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6.03[1][d] Form: Separation Agreement and Specific Release THIS SEPARATION AGREEMENT AND SPECIFIC RELEASE ("Agreement") is made, entered into and effective as of the "Effective Date" as that term is defined in Section 22 of this Agreement, between Jones & Smith, a law firm partnership ("the Firm"), located at ("the Office") on the one hand, and William J. Smith, residing at _____________________ ("Smith" or "Employee") on the other hand.WHEREAS, the Firm and Smith are parties to an agreement dated as of _______ __, 20__ entitled, "the Agreement" ("the Partnership Agreement"); and WHEREAS, pursuant to Section __ of the Firm's Partnership Agreement, Smith is obligated to provide the Firm and the Office with ninety (90) days prior written notice of termination of the Partnership Agreement; and WHEREAS, on _____ __, 20__, Smith provided the Firm and the Office with written notice of his withdrawal as a partner, which notice, pursuant to Section __ of the Partnership Agreement, is not effective until _______, __, 20__; and WHEREAS, Smith and the Firm have determined that it would be mutually beneficial if the Firm agreed to waive its right under Section __ of the Partnership Agreement to receive ninety (90) days prior written notice of Employee's termination of the Partnership Agreement so that Smith may pursue valuable alternative professional opportunities, and WHEREAS, Smith and the Firm have further determined that it would be mutually beneficial if the Firm agreed to permit Smith to cease performing any services for the Firm and the Office and to cease appearing for work after _______ __, 20__ to permit Smith to pursue valuable alternative professional opportunities, but to delay formal termination of the Partnership Agreement until and through _______ __, 20__ so that Smith would remain entitled to participate in the Firm's 401(k) program through _______ __, 20__; and WHEREAS, Smith has also determined that Smith would receive substantial benefits if the Firm agreed not to use Employee's termination of the Partnership Agreement prior to the ninety (90) day notice period set forth in Section __ of the Partnership Agreement as a reason for challenging Smith's claim(s) against the Firm or the Office (collectively, "the Smith Claims"); and WHEREAS, the Firm has determined that it is willing to (a) waive its right under Section __ of the Partnership Agreement to receive from Smith ninety (90) days prior written notice of termination of the Partnership Agreement, and permit Smith to terminate the Partnership Agreement as of _______ __, 20__ so that Smith may pursue valuable alternative professional opportunities, (b) permit Smith to cease performing any services for the Firm and the Office and to cease appearing for work after _______ __, 20__ to permit Smith to further pursue valuable alternative professional opportunities, (c) permit Smith to terminate the Partnership Agreement as of _______ __, 20__ rather than _______ __, 20__ so that Smith will remain entitled to participate in the Firm's 401(k) program through _______ __, 20__ and (d) refrain from using Smith's termination of the Partnership Agreement prior to the ninety (90) day notice period set forth in Section __ of the Partnership Agreement as a reason for challenging the Smith Claims; NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other and additional consideration, the receipt and legal sufficiency of which are hereby acknowledged by the parties hereto; 1. The Partnership Agreement and Smith's employment and/or partnership relationship with the Firm are hereby terminated as of 5:00 p.m. EST on _______ __, 20__ ("the Termination Date"). Smith acknowledges and agrees that he has resigned from his employment and/or partnership relationship with the Firm voluntarily and of his own free will. 2. By the end of business on _______ __, 20__, the Office shall pay Smith all accrued salary less all applicable taxes, including, without limitation, income tax, FUTA and FICA, through _______ __, 20__. 3. Subject to and conditional upon Smith's full performance of his obligations set forth in Sections 7, 8 and 9 of this Agreement, after _______ __, 20__, Smith (a) shall not be required to, and shall not, perform any services for the Firm, (b) shall not be required, and shall not be permitted, to appear in the Office, (b) shall not have access to or use of the Firm's or Office's e-mail, voice-mail, internet, intranet or extranets, (c) shall not be entitled to receive, and shall not receive, any base salary for the period after _______ __, 20__. 4. Through _______ __, 20__, the Firm shall continue to provide to Smith all health and welfare benefits, including, without limitation, regularly scheduled contributions to Smith's designated 401(k) plan account(s)in accordance with Smith's current 401(k) plan contribution instructions. 