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Exhibit
10.1
AMENDED AND
RESTATED
SEPARATION AGREEMENT AND
GENERAL RELEASE
This Amended and Restated
Separation Agreement and General Release (“Agreement”)
is made between Alexander M. Winiecki, whose address is 12
Boylston Terrace, Amherst NH 03031 (“Employee”) and
Brookstone, Inc., a Delaware corporation (“Employer” or
“Company”).
WHEREAS, Employer and
Employee are parties to an Employment Agreement dated as of
October 4, 2005 (“Employment
Agreement”);
WHEREAS, Employee held the
position of Executive Vice President, Store Operations of the
Employer;
WHEREAS, effective
July 12, 2006 (“Termination Date”), Employee
resigned his position held with Employer and any affiliated
entities; and
WHEREAS, the Company and the
Employee have entered into that certain Separation Agreement and
General Release, dated as of August 10, 2006 (the
“Original Separation Agreement”), in connection with
the termination of the Employee’s employment;
WHEREAS, pursuant to the
Original Separation Agreement, Employee was deemed to have resigned
his employment with Employer without Good Reason pursuant to
Section 7(d) of the Employment Agreement as of the Termination
Date, and all of his positions as an officer of Employer and any of
its affiliated entities terminated as of that date; and
WHEREAS, the Company and the
Employee desire to amend and restate the Original Separation
Agreement in its entirety as set forth herein.
NOW, THEREFORE, in
consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Employee agree that the Original
Separation Agreement is hereby amended and restated in its entirety
as follows:
1. The Parties agree that,
except as expressly and specifically provided herein, the
Employment Agreement is terminated insofar as it may require the
Company to make any further payments or to provide any further
benefits to Employee.
For avoidance of doubt, Sections 8
and 11 of the Employment Agreement shall remain in full force and
effect and are incorporated into this Agreement by reference. A
copy of Sections 8 and 11 (“Restrictive
Covenants”) are attached hereto as Exhibit A. Section
references in Exhibit A are to the Employment
Agreement.
2. Employee acknowledges
that, effective July 12, 2006, his employment and any and all
positions he held with Employer and any affiliated entities were
terminated by him without Good Reason, and as of that date he
relinquished any and all of his authorities with each of those
entities. Employee agrees and acknowledges that he has received a
final payroll check in the
1
gross amount of $29,166, which amount
represents payment in full to Employee for Employee’s base
salary through July 31, 2006, payment for 160 hours of
vacation for fiscal year 2006 in accordance with New Hampshire law,
less applicable payroll taxes and deductions. Employee agrees and
acknowledges that Employee has been reimbursed for all business
related travel and entertainment expenses incurred through the
Termination Date. Employee agrees that Employee has no right to any
further compensation, including medical benefits, except in
accordance with the terms of this Agreement.
3. In consideration of
Employee’s commitments as set forth in this Agreement,
including the release of claims set forth below, Employer will
continue to pay Employee, as severance pay and in accordance with
the provisions of Section 3, Employee’s regular base
salary, less legally required deductions and deductions requested
by Employee, for ten (10) months following the Termination
Date (the “Severance Period”).
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a. |
Severance payments will be made monthly according to the same
schedule that Employee received Employee’s base salary prior
to the Termination Date, except that severance payments will not
commence until the first regularly scheduled pay date following the
Effective Date of this Agreement as defined in Section 13.
Such first severance payment shall include all severance pay due
Employee pursuant to this Agreement from the Termination Date
through the closing date of the pay period in which the first
severance payment is made, less deductions required by law or
requested by Employee. All other severance payments shall consist
of Employee’s regular monthly base salary, less deductions
required by law or requested by Employee. For the avoidance of
doubt, Employee acknowledges and agrees that the aggregate
severance payments shall equal $291,660 (subject to any deductions
required by law or requested by Employee). |
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b. |
Subject to
Section 3(c) below, from the Termination Date until
October 4, 2008 (the “Benefit Continuation
Period”), Employee will continue to participate in those
Brookstone group health and dental plans, under the terms of any
such plans as may be in effect during such period, on the same
cost-sharing basis as during Employee’s tenure with
Brookstone as a full-time employee. During the Severance Period,
Employee’s premium contribution will be deducted
automatically from the severance payments, and Employee’s
signature on this Agreement serves as authorization for such
deductions. During the portion of the Benefit Continuation Period
following the Severance Period, Employee shall pay his premium
contribution to Employer in cash at or prior to the end of each pay
period or in such other manner as may be mutually agreed upon by
him and Employer. To the extent that Employee has elected to
include qualified dependents under the benefits made available
under Brookstone’s group health and dental insurance plans,
the dependants will also continue to so participate. In no event
shall the Employee participate in any Employer bonus or profit
sharing plan the Termination Date. Employee acknowledges and agrees
(for the avoidance of doubt) that, for purposes of the Brookstone
Company, Inc. Retiree Health Plan, his termination
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of employment shall not be
deemed to have occurred as a result of his retirement from service
with the Company.
