uBid.com Holdings, Inc.
xXxx.xxx
Holdings, Inc.
September
20, 2007
Via
Hand Delivery
Personal
and Confidential
Xxxxxx
X.
Xxxxxxxxx, Xx.
c/o
xXxx.xxx Holdings, Inc.
0000
X.
Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Re: Separation
Agreement and Release
Dear
Xx.
Xxxxxxxxx:
As
you
know, your employment with xXxx.xxx Holdings, Inc. (“the Company”) ended on
September 20, 2007. The purpose of this Separation Agreement and Release letter
(“Agreement”) is to set forth the specific separation pay that the Company will
provide you in exchange for your agreement to the terms and conditions of this
Agreement.
By
your
signature below, you agree to the following terms and conditions:
1. End
of
Employment.
Your
employment with the Company ended effective September 20, 2007. Upon your
receipt of your final paycheck, which included payment for services through
September 20, 2007, you will have received all compensation owed to you by
virtue of your employment with the Company or termination thereof. You are
not
eligible for any other payments or benefits except for those expressly described
in this Agreement, provided that you sign and do not rescind this Agreement.
The
Company will send information to you regarding your COBRA rights under separate
cover.
2. Separation
Pay.
Specifically in consideration of your signing this Agreement and subject to
the
limitations, obligations, and other provisions contained in this Agreement,
the
Company agrees to pay you $95,489.11, which is the equivalent of your regular
compensation through December 29, 2007, less applicable withholding, to be
paid
in a lump sum within ten business days after the expiration of the rescission
period described in this Agreement.
3. Release
of Claims.
Specifically in consideration of the separation pay described in Section 2,
to
which you would not otherwise be entitled, by signing this Agreement you, for
yourself and anyone who has or obtains legal rights or claims through you,
agree
to the following:
a. You
hereby do release, agree not to xxx, and forever discharge the Company of and
from any and all manner of claims, demands, actions, causes of action,
administrative claims, liability, damages, claims for punitive or liquidated
damages, claims for attorney’s fees, costs and disbursements, individual or
class action claims, or demands of any kind whatsoever, you have or might have
against them or any of them, whether known or unknown, in law or equity,
contract or tort, arising out of or in connection with your employment with
the
Company, or the termination of that employment, or otherwise, and however
originating or existing, from the beginning of time through the date of your
signing this Agreement.
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2
b. This
release includes, without limiting the generality of the foregoing, any claims
you may have for wages, bonuses, commissions, penalties, compensation, deferred
compensation, vacation pay, other paid time off, separation benefits,
defamation, invasion of privacy, negligence, emotional distress, improper
discharge (based on contract, common law, or statute, including any federal,
state or local statute or ordinance prohibiting discrimination or retaliation
in
employment), violation of the United States Constitution, the Illinois
Constitution, the Illinois
Human Rights Act, Ill. Rev. Stat. Ch. 775, the Illinois Equal Wage Act, Ill.
Rev. Stat. Ch. 820, the Illinois Smokers’ Rights Law, Ch. 820, Title
VII
of the Civil Rights Act, 42 U.S.C. § 2000e et seq.,
the
Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq., the Americans
with Xxxxxxxxxxxx Xxx, 00 X.X.X. § 00000 et seq.,
the
Employee Retirement Income Security Act of 1976, 29 U.S.C. § 1001 et seq.,
the
Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.,
any
claim arising under Illinois Statutes, any claim arising under Chicago or other
local ordinances, including, but not limited to, the Chicago Human Rights
Ordinance, and any claim for retaliation, harassment or discrimination based
on
race,
color, religion, sex, pregnancy, national origin, ancestry, citizenship status,
age, marital status, gender
identity, sexual orientation, parental status, source of income status,
military
discharge status, military status, arrest record, or physical, mental or
perceived handicap or disability,
or
other protected class, or sexual or other harassment. You hereby waive any
and
all relief not provided for in this Agreement. You understand and agree that,
by
signing this Agreement, you waive and release any past, present, or future
claim
to employment with the Company.
