EXHIBIT
10.51
AGREEMENT AND RELEASE
THIS AGREEMENT AND RELEASE is entered into by and between
XXXX XXXXX ("XXXXX") who resides at 00 Xxxxxx Xxxx, Xxxxxx
Xxxx, Xxx Xxxx 00000 and STAFF BUILDERS, INC., a New York
corporation, 0000 Xxxxxx Xxxxxx Xxx Xxxx, 00000 ("STAFF
BUILDERS") (collectively the "Parties") on the date set forth
below.
WHEREAS the Parties have entered into an Employment
Agreement ("Employment Agreement") executed as of June 1,
1997, and
WHEREAS the Parties now desire to terminate said
Employment Agreement and to modify certain terms of same that
survive the termination of said Employment Agreement.
NOW THEREFORE, in consideration of the mutual promises
set forth herein and the mutual benefits which the parties
will gain by performance thereof, the parties hereto agree as
follows:
1. The Parties agree that effective at the close of
business February 20, 1998, XXXXX'X employment with STAFF
BUILDERS shall cease and except as provided herein and except
for the terms of the Employment Agreement that survive its
termination, the Employment Agreement shall be terminated. As
of February 21, 1998, XXXXX shall have no duties,
responsibilities or authority on behalf of STAFF BUILDERS, nor
shall he otherwise act as an employee of STAFF BUILDERS.
XXXXX shall provide STAFF BUILDERS with a letter of
resignation dated February 18, 1998, attached hereto as
Exhibit B.
2. In consideration for his compliance with all of the
provisions of this Agreement And Release the Parties
agree as follows:
STAFF BUILDERS shall provide and XXXXX all accept a
lump sum payment of $243,647.22 payable eight (8) days
after XXXXX returns an executed copy of this Agreement,
provided XXXXX has not exercised his right to rescind
this Agreement, or February 27, 1998, whichever is later.
b. STAFF BUILDERS will also extend XXXXX'x right to elect
to purchase health insurance coverage under COBRA up to
June 1, 2000, provided XXXXX has not otherwise become
eligible for other health insurance coverage. Staff
Builders agrees to pay the cost of said COBRA.
c. The Parties agree to amend Paragraph 10 of the
Employment Agreement by substituting a ninety (90) day
time period for the one (1) year time period contained in
subparagraph (a). The Parties further agree to amend
Paragraph 10 of the Employment Agreement by substituting
a twenty eight (28) month time period for the one (1)
year time period contained in subparagraph (b).
d. Subject to the terms and conditions of the Staff
Builders Deferred Compensation Plan, Staff Builders will
use its best efforts to have XXXXX paid all entitlements
thereunder within 30 days of the date of this Agreement.
e. Staff Builders will use its best efforts to have
XXXXX'x name removed from all company forms and
documents, such as the use of facsimile of Xxxxx'x
signature on any corporate checks.
3. The Parties hereto agree and understand that the
payments, specified in paragraph 2 above and the other
consideration contained herein, are in excess of that which
STAFF BUILDERS is obligated to provide to XXXXX or which would
normally be provided to an individual who was leaving or had
left the Employer and that it is provided solely in
consideration of XXXXX'x execution of this Agreement And
Release.
4. XXXXX understands that there are various state and
federal laws that prohibit employment discrimination on the
basis of age, race, sex, religion, national origin, martial
status and disability and that these laws are enforced by the
courts and various government agencies. By signing this
Agreement And Release, XXXXX intends to give up any rights he
may have under these laws or any other laws with respect to
his employment or the termination of his employment with or
by STAFF BUILDERS and acknowledges that STAFF BUILDERS has not
(a) discriminated against him; (b) breached any express or
implied contract with him; or (c) otherwise acted unlawfully
towards him.
