SEPARATION ANDRELEASE OF CLAIMS AGREEMENT
SEPARATION
ANDRELEASE OF CLAIMS AGREEMENT
THIS
SEPARATION AND RELEASE OF CLAIMS (“Agreement”) is made between XXXXXXX XXXXXXX
(“Xxxxxxx”) and BRANDPARTNERS GROUP, INC. and all of its subsidiaries and
affiliated companies (collectively hereafter “Brand” or “the Company”) and shall
become effective on the Effective Date as set forth herein.
RECITALS
WHEREAS,
Xxxxxxx has been employed by Brand as Chief Financial Officer pursuant to an
Employment Agreement, dated as of June 30, 2005 (the “Employment Agreement”),
and the parties hereto desire to end that relationship, and to settle, fully,
finally and amicably, all claims against each other, including, but not limited
to, any claims related to the employment of Xxxxxxx and the termination of
that
employment and the Employment Agreement.
NOW,
THEREFORE, in order to provide said benefits and in consideration of the mutual
promises, covenants and representations set forth below and other good and
valuable consideration, the parties agree as follows:
| 1. |
Relinquishment
of Positions/Employment
|
Pursuant
to this Agreement, Xxxxxxx agrees to resign, effective as of March 1, 2007,
her
position as Chief Financial Officer of the Company and any other position she
holds as an officer or employee from any subsidiary or affiliated company
(“Resignation Date”).
| 2. |
Payment
of Good and Valuable Consideration
|
a. On
the
next prescribed payment date of the Company following her Resignation Date,
Xxxxxxx shall be paid her final paycheck in the amount of $14,296.92, which
constitutes her regular pay as an employee through March 1, 2007. Payments
under
this paragraph shall be less applicable taxes.
b. Pursuant
to the terms of her Employment Agreement that is to be terminated per the terms
of this Agreement, Xxxxxxx will receive the sum of six (6) months compensation
as severance payments (the “Severance”). The Severance will be payable over a
period of six (6) months in accordance with the Company’s regular payroll
practices with applicable withholding.
c. The
Company will also pay on behalf of Xxxxxxx the cost of COBRA payments (based
on
the applicable percentage previously paid by Company on behalf of Xxxxxxx for
health insurance while an employee) for a period of up to twelve (12) months
after her Resignation Date. Xxxxxxx agrees that should she become eligible
for
health insurance through a new employer (“New Plan”) during the twelve (12)
month period, that she will promptly notify the Company and the Company’s
obligation to make COBRA payments will end with Xxxxxxx’x eligibility to
participate under the New Plan.
x. Xxxxxxx
shall not be prevented from exercising any vested options granted to her
pursuant to the Company’s stock option plans subsequent to the Resignation Date.
| 3. |
Indemnification
Against Claims
|
Except
in
cases of fraud or gross negligence, Brand agrees to indemnify and hold Xxxxxxx
harmless from any liability, claims, demands, costs, expenses and attorneys’
fees incurred by her as a result of any actions against her in the course of
her
employment as an executive officer to the extent other executive officers would
be so indemnified pursuant to applicable law.
| 4. |
Non-Disclosure
of Trade Secrets and Confidential
Information
|
Xxxxxxx
understands and agrees that in the course of employment with Brand she has
acquired confidential information and trade secrets concerning the operations
of
Brand and its future plans and methods of doing business, which information
Xxxxxxx understands and agrees would be damaging to Brand if disclosed to a
competitor or made available to any other person or corporations. Xxxxxxx
understands and agrees that such information either has been developed by her
or
divulged to her in confidence, and she understands and agrees that she will
keep
all such information secret and confidential unless she is required to disclose
same as a result of a lawful subpoena or court order at which time Xxxxxxx
will
immediately notify the Company prior to releasing any information. Furthermore,
Xxxxxxx agrees that on or before the Effective Date of this Agreement, she
will
turn over to Brand all Company confidential files, records, and other documents.
In addition, Xxxxxxx will return all property in her possession owned by
Brand.
| 5. |
Non-Solicitation
|
Xxxxxxx
further agrees that she will not solicit or participate or assist in any way
in
the solicitation of any person in management, professional or technical
positions at Brand for employment by any other company. However, Xxxxxxx will
not violate this provision if said employee pursues a position with Xxxxxxx’x
future employer without any encouragement or involvement direct or indirect
of
Xxxxxxx.
| 6. |
No
Other Claims
|
Xxxxxxx
represents and warrants that she has not filed against Brand or any of its
representatives, any claim, complaint, charge or suit, with any federal, state
or other agency, court, board, office or other forum or entity, including
without limitation, any application for workers compensation benefits.
| 7. |
General
Release
|
a. As
a
material inducement to Brand to enter into this Agreement, Xxxxxxx, on behalf
of
herself and her heirs, executors, administrators, successors and assigns, does
hereby irrevocably and unconditionally release, acquit and forever discharge
Brand, and its divisions, subsidiaries, affiliates and all owners, stockholders,
predecessors, successors, assigns, agents, directors, officers, employees,
representatives, and attorneys, acting by, through, under or in concert with
Brand or any parent, subsidiary or related entity, from any and all charges,
complaints, grievances, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses (including attorneys’ fees and costs actually
incurred), of any nature whatsoever, known or unknown, suspected or unsuspected,
joint or several, which Xxxxxxx has had or may hereafter claim to have had,
against Brand by reason of any matter, act, omission, cause or event whatever
from the beginning of time to the Resignation Date (“Claims”); other than those
obligations set forth in this Agreement.
