Re: Separation Agreement and Release Dear Glenn:
Exhibit
10.5
August
11, 2009
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Dear
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As you
know, your employment with Enable Holdings, Inc. (“the Company”) ended on July
29, 2009. Although not required to do so, the Company would like to
offer you separation pay to ease your transition to new
employment. The purpose of this Separation Agreement and Release
letter (“Agreement”) is to set forth the specific separation pay that the
Company will provide you in exchange for your agreement to the terms and
conditions of this Agreement.
By your
signature below, you agree to the following terms and conditions:
1. End of
Employment. Your employment with the Company ended effective
July 29, 2009. Upon your receipt of your final paycheck, which
included payment for services through July 29, 2009, you will have received all
compensation owed to you by virtue of your employment with the Company or
termination thereof. Upon your receipt of payment from the Company
you will have received all benefits owed to you by virtue of your employment
with the Company or termination thereof. You are not eligible for any
other payments or benefits except for those expressly described in this
Agreement, provided that you sign and do not rescind this
Agreement. The Company will send information to you regarding your
COBRA rights under separate cover. If you have any questions
regarding COBRA coverage, please contact ▇▇▇▇ ▇▇▇ directly at
(▇▇▇) ▇▇▇-▇▇▇▇ or CobraServe at (▇▇▇) ▇▇▇-▇▇▇▇.
2. Separation
Pay. Specifically in
consideration of your signing this Agreement and subject to the limitations,
obligations, and other provisions contained in this Agreement, the Company
agrees to pay you Ninety Six Thousand Dollars ($96,000), which is the equivalent of half of
your base salary on the date of the termination, less applicable withholding, to
be paid in 12 semi-monthly payments within ten (10) business days after the
expiration of the rescission period described in this
Agreement.
3. Consulting
Services. Upon
execution of this Agreement and in consideration for the Separation Pay set
forth in Section 2, the Company hereby retains you as a consultant, to advise it
with respect to certain aspect of its business. In connection
therewith, you hereby agree to perform such reasonable and necessary consulting
services of the operation functions relating to the Customer, Acquisition &
Retention department, as may be requested by the Company and its executive
officers from time to time until January 30, 2009. You hereby accept
such retention and shall in good faith perform such services, for and on behalf
and in the best interests of the Company during the Consulting
Period. It is agreed that you shall not be required to spend any
specific period or periods of time at the offices or premises of the Company in
providing the services hereunder, but will be available to consult with the
Company at mutually convenient times and places.
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4. Release of
Claims. Specifically in consideration of the separation pay
described in Section 2, to which you would not otherwise be entitled, by signing
this Agreement you, for yourself and anyone who has or obtains legal rights or
claims through you, agree to the following:
a. You
hereby do release, agree not to ▇▇▇, and forever discharge the Company of and
from any and all manner of claims, demands, actions, causes of action,
administrative claims, liability, damages, claims for punitive or liquidated
damages, claims for attorney’s fees, costs and disbursements, individual or
class action claims, or demands of any kind whatsoever, you have or might have
against them or any of them, whether known or unknown, in law or equity,
contract or tort, arising out of or in connection with your employment with the
Company, or the termination of that employment, or otherwise, and however
originating or existing, from the beginning of time through the date of your
signing this Agreement.
b. This
release includes, without limiting the generality of the foregoing, any claims
you may have for wages, bonuses, commissions, penalties, compensation, deferred
compensation, vacation pay, other paid time off, separation benefits,
defamation, invasion of privacy, negligence, emotional distress, improper
discharge (based on contract, common law, or statute, including any federal,
state or local statute or ordinance prohibiting discrimination or retaliation in
employment), violation of the United States Constitution, the Illinois
Constitution, the Illinois Human Rights Act, Title VII of the Civil Rights Act,
42 U.S.C. § 2000e et seq., the Age
Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq., the Americans with
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. § ▇▇▇▇▇ et seq., the Employee
Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., the Family and
Medical Leave Act, 29 U.S.C. § 2601 et seq., any claim
arising under any local, state or federal ordinance, law or regulation, and any
claim for retaliation, harassment or discrimination based on sex, pregnancy,
race, color, creed, religion, age, national origin, marital status, sexual
orientation, disability, status with regard to public assistance, military
status or discharge or other protected class, or sexual or other
harassment. You hereby waive any and all relief not provided for in
this Agreement. You understand and agree that, by signing this
Agreement, you waive and release any past, present, or future claim to
employment with the Company and you agree not to seek employment with the
Company.
c. You
affirm that you have not caused or permitted, and to the full extent permitted
by law will not cause or permit to be filed, any charge, complaint, or action of
any nature or type against the Company, including but not limited to any action
or proceeding raising claims arising in tort or contract, or any claims arising
under federal, state, or local laws, including discrimination
laws. If you file, or have filed on your behalf, a charge, complaint,
or action, you agree that the payment described above in Section 2 is in
complete satisfaction of any and all claims in connection with such charge,
complaint, or action.
d. You
are not, by signing this Agreement, releasing or waiving (1) any vested interest
you may have in any 401(k) or profit sharing plan by virtue of your employment
with the Company, (2) any rights or claims that may arise after the Agreement is
signed, (3) the post-employment benefits and payments specifically promised to
you under this Agreement, or (4) the right to institute legal action for the
purpose of enforcing the provisions of this Agreement.
e. The
Company, as used in this Agreement, shall mean uBid, Inc. and its parent,
subsidiaries, divisions, affiliates, insurers, and its and their present and
former officers, directors, shareholders, trustees, employees, agents,
representatives, attorneys, and consultants, and the successors and assigns of
each, whether in their individual or official capacities, and the current and
former trustees or administrators of any pension or other benefit plan
applicable to the employees or former employees of the Company, in their
official and individual capacities.
