EXHIBIT 10.17
SEPARATION AGREEMENT
This SEPARATION AGREEMENT, dated as of December 24, 2005 (the
"Agreement"), between CONCORD CAMERA CORP., a New Jersey corporation (the
"Company"), and XXXX XXXXXXXXX ("Executive").
RECITALS
A. The Executive is a Senior Vice President and the General Counsel and
Secretary of the Company.
B. The Executive is currently employed by the Company pursuant to Terms
of Employment, effective as of September 15, 2003, as amended by Amendment No.
1, dated as of January 23, 2004, (as amended, the "Executive Employment Terms").
C. Pursuant to the Executive Employment Terms, the term of the
Executive's employment with the Company will expire on September 14, 2006,
inclusive.
D. The Company and the Executive desire (i) to reduce the term of the
Executive's employment with the Company to a period ending on March 31, 2006,
inclusive, (ii) to provide for the separation of the Executive from his
employment with the Company, effective as of the earlier of (A) March 31, 2006
or (B) if the Executive is terminated pursuant to the applicable provisions of
the Executive Employment Terms or Section 5(C) hereof, the effective date of
such termination (such effective date of separation being hereinafter referred
to as the "Separation Date"), and (iii) to set forth the terms and conditions of
his employment separation.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Executive,
intending to be legally bound, agree as follows:
1. TERM REDUCTION. Section 3 of the Executive Employment Terms is
hereby amended by accelerating the ending date of the Executive's employment
with the Company from September 14, 2006, inclusive, to March 31, 2006,
inclusive.
2. EMPLOYMENT SEPARATION. The separation of the Executive from his
employment with the Company and his relinquishment of the offices of Senior Vice
President, General Counsel and Secretary of the Company (collectively, the
"Separation") shall become effective as of the Separation Date.
3. SEPARATION COMPENSATION AND BENEFITS:
A. Unless the Executive shall have been terminated for "Cause"
(as defined in the Executive Employment Terms) or shall have voluntarily
terminated his employment with the Company before March 31, 2006 (either of such
events being hereinafter referred to as a "Disqualifying Termination"): (i) the
Executive shall be entitled to the post-employment compensation (the
"Severance") prescribed by the second paragraph of Section 12 of the Executive
Employment Terms, i.e., his base salary and auto allowance (as provided in
Section 5 thereof), for the one (1) year post-employment period prescribed
therein which shall run from the Separation Date (the "Post-Employment Period")
(e.g., assuming no earlier termination, the Post-Employment Period shall run
from April 1, 2006 to and including March 31, 2007), which Severance shall be
payable as and when prescribed by Section 12 of the Executive Employment Terms;
(ii) the balance in Account III, as defined in and established pursuant to the
terms of the Supplemental Executive Retirement Plan and Agreement for the
Executive, as modified by the Modification Election, dated August 4, 2004, and
by Amendment Xx. 0, xxxxx xx xx Xxxxxxxx 00, 0000 (xx modified and amended, the
"Executive SERP"), shall vest as of the Separation Date (the Separation being
deemed, for such purposes, to be equivalent to a termination "without cause")
and shall be payable in accordance with the terms of the Executive SERP and
applicable law; and (iii) the Executive shall be entitled to retain his
cellphone and laptop computer.
B. The vacation and other benefits to which the Executive is
entitled under Sections 7 and 11 of the Executive Employment Terms shall
terminate as of the Separation Date in accordance with the provisions of the
third paragraph of Section 12 of the Executive Employment Terms, provided that
the Executive will be credited with his two (2) carryover days for 2005 and his
full vacation allotment of fifteen (15) days, as set forth in Section 7 of the
Executive Employment Terms, for calendar year 2006 as though he had remained in
the employ of the Company through the end of 2006. The Executive shall be
entitled to payment of all accrued and unused vacation pay in accordance with
normal Company practices.
C. Nothing in this Agreement shall affect the rights and
benefits, if any, to which the Executive is entitled under any employee benefit
plans and deferred compensation plans in which he participated or by which he
was covered during his employment with the Company (including, without
limitation, the Executive SERP), and under any stock option agreements with the
Company to which the Executive is a party, all in accordance with the respective
terms and conditions of these Company plans and agreements (collectively, the
"Other Company Plans").
2
D. If the Executive, by written notice to the Company, elects
COBRA continuation coverage (for the period after the Separation Date) under the
Company health insurance policy by which he is currently covered, then, provided
that there shall not have been any Disqualifying Termination, the Company will
reimburse the Executive for the premiums paid by the Executive thereunder during
the Post-Employment Period.
