August 25, 2008 Giuseppe Crisafi
Exhibit
10.3
EXECUTION
COPY
August
25, 2008
Xxxxxxxx
Xxxxxxx
0000
Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxx
000
Xxxxx,
Xxxxxxx 00000
Dear
Xxx:
This agreement (the “Agreement”), which
is subject to your approval, sets forth The Amacore Group, Inc.’s (“ACGI”)
proposed agreement related to the cessation of your employment relationship with
ACGI. The parties’ receipt of the benefits described below is
conditioned upon the execution of and continued performance of the terms of this
Agreement.
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Notice
of Resignation:
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You
will hereby tender your voluntary, irrevocable notice of resignation to
ACGI effective immediately upon signing this Agreement in the form
attached as Exhibit
A. Your date of resignation will be your “Employment
Separation Date” for purposes of this Agreement.
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Severance
Payment / Terminal Pay:
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You
agree that you will not receive any severance or termination pay from
ACGI, but will instead enter into a consulting agreement (the “Consulting
Agreement”) with ACGI.
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Health
and Dental Insurance:
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Upon
execution of your Consulting Agreement, ACGI will reimburse you for health
and dental insurance costs according to the terms set forth in your
Consulting Agreement. On your Employment Separation Date, you
will receive information regarding your right to elect continuation of
your group health and dental insurance coverage under federal law
(“COBRA”), which if elected may allow you to continue that insurance
coverage for the eighteen (18)-month period following your Employment
Separation Date. If you elect such coverage, you will be
responsible for the full COBRA premium.
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0000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000 ● Xxxxx, Xxxxxxx
00000
Phone: 000.000.0000 ● Facsimile:
813.289.5553
xxx.xxxxxxxxxxxx.xxx
Xxxxxxxx Xxxxxxx
Seperation Agreement
August 25, 2008
Page 2
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Vacation
and Other Benefits:
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Any
accrued and unused vacation time existing as of your Employment Separation
Date will not be paid out and you will not accrue any additional vacation
time following your Employment Separation Date.
Any
securities of ACGI issued to you under a stock option, equity, or similar
plan of ACGI shall remain subject to the terms of such plan and any
corresponding agreement granting such securities. You will no
longer be eligible for grants under those plans following your Employment
Separation Date, except as may be provided in the Consulting
Agreement.
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Release
of Claims - Including Age Discrimination & Employment Claims
:
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You
hereby release ACGI from any and all actions, causes of action, suits,
debts, dues, covenants, contracts, bonuses, controversies, agreements,
promises, claims, grievances, charges, complaints, liabilities,
obligations, and demands of any sort, in law or in equity, known or
unknown, which arose from the beginning of the world to the date you sign
this Agreement, which you may have against ACGI.
This
release specifically includes, but is not limited to, any claim of
discrimination on the basis of disability, race, sex, pregnancy, religion,
marital status, sexual orientation, national origin, age, veteran status,
special disabled veteran status, or citizenship status, retaliation, or
any other category protected by law (including without limitation any
claim under 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988; Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Age Discrimination in
Employment Act, as amended, 29 U.S.C. § 621, et. seq.; the Florida
Civil Rights Act, as amended Fla. Stat. § 760.01 et seq; the Americans
with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq.; the
Civil Rights Act of 1991; the Employee Retirement Income Security Act, as
amended, 49 U.S.C. § 1001 et. seq.; the Family Medical Leave Act, as
amended, 29 U.S.C. § 2601 et seq., or any other law relating to employment
matters or prohibiting employment discrimination), breach of express or
implied contract, any other contract affecting terms and conditions of
employment, failure to pay wages, benefits, severance, or any compensation
of any sort, or a covenant of good faith and fair dealing, any personal
gain with respect to any claim arising under the qui tam provisions of the
False Claims Act, 31 U.S.C. § 3730, any tort, common law or statutory
claims in any way arising directly or indirectly out of your employment
with or separation from ACGI, or your relationship with ACGI, and any
claims to attorney fees or expenses, which your attorney(s) hereby also
waive, whether such claims are known or unknown at the time you sign this
Agreement; except that you understand you are not releasing any rights or
claims arising after you sign this Agreement.
