EMPLOYEE SEPARATION AGREEMENT
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THIS AGREEMENT made as of this 27th day of December, 1994 by and between
Designs, Inc., a Delaware corporation having a usual place of business in
Chestnut Hill, Massachusetts ("Designs"), and Geoffrey M. Holczer ("Holczer") of
Newton, Massachusetts.
W I T N E S S E T H T H A T:
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WHEREAS, Designs has employed Holczer most recently as Senior Vice
President Finance and Treasurer; and
WHEREAS, Designs and Holczer desire to set forth the terms of the
termination of Holczer's employment at Designs and his employee separation
package;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements set forth herein, Designs and Holczer hereby agree as follows:
1. Holczer hereby resigns as Senior Vice President-Finance, Treasurer and
an employee of Designs, effective December 6, 1994. At the request of Designs,
Holczer will execute and deliver to Designs a separate instrument embodying such
resignation. Holczer shall not hereafter be considered an employee of Designs,
and, except as specifically set forth herein, he shall not be required to
perform any services for Designs. As used in this Agreement, the term
"termination date" means December 6, 1994, the date on which Holczer's
employment by Designs terminated.
2. (a) Provided Holczer has executed and delivered this Agreement and
has not revoked it in accordance with Section 26 hereof, commencing on the date
seven days after the end of the revocation period (as hereinafter defined) and
continuing for a period (hereinafter referred to as the "salary continuation
period") of six months, Holczer shall be paid his full base salary less
applicable deductions for taxes and any continued benefit plans. Except as
expressly set forth in this Agreement, he shall not be entitled to continue to
participate in any welfare or benefit plan maintained by Designs. All payments
during the salary continuation period shall be made at or about the time of
Designs' bi-monthly pay cycle.
(b) Holczer agrees that he will promptly notify Designs when he
anticipates commencing full-time employment and shall provide Designs with the
date on which such employment will commence and the name of his employer and
description of his duties with the detail described above. Holczer shall also
promptly notify Designs when he anticipates commencing any employment which he
believes does not constitute full-time employment.
(c) The term "full-time employment" means employment (as that term is
defined by common law and the regulations of the Internal Revenue Service) for a
wage or salary on a substantially full-time basis. Without limiting the
generality of the foregoing, full-time employment shall specifically include any
self-employment, whether as a consultant or otherwise, or any employment in
which Holczer will accrue any retirement benefits (whether or not vested),
medical coverage or other health or welfare benefits.
3. Provided Holczer has executed and delivered this Agreement and has
not revoked it in accordance with Section 26 hereof, Holczer shall be paid a
bonus for fiscal year 1995 in an amount calculated in accordance with Designs'
Executive Incentive Plan in three equal monthly installments commencing one
month after the end of the salary continuation period (the "bonus period").
4. On the fourteenth (14th) day following the execution and delivery of
this Agreement, provided Holczer has not theretofore revoked this Agreement in
accordance with Section 26 hereof, Designs shall transfer title to Holczer of
the Cadillac automobile owned by Designs which he now drives.
5. (a) Holczer shall be paid in full for his sick time and vacation time
accrued through the termination date. He will not accrue further sick time or
vacation time after his termination date. Consequently, he will not accrue sick
time or vacation time during the salary continuation period.
(b) Provided Holczer has executed and delivered this Agreement and
has not revoked it in accordance with Section 26 hereof, Designs shall continue
Holczer's health insurance coverage under Designs' standard group plans for the
duration of the salary continuation period plus the three month bonus period.
(c) Holczer acknowledges that his rights under the Consolidated
Omnibus Budget Reconciliation Act ("COBRA") become effective as of the end of
his salary continuation plus bonus period and entitle him to participate in
Designs' group health insurance plan (at his own expense) under the terms of
COBRA.
(d) All options which have heretofore been granted to Holczer
under Designs' 1987 Incentive Stock Option Plan, 1987 Non-Qualified Stock Option
Plan, and 1992 Stock Incentive Plan shall be exercisable in accordance with
their terms for thirty (30) days after the termination date.
