Exhibit 10(k)
SEPARATION AGREEMENT
---------- ---------
Xxxxxxxx X. Xxxxxxxx
--------------------
September 18, 2002
------------------
LESCO, Inc. and you, Xxxxxxxx X. Xxxxxxxx, hereby agree that you have left your
employment with LESCO, Inc. effective September 18, 2002. It is understood and
agreed by you and by LESCO, Inc. that the termination of your employment is a
result of the elimination by LESCO, Inc. of your position as Sr. Vice President
General Counsel and Corporate Secretary with LESCO, Inc. effective September 18,
2002. LESCO has agreed to provide you with a Separation Plan which is attached
hereto and made a part hereof.
It is understood that receipt of the consideration set forth in the Separation
Plan is contingent upon you returning to LESCO, Inc. all property belonging to
LESCO, Inc. within thirty (30) days of your last work day, and also contingent
upon you agreeing to the terms of this Agreement. You waive any claim you might
have to reemployment and agree that you will not seek reemployment with LESCO,
Inc. at any time in the future. You further acknowledge and agree that you are
not otherwise entitled to receive the Separation Pay and certain other benefits
set forth in the Separation Plan.
You understand and agree that this Agreement and Separation Plan described in
this Agreement do not constitute an admission by LESCO, Inc. or any of its
employees, officers, directors, representatives, or related entities of any
liability to you or wrongdoing whatsoever.
You understand and agree that you will not make any derogatory, defamatory or
libelous remarks about LESCO, Inc., its employees, officers, directors,
representatives, related entities, or its customers. LESCO, Inc. agrees that it
will not make any derogatory, defamatory or libelous remarks about you. In
response to any prospective employer of you contacting LESCO, Inc. as an
employment reference, LESCO, Inc. will only disclose your dates of employment,
final base salary (when requested in writing) and positions held, and shall make
no other statement.
You agree to keep the terms of this Agreement and of your Separation Plan
confidential, and you will not publicize it or communicate it in any newspaper,
electronic media or other public or private forum, or in any manner whatsoever,
except to your immediate family and legal, financial and other similar advisors,
provided that they agree to keep this Agreement and your Separation Plan
confidential. Also, you will not divulge any of LESCO, Inc.'s proprietary
information, client lists or other confidential business data to its competitors
or to any third parties.
You acknowledge that no promise or agreement not expressed in this Agreement;
the Separation Plan; and the applicable bonus plans, stock option plans and
benefit plans pursuant thereto has been made to you, and that this Agreement;
the Separation Plan; and the applicable bonus plans, stock option plans and
benefit plans pursuant thereto constitutes the complete agreement between you
and LESCO, Inc.
In consideration of the above mentioned Separation Plan, the adequacy and
receipt of which is hereby acknowledged, and except for your rights which accrue
under this Agreement and the Separation Plan, LESCO, Inc. is released from any
and all liability related to or arising from your employment and/or termination
of your employment. You agree that by placing your signature on this Separation
Agreement you do waive and fully release LESCO, Inc., and its employees,
officers, directors, representatives, and related entities from any claims,
charges, actions and/or demands, known or unknown, now existing, relating in any
way to your employment and/or the termination of your employment with LESCO,
Inc., including, but not limited to, any claims or demands under any federal,
state or local law, statute, order or ordinance, including, but not limited to,
those relating to nondiscrimination in employment because of race, sex, color,
national origin, age or disability. You specifically waive any rights or claims
arising under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.
Section 623, ET SEQ. This release will not apply to rights or claims under the
ADEA which arise after this Agreement is signed by you.
Except for your rights which accrue under this Agreement and the Separation
Plan, you promise not to xxx XXXXX for any reason relating to your employment
with or termination from LESCO. And, if you break this promise not to xxx, you
agree to waive any right to recovery under any such suit brought by you or any
governmental agency on your behalf, and you also agree to pay all of LESCO's
damages, costs and expenses, including LESCO's attorney's fees, in defending any
such suit.
