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EXHIBIT 10.12
TERMINATION AGREEMENT AND RELEASE
THIS TERMINATION AGREEMENT AND RELEASE is entered into by and between
XXXXXXX XXXX ("XXXX") who resides at 0 Xxxxxxx Xxxxx, Xxxx Xxxxxxxxx, XX 00000
and STAFF BUILDERS, INC., a Delaware corporation, with its principal place of
business at 0000 Xxxxxx Xxxxxx Xxx Xxxx, 00000 ("STAFF BUILDERS") (collectively
the "Parties") on the date set forth below.
WHEREAS the Parties have entered into an Employment Agreement
("Employment Agreement") executed as of March 1, 1998, and
WHEREAS XXXX is entering into a new Employment Agreement with Tender
Loving Care Health Care Services, Inc. of even date herewith; and
WHEREAS the Parties now desire to terminate the Employment Agreement.
NOW THEREFORE, in consideration of the mutual promises set forth
herein, the parties hereto agree as follows:
1. The Parties agree that effective at the close of business October
20, 1999, XXXX'X employment with STAFF BUILDERS shall cease and the Employment
Agreement shall be terminated. As of October 21, 1999, XXXX shall have no
duties, responsibilities or authority on behalf of STAFF BUILDERS, nor shall he
otherwise act as an employee of STAFF BUILDERS. XXXX shall provide STAFF
BUILDERS with a letter of resignation dated October 20, 1999, attached hereto as
Exhibit A.
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2. In consideration for his compliance with all of the provisions of
this Termination Agreement And Release, Staff Builders will use its best efforts
to have XXXX'X name removed from all company forms and documents.
3. XXXX understands that there are various state and federal laws that
prohibit employment discrimination on the basis of age, race, sex, religion,
national origin, martial status and disability and that these laws are enforced
by the courts and various government agencies. By signing this Termination
Agreement And Release, XXXX intends to give up any rights he may have under
these laws or any other laws with respect to his employment or the termination
of his employment with or by STAFF BUILDERS and acknowledges that STAFF BUILDERS
has not (a) discriminated against him; (b) breached any express or implied
contract with him; or (c) otherwise acted unlawfully towards him.
4. As a material inducement to the Parties to enter into this
Termination Agreement And Release, XXXX covenants not to xxx and hereby
irrevocably and unconditionally releases, acquits and forever discharges STAFF
BUILDERS, and all other affiliated, subsidiary or related organizations,
parents, companies or divisions, and their respective present, former or future
officers, directors, shareholders, agents, employees, representatives,
consultants, attorneys, successors, and assigns, and all STAFF BUILDERS'
employee benefit plans and the current and former Trustees of all of them
(collectively the "Releasees"), of and from any claim, right, demand, charge,
complaint, action, cause of action, obligation, or liability of any and every
kind based on any federal, state, or local law, statute or regulation, whether
known or unknown, suspected or unsuspected, fixed or contingent, whether in tort
or in contract or by statute, which arises or results from any event, action or
inaction occurring prior to the execution of this Termination Agreement And
Release, as well as any and all claims arising out of or relating to any alleged
tortious, wrongful, discriminatory, defamatory, improper or unlawful act or
omission of STAFF BUILDERS, including without limitation, claims alleging a
violation of the Age Discrimination In Employment Action of 1967, as amended 29
U.S.C. ss. 621 et seq. The Americans with Disabilities Act of 1990, 42 U.S.C.
ss. 12101 et seq., which arose prior to the
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execution of this Termination Agreement And Release, or which might exist under
the qui tam provisions of the False Claims Act, 31 U.S.C. ss. 3730. XXXX
represents that he has received complete satisfaction of any and all claims,
whether known, suspected or unknown, that he may have or have had against any of
the Releasees as of the date of this Termination Agreement And Release, and he
hereby waives any and all relief for such claims not explicitly provided for
herein.
5. XXXX affirms that he is not aware of any outstanding administrative
or judicial claims, charges, lawsuits or proceedings of any kind against any of
the Releasees to which he is a party or which were filed on his behalf, and
promises not to commence any proceeding or action against STAFF BUILDERS except
to enforce this Termination Agreement And Release. XXXX further agrees not only
to release and discharge the Releasees of and from any and all claims which he
could make on his own behalf, but also those which may have been or may be made
by any other person or organization on his behalf as of the date of this
Termination Agreement And Release.
