SEPARATION AGREEMENT AND GENERAL RELEASE
Return
to 10Q
Exhibit
10.6
This
Separation Agreement and General Release (this “Agreement”) is made and entered
into by and between Xxxxx de la Rama and I.C. Xxxxxx & Company
LP.
DEFINITIONS
As
used
throughout this Agreement:
1. “Executive”
refers to Xxxxx de la Rama, his heirs, executors, administrators, agents,
successors, assigns and dependents.
2. “Xxxxxx”
refers to I.C. Xxxxxx & Company LP, together with its respective past and
present parents, subsidiaries, and affiliates, and its respective past and
present officers, directors, agents, employees, successors and assigns, in
both
their individual and corporate capacities.
3. “Employment
Agreement” refers to the Employment Agreement, made as of the 1st
day of
March 2004, by and between I.C. Xxxxxx & Company LP and Executive, as
amended by an Amendment, dated as of August 1, 2005.
RECITALS
WHEREAS,
Executive had been employed as Executive Vice President and Chief Operating
Officer of Xxxxxx;
WHEREAS,
pursuant to this Agreement, Executive has resigned as Executive Vice President
and Chief Operating Officer, effective as of May 9, 2007 (the “Termination
Date”); and
WHEREAS,
the parties hereto desire to settle any and all potential disputes relating
to
Executive’s employment and the termination thereof;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements hereinafter
set forth, and intending to be and being legally bound hereby, the parties
agree
as follows:
AGREEMENT
1. Effective
as of May 9, 2007, Executive has: (a) resigned his employment with Xxxxxx as
Executive Vice President and Chief Operating Officer, and (b) resigned any
and
all positions he has, whether as a director, officer, or otherwise, with any
affiliate of Xxxxxx or otherwise by reason of his employment with Xxxxxx. Xxxxxx
hereby accepts such resignations. The parties hereto hereby acknowledge and
agree that the termination of Executive’s employment pursuant to this Agreement
shall be considered a termination of Executive’s employment without “Cause”
pursuant to Section 10 of the Employment Agreement, provided that the provision
of Section 10 of the Employment Agreement requiring that payments by the Company
to Executive in the event of a termination of employment without “Cause” be
reduced by any compensation paid to Executive during the period he receives
such
payments shall not apply.
2. Executive
represents that he does not have any claim, action or proceeding pending against
Xxxxxx, or which arises out of his employment by Xxxxxx or the termination
thereof.
3. (i)
In
full and complete consideration for Executive’s promises, covenants and
agreements set forth herein, Xxxxxx will continue to pay Executive’s base salary
at the rate of two hundred seventy-five thousand dollars ($275,000) per annum,
less all applicable deductions and withholdings, until such time following
the
Termination Date that such payments equal two hundred twenty-five thousand
dollars ($225,000). Xxxxxx will also pay Executive for any unused vacation
accrued to the Termination Date and for any accrued but unpaid expenses through
the Termination Date that are required to be reimbursed in accordance with
Section 8 of the Employment Agreement. In addition, Xxxxxx agrees to continue
providing Executive with medical and/or dental insurance coverage under the
medical and dental plans generally made available by Xxxxxx to its employees
for
a period of ten months after the Termination Date without charge (the “Benefit
Period”). After the Benefit Period, if Executive timely elects to continue
medical and/or dental insurance coverage pursuant to COBRA under such medical
and dental plans, Executive shall be responsible for paying the required COBRA
premium for the remainder of the term of his continuation coverage. For the
avoidance of doubt, nothing in this Agreement is intended to affect any benefits
to which Executive is entitled as of the Termination Date under the terms of
the
Xxxxxx 401(k) plan.
