EXHIBIT 10.15


 


CONFIDENTIAL
SEPARATION AND RELEASE AGREEMENT


 


This Confidential Release
Agreement (“Agreement”) is made and entered into by and between Mary Kwan (“Employee”) on the one hand, and Zale Delaware, Inc. (“Zale” or the “Company”)
on the other, hereinafter collectively referred to as the “Parties.”


 


RECITALS


 


WHEREAS, Employee was
employed by Zale;


 


WHEREAS, Employee’s last day
of employment was January 11, 2010 (the
“Separation Date”);


 


NOW, THEREFORE, in
consideration of the Recitals and the mutual promises, covenants, and
agreements set forth herein, the receipt and sufficiency of which are hereby
acknowledged, and to fulfill Employee’s obligation under Section 2.1 of
the Employment Security Agreement between Employee and Zale dated December 22,
2008 (the “ESA”), the Parties covenant and agree as follows:


 


1.             RELEASE OF CLAIMS


 


(a)           Employee, individually and
on behalf of Employee’s attorneys, heirs, assigns, successors, executors, and
administrators, hereby GENERALLY RELEASES, ACQUITS, AND DISCHARGES Zale and its
respective current and former parent (including, but not limited to Zale
Corporation), subsidiary, affiliated, and related corporations, firms,
associations, partnerships, and entities, their successors and assigns, and the
current and former owners, shareholders, directors, officers, employees,
agents, attorneys, representatives, and insurers of said corporations, firms,
associations, partnerships, and entities, and their guardians, successors,
assigns, heirs, executors, and administrators (hereinafter collectively
referred to as the “Releasees” and individually as a Releasee”) from and
against any and all claims, complaints, grievances, liabilities, obligations,
promises, agreements, damages, causes of action, rights, debts, demands, controversies,
costs, losses, and expenses (including attorneys’ fees and expenses)
whatsoever, under any municipal, local, state, or federal law, common or
statutory — including, but in no way limited to, claims arising under the
United States and Texas Constitutions, Age Discrimination in Employment Act of
1967 (“ADEA”), as amended, Title VII of the Civil Rights Act of 1964, as
amended (including the Civil Rights Act of 1991), the Americans with
Disabilities Act of 1990, as amended by the Americans with Disabilities
Amendment Act, the Employee Retirement Income Security Act of 1974, (“ERISA”)
as amended, the Labor Management Relations Act, as amended, the Occupational
Safety and Health Act, as amended, the Racketeer Influenced and Corrupt
Organizations Act (RICO), as amended, the Sarbanes Oxley Act of 2002, the
Sabine Pilot Doctrine, the American Jobs Creation Act of 2004,  the Texas Commission on Human Rights Act, the
Texas Pay Day Act,  the Worker Adjustment
and Retraining Notification Act (“WARN”), the Family and Medical Leave Act (“FMLA”),
the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), claims of
retaliatory discharge under the Texas Workers’ Compensation Act, as amended, or
any 


 

















 


other claims, including
claims in equity or common law claims — for any actions or omissions
whatsoever, whether known or unknown and whether connected with the employment
relationship between Employee and Zale, the cessation of Employee’s employment
with Zale which existed or may have existed prior to, or contemporaneously
with, the execution of this Agreement (collectively, the “Released Claim(s)”).  Employee agrees that this
Agreement includes a release of any and all negligence claims, contractual
claims (express or implied), wrongful discharge claims, fraud, misrepresentation,
and claims of discrimination, harassment, or retaliation of every possible
kind.


 


(b)           Further, Employee hereby
waives, relinquishes, and releases Releasees from any and all claims relating
to or arising from Section 1.2(a)-(g) of the ESA regarding
Termination Benefits in Connection with a Change in Control and, specifically,
from any and all claims for Severance Pay, equity compensation adjustments
and/or other benefits payable in the event of a Qualifying Termination during a
Protection Period.  Any and all rights to
such Severance Pay, equity compensation adjustments and/or other benefits are
hereby forever released, discharged, and waived by Employee.


