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Exhibit 10.39
SEPARATION AGREEMENT AND GENERAL
RELEASE
Borders
Group, Inc., its affiliates, subsidiaries, divisions,
successors and assigns and the past, present and future
employees, officers, shareholders, directors, agents,
attorneys and insurers thereof, both individually and in their
official capacities (collectively referred to throughout this
Separation Agreement and General Release as “Borders
Group”) and Cedric J. Vanzura (referred to throughout
this Separation Agreement and General Release as
“Vanzura” and more specifically defined in
paragraph 6) agree that:
1.
Separation from Employment
. This
Separation Agreement and General Release (“Agreement”)
is made by Borders Group and Vanzura based on Vanzura’s
separation of employment with Borders Group effective September 5,
2007 (the “Effective Date”).
2.
Consideration
. In
consideration for signing this Agreement and compliance with the
promises made herein, Borders Group agrees that Vanzura: (a) will
continue to receive his current salary through the Effective Date;
(b) subject to the mitigation provisions set forth below, the
provisions of paragraph 11, Discontinuance of Severance Payments,
and the provisions of paragraph 3, Timing of Severance Payments, as
Monthly Severance Pay, after the expiration of the revocation
period set forth in paragraph 5, Revocation and provided that no
revocation occurs, twelve (12) months salary and bonus in the
amount of eighty-four thousand and three hundred and seventy-five
dollars and no cents ($84,375.00) per month (thirty-eight thousand
nine hundred and forty-two dollars and thirty-one cents
($38,942.31) per normal bi-weekly pay period for twenty-six (26)
periods) minus, in each case, the amount of applicable withholding
taxes; and (c) will receive a cash payment as soon as practicable
following Vanzura’s separation from Borders Group, in an
amount equal to the Fair Market Value (as determined by the closing
price for Borders Group, Inc. (“BGP”) shares on the New
York Stock Exchange on the day prior to Vanzura’s termination
date) of the Restricted Shares (but not the restricted share units)
awarded to Vanzura in March 2006. The amount of severance payments
described in (b) above shall be reduced by the amount that Vanzura
receives from other employment during such period. Vanzura agrees
to make reasonable efforts to seek other employment, and to
immediately notify Borders Group if he accepts other employment and
the amounts received therefrom. Except for the payments described
in (a), (b), and (c) above, Vanzura shall not be entitled to any
payments of any nature whatsoever from Borders Group.
3.
Timing of Severance Payments
. Monthly
Severance Pay, as set forth in subparagraph 2(b), Monthly Severance
Pay, above, shall commence the month following termination and
shall continue for twelve months, provided that however, if the
monthly payment period would otherwise extend beyond the latter of
(a) March 15, 2008, or (b) two and a half months following the end
of the current fiscal year, an amount equal to the sum of the
remaining payments that would have been made to Vanzura shall, in
lieu thereof, be paid to him in one lump sum on the last day of the
month immediately preceding the month in which the later of the
dates specified in (a) or (b) above falls. In calculating the
amount of any lump sum payment, it shall be assumed that any income
Vanzura is earning from other employment on the payment date would
continue for the remainder of the twelve-month (12) period
following Vanzura’s separation. No repayment shall be
required if Vanzura’s income increases after the lump sum
payment date, and no additional payment shall be made by Borders
Group after the lump sum payment.
4.
No Consideration Absent Execution of this
Agreement
. Vanzura
acknowledge and agree that, prior to the signing of this Agreement,
Vanzura did not have a contract for employment for any definite
period of time. As such Vanzura understands and agrees that Borders
Group would not be obligated to employ him through the Effective
Date and he would not be eligible for the payments provided for
herein except for his execution of this Agreement.
5.
Revocation
. Vanzura
may revoke this Agreement for a period of seven days following the
day he executes this Agreement. Any revocation within this period
must be submitted, in writing, to Borders Group and state, “I
hereby revoke my acceptance of the Agreement.” The revocation
must be personally delivered to Daniel Smith or his designee, or
mailed to Daniel Smith and postmarked within seven days of
execution of this Agreement. This Agreement shall not become
effective or enforceable until the revocation period has expired.
If the last day of the revocation period is a Saturday, Sunday, or
legal holiday in Michigan, then the revocation period shall not
expire until the next following day which is not a Saturday,
Sunday, or legal holiday.
6.
General Release of Claims
. Vanzura knowingly and voluntarily releases and forever discharges
Borders Group of and from any and all claims, known and
unknown, against
Borders Group, which Vanzura, his heirs, executors, administrators,
successors, and assigns (referred to collectively throughout this
Agreement as “Vanzura”) have or may have
as of the date of execution of this Agreement,
including,
but not limited to, any alleged violation of:
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The
National Labor Relations Act, as amended;
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Title
VII of the Civil Rights Act of 1964, as amended;
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The
Civil Rights Act of 1991;
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Sections
1981 through 1988 of Title 42 of the United States Code, as
amended;
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The
Employee Retirement Income Security Act of 1974, as
amended;
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