Exhibit 10.18
SEPARATION AGREEMENT AND RELEASE
THIS SEPARATION AGREEMENT AND RELEASE ("Agreement") is entered into
between Decorize, Inc., its affiliated and related entities ("Decorize") and Xxx
Xxxxx ("Xxxxx") effective as of August 25, 2003, and is intended to be a full
and final resolution of all matters involving Xxxxx'x employment by Decorize.
Specifically, the parties to this Agreement agree to the following:
1. Resignation. Xxxxx has resigned from his employment with Decorize
effective August 25, 2003.
2. Compensation. In consideration of Xxxxx'x execution of this
Agreement, Decorize agrees that it will provide the following to Xxxxx:
(a) Decorize will pay to Xxxxx a gross monthly payment of
$6,000.00 per month during the period from September 1, 2003, until
February 29, 2004. The payments will be made on Decorize's normal
payroll dates each month and will be subject to all applicable legal
deductions. Decorize will also issue to Xxxxx 65,000 shares of Decorize
common stock to be delivered to Xxxxx on March 1, 2004.
(b) Decorize will pay Xxxxx'x cost pursuant to the
Consolidated Omnibus Budget Reconciliation Act ("COBRA") to continue
his health insurance coverage under Decorize's health insurance plan
until the earlier of the following events occur: he becomes eligible
for health insurance from a new employer or July 31, 2004. During the
period in which Decorize pays Xxxxx'x COBRA premium, he will be
responsible for paying the cost under COBRA for any of his dependents
to continue to be covered under Decorize's health insurance plan;
(c) Decorize shall pay to Xxxxx the interest which is due on
the Promissory Note entered into between Xxxxx and Decorize on June 15,
2001, as modified by the Note Modification Agreement dated July 31,
2002. The payment of the interest shall be made on December 31, 2004.
The interest shall be calculated at 4% per year. Nothing in this
Agreement shall modify Decorize's obligations to repay to Xxxxx the
principal due in the Promissory Note.
The parties agree that these payments will fully compensate Xxxxx for
all services he has provided as an employee to Decorize or that he in the future
may be called upon to provide as an employee or consultant. Xxxxx agrees and
understands that the payments described above are conditioned upon his
continuing compliance with the terms of this Agreement. A breach by Xxxxx of any
term of this Agreement will result in the immediate termination of the
obligation by Decorize to make any further payments to Xxxxx under the terms of
this Section.
3. Return of Decorize Property. As of the date Xxxxx signs this
Agreement he represents that he has returned to Decorize all Decorize-owned or
leased property in his possession or under his control except for such property
which he has obtained the approval of Decorize's President to retain and which
is necessary for him to perform his duties as a member of Decorize's Board of
Directors. Xxxxx will not retain any copies, duplicates, reproductions or
excerpts of any Decorize-owned or leased property without the approval of
Decorize's President or unless such property is necessary for him to perform his
duties as a member of Decorize's Board of Directors.
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4. General Release. Xxxxx, on behalf of himself and his heirs,
executors or administrators, hereby releases, discharges and agrees not to xxx
or file any charges or claims against Decorize, its directors, officers,
employees, shareholders, agents, parent corporations, affiliated or related
entities, under any local, state, or federal law, for any type of claim, demand
or action whatsoever arising out of or connected with his employment with
Decorize. The claims, demands or actions which Xxxxx is waiving and releasing by
signing this Agreement include, but are not limited to, wrongful discharge;
unlawful employment discrimination; retaliation; breach of contract; intentional
or negligent infliction of emotional distress; promissory estoppel; defamation
of character; duress; intentional misrepresentation or fraud; invasion of
privacy; negligent hiring, retention, or supervision; any alleged act of
harassment or intimidation; or any other intentional or negligent act of
personal injury. This release does not affect Xxxxx'x right to benefits under
the terms of any employee benefit plan in which he participated while employed
by Decorize or under the Comprehensive Omnibus Budget Reconciliation Act
("COBRA"). This release also does not limit Xxxxx'x right to enforce the terms
of this Agreement.