You understand that the Agreement for Officers, Zone Vice Presidents, Key
Executives, and National Account Executives that you previously signed, and all
restrictive covenants contained in that Agreement, shall remain in full force
and effect until provisions in the Agreement expire as stated therein.
You may xxx XXXXX only for breach of this Agreement and the Separation Plan by
LESCO. If you prevail in any such suit (through all levels of appeal and
remand), then LESCO shall pay all of your reasonable costs and expenses,
including attorney's fees, that relate to such suit. Conversely, LESCO may xxx
you for a breach of this Agreement by you. If LESCO prevails in any such suit
against you (through all levels of appeal and remand), then you shall pay all of
LESCO's reasonable cost and expenses, including attorney's fees, that relate to
such suit.
Notwithstanding anything to the contrary in this Agreement, or in the Separation
Plan, LESCO shall indemnify, hold harmless and defend you and your heirs and
successors, from and after the date hereof, against and in respect of any loss,
cost, damage, suit, action, or claim (including reasonable attorney's fees,
costs, and expenses) incurred, sustained or suffered by you as a result of your
acts, actions, or omissions to act as an employee or officer of LESCO, but only
to the extent permitted under the Articles of Incorporation, Bylaws, or
Regulations of LESCO, and only to the extent permitted by relevant law; and
provided further, however, that such obligations of LESCO shall be limited to
those situations where your acts or omissions were reasonable and within the
course and scope of your duties and responsibilities and were not reckless,
willful or wanton.
This Agreement and the Separation Plan shall extend to and be binding upon the
parties hereto and their respective heirs, successors and assigns.
You acknowledge and agree that you have been given a period of twenty-one (21)
days (until October 9, 2002) within which to consider the terms of this
agreement. You acknowledge that there are no other LESCO employees in your job
classification and there are no LESCO employees in your job classification being
terminated. LESCO, Inc. hereby advises that you consult with an attorney or any
other professional, such as accountants and financial advisors, concerning the
terms of this Agreement and your entry into it. Of course, you will be
responsible for your fees and costs should you choose to have an attorney and/or
other professional review this Agreement.
For a period of seven (7) days after you sign the Agreement and return it to
LESCO, Inc. you may revoke it by advising LESCO, Inc., to the attention of
Xxxxxxx Xxxxxxxx, Vice President Human Resources, in writing that you have
decided to revoke it. This Agreement will not become effective until that period
has expired.
LESCO, INC.
By: /s/ Xxxxxxx Xxxxxxxx Signature: /s/ Xxxxxxxx X. Xxxxxxxx
----------------------------- ----------------------------
Xxxxxxx Xxxxxxxx Xxxxxxxx X. Xxxxxxxx
Date: September 18, 2002 Date: October 3, 2002
----------------------------
ATTACHMENT TO SEPARATION AGREEMENT FOR XXXXXXXX X. XXXXXXXX
DATED SEPTEMBER 18, 2002
Xxxxxxxx X. Xxxxxxxx
Separation Plan
Effective September 18, 2002
INTRODUCTION
Effective September 18, 2002 your position as Sr. Vice President General Counsel
and Corporate Secretary has been eliminated.
Please review the details of the attached Separation Agreement carefully and
sign on the line provided. Please return one copy of the signed agreement to
Xxxxxxx Xxxxxxxx on or before October 9, 2002. You will not receive your
separation pay until we receive your signed Separation Agreement and the 7-day
period for revoking the agreement has expired.
SEPARATION PAY
You will receive separation pay equal to your monthly base salary, on a biweekly
basis, at the rate in effect as of the date hereof for a period of twelve (12)
months. You will also be paid for any accrued unused vacation for 2002.
BONUS
You will be eligible for a lump sum bonus payment pursuant to the 2002 LESCO
Bonus Program of 40% of your base salary, provided that the objectives listed in
the Bonus Plan are met. You are also eligible for payment pursuant to the
2000-2002 Restricted Shares Plan, provided that the objectives listed in the
Restricted Share Plan are met. Payment will be made to you under those Plans no
later than those payments made to similarly situated employees.