6. In order to assist Holczer in finding employment, for a period of six
months following the end of the revocation period, provided Holczer has executed
and delivered this Agreement and has not revoked it in accordance with Section
26 hereof, Designs shall provide to Holczer, and pay the reasonable cost of, (1)
the service of an outplacement organization of Holczer's choice but reasonably
satisfactory to Designs, and of (2) reasonable and documented transition
expenses in finding employment, such outplacement and transition costs together
not to exceed $7500 in total. Designs shall furnish to any potential employer
only confirmation of dates of employment and position in accordance with its
normal policy. Holczer and Designs agree that unless otherwise required by law
or an order of a court or governmental agency, public statements concerning the
reasons for Holczer's termination of employment at Designs will be limited to
the language agreed on or otherwise set by management on the termination date.
7. Designs further agrees to pay the reasonable cost of psychological or
workplace behavior counseling by a professional counselor of Holczer's choice
for a period of six months following the end of the revocation period, provided
Holczer has executed and delivered this Agreement and has not revoked it in
accordance with Section 26 hereof.
8. Except as provided above, all other benefits heretofore provided by
Designs to Holczer have terminated as of the termination date. Holczer
specifically acknowledges that the salary payments during the six month salary
continuation period, bonus payments, stock options and other benefits described
herein are in lieu of all other benefits and payments which otherwise may have
been payable to him as a result of his termination under benefit plans or
policies of Designs, including, without limitation, additional salary
continuation pay, stock options, bonus payments, separation pay, commission and
automobile insurance, fuel and repair costs, and he hereby waives any rights he
may have in or to any such other benefits or payments, it being the intention of
the parties hereto to convert and merge all such rights into this Agreement.
9. After the termination date, Holczer shall cease any and all
communication and contact, oral or written, direct or indirect, with Designs,
its affiliates or any of their respective past, present or future officers,
directors and employees, subject to the following three exceptions: (i)
communications with the Vice President of Human Resources of Designs concerning
matters of employment, (ii) communications with the General Counsel of Designs
as to questions concerning this Agreement or other legal matters, and (iii)
communications necessitated by Holczer's assistance in the transfer of his
responsibilities to others within Designs as set forth in Section 10.
Notwithstanding the above provisions of q 9, if an employee of Designs initiates
contact with Holczer, Holczer may communicate with that employee, except that
Holczer may not with that employee engage in any communications about Designs,
its affiliates, officers, directors and employees, about his employment with
Designs, and about the circumstances of his departure from Designs. All such
communications initiated by Designs' employees must comply with the other
requirements of this Agreement, including, particularly, paragraphs 11, 12 and
15. Holczer further agrees that on and after the termination date, he will have
no contact, oral or written, direct or indirect, with Designs stockholders,
analysts and investment banks and advisors and their representatives, and news
media concerning Designs. Holczer further agrees that after the termination
date he shall not enter the premises or property of Designs or any of its
affiliates, subsidiaries or related companies for any purpose at any time unless
he is specifically requested to do so by the Chief Executive Officer, the Vice
President of Human Resources or the General Counsel of Designs.
10. For a period of sixty days from and after the date hereof, Holczer
shall make himself available at reasonable times to assist in the transition of
his former workload to other employees, to answer any questions regarding
matters previously assigned to him by Designs and otherwise to assist Designs in
transferring his responsibilities to others within Designs.
11. Holczer shall not, directly or indirectly, solicit, participate in or
bring any legal claim, action or proceeding against Designs, whether by himself
or by any person, agency, organization or entity, and shall not voluntarily
become involved or participate or cooperate in, publicly or privately, any legal
claim, action or proceeding against Designs except as required to do so by
properly issued subpoena and then only after giving Designs a reasonable
opportunity to review such subpoena and oppose the giving of such testimony.
