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Exhibit 10.24
SEPARATION AGREEMENT
THIS
SEPARATION AGREEMENT (this “ Agreement ”)
is made as of June 1, 2007, by and between Burlington Coat
Factory Warehouse Corporation, a Delaware corporation (the
“ Company ”), and Elizabeth Williams
(“ Executive ”).
WHEREAS,
the Company and executive have previously entered into an
Employment Agreement dated as of June 26, 2006 (the
“Employment Agreement”); and
WHEREAS,
the Company and the Executive desire to terminate
Executive’s employment on the terms and conditions set
forth herein;
NOW,
THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1.
Definitions . Unless otherwise specifically defined
herein, all defined terms shall have the meanings set forth in the
Employment Agreement:
2.
Separation Terms, Continuation of Responsibilities, Employment
Termination Date .
(a)
Executive’s
employment with the Company and her positions as Executive Vice
President and Chief Merchandising Officer of the Company will cease
effective June 29, 2007.; provided, however, the Company shall have
the right, exercisable by the Company in its sole discretion, to
delay the effectiveness thereof for a period up to sixty (60) days
(the day that the Company determines to be the effective date of
termination being hereinafter called the “Effective
Date”).
(b)
Prior
to the Effective Date, Executive will continue as an employee of
the Company and continue to receive Base Salary and other benefits
pursuant to the Employment Agreement, except as otherwise modified
by this Agreement.
(c)
Prior
to the effective Date, executive will continue to render her normal
services to the Company and such other duties and responsibilities
consistent with Executive’s former position with the Company
as may be reasonably requested by the Company.
3.
Separation Benefits .
(a)
Notwithstanding
anything in the Employment Agreement to the contrary, Executive
will be entitled to receive the bonus compensation provided in
Section 3(b) of the Employment Agreement for the period ending on
the first anniversary of the Commencement Date, together with the
payments and benefits described in Clauses (1), (4) and (5) of
Section 4(b)(i) of the Employment Agreement. Executive
shall not be entitled to any payment of any pro rata portion of
Executive’s target bonus during the Termination Year under
Section 3(b) or under Clauses (2) and (3) of Section 4(b)(i) of the
Employment Agreement; provided, however, Executive will be entitled
to receive the bonus payable pursuant to Section 3(b) for the
period ending on the first anniversary of the Commencement Date to
the extent not
(b)
previously
paid by the Company plus the payments described in Clauses (1), (4)
and (5) of Section 4(b)(i) of the Employment
Agreement. In addition, Executive shall be entitled to
elect to purchase continuation of health benefits under the
Consolidated Omnibus Budget Reconciliation Act
(“COBRA”) to the extent then legally permissible and
upon the same terms and conditions as made available to other
“qualified beneficiaries” (as defined under COBRA) no
later than the earlier of the expiration of the severance period
during which Executive’s benefits are continue pursuant to
Section 4(b)(i)(5) of the Employment Agreement or eighteen months
after the Effective Date.
(c)
The
Company and the Executive may issue a joint statement regarding
Executive’s separation from employment, and such statement
shall be in a form mutually acceptable to both
parties. Executive and the Company agree that they will
not make or publish, or cause to be made or published, any
statement, observation or opinion (whether written or oral) that
is, or may reasonably be considered to be disparaging or negative
about the other party. This provision shall not limit or
restrict a party’s duty to respond truthfully to any lawfully
served subpoena or governmental inquiry.
(d)
On
or before the Effective date, Executive shall make arrangements for
the return to the Company of the automobile provided by the Company
for Executive’s use during the Employment
Period.
(e)
Executive
agrees that: (i) Executive shall be entitled to the
payments and services provided for herein, if and only if Executive
has executed and delivered the Release attached as Exhibit A
and seven (7) days have elapsed since such execution without any
revocation thereof by Executive and Executive has not breached as
of the Effective Date the provisions of Sections 5, 6 and 7 of the
Employment Agreement and does not breach such sections or such
covenants at any time during the period for which such payments or
services are to be made; and (ii) the Company’s obligation to
make such payments and services will terminate upon the occurrence
of any such breach during such period.
(f)
Except
as stated above, and except for the bonus pursuant to Section 3(b)
of the Employment Agreement which shall be paid to Executive on the
June 29, 2007 payroll date, any payments pursuant to Clauses (1),
(4) and (5) of Section 4(b)(i)of the Employment Agreement shall be
paid by the Company in regular installments in accordance with the
Company’s general payroll practices, and following such
payments the Company shall have no further obligation to Executive
except as provided by law. All amounts payable to
Executive as compensation hereunder shall be subject to all
customary withholding, payroll and other taxes. The
Company shall be entitled to deduct or withhold from any amounts
payable to Executive any federal, state, local or foreign
withholding taxes, excise tax, or employment taxes imposed with
respect to Executive’s compensation or other payments or
Executive’s ownership interest in the Company (including,
without limitation, wages, bonuses, dividends, the receipt or
exercise of equity options and/or the receipt or vesting of
restricted equity).
