Amendment to Terms of Employment, by and between the Company and Kirk Geadelmann, dated September 6, 2019
AMENDMENT TO TERMS OF EMPLOYMENT
WAIVER OF CLAIMS AND GENERAL RELEASE
This Amendment to Terms of Employment and Waiver of Claims and General Release (this “Amendment and Release”) is entered into as of September 6, 2019 between Tile Shop Holdings, Inc. (the “Company”) and Kirk Geadelmann (“Geadelmann”).
WHEREAS, the parties entered into a written agreement governing Geadelmann’s employment with the Company as its Chief Financial Officer on June 30, 2014, which was amended on April 21, 2017 (as amended, the “Employment Agreement”), and which agreement is further amended pursuant to this Amendment and Release;
WHEREAS, on August 13, 2019 Geadelmann informed the Company that he intended to terminate his employment with the Company at such time as was appropriate and his successor had been appointed and commenced his or her employment;
WHEREAS, the parties agreed on the terms of Geadelmann’s continued employment during the Transition Period (as defined below) and the compensation payable to Geadelmann and severance benefits, as well as his waiver of claims and general release in favor of the Company;
WHEREAS, Geadelmann has been encouraged to carefully read this Amendment and Release and to consult with his attorney before signing it.
NOW THEREFORE, in consideration of the mutual promises and provisions contained in this Amendment and Release, the parties, intending to be legally bound, agree as follows:
2. Release. For the good and valuable consideration set forth in this Amendment and Release, Geadelmann hereby agrees as follows:
Geadelmann hereby releases and forever discharges the Company and each of its past and present officers, directors, employees, agents, advisors, consultants, successors and assigns from any and all claims and liabilities of any nature by Geadelmann including, but not limited to, all actions, causes of actions, suits, debts, sums of money, attorneys’ fees, costs, accounts, covenants, controversies, agreements, promises, damages, claims, grievances, arbitrations, and demands whatsoever, known or unknown, at law or in equity, by contract (express or implied), tort, pursuant to statute, or otherwise, that Geadelmann now has, ever has had or will ever have based on, by reason of, or arising out of, any event, occurrence, action, inaction, transition or thing of any kind or nature occurring prior to or on the effective date of this Amendment and Release. Without limiting the generality of the above, Geadelmann specifically releases and discharges any and all claims and causes of action arising, directly or indirectly, from Geadelmann’s employment at the Company, arising under applicable state, federal and local law, including but not limited to the Employee Retirement Income Security Act of 1974 (except as to claims pertaining to vested benefits under employee benefit plan(s) of the Company), Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, as amended (the “ADEA”), the Equal Pay Act, the Rehabilitation Act, the Americans With Disabilities Act, and any other law, statute, ordinance, rule, regulation, decision or order pertaining to employment or pertaining to discrimination on the basis of age, alienage, race, color, creed, gender, national origin, religion,
physical or mental disability, marital status, citizenship, sexual orientation , non-work activities or any other protected class or conduct. Payment of any amounts and the provision of any benefits provided for in this Amendment and Release do not signify any admission of wrongdoing by the Company or any of its affiliates.
Geadelmann also agrees that if Geadelmann files, or there is filed on Geadelmann’s behalf, a charge, complaint, or action, the payment and benefits described in this Amendment and Release are in complete satisfaction of any and all claims in connection with such charge, complaint, or action and Geadelmann waives, and agrees not to take, any award of money or other damages from such charge, complaint, or action.
By signing this Amendment and Release Geadelmann is not releasing or waiving (a) any vested interest Geadelmann may have in any employee retirement plan (as defined in ERISA Section 3(2)) by virtue of Geadelmann’s employment with the Company; (b) any rights or claims that may arise after the Termination Date; (c) the right to institute legal action for the purpose of enforcing the provisions of this Amendment and Release; (d) the right to apply for state unemployment compensation benefits; (e) any right Geadelmann may have to workers’ compensation benefits; (f) any rights Geadelmann may have under COBRA; (g) the right to file a charge or complaint with a governmental agency such as the Equal Employment Opportunity Commission (“EEOC”), the National Labor Relations Board (“NLRB”), the Occupational Safety and Health Administration (“OSHA”), the Securities and Exchange Commission (“SEC”) or any other federal, state or local governmental agency, subject to the preceding paragraph of this Section 1; (h) the right to communicate with, testify, assist, or participate in an investigation, hearing, or proceeding conducted by, the EEOC, NLRB, OSHA, SEC, or other governmental agency; (i) the right to receive and retain a monetary award from a government-administered whistleblower award program for providing information directly to a governmental agency; and (j) any rights of indemnification or contribution afforded Geadelmann by the Indemnification Agreement, dated August 12, 2014 between Geadelmann and the Company, by statute or by common law, including any insurance coverage maintained by or on behalf of the Company.