This
release and waiver of Claims specifically includes, but without limiting the
foregoing general terms, the following: (1) all Claims arising from or
relating in any way to any act or failure to act by any employee of Brand,
(2) all Claims arising from or relating in any way to the employment
relationship of Xxxxxxx with Brand and/or the termination thereof, including
any
claims which have been asserted or could have been asserted against Brand,
together with (3) any and all Claims which might have been asserted by
Xxxxxxx in any suit, claim, or charge, for or on account of any matter or things
whatsoever that has occurred up to and including the date of this Agreement,
under any and all laws, statutes, orders, regulations, or any other claim of
right(s), including without limitation, Title VII of the Civil Rights Act
of 1964, as amended, the Age Discrimination in Employment Act of 1967 (“ADEA”)
(as set forth more fully in Section 22 of this Agreement), the Labor Code of
the
State of New Hampshire or any Claim in contract or tort.
b. As
a
material inducement to Xxxxxxx to enter into this Agreement, except in cases
of
fraud, gross negligence or criminal actions, Brand, and its divisions,
subsidiaries, affiliates and all predecessors, successors, assigns and agents
do
hereby irrevocably and unconditionally release, acquit and forever discharge
Xxxxxxx, from any and all charges, complaints, grievances, claims, liabilities,
obligations, promises, agreements, controversies, damages, actions, causes
of
action, suits, rights, demands, costs, losses, debts and expenses (including
attorneys’ fees and costs actually incurred), of any nature whatsoever, known or
unknown, suspected or unsuspected, joint or several, which Brand has had or
may
hereafter claim to have had, against Xxxxxxx by reason of any matter, act,
omission, cause or event whatever from the beginning of time to the Resignation
Date (“Claims”); other than those obligations set forth in this
Agreement.
| 8. |
Release
of Unknown or Unsuspected Claims
|
For
the
purpose of implementing a full and complete release and discharge of the parties
hereto, Xxxxxxx expressly acknowledges that this Agreement, except in instances
of fraud, gross negligence or criminal conduct, is intended to include in its
effect, without limitation, all Claims which the parties have against one
another but do not know or suspect to exist in their favor at the time of
execution hereof, which if known or suspected by them would materially affect
their decision to execute this release.
| 9. |
Future
Audits, Litigation or Anticipated
Litigation
|
Xxxxxxx
agrees that she shall make herself reasonably available to the Company and
its
counsel to assist in, cooperate with any Audits of the Company by any taxing
authorities as well as cooperate or otherwise testify in connection with any
litigation where her participation or assistance is needed or required by
law.
| 10. |
Nondisparagement
|
Xxxxxxx
agrees that she will not disparage Brand, and its officers, directors or
employees. Brand’s officers and directors agree that they will not disparage
Xxxxxxx.
3
| 11. |
Liquidated
Damages and Other Relief
|
Xxxxxxx
agrees that Brand would be irreparably harmed by any violation of paragraphs
4,
5, 9 and 10 of this Agreement and that, therefore, Brand shall be entitled
to
liquidated damages of Fifty Thousand Dollars ($50,000.00) and to an injunction
prohibiting her from any violation of paragraphs 4, 5 9 and 10 of this
Agreement.
Xxxxxxx
agrees that any dispute, controversy or claim between the parties arising out
of
or relating to this Agreement, or any breach or asserted breach thereof, shall
be determined and settled by arbitration in accordance with the rules for
dispute resolution of the American Arbitration Association in effect at the
time
the arbitration commences. The prevailing party in such arbitration shall be
entitled to its reasonable costs and expenses (including reasonable attorneys’
fees) in such arbitration as part of the award. Judgment on the award may be
entered in any court having jurisdiction thereof, and the parties specifically
reserve all rights to appeal such judgment as if it were rendered in a
court-of-law. Notwithstanding the foregoing, in the event of any default by
Brand in payment under this Agreement which shall remain uncured for a period
of
ten (10) days, on written notice of default to Brand, Xxxxxxx shall have the
right to enforce her claims in a court of competent jurisdiction for payments
under the Agreement giving credit to amounts previously received under the
Agreement.
| 12. |
Press
Release and/or Disclosure Reports
|
Xxxxxxx
recognizes that the Company is required to file a form 8-K with the United
States Securities and Exchange Commission in connection with the cessation
of
her employment and consents to the filing of same.
In
the
event the Company deems the issuance of a press release necessary to comply
with
applicable securities laws, Xxxxxxx will be provided a copy of the proposed
press release to review and to consent to.
