exv10w41



 





Exhibit 10.41




RESIGNATION AND RELEASE AGREEMENT




     THIS RESIGNATION AND RELEASE AGREEMENT (“Agreement”) is made and entered
into by and between Roy C. Cuny (“Employee”) and SMITH & WESSON HOLDING
CORPORATION (“S&W”).




	1.	 	Resignation by Employee.






	1.1.	 	Employment Agreement. S&W and Employee are parties to an Executive
Employment Agreement entered into as of October 22, 2002 (“Employment
Agreement”). S&W and Employee agree to terminate Employee’s employment
under the Employment Agreement without cause. This termination shall
be deemed a resignation. Except as provided in Section 8 of this
Agreement, upon the Effective Date (as defined in Section 12 of this
Agreement), the parties’ obligations under the Employment Agreement,
except as provided in Section 4 thereof, are hereby discharged.
	 
	1.2.	 	Resignation. Effective as of November 19, 2004 (“the Resignation
Date”), Employee resigns as a director, officer, and employee and
manager, where applicable, of S&W and all of its subsidiaries, related,
and affiliated companies.






	2.	 	Consideration by S&W. In consideration of Employee’s release set forth
below, the parties’ obligations under the Employment Agreement and this
Agreement, S&W shall provide Employee with the following consideration
(the “Consideration”), which shall constitute the sole compensation
obligations of S&W with respect to Employee after the Effective Date, as
that term is defined in Section 12 of this Agreement.






	2.1.	 	Severance Payments. S&W shall pay Employee severance compensation
in the amount of $375,000.00, which amount shall be paid as follows:
$75,000 on the eighth day after this Agreement is executed by Employee
and the balance in 24 biweekly equal installments pursuant to S&W’s
standard payroll practices.
	 
	2.2.	 	Benefits. Through the first anniversary of the Resignation Date,
S&W shall continue to provide the following benefits through COBRA to
Employee to the extent permissible under, and in accordance with, the
terms and conditions of such plans or policies: payment for Employee
and Employee’s spouse and children for coverage pursuant to S&W’s
health care policy (medical, vision, and dental) as the same exists on
the Resignation Date. If Employee elects to obtain such health care
benefits through COBRA, upon such election, S&W shall immediately
reimburse Employee each month an amount equal to the sum of the
required monthly COBRA payment through the first anniversary of the
Resignation Date. Upon submission of proof of payment of the premium
(e.g., copy of check) each month, S&W shall reimburse Employee the full
amount of the premium within five business days. Employee shall be
responsible for ensuring that the proper COBRA election is made and for
ensuring that the premium for such coverage is paid each month.
Employee shall be responsible for any premium payments under COBRA
after the first anniversary of the Resignation Date.
	 
	2.3.	 	Stock Options. Those certain Stock Option Agreements granted to
Employee pursuant to S&W’s 2001 Stock Option Plan, dated May 31, 2001
(the “Option Plan”), shall be governed by the Option Plan, except that
i) Employee shall have twelve months following the Effective Date to
exercise any vested options; and ii) Employee’s unvested options shall
not be cancelled and shall vest as of the Resignation Date.




 









 






	2.4.	 	Tax Implications. Except where otherwise noted, all payments and
benefits under this Section are subject to applicable federal
withholding tax and any other taxes as required by law. Employee
understands that he will receive no other wage, benefit, or other
payment from S&W other than the consideration described in this
Section.






	3.	 	Assistance and Cooperation in Litigation and Investigations.






	3.1.	 	Cooperation. Employee will, upon reasonable notice and subject to
Employee’s other commitments, furnish such information and reasonable
assistance to S&W as it may reasonably require in connection with the
SEC Matter (as defined in Section 3.2 below), any internal
investigation into the circumstances giving rise to the SEC Matter, and
any litigation against the S&W Parties (as defined in Section 4 below)
in which Employee has relevant knowledge (“Litigation”); such
assistance shall include, but is not limited to, attending meetings for
preparation of witnesses and voluntarily appearing at any proceedings
for which S&W requests Employee’s appearance. Employee further agrees
that he and his separate counsel will permit attorneys for S&W and
their agents to actively participate and assist in the preparation of
Employee for any future testimony in the SEC Matter or Litigation.
Such services by Employee through the first anniversary of the
Resignation Date shall be without compensation; thereafter, such
services shall be provided in exchange for reasonable consideration as
may hereafter be mutually acceptable to Employee and S&W. In all
instances, S&W shall directly pay (or, at Employee’s option, reimburse
Employee for) all reasonable expenses incurred by Employee in providing
such services. If Employee will incur more than $500 on any flight,
lodging, or other expense incident to these services, he shall seek
approval from S&W before incurring the expense, which approval shall be
sought from and provided by S&W’s Chairman of the Board of Directors
(or such other designee hereafter identified by S&W in writing to
Employee), shall be timely provided and shall not be unreasonably
withheld.
	 
