AGREEMENT AND RELEASE OF CLAIMS
Exhibit
10.1
AGREEMENT
AND RELEASE OF CLAIMS
This
AGREEMENT AND RELEASE OF CLAIMS (hereinafter referred to as
“Agreement” or Release”) is entered this 4th day of October, 2007, by and
between Kesslering Corporation (“Employer” or “the Corporation”) and Xxxxx
Xxxxxx, (“Employee”). In consideration of the promises and
commitments made in this Release, including the payment of amounts in excess
of
amounts otherwise owed to Employee, and which are valued at greater than $10.00,
the sufficiency and fairness of which is hereby acknowledged, the Corporation
and Employee agree as follows:
ARTICLE
1: SEPARATION FROM EMPLOYMENT
1.1 Rights
and Obligations. Employee acknowledges that her employment with
the Corporation ended as of the end of business on September 28, 2007,
(“Separation Date”). As of the Separation Date the Employee’s rights
and obligations relating to employment, including any and all agreements
relating to employment or severance, were terminated other than as set forth
in
this Release. Employee releases and waives any and all rights or
claims that Employee has or may have against the Corporation other than the
rights specifically reserved in this Release. This Release
acknowledges that other than as specified herein, Employee has been paid all
wages and compensation of any kind owed to Employee by the
Corporation; that Employee has received all benefits owed to
Employee; and that the Corporation has made all contributions, reimbursements
or
payments owed to Employee or on Employee’s behalf.
1.2 Continuing
Terms of Employment Agreement. The Parties acknowledge the
existence of the Employment Agreement entered into on January 1, 2007 (the
“Employment Agreement”). Employee agrees that Employer has satisfied
all of its obligations under the Employment Agreement, and that Employee has
been relieved of all duties relating to Paragraph 2 (Duties and Devotion of
Efforts) as Employee has separated from employment. The Parties have
terminated Employee’s employment by mutual agreement and are both relieved of
all obligations under Paragraph 5 (Term and Termination). However,
the Parties agree that all provisions that were intended to extend beyond the
date of separation from employment shall continue in full force and effect,
other than Paragraph 7 (Indemnity), and shall be incorporated into this
Agreement as if they were specifically restated herein. Without
limiting the foregoing, the Parties specifically acknowledge that each of the
following provisions of the Employment Agreement was clearly intended to and
shall remain in effect beyond the Separation Date, and each is hereby
incorporated into this Agreement: Paragraph 8: Restrictive
Covenants; Paragraph 9(a): Florida Law and Venue; 9(o): Attorneys’
Fees and Costs; and 9(p) (Waiver of Jury Trial). Notwithstanding the
foregoing, Employee will not be prohibited from providing services to
Searchlight Advisors, LLC.
1.3 Non-Disparagement. The
parties each agree that they will not directly or indirectly make any negative
or disparaging remarks or communications about or relating to the other party
hereto, their operations, their business, their officers, Board members, their
employees, their independent contractors or affiliates or other Released Parties
(as defined herein). Employee will not take any action to harm the
Corporation or the Released Parties in any manner. This obligation
shall remain in effect indefinitely. Employee specifically agrees
that she will not directly or indirectly contact the press, will not make any
statements for public dissemination, and will not respond to inquiries from
the
press regarding the Released Parties.
1.4 Access
or Use of Property. As of the Separation Date, Employee has no
right to access in person or by information systems any of the Corporation
or
the Released Parties’ property, including their offices, email, or other
information systems without express advance approval by the Corporation’s CEO or
designee. Employee agrees that if she is granted access to the
Corporation’s property, she will exercise reasonable care in such access, will
use such access only for the expressed purpose, and will take no action to
cause
harm to the property or the Corporation.
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1.5 Post-Employment
Cooperation. Following the Separation Date, Employee agrees to be
available within 48 hours of receiving notice of such to cooperate with and
consult with Employer upon request regarding matters about which Employee has
or
may have knowledge. Such cooperation would include responding to
phone calls, answering questions, attending meetings, and participating in
good
faith as requested in the review of matters relating to the Released Parties,
including the defense of litigation. In the event any such duties
require Employee to travel from Vero Beach, Florida at the direction of
Employer, Employer shall reimburse such travel costs.
