TRANSITION/RESIGNATION AND
RELEASE AGREEMENT
Name of
Executive: Koreen A. Ryan
Date of this Agreement: March 14, 2006
Resignation Date: April 3, 2006
This
Transition/Resignation and Release Agreement (this “
Agreement ”) is entered into as of the " Date of
this Agreement ” indicated above, by and among Enesco
Group, Inc. (hereinafter, together with its successors, referred to
as the “ Company ”), on behalf of itself, its
predecessors, successors, subsidiaries, divisions, assigns,
affiliates and all of their present and former officers, directors,
employees, agents, attorneys and representatives (collectively, the
" Releasees ”), and the individual whose name is set
forth above, on behalf of herself and her agents, spouse,
dependents, assignees, attorneys, executors, heirs and
representatives (“ Executive ”), and is intended
to set forth all the rights, duties, obligations and concessions of
the parties. In consideration of the mutual promises contained in
this Agreement and other lawful and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1.
Employment Transition .
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The Company and the Executive
acknowledge that as of the Date of this Agreement, Executive has
resigned her responsibilities as Senior Vice President, General
Counsel and Secretary of the Company and, until the “
Resignation Date ” indicated above, Executive shall
assume the employment duties as a legal advisor to the Company.
During the employment period between the Date of this Agreement and
the Resignation Date, Executive shall make her services as an
employee available to authorized representatives of the Company as
specifically requested by the President and Chief Executive Officer
of the Company, but Executive shall not initiate services, or
represent herself as authorized to act, on behalf of the Company
(other than to inform third parties, including search firms and
prospective employers, of her provision of transitional legal
advisory service to the Company through the Resignation Date), and
shall cease reporting to work at any of the Company’s
locations, unless otherwise requested by the President and Chief
Executive Officer. During the employment period between the Date of
this Agreement and the Resignation Date, Executive shall be paid at
her current base salary rate and continue to participate in the
employee benefits plans in which she was enrolled on the Date of
this Agreement. Executive will also receive payment of her bonus
for the prior fiscal year in the amount of $7,200.00. Such services
shall involve the areas and matters in which she was involved prior
to the Date of this Agreement, including investigations, threatened
or actual litigation and regulatory actions concerning the Company.
She should also provide to the Company, if requested, information
relating to ongoing matters of interest to the Company, and aid in
transitioning management of the Law Department. In requesting any
such services, the Company will take into
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consideration the Executive’s
personal commitments, will give the Executive as much advance
notice as reasonably possible, and ask that she be available at
such time or times, and at such location or locations, as are
reasonable and mutually convenient to her and the
Company.
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Executive and the Company agree
that Executive’s last day of employment with the Company
shall be the Resignation Date indicated above. Following the
Resignation Date, (i) Executive shall be paid the four days of
accrued but unpaid vacation to which she is entitled, (ii) be
provided any vested benefits to which she is entitled under the
Company’s employee benefits plans, and (iii) be
furnished with any required information regarding her employee
benefit continuation or conversion rights. Notwithstanding the
foregoing, in the event Executive does not timely sign and return
this Agreement, or revokes this Agreement pursuant to Paragraphs 13
and 19 (below), Executive’s Resignation Date shall be
April 3, 2006.
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2. Consideration . As
consideration for the release and the other promises of Executive
contained in this Agreement, the Company will provide Executive
with the following compensation and benefits, provided Executive
timely signs and returns this Agreement, does not revoke it, and
timely signs and returns the identical general release and covenant
not to sue pursuant to Paragraphs 13 and 19 (below):
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Executive shall be entitled to
receive as separation pay an amount equal to $181,500.00 which is
eleven (11) months of her current annual base salary payable
in installments in accordance with the Company’s regular
payroll payment schedule. Payment of separation pay shall commence
after the seven (7) day revocation period described below has
passed.
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If Executive elects to exercise her
applicable COBRA continuation rights to continue her Company
sponsored medical benefits, such medical benefits shall be provided
to her by the Company paying the employer portion of the COBRA
continuation premium and her paying the employee portion of the
COBRA continuation premium at the Company active employee
contribution rate for medical benefits for the earlier of nine
(9) months or until she becomes eligible for coverage under
another employer’s health benefits plan. Thereafter,
Executive will be required to pay the full applicable COBRA
premium.
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The Company hereby releases
Executive from the obligation to repay to the Company the
$35,000.00 sign-on bonus which Executive received from the Company
pursuant to Executive’s April 13, 2005 offer
letter.
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3. COBRA Continuation . The
Company will notify Executive of her rights under the Consolidated
Omnibus Budget Reconciliation Act (“ COBRA ”).
