EXHIBIT 10-A
SEPARATION AGREEMENT AND GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL RELEASE (the "AGREEMENT") is made
and entered into as of this 25th day of July, 2003 (the "EFFECTIVE DATE"), by
and between TruServ Corporation, a Delaware corporation (the "Company"), and
Neil A. Hastie ("HASTIE").
RECITALS
A. Hastie has been employed by the Company as its Senior Vice
President, Chief Information Officer.
B. Hastie's employment with the Company terminated on July 8,
2003.
NOW, THEREFORE, in consideration of the above premises and the
following mutual covenants and conditions, the parties agree as follows:
1. Termination of Employment. Effective the close of business on
July 8, 2003, Hastie's employment with the Company shall terminate along with
any other positions he may hold with the Company. Hastie agrees that he will not
hereafter seek reinstatement, recall or re-employment with the Company.
2. Payments. Hastie shall receive the following amounts and
entitlements in connection with his separation from the Company:
(a) Salary Continuation. The Company shall continue to pay Hastie
his base salary, as in effect on July 8, 2003, for a period of twelve (12)
months (the "SEVERANCE PERIOD") ending July 7, 2004 on the normal payroll dates
during this period.
(b) Vacation/Expenses. Hastie agrees that as of the date of his
termination, he was entitled to fifteen (15) days of accrued but unused
vacation. Such payment shall be made to Hastie no later than the first payroll
date after July 8, 2003. Hastie agrees to submit whatever business expenses he
has incurred but not yet submitted for reimbursement to the Company within
fourteen (14) days. The Company will reimburse the reasonable expenses in accord
with its usual policies, and deduct any outstanding monies owed on his behalf.
(c) Medical, Dental and Disability Benefits. Hastie may elect to
continue his medical and dental insurance coverage, as mandated by COBRA, which
the Company agrees to extend from the required 18 months to 24 months. If Hastie
elects such insurance coverage under COBRA, the Company agrees that it shall,
during Hastie's Severance Period (12 months), pay for such coverage at the same
rate the Company pays for medical and dental insurance coverage for its active
employees under its group medical and dental plan (with Hastie required to pay
for any employee paid portion of such coverage). At the end of the Severance
Period, if Hastie is not employed and eligible for medical insurance, the
company shall continue to pay for COBRA coverage at the same rate as the company
paid during the Severance Period for an additional six months. If Hastie elects
to continue medical and dental coverage for the full 24 months being offered, he
shall be solely responsible for the full COBRA premium for the last 6 months.
The Company agrees to provide Hastie with the appropriate documentation
needed to convert his long term disability policy.
(d) Qualified Pension & SERP Plans. The TruServ Deferred Lump Sum
Pension Plan and Non-qualified Supplemental Retirement Plan ("SERP") benefit
shall be payable to Hastie in a single sum within one hundred twenty (120) days
of the Effective Date.
(e) Outplacement. The Company shall pay for twelve (12) months of
outplacement services for Hastie, to be provided by an outplacement service
provider selected by the Company. It is agreed that the Company's sole
obligation in this respect is to pay, directly to the outplacement firm, for
such outplacement services, as contracted with the provider. Any dispute between
Hastie and the outplacement agency shall be deemed a dispute solely between
Hastie and the outplacement agency and shall not in any way be construed as a
breach of this Separation Agreement and General Release.
(f) Key Associate Incentive Plan. Hastie shall maintain his
eligibility to receive payment under the 2003 Key Associate Incentive Plan based
on the performance against objectives achieved by the Company. If such payment
is earned, it will be prorated to the date of Hastie's termination, and will be
paid by the end of the first quarter, 2004.
(g) Withholding. The Company and Hastie acknowledge and agree that
all payments made pursuant to Paragraph 2(a), (f) and the Non-qualified
Supplemental Retirement Plan are "wages" for purposes of FICA, FUTA and income
tax withholding and the Company shall therefore withhold from any payments
hereunder the amounts it determines to be necessary to satisfy all tax
withholding obligations.
