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EXHIBIT 10.11
EMPLOYMENT TERMINATION AGREEMENT
This Employment Termination Agreement ("Agreement") is made effective
the 27th day of March, 1998, between Barry's Jewelers, Inc. (referred to as
"Employer") and Xxxxxx X. Xxxxxxxxx and Xxxxx Xxxxxxxxx (collectively,
"Employees"), and is made with knowledge of the following facts:
A. Xxxxxx X. Xxxxxxxxx asserts various claims pursuant to his
employment agreement, dated as of May 1, 1997, with Employer ("the Xxxxxx X.
Xxxxxxxxx Employment Agreement") and arising out of his employment with
Employer. Xxxxx Xxxxxxxxx claims monies owed for unreimbursed expenses, in an
amount not yet determined, and vacation pay of one week in the gross amount of
$1,153.50.
B. The purpose of this Agreement is to fully implement the desire
and agreement of the parties to terminate Xxxxxx X. Xxxxxxxxx'x employment and
to resolve any and all claims of Employees against Employer, and of Employer
against Employees, as later described in this Agreement.
The parties agree as follows:
1. Xxxxxx X. Xxxxxxxxx'x employment is deemed terminated by
Employer effective March 27, 1998. Xxxxxx X. Xxxxxxxxx hereby resigns from the
board of Employer effective March 27, 1998.
2. Settlement Amount. On or before the tenth day following
execution of this Agreement by Employees, Employer shall pay or cause to be
paid to Xxxxxx X. Xxxxxxxxx, in consideration for the releases and covenants
contained herein, the sum of Four Hundred and One Thousand Dollars and No Cents
($401,000.00), subject to applicable withholding for taxes,
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by wire transfer to Mellon Bank, Pittsburgh, Pennsylvania, ABA 000000000, Credit
Xxxxxxx Xxxxx Account No. 0000000 for the account of Xxxxxx X. and Xxxxx
Xxxxxxxxx, Account No.234-78712. At the same time, Employer shall pay, by wire
transfer to the same account set out above, to Xxxxxx X. Xxxxxxxxx the sum of
$30,769.24 subject to applicable withholding for taxes, in full satisfaction of
all claims for accrued vacation. Employer shall pay a bonus of $80,000.00 to
Xxxxxx X. Xxxxxxxxx, subject to applicable withholding for taxes. Time of these
payments is of the essence and a failure to make such payments on time will
result in interest added at the annual rate of 10%. If payment in full is not
received by April 13, 1998, that failure shall render this agreement invalid and
unenforceable. The parties intend that these payments shall be for all of Xxxxxx
X. Xxxxxxxxx'x claims, excepting only claims for reimbursement of expenses and
salary advances which shall be governed by the terms of paragraph 3, below.
Xxxxxx X. Xxxxxxxxx agrees that he has been fully paid for any and all accrued
and vested wages, bonuses and benefits, including vacation and sick pay, if any.
Notwithstanding the forgoing, (1) if the audit of unreimbursed expenses set
forth in paragraph 3 below is completed by the time for the transfer of the
$401,000.00 to Xxxxxx X. Xxxxxxxxx, Employer may deduct from that sum, any
amounts owed to it for overpayment to Xxxxxx X. Xxxxxxxxx of expenses, (2) if
the audit of unreimbursed expenses set forth in paragraph 3 below is not
completed by the time for the transfer of the $401,000.00 to Xxxxxx X.
Xxxxxxxxx, Employer may holdback $10,000.00 of that sum, without any obligation
to pay interest, and at the completion of the audit Employer shall forthwith
transmit, to Employees, the balance of the $10,000.00 less any amounts owed to
Employer for overpayment of expenses of Xxxxxx X. Xxxxxxxxx. The parties will
use their best efforts to promptly complete the audit of unreimbursed expenses.
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3. Expenses and Salary Advance Dispute. Employees and Employer
have outstanding disputes concerning reimbursement for business expenses, an
expense reimbursement check which Employees believe may not have been
negotiated, and salary advances to Xxxxxx X. Xxxxxxxxx. The parties agree that
the accounting firm of Deloitte Touche, by Xxxxxxxxxx X. Xxxxxxxxx, shall be
retained at the expense of Employer to review all such claims and to resolve
them. The resolution shall be completed within thirty days of execution of
this agreement. The parties agree to be bound by the determination of Deloitte
Touche.
4. Vacation Pay. On or before the tenth day following execution
of this Agreement by Employees, Employer shall pay to Xxxxx Xxxxxxxxx the gross
sum of $1,153.50 for full payment of 1 week vacation pay. This amount shall be
subject to applicable withholding, and shall be paid by wire transfer as set
out above.
