Termination & Release Agreement Belvin Freidson



 





EXHIBIT 10.1




TERMINATION AND RELEASE AGREEMENT




     THIS TERMINATION AND RELEASE AGREEMENT (this “Agreement”) is made and
entered into as of this 1st day of November, 2004 (the “Effective Date”), by
and between Applica Incorporated, a company organized and existing under the
laws of the State of Florida, (formerly known as Save-Way Industries, Inc.)
(“Applica”) and Mr. Belvin Friedson, a resident of the State of Florida
(“Friedson”). Applica and Friedson are hereinafter collectively referred to as
the “Parties” and each individually as a “Party”.



W I T N E S S E T H:




     WHEREAS, the Parties entered into that certain Employment Agreement dated
as of January 27, 1983, as amended from time-to-time, pursuant to which
Friedson was employed as the Chief Executive Officer of, and subsequently a
consultant to, Applica (the “Employment Agreement”);



     WHEREAS, the Parties have determined that it is in their respective best
interests to terminate the Employment Agreement as of the Effective Date; and



     WHEREAS, each Party desires to unconditionally waive and permanently
release the other Party from the terms and conditions of the Employment
Agreement, including any liability relating to either Party entering into the
Employment Agreement, and discharge the other Party from its respective
obligations thereunder, all as provided in this Agreement.



     NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties hereto agree as follows:



     1. Termination. The Parties agree and acknowledge that effective as of
the Effective Date, the Employment Agreement shall be automatically terminated
and of no further force or effect and no Party thereto shall have any rights or
obligations arising thereunder.



     2. Termination Fee. As consideration to Friedson for early termination of
the Advisory Period (as defined in Section 6(b) of the Employment Agreement),
Applica agrees to pay Friedson a lump sum termination fee of $900,000.00 as
follows:



     (a) $300,000 within 10 days of execution of this Agreement;



     (b) $300,000 on or before January 1, 2005; and



     (c) $300,000 on or before March 31, 2005.



Additionally, Applica agrees to transfer title to the 2002 Lexus LS 430
currently used by Friedson to Friedson.



 









 








     3. Mutual Release and Indemnification.




     a. Friedson, on behalf of himself, his spouse, children, heirs,
successors and assigns, executors, administrators, personal
representatives and legal representatives (collectively, the “Friedson
Parties”), hereby fully and irrevocably releases, acquits, and discharges
Applica and its predecessors, current and former subsidiaries and
divisions, present and former directors, officers, shareholders,
principals, controlling persons, employees, affiliates, advisors, agents,
successors and assigns (collectively, the “Applica Released Parties”),
from any and all liabilities, rights, claims, courses of action, damages,
costs (including costs of suit, attorneys’ fees and expenses) and demands
of whatever nature, character, type or description, whether known or
unknown, existing or potential, or suspected or unsuspected, which
Friedson or any of the other Friedson Parties has, or has ever had, or
may hereafter have, against any of the Applica Released Parties in
connection with the Employment Agreement and his employment and
consultancy with Applica; and simultaneously Applica, on behalf of itself
and its affiliates, successors and assigns (collectively, the “Applica
Parties”), hereby fully and irrevocably releases, acquits, and discharges
Friedson and the other Friedson Parties (collectively, the “Friedson
Released Parties”), from any and all liabilities, rights, claims, courses
of action, damages, costs (including costs of suit, attorneys’ fees and
expenses) and demands of whatever nature, character, type or description,
whether known or unknown, existing or potential, or suspected or
unsuspected, which Applica or any of the other Applica Parties has, or
has ever had, or may hereafter have, against any of the Friedson Released
Parties in connection with the Employment Agreement; provided, however,
that nothing contained herein shall operate to release any obligation of
Friedson or Applica, as the case may be, arising under this Agreement,
including, without limitation, the obligations contained in Sections 1
and 2 hereof.