1.6 Final
Report and Return of Information. Employee hereby agrees to
provide a post-employment report (“Report”) to Xxxxxxx X. Xxxxxxxxxxx within 5
days of her Separation Date. Employee’s Report shall contain (i) a
summary of all ongoing matters for which Employee had responsibility during
employment; (ii) a detailed communication containing all information in
Employee’s possession relating to the Released Parties, which has not already
been fully communicated to Xxxxxxx X. Xxxxxxxxxxx or Xxxxxxxx X. Xxxxxx; (iii)
a
detailed description of all arrangements with third parties to provide
accounting services to the Company since the starting date of Employee’s
employment with Employer, including copies of all contracts for services or
engagement letters for all accounting and financial consultants authorized
by
Employee to do work for the Corporation in any and all capacity; (iv) a detailed
listing of all bank accounts of the Corporation and its subsidiary entities
and
(v) a status report detailing recent action taken and action to be taken
regarding all open matters for which Employee had
responsibility. Employee shall provide additional details upon
request.
1.7 Warranty. Employee
hereby warrants that she has performed her position loyally, ethically, in
good
faith, and in compliance with law and that she has not engaged in any conflicts
of interest, has not committed fraud, and has not received or been promised
any
kickbacks, payments, remuneration or benefit from any person or entity doing
business with, affiliated with, or related in any way to her employer, during
her employment other than her compensation paid by her employer or its parent
or
subsidiary entities, which was approved by Xxxxxxxx X. Xxxxxx
personally. Employee acknowledges that this Warranty is material to
Corporation’s agreement herein and that Employee would not be released from the
Indemnification provision of her employment agreement and would not be paid
any
Severance if not for providing this truthful
Warranty. Misrepresentation herein shall void Employer’s release of
Employee, require repayment of the Severance by Employee, and shall permit
Employer to utilize the Indemnification provision contained in the Employment
Agreement. Employer acknowledges that Employee has disclosed her
provision of services to Searchlight Advisors, LLC and Employer hereby consents
to Employee’s continued provision of services to Searchlight Advisors,
LLC.
1.8 Return
of Property. Employee hereby promises that she has returned any
and all property of the Corporation or Released Parties, including all copies
of
such property (regardless of how such information was stored), in her possession
or control to the Corporation or has arranged such delivery with the CEO or
her
designee.
.
ARTICLE
2: RELEASED PARTIES
2.1 By
Employee. The Parties intend Employee’s Release to benefit and
release (a) the Employer and its subsidiaries and parent company, if
any, (b) all entities and individuals which are referred to herein as
“Business Affiliates” of the Company, which shall include Kesslering Holding
Corporation, Xxxxxxxxxx Corporation; (c) any other corporation or
entity which is or will be controlled by, or under the control of the Company,
or any of the Business Affiliates, (d) all of their respective heirs,
successors, administrators, assigns, and subsidiaries, (e) all of their
respective officers, directors, agents, attorneys, and employees, and
(f) all of their respective heirs, successors, administrators, assigns (which
will all be referred to collectively as “Released Parties”).
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2.2 By
Employer. The Parties intend Employer’s Release to benefit
Employee.
ARTICLE
3: RELEASE OF ALL CLAIMS
3.1 General
Release by Employee. This Release is binding on Employee,
Employee’s family, heirs, representatives, successors, and assigns, and prevents
them from recovering any relief, including back pay, front pay, paid time off,
reinstatement, or any other damages, costs or attorneys' fees as a result of
any
charge, lawsuit, or proceeding brought by Employee or on her or her behalf,
against any of the Released Parties for any reason other than enforcement of
this Release.
Employee
agrees and understands that Employee is receiving in exchange for her promises
contained in this Agreement, something of value to Employee, which is referred
to as “consideration.” Employee has determined that this is a fair
exchange. In order for Employee to receive that consideration, which
Employee desires, Employee knowingly and voluntarily hereby releases the
Released Parties from every possible claim that Employee can legally
waive. This waiver should be construed as broadly as possible to
release all possible claims, debts, obligations, demands, judgments, or causes
of action of any kind whatsoever, whether known or unknown, that may be waived
other than workers’ compensation claims filed during
employment. However, for additional clarity, the following is a list
of some of the types of claims included in this Release: all claims in tort
(for
negligent or intentional acts), in contract (whether verbal or written), by
statute, for constitutional violation, for wrongful discharge, discrimination,
harassment, retaliation, or claims of personal injury, for compensatory,
punitive, or other damages, expenses, reimbursements, or costs of any kind,
including but not limited to, any and all claims, demands, rights, and/or causes
of action arising out of Employee’s relationship with the Corporation, or
relating to purported employment discrimination or violations of civil rights,
including, but not limited to, those arising under Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Civil Rights Acts of 1866 and/or
1871, the Family and Medical Leave Act (“FMLA”), the Age Discrimination in
Employment Act of 1967 (“ADEA”), the Older Workers Benefit Protection Act, the
Americans with Disabilities Act of 1990 (“ADA”), the Florida Whistle Blowers
Act, Executive Order 11246, the Equal Pay Act of 1963, the Rehabilitation Act
of
1973, the Employee Retirement Income Security Act of 1974 (“ERISA”), or other
benefits laws, or any other applicable federal, state or local employment
discrimination statute or ordinance or any other claim, whether statutory or
based on common law, arising by reason of Employee’s employment with the
Corporation or the Separation from that employment or circumstances related
thereto or by reason of any other matters, cause, or thing whatsoever, from
the
beginning of time to the signing of this Release, and specifically releases
any
claims that the Released Parties should re-hire Employee at any time in the
future.
