Exhibit 10.1
SEPARATION AND RELEASE
AGREEMENT
THIS SEPARATION AND RELEASE
AGREEMENT (the “Agreement”) is entered into as of
March 31, 2006 by and between Ciaran G. McCourt (the
“Employee”) and eDiets.com, Inc., a Delaware
corporation (the “Company”).
WITNESSETH:
WHEREAS, the Employee was employed
by the Company as its President and Chief Executive Officer
pursuant to an employment agreement dated February 3, 2005
(the “Employment Agreement”);
WHEREAS, the Employee has decided
that he will resign pursuant to the terms and conditions contained
herein;
WHEREAS, the parties hereto desire
to settle all matters between them related to or arising out of
Employee’s employment with, and resignation from, the Company
and the facts and circumstances underlying the same, and to settle
and compromise any and all claims and differences between them, of
any sort, origin or description in order to avoid the costs and
uncertainties inherent in possible future litigation.
NOW, THEREFORE, Employee and the
Company, intending to be legally bound hereby and in consideration
of the promises contained herein, do hereby agree as
follows:
1. RESIGNATION. The Employee
acknowledges that he resigned, effective as of March 30, 2006
(the “Resignation Date”) as (i) the
Company’s Chief Executive Officer, (ii) as a director of
the Company and from (iii) any other positions that he held
with the Company or any of its subsidiaries.
1.1 Except as provided below,
Employee has received or shall receive all accrued compensation and
vacation owing to him from the Company through March 30, 2006
pursuant to his Employment Agreement which was in effect until
midnight at 12:00 a.m., March 30, 2006.
1.2 The Company and Employee
acknowledge that this Agreement is not intended to have any effect
upon the restricted shares that Employee received pursuant to the
Stock Purchase Agreement between Unislim Ireland Limited, Unislim
Clubs Limited, Ciaran McCourt, Ediets BVI, Inc. and Ediets.com,
Inc. dated July, 2004 (the “SPA”).
2. TERMINATION OF EMPLOYMENT
AGREEMENT AND OPTIONS.
2.1 Employee acknowledges and agrees
that this Agreement shall serve to terminate his Employment
Agreement and that this Agreement sets forth all the compensation
that is payable to him, effective as of the date of this
Agreement.
2.2 The Employee agrees that he will
have until June 28, 2006 (“Option Termination
Date’) to exercise all of his options which have vested
pursuant to this Agreement (“Vested Options”) that have
been granted to him by the Company during his term of his
employment with the Company as provided in the schedule shown
below. The Employee acknowledges and agrees that the only Vested
Options that he owns as of the date of this Agreement are as
follows:
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Number
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Price
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10/23/02
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25,000
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$
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1.0900
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11/04/03
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25,000
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$
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3.6650
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02/03/05
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150,000
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$
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4.2800
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08/01/05
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8,773
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$
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4.7900
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2.3 The Company and the Employee
acknowledge the termination of the Employment Agreement and the
survival and incorporation by reference herein of the provisions,
terms and conditions set forth in Section 7 of the Employment
Agreement for a period of eighteen months after the date of this
Agreement.
2.4 The Employee acknowledges and
agrees that he is resigning for personal reasons.
3. SEVERANCE PAYMENTS; TERM OF
AGREEMENT.
3.1 RELOCATION AND BENEFITS. The
Company will provide the Employee with information regarding any
benefits which may be converted to individual coverage and/or
coverage which includes his spouse in accordance with Consolidated
Omnibus Budget Reconciliation Act (COBRA) regulations. Employee
acknowledges and agrees that he will not be entitled to any
perquisites, benefits or other compensation whatsoever after the
Termination Date, except as described in this Agreement. The
Company will compensate Employee for associated expenses in the
amount of $25,000.00 to be paid in a lump sum within three
(3) business days of this Agreement’s
execution.
3.2 SEVERANCE. The Company will pay
to Employee severance in the amount of $450,000.00 to be paid in
thirty-nine (39), bi-weekly installments consistent with normal
employee payroll practices of the Company beginning on the first
payroll for the month of April, 2006.
