AGREEMENT dated as of June 30, 1999 between XXXX X. XXXXX,
residing at 00000 Xxxxxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxx 00000 ("Executive"),
and MOVIE STAR, INC., a New York corporation having its principal office at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 (the "Company").
RECITALS:
A. The Executive has relinquished his position as
Chief Executive Officer, and has retired as an employee, of the
Company; and
B. The Company desires to provide certain benefits to
Executive in recognition of Executive's long years of distinguished service to
the Company as its Chief Executive Officer; and
C. Executive desires to obtain such benefits in full
satisfaction of any and all claims Executive has or may have against the Company
in connection with the discontinuation of his employment with the Company.
IT IS AGREED:
1. Retirement Benefit Payment.
1.1 Simultaneously with the execution and
delivery of this Agreement, the Company shall pay to Executive and Executive
shall accept the sum of $500,000.00 representing the entire amount to be paid to
Executive in connection with Executive's retirement as an employee of the
Company effective as of June 30, 1999.
2. Medical Benefits.
2.1 From and after the date of this Agreement
through and including the date upon which Executive shall become eligible for
coverage under the provisions of Medicare or any similar governmental medical
benefits program, or in the event of the elimination or substantial curtailment
of benefits under Medicare or any such similar governmental medical benefits
program, the Company shall, at all times, at its sole cost and expense and for
the benefit of Executive and Executive's spouse, provide medical benefits to
Executive and his family which are (i) substantially similar to the medical
benefits provided to senior executives of the Company on the date hereof and,
(ii) in no event less favorable than the the medical benefits provided to senior
executives of the Company, from time to time.
3. Split Dollar Life Insurance.
3.1 That certain Split Dollar Life Insurance
Agreement, dated as of July 7, 1983, between the Company and Executive shall
remain in full force and effect until terminated in accordance with its terms.
4. Release of Claims.
4.1 In consideration for the Company's agreement
to provide Executive with the sums and benefits set forth herein Executive, on
behalf of himself and his heirs, representatives and assigns, hereby release and
discharge the Company, its parent companies, and all of its and their
subsidiaries, divisions, and affiliated or related companies and all of the
respective current and former directors, officers, shareholders, successors,
agents, representatives and employees of each, of and from any and all claims
Executive ever had, now has, or may in the future assert regarding any matter
arising on or before the effective date of this Agreement, including, without
limitation, all claims regarding Executive's employment with or resignation as
an employee of the Company, any claim for equitable relief or recovery of monies
or damages, any contract (express or implied), any tort, any claim for wages,
any claim for breach of a fair employment practice law, including Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967,
as amended, the Older Workers Benefit Protection Act, the Civil Rights Act of
1991, the Employee Retirement Income Security Act of 1974, the Americans with
Disabilities Act, the Family and Medical Leave Act, the New York State Human
Rights Law, the New York City Humans Rights Law, and any violation of any other
local, state or federal law, ordinance or regulation.
4.2 Pursuant to and as a part of the complete and
total release and discharge of the Company, Executive agrees, to the fullest
extent permitted by law, not to xxx, file a charge, claim, complaint, grievance
or demand for arbitration in any forum or, assist or otherwise participate
willingly or voluntarily in any claim, arbitration, suit, action, charge,
complaint, investigation or other proceeding of any kind which relates to any
matter that involves the Company, its parent companies, or any of its or their
subsidiaries, divisions or affiliated or related companies and all of the
respective current and former directors, officers, shareholders, successors,
agents, representatives and employees of each and that occurred on or before the
effective date of this Agreement. Executive represents that Executive has not
filed or initiated any such proceedings against the Company, its parent
companies, or any of its or their subsidiaries, divisions or affiliated or
related companies.
