June 10, 2009 Teresa Santos New York, NY 10024 Dear Teresa,
Xxxx 00,
0000
Xxxxxx
Xxxxxx
000 X
00xx
Xxxxxx, Xxx 0X
Xxx Xxxx,
XX 00000
Dear
Xxxxxx,
This
letter agreement (the “Agreement”) sets forth the terms of the termination of
your employment with XxxXxxxxx.xxx, Inc. (together with its subsidiaries and
affiliates, the “Company”).
1. Your employment with the
Company, which commenced on April 20, 2006, will terminate effective as of the
close of business on June 15, 2009. Your current base salary of
$210,000 per annum will be continued in accordance with the Company’s regular
payroll practices, and less all applicable taxes, withholdings and deductions,
through June 15, 2009.
2. In
consideration of your acceptance of this Agreement, including the Release set
forth in paragraph 3 hereof, and subject to your meeting in full your
obligations under this Agreement, the Company will pay you severance pay in an
aggregate amount of $106,582, minus deductions for all applicable taxes and
withholdings, including your employee contribution of $506.10 for medical and
dental insurance. Such severance pay will be payable in accordance
with the Company’s regular payroll procedures commencing on the first regular
pay day following the later of June 15, 2009 or the date of your acceptance of
this Agreement. The Company will report all severance pay to all
appropriate taxing authorities on an Internal Revenue Service Form
W-2. In addition, in consideration of this Agreement becoming
effective, the Company also agrees to pay its share of the cost of providing you
with medical and dental insurance through September 30, 2009. You
hereby acknowledge and agree that, other than as specifically set forth in this
Agreement, you are not due any compensation from the Company, including
compensation for unpaid salary, bonus, commission, profit share, severance,
accrued or unused vacation or sick time, or in connection with the exercise of
stock options or unvested equity grants. You will not
continue to earn vacation or other paid time off after June 15,
2009. As a condition to receiving the severance pay, you must (a)
return all Company property in your possession to the Company by no later than
June 30, 2009 (or earlier as may be requested by the Company), (b) prepare and
deliver to the Company by June 18, 2009, a written memorandum describing in
reasonable detail all active legal matters and the contact information
(including name, phone number and email address) of the primary person(s)
involved in such matter (whether on behalf of the Company or any other party),
(c) cooperate in good faith with the Company whether in the office (to the
extent requested by the Company) or by telephone until June 30, 2009 to
transition your duties and responsibilities to other employees of the Company
and (d) cooperate in good faith with the Company until September 30, 2009 to be
available for periodic telephone consultations during business hours to answer
questions relating to the transition of your duties.
Xxxxxx
2
3. In
consideration of the payments and benefits provided to you under this Agreement,
to which you would not otherwise be entitled, you, on your own behalf and that
of each of your heirs, executors, administrators, representatives, agents,
successors and assigns (collectively, the “Xxxxxx Parties”) hereby irrevocably
and unconditionally release and forever discharge the Company and its
subsidiaries and affiliates and each of their respective past and present
officers, employees, directors, members, managers, partners, shareholders,
representatives and agents (collectively, the “Company Parties”), from any and
all claims, actions, causes of action, rights, judgments, fees and costs
(including attorneys’ fees), obligations, damages, demands, accountings or
liabilities of whatever kind or character (collectively, “Claims”), including,
without limitation, any Claims based upon contract, tort, or under any federal,
state, local or foreign law, including but not limited to, any Claims under the
Age Discrimination in Employment Act, as amended, the Older Worker Benefit
Protection Act, as amended, Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. Section 1981, as amended, the Americans with Disabilities
Act, as amended, the Family and Medical Leave Act, as amended, the Employee
Retirement Income Security Act of 1974, as amended, the Civil Rights Act of
1991, as amended, the Fair Labor Standards Act, as amended, the Equal Pay Act,
as amended, the Occupational Safety and Health Act, as amended, the Consolidated
Omnibus Budget Reconciliation Act, as amended (COBRA), the Civil Code Section
1542, as amended, the New York State Human Rights Law, as amended, New York
Labor Law, as amended, New York City Human Rights Law, as amended, and the
Administrative Code of the City of New York, and/or any other federal, state or
local statute, ordinance, regulation, constitutional provision or law, or the
common law of the United States or of any state, that the Xxxxxx Parties may
have, or in the future may possess, that occurred, existed or arose on or prior
to your execution of this Agreement; provided, however, that you do not release,
discharge or waive any rights to payments and benefits provided under this
Agreement. Nothing in this Release shall affect your rights to any
vested benefits under any Company pension plan, if any, or to enforce your
rights under this Agreement.
