SEPARATION AGREEMENT AND RELEASE
SEPARATION
AGREEMENT AND RELEASE
This
SEPARATION AGREEMENT AND RELEASE ("Agreement") is made and entered into as
of
this 8th day of April 2008 (the “Effective Date”), by and between Skins, Inc., a
Nevada corporation (the “Company”), and Xxxxxxx Xxxxx ("Xxxxx").
WHEREAS,
Xxxxx has been employed by the Company as Chief Operating Officer and Executive
Vice President pursuant to an agreement between Xxxxx and the Company dated
April 13, 2007 (referred to herein as the “Employment Agreement”), a copy of
which is attached hereto as Exhibit A;
WHEREAS,
Xxxxx and Company entered into a Non-Qualified Stock Option Agreement dated
April 13, 2007 (the “Option Agreement”), a copy of which is attached hereto as
Exhibit B;
WHEREAS,
on March 27, 2008, Xxxxx gave the Company notice of his resignation, a copy
of
which is attached hereto as Exhibit C;
WHEREAS,
the parties mutually desire to enter into this Agreement to effectuate the
termination of Pavan’s employment with the Company and to set forth the benefits
to be provided to Xxxxx in exchange for Pavan’s covenants as set forth
herein;
NOW,
THEREFORE, in
consideration of the mutual promises set forth below, the parties agree as
follows:
1. Termination
of Employment.
The
Company and Xxxxx agree that Pavan’s employment with the Company terminated by
virtue of his voluntary resignation at 11:59 p.m. on March 27, 2008 (the
“Termination Date”). Xxxxx acknowledges that he has received his regular base
salary and employment benefits under the Employment Agreement through March
31,
2008. Xxxxx agrees that as of March 31, 2008, all compensation, payments,
benefits or other consideration of any kind provided for under the Employment
Agreement shall cease and that he is not entitled to any further payments or
benefits under the Employment Agreement. Xxxxx specifically acknowledges that
he
is not due an annual incentive/performance bonus, pro rata or otherwise, under
paragraph 3.2 of the Employment Agreement. Following the Termination Date,
any
further compensation, payments, benefits or other consideration of any kind
that
may be payable to Xxxxx by the Company shall be governed exclusively by the
terms of this Agreement.
2. Termination
of Duties and Responsibilities.
As of
the Termination Date, Xxxxx is relieved of all duties and responsibilities
of
employment with the Company and shall have no authority to enter into any
contracts on behalf of the Company, make any commitments on behalf of the
Company or to contact or otherwise do business with any customers, vendors
or
employees of the Company. Xxxxx shall not visit any facility of the Company
as
of the Termination Date except as expressly requested of him by the President
of
the Company.
3. Benefits.
(a) Provided
that Xxxxx has not revoked this Agreement pursuant to Paragraph 18 below and
has
complied with all terms and conditions of this Agreement, Company shall provide
Xxxxx with an Amendment to the Non-Qualified Stock Option Agreement in the
form
attached hereto as Exhibit D to amend the Option Agreement (“Amended
Non-Qualified Stock Option Agreement”). Xxxxx agrees that the Amended
Non-Qualified Stock Option Agreement provides for more favorable terms to Xxxxx
than those set forth in the Option Agreement. Xxxxx expressly agrees and
acknowledges that the Company is under no pre-existing obligation to provide
Xxxxx with the Amended Non-Qualified Stock Option Agreement.
(b) Xxxxx
and
Company agree that they shall not issue any communication or make any statement,
written or otherwise, that disparages, criticizes or otherwise reflects
adversely on or encourages any adverse action against the other or the Released
Parties (as defined below). Xxxxx further agrees not to make any disparaging
or
negative remarks regarding the Company or its products or
employees.
(c) Xxxxx
agrees that other than as expressly stated in this Paragraph 3, he will not
seek
anything further from the Company, including any other payment. Xxxxx further
agrees that except as expressly set forth in this Agreement, all benefits,
wages, bonuses, commissions, compensation, deferred compensation or other
payments provided to Xxxxx during his employment with the Company or under
the
Employment Agreement shall cease as of the Termination Date and the Employment
Agreement shall terminate; provided, however, that Pavan’s obligations to the
Company under paragraphs 6 and 7 of the Employment Agreement shall not terminate
but shall continue in accordance with paragraphs 6 and 7 of the Employment
Agreement.
4. Release
And Waiver of Claims.
