EXHIBIT 10.1
SEPARATION AGREEMENT AND
RELEASE
I. Release. For good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the undersigned, 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 and other payments and benefits specifically provided for
under this Separation Agreement and Release Agreement, 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.
The Company acknowledges that the undersigned may be entitled to
additional payments and benefits after the Effective Date of this
Separation Agreement and Release, specifically those identified in
Sections 6(b)(ii), 7, 8, 11, 13 and 16 of the Change in Control
Severance Agreement. 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
July 2, 2008 (“Termination Date”).
Accordingly, the undersigned hereby irrevocably and unconditionally
resigns from any officer or director 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 resignation from the Company is for “Good
Reason” (as that term is defined in Section 1(t) of
the Severance Agreement), and that the undersigned is not obligated
to comply with the notice provisions set forth in
Section 1(t) 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) 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 a lump-sum
payment in the gross amount of One Million, One Hundred Twenty Two
Thousand, Six Hundred Twelve Dollars and 66/100 ($1,122,612.66),
subject to all applicable or customary tax withholding
requirements.
IV. Prorated Annual Bonus .
Pursuant to Section 6(b)(ii) of the Change in Control
Severance Agreement, the Company shall pay a lump-sum payment in
the gross amount of Seventy Seven Thousand, Four Hundred Three
Dollars and 89/100 ($77,403.89), subject to all applicable or
customary tax withholding requirements.
V.
Continued Welfare and Fringe Benefits. The
under
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