	3.2.	 	Separate Counsel. S&W affirms that it (i) has approved the
engagement by Employee of Richards Spears Kibbe & Orbe LLP as
independent counsel for Employee solely in connection with the
investigation being conducted by the U.S. Securities and Exchange
Commission styled In the Matter of Smith & Wesson Holding Corporation,
SEC File No. HO-09769 (the “SEC Matter”); and (ii) will be responsible
for and promptly pay all reasonable attorneys’ fees and related
expenses related to such representation (or successor representation)
in connection with the SEC Matter.






	4.	 	Release.






	4.1.	 	By Employee. As a material inducement to enter into this Agreement
and expressly subject to full payment of all amounts owed to Employee
hereunder and full performance by S&W hereunder, Employee knowingly and
voluntarily releases, acquits, and forever discharges S&W and all of
its subsidiaries, affiliated, and related companies, and the current
and former employees, officers, directors, attorneys, members, and
shareholders of each of the foregoing (collectively, the “S&W Parties”)
from any and all Claims (as hereafter defined). This release
includes, but is not limited to, all Claims arising from or relating to
Employee’s employment with S&W, the Employment Agreement, and the
termination of his employment, which Employee, or any of Employee’s
heirs, trustees, representatives, executors, administrators, successors
and assigns ever had or now has, owns or holds against the S&W Parties,
including without limitation Claims arising under:






	(a)	 	Title VII of the Civil Rights Act of 1964, as amended by the
Civil Rights Act of 1991, 42 U.S.C. § 2000e, et seq. and 42 U.S.C. §
1981a;




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	(b)	 	The Age Discrimination in Employment Act of 1967, as amended,
42 U.S.C. § 621, et seq.;
	 
	(c)	 	The Older Workers Benefits Protection Act, 29 U.S.C. 626, et seq.;
	 
	(d)	 	The Employee Retirement Income Security Act of 1974, as
amended, 29 U.S.C. § 1001, et seq.;
	 
	(e)	 	The Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.;
	 
	(f)	 	Fair Labor Standards Act, 29 U.S.C. § 201, et seq.;
	 
	(g)	 	Family Medical Leave Act, 29 U.S.C. § 2601, et seq.;
	 
	(h)	 	Massachusetts Equal Rights Act;
	 
	(i)	 	Massachusetts Fair Employment Practices Act;
	 
	(j)	 	Massachusetts Family Obligations Leave Act;
	 
	(k)	 	Massachusetts wage payment laws;
	 
	(l)	 	Arizona Civil Rights Act;
	 
	(m)	 	Arizona Employment Protection Act;
	 
	(n)	 	Arizona wage payment laws;
	 
	(o)	 	Federal and state whistleblower laws, including, but not
limited to, claims under the Sarbanes-Oxley Act and related
regulations;
	 
	(p)	 	Any other applicable federal, state and local labor and employment
laws; and
	 
	(q)	 	Any contract, express or implied, tort or theory of law
whether statutory or under the common law.






	4.2.	 	Employee Review and Revocation Rights. Employee has been advised
to consult, and has in fact consulted, with an attorney of his own
choosing in negotiating this Agreement. Employee understands that he
may take twenty-one (21) calendar days from the time he receives this
Agreement to decide whether to sign the Agreement and that Employee has
the right to revoke this Agreement for any reason within seven (7)
calendar days after Employee signs it. If Employee chooses to sign
this Agreement before the expiration of twenty-one days, he agrees he
has waived the twenty-one day period for review. To revoke the
Agreement, Employee must send a letter announcing Employee’s decision
to revoke this Agreement to Lawrence J. Rosenfeld, Greenberg Traurig,
LLP, 2375 E. Camelback Rd., Suite 700, Phoenix, Arizona 85016, which
Mr. Rosenfeld must receive prior to the expiration of the revocation
period to be effective. Employee acknowledges that S&W is providing
him with payments and other consideration in this Agreement that are in
addition to anything of value to which the Employee already is
entitled.
	 
