Exhibit 10.84
SEPARATION AGREEMENT AND GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL RELEASE is made and entered into
by and between XXXXX X. CALL (hereinafter referred to as "Employee") and GOODY'S
FAMILY CLOTHING, INC. (hereinafter referred to as "Company").
STATEMENT OF FACTS
Employee desires to resign from the Company to pursue other
opportunities. Employee desires to accept the following agreements, and Employee
and the Company desire to settle fully and finally any differences and disputes
between them, including, but in no way limited to, any differences and disputes
that might arise, or have arisen, out of Employee's employment with the Company,
and the termination thereof.
STATEMENT OF TERMS
In consideration of the premises and mutual promises herein contained,
it is agreed as follows:
Section 1.........Non-Admission of Liability.
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This Separation Agreement and General Release (the "Agreement") shall
not in any way be construed as an admission by the Company that it has acted
wrongfully with respect to Employee or any other person, or that Employee has
any rights whatsoever against the Company (except as expressly recited in this
Agreement), and the Company specifically disclaims any liability to or wrongful
acts against Employee or any other person, on the part of itself, its employees
or its agents.
Section 2. Termination of Employment.
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Employee represents, understands and agrees that his employment with
the Company will terminate on July 28, 2000 (the "Date of Termination").
Section 3. Return of Consideration.
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Subject to Section 11 of this Agreement, Employee understands that this
Agreement is final and binding. If Employee attempts to challenge the
enforceability of this Agreement, he shall initially tender to the Company, by
certified funds delivered to the Company, all monies and other value he receives
pursuant to this Agreement, and shall invite the Company to retain such monies
and agree with him to cancel this Agreement. In the event the Company accepts
this offer, the Company shall retain such monies and this Agreement shall be
cancelled. In the event the Company does not accept such offer, the Company
shall so notify Employee, and shall place such monies in an interest-bearing
escrow account pending resolution of the dispute as to whether this Agreement
shall be set aside and/or otherwise rendered unenforceable.
Section 4. Consideration.
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x. Xxxxxxxxx Payment. The Company agrees to pay Employee a
severance payment in the total gross amount of FOUR HUNDRED SEVENTY-ONE THOUSAND
SIX HUNDRED SEVENTY-ONE AND 68/100 DOLLARS ($471,671.68), less applicable tax
withholding and other standard deductions. Employee acknowledges that this
payment is in consideration of his execution of this Agreement and provides him
with an additional payment to which he would otherwise not be entitled. The
consideration to be paid by the Company to the Employee as recited in this
Section 4a. shall occur within fifteen (15) days after the " Date of
Termination".
b. Continuing Compensation and Benefits. In addition to the
severance payment recited in Section 4a. above, the Employee shall be entitled
to receive his current compensation and benefits through the Date of
Termination. After the Date of Termination, the Employee may exercise his right
under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") to
continue his health coverage through the Company's existing group health plan,
provided Employee exercises such rights and otherwise complies with the terms
and conditions of COBRA.
c. Other Benefit Plans. The Company has awarded the Employee
with Company stock option awards through the Company's 1991 Stock Incentive
Plan, 1993 Stock Option Plan and 1997 Stock Option Plan (collectively, the
"Stock Option Plans"). The Employee is a participant in the Company's 401(k)
Retirement Plan and the Company's Executive Deferral Plan (jointly, the
"401(k)"). Notwithstanding anything to the contrary in this Agreement, the
Employee's rights, if any, in the Stock Option Plans and the 401(k) shall be
governed solely by the terms and conditions of the Stock Option Plan and 401(k).
Section 5. Cessation of Authority.
----------------------
Employee understands and agrees that after July 7, 2000, he was no
longer authorized to incur any expenses, obligations or liabilities, or to make
any commitments on behalf of the Company. Employee agrees to submit to the
Company within twenty (20) days from the Date of Termination any and all
expenses incurred by him through July 7, 2000. Such expenses shall be paid by
the Company in accordance with its existing policies and procedures.
Section 6. Return of Company Materials and Property.
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Employee understands and agrees that he will turn over to the Company
on or before his execution of this Agreement all files, memoranda, records,
credit cards and other documents, physical or personal property which he
received from the Company and/or which he used in the course of his employment
with the Company and which are the property of the Company. Employee agrees,
represents and acknowledges that as a result of his employment with the Company,
he has had in his custody, possession and control proprietary documents, data,
materials, files and other similar items concerning proprietary information of
the Company as described in the Employment Agreement dated May 20, 1998 attached
as Exhibit "A" to this Agreement (the "Employment Agreement"), and Employee
acknowledges, warrants and agrees that he has returned all such items and any
copies or extras thereof and any other property, files or documents obtained as
a result of his employment with the Company and he has held all such
confidential and proprietary information in trust and in strict confidence and
will continue to do so, and that he has complied and will comply with Section 12
of the Employment Agreement regarding proprietary information, and will not
utilize or disclose any confidential or proprietary information of the Company
to any other person or entity for any reason whatsoever.
