AGREEMENT AND GENERAL RELEASE AND WAIVER
EXHIBIT
10.1
XXXXX
XXXXXX, residing at 00 Xxxxxxx Xxxxxx Xx., Xxx Xxxxx, XX 00000 (the “Employee”)
and ALLIANCE DISTRIBUTORS HOLDING, INC., a Delaware corporation with an office
at 0000 Xxxxxxxx Xxxxxx, Xxxxx XX 00000 (the “Company” or “Alliance”), on behalf
of itself and its officers, directors, shareholders, employees, agents and
parent, affiliates, predecessor, successor, subsidiary, and other related
companies, and each of them jointly and severally (hereinafter singularly and
collectively referred to as the “Company”), hereby enter into the following
Agreement and General Release and Waiver (the “Agreement”), concerning the
Employee’s resignation from the Company.
1. The
Employee confirms that on July 26, 2007 he resigned as a director, officer
and
employee of the Company and its subsidiaries and affiliates, and that he was
thereafter given 21 days to consider this Agreement and decide for himself
whether or not he wants to sign this Agreement.
2.
The
Employee was offered the opportunity to consult with and negotiate through
attorneys of his choice, concerning this Agreement and the implications of
Employee signing or not signing the Agreement.
3. The
Employee has carefully considered other alternatives to executing this Agreement
and has entered into this Agreement voluntarily and of the Employee’s own free
will.
4. The
Employee is entitled to change his mind and revoke this Agreement within seven
days after signing it. This Agreement will become effective only if Employee
has
not exercised his option to revoke the Agreement within seven days after its
execution and Employee complies with paragraph eleven (11) of this
Agreement.
5.
If this
Agreement becomes effective, Alliance will for the period to end on July 26,
2008 pay to Employee amounts equal to the salary installments (net of
withholding taxes) he would have received during this period at the rate of
pay
that applied prior to his resignation. In addition, if this Agreement becomes
effective and if the Employee elects to continue medical coverage under the
Company’s health insurance plan pursuant to COBRA, the Company will pay 50% of
the cost of COBRA coverage for the period to end on July 26, 2008.
6. The
Employee acknowledges that he knows that there are various State and Federal
laws which prohibit employment discrimination on the basis of age, sex, race,
color, creed, national origin, marital status, religion, disability, veteran
status, or other protected classifications and that these laws are enforced
through the Federal Equal Employment Opportunity Commission, and various state,
city, county and local human rights agencies. In particular, the Employee knows
that he may have rights under the Federal Age Discrimination in Employment
Act,
which prohibits companies from discriminating against employees because of
their
age. In consideration for the Company making the payment described in paragraph
five (5) of this Agreement, which the Employee is not
otherwise entitled to receive, the Employee intends to voluntarily give up
any
rights he may have under these or any other laws with respect to him prior
employment with the Company or termination of him employment, including him
rights under the Age Discrimination in Employment Act. The Employee agrees
that,
as of the date of this Agreement, the Company has not (a) discriminated
against him, (b) breached any express or implied contract with him, or
(c) otherwise acted unlawfully toward him. In this regard, the Employee
acknowledges he has received all compensation and benefits due him.
7. In
exchange for the money set forth in this Agreement, the Employee, his heirs,
personal representatives, successors and assigns, hereby releases and discharges
the Company, its successors, subsidiaries, and their officers, directors and
employees (“Releasees”) from all claims, liabilities, demands or causes of
action, known or unknown, arising out of or in any way connected with or related
to the Employee’s employment and the termination thereof with the Company from
the beginning of the world up to and including the effective date of this
Agreement, except for rights granted under this Agreement and except for any
indemnification rights under the Company’s certificate of incorporation and
by-laws. This includes, but is not limited to, claims of entitlement to change
of control payments or to options and SAR’s not referred to herein, wrongful
discharge, breach of any implied or express contract, whether oral or written,
fraud, misrepresentation, or any other tort. This also includes any claims
based
on any local, state or federal statute relating to age, sex, race, or any other
form of discrimination such as, but not limited to, the Age Discrimination
In
Employment Act, Title VII of the Civil Rights Act of 1964, and other similar
state and local anti-discrimination laws.
8. Cooperation
Employee
agrees to provide Alliance from time to time telephone consultation, and if
deemed necessary by Alliance, consultation in person at mutually agreeable
times, which agreement on the part of Employee will not be unreasonably
withheld, concerning his work for Alliance. For the avoidance of doubt, Alliance
is not requiring any substantive work from Employee. The consultation relates
exclusively to such matters as, for example, interpreting handwritten notes
that
may be illegible, locating hard copy or computer files, etc. Employee also
agrees to promptly sign and return documents that require Employee's signature,
and have such documents notarized and/or witnessed if required.
Employee
will for no compensation cooperate fully and at reasonable times with the
Company and its subsidiaries in all litigations and regulatory proceedings
on
which the Company or any subsidiary seeks Employee’s assistance and as to which
Employee had any knowledge or involvement. Without limiting the generality
of
the foregoing, Employee will be available to testify at such litigations and
other proceedings, and will cooperate with counsel to the Company in preparing
materials and offering advice in such litigations and other proceedings. Except
as required by law and then only upon reasonable prior written notice to the
Company, Employee will not in any way cooperate or assist any person or entity
in any matter which is adverse to the Company or which is adverse to any person
who at any time is or was an officer or director of the Company.
9.
Employee
agrees that at no time will he disclose or use any confidential information
received or acquired during the Employee’s employment, including but not limited
to trade secrets and any proprietary information. This Section 9 may be enforced
by injunction (without posting bond or other security), as well as by other
remedies. Except as aforesaid, Employee may freely compete with the
Company.
