Exhibit 10.5
SEPARATION AGREEMENT AND
RELEASE
I.
Release . For good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged,
Mr. Harvey Kanter (herein referred to as “the
undersigned” or “Mr. Kanter”) , with
the intention of binding himself, his heirs, executors,
administrators and assigns, does hereby release and forever
discharge Michaels Stores, Inc., a Delaware corporation (the
“ Company ”), and its present and former parent,
officers, directors, executives, agents, employees, affiliated
companies, subsidiaries, successors, predecessors and assigns
(collectively, the “ Released Parties ”), from
any and all claims, complaints, actions, causes of action, demands,
rights, damages, debts, accounts, suits, expenses, attorneys’
fees and liabilities of whatever kind or nature in law, equity, or
otherwise, whether now known or unknown (collectively, the “
Claims ”), which the undersigned now has, owns or
holds, or has at any time heretofore had, owned or held against any
Released Party, arising out of or in any way connected with the
undersigned’s employment relationship with the Company, its
subsidiaries, predecessors or affiliated entities, or the
termination thereof, under any Federal, state or local statute,
rule, or regulation, or principle of common, tort or contract law,
including but not limited to, Title VII of the Civil Rights Act of
1964, as amended , 42 U.S.C. §§ 2000e
et seq. , the Age Discrimination in Employment Act of
1967, as amended , 29 U.S.C. §§ 621
et seq. , the Americans with Disabilities Act of
1990, as amended , 42 U.S.C. §§ 12101,
et seq. , and any other equivalent or similar
Federal, state, or local statute; provided , however
, that nothing herein shall release the Company of its obligations
under that certain Change in Control Severance Agreement (the
“ Change in Control Severance Agreement ”) in
which the undersigned participates and pursuant to which this
Separation Agreement and Release is being executed and
delivered. The undersigned understands that, as a result of
executing this Separation Agreement and Release, he will not have
the right to assert that the Company or any other Released Party
unlawfully terminated his employment or violated any of his rights
in connection with his employment or otherwise.
The
undersigned affirms that he has not filed, caused to be filed, or
presently is a party to any Claim against any Released Party in
any forum or form and that he knows of no facts which may
lead to any Claim being filed against any Released Party in any
forum by the undersigned or by any agency or group. Except
for his final paycheck, the undersigned further affirms that he has
been paid and/or has received all leave (paid or unpaid),
compensation, wages, bonuses, commissions, and/or benefits to which
he may be entitled and that no other leave (paid or unpaid),
compensation, wages, bonuses, commissions and/or benefits are due
to him from any Released Party, except as specifically provided in
this Separation Agreement and Release. The undersigned
furthermore affirms that he has no known workplace injuries or
occupational diseases and has been provided and/or has not been
denied any leave requested under the FMLA. If any court
assumes jurisdiction of any such Claim against any Released Party
on behalf of the undersigned, the undersigned will request such
court to withdraw the matter.
The
undersigned further declares and represents that he has carefully
read and fully understands the terms of this Separation Agreement
and Release; that he has been advised and had the opportunity to
seek the advice and assistance of counsel with regard to this
Separation Agreement and Release; that he may take up to and
including twenty-one (21) calendar days from receipt of this
Separation Agreement and Release to consider whether to sign it;
that he may revoke this, Separation Agreement and Release within
seven (7) calendar days after signing it by delivering to the
Company written notification of revocation; and that he knowingly
and voluntarily, of his own free will, without any duress, being
fully informed and after due deliberate action, accepts the terms
of and signs the same as his own free act.
II.
Resignation and Severance Compensation . The
termination of the undersigned is effective May 25, 2008
(“ Termination Date ”) and shall be treated as a
resignation for good reason by Mr. Kanter. Accordingly,
the undersigned hereby irrevocably and unconditionally resigns from
any officer position he holds within Michaels or any of its
subsidiaries or divisions effective on the Termination Date.
It is stipulated and agreed that the undersigned’s separation
from the Company is other than for “Cause” (as that
term is defined in Section 1(i) of the Change in Control
Severance Agreement). It is further stipulated and agreed
that the Company shall pay, provide and/or grant the undersigned
all compensation and benefits set forth under
Section 6(b) and Section 7 of the Change in Control
Severance Agreement.
III.
Severance Pay . Pursuant to
Section 6(b)(i) of the Change in Control Severance
Agreement, the Company shall pay Mr. Kanter a lump-sum payment
in the gross amount of One Million, One Hundred Forty-Three
Thousand,
