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EXHIBIT 10.7
May 15, 1995
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇
Dear Dolph:
This letter will confirm our agreement ("Agreement") with respect to
the termination of your employment at ▇▇▇▇ Corporation ("Zale"). The parties
agree that neither the specific terms nor the existence of this agreement will
be disclosed by either party to anyone except as required by law or for the
purpose of obtaining advice as provided for herein.
1. Your last day of employment at Zale will be June 15, 1995.
2. The Company will provide severance benefits to you under the
Executive Severance Plan, as amended and restated February 10, 1994 ("Plan")
(copy attached), as follows:
a. Nine months of severance pay;
b. Medical and life insurance benefits contemplated by
the Plan during the period ended June 30, 1995;
thereafter, you will be eligible for benefits under
the Zale Retired Employee Medical Plan in accordance
with the terms of that Plan;
c. Outplacement assistance for three months; and
d. Use of Company car for 45 days (with an option to
purchase in accordance with Company policy).
Pursuant to Section 4.1 of the Plan, in order to receive the
benefits discussed above, you are required to execute the Waiver of Benefits
attached as Exhibit A.
3. In addition to benefits under the Plan, the Company will
provide the additional benefits described in this Section, which you acknowledge
is above and beyond any benefits or payments you are entitled to receive under
the law or pursuant to any contract or benefit plan of Zale (including the
Plan). In consideration of these additional benefits, you are required to
execute the Agreement and General Release attached as Exhibit B, and you agree
to comply with the terms of this Agreement. You understand and agree that,
except as set forth in this Agreement, you will receive no payments,
compensation, benefits, perquisites, remuneration or bonuses, including
severance, which you might otherwise be entitled to pursuant to any
understanding or agreement.
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a. (i) Zale will pay to you the nine months of severance pay,
specified in Section 2 (a) above, in a single lump sum payment in cash on June
15, 1995, your last day of employment. Zale will pay to you three months
additional severance pay in a single lump sum payment in cash on April 15, 1996.
(ii) Zale will pay you twelve months additional base salary
in twelve equal monthly installments, starting July 15, 1995 provided that
amounts payable to you under this Section 3 (a) (ii) ( but not under Section 2
(a) or 3 (a) (i) shall be subject to reduction equal to any amounts you earn or
become entitled to receive during such twelve month period from any employment,
whether as an employee, consultant, advisor, partner or otherwise, other than as
a non-employee member of the Board of Directors of ▇▇▇▇▇▇'▇ Sporting Goods, Inc.
You agree to notify Zale in writing on the first day of each month during such
period of any amounts so earned or to which you became entitled during the prior
month.
b. You will receive the bonus to which you would otherwise have
been entitled for the fiscal year ending July 31, 1995 under Zale's Annual
Incentive Plan had your employment terminate after July 31, 1995. Solely for
purposes hereof, the percent of your "base salary" payable as bonus for the full
fiscal year shall be determined based solely upon achievement of the same
corporate and divisional goals required for other senior executives of Zale, and
individual performance will not be considered in your case. Any bonus payable to
you hereunder shall be paid at the same time bonuses are paid to other senior
executives.
4. ▇. ▇▇▇▇ owns and has developed and compiled, and will develop
and compile, certain proprietary techniques and confidential information which
have great value to its business (referred to in this Agreement, collectively,
as "Confidential Information"). Confidential Information includes not only
information disclosed by Zale to you, but also information developed or learned
by during the course or as a result of employment with Zale, which information
is and shall be the property of Zale. confidential Information includes all
information that has or could have commercial value or other utility in the
business in which Zale is engaged or contemplates engaging, and all information
of which the unauthorized disclosure could be detrimental to the interests of
Zale, whether or not such information is specifically labelled as Confidential
Information by Zale. By way of example and without limitation, Confidential
Information includes any and all information developed, obtained or owned by
Zale concerning trade secrets, techniques, know-how (including designs, plans,
procedures, merchandising know-how, processes, and research records), software,
computer programs, innovations, discoveries, improvements, research,
development, test results, reports, specifications, data, formats, marketing
data and plans, business plans, strategies, forecasts, unpublished financial
information, orders, agreements and other forms of documents, price and cost
information, sourcing plans and techniques, merchandising opportunities,
expansion plans, store plans, budgets, projections, customer, supplier and
subcontractor identities, characteristics and agreements, and salary, staffing
and employment information.
