Exhibit 10.2
RELEASE AND SEPARATION
AGREEMENT
This Release And Separation Agreement
(“Agreement”) is entered into as of the last date
signed below, by and between Sally Beauty Holdings, Inc.
(“Employer”) and Walter Richard Dowd
(“Employee”), and is intended to set forth all the
rights, duties and obligations of the parties. In
consideration of the mutual promises contained in this Agreement,
the parties agree as follows:
1.
Consideration and Termination .
A.
As consideration for entering into the release and the other
covenants and agreements contained in this Agreement, Employer will
provide Employee with the following consideration: two
hundred sixty-four thousand eight hundred forty dollars ($264,840),
payable as provided in subparagraph 1.B. below (the
“Consideration”). Employee agrees his voluntary
resignation from his position with Employer and its affiliates is
effective March 31, 2009 (the “Termination Date”),
and that he will not seek employment with, or reapply for
employment with, Employer or any Releasee. Employee acknowledges
and agrees that: i) he has no other right to the payment of the
Consideration provided for in this Agreement; and ii) the
Consideration considerably exceeds any amounts Employee otherwise
would be entitled to.
B.
The Consideration shall be paid to Employee on the following
schedule (provided Employee is not in breach of this Agreement at
the time such Consideration payment is due): the total sum of
two hundred sixty-four thousand eight hundred forty dollars
($264,840), payable as follows:
i. a payment of one
hundred thirty-eight thousand seven hundred forty dollars
($138,740), payable within ten (10) days after both
parties sign this Agreement;
ii. a payment of forty-two
thousand thirty-three dollars ($42,033), payable on June 30,
2009;
iii. a payment of thirty-two
thousand thirty-three dollars ($32,033), payable on
September 30, 2009; and
iv. a payment of fifty-two thousand
thirty-four dollars ($52,034), payable on January 5,
2010.
All payments under this subparagraph 1.B. shall
be less payroll and income taxes and other required
withholding.
2.
Earned Vacation Pay . Employer shall also pay all
undisputed vacation pay which is earned but unused as of the
Termination Date.
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Employer:
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/s/ GW
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Employee:
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/s/ WD 4-30-09
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3.
No Further Entitlements . Employee acknowledges and
agrees Employee has no further entitlements other than those
included in this Agreement and the Option Exercise Period Extension
Agreement (“Extension Agreement”) between the parties,
provided the parties execute said agreement.
4.
Nonadmission . Payment or the offer of payment of the
compensation set forth above, or the offering of this Agreement
shall not be construed as an admission of any liability on the part
of the Employer or any Releasee for a violation of law or
otherwise. Any liability is expressly denied.
5.
Waiver and Release of All Claims.
In consideration of the monies paid and other
agreements made by Employer in this Agreement, Employee on behalf
of himself, his agents, attorneys, heirs and assigns, does hereby
waives and disclaims all rights and does:
A.
RELEASE, ACQUIT, AND FOREVER DISCHARGE Employer, its current and
predecessors’ divisions, parent companies, affiliates,
subsidiaries, officers, employees, agents, prospective affiliated
employers and their owners/shareholders , and each of them
(including but expressly not limited to Alberto-Culver Company,
Sally Beauty Company, Inc., Sally Beauty Supply LLC, Sally
Holdings, Inc., New Sally Holdings, Inc., Beauty Systems
Group, Inc., Beauty Systems Group LLC, Clayton,
Dubilier & Rice, Inc., CD&R Parallel Fund VII,
L.P. and CDRS Acquisition LLC, their current and
predecessors’ divisions, parent companies, affiliates,
subsidiaries, officers, employees, agents, prospective affiliated
employers and their owners/shareholders, benefit plans and stock
option plans and each of them (except as expressly excluded) (all
the above referred to throughout as the “Releasees”)
from any and all rights, charges, actions, causes of actions,
claims, damages, obligations, suits, agreements, costs or
attorneys’ fees or rights of indemnity, and with
regard to the payment of all monies, attorneys’ fees,
benefits, back pay, debts, obligations, compensatory damages,
punitive damages, actual damages, or any other liability or payment
of any kind whatsoever, suspected or unsuspected, known or unknown,
which arose or could have arisen out of:
(x) Employee’s employment with Employer or any Releasee
arising on or before the date this Agreement is signed;
and/or, (y) any other right to benefit, payment
or claim whatsoever, known or unknown, arising or granted on or
before the date this Agreement is signed (hereafter together
referred to as “Claims”), including, but
expressly not limited to:
i.
