Exhibit 10.1
April 18, 2005
Xxxxxx X. Xxxxxxxxx
00000 Xxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Dear Phil:
This letter agreement confirms that Wilshire Enterprises, Inc.
("Wilshire") and you mutually have agreed to terminate your engagement by
Wilshire to perform the Consulting Services described in the letter agreement
between Wilshire and you dated June 14, 2004 ("Consulting Letter") and sets
forth our agreements regarding such termination. Capitalized terms used in this
letter agreement and not defined herein, will have the meanings described in the
Consulting Letter.
1. Termination of Consulting Services. By our mutual agreement, your engagement
to perform the Consulting Services and the Consulting Period shall terminate
today, April 13, 2005 ("Termination Date"). By accepting this letter agreement,
you acknowledge that (except as otherwise provided herein) you have received all
payments and benefits to which you are entitled under the Consulting Letter and
that Wilshire has no further obligations to you under the Consulting Letter or
otherwise.
2. General Release of Company. In consideration of the Payment (as defined
below) and other good and valuable consideration, by accepting this letter you
hereby release, waive, discharge and give up any and all Claims (as defined on
Exhibit A attached hereto) that you may have against the Company (as defined on
Exhibit A attached hereto) arising on or prior to the date that you accept this
letter agreement. This releases all Claims including those of which you are not
aware and those not mentioned in this letter agreement. You specifically release
any and all Claims arising out of your former employment with Wilshire and
separation therefrom, as well as your engagement to perform the Consulting
Services and the termination thereof.
3. General Release of You. In consideration of your acceptance of this letter
agreement, Wilshire releases, waives, discharges and gives up any and all
Wilshire Claims (as defined on Exhibit A attached hereto) that Wilshire may have
against you, arising on or prior to the date of this letter agreement. This
releases all Wilshire Claims including those of which Wilshire is not aware and
those not mentioned in this letter agreement up to the date of this letter
agreement. Notwithstanding the foregoing, nothing herein shall be deemed to
release you from any of your acts or omissions involving or arising from fraud
or from your obligations under the Employment Agreement that survived the
termination of your employment (including, without limitation, Sections 2.6,
4.3(b), (c) and (d), and 6 through 26).
4. Representations; Covenant Not to Xxx. Wilshire and, by accepting this letter,
you, hereby represent and warrant to the other that neither has: (A) filed,
caused, or permitted to be filed any pending proceeding (nor lodged a complaint
with any governmental or quasi-governmental authority) against the other, nor
agreed to do any of the foregoing; (B) assigned, transferred, sold, encumbered,
pledged, hypothecated, mortgaged, distributed, or otherwise disposed of or
conveyed to any third party any right, Claim or Wilshire Claim, as applicable,
against the other that has been released in this letter agreement; and (C)
directly or indirectly assisted any third party in filing, causing, or assisting
to be filed, any Claim or Wilshire Claim, as applicable, against the other. In
addition, neither Wilshire nor you shall encourage or solicit or voluntarily
assist or participate in any way in the filing, reporting, or prosecution by
itself or any third party of a proceeding, Claim, or Wilshire Claim,(as
applicable) against the other based upon or relating to any Claim or Wilshire
Claim, as applicable, released by in this letter agreement.
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5. Payment In consideration of your acceptance of this letter agreement,
Wilshire shall provide to you a lump sum payment ("Payment") in the amount of
$40,625, representing payment of the Consulting Fees through December 31, 2005.
The Payment shall be made to you within 5 business days after your acceptance of
this letter agreement. You will receive a 1099 with respect to the Payment.
6. Exercise of Options/Purchase of Acquired Shares. By accepting this letter
agreement, you hereby agree to exercise the Options (as defined on Exhibit A
attached hereto), at the applicable exercise prices (which shall be equivalent
to an aggregate exercise cost of $1,005,500), within 5 business days following
your acceptance of this letter agreement. Following your exercise of the
Options, Wilshire hereby agrees to purchase from you, and, by accepting this
letter, you hereby agree to sell and transfer to Wilshire, free and clear of all
liens, claims and encumbrances, all of your right, title and interest in and to
the Acquired Shares, for an aggregate payment of $2,100,000 (less applicable
withholdings and deductions), which payment represents a purchase price per
Acquired Share equal to $7. You will be required to sign the enclosed stock
power in blank (representing your sale and transfer to Wilshire of the Acquired
Shares) and deliver the signed stock power to Wilshire simultaneously with your
return of this letter agreement (countersigned by you). By accepting this letter
agreement, you further agree to execute all other documents reasonably requested
by Wilshire to effectuate and/or confirm your sale and transfer to Wilshire of
the Acquired Shares
7. Binding Agreement; Governing Law. Wilshire and you, together with our
respective successors and assigns, shall be bound by this letter agreement. This
letter agreement and all matters arising directly or indirectly herefrom shall
be governed under the laws of the State of New Jersey, without reference to
choice of law rules. Wilshire and you consent to the sole jurisdiction of the
federal and state courts of New Jersey. WILSHIRE AND, BY ACCEPTING THIS LETTER
AGREEMENT, YOU HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY.
