EXHIBIT 10.53
AGREEMENT AND RELEASE
THIS AGREEMENT AND RELEASE is entered into by and between
Xxxxx Xxxxxxxx ('Xxxxxxxx') who resides at 00 Xxxxxxxx Xxxxx,
Xxxxxx Xxxx, Xxx Xxxx 00000 (the 'Residence') and Staff Builders,
Inc., a New York corporation, 0000 Xxxxxx Xxxxxx, Xxx Xxxx, 00000
('Staff Builders') (collectively the 'Parties') on the date set
forth below.
RECITALS:
X. Xxxxxxxx is presently employed by Staff Builders pursuant
to that certain employment agreement by and between Xxxxxxxx and
Staff Builders effective as of March 1, 1996 (the 'Employment
Agreement').
B. The parties have mutually agreed to terminate the
Employment Agreement upon the terms and conditions hereinafter set
forth.
NOW THEREFORE, in consideration of the mutual promises set
forth herein and the mutual benefits which the parties will gain by
performance thereof, the parties hereto agree as follows:
1. Xxxxxxxx agrees, by affixing his signature hereto, that
effective at the close of business February 28, 1997, he shall
resign his employment with Staff Builders. As of March 1, 1997,
Xxxxxxxx shall have no duties, responsibilities or authority on
behalf of Staff Builders, nor shall be otherwise act as an employee
of Staff Builders. Xxxxxxxx shall provide Staff Builders with a
letter of resignation dated February 28, 1997. Notwithstanding
Xxxxxxxx'x termination of employment, Xxxxxxxx agrees to use his
best efforts as an independent consultant to facilitate a smooth
transition and that for a period of 48 months following the
effective date of this Agreement and Release will be available upon
reasonable notice, and at no charge to Staff Builders, to consult
with and assist Staff Builders in areas of Xxxxxxxx'x expertise.
2. In full satisfaction and termination of all of Staff
Builders obligations under the Employment Agreement, including but
not limited to all obligations for severance pay, vacation pay,
deferred compensation and all other benefits, Staff Builders agrees
to provide Xxxxxxxx the following:
(a) A consulting contract, whereby Xxxxxxxx agrees, as
independent consultant, to use his best efforts to render
consultant services in his areas of expertise to Staff Builders on
a 'when and as-needed' basis for a period of 48 months from the
effective date of this Agreement. During the period commencing
March 1, 1997 through February 28, 2001, or Xxxxxxxx'x death,
whichever occurs first, Staff Builders will pay Xxxxxxxx on the
first of each month, in advance, a consulting fee of $8,125.00 and
reimburse Xxxxxxxx for all approved out-of-pocket expenses incurred
by Xxxxxxxx in the course of rendering such consulting services.
Xxxxxxxx will use his best efforts to make himself available
consistent with Staff Builders' needs, but will be under no
obligation for a specific number of days, weeks, or months of
consulting services. Accordingly, Xxxxxxxx shall be entitled to
the consulting fees in all events, other than in the event of his
death, regardless of the quantity or quality of the services
rendered.
(b) Under the terms of the Employment Agreement,
Xxxxxxxx, under certain circumstances was required to repay Staff
Builders the sum of $50,000 in the event his employment terminated
prior to February 28, 1998. Staff Builders hereby waives
Xxxxxxxx'x obligation to repay the aforesaid sign-on bonus.
(c) Upon relocation of Xxxxxxxx from New York to either
Houston or Missouri, Staff Builders shall reimburse Xxxxxxxx up to
a maximum of $7,000 for all moving expenses. These expenses shall
include but shall not be limited to travel for Xxxxxxxx and his
family, expenses for transporting Xxxxxxxx'x personal possessions
and reasonable lodging and accommodations incurred in connection
with such relocation.
(d) Effective with the effective date of this Agreement,
and continuing until the Residence is sold, Staff Builders will
reimburse Xxxxxxxx on a monthly basis on the first of each month
for all expenses related to the Residence, including mortgage
payments, property taxes, insurance and utilities. Xxxxxxxx and
his spouse hereby grant Staff Builders the exclusive right to
select a purchaser ('Purchaser') for the Residence. Xxxxxxxx and
his spouse hereby agree to sell the Residence, to the Purchaser at
the time, place and pursuant to the terms negotiated by Staff
Builders with the Purchaser. Xxxxxxxx and his spouse agree to
execute all documents and to do all other acts requested by Staff
Builders to complete the sale of the Residence to the Purchaser.