(a) “Released
Parties” means Company and its parents, subsidiaries, affiliates, divisions,
partners, or predecessors, current and former stockholders, directors, officers,
employees, and agents
of
Company and these companies, and any and all employee pension or welfare benefit
plans of Company and these companies, including current and former trustees
and
administrators of these plans,
and all
those who succeed to their rights, interests, or responsibilities.
(b) Xxxxx
hereby releases the Released Parties from all claims and rights that Xxxxx
has
against any and all Released Parties, including, but not limited to, any claims
arising out of or relating to the Employment Agreement, those claims of which
Xxxxx is not aware, those claims not mentioned in this Agreement, and all claims
for attorney’s fees, costs, and interest. Xxxxx releases the Released Parties
from all claims and rights resulting from anything that has happened up to
the
Termination Date. Pavan’s release of claims does not apply to claims arising
after the Termination Date.
(c) Xxxxx
specifically releases all claims and rights arising from or relating to Pavan’s
employment or other relationship with the Released Parties, including but not
limited to any claims or rights Xxxxx may have under Title
VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of
1991,
the
Age
Discrimination in Employment Act,
the
Americans
with Disabilities Act,
the
federal or any similar state Worker
Adjustment and Retraining Notification Act,
Section
1981 of the Civil Rights Act of 1866,
the
Employee
Retirement Income Security Act,
the
New
York State Human Rights Law,
the
New
York City Human Rights Act,
the
New
York State Equal Pay Law,
the
New
York State Labor Law,
the
New
York Whistleblower Law,
the
New
York State Wage Payment Law,
the
New
York State Wage and Hour Law,
the
New
York State Minimum Wage Act,
any
federal, state or local laws or regulations against discrimination or protecting
whistleblowers, or any other federal, state, or local law, common law,
regulation or constitution relating to employment, wages, hours, or any other
terms and conditions of employment.
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(d) Nothing
in this Agreement prohibits Xxxxx from filing a complaint with the United States
Equal Employment Opportunity Commission, the National Labor Relations Board,
or
any similar state or local administrative agency; provided, however, that Xxxxx
waives the right to any monetary relief by virtue of filing any such charge
or
complaint by or on behalf of Xxxxx. In addition, this Agreement does not release
any statutory claims that cannot be released by Xxxxx as a matter of
law.
5. Confidentiality
and Return of Property.
Xxxxx
recognizes
that any knowledge or information of any type whatsoever of a confidential
nature relating to the business of the Company or any of its parents,
subsidiaries, divisions or affiliates, including, without limitation, all types
of trade secrets, client lists or information, information regarding product
development, production methods and processes, marketing plans, management
organization, operating policies or manuals, performance results, business
plans, financial records, or other financial, commercial, business or technical
information (collectively “Confidential Information”), must be protected as
confidential, and not copied, disclosed or used other than for the benefit
of
the Company at any time, unless and until such knowledge or information is
in
the public domain through no wrongful act by Xxxxx or any other person. Xxxxx
further agrees not to divulge to anyone (other than the Company or any persons
employed or designated by the Company), publish or make use of any such
Confidential Information without the prior written consent of the Company,
except by an order of a court having competent jurisdiction or under subpoena
from an appropriate government agency. Xxxxx
further agrees that not later than the Termination Date he will return to the
Company all of its property and documents (and any copies thereof) including,
without limitation, all Confidential Information, all computer software and
disks, all reports, memoranda, notes, records, projections, lists, Company
or
client financial information, keys, credit cards, and equipment. Xxxxx further
agrees that he will abide by the terms and conditions of paragraph 6 of the
Employment Agreement, which shall survive this Agreement and continue in full
force and effect according to its stated terms following the Termination Date.
6. Post-Employment
Restrictive Covenant.
As a
condition to his receipt of the Amended Non-Qualified Stock Option Agreement
Xxxxx shall be obligated to comply with all provisions of paragraph 6 of the
Employment Agreement, including the provisions pertaining to non-solicitation
under paragraph 6.2 and non-competition under paragraph 6.3.
7. Specific
Performance.
The
parties acknowledge that a breach or threatened breach by Xxxxx of any of the
provisions of paragraph 5 or 6 of this Agreement or paragraph 6 or 7 of the
Employment Agreement may result in material and irreparable damage and injury
to
the Company, and that it would be difficult or impossible to establish the
full
monetary value of such damage. Therefore, in addition to any other remedies
that
may be available to the Company, the Company shall be entitled to injunctive
relief by a court of appropriate jurisdiction in the event of Pavan’s breach or
threatened breach of any of the provisions of paragraph 5 or 6 of this Agreement
or paragraph 6 or 7 of the Employment Agreement.