 


(c)           Employee agrees not to
assert any claims released above in a class or collective action and further
agrees not to become, and promises not to consent to become, a member
(including a representative class plaintiff) of any class in a case brought in
court or in arbitration in which claims are asserted against any of the
Releasees that are related in any way to Employee’s employment with or
termination from Company and/or that involve events which have occurred as of
the Effective Date of this Release.  If
Employee, without Employee’s prior knowledge and consent, is made a member of a
class in any proceeding, whether in court or in arbitration, Employee will opt
out of the class at the first opportunity afforded to him/her after learning of
Employee’s inclusion.  In this regard,
Employee agrees that Employee will execute, without objection or delay, an “opt-out”
form presented to her either by the court or the arbitral forum in which such
proceeding is pending or by counsel for the Company.


 


(d)           Employee understands that
nothing in this Agreement is intended to interfere with or deter Employee’s
right to challenge the waiver of an ADEA claim or state law age discrimination
claim or the filing of an ADEA charge or ADEA complaint or state law age
discrimination complaint or charge with the EEOC or any state discrimination
agency or commission or to participate in any investigation or proceeding
conducted by those agencies.  Further,
Employee understands that nothing in this Agreement would require Employee to
tender back the money received under this Agreement if Employee seeks to
challenge the validity of the ADEA or state law age discrimination waiver, nor
does the Employee agree to ratify any ADEA or state law age discrimination
waiver that fails to comply with the Older Workers’ Benefit Protection Act by
retaining the money received under the Agreement.  Further, nothing in this Agreement is
intended to require the payment of damages, attorneys’ fees or costs to Zale
should Employee challenge the waiver of an ADEA or state law age discrimination
claim or file an ADEA or state law age discrimination suit except as authorized
by federal or state law.  Notwithstanding
the foregoing two sentences, as provided above Employee also waives any right
to recover from any Releasee in a civil suit brought by any governmental agency
or any other individual on Employee behalf with respect to any Released Claim.


 

















 


(e)           This release excludes any
claim which cannot be released by private agreement, such as workers’
compensation claims, claims after the Effective Date of this Agreement, and the
right to file administrative charges with certain government agencies.  Nothing in this Agreement shall be construed
to prohibit Employee from filing a charge with or participating in any
investigation or proceeding conducted by the Equal Employment Opportunity
Commission, National Labor Relations Board, or a comparable state or local
agency.  Notwithstanding the previous two
sentences, Employee agrees to waive any right to recover monetary damages in
any charge, complaint, or lawsuit against Zale filed by Employee or by anyone
else on Employee’s behalf.


 


(f)            This general release covers
both claims that Employee knows about and those that Employee may not know
about, except that it does not waive any rights or claims, including claims
under the ADEA, that may arise after the Effective Date of this Agreement (as
defined below).  Employee further
represents and warrants that: (i) Employee has been fully and properly
paid for all hours worked, (ii) Employee has received all leave in
accordance with applicable law; and (iii) Employee has not suffered any on
the job injury for which Employee has not already filed a claim.  Employee further acknowledges, agrees and
hereby stipulates that: (i) during Employee’s employment with the Company,
Employee was allowed to take all leave and afforded all other rights to which
Employee was entitled under the Family and Medical Leave Act (“FMLA”);
and (ii)  the Company has not in any way interfered with, restrained or
denied the exercise of (or attempt to exercise) any FMLA rights, nor terminated
or otherwise discriminated against Employee for exercising (or attempting to
exercise) any such rights.


 


2.             Employee acknowledges and
agrees that Employee will keep the terms, amount, and facts of, and any
discussions leading up to, this Agreement STRICTLY AND COMPLETELY CONFIDENTIAL,
and that Employee will not communicate or otherwise disclose to any employee of
Zale (past, present, or future), or to any member of the general public, the
terms, amounts, copies, or fact of this Agreement, except as may be required by
law or compulsory process; provided, however, that Employee may make
such disclosures to Employee’s tax/financial advisors or legal counsel as long
as they agree to keep the information confidential.  If asked about any of such matters, Employee’s
response shall be that Employee may not discuss any of such matters.  In the event of a breach of the
confidentiality provisions set forth in this paragraph of the Agreement by
Employee, Zale may suspend any payments due under this Agreement pending the
outcome of litigation and/or arbitration regarding such claimed breach of this
Agreement by Employee.  The Parties agree
that this paragraph is a material inducement to Zale entering into this
Agreement.  Additionally, the Parties
agree that a breach of this paragraph by Employee will cause Zale irreparable
harm and that Zale may enforce this paragraph without posting a bond.