In the event the proceeds of the sale are insufficient 1) to
satisfy the First Mortgage on the premises (in the present amount
of $310,362), and 2) to reimburse Xxxxxxxx his equity in the
Residence of $84,000, and 3) to pay all real estate commissions,
transfer fees and attorney's fees incurred in connection with the
sale of the Residence, Staff Builders will immediately reimburse
Xxxxxxxx any such deficiency. In the event the proceeds exceed the
sum of the first mortgage, Xxxxxxxx'x equity of $84,000 and the
real estate commissions, transfer fees and attorney's fees incurred
in connection with the sale, Xxxxxxxx shall immediately pay any
such surplus to Staff Builders. Xxxxxxxx and his family shall have
the right to live in the Residence until the earlier of the date on
which settlement on the sale of the Residence takes place or
June 1, 1997. Notwithstanding the foregoing, during such
occupancy, Xxxxxxxx shall be responsible for all utilities and
routine repair and maintenance but shall have no obligation for any
other expenses associated with the Residence.
3. Xxxxxxxx understands that there are various state and
federal laws that prohibit employment discrimination on the basis
of age, race, sex, religion, national origin, martial status and
disability and that these laws are enforced by the courts and
various government agencies. By signing this Agreement And
Release, Xxxxxxxx intends to give up any rights he may have under
these laws or any other laws with respect to his employment or the
termination of his employment with or by Staff Builders and
acknowledges that Staff Builders has not (a) discriminated against
him; (b) breached any express or implied contract with him; or (c)
otherwise acted unlawfully towards him. The parties hereto agree
and acknowledge that the payment specified in paragraph 2 are in
excess of that which Staff Builders is obligated to provide to
Xxxxxxxx or which normally would be provided to an individual who
was leaving or had left Staff Builders and that it is provided
solely in consideration of Xxxxxxxx'x execution of this Agreement
And Release.
4. As a material inducement to the Parties to enter into
this Agreement And Release, except with respect to the obligations
and undertakings set forth in this Agreement, Xxxxxxxx covenants
not to xxx and hereby irrevocably and unconditionally release,
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 statue, which arises or
results from any event, action or inaction occurring prior to the
execution of this Agreement And Release, as well as any and all
claims arising out of or relating to any alleged tortuous,
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. 621 et seq.; The Americans with
Disabilities Act of 1990, 42 U.S.C. 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. 3730. Subject to the provisions of paragraph 18, the
foregoing releases shall be null and void ab initio if Staff
Builders fails to fulfill in all material respects its obligations
under paragraph 2 of this Agreement, unless Staff Builders' actions
are barred by Court or Administrative Orders.
5. As a material inducement to the Parties to enter into
this Agreement And Release, Staff Builders covenants not to xxx and
hereby irrevocably and unconditionally releases, acquits and
forever discharges Xxxxxxxx, his successors, and assigns
(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
Agreement And Release, as well as any and all claims arising out of
or relating to any alleged tortuous, wrongful, discriminatory,
defamatory, improper or unlawful act or omission of Xxxxxxxx. The
foregoing releases shall not apply to any obligations of Xxxxxxxx
created under this Agreement and Release.
6. Xxxxxxxx affirms that he is not aware of any outstanding
administrative or judicial claims, charges, lawsuits or proceedings
of any kind against any of the Releases to which he is a party or
which were filed on his behalf, and promises not to commence any
proceeding or action against Staff Builders except to enforce this
Agreement And Release.
7. Xxxxxxxx hereby agrees to surrender any and all Stock
Options of Staff Builders, Inc. (Delaware) ('SBD') granted to him
pursuant to the Stock Option Agreement dated March 1, 1996 between
the Parties, or otherwise, including any options which are vested
as of the date hereof.
8. Xxxxxxxx agrees to surrender the Lexus ES-300 automobile
leased by Staff Builders on his behalf.
9. Xxxxxxxx acknowledges that as a result of his employment
by Staff Builders, he has had access to confidential, proprietary
business information belonging to Staff Builders, as those terms
are defined in paragraph 6 of the Employment Agreement, and hereby
agrees not to use or disclose any such information personally or
for the benefit of others. Xxxxxxxx also agrees (1) not to
disclose to anyone any such confidential and proprietary
information; and (2) to comply with any and all provisions of the
Employment Agreement, that, by their terms, survive the termination
of his employment, except paragraph 7b thereof. Xxxxxxxx agrees
specifically that he will not use personally or for the benefit of
others or disclose in any manner any information relating to
SCORES' or any similar outcomes determination program or concept
owned by Staff Builders. On the date he signs this Agreement And
Release, Xxxxxxxx further promises and agrees to return to Staff
Builders any and all documents, diskettes or copies now in his
possession which he received, sent, generated or had access to in
the course of his employment by Staff Builders, together with any
and all property of Staff Builders he has in his possession. The
parties acknowledge that the restrictions on the use of
confidential information shall in no way apply to the extent such
information relates to the business and operations of American
HomeCare Management Corporation. The parties further acknowledge
that Xxxxxxxx may hold himself out as a co-developer of SCORES'.
10. During any period Xxxxxxxx retains an ownership interest
and is actually involved in the business of American HomeCare
Management Corporation, neither Xxxxxxxx nor Staff Builders will
make any public statements, including but not limited to,
statements to the press or staff of Staff Builders' employees
regarding the existence of or the terms and conditions set forth in
this Agreement and Release. Notwithstanding the foregoing, the
parties shall issue a joint press release in the form and annexed
hereto as Exhibit A (a press release). Each party further agrees
that it will not disclose the terms and conditions of this
Agreement and Release to parties other than their respective
officers, attorneys and accountants, except that either party, with
the consent of the other party, which consent shall not be
unreasonably withheld, may make such disclosures (i) that it, in
good faith, deems reasonably necessary or appropriate, under
reasonable conditions of confidentiality, for legitimate business
or financial reasons or (ii) that it, in good faith, deems
reasonably necessary to comply with any legal requirement or
process.
11. With respect to Xxxxxxxx'x acts while an employee of
Staff Builders, Staff Builders will continue to extend to Xxxxxxxx
the same rights and obligations (subject to the same restrictions)
that it extends to its current employees, officers and directors
with respect to indemnification for liability arising out of their
authorized acts as employees, officers or directors of Staff
Builders. It is further agreed that if Xxxxxxxx retains counsel in
connection with any action or proceeding relating to such actions,
such counsel shall be selected or approved by Staff Builders or its
insurance carrier. In the event Xxxxxxxx elects to retain counsel
of his choice, he shall be liable for all such attorney's fees.
12. If in violation of paragraphs 3 or 4 above, Xxxxxxxx
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, Xxxxxxxx agrees to immediately repay to Staff
Builders all monies that he received pursuant to paragraph 2
hereof, and to waive and forego any claim to any additional monies
he might otherwise have a claim to receive pursuant to this
Agreement And Release or otherwise. Xxxxxxxx further agrees that
the release set forth in paragraphs 4 and 5 remains in full force
and effect, and that the balance of this Agreement and Release
provides adequate consideration for such Release.
13. Xxxxxxxx agrees that he will not any time hereafter,
directly or indirectly, solicit for employment, hire or engage as
a consultant any personnel of Staff Builders on his own behalf or
on behalf of any other person, without prior express written
consent by an officer of Staff Builders. Xxxxxxxx further agrees
that for a period of four (4) years following the effective date of
this Agreement, he will not consult with or solicit business from
any current or future franchisees of Staff Builders.
14. The waiver by any Party of breach of any provision hereof
shall not operate or be construed as a waiver of any subsequent
breach by any Party.
15. Except as provided in paragraph 9, this Agreement And
Release and the exhibits attached hereto contain the full agreement
between Xxxxxxxx and Staff Builders, and may not be modified,
altered or changed except upon the express prior written consent of
both Xxxxxxxx and Staff Builders.
16. Xxxxxxxx affirms that he has been given at least 21 days
to consider this Agreement And Release and that he has voluntarily
chosen not to wait 21 days to execute this Agreement And Release.
