. Entire Agreement. This Agreement contains and constitutes the
entire understanding and agreement between the parties hereto
and supersedes and cancels all previous negotiations,
agreements, commitments, and writings in connection herewith.
6
Xxxxxxxxx affirms that the only consideration for the signing
of this Agreement are the terms stated herein, and no other
promises or agreements of any kind have been made to or with
him by any person or entity whatsoever to cause him to sign
this Agreement, and that he fully understands the meaning and
intent of this Agreement.
13. Amendment. This Agreement shall be binding upon Xxxxxxxxx and
TM and may not be abandoned, supplemented, amended, changed,
or modified in any manner, orally or otherwise, except by an
instrument in writing of concurrent or subsequent date, signed
by Xxxxxxxxx and a duly authorized representative of TM.
14. Construction. This Agreement shall be governed by and
construed in accordance with the laws of the State of
New Jersey.
The captions herein are inserted for convenience and do not
constitute a part of this Agreement and shall not be
admissible for the purposes of providing the intent of the
parties.
Xxxxxxxxx states and represents that he has carefully read
this Agreement, that he has discussed it with his attorney,
understands the contents hereof, freely and voluntarily
assents to all the terms and conditions hereof, and signs the
same as his own free act. TM represents and warrants that this
Agreement is the duly authorized act of TM and that the
undersigned has the actual authority to execute this Agreement
on behalf of TM and bind it to the obligations set forth
herein.
/s/ Xxxxxxx Xxxxxxxxx 01/31/00
----------------------------------------------------- ---------------------
Xxxxxxx Xxxxxxxxx Date
For Today's Man, Inc.
/s/ Xxxxx X. Xxxxxxx 01/31/00
----------------------------------------------------- ---------------------
Xxxxx X. Xxxxxxx, EVP & CFO Date
