Haights Cross Communications, Inc. Separation and Release Agreement
Exhibit 10.27
EXECUTION COPY
Haights Cross Communications, Inc.
Separation and Release Agreement
Separation and Release Agreement
On November 10, 2008 this Separation and Release Agreement (the “Release Agreement”) by and
between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Employee”), and Haights Cross Communications, Inc. (the “Company”) is
presented to the Employee. This Release Agreement, executed on the date specified below (the date
of execution by the Employee hereinafter referred to as the “Execution Date”), shall be in full
force and effect as of the Effective Date (as defined below).
RECITAL
WHEREAS, Employee and the Company agreed to provide the Employee with severance benefits
pursuant to a statement of benefits that was provided to the Employee on or about August 1, 2007
(the “Severance Letter”), such Severance Letter being updated to reflect the Employee’s current
level of base compensation; and
WHEREAS, Employee and Company desire to reach a mutual understanding and acceptance of the
terms and conditions related to Employee’s separation from employment with Company;
WHEREAS, the Employee shall cease to be employed by the Company effective as of November 24,
2008.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained it is
hereby agreed as follows:
1. Separation Date. Employee shall resign as the President and CEO of Triumph
Learning, LLC, a wholly-owned subsidiary of the Company, and as Executive Vice President of the
Company, and cease to be an employee of Company as of November 24, 2008 (the “Separation Date”) and
shall execute and deliver a letter of resignation to the Company in the form attached as
Exhibit A hereto and dated as of the Separation Date. The Company and Employee agree that
the Employee’s last day in the Company’s offices was October 22, 2008 and thereafter he will remain
available to consult with the Company as reasonably requested by the Company until the Separation
Date.
2. Severance. In consideration of Employee’s accepting and not revoking this Release
Agreement:
(a) Company shall pay, via wire transfer, Employee a lump sum of $606,300 subject to
expiration of the revocation period described in Section 15 no later than seven (7) business days
following the Separation Date, which amount would not be due him if he did not execute this Release
Agreement. If there is any inconsistency between the Severance Letter and this
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Release Agreement, this Release Agreement shall control. The payments indicated in this
Section 2(a) hereof shall be net of all other withholdings consistent with past practices or as
otherwise required by law, including, without limitation, applicable federal and state taxes and
shall be in lieu of, and full satisfaction thereof, any and all payments due pursuant to the
Severance Letter.
(b) If the Employee elects COBRA continuation coverage, then the Company shall reimburse the
Employee for the portion of COBRA continuation coverage monthly premium in an amount equal to the
amount of monthly health and welfare premiums that the Company pays on behalf of active employees
of the Company for up to eighteen (18) months (the “Benefit Continuation Period”). The Employee
will be responsible for paying the employee portion for the COBRA continuation premiums. If the
Employee becomes eligible to receive health insurance coverage under another employer’s group
health plan at any time during the Benefit Continuation Period, then the Company’s obligation to
pay the Employee portion of the health and welfare premiums shall immediately cease. The benefits
provided under this Section 2(b) are expressly subject to the Employee electing COBRA continuation
coverage and not being eligible to receive coverage under another employer’s group health plan.
(c) Accrued Vacation. The Company shall pay employee accrued but unused vacation of $22,040
simultaneous with his last payroll amount on November 24, 2008. All amounts due hereunder shall be
paid by wire transfer to Employee’s Chase bank account. ABA routing number ▇▇▇▇▇▇▇▇▇, account
number 937016997265.
