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EXECUTION COPY
SEPARATION AGREEMENT AND RELEASE OF
CLAIMS
THIS
AGREEMENT is made and entered into by and between
NexCen Brands, Inc. (the
“Company”) and
Charles A. Zona (the
“Executive”).
All
capitalized terms used herein unless otherwise defined in this
Agreement shall have the meaning assigned to them in the
Employment Agreement.
WHEREAS,
the Company and Executive entered into an employment agreement
made as of December 11, 2006 (the “Employment
Agreement”);
WHEREAS,
Executive’s employment was terminated by the Company
without Cause effective as of May 30, 2008 (“Termination
Date”), and as of such date Executive ceased to hold any
position as an officer of the Company or any affiliate;
and
WHEREAS,
Executive desires to receive separation pay and benefits, and
the Company is willing to provide separation pay and benefits
on the condition that Executive enters into this
Agreement.
THEREFORE,
in consideration of the mutual agreements and promises set
forth within this Agreement, the receipt and sufficiency of
which are hereby acknowledged, the Company and Executive agree
as follows:
In
consideration of Executive's agreements and promises set forth
below, the Company will provide to Executive the following
separation payments pursuant to the Employment
Agreement:
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a.
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Base Salary, Accrued Paid Time Off. The
Company shall pay to Executive any unpaid Base Salary through and
including the Termination Date. Executive acknowledges that there
is no declared but unpaid Annual Bonus or any other bonus during
the Employment Period that is due and owing to the Executive as of
the Termination Date.
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The
Company shall pay to Executive all accrued but unused paid
time during the Employment Period through and including the
Termination Date. The parties acknowledge and agree that as of
Termination Date, Executive has accrued $29,000.00 of paid
time off and has received $24,615.38 of that amount, less
deductions for federal and/or state income tax withholding,
FICA and any other deduction from wages required by law or
regulation. The Company shall pay the remaining $4,384.62 of
accrued paid time off, less deductions for federal and/or
state income tax withholding, FICA and any other deduction
from wages required by law or regulation, by including such
net amount in the next semi-monthly installment payment to be
made pursuant to subparagraph 1.b. below, following execution
of this Agreement.
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b.
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Semi-Monthly Installment Payment. The
Company shall pay to Executive payments totaling
One Hundred Fifty Thousand Dollars
($150,000.00) (less
deductions for federal and/or state income tax withholding, FICA
and any other deduction from wages required by law or regulation),
which shall be paid in substantially equal semi-monthly
installments over a period of six months, beginning no later than
June 16, 2008, in accordance with the Company’s normal
payroll practices.
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c.
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Continued Participation in Company’s Group Medical
Plan. The
Company shall continue Executive’s participation in the
Company’s group medical plan on the same basis as he
previously participated, until the earlier of
May 30, 2009 or
the date Executive is provided with health insurance coverage by a
successor employer. Executive shall promptly inform Sue Nam,
General Counsel of the Company, if and when he is provided with
health insurance coverage by a successor employer.
After
May 30, 2009, Executive may continue to participate in
the
Company’s group health plans to the extent permitted
under the
Consolidated Omnibus Budget Reconciliation Act
(“COBRA”) .
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d.
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Reimbursable Expenses. Executive
acknowledges and agrees that as of the date of this agreement, he
has received all reimbursable expenses or other entitlements then
due and owing to the Executive.
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e.
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Stock Options. The
parties hereby agree that (i) Executive vested as of December 11,
2007 in (i) 83,334 shares
of
his initial Option Grant to purchase a total of 250,000 shares of
the Company’s common stock; (ii) Executive vested as of the
Termination Date in all of his additional stock option grant to
purchase a total of 25,000 shares of the Company’s common
stock; and (iii) Executive voluntarily surrendered 166,666 shares
of his unvested initial Option Grant. Executive’s 108,334
vested stock options shall be exerciseable as of the Termination
Date and shall remain exercisable by Executive (or his estate, in
the event of his death) until December 31, 2009, following which
time any unexercised stock options shall terminate.
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f.
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Other Benefits. Executive
shall receive any vested benefits to which Executive is entitled in
accordance with the terms of any of the Company's employee benefit
plans or programs, including without limitation the Company's
401(k) plan.
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The
terms of Paragraph 1 shall have no force if Executive revokes
his acceptance of this Agreement pursuant to Paragraph 11
(Special Provisions for Age Discrimination).
EXECUTION
COPY
Except
as provided for in Paragraph 1, Executive is not entitled to
and will not receive any further salary, wages, benefits,
severance or separation payments from the
Company.
Executive
on behalf of himself and his heirs, successors and assigns, in
consideration of the performance by the Company of its
material obligations under the Employment Agreement and this
Agreement, do hereby release and forever discharge as of the
date hereof the
Company ,
its Subsidiaries, its Affiliates, each such Person’s
respective successors and assigns and each of the foregoing
Persons’ respective present and former directors,
officers, partners, stockholders, members, managers, agents,
representatives, employees (and each such Person’s
respective successors and assigns) (collectively, the
“
Released Parties ”)
to the extent provided below.
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a.
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Executive
understands that payments or benefits paid or granted to him under
this Agreement represent, in part, consideration for signing this
Agreement and are not salary, wages or benefits to which he was
already entitled. Executive understands and agrees that he will not
receive the payments and benefits specified in Paragraph 1 (other
than the payments and benefits in subparagraphs 1.a and 1.f) of
this Agreement unless he executes this Agreement and does not
revoke this Agreement within the time period permitted hereafter or
breach this Agreement.
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b.
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Executive
knowingly and voluntarily releases and forever discharges
the
Company and
the other Released Parties from any and all claims, controversies,
actions, causes of action, cross-claims, counter-claims, demands,
debts, compensatory damages, liquidated damages, punitive or
exemplary damages, other damages, claims for costs and
attorneys’ fees, or liabilities of any nature whatsoever in
law and in equity, both past and present (through the date of this
Agreement), whether under the laws of the United States or another
jurisdiction and whether known or unknown, suspected or claimed
against the
Company or
any of the Released Parties which Executive, his spouse, or any of
his heirs, executors, administrators or assigns, have or may have,
which arise out of or are connected with his employment with, or
his separation from, the
Company (including,
but not limited to, any allegation, claim or violation, arising
under: Title VII of the Civil Rights Act of 1964, as amended; the
Civil Rights Act of 1
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