Exhibit 10.23
AGREEMENT AND GENERAL RELEASE
Agreement and General Release ("Agreement") made as of the 9th day of
March, 1999, by and between Xxxxx X. Xxxxxx ("Xxxxxx") and Key Components, LLC
("Key").
In consideration of the mutual covenants and agreements set forth herein,
Xxxxxx and Key agree as follows:
1. Xxxxxx hereby voluntarily and irrevocably resigns from his employment
with Key effective March 19, 1999, which was the last date on which he had any
responsibilities or duties for Key.
2. Within seven (7) days after the Effective Date of this Agreement (as
defined in paragraph "15" below), Key shall provide Xxxxxx with a check in the
amount of Seventeen-Thousand-and Five-Hundred Dollars ($17,500.00) (less
applicable withholdings and deductions) payable to "Xxxxx X. Xxxxxx." Key will
issue a Form W-2 to Xxxxxx with respect to this payment.
3. Xxxxxx acknowledges and agrees that the payment referred to in
paragraph "2": (i) exceeds any payments, benefits, and/or other things of value
to which Xxxxxx is or might otherwise be entitled to under any policy, plan,
practice, or procedure of, or prior agreement or contract with Key (including
but not limited to the Employment Agreement dated April 17, 1998 between Xxxxxx
and Key) and/or
the other Releasees (as defined in sub-paragraph "4(b)" below); (ii) is in full
discharge of any and all of Key's and/or the other Releasees' potential
liabilities and obligations to Xxxxxx and all of Xxxxxx'x potential claims
against Key, including but not limited to claims for severance or variable pay,
any bonus, any unused vacation, and/or any other compensation in any form; (iii)
is in full discharge of any and all alleged claims against Key and/or the other
Releasees for damages of any kind; and (iv) fully and completely settles all
claims by Xxxxxx against Key and/or the other Releasees up to and including the
Effective Date of this Agreement (as such "Effective Date" is defined in
paragraph "15").
4. In consideration for the undertakings assumed and promises pursuant to
this Agreement:
(a) Xxxxxx covenants that, he will not at any time commence,
maintain, prosecute, participate in as a party, or permit to be filled by any
other person on his behalf, any action, suit, or proceeding (judicial,
administrative, arbitral, or other) against Key and/or the other Releasees and
represents that he has not done so as of the Effective Date of this Agreement
with respect to (i) Xxxxxx'x employment with Key, the terms and conditions of
such employment, the termination of Xxxxxx'x employment thereof, the negotiation
and entry into this Agreement, and/or the terms of this Agreement and/or (ii)
any act, event, or occurrence, or any alleged failure to act, from the beginning
of time and occurring up to and including the Effective Date of this Agreement;
(b) Xxxxxx, for himself and his heirs, executors, administrators,
successors, and assigns (collectively "Releasor"), forever releases and
discharges Key, any and all of its partners, parents, subsidiaries, affiliated,
and related companies, and any and all of its past, present, and future
officers, directors, employees and agents (collectively "Releasees"), from any
and all claims, demands, causes of action, and liabilities of any kind whatever
(upon any legal or equitable theory, whether contractual, common law, statutory,
federal, state, local or otherwise, and including but not limited to any claims
for compensatory or punitive damages, injunctive or equitable relief, or for
attorneys' fees, or costs or disbursements of any kind), whether known or
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unknown, which Releasor ever had, now has, or may hereafter have against
Releasees by reason of any action, omission, transaction, or occurrence from the
beginning of time and occurring up to and including the Effective Date of this
Agreement. It is the understanding and agreement of the parties that the release
provided for by this paragraph "4(b)" shall be a general release in all
respects. Without limiting the generality or force or effect of the foregoing,
this release shall release Releasees from any and all claims against Releasees
arising, directly or indirectly, from (i) Xxxxxx'x employment with Releasees;
(ii) the terms and conditions of such employment; (iii) the termination of
Xxxxxx'x employment with Releasees; (iv) the negotiation and entry into this
Agreement, and/or the terms of this Agreement; and (v) any and all claims under
the Age Discrimination in Employment Act ("ADEA"), the Older Workers Benefit
Protection Act ("OWBPA"), Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act ("ADA"), the Equal Pay Act ("EPA"), the Family
Medical Leave Act ("TMLA"), the Employee Retirement Income Security Act of 1974
("ERISA"), and/or any other federal, state, or local law (statutory or
decisional), regulation, or ordinance, up to and including the Effective Date of
this Agreement.
5. Xxxxxx agrees he will not seek or accept any award or settlement from
any source or proceeding with respect to any claim or right covered by
paragraphs "3" and "4".