E. If, at any time from and after the Separation Date, the
Executive obtains life insurance coverage and/or disability coverage
substantially similar to the life insurance and disability insurance coverages
to which the Executive was theretofore entitled as a Company employee in
accordance with Section 11 of the Executive Employment Terms, and the Executive
notifies the Company in writing of these post-Separation Date coverages, then,
provided that there shall not have been any Disqualifying Termination, the
Company will reimburse the Executive for the premiums paid by the Executive for
such coverage(s) during the twelve (12) month Post-Employment Period in an
amount not to exceed the lesser of (i) the amount of such premiums or (ii) the
amount of the premiums that would have been paid by the Company for such
coverage(s) during the twelve (12) month Post-Employment Period had the
Executive remained in the employ of the Company during such period.
F. The Executive acknowledges and agrees that, except as
provided in this Agreement and in the Executive Employment Terms and the Other
Company Plans, as and to the extent amended hereby, or as otherwise required by
any mandatory and unwaivable provision of applicable law: all compensation and
other benefits which the Executive may be entitled to receive from the Company
shall terminate as of the Separation Date; and the Company shall have no other
or further obligations, economic or otherwise, to the Executive.
G. The Executive further acknowledges and agrees that the full
vacation allotment for calendar year 2006 described in Section 3(B) above and
the insurance premium reimbursements described in Sections 3(D) and 3(E) above
are benefits to which the Executive would not otherwise be entitled under the
Executive Employment Terms upon his Separation from the Company.
3
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS:
A. The Executive represents and warrants that, to the best of
his knowledge and belief, he has not violated or failed to comply with, and will
not violate or fail to comply with, (i) during the Executive's employment with
the Company, any of the Executive Employment Terms, (ii) any of the
confidentiality, intellectual property and non-competition covenants set forth
in Exhibit A to the Executive Employment Terms, or (iii) during the Executive's
employment with the Company, any of the provisions of the Code of Conduct
annexed as Exhibit B to the Executive Employment Terms (the covenants and
agreements of the Executive described in clauses (i), (ii) and (iii) above being
hereinafter referred to, collectively, as the "Contractual Undertakings").
B. The Executive acknowledges and agrees that he is and will
remain subject to, and bound by, his Contractual Undertakings for the respective
periods specified therein.
C. The Executive further acknowledges and agrees (i) that he
is expected to and will devote the same time, energy, diligence and attention to
his employment with the Company from and after the date of this Agreement as he
had theretofore devoted to his Company employment, (ii) that if his performance
hereafter is not satisfactory to the Chief Executive Officer of the Company, the
Company shall have the right to terminate his employment by written notice,
which notice shall be effective immediately or at such other time as shall be
specified in such notice, and (iii) that if the Company terminates his
employment before March 31, 2006, based solely upon and in accordance with
clause (ii) of this Section 4(C), his termination shall be deemed to be other
than for "cause" (i.e., without "cause") within the meaning of Section 12 of the
Executive Employment Terms, and the twelve (12)-month Post-Employment Period
shall begin to run from the date of termination.
D. The parties agree that, for purposes of the Contractual
Undertakings in Section II of Exhibit A to the Executive Employment Terms (i.e.,
the non-compete covenants), the post-termination period specified therein shall
commence on the Separation Date.
5. COOPERATION AND ASSISTANCE:
A. For a period of twelve (12) months beginning on the
Separation Date, the Executive will reasonably cooperate with the Company and
its respective staff and counsel in connection with any investigation,
administrative proceeding or litigation relating to any matter occurring during
the Executive's employment in which the Executive was involved or of which the
Executive has knowledge.
4
B. Such cooperation by the Executive shall be provided at such
times and locations, and in such manner (including, without limitation,
testimony in any of the Pending Litigation or other lawsuits), as are mutually
agreeable to the Executive and the Company.
C. The Company will reimburse the Executive for all reasonable
out-of-pocket expenses (such as lodging and travel expenses) incurred by the
Executive in providing such cooperation to the Company, subject to the receipt
by the Company of appropriately itemized and documented requests by the
Executive therefor.
D. The Executive shall not be entitled to any compensation for
any such cooperation provided by the Executive to the Company during the
Post-Employment Period in addition to the compensation prescribed by Section 3
hereof.
