SEPARATION AGREEMENT AND RELEASE
FINLAY FINE JEWELRY CORPORATION ("Finlay") and XXXXX X. XXXXXXXXX ("you"),
hereby agree that:
1. You have resigned effective July 31, 1999 (the "Resignation Date"). You
agree that in addition to resigning your employment with Finlay you also resign,
effective July 31, 1999, from any other positions you hold as a Director,
Officer, employee or otherwise of Finlay or Finlay's parent and any of Finlay's
subsidiaries.
2. You will be paid your salary earned through the Resignation Date in
accordance with Finlay's regular payroll cycle.
3. Under Finlay's regular policies, you will be eligible:
a. To receive your vested accounts, if any, under the 401(k) plan. You
will receive more detailed information regarding your 401(k) benefits under
separate cover;
b. To receive payment fo your accrued but unused vacation and
personal days, totaling $23,976.30 on Finlay's regular pay date immediately
following the Resignation Date;
c. To continue your health insurance coverage, in accordance with
COBRA, for a minimum of eighteen (18) months from your Resignation Date, upon
payment of the full applicable premiums. You will receive under separate cover
more detailed information regarding insurance benefits under COBRA. Nothing
contained in this Agreement is intended to impair any of these rights; and
d. To exercise your vested stock options. You have twenty-one (21)
days from the Resignation Date in which to exercise such options.
4. In consideration for signing this Separation Agreement and Release (the
"Agreement"), Finlay will also provide you with the following payments and
benefits:
a. You will receive a total separation payment equal to $320,000.00 plus
a $50,000.00 subjective bonus for 1998 for a total of $370,000.00 The bonus of
$50,000.00, less applicable taxes and other withholdings, will be paid
immediately following the fifth day after the Employee Irrevocability Date as
defined below. Payment of the $320,000.00 will be made in two installments as
follows: (i) on the later of Finlay's regular pay date immediately following the
Resignation Date or the Employee Irrevocability Date as defined below, you will
receive in a lump sum $220,000.00, less applicable taxes and other withholdings
and, (ii) the balance of $100,000.00 will be paid in a lump sum, less applicable
taxes and other withholdings, in January 2000.
This separation amount exceeds, and is in lieu of, any other severance to
which you might otherwise be entitled.
b. Cobra coverage will commence on August 1, 1999. You will be
responsible for making Cobra payments monthly at the appropriate employee
contribution level in effect for active employees in the plan, which amount is
currently $234.00 per month. Your current coverage level, including the
executive medical plan, will continue subject to whatever changes or revisions
are made to the plan.
c. You or your designee will receive a twelve (12) month
consulting agreement (the "Consulting Agreement") with total compensation of
$50,000.00 to be paid upon the completion of the twelve (12) month assignment in
a lump sum, subject to the terms in such Agreement and which Agreement shall be
signed by Finlay immediately following the fifth day after the Employee
Irrevocability Date.
d. You will have sixty (60) days from December 31, 1999 in which
to exercise five thousand (5,000) option shares at $8.25 per share and until
sixty (60) days from December 31, 1999 in which to exercise any other vested
options which have heretofore been granted to you.
e. You may keep the computer equipment which currently resides in
your office for your personal use, including the installed operating software.
All data files pertaining to Finlay will be purged from the equipment.
You understand and agree that you would not receive the monies and
other benefits specified in this section 4 except for your execution of this
Agreement and the fulfillment of the promises contained in this Agreement.
5. You may immediately begin your employment search provided it does not
interfere with the performance of your regular job duties, which duties will be
performed in a competent and professional manner. Nothing in this Agreement
shall be construed as a restriction on your ability to obtain employment or be
associated or affiliated with a competitor of Finlay in any capacity.
6. Finlay hereby confirms that the Directors and Officers Liability
Insurance coverage currently in effect with respect to you will continue to
cover your acts in accordance with the terms of that policy through the
Resignation Date.
7. You understand that Finlay makes no representation as to the income tax
treatment of any payments hereunder and that any and all payments (and all
compensation, benefits and/or other payments previously made to you by Finlay)
will be subject to such tax treatment and to such deductions, if any, as may be
required under applicable tax laws.
8. You agree that you will take no action which is intended to, or would
reasonably be expected to harm or disparage Finlay, to impair Finlay's
reputation, or to lead to unwanted or unfavorable publicity to Finlay, nor will
you disclose any confidential or proprietary information obtained by you during
the course of your employment.
