May 8, 2009 Eric Ashman Brooklyn, NY 11205 Dear Eric,
May 8,
2009
Xxxx
Xxxxxx
000
Xxxxxxx Xxx
Xxxxxxxx,
XX 00000
Dear
Xxxx,
This
letter agreement (the “Agreement”) sets forth the terms of the termination of
your employment with XxxXxxxxx.xxx, Inc. (together with its subsidiaries, the
“Company”).
1. Your employment, which
commenced on July 5, 2006, will cease effective the close of business on May 8,
2009. Moreover, upon your signing of this Agreement on the date
indicated below (the “Execution Date”), the Employment Agreement between you and
the Company dated as of June 30, 2008 (the “Employment Agreement”) shall
terminate, and all obligations thereunder shall cease, except for the
obligations and agreements set out in Sections 5, 6, and 7 thereof, which shall
remain in effect.
2. In
consideration of your signing of this Agreement and the release set out in
paragraph 3 herein, and subject to your return of all Company property in your
possession to the Company and your continued compliance with Sections 5 and
6 of the Employment Agreement related to non-competition, non-solicitation
and confidentiality, the Company will pay you : (i) a lump sum payment of
$100,000, minus all amounts required to be withheld by law including applicable
taxes, which shall be payable on the eighth day following the Execution Date,
provided you have not revoked this Agreement during that time; and (ii) the
amount of your accrued unpaid salary and accrued unused vacation days through
May 8, 2009, which will be paid on May 15, 2009, your next regular pay
day. You hereby acknowledge and agree that, other than as
specifically set forth in this Agreement, you are not due any compensation from
the Company, including compensation for unpaid salary, bonus, commission, profit
share, severance, accrued or unused vacation or sick time, or in connection with
the exercise of stock options or unvested equity grants.
3. In
consideration of the payments and benefits provided to you under this Agreement
and after consultation with counsel, you and each of your respective heirs,
executors, administrators, representatives, agents, successors and assigns
(collectively the “Xxxxxx Parties”) hereby irrevocably and unconditionally
release and forever discharge the Company and its subsidiaries and affiliates
and each of their respective officers, employees, directors, managers,
shareholders and agents (collectively, the “Company Parties”), from any and all
claims, actions, causes of action, rights, judgments, fees and costs (including
attorneys’ fees), obligations, damages, demands, accountings or liabilities of
whatever kind or character (collectively, “Claims”), including, without
limitation, any Claims based upon contract, tort, or under any federal, state,
local or foreign law, including but not limited to, any claims under Age
Discrimination in Employment Act, Older Worker Benefit Protection Act, Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 1981, the
Americans with Disabilities Act, as amended, the Family and Medical Leave Act,
as amended, the Employee Retirement Income Security Act of 1974, as amended, the
Civil Rights Act of 1991, as amended, the Civil Code Section 1542, the New York
Human Rights Law, the Administrative Code of the City of New York, and the Consolidated
Omnibus Budget Reconciliation Act (COBRA), as amended, or any other federal,
state or local law, that the Xxxxxx Parties may have, or in the future may
possess, that occurred, existed or arose on or prior to your execution of this
Agreement; provided, however, that you do not release, discharge or waive any
rights to payments and benefits provided under this
Agreement. Nothing in this Release shall affect your rights to any
vested benefits under any Company pension plan, if any, or to enforce your
rights under this agreement.
Xxxxxx
2
4. You represent that you
have returned or will immediately return to the Company all Company property
without limitation, including your Corporate American Express Card, if
any. Return of all such property is a precondition to payment of the
lump sum set out in paragraph 2(i) above. In addition, you will
remain responsible for any expenses or items billed to such card, if
any.
5. It
is understood that you will have up to twenty-one (21) days from the date you
receive this Agreement within which to consider its terms (although you may sign
it at any time during this twenty-one (21) day period). During this
time, you are advised to consult an attorney. Your signature
indicates that you have had the opportunity to benefit from that consultation
period and are entering this Agreement, at the time of your execution hereof,
freely and voluntarily. Further, you may revoke your acceptance of
this Agreement at any time before the eighth day following the Execution Date by
so notifying me in a writing received by me during that time (the “Revocation
Period”). The Company’s obligations under this Agreement shall become
effective and enforceable only upon the expiration of the Revocation Period, and
only if you have not revoked your acceptance of the Agreement during that
time.
6. You agree to keep the
terms of this Agreement confidential except for discussions with your spouse and
except as may be required to enforce the agreement or to obtain legal or tax
advice. You agree not to make or publish any disparaging statements
about the Company, Company Parties or persons acting in such capacity, and not
to cause or suffer others to do so on your behalf. The Company will
not make or publish any disparaging statements about you, or authorize or
knowingly permit any officer, director or person acting in such capacity to do
so. You agree to direct all requests for employment references or
inquiries concerning your employment with and separation from the Company to
Xxxxx Xxxxxxx, the Company's Human Resources Director. You further
understand and acknowledge that, consistent with the Company's policy, the
Company will only provide prospective employers with your dates of employment,
last position held and last salary.
7. The Company's offer to
you is not intended to, and shall not be construed as, any admission of
liability by the Company or the Company Parties to you, or of any improper
conduct on the part of the Company or the Company Parties, all of which the
Company and the Company Parties specifically deny.
8. In the event that any one or more of
the provisions of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remainder of the
Agreement shall not in any way be affected or impaired thereby and any such
provision or provisions shall be enforced to the fullest extent permitted by
law.
9. This
Agreement constitutes a complete statement of all the arrangements between us,
and supersedes all prior oral or written agreements and understandings between
us concerning your employment and your separation from the Company other than
the obligations and agreements set out in Sections 5, 6, and 7 of the Employment
Agreement, which you hereby ratify and affirm. You further agree that
your obligation to comply with the non-competition, non-solicitation and
confidentiality provisions of Sections 5 and 6 of the Employment Agreement is
without regard to whether the conclusion of your employment with the Company is
deemed the result of a termination of your employment by the Company without
Cause, a termination of your employment by you with Good Reason, or a
termination, by either party, for any other reason. This Agreement
may not be altered or modified other than in a writing signed by you and the
Company. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
contracts to be performed wholly within the state and without regard to its
conflict of laws provisions.
Xxxxxx
3
10. This Agreement may be signed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
If the
above sets forth our agreement as you understand it and consent to it, and you
agree to be legally bound hereby, please so signify by executing the enclosed
copy of this letter and returning it to Xxxxx Xxxxxxx, Human Resources
Director.
Very
truly yours,
XxxXxxxxx.xxx,
Inc.
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By:
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/s/ Xxxxxx Xxxxxx
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Xxxxxx
X. Xxxxxx
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Secretary
and General Counsel
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Agreed
to and Accepted:
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/s/ Xxxx
Xxxxxx
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Dated: 5/8/09
