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EXHIBIT 22.3
AGREEMENT AND RELEASE
This Release and Agreement Regarding Separation ("Agreement") is made as of
February 28, 2001, among and between Xxxxxxx X. Xxxxx ("Xxxxx"), and XXXXX
EDUCATIONAL SYSTEMS, INC. (the "Company").
WHEREAS, Xxxxx was formerly employed by the Company;
WHEREAS, Xxxxx'x employment is terminated effective the date of this agreement
and he will remain as an officer on a contract basis covered under a separate
agreement;
WHEREAS, the Company has offered to pay Xxxxx the consideration and payments as
described below; and
WHEREAS, the parties hereto desire to compromise and settle all claims and
causes of action of any kind whatsoever which Xxxxx has or may have arising out
of his employment with the Company, and intend that the full terms and
conditions of the compromise and settlement be set forth in this Agreement.
NOW THEREFORE, for and in consideration of the recitals set forth herein and the
performance by the Company of the obligations described herein, the sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
The Company has paid Xxxxx his normal base salary amount through the date
hereof.
Xxxxx will not be entitled to receive any bonus compensation or inclusion in any
employee benefit plans beyond one month after the date of termination.
Xxxxx will limit any and all employment claims against the Company to the
severance compensation due as specified in Section 7.2.2 of the Employment
Agreement with him dated March 24, 2000. No additional severance or benefits are
payable beyond the date hereof.
The Company releases Xxxxx from the restrictive covenants contained in Sections
10.1 and 10.2 of the Employment Agreement.
Xxxxx, his heirs, executors, administrators and assigns agree to and do hereby
RELEASE, ACQUIT, and FOREVER DISCHARGE the Company and its present and former
subsidiaries and affiliates; its predecessors and successors in interest or
otherwise; its present and former directors, officers, employees, agents,
attorneys, insurers and representatives; and its heirs, administrators,
executors, successors and assigns of any of the foregoing and any other person,
firm, or corporation for which any of the foregoing may be legally responsible
or which may be legally responsible for any of them (the "Released Parties"),
from any and all claims, demands, causes of action of whatsoever nature, accrued
or un-accrued, federal or state, equitable or legal, occurring during, arising
out of, or related to the
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Company employment and/or termination of employment of Xxxxx (the "Possible
Claims"), including, but not limited to, causes of action for breach of
contract, negligence, intentional infliction of emotional injury, negligent
supervision, libel, slander, wrongful termination, sex discrimination, race
discrimination, age discrimination, Civil Rights Act of 1991, 1981, 1964 or 1866
violations, violations of 42 U.S.C. Section 1981, and any state or local
equivalent, workers' compensation violations, employee health or disability
benefit compensation violations, Consolidated Omnibus Budget Reconciliation Act
(COBRA) or Employer Retirement Income Security Act (ERISA) violations, loss of
consortium, mental anguish, pain and suffering, lost or future wages, punitive
exemplary damages, attorneys' fees, and pre- or post-judgment interest (the
"Causes of Action").
Xxxxx understands that this release includes a release of all claims under the
Age Discrimination in Employment Act and the Older Workers Benefit Protection
Act. He understands and represents that:
he understands the terms and conditions of this Agreement;
he has been advised to consult an attorney and has consulted an attorney to the
extent he has deemed it advisable to do so;
he does not waive any rights or claims that may arise after the date on which it
is executed (the "Execution Date");
this Agreement provides consideration to Xxxxx in addition to anything of value
to which he already is entitled;
he has waived all time periods for review and revocation of this agreement.
It is expressly understood and agreed that the terms here of are contractual and
not merely recitals and that the agreements herein contained and the
consideration transferred are to compromise doubtful and disputed claims, avoid
litigation, and buy peace, and that no payments made nor releases or other
consideration given shall be construed as an admission of liability by the
Company, all liability being expressly denied.
Xxxxx acknowledges and agrees that the sum of the consideration set forth above
is the entire amount of consideration that he shall ever be entitled to receive
from the Company in respect to his employment with the Company.
Xxxxx agrees to and does hereby accept the above consideration in full and
complete compromise and settlement of Possible Claims, including, but not
limited to, the Causes of Action.
Xxxxx, his legal representatives, heirs, executors, administrators and assigns
further agree to INDEMNIFY and HOLD HARMLESS the Released Parties for all
Possible Claims including, but not limited to, the Cause of Action. This
indemnity specifically includes the costs of future litigation including
attorneys' fees, actual damages, interest, costs and reasonable expenses.
Xxxxx warrants that he has read this Agreement and fully understands it to be a
compromise and settlement and release of all claims, known or unknown, that he
has or might have against the Released
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Parties, arising out of his employment with the Company. Xxxxx warrants that he
is of legal age and legally competent to execute this Agreement, and that he
does so of his own free will and accord without reliance on any representation
of any kind or character not expressly set forth herein.
Xxxxx agrees he will not make any disparaging comments, either oral or in
written form, against the Company or its employees.
Xxxxx agrees that he will not xxx the Company regarding any matter released in
this Agreement, and represents and warrants that he has made no assignment of
any claim, cause of action or right arising from his employment with the
Company. Xxxxx further warrants that he is the only person who may be entitled
to assert any claim arising out of his employment with the Company, and he
agrees to indemnify and hold harmless the Released Parties from and against any
such claim or claims asserted by any other party based on the facts contained
herein.
Xxxxx agrees that neither he nor any person in active concert or participation
with him will publicize or make known the terms of this Agreement to any other
person except to the extent necessary for Xxxxx to provide true and complete
information in answering lawful inquiries from a governmental entity.
Xxxxx also agrees that this Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all other
communications or negotiations relating thereto among the parties. No amendment
or change to this Agreement shall be effective unless reduced to writing and
signed by an authorized representative of all named parties.
Agreement and Release
February 28, 2001
ACCEPTED AND AGREED:
XXXXX EDUCATIONAL SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxx
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Xxxxxx X. Xxxxxxx, CFO Xxxxxxx X. Xxxxx