Xxxxxxx
will not unreasonably withhold her consent to the filing or issuance of either
the Form 8-K or Press Release.
| 13. |
Binding
Agreement
|
This
Agreement shall be binding upon Xxxxxxx and Brand and their respective heirs,
administrators, representatives, executors, successors and assigns and shall
inure to the benefit of the parties hereto and their representatives, and each
of them, and to their heirs, administrators, representatives, executors,
successors and assigns.
| 14. |
Attorney’s
Fees
|
Each
party hereto will bear its own costs and attorneys’ fees incurred in achieving
the settlement and release of this matter. If a party commences an action
against the other to enforce or interpret the terms of this Agreement, or to
obtain a declaration of rights under this Agreement, the prevailing party shall
be entitled to all reasonable attorneys’ fees, costs and expenses incurred in
such action or any appeal or enforcement of such action.
4
| 15. |
Non-Reliance
|
Other
than as expressly set forth in this Agreement, Xxxxxxx and Brand represent
and
acknowledge that in executing this Agreement they did not rely upon and they
have not relied upon any representation nor statement made by any of the parties
hereto or by any of their agents, representatives or attorneys with regard
to
the subject matter, basis or effect of this Agreement or otherwise.
| 16. |
Agreement
Obligates, Extends and Inures
|
The
provisions of this Agreement shall be deemed to obligate, extend and inure
to
the benefit of the legal successors, assigns, transferees, grantees, heirs,
shareholders, officers and directors of each signatory party hereto, and to
those who may assume any or all of the above-described capacities subsequent
to
the execution and Resignation Date of this Agreement.
| 17. |
Non-Admission
of Liability
|
This
Agreement shall not in any way be construed as an admission by Brand that it
has
acted in any manner in violation of the common law or in violation of any
federal, state or local statute or regulation.
| 18. |
Method
of Execution
|
This
Agreement may be executed in counterparts and each counterpart shall be deemed
a
duplicate original.
| 19. |
Applicable
Law
|
This
Agreement is deemed to have been made and entered into in the State of New
Hampshire and shall in all respects be interpreted, enforced and governed under
the laws of said State. The language of all parts of this Agreement shall in
all
causes be construed as a whole, according to its fair meaning, and not strictly
for or against any of the parties. It is agreed that Brand has the option to
commence any proceeding in the state of New Hampshire or any other jurisdiction
in which Xxxxxxx resides.
| 20. |
Severability
|
The
provisions of this Agreement are severable, and should any provision of this
Agreement be declared or be determined by any arbitrator or court to be illegal
or invalid, any such provision shall be stricken, and the validity of the
remaining parts, terms or provisions shall not be affected.
| 21. |
Entire
Agreement
|
This
Agreement sets forth the entire agreement between the parties and fully
supersedes any and all prior agreements or understandings between the parties
pertaining to the same subject matter, further, this Agreement may not be
changed except by explicit written agreement by the parties hereto.
5
22. Older
Worker Benefits Protection Act
As
set
forth in Section 7 of this Agreement, Xxxxxxx further acknowledges that she
is
waiving and releasing any rights she may have under the Age Discrimination
in
Employment Act of 1967 (“ADEA”) and that this waiver and release is knowing and
voluntary. Xxxxxxx agrees that this waiver and release does not apply to any
rights or claims that may arise under the ADEA after the Effective Date of
this
Agreement. Xxxxxxx acknowledges that the consideration given for this waiver
and
release Agreement is in addition to anything of value to which Xxxxxxx was
already entitled. Xxxxxxx further acknowledges that she has been advised by
this
writing that: (a) she should consult with an attorney prior
to
executing this Agreement; (b) she has twenty-one (21) days within which to
consider this Agreement; (c) she has seven (7) days following the execution
of
this Agreement by the parties to revoke the Agreement; (d) this Agreement shall
not be effective until after the revocation period has expired; and (e) nothing
in this Agreement prevents or precludes Xxxxxxx from challenging or seeking
a
determination in good faith of the validity of this waiver under the ADEA,
nor
does it impose any condition precedent, penalties or costs for doing so, unless
specifically authorized by federal law. In the event Xxxxxxx signs this
Agreement and returns it to the Company in less than the 21-day period
identified above, Xxxxxxx hereby acknowledges that she has freely and
voluntarily chosen to waive the time period allotted for considering this
Agreement.
[The
Remainder of this Page Intentionally Left Blank]
6
XXXXXXX
STATES THAT SHE HAS CAREFULLY READ THE FOREGOING AGREEMENT, HAS BEEN ENCOURAGED
TO AND HAS HAD THE OPPORTUNITY TO CONSULT WITH HER OWN INDEPENDENT ATTORNEY,
KNOWS AND UNDERSTANDS ITS CONTENTS, AND VOLUNTARILY EXECUTES THIS
AGREEMENT.
SIGNATURES
|
Date:
|
Xxxxxxx
Xxxxxxx
|
|
|
Date:
|
BrandPartners
Group, Inc
______________________________
Xxxxx
X. Xxxxxx
Chief
Executive Officer and President
|
C:\Documents
and Settings\JoeCPU\My
Documents\B&G\Current\2007\CLIENTS\BrandPartners\Agreements\Xxxxxxx
Separation Agreement 2-22 EXECUTION.DOC
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