6. GENERAL RELEASE:
A. Except as otherwise provided in this Agreement and in
consideration of the compensation and other benefits provided to the Executive
hereunder, including the economic benefits to the Executive described in Section
3(G) above, the Executive, for himself and his heirs, executors, administrators,
representatives (personal and legal) and assigns, hereby releases and discharges
the Company and its subsidiaries and affiliates, and their respective current
and former directors, officers, employees and shareholders (collectively, the
"Releasees") from any and all charges, complaints, claims, demands, promises,
agreements, causes of action, damages, debts and liabilities of any kind or
nature whatsoever, whether known or unknown, and whether at law or in equity
(collectively, "Claims"), which the Executive ever had, now has or may have,
from the beginning of his employment with the Company through the Effective Date
of this Agreement, including, without limitation, any and all Claims arising out
of, or relating to, his employment with, and/or his Separation from, the
Company.
B. The Claims covered by the release effected by this Section
6 specifically include, without limitation, any and all Claims of wrongful
discharge, breach of contract, breach of any implied covenant of good faith and
fair dealing, tortious interference with advantageous relations, intentional or
negligent misrepresentation, and unlawful discrimination or retaliation under,
or any other violation of, any federal, state or local constitution, statute,
regulation, order or ordinance, or common law (including, without limitation,
the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C.
ss.ss.1001 et seq.; and those federal and state laws prohibiting employment
discrimination based on age, sex, race, color, national origin, religion,
handicap or disability, or veteran status, such as the Age Discrimination in
Employment Act, 29 U.S.C. ss.ss.621 et seq., as amended by the Older Workers
Benefit Protection Act, Public Law 101-433; the Equal Pay Act of 1963, 9 U.S.C.
ss.206 et seq.; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
ss.ss.2000e, et seq.; the Civil Rights Act of 1866, 42 U.S.C. ss.1981; the
Americans with Disabilities Act, 42 U.S.C. ss.ss.12101, et seq.; the Family and
Medical Leave Act, 29 U.S.C. ss.ss.2601 et seq.; the Florida Constitution, Art.
1, Section 2; the Florida Civil Rights Act of 1992, Fla. Stats., ch. 760.10; and
any other similar Florida state or local laws, statutes, regulations or
ordinances, or common law).
5
C. The Executive represents that he has not sought, and agrees
that he will not seek or accept, any damages or other relief in any claim or
action by any federal, state or local governmental authority or agency, or by
any other person or entity, against the Company or any other Releasees with
respect to any Claim or other matter relating to any events or circumstances up
to the Effective Date of this Agreement.
D. Anything in this Section 6 to the contrary notwithstanding,
the parties agree that the release effected hereby is not intended, and shall
not be construed, to limit the rights of the Executive (i) to enforce this
Agreement, (ii) to the compensation and other employee benefits described in
Section 3 above , (iii) to indemnification in accordance with the By-Laws of the
Company and applicable New Jersey law, or (iv) to be covered as an insured under
the terms and conditions of any insurance policy of the Company, including, but
not limited to, any directors' and officers' liability insurance policy, which
covers Executive's actions during his employment with the Company, to the extent
of the coverage, if any, provided thereunder.
7. ADDITIONAL ACKNOWLEDGMENTS AND AGREEMENTS:
A. The Executive understands, acknowledges and agrees that:
(i) Subject to Section 7(B) below, no rights or
Claims that may arise after the date on which the Executive executes this
Agreement are being waived by the Executive;
6
(ii) The Executive has been advised to consult with
an attorney of his own choosing prior to executing this Agreement and that he
has done so or has knowingly waived his right to do so;
(iii) The Executive has twenty-one (21) days from his
receipt of this Agreement within which to review and consider this Agreement;
(iv) The Executive has seven (7) days after his
execution of this Agreement within which to revoke this Agreement; and
(v) This Agreement shall not become effective or
enforceable until the seven (7) day revocation period described in clause (iv)
above shall have expired (such expiration date being referred to herein as the
"Effective Date").
B. The Executive (i) agrees to execute and deliver to the
Company on the Separation Date a written instrument, in the form attached hereto
as Annex I, pursuant to which the Executive ratifies, confirms and remakes,
effective on and as of the Separation Date, the release effected by Section 6
hereof, and (ii) acknowledges and agrees that the execution and delivery of such
instrument shall be a condition precedent to the compensation and other benefits
provided by Section 3 above.
C. Effective on the Separation Date, Executive shall be deemed
to have resigned as an officer and director of the Company and any and all
Company subsidiaries and affiliates in which he then holds offices or positions,
and as a fiduciary of any benefit plan of any of the foregoing. The Executive
agrees to execute any further documentation requested by the Company to achieve
this purpose.