(h) Other. Except as otherwise provided under this Agreement, no
other sums (contingent or otherwise) including executive perquisites, shall be
paid to Hastie in respect of his employment by the Company, or as additional
separation amounts, and any such sums or amounts (whether or not owed) are
hereby expressly waived by Hastie. The foregoing notwithstanding, (i) Hastie
shall be entitled to receive his account balance as of the Effective Date, if
any, under the Company's Section 401(k) Plan and (ii) in the event of Hastie's
death prior to his receipt of all the benefits to which he is entitled
hereunder, Hastie's estate shall continue to receive any amounts due him under
this Paragraph 2 provided, however, if on the date of such death, Hastie is
engaged in substantially full-time employment or substantially full-time work,
then the payments set forth in 2 (a) shall terminate.
3. General Release. As a material inducement to the Company to
enter into this Separation Agreement and General Release and in consideration of
the payments to be made by the Company to Hastie in Paragraph 2 above, Hastie,
with full understanding of the contents and legal effect of this General Release
and having the right and opportunity to consult with his counsel, waives,
releases and discharges the Company, its shareholders, officers, directors,
supervisors, members, managers, employees, agents, representatives, attorneys,
parent companies, divisions, subsidiaries and affiliates, and all related
entities of any kind or nature, and its and their predecessors, successors,
heirs, executors, administrators, and assigns (collectively, the "RELEASED
Parties") from any and all claims, actions, causes of action, grievances, suits,
charges, or complaints of any kind or nature whatsoever, that he ever had or now
has, whether fixed or contingent,
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liquidated or unliquidated, known or unknown, suspected or unsuspected, and
whether arising in tort, contract, statute, or equity, before any federal,
state, local, or private court, agency, arbitrator, mediator, or other entity,
regardless of the relief or remedy. Without limiting the generality of the
foregoing, it being the intention of the parties to make this General Release as
broad and as general as the law permits, this General Release specifically
includes any and all subject matter and claims arising from any alleged
violation by the Released Parties under the Age Discrimination in Employment Act
of 1967, as amended; Title VII of the Civil Rights Act of 1964, as amended; the
Civil Rights Act of 1866, as amended by the Civil Rights Act of 1991 (42 U.S.C.
ss. 1981); the Rehabilitation Act of 1973, as amended; the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"); the Illinois Wage Payment and
Collection Act; the Illinois Human Rights Act, the Cook County Human Rights
Ordinance, the Chicago Human Rights Ordinance, and other similar state or local
laws; the Americans with Disabilities Act; the Family and Medical Leave Act; the
Worker Adjustment and Retraining Notification Act; the Equal Pay Act; Executive
Order 11246; Executive Order 11141; and any other statutory claim, employment or
other contract or implied contract claim (including, but not limited to, any
claims arising under that certain Employment Letter dated February 23, 1998,
under any company severance policy or plan, and under any Long Term Incentive
Plan or similar program), claim for equity or phantom equity, or common law
claim for wrongful discharge, breach of an implied covenant of good faith and
fair dealing, defamation, intentional infliction of emotional distress,
negligence or invasion of privacy arising out of or involving his employment
with the Company, the termination of his employment with the Company, or
involving any continuing effects of his employment with the Company or
termination of employment with the Company. Hastie further acknowledges that he
is aware that statutes exist that render null and void releases and discharges
of any claims, rights, demands, liabilities, action and causes of action which
are unknown to the releasing or discharging party at the time of execution of
the release and discharge. Hastie hereby expressly waives, surrenders and agrees
to forego any protection to which he would otherwise be entitled by virtue of
the existence of any such statute in any jurisdiction including, but not limited
to, the State of Illinois.
Excluded from this release are any claims which cannot be waived or
released by law, including but not limited to the right to file a charge with or
participate in an investigation conducted by certain government agencies. Hastie
does, however, waive Hastie's right to any monetary recovery should any agency
(such as the Equal Employment Opportunity Commission) pursue any claims on
Hastie's behalf. Hastie represents and warrants that Hastie has not filed any
complaint, charge, or lawsuit against the Company with any government agency or
any court.
