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EXHIBIT 10.38
AGREEMENT AND RELEASE
WHEREAS, the parties to this Agreement and Release, STAFF
BUILDERS, INC., a New York Corporation ("STAFF BUILDERS" or the "CORPORATION")
and XXXXXXX XXX, an individual who resides at 0 Xxxxxxxx Xx., Xxxxxxxxxx, Xxx
Xxxx 00000 ("XXX") wish to terminate the Employment Agreement between the
parties, annexed hereto as Exhibit A; and
WHEREAS, for good and valuable consideration and other
adequate considerations between the parties; and
WHEREAS, each party to this Agreement and Release, Staff
Builders and XXX have consulted with legal counsel;
NOW THEREFORE, the parties hereby agree as follows:
1. Termination.
XXX'x employment with Staff Builders as Sr. Vice President -
Corporate Support Services is terminated effective December 31, 1998, and except
as provided herein and except for the terms of the Employment Agreement that
survive its termination, the Employment Agreement executed as of October 1, 1997
shall be terminated.
2. Salary.
a. Staff Builders will pay to XXX 14 months salary in weekly
increments at the rate required by her Employment Agreement for said period. See
Exhibit A, paragraph 4:
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January 1, 1999 - February 28, 2000 XXX will receive Thirteen
Thousand Two Hundred Eighty Four Dollars and Sixty Eight Cents ($13,284.68) per
month on the first day of each month. [To be paid in weekly increments.]
b. If XXX has not received any income from any other source,
including any consulting revenue, or otherwise secured alternative employment by
February 28, 2000, Staff Builders will pay to XXX an additional two months
salary at the following rate:
March 1, 2000 - April 30, 2000 XXX will receive Thirteen
Thousand Two Hundred Eighty Four Dollars and Sixty Eight Cents ($13,284.68) per
month, paid in weekly increments.
2(c) XXX agrees that during the term hereof, she will provide
consulting services as requested by Staff Builders representatives.
3. Medical Benefits.
Staff Builders will continue to provide medical benefits to
XXX during the entire duration of this Agreement as provided for in her
Employment Agreement on the terms and conditions as such benefits are offered
presently.
4. Paid Vacation.
XXX shall be paid all accrued vacation through December 31,
1998 in one lump sum at the time this Agreement is executed.
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5. Non-Discrimination.
XXX understands that there are various state and federal laws
that prohibit employment discrimination on the basis of age, race, sex,
religion, national origin, marital status and disability and that these laws are
enforced by the courts and various government agencies. By signing this
Agreement and Release, XXX intends to give up any rights she may have under
these laws or any other laws with respect to her employment or the termination
of her employment with or by STAFF BUILDERS and acknowledges that STAFF BUILDERS
has not (a) discriminated against her; (b) breached any express or implied
contract with her; or (c) otherwise acted unlawfully towards her.
6. Release.
a. As a material inducement to the parties to enter into this
Agreement and Release, XXX covenants not to xxx and hereby irrevocably and
unconditionally releases, acquits and forever discharges STAFF BUILDERS, and all
other affiliated, subsidiary or related organizations, parents, companies or
divisions, and their respective present, former or future officers, directors,
shareholders, agents, employees, representatives, consultants, attorneys,
successors, and assigns, and all STAFF BUILDERS' employee benefit plans and the
current and former Trustees of all of them (collectively the "Releasees"), of
and from any claim, right, demand, charge, complaint, action, cause of action,
obligation, or liability of any and every kind based on any federal, state, or
local law, statute or regulation, whether known or unknown, suspected or
unsuspected, fixed or contingent, whether in tort or in contract or by statute,
which arises or results from any event, action or inaction occurring prior to
the execution of this
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Agreement and Release, as well as any and all claims arising out of or relating
to any alleged tortious, wrongful, discriminatory, defamatory, improper or
unlawful act or omission of STAFF BUILDERS, including without limitation, claims
alleging a violation of the Age Discrimination In Employment Action of 1967, as
amended 29 U.S.C. Section 621 et seq. The Americans with Disabilities Act of
1990, 42 U.S.C. Section 12101 et seq., which arose prior to the execution of
this Agreement and Release, or which might exist under the qui tam provisions of
the False Claims Act, 31 U.S.C. Section 3730. XXX represents that she has
received complete satisfaction of any and all claims, whether known, suspected
or unknown, that she may have or have had against any of the Releasees as of the
date of this Agreement and Release, and she hereby waives any and all relief for
such claims not explicitly provided for herein.
x. XXX affirms that she is not aware of any outstanding
administrative or judicial claims, charges, lawsuits or proceedings of any kind
against any of the Releasees to which she is a party or which were filed on her
behalf, and promises not to commence any proceeding or action against STAFF
BUILDERS except to enforce this Agreement and Release. XXX further agrees not
only to release and discharge the Releasees of and from any and all claims which
she could make on her own behalf, but also those which may have been or may be
made by any other person or organization on her behalf as of the date of this
Agreement and Release.
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7. Surrender of Stock Options.
x. XXX hereby agrees to surrender any and all Stock Options of
STAFF BUILDERS, Inc. (Delaware) ("SBD") granted to her pursuant to the 1983
Incentive Stock Option Plan, the 1986 Non-Qualified Stock Option Plan, the 1993
Stock Option Plan and the 1994 Performance-Based Stock Option Plan (as more
particularly described in Exhibit B), or otherwise, including any options which
are vested as of the date hereof, within 90 days of this Agreement. Within the
90 day period, XXX may exercise any such options.
