CASEY SYSTEMS INC.
EXHIBIT 10.1
XXXXX
SYSTEMS INC.
February
13, 2008
Xx.
Xxxxxx Xxxxxx
00
Xxxxxxxx Xxxx Xxxx
Xxxxxx,
XX 00000
Re: Separation Agreement and
General Release
Dear Xx.
Xxxxxx:
This
letter Separation Agreement and Release (“Agreement”) sets forth the terms and
conditions regarding your separation from employment with Xxxxx Systems Inc. and
any of its parents, subsidiaries and affiliates (collectively, the
“Company”).
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1.
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Resignation. For purposes of
this Agreement, the Company agrees to waive the requirement in your
Employment Agreement, Section 5.5, which requires you to provide three (3)
months written notice of your resignation and will accept your resignation
effective February 13, 2008 (the “Resignation Date”). You
confirm that you have not incurred any undisclosed debt, liability or
obligation (collectively, “liability”) on behalf of the
Company. You also acknowledge that commencing on the date of
this letter that you have no authority to waive attorney/client privilege
on behalf of the Company and you represent that you have not waived or
attempted to waive such privilege prior to the date of this letter.
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2.
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Return
of Company Property/Return of Personal Property. You
represent that as of the date of this Agreement, you have returned to the
Company or at the Company’s direction, destroyed all property, files, and
other Company material in your possession and all property made available
to you in connection with your employment with the Company, including
without limitation, any and all Company gas cards, EZ passes, access cards
and codes, keys, safe combinations, security access codes, records,
customer lists, a PDA Treo, files and any other equipment, papers,
electronically stored information and documents kept or made by you in
connection with your employment. This paragraph shall not apply
to any such property which is of a non-confidential nature and is specific
to you as an employee of the Company. Within a reasonable time
after the Resignation Date, the Company shall pack all of your personal
items remaining in the New York and Syosset Offices and ship them to your
home. The Company shall also ship such items as may arrive at
the Company Offices up to three (3) weeks after the Resignation
Date.
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3.
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Expense
Reimbursement. The Company shall pay or reimburse you in
accordance with the Company’s established guidelines, for all reasonable,
ordinary and necessary expenses incurred by you in January 2008 in
connection with services rendered by you for the Company, such
reimbursement to be paid promptly after the Company receives appropriate
documentation for such expenses. The Company will have the
right to offset against such payments the amount of $9,310.56 for personal
or undocumented expenses incurred by you and charged to the Company for
which reconciliation has not been made. Your signature on this
Agreement represents your consent to this
withholding.
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4.
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Vacation
Payment. You will also receive a lump sum payment for
eighteen (18) days of accrued but unused vacation to which you are
entitled under the Company plan. Payment for any accrued and
unused vacation time as of the Resignation Date will be made by the
Company in your February 14, 2008
paycheck. These payments will be made whether you sign this
Agreement or not. To the extent that restitution of personal or
undocumented expenses incurred by you and charged to the Company is not
satisfied in accordance with Paragraph 3 above, you have requested and the
Company has agreed to permit you to provide the balance due to the Company
by your personal check, within five days after you receive your accrued
but unused vacation pay from the
Company.
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5.
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Severance
and Benefit Payments. Subject to your agreement to the
terms and conditions of this Agreement, your compliance with such terms
and your non-revocation of this Agreement pursuant to Paragraph 20 below,
the Company shall provide you with the following payments and benefits,
which you acknowledge are adequate consideration for the covenants and
promises that you are making
herein:
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(a) Commencing
with the first regularly scheduled payroll period following the Resignation
Date, and assuming that this Agreement has not been revoked in accordance with
Paragraph 20, the Company will provide you with a total severance benefit equal
to nine (9) months of your annual base salary immediately prior to the
Resignation Date. Payments will be made in equal installments in
accordance with the Company’s regular payroll procedures and will be subject to
all applicable taxes and withholdings. This will be referred to as
the Severance Period.