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Xxxxxxxx Xxxxxxx
Seperation Agreement
August 25, 2008
Page 3
| ACGI
hereby releases you from any and all actions, causes of action, suits,
debts, dues, covenants, contracts, bonuses, controversies, agreements,
promises, claims, grievances, charges, complaints, liabilities,
obligations, and demands of any sort, in law or in equity, known or
unknown, which arose from the beginning of the world to the date ACGI
signs this Agreement, which ACGI may have against you.
For
purposes of the foregoing, the term “ACGI” includes ACGI and all of its
present, former and future owners, affiliates and subsidiaries, and all of
their respective directors, officers, shareholders, employees, agents,
representatives, predecessors, successors and assigns.
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The
Term “Release” is Construed Broadly:
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The
term “release” shall be construed broadly and shall be read to include,
for example, the terms “discharge” and “waive”. Nothing in this
Agreement is a waiver of your right to file any charge or complaint with
administrative agencies such as the United States Equal Employment
Opportunity Commission (hereafter, “Excepted Charge”). However,
this exception does not limit the scope of your waiver and release in the
paragraphs above, and you waive any right to recover damages or obtain
individual relief that might otherwise result from the filing of any
Excepted Charge.
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Confidentiality:
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You
represent and agree that you have kept and will keep the circumstances
leading to this Agreement completely confidential as to persons not
employed by either ACGI or ACGI’s affiliates and will not make known such
information to anyone outside of ACGI or its affiliates, at any time under
any circumstances (meaning that such information may not be published,
displayed, discussed, disclosed, revealed or characterized directly or
indirectly, in any way to anyone) except to your spouse, legal counsel,
accountants or tax advisors or unless compelled to do so by
law. In the event any such permitted disclosure is made, you
warrant that such individuals will also comply with this confidentiality
provision.
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Xxxxxxxx Xxxxxxx
Seperation Agreement
August 25, 2008
Page 4
| ACGI
represents and agrees that it has kept and will keep the circumstances
leading to this Agreement completely confidential as to persons not
employed by ACGI or its affiliates, except to the extent disclosed by ACGI
to its tax or legal counsel. ACGI represents and agrees that to
the extent the circumstances leading to this Agreement are disclosed to
employees of ACGI or its affiliates, such information will be disclosed
only to current executive-level employees of ACGI or its affiliates and
only on a need-to-know basis as determined in the sole discretion of
ACGI. In the event any such permitted disclosure to employees
of ACGI or it affiliates is made, ACGI warrants that such employees will
also comply with this confidentiality provision.
Further,
the parties agree that if they receive inquiries concerning these matters
or this Agreement, they will limit their comments to a positive statement
to be a paraphrase of the press release issued by ACGI related to this
matter and will not further comment on or characterize these
matters.
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Entire
Benefits:
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The
parties acknowledge that this Agreement constitutes a compromise
settlement payment of expenses, costs, attorneys’ fees, compensatory
damages, punitive damages, and any other damages alleged to have been
sustained by them. You acknowledge that this is a waiver of
your present and future employment rights. You further
acknowledge that any taxes due on the payments or benefits provided will
not provide a basis to set aside or in any way alter this Agreement,
unless an obligation of ACGI is breached by it. Further none of
the payments or benefits provided under this Agreement following your
Employment Separation Date shall be taken into account as compensation
under any ACGI welfare, pension, profit sharing or similar program that
bases benefits in whole or in part on compensation received from
ACGI.
You
further acknowledge that you have lost no wages as a result of your
separation from ACGI and that you hereby specifically disavow any
entitlement to lost wages.
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Directors
& Officer’s indemnification:
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For
the avoidance of doubt, ACGI agrees that it will continue to provide
indemnification to you for the period that you were a director or officer
according to the terms of Section 15 of that certain Employment Agreement
dated September 13, 2007, by and between you and ACGI (“Employment
Agreement”), and as permitted by ACGI’s certificate of incorporation and
bylaws and by applicable law. For the further avoidance of
doubt, it is the intent of the parties that payments will be made by ACGI
to professional representatives (e.g., attorneys, expert
witnesses) as the fees and costs are incurred (as opposed to a
reimbursement to you).
