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Exhibit 10.8
SEPARATION AGREEMENT AND FULL AND FINAL RELEASE
This Agreement is made between Xxxxxxxx X. Xxxxxx ("Xxxxxx") and
LendingTree, Inc., including any of its parent, subsidiary, affiliated and
related entities, and their past, present, or future directors, administrators,
officers, employees, agents, attorneys, representatives and assigns (referred to
collectively as "LendingTree").
REASONS FOR AGREEMENT
1. Rebata and LendingTree are severing the employment relationship
between them effective February 1, 2001; and
2. LendingTree wishes to aid Rebata in her transition to new employment
opportunities and resolve any potential disputes; and
3. Rebata and LendingTree desire to resolve any claims that they may
have against one another arising out of facts or events, known or unknown,
occurring up to and including the date of execution of this Separation Agreement
and Full and Final Release ("Agreement").
Therefore, in consideration of the promises in this Agreement, Rebata
and LendingTree agree as follows:
AGREEMENT
1. Payment. LendingTree will pay to Rebata the sum of Fifty Thousand
and no/100 Dollars ($50,000.00) eight days after this Agreement is signed by
Rebata. In addition, and commencing on the effective date of February 15, 2001,
the Company will pay to Rebata on a bi-weekly basis the sum of four thousand one
hundred sixty-six and 67/100 Dollars ($4,166.67), for a period of up to six (6)
months or until Rebata accepts other employment, whichever occurs first.
Payments made pursuant to this provision are
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subject to applicable tax withholding pursuant to Section 7 of this Agreement.
Payment shall be made by a check made payable to Xxxxxxxx X. Xxxxxx. Payments
shall only be made if Rebata executes this Agreement, and Rebata does not revoke
this Agreement pursuant to Section 4, below. Rebata acknowledges that these
payments include all monies due her in whatever form and for whatever reason
(specifically including any earned bonus, and all accrued vacation time) and are
in lieu of any other severance or termination payment to which she may be
entitled under any other plan, arrangement or agreement sponsored or maintained
by LendingTree providing severance or other employment termination benefits.
Total payments under this Agreement shall not exceed one hundred thousand
dollars and no cents ($100,000.00). Notwithstanding the foregoing limitation,
Rebata shall be entitled to receive up to $10,000.00 of outplacement services,
paid by LendingTree, from an outplacement organization approved by LendingTree.
2. Insurance. Because Rebata's employment with the Company shall be
terminated as of the date referenced above, and such termination shall
constitute a "qualifying event" as defined by COBRA, Rebata shall have the right
to continue her health care coverage under the Company's group health insurance
plan in accordance with COBRA for a period of up to 18 months. If Rebata elects
to continue coverage under COBRA, then during the continuation period and for a
total of six months or until Rebata obtains other employment, whichever is
sooner, the Company shall continue to pay the portion of the health care
premiums that the Company was responsible for immediately before Rebata's
termination of employment. After that six month period expires or if Rebata
obtains other employment, whichever is sooner, in order to maintain COBRA
coverage Rebata shall be responsible for timely payment of the entire COBRA
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health care premium for the remainder of the COBRA continuation period, if any.
3. General Release. Rebata agrees for herself and her successors in
interest to release LendingTree from all claims, demands, and causes of action
of every kind that may exist as of the date of this Agreement, whether known or
unknown to Rebata, including but not limited to those arising out of Rebata's
employment with LendingTree or the termination of her employment, alleging the
breach of express or implied contract or covenant of good faith and fair
dealing, alleging retaliation or violation of public policy, based upon any
theory of unintentional, negligent, or intentional tort, or arising under Title
VII of the Civil Rights Act of 1964, as amended, the Fair Labor Standards Act,
the Age Discrimination in Employment Act, the Family and Medical Leave Act, the
Americans with Disabilities Act, the Employee Retirement Income Security Act of
1974, as amended, or any other federal, state or local law. Rebata further
agrees that if she attempts to avoid or set aside the terms of this general
release, or if LendingTree successfully asserts this general release as a
defense or bar to any claim asserted by Rebata, she shall be liable for the
costs and attorneys fees of LendingTree in defending such claims or asserting
such defense based on this general release.
LendingTree likewise agrees to release Rebata from all claims, demands,
and causes of action of every kind that may exist as of the date of this
Agreement, whether known or unknown to LendingTree.
