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EXHIBIT 10.11
Release and Covenant Not to Xxx
This Release and Covenant Not to Xxx ("Release") is entered into this
30th day of April 1997, by and between Xxx Xxxx ("Employee") and Florists'
Transworld Delivery, Inc. ("Employer"), and is intended to clarify and amicably
resolve any and all matters relative to any relationship between Employee and
Employer, including the employment relationship and the separation from
employment based upon the following:
1. Effective April 30, 1997, the employment relationship between
Employer and Employee shall be terminated.
2. Employer agrees to pay and provide the following benefits to
Employee to which Employee is not otherwise entitled under
any policy, custom, plan or practice of Employer:
a. Salary continuation for the twelve (12) month time
period from May 1, 1997 through April 30, 1998 or
the date that Employee obtains any full time
employment, whichever is earlier ("Salary
Continuation Period"), subject to mitigation as set
forth in Paragraph 2.b. below.
b. In the event that Employee obtains any part time or
temporary employment during the Salary
Continuation Period, Employee shall submit to
Employer bi-monthly Certifications Regarding
Continued Separation Payments, in the form of
Attachment 1 hereto, regarding compensation received
by Employee for such employment, and Employee's
salary continuation will be reduced by the amount of
100% of the compensation received by Employee for
such employment; provided, however, that in the
event Employee works as a consultant or independent
contractor during the Salary Continuation Period,
Employee's salary continuation will be reduced only
by the amount of 100% of the compensation received
therefrom in excess of $25,000. Employee agrees
that he has a duty to use reasonable efforts to find
employment and will make such efforts and supply the
required Certifications.
c. Continuation of the group medical, dental and vision
coverage provided by Employer to its employees
during the Salary Continuation Period. All
other benefits and coverages will cease effective
midnight April 30, 1997. Employee is eligible to
purchase continuation coverage after the Salary
Continuation Period, and enclosed is the information
concerning COBRA coverage.
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d. Professional outplacement services provided by
Keystone Associates or another provider mutually
agreed upon, not to exceed to a total of $10,000.
3. Employee will also be paid all accrued and unused vacation
days earned as of April 30, 1997, to be paid in a lump sum in
the next payroll cycle. Employee will not continue to
accrue any additional vacation days during the Salary
Continuation Period.
4. In return for the consideration set forth in Paragraph 2
above, Employee on behalf of himself, his heirs, legal
representatives, agents and assigns, covenants not to
xxx and releases, waives and forever discharges Employer, FTD
Corporation, their parents, subsidiaries, board members,
employees, agents and related entities from all claims and
causes of action of any kind or nature, in law, in equity or
administrative proceedings, based upon the employment of
Employee or the separation thereof, including by way of
illustration and not of limitation, any claim of breach of an
express or implied contract, wrongful discharge,
discrimination of any kind, violation of Title VII of the
Civil Rights Act of 1964, the Age Discrimination in
Employment Act, and any and all other claims of tortuous
conduct, state or federal statutory violation, breach of
contract, whether known or unknown, arising from any cause
whatsoever, up to the date of the signing of this Release.
Nothing contained in this paragraph shall operate to release
or discharge Employer, its successors or assigns from any
claims arising out of the breach by Employer of any of its
obligations under this Release.
5. Employee agrees that he will keep the terms of this Release
confidential and will not disclose its terms to anyone
without prior written consent of Employer, except in response
to a lawful subpoena compelling Employee to provide
such information to a court, administrative body or law
enforcement agency, provided that Employee notifies Employer
upon receipt of the subpoena and prior to disclosing such
information. Notwithstanding anything contained in this
paragraph to the contrary, Employee may disclose the terms of
this Release to his attorney, accountant or financial
advisor.
6. Employee agrees that he will not apply or seek re-employment
with Employer in the future, and has no rights to recall and
re-employment.
7. Employee agrees that he will make reasonable efforts to assist
Employer and its affiliates in the conduct and defense of any
litigation, administrative proceeding or arbitration.