3.2 Age
Discrimination Waiver By Employee. In exchange for payments
described in this Release, a reasonable portion of which are allocated to this
waiver, Employee hereby knowingly and voluntarily waives and releases all rights
and claims, known and unknown, arising under the Age Discrimination in
Employment Act of 1967, 290 U.S.C. §621-634, as amended, and the Older Workers
Benefit Protection Act, which Employee might otherwise have had against any
and
all of the Released Parties up to and including the date of signing this
Release.
3.3 General
Release by Corporation. This Release is binding on Corporation
and its representatives, successors, and assigns, and prevents them from
recovering any relief, as a result of any lawsuit or proceeding brought by
Corporation or its subsidiary or parent entities, or on their behalf, against
Employee for any reason other than enforcement of this
Release. Corporation knowingly and voluntarily hereby releases
Employee from every possible claim that Corporation can legally waive; this
waiver should be construed as broadly as possible to release all possible
claims, debts, obligations, demands, judgments, or causes of action of any
kind
whatsoever, whether known or unknown, that may be waived other than enforcement
of this Release.
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ARTICLE
4: CONFIDENTIALITY
4.1 Confidentiality. Employee
agrees that the terms of this Release are confidential, and Employee agrees
not
to divulge such terms other than to her accountants, attorneys, and the Internal
Revenue Service. The foregoing covenant not to disclose shall be
binding upon Employee, Employee’s attorneys, and those to whom Employee may
disclose the terms of this Release. Employee shall secure from those
to whom disclosure of this Release is made their assent to be bound by this
nondisclosure covenant, and Employee shall be jointly responsible for violation
of the covenants contained herein by any family member. Employee’s
signature on this Release indicates Employee’s agreement that this provision is
an important and material element of the Release and is given in fair exchange
for the Corporation’s payment to Employee under this Agreement. No
action other than a writing signed by the Corporation CEO shall be taken as
a
waiver of the Corporation’s right to insist that Employee, Employee’s family,
and Employee’s counsel (if any) abide by the nondisclosure terms of this
Release. If the law requires Employee to make additional disclosures
of confidential information, Employee shall provide the details of such legal
requirement(s) to the Corporation immediately and in advance of the disclosure
so that the Corporation may make any legal objections to the
disclosure.
ARTICLE
5: PAYMENTS
5.1 Payments. In
further consideration of the foregoing Release, the Corporation agrees to pay
as
additional consideration and severance to Employee an amount equal to Employee’s
base pay which Employee would have received if Employee had been employed and
worked her scheduled hours (“Severance Consideration Payment”) for a six month
period following the Separation Date, less ordinary payroll deductions
(“Severance Period”). Such payments shall be paid on the regular
payroll dates beginning on the first payroll date within 4 days of the Effective
Date and ending when paid in full. In the event that Employer
fails to make any scheduled Severance Consideration Payment, then Employee
shall
deliver written notice to Employer of such failure. In the event
Employer does not make the delinquent Severance Consideration Payment within
30
days following receipt of such written notice, then all remaining Severance
Consideration Payments shall accelerate and become immediately due and
payable. Employer shall provide continued group health insurance
coverage to Employee for the shorter of the period prior to Employee obtaining
group health insurance coverage from another employment or the period during
the
Severance Period prior to the date that all Severance Consideration Payments
have been made by Employer. Other than as set forth in this
Article, Employee agrees that she is not entitled to any payment or compensation
of any kind from Released Parties. The Released Parties have
satisfied all of their obligations owed to Employee. Employee agrees
that she is not entitled to any bonus, additional stock or options, or
additional compensation or payment, whether for compensation, paid time off,
other benefits, expense reimbursement, or otherwise. Employee shall
be entitled to retain any stock grants and options awarded prior to the
effective date hereof, pursuant to the terms of such stock and option
grants.