4. Age Discrimination Release Notification. This Agreement includes a
release of all charges, claims, demands, and causes of action under the Age
Discrimination in Employment Act ("ADEA") and, therefore, pursuant to the
requirements of 29 U.S.C. ss.626(f), Rebata acknowledges that she has been
advised:
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(a) that this release includes, but is not limited to, all
claims under the ADEA arising up to and including the date of execution
of this Agreement;
(b) to consult with an attorney and/or other advisor of her
choosing concerning her rights and obligations under this Agreement;
(c) to fully consider this Agreement before executing it;
(d) that she has been given a period of twenty-one (21) days
to review and consider this Agreement, and that this period will expire
at the close of business on March 1, 2001. Rebata further understands
that if she desires to enter into this Agreement, she is to sign it
where indicated below, before a notary public, and deliver it to Xxxxx
Xxxx, Chief Financial Officer of LendingTree, before the close of
business on March 1, 2001. The Agreement will then become effective and
enforceable unless Rebata revokes it by following the procedures in
subparagraph (e) of this section. If Rebata does not sign this
Agreement and deliver it to Xxxxx Xxxx before the close of business on
March 1, 2001, this Agreement will not be effective or enforceable, and
Rebata will not receive the consideration provided by the Company that
supports this Agreement.
(e) that Rebata may revoke this Agreement within seven (7)
days after executing it. If the Agreement is revoked, this is to be
accomplished by delivering a written notice to Xxxxx Xxxx, Chief
Financial Officer of LendingTree. For this revocation to be effective,
that notice must be received no later than seven (7) days after the
date on which Rebata executes this Agreement. If Rebata revokes this
Agreement, it will not be effective or enforceable, and Rebata will
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not receive the consideration provided by the Company that supports
this Agreement.
5. No Further Claims. Rebata represents and warrants that she will not
at any time now or in the future file any complaints, charges or lawsuits
against LendingTree that may have been or could be made to, filed with, or
brought before any private or governmental agencies, commissions, or courts
regarding any claims, demands, allegations, or causes of action of any kind that
may exist as of the date of this Agreement, whether known or unknown to Rebata.
6. Confidentiality Agreement. Rebata agrees to keep the fact, amount,
and terms of this Agreement in strict confidence and not to disclose such
matters to any other person, organization, association, body, or entity, however
described, unless and only to the extent she has been authorized in writing by
LendingTree to make such disclosure or is compelled to do so by legal
requirement, judicial process, or direction of any court, governmental agency,
or commission. The only and express exception to this non-disclosure provision
is that Rebata may discuss this Agreement with her spouse, attorney, tax
advisor, and the applicable taxing authorities, provided that Rebata inform said
persons of this non-disclosure provision prior to any such disclosure and that
said persons agree to be bound by this non-disclosure provision.
7. Taxes. It is understood that LendingTree's payment pursuant to this
Agreement is subject to federal, state, or local taxation or withholding by
LendingTree.
8. Incentive Stock Options. Consistent with LendingTree's incentive
stock option plans and any stock option grant agreements between the Company and
Rebata, all of Rebata's unvested stock options shall be deemed terminated as of
February
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1, 2001. Rebata shall retain the right, for a period of ninety (90) days (which
period shall commence on February 1, 2001), to exercise all options that are
vested as of February 1, 2001. After the exhaustion of said ninety day period,
the right to exercise vested options shall terminate.
9. Letter of Reference. Should Rebata desire an employment reference
from LendingTree, Rebata agrees that any request for references will be directed
in writing to the Chief Financial Officer of LendingTree. Rebata agrees that a
letter of reference that contains the dates of her employment and the positions
held shall be a satisfactory reference. This Agreement does not affect the right
of LendingTree, its agents or employees, to respond to any inquiry concerning
Rebata's employment or impose any obligation on LendingTree other than
furnishing the above-referenced letter.
10. Severability. If any portion of this Agreement is void or deemed
unenforceable for any reason, the unenforceable portion shall be deemed severed
from the remaining portions of this Agreement, which shall otherwise remain in
full force.
11. Entire Agreement. Rebata acknowledges that she has been fully
advised to consult an attorney as to the terms and provisions of this Agreement.
Rebata acknowledges that in executing this Agreement she does not rely and has
not relied upon any representation or statement not set forth herein with regard
to the subject matter, basis or effect of this Agreement. Rebata represents that
she has had the opportunity to consult competent legal counsel of her own
choosing before signing this Agreement, has carefully read the Agreement, and
has been fully and fairly advised as to its terms. Rebata further represents and
warrants that she has been given adequate time to consider this Agreement before
executing it and that she executes this Agreement as her own free
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act and deed.
12. Governing Law. This Agreement shall be construed and enforced
according to the laws of the State of North Carolina, without regard to its
conflict of laws rules.
WHEREFORE, Rebata and LendingTree, by their signatures below,
acknowledge that there exist no other promises, representations or agreements
relating to this settlement, except as specifically set forth herein.
DATE:
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XXXXXXXX X. XXXXXX
DATE:
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LENDINGTREE, INC.
XXXXX X. XXXX, SENIOR VICE PRESIDENT
& CHIEF FINANCIAL OFFICER
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XXXXX XX XXXXX XXXXXXXX
XXXXXX XX XXXXXXXXXXX
Xx this ______ day of __________________, 2001, before me, a Notary
Public in and for said jurisdiction, personally appeared Xxxxxxxx X. Xxxxxx, to
me known to be the same person described in and who executed the within
instrument, who acknowledged the same to be her free act and deed.
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Notary Public
My Commission expires: ____________
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