Section 7. Employment Agreement; No Solicitation.
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Employee understands and agrees that the terms of Section 12 of the
Employment Agreement are fully enforceable and remain in full force and effect.
Section 8. No Obligation.
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Employee agrees and understands that his entitlement to receive the
consideration set forth above is conditioned upon his execution of this
Agreement and his compliance with the terms of Section 12 of the Employment
Agreement.
Section 9. Severability.
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The provisions of this Agreement are severable, and if any part of it
is found to be unenforceable, the other paragraphs shall remain fully valid and
enforceable. This Agreement shall survive the termination of any arrangements
contained herein.
Section 10. Consultation with an Attorney.
The Company advises Employee to consult with an attorney prior to
executing this Agreement. Employee agrees that he has had the opportunity to
consult counsel if he chose to do so. Employee further acknowledges that he has
had ample time in which to execute this Agreement, and that he has had
sufficient time to read and consider this Agreement before executing it.
Employee acknowledges that he is responsible for any costs and fees resulting
from his attorney reviewing this Agreement. Employee agrees that he has
carefully read this Agreement and understands its contents, that he signs this
Agreement voluntarily, with a full understanding of its significance, and
intending to be bound by its terms.
Section 11. Period of Consideration; Right to Revoke.
----------------------------------------
Employee acknowledges that in further consideration of his release of
any claims under the Age Discrimination in Employment Act, and in compliance
with such Act, may take up to twenty one (21) days to decide whether he wants to
accept and sign this Agreement. Employee acknowledges that if he signs this
Agreement within less than 21 days, such decision was knowing and voluntary on
his part and in no way was coerced by the Company. If Employee signs this
Agreement, Employee may revoke and cancel this Agreement at any time within
seven (7) days after each party's execution of this Agreement by providing
written notice of revocation to the Company. If Employee does so revoke, this
Agreement will be null and void. This Agreement shall not become effective and
enforceable until after the expiration of this seven (7) day revocation period;
after such time, if there has been no revocation, the Agreement shall be fully
effective and enforceable on the day following such seven (7) day revocation
period.
Section 12. Complete Release; Promise Not to Xxx on Claims Released.
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As a material inducement to the Company to enter into this Agreement,
Employee hereby irrevocably and unconditionally releases, acquits and forever
discharges the Company and each of the Company's owners, stockholders,
predecessors, successors, assigns, agents, directors, officers, employees,
representatives, attorneys, parent companies, divisions, subsidiaries,
affiliates (and agents, directors, officers, employees, representatives and
attorneys of such parent companies, divisions, subsidiaries and affiliates), and
all persons acting by, through, under or in concert with any of them
(collectively "Releasees"), or any of them, from any and all, but not limited
to, rights arising out of alleged violations or breaches of any contracts,
express or implied, or any tort, or any legal restrictions on the Company's
right to terminate employees, or any federal, state or other governmental
statute, regulation, or ordinance, including, without limitation: (1) Title VII
of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991,
(race, color, religion, sex, and national origin discrimination); (2) 42 U.S.C.
ss. 1981 (discrimination); (3) the Americans with Disabilities Act (disability
discrimination); (4) 29 U.S.C. xx.xx. 621-624 (the Age Discrimination in
Employment Act); (5) 29 U.S.C. ss. 206(d)(1) (equal pay); (6) Executive Order
11246 (race, color, religion, sex and national origin discrimination); (7)
Executive Order 11141 (age discrimination); (8) Section 503 of the
Rehabilitation Act of 1973 (handicap discrimination); (9) intentional or
negligent infliction of emotional distress or "outrage"; (10) defamation; (11)
interference with employment; (12) wrongful discharge; (13) invasion of privacy,
or (14) any claim of any other type whatsoever arising out of his employment by
the Company or the termination thereof, which Employee now has, owns or holds,
or claims to have, own or hold, or which Employee at any time heretofore had,
owned or held, or claimed to have, owned or held, against each or any of the
Releasees at any time up to and including the date of this Agreement; provided,
however, that the Employee does not release the Company from any claims related
to a breach by the Company of its obligations hereunder. Nothing herein shall be
deemed to be a release of the Employee's rights, if any, to indemnification
pursuant to any Company insurance contract, or provision of the Company's
Charter or the Company's Bylaws which purports to create, for the benefit of the
Employee, rights to indemnification.
Employee acknowledges that the severance payment recited in Section 4a.
of this Agreement is further being given to him in return for his promise not to
initiate any court or judicial-type proceeding against the Company that involves
any claim that he has released in this Section 12 and that if he breaches his
promise not to xxx he will pay all costs and expenses of defending against such
suit incurred by the Company.