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Xxxxxxxx Xxxxxxx
Seperation Agreement
August 25, 2008
Page 5
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No
Admission of Wrongdoing:
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The
parties understand and agree that this Agreement does not constitute an
admission that you or ACGI or any of its officers, directors, employees,
representatives or agents has violated any local ordinance, state or
federal statute, or principle of common law, or that any party has engaged
in any improper or unlawful conduct or wrongdoing against the other party.
The parties further agree that they will not characterize this Agreement
or the payment of any money or other consideration in accordance with this
Agreement as an admission that any party has engaged in any improper or
unlawful conduct or wrongdoing against the other party.
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Non-Disparaging
Remarks:
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You
agree that you will not make disparaging remarks about ACGI or its
affiliates or any of their respective directors, officers, employees,
representatives, or agents, or any of their respective products, services,
practices or conduct, and ACGI agrees that it and its employees, officers,
directors and affiliates will not make any disparaging remarks about you,
provided, however, that the parties may give truthful testimony about such
matters pursuant to a court order.
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Return
of ACGI Property:
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You
hereby certify that on or before your Employment Separation Date, you have
left on ACGI premises in good condition all of its property (including but
not limited to fax machines, computers and printers), equipment,
materials, and information, which were in your possession, custody or
control.
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Applicable
Law:
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Delaware
law, without regard to its conflicts of law principles, will apply in
connection with any dispute or proceeding concerning this
Agreement. With respect to any suit, action or other proceeding
arising from, or relating to, this Agreement, the parties hereby
irrevocably agree to the exclusive personal jurisdiction and venue of the
Federal and state courts located within the state of Florida.
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Suit
in Violation of This Agreement - Loss of Benefits and Payment of
Costs
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If
any party to this Agreement breaches it, the non-breaching party may bring
an action and if successful, the breaching party agrees to pay all costs,
expenses and actual attorneys’ fees incurred by the non-breaching
party. If you file a lawsuit asking that the Agreement be
declared invalid or unenforceable, you agree that prior to the
commencement of such an action you will tender back to ACGI all monies
that you received or that were paid on your behalf as consideration for
this Agreement. However, the previous two sentences shall not
be applicable to an action challenging the validity of this Agreement
under the Age Discrimination in Employment Act. If your action
is unsuccessful, you further agree that you will pay all costs, expenses
and actual attorneys’ fees incurred by ACGI in its successful defense
against the action.
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Xxxxxxxx Xxxxxxx
Seperation Agreement
August 25, 2008
Page 6
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Remedies:
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You
understand and agree that if you are found by a court of law to have
materially breached any of your obligations under this Agreement, you
shall forfeit your entitlement to any future compensation or benefits
under this Agreement, including the release, which shall be null and
void. ACGI understands and agrees that if it is found by a
court of law to have materially breached any of its obligations under this
Agreement, it shall forfeit its entitlement to any future benefits under
this Agreement, including the release, which shall be null and
void. Notwithstanding the above, the parties shall be entitled
to any damages caused by the other's breach.
The
parties understand and agree that in the event of a breach the terms of
this Agreement, another party may bring a legal action against the
breaching party and the non-breaching party shall be entitled to recovery
of compensatory damages and its actual attorney’s fees and
costs. The parties further understand and agree that in
the event of breach, the non-breaching party may suffer irreparable
damages for which there is no adequate remedy at
law. Therefore, the parties agree that in addition to
recovery of compensatory damages and actual attorney’s fees and costs, the
non-breaching party shall be entitled to injunctive relief to stop the
continued breach and such other relief as may be provided at law or
equity.
ACGI
and you understand and agree that if the applicable party breaches the
non-disparagement section herein, the non-breaching party will be entitled
to injunctive relief to stop the continued breach and the non-breaching
party will also be entitled to $200,000 for each breach of the
non-disparagement section as liquidated damages. The parties
acknowledge and agree to the reasonableness of this amount.