5. Waiver of Age Discrimination Claim. Pursuant to the Age
Discrimination in Employment Act of 1967 (29 U.S.C. ss.626), Xxxxx acknowledges:
(a) He is encouraged to have this Agreement reviewed by an
attorney;
(b) He is releasing all claims relating to his employment and
separation under the Age Discrimination in Employment Act of 1967;
(c) He is not waiving any rights or claims that may arise
after the date this Agreement is signed;
(d) He has a minimum of twenty-one days from the date he
receives this Agreement to consider this Agreement;
(e) For a period of seven days following his signing this
Agreement, Xxxxx may revoke this Agreement and this Agreement shall not
become effective or enforceable until the revocation period expires;
(f) By executing this Agreement, Xxxxx represents that he
fully understands all provisions of the Agreement and understands the
consequences of signing this Agreement.
6. Nondisparagement. Neither Xxxxx nor Decorize will engage in any
conduct or take any action, written or oral, that will reflect negatively on or
harm the business interest of the other party.
7. Non-Hire and Non-Interference. Xxxxx shall not, on his own behalf or
on behalf of any other person, partnership, association, corporation or other
entity, (i) hire or solicit or in any manner attempt to influence or induce any
employee of Decorize to leave his or her employment by Decorize, or (ii) use or
disclose to any person, partnership, association, corporation or other entity
any information obtained while an employee of Decorize concerning the names and
addresses of Decorize's employees. Decorize will not take any action to
interfere or prevent Xxxxx from obtaining employment. Xxxxx agrees that he will
not attempt to interfere in any way with Decorize's operations.
8. Confidentiality of this Agreement. It is the express intent of the
parties that the terms and conditions of this Agreement shall not be disclosed
except in response to a validly issued subpoena, a valid request from a
government agency or as set out below. The parties agree that Xxxxx may disclose
the terms of this Agreement only to his spouse, his attorneys, and to his
accountants or financial advisors. The parties agree that Decorize may disclose
the terms of this Agreement to its officers, directors, attorneys and to those
employees who are necessary to carry out the terms of the Agreement.
9. No Admission of Wrongdoing. This Agreement shall not in any way be
construed as an admission by either party that such party has acted wrongfully
with respect to the other party or any other person.
10. Scope of Agreement. This Agreement sets forth the entire agreement
between the parties pertaining to the subject matter of this Agreement. Those
terms of the Employment Agreement entered into between Decorate, Inc. and Xxxxx
dated August 7, 2001, which have not been superseded by this Agreement shall
remain in effect.
11. Severability. The parties intend all provisions of this Agreement
to be enforced to the fullest extent permitted by law. Accordingly, should a
court of competent jurisdiction determine that the scope of any provision hereof
is too broad to be enforced as written, the parties intend that the court reform
the provision to such narrower scope as it determines to be reasonable and
enforceable.
12. Modification. No change or modification of this Agreement shall be
valid or binding upon the parties nor shall any waiver of any term or condition
in the future be so binding, unless such change or modification or waiver shall
be in writing and signed by the parties.
13. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Missouri. If any action is brought
to enforce or interpret this Agreement, venue for such action shall be in Xxxxxx
County, Missouri.
14. Counterparts. This Agreement may be executed in counterparts, each
of which shall constitute an original, but all of which shall constitute one
document.
15. Acknowledgment. By signing below, the parties certify and represent
that they have carefully read and considered this Agreement and fully understand
the extent and impact of its provisions. The parties certify and represent that
they have executed this Agreement voluntarily and without coercion, undue
influence, threats or intimidations of any kind or type whatsoever and that no
other promises have been made for the purposes of signing this Agreement.
DECORIZE, INC.
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Xxx Xxxxx By: Xxxxx X. Xxxxxxx
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Date signed Date signed