8. NO DISPARAGING OR DETRIMENTAL COMMUNICATIONS:
A. The Executive shall refrain from making any statements or
other communications of a defamatory, disparaging, derogatory or otherwise
negative nature to any person or entity concerning (i) the Company or any of its
subsidiaries or affiliates, or any of their respective directors, officers,
employees or shareholders, (ii) any product or service provided by the Company
or any of its subsidiaries or affiliates, or (iii) the future prospects of the
Company or any of its subsidiaries or affiliates.
B. The Company and its subsidiaries and affiliates shall
refrain from making any statements or other communications of a defamatory,
disparaging, derogatory or otherwise negative nature to any person or entity
concerning the Executive or the employment relationship of the Executive with
the Company or any of its subsidiaries or affiliates.
7
C. The parties agree that it shall not be a violation of this
Section 8 for either party to make truthful statements when required to do so by
a court of law, by any governmental agency having supervisory authority over the
party, or by any administrative or legislative body with apparent jurisdiction
to order the party to divulge, disclose or make accessible such information.
9. SPECIFIC PERFORMANCE.
A. Subject to the provisions of Section 10 below, the Executive
acknowledges and agrees that the remedies of the Company at law for any breach
or threatened breach of any of the provisions of Sections 4 and/or 8(A) would be
inadequate and that the Company would suffer irreparable damages as a result of
such breach or threatened breach. The Executive, therefore, agrees that, in the
event of any such breach or threatened breach, the Company, without posting any
bond, shall be entitled, in addition to any available rights or remedies at law,
to bring an action in any court of competent jurisdiction for the purpose of
obtaining equitable relief in the form of specific performance, a temporary
restraining order, a temporary or permanent injunction, or any other equitable
remedy which may then be available.
B. The Company acknowledges and agrees that the remedies of the
Executive at law for any breach or threatened breach of any of the provisions of
Section 8(B) would be inadequate and that the Executive would suffer irreparable
damages as a result of such breach or threatened breach. The Company, therefore,
agrees that, in the event of any such breach or threatened breach, the Executive
shall be entitled, in addition to any available rights or remedies at law, to
bring an action in any court of competent jurisdiction for the purpose of
obtaining equitable relief in the form of specific performance, a temporary
restraining order, a temporary or permanent injunction, or any other equitable
remedy which may then be available.
10. CURE. The Company shall give written notice to the Executive of
any breach or alleged breach of the terms of the Agreement or the Contractual
Undertakings (the "Cure Notice"). The Cure Notice shall state in detail the
particular act or acts, or failure or failures to act, that constitute the
breach or alleged breach of the Agreement or the Contractual Undertakings. The
Executive shall have ten (10) days after the date that such written notice has
been given to the Executive in which to cure such breach. The Company
acknowledges and agrees not to commence any action or legal proceeding against
the Executive for any breach or alleged breach of the Agreement or the
Contractual Undertakings until such Cure Notice has been given to the Executive
and the ten (10) day cure period has elapsed.
8
11. MISCELLANEOUS:
A. NOTICES. For purposes of this Agreement, all notices and
other communications required or permitted to be given hereunder shall be in
writing and shall have been duly given when personally delivered or when mailed
by certified or registered mail, postage prepaid, return receipt requested,
addressed as follows (or to such other address as either party may provide to
the other party by like notice):
If to the Company: Concord Camera Corp.
0000 Xxxxxxxxx Xxxx., Xxxxx 000X
Xxxxxxxxx, Xxxxxxx 00000
Attention: Chairman and CEO
If to the Executive: Xxxx Xxxxxxxxx
At his address on file with the Company
B. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without regard to
the principles thereof relating to conflicts of law.
C. JURISDICTION AND VENUE. Each of the parties irrevocably
and unconditionally (i) accepts, consents and submits to the exclusive
jurisdiction of the courts of the State of Florida for Broward County and the
United States District Court of the Southern District of Florida (Miami
Division) for the purpose of any action or proceeding arising out of, or
relating to, this Agreement, (ii) waives any objection that it may now or
hereafter have to the laying of venue of any such action or proceeding in any
such court, and (iii) waives and agrees not to plead or claim in any such court
that any such action or proceeding brought therein has been brought in an
inconvenient forum; provided, however, that the parties acknowledge and agree
that any action or proceeding brought by the Company pursuant to Section 9 may
be brought in any court of competent jurisdiction in the State in which the
Executive then resides, anything in this Section 10(C) to the contrary
notwithstanding.