5. Smith will receive, at the same time such information as is made available by the Firm to Partners of the Firm: (a) financial information concerning the Firm's performance for fiscal year 20__; (b) all documents showing Smith' work in process and unbilled time by Work I.D. and Responsible I.D. and (3) accounts receivable for Smith by Work I.D. and Responsible I.D. 6. The Firm hereby waives and relinquishes its right under Section __ of the Partnership Agreement to receive from Smith ninety (90) days prior notice of Smith's termination of the Partnership Agreement. 7. Smith shall not copy or remove from the Firm or the Office any file pertaining to any client or any client matter unless and until written instructions from an authorized representative of any such client to turn over any such file(s) to Employee are received by the Managing Partner of the Office. 8. Smith shall not remove from the Firm or the Office any file, including, without limitation, any file pertaining to any client or any client matter, without that file having been inspected by the Managing Partner of the Office, or a person designated by him. 9. Prior to 5:00 p.m. on _______ __, 20__, Smith (a) shall have had caused to be entered into the Office's computer billing system all of Smith's billable and non-billable time through _______ __, 20__ and (b) shall have had caused to be finalized and sent to clients statements of fees and disbursements covering all time and disbursements incurred through _______ __, 20__ relating to each and every client and matter for which Smith is designated as billing partner or for which Smith is otherwise responsible for billing. 10. Subject to and conditional upon Smith's full performance of his obligations set forth in Sections 7, 8 and 9 of this Agreement, the Firm shall not challenge the Smith Claims based on or by reason of Smith's termination of the Partnership Agreement prior to the ninety (90) day notice period set forth in Section __ of the Partnership Agreement. Nothing herein is intended to be, or should be construed as, a waiver or relinquishment by the Firm or the Office of any other ground, reason, defense or basis for challenging Smith's Claims, which grounds, reasons, defenses and bases are expressly reserved herein by the Firm and the Office. 11. Subject to and conditional upon Smith's full performance of his obligations set forth in Sections 7, 8 and 9 of this Agreement, on _______ __, 20__, the Firm shall deliver to Smith' attorney, _____________________, a check payable to Smith in the amount of $______ representing the full value of all unused vacation days earned and accrued by Smith through _______ __, 20__ less all applicable taxes and other authorized deductions, including, without limitation, income tax, FUTA and FICA, which check Smith's attorney shall hold in escrow until the following events have occurred: (a) eight days have expired after Smith's execution of this Agreement, and (b) Smith has not revoked this Agreement in writing pursuant to the provisions of Section 15(f) of this Agreement or in any other manner. Smith agrees and acknowledges that the full value of all of his unused earned and accrued vacation days as of _______ __, 20__ less all applicable taxes, including, without limitation, income tax, FUTA and FICA, equals $_____. 12. The Firm shall reimburse Smith for all expenses directly related to the performance of Firm business for which Smith has paid with his Firm American Express card prior to _______ __, 20__. The Firm's obligation to reimburse Smith for any such expense is subject to and conditional upon Smith's provision to the Firm of documentary evidence and an explanation of such expense sufficient to enable the Firm to verify to its own satisfaction that such expense was directly related to the performance of Firm business. 13. As and for consideration for the covenants, promises and agreements contained in this Agreement and the benefits and other consideration received by Smith pursuant to this Agreement, and as a material inducement to the Firm to give same to Smith, Smith, for himself and his heirs, administrators, executives and assigns or for any other individual or entity who may claim by or through him, has irrevocably and unconditionally released, remised and forever discharged, and does hereby irrevocably and unconditionally release, remise and forever discharge, the Firm, the Office, all present and former Partners and employees of the Firm and the Office, and all of their respective predecessors, successors, assigns, joint venture partners, assignees, grantees, fiduciaries, agents, directors, representatives