 


3.             Employee acknowledges and
agrees that she has ongoing obligations under Article II of the ESA.  For the avoidance of doubt, and for purposes
of this Agreement, the Parties expressly understand and agree that during the
Severance Period specified in Paragraph 4(a) below, she will not, directly
or indirectly, as an employee, consultant or otherwise, compete with Company by
providing services relating to retail or non-retail sales of fine jewelry to
any other person, partnership, association, corporation, or other entity that
is in a “Competing Business.”  The term “Competing
Business” as referenced in Section 2.3 of the ESA is hereby


 

















 


changed to any business
that, in whole or material part, in the United States, Canada, and/or Puerto
Rico (a) engages in the retail sales of fine jewelry, including but not
limited to, specialty jewelry retailers and other retailers having fine jewelry
divisions or departments, or (b) operates as a vendor of fine jewelry,
including but not limited to, as wholesaler, manufacturer, or direct importer
of fine jewelry.


 


4.             In consideration for the
covenants set forth in Article II of the ESA, as amended in Paragraph 3
above, and Employee’s agreement to, compliance with, and execution, without
revocation, of this Agreement, Employee shall receive:


 


(a)           $375,000.00, less all
applicable taxes and withholding, representing ten (10) months (the “Severance
Period”) of Employee’s current base salary, which constitutes Employee’s “Severance
Pay” as defined in Section 1.1(a) of the ESA.  This Severance Pay is payable in one lump sum
to be paid on the later of February 15, 2010, or the Effective Date (as
defined in Section 16 below) of this Agreement.  For the avoidance of doubt, and for purposes
of this Agreement, the Parties expressly understand and agree that the
Severance Period as defined in Section 5.14 of the ESA is hereby changed
from 1.5 years to the 10-month Severance Period outlined above.


 


(b)           Employee shall be entitled
to receive the Accrued Obligations, if any, specified in Section 1.1(b) of
the ESA.


 


(c)           Employee shall be entitled
to receive the continued welfare benefits specified in Section 1.1(c) of
the ESA for the 10-month Severance Period outlined in 4(a) above; and


 


(d)           Employee shall be entitled
to receive the outplacement services specified in Section 1.1(d) of
the ESA.


 


(e)           Employee acknowledges and
agrees that the amounts set forth in this Section 4 are in full and
complete satisfaction of any and all amounts owed to Employee by Zale or any
other Releasee for any and all reasons, including but not limited to any and
all amounts owed to Employee under any and all provisions of the ESA.  Employee further acknowledges and agrees that
she is not entitled to any payments of any kind other than those specifically
set forth herein.  Without limiting the
foregoing, Employee expressly waives, relinquishes and releases Zale and all
other Releasees from any and all claims, whether for Severance Pay, equity
compensation adjustments and/or other benefits, relating to or arising from a
Change of Control, as defined in the ESA, occurring within six months of the
Separation Date or at any other time.


 


5.             Employee agrees to cooperate
fully with Zale, specifically including any attorney or other consultant
retained by Zale, in connection with any pending or future litigation,
arbitration, business, or investigatory matter. 
The Parties acknowledge and agree that such cooperation may include, but
shall in no way be limited to, Employee being available for interview by Zale,
or any attorney or other consultant retained by Zale, and providing to Zale any


 

















 


documents in Employee’s
possession or under Employee’s control.  Zale
agrees to provide Employee with reasonable notice of the need for assistance
when feasible.


 


6.             Employee agrees that, in
addition to the cessation of Employee’s employment with Zale, Employee shall
cease from holding or reporting that Employee holds any positions as a
director, officer and/or employee with Zale and/or any of the Releasees,
effective on the Separation Date.


