PAGE NUMBERS REFER TO PAPER DOCUMENT ONLY) RELEASE AND SETTLEMENT AGREEMENT
(PAGE
NUMBERS REFER TO PAPER DOCUMENT ONLY)
EXHIBIT
10.68
THIS RELEASE AND SETTLEMENT AGREEMENT
by and between CONSUMER PROGRAMS INCORPORATED (the “Corporation”) and XXXX X.
XXXXXXXX (the “Executive”) is entered into as of this 31st day of December
2008.
WHEREAS, the Corporation and the
Executive entered into an Employment Agreement dated as of April 8, 2002, as
amended by that certain Amendment to Exhibit C dated as
of October 1, 2003, the Second Amendment to Employment
Agreement dated as of July 3, 2007 and the Second Amendment to Exhibit C dated
as of April 10, 2008 (as amended, the “Employment Agreement”); and
WHEREAS, Subsections 4(a)(relating to
death benefits), 4(b)(relating to disability benefits), 4(c)(relating to
supplemental retirement benefits), and 4(d)(relating to survivability of death
and supplemental retirement benefits) of Exhibit C to the Employment
Agreement provide Executive with certain Death Benefits, Disability Benefits and
Supplemental Retirement Benefits (collectively referred to herein as the “SERP
Benefits”) that provides for monthly payments to Executive or his beneficiaries
for a period of at least two hundred forty (240) months in the event of death or
retirement and for disability payments until the earlier of death or Executive
reaches age 65 if Executive’s employment terminates as a result of disability;
and
WHEREAS,
Executive is 100% vested in his SERP Benefits; and
WHEREAS,
the Corporation and the Executive have agreed to a lump sum payment of the SERP
Benefits at a negotiated discount in exchange for Executive’s release of the
Corporation from all future obligations to pay Executive SERP Benefits;
and
WHEREAS,
Executive resigned his employment with the Corporation as of April 18,
2008.
NOW, THEREFORE, in consideration of the
covenants set forth herein and for other good and valuable consideration, the
Corporation and Executive hereby agree as follows:
1. In consideration of the Corporation’s payment to Executive of the
gross amount of Four Hundred Thousand Dollars ($400,000) (the “Accelerated
Payment”), between January 5, 2009 and January 9, 2009, Subsections 4(a)
relating to death benefits, 4(b) relating to disability benefits, 4(c) relating
to supplemental retirement benefits and 4(d) relating to survivability of death
and supplemental retirement benefits, of Exhibit to the Employment Agreement are
hereby satisfied in their entirety and fully discharged. Executive and the
Corporation further agree that the Accelerated Payment is being made pursuant to
the transitional rules relating to Code Section 409A, as set out in Internal
Revenue Service Notice 2007-86.
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2. In consideration of the
payment made pursuant to Section 1 of this Agreement, Executive, on his own
behalf and on behalf of his heirs and legal representatives, does hereby release
the Corporation, its affiliated corporations, and its respective directors,
officers, employees and agents of and from any and all claims and causes of
action for money or other damages or relief of any kind whatsoever from the
Corporation, arising directly or indirectly out of the Employment Agreement,
including the SERP benefits.
3. Executive acknowledges and agrees that
upon his receipt of the payment described in Section 1 of this Agreement for
settlement of his SERP Benefits, all obligations of the Corporation due and
owing to him under Employment Agreement or otherwise relating to his employment
by the Corporation have been satisfied and that he has no other claim relating
to or arising from his employment with the Corporation; provided, however, that
Executive shall not be deemed to waive any of his rights with respect to benefit
plans of the Corporation in which he is or has been a participant, including
without limitation, medical, vision, dental, disability and life insurance
benefit plans, the 401(k) plan and the retirement
plan.
4. Executive hereby
acknowledges that he has read this release and has been advised to consult an
attorney with respect to the terms hereof, and that he fully understands and
voluntarily accepts such terms.
5. Executive agrees and
acknowledges that the Accelerated Payment shall be net of any taxes that the
Corporation is required to withhold thereon, including but not limited to
federal and state income and employment taxes.
6. This Agreement shall be
governed and construed in accordance with the substantive laws of the State of
Missouri.
REMAINDER
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IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date first written above.
CONSUMER PROGRAMS
INCORPORATED
By:/s/Xxxxxx Xxxxxxx
______________________________________
Renatdo Xxxxxxx
Its: Chief Executive Officer,
President
______________________________________
the
“Corporation”
/s/Xxxx X. Xxxxxxxx
____________________________________
Executive