8. Confidentiality.
x. XXX acknowledges that as a result of her employment by
STAFF BUILDERS, she has had access to confidential, proprietary business
information belonging to STAFF BUILDERS, as those terms are defined in paragraph
7 of the Employment Agreement, and hereby agrees not us use or disclose of any
such information personally or for the benefit of Others. XXX also agrees (1)
not to disclose to anyone any such confidential and proprietary information; and
(2) to comply with any and all provisions of her Employment Agreement that, by
their terms, survive the termination of her employment. On the date she signs
this agreement and Release, XXX further promises and agrees to return to STAFF
BUILDERS any and all documents or diskettes now in her possession which she
received, sent, generated or had access to in the course of her employment by
STAFF BUILDERS, together with any and all property of STAFF BUILDERS she has in
her possession.
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b. She will not disclose, either directly or indirectly, in
any manner whatsoever, any specific information, fact or opinion of any kind
regarding the terms of this Agreement and Release, to any person or
organization, including, but not limited to, members of the press and media,
present and former officers, employees (except with respect to certain
restrictions upon her concerning future solicitation of Staff Builders'
employees) and agents of the Releasees, and other members of the public, except
to her husband, accountants, lawyers or as otherwise directed by law, whom shall
be bound by this paragraph to the same extent as XXX and whose violation of this
paragraph shall be deemed to constitute a violation by XXX as if she, herself
had personally violated this paragraph. XXX shall specifically advise her
husband, that he must comply with this paragraph and shall specifically advise
him that a violation by her or him of this paragraph shall be deemed to be a
violation by XXX.
9. Forfeiture.
If in violation of paragraphs 5, 6 or 7 above, XXX files or
causes to be filed a claim, charge or lawsuit against any of the Releasees with
any governmental agency, court or other forum concerning, in whole or in part,
any event occurring as of or prior to the date of this Agreement and Release or
any claim that has been released herein, or in the event XXX violates the
provisions contained in paragraphs 9 or 10 herein, XXX agrees to forego any
claim to any additional monies or benefits she might otherwise have a claim to
receive pursuant to this Agreement and Release or otherwise. XXX further agrees
that the release set forth in paragraphs 5, 6 and 7 remains in full force and
effect, and that the balance of this Agreement and Release provides adequate
consideration for such Release.
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10. Professional References and Non-Disparagement.
a. Staff Builders will provide positive professional
references for XXX including her dates of service, position held and duties and
responsibilities. Staff Builders will not provide any negative references to any
inquiries by XXX'x potential employers nor will Staff Builders fail to respond
to inquiries by XXX'x potential employers; and
x. XXX agrees that subsequent to the date of this Agreement
and Release she shall make no verbal or written statements of any kind regarding
Staff Builders or the Releasees to any person or organization, including, but
not limited to, members of the press and media, present and former officers,
employees and agents of Staff Builders, and other members of the public, which
denigrate, disparage or defame any of the Releasees, their services,
capabilities or reputations.
11. Removal of Non-Compete Clause.
By mutual consent paragraph 7(b) of Exhibit A entitled
"Confidentiality Obligations: Non-Competition by Executive" is null and void and
without legal effect. All remaining subsections of said paragraph 7 shall remain
in full force and effect.
12. Non-Waiver.
The waiver by any party of a breach of any provision hereof
shall not operate or be construed as a waiver of any subsequent breach by any
Party.
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13. Entire Agreement.
This Agreement and Release and the exhibits attached hereto
contain the full agreement between XXX and STAFF BUILDERS, and may not be
modified, altered or changed except upon the express prior written consent of
both XXX and STAFF BUILDERS.
14. Consultation with Legal Counsel.
XXX affirms that she has been given at least 21 days to
consider this Agreement and Release and that she has voluntarily chosen not to
wait 21 days to execute this Agreement and Release. Her choice to execute this
Agreement and Release was knowing and voluntary and made after consultation with
her counsel. XXX understands that she may revoke her agreement hereto by so
notifying STAFF BUILDERS' General Counsel in writing within seven (7) days after
she signs this Agreement and Release.
15. New York Law/Jurisdiction.
This Agreement and Release shall be construed in accordance
with the laws of the State of New York. Any action or proceeding relating to or
arising from this Agreement and Release or any other dispute between the parties
hereto shall be brought solely in the Supreme Court of the State of New York,
Nassau County. XXX hereby consents to personal jurisdiction and venue in New
York State Supreme Court, County of Nassau any such action or proceeding. The
parties expressly waive their right to trial by jury in any action or proceeding
against the other and consent to trial before a judge.
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16. Construction.
This Agreement and Release is the product of negotiation and
mutual discussion. The rule of construction that an agreement may be construed
against its drafter shall not apply in any action or proceeding arising from or
based, in whole or in part, on this Agreement and Release.
17. Severability.
The invalidity or unenforceability of any provision of this
Agreement and Release shall in no way affect the validity or enforceability of
any other provision, or any part thereof.
IN WITNESS WHEREOF, Staff Builders and XXX have executed this
Agreement and Release as of this 24th day of December, 1998.
Xxxxxxx Xxx Xxxxx Xxxxxxxx
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XXXXXXX XXX STAFF BUILDERS
By: Xxxxx Xxxxxxxx
Title: Executive Vice President
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