and attorneys, and the heirs, executors and administrators of such of the foregoing as are natural persons, and all persons acting by, through, under or in concert with any of the foregoing (hereinafter, "Releasees"), from any and all claims, charges, complaints, liabilities, obligations, promises, agreements, contracts, doings, omissions, controversies, actions, rights, costs, debts, sums of money, reckonings, covenants, demands, causes of action, suits at law or equity, damages, punitive damages, verdicts, losses, executions, expenses, attorneys' fees, costs and judgments of every kind and nature whatsoever against any of the Releasees, which Smith now has, may have or claim to have, or which Smith at any time heretofore had, may have had or claimed to have had, from the beginning of the world through the Effective Date (as defined in Section 22 of this Agreement), whether known or unknown, anticipated or unanticipated, asserted or unasserted, fixed or contingent, foreseeable or unforeseeable, accrued or unaccrued (hereinafter, collectively, "claims"), for, upon, by reason of, resulting from, arising from, concerning or relating to, discrimination based on any basis, including, without limitation, sex, race, color, religion, religious creed, age, national origin, citizenship, ancestry, handicap, physical or mental disability or disorder, mental retardation, learning disability, medical condition, marital status, veteran's status, carrier status or sexual orientation, arising under any federal, state or statutes, regulations, ordinances or laws, including, without limitation, common law, Title VII of the Civil Rights Act of 1964, as amended, the Americans With Disabilities Act, the Civil Rights Act of 1991, the Civil Rights Act of 1866, as amended, the Family and Medical Leave Act, the Equal Pay Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act, as amended, the Age Discrimination in Employment Act (hereinafter, "ADEA"), as amended, the Older Workers Benefit Protection Act of 1990 (hereinafter, "OWBPA"), the Rehabilitation Act of 1973, the Immigration Reform and Control Act of 1986, the Worker Adjustment and Retraining Notification Act, the Veteran's Reemployment Rights Act, the Uniformed Services Employment and Reemployment Rights Act of 1994, the Vietnam-Era Veterans' Readjustment Assistance Act, the Consolidated Omnibus Budget Reconciliation Act, the New York State Labor Law, the New York State Equal Pay Law, the New York State Human Rights Law, the New York State Executive Law, the Administrative Code of the City of New York, and/or the New York City Human Rights Law, for, upon, by reason of, resulting from, arising from, concerning, relating to or in any manner connected with, any matter, event, act, omission or situation, including, without limitation, Smith's employment and/or partnership relationship with the Firm or the Office, the cessation of Smith's employment and/or partnership relationship with the Firm or the Office, the Partnership Agreement and/or the termination of the Partnership Agreement ("Discrimination Claims"). 14. Smith represents and warrants to Releasees that he understands and agrees that this Agreement shall act as a full and final release of all Discrimination Claims of every nature and kind whatsoever that have arisen or that could have arisen between Smith on the one hand, and Releasees on the other hand, prior to the Effective Date (as defined in Section 22 of this Agreement), whether such Discrimination Claims are currently known or unknown, anticipated or unanticipated, asserted or unasserted, fixed or contingent, foreseeable or unforeseeable, accrued or unaccrued. 15. To comply with the OWBPA, and for all other purposes, the Firm, in this Agreement, has advised, and hereby advises, Smith, of the legal requirements of the OWBPA and fully incorporates the legal requirements of the OWBPA into this Agreement, as follows:(a) Smith expressly acknowledges and agrees that this Agreement is written in layman's terms and Smith understands and comprehends its terms. (b) In this Agreement, the Firm hereby advises Smith to consult with an attorney to review this Agreement prior to entering into and executing this Agreement, and Smith hereby expressly acknowledges that he has consulted with an attorney of his choice, _______, Esq. of ___________ , to review this Agreement prior to entering into and executing this Agreement. (c) The Firm expressly acknowledges and agrees that, by entering into and executing this Agreement, Smith is not waiving the Smith Claims or any claims that may arise after the date that he enters into and executes this Agreement, nor is Smith waiving any claim that his waiver of claims for age discrimination under the ADEA set forth in