 


7.             Employee waives and releases
forever any right and/or rights Employee may have to seek or obtain employment,
reemployment and/or reinstatement with Zale or any one or more other Releasees,
and agrees not to seek reemployment with any of the same.


 


8.             Zale and Employee
agree that any controversy or claim (including all claims pursuant to common
and statutory law) relating to this Agreement or arising out of or relating to
the subject matter of this Agreement or Employee’s employment by Zale will be
resolved exclusively through binding arbitration pursuant to the dispute
resolution provisions contained in Article III of the ESA.


 


9.             By entering into this
Agreement, the Company does not admit, and specifically denies, any violation
of any contract (express or implied), local, state, or federal law, common or
statutory.  Neither the execution of this
Agreement nor compliance with its terms, nor the consideration provided for
herein shall constitute or be construed as an admission by Zale (or any of its
agents, representatives, attorneys, or employers) of any fault, wrongdoing, or
liability whatsoever, and Employee acknowledges and understands that all such
liability is expressly denied.  This
Agreement has been entered into in release and compromise of claims as stated
herein and to avoid the expense and burden of dispute resolution.


 


10.           If any provision or term of
this Agreement is held to be illegal, invalid, or unenforceable, such provision
or term shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid, or unenforceable provision had never
comprised part of this Agreement; and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by
the illegal, invalid, or unenforceable provision or by its severance from this
Agreement.  Furthermore, in lieu of each
such illegal, invalid, or unenforceable provision or term there shall be added
automatically as a part of this Agreement another provision or term as similar
to the illegal, invalid, or unenforceable provision as may be possible and that
is legal, valid, and enforceable.


 


11.           This Agreement, Article II
(subject to the definition of Competing Business set forth in Paragraph 3 of
this Agreement and the Severance Period set forth in Paragraph 4(a) of
this Agreement), Article III, and Section 4.7 of the ESA, constitute
the entire Agreement of the Parties, and supersede all prior and
contemporaneous negotiations and agreements, oral or written, between the
parties. All prior and contemporaneous negotiations and agreements between the
parties are deemed incorporated and merged into this Agreement and are deemed
to have been abandoned if not so incorporated. 
No representations, oral or written, are being relied upon by any party
in executing this Agreement other than the express representations of this
Agreement.  This Agreement cannot be
changed or terminated without the express written


 

















 


consent of the Parties.  The rights under this Agreement may not be
assigned by Employee, unless Zale consents in writing to said assignment.  Employee represents that Employee has not
assigned any of the claims related to the matters set forth herein.


 


12.           This Agreement shall be
exclusively governed by and construed in accordance with the laws of the State
of Texas without regard to the conflicts of laws provisions of Texas law, or of
any other jurisdiction, except where preempted by federal law.  The parties hereby agree that any action to
enforce an arbitrator’s award shall be filed exclusively in a state or federal
court of competent jurisdiction in Dallas County, Texas, and the parties hereby
consent to the jurisdiction of such court; provided, however, that nothing
herein shall preclude the parties’ rights to conduct collection activities in
the courts of any jurisdiction with respect to the order or judgment entered
upon an arbitrator’s award by the Texas court.


 


13.           One or more waivers of a
breach of any covenant, term, or provision of this Agreement by any party shall
not be construed as a waiver of a subsequent breach of the same covenant, term,
or provision, nor shall it be considered a waiver of any other then existing or
subsequent breach of a different covenant, term, or provision.