c. If
you file, or have filed on your behalf, a charge, complaint, or action, you
agree that the payment described above in Section 2 is in complete satisfaction
of any and all claims in connection with such charge, complaint, or action
and
you
waive,
and agree not to take, any award of money or other damages from such charge,
complaint, or action.
d. You
are not, by signing this Agreement, releasing or waiving (1) any vested interest
you may have in any 401(k) or profit sharing plan by virtue of your employment
with the Company, (2) any rights or claims that may arise after the Agreement
is
signed, (3) the post-employment payment specifically promised to you under
Section 2 of this Agreement, (4) the right to institute legal action for the
purpose of enforcing the provisions of this Agreement, (5) any rights you have
under workers compensation laws, (6) any rights you have under state
unemployment compensation benefits laws, or (7) the right to file a charge
of
discrimination with a governmental agency, although, as noted above, you agree
that you will not be able to recover any award of money or damages if you file
such a charge or have a charge filed on your behalf.
e. The
Company, as used in this Agreement, shall mean xXxx.xxx Holdings, Inc. and
its
and their parent, subsidiaries, divisions, affiliated entities, insurers, and
its and their present and former officers, directors, shareholders, trustees,
employees, agents, representatives, attorneys, and consultants, and the
successors and assigns of each, whether in their individual or official
capacities, and the current and former trustees or administrators of any pension
or other benefit plan applicable to the employees or former employees of the
Company, in their official and individual capacities..
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3
4. Notice
of Right to Consult Attorney and Twenty-One (21) Day Consideration
Period.
By
signing this Agreement, you acknowledge and agree that the Company has informed
you by this Agreement that (1) you have the right to consult with an attorney
of
your choice prior to signing this Agreement, and (2) you are entitled to
twenty-one (21) days from the receipt of this Agreement to consider whether
the
terms are acceptable to you. The Company encourages you to use the full 21-day
period to consider this Agreement, but you have the right, if you choose, to
sign this Agreement prior to the expiration of the twenty-one (21) day period.
5. Notification
of Rights under the Federal Age Discrimination in Employment Act (29 U.S.C.
§
621 et seq.).
You are
hereby notified of your right to rescind the release of claims contained in
Paragraph 3 with regard to your rights arising under the federal Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq., within seven (7)
calendar days of your signing this Agreement. In order to be effective, the
rescission must (a) be in writing; (b) delivered to Xxxxxxxx X. Xxxx, EVP -
Human Resources, xXxx.xxx Holdings, Inc., 0000 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx
00000, by hand or mail within the required period; and (c) if delivered by
mail,
the rescission must be postmarked within the required period, properly addressed
to Xxxxxxxx X. Xxxx as set forth above, and sent by certified mail, return
receipt requested. This Agreement will be effective upon the expiration of
the
7-day period without rescission. You understand that if you rescind any part
of
this Agreement in accordance with this Paragraph 5, you will not receive the
separation pay described in Paragraph 2.
6. Return
of Property.
By
signing this Agreement, you acknowledge and agree that all documents and
materials relating to the business of, or the services provided by, the Company
are the sole property of the Company. By signing this Agreement you further
agree and represent that you have returned to the Company all of its property,
including but not limited to, all company documents, records and keys.
7. Confidential
and Proprietary Information.
By
signing this Agreement, you acknowledge and agree that you have had access
in
your employment with the Company to confidential and proprietary information
of
the Company and further acknowledge and agree that the release or disclosure
of
any confidential or proprietary information will cause the Company irreparable
injury. By signing this Agreement, you acknowledge that you have not used or
disclosed, and agree that you will not at any time use or disclose, directly
or
indirectly, to any other entity or person, any confidential or proprietary
information of the Company. For purposes of this Agreement, the term
“confidential or proprietary information” shall include, but not be limited to,
information about the personal or business affairs of the Company’s customers,
vendors, or employees.
Page
4
8. Confidentiality.
You
promise and agree not to disparage the Company or disclose or discuss, directly
or indirectly, in any manner whatsoever, any information regarding either (a)
the contents and terms of this Agreement, or (b) the substance and/or nature
of
any dispute between the Company and any employee or former employee, including
yourself. You agree that the only people with whom you may discuss this
confidential information are your legal and financial advisors and your spouse,
if applicable, provided they agree to keep the information confidential, or
as
otherwise required by law.