Except as otherwise provided in Paragraph 2(b) above,
Executive’s participation in any and all Company benefit
programs shall end on the Resignation Date set forth
above.
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4. No Further Entitlements .
Executive agrees that she has been paid and received all
compensation, pay and benefits from the Company to which she is
entitled under federal, state or local wage and hour, or other law.
Executive understands and acknowledges she has no further
entitlements, other than those included in this Agreement and
except with respect to rights, if any, that have vested as of the
Resignation Date under the Company’s employee benefit plans
and such rights which she has under the indemnification provisions
of the Company’s bylaws (the “Indemnification
Bylaws”), the Company’s Directors and Officers’
Insurance (“D&O Insurance”) and the Company’s
Employed Lawyers’ Professional Liability Insurance. Executive
also acknowledges that she has suffered no known workplace injury
for which Executive has not already filed a workers’
compensation claim.
5. Expense Reports and Return of Company
Property . Executive agrees that no later than one
(1) week from the Resignation Date, Executive shall submit all
expense reports, if any, that she owes the Company for expenses she
has incurred. Upon submission of proper receipts, the Company
agrees to reimburse Executive for any business expenses she
incurred and paid on behalf of the Company per Company policy.
Executive further agrees that on or before the Resignation Date
Executive shall return to the Company all property of the Company,
including but not limited to, computer and communications
equipment, keys, security access and credit cards. Executive
further agrees to return all corporate documents, handbooks, policy
manuals, records, documents, notes and materials (in paper and
electronic form), no later than the Resignation Date.
6. Nonadmission . The parties
agree that the Company’s payment or offer of payment under
this Agreement, the Executive’s resignation and acceptance of
such payment and the releases herein shall not be construed as an
admission of any liability on the part of the Company or the
Executive of a violation of any federal, state or local statute, or
other source of law.
7. Nondisparagement . Executive
shall not, directly or indirectly, make or cause to be made any
disparaging, derogatory, misleading or false statement, whether
orally or in writing, to any person or entity, including members of
the investment community, press, and customers, competitors and
advisors to the Company, about the Releasees, or the business
strategy, plans, policies, practices or operations of the Company.
Similarly, the Company shall not, directly or indirectly, make or
cause to be made any disparaging, derogatory, misleading or false
statement, whether orally or in writing, to any person or entity,
including members of the investment community, press, and
customers, competitors and advisors to the Company, about
Executive, or the Executive’s performance while working at
the Company. In order to conform to the terms of this
Nondisparagement provision, the Chairman of the Board of the
Company shall instruct the officers and members of the Board of
Directors of the Company not to, directly or indirectly, make or
cause to be made any disparaging, derogatory, misleading or false
statement, whether orally or in writing, to any person or entity,
including members of the investment community, press, and
customers, competitors and advisors to the Company, about the
Executive or the Executive’s performance while working at the
Company. The President and Chief Executive Officer of the Company
shall provide written confirmation
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to Executive that she and the other officers and
members of the Board of Directors have been duly instructed and
acknowledge their obligations as described above. As soon as
practicable, the Chairman of the Board of Directors of the Company
will provide a written recommendation in the form attached hereto
as Attachment I , and she will respond to any verbal
reference inquiries consistent therewith. All inquiries regarding
Executive will be directed to the Chairman of the Board of
Directors. In addition, the statement issued by the Company
regarding Executive’s resignation from employment shall be
substantially in the form attached hereto as Attachment II
and any internal and/or external communications thereafter by the
officers and members of the Board of Directors of the Company
regarding Executive’s resignation from employment shall be
consistent therewith. Notwithstanding the foregoing provisions of
this Paragraph 7, the Releasees and the Executive may each
confer in confidence with their respective legal representatives
and nothing herein shall prevent any party from responding
truthfully to any information requests or questions posed in any
formal or informal legal, regulatory, administrative or
investigative proceedings involving any court, tribunal or
governmental body or agency or as otherwise as required by
law.
8. Release . Executive waives,
releases, acquits and forever discharges the Company and the other
Releasees from any and all claims, actions or combinations of
claims and actions of any kind, at law or in equity, before
judicial, administrative or arbitrational tribunals, which have
arisen or may arise, in common law or equity, relating to
Executive’s employment with or termination from the Company,
including but not limited to claims for compensation, severance
pay, attorney fees, breach of contract, wrongful termination,
defamation, intentional infliction of emotional distress, tort,
personal injury, invasion of privacy, or any other claim
whatsoever, and/or any alleged violations of any federal, state, or
local civil rights statutes including but not limited to Title VII
of the Civil Rights Act of 1964, as amended, the Civil Rights Act
of 1866, the Civil Rights Act of 1871, the Civil Rights Act of
1991
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