EXHIBIT 10.2
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EMPLOYMENT TERMINATION AGREEMENT
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THIS EMPLOYMENT TERMINATION AGREEMENT ("Agreement") dated as of April
17, 2002, is made by and between xXxxxx.xxx, Inc., a Delaware corporation (the
"Company"), and Xxxxxx X. Xxxxx ("Executive") (collectively, the "Parties").
WITNESSETH:
WHEREAS, Executive held the position of Executive Vice President-
Marketing pursuant to the Employment Agreement executed by the Parties on
October 19, 2001 (the "Employment Agreement," a true copy of which is attached
hereto as Exhibit "A"); and
WHEREAS, the Parties have agreed to terminate Executive's employment
relationship with the Company in accordance with the terms and conditions
hereinafter set forth;
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and other good and valuable consideration, the receipt of
which are hereby acknowledged, the Parties do hereby agree as follows:
1. In accordance with the Parties' mutual desire to terminate their
employment relationship, Executive's employment with the Company is hereby
terminated effective April 17, 2002 (the "Termination Date"). As such, the
Employment Agreement shall terminate and be of no further force or effect
following the Termination Date; provided that, notwithstanding the foregoing,
and as further discussed below, Executive hereby agrees to continue to be bound
by the provisions of Paragraphs 6, 7, 8 and 9 of the Employment Agreement as set
forth therein.
2. In consideration of Executive accepting cancellation of the
Employment Agreement and to resign his position as Executive Vice President-
Marketing and as an employee, the Company agrees to pay Executive a lump sum
severance payment equal to One Hundred and Fifty-Six Thousand, One Hundred and
Fifty-Three Dollars and Eighty-Five Cents ($156,153.85), payable within five (5)
days following the date hereof. Together with the foregoing payment, the Company
will also pay Executive $2,224.90, representing his accrued but unused vacation
pay through April 16, 2002. As the payments hereunder are being made as a
settlement, the Company shall not withhold from any amounts payable hereunder.
Executive shall be paid his salary in the ordinary course for his services
through the pay period ending April 16, 2002.
3. The Company shall pay Executive $4,080.00, representing the cost
of one year of COBRA coverage, payable at the same time as the payment in
Paragraph 2 above.
4. Executive hereby waives any and all rights to serve on the
Company's Board of Directors under the Agreement and Plan of Merger, dated as of
October 1, 2001 among the Company, Dietsmart Acquisition Corp., Xxxxx X. Xxxxxx,
Dietsmart, Inc., Xxxxxx X. Xxxxx, Executive and Xxxxxx Xxxxx. Executive does not
waive any other rights under the foregoing agreement or other shareholder
agreements.
5. As of the date hereof, any and all of Executive's rights to
receive or exercise any stock options that may have been granted or vested
pursuant to the Employment Agreement or any other stock option plan of the
Company shall immediately cease and terminate and Executive shall not be
eligible for any future awards under the Company's stock option plan.
6. Executive agrees that as of the date of this Agreement, the
Executive relinquishes all power as an agent of the Company, acknowledges that
he cannot bind the Company in any agreement, contract or promise, and agrees not
to represent that he has such powers to third parties without express written
consent of the Company.
7. Executive on behalf of himself and his descendants, ancestors,
dependents, heirs, executors, administrators, assigns and successors agrees and
does by this Agreement irrevocably and unconditionally release and promise not
to xxx the Company and its parent corporation, as well as their subsidiaries,
affiliates, current or former agents, officers, directors, executives,
successors and assigns, from or concerning any and all claims, charges, causes
of action or other liabilities (hereafter collectively referred to as "claims"),
whether in contract or tort, known or unknown, arising out of or relating in any
way to the Executive's employment or termination of employment with the Company,
including, but not limited to, claims for wrongful discharge, wages and
benefits, breach of contract, alleged discrimination under Title VII of the
Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, the
Americans with Disabilities Act, age discrimination under state or local law or
the Age Discrimination in Employment Act (ADEA), and any other claims under
federal, state, or local law. Executive also agrees that he will not in the
future participate in any lawsuit, action, charge or claim related to his
employment with the Company. This release is for any relief, no matter how
denominated, including but not limited to back-pay, front pay, severance pay,
compensatory damages, punitive damages, attorneys' fees and costs actually
incurred, or damages from pain and suffering and for all claims for all
benefits, including but not limited to stock options and other stock benefits.
The foregoing release shall not be effective if the Company fails to perform its
obligations hereunder.
8. The Company agrees and does by this Agreement irrevocably and
unconditionally release and promise not to xxx Executive and his descendants,
ancestors, dependents, heirs, executors, administrators, assigns and successors,
from or concerning any and all claims, charges, causes of action or other
liabilities (hereafter collectively referred to as "claims"), whether in
contract or tort, known or unknown, arising out of or relating in any way to the
Executive's employment or termination of employment with the Company. This
release is for any relief, no matter how denominated, including but not limited
to compensatory damages, punitive damages, attorneys' fees and costs actually
incurred, or damages from pain and suffering and for all claims for all
benefits, including but not limited to stock options and other stock benefits.