(b) During
the term of the Severance Period, the Company will continue the benefits
provided in paragraphs 3.1 and 4 of your Employment Agreement, provided that
such continuation is permitted under the governing plans, except that you shall
not continue to accrue vacation or any other benefits during the Severance
Period. In addition, the Company will not continue your long term
disability insurance, extended dental insurance and life insurance since such
continuation is not permitted by the terms of those plans. However,
during the term of the Severance Period the Company will pay you an additional
three hundred dollars ($300.00) per month less all applicable taxes and
withholdings, towards your purchase of such individual insurance. If
you become eligible for such benefits during the Severance Period, you agree to
immediately inform Xxxx Xxxxxxxx in writing at Xxxxx Systems, 000 Xxxxxxxxx
Xxxxx, Xxxxxxx, Xxx Xxxx 00000, within seven (7) days of your eligibility
for coverage elsewhere. You further agree that as of that benefit
eligibility date, the Company’s obligation for this additional monthly payment
will cease.
(c) During
the term of the Severance Period, the Company will continue to pay the same
proportionate rate for medical, dental and other group insurances as it paid
while you were an employee. The Company’s payment for your group
medical benefits will terminate upon the earlier of the end of your Severance
Period; your material breach of this Agreement; or the time that you become
eligible for medical coverage elsewhere. If you become eligible for
group medical benefits during the Severance Period, you agree to immediately
inform Xxxx Xxxxxxxx in writing at Xxxxx Systems, 000 Xxxxxxxxx Xxxxx, Xxxxxxx,
Xxx Xxxx 00000, within seven (7) days of your eligibility
for coverage elsewhere. You further agree that as of that benefit
eligibility date, the Company’s obligation to pay for such premiums will
cease. To continue coverage on the same terms and conditions on which
you are currently receiving such benefits, the Company will withhold from the
severance payments, the required premiums. Your signature on this
Agreement represents your consent to this withholding.
(d) You
acknowledge that following the Resignation Date, except as provided in this
Agreement, you will not be entitled to any other payments, benefits or
perquisites from the Company, including without limitation, salary, bonus,
vacation pay or any other compensation or benefits. To the extent
that you may have any vested rights under any of the Company’s welfare or
benefit plans, equity plan or equity plan award, your rights and obligations
shall, unless specifically modified herein, be governed by the applicable terms
of any such plan as existing on the Resignation Date;
(e) All
payments hereunder shall be subject to applicable deductions and
withholding.
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6.
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COBRA. At
the conclusion of your Severance Period, you will be entitled to exercise,
at your cost, any remaining COBRA extension rights to which you may be
entitled under law with respect to group health
coverage.
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7.
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General
Release of Claims. The Company is under no obligation to
make the payments or provide the benefits being provided to you pursuant
to Paragraph 5 above, and will do so only subject to your agreement to,
and compliance with, the terms of this Agreement. For and in
consideration of the payments described in Paragraph 5 above, and other
good and valuable consideration, you, on your own behalf and on behalf of
your heirs, administrators, executors, and assigns, fully and forever
release, remise and discharge the Company, its employee benefits plans and
trustees, fiduciaries, and administrators of those plans and any of its
present or past employees, officers, directors, agents, and contractors,
and each of their predecessors, successors and assigns (individually and
collectively) from any and all claims, which, as of the date of this
Agreement, you had, may have had, or now have against the Company, for or
by reason of any matter, cause or thing whatsoever, including any Claim
arising out of or attributable to your employment or your resignation of
employment from the Company, including but not limited to claims of breach
of implied or express contract, or quasi contract, breach of promise,
estoppel, wrongful termination, unjust dismissal, constructive discharge,
violation of public policy, common law claims, including but not limited
to, misrepresentation, fraud, intentional or negligent infliction of
emotional distress, negligence, intentional harm, torts, defamation, libel
or slander, or under any federal, state or local law dealing with
discrimination, harassment and/or retaliation based on age, race, color,
sex, sexual orientation, national origin, citizenship status, ancestry,
religion, marital status, pregnancy, disability, medical condition or such
laws relating to wages or the employer/employee relationship, provided,
however, that this Release shall not apply to the Company’s obligations
under this Agreement. This release of claims includes, but is
not limited to, all claims arising under the Civil Rights Act of 1866,
Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991,
the Americans with Disabilities Act, the Family Medical Leave Act, the
Equal Pay Act, the Employee Retirement Income Security Act, the Age
Discrimination in Employment Act of 1967, the Older Workers’ Benefit
Protection Act of 1990, the Xxxxxxxx-Xxxxx Act of 2002, (all as amended,
if applicable), the New York State Human Rights Law, the New York City
Human Rights Law, the New York Equal Pay Law,
the New York Equal Rights Law, the New York Off-Duty Conduct Lawful
Activities Discrimination Law, the New York Minimum Wage Act, the New York
Wage and Hour Law, the New York Whistleblower Statute, and all
other federal, state and local labor and anti-discrimination laws, the
common law and any other purported restriction on an employer’s right to
terminate the employment of employees. In addition, this
release of claims includes all claims for the payment of wages, moneys
owed, severance, vacation pay, disability payments, benefit contributions
or matching payments, stock options, stock awards, vacation pay, bonuses
or claims for attorneys’ fees, costs or expenses not otherwise provided in
this Agreement.