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b. You acknowledge and agree that Zale disclosed to and
entrusted you with Confidential Information which is the exclusive property of
Zale and which you may not use upon leaving the employ of Zale. You also
acknowledge that you are aware that the unauthorized disclosure of Confidential
Information, among other things, may be prejudicial to Zale's interests, an
invasion of privacy and an improper disclosure of trade secrets. You shall not,
directly or indirectly, use, make available, sell, disclose or otherwise
communicate to any corporation, partnership, individual, or other third party,
any Confidential Information, either during the period of severance payments
hereunder or thereafter.
c. You will not remove from Zale's premises, or provide access
to any other person, without Zale's prior written consent any records, files,
drawings, documents, equipment, materials and writings received from, created
for or belonging to Zale, including those which relate to or contain
Confidential Information, or any copies thereof.
5. Following on your last day of employment, Zale will pay you an
amount equal to your earned (during the fiscal year ended March 31, 1994 and the
short fiscal year ended July 31, 1994) but unused (as of June 15, 1995) vacation
pay and your earned, unpaid base salary through June 15, 1995. Further, Zale
will reimburse you for any travel/business expenses in accordance with Zale's
expense reimbursement policies, provided that you submit to Zale the required
documentation. You will not receive or be entitled to any accrued vacation pay
in respect of the fiscal year ending July 31, 1995 or any unused sick leave.
6. Questions concerning the premium charge for continuation of
insurance coverage after June 30, 1995 should be directed to ▇▇▇▇▇▇ ▇▇▇▇▇▇,
along with any other questions you may have concerning your right to
distribution of the amounts in Zale's 401(k) and other retirement plans in which
you may have accounts. You will be receiving a separate notice concerning your
right to continue insurance coverage under the Zale retired employee medical
plan.
7. You agree to return to Zale all original documents, software,
equipment, and other materials belonging to Zale, including, but not limited to,
Zale identification and keys, wherever such items may be located.
8. In the event you breach this Agreement, Zale will be entitled
to such relief as is available to it at law or in equity. Specifically, and
without limiting any other rights, if you breach any provisions of Section 4
hereof, the Company shall be entitled to cease any further payments owing to you
under Section 3 hereof.
9. If any section of this Agreement should be held invalid by
operation of law or by any tribunal of competent jurisdiction, or if compliance
with or enforcement of any section is restrained by such tribunal, the
application of any and all other sections, other than those which have been held
invalid, shall not be affected.
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10. This Agreement shall be binding upon you, your heirs,
administrators, representatives, executors, successors and assigns and shall
likewise be binding on Zale and its divisions, subsidiaries and affiliates, and
their respective successors and assigns and shall inure to the benefit of you,
your heirs, administrators, representatives, executors, successors and assigns,
and of Zale and its divisions, subsidiaries and affiliates, and their respective
successors and assigns.
11. This Agreement and Exhibits A and B hereto set forth the entire
Agreement between the parties and with respect to the subject matter hereof and
fully supersedes any and all prior agreements or understanding between them
pursuant to such subject matter.
If the arrangements we have discussed and agreed upon are accurately
set forth above, please confirm your approval and acceptance of our Agreement by
signing both enclosed copies of this Agreement and Exhibits A and B, and
returning both copies to me.
/s/ A. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
A. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. V.P Human Resources
Agreed as modified on page 2.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
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AGREEMENT AND GENERAL RELEASE
This Agreement and General Release ("Agreement") is made and entered
into by and between ▇▇▇▇ Corporation and ▇▇▇▇▇ ▇▇▇▇▇.
DEFINITIONS
As used throughout this Agreement and General Release:
1. "Executive" refers to ▇▇▇▇▇ ▇▇▇▇▇, his heirs, executors,
administrators, agents, successors, assigns and dependents.