12. Holczer understands that as an officer and senior employee of Designs
he has had access to confidential and proprietary information concerning Designs
and its affiliates. Holczer agrees that he will not disclose or use any such
confidential or proprietary information, whether for his benefit or for the
benefit of another, and that, without limiting the generality of the foregoing,
unless he has specific prior written authorization from Designs, he will not
disclose any such confidential or proprietary information to any person, firm,
corporation or other entity, whether or not in competition with Designs or any
of its affiliates, for any reason or purpose whatsoever.
Holczer agrees that the fact and existence of this Agreement and
amounts paid hereunder shall not be disclosed by Holczer to any person,
corporation, organization, agency or other entity, except for his wife, his
attorney, his tax advisor and to such government authorities as required by law.
13. Holczer agrees that all discoveries, inventions, ideas, concepts,
know-how, developments and improvements (whether or not patentable or subject to
copyright protection) that were written, made, conceived, developed or reduced
to practice by him, whether alone or jointly with others, in the course of,
relating to or arising out of any of his work for Designs (hereinafter
collectively referred to as the "Developments") shall be the sole property of
Designs. Holczer further agrees that the originals and all copies of all
notebooks, disks, tapes, computer programs, reports, proposals, notes and other
documents and materials evidencing, incorporating, constituting, representing or
recording any Development or Confidential Information or of any other
information, software or materials furnished to Holczer by Designs, however and
whenever produced (whether by Holczer or others), shall be the sole property of
Designs. Holczer agrees to provide all reasonable assistance to Designs in
perfecting and maintaining its rights in the Developments. Holczer agrees to,
and hereby does, assign to Designs all of his right, title and interest
throughout the world in and to all Developments and to anything tangible which
evidences, incorporates, constitutes, represents or records any Development.
14. Holczer confirms and agrees that he has returned to Designs and
forever ceased to use all originals and all copies of all notebooks, disks,
tapes, computer programs, software, reports, proposals, notes, documents and
other materials which contain any confidential or proprietary information of
Designs or its vendors or customers or which otherwise are the property of
Designs. Holczer further confirms and agrees that he has returned to Designs
and forever ceased to use his office keys, key cards, printed cards, corporate
credit cards and other property which had been in his possession and was owned
by Designs or its vendors or customers other than the automobile described
above.
15. Holczer hereby agrees not to criticize, disparage or otherwise comment
negatively about, orally or in writing, directly or indirectly, Designs, its
affiliates or any of their respective past, present or future officers,
directors, employees, agents, businesses, suppliers or service providers,
products or services. He agrees to use his best efforts to ensure that none of
the members of his family so criticize or disparage any of such persons or
entities. Holczer further agrees that he shall be publicly and privately
cooperative and supportive of Designs in regard to its personnel, corporate
practices and policies and other matters.
16. Holczer, for himself, his heirs, legal representatives, successors and
assigns, does hereby waive, remise, release and forever discharge Designs, its
past, present, and future directors, officers, stockholders in their capacity as
stockholders, employees, affiliates, agents and attorneys and their respective
heirs, legal representatives, successors and assigns, of and from any and all
claims, debts, demands, actions, causes of action, suits, dues, sum and sums of
money, accounts, reckonings, bonds, specialties, covenants, contracts,
controversies, agreements, promises, doings, omissions, variances, damages,
executions, liabilities and obligations (hereinafter collectively referred to as
"Claims") of every kind and nature whatsoever, at law, in equity or otherwise,
which he has, or ever had, or which he can, shall or may have, for, upon or by
reason of any matter, cause or thing whatsoever, whether known or unknown, from
the beginning of the world to and including the date hereof, including, without
limitation, all Claims which arise out of or in connection with Holczer's
employment or the termination of his employment with Designs and all Claims
under the common law and the federal Age Discrimination in Employment Act or the
Fair Labor Standards Act, but excluding all Claims based on a breach of this
Agreement.
17. Holczer acknowledges that he may hereafter discover facts in addition
to or different from those which he now knows or believes to be true with
respect to the subject matter of this Agreement, that it is his intention hereby
fully, finally and forever to waive and release all matters released in Section
16 hereof (the "released matters") and that, in furtherance of such intention,
the release given herein shall be and remain in effect notwithstanding the
discovery or existence of any such additional or different facts.
