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EXHIBIT
10.1
AGREEMENT
AND GENERAL RELEASE AND WAIVER
ANDRE
MULLER, residing at 16 Hunting Hollow Ct., Dix Hills, NY 11746 (the “Employee”)
and ALLIANCE DISTRIBUTORS HOLDING, INC., a Delaware corporation with an office
at 1160 Commerce Avenue, Bronx NY 10462 (the “Company” or “Alliance”), on behalf
of itself and its officers, directors, shareholders, employees, agents and
parent, affiliates, predecessor, successor, subsidiary, and other related
companies, and each of them jointly and severally (hereinafter singularly and
collectively referred to as the “Company”), hereby enter into the following
Agreement and General Release and Waiver (the “Agreement”), concerning the
Employee’s resignation from the Company.
1. The
Employee confirms that on July 26, 2007 he resigned as a director, officer
and
employee of the Company and its subsidiaries and affiliates, and that he was
thereafter given 21 days to consider this Agreement and decide for himself
whether or not he wants to sign this Agreement.
2.
The
Employee was offered the opportunity to consult with and negotiate through
attorneys of his choice, concerning this Agreement and the implications of
Employee signing or not signing the Agreement.
3. The
Employee has carefully considered other alternatives to executing this Agreement
and has entered into this Agreement voluntarily and of the Employee’s own free
will.
4. The
Employee is entitled to change his mind and revoke this Agreement within seven
days after signing it. This Agreement will become effective only if Employee
has
not exercised his option to revoke the Agreement within seven days after its
execution and Employee complies with paragraph eleven (11) of this
Agreement.
5.
If this
Agreement becomes effective, Alliance will for the period to end on July 26,
2008 pay to Employee amounts equal to the salary installments (net of
withholding taxes) he would have received during this period at the rate of
pay
that applied prior to his resignation. In addition, if this Agreement becomes
effective and if the Employee elects to continue medical coverage under the
Company’s health insurance plan pursuant to COBRA, the Company will pay 50% of
the cost of COBRA coverage for the period to end on July 26, 2008.
6. The
Employee acknowledges that he knows that there are various State and Federal
laws which prohibit employment discrimination on the basis of age, sex, race,
color, creed, national origin, marital status, religion, disability, veteran
status, or other protected classifications and that these laws are enforced
through the Federal Equal Employment Opportunity Commission, and various state,
city, county and local human rights agencies. In particular, the Employee knows
that he may have rights under the Federal Age Discrimination in Employment
Act,
which prohibits companies from discriminating against employees because of
their
age. In consideration for the Company making the payment described in paragraph
five (5) of this Agreement, which the Employee is not
otherwise entitled to receive, the Employee intends to voluntarily give up
any
rights he may have under these or any other laws with respect to him prior
employment with the Company or termination of him employment, including him
rights under the Age Discrimination in Employment Act. The Employee agrees
that,
as of the date of this Agreement, the Company has not (a) discriminated
against him, (b) breached any express or implied contract with him, or
(c) otherwise acted unlawfully toward him. In this regard, the Employee
acknowledges he has received all compensation and benefits due him.
7. In
exchange for the money set forth in this Agreement, the Employee, his heirs,
personal representatives, successors and assigns, hereby releases and discharges
the Company, its successors, subsidiaries, and their officers, directors and
employees (“Releasees”) from all claims, liabilities, demands or causes of
action, known or unknown, arising out of or in any way connected with or related
to the Employee’s employment and the termination thereof with the Company from
the beginning of the world up to and including the effective date of this
Agreement, except for rights granted under this Agreement and except for any
indemnification rights under the Company’s certificate of incorporation and
by-laws. This includes, but is not limited to, claims of entitlement to change
of control payments or to options and SAR’s not referred to herein, wrongful
discharge, breach of any implied or express contract, whether oral or written,
fraud, misrepresentation, or any other tort. This also includes any claims
based
on any local, state or federal statute relating to age, sex, race, or any other
form of discrimination such as, but not limited to, the Age Discrimination
In
Employment Act, Title VII of the Civil Rights Act of 1964, and other similar
state and local anti-discrimination laws.
8. Cooperation
Employee
agrees to provide Alliance from time to time telephone consultation, and if
deemed necessary by Alliance, consultation in person at mutually agreeable
times, which agreement on the part of Employee will not be unreasonably
withheld, concerning his work for Alliance. For the avoidance of doubt, Alliance
is not requiring any substantive work from Employee. The consultation relates
exclusively to such matters as, for example, interpreting handwritten notes
that
may be illegible, locating hard copy or computer files, etc. Employee also
agrees to promptly sign and return documents that require Employee's signature,
and have such documents notarized and/or witnessed if required.
Employee
will for no compensation cooperate fully and at reasonable times with the
Company and its subsidiaries in all litigations and regulatory proceedings
on
which the Company or any subsidiary seeks Employee’s assistance and as to which
Employee had any knowledge or involvement. Without limiting the generality
of
the foregoing, Employee will be available to testify at such litigations and
other proceedings, and will cooperate with counsel to the Company in preparing
materials and offering advice in such litigations and other proceedings. Except
as required by law and then only upon reasonable prior written notice to the
Company, Employee will not in any way cooperate or assist any person or entity
in any matter which is adverse to the Company or which is adverse to any person
who at any time is or was an officer or director of the Company.
9.
Employee
agrees that at no time will he disclose or use any confidential information
received or acquired during the Employee’s employment, including but not limited
to trade secrets and any proprietary information. This Section 9 may be enforced
by injunction (without posting bond or other security), as well as by other
remedies. Except as aforesaid, Employee may freely compete with the
Company.
10.
Employee will promptly advise the Company in writing should he at any time
be
contacted by any person or entity (including, without limitation, any private
investigator) who seeks any information whatsoever with respect to the Company,
or any of its employees, directors or officers, or any of its products, services
or procedures, and he will shall forthwith furnish to the Company a complete
and
accurate report of all communications by or with any such person or entity.
Employee confirms and acknowledges that he is aware of no publicly undisclosed
information regarding the Company or its officers or directors which may be
material to investors in the Company, lenders to the Company, or licensing,
rating or regulatory entities. "Publicly undisclosed information" means
information which is not contained in periodic reports filed by the Company
under the Securities Exchange Act of 1934. Except as otherwise required by
law
(and then only
