MUTUAL SETTLEMENT AND RELEASE
AGREEMENT
THIS MUTUAL SETTLEMENT AND RELEASE AGREEMENT
(the “Agreement”) is made and entered into as of this
6 th
day of May, 2009, by and between
CHROMCRAFT REVINGTON, INC., a Delaware corporation
(“Company,” as further defined herein), and BENJAMIN M.
ANDERSON-RAY, a resident of the State of Vermont
(“Executive,” as further defined herein);
WHEREAS, Executive previously served as a
director and was employed as the Chairman of the Board and Chief
Executive Officer of Company, as well as served as a director and
employee of Company’s subsidiaries; and
WHEREAS, Company and Executive are parties to an
Employment Agreement dated June 22, 2005 (the
“Employment Agreement”); and
WHEREAS, Company and Executive are parties to a
certain Mutual Separation and Release Agreement dated June 12,
2008 (the “Separation Agreement”); and
WHEREAS, Company and Executive desire to enter
into this Agreement to memorialize their mutual understanding and
agreement with respect to any and all matters in dispute between
them (including, but not limited to, any and all matters relating
to the Employment Agreement, the Separation Agreement and otherwise
with respect to Executive’s prior employment by the Company
(collectively, the “Prior Events”));
NOW, THEREFORE, in consideration of the
foregoing premises, the mutual agreements and obligations contained
herein, the payments contemplated hereby and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Company and Executive hereby agree as
follows:
Section 1 . Payments; Effective Date . Company
agrees to make the following payments to Executive:
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(a)
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a lump sum payment of $69,583.33,
payable within one (1) business day following the expiration
of the Revocation Period (as hereinafter defined) so long as
Executive has not exercised his limited right of revocation as
provided in Section 3 hereof;
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(b)
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a lump sum payment of $15,000 for
certain attorneys fees of Executive, payable within one
(1) business day following the expiration of the Revocation
Period so long as Executive has not exercised his limited right of
revocation as provided in Section 3 hereof; and
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(c)
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the sum of $105,417, payable in
eleven (11) equal monthly installments of $9,583.36 each,
beginning on May 31, 2009 and on the last day of each month
thereafter until the final installment is paid, but only so long as
Executive has not exercised his limited right of revocation as
provided in Section 3 hereof.
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The payments
described in Sections 1(a) and 1(c) above shall be subject to all
required and/or applicable tax withholdings, and Company shall
issue a Form W-2 to Executive for all such payments. Company shall
issue Form 1099 to Executive by reason of the payment
described in Section 1(b) above.
This Agreement is effective as to and binding
upon Company and Executive on the date hereof (“Effective
Date”), subject to Executive’s limited right of
revocation as provided in Sections 3(a)(ii) and 3(a)(iii) hereof;
provided , however , that the Company shall not be
obligated to pay any of the amounts set forth in this
Section 1 if Executive exercises such limited right of
revocation.
Section 2 . Default . In the event that Company
fails or refuses to pay any amount listed in Section 1 for any
reason whatsoever on the day on which such payment is due to
Executive and such amount remains unpaid for two (2) business
days, then (a) any and all unpaid amounts listed in
Section 1 shall, without demand, protest or notice of any kind
(all of which Company waives), be immediately due and payable and
bear interest at the rate of twelve percent (12%) per annum until
such unpaid amount(s) is paid to Executive, (b) Executive
shall be released from any and all of his obligations under the
Employment Agreement and Separation Agreement (other than
Executive’s covenants relating to intellectual property and
non-disclosure of confidential information, which shall continue in
effect and be binding upon Executive), and (c) Executive shall
be entitled to recover from Company, in any action at law or in
equity to collect any such unpaid amount(s), all reasonable costs,
expenses and attorneys’ fees incurred by him in any such
action. The rights and remedies of Executive stated herein are
cumulative and not exclusive of any rights or remedies otherwise
available to Executive.
Section 3 . Mutual Release of Claims . As a
material inducement to the parties to enter into this Agreement and
in consideration of the mutual releases set forth herein, Company
and Executive provide the releases as set forth in this Section to
the fullest extent permitted by law.