(ii) The
parties hereby acknowledge and agree, notwithstanding the ambiguity created
by
certain conflicting provisions of the Employment Agreement and the I.C. Xxxxxx
& Company, Inc. Amended and Restated Omnibus Stock Plan Nonstatutory Stock
Option Grant Agreement between Xxxxxx and Executive, effective December 6,
2004
(“2004 Option Agreement”) and the I.C. Xxxxxx & Company, Inc. Amended and
Restated Omnibus Stock Plan Nonstatutory Stock Option Grant Agreement between
Xxxxxx and Executive, dated August 1, 2005 (“2005 Option Agreement”), that the
following terms apply to the respective stock option grants:
| · |
The
grant of an option pursuant to the 2004 Option Agreement with respect
to
25,000 shares shall remain exercisable with respect to 25,000 shares
until
February 28, 2009.
|
| · |
The
grant of an option pursuant to the 2005 Option Agreement with respect
to
75,000 shares shall remain exercisable with respect to 50,000 shares
until
February 28, 2009, and the option grant with respect to the remaining
25,000 shares shall expire as of the date
hereof.
|
4.
(i)
Executive shall not be entitled to any payment or continued payment under
Section 3 of this Agreement if Executive is in willful material breach of any
covenant contained in this Agreement, and such breach, if susceptible to cure,
is not substantially cured within 15 days after written notice of such breach
is
provided to Executive.
(ii)
Executive shall not be entitled to any payment or continued payment under
Section 3 of this Agreement if Executive contends in any proceeding that this
Agreement was invalid or unenforceable in whole or in part.
5. The
parties hereto agree that the provisions of this Section 5 shall supersede
the
provisions of Section 11 of the Employment Agreement.
(i) Executive
acknowledges that during the course of his past employment with Xxxxxx, he
has
had access to proprietary information and confidential records of Xxxxxx, and
has made use of proprietary information and confidential records of Xxxxxx.
Executive agrees that he shall not, directly or indirectly, use for his own
purpose or for the benefit of any person or entity other than Xxxxxx, nor
otherwise disclose, any proprietary information to any individual or entity,
unless such disclosure has been authorized in writing by Xxxxxx or is otherwise
required by law. Executive acknowledges and understands that the term
“proprietary information” includes, but is not limited to: (a) the software
products, programs, applications, and processes utilized by Xxxxxx; (b) the
name and/or address of any licensor, customer, vendor or distributor of Xxxxxx
or any information concerning the transactions or relations of any licensor,
customer, vendor or distributor of Xxxxxx or any of its or their partners,
principals, directors, officers or agents; (c) any information concerning any
product, technology, or procedure employed by Xxxxxx but not generally known
to
its or their customers, vendors or competitors, or under development by or
being
tested by Xxxxxx but not at the time offered generally to customers, vendors
or
distributors; (d) any information concerning the structure or content of the
proprietary databases of any of Xxxxxx; (e) any information relating to the
computer software, computer systems, pricing or marketing methods, sales
margins, cost of goods, cost of material, capital structure, operating results,
borrowing arrangements or business plans of Xxxxxx; (f) customer lists and
contact information; (g) any information which is generally regarded as
confidential or proprietary in any line of business engaged in by Xxxxxx; (h)
product information and future development plans; (i) any business plans,
budgets, advertising or marketing plans; (j) any information contained in any
of
the written or oral policies and procedures or manuals of Xxxxxx; (k) any
information belonging to customers, vendors or distributors of Xxxxxx or any
other person or entity which Xxxxxx has agreed to hold in confidence; (l) any
inventions, innovations or improvements covered by this Agreement; and (m)
all
written, graphic and other material relating to any of the foregoing. Executive
acknowledges and understands that information that is not novel or copyrighted
or patented may nonetheless be proprietary information. The term “proprietary
information” shall not include information (i) generally available to and known
by the public or information that is or becomes available to Executive on a
non-confidential basis from a source other than Xxxxxx or its directors,
officers, employees, partners, principals or agents (other than as a result
of a
breach of any obligation of confidentiality) or (ii) that is within
Executive’s general business or industry knowledge, know-how or expertise
(collectively, “know-how”), provided such know-how is of a generic nature not
specifically pertaining to Xxxxxx.