ARTICLE
6: EFFECT OF RELEASE
6.1 Employee
understands that she is not entitled to receive the benefit of this Release
if
Employee does not sign this Release or if she revokes the Release as described
herein. Employee understands that she may revoke this Release, within
seven (7) days of signing it. To be effective, the revocation must be
in writing and delivered by hand-delivery or as described below to Attention:
Xxxxxxx X. Xxxxxxxxxxx, CEO, Xxxxxxxxxx Holding Corporation, Suite 301, 0000
Xxxxxxxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000, within seven days of
signing it. If not hand delivered, the revocation must be
(i) Postmarked within seven (7) days of signing the Release, (ii)
Properly addressed as referenced above; (iii) Sent by certified mail,
return receipt requested; and (iv) a copy sent to Xxxxxxxx X. Xxxxxx, Esq.,
at
Xxxxxxxx, Xxxxxx et. al, 000 Xxxxx Xxxxxx Xxx. Xxxxxxxx, XX 00000. If
Employee revokes this Release, as outlined in this paragraph, the Release will
not be effective or enforceable and Employee will not be eligible to receive
any
payments or benefits provided by this Release. If Employee delivers a
fully executed Release as provided in this Release and does not revoke the
Release as provided herein, the Release will become effective on the 8th day following
delivery of the Release (the “Effective Date”).
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ARTICLE
7: REVIEW OF RELEASE
7.1 Consultation
with Counsel. Employee is advised to consult with an attorney
prior to signing this Release, and acknowledges that whether she does so is
her
choice.
7.2 Review
Period. Employee has been offered the opportunity to take up to
twenty-one days to consider this Release. Employee understands that a
signed original of this Release must be received by the Corporation before
5:00
p.m. on the twenty-second (22nd) day following her or her receipt of this
document in order for this Release to be effective. Employee has the
right to return the Release at any time before that deadline.
ARTICLE
8: AGREEMENT NOT TO XXX
8.1 Claims. Employee,
on her own behalf and on behalf of her family, heirs, representatives,
successors, and assigns, agrees that Employee will not ever bring any claim,
suit, arbitration, or mediation against any of the Released Parties for any
reason other than the enforcement of this Release. Nothing herein
prohibits Employee from complying with the law and cooperating with appropriate
authorities.
ARTICLE
9
MISCELLANEOUS
9.1 Survival. If
any provision of this Release were declared or determined by any court of
competent jurisdiction to be illegal, invalid, or unenforceable, the legality,
validity, and enforceability of the remaining parts, terms or provisions shall
not be effected thereby, and said illegal, unenforceable, or invalid part,
term
or provision, shall be deemed not to be part of this Release.
9.2 Duplicate
Originals. This Release may be executed in several counterparts,
each of which shall be deemed an original.
9.3 Headings. The
headings contained in this Release are for reference purposes only and are
in no
way intended to describe, interpret, define or limit the scope, extent or intent
of this Release or any provisions hereof.
9.4 Representations. In
determining whether to execute this Release, Employee has not relied on any
representations by the Corporation or the Released Parties other than the
written representations contained in the Release.
9.5 Effectuating
Release and Removal. Employee hereby agrees to reasonably
cooperate and to execute any additional documents that may reasonably be
required to facilitate or effectuate this agreement.
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9.6 Review
and Understanding. Employee acknowledges that Employee received
this Release on or before the end of business on September 28, 2007 and has
read
its terms and understands the terms of this Release. This date shall
be considered the delivery date of the Release even if the Parties negotiate
revisions to the Release.
9.7 For
Settlement Purposes. The Release is entered into in full accord
and satisfaction and compromise of the claims or potential claims of Employee
and is not in any way to be construed as an admission of any wrongdoing or
liability on the part of the Corporation or other Released Parties or an
admission that the Corporation or other Released Parties violated any law or
breached any agreement. The Corporation expressly denies any
liability or violation and intends merely to avoid the costs associated with
any
potential litigation. Further, even if there were a determination
that the Corporation or Released Parties had violated any law or regulation,
or
breached any agreement, Employee would be entitled to no additional
amount.
9.8 Breach. In
the event Employee violates this Release by filing any claim against any of
the
Released Parties or receiving any compensation relating to such a claim, the
Corporation shall maintain all rights and remedies relating to this Release
and
as provided in law or equity.
9.9 Voluntary. Employee
agrees that she executed this Release voluntarily and without duress, coercion,
or undue influence.
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9.10
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Binding. This
Release is binding on the parties hereto, their heirs, administrators,
executors, successors and assigns.
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9.11 Entire
Agreement. This Release contains the entire agreement between
Employee and the Released Parties. Any prior agreements or
understandings are replaced by this Agreement. By signing this
Release, Employee acknowledges that Employee has reviewed, understands, and
agrees with each of the terms of this Release and hereby effects the
Release.
| WITNESS AS TO CORPORATION | BY CORPORATION | ||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxxxxx | |
| As Its: CEO | |||
| Date: October 5, 2007 | |||
| WITNESS AS TO EMPLOYEE | BY EMPLOYEE | ||
|
|
By:
|
/s/ Xxxxx Xxxxxx | |
| Signature | |||
| Date: October 5, 2007 | |||
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