STOCK OPTIONS
Subject to approval by the Board of Directors, of the option grants made to you
under the LESCO, Inc. 2000 Stock Incentive Plan on February 15, 2002 for 45,000
common shares, 30,000 will vest immediately, and you will forfeit the remaining
15,000 common shares that would have vested on December 31, 2004. In
consideration of the vesting of the 30,000 shares subject to the February 15,
2002 option grant and the Separation Pay Period extending from September 19,
2002 through September 18, 2003, you agree that you are forfeiting the 41,979
common shares subject to option which were granted prior to and vested on or
prior to December 31, 2000, leaving you with 38,333 common shares subject to
option (8,333 from the 2001 stock option grant and 30,000 from the 2002 stock
option grant made to you) pursuant to and governed by the terms of the LESCO,
Inc. 2000 Stock Incentive Plan.
The attached chart details all stock options and their expiration dates in
effect on September 18, 2002.
BENEFIT COVERAGE
You will continue to receive health and dental benefits through September 18,
2003. Enrollment for the 2003 LESCO benefit program will be forwarded to you by
the end of November 2002. COBRA information to extend your health care benefits
(after your eligibility for LESCO's benefits ceases on September 30, 2003) will
be sent directly to your home address from LESCO's COBRA vendor.
Your life and accidental death and dismemberment insurance will terminate on
September 18, 2002. You will be given the opportunity to convert you life
insurance coverage, provided you apply for conversion within 31 days of the date
your coverage ends. A MetLife Conversion of Group Life Insurance form will be
mailed to you under separate cover. Your short term and long term disability
coverage will also terminate on September 18, 2002.
In lieu of your participation in the life and accidental death and dismemberment
insurance plan you will be provided a cash lump-sum payment of $692.00.
401(k) AND RESTORATION PLAN
Participation in the LESCO, Inc., Stock Investment & Salary Saving Plan and
Trust and the LESCO, Inc., 401(k) Restoration Plan will end as of September 18,
2002.
In lieu of your participation in the 401(k) plan you will be provided with a
lump-sum cash payment of $5,638.00.
OUTPLACEMENT SERVICES
An outplacement program has been established for you at no cost to you. This
program is through Xxx Xxxxx Xxxxxxxx, 00000 Xxxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxx
Xxxxxxx, Xxxx 00000. They will provide an executive level program for a 12-month
period, Beginning on September 30, 2002.
UNEMPLOYMENT COMPENSATION
You should contact the Bureau of Employment Services to receive a determination
of benefits. LESCO will not oppose the granting of such benefits.
ASSOCIATE DISCOUNT
Your participation in the Associate Discount Program will cease as of September
18, 2002.
COMPANY PROPERTY
Please return all company property and company documents, i.e., credit cards,
strategic plan documents, computer disks, you lap top computer, keys, key cards,
all files and documents, etc. to Xxxxxxx Xxxxxxxx immediately. You will not
receive your Separation Pay until all company property and documents are
returned.
OTHER
Non-LESCO business mail will be forwarded to your home address. Persons calling
LESCO who ask for you for non-LESCO business reasons will be told that you are
no longer employed by LESCO, but that you can be contacted on your cell phone at
000-000-0000 or at your home number at 000-000-0000. When you obtain phone voice
mailbox at Xxx Xxxxx Xxxxxxxx and provide Xxxxxxx Xxxxxxxx with that phone
number, we will also tell such persons who call for you that you can be
contacted at that office number as well.
QUESTIONS
Please contact Xxxxxxx Xxxxxxxx should you have questions regarding this
Separation Plan.
LESCO, INC.
By: /s/ Xxxxxxx Xxxxxxxx Signature: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------- ----------------------------
Xxxxxxx Xxxxxxxx Xxxxxxxx X. Xxxxxxxx
Date: September 18, 2002 Date: October 3, 2002
----------------------------