	4.3.	 	By S&W. As a material inducement to enter into this Agreement and
expressly subject to full performance by Employee hereunder, S&W, its
subsidiaries, affiliated, and related companies knowingly and
voluntarily release, acquit, and forever discharge Employee, his heirs,
trust 




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	 	 	beneficiaries, trustees, representatives, attorneys, executors,
administrators, successors and assigns (collectively, the “Employee Parties”) from any and all Claims
(as hereafter defined). This release includes, but is not limited to,
all Claims arising from or relating to Employee’s employment with S&W,
which S&W, its subsidiaries, affiliated, and related companies ever had
or now has, owns, or holds against the Employee Parties.
	 
	4.4.	 	Claims. For purposes of this Agreement, “Claims” shall mean
charges, complaints, claims, liabilities, obligations, promises,
agreements, controversies, damages, actions, causes of action, suits,
rights, demands, costs, losses, tax obligations, debts and expenses of
any nature whatsoever, known or unknown, suspected or unsuspected,
foreseen or unforeseen, matured or unmatured, past or present, from the
beginning of time up to and including the Effective Date.
	 
	4.5.	 	No Prospective Effect. This mutual release does not waive rights
or claims that may arise after the Effective Date (as defined in
Section 12).






	5.	 	Non-Disparagement; Non Interference. Neither S&W, its subsidiaries,
related, and affiliated companies nor Employee and Employee Parties shall
provide oral or written information or disparage or in any manner cause
harmful remarks or comments to be disseminated to any third parties
regarding the business, aptitude, skills, practices, procedures,
operations, methods, or any other subject that may have a detrimental
impact on the future business prospects or extant business relationships
of the other; provided, however, that this restriction shall not limit any
person from providing information or testifying truthfully as may be
required by law, by compulsory process or in connection with any court,
legal or governmental proceeding. Employee agrees that neither he nor the
Employee Parties will make any public statement concerning the S&W Parties
to the media, financial institutions, financial analysts, or any person
affiliated with or representing the foregoing.






	5.1.	 	Injunctive Relief. Employee acknowledges that the restrictions
contained in this Section 5 and in Sections 7, 8, and 10 below are a
reasonable and necessary protection of the immediate interests of S&W
and that any violation of these restrictions would cause substantial
injury to S&W. In the event of a breach or threatened breach by
Employee of these restrictions, S&W shall be entitled to apply to any
court of competent jurisdiction for an injunction restraining the
breaching party from such breach or threatened breach; provided,
however, that the right to apply for an injunction shall not be
construed as prohibiting S&W from pursuing any other available remedies
for such breach or threatened breach.






	6.	 	Successors. This Agreement shall be binding upon Employee and upon his
heirs, trustees, administrators, representatives, executors, successors,
and assigns. This Agreement shall be binding upon the S&W, its
subsidiaries, related, and affiliated companies, and their
representatives, successors, and assigns.
	 
	7.	 	Confidentiality. Employee and S&W hereby agree that each of them will
keep the terms, amount and the fact of the Agreement STRICTLY AND
COMPLETELY CONFIDENTIAL, and that neither will communicate or otherwise
disclose to any past or present employee of S&W or to any member of the
general public, the terms, amount and the fact of this Agreement, except
as may be required by law, by compulsory process or in connection with any
court, legal or governmental proceeding, and with respect to S&W, to the
extent reasonably necessary for it to conduct business or to comply with
applicable SEC or AMEX reporting regulations or requirements.
Notwithstanding the foregoing, Employee may disclose the terms and
conditions of this Agreement to his spouse, attorneys, and accountants,
and S&W may disclose the terms and conditions of this Agreement to its
employees who have a need to know, its outside service professionals, such
as lawyers, accountants, financial advisors, and to the extent necessary
to comply with any disclosure or reporting obligations.




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	8.	 	Restrictive Covenants. Employee acknowledges that during the term of his
employment he was provided access to core strategic and competitive
information at a very senior level. Employee
acknowledges that Section 4 of the Employment Agreement includes covenants
not to compete, not to solicit or interfere with the employees and customers
of S&W, its subsidiaries, related, and affiliated companies, not to disclose
trade secrets or confidential business information, and not to disparage S&W
and its subsidiaries, related, and affiliated companies. Employee hereby
reaffirms the reasonableness and necessity of those restrictive covenants
and agrees that Section 4 of the Employment Agreement survives the
termination of his employment, is hereby incorporated by reference into this
Agreement, and thus remains in effect upon the execution of this Agreement.
	 
