EXHIBIT 10.7
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SEPARATION AND RELEASE AGREEMENT
XXXxxx.xxx, Inc., a Delaware corporation and its subsidiaries
("Employer") and Xxxxx X. Xxxxxxx ("Employee") enter into this Separation and
Release Agreement ("Agreement"), which was signed by Employee on the 13th day of
January, 2003 and is effective on October 22, 2002, for and in consideration of
the promises made among the parties and other good and valuable consideration as
follows:
1. Termination Date. Effective October 22, 2002, Employee's employment
with the Employer shall terminate (the "Termination Date").
2. COBRA. Employee's participation in the group medical and dental plan
of Employer shall terminate in accordance with the COBRA continuation of
coverage provisions under the group medical and dental plan of Employer.
3. Release. Employee, for him/herself, Employee's successors,
administrators, heirs and assigns, hereby fully releases, waives and forever
discharges the Employer, any affiliated company or subsidiary, their
predecessors, successors, affiliates, assigns, shareholders, directors,
officers, agents, attorneys, and employees, whether past, present, or future
(the "Released Parties") form any and all actins, suits, debts, demands,
damages, claims, judgments, or liabilities of any nature, including costs and
attorneys' fees, whether known or unknown, including, but not limited to, all
claims arising out of Employee's employment with or separation from any of the
Released Parties, such as (by way of example only) any claim for bonus,
severance, or other benefits apart from the benefits stated herein; breach of
contract; wrongful discharge; impairment of economic opportunity; any claim
under common-law or at equity; any tort; claims for reimbursements; claims for
commissions; or claims for employment discrimination under any state, federal
and local law, statute, or regulation or claims related to any other restriction
or the right to terminate employment, including without limitation, Title VII of
the Civil Rights Act of 1964, as Amended, the Americans with Disabilities Act of
1990, as Amended, and the Human Rights Act, as Amended. Nothing herein shall
release any party from any obligation under this Agreement. Employee
acknowledges and agrees that this release and the covenant not to xxx set forth
in paragraph 5 are essential and material terms of this Agreement and that,
without such release and covenant not to use, no agreement would have been
reached by the parties and no benefits under the plan would have been paid.
Employee understands and acknowledges the significance and consequences of this
release and this Agreement.
4. Covenant Not to Xxx. To the maximum extent permitted by law,
Employee covenants not to xxx or to institute or cause to be instituted any
action in any federal, state, or local agency or court against any of the
Released Parties, including but not limited to any of the claims released in
paragraph 4 of t his Agreement. In the event of Employee's breach of the terms
of this Agreement, without prejudice to Employer's other rights and remedies
available at law or in equity, except as prohibited by law, Employee shall be
liable for all costs and expenses (including, without limitation, reasonable
attorney's fees and legal expenses) incurred by Employer as a result of such
breach. Notwithstanding the foregoing, nothing herein shall prevent Employee or
Employer from instituting any action required to enforce the terms of this
Agreement. In addition, nothing herein shall be construed to prevent Employee
from enforcing any rights Employee may have under the Employee Retirement Income
Security Act of 1974, commonly known as ERISA.
5. Non-Disclosure. Employee agrees that Employee shall not disclose,
divulge or furnish to any person or entity the contents of this Agreement or the
circumstances relating to termination of Employee's employment, except as
required by law, or pursuant to valid subpoena, discovery notice, demand or
request, or Court order or process, provided, however, that Employee may
disclose such information to Employee's attorney or accountant.
6. Non-Disparagement. Employee and Employer mutually agree to refrain
from making public or private comments or taking any actions which disparage, or
are disparaging, derogatory or negative statements about the other, the business
of Employer, or the products, policies or decisions of Employer, or any present
or former offices, directors or employees of Employer or any of its operating
divisions, subsidiaries or affiliates. Further, Employee and Employer agree to
conduct themselves at all times in the future in a manner respectful of each
other's rights and privileges and to refrain from engaging in any actions
detrimental to the other's personal and professional welfare. Employer shall be
entitled to preliminarily or permanently enjoin Employee from violating this
Paragraph 6 in order to prevent the continuation of such harm. Nothing in this
Agreement shall be construed to prohibit Employer form also pursuing any other
remedy available to it, the parties having agreed that all remedies are to be
cumulative. In the event that Employer breaches this Paragraph 6, Employee will
be entitled to reimbursement of attorney's fees and costs incurred by Employee
in obtaining enforcement of this provision.
7. Non-Solicitation. In consideration for receiving the payments called
for hereunder, Employee agrees that during the one (1) year period beginning on
the Termination Date, Employee shall not, without the prior written consent of
Employer, alone, or in association with others, solicit on behalf of Employee,
or any other person, firm, corporation or entity, any employee of the Company,
or any of its operating divisions, subsidiaries or affiliates, for employment,
consulting or other independent contractor arrangements. For purposes of this
Agreement, and to avoid any ambiguity, Employer and Employee agree that it will
be presumed that Employee solicited an employee of Employer if such employee
commences employment for or on behalf of Employee within one (1) year after
Employee leaves Employer. Employee acknowledges that compliance with this
Paragraph 7 is necessary to protect the business and good will of Employer and
that a breach of any of these provisions will irreparably and continually damage
Employer for which money damage may not be adequate. Employer shall be entitled
to preliminarily or permanently enjoin Employee form violating this Paragraph 7
in order to prevent the continuation of such harm. Nothing in this Agreement
shall be construed to prohibit Employer from also pursuing any other remedy
available to it, the parties having agreed that all remedies are to be
cumulative.
8. Employee's Understanding. Employee acknowledges by signing this
Agreement that Employee has read and understands this document, that Employee
has conferred with or had opportunity to confer with attorneys regarding the
terms and meaning of this Agreement, that Employee has had sufficient time to
consider the terms provided for in this Agreement, that no
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representations or inducements have been made to Employee except as set forth
herein, and that Employee has signed the same KNOWINGLY AND VOLUNTARILY.
9. Provisions. It is intended t hat the provisions of this Agreement
shall be enforced to the fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement is sought. The
provisions of this Agreement shall be construed in accordance with the internal
laws of the State of New York. In the event that any paragraph, subparagraph or
provision of this Agreement shall be determined to be partially contrary to
governing law or otherwise partially unenforceable, the paragraph, subparagraph,
or provision and this Agreement shall be enforced to the maximum extent
permitted by law, and if any paragraph, subparagraph, or provision of this
Agreement shall be determined to be totally contrary to governing law or
otherwise totally unenforceable, the paragraph, subparagraph, or provision shall
be severed and disregarded and the remainder of this Agreement shall be enforced
to the maximum extent permitted by law.
10. Non-Admission of Liability. Employee agrees that neither this
Agreement nor performance hereunder constitutes an admission by any of the
Released Parties of any violation of any federal, state, or local law,
regulation, common-law, breach of any contract, or any other wrongdoing of any
type.
XXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxx
Title: Chief Operating Officer Social Security No.:
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Dated: Dated: 1/22/03
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