6. Xxxxxx acknowledges and agrees that his employment relationship with
Key is permanently and irrevocably severed and that he is not eligible for
rehire or reemployment with Key or any of the other Releasees, and hence
covenants that he will not seek such employment.
7. Xxxxxx hereby agrees to the following provisions respecting
confidentiality:
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(a) The terms and provisions of this Agreement shall not, directly
or indirectly, be disclosed (in whole or in part) or characterized by Xxxxxx or
any of its agents (including but not limited to any attorney representing
Xxxxxx) to any other person or entity (including but not limited to any current
or former employee of Key). Xxxxxx and any attorney representing Xxxxxx
represent and warrant that neither he nor they have heretofore made any
disclosure or characterization of the terms and provisions of this Agreement (in
its final form and/or in any previous drafts thereof).
(b) Notwithstanding the foregoing, it shall not be a breach of this
paragraph "7" for Xxxxxx to disclose the terms and provisions of this Agreement
to attorneys he may consult in connection with his rights and responsibilities
under this Agreement; provided, however, that Xxxxxx shall inform each such
attorney of the provisions of this Agreement and provided further that any
violation of such provisions by any such attorney shall constitute a breach by
Xxxxxx of this paragraph "7".
(c) Xxxxxx and any attorney representing Xxxxxx acknowledge and
agree that neither he nor they has or will solicit or provoke any inquiry
concerning the terms and provisions of this Agreement. In the event a request is
made of either Xxxxxx and/or any attorney representing Xxxxxx by any person or
entity (including but not limited to any government agency or authority), acting
or purporting to act under color of law (whether by subpoena or otherwise), for
a disclosure, in whole or in part, of the terms or provisions of this Agreement,
Xxxxxx and any attorney representing Xxxxxx will give prompt notice of such
request to Key attorneys and will, to the extent permitted by law, make no such
disclosure until Key have had a reasonable opportunity to contest the right of
the requesting person or entity to such disclosure.
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8. Xxxxxx acknowledges and agrees that he has not and will not engage in
any conduct that is injurious to the reputation or interest of Key or any of the
other Releasees, including but not limited to (i) divulging, communicating, or
in any way making use of any confidential or proprietary information acquired in
the performance of his duties with Key; and (ii) publicly disparaging (or
inducing or encouraging others to publicly disparage) Key or any of the other
Releasees. Key agrees that it will make no communication, oral, in writing or
otherwise which disparages Xxxxxx.
9. (a) Xxxxxx acknowledges that his position with Key necessarily required
and resulted in the disclosure to Xxxxxx of confidential information and trade
secrets of Kev and/or the other Releasees (such as, without limitation,
marketing plans, financial information, relationships with lenders, budgets,
customer preferences and policies, identity of appropriate personnel of
customers with sufficient authority to influence a shift in suppliers). Xxxxxx
agrees (i) that he will not at any time disclose to anyone any confidential
information or trade secret of Key and/or the other Releasees or utilize such
confidential information or trade secret for his own benefit, or for the benefit
of third parties, and (ii) that all memoranda, notes, records, or other
documents complied by Xxxxxx or made available to Xxxxxx during his employment
concerning the business of Key and/or the other Releasees and/or its and their
customers shall be the property of Key and/or the other Releasees and shall be
delivered to Key no later than the Effective Date of this Agreement.
(b) The provisions of this paragraph "9" shall survive the termination of
this Agreement.
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10. This Agreement shall not be offered or admitted as evidence in any
proceeding, except to the extent necessary in a proceeding brought to enforce
the terms thereof.
11. This Agreement shall in all respects be interpreted and governed by
the laws of the State of New York (without regard to New York's conflicts laws),
except where federal law may govern, and the parties in any action arising out
of this Agreement shall be subject to the jurisdiction and venue of the federal
and state courts, as applicable, in the State of New York, County of New York.
12. This Agreement shall extend and inure to the benefit of, and shall be
binding upon, Xxxxxx and Key and each of his and their heirs, executors,
administrators, and successors and assigns.
13. If, at any time after the Effective Date of this Agreement, any
provision of this Agreement shall be held to be illegal, void or unenforceable,
such provision shall be of no force and effect. However, the illegality or
unenforceability of such provision shall have no effect upon, and shall not
impair the legality or enforceability of, any other provision of this Agreement;
provided, however, that, upon any finding by a court of competent jurisdiction
that the release and covenants provided for by paragraphs "3 through "9" of this
Agreement are illegal, void, or unenforceable, Xxxxxx agrees, at Key's option,
either to return promptly to Key the payment made pursuant to paragraph "2"
above or to execute a release, waiver and/or covenant that is legal and
enforceable. Further, if Xxxxxx seeks to challenge the validity of or otherwise
vitiate this Agreement or any provision thereof (including but not limited to
paragraphs "3" through "9"). Xxxxxx shall, as a precondition, be required to
repay to Key the consultancy payments made pursuant to paragraph "2" above.