5. Employer Release. Employees, for themselves and for each of
their respective heirs, executors, administrators, successors, and assigns, do
hereby fully and forever release and discharge Employer, its affiliates and
subsidiaries, and its shareholders, members, employees and former employees,
agents, directors, officers, trustees, attorneys, predecessors, successors,
assigns, heirs, executors, administrators, and all other persons, firms,
corporations, associations, partnerships, or entities having any legal
relationship to Employer (collectively the "Released Parties"), of and from any
and all claims, demands, causes of action, charges and grievances, of whatever
kind or nature, whether known or unknown, suspected or unsuspected, which
Employees, and each of them, now own or hold or have at any time before this
date owned or held against any of the Released Parties, including, but not
limited to, any and all claims,
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charges, demands and causes of action: (1) which arise out of or are in any way
connected with Employees' employment with Employer or the termination of
Employees' employment with Employer; (2) which are related to or concern (i)
alleged discrimination, if any, under local, state or federal law; (ii) alleged
wrongful termination, breach of the covenant of good faith and fair dealing,
intentional or negligent infliction of emotional distress, defamation, invasion
of privacy, breach of employment contract, fraud or negligent misrepresentation;
or (3) which arise out of or are in any way connected with any loss, damage or
injury whatsoever resulting from any act committed or omission made prior to the
date of this Agreement. This Release is specifically intended to release the
Released Parties from any obligations they have or may in the future have
pursuant to the Xxxxxx X. Xxxxxxxxx Employment Agreement. Notwithstanding
any of the above, this Release does not release the obligations, covenants,
representations and warranties of the parties to this Agreement.
6. Employees Release. Employer, on behalf of itself, its
affiliates, subsidiaries, predecessors and successors and assigns do hereby
fully and forever release and discharge Xxxxxx X. Xxxxxxxxx, his heirs,
executors, administrators, successors, and assigns and Xxxxx Xxxxxxxxx and her
heirs, executors, administrators, successors, and assigns of and from any and
all claims, demands, causes of action, charges and grievances, of whatever kind
or nature, whether known or unknown, suspected or unsuspected, which Employer
now owns or holds or has at any time before the date of this Agreement owned or
held against any of them, including, but not limited to, any and all claims,
charges, demands and causes of action: (1) which arise out of or are in any way
connected with Xxxxxx X. Xxxxxxxxx'x employment with Employer or the termination
of Xxxxxx X. Xxxxxxxxx'x employment with Employer; (2) which
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arise out of or are in any way connected with Xxxxx Xxxxxxxxx'x employment
with Employer or the termination of Xxxxx Xxxxxxxxx'x employment with Employer;
or (3) which arise out of or are in any way connected with any loss, damage or
injury whatsoever resulting from any act committed or omission made prior to
the date of this Agreement. Notwithstanding any of the above, this Release
does not release (1) the obligations, covenants, representations and warranties
of the parties to this Agreement, and (2) the obligations of Xxxxxx X.
Xxxxxxxxx under paragraph 8 of the Xxxxxx X. Xxxxxxxxx Employment Agreement.
7. Limitation on Waiver. Notwithstanding any other provision in
this Agreement, Xxxxxx X. Xxxxxxxxx does not waive any rights, benefits or
claims that he may be entitled to as a matter of law relating solely to any
employee benefit plan governed by the Employee Retirement Income Security Act
("ERISA"), including but not limited to continued health plan coverage under
COBRA, and any such rights, benefits or claims shall be subject to the terms of
all applicable documents and agreements governing such plans and applicable
law. The consideration set forth in paragraph 1 and 2 herein shall be deemed
other compensation, excepting only amounts stated for vacation pay, and not
included in the calculation of benefits under any such benefit plans.
Nothing contained in this Agreement shall be construed to limit Xxxxxx
X. Xxxxxxxxx'x right to continue to pay for health insurance coverage under
COBRA in accordance with applicable law and the terms of the documents
governing such health insurance.
8. Unknown Claims and Section 1542 of the Civil Code. This
Agreement shall be given full force and effect according to each and all of its
express terms and provisions, including those terms and provisions relating to
unknown and unsuspected claims, demands and
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causes of action, if any, as well as those relating to claims, demands and
causes of action earlier specified in this Agreement. Except where otherwise
provided, in furtherance of this intention, Xxxxxx X. Xxxxxxxxx, Xxxxx
Xxxxxxxxx, and Employer expressly waive any and all rights and benefits
conferred upon him, her and it by the provisions of Section 1542 of the
California Civil Code (or any other similar statute), which states:
"A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor."