     b. Friedson, on behalf of himself and each of the other Friedson
Parties, and Applica, on behalf of itself and each of the other Applica
Parties, hereby irrevocably covenants to refrain from, directly and
indirectly, asserting any claim or demand, or commencing, instituting or
causing to be commenced, any proceeding of any kind against the Applica
Released Parties or the Friedson Released Parties, as the case may be,
based upon any matter purported to be released pursuant to this
Agreement.




     c. Without in any way limiting any of the rights and remedies
otherwise available to any of the Friedson Released Parties, the Applica
Released Parties shall indemnify and hold harmless the Friedson Released
Parties from and against all loss, liability, claim, damage (including
incidental and consequential damages) or expenses (including costs of
investigation and defense and reasonable attorneys’ fees) whether or not
involving third party claims, arising directly or indirectly from or in
connection with any claim or other matter purported to be released
pursuant to this Agreement.




     d. Each Party hereby agrees (i) not to make, or cause to be made,
(directly or indirectly) any derogatory or critical comments or
statements (whether orally or in writing) about Freidson or Applica or
its officers or employees; and (ii) not to make, or cause to be made
(directly or indirectly), any statement or comment to the press or other



 









 






media concerning the Employment Agreement, the Advisory Period or
its termination without the prior written consent of other Party.



     4. Further Assurances. Each Party agrees to do such further things and to
execute and deliver such further documents after the Effective Date promptly
and as may be necessary in order to effect the purposes and intent of this
Agreement. Friedson acknowledges and agrees (i) that he has been given a
reasonable time to review this Agreement; (ii) that he is entering into this
Agreement freely and voluntarily and not as a result of any coercion or duress
or undue influence; (iii) that he has read and fully understand the terms of
the Agreement and has had the opportunity to consult with counsel of his choice
regarding this Agreement; and (iv) that he is not relying upon any oral
representations made to him regarding the subject matter of this Agreement.



     5. Entire Agreement. This Agreement constitutes and expresses the entire
understanding among the Parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, whether express or implied, oral or
written. Neither this Agreement nor any provision hereof may be changed,
waived or amended orally or in any other manner other than by an agreement in
writing signed by the Parties hereto. This Agreement has been fully and freely
negotiated by the parties hereto, shall be considered as having been drafted
jointly by the parties hereto, and shall be interpreted and construed as if so
drafted, without construction in favor of or against any party on account of
its participation in the drafting hereof.



     6. Governing Law; Consent to Jurisdiction. The validity and effect of
this Agreement shall be exclusively governed by and construed and enforced in
accordance with the laws of the State of Florida, without regard to any
conflict-of-law rule or principle that would give effect to the laws of another
jurisdiction. Each Party hereto irrevocably submits to the non-exclusive
jurisdiction of the courts of the State of Florida in any action or proceeding
arising out of or relating to this Agreement or any other agreement executed in
connection with this Agreement. EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO
SO, TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING HEREUNDER.



     7. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument. An executed counterpart
of this Agreement transmitted by facsimile shall be effective upon receipt of
the facsimile as an original counterpart.



     8. Severability. In case any one or more of the provisions contained in
this Agreement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby, and the Parties
shall in good faith attempt to amend this Agreement to eliminate any invalidity
or unenforceability, without thereby affecting the intent of the Parties as
expressed herein.



     9. Waiver. The acceptance or acquiescence by any Party of any breach of
any term or condition of this Agreement by any other Party shall not operate as
a waiver of that term or



 









 





condition, nor shall it excuse any subsequent breach of the same term or
condition by such other Party. In order for any waiver to be effective, it
must be in writing and signed by the waiving Party.



     10. Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.



     11. Amendment and Modification. This Agreement may be amended, modified
or supplemented only by written agreement of the Parties.



     IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.



	 	 	 	 	 	 	 
	 	 	APPLICA INCORPORATED
	 
	 	 	 	 	 	 
	

	 	By:	 	/s/ Harry D. Schulman	 	 
	

	 	 	

	 	 	Name: Harry D. Schulman
	 	 	Title: President and Chief Executive Officer
	 
	 	 	 	 	 	 
	 	 	BELVIN FRIEDSON, individually
	 
	 	 	 	 	 	 
	 	 	/s/ Belvin Friedson