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c. |
Notwithstanding the foregoing, if during the period in which
salary and/or benefits continue pursuant to the provisions of
Section 3, Employee accepts other employment providing him
medical and dental coverage, the continuation of his medical and
dental coverage hereunder shall immediately cease. |
4. You agree that the
payments and other benefits provided under this Agreement are in
complete satisfaction of any and all compensation due to you for
services provided to Brookstone, and that they represent a benefit
to which you are not otherwise entitled. You understand and
acknowledge that you will not continue to earn vacation or other
paid time off after the Termination Date and your participation in
all employee benefit and fringe benefit plans of Brookstone will
end as of the Termination Date excepting continuation rights as may
be contained in this Agreement.
5. Upon the termination or
expiration of the Benefit Continuation Period in accordance with
Section 3(b) above, you and/or your qualified beneficiaries will
become eligible to elect to continue to participate in
Brookstone’s group health plans pursuant to the Consolidated
Omnibus Budget Reconciliation Act of 1985, Title X, as amended
(“COBRA”) at your sole cost for limited periods of time
as prescribed by COBRA. You will receive information regarding your
COBRA rights at the end of the Benefit Continuation
Period.
6. Employee’s Equity
Securities .
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a. |
OSIM
Brookstone Holdings, L.P. (“OBH”) is hereby exercising
its rights under the Second Amended and Restated Limited
Partnership Agreement of OBH LP (the “Partnership
Agreement”), dated as of October 4, 2005, among OSIM
Brookstone Holdings, Inc. (“OBH GP”) and each of the
limited partners of OBH LP, to purchase the 61,409 Class A
Common Limited Partnership Interests of OBH LP (the
“Class A Interests”) and the 2,288 Class B
Common Limited Partnership Interests of OBH LP (the “Make-Up
Class B Interests”, and collectively with the
Class A Interests, the “OBH LP Interests”) held by
him. Subject to the terms and conditions set forth in this
Agreement, Employee hereby agrees to sell to OBH LP, and OBH LP
hereby agrees to purchase and accept from Employee on the date
hereof, Employee’s right, title and interest in and to the
OBH LP Interests in exchange for 455.56 shares of common stock, par
value $0.01 per share, of Brookstone Holdings Corp. (the
“Pass-Through Common Stock”), and Employee hereby
agrees to sell to Brookstone Holdings Corp., and Brookstone
Holdings Corp. hereby agrees to purchase and accept from Employee,
the Pass-Through Common Stock on the first day after the date
hereof, for a total purchase price equal to Six Hundred Fourteen
Thousand Ninety Dollars ($614,090.00), which Employee agrees shall,
notwithstanding anything to the contrary contained in the
Partnership Agreement, be payable (without interest) in two equal
installments by wire transfer of immediately available funds in
accordance with wire transfer instructions set forth on the
signature pages hereto, as follows: the first installment shall be
paid on January 2, 2007 and the second installment shall be
paid on July 2, 2007. For the avoidance of doubt, Employee and
OBH LP hereby acknowledge and agree that the
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Call Price and the Cost
Price (each, as defined in the Partnership Agreement) of the
Make-Up Class B Interests is zero.
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b. |
In accordance with Section 9.1(c) of the Partnership
Agreement and Section 2.1 of the Shareholders Agreement, dated
as of October 4, 2005, among OBH GP and each of the
shareholders of OBH GP, Employee agrees to transfer to OBH GP the
61,409 ordinary shares in the capital of OBH GP held by him (the
“OBH GP Shares”) for no additional consideration,
simultaneously with the repurchase by OBH LP of the OBH LP
Interests on the date hereof; |
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c. |
Employee agrees to execute and deliver to the applicable party
a written assignment, the form of which is attached hereto as
Exhibit B, with respect to each of the (i) OBH LP Interests,
(ii) OBH GP Shares and (iii) Pass-Through Common
Stock. |
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d. |
The OBH LP Interests and the OBH GP Shares held by Employee are
owned of record and beneficially by Employee and represent all of
the equity interests held by Employee and his direct and indirect
Permitted Transferees (as defined in the Partnership Agreement) in
the Applicable Entities (as defined in the Partnership Agreement),
and Employee has good and marketable title to the OBH LP Interests
and the OBH GP Shares, free and clear of any Liens (as defined in
the Partnership Agreement) and the execution by Employee of this
Agreement shall not result in the imposition of any Lien upon the
OBH LP Interests, the OBH GP Shares or the Pass-Through Common
Stock. Employee agrees that, upon his receipt of the Pass-Through
Common Stock, he will not transf |
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