9
D. NO JURY TRIAL. Each of the parties hereby IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING ARISING OUT OF, OR RELATING TO, THIS AGREEMENT.
E. ATTORNEYS' FEES. If any action at law or in equity is
brought to enforce the provisions of this Agreement or the Contractual
Undertakings, the prevailing party shall be entitled to reasonable attorneys'
fees and expenses, whether at pretrial, trial or appellate levels, which may be
set by the court in the same action or in a separate action for that purpose,
including reasonable costs and fees awarded in such action, in addition to any
other relief to which the party may be entitled.
F. AMENDMENTS. This Agreement may not be amended except by
written instrument signed by each of the parties hereto.
G. NO WAIVER. The failure of a party to insist upon strict
compliance with any term, condition or provision of this Agreement shall not be
deemed (I) a waiver of the right of such party thereafter to insist upon strict
compliance with that term, condition or provision, or any other term, condition
or provision, of this Agreement, or (II) a waiver of the right of such party to
insist upon strict compliance with any other term, condition or provision of
this Agreement.
H. ASSIGNMENTS:
(i) Neither this Agreement nor any of the rights or
obligations of the Executive hereunder shall be assignable or delegable by the
Executive; and any purported assignment or delegation by the Executive in
violation of the foregoing shall be null and void from its inception and of no
force and effect.
(ii) This Agreement may be assigned by the Company to
any person or entity which is the successor in interest to substantially all of
the assets or business operations of the Company; and, upon any such assignment,
the rights and obligations of the Company hereunder shall become the rights and
obligations of such successor.
I. NO MITIGATION. The Executive shall not be required to
mitigate the amount of any payment provided for hereunder by seeking other
employment; and the Executive shall not be required to pay the Company any
amounts that the Executive may receive from any such alternative employment.
10
J. SEVERABILITY. If any one or more of the provisions of this
Agreement shall be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions of this
Agreement shall not be affected thereby.
K. TAX WITHHOLDING. The Company may withhold from any amounts
payable to the Executive under this Agreement any Federal, state and local taxes
that may be required to be withheld pursuant to any applicable law or
regulation.
L. EFFECT OF AMENDMENTS. Except for the amendments to the
Executive Employment Terms effected by this Agreement (including, without
limitation, Sections 1, 3(B), 3(D) and 3(E) above), all of the terms and
conditions set forth in the Executive Employment Terms are and shall remain in
full force and effect.
M. CERTAIN LEGAL EXPENSES. If, pursuant to Section 7(A)(ii)
above, the Executive has retained and consulted with an attorney of his own
choosing in connection with his consideration of this Agreement, the Company
will reimburse the Executive for the attorneys' fees so incurred by the
Executive up to, but not exceeding, $2,500.00, and then only for such attorneys'
fees as relate solely to the review and execution of this Agreement and subject
to receipt by the Company of an appropriately itemized and documented statement
of legal services and disbursements (which statement may be redacted to protect
matters subject to the attorney-client privilege, but must be sufficiently
detailed to satisfy the condition set forth herein regarding the subject matter
of such reimbursable services).
N. BINDING EFFECT. This Agreement shall inure to the benefit
of, and shall be binding upon, the Company and the Executive and their
respective heirs, executors, administrators, successors, personal or legal
representatives, and permitted assigns.
O. CAPTIONS. The section and paragraph captions in this
Agreement are for convenience of reference only and shall not have any effect
upon the interpretation of this Agreement.
P. COUNTERPARTS; FUTURE ACTIONS. This Agreement may be
executed in counterparts and by the parties on separate counterparts, each of
which shall be an original, but all of which together shall constitute one and
the same instrument. The parties agree to execute such documents and take such
actions as may be necessary to carry out the intent of this Agreement.
11
IN WITNESS WHEREOF, each of the parties has executed this
Agreement on the date set forth after its signature below.
CONCORD CAMERA CORP.
By: /s/ Xxx X. Xxxxxxx
-------------------------------
Xxx X. Xxxxxxx, Chairman and
Chief Executive Officer
Date of Execution: December 24, 2005
EXECUTIVE:
/s/ Xxxx Xxxxxxxxx
------------------------------------
Xxxx Xxxxxxxxx
Date of Execution: December 24, 2005
12
ANNEX I
GENERAL RELEASE
This GENERAL RELEASE, dated as of ____________________ ______, 2006
(this "Instrument"), by XXXX XXXXXXXXX ("Executive") to and for the benefit of
CONCORD CAMERA CORP., a New Jersey corporation (the "Company"), its subsidiaries
and affiliates, and their respective current and former directors, officers,
employers, shareholders and agents (collectively with the Company, the
"Releasees").