9. Waiver of ADEA Rights. Without limiting the scope of this
Agreement in any way, Xxxxxx X. Xxxxxxxxx and Xxxxx Xxxxxxxxx also certify that
this Agreement constitutes a knowing and voluntary waiver of any and all rights
or claims that exist or that Xxxxxx X. Xxxxxxxxx or Xxxxx Xxxxxxxxx have or may
claim to have under the Federal Age Discrimination in Employment Act ("ADEA"),
as amended by the Older Workers Benefit Protection Act of 1990, which is set
forth at 29 U.S.C. Section 621, et seq.
Xxxxxx X. Xxxxxxxxx and Xxxxx Xxxxxxxxx acknowledge that, for
purposes of waiver of ADEA rights, they each (a) have read this Agreement, (b)
have been provided a full, reasonable, and ample opportunity to review, study,
and consider it, (c) have been advised in writing to consult with an attorney,
and have consulted with an attorney, prior to signing it voluntarily with full
knowledge that it is intended to the maximum extent permitted by law, as a
complete release and waiver of any and all claims, and (d) they will receive
compensation beyond that which they were already entitled to receive before
entering into this Agreement. Xxxxxx X. Xxxxxxxxx and Xxxxx Xxxxxxxxx also
acknowledge that they have knowingly,
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voluntarily and with the advice of counsel waived the 21 day review period, at
their own request, specifically for the purposes of expediting the settlement.
Xxxxxx X. Xxxxxxxxx and Xxxxx Xxxxxxxxx acknowledge that they are
aware of the right to revoke this Agreement at any time within the seven-day
period following the date Employees sign the Agreement and that the Agreement
shall not become effective or enforceable until the seven day revocation period
expires. Employees understand that they will relinquish any right they have to
the consideration specified in this Agreement if they or either of them
exercise the right to revoke it. Notice of revocation must be provided by
facsimile transmission or personal delivery to Employer: "Xxxxx X. XxXxxxxxxx,
Barry's Jewelers, Inc. 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, XX 00000, fax: 626 357
7596" and to "Xxxxxxx Xxxxxx, Esq., fax no. 000 000 0000".
10. Depositions. Xxxxxx X. Xxxxxxxxx shall make himself reasonably
available, in Los Angeles County without necessity of subpoena, for depositions
related to his employment with Employer (including any litigation arising in or
related to Barry's Jewelers, Inc.'s bankruptcy proceedings). For any time after
the fifth day of deposition, Employer shall compensate Xxxxxx X. Xxxxxxxxx for
his attendance at or preparation for deposition at the rate of $2,000.00 per
day. For all depositions, Employer shall pay reasonable out of pocket and
travel expenses of Xxxxxx X. Xxxxxxxxx.
11. Non-Disparagement. The parties agree to refrain from disparaging
one another.
12. Successors and Assigns. This Agreement shall inure to the
benefit of and shall be binding upon the successors and assigns of the parties
hereto, and each of them. In the
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case of corporate parties hereto, this Agreement is intended to release and
inure to the benefit of the corporate party's affiliated corporations,
subsidiaries (whether or not wholly-owned), divisions, officers, directors,
agents, representatives, employees and any and all other related individuals and
entities, if any, individually as well as in the capacity indicated.
13. Integration. This Agreement constitutes a single integrated
written contract expressing the entire agreement of the parties hereto relative
to the subject matter hereof. No covenants, agreements, representations, or
warranties of any kind whatsoever, whether express or implied in law or fact,
have been made by any party hereto, except as specifically set forth in this
Agreement. All prior and contemporaneous discussions and negotiations have been
and are merged and integrated into, and are superseded by, this Agreement.
14. Non-Assignment of Claims. The parties represent and each of them
warrant that they have not assigned or transferred any portion of the claims
released herein to any other individual, firm, corporation or other entity, and
that no other individual, firm, corporation or other entity has any lien, claim
or interest in any of such claims. The parties shall indemnify, defend, and hold
harmless one another and their respective related individuals and entities, and
each of them, from and against any claims arising out of, related to or
connected with any such prior assignment or transfer, or any such purported
assignment or transfer, or any claims or other matters released or assigned
herein. The Employees, on the one hand, and the Employer, on the other hand,
covenant and each of them agrees not to bring, induce, or assist any other
action or proceeding of any kind or nature against one another or any of their
respective related individuals or entities or any of them, directly or
indirectly, regarding, connected with, arising out of, or related to in any
manner the matters released hereby. The Employees, on the one hand, and the
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Employer, on the other hand, covenant and each of them agrees that this
Agreement is a bar to any such claim, action, suit or proceeding and agree to
indemnify the other and shield any of their respective related individuals or
entities, above, and each of them, for any liability and any costs and expenses
of any claims, suit, action or proceeding (including, without limitation, the
costs of expert consultants and expert witnesses) and attorneys' fees incurred
as a direct or indirect result of any claims released herein being asserted in a
lawsuit or other action, suit, claim or proceeding by any individual firm,
corporation or other entity as a direct or indirect result of any act or
omission by the Employees, on the one hand, and the Employer, on the other hand,
or any of their related individuals or entities.