3. Release.
(a) In consideration for, among other things, the payments to be made pursuant to Sections
2(a) and (2(b), Employee, for himself, his agents, legal representatives, assigns, heirs,
distributes, devisees, legatees, administrators, personal representatives and executors
(collectively, the “Releasing Parties”), hereby releases and discharges the Company and its present
and past subsidiaries and affiliates, its and their respective successors and assigns, and the
present and past shareholders, officers, directors, employees, agents and representatives of each
of the foregoing (collectively, the “Releasees”), from any and all claims, demands, actions,
liabilities and other claims for relief and remuneration whatsoever, whether known or unknown, from
the beginning of the world to the date Employee signs this Release Agreement, excluding any and all
claims, demands, actions, liabilities and other claims for relief and remuneration under the
Severance Letter or any other agreement, whether oral or written, but otherwise including, without
limitation, any claims arising out of or relating to Employee’s employment with and termination of
employment from the Company, for wrongful discharge, for breach of contract, for discrimination or
retaliation under any federal, state or local fair employment practices laws, including, Title VII
of the Civil Rights Act of 1964 (as amended by the Civil Rights Act of 1991), the Family and
Medical Leave Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act,
Employee retirement Income Security Act of 1974, for defamation or other torts (subject to Sections
8 and 10), for wages, bonuses, incentive compensation, stock, stock options, vacation pay or any
other compensation or benefit and any claims under any tort or contract (express or implied)
theory, and any of the claims, matters and
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issues which could have been asserted by the Releasing Parties against the Released Parties in
any legal, administrative or other proceeding in any jurisdiction.
(b) Exceptions. This Release Agreement does not (i) prohibit or restrict the Employee
from communicating, providing relevant information to or otherwise cooperating with the EEOC or any
other governmental authority with responsibility for the administration of fair employment
practices laws regarding a possible violation of such laws or responding to any inquiry from such
authority, including an inquiry about the existence of this Release Agreement or its underlying
facts, or (ii) preclude Employee from benefiting from classwide injunctive relief awarded in any
fair employment practices case brought by any governmental agency.
(c) It is understood and agreed that, with the exception of all obligations of the Company
pursuant to the terms and conditions set forth in any employee benefit plan, all which shall remain
fully binding and in full effect subsequent to the execution of this Release Agreement in
accordance with the terms and conditions set forth therein, the payment of accrued and unused
vacation pay and payment of accrued and unpaid wages through the Separation Date, the release set
forth in the preceding Section is intended as and shall be deemed to be a full and complete release
of any and all claims that Employee or Releasing Parties may or might have against Releasees, or
any of them, arising out of any occurrence arising on or before the Execution Date and said release
is intended to cover and does cover any and all future damages not now known to Employee or which
may later develop or be discovered, including all causes of action therefore and arising out of or
in connection with any occurrence arising on or before the Execution Date.
4. ADEA Release. By signing and returning this Release Agreement, Employee
acknowledges that Employee:
(a) has carefully read and fully understands the terms of this Release Agreement;
(b) is entering into this Release Agreement voluntarily and knowing that Employee is releasing
claims that Employee has or believes Employee may have against the Releasees; and
(c) has obtained advice of counsel with respect to the negotiation and execution of this
Release Agreement.
5. Returned Property. Employee agrees to return all Company property, including,
without limitation, security card, papers, records and documents in Employee’s possession to
Company immediately. The Company agrees to provide the Employee access to the Company’s voicemail
until December 31, 2008, subject to Employee’s agreement to forward any business related messages
to the Company. Subject to the confidentiality provisions of Section 7 below, Employee may retain
a copy of his Outlook contact file. Employee may keep his laptop computer, which has already been
cleaned by the Company’s IT personnel. Employee may use his Verizon Air Card through December 31,
2008.
6. Injunction. Should Employee violate any of his obligations under this Release
Agreement, the Company may cease making payments and continuing benefits to the extent
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provided for hereunder without in anyway affecting the continuing validity of the release set
forth in Sections 3 or 4 of this Release Agreement. Employee agrees that restrictions contained in
Section 7 are necessary to protect the business of the Company and are considered reasonable for
such purposes. Employee agrees that any breach of any provision of Section 7 may cause the Company
substantial and irreparable damages which are difficult to measure. Therefore, in the event of any
such breach or threatened breach, Employee agrees that, in addition to all other rights and
remedies, the Company shall have the right to immediate injunctive relief.