Based on the knowledge the Company has as of the Effective Date, the
Company has no basis for or intention to sue Hastie.
4. Covenant Not to Sue. Hastie, for himself, his heirs,
executors, administrators, successors and assigns agrees not to bring, file,
charge, claim, sue or cause, assist, or permit to be brought, filed, charged or
claimed any action, cause of action, or proceeding regarding or in any way
related to any of the claims described in Paragraph 3 hereof, and further agrees
that this Agreement is, will constitute and may be pleaded as, a bar to any such
claim, action, cause of action or proceeding. The foregoing notwithstanding,
this Paragraph 4 shall not preclude Hastie from (i) filing a claim with respect
to the enforcement of the terms of this Agreement, (ii) receiving vested
benefits under any employee pension plan, as defined in Section 3(2) of ERISA;
(iii) enforcing rights, if any,
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to indemnification as may be provided for under the Company's by-laws or under
any directors' and officers' liability insurance; and (iv) challenging the
release of his age discrimination claims under the ADEA. If Hastie violates this
Agreement by suing the Company, other than under the ADEA, Hastie shall be
liable to the Company for its reasonable attorneys' fees and other litigation
costs incurred in defending against such a suit. Alternatively, in the event
Hastie sues the Company (other than under the ADEA), Hastie may, at the
Company's option, be required to return all monies and other benefits paid to
Hastie pursuant to this Agreement.
5. Breach/Indemnification. Hastie will fully indemnify the
Company and its shareholders, members, managers, officers, directors, employees
and independent contractors against and will hold its shareholders, members,
managers, officers, directors, employees and independent contractors harmless
from any and all claims, costs, damages, demands, expenses (including without
limitation attorneys' fees), judgments, losses or other liabilities of any kind
or nature whatsoever arising from or directly or indirectly related to any
material breach or failure by Hastie to comply with any or all of the provisions
of this Agreement. Hastie further agrees that his continuing entitlement to the
payments described in Paragraphs 2(a), (d) and (e) is contingent on his
compliance with the provisions of this Agreement. Further, he acknowledges that
a breach of any provision of this Agreement by him shall entitle the Company, at
its sole discretion, to cease making payments under this Agreement and to
recover amounts already paid hereunder, provided the Company has served Hastie
with written notice of his breach or failure to comply, and Hastie does not
adequately cure such breach or failure within five (5) days of receipt of
notice.
6. Nondisparagement. From and after July 8, 2003, Hastie
represents that he has not made, and agrees that he will not make, release or
cause to be made or released any disparaging, derogatory, or misleading written
or oral statements about or relating to the Company or its products or services
(or about or relating to any officer, director, member, agent, employee, or
other person acting on the Company's behalf). From and after July 8, 2003, the
Company represents that no member of the control group, including Pamela Forbes
Lieberman, Amy W. Mysel, and Cathy C. Anderson has made, released or caused to
be made or released and agree that they will not make, release or cause to be
released any disparaging, derogatory or misleading written or oral statements
about Hastie.
7. Protective Agreement.
(a) Confidentiality. Hastie agrees that he will not, for any
reason whatsoever, whether voluntarily or involuntarily, use for himself or
disclose to any person any "CONFIDENTIAL INFORMATION" of the Company acquired by
Hastie during his relationship with the Company and its predecessors.