15. Arbitration. In the event that any dispute arises between the parties
or their related entities or individuals, with respect to the subject matter of
this Agreement, the claims released herein, any action or omission either prior
or subsequent to the parties' execution of this Agreement, or any claim arising
subsequent to their execution of this Agreement, the parties agree that any such
dispute and any and all claims arising therefrom shall be subject to final and
binding arbitration. The arbitrator shall be selected and the arbitration
conducted in accordance with the applicable rules of the American Arbitration
Association ("AAA") regarding employment disputes in effect at the time the
claim or dispute arises. The arbitrator selected shall be a retired judge with
five or more years of experience in arbitrating employment related matters and
shall be agreed upon by the parties. The arbitration shall proceed in Los
Angeles County. Notwithstanding any AAA rule to the contrary, however, in the
event that any claim or dispute is submitted for arbitration, the parties shall
have a sufficient opportunity to conduct discovery, subject to the supervision
of the arbitrator, prior to the commencement of the
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arbitration. Any party desiring to assert any such claim or dispute must give
notice in writing to the other party within 180 days of the date such claim or
dispute arises. In the event such notice is not provided within this 180 day
period, such claim or dispute shall be forever waived.
16. Attorneys' Fees. In the event that any arbitration, action, suit, or
other proceeding is instituted to remedy, prevent, or obtain relief from a
breach of this Agreement, or arising out of a breach of this Agreement, the
prevailing party shall recover all of such party's reasonable attorneys' fees
incurred in each and every arbitration, action, suit, or other proceeding,
including any and all appeals or petitions therefrom.
17. Miscellaneous Terms. Each of the parties hereto represents, warrants
and agrees as follows:
(a) Each of the parties has had an opportunity for prior independent legal
advice from legal counsel of its choice with respect to the advisability of
making the settlement provided for herein and with respect to the advisability
of executing this Agreement.
(b) Except for statements expressly set forth in this Agreement, no party
(nor any representative or attorney of such party) has made any statement or
representation to any other party regarding a fact relied upon by other party
in entering into this Agreement and no party has relied upon any statement,
representation, or promise of any other party, or of any representative or
attorney for any other party, in executing this Agreement or in making the
settlement provided for herein;
(c) Each of the parties has read the Agreement carefully, knows and
understands the contents thereof, and has made such investigation of the facts
pertaining to the settlement and this Agreement and of all matters pertaining
hereto as it or he deems necessary or desirable;
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(d) The terms of this Agreement are contractual, not a mere recital, and
are the result of negotiations between the parties;
(e) Whenever the context so requires, the masculine gender herein shall
include the feminine or neuter gender, and singular number shall include the
plural number, and vice versa.
(f) This Agreement has been negotiated between the parties and the
parties waive any claim that ambiguity of any portion of this agreement should
be resolved against the drafter of any disputed language.
(g) Xxxxx XxXxxxxxxx warrants that he has been duly authorized by the
board of directors of Barry's Jewelers, Inc. to execute this agreement on
behalf of Barry's Jewelers, Inc.
18. Disputed Rights. The parties hereto explicitly acknowledge and
covenant that this Agreement represents a settlement of disputed rights and
claims and that by entering into this Agreement, no party hereto admits or
acknowledges the existence of any liability or wrongdoing, all such liability
being expressly denied. No provision hereof, or of any related document, shall
be construed as any admission or concession of liability, of any wrongdoing or
of any preexisting liability.
19. Modifications. No modification, amendment or waiver of any of the
provisions contained in this Agreement, or any future representation, promise
or condition in connection with the subject matter of this Agreement, shall be
binding upon any party hereto unless made in writing and signed by such party
or by a duly authorized officer or agent of such party.
20. Execution in Counterparts. This Agreement may be executed and
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20. Execution in Counterparts. This Agreement may be executed and
delivered in any number of counterparts or copies ("counterpart") by the
parties hereto. When each party has signed and delivered at least one
counterpart to the other party hereto, each counterpart shall be deemed an
original and, taken together, shall constitute one and the same Agreement, which
shall be binding and effective as to the parties hereto. Delivery by facsimile
transmission is acceptable.
21. This Agreement shall be construed in accordance with, and governed
by, the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have approved and executed this
Agreement and General Release on the dates specified below.
AGREEING PARTIES:
Date:
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By: Xxxxxx X. Xxxxxxxxx
Date:
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By: Xxxxx Xxxxxxxxx
Date: 3/27/98
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By: Xxxxx XxXxxxxxxx
(Xxxxx'x Jewelers, Inc.)
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