AGREEMENT, GENERAL RELEASE, WAIVER AND SETTLEMENT
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CONSULT WITH A LAWYER BEFORE SIGNING THIS AGREEMENT. BY SIGNING
THIS AGREEMENT YOU GIVE UP AND WAIVE IMPORTANT LEGAL RIGHTS.
I, Xxxxxxxxx Xxxxxx Xxxxxxxxxxx, understand and, of my own free will,
enter into this AGREEMENT AND GENERAL RELEASE ("AGREEMENT") with The Xxxxxx Xxx
Company, Inc. and its wholly owned subsidiary Xxxxxx Xxx Marketing, Inc.
(collectively referred to herein as the "COMPANY") and, in consideration of the
severance and termination payment and benefit (collectively "termination
benefit") described herein, agree as follows:
1(a). The COMPANY and I agree that my employment with the COMPANY is
to be terminated without cause, and that I have a right to receive, pursuant to
my Employment Agreement, dated June 4, 1997, and for additional consideration,
the following benefits, including a total lump sum payment of $159,287.22,
payable within ten (10) days of signing this agreement, as detailed on Exhibit A
attached hereto and having been adjusted as required by law.
1(b). I further understand that I will continue to participate in all
of the Company's Employee benefit plans provided in my Employment Agreement, for
the period from January 1, 1998 through June 9, 1988, as detailed in Exhibit B
attached hereto. Thereafter, I will be eligible to make a COBRA election to pay
for the continuation of medical and dental benefits for eighteen months, or
other applicable COBRA continuation period.
1(c). I have been advised that the Board of Directors has resolved
that I will be permitted to exercise 33% of 70,040 Stock Options, priced at
$6.18, at any time between the effective date of this Agreement and the first
anniversary thereof, pursuant to the Stock Option Agreement dated June 4, 1997,
as amended by the Resolution of the Board of Directors, attached hereto as
Exhibit C.
2. I hereby confirm that my employment with the COMPANY terminated as
of December 9, 1997, and I ceased being an employee and an officer of the
COMPANY as of that date.
3. I understand that this AGREEMENT does not constitute an admission
by the COMPANY of any: (a) violation of any statute, law or regulation; (b)
breach of contract, actual or implied; or (c) commission of any tort.
4. I realize there are many laws and regulations prohibiting
employment discrimination or otherwise regulating employment or claims related
to employment pursuant to which I may have rights or claims. These include Title
VII of the Civil Rights Act of 1964, as amended; the Age Discrimination in
Employment Act of 1967, as amended (the "ADEA"); the
Americans with Disabilities Act of 1990; the National Labor Relations Act, as
amended; the Employee Retirement Income Security Act of 1974, as amended; the
Civil Rights Act of 1991; the Worker Adjustment and Retraining Notification Act
("WARN"). 42 U.S.C. Section 1981 and federal, state, and local human rights,
fair employment and other laws. I also understand there are other statutes and
laws of contract and tort otherwise relating to my employment. I INTEND TO WAIVE
AND RELEASE ANY RIGHTS OR CLAIMS I MAY HAVE UNDER THESE AND OTHER LAWS, BUT I DO
NOT INTEND TO NOR AM I WAIVING ANY RIGHTS OR CLAIMS THAT MAY ARISE AFTER THE
DATE I SIGN THIS AGREEMENT.
5(a). In exchange for my receipt of all of the termination benefits
provided for herein, including the COMPANY's release in paragraph 5(b), on
behalf of myself, my heirs and personal representatives, I release and discharge
the COMPANY from any and all charges, claims and actions arising out of my
employment or the termination of my employment with the COMPANY, including but
not limited to, any claims for attorney's fees and/or expenses. I hereby settle,
waive and will immediately withdraw with prejudice any charges, claims and
actions that I or persons acting on my behalf have brought before signing this
AGREEMENT. I agree that I will not seek personal recovery from the COMPANY
relating to the subject matter of this paragraph 5(a).
5(b). In exchange for the execution of this release and other good
and valuable consideration, the COMPANY releases and discharges me from any and
all charges, claims and actions arising out of my employment or the termination
of my employment with the COMPANY, including but not limited to, any claims for
attorney's fees and/or expenses.
5(c). As referred to in this paragraph, the COMPANY includes its
parents, subsidiaries, affiliates and divisions and their respective successors
and assigns and their directors, officers, representatives, shareholders,
agents, employees and their respective heirs and personal representatives.
6. This AGREEMENT shall be deemed to have been made within the County
of New York, State of New York, and shall be interpreted and construed and
enforced in accordance with the laws of the State of New York, and before the
Courts of the State of New York, in the County of New York.