(a) Release of Company by Executive
. Executive, for and on behalf of himself and his spouse, heirs,
executors, administrators, representatives, attorneys, insurers,
successors and assigns (hereinafter referred to individually and
collectively in this Section 3(a) as “Executive”),
hereby COVENANTS NOT TO SUE or make any demand or claim against and
hereby irrevocably, unconditionally and forever waives with respect
to, releases and discharges Company, its subsidiaries and
affiliates, its and their respective predecessors and successors,
its and their respective former, present and/or future
stockholders, members, owners, partners, principals, directors,
officers, employees, managers, fiduciaries, administrators,
insurers, attorneys, assigns, representatives and agents, and all
parties acting by, through or under or in concert with any of them
(collectively, the “Company Released Parties”) for,
from and/or relating to any and all complaints, claims, demands,
liabilities, obligations, debts, charges, damages, causes of
actions, rights of actions, suits, proceedings, promises,
agreements and compensation of any nature whatsoever (including,
but not limited to, attorneys’ fees, interest and costs),
whether known or unknown, matured or unmatured, suspected or
unsuspected, at law or in equity, or otherwise, that exist as of,
or may have existed prior to, the Effective Date. Without limiting
the generality of the foregoing, Executive understands and agrees
that this release includes and constitutes a complete waiver,
discharge and release by Executive in all capacities (including,
but not limited to, as a stockholder, director, officer, employee,
individual or otherwise) of any and all possible claims, suits and
actions against each of the Company Released Parties based upon,
arising out of or in any manner related to Executive’s
employment or separation from employment with Company and any of
its subsidiaries or affiliates; any and all matters arising or
learned prior or subsequent to Executive’s last day of
employment with Company; any of the Prior Events; any claim or
defense that Executive could assert against any of the Company
Released Parties relating to any Prior Events or any facts or
evidence learned prior or subsequent to Executive’s last day
of employment with Company; any employee benefits, salary and other
compensation from Company and any of its subsidiaries or
affiliates; the Employment Agreement; the Separation Agreement; the
Company’s 2007 Executive Incentive Plan (including the short
term incentive program or opportunities and the long term incentive
program or opportunities under the 2007 Executive Incentive Plan);
the Company’s Short Term Executive Incentive Plan (as amended
and restated effective January 1, 2002); the Company’s
Long Term Executive Incentive Plan (as amended and
restated
2
effective
January 1, 2002); any plan, policy, program or promise of
compensation or employee benefits from any of the Company Released
Parties; any cash bonus (discretionary or otherwise) from Company
and any of its subsidiaries or affiliates; all claims under the
Exec-U-Care program of the Company and all reimbursements for
health insurance premiums relating to continuation coverage
pursuant to COBRA; any award of restricted stock, stock options or
other stock- or equity-based compensation; Executive’s
employment with or termination of employment by Company or any of
its subsidiaries or affiliates; wrongful termination or discharge;
breach of contract; breach of good faith or fair dealing;
infliction of emotional distress; discrimination based on age,
race, sex, religion, national origin, disability, veterans status,
sexual orientation, gender identity or any other claim of
employment discrimination; claims arising under the following laws
and amendments thereto, if any: the Civil Rights Act of 1866 (42
U.S.C. § 1981), Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act, the Age Discrimination in
Employment Act of 1967, the Federal Rehabilitation Act of 1973, the
Family and Medical Leave Act, the Fair Labor Standards Act, the
Older Workers Benefit Protection Act, and the Employee Retirement
Income Security Act of 1974; any other federal or state employment
law; any federal or state wage and hour laws; all other similar
federal, state or local laws, statutes, rules or regulations; and
all other tort or contract claims and other theories of recovery at
law, in equity or otherwise. Notwithstanding the foregoing, this
release does not affect, release or waive (I) any claim or
action by Executive for enforcement of this Agreement,
(II) any claim by Executive for indemnification under
Company’s By-Laws or applicable Delaware law, as each may be
in effect from time to time, relating to the indemnification of
directors and officers, and (III) any claim by Executive for
coverage under Company’s directors and officers liability
insurance policy as may be in effect from time to time;
provided , however , that with respect to any claim
or action under (II) or (III) above, such indem
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