	9.	 	Representations. Employee represents and warrants that he has not filed,
or caused to be filed, any charge, complaint, claim, or demand with any
governmental or regulatory agency or department that would involve or
relate to any of the S&W Parties. Employee represents and warrants that
he is not aware of any governmental or regulatory investigation or inquiry
involving the S&W Parties other than the SEC Matter, the review of S&W’s
periodic filings by the Securities and Exchange Commission Division of
Corporation Finance, and S&W’s compliance with the listing requirements of
the American Stock Exchange. Employee further represents that he has not
assigned, transferred, pledged, or otherwise attempted to transfer any
Claims or rights he believes he may have against the S&W Parties. The
parties represent to each other that in executing this Agreement, neither
party has relied upon any representation or statement of the other party
not set forth herein.
	 
	10.	 	Return of S&W Property. Employee acknowledges that he has delivered to
S&W all forms of S&W property or that of its subsidiaries, related, and
affiliated companies, including without limitation tangible property,
proprietary materials and confidential information, regardless of the form
or medium in which such property or information is fixed, that were in his
possession or control prior to the Resignation Date or that Employee had
access to prior to the Resignation Date.
	 
	11.	 	Assignment of Payments. Any right or interest to or in any payments shall
be fully assignable by Employee including but not limited to one or more
beneficiaries to receive any amount that may be payable after his death
(and shall remain enforceable by Employee’s estate).
	 
	12.	 	Effective Date; Governing Law. The Effective Date of this Agreement shall
be the eighth day after the date of execution by Employee. This Agreement
is made and entered into in the State of Massachusetts and shall in all
respects be interpreted, enforced and governed under the laws of that
state.
	 
	13.	 	Venue. Employee and S&W hereby irrevocably agree that any legal action or
proceeding arising out of or relating to this Agreement or any actions
contemplated hereby shall be brought in a court of competent jurisdiction
located in Massachusetts. Employee and S&W hereby expressly submit to the
personal jurisdiction and venue of such courts for the purposes thereof
and expressly waive any claim of improper venue and any claim that such
courts are an improper forum. Employee and S&W hereby irrevocably consent
to the service of process of any of the aforementioned courts in any suit,
action, or proceeding.
	 
	14.	 	Severability. Should any of the provisions of this Agreement be declared
or be determined by any court to be illegal or invalid, the validity of
the remaining parts, terms or provisions shall not be affected thereby and
said illegal or invalid part, term or provision shall be deemed not to be
a part of this Agreement.
	 
	15.	 	Other Provisions.






	15.1.	 	Other Rights. Employee agrees S&W has paid Employee for all
accrued, but unused, vacation and paid time off through the Resignation
Date.




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	15.2.	 	Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together
will constitute one and the same instrument.
	 
	15.3.	 	Waiver. The waiver by any party of a breach of any provision of
this Agreement by the other shall not operate or be construed as a
waiver of any subsequent breach of the same provision or any other
provision of this Agreement.
	 
	15.4.	 	Attorneys’ Fees. In the event of any litigation between the
parties hereto arising out of the terms, conditions and obligations in
this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys’ fees incurred in connection with such litigation.
	 
	15.5.	 	Construction. S&W and Employee acknowledge the binding legal
effect of this Agreement, that this Agreement has been negotiated by
the parties, that each party has consulted legal counsel about the
terms, conditions and effect of this Agreement, and that the rule of
construction that any ambiguities are to be resolved against the
drafting party shall not apply to the interpretation of this Agreement.
	 
	15.6.	 	Amendment. This Agreement may only be amended in a writing signed
by Employee and the Chair of S&W’s Board of Directors or his designee.






	16.	 	Entire Agreement. This Agreement sets forth the entire agreement between
the parties thereto and fully supersedes any and all prior agreements
pertaining to the subject matter hereof, other than the Option Plan, the
Articles of Incorporation and Bylaws of S&W, and any other documents
referenced herein. Without limiting the generality of the foregoing,
nothing contained herein, including without limitation Employee’s release
set forth in Section 4 above, shall enlarge, amplify, add to, or limit or
reduce Employee’s indemnification rights pursuant to S&W’s Articles of
Incorporation and Bylaws, which shall survive execution and delivery
hereof.





	 	 	 	 	 	 	 
	 	 	EMPLOYEE
	 
	 	 	 	 	 	 
	DATE: 11/19/2004	 	/s/Roy C. Cuny
	 	 	

	 
	 	 	 	 	 	 
	 	 	SMITH & WESSON HOLDING
	 	 	CORPORATION
	 
	 	 	 	 	 	 
	DATE: 11/29/2004
	 	 	 	 	 	 
	

	 	By:
	 	/s/ John A. Kelly	 	 
	

	 	 	 	
	 	 
	 	 	Its: Chief Financial Officer and Treasurer








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