7. Confidentiality/Restrictions.
(a) By employment with Company, Employee has had, or will have, contact with and gain
knowledge of certain confidential and proprietary information and trade secrets, including without
limitation, analyses of Company’s prospects and opportunities; programs (including advertising);
direct mail and telephone lists, customer lists and potential customer lists; Company’s plans for
present and future developments; marketing information including strategies, tactics, methods,
customer’s market research data; financial information, including reports, records, costs, and
performance data, debt arrangements, holdings, income statements, annual and/or quarterly
statements and accounting records and/or tax returns; operational information, including operating
procedures, products, methods, service techniques, “know-how”, production plans, plans, concepts,
designs, specifications, trade secrets, processes, methods and suppliers; technical information,
including computer software programs; research and development projects; product design, processes,
inventions, designs, or discoveries, which information Company treats as confidential. Employee
agrees that Employee will not communicate or disclose to any third party or use for Employee’s own
account, without the written consent of Company, any of the aforementioned information or material,
except as required by law, unless and until such information or material becomes generally
available to the public through sources other than Employee.
(b) Employee will deliver to Company all property, documents, or materials in his possession
or custody, of any nature belonging to Company whether in original form or copies of any kind,
including any trade secrets and proprietary information upon the Separation Date.
(c) For a period of eighteen months following the Separation Date, Employee shall not,
directly or indirectly (i) solicit, attempt to hire or hire any then employee or individual who had
been an employee in the prior three (3) months of the Company or of any of its affiliates or (ii)
encourage, facilitate or induce any employee of the Company to terminate their employment with the
Company or any of its affiliates. Notwithstanding the foregoing, Employee shall not be prohibited
from working for an employer that solicits, attempts to hire or hires any of the foregoing
individuals provided Employee is not personally involved in the hiring process or otherwise
consults with individuals who are personally involved in the hiring process.
8. Public Statements. Employee hereby agrees that he shall support the Company in
public statements and in dealings with third parties, and will refrain from making any derogatory
or false statements with respect to the Company or any of its officers, directors, employees,
advisors, customers, shareholders or other related or affiliated parties or any other Releasees.
Company hereby agrees that it shall direct its officers, directors, employees, advisors,
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shareholders or other related or affiliated parties to support Employee in public statements
and in dealings with third parties, and to refrain from making any derogatory or false statements
with respect to Employee. The Company and the Employee will refer only to the press release,
Exhibit B hereto, and the Company will confirm Employee’s dates of employment.
9. Voluntary Assent. Employee hereby represents and agrees that in entering into this
Release Agreement, Employee has relied solely upon Employee’s own judgment, belief and knowledge
and Employee’s own legal and other professional advisors and that no statement made by or on behalf
of Company has in any way influenced Employee in such regard. It is agreed by each of the parties
hereto that they have read the above and fully understand the terms of this Release which they
voluntarily execute in good faith and deem to be a full and equitable settlement of this matter.
10. Press Release. Annexed hereto as Exhibit B is the press release previously issued
by the Company regarding the Employee.
11. No Assignment. Employee hereby represents and warrants to Company that Employee
has not assigned any claim that Employee may or might have against Company, from which the Company
would otherwise be released pursuant to this Release Agreement, to any third party.
12. Entire Agreement. This Agreement constitutes the entire understanding of the
Employee and the Company with respect to the rights and other benefits that the Employee shall be
or may be entitled to. In the event of any conflict between this Release Agreement and the
Severance Letter, or any other agreement, whether oral or written, to which either Company, or any
affiliates of the Company and Employee are a parties, the provisions of this Release Agreement
shall prevail.
13. Governing Law. This Release Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to conflict of laws
principles.
14. Severability. The provisions of this Release Agreement are severable. If any
provision of this Release Agreement is declared invalid or unenforceable, any court of competent
jurisdiction reviewing such provision shall enforce the provision to the maximum extent permissible
under applicable law. Any ruling will not affect the validity and enforceability of any other
provision of the Release Agreement.
