EXHIBIT 10.27
RELEASE AND NON-DISPARAGEMENT AGREEMENT
THIS RELEASE AND NON-DISPARAGEMENT AGREEMENT (the "Release") is made as of
the 17th day of February, 2006, by and between XXXX XXXXX ("Executive") and
XXXXXXXX'X, INC. (the "Company").
WHEREAS, Executive's employment with the Company was terminated on February
8, 2006; and
WHEREAS, in connection with the termination of Executive's employment, the
Company has agreed to pay Executive certain amounts, subject to the execution of
this Agreement.
NOW THEREFORE, in consideration of these premises and the mutual promises
contained herein, and intending to be legally bound hereby, the parties agree as
follows:
I. Resignations. Executive hereby resigns as a director of the Company
and any subsidiary or affiliate of the Company, effective as of the date of this
Release.
II. Acknowledgements. Executive acknowledges that: (a) the payments
described in Section III of this Release constitute full settlement of all his
rights against the Company including, but not limited to, those under the
Employment Agreement by and between the Company and Executive dated as of June
1, 2005 (the "Employment Agreement"); (b) he has no entitlement under any other
severance or similar arrangement maintained by the Company; (c) no stock option
or other right held by him to acquire capital stock of the Company is or was
ever exercisable and each such option and right expired on February 8, 2006; (d)
except as otherwise provided specifically in this Release, the Company does not
and will not have any other liability or obligation to him. Executive further
acknowledges that, in the absence of his execution of this Release, he would not
otherwise be entitled to the payments described in Section III below.
III. Consideration. Provided that Executive executes and does not revoke
this Release within the seven (7) day period referenced in Section VIII, the
Company, within one (1) business day after the Company's General Counsel
receives written notice that the Release has not been revoked, will provide
Executive with the following:
A. a lump sum payment of a $250,000 annual bonus in respect of the
Company's 2005 fiscal year (subject to applicable withholding taxes);
B. a lump sum severance payment of $375,000 (subject to applicable
withholding taxes); and
C. an eight month waiver of that portion of the applicable premium
otherwise payable by Executive for COBRA continuation coverage equal to the
amount contributed by the Company toward the cost of group health insurance for
Executive and his eligible dependents (if any) immediately prior to the
cessation of his employment.
IV. Release and Covenant Not to Xxx.
A. Release. Executive hereby fully and forever releases and discharges
Company (including, for purposes of this Section IV, all predecessors and
successors, subsidiaries, affiliates, assigns, officers, directors, trustees,
employees, agents and attorneys, past and present) from any and all claims,
demands, liens, agreements, contracts, covenants, actions, suits, causes of
action, obligations, controversies, debts, costs, expenses, damages, judgments,
orders and liabilities, of whatever kind or nature, direct or indirect, in law,
equity or otherwise, whether known or unknown, arising out of Executive's
employment by the Company or the termination thereof, including, but not limited
to, any claims for relief or causes of action under the Age Discrimination in
Employment Act of 1967, 29 U.S.C. Section 621 et seq., or any other federal,
state or local statute, ordinance or regulation regarding discrimination in
employment and any claims, demands or actions based upon alleged wrongful or
retaliatory discharge or breach of contract under any state or federal law,
including but not limited to any claims under Executive's Employment Agreement
or any other agreement with the Company.
B. Covenant Not to Xxx. Executive expressly represents that he has not
filed a lawsuit or initiated any other administrative proceeding against the
Company and that he has not assigned any claim against the Company to any other
person or entity. Executive further promises not to initiate a lawsuit or to
bring any other claim against the Company arising out of or in any way relating
to Executive's employment by the Company or the termination of that employment.
This Release will not prevent Executive from filing a charge with the Equal
Employment Opportunity Commission (or similar state agency) or participating in
any investigation conducted by the Equal Employment Opportunity Commission (or
similar state agency); provided, however, that any claims by Executive for
personal relief in connection with such a charge or investigation (such as
reinstatement or monetary damages) will be barred.
C. Claims Not Released. The forgoing will not be deemed to release the
Company from claims (i) to enforce this Release, (ii) that may arise after the
date the Release is executed, or (iii) for indemnification under the Company's
By-Laws, under applicable law, under any indemnification agreement between the
Company and Executive or under any similar arrangement.
V. Non-Competition and Confidentiality Obligations. Executive
acknowledges that Sections 6, 7 and 8 of the Employment Agreement survive the
termination of his employment; provided, however, that the term "Restriction
Period," as set out in Section 7(b) of the Employment Agreement, is hereby
modified to mean a period of eight (8) months following the effective date of
this Release (subject to extension to the extent provided in Sections 7(b)(i)
and (ii) of the Employment Agreement). Executive affirms that the restrictions
contained in Sections 6, 7 and 8 of the Employment Agreement, as modified in the
prior sentence, are reasonable and necessary to protect the legitimate interests
of the Company, that he received adequate consideration in exchange for agreeing
to such restrictions, and that he will abide by those restrictions.