4.3 Executive recognizes and agrees that the
complete and total release and discharge of the Company as provided herein is an
indispensable part of the Company's agreement to pay the amounts and benefits
set forth in this Agreement, and it is understood and agreed that Executive's
failure to comply with the terms and conditions set forth in this Agreement
would, to the fullest extent permitted by law, constitute a breach of this
Agreement. In the event Executive breaches this Agreement or contests the
enforceability of this Agreement, the Company, in addition to any other rights,
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defenses or remedies which it may have, may require Executive to return any
amounts paid under this Agreement, and to pay the Company's reasonable costs and
attorneys' fees incurred as a result thereof.
4.4 Executive acknowledges that he has been given
an adequate period of time within which to consider this Agreement. During that
period, Executive has had the opportunity to review this Agreement with counsel
of his own choosing, has read this Agreement carefully and/or had it read by
your counsel, and is fully aware of and understands the contents and legal
effects of this Agreement. Executive acknowledges that he has been represented
by Xxxxxxx Xxxx, Esq. in connection with this Agreement.
4.5 Executive further understands and agrees that
this Agreement is revocable by either party for seven (7) days following the
signing of this Agreement by both parties, and that this Agreement shall not
become effective or enforceable until that revocation period has expired. This
Agreement automatically becomes enforceable and effective on the eighth day
after the date this Agreement is signed by the last party ("effective date").
This Agreement may be revoked by a writing sent certified mail by either party
postmarked on or before the seventh day after the Agreement is signed by the
last party (unless that day is a Sunday or legal holiday (i.e., no mail
service), in which event the period is extended to the next day there is mail
service.
4.6 Executive agrees that no fact, evidence, event
or transaction currently unknown to Executive but which may hereafter become
known to Executive shall affect in any manner the final and unconditional nature
of the release stated above.
4.7 Executive warrants and represents that no
promise or inducement has been offered to Executive except as stated in this
Agreement; that this Agreement is executed without reliance upon any statement
or representation by the Company or any of its representatives concerning the
nature and extent of the claims herein released and any damages or legal
liability therefor; Executive is competent to execute this Agreement and accept
full responsibility therefor; and Executive acknowledges that this Agreement
evidences a full, final and complete settlement of any and all past, present and
future claims against the parties herein released.
5. Miscellaneous Provisions.
5.1 All notices provided for in this Agreement
shall be in writing, and shall be deemed to have been duly given when delivered
personally to the party to receive the same, when given by electronic means, or
when mailed first class postage prepaid, by registered or certified mail, return
receipt requested, addressed to the party to receive the same at her or its
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address set forth below, or such other address as the party to receive the
same shall have specified by written notice given in the manner provided for in
this Section 5.1. All notices shall be deemed to have been given as of the date
of personal delivery, transmittal or mailing thereof.
To Executive:
Xx. Xxxx X. Xxxxx
Marked "Personal and Confidential"
with a copy given in the aforesaid manner to:
Xxxxxxx Xxxx,Esq.
To Company:
Movie Star, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn.: Xx. Xxxxxx Xxxxxx
with a copy given in the aforesaid manner to:
Xxxxxxxx Mollen & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxxx X. Xxxxxxx, Esq.
5.2 This Agreement sets forth the entire
agreement of the parties relating to the subject matter hereof and is intended
to supersede all prior negotiations, understandings and agreements with respect
thereto. No provisions of this Agreement may be waived or changed except by a
writing by the party against whom such waiver or change is sought to be
enforced. The failure of any party to require performance of any provision
hereof shall in no manner affect the right at a later time to enforce such
provision.
5.3 All questions with respect to the
construction of this Agreement, and the rights and obligations of the parties
hereunder, shall be determined in accordance with the law of the State of New
York applicable to agreements made and to be performed entirely in New York.
5.4 The article headings are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope of intent of any provision of this Agreement.
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5.5 This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of the Company. This Agreement
shall not be assignable by Executive and shall inure to the benefit of and be
binding upon Executive and his legal representatives.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
/s/ XXXX X. XXXXX
------------------------------
XXXX X. XXXXX
MOVIE STAR, INC.
/s/ XXXXXX XXXXXX
By: -------------------------
Title: President
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