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8. Binding
Effect.
This
Agreement is binding upon anyone who succeeds to the rights, interests or
responsibilities of the parties. This Agreement may be assigned by the Company.
Xxxxx makes the releases contained in this Agreement for the benefit of the
Released Parties and all who succeed to their rights, interests, or
responsibilities. This Agreement shall inure to the benefit of and be
enforceable by Xxxxx and his personal or legal representatives, executors,
administrators, heirs, distributees, devisees and legatees. Xxxxx may not assign
his obligations under this Agreement.
9. Enforceability.
If a
court rules that any provision of this Agreement is not enforceable in the
manner set forth in this Agreement, that provision should be enforceable to
the
maximum extent possible under applicable law and should be reformed accordingly.
If a court rules that any provision of this Agreement is invalid or
unenforceable, that ruling shall not affect the validity or enforceability
of
the other portions of this Agreement, which shall continue in full force and
effect.
10. Entire
Agreement.
Except
as expressly provided for in this Agreement, this Agreement supersedes any
and
all prior oral and/or written agreements between the Company and Xxxxx,
including any existing oral or written agreements with respect to Pavan’s
employment with the Company, except that the provisions of paragraphs 6 and
7 of
the Employment Agreement shall survive this Agreement. No representations
regarding the Released Parties' relationship with Xxxxx, or any obligations
to
Xxxxx, have been made, or survive, except as set forth in this
Agreement.
11. Amendment.
This
Agreement cannot be amended, except by a written document signed by the party
against whom enforcement of any such amendment is sought.
12. Legal
Counsel.
Xxxxx
has had ample time to consult with an attorney before signing this Agreement
and
acknowledges that he has been advised to consult with an attorney before signing
this Agreement.
13. Confidentiality.
Xxxxx
agrees
that the existence of and the terms and conditions of this Agreement shall
forever remain confidential as between the parties and he shall not disclose
them to any other person, provided however that he may disclose the terms of
this Agreement to his attorney, accountant, financial advisor and spouse.
Without limiting the generality of the foregoing, Xxxxx specifically agrees
that
he shall not disclose information regarding this Agreement to any current,
former or future employee of the Company.
14. Notices.
All
notices under this Agreement must be in writing and must be sent via certified
mail to the appropriate addresses set forth below:
If
to
Company:
Skins,
Inc.
00
Xxxx
00xx
Xxxxxx,
0xx
Xxxxx
Xxx
Xxxx,
XX 00000
ATTN:
Chief Executive Officer
If
to
Xxxxx:
Xxxxxxx
Xxxxx
[PERSONAL
HOME ADDRESS]
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15. Full
Understanding.
Xxxxx
has read this Agreement carefully, fully understands the meaning of its terms,
and is signing this Agreement knowingly and voluntarily.
16. Compromise.
The
Parties agree and acknowledge that this Agreement is the result of a compromise
and shall never be construed as an admission of liability, wrongdoing or
responsibility on the part of the Company. Indeed, the Company expressly denies
any such liability, wrongdoing or responsibility.
17. Governing
Law.
This
Agreement shall be interpreted in accordance with the laws of the State of
New
York, without regard to its principles of conflicts of law. Any action relating
to this Agreement shall be instituted in the State of New York and the parties
agree to submit to the jurisdiction of the state and federal courts of New
York
for this purpose.
18. Period
for Consideration and Revocation.
Xxxxx
shall have 21 days to consider this Agreement. Xxxxx may elect, at his option,
to sign this Agreement in a shorter period of time. Xxxxx shall have 7 days
after the Company’s receipt of an executed Agreement from him to revoke his
acceptance of this Agreement. To be effective, any revocation of this Agreement
must be in writing and received by the Company no later than the 7th
day
after its receipt of an executed Agreement. This Agreement shall not become
effective or enforceable until the expiration of 7 days after Xxxxx signs this
Agreement.
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/S/
XXXXXXX XXXXX
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XXXXXXX
XXXXX
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Dated:
April 8, 2008
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WITNESS
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SKINS,
INC.
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By:
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/S/
Xxxxxxx Xxxxxxxx
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Xxxxxxx
Xxxxxxxx
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Chief
Financial Officer
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Dated:
April 8, 2008
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