EXHIBIT 10.18
SEPARATION AGREEMENT
This SEPARATION AGREEMENT, dated as of December 24, 2005 (the
"Agreement"), between CONCORD CAMERA CORP., a New Jersey corporation (the
"Company"), and XXXXXX X. PRESS ("Executive").
RECITALS
A. The Executive is a Vice President and the Treasurer, Principal
Financial Officer and Assistant Secretary of the Company, and is the Trustee of
the Company's 401(k) Plan. The Executive also holds offices in Company
subsidiaries and affiliates, including the following positions: a Director of
Concord Camera HK Limited, Concord Camera (Europe) Limited, and Concord Camera
Illinois Corp.; the Internal Auditor of Concord Camera Japan KK; and an officer
of Concord Keystone Sales Corp.
B. The Executive is currently employed by the Company pursuant to Terms
of Employment, effective as of January 1, 2000, as amended by Amendment, dated
as of November 20, 2002, Amendment No. 2, dated as of February 26, 2003, and
Amendment Xx. 0, xxxxx xx xx Xxxxx 00, 0000 (xx 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 January 1, 2006.
D. The Company and the Executive desire (i) to extend the term of the
Executive's employment with the Company for a period of three (3) months (to and
including March 31, 2006) (the "Extension Period"), (ii) to provide for the
resignation of the Executive as Trustee under those certain Trust Agreements,
each dated as of April 19, 2000 (collectively, the "Trust Agreements"), between
the Company and the Executive, as Trustee, relating to nonqualified deferred
compensation plans for certain Company executives, and for the resignation of
the Executive as Trustee under the Company's 401(k) Plan, (iii) 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 (iv)
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 EXTENSION. Section 3 of the Executive Employment Terms is
hereby amended by extending the ending date of the Executive's employment with
the Company from January 1, 2006 to March 31, 2006, inclusive.
2. RESIGNATION AS TRUSTEE. Pursuant to Section 11(a) of each of the
Trust Agreements, the Executive hereby resigns as Trustee thereunder. Pursuant
to Section 7.9(a) of the Company's 401(k) Plan, the Executive hereby resigns as
Trustee thereunder. By agreement between the Company and the Executive, such
resignations shall become effective on the earlier of (A) the Separation Date or
(B) the date on which a successor trustee, appointed by the Company, shall have
accepted such appointment.
3. EMPLOYMENT SEPARATION. The separation of the Executive from his
employment with the Company and his relinquishment of the offices of Vice
President, Treasurer and Assistant Secretary of the Company and of the Company
subsidiary and affiliate offices described in Recital A hereto (collectively,
the "Separation") shall become effective as of the Separation Date.
4. SEPARATION COMPENSATION AND BENEFITS:
A. Unless the Executive shall have been terminated for "Cause"
(as defined in the Executive Employment Terms) before March 31, 2006 (such event
being hereinafter referred to as a "Disqualifying Termination"), 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); and such Severance shall be payable as
and when prescribed by Section 12 of the Executive Employment Terms. The parties
acknowledge and agree that any voluntary termination by the Executive during the
Extension Period pursuant to Section 12 of the Executive Employment Terms
(including compliance with the advance notice requirement prescribed therein)
shall, for purposes of that Section, be deemed to have occurred "after the end
of the Term" within the meaning of that Section.
2
B. The vacation and other benefits to which the Executive is
entitled under Sections 8 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 (I) will be credited with, and entitled to payment for, his five
(5)carryover vacation days for 2005 and his full vacation allotment of twenty
(20) days, as set forth in Section 8 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 Supplemental Executive Retirement Plan and Agreement for the
Executive, dated as of April 19, 2000, as amended through Amendment No. 3, dated
as of November 28, 2005)), 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").
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. The Company
will also continue to bear the expense, up to $1,200 in the aggregate, of the
term life insurance coverage maintained pursuant to, and in accordance with,
Section 6 of the Executive Employment Terms during the twelve (12) month
Post-Employment Period.
3
F. The Executive acknowledges and agrees that, except as
provided in this Agreement and in the Executive Employment Terms and the Other
Company Plans (including, without limitation, the Company's 401(k) Plan and any
right of the Executive thereunder to his pro rata share of any matching
contribution that the Company may, in its discretion, elect to make thereunder
with respect to the Plan Year ending June 30, 2006), 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 4(B) above and
the insurance premium reimbursements described in Sections 4(D) and 4(E) above
are benefits to which the Executive would not otherwise be entitled under the
Executive Employment Terms upon his Separation from the Company.
5. 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) 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) 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.
4
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 during the Extension Period as he had
theretofore devoted to his Company employment, (ii) that if his performance
during the Extension Period 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 during the Extension Period based solely upon and in
accordance with clause (ii) of this Section 5(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.