10.
Employee will promptly advise the Company in writing should he at any time
be
contacted by any person or entity (including, without limitation, any private
investigator) who seeks any information whatsoever with respect to the Company,
or any of its employees, directors or officers, or any of its products, services
or procedures, and he will shall forthwith furnish to the Company a complete
and
accurate report of all communications by or with any such person or entity.
Employee confirms and acknowledges that he is aware of no publicly undisclosed
information regarding the Company or its officers or directors which may be
material to investors in the Company, lenders to the Company, or licensing,
rating or regulatory entities. "Publicly undisclosed information" means
information which is not contained in periodic reports filed by the Company
under the Securities Exchange Act of 1934. Except as otherwise required by
law
(and then only upon 10 days’ prior written notice to the Company), Employee
party will not from and after the date hereof in any way or to any person,
denigrate or derogate the Company or any of its subsidiaries, or any person
who
was at any time an employee, officer or director of the Company, or any
products, services or procedures, whether or not such denigrating or derogatory
statements shall be true and are based on acts or omissions which were learned
or are learned by heretofore or from and after the date hereof or on acts or
omissions which occurred at any time heretofore or which occur at any time
from
and after the date hereof, or otherwise.
11.
If he
has not already done so, the Employee will forthwith return to the Company
all
Company property, proprietary documents and materials in the Employee’s
possession. Such property, documents, and materials include, but are not limited
to, an automobile, computer hardware, telephones, keys, correspondence, notes
and notebooks, drawings, prints, photographs, tape recordings, marketing
information, sales information, customer information, customer lists, computer
software disks and other written, typed, printed or recorded materials to which
the Employee had access or which the Employee developed during the course of
his
employment with the Company and all copies thereof. The Employee will forthwith
provide the Company with an inventory of the Company’s property in his
possession.
12.
The
Employee affirms that no promise, inducement or agreement not expressed in
this
Agreement has been made, and this Agreement contains the entire agreement of
the
parties.
13.
This
Agreement does not constitute an admission by the Company of any wrongful action
or violation of any federal or state statute or common law rights, including
those relating to the provisions of any law or statute concerning employment
actions, or any other possible or claimed violation of law or rights. The
federal and state courts sitting in the State of New York shall have exclusive
jurisdiction with respect to this Agreement. Trial by jury is
waived.
14.
If a
court of competent jurisdiction finds any provisions of this Agreement
unenforceable under applicable law, the enforceability of all other provisions
shall not be affected by such partial unenforceability, and the remainder shall
continue to be binding and in full force and effect.
15.
The
Employee hereby agrees and acknowledges that since July 26, 2007 he has no
longer been employed by the Company and further agrees and acknowledges that
he
will make no further attempt, at any time, to seek employment with the Company
and/or any affiliated company, subsidiary, or division.
16. This
Agreement shall not be interpreted in favor of or against either party on
account of such party having drafted this Agreement.
17. If
any
party to this Agreement breaches any of the terms of this Agreement, then that
party shall pay to the non-defaulting party all of the non-defaulting party’s
costs and expenses, including attorney’s fees, incurred by that party in
enforcing the terms of this Agreement.
18. This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original and all of which shall together constitute one and the same
Agreement.
19. The
parties shall execute any other instruments and/or documents that are reasonable
or necessary to implement this Agreement.
20. The
Employee agrees to keep this Agreement confidential and not to reveal its
contents to anyone except his attorney or his financial consultant.
21. This
Agreement constitutes the entire agreement between the Employee and the Company
and it may only be modified, altered or changed in writing, signed by both
the
Company and the Employee. It may be signed in counterparts and by
facsimile.
22. This
Agreement shall be subject to and governed by the laws of the State of New
York.
BY
SIGNING THIS AGREEMENT AND GENERAL RELEASE AND WAIVER, THE EMPLOYEE STATES
THAT:
HE HAS READ IT; HE UNDERSTANDS IT AND KNOWS THAT HE IS GIVING UP IMPORTANT
RIGHTS; HE AGREES WITH EVERYTHING IN IT; HE WAS TOLD, IN WRITING, TO CONSULT
AN
ATTORNEY BEFORE SIGNING IT; HE HAS BEEN GIVEN THE OPPORTUNITY TO REVIEW THE
AGREEMENT FOR 21 DAYS AND THINK ABOUT WHETHER OR NOT HE WANTED TO SIGN IT;
AND
HE HAS SIGNED IT KNOWINGLY AND VOLUNTARILY.
THEREFORE,
the Employee and the Company now voluntarily and knowingly execute the Agreement
and General Release and Waiver as of this ___th
day of
__________ 2007.
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Xxxxx
Xxxxxx
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By:
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STATE
OF
NEW YORK )
) SS.:
COUNTY
OF
BRONX)
On
______________ 2007, before me personally came Xxxxx Xxxxxxx to me known, and
known to me to be the individual described in, and who executed the foregoing
Agreement and General Release and Waiver, and duly acknowledged to me that
he
executed the same.
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_____________________
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NOTARY
PUBLIC
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STATE
OF
NEW YORK )
) SS.:
COUNTY
OF
BRONX )
On
_______________, 2007, before me personally came Xxx Xxxxxx (Officer of the
“Company”), to me known and known to me to be the individual described in, and
who executed the foregoing Agreement and General Release and Waiver, and duly
acknowledged to me that he execute the same.
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_____________________
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NOTARY
PUBLIC
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