(g)
Executive
hereby agrees that except as expressly provided herein, no
severance compensation of any kind, nature or amount shall be
payable to Executive and except as expressly provided herein,
Executive hereby irrevocably waives any claim for severance
compensation.
(h)
Except
as provided herein, all of Executive’s rights pursuant to
Sections 3(b), 3(e), 3(f), 3(g) and 3(h) of the
Employment Agreement shall cease upon the Effective
Date.
4.
Executive’s Representations . Executive
represents that she has not filed any charge, claim, or complaint
against the Company or any Releasees (defined below),
and she further covenants and represents that no such charge, claim
or complaint will be filed against any of the Releasees with
respect to any matter released under Section 6 of this
Agreement. Nothing contained herein shall prohibit the
parties to this Agreement from (a) bringing any action to enforce
the terms of this Agreement; (b) filing a timely charge or
complaint with the Equal Employment Opportunity Commission
(“EEOC”) regarding the validity of this Agreement, 9c)
filing a timely charge or complaint with the EEOC or participating
in any investigation or proceeding conducted by the EEOC or any
governmental agency (although Executive agrees that pursuant to
section 6 below, she has waived any right to personal recovery or
personal injunctive relief in connection with any such charge or
complaint) or (d) participating or testifying in any action if
compelled to do so by judicial subpoena, court order, or otherwise
as directed by state or federal law.
5.
Survival . Section 3(i) and Sections 4 (except as
modified hereby) through 20, inclusive, of the Employment Agreement
shall survive and continue in full force in accordance with their
terms notwithstanding the termination of the Employment
Period.
6.
General Release. In consideration of and in return
for the particular payments and benefits required to be provided to
Executive pursuant to Section 3 of this Agreement, which is
acknowledged to be in addition to any payments or benefits which
she would otherwise receive and the sufficiency of which is hereby
acknowledged, Executive, on behalf of herself and her respective
heirs, executors, administrators, successors and assigns, hereby
releases and forever discharges the Company and Bain Capital
Partners, L.P., and each of their respective parents, subsidiaries,
affiliated companies, predecessors and successors, and each of
their respective past and present officers, directors, employees
affiliates, agents, attorneys, insurers, benefit committees,
trustees, fiduciaries, plans, trusts, and their respective heirs,
executors, administrators, successors and assigns (the
“Releasees”), from any and all actions, causes of
action, demands, suits and claims, in law or in equity, whether
known or unknown which he ever had, now has, or could have,
including any and all claims arising out of or relating in any way
to the Employment Agreement, Executive’s employment with the
Company and the termination of that employment. The
claims released hereby include, but are not limited
to:
(a)
all
statutory claims including claims arising under the New jersey Law
Against Discrimination, the New jersey Conscientious Employee
Protection Act, the new Jersey Civil Rights Act, the new jersey
Wage and Hour Laws, Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1991, the Age Discrimination in Employment Act,
the American with Disabilities Act, the family Medical leave Act,
the New Jersey Family Leave Act, the Fair Labor Standards Act, the
Sarbanes Oxley Act, the Rehabilitation Act and the Employee
Retirement Income Security Act;
(b)
all
claims arising under the United States or New Jersey
Constitutions;
(c)
all
claims arising under any Executive order or derived from or based
upon any federal regulations;
(d)
all
common law claims including claims for wrongful discharge, public
policy claims, retaliation claims, claims of breach of an express
or implied contract (including, without limitation, claims arising
in connection with the Employment Agreement and any amendments or
supplements thereto), claims for breach of an implied covenant of
good faith and fair dealing, intentional or negligent infliction of
emotional distress, defamation, conspiracy, loss of consortium,
tortuous interference with contract or prospective advantage and
negligence;
(e)
other
than as provided in Section 3 above, all claims for any
compensation for back wages, front pay, bonuses or awards,
severance, fringe benefits, stock options, restricted stock units,
deferred compensation, profit sharing, pay in lieu of notice of
termination of employment, reinstatement, retroactive seniority,
pension benefits or any form of economic loss;
(f)
all
claims for personal injury, including physical injury, mental
anguish, emotional distress, pain and suffering, embarrassment,
humiliation, damage to name or reputation, liquidated damages and
punitive damages; and
(g)
all
claims for costs and attorneys’ fees on behalf of any
attorneys who may represent Executive.
7.
Notices . Any notice provided for in this Agreement
shall be in writing and shall be either personally delivered, sent
by reputable overnight courier service with confirmation of
delivery, sent by facsimile (with evidence of transmission) or
mailed by first class mail, return receipt requested, to the
recipient at the address below indicated:
To
Executive:
Elizabeth
Williams
9
Southern Hills Drive
Skillman,
New Jersey 08558]
Facsimile
No.: (___)
___-_____
with
a copy (which shall not constitute notice) to:
Michael
D. Homans, Shareholder
Flaster,
Greenberg P.C.
Eight
Penn Center, 15 th
Floor
1628
John F. Kennedy Boulevard
Philadelphia,
PA 19103
Facsimile
No.:
215-279-9394
To
the Company:
Burlington
Coat Factory Warehouse Corporation
1830
Route 130
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