6. COOPERATION AND ASSISTANCE:
A. From and after the Effective Date (as defined in Section
8(A)(v) below), the Executive will provide such cooperation and assistance to
the Company as the Company may reasonably request and as may be mutually agreed
upon by the Executive and the Company in connection with any Company matters in
which the Executive was involved while in the employ of the Company, or of which
the Executive has knowledge or information by reason of his Company employment,
including, but not limited to, (i) those certain class actions, entitled
Xxxxxxxxx, et al. v. Xxx X. Xxxxxxx, et al., Case No. 02-21154-CIV, and Xxxxxxx
X. Xxxxx v. Xxx X. Xxxxxxx, et al., Case No. 04-61159-CIV, respectively, and
that certain shareholder derivative suit, entitled Xxxx X. Xxxxxx v. Xxx X.
Xxxxxxx, et al., Case No. 05-CV-60574, each of which is currently pending in the
United States District Court for the Southern District of Florida, Miami
Division (collectively, the "Pending Litigation"), and (ii) any and all matters
arising out of, or relating to, any of the Pending Litigation, or any future
claims, investigations or lawsuits, if any.
B. Such cooperation and assistance 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.
5
C. The Company will reimburse the Executive, in accordance
with Company policies, practices and procedures, for all reasonable
out-of-pocket expenses (such as lodging and travel expenses) incurred by the
Executive in providing such cooperation and assistance 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 and assistance provided by the Executive to the Company
during the Post-Employment Period in addition to the compensation prescribed by
Section 4 hereof. For any such cooperation and assistance provided by the
Executive to the Company after the expiration of the Post-Employment Period, the
Executive shall be entitled to such per diem compensation as shall be mutually
agreeable to the parties; provided that the Executive shall be entitled to
compensation at the rate of $1,500.00 per day for any and all cooperation and
assistance provided by the Executive after the expiration of the Post-Employment
Period in connection with any of the Pending Litigation.
7. GENERAL RELEASE:
A. In consideration of the compensation and other benefits
provided to the Executive hereunder, including the economic benefits to the
Executive described in Section 4(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.
6
B. The Claims covered by the release effected by this Section
7 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).
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 7 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 4 above to which he is entitled independently of this 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 the Company's currently effective Directors' and Officers'
Liability Insurance Policy (effective to October 1, 2006), to the extent of the
coverage, if any, provided thereunder.
8. ADDITIONAL ACKNOWLEDGMENTS AND AGREEMENTS:
A. The Executive understands, acknowledges and agrees that:
7
(i) Subject to Section 8(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;
(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 7
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 4 above.
9. 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.
8
C. The parties agree that it shall not be a violation of this
Section 9 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.
10. SPECIFIC PERFORMANCE. 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 5 and/or 9(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.
11. 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 and the ten (10) day cure period has elapsed
12. 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
9
If to the Executive: Xxxxxx X. Press
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 10 may be brought in any
court of competent jurisdiction, anything in this Section 11(C) to the contrary
notwithstanding.
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. AMENDMENTS. This Agreement may not be amended except by
written instrument signed by each of the parties hereto.
F. 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.
10
G. 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.
H. 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.
I. 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.
J. 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.
K. EFFECT OF AMENDMENTS. Except for the amendments to the
Executive Employment Terms effected by this Agreement (including, without
limitation, Sections 1, 4(B), 4(D) and 4(E) above), all of the terms and
conditions set forth in the Executive Employment Terms are and shall remain in
full force and effect.
L. CERTAIN LEGAL EXPENSES. If, pursuant to Section 8(A)(ii)
above, the Executive has retained and consulted with an attorney of his own
choosing in connection with his consideration and execution 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).
11
M. 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.
N. 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.
O. FUTURE ACTIONS. The parties agree to execute such documents
and take such actions as may be necessary to carry out the intent of this
Agreement. The parties further agree (i) that, effective as of the Separation
Date, the Executive shall be deemed to have resigned from any and all offices
and positions then held by the Executive with any Company subsidiary or
affiliate, and from any position as a fiduciary under any benefit plans of any
of the foregoing, and (ii) that the Executive will execute any additional
documents requested by the Company to achieve this purpose.
P. ATTORNEYS' FEES. If any action at law or in equity is
brought to enforce the provisions of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, 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.
Q. COUNTERPARTS. 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.
12
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/ Xxxxxx Press
------------------------------------
Xxxxxx X. Press
Date of Execution: December 24, 2005
13
ANNEX I
GENERAL RELEASE
This GENERAL RELEASE, dated as of ____________________ ______, 2006
(this "Instrument"), by XXXXXX X. PRESS ("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.
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).
14
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 4 of the Separation Agreement to which he is entitled
independently 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 the Company's
currently effective Directors' and Officers' Liability Insurance Policy
(effective to October 1, 2006), 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: Xxxxxx X. Press
15