5. As a material inducement to the Parties to enter
into this Agreement And Release, XXXXX covenants not to xxx
and hereby irrevocably and unconditionally releases, acquits
and forever discharges STAFF BUILDERS, and all other
affiliated, subsidiary or related organizations, parents,
companies or divisions, and their respective present, former
or future officers, directors, shareholders, agents,
employees, representatives, consultants, attorneys,
successors, and assigns, and all STAFF BUILDERS' employee
benefit plans and the current and former Trustees of all of
them (collectively the "Releasees"), of and from any claim,
right, demand, charge, complaint, action, cause of action,
obligation, or liability of any and every kind based on any
federal, state, or local law, statute or regulation, whether
known or unknown, suspected or unsuspected, fixed or
contingent, whether in tort or in contract or by statute,
which arises or results from any event, action or inaction
occurring prior to the execution of this Agreement And
Release, as well as any and all claims arising out of or
relating to any alleged tortious, wrongful, discriminatory,
defamatory, improper or unlawful act or omission of STAFF
BUILDERS, including without limitation, claims alleging a
violation of the Age Discrimination In Employment Action of
1967, as amended 29 U.S.C. 621 et seq. The Americans with
Disabilities Act of 1990, 42 U.S.C. 12101 et seq., which
arose prior to the execution of this Agreement And Release,
or which might exist under the qui tam provisions of the False
Claims Act, 31 U.S.C. 3730. XXXXX represents that he has
received complete satisfaction of any and all claims, whether
known, suspected or unknown, that he may have or have had
against any of the Releasees as of the date of this Agreement
And Release, and he hereby waives any and all relief for such
claims not explicitly provided for herein.
6. XXXXX expressly agrees and acknowledges that the
amounts specified in paragraph 2 include all monies, costs and
attorneys' fees which could be claimed against the Releasees
by him or on his behalf.
7. XXXXX affirms that he is not aware of any
outstanding administrative or judicial claims, charges,
lawsuits or proceedings of any kind against any of the
Releasees to which he is a party or which were filed on his
behalf, and promises not to commence any proceeding or action
against STAFF BUILDERS except to enforce this Agreement And
Release. XXXXX further agrees not only to release and
discharge the Releasees of and from any and all claims which
he could make on his own behalf, but also those which may have
been or may be made by any other person or organization on his
behalf as of the date of this Agreement And Release.
8. XXXXX hereby agrees to surrender any and all Stock
Options of STAFF BUILDERS, Inc. (Delaware) ("SBD") granted
to him pursuant to the 1983 Incentive Stock Option Plan, the
1986 Non-Qualified Stock Option Plan, and the 1994
Performance-Based Stock Option Plan (as more particularly
described in Exhibit A), or otherwise, including any options
which are vested as of the date hereof, within 90 days of this
Agreement. Within the 90 day period, XXXXX may exercise any
such options.
9. XXXXX acknowledges that as a result of his
employment by STAFF BUILDERS, he has had access to
confidential, proprietary business information belonging to
STAFF BUILDERS, as those terms are defined in paragraph 11 of
the Employment Agreement, and hereby agrees not to use or
disclose any such information personally or for the benefit
of others. XXXXX also agrees (1) not to disclose to anyone
any such confidential and proprietary information; and (2) to
comply with any and all provisions of his Employment Agreement
that, by their terms, survive the termination of his
employment. On the date he signs this Agreement And Release,
XXXXX further promises and agrees to return to STAFF BUILDERS
any and all documents or diskettes now in his possession which
he received, sent, generated or had access to in the course of
his employment by STAFF BUILDERS, together with any and all
property of STAFF BUILDERS he has in his possession.
10. XXXXX further agrees that except for the press
release to be mutually agreed to between the Parties, and
disclosure in any documents filed with the Securities and
Exchange Commission, he will not disclose, either directly or
indirectly, in any manner whatsoever, any specific
information, fact or opinion of any kind regarding the terms
of this Agreement And Release, to any person or organization,
including, but not limited to, members of the press and media,
present and former officers, employees (except with respect to
certain restrictions upon him concerning future solicitation
of Staff Builders' employees) and agents of the Releasees, and
other members of the public, except to his wife, whom shall be
bound by this paragraph to the same extent as XXXXX and whose
violation of this paragraph shall be deemed to constitute a
violation by XXXXX as if he himself had personally violated
this paragraph. XXXXX shall specifically advise his wife,
that she must comply with this paragraph and shall
specifically advise him or her that a violation by him or her
of this paragraph shall be deemed to be a violation by XXXXX.
