EXHIBIT 10(m)
SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE ("Separation Agreement") is made and
entered into this 16th day of November, 2005 by and between LESCO, Inc., an Ohio
Corporation ("Lesco") and MICHAEL P. DIMINO ("Executive").
WHEREAS, Lesco and Executive entered into an Employment Agreement dated
February 23, 2004 pursuant to which Executive became an employee of Lesco; and
WHEREAS, Lesco and Executive subsequently amended said Employment Agreement
by the Amendment dated October 20, 2005 pursuant to which Executive voluntarily
resigned his employment with Lesco, said resignation to be treated as a
termination without Cause under the Employment Agreement (the Employment
Agreement and the Amendment hereafter collectively referred to as the
"Employment Agreement, as amended"); and
WHEREAS, Lesco and Executive now desire to set forth the specific terms of
said termination without Cause and to otherwise conclude Executive's employment
on an amicable and mutually agreeable basis.
NOW THEREFORE, the parties to this Separation Agreement, in consideration
of the mutual premises contained herein and other good and valuable
consideration, agree as follows:
1. Resignation. Executive's last day of employment was October 20, 2005 and
said date (hereinafter referred to as "Resignation Date") shall be the effective
date of Executive's resignation as an employee of Lesco.
2. Base Salary and Annual Bonus. In accordance with the Employment
Agreement, as amended, and its terms governing termination without Cause, Lesco
shall pay Executive the following amounts and in the following manner:
(a) On May 1, 2006, Lesco shall pay Executive a lump sum of
$250,000.00. Thereafter, beginning June 1, 2006, Lesco shall pay
Executive, on a monthly basis, six (6) equal payments of
$41,666.67, said monthly payments totaling $250,000.00. The total
of said lump sum payment and monthly payments shall be
$500,000.00 representing one (1) year of Executive's Base Salary
as of the Resignation Date.
(b) On May 1, 2006, Lesco shall pay Executive a lump sum of
$150,000.00. Thereafter, beginning June 1, 2006, Lesco shall pay
Executive, on a monthly basis, six equal payments of $25,000.00,
said monthly payments totaling $150,000.00. The total of said
lump sum payment and monthly payments shall be $300,000.00
representing Executive's Annual Bonus Target as of the
Resignation Date.
3. Health Insurance. For one year following with the Resignation Date,
Lesco shall continue health insurance benefits for the Executive and his
eligible dependents at no additional cost to the Executive other than that which
was in effect as of the Resignation Date. Thereafter, Executive shall be
eligible to continue said health insurance benefits for himself and his eligible
dependents in accordance with COBRA. To cover Executive's portion of the costs
for these benefits from October 22, 2005 through November 30, 2005, the
following sum must be paid by Executive:
Medical: $261.34
Dental: $ 50.43
Vision: $ 18.00
Medical FSA: $275.53 Total: $605.30
Beginning December 1, 2005, Executive's monthly payment will be as follows:
Medical: $197.60
Dental: $ 38.13
Vision: $ 13.61
Medical FSA: $208.33 Total: $457.67
Checks should be made payable to LESCO sent to the attention of Siobhan Arnould
by the first of the month for coverage for such month.
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4. Vacation. Lesco already has paid Executive for all earned but unused
vacation days as of the Resignation Date, and nothing further is due and owing
to Executive.
5. Outplacement. Lesco shall pay the cost of executive level outplacement
services by an outplacement firm selected by Executive, consistent with Section
6(f)(D) of the Employment Agreement.
6. Options and Stock Awards. Lesco shall cooperate with and assist
Executive in his exercise of stock options and other Lesco stock ownership
matters awarded to him under the Employment Agreement as amended, consistent
with Section 6(f)(D) of the Employment Agreement as amended.
7. Indemnification. Notwithstanding the provisions of Section 8 of this
Separation Agreement, Section 7 of the Employment Agreement as amended shall
remain in effect in accordance with its terms.