(ii) Executive
shall not at any time, except as required by law, directly or indirectly
publish, make known or in any fashion disclose any confidential records to,
or
permit any inspection or copying of confidential records by, any individual
or
entity other than in the course of such individual’s or entity’s employment or
retention by Xxxxxx. Executive shall deliver promptly to Xxxxxx all property
and
records of Xxxxxx, including, without limitation, all confidential records.
For
purposes hereof, “confidential records” means all correspondence, reports,
memoranda, files, manuals, books, lists, financial, operating or marketing
records, magnetic, optical, or electronic or other media or equipment of any
kind which may be in Executive’s possession or under his control or accessible
to him which contain any proprietary information. Executive agrees that all
property and records of Xxxxxx (including, without limitation, all confidential
records) shall be and remain the sole property of Xxxxxx.
(iii) All
inventions, innovations or improvements (including policies, procedures,
products, improvements, software, ideas and discoveries, whether patent,
copyright, trademark, service xxxx, or otherwise) conceived or made by
Executive, either alone or jointly with others, in the course of his employment
by Xxxxxx, belong to Xxxxxx. Executive will promptly disclose in writing such
inventions, innovations or improvements to Xxxxxx and, at Xxxxxx’ expense, will
perform all actions reasonably requested by Xxxxxx to establish and confirm
such
ownership by Xxxxxx, including, but not limited to, cooperating with and
assisting Xxxxxx in obtaining patents, copyrights, trademarks, or service marks
for Xxxxxx in the United States and in foreign countries.
(iv) Executive
acknowledges the highly competitive nature of Xxxxxx’ business and that his
position, services, and access to and use of confidential records and
proprietary information renders him special and unique. Therefore, Executive
agrees that, during a period of ninety (90) days after the Termination Date,
Executive shall not, directly or indirectly, without the express prior written
authorization of Xxxxxx, (a) enter the employ of, or render any services to,
any
direct competitor of Xxxxxx in the urban market (“Competitive Business”) or (b)
engage in any Competitive Business on Executive’s own account or become
interested in or affiliated with any such Competitive Business, directly or
indirectly, as an individual, partner, shareholder, director, officer, member,
manager, principal, agent, employee, trustee, consultant, or in any other
relationship or capacity.
(v) Executive
agrees that, for a period of one (1) year after the Termination Date, Executive
shall not, directly or indirectly, without the express prior written
authorization of Xxxxxx, (a) solicit or recruit any employee who was employed
by
Xxxxxx as of the Termination Date to leave his or her employment with Xxxxxx,
(b) solicit any Person who is or was a licensor of, customer of, or a vendor
or
supplier or contractor to, Xxxxxx within the 12-month period immediately
preceding the Termination Date, where the purpose or effect of such solicitation
is to conduct a Competitive Business, or (c) advise or encourage any Person
who
is or was an employee, licensor, customer, vendor or supplier of or to Xxxxxx
within the 12-month period immediately preceding the Termination Date to
terminate his, her or its relationship with Xxxxxx or to reduce the amount
of
business customarily done with Xxxxxx.
(vi) Executive
acknowledges and agrees that, by virtue of his position, his services, and
access to and use of confidential records and proprietary information, any
violation by him of any of the undertakings contained in this Section 5 would
cause Xxxxxx immediate, substantial and irreparable injury for which it has
no
adequate remedy at law. Executive agrees and consents to the entry of an
injunction or other equitable relief by a court of competent jurisdiction
restraining any violation or threatened violation of any undertaking contained
in this Section 5. Executive waives posting by Xxxxxx of any bond otherwise
necessary to secure such injunction or other equitable relief. Rights and
remedies provided for in this Agreement are cumulative and shall be in addition
to rights and remedies otherwise available to Xxxxxx under any other agreement
or applicable law.