6. XXXX acknowledges that as a result of his employment by STAFF
BUILDERS, he has had access to confidential, proprietary business information
belonging to STAFF BUILDERS, as those terms are defined in the Employment
Agreement, and hereby agrees not to use or disclose any such information
personally or for the benefit of others. XXXX also agrees (1) not to disclose to
anyone any such confidential and proprietary information; and (2) to comply with
any and all provisions of his Employment Agreement that, by their terms, survive
the termination of his employment. On the date he signs this Termination
Agreement And Release, XXXX further promises and agrees to return to STAFF
BUILDERS any and all documents or diskettes now in his possession which he
received, sent, generated or had access to in the course of his employment by
STAFF BUILDERS, together with any and all property of STAFF BUILDERS he has in
his possession.
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7. The waiver by any Party of a breach of any provision hereof shall
not operate or be construed as a waiver of any subsequent breach by any Party.
8. This Termination Agreement And Release and the exhibits attached
hereto contain the full agreement between XXXX and STAFF BUILDERS, and may not
be modified, altered or changed except upon the express prior written consent of
both XXXX and STAFF BUILDERS.
9. XXXX affirms that he has been given at least 21 days to consider
this Termination Agreement And Release and that he has voluntarily chosen not to
wait 21 days to execute this Termination Agreement And Release. His choice to
execute this Termination Agreement And Release was knowing and voluntary and
made after consultation with his counsel. XXXX understands that he may revoke
his agreement hereto by so notifying STAFF BUILDERS in writing within seven (7)
days after he signs this Termination Agreement And Release.
10. XXXX acknowledges and agrees that: (a) no promise or inducement for
this Termination Agreement And Release has been made by STAFF BUILDERS, except
as set forth in this Termination Agreement And Release; (b) this Termination
Agreement And Release is executed by him without reliance upon any statement or
representation by STAFF BUILDERS other than as set forth herein; (c) he fully
understands this Termination Agreement And Release and the meaning of its
provisions; (d) he fully understands that he is giving up important rights set
forth herein; (e) he is legally competent to enter into this Termination
Agreement And Release and to accept full responsibility therefor; (f) he
consulted with his counsel before entering into this Termination Agreement And
Release; and (g) he voluntarily enters into this Termination Agreement And
Release.
11. This Termination Agreement And Release may be executed in
counterparts, and, when each party has signed and delivered at lease one such
counterpart, each counterpart shall be
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deemed an original and taken together, shall constitute one and the same
agreement, which shall be binding and effective to all parties.
12. This Termination Agreement And Release shall be construed in
accordance with the laws of the State of New York. Any action or proceeding
relating to or arising from this Termination Agreement And Release or any other
dispute between the parties hereto shall be brought solely in the Supreme Court
of the State of New York, Nassau County. XXXX hereby consents to personal
jurisdiction and venue in New York State Supreme Court, County of Nassau for any
such action or proceeding. The parties expressly waive their right to trial by
jury in any action or proceeding against the other and consent to trial before a
judge.
13. This Termination Agreement And Release is the product of
negotiation and mutual discussion. The rule of construction that an agreement
may be construed against its drafter shall not apply in any action or proceeding
arising from or based, in whole or in part, on this Termination Agreement And
Release.
14. XXXX ACKNOWLEDGES AND AGREES THAT HE HAS READ AND FULLY UNDERSTANDS
THE MEANING OF EACH PROVISION OF THIS TERMINATION AGREEMENT AND RELEASE, THAT HE
HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL CONCERNING IT, AND THAT HE
FREELY AND VOLUNTARILY ENTERS INTO IT.
IN WITNESS WHEREOF, the Parties have hereunto set their hand on the
dates indicated below.
STAFF BUILDERS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Date: October 20, 1999
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/s/ Xxxxxxx Xxxx
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XXXXXXX XXXX
Date: October 20, 1999
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STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
I, _____________________________ do hereby certify that XXXXXXX XXXX,
personally known to me to be the same person whose name is subscribed to the
foregoing instrument, appeared before me this day in person and acknowledged
that he signed and delivered the said instrument as his free and voluntary act,
for the uses and purposes therein set forth.
Given under my hand and official seal this __ day of October, 1999.
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Notary Public
My Commission Expires:
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