11. If in violation of paragraphs 4 or 5 or 7 above,
XXXXX files or causes to be filed a claim, charge or lawsuit
against any of the Releasees with any governmental agency,
court or other forum concerning, in whole or in part, any
event occurring as of or prior to the date of this Agreement
And Release or any claim that has been released herein, or in
the event XXXXX violates the provisions contained in
paragraphs 9, 10 or 11 herein, XXXXX agrees to immediately
repay to STAFF BUILDERS all monies that he received pursuant
to paragraph 2 hereof, and to waive and forego any claim to
any additional monies or benefits he might otherwise have a
claim to receive pursuant to this Agreement And Release or
otherwise. XXXXX further agrees that the release set forth
in paragraphs 4 and 5 remains in full force and effect, and
that the balance of this Agreement And Release provides
adequate consideration for such Release. Should any
governmental agency, court or other forum determine that such
claim, charge or lawsuit is barred by this Agreement And
Release, XXXXX agrees to pay STAFF BUILDERS, in addition, the
attorneys' fees and expenses it incurs in enforcing the terms
of this Agreement And Release and otherwise defending against
said claim, charge or lawsuit.
12. The waiver by any Party of a breach of any provision
hereof shall not operate or be construed as a waiver of any
subsequent breach by any Party.
13. This Agreement And Release and the exhibits attached
hereto contain the full agreement between XXXXX and STAFF
BUILDERS, and may not be modified, altered or changed except
upon the express prior written consent of both XXXXX and STAFF
BUILDERS.
14. XXXXX affirms that he has been given at least 21
days to consider this Agreement And Release and that he has
voluntarily chosen not to wait 21 days to execute this
Agreement And Release. His choice to execute this Agreement
And Release was knowing and voluntary and made after
consultation with his counsel. XXXXX understands that he may
revoke his agreement hereto by so notifying STAFF BUILDERS'
General Counsel in writing within seven (7) days after he
signs this Agreement And Release.
15. XXXXX acknowledges and agrees that: (a) no promise
or inducement for this Agreement And Release has been made by
STAFF BUILDERS, except as set forth in this Agreement And
Release; (b) this Agreement And Release is executed by him
without reliance upon any statement or representation by STAFF
BUILDERS other than as set forth herein; (c) he fully
understands this Agreement And Release and the meaning of its
provisions; (d) he fully understands that he is giving up
important rights set forth herein; (e) he is legally competent
to enter into this Agreement And Release and to accept full
responsibility therefor; (f) he consulted with his counsel
before entering into this Agreement And Release; and (g) he
voluntarily enters into this Agreement And Release.
16. This Agreement And Release may be executed in
counterparts, and, when each party has signed and delivered
at lease one such counterpart, each counterpart shall be
deemed an original and taken together, shall constitute one
and the same agreement, which shall be binding and effective
to all parties.
17. This Agreement And Release shall be construed in
accordance with the laws of the State of New York. Any action
or proceeding relating to or arising from this Agreement And
Release or any other dispute between the parties hereto shall
be brought solely in the Supreme Court of the State of New
York, Nassau County. XXXXX hereby consents to personal
jurisdiction and venue in New York State Supreme Court, County
of Nassau any such action or proceeding. The parties
expressly waive their right to trial by jury in any action or
proceeding against the other and consent to trial before a
judge.
18. This Agreement And Release is the product of
negotiation and mutual discussion. The rule of construction
that an agreement may be construed against its drafter shall
not apply in any action or proceeding arising from or based,
in whole or in part, on this Agreement And Release.
19. XXXXX ACKNOWLEDGES AND AGREES THAT HE HAS READ AND
FULLY UNDERSTANDS THE MEANING OF EACH PROVISION OF THIS
AGREEMENT AND RELEASE, THAT HE HAS HAD THE OPPORTUNITY TO
CONSULT WITH COUNSEL CONCERNING IT, AND THAT HE FREELY AND
VOLUNTARILY ENTERS INTO IT.
IN WITNESS WHEREOF, the Parties have hereunto set their
hand on the dates indicated below.
STAFF BUILDERS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
Date: 2/19/98
/s/ Xxxx Xxxxx
XXXX XXXXX
Date: 2/19/98
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
I, Xxxx Xxxxxx do hereby certify that
XXXX XXXXX, personally known to me to be the same person whose
name is subscribed to the foregoing instrument, appeared
before me this day in person and acknowledged that he signed
and delivered the said instrument as his free and voluntary
act, for the uses and purposes therein set forth.
Given under my hand and official seal this 19th day of
February, 1998.
Xxxx Xxxxxx
Notary Public
My Commission Expires:
11/39/98