VI. Non-Disparagement. Executive will not disparage the Company or any
of its directors, officers, agents, employees or affiliates or otherwise take
any action which could reasonably be expected to adversely affect the personal
or professional reputation of the Company or any of its
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directors, officers, agents, employees or affiliates. The Company will not
disparage Executive or otherwise take any action which could reasonably be
expected to adversely affect the personal or professional reputation of the
Executive. In response to any inquiry from any prospective employer of
Executive, its agent, or any other third party, the Company will state that
Company policy precludes any comment, other than to disclose Executive's dates
of employment and position held.
VII. Cooperation. Executive further agrees that he will cooperate fully
with the Company and its counsel with respect to any matter (including
litigation, investigations, or governmental proceedings) that relates to matters
with which Executive was involved during his employment with the Company.
Executive shall render such cooperation in a timely manner on reasonable notice
from the Company. The Company will (a) reimburse reasonable expenses incurred by
Executive and any compensation foregone in the course of fulfilling his
obligations under this paragraph and (b) will exercise commercially reasonable
efforts to schedule the time for Executive's cooperation so as to avoid
interfering with the Executive's other personal and professional obligations.
VIII. Rescission Right. Executive expressly acknowledges and recites that
he was provided twenty-one (21) calendar days after receipt of the Release to
consider its terms before signing it, and he is provided seven (7) calendar days
from the date of signing to terminate and revoke this Release in which case this
Release shall be unenforceable, null and void. Executive may revoke this Release
during those seven (7) days by providing written notice of revocation to the
Company, care of its General Counsel, at the address and in the manner indicated
in Section 16 of the Employment Agreement.
IX. Challenge. If Executive violates or challenges the enforceability of
this Release, no further benefits under Section III of the Release will be paid
or provided to Executive.
X. Miscellaneous.
(a) No Admission of Liability. This Release is not to be construed as
an admission of any violation of any federal, state or local statute, ordinance
or regulation or of any duty owed by the Company to Executive. There have been
no such violations, and the Company specifically denies any such violations.
(b) No Reinstatement. Executive agrees that he will not apply for
reinstatement with the Company or seek in any way to be reinstated, re-employed
or hired by the Company in the future.
(c) Return of Company Property. Executive acknowledges that, as of the
effective date of this Release, he has delivered all Company property and
equipment in his possession, regardless of its location, such as, but not
limited to, files, documents and any copies thereof in whatever form (including
electronic), computer equipment, software, fax machines, credit cards, telephone
charge cards, cellular phones, keys, security passes, passwords, automobiles,
and any other Company property in his possession to the Company and that he is
not in possession of any Company property in any form. Should Executive discover
that he is in possession of Company
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property following the effective date of this Release, he agrees to
contact immediately the Company's General Counsel to arrange its return.
(d) Successors and Assigns. This Release will inure to the benefit of
and be binding upon the Company and Executive and their respective successors,
executors, administrators, heirs and (in the case of the Company) permitted
assigns. The Company may assign this Release to any successor to all or
substantially all of its assets and business by means of liquidation,
dissolution, merger, consolidation, transfer of assets, or otherwise. Executive
may not make any assignment of this Release or any interest herein.
(e) Severability. The provisions of this Release are severable. If any
provision or the scope of any provision is found to be unenforceable or is
modified by a court of competent jurisdiction, the other provisions or the
affected provisions as so modified shall remain fully valid and enforceable.
(f) Entire Agreement; Amendments. Except as otherwise provided herein,
this Release contains the entire agreement and understanding of the parties
hereto relating to the subject matter hereof, and merges and supersedes all
prior and contemporaneous discussions, agreements and understandings of every
nature relating to the subject matter hereof. This Release may not be changed or
modified, except by a Release in writing signed by each of the parties hereto.
(g) Governing Law. This Release shall be governed by, and enforced in
accordance with, the laws of the State of Tennessee, without regard to the
application of the principles of conflicts of laws.
(h) Counterparts and Facsimiles. This Release may be executed,
including execution by facsimile signature, in one or more counterparts, each of
which shall be deemed an original, and all of which together shall be deemed to
be one and the same instrument.
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Executive hereby acknowledges that he has carefully read and fully
understands the provisions of this Release between the Company and himself. He
has relied solely on this Release and not upon any other representation or
statement, written or oral. He also acknowledges that he has been advised to
consult with his personal, legal, financial and tax advisors prior to signing
this Release and that he has had adequate time to do so. He is entering into
this Release knowingly and voluntarily and not as a result of any pressure,
coercion or duress.
IN WITNESS WHEREOF, the Company has caused this Release to be executed by
its duly authorized officer, and Executive has executed this Release, in each
case as of the date first above written.
XXXXXXXX'X, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
President and Chief Executive Officer
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx
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