Finally, Xxxxxx agrees that any breach of the terms of
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paragraphs "3" through "9" shall constitute a material breach of this Agreement.
In the event that Xxxxxx commits any such material breach of this Agreement, and
due to the difficulties in calculating the damages that might be sustained
(directly or indirectly) as a result of such breach, Xxxxxx:
(a) consents to the entry of injunctive relief against him (without
Key being required to post any bond), in addition to Key's right to pursue any
and all of its potential remedies under the law;
(b) agrees that, if such material breach occurs, Key shall be
entitled to liquidated damages from Xxxxxx, as such and not as a penalty, in the
amount of Fifteen Thousand Dollars ($15,000.00); and
(c) agrees that, in the event that Key pursues legal remedies
against Xxxxxx, Xxxxxx agrees to pay and reimburse Key for its attorneys' fees
and costs incurred in any such action (including but not limited to a
counterclaim in an action brought by Xxxxxx) to enforce its rights under this
Agreement.
14. Xxxxxx represents and warrants that he has been advised to consult
with independent legal counsel before executing this Agreement; that he has
executed this Agreement only after having had an opportunity to consult with
such independent legal counsel; that he has carefully read the Agreement in its
entirety; that he has been given the opportunity to consider this agreement for
a period of at least twenty-one (21) days, if he so desires, that he has had the
opportunity to have the provisions of the Agreement explained to him by his own
counsel and have answered to his satisfaction any questions he has asked with
regard to the meaning of any of the provisions of the Agreement, that he fully
understands their terms and significance; that he
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voluntarily assents to all the terms and conditions contained therein; that he
is signing the Agreement knowingly and voluntarily; and that he understands and
intends to abide by all of this Agreement's provisions, terms, and conditions
without exception. It is the intention of the parties that this Agreement
satisfies all of the requirements of the Older Workers Benefit Protection Act
("OWBPA"), 29 U.S.C.ss.626(f).
15. After executing this Agreement, Xxxxxx shall have seven (7) days (the
"Revocation Period") to revoke this Agreement by indicating his desire to do so
in writing sent by facsimile to Key's counsel, Xxxx Xxxxxx, Esq., at facsimile
number (000) 000-0000. The effective date of this Agreement shall be the eighth
(8th) day following the execution and delivery of this Agreement (the "Effective
Date"). In the event Xxxxxx does not accept this Agreement, or in the event that
Xxxxxx revokes this Agreement during the Revocation Period, this Agreement shall
automatically be deemed null and void, and the payment set forth in paragraph
"2" of this Agreement shall not be distributed.
16. This Agreement may be executed in several counterparts, each of which
shall be an original as against any party who or which signed it, and all of
which shall constitute one and the same document.
17. Should any provision of this Agreement require interpretation or
construction, Xxxxxx and Key agree that the presumption providing that a
document or agreement is to be interpreted or construed more strictly against
the party who or which prepared such document or agreement shall not apply, it
being agreed that both Xxxxxx and Key have participated in the preparation of
all provisions of this Agreement.
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18. This Agreement constitutes the entire agreement and understanding
reached by the parties and supersedes any and all prior negotiations and
agreements (actual or proposed and whether written or oral), including but not
limited to, the Employment Agreement dated April 17, 1998 between Xxxxxx and
Key. The parties to this Agreement explicitly acknowledge that they have not
relied upon any promise, representation, or warranty, express or implied, not
explicitly set forth in this Agreement.
19. This Agreement may be amended only by a writing signed by Xxxxxx and
Key.
Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
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STATE OF ____________ )
) ss.:
COUNTY OF ___________ )
On this 9 day of March, 1999, before me personally came Xxxxx X. Xxxxxx,
to me known and known to me to be the person described in and who executed the
foregoing Agreement and General Release, and he duly acknowledged to me that he
executed the same.
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Notary Public
Key Components, LLC
By:/s/ Xxxxxx X. Xxx
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STATE OF _____________)
) ss.:
COUNTY OF ____________)
On this 9 day of March, 1999, before me personally came Xxxxxx X. Xxx,
who, being by me duly sworn, did depose and say that he/she is Chief Financial
Officer of Key Components, LLC ("Key"), that he/she is authorized to execute the
foregoing Agreement on behalf of Key, and that he/she duly acknowledged to me
that he/she executed the same on behalf of Key.
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Notary Public
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