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8.
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Effect
of General Release; Limitations on General Release. You
understand that by signing this Agreement you are prevented from filing,
commencing or maintaining any action, complaint, or proceeding with regard
to any of the claims released in this Agreement. However,
excluded from this General Release are any claims that cannot be waived by
law, including, but not limited to, your right to challenge the legal
validity of this Agreement under the ADEA, as amended and your right to
pursue claims arising from a breach of this Agreement. In
addition, nothing in the General Release of claims above or any other part
of this Agreement precludes you from filing a charge with an
administrative agency or from participating in an agency
investigation. You are, however, waiving your right to recover
money in connection with any such charge or investigation. You
are also waiving your right to recover money in connection with a charge
filed by any other individual or by the Equal Employment Opportunity
Commission or any other federal or state
agency.
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9.
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Covenant
Not to Xxx. In addition to waiving and releasing the
claims and rights covered by the General Release of Claims above, you
promise not to xxx the Company or any other Released Party in any forum
for any reason, including but not limited to claims, laws or theories
covered by the General Release of Claims. This covenant by you
not to xxx is different from the General Release of Claims, which will
provide the Company a defense in the event you violate the General
Release. If you violate this Covenant Not to Xxx by suing a
Released Party, you may be liable to that party for monetary
damages. More specifically, if you xxx a Released Party in
violation of this Covenant Not to Xxx, you will be required to
either: (1) pay that Released Party’s attorneys’ fees and other
costs incurred as a result of having to defend against your suit; or (2)
alternatively, at the Released Party’s option, return to the Company all
of the payments provided to you under Paragraph 5 above, except for
one-hundred dollars ($100.00). In the event of such violation,
the Company will also be excused from providing you any remaining payments
and benefits under this Agreement. However, nothing in this
Covenant Not to Xxx or in any other part of this Agreement prevents you
from challenging the validity of this Agreement under the
ADEA.
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10.
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Company
Release of Claims. For and in consideration of the
benefits provided by you under this Agreement, the Company, its officers,
directors, employees, agents, successors and assigns (individually and
collectively, the “Company”) fully and forever release, remise and
discharge you, from any and all claims, which, as of the date of this
Agreement, the Company had, may have had, or now has against you, for or
by reason of any matter, cause or thing whatsoever, including any Claim
arising out of or attributable to your employment and your resignation
from employment with the Company, including but not limited to claims of
breach of implied or express contract, or quasi contract, breach of
promise, estoppel, violation of public policy, common law claims,
including but not limited to, intentional or negligent infliction of
emotional distress, negligence, intentional harm, torts, defamation, libel
or slander, or under any federal, state or local law dealing with
discrimination, harassment and/or retaliation based on age, race, color,
sex, sexual orientation, national origin, citizenship status, ancestry,
religion, marital status, pregnancy, disability, medical condition or such
laws relating to wages or the employer/employee relationship, provided,
however, that this Release shall not apply to your obligations under this
Agreement nor shall this Release apply to any claims of misrepresentation,
fraud or criminal conduct about which the Company may learn subsequent to
the execution of this Agreement.