Geadelmann also affirms that Geadelmann is the legal party in interest in this Amendment and Release, with legal title to all rights and claims asserted and hereby released; that Geadelmann has not filed for bankruptcy or assigned or transferred any rights against the Company to any other person or entity; and that Geadelmann has returned to the Company all of its property in Geadelmann’s possession or control, including but not limited to, all documents and materials, whether on computer disc, hard drive, or other form, and all copies thereof which in any way relate to the business of the Company. Geadelmann further affirm that Geadelmann has fully complied with the Tile Shop Holdings, Inc. Nondisclosure, Confidentiality, Assignment and Noncompetition Agreement that Geadelmann signed before beginning employment with the Company.
10. Section 409A and Taxes Generally. This Amendment and Release is intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations, notices and other guidance of general applicability issued thereunder (collectively, “Section 409A”) or an exemption thereunder, and shall be construed and administered in accordance with Section 409A. Notwithstanding any other provision of this Amendment and Release, payments provided under this Amendment and Release may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under this Amendment and Release that may be excluded from Section 409A, either as separation pay due to an involuntary separation from service or as a short-term deferral, shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment provided under this Amendment and Release shall be treated as a separate payment. Any payments to be made under this Amendment and Release upon a termination of employment shall only be made if such termination of employment constitutes a “separation from service” under Section 409A. Notwithstanding the foregoing, Company makes no representations that the payments and benefits provided under this Amendment and Release comply with Section 409A and in no event shall Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by Geadelmann on account of non-compliance with Section 409A.
Notwithstanding any other provision of this Amendment and Release, if, on the Termination Date, Geadelmann is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) and determined in accordance with Section 409A, any payments and benefits provided under this Amendment and Release that constitute “nonqualified deferred compensation” subject to Section 409A that are provided to Geadelmann on account of Geadelmann’s separation from service shall not be paid until the first payroll date to occur following the six (6) month anniversary of the Termination Date (“Specified Employee Payment Date”). The aggregate amount of any payments that would otherwise have been made during such six (6) month period shall be paid in a lump sum on the Specified Employee Payment Date, without interest, and thereafter, any remaining payments shall be paid without delay in accordance with their original schedule. If Geadelmann dies during such six (6) month period, any delayed payments shall be paid to Geadelmann’s estate in a lump sum upon Geadelmann’s death.
11. Date of Receipt. Geadelmann acknowledges that Geadelmann received a draft of this Amendment and Release on August 26, 2019, that Geadelmann has carefully read this Amendment and Release, that Geadelmann voluntarily agrees to all of its terms and conditions, that Geadelmann understands its contents and the final and binding effect of this Amendment and
Release, and that Geadelmann has signed the same as Geadelmann’s own free act with the full intent of releasing the Company from all claims Geadelmann may have against it.
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IN WITNESS WHEREOF, the parties have caused this Amendment and Release to be duly executed and delivered as of the day and year indicated below.
EMPLOYEETILE SHOP HOLDINGS, INC.
/s/ Kirk GeadelmannBy: /s/ Cabell Lolmaugh
Name:Kirk GeadelmannName: Cabell Lolmaugh
Title:President and CEO
Date Signed: September 10, 2019Date Signed: September 11, 2019
(Signature Page to Amendment of Employment Terms and Waiver of Claims and General
3. Geadelmann, along with his heirs, executors, administrators, successors, and assigns, reaffirms his agreement with and acceptance of all of the terms and provisions contained in the Agreement and Release, including without limitation those contained in Section 2 of the Agreement and Release, as of the date of Geadelmann’s signature on this document.
4. Geadelmann has been advised that Geadelmann has twenty-one (21) days from the date on which Geadelmann received this Exhibit A to consider whether Geadelmann wishes to sign it. However, the Company will not accept, and Geadelmann may not execute, this Exhibit A until on or after the Termination Date. Geadelmann is also advised to consult with an attorney prior to signing this document.
5. Geadelmann may cancel this Exhibit A, but only this Exhibit A and specifically not the Amendment and Release, within fifteen (15) days after signing it. This Exhibit A will not become effective or enforceable until such rescission period has passed. If Geadelmann decides to rescind this Exhibit A, Geadelmann must mail or hand deliver the notice of rescission to: Cabell Lolmaugh, Chief Executive Officer and President, Tile Shop Holdings, Inc., 14000 Carlson Parkway, Plymouth MN 55441. If Geadelmann mails the notice of rescission, the notice must be postmarked within the fifteen (15) day period and must be sent via certified mail, return receipt requested, as addressed above. If Geadelmann exercises the right to rescind this Exhibit A, this Exhibit A shall immediately be null and void and Geadelmann will not receive the valuable consideration described herein.
IN WITNESS WHEREOF, the parties have caused this Exhibit A to the Agreement and Release to be duly executed and delivered as of the day and year indicated below.
EMPLOYEETILE SHOP HOLDINGS, INC.
Name:Kirk GeadelmannName: Cabell Lolmaugh
Title:President and CEO
Date Signed: [December__], 2019Date Signed: [December__], 2019
(Signature Page to Exhibit A to Amendment of Employment Terms and Waiver of Claims and General Release)