6. Except
as
necessary to enforce the terms of this Agreement, and in exchange for and in
consideration of the promises, covenants and agreements set forth herein,
Executive hereby releases Xxxxxx to the maximum extent permitted by law from
any
and all manner of claims, demands, causes of action, obligations, damages,
or
liabilities whatsoever of every kind and nature, at law or in equity, known
or
unknown, and whether or not discoverable, which he has or may have for any
period prior to and arising up to his execution of this Agreement, including,
but not limited to, any claim of defamation, wrongful discharge, breach of
contract, any claim for additional compensation, any claims arising out of
or
related to Executive’s employment by Xxxxxx and the termination thereof, any
claims arising under or related to any employment agreement, whether oral or
written, between Executive and Xxxxxx, claims for unpaid wages or commissions
or
bonuses, severance pay, and claims of discrimination under the Age
Discrimination in Employment Act of 1967, as amended, the Americans with
Disabilities Act, Title VII of the Civil Rights Act of 1964, as amended, and
all
other federal, state and local laws, including but not limited to any claim
for
attorneys’ fees or costs. Except as necessary to enforce the terms of this
Separation Agreement and General Release and for any claims, demands, causes
of
action, obligations, damages, or liabilities whatsoever of every kind and nature
arising from Executive’s intentional misconduct or gross negligence, and in
exchange for and in consideration of the promises, covenants and agreements
set
forth herein, Xxxxxx hereby releases Executive to the maximum extent permitted
by law from any and all manner of claims, demands, causes of action,
obligations, damages, or liabilities whatsoever of every kind and nature, at
law
or in equity, known or unknown, and whether or not discoverable, which it has
or
may have for any period prior to and arising up to the Termination Date,
including but not limited to any claim for attorneys’ fees or
costs.
7. The
parties agree that it is a material condition of this Agreement that Executive
maintain strictly confidential, and shall take all reasonable steps to prevent
the disclosure to any person or entity, the existence and terms of this
Agreement and all disputes and disagreements between Executive and Xxxxxx
arising out of Executive’s employment by Xxxxxx and the termination thereof.
This provision does not prohibit Executive from providing this information
to an
attorney or accountant for purposes of obtaining legal or tax advice or as
otherwise required by law, or to members of his immediate family. To the extent
Executive makes any disclosure to any attorney, accountant, or family member
as
permitted pursuant to this Section, he shall instruct such person not to make
any further disclosure except in accordance with this Section.
8. The
parties agree that it is a material condition of this Agreement that Executive
shall not make or publish any statement (in verbal, written, electronic or
any
other form), or instigate, assist or participate in the making or publication
of
any statement (in verbal, written, electronic or any other form), which would
libel, slander or disparage (whether or not such disparagement legally
constitutes libel or slander) or expose to hatred, contempt or ridicule (i)
Xxxxxx; (ii) any of its products, services, affairs, or operations; or
(iii) any of its past or present directors, officers, employees, agents, or
licensors. By way of example only, such prohibition shall include,
but not be limited to, a negative or derogatory statement made in, or in
connection with, any article or book, on a website or via the internet.
Xxxxxx
agrees that it will not make any official or internal announcements or issue
any
press releases which contain any negative or derogatory statements about
Executive that are intended to disparage Executive and that it will advise
the
members of its Board of Directors and its executive officers that they
should not make or publish any statement (in verbal, written, electronic or
any
other form), or instigate, assist or participate in the making or publication
of
any statement (in verbal, written, electronic or any other form), which would
libel, slander or disparage Executive (whether or not such disparagement legally
constitutes libel or slander) or him expose to hatred, contempt or
ridicule.
9. Executive
shall reasonably cooperate with Xxxxxx in connection with any and all actions,
governmental inquiries or other legal proceedings in which Executive’s
assistance may be requested by Xxxxxx. Such cooperation shall include, among
other things, making documents relating to Xxxxxx in Executive’s custody or
control available to Xxxxxx or its counsel, making Executive reasonably
available for interviews by Xxxxxx or its counsel, and being reasonably
available to appear as a witness at deposition, trial or otherwise. In addition,
Executive shall reasonably cooperate with Xxxxxx, as requested by Xxxxxx, to
effect a transition of his responsibilities and to ensure that Xxxxxx is aware
of all matters being handled by him. Any reasonable vouchered out-of-pocket
expenses incurred by Executive in fulfilling his obligations under this Section
9 shall be promptly reimbursed by Xxxxxx. Xxxxxx will provide Executive with
reasonable compensation for time spent by Executive after the Benefit Period
as
a witness at deposition, trial or otherwise pursuant to this Section
9.