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11.
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Confidential
Information. You agree that in the course of your
employment with the Company you have had access to and acquired
Confidential Information. The term “Confidential Information”
as used in this Agreement means (i) confidential information of the
Company, including, without limitation, information received from third
parties under confidential conditions; and (ii) inventions and other
technical, business or financial information or trade secrets or
proprietary information (including, but not limited to, account records,
Comtrak and Xxxxx databases, customer lists, costs, price lists, supplier
information, marketing information and strategies, annuals, confidential
plans for the creation or disposition of products, product development
plans, and financial data and plans, Comtrak, Teltrak issues, strategies
and designs), the use or disclosure of which would be contrary to the
interests of the Company, its affiliates or related
companies. Confidential Information does not include
information that is generally known to the public or within the relevant
trade or industry, unless it becomes known due to your violation of this
Agreement, or was known by you prior to your employment with the
Company.
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(a) You
understand and agree that such Confidential Information has been disclosed to
you in confidence and only for the use of the Company. You understand
and agree that (i) you will keep such Confidential Information confidential at
all times after the resignation of your employment from the Company, and (ii)
you will not make use of Confidential Information on your own behalf, or on
behalf of any third party, unless required to do so under compulsion of
law. Nothing in this Paragraph 11 will limit or amend any
confidentiality undertaking you may have signed in favor of the Company, or the
covenants contained in Paragraph 7 of your Employment Agreement, which
undertaking and covenants shall remain in full force and effect notwithstanding
this Agreement.
(b) The
parties agree that all discussions leading up to this Agreement are strictly
confidential and do not constitute, nor shall be construed as, an admission of
any wrongdoing, violation of law, or breach of any agreement, duty, or
obligation owed by any party to any other party.
(c) Nothing contained in this Agreement
shall preclude you from discussing any matter concerning the Company with any
governmental agency. Furthermore, you agree to cooperate with any
governmental agency that requests you to provide testimony or information
regarding the Company. If you are compelled to testify by a validly
served subpoena in any legal proceeding or by governmental authority, you will
provide advance notice to the Company of such obligation and you will testify
truthfully as to all matters concerning your employment with the
Company.
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12.
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Cooperation. During
the Severance Period, and in exchange for the severance and benefits
contained in this Agreement, you agree to be available to, cooperate with,
and provide information to the Company in connection with any matter
pending at the time of your resignation or which may later arise and which
relates to your employment with the Company, or to events or information
about which you are aware as a result of such employment. In
the event you are required to travel for purposes of this paragraph, the
Company shall reimburse your travel expenses after the Company receives
appropriate documentation for such
expenses.
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13.
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Non-Disparagement. You
and the Company Control Group (officers at the level of vice president and
above) agree that they have not taken and will refrain from taking any
actions or making any defamatory or disparaging written or oral statements
regarding each other, their related entities or personnel and agree not to
solicit any comments, statements or the like to the media or others that
may be considered to be derogatory or detrimental to the good name or
business reputation of either of the parties to this Agreement or to the
Company’s past or present shareholders, directors, executives, officers,
employees, agents or representatives. All requests for
references shall be referred to the Chief Executive Officer or to the
Human Resources Department.
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14.
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Non-Solicitation. You
agree that, in accordance with your Employment Agreement, during the
Severance Period, and continuing through February 1, 2015, you will not,
directly or indirectly, call on any accounts and customers of the Company
for the purpose of soliciting and/or providing to such accounts and
customers any products or services similar to those sold or provided by
the Company, nor will you in any way, directly or indirectly, induce any
accounts and customers of the Company to cease doing business with the
Company. Further you agree that during the Severance Period and
continuing through February 1, 2015, you will not directly or indirectly,
solicit, encourage, or induce any of the Company’s other employees or
consultants of the Company to leave the Company’s employ, or to work for
you or any Competitive Business of the Company, or any other
entity. You agree that this non-solicitation arrangement is
fair, and reasonable and necessary under the circumstances and is
reasonably required for the protection of the Company and that the
severance under this Agreement constitutes additional consideration for
such covenants. You also acknowledge that, in the event you
breach any part of this paragraph, the damages to the Company would be
irreparable.