3.2 AMOUNTS STATED BEFORE TAXES. All
amounts stated in this Agreement are prior to any deduction for
applicable withholding taxes and other amounts which may be
required to be withheld or deducted by federal and Florida
law.
3.3 TERM. Except where otherwise
indicated, the parties agree that the term of this Agreement will
be for eighteen (18) months from its effective
date.
4. MUTUAL WAIVER AND RELEASE. For
good and valuable consideration, the receipt and sufficiency of
which is acknowledged by the parties, the Employee hereby agrees
that regardless of who assumes his duties, his separation of
employment from the Company was not due in any way to age or any
other type of discrimination or any wrongful act of the Company.
With the exception of the enforcement of the rights and obligations
of this Agreement or Employee’s right to file a claim under
the worker’s compensation statutes for any accident or
illness arising from Employee’s employment with the Company,
the parties and their Releasors (as defined below) do hereby
voluntarily and fully release and forever discharge each other,
together with their past and current predecessors, successors,
shareholders, officers, directors, employees, attorneys, trustees,
insurers, representatives, contractors, subsidiaries, related
organizations and affiliates (collectively, the “Released
Parties”), jointly and individually, from any and all claims,
demands, debts, causes of action, claims for relief, and damages,
of whatever kind or nature, known or unknown, developed or
undeveloped, which Employee had, now has or may hereinafter have
from the beginning of the world to the date of this Agreement
related to or arising out of Employee’s employment by the
Company (except as provided above), including, without limitation,
all claims and all rights which the Employee may have had under
Title VII of the Civil Rights Act of 1964; the Equal Employment
Opportunity Act of 1972; the Civil Rights Act of 1991; the Age
Discrimination and Employment Act of 1967; the Employee Retirement
Security Act 42 U.S.C. ss. 1981; the Older Workers’ Benefit
Protection Act; the Americans with Disabilities Act; the Family
Medical Leave Act of 1993; the Equal Pay Act; the Fair Labor
Standards Act; the Broward County Equal Opportunity Ordinance; any
claims related to or arising out of Employee’s employment by
the Company; any federal or state whistleblower acts and any and
all other federal, state and local laws and statutes which regulate
employment; and the laws of contracts, tort and other subjects. The
Employee agrees that the forgoing enumeration of claims released is
illustrative, and the claims hereby released are in no way limited
by the above recitation of specific claims, it being the intent of
the parties to fully and completely release all claims whatsoever
in any way relating to the Employee’s employment with the
Company and to the termination of such employment except as
otherwise provided herein.
In exchange for the consideration
stated in this Agreement, effective upon the date of this
Agreement, the Company shall release and discharge Employee from
any claim or liability whether known or unknown, arising out of any
event, act or omission occurring on or before the date of this
Agreement, including, but not limited to claims arising out of
Employee’s employment or the cessation of Employee’s
employment with the Company, claims arising by virtue of
Employee’s status as an officer and/or director and/or
stockholder of the Company, claims for breach of contract, tort, as
well as any other statutory or common law claims, at law or in
equity, recognized under any federal, state, or local law;
provided, however , that the Company shall not release or
discharge Employee from (i) a breach of this Agreement, and
(ii) any claim that arises out of or relates to
Employee’s fraud, harassment or criminal activity.
5. RELEASED PARTIES AND NO ADMISSION
OF LIABILITY. For purposes of paragraph 4, “Releasors”
shall mean, collectively, the spouse of the Employee and the
Employee’s dependents, heirs, executors, administrators and
the parties’ assigns, past and present
and each of them, and their trustees, directors,
officers, agents, attorneys, insurers, employees, stockholders,
representatives, successors, assigns and all persons acting by,
through, under or in connection with them, past and present. The
parties further agree that the definition of Released Parties
contained in Section 4 of this Agreement shall relate to or
arise out of Employee’s employment by the Company
and