RECITALS
A. The Executive and the Company are parties to that certain Separation
Agreement, dated as of December _____, 2005 (the "Separation Agreement"), which,
among other provisions, (i) sets forth the terms and conditions governing the
separation of the Executive from his employment with the Company (the
"Separation") and (ii) releases the Releasees from all Claims (as defined
therein) through the Effective Date (as also defined therein) of the Separation
Agreement.
B. It is a condition to the effectiveness of certain provisions of the
Separation Agreement that the Executive shall have executed and delivered this
Instrument.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in the Separation Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Executive, intending to be loyally bound, does hereby RELEASE and forever
DISHCARGE the Releasees, and each of them, from any and all charges, complaints,
claims, demands, promises, agreements, causes of action, damages, debts and
liabilities of any kind or nature whatsoever, whether known or unknown, and
whether at law or in equity (collectively, "Claims"), which the Executive ever
had, now has or may have, from the beginning of his employment with the Company
through the date of this Instrument, including, without limitation, any and all
Claims arising out of, or relating to, his employment with, and/or his
Separation from, the Company, except as provided in the Separation Agreement.
IN FURTHERANCE OF THE FOREGOING, the Executive ACKNOWLEDGES and AGREES
that:
1. The Claims covered by the release effected by this Instrument
specifically include, without limitation, any and all Claims of wrongful
discharge, breach of contract, breach of any implied covenant of good faith and
fair dealing, tortious interference with advantageous relations, intentional or
negligent misrepresentation, and unlawful discrimination or retaliation under,
or any other violation of, any federal, state or local constitution, statute,
regulation, order or ordinance, or common law (including, without limitation,
the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C.
ss.ss.1001 et seq.; and those federal and state laws prohibiting employment
discrimination based on age, sex, race, color, national origin, religion,
handicap or disability, or veteran status, such as the Age Discrimination in
Employment Act, 29 U.S.C. ss.ss.621 et seq., as amended by the Older Workers
Benefit Protection Act, Public Law 101-433; the Equal Pay Act of 1963, 9 U.S.C.
ss.206 et seq.; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
ss.ss.2000e, et seq.; the Civil Rights Act of 1866, 42 U.S.C. ss.1981; the
Americans with Disabilities Act, 42 U.S.C. ss.ss.12101, et seq.; the Family and
Medical Leave Act, 29 U.S.C. ss.ss.2601 et seq.; the Florida Constitution, Art.
1, Section 2; the Florida Civil Rights Act of 1992, Fla. Stats., ch. 760.10; and
any other similar Florida state or local laws, statutes, regulations or
ordinances, or common law).
13
2. The Executive has not sought, and will not seek or accept, any
damages or other relief in any claim or action by any federal, state or local
governmental authority or agency, or by any other person or entity, against the
Company or any other Releasee with respect to any Claim or other matter relating
to any events or circumstances up to the date of this Instrument.
3. Nothing in this Instrument is intended, or shall be construed, to
limit the rights or the Executive (i) to enforce the Separation Agreement in
accordance with its terms, (ii) to the compensation and other employee benefits
described in Section 3 of the Separation Agreement , (iii) to indemnification in
accordance with the By-Laws of the Company and applicable New Jersey law, or
(iv) to be covered as an insured under the terms and conditions of any insurance
policy of the Company, including, but not limited to, any directors' and
officers' liability insurance policy, which covers Executives's actions during
his employment with the Company, , to the extent of the coverage, if any,
provided thereunder.
4. No rights or Claims that may arise after the date of this Instrument
are being released or waived by the Executive.
5. The Executive has been advised to consult with an attorney of his
own choosing prior to executing this Instrument and he has done so or has
knowingly waived his right to do so.
6. The Executive has seven (7) days after his execution of this
Instrument within which to revoke this Instrument; and this Instrument shall not
become effective or enforceable until this seven (7) day revocation period shall
have expired.
This Instrument and the release effected hereby shall be binding upon
the Executive and his heirs, personal and legal representations, successors and
assigns, and shall inure to the benefit of each of the Releasees and his, her or
its respective heirs, personal and legal representatives, successors and
assigns.
IN WITNESS WHEREOF, the Executive has signed and sealed this Instrument
as of the date first above written.
WITNESS:
___________________________ ________________________(L.S.)
Name: Xxxx Xxxxxxxxx
14