Confidential Information includes but is not limited to: (a) any financial,
business, planning, operations, services, potential services, products,
potential products, technical information and/or know-how (including vendor
managed data, pricing, internet custom catalogue, the underlying code for the
Triad Unity System, and IT system design), formulas, production, purchasing,
marketing, sales, personnel, customer, broker, supplier or other information of
the Company; (b) any papers, data, records, processes, methods, techniques,
systems, models, samples, devices, equipment, compilations, invoices, customer
lists or documents of the Company; (c) any matters relating to the legal affairs
of the Company or matters relating to the activities of the Company's Board of
Directors; (d) any confidential information or trade secrets of any third party
provided to the Company in confidence or subject to other use or disclosure
restrictions or
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limitations; and (e) any other information, written, oral or electronic, which
pertains to the Company's affairs or interests or with whom or how the Company
does business. The Company acknowledges and agrees that Confidential Information
does not include (i) information properly in the public domain, or (ii)
information in Hastie's possession prior to the date of his original employment
with the Company or its predecessors, except to the extent that such information
is or has become a trade secret of the Company or is or otherwise has become the
property of the Company. Hastie further acknowledges and agrees that he is
estopped from and will not dispute in any proceeding the enforceability of this
Paragraph 7(a).
(b) Restrictions. Except on behalf of the Company, Hastie agrees
that he will not, at any time prior to July 8, 2005, directly or indirectly:
(1) solicit on his own behalf or on behalf of any other
person or entity, the services of any person who is a current employee
of the Company (or was an employee of the Company during the year
preceding such solicitation), nor solicit any of the Company's current
employees (or any individual who was an employee of the Company during
the year preceding such solicitation) to terminate employment or an
engagement with the Company, nor agree to hire any current employee (or
any individual who was an employee of the Company during the year
preceding such hire) of the Company into employment with him or any
other person or entity; or
(2) become associated, whether as an investor (excluding
investments representing less than one percent (1%) of the common stock
of a public company), lender, owner, stockholder, officer, director,
employee, agent, consultant or in any other capacity, with the
following businesses or related entities: Ace Hardware Corporation,
Do-It-Best Corporation, Orgill, Inc, Handy Andy, Five Star Group, and
Distribution America, Sears, PRO, Home Depot, and Lowes.
Notwithstanding the foregoing, the restriction set forth in Paragraph 7 (b) (2)
shall terminate on July 8, 2004, as to Sears, Home Depot and Lowes.
(c) Enforcement. It is agreed that breach of this Paragraph 7 will
result in irreparable harm and continuing damages to the Company and its
business and that the Company's remedy at law for any such breach or threatened
breach, will be inadequate and, accordingly, in addition to such other remedies
as may be available to the Company at law or in equity in such event, any court
of competent jurisdiction may issue a temporary and permanent injunction,
without the necessity of the Company posting bond and without proving special
damages or irreparable injury, enjoining and restricting the breach, or
threatened breach, of this Paragraph 7, including, but not limited to, any
injunction restraining the breaching party from disclosing, in whole or part,
any Confidential Information. In addition to, but not in lieu of, the remedies
contained herein, the Company and Hastie agree that for purposes of this
Separation Agreement and General Release, damages will be difficult to assess
and, in recognition thereof, Hastie shall pay and the Company shall accept as
liquidated damages, and not as a penalty, the sum of $250,000. Hastie will pay
all of the Company's costs and expenses, including reasonable attorneys' and
accountants' fees, incurred in enforcing this Paragraph 7.
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8. Company Property. Hastie agrees to return to the Company by July 9,
2003 all Company property in his possession or control, including but not
limited to all Company credit cards, documents, memoranda, information,
computers or related equipment, telephones, keys, identification cards and
anything else belonging to the Company, regardless of location. Hastie agrees to
permanently and fully delete from his personally owned computer(s) and
information devices all Company information or software of any kind. Hastie
agrees to complete this deletion by July 11, 2003 and to make his computer(s)
and information devices available for inspection and verification by the
Company. Additionally, Hastie agrees not to enter, damage, interfere with, log
on to, or otherwise use in any way any Company information system at any time.
Hastie further represents that he has not destroyed, deleted or otherwise
removed from the Company any property belonging to the Company and agrees that
he will not destroy, delete or otherwise remove from the Company any property
belonging to the Company.