4. The term "Company
Information" as used in this Agreement means any and all confidential or
proprietary information of the Company and/or the Company Parties, including
without limitation, technical, business or financial information or trade
secrets, the use or disclosure of which might reasonably be construed to be
contrary to the interests of the Company and/or the Company
Parties. "Company Information" shall not include such information as
has been previously disclosed to the public by the Company or to a person to
whom you disclosed Company Information pursuant to paragraph 5 or 6 of this
Agreement, or is disclosed by you as required by law. You acknowledge
and agree that all Company Information is the property of the
Company. You represent that you have at all times maintained all
Company Information in strict confidence and you have not disclosed or in any
way made use of (except in connection with your employment with the Company) any
Company Information. You further warrant and agree that (i) you will
keep all Company Information strictly confidential at all times after the
termination of your employment with the Company, and (ii) you will not at any
time make use of any Company Information on your own behalf, or on behalf of any
third party. The Company acknowledges that, except for the foregoing
non-disclosure provision, and pursuant to applicable law, you are not bound by
any restrictions on employment by third parties. You represent that
you have returned or will immediately return to the Company all Company property
without limitation, including your Corporate American Express Card, if
any. Return of all such property is a precondition to payment of the
severance pay and benefits set out in paragraph 2 above. In addition
you will remain responsible for any expenses or items billed to such card, if
any.
Xxxxxx
3
5. It
is understood that you will have through June 11, 2009 within which to consider
the terms of the Agreement. During this time, you are advised to
consult an attorney. Your signature indicates that you have had the
opportunity to benefit from that consultation period and are entering this
Agreement, at the time of your execution hereof, freely and
voluntarily. If the Company does not receive your signature by close
of business on June 11, 2009, the offer contained in this letter shall be deemed
immediately revoked.
6. You agree to keep the
terms of this Agreement confidential except for discussions with your spouse and
except as may be required to enforce the Agreement or to obtain legal or tax
advice. You agree not to make or publish any disparaging statements
about the Company, Company Parties, or their respective businesses, past or
present employees officers, management, products or services, and not to cause
or suffer others to do so on your behalf. The Company agrees that no
member of the executive management of XxxXxxxxx.xxx, Inc. or person acting in
such capacity will make or publish any disparaging statements about you, or
authorize or knowingly permit any officer, employee or director or person acting
in such capacity to do so. You agree to direct all requests for employment
references or inquiries concerning your employment with and separation from the
Company to Xxxxx Xxxxxxx, the Company's Human Resources Director. You
further understand and acknowledge that, consistent with the Company's policy,
the Company will only provide prospective employers with your dates of
employment, last position held and last salary.
7. You agree that the
severance pay and benefits that you will receive as a result of signing this
Agreement, in support of all of the provisions contained herein, will constitute
full payment, satisfaction, discharge, compromise and release of and from all
matters for which you have released the Company and the Company Parties
herein. The Company's offer to you is made without prejudice to the
Company and the Company Parties and is not intended to, and shall not be
construed as, any admission of liability by the Company or the Company Parties
to you, or of any improper conduct on the part of the Company or the Company
Parties, all of which the Company and the Company Parties specifically
deny.
8. In the event that any one or more of
the provisions of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remainder of the
Agreement shall not in any way be affected or impaired thereby and any such
provision or provisions shall be enforced to the fullest extent permitted by
law.
9. This
Agreement constitutes a complete statement of all the arrangements between us,
and supersedes all prior oral or written agreements and understandings between
us concerning the subject matter hereof. This Agreement may not be
altered or modified other than in a writing signed by you and the
Company. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
contracts to be performed wholly within the state and without regard to its
conflict of laws provisions. You hereby agree that the federal and
state courts of New York will have exclusive jurisdiction over any dispute
relating to this Agreement and you hereby consent to the in personam jurisdiction of
such courts.
10. You understand and
confirm that the agreements, representations, covenants and acknowledgements
made by you in this Agreement will survive the execution of this Agreement and
the payment of the severance pay and benefits provided for in this
Agreement. You further understand and confirm that if you are
found to have made a material misstatement in, or commit a material breach of,
any term, condition, covenant, representation or acknowledgement in this
Agreement, the payments of severance pay and benefits will cease and
you will be obligated to return to the Company any severance pay and benefits
already paid to you by the Company. You will further be liable for
any damages suffered or incurred by the Company by reason of such misstatement
or breach. In addition, you will be required to return the severance
pay and benefits to the Company if this Agreement is determined to be invalid or
unenforceable, or if you claim in any forum that the Agreement is invalid or
unenforceable. In the event of any actual or threatened breach by you
of any term or provision of this Agreement, the Company will be entitled to
recover from you all costs and expenses, including, without limitation, court
costs and reasonable attorneys’ fees, incurred in enforcing this
Agreement.
Xxxxxx
4
11. This
Agreement may be signed in counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
If the
above sets forth our agreement as you understand it and consent to it, and you
agree to be legally bound hereby, please so signify by executing and dating the
enclosed copy of this Agreement and returning it to Xxxxx Xxxxxxx, Human
Resources Director.
Very
truly yours,
XxxXxxxxx.xxx,
Inc.
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By:
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/s/ Xxxxx Xxxx
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Xxxxx
Xxxx
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Chief
Executive Officer
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Agreed
to and Accepted:
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/s/ Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx
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Dated: 6/11/09