As a further material inducement to the Employee to enter into this
Agreement, the Company hereby irrevocably and unconditionally releases acquits
and forever discharges Employee from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, controversies, damages, actions,
causes of action, suits, rights, demands, costs, losses, debts, and expenses of
any nature whatsoever, known or unknown, suspected or unsuspected, related to
Employee's employment relation with the Company; provided, however, that the
Company does not release Employee from any claims related to a breach by the
Employee of his obligations hereunder. The Company promises not to initiate any
court or judicial-type proceeding against the Employee that involves any claim
that it has released in this Section 12 and if the Company breaches its promise
not to xxx, the Company will pay all costs and expenses of defending against
such suit incurred by Employee.
Section 13. Resignation.
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Simultaneous with the execution of this Agreement, Employee will
certify in writing to the corporate secretary of the Company that he has
resigned as a member of the Board of Directors of the Company and all other
positions and all other capacities of the Company and its subsidiaries. The
effective date of such resignations shall be July 28, 2000.
Section 14. Confidentiality.
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Employee agrees to hold this Agreement and the terms of it in
confidence and not to disclose the existence, content or details thereof to
anyone, other than to his spouse, his attorneys, accountants and/or tax
advisers, who must be advised of and agreed to be bound by the confidentiality
provision, except as required by law, rule or regulation. The Company, its
officers, directors and employees likewise agree to keep this Agreement and its
contents confidential, except as required by law, rule or regulation. Company
may disclose the existence of this Agreement and/or its details to those
individuals (including the Company's lenders, external accounting firms and law
firms) or other management officials who have a "need to know" in the
furtherance of their official duties, or in furtherance of the Company's
business interest.
Section 15. Non-Disparagement; Cooperation.
Employee agrees not to indulge in any conduct that is intended to
reflect adversely upon the Company, its employees, officers, directors and
shareholders. Employee further agrees not to make any statements that may be
reasonably construed to disparage the reputation or character of the Company or
its employees, officers, directors or shareholders. The Company's officers and
directors agree that they will not: (i) make any statements that may be
reasonably construed to disparage the reputation or character of Employee or,
(ii) indulge in any conduct that is intended to reflect adversely upon Employee.
Upon request from future potential employers, the Company agrees to provide a
reference (consistent with the Company's current policy) reflecting Employee's
date of hire, his date of resignation, and his position with the Company.
In consideration of the payments made by the Company to Employee as
described in Section 4a. of this Agreement, Employee agrees to cooperate without
additional compensation (except for Employee's reasonable out-of-pocket expenses
such as travel, meals and lodging) with the Company and its attorneys in the
defense of all claims or actions (whether in an administrative agency or in
court) involving the Company. Such cooperation shall include, but not be limited
to, making himself available as reasonably requested to meet with the Company's
attorneys to discuss his knowledge of pertinent facts and to prepare for his
testimony concerning those facts, appearing as required at deposition or trial
to testify as to those facts, and testifying truthfully to the best of his
abilities. In the event that he is required to testify at deposition or at trial
in connection with any such action, the Company will provide him legal
representation at the deposition and/or trial.
Section 16. No Other Representations.
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Employee represents and acknowledges that in executing this Agreement
he does not rely, and has not relied, upon any representation or statement not
set forth herein made by any of the Releasees or by any of the Releasees'
agents, representatives, or attorneys with regard to the subject matter, basis
or effect of this Agreement or otherwise.
Section 17. Prevailing Party.
In the event that any lawsuit or proceeding is brought to enforce the
terms of this Agreement, the prevailing party shall recover against the other
party reasonable attorneys' fees and expenses incurred in connection with such
action, including any appeals.
Section 18. Choice of Law.
This agreement shall be construed and interpreted according to the laws
of the State of Tennessee.
Section 19. Sole and Entire Agreement.
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This Agreement sets forth the entire agreement between the parties
hereto, and supersedes any and all prior agreements or understandings between
the parties pertaining to the subject matter hereof with the exception of
Section 12 of the Employment Agreement, which remains in effect to the extent it
is not inconsistent with this Agreement.
Employee warrants that he has had ample time to consider this
Agreement, that he understands its provisions, and that he enters into this
Agreement voluntarily and after having the opportunity to receive the advice and
counsel of his attorney.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
Executed at Knoxville, Tennessee this __18th____ day of July, 2000.
Sworn to and subscribed ____/s/ Xxxxx X. Call____
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before me this _18th___ day Xxxxx X. Call
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of July 2000.
___/s/ Xxxxxxxx X. Williams_______________
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NOTARY PUBLIC
My Commission Expires: 11/05/2003
[NOTARY SEAL]
Executed at Knoxville, Tennessee this __18th___ day of July 2000.
GOODY'S FAMILY CLOTHING, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
Sworn to and subscribed before me
this day of July, 2000.
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/s/ Xxxxxxxx X. Xxxxxxxx
NOTARY PUBLIC
My Commission Expires:
[NOTARY SEAL]
H:HR\Separation Agreements\Xxxxx Call.doc