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Your
Attorney:
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You
acknowledge that you have been and hereby are advised to consult with
legal counsel before signing this Agreement and have done
so. Within 14 days of its receipt of an invoice copy, ACGI will
reimburse you for your attorneys’ fees related to this matter up to
$10,000.
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Xxxxxxxx Xxxxxxx
Seperation Agreement
August 25, 2008
Page 7
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Your
Consent:
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You
acknowledge that you have read this Agreement and understand its contents
and agree to its terms and conditions freely and voluntarily, that you
have made an independent investigation of the facts and are not relying on
any statements or representations by ACGI, and that you understand that
this Agreement includes a final general release and that you can make no
further claims against ACGI having any connection with the subject matter
of this Agreement.
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No
Other Agreements:
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This
Agreement, along with the Consulting Agreement between the parties entered
into simultaneously herewith, supersedes any prior written or oral
agreements between ACGI and you concerning the cessation of your
employment and any benefits you might receive following that
event.
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Miscellaneous:
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The
failure of either party at any time or times to require performance of any
provision hereof shall in no manner effect the right at a later
time to enforce the same. To be effective, any waiver must be
contained in a written instrument signed by the party waiving compliance
by the other part(y/ies) of the term or covenant as
specified. The waiver by a party of the breach of any term or
covenant contained herein, whether by conduct or otherwise, in any one or
more instances, shall not be deemed to be, or construed as, a further or
continuing waiver of any such breach, or a waiver of the breach of any
other term or covenant contained in this Agreement.
If
any of the provisions of this Agreement are severable, it being the
intention of the parties hereto that should any provision be held to be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
This
Agreement may only be amended, varied or modified by a written document
executed by the parties hereto.
This
Agreement will he binding upon and inure to the benefit of ACGI and any
successor to ACGI, including, without limitation any persons acquiring
directly or indirectly all or substantially all of the business or assets
of ACGI whether by purchase, merger, consolidation, reorganization or
otherwise (and such successor shall thereafter be deemed ACGI for the
purposes of this Agreement.
This
Agreement will inure to the benefit of and be enforceable by your personal
or legal representatives, executors, administrators, successors, heirs,
distributes and legatees.
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Xxxxxxxx Xxxxxxx
Seperation Agreement
August 25, 2008
Page 8
| This
Agreement may not be assigned, transferred or otherwise inure to the
benefit of any third person, firm or corporation without the written
consent by the parties hereto, except that you may assign your rights
under this Agreement.
This
Agreement may be executed in any number of counterparts, each of which
shall be deemed an original but all of which together shall constitute one
and the same agreement.
The
obligations set forth in the Release of Claims, Confidentiality,
Indemnification, Non-Disparaging Remarks, Return of ACGI Property, Suit in
Violation and Remedies sections shall survive any termination or
expiration of this Agreement.
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Xxxxxxxx Xxxxxxx
Seperation Agreement
August 25, 2008
Page 9
If you are in agreement with all of the
terms stated in this Agreement, please sign both copies where indicated and
return one copy to me.
| Sincerely, | |
| The Amacore Group, Inc. | |
| /s/ Xxx Xxxxxx | |
| Xxx Xxxxxx, | |
| President |
Xxxxxxxx Xxxxxxx
Seperation Agreement
August 25, 2008
Page 10
I
have read each and every paragraph of this Agreement, I have been advised to
consult with my attorney, and I understand my respective rights and
obligations.
I
further acknowledge that I understand the above agreement includes the release
of all claims. I understand that I am waiving unknown claims and I am
doing so intentionally.
Accepted
and agreed to this 25th day of August, 2008.
/s/ Xxxxxxxx Xxxxxxx
Xxxxxxxx
Xxxxxxx
Exhibit
A
Xx. Xxx
Xxxxxx
President
0000
Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxx 00000
RE: Resignation
Dear
Xxx:
This letter is to inform you that I am
resigning from my employment and all of my positions with The Amacore Group,
Inc. and all its subsidiaries, including without limitation, Chief Financial
Officer and Director, effective August 25, 2008.
| Sincerely, | |
|
/s/
Xxxxxxxx
Xxxxxxx
Xxxxxxxx Xxxxxxx
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