this Agreement is invalid. (d) Smith expressly acknowledges and agrees that the Firm has advised him in this Agreement that he may consider this Agreement for a period up to twenty-one (21) days before entering into and executing it, and that he should consult with an attorney before entering into and executing it. (e) Without prejudice to and without waiving the Smith Claims, Smith expressly agrees and acknowledges that, pursuant to this Agreement, he is receiving consideration beyond anything of value to which he is already entitled under the Partnership Agreement, any other express or implied agreements and/or applicable law. (f) The Firm hereby advises Smith, and Smith hereby expressly agrees and acknowledges, that the Firm has advised Smith that he may revoke this Agreement, in writing, delivered to the Managing Partner Jones & Smith, within seven (7) days after executing this Agreement, and that this Agreement shall not become effective until the expiration of said seven (7) day period after Smith executes this Agreement. 16. This Agreement shall not in any way be construed as an admission by any of the Releasees of any acts, conduct or omission constituting wrongdoing against Smith or any other person, or of fault or liability of any of the Releasees arising from or in any manner connected with, Smith's employment and/or partnership relationship with the Firm or the Office, the cessation of Smith's employment and/or partnership relationship with the Firm or the Office, the Partnership Agreement and/or the termination of the Partnership Agreement, and the Firm specifically disclaims and denies any liability to or wrongdoing against Smith or any other person, on the part of all Releasees. 17. Smith, for, together, with and on behalf of himself and his heirs, beneficiaries, executors, administrators, agents, representatives, attorneys, successors and assigns, also agrees and covenants not to file a lawsuit, arbitration, administrative complaint or legal claim against the Firm or the Office or any of the Releasees asserting, alleging or in the nature of the Discrimination Claims, or to assert or allege any of the Discrimination Claims. Any lawsuit, administrative claim, arbitration or other legal claim filed in violation of this Agreement by Smith, for, together, with and on behalf of himself or his heirs, beneficiaries, executors, administrators, agents, representatives, attorneys, successors or assigns, shall automatically constitute a breach of this Agreement. 18. Smith represents and warrants to the Firm and the Office that he has the full power, capacity, and authority to enter into this Agreement, and that no portion of any claim, right, demand, action, or cause of action that Smith has or might have had arising out of the acts, events, transactions, and occurrences referred to herein have been assigned, transferred, or conveyed to any person not a party to this Agreement, by way of subrogation, operation of law, or otherwise, and that no releases or settlement agreements are necessary or need to be obtained from any other person or entity to release and discharge completely any of Smith's claims released in this Agreement. 19. Smith represents and warrants to the Firm and the Office that he understands that if the facts upon which this Agreement are found hereafter to be different from the facts now believed to be true, this Agreement will remain binding and effective and the parties expressly accept and assume the risk of such possible differences and agree that this Agreement shall remain binding and effective, notwithstanding such potential differences. 20. Smith acknowledges that he has entered into this Agreement freely, knowingly, and voluntarily; it is further understood and agreed that this Agreement was reached and agreed to by the parties in order to avoid the expense and uncertainties of potential litigation. Smith further acknowledges that he understands the legal effect of this Agreement, and that he has consulted his attorney regarding the legal effect of this Agreement. 21. The Firm and Smith agree that, other than in connection with any lawsuit, arbitration or other proceeding arising from or relating to the Smith Claims or other claims asserted by either of the parties against the other, Smith will not denigrate, disparage, criticize, defame or make any false or derogatory statements concerning the Firm, the Office, or any Partners or employees or the Firm of the Office, and the Firm and the Office will not denigrate, disparage, criticize, defame or make any false or derogatory statements concerning Smith. Any references and any communications to third parties regarding Smith or Smith's status shall be provided by the managing partner on behalf of the Firm. 22. This Agreement shall become effective on the eighth day after Smith executes this Agreement, provided that, Smith has not revoked this Agreement in writing within seven days after executing this Agreement in accordance with Section 15(f) of this Agreement or in any other manner ("the Effective Date"). Smith's non-revocation of this Agreement in writing within seven days after executing this Agreement in accordance with Section 15(f) of this Agreement or in any other manner is a condition precedent to this Agreement becoming effective. 