18. Holczer warrants and represents to Designs that he has not heretofore
assigned, transferred or purported to assign or transfer, and shall not
hereafter assign or transfer or purport to assign or transfer, to any person or
entity any released matter. Holczer shall indemnify and hold harmless Designs
from and against all claims, suits, actions, causes of action, liabilities,
obligations, losses, costs and expenses (including, without limitation,
attorneys' fees whether or not litigation be commenced) based on, resulting
from, in connection with, or arising out of, any such assignment or transfer or
purported assignment or transfer.
19. In the event Holczer shall breach this Agreement, in addition to all
other rights and remedies available to Designs and notwithstanding any other
provision of this Agreement to the contrary, Designs shall have no further
obligations to make payments or provide benefits to Holczer hereunder.
Notwithstanding any other provision of this Agreement to the contrary, if it
shall be alleged that Holczer has breached any provision of this Agreement,
Designs may suspend salary continuation payments pending its determination of
whether a breach has occurred.
20. Holczer agrees that he shall not bring any action or proceeding
against Designs arising out of or relating to the termination of his employment
with Designs. If Holczer should bring any action arising out of the subject
matter of this Agreement and Designs shall prevail concerning any or all of the
issues so presented, Holczer shall pay to Designs all of its costs and expenses
of the defense of such issue(s). If at any time Holczer shall bring an action
or proceeding to challenge the validity of this Agreement or any of its
provisions, he shall first repay to Designs all payments, considerations and
benefits provided by Designs to which Holczer would not be entitled absent this
Agreement.
21. Neither this Agreement nor any provision or part hereof shall
constitute, or be construed as, an admission of liability or wrongdoing by
either party hereto.
22. This Agreement shall be binding upon, and inure to the benefit of, the
parties hereto and their respective heirs, legal representatives, successors and
assigns, and shall inure to the benefit of all past, present and future
directors, officers, stockholders in their capacity as stockholders, employees,
affiliates, agents and attorneys and their respective heirs, legal
representatives, successors and assigns.
23. This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, between them concerning such subject matter.
24. This Agreement shall be governed by, and construed and enforced in
accordance with, the substantive laws of the Commonwealth of Massachusetts
without regard to its principles of conflicts of laws.
25. This Agreement may be executed in one or more counter-parts, each of
which when so executed shall be deemed to be an original and all of which
together shall constitute one and the same agreement.
26. Holczer further states that he has carefully read this Agreement, that
he knows and understands the contents hereof and that he is executing this
Agreement as his own free act and deed and knowingly and voluntarily waives his
rights and claims as described above. In signing this Agreement, Holczer
acknowledges that he has not relied on any statements or explanations made by
Designs. Holczer further represents and agrees that he has been advised by
Designs to consult with an attorney prior to executing this Agreement, that he
has been given a reasonable and adequate amount of time to consult with an
attorney if he so desires, and that he fully understands the terms, conditions,
and final and binding effect of this Agreement and the release contained herein
to be a full and final release of all claims with final and binding effect.
Holczer acknowledges that he has been given a period of at least twenty-one days
within which to consider this Agreement prior to his execution hereof.
Furthermore, Designs and Holczer agree that Holczer shall have the right to
revoke this Agreement by written notice to Designs within the seven-day period
after he executes it (the "revocation period"), and that this Agreement shall
not become effective or enforceable until such seven-day revocation period has
expired. In the event this Agreement is revoked by Holczer in accordance with
the provisions of this Section 26, notwithstanding the immediately preceding
sentence, Holczer shall return to Designs all payments, considerations and
benefits provided by Designs to which Holczer would not be entitled absent this
Agreement.
IN WITNESS WHEREOF, Designs and Holczer have set their hands and seals on
the date first above written.
ATTEST: DESIGNS, INC.
/s/ Scott N. Semel By /s/ Joel H. Reichman
[Seal]
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Its President thereunto
duly authorized
WITNESS:
/s/ Jerome N. Weinstein /s/ Geoffrey M. Holczer
[Seal]
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Geoffrey M. Holczer