Employer agrees to reimburse Employee for all reasonable
expenses by the Employee as a result of Employee assisting
Employer in connection therewith. Employee agrees that he
will not discuss, comment or give or prepare any writing
involving any issue arising out of any litigation,
administrative proceeding, or arbitration in which Employer
or any of its affiliates is or shall become involved without
first having been so authorized by Employer's President or
Legal Counsel in writing or by virtue of process issued by a
court of competent jurisdiction or an
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administrative agency. In the event that Employee is
issued process by a court of competent jurisdiction, Employee
will immediately inform Employer's President and its Legal
Counsel, and if requested, make reasonable efforts to meet
Employer and/or its Legal Counsel prior to discussing,
testifying, commenting, giving or preparing any writing in
which Employer is involved.
8. Employee agrees that he will not denigrate or make any
disparaging remarks concerning Employer, FTD Corporation or
any of their current or former board members, officers,
members or employees. Employer agrees to respond to
any reference information requested by providing a written
letter of reference in the form attached hereto.
9. During the Salary Continuation Period and thereafter,
Employee agrees not to disclose or make available to any
other person or entity, other than disclosures to the extent
required by law or made with the express written
permission of Employer, any knowledge or information of any
type whatsoever of a confidential or proprietary nature to
Employer, including, without limitation, any such information
which relates to any of its affiliates or any existing or
prospective customers, member florists or vendors of
Employer, which you may have acquired before or during your
employment with Employer or may acquire during the Salary
Continuation Period.
10. Employee agrees that, until April 30, 1998, he will not,
without the prior written consent of Employer: (a) own any
material interest in, operate, join, control or
participate as an employee, consultant or otherwise in, any
entity engaged in any business in competition with the
principal businesses of Employer and its affiliates
(including, without limitation, retail florists' business
services, floral order transmission and related network
services and development and distribution of branded floral
products) in the United States of America or Canada; (b)
induce or attempt to persuade any actual or prospective
customers, suppliers or member florists to curtail or cancel
or refuse to do business with Employer or its affiliates; and
(c) induce or attempt to persuade any employee or agent of
Employer or its affiliates to terminate such employment or
agency.
11. Employee acknowledges that he has received Exhibit A which is
attached to this Release and which includes information
relative to the reduction in the work force the Employer is
currently undertaking.
12. Employee acknowledges and agrees that he has thoroughly
reviewed and understands all the provisions of this Release,
and that it is being entered into voluntarily. Further,
Employee acknowledges that he has been advised in writing to
consult with an attorney of his choice prior to executing
this Release.
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13. Employee acknowledges and agrees that he has had an
opportunity to consider and review this written
Release for at least 45 days prior to signing it and has
signed this Release of his own free act and deed, for good
and valuable consideration, to which he is not otherwise
entitled.
14. Employee may revoke this Release for a period of 7 days
following the execution of this Release, and this Release
shall not become effective or enforceable until the 7-day
revocation period has expired.
15. Employee further agrees the consideration for this Release is
sufficient and waives any claim to lack of sufficiency of
the consideration.
16. This Release represents the entire agreement between Employer
and Employee. There are no other oral or written promises
which have been made to Employee. Employee agrees and
acknowledges that he has not made and will not make an
assignment of any claims which are being released or
discharged by this Release. This Release can only be
modified in writing and signed by the parties.
17. Employee acknowledges and agrees that any breach by you of the
provisions of this agreement, including, without limitation,
the provisions of paragraphs 7, 8, 9 and 10, would cause
Employer irreparable injury and that money damages would not
provide Employer an adequate remedy. Employee, therefore,
agrees that, in the event of any such breach, in addition to
any other remedies available to Employer, Employer shall be
entitled to injunctive relief from any court of competent
jurisdiction without the necessity of proving actual damages
or posting a bond therefor.
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18. This Release shall be governed by the laws of the State of
Michigan.
Signed by:
/s/ Xxx Xxxx
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Xxx Xxxx
Dated: April 30, 1997
Florists' Transworld Delivery, Inc.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Its: Vice President
Dated: April 30, 1997
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