10. Notwithstanding
anything to the contrary contained in this Agreement, neither Executive nor
Xxxxxx shall be prohibited or restricted in connection with any communications
with any regulatory or self-regulatory organization or any law enforcement
authority or pursuant to court order or lawful subpoena or other legal process,
or from making any other disclosure required by law. In the event that Xxxxxx
determines to issue a press release the primary purpose of which is to announce
the resignation of Executive as contemplated by this Agreement, Xxxxxx will
provide Executive with a copy of the proposed press release in advance of its
publication and agrees to consider any comments to the proposed press release
provided by Executive.
11. Except
as
expressly provided in this Agreement, Executive shall not be entitled to any
money or other consideration from Xxxxxx. Executive acknowledges he is receiving
under this Agreement consideration in addition to anything of value to which
he
already is entitled.
12. In
executing this Agreement, neither Xxxxxx nor Executive admits any liability
or
wrongdoing, and the considerations exchanged herein do not constitute an
admission of any liability, error, contract violation, or violation of any
federal, state or local law or regulation.
13. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
14. The
unenforceability or invalidity of any provision or provisions of this Agreement
shall not render any other provision or provisions hereof unenforceable or
invalid.
15. This
Agreement constitutes the entire agreement between the parties, supersedes
all
existing agreements, whether written or oral, regarding Executive’s employment
by Xxxxxx and any payments to be made by Xxxxxx or benefits that Xxxxxx is
to
make available to Executive in connection with the termination of his employment
by Xxxxxx pursuant to the Employment Agreement and the other matters set forth
herein, and cannot be altered except in a writing signed by the parties. The
parties acknowledge that they entered into this Agreement voluntarily, that
they
fully understand all of its provisions, and that no representations were made
to
induce execution of this Agreement which are not expressly contained
herein.
16. This
Agreement shall be deemed to have been made in the State of New York, and shall
be interpreted and construed and enforced in accordance with the laws of the
State of New York without regard to principles of conflicts of law or where
the
parties are located at the time a dispute arises. Any dispute arising out of
or
relating to this Agreement shall be commenced in any state or federal court
sitting in the County of New York in the State of New York, and Executive and
Xxxxxx consent to the jurisdiction of such courts for such
purposes.
17. Executive
is advised to consult with the attorneys of his choice prior to executing this
Agreement. Executive acknowledges that he has had the opportunity to consult
with counsel and has had an adequate opportunity to review this Agreement before
its execution.
18. Executive
acknowledges that he has been afforded an opportunity to take at least
twenty-one (21) days to consider this Agreement and has been and hereby is
advised to consult with the attorneys of his choice prior to executing this
Agreement. Executive further acknowledges that he will have a period of seven
(7) calendar days following his execution of this Agreement in which to revoke
his consent, and that the Agreement will not become effective or enforceable
until the revocation period has expired. A revocation will become effective
only
if Executive furnishes Xxxxxx with a written notice to I.C. Xxxxxx & Co.,
Inc., 000 00xx
Xxxxxx,
0xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxx X. Xxxxx, Chief Financial
Officer, such
that
it is actually received within such seven (7) day period. Xxxxxx will have
no obligation to make the payments set forth herein unless and until this
Agreement becomes effective.
[signature
page follows]
IN
WITNESS WHEREOF, the parties have executed this Separation Agreement and General
Release on the dates indicated below.
/s/Xxxxx
de la Rama
Xxxxx
de
la Rama Date:
May
11, 2007
I.C.
Xxxxxx & Company, LP
By:
/s/Xxxxx
X. Xxxxx
Name:
Xxxxx X. Xxxxx Date:
May
11, 2007
Title:
Chief Financial Officer