The foregoing release shall not be effective if Executive fails to perform its
obligations hereunder.
9. Executive warrants and represents that Executive has not assigned
or transferred to any person not a party to this Agreement any released claim or
portion thereof and the Executive shall defend, indemnify and hold harmless the
Company from any claim including the payment of attorneys' fees and costs
actually incurred whether or not litigation is commenced
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based on or in connection with or arising out of any such assignment or transfer
made, purported or claimed.
10. Executive hereby reaffirms his duties and responsibilities and
agrees to be bound by Paragraphs 6, 7, 8 and 9 of the Employment Agreement.
These provisions in the Employment Agreement govern: i) the disclosure and
assignment of discoveries; ii) confidentiality; iii) non-competition; and iv)
the corresponding remedies available to the Company in the event of a breach of
Paragraphs 6, 7 and 8.
11. In addition to any agreements Executive has signed with the
Company concerning trade secrets, secrecy, security, new products, ideas,
inventions and confidential information and data, which agreements will remain
in full force and effect, Executive shall return to the Company by the end the
Termination Date and not take, copy, use, or distribute in any form or manner
documents or information which the Company deems proprietary, including, but not
limited to, lists of customers or potential customers, financial information,
business and strategic plans, software programs and codes, access codes, and
other similar confidential information or materials.
12. Executive represents that he is not in possession, custody, or
control of any materials containing or encompassing trade secrets or
confidential information relating to the Company.
13. Executive represents that he has not communicated or delivered
any trade secret or confidential information to any non-Company personnel, other
than any statements made to third parties pursuant to and under the protection
of any executed non-disclosures agreements during the ordinary course of
Executive's duties.
14. Executive agrees not to disclose the terms of this Agreement or
the statements made during the negotiation of this Agreement to anyone except
his attorney, financial advisor, his immediate family, a court of competent
jurisdiction or a state or federal governmental agency. Executive shall inform
his attorney, financial advisor, and his immediate family of his obligation of
confidentiality under this paragraph. Executive shall notify the Company
immediately upon receipt of a court order or subpoena or other governmental
request for information, so that the Company shall have the opportunity to
intervene and assert what rights it may have prior to the compliance with the
order, request or subpoena.
Executive agrees to inform such persons to whom disclosure is
permitted by this Agreement that the terms of this Agreement and statements made
during the negotiation of it shall not be disclosed by them. Executive agrees
that if any inquiry is made concerning his termination, by persons other than
his attorney, financial advisor or immediate family, Executive, his attorney,
financial advisor, and immediate family shall respond by indicating only
Executive's date of hire and date of termination.
15. The Company agrees to keep the terms and existence of this
Agreement confidential and to disclose it only to those individuals who have a
need to know for business reasons or as otherwise required by law.
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16. In response to requests for information from prospective
employers, the Company will state only Executive's dates of employment, position
and, upon Executive's written authorization, the Company will confirm salary
information. On the date hereof, the Company shall deliver to Executive a signed
reference letter to third parties in the form attached hereto as Exhibit "B."
17. Executive agrees to cooperate fully with the Company through the
Termination Date and thereafter on reasonable prior notice and at the Company's
sole cost and expense on all matters relating to his employment and the conduct
of the Company's business, including any litigation, claim or suit in which the
Company reasonably deems that the Executive's cooperation is needed.
18. The Company and Executive each further agree that they shall not
make any statement or criticism, nor take any action which is adverse to the
interests of or that would cause the other embarrassment or humiliation or
otherwise cause or contribute to such parties being held in disrepute.
19. The Company and Executive each agree to indemnify and hold
harmless the other Party, its affiliates, subsidiaries, current or former
agents, officers, directors, executives, successors and assigns against any and
all losses, costs, damages, or expenses, including, without limitation,
attorneys' fees incurred by the indemnified party arising out of breach by the
indemnified party of this Agreement.
20. This Employment Termination Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Florida. Any
dispute arising out of the terms of conditions of this Agreement or the breach
thereof shall be brought in Miami-Dade County, Florida.
21. It is understood and agreed that this Agreement is not to be
construed as an admission on the part of the Company or Executive regarding any
of the facts or circumstances of the Executive's employment or termination of
employment or regarding any violation of its policies, procedures, or federal,
state or local laws or regulations.
22. If any term, provision or portion of any provision of this
Agreement is held unenforceable for any reason, it shall be deemed severed from
this Agreement, and the remainder of this Agreement shall continue to be in
force in its entirety.
23. The Parties hereby acknowledge that this Agreement is the entire
agreement between the Parties with respect to the subject matter hereof and
except as expressly set forth herein, supersedes any prior agreement, written or
oral, express or implied between the Parties with respect to the subject matter
hereof. This Agreement may only be modified in writing, signed by both Parties.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date and year first above written.
xXxxxx.xxx, Inc.
B: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
ACKNOWLEDGMENT:
I have read and understand the provisions of this Agreement, have had
an opportunity to consult with an attorney, and have knowingly and voluntarily
executed this Agreement as indicated by my signature below, without fraud,
duress or undue influence.
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Date: April 17, 2002
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