15. Revocation. Employee acknowledges that he has been given the opportunity to
consider this Release Agreement for at least twenty-one (21) days before signing it. For a period
of seven (7) days from the date Employee signs this Release Agreement, Employee has the right to
revoke this Release Agreement by written notice to the undersigned. This Release Agreement shall
not become effective or enforceable until the expiration of the revocation period. This Release
Agreement shall become effective on the first business day following the expiration of the
revocation period (the “Effective Date”).
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16. Notices. All notices and other communications hereunder shall be in writing and
shall be given by electronic mail, hand-delivery to the other party or by registered or certified
mail, overnight courier, return receipt requested, postage pre-paid addressed as follows:
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If to the Employee:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
If to the Company:
▇▇▇▇ ▇. ▇▇▇▇▇▇
Haights Cross Communications, Inc.
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Haights Cross Communications, Inc.
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
or to such other addresses either party shall furnish to the other in writing in accordance
herewith. Notices and communications shall be effective when actually received by the addressee.
17. Counterparts. This Release Agreement may be executed in several counter-parts,
each of which shall be deemed to be an original but all of which together shall constitute one and
the same instrument.
18. Waiver. The Employee’s or the Company’s failure to insist upon strict compliance
with any provision hereof, shall not be deemed to be a waiver of such provision or any other
provision thereof.
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IN WITNESS WHEREOF, Company and Employee have executed and delivered this Release Agreement as
of the date first written above.
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||||
| HAIGHTS CROSS COMMUNICATIONS, INC. | |||||
By:
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Exhibit A
Letter of Resignation
Letter of Resignation
October 31, 2008
Board of Directors
Haights Cross Communications, Inc.
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▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
Haights Cross Communications, Inc.
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| Re: | Haights Cross Communications, Inc. and all direct and indirect subsidiaries (the “Haights Companies”) |
Gentlemen:
I hereby resign from all officer and director positions that I hold, if any, in all of the
Haights Companies, effective immediately.
| Sincerely, | ||||
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Exhibit B
HAIGHTS CROSS COMMUNICATIONS
PRESS RELEASE
PRESS RELEASE
Investor Contact: |
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▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ |
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Editorial Contact |
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(▇▇▇) ▇▇▇-▇▇▇▇
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FOR IMMEDIATE RELEASE | |
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HAIGHTS CROSS COMMUNICATIONS ANNOUNCES
▇▇▇▇▇▇▇▇ RESIGNATION
▇▇▇▇▇▇▇▇ RESIGNATION
White Plains, NY, October 22, 2008 — Haights Cross Communications, Inc. announced today that ▇▇▇▇▇
▇▇▇▇▇▇▇▇ has resigned as President and Chief Executive Officer of Triumph Learning.
▇▇▇▇ ▇▇▇▇▇▇, Haights Cross President and Chief Executive Officer, said: “It is with disappointment
that I announce that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ has resigned his position as CEO of Triumph Learning. I would
like to thank ▇▇▇▇▇ for his outstanding service to Triumph Learning and wish him well in the
future. With his many talents, I am sure he will be highly successful in his next endeavor.”
▇▇▇▇▇▇▇▇ became President and CEO of Triumph Learning in October 2001. Under his leadership,
Triumph has grown dramatically to become a leading supplemental educational publishing company.
▇▇▇▇▇▇▇▇ said: “I thank Haights Cross for the wonderful opportunity that I have had to build
Triumph Learning. I have enjoyed the past eight years enormously. Most important was the chance to
work with colleagues whom I believe are among the most talented in the industry. It has been a
pleasure and honor to co-create Triumph with them and with the team at Haights Cross. Triumph
Learning has enormous strengths as the market leader in standards-based instruction.”
About Haights Cross Communications:
Founded in 1997 and based in White Plains, NY, Haights Cross Communications is a premier
educational and library publisher dedicated to creating the finest books, audio
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