Exhibit 10.8


 





March 17, 2003


 


Mr. Kenneth P. Fleischer


557 General Knox Road


King of Prussia, PA 19406


 


Separation Agreement


 


Dear Ken:


 


This letter
agreement sets forth the terms and conditions of our agreement regarding your
termination of employment with Equinox Holdings, Inc. (the “Company”)
on the last day of your employment with the Company as determined in accordance
with the second sentence of Section 4(a) hereof (the “Termination Date”).


 


1.             Termination of Employment.   Effective as of the Termination Date, you
hereby resign from employment with, and as an officer of, the Company and each
of its subsidiaries and affiliates.


 


2.             Payments and Benefits.   As partial consideration for entering into
this Agreement and subject to paragraph 9(b) hereof, the Company shall pay you
(i) $75,000, payable in
substantially equal installments on the Company’s regular payroll dates
beginning after the Termination Date and ending nine months thereafter, and (ii) $168,299, in respect of your options
granted pursuant to the Equinox Holdings, Inc. 2000 Stock Incentive Plan (the “2000
Plan”), payable in substantially equal installments on the
Company’s regular payroll dates beginning after the Termination Date and ending
nine months thereafter.  Subject to
paragraph 9(b) hereof, as soon as practicable, but in no event later than ten
(10) business days following the Termination Date, the Company shall pay you
any unpaid base salary for the period prior to and including the Termination
Date.  You will also be eligible to receive
a pro-rata Incentive Bonus (as defined in the Employment Agreement (as defined
below)) in respect of the Company’s 2002 fiscal year, based on the number of
days you are employed by the Company during such fiscal year.  In addition to the other amounts you are
entitled to receive under this Agreement, if the Termination Date occurs at any
time after September 1, 2003 (i.e.,
Labor Day), you shall be entitled to receive a supplemental payment of $25,000
from the Company, which shall be payable in substantially equal installments on
the Company’s regular payroll dates.


 


 


895 broadway | new york, new york 10003


 


www.equinoxfitness.com


 

















 


3.             Option Cancellation.


 


(a)           You acknowledge and agree that, on
the Termination Date, all of your options to purchase shares of the Company’s
common stock that were granted to you under the 2000 Plan shall be
automatically canceled and terminated, and your rights in respect of such
options shall automatically be forfeited without any liability or obligation on
the part of the Company in respect thereof (except as provided herein).


 


(b)           Effective as of the Termination Date,
the Company and you hereby acknowledge and agree that your 25,000 options (the “Rollover
Options”) to purchase shares of the Company’s common stock
that were granted to you under the Equinox Holdings, Inc. 1998 Stock Incentive
Plan (the “1998 Plan”) will remain outstanding following the
Termination Date, subject to the terms and conditions of the 1998 Plan and any
option agreement(s) evidencