CONFIDENTIAL SETTLEMENT AGREEMENT AND GENERAL RELEASE
Exhibit
10.80
AND
GENERAL RELEASE
Xxxxxx
Products Corp. (named as “Xxxxxx Capital Corporation” in that certain lawsuit
brought by Xxxxx Xxxxxxx styled Xxxxx
Xxxxxxx x. Xxxxxx Capital Corporation,
Docket
No. FST-CV-06-5001519-S, now pending in the Connecticut Superior Court, Judicial
District of Stamford), its successors and assigns (hereafter “Xxxxxx”) and Xxxxx
Xxxxxxx, his heirs, executors, administrators, successors, and assigns and
anyone claiming by or through any of them (collectively referred to throughout
this Agreement as “Xxxxxxx”), agree to the following provisions of this
Confidential Settlement Agreement and General Release (“Agreement and General
Release”):
WHEREAS,
Xxxxxxx was formerly employed by Xxxxxx; and
WHEREAS,
Xxxxxxx filed a certain lawsuit styled Xxxxx
Xxxxxxx x. Xxxxxx Capital Corporation,
Docket
No. FST-CV-06-5001519-S, now pending in the Connecticut Superior Court, Judicial
District of Stamford, (the “Lawsuit”); and
WHEREAS,
Xxxxxx and Xxxxxxx deny each and every allegation of wrongdoing asserted against
one by the other and neither the making of this Agreement and General Release
nor anything contained herein shall, in any way, be construed or considered
to
be an admission by Xxxxxx or Xxxxxxx of guilt, or of non-compliance with, or
violation of, any federal, state, or local statute or law, public policy, tort
law, contract law, common law, or of any other wrongdoing, unlawful conduct,
liability or breach of any duty whatsoever; and
WHEREAS,
Xxxxxxx and Xxxxxx (hereafter the “Parties”) desire to compromise and fully and
finally resolve all claims which were or could have been made in the Lawsuit
and
to resolve any and all claims and disputes of whatever kind or character against
Xxxxxx and all events occurring up to and including the date this Agreement
and
General Release is fully executed by the Parties; and
WHEREAS,
Xxxxxxx has been at all relevant times represented by his
attorneys,
Xxxxxxxx,
Xxxxx-Xxxxxxx, Chimes & Xxxxxxxxxx, P.C., and has determined, with full
advice of counsel, to knowingly and voluntarily enter into this Agreement and
General Release.
NOW
THEREFORE, in consideration of the terms and conditions hereafter set forth
and
of good and valuable consideration, the sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1)
No
Admission of Wrongdoing.
The
Parties agree that neither this Agreement and General Release nor the furnishing
of the consideration for this Agreement and General Release shall be deemed
or
construed at any time for any purpose as an admission by Releasees of wrongdoing
or evidence of any liability or unlawful conduct of any kind.
Page
2
of
6
2)
Consideration.
a) Cash.
In
consideration for signing this Agreement and General Release, and complying
with
its terms, Xxxxxx agrees to pay Xxxxxxx Four Hundred Thousand Dollars
($400,000). This amount is comprised of the following:
|
•
|
One
check in the amount of One Hundred Fifty Thousand Dollars ($150,000)
less
applicable withholdings and deductions, in a check payable to “Xxxxx X.
Xxxxxxx” (the “Initial Payment”).
|
This
Initial Payment of One Hundred Fifty Thousand ($150,000) Dollars shall be paid
to Xxxxxxx within four (4) days after the execution of this Agreement and
General Release by both Parties hereto as the first installment of the full
settlement amount of this Agreement and General Release.
|
•
|
One
check in the amount of Two Hundred Fifty Thousand Dollars ($250,000)
less
applicable withholdings and deductions, in a check payable to “Xxxxx X.
Xxxxxxx” (the “Second Payment”).
|
This
Second Payment of Two Hundred Fifty Thousand Dollars ($250,000) shall be paid
to
Xxxxxxx within ninety (90) days after the execution of this Agreement and
General Release by both Parties hereto, and will constitute the final
installment of the full settlement amount.
These
payments are made to Xxxxxxx as full and final settlement of Xxxxxxx’ claims for
back wages, front pay and any other damages.
Xxxxxxx
hereby waives his entitlement to the seven (7) day right of
revocation.
|
b)
|
Stock
Options.
|
|
!
|
Xxxxxx
shall vest immediately and register 100% of the outstanding stock
options
exercisable for shares of Xxxxxx Common stock held by Xxxxxxx with
the
Securities and Exchange Commission. This consists of vesting an additional
333,333 unvested options and registering 666,667 options. All of
such
options shall expire ninety (90) days from the date of the execution
of
this Agreement and General Release by both Parties
hereto.
|
Page 3
of
6
3)
Indemnification.
Except
in
the case of willful misconduct or gross negligence, Xxxxxx shall
indemnify,
defend,
and hold Xxxxxxx, his successors and assigns, harmless against any damages,
costs, fines, penalties, liabilities, and reasonable attorneys’ fees suffered or
incurred by Xxxxxxx, his successors and assigns by reason of any legal action,
suit or proceeding brought against Xxxxxxx (other than by Xxxxxx) including
any
amounts incurred or paid in settlement or any judgment of any action, suit,
or
proceeding brought under any statute, at common law, or otherwise, which arises
under or in connection with Xxxxxxx’ employment by Xxxxxx. The obligations of
Xxxxxx under this paragraph are hereinafter collectively referred to as
“Indemnity Obligations.” The Company agrees to promptly tender any payments due
Xxxxxxx, his successors and assigns in respect of the Indemnity Obligations;
provided that Xxxxxxx provides Xxxxxx prompt written notice of such action,
suit
or proceeding and Xxxxxx, at its election, be entitled to control the defense
and settlement of such action, suit or proceeding, at its own expense, with
counsel reasonably selected by it and Xxxxxxx shall consent to any settlement
approved by Xxxxxx which does not impose any payment or continuing obligation
on
Xxxxxxx without Xxxxxxx’ prior consent.
|
4)
|
No
Consideration Absent Execution of this Agreement.
|
Xxxxxxx
understands and agrees that he would not receive the monies and/or benefits
specified in paragraph 2 above, except for his execution of this Agreement
and
General Release and the fulfillment of the promises contained
herein.
|
5)
|
Mutual
and Reciprocal General Releases of All
Claims.
|
Xxxxxxx
knowingly and voluntarily releases and forever discharges Xxxxxx, any parent
corporation, affiliates, subsidiaries, divisions, predecessors, insurers,
successors and assigns, and their current and former employees, attorneys,
officers, directors and agents thereof, both individually and in their business
capacities, and their employee benefit plans and programs and their
administrators and fiduciaries (collectively referred to throughout the
remainder of this Agreement as “Releasees”), of and from any and all claims,
known and unknown, asserted or unasserted, which Xxxxxxx has or may have against
Releasees as of the date of execution of this Agreement and General Release,
including, but not limited to, any alleged violation of:
|
"
|
Title
VII of the Civil Rights Act of
1964;
|
|
"
|
Sections
1981 through 1988 of Title 42 of the United States
Code;
|
|
"
|
The
Employee Retirement Income Security Act of 1974 (“ERISA”) (except for any
vested benefits under any tax qualified benefit
plan);
|
|
"
|
The
Immigration Reform and Control Act;
|
|
"
|
The
Americans with Disabilities Act of
1990;
|
|
"
|
The
Age Discrimination in Employment Act of 1967
(“ADEA”);
|
|
"
|
The
Workers Adjustment and Retraining Notification
Act;
|
|
"
|
The
Fair Credit Reporting Act;
|
|
"
|
Connecticut
Human Rights and Opportunities Law B Conn. Gen. Stat. ' 46a-51
et
seq.;
|
Page 4
of
6
|
"
|
Connecticut
Statutory Provision Regarding Retaliation and/or Discrimination for
Filing
a Workers Compensation Claim B Conn. Gen. Stat. '
31-290a;
|
|
"
|
Connecticut
Equal Pay Laws B Conn. Gen. Stat. ' 31-58(e) et
seq.,
''31-75 and 31-76;
|
|
"
|
Connecticut
Family and Medical Leave Law B Conn. Gen. Stat. ' 31-51kk et
seq.;
|
|
"
|
Connecticut
Drug testing Law B Conn. Gen. Stat. ' 31-51t et
seq.;
|
|
"
|
Connecticut
Whistleblower Law B Conn. Gen. Stat. ' 31-51m et
seq.;
|
|
"
|
Connecticut
Free Speech Law B Conn. Gen. Stat. ' 31-51q et
seq.;
|
|
"
|
Connecticut
Electronic Monitoring of Employees Law B Conn. Gen. Stat. '
31-48d;
|
|
"
|
Any
other federal, state or local law, rule, regulation, or
ordinance;
|
|
"
|
Any
public policy, contract, tort, or common law; or any basis for recovering
costs, fees, or other expenses including attorneys’ fees incurred in these
matters.
|
Xxxxxx
hereby releases Xxxxxxx of and from any and all claims, known and unknown,
asserted or unasserted, which Xxxxxx has or may have against Xxxxxxx as of
the
date of execution of this Agreement and General Release, other than Sections
3.2
and 3.5 of the Executive Employment Agreement dated as of December 1, 2004,
between the Parties (the “Employment Agreement”).
In
the
event that Xxxxxx defaults in payment of the Initial Payment or Second Payment
under this Agreement and General Release, the above releases by Xxxxxxx will
be
void and unenforceable. If any such default occurs, Xxxxxxx, or in the event
of
his death or incapacity, his successors, assigns, heirs and estate, will be
free
to pursue the above-described Lawsuit and any other claim(s) he may have against
Xxxxxx.
Once
the
Second Payment of Two Hundred Fifty Thousand Dollars ($250,000) is made and
the
options are vested, reduced in value and registered with the Securities and
Exchange Commission, Xxxxxxx will promptly withdraw the Lawsuit with
prejudice.
|
6)
|
Acknowledgments
and Affirmations.
|
Xxxxxxx
affirms that he has not filed, caused to be filed, or presently is a party
to
any claim against Releasees except for the Lawsuit. Xxxxxxx also affirms that
with this settlement of the Lawsuit he has been paid and/or has received all
compensation, wages, bonuses, commissions, and/or benefits to which he may
be
entitled. Xxxxxxx affirms that he has been granted any leave to which he was
entitled under the Family and Medical Leave Act or related state or local leave
or disability accommodation laws. Xxxxxxx further affirms that he has no known
unreported workplace injuries or occupational diseases. Xxxxxxx also affirms
that he has not divulged any proprietary or confidential information of
Releasees and will continue to maintain the confidentiality of such information,
and any applicable agreement(s) Xxxxxxx may have with Releasees and/or with
his
obligations under federal, state or local law. Xxxxxxx further affirms that
he
has not been retaliated against for reporting any allegations of wrongdoing
by
Releasees, including any allegations of corporate fraud. Both Parties
acknowledge that this Agreement does not limit either party’s right, where
applicable, to file or participate in an investigative proceeding of any
federal, state or local governmental agency. To the extent permitted by law,
Xxxxxxx agrees that if such an administrative claim is made, Xxxxxxx shall
not
be entitled to recover any individual monetary relief or other individual
remedies.
Page 5
of
6
|
7)
|
Confidentiality.
|
Both
Xxxxxxx and Xxxxxx agree that the terms and provisions of this Agreement and
General Release, including the fact of this Agreement and General Release itself
and the amount of the consideration, are and shall remain confidential and
that
they shall not, individually or through their agents, attorneys, family members
or other representatives or those acting on their behalf, in any manner notify,
provide, publish, publicize, disclose, disseminate, or in any way make known
to
any third person organization or entity, the existence of this Agreement and
General Release, its terms or conditions, or the discussions that led to the
making of this Agreement and General Release, provided, however, that if asked
about the status of the Lawsuit it will not be a violation of this provision
to
respond that the matter is “resolved.” The foregoing shall not preclude such
disclosure as follows: disclosure to a spouse; children; disclosure to
attorneys, accountants, insurers or others who require such information to
perform professional services; disclosure within Xxxxxx for business purposes;
disclosure as may be required by law or to the Securities and Exchange
Commission; and/or disclosure as may be necessary to enforce the terms of this
Agreement and General Release. The Parties agree that violation of any
obligation contained in this paragraph is a material breach of this Agreement
and shall entitle the non-breaching party to all available remedies, including
but not limited to the right to injunctive relief, an ex
parte
preliminary injunction and/or temporary restraining order against any person
or
entity who has so breached or may be intending to so breach this Confidentiality
clause, and all reasonable attorneys’ fees, costs and expenses incurred in
obtaining injunctive or other relief.
|
8.
|
Governing
Law and Interpretation.
|
This
Agreement and General Release shall be governed and conformed in accordance
with
the laws of the State of Connecticut without regard to its conflict of laws
provision. In the event of a breach of any provision of this Agreement and
General Release, either party may institute an action specifically to enforce
any term or terms of this Agreement and General Release and/or seek any damages
for breach.
Should
any provision of this Agreement and General Release be declared illegal
or
unenforceable
by any court of competent jurisdiction and cannot be modified to be enforceable,
excluding the general release language, such provision shall immediately become
null and void, leaving the remainder of this Agreement and General Release
in
full force and effect.
|
9.
|
Amendment.
|
This
Agreement and General Release may not be modified, altered or changed except
in
writing and signed by both Parties wherein specific reference is made to this
Agreement and General Release.
|
10.
|
Entire
Agreement.
|
This
Agreement and General Release sets forth the entire agreement between the
Parties hereto, and fully supersedes any prior agreements or understandings
between the Parties, including the Letter Agreement dated January 18, 2007
between the Parties and the Employment Agreement, other than Sections 3.2 and
3.5 of the Employment Agreement. Xxxxxxx acknowledges that he has not relied
on
any representations, promises, or agreements of any kind made to him in
connection with his decision to accept this Agreement and General Release,
except for those set forth in this Agreement and General Release.
Page 6
of
6
XXXXXXX
AGREES THAT HE HAS UP TO TWENTY-ONE (21) CALENDAR DAYS TO CONSIDER THIS
AGREEMENT AND GENERAL RELEASE. XXXXXXX HAS CONSULTED WITH AN ATTORNEY PRIOR
TO
SIGNING THIS AGREEMENT AND GENERAL RELEASE.
XXXXXXX
WAIVES HIS RIGHT TO REVOKE THIS AGREEMENT AND GENERAL RELEASE FOR A PERIOD
OF
SEVEN (7) CALENDAR DAYS FOLLOWING THE DAY HE SIGNS THIS AGREEMENT AND GENERAL
RELEASE.
XXXXXXX
AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT
AND
GENERAL RELEASE, DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL UP TO
TWENTY-ONE (21) CALENDAR DAY CONSIDERATION PERIOD.
XXXXXXX
FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT
AND GENERAL RELEASE INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS HE HAS
OR
MIGHT HAVE AGAINST RELEASEES.
The
Parties knowingly and voluntarily sign this Agreement and General
Release
as
of the
date(s) set forth below:
| XXXXXX PRODUCTS CORP. | ||||
| By: | /s/ Xxxxx Xxxxx | 02/16/07 | ||
|
Xxxxx Xxxxx |
Date |
|||
| President and CEO | ||||
| /s/ Xxxxx Xxxxxxx | 02/16/07 | |||
|
XXXXX XXXXXXX |
Date |
|||