Claims which could have arisen under Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Age Discrimination
In Employment Act, the Americans With Disabilities Act, the
Employee Retirement Income Security Act, the Family and Medical
Leave Act, the Worker Adjustment and Retraining Notification Act,
the Sarbanes-Oxley Act, the Texas Commission On Human Rights Act
(all as amended) and/or any other state, federal or municipal
employment discrimination statutes (including claims based on sex,
sexual harassment, age, race, national origin, religion, ancestry,
harassment, marital status, handicap, disability and/or
retaliation); and/or,
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Initial:
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Employer:
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/s/ GW
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Employee:
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/s/ WD 4-30-09
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ii.
Claims arising out of any other federal, state, or local statute,
law, constitution, ordinance or regulation; and/or any other claim
whatsoever including, but not limited to, claims relating to
implied or express employment contracts, public policy or tort
claims, intentional infliction of emotional distress claims,
“plant closing” law rights, personal injury claims,
defamation claims, privacy claims, wrongful discharge claims,
common law claims relating to legal restrictions on
Employer’s or any other Releasee’s right to terminate
employees or resulting from any occurrence, act, agreement or
omission to the date of this Agreement;
iii.
Claims to any payment under any Sally Beauty Holdings, Inc.
Management/Annual Incentive Plan or other performance-based or
equity-based plan (or any award of stock options under such plan)
offered by any Releasee, such as the assumed Alberto-Culver/Sally
Beauty Holdings, Inc. 2003 Employee Stock Option Plan or the
Sally Beauty Holdings, Inc. 2007 Omnibus Incentive Plan (all
of the above, the “Plans”). For purposes of
clarification, Employee expressly waives and disclaims, releases,
acquits and discharges Releasees from any further claim Employee
may have under all Plans and any awards under such Plans of any
kind or nature.
B.
SPECIFICALLY EXCLUDED FROM THIS WAIVER AND RELEASE ARE THE
FOLLOWING AND ONLY THE FOLLOWING:
i. Claims for
breach of this Agreement, provided however, any breach of this
Agreement by Employer or any Releasee other than failure to pay the
Consideration (to such time as Employee is not in breach of this
Agreement) shall give rise to a claim for breach of contract and
any statutory rights only and shall not invalidate or affect the
non-payment-related provisions of Paragraphs 1, 6, 7, 8, 9, 10, 11,
12, 13 and 14;
ii. rights to the vested
proceeds under any tax deferred benefit plan, such as a
401(k) plan or a profit sharing plan, pursuant to the terms of
the plans, and any rights under the Extension Agreement, provided
the parties execute said agreement;
iii. rights to the vested
option grant provisions under the Alberto-Culver/Sally Beauty
Holdings, Inc. 2003 Employee Stock Option Plan (the
“2003 Plan”); the parties acknowledging and agreeing
that Employee shall have the option rights accorded for a
termination due to retirement on 57,500 options issued on
December 4, 2006 ($9.57 exercise price) for a period of three
(3) years from Employee’s Termination Date (subject to
the terms and conditions of the award letter and the 2003 Plan, as
applicable) and 36,823 options issued November 16, 2006 ($2.00
exercise price) for a period of two (2) years from the
Termination Date (subject to the terms and conditions of the award
letter and the 2003 Plan, as applicable) and no further rights to
vesting of unvested options under the award letters or the 2003
Plan, as applicable;
iv. rights to file a charge
with a federal or state administrative agency or participate in any
agency investigation, provided however that Employee is waiving his
right to recover any money in connection with such a charge or
investigation and is also waiving his right
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Employer:
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/s/ GW
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Employee:
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to recover money in connection with any charge
filed by any other individual or by the Equal Employment
Opportunity Commission or any other federal or state
agency.
C.
Employee acknowledges and agrees the Consideration being received
is for the benefit of all Releasees, and not just
Employer.
6.
Employe