9. Severability. If any provision of this Separation Agreement and General
Release shall be found by a court to be invalid or unenforceable, in whole or in
part, then such provision shall be construed and/or modified or restricted to
the extent and in the manner necessary to render the same valid and enforceable,
or shall be deemed excised from this Agreement, as the case may require, and
this Agreement shall be construed and enforced to the maximum extent permitted
by law, as if such provision had been originally incorporated herein as so
modified or restricted, or as if such provision had not been originally
incorporated herein, as the case may be. The parties further agree to seek a
lawful substitute for any provision found to be unlawful; provided, that, if the
parties are unable to agree upon a lawful substitute, the parties desire and
request that a court or other authority called upon to decide the enforceability
of this Agreement modify the Agreement so that, once modified, the Agreement
will be enforceable to the maximum extent permitted by the law in existence at
the time of the requested enforcement.
10. Waiver. A waiver by the Company of a breach of any provision of this
Separation Agreement and General Release by Hastie shall not operate or be
construed as a waiver or estoppel of any subsequent breach by Hastie. No waiver
by the Company shall be valid unless in writing and signed by an authorized
officer of the Company.
11. Miscellaneous Provisions.
(a) Announcements. Hastie and the Company agree that he
and it will keep the terms and amounts set forth in this Separation Agreement
and General Release completely confidential and, except as may be required by
law, will not disclose any information concerning this Agreement's terms and
amounts to any person other than his or its attorney, accountant, tax advisor,
or in the case of Hastie, his immediate family. Hastie agrees and acknowledges
that he will make no announcement about his termination or about the affairs of
the Company, which is in any manner inconsistent with the terms of this
Agreement, and further agrees and acknowledges that any press or other written,
oral or electronic public releases, or statements concerning his termination,
the terms of this Agreement or about the affairs of the Company shall be issued
by the Company only. The foregoing notwithstanding, Hastie shall not be
prohibited from recounting his professional accomplishments while employed by
the Company for the sole purpose of obtaining future employment.
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(b) Knowing and Voluntary. Hastie represents and
certifies that he has carefully read and fully understands all of the provisions
and effects of this Agreement, has knowingly and voluntarily entered into this
Agreement freely and without coercion, and acknowledges that on July 9, 2003, by
this Agreement, the Company advised him to consult with an attorney prior to
executing this Agreement and further advised him that he had twenty-one (21)
days (until July 30, 2003) within which to consider this Agreement. Hastie is
voluntarily entering into this Agreement and neither the Company nor its agents,
representatives, or attorneys made any representations concerning the terms or
effects of this Agreement other than those contained in the Agreement itself.
Further, Hastie acknowledges that the consideration provided him in exchange for
his execution of this Separation Agreement and General Release includes
consideration in addition to what he would otherwise be entitled to as a matter
of law or policy of the Company.
(c) Revocation. Hastie acknowledges that he has seven (7)
days from the date this Agreement is executed in which to revoke his acceptance
of this Agreement, and as such this Agreement will not be effective or
enforceable until such seven (7)-day period has expired.
(d) Compliance. Hastie agrees that he shall sign the
second quarter 2003 Sarbanes-Oxley internal management team representation form
provided to the Company's Chief Executive Officer and Chief Financial Officer,
as of July 8, 2003 if he reasonably believes it is proper to do so.
12. Complete Agreement. Other than vested employee benefits in the SERP and
401(k) plan, this Agreement sets forth the entire agreement between the parties,
and fully supersedes any and all prior agreements or understandings between the
parties pertaining to actual or potential claims arising from Hastie's
employment with the Company or the termination of Hastie's employment with the
Company.