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15.
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Certain
Remedies. Without intending to limit the remedies
available to the parties hereto, the parties agree that the Company would
be irreparably harmed by any actual or threatened violation of Paragraphs
11, 13 and 14 of this Agreement and that you would be irreparably harmed
by any actual or threatened violation of Paragraph 13 of this Agreement,
that in the event of a violation of these provisions, both parties would
be without an adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of such
a breach or threat thereof, the injured party shall be entitled to seek
from any court of competent jurisdiction a temporary restraining order or
a preliminary or permanent injunction, or both, without bond or other
security or the need to prove damages, restraining the other party from
engaging in activities prohibited by Paragraphs 11, 13 and 14 of this
Agreement or such other relief as may be required specifically to enforce
this Agreement.
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16.
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Entire
Agreement. The terms described in this Agreement
constitute the entire agreement between you and the Company and may not be
altered or modified other than in a writing signed by you and the
Company. No promise, inducement or agreement not expressed
herein has been made to you in connection with this Agreement and this
Agreement supercedes all prior arrangements, communications, commitments
or obligations between yourself and the Company, except to the extent that
those provisions are expressly incorporated herein by
reference.
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17.
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Effective
Date. This Agreement shall not become effective, and no
payments shall be due you hereunder, until such time as it is received by
the Company, is signed by you and the Company, is approved by the Board of
Directors, and the Revocation Period has expired without any revocation by
you of this Agreement.
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18.
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Knowing
and Voluntary Decision to Sign. You
have read and received a complete explanation of the terms of this
Agreement, including its release and you confirm that you have had the
opportunity to confer with an attorney or any other advisors of your own
choosing with respect to the terms of this Agreement. You
acknowledge that you have entered into this Agreement freely and
voluntarily.
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19.
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Time
to Consider. You acknowledge that you were advised that
you could take up to twenty-one (21) days from the date this Agreement was
given to you to review this Agreement and decide whether you would enter
into this Agreement. To the extent that you have elected to
enter into this Agreement prior to such time, you have done so
voluntarily, and have knowingly waived such twenty-one (21) day
period.
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20.
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Revocation
Period. You may revoke this agreement for a period of
seven (7) calendar days after its execution (the "Revocation Period"), by
delivery of a notarized written notice of revocation (the "Revocation
Notice") prior to 5:00 p.m. on the last day comprising the Revocation
Period to Xxxx Xxxxxxxx, Chief Financial Officer, Xxxxx Systems, 000
Xxxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000. This Agreement shall
become irrevocable automatically upon the expiration of the Revocation
Period if you do not revoke it in the aforesaid manner. In the
event that you revoke the Agreement, or if for any other reason it is held
to be unenforceable, all checks, instruments, funds, or other such
payments received by you pursuant to the terms of this Agreement shall
immediately be returned to the
Company.
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21.
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Severability.
In the event that any one or more of the provisions of this
Agreement is held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions will not in any
way be affected or impaired thereby. Moreover, if any one or
more of the provisions contained in this Agreement is held to be
excessively broad as to duration, scope, activity or subject, such
provisions will be construed by the court by limiting and reducing them so
as to be enforceable to the maximum extent compatible with applicable
law.
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22.
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Governing
Law. This Agreement shall be construed and enforced
pursuant to the laws of the State of New York (applicable to contracts to
be performed wholly with such state). If the above sets forth
our agreement, please so signify your consent to such agreement, by
executing the enclosed copy of this Agreement and returning it to
me.
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Very truly yours,
XXXXX SYSTEMS INC.
By: _________________________________
________________
Title
Agreed to
and accepted:
_____________________________
Xxxxxx Xxxxxx
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Date
executed: February 13,
2008
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Sworn and
subscribed to before me
this
______ day of ___________, 2008.
____________________________________
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Notary
Public
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