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a. You shall refer all inquiries with respect to future employment
to Xxxxxx Xxxxxx, Chairman and CEO, or Xxxxxx Xxxxxx, President and COO, who
shall not make any statements intended to harm your character, reputation or
business prospects. In addition, you shall be provided with a mutually
acceptable written reference.
b. You agree to cooperate fully with Finlay, specifically including
any attorney retained by Finlay, in connection with any pending or future
litigation, business, or investigatory matter. The parties acknowledge and agree
that such cooperation may include, but shall in no way be limited to, your
making yourself available for interview by Finlay, or any attorney retained by
Finlay, and providing to Finlay any documents in your possession or under your
control relating to the litigation, business or investigatory matter. Finlay
agrees to provide you with reasonable notice of the need for assistance when
feasible. Finlay additionally agrees to schedule such assistance in such a
manner as not to interfere with any alternative employment obtained by you when
possible. If the request for assistance exceeds the 250 hours of service
contemplated by the Consulting Agreement or occurs after the termination of the
Consulting Agreement, you shall be reimbursed for the reasonable cost of your
time.
9. It is expressly understood and agreed that this Agreement and the
effectuation of its terms do not constitute an admission or statement by any
party that Finlay has acted unlawfully or is otherwise liable in any respect. It
is further agreed that evidence of this Agreement, its terms or the
circumstances surrounding the parties entering into this Agreement, shall be
inadmissible in any action or lawsuit of any kind, except for an action for
alleged breach of this Agreement.
10. a. You agree not to disclose any information regarding the existence or
substance of this Agreement, except to an attorney, accountant, spouse or
financial advisor with whom you choose to consult regarding your consideration
of this Agreement.
x. Xxxxxx and only Finlay, will issue a press release to announce
your resignation from Finlay, including information indicating that you have
resigned to "pursue other interests". You specifically agree not to issue any
public statement concerning your employment at Finlay containing information
which would be inconsistent with that contained in said press release.
11. You agree that for a period of one year following the Resignation Date,
you will not solicit or offer employment to any Finlay employee or offer
employment to any Finlay consultant without Finlay's written authorization.
12. You knowingly and voluntarily release and forever discharge Finlay, and
its current and former parent, subsidiary, affiliated and related corporations,
partnerships and entities, their successors and assigns, and the current and
former owners, shareholders, directors, officers and/or employees of such
corporations, partnerships and entities, and their affiliates, successors,
assigns, heirs, executors and administrators (referred to collectively
throughout this Agreement as "Finlay") from and against any and all claims,
actions, demands, contracts and causes of action, known and unknown, which you
or your heirs,
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executors, administrators, successors and assigns (referred to collectively
throughout this Agreement as "you") now or may have as of the date of execution
of this Agreement against Finlay, including, but not limited to, any alleged
violation of:
. The National Labor Relations Act, as amended;
. Title VII of the Civil Rights Act of 1964, as amended;
. Sections 1981 through 1988 of Title 42 of the United States Code,
as amended;
. The Civil Rights Act of 1991;
. The Age Discrimination in Employment Act of 1967, as amended;
. The Employee Retirement Income Security Act of 1974, as amended;
. The Immigration Reform Control Act, as amended;
. The Americans with Disabilities Act of 1990, as amended;
. The Fair Labor Standards Act, as amended;
. The Occupational Safety and Health Act, as amended;
. The Family and Medical Leave Act of 1993;
. The New York Human Rights Act, as amended;
. The New York Minimum Wage Law, as amended;
. Equal Pay Law for New York, as amended;
. any other federal, state or local civil or human rights law or
any other local, state or federal law, regulation or ordinance;
. any public policy, contract, tort, or common law; or
. any allegation for costs, fees, or other expenses including
attorneys' fees incurred in these matters.
You further acknowledge and agree that you shall, on the Resignation Date,
provide to Finlay an additional release in substantially the same form as set
forth above covering the period from the execution of this Agreement through the
Resignation Date.
13. You confirm and agree that, except for the purpose of seeking
enforcement of the terms of this Agreement, you have not and will not file or
institute any claims, charges,
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actions, complaints or any other proceedings against Finlay before any court,
administrative agency or any other forum based upon or arising out of any
claims, actions, demands, contracts and causes of action by or in respect of you
against Finlay. In the event that any such claim, charge, action, complaint or
other proceeding is filed, you shall not be entitled to recover any relief or
recovery therefrom, including costs and attorneys' fees.