13. Future Cooperation. In connection with any and all claims, disputes,
negotiations, governmental or internal investigations, lawsuits or
administrative proceedings (the "LEGAL MATTERS") involving the Company, or any
of its current or former officers, employees or Board members (collectively, the
"DISPUTING PARTIES" or, individually, a "DISPUTING PARTY"), Hastie agrees to
make himself available, upon reasonable notice from the Company and without the
necessity of subpoena, to provide information or documents, provide declarations
or statements regarding a Disputing Party, meet with attorneys or other
representatives of a Disputing Party, prepare for and give depositions or
testimony, and/or otherwise cooperate in the investigation, defense or
prosecution of any or all such Legal Matters, as may, in the sole judgment of
the Company, be reasonably requested. Hastie may engage his own legal counsel in
such legal matters, and, to the extent permitted under the Company's Directors'
and Officers' insurance policy, such legal counsel will be reimbursed
accordingly. In addition, Hastie agrees that, through July 8, 2004, he shall be
available from time to time to provide consulting services to the Company for up
to one hundred (100) hours, as are reasonably assigned to him by the Company in
regard to its business (the "SERVICES"). The Services will include Hastie's
advice, counsel and assistance to be furnished at the reasonable request of the
Company from time to time in connection with its business and Information
Systems department transition. The Company agrees to give Hastie reasonable
notice of what Services it desires and when it desires them to be performed.
Hastie shall diligently, competently and faithfully perform all duties, and
shall use his best efforts to promote the Company.
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To the extent the Company requests services from Hastie after July 8, 2004,
Hastie shall be compensated at the rate of $175.00 per hour for each hour.
14. Amendment. This Agreement may not be altered, amended, or modified
except in writing signed by both Hastie and the Company.
15. Joint Participation. The parties hereto participated jointly in the
negotiation and preparation of this Agreement, and each party has had the
opportunity to obtain the advice of legal counsel and to review and comment upon
the Agreement. Accordingly, it is agreed that no rule of construction shall
apply against any party or in favor of any party. This Agreement shall be
construed as if the parties jointly prepared this Agreement, and any uncertainty
or ambiguity shall not be interpreted against one party and in favor of the
other.
16. Notice. All notices, requests, demands, claims and other communications
hereunder shall be in writing. Any notice, request, demand, claim, or other
communication hereunder shall be deemed duly given (i) three (3) business days
after it is sent by registered or certified mail, return receipt requested,
postage prepaid, (ii) when receipt is electronically confirmed, if sent by fax
(provided that a hard copy shall be promptly sent by first class mail), or (iii)
one (1) business day following deposit with a recognized national overnight
courier service for next day delivery, charges prepaid, and, in each case,
addressed to the intended recipient, as set forth below:
To the Company: TruServ Corporation
8600 West Bryn Mawr Avenue
Chicago, Illinois 60631-3505
Attn: Pamela Forbes Lieberman
President and Chief Executive Officer
To the Employee: Neil A. Hastie
3419 Winchester Lane
Glenview, IL 60025
17. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Illinois, without reference to its
conflict of law provisions. Furthermore, Hastie agrees and consents to submit to
personal jurisdiction in the state of Illinois in any state or federal court of
competent subject matter jurisdiction situated in Cook County, Illinois.
18. Headings. The headings in this Agreement are inserted for convenience
only and are not to be considered a constriction of the provisions hereof.
19. Execution of Agreement. This Agreement may be executed in several
counterparts, each of which shall be considered an original, but which when
taken together, shall constitute one Agreement.
20. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Company and its successors, assigns, and to any person or entity
that acquires the Company or all or substantially all of the assets of the
Company.
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PLEASE READ THIS AGREEMENT AND CAREFULLY CONSIDER ALL OF ITS PROVISIONS
BEFORE SIGNING IT. THIS AGREEMENT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS, INCLUDING THOSE UNDER THE FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT,
AND OTHER FEDERAL, STATE AND LOCAL LAWS PROHIBITING DISCRIMINATION IN
EMPLOYMENT.
IN WITNESS WHEREOF, Hastie and the Company have voluntarily signed this
Separation Agreement and General Release consisting of nine (9) pages on the
date set forth above.
TruServ Corporation
By: /s/ Amy W. Mysel
Its: Vice President of Human Resources /s/ Neil A. Hastie
Neil A. Hastie
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