8. Release. Except for claims alleging breach of this Separation Agreement,
Executive does hereby release and forever discharge Lesco, including its parent
companies, divisions, subsidiaries, affiliates, predecessors, successors,
assigns, directors, officers, employees and agents and each of them (the
"Released Parties") from any and all claims, demands, actions, causes of action
or suits at law or in equity of whatsoever kind or nature which Executive, his
heirs or his personal representatives may now or hereafter assert against the
Released Parties and each of them growing out of or resulting from Executive's
employment by Lesco, the termination of his employment from Lesco, and the
circumstances surrounding his termination, arising from the beginning of time up
to and including the date Executive signs this Separation Agreement including,
but not limited to, claims arising under any federal, state or local statute,
ordinance or regulation dealing in any respect with employment and
discrimination in
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employment, including, but not limited to, claims under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. Section 2000e, et seq., the Age
Discrimination In Employment Act, as amended, 29 U.S.C. Section 621, et seq.,
the Americans With Disabilities Act, 42 U.S.C. Section 12111, et seq. claims for
compensation, vacation pay or benefits beyond that provided herein, and in
addition thereto, from any claims demands or actions brought on the basis of any
contract, express or implied, including the Employment Agreement as amended, or
tort or on the basis of alleged wrongful discharge under the common law of any
state.
Executive further covenants and agrees never to institute any suit,
complaint, proceeding or action at law, in equity or otherwise, in any court of
the United States or any State thereof of either the United States or any state,
county or municipality thereof or before any tribunal, public or private,
against the Released Parties, or in any way voluntarily aid in the institution
or prosecution of any claim of any sort seeking any kind of relief, in any way
arising from or relating to Executive's employment with Lesco and the
termination of his employment.
It is the intention of Executive in executing this Release that it shall be
an effective bar to each and every claim, demand and cause hereinabove
described.
9. Notwithstanding any other provision of this Agreement to the contrary,
the parties agree expressly that the terms and obligations of Section 8 of the
Employment Agreement shall continue in full force and effect as if rewritten
herein in their entirety.
10. Non-Admissions. Executive and Lesco acknowledge and agree that the
considerations exchanged herein are not pursuant to any existing Lesco policy
and do not constitute an admission of liability, wrongdoing, or guilt on the
part of either party, but merely result from the desire of the parties of
expeditiously terminate the employment relationship and resolve any possible
disputed issues of law or fact.
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11. Severability. Each of the terms and provisions of this Separation
Agreement is to be deemed severable in whole or in part and, if any term or
provision or the application thereof in any circumstances should be invalid,
illegal or unenforceable, the remaining terms and provisions or the application
thereof to circumstances other than those as to which it is held invalid,
illegal or unenforceable, shall not be affected thereby and shall remain in full
force and effect.
12. Controlling Law and Jurisdiction. This Separation Agreement shall be
governed by and interpreted and construed according to the laws of the State of
Ohio.
13. Effectiveness and Revocation. Executive acknowledges that he has been
given the opportunity to consider this Separation Agreement for twenty-one (21)
days and has consulted with legal counsel of his choosing before signing it.
Executive understands that he shall have seven (7) days from the date on which
he executes this Separation Agreement (as indicated by the date below his
signature) to revoke his signature and agreement to be bound hereby by providing
written notice of revocation to Lesco, addressed to Maureen Thompson, within
such seven (7) day period. Executive further understands and acknowledges that
this Separation Agreement shall become effective, if not sooner revoked, on the
eighth day after the execution hereof by Executive (the "Effective Date").
/s/ Michael P. DiMino /s/ Jeffrey L. Rutherford
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MICHAEL P. DIMINO LESCO, INC.
11/14/05 11/16/05
DATE DATE
SOLICITORS, 31168, 00040, 101113470.3, Dimino Separation Agreement-DUP 11-11-05
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