9. Xxxxxxxx-Xxxxx
Certifications.
You
promise and agree to provide Xxxxxxxx-Xxxxx Section 302 and Section 906
Certifications, certified to the best of your knowledge, in support of the
Xxxxxxxx-Xxxxx Section 302 and Section 906 Certifications which will be required
to be provided by the Company’s new Chief Executive Officer in the Company
Quarterly Report on Form 10-Q for the period ending September 30,
2007.
10. Remedies.
If you
breach any term of this Agreement, the Company shall be entitled to its
available legal and equitable remedies, including but not limited to suspending
and recovering any and all payments and benefits made or to be made under this
Agreement and payment by you of the Company’s reasonable attorneys’ fees and
costs. If the Company seeks and/or obtains relief from an alleged breach of
this
Agreement, all of the provisions of this Agreement shall remain in full force
and effect.
11. Non-Admission.
It is
expressly understood that this Agreement does not constitute, nor shall it
be
construed as an admission by the Company or you of any liability or unlawful
conduct whatsoever. The Company and you specifically deny any liability or
unlawful conduct.
12. Successors
and Assigns.
This
Agreement is personal to you and may not be assigned by you without the written
agreement of the Company. The rights and obligations of this Agreement shall
inure to the successors and assigns of the Company.
13. Enforceability.
If a
court finds any term of this Agreement to be invalid, unenforceable, or void,
the parties agree that the court shall modify such term to make it enforceable
to the maximum extent possible. If the term cannot be modified, the parties
agree that the term shall be severed and all other terms of this Agreement
shall
remain in effect.
14. Law
Governing.
This
Agreement shall be governed and construed in accordance with the laws of the
State of Illinois.
15. Full
Agreement.
This
Agreement contains the full agreement between you and the Company and may not
be
modified, altered, or changed in any way except by written agreement signed
by
both parties. The parties agree that this Agreement supersedes and terminates
any and all other written and oral agreements and understandings between the
parties.
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5
16. Acknowledgment
of Reading and Understanding.
By
signing this Agreement, you acknowledge that you have read this Agreement,
including the release of claims contained in Section 3, and understand that
the
release of claims is a full
and final release of all claims
you may
have against the Company and the other entities and individuals covered by
the
release. By signing, you also acknowledge and agree that you have entered into
this Agreement knowingly and voluntarily.
The
offer
contained in this Agreement will expire at 5:00 p.m. on October 12, 2007. After
you have reviewed this Agreement and obtained whatever advice and counsel you
consider appropriate regarding it, please evidence your agreement to the
provisions set forth in this Agreement by dating and signing both copies of
the
Agreement. Please then return one copy of this Agreement to me in the envelope
provided by no later than October 12, 2007. You should keep the other copy
for
your records. We wish you the best in your future endeavors.
Sincerely,
Xxxxxx
Xxxxxxx
Chairman
of the
Board
of
Directors
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6
By
signing below, I, Xxxxxx X. Xxxxxxxxx, Xx., acknowledge and agree to the
following:
|
·
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I
have had adequate time to consider whether to sign this Separation
Agreement and Release.
|
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·
|
I
have read this Separation Agreement and Release
carefully.
|
|
·
|
I
understand and agree to all of the terms of the Separation Agreement
and
Release.
|
|
·
|
I
am knowingly and voluntarily releasing my claims against the
Company.
|
|
·
|
I
have not, in signing this Agreement, relied upon any statements or
explanations made by the Company except as for those specifically
set
forth in this Separation Agreement and Release.
|
|
·
|
I
intend this Separation Agreement and Release to be legally
binding.
|
|
·
|
I
am signing this Separation Agreement and Release on or after my last
day
of employment with the Company.
|
Accepted
this ______ day of __________________, 2007.
_______________________________
Xxxxxx
X.
Xxxxxxxxx, Xx.
