Exhibit 10.16
VOLUNTARY SEPARATION AGREEMENT
AND GENERAL RELEASE
THIS AGREEMENT dated February 1,
2005, is between Alan M. Aronovitz a/k/a Azriel Aronovitz
(“Employee”), who resides at 605 Woodmere Avenue,
Woodmere, New York 11598 and Vitamin Shoppe Industries Inc.
(“Company”), to terminate their relationship on an
amicable basis. Therefore, they hereby agree as follows:
PART I
Company agrees as follows:
1. Company will pay Employee all
compensation amounts due and owing to him in consideration of his
position as an employee until January 8, 2005 (the
“Termination Date”), the receipt of which Employee
hereby acknowledges.
2. In addition to the amounts
specified in Part I, paragraph 1 of this Agreement, Company will
pay Employee TWO HUNDRED TWENTY-FIVE THOUSAND DOLLARS
($225,000.00), an amount equal to nine months’ salary as a
voluntary severance, minus any adjustments as provided in Part I,
Section 7 hereof. This amount shall be paid to Employee in
weekly installments commencing not more than fifteen (15) days
after execution hereof, through October 7, 2005, based upon
the sum of $5,769.23 per week, less all appropriate deductions, and
will be reported on a Form W-2. The first such payment shall
include weekly installments for the period from January 9,
2005 through the date thereof.
3. In addition to the amounts
specified in Part I, paragraphs 1 and 2 of this Agreement, Company
will pay Employee FIFTY THOUSAND DOLLARS ($50,000.00), as a bonus
for calendar year 2004, minus any adjustments as provided in Part
I, Section 7 hereof. This payment will be made no later than
February 1, 2005. This amount shall be paid to Employee in a
lump sum, less all appropriate deductions, and will be reported on
a Form W-2.
4. In addition to the amounts
specified in Part I, paragraphs 1, 2 and 3 of this Agreement,
Company will pay Employee a bonus for calendar year 2005. This
amount will not be calculated until the first quarter of 2006 and
will be prorated based upon the actual amount of time that Employee
was employed by the Company during 2005, minus any adjustments as
provided in Part I, Section 7 hereof. This payment will be
made no later than the date bonus payments are made to the
executive officers of the Company in 2006. This amount shall be
paid to Employee in a lump sum, less all appropriate deductions,
and will be reported on a Form W-2.
5. Until the earlier of (a) the
end of the Severance Period (hereinafter defined), and (b) the
time when Employee becomes eligible for insurance coverage offered
by any subsequent employer, reimburse Employee for a portion of the
cost of Employee’s health insurance benefits (if Employee
elects to continue the same), pursuant to the Consolidated Budget
Reconciliation Act (“COBRA”), 29 U.S.C.
§ 1161 et seq ., with Employee and Company
paying the same portion of the costs thereof as each would pay if
Employee’s employment was not terminated hereunder, and allow
Employee to continue to participate in the life insurance and long
term disability insurance programs of the Company throughout the
Severance Period consistent with the terms contained in
Employee’s July 14, 2004 agreements and any governing
documents.
6. Company will provide at its
expense, one (1) year of outplacement services with Right
Management at the “executive” level. Company agrees
that it shall not contest Employee’s application for
unemployment benefits.
7. Notwithstanding the provisions of
Sections 2, 3 and 4 above, if during the period from the
Termination Date through a date that is nine (9) months
thereafter (the “Severance Period”), Employee
(a) becomes employed or (b) performs 390 or more hours of
consulting services for a single client in any ninety (90) day
period, Employee shall promptly notify Company of such employment
or consulting engagement, and the severance payable pursuant to
Sections 2, 3 and 4 hereof shall be reduced by the gross amount of
the compensation or consulting fees earned by Employee during the
Severance Period pursuant to such employment or consulting
engagement. Because the payment under Section 3 shall have
been previously
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made at the time Company becomes entitled to a
credit on account thereof, Company is authorized to deduct any such
credit against sums due under Sections 2 and 4 of this Part I. In
the event Company shall have paid any sum hereunder and Employee
thereafter becomes obligated to Company for an amount in excess of
that paid by Company, Employee shall reimburse the same to Company
within thirty (30) days of determination thereof.
8. Company agrees that, when asked
by prospective employers about Employee’s employment at the
Company, it will disclose only Employee’s last salary and job
title with the Company and dates of employment. No further
information shall be provided unless expressly authorized in
writing by Employee.
PART II
Employee agrees as follows:
1. Employee hereby voluntarily
resigns his employment from the Company effective January 7,
2005.
2. Employee does hereby irrevocably
and unconditionally release and forever discharge and by these
presents does for himself, his heirs, executors, administrators,
representatives, successors and assigns, release and forever
discharge the Company, its predecessors, successors, assigns,
representatives, parents, subsidiaries, divisions, affiliates and
all related companies, and its present and former officers, agents,
directors, supervisors, attorneys, employees, stockholders and each
and any one of them and their heirs, executors, administrators,
successors and assigns, and all persons acting by, through, under
or in concert with any of them (hereinafter referred to
collectively as “Releasees”) of and from all manner of
action and actions, cause and causes of action, suits, claims,
debts, sums of money, accounts, reckonings, bonds, bills, claims
for attorneys’ fees, interest, expenses and costs,
specialties, covenants, contracts,
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controversies, agreements, promises, variances,
trespasses, damages, judgments, executions, entitlements, claims
and demands of any nature whatsoever, known or unknown, suspected
or unsuspected, in law or in equity, civil or criminal, vested or
contingent, which against the Releasees the Employee ever had, now
has or asserts, or which he or his heirs, executors, successors,
assigns or administrators hereafter can, shall or may have or may
assert, for, upon or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the date hereof, it
being the intention herein to release the Releasees from any and
all claims of any and every nature, whether known or unknown, up to
the date of this Agreement, unrestricted in any way by the nature
of the claim including, though not by way of limitation, all
matters which were asserted, could have been asserted or may be
asserted, arising out of Employee’s employment with the
Company and the separation thereof, his relationship with any of
his supervisors and any other state or federal statutory,
constitutional, or common law claims, including, but not limited
to, all “public policy” claims, all claims for breach
of contract or implied contract, all claims for benefits (except
vested benefits), all claims under the Age Discrimination in
Employment Act, as amended by the Older Workers Benefit Protection
Act, 29 U.S.C. §621, et seq ., the Employee
Retirement Income Security Act of 1974, 29 U.S.C. §1001,
et seq ., the Family and Medical Leave Act of 1993,
29 U.S.C. §2601 et seq ., Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §2000e, et seq .,
as amended, the Americans With Disabilities Act, 42 U.S.C.
§12101, et seq ., the Fair Labor Standards Act,
29 U.S.C. §201 et seq ., the New York State
Human Rights Law §296(1)(a), et seq ., the New
York City Human Rights Law, Chapter 1, Title 8 of the
Administrative Code of the City of New York, §8-107(a),
et seq ., the New York Workers’ Compensation
Law, §10 (McKinney 1992), et seq ., as amended,
the Worker Adjustment and Retraining Notification Act, 29 U.S.C.
§2101 et seq ., the Conscientious Employee
Protection Act, N.J.S.A. 34:19-1, et seq ., the New
Jersey Law Against
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Discrimination, N.J.S.A. 10:5-1, et
seq ., the New Jersey Family Leave Act, N.J.S.A. 34:11B-1,
et seq ., the New Jersey Equal Pay Act, N.J.S.A.
34:11-5