14. You understand that if this Agreement were not signed, you would have
the right to voluntarily assist other individuals or entities in bringing claims
against Finlay. You hereby waive that right and you will not provide any such
assistance other than assistance in an investigation or proceeding conducted by
a government agency or as required by law.
15. Except as provided in section 4 (e) hereof, you agree to return to
Finlay on the Resignation Date, your keys, identification and any other
equipment, data file (excluding personal files), documents or materials
belonging to Finlay that you have in your possession.
16. In the event that you or your affiliates breach this Agreement or the
Consulting Agreement, Finlay will be entitled to recover or withhold any payment
and/or other benefits paid or payable under this Agreement or the Consulting
Agreement and to obtain all other relief provided by law or equity. The
prevailing party in any litigation resulting from any such claim shall be
entitled to recover reasonable attorneys' fees and expenses of litigation from
the losing party.
17. This Agreement shall be binding on the parties and their respective
heirs, successors and assigns.
18. This Agreement and the Consulting Agreement sets forth the entire
agreement between the parties and their affiliates with respect to the subject
matter herein and therein and fully supersedes any and all prior agreements or
understandings between them pursuant to such subject matter.
19. This Agreement may not be modified, altered or changed except upon
express written consent of both parties wherein specific reference is made to
this Agreement.
20. If any provision of this Agreement should be held invalid or
unenforceable by operation of law or by any tribunal of competent jurisdiction,
or if compliance with or enforcement of any provision is restrained by such
tribunal, the application of any and all provisions other than those which have
been held invalid or unenforceable shall not be affected.
21. This Agreement shall be governed and construed in accordance with the
laws of the State of New York (without reference to its rules as to conflicts of
laws). Any dispute arising hereunder shall be brought before a court of
competent jurisdiction in the City, County and State of New York.
22. You may revoke this Agreement for a period of seven (7) days following
the day you execute this Agreement. Any revocation within this period must be
submitted, in
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writing, to Xxxxxx Xxxxxx, President, and state, "I hereby revoke my acceptance
of our Separation Agreement and Release." The revocation must be personally
delivered to Xx. Xxxxxx or his designee, or mailed to Xx. Xxxxxx at Xxxxxx Fine
Jewelry Corporation, 000 0xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000 and
postmarked within seven (7) days of execution of this Agreement. This Agreement
shall not become effective or enforceable until the revocation period has
expired (the "Employee Irrevocability Date"). If the last day of the revocation
period is a Saturday, Sunday or legal holiday in New York, then the revocation
period shall not expire until the next following day which is not a Saturday,
Sunday or legal holiday.
YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED IN WRITING THAT YOU HAVE
TWENTY-ONE (21) DAYS TO CONSIDER THIS AGREEMENT AND TO CONSULT WITH AN ATTORNEY
PRIOR TO EXECUTION OF THIS AGREEMENT. YOU AGREE THAT ANY MODIFICATIONS, MATERIAL
OR OTHERWISE, MADE TO THIS AGREEMENT DO NOT RESTART OR AFFECT IN ANY MANNER THE
ORIGINAL TWENTY-ONE (21) DAY CONSIDERATION PERIOD.
HAVING ELECTED TO EXECUTE THIS AGREEMENT, TO FULFILL THE PROMISES SET FORTH
HEREIN, AND TO RECEIVE THEREBY THE SUMS AND BENEFITS SET FORTH IN SECTION "4"
ABOVE, YOU FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTER INTO THIS
AGREEMENT INTENDING TO FOREVER WAIVE, SETTLE AND RELEASE ALL CLAIMS YOU HAVE OR
MIGHT HAVE AGAINST FINLAY.
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IN WITNESS WHEREOF, the parties hereto knowingly and voluntarily execute
this Separation Agreement and Release as of the date set forth below:
Sworn to before me this
6th day of June, 1999.
/s/Xxxxx X. Xxxxx /s/Xxxxx X. Xxxxxxxxx
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Notary Public Xxxxx X. Xxxxxxxxx
June 6, 1999
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Date
Finlay Fine Jewelry Corporation
By /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
June 6, 1999
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Date
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