His choice to execute this Agreement And Release was knowing and
voluntary and made after consultation with his counsel. Xxxxxxxx
understands that he may revoke his agreement hereto by so notifying
Staff Builders' General Counsel in writing within seven days after
he signs this Agreement And Release.
17. Xxxxxxxx acknowledges and agrees that: (a) no promise or
inducement for this Agreement And Release has been made by Staff
Builders, except as set forth in this Agreement And Release; (b)
this Agreement And Release is executed by him without reliance upon
any statement or representation by Staff Builders other than as set
forth herein; (c) he fully understands this Agreement And Release
and the meaning of its provisions; (d) he fully understands that he
is giving up important rights set forth herein; (e) he is legally
competent to enter into this Agreement And Release and to accept
full responsibility therefor; (f) he consulted with his counsel
before entering into this Agreement And Release; and (g) he
voluntarily enters into this Agreement And Release.
18. In the event Staff Builders is awarded damages against
Xxxxxxxx by any court or tribunal of competent jurisdiction, as a
result of a breach by Xxxxxxxx of his obligations under paragraph
9, 10 or 13 of this Agreement, Staff Builders may offset any amount
awarded Staff Builders by such court or tribunal against amounts
otherwise payable to Xxxxxxxx under paragraph 2 and such offset
shall not be treated as a failure to fulfill Staff Builders'
obligations under paragraph 2. Additionally, it is agreed that if
Staff Builders, in good faith, brings a bona fide claim against
Xxxxxxxx for breach of his obligations under paragraph 9, 10 or 13
and diligently prosecutes such claim or cause of action, then,
pending resolution by an appropriate court or tribunal of its
claim, Staff Builders may pay into escrow, with a third party
unrelated escrow agent, amounts otherwise due Xxxxxxxx under
paragraph 2, in which event such failure to pay amounts due
directly to Xxxxxxxx, shall not constitute a failure by Staff
Builders to fulfill its obligations under paragraph 2. All amounts
paid into such escrow shall be paid to Staff Builders or Xxxxxxxx
as determined by the appropriate court or tribunal.
19. This Agreement And Release may be executed in
counterparts, and, when each party has signed and delivered at
lease one such counterpart, each counterpart shall be deemed an
original and taken together, shall constitute one and the same
agreement, which shall be binding and effective to all parties.
20. 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. Xxxxxxxx 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.
21. 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.
22. Xxxxxxxx promises and agrees not to apply for or seek
employment or other association with or by Staff Builders in the
future.
23. Staff Builders has no obligation to pay any premiums for
health insurance coverage for Xxxxxxxx or any of his dependents
subsequent to February 28, 1997.
24. In the event any party hereto brings an action or incurs
any cost or expense to enforce the terms or conditions of this
Agreement, the prevailing party shall be entitled to reimbursement
from the other party for all costs and expenses (including
attorneys' fees) incurred in defending or prosecuting such action
as the case may be.
25. XXXXXXXX ACKNOWLEDGES AND AGREES THAT HE HAS READ AND
FULLY UNDERSTANDS THE MEANING OF EACH PROVISION OF THIS AGREEMENT
AND RELEASE, THAT HE HAS HAD THE OPPORTUNITY TO CONSULT WITH
COUNSEL CONCERNING IT, AND THAT HE FREELY AND VOLUNTARILY ENTERS
INTO IT.
IN WITNESS WHEREOF, the PARTIES have hereunto set their hand
on the dates indicated below.
STAFF BUILDERS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
Date: March 18, 1997
/s/ Xxxxx Xxxxxxxx
XXXXX XXXXXXXX
Date: March 18, 0000
XXXXX XX XXX XXXX )
)ss.:
COUNTY OF NASSAU )
I, Xxxxxxx X. Xxxxxxx do hereby certify that XXXXX
XXXXXXXX, personally known to me to be the same person whose name
is subscribed to the foregoing instrument, appeared before me this
day in person and acknowledged that he signed and delivered the
said instrument as his free and voluntary act, for the users and
purposes therein set forth.
Given under my hand and official seal this 18th day of
March, 1997.
/s/ Xxxxxxx X. Xxxxxxx
Notary Public
My Commission Expires:
June 30, 1998
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