23. Any and all issues, disputes, claims or controversies arising out or relating to this Agreement, the Partnership Agreement, or the relationship, mutual covenants or obligations between the parties set forth in the Partnership Agreement, or the validity, enforceability, interpretation, performance, breach or termination of either this Agreement or the Partnership Agreement, shall be resolved exclusively by binding arbitration in the City of __________, State of ___________, in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. 24. Any notice required or permitted by this Agreement shall be given in writing, either personally or by mail, to the following addresses:If to the Firm: ______________________________ Managing Partner, Jones & Smith If to Smith: William J. Smith and, by facsimile, to: ____________, Esq. at (___) ___-____ and such notice shall be deemed received three (3) days after mailing if properly posted, or upon receipt if personally delivered. 25. General Provisions. (a) This Agreement shall inure to the benefit of and be binding upon Smith and any of his heirs, administrators, executives and assigns or any other individual or entity who may claim by or through him. Smith's rights and obligations under this Agreement shall not be assigned, pledged, or encumbered by him without the Firm's written consent. (b) No modification, amendment or waiver of any provision of this Agreement shall be effective unless approved in writing by both parties. The failure of either party at any time to enforce any of the provisions of this Agreement shall not be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision hereof in accordance with its terms.(c) Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. (d) This Agreement is complete and sets forth the entire understanding of the parties regarding the subject matter thereof. All existing agreements, contracts, or understandings between the parties, whether oral or written, relating to the subject matter of this Agreement are hereby superseded and rendered invalid by this Agreement. (e) All questions concerning the construction, validity, interpretation and enforcement of this Agreement shall be governed by the internal laws of the State of New York without regard to its conflicts of laws principles. (f) The "WHEREAS" recitals are an integral part of this Agreement, and are therefore incorporated herein as a part of this Agreement. (g) This Agreement may be executed in counterparts, each of which together constitute one and the same instrument. IN WITNESS WHEREOF, the parties have hereunto voluntarily executed this Agreement on the dates indicated below. ___________________ William Smith Dated: _____________________ STATE OF ____________) ) SS: COUNTY OF __________) On _______ __, 20__, before me personally came William Smith, to me known to me or proved to me on the basis of satisfactory evidence to be the individual described in, and who executed the foregoing Separation Agreement and Specific Release, and who, by me duly sworn, did depose and say that deponent resides at _________, and who duly acknowledged to me that he executed the foregoing Separation Agreement and Specific Release in his individual capacity as his free, knowing and voluntary act, and that by his signature on the foregoing Separation Agreement and Specific Release, executed the same. Sworn to before me this__ day of ________, 20__ _____________________ Notary Public Jones & Smith By: _______________________ Managing Partner Dated: ______ __, 20__ STATE OF ____________)) SS: COUNTY OF __________) On ______ __, 20__, before me personally came __________, Esq., known to me or proved to me on the basis of satisfactory evidence to be the individual described in, and who executed the foregoing Separation Agreement and Specific Release, and who, by me duly sworn, did depose and say that deponent resides at __________ that deponent is the Managing Partner of Jones & Smith, the entity described in, and which executed, the foregoing Separation Agreement and Specific Release, and that deponent is authorized to execute the foregoing Separation Agreement and Specific Release. Sworn to before me this__ day of ________, 20__ _____________________ Notary Public