5. Notice of Right to Consult
Attorney and Twenty-One (21) Day Consideration Period. By
signing this Agreement, you acknowledge and agree that the Company has informed
you by this Agreement that (1) you have the right to consult with an attorney of
your choice prior to signing this Agreement, and (2) you are entitled to
twenty-one (21) days from the receipt of this Agreement to consider whether the
terms are acceptable to you. The Company encourages you to use the
full 21-day period to consider this Agreement, but you have the right, if you
choose, to sign this Agreement prior to the expiration of the twenty-one (21)
day period.
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6. Notification of Rights under
the Federal Age Discrimination in Employment Act (29 U.S.C. § 621
et seq.). You are hereby notified of your right to
rescind the release of claims arising under the federal Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq., within seven (7) calendar days of your
signing this Agreement. In order to be effective, the rescission must
(a) be in writing; (b) delivered to ▇▇▇▇ ▇▇▇, Human Resources Manager, Enable
Holdings, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, by
hand or mail within the required period; and (c) if delivered by mail, the
rescission must be postmarked within the required period, properly addressed to
▇▇▇▇ ▇▇▇ as set forth above, and sent by certified mail, return receipt
requested. This Agreement will be effective upon the expiration of
the 7-day period without rescission. You understand that if you
rescind any part of this Agreement in accordance with this Paragraph 5, you will
not receive the separation pay described in Paragraph 2.
7. Return of
Property. By signing this Agreement, you acknowledge and agree
that all documents and materials relating to the business of, or the services
provided by, the Company are the sole property of the Company. By
signing this Agreement you further agree and represent that you have returned to
the Company (specifically ▇▇▇▇ ▇▇▇) all of its property, including but not
limited to, all company documents, records and keys.
8. Confidential and Proprietary
Information. By signing this Agreement, you acknowledge and
agree that you have had access in your employment with the Company to
confidential and proprietary information of the Company and further acknowledge
and agree that the release or disclosure of any confidential or proprietary
information will cause the Company irreparable injury. By signing
this Agreement, you acknowledge that you have not used or disclosed, and agree
that you will not at any time use or disclose, directly or indirectly, to any
other entity or person, any confidential or proprietary information of the
Company. For purposes of this Agreement, the term “confidential or
proprietary information” shall include, but not be limited to, information about
the personal or business affairs of the Company’s customers, vendors, or
employees.
9. Confidentiality. You
promise and agree not to disparage the Company or disclose or discuss, directly
or indirectly, in any manner whatsoever, any information regarding either (a)
the contents and terms of this Agreement, or (b) the substance and/or nature of
any dispute between the Company and any employee or former employee, including
yourself. You agree that the only people with whom you may discuss
this confidential information are your legal and financial advisors and your
spouse, if applicable, provided they agree to keep the information confidential,
or as otherwise required by law.
10. Remedies. If
you breach any term of this Agreement, the Company shall be entitled to its
available legal and equitable remedies, including but not limited to suspending
and recovering any and all payments and benefits made or to be made under this
Agreement. If the Company seeks and/or obtains relief from an alleged
breach of this Agreement, all of the provisions of this Agreement shall remain
in full force and effect.
11. Non-Admission. It
is expressly understood that this Agreement does not constitute, nor shall it be
construed as an admission by the Company or you of any liability or unlawful
conduct whatsoever. The Company and you specifically deny any
liability or unlawful conduct.
12. Successors and
Assigns. This Agreement is personal to you and may not be
assigned by you without the written agreement of the Company. The
rights and obligations of this Agreement shall inure to the successors and
assigns of the Company.
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13. Enforceability. If
a court finds any term of this Agreement to be invalid, unenforceable, or void,
the parties agree that the court shall modify such term to make it enforceable
to the maximum extent possible. If the term cannot be modified, the
parties agree that the term shall be severed and all other terms of this
Agreement shall remain in effect.
14. Law
Governing. This Agreement shall be governed and construed in
accordance with the laws of the State of Illinois.
15. Full
Agreement. This Agreement contains the full agreement between
you and the Company and may not be modified, altered, or changed in any way
except by written agreement signed by both parties. The parties agree
that this Agreement supersedes and terminates any and all other written and oral
agreements and understandings between the parties.
16. Acknowledgment of Reading
and Understanding. By signing this Agreement, you acknowledge
that you have read this Agreement, including the release of claims contained in
Section 4, and understand that the release of claims is a full and
final release of all claims you may have against the Company and the
other entities and individuals covered by the release. By signing,
you also acknowledge and agree that you have entered into this Agreement
knowingly and voluntarily.
After you have reviewed this Agreement
and obtained whatever advice and counsel you consider appropriate regarding it,
please evidence your agreement to the provisions set forth in this Agreement by
dating and signing both copies of the Agreement. Please then return
one copy of this Agreement to me in the envelope provided by no later than
August 31, 2009. You should keep the other copy for your
records. We wish you the best in your future endeavors.
Sincerely,
▇▇▇▇
▇▇▇
Human
Resources Manager
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ACKNOWLEDGMENT AND
SIGNATURE
By signing below, I, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
acknowledge and agree to the following:
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I
have had adequate time to consider whether to sign this Separation
Agreement and Release.
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I
have read this Separation Agreement and Release
carefully.
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I
understand and agree to all of the terms of the Separation Agreement and
Release.
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I
am knowingly and voluntarily releasing my claims against the
Company.
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I
have not, in signing this Agreement, relied upon any statements or
explanations made by the Company except as for those specifically set
forth in this Separation Agreement and Release.
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I
intend this Separation Agreement and Release to be legally
binding.
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I
am signing this Separation Agreement and Release on or after my last day
of employment with the Company.
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Accepted
this ____ day of _______________, 200__.
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/s/
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