8. Opportunity for Review. By accepting this letter agreement, you represent and
warrant to Wilshire that you (a) have had a sufficient opportunity to review
this letter agreement, (b) have read and understood this letter agreement, (c)
have entered into this letter agreement on your own free will and volition, (d)
understand that you are responsible for your own attorney's fees and costs, and
(e) have had the opportunity to review this letter agreement with counsel.
Kindly sign your name at the end of this letter agreement to signify your
understanding and acceptance of these terms. This letter agreement,
countersigned by you, together with the enclosed stock power signed by you, must
be returned to Wilshire on or before April 19, 2005.
Very truly yours,
Wilshire Enterprises, Inc.
By: /s/ Xxxx X. Xxxxxx
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Agreed and accepted this 19 day of April, 2005
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
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Exhibit A
Certain Definitions
"Acquired Shares" means the 300,000 shares of common stock of Wilshire acquired
by you in connection with your exercise of the Options.
"Claims" means any and all actions, charges, controversies, demands, causes of
action, suits, rights, and/or claims whatsoever for debts, sums of money, wages,
salary, consulting fees, expense reimbursement, severance pay, termination fees,
commissions, bonuses, unvested stock options, vacation pay, sick pay, fees and
costs, attorneys fees, losses, penalties, damages, including damages for pain
and suffering and emotional harm, arising, directly or indirectly, out of any
promise, agreement (including without limitation the Employment Agreement and
the Consulting Letter), offer letter, contract, understanding, common law, tort,
the laws, statutes, and/or regulations of the State of New Jersey, the State of
Florida or any other state and the United States, including, but not limited to,
federal and state wage and hour laws, federal and state whistleblower laws,
Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the
Equal Pay Act, the Americans with Disabilities Act, the Family and Medical Leave
Act, the Employment Retirement Income Security Act (excluding COBRA), the
Vietnam Era Veterans Readjustment Assistance Act, the Fair Credit Reporting Act,
the Fair Labor Standards Act, the Age Discrimination in Employment Act ("ADEA"),
OSHA, the Xxxxxxxx-Xxxxx Act of 2002, the New Jersey Law Against Discrimination,
the New Jersey Family Leave Act, the New Jersey Civil Rights Act, the New Jersey
Conscientious Employee Protection Act, the Florida Civil Rights Act of 1992, the
Florida Human Rights Act, the Florida Occupational Safety and Health Act, and
the Florida Whistleblower's Act, as each may be amended from time to time,
whether arising directly or indirectly from any act or omission, whether
intentional or unintentional.
"Company" means Wilshire, together with its affiliates and subsidiaries and
their respective officers, directors, employees, shareholders, members,
partners, plan administrators, attorneys and agents, as well as any
predecessors, future successors or assigns or estates of any of the foregoing.
"Options" means the following options to purchase shares of Wilshire's common
stock granted to you pursuant to the Wilshire 1995 Stock Option and Incentive
Plan:
Option Grant Date #of Options Option Exercise Price
----------------- ----------- ---------------------
7/15/02 250,000 $3.32
1/2/03 50,000 $3.51
"Wilshire Claims" means any and all actions, charges, controversies, demands,
causes of action, suits, rights, and/or claims whatsoever that Wilshire may have
against you arising out of: (A) your former employment with Wilshire or
termination therefrom, your engagement to perform the Consulting Services or the
termination thereof, or the circumstances related the foregoing; or (B) by
reason of any other matter, cause, or thing whatsoever from the date of your
initial employment with Wilshire to the date of this letter agreement, whether
arising directly or indirectly from any act or omission, whether intentional or
unintentional.
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