7. I understand that this AGREEMENT may not affect the rights and
responsibilities of the Equal Employment Opportunity Commission ("Commission")
to enforce the ADEA, or used to justify interfering with the protected right of
an employee to file a charge or participate in an investigation or proceeding
conducted by the Commission under the ADEA.
8(a). I understand that in addition to any other obligation I have
pursuant to this AGREEMENT or otherwise, I will not in any capacity or manner
whatsoever, either directly or indirectly, for a six (6) month period following
the effective date of this AGREEMENT, solicit any person to leave the COMPANY.
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8(b). I further understand and agree that, I will not disclose any
confidential information, including without limitation, information concerning
business practices, finances, developments, trade secrets, intellectual
property, designs, sketches, patterns, records, data and other proprietary
information, which I had access to during my employment with the COMPANY.
9(a). The provisions and terms (collectively "provisions") of this
AGREEMENT are severable.
9(b). In the event that one or more of the provisions of this
AGREEMENT shall be ruled unenforceable or void, the provision(s) so affected
shall be deemed amended and shall be construed so as to enable the provision(s)
to be applied and enforced to the maximum lawful extent.
9(c). My rights and the rights of the COMPANY referred to in this
Paragraph 9(a) through (c) are in addition to any other rights or claims the
parties may have, including, without limitation, any rights or claims one party
may have against the other for breach of this AGREEMENT. Further, if either
party breaches its release in paragraph 5, it shall pay all costs and expenses
defending against the suit incurred by the other party.
10. I will not at any time talk about, write about or otherwise
publicize the terms or existence of this AGREEMENT or any fact concerning its
negotiation, execution or implementation, except in the course of obtaining
legal and/or tax advice or to enforce the terms of this Agreement. I will not
testify or give evidence in any forum concerning my affiliation or employment
with the COMPANY unless required by law or requested in writing by an authorized
official of the COMPANY. Notwithstanding the foregoing, if I am requested in
writing to do so by an authorized official of the COMPANY, I will reasonably
cooperate with the COMPANY in any investigation it may conduct in connection
with any events which occurred while I was an employee of the COMPANY.
11. The COMPANY agrees to provide me with a letter of reference as
attached hereto as Exhibit D. In addition, the COMPANY also agrees to release a
statement in the form attached hereto as Exhibit E, regarding my employment and
the termination thereof. The COMPANY also agrees that it shall not authorize
anyone to make or publish any statements which are materially inconsistent with
those contained in Exhibits D or E.
12. The COMPANY agrees to continue in full force and effect my rights
to indemnification and insurance under the COMPANY's Directors and Officers
Insurance Policies as may be applicable for my actions or inactions while I was
employed by the COMPANY, as in effect on December 9, 1997. Furthermore, nothing
contained in this Agreement shall affect or impair my right to such indemnity or
insurance pursuant to my Employment Agreement, the COMPANY's Certificate of
Incorporation and By Laws, or under applicable law.
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13. I understand that if I breach this AGREEMENT, in whole or in
part, the COMPANY will suffer irreparable harm for which it may have no adequate
remedy at law. I therefore consent without limiting any other rights the COMPANY
may have, to enforcement of any provision or provisions of this AGREEMENT by the
COMPANY by means of injunctive relief.
14. I was given a copy of this AGREEMENT on December 9, 1997. I have
had an opportunity to consult an attorney and any other advisor(s) of my
choosing before signing it and was given a period of at least twenty one (21)
days, which is a reasonable period of time, within which to consider this
AGREEMENT. I acknowledge that in signing this AGREEMENT, I have relied only on
the promises written in this AGREEMENT and not on any other promise made by the
COMPANY.
15. I have seven (7) days to revoke this AGREEMENT after I sign it.
This AGREEMENT will not become effective or enforceable until (7) days after the
COMPANY has received my signed copy of this AGREEMENT.
16. This AGREEMENT may not be modified or changed orally.
PLEASE WRITE THE FOLLOWING IN THE SPACE PROVIDED IF IT IS TRUE:
I have read this AGREEMENT, GENERAL RELEASE, WAIVER AND SETTLEMENT
and I understand all of its terms. I enter into and sign this AGREEMENT
knowingly and voluntarily, with full knowledge of what it means.
I have read this agreement, general release, waiver and settlement
and I understand all of its terms. I enter into and sign this agreement
knowingly and voluntarily, with full knowledge of what it means.
By: /s/Xxxxxx Xxxxxxx /s/Xxxxxxxxx Xxxxxx Xxxxxxxxxxx
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COMPANY's Representative EMPLOYEE's Signature
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