 


14.           By executing this Agreement,
Employee acknowledges and agrees that Employee:


 


(a)                                  specifically waives any
rights or claims arising under the ADEA and/or analogous state or local laws
and Title VII of the Civil Rights Act of 1964 and other federal and local
anti-discrimination and anti-retaliation laws;


 


(b)                                 may take up to forty-five
(45) calendar days from the Separation Date to consider whether or not Employee
desires to execute this Agreement;


 


(c)                                  may
revoke this Agreement at any time during the seven (7) calendar day period
after Employee signs and delivers this Agreement to Zale.  Any such revocation must be in writing and
delivered to Zale’s President, Theo Killion at 901 W. Walnut Hill Lane, Irving,
TX 75038 by such seventh (7th) calendar day. 
Employee understands that this Agreement is not effective, and Employee
is not entitled to the Separation Pay and benefits in Paragraph 4, until the
expiration of this seven (7) calendar day revocation period.  Employee understands that upon the expiration
of such seven (7) calendar day revocation period this entire Agreement
will be binding upon Employee and will be irrevocable;


 


(d)                                 any changes to this
Agreement, whether material or immaterial, will not restart the running of the
45-day period;


 


(e)                                  has carefully read and fully
understands all of the provisions of this Agreement and that any and all
questions regarding the terms of this Agreement have been asked and answered to
Employee’s complete satisfaction;


 


(f)                                    knowingly and
voluntarily agrees to all of the terms set forth in this Agreement and to be
bound by this Agreement;


 

















 


(g)                                 is hereby advised in writing
to consult with an attorney and tax advisor of Employee’s choice prior to
executing this Agreement and has had the opportunity and sufficient time to
seek such advice;


 


(h)                                 understands that rights or
claims under the ADEA and Title VII of the Civil Rights Act of 1964 that may
arise after the date this Agreement is executed are not waived; and


 


(i)                                     the rights and claims waived
in this Agreement are in exchange for consideration over and above anything to
which Employee is already entitled.


 


15.           The Parties represent that
they have the sole and exclusive right and full capacity to execute this
Agreement.


 


16.           The “Effective Date”
of this Agreement is the date that is eight (8) days following the date on
which Employee signs this Agreement, so long as Employee has not revoked
acceptance of this Agreement before such date.


 


17.           By executing this Agreement,
Employee also acknowledges that Employee (a) is not relying upon any
statements, understandings, representations, expectations, or agreements other
than those expressly set forth in this Agreement;  (b) has made Employee’s own
investigation of the facts and is relying solely upon Employee’s own knowledge
and the advice of Employee’s own legal counsel; and (c) knowingly waives
any claim that this Agreement was induced by any misrepresentation or
nondisclosure and any right to rescind or avoid this Agreement based upon
presently existing facts, known or unknown. 
The Parties stipulate that each Party is relying upon these
representations and warranties in entering into this Agreement.  These representations and warranties shall survive
the execution of this Agreement.


 


18.           All terms and provisions of
this Agreement, and the drafting of this Agreement, have been negotiated by the
Parties at arm’s length and to mutual agreement, with consideration by and
participation of each, and no party shall be deemed the scrivener of this
Agreement.


 


PLEASE READ CAREFULLY. THIS
CONFIDENTIAL SEPARATION AGREEMENT AND RELEASE INCLUDES THE RELEASE OF ALL
CLAIMS AGAINST THE COMPANY, KNOWN OR UNKNOWN, THAT MAY HAVE OCCURRED AS OF
THE DATE OF THIS AGREEMENT.  THIS
AGREEMENT ALSO CONTAINS A PROVISION REQUIRING THE PARTIES TO RESOLVE ANY
DISPUTES BY ARBITRATION.


 


The parties have signed this
Agreement on the dates written by the signatures below, to be effective on the
Effective Date.  Notwithstanding any
other provision in this Agreement, if Employee does not sign and deliver this
Agreement to Theo Killion at 901 W. Walnut Hill Lane, Irving, TX 75038 on
or before 45 days following the
Separation Date, then this Agreement will be null
and void and Employee will not be entitled to the Separation
Pay, outplacement services, or any other consideration described in this
Agreement.


 

















 


EXECUTED in Irving, Texas on
this 28th day of January, 2010


 


 


	
   

  	
  /s/ Mary Kwan

  



 


 


EXECUTED
in Irving, Texas on this 28th day of January, 2010


 


	
   

  	
  ZALE DELAWARE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Theo Killion

  
	
   

  	
   

  	
  Theo Killion

  
	
   

  	
  Its:

  	
  President