2. "Zale" refers to ▇▇▇▇ Corporation, its past and present
parents, subsidiaries, affiliates, and divisions, and each of their respective
past and present officers, directors, agents, employees, successors and assigns.
RECITALS
WHEREAS, Executive has been employed by Zale as General Counsel.
WHEREAS, Executive's employment with Zale is being terminated in
accordance with the attached letter ("Letter"); and
WHEREAS, the parties desire to settle fully any and all claims and
controversies arising out of the employment relationship between Executive and
Zale and the termination thereof;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and in the Letter, and intending to be and being legally
bound hereby, the parties agree as follows:
AGREEMENT
1. Executive represents that he does not have any claim, action or
proceeding pending against Zale.
2. Except as necessary to enforce the terms of this Agreement and
General Release and the Letter, and in exchange for and in consideration of the
promises, covenants and agreements set forth herein, Executive hereby releases
Zale from any and all manner of claims, demands, causes of action, obligations,
damages, or liabilities whatsoever of every kind and nature, at law or in
equity, known or unknown, and whether or not discoverable, which he has or may
have for any period prior to and including the date of the execution of this
Agreement and General Release, including, but not limited to, any claim of
defamation, wrongful discharge, breach of an express or implied contract, and
claims of discrimination under the Age Discrimination In Employment Act of 1967
and all other federal, state and local laws, and any claim for attorneys' fees
or costs.
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3. Executive promises never to file or participate in a lawsuit,
arbitration or other legal proceeding asserting any claims that are released
pursuant to this Agreement and General Release. If Executive breaches his
promise and files or participates in a legal proceeding based on claims he has
released, he agrees to pay for all costs incurred by Zale, including reasonable
attorneys' fees, in defending against his claim.
Zale asserts that it does not have any present knowledge of a
factual basis for, and has no present intention of filing, a lawsuit or other
legal proceeding against you.
4. The parties (and persons acting on their behalf) shall not
disclose, and shall take all reasonable measures to prevent the disclosure, to
any person or entity the existence, terms and/or subject matter of this
Agreement and General Release, except as required by law. This provision does
not prohibit Executive from providing this information to his spouse or to his
attorneys or accountants for purposes of obtaining legal, tax or financial
advice or as otherwise required by law.
5. On or before June 15, 1995, Executive shall return to Zale all
of Zale's property in his possession, custody or control; provided, however,
that (1) Executive may have the use of his company car until August 1, 1995.
6. In executing this Agreement and General Release, neither Zale
nor Executive is admitting any liability or wrongdoing, and the considerations
exchanged herein do not constitute an admission of any liability, error,
contract violation, or violation of any federal, state, or local law or
regulation.
7. This Agreement and General Release shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
8. The unenforceability or invalidity of any provision or provisions of
this Agreement and General Release shall not render any other provision or
provisions hereof unenforceable or invalid.
9. This Agreement and General Release and the accompanying Letter
constitute the entire agreement between the parties and cannot be altered except
in a writing signed by the parties. The parties acknowledge that they entered
into this Agreement and General Release voluntarily, that they fully understand
all of its provisions, and that no representations were made to induce execution
of this Agreement and General Release which are not expressly contained herein.
10. The parties agree that any disputes concerning the
interpretation or application of the Agreement and General Release shall be
governed by Texas Law in a state or federal court located in Texas, without
regard to principles of conflicts of laws.
11. Executive has been afforded an opportunity to take at least
twenty-one (21) days to consider this Agreement and General Release and has been
advised to consult with the attorneys of his choice prior to executing this
Agreement and General Release. The parties understand and acknowledge that
Executive will have a period of seven (7) calendar days
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following his execution of this Agreement and General Release in which to revoke
his consent, and that the Agreement and General Release will not become
effective or enforceable until the revocation period has expired.
IN WITNESS WHEREOF, the parties have executed this Agreement and
General Release on the dates indicated below.
▇▇▇▇ CORPORATION
/s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ A. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇ A. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President
Human Resources
SWORN to before me this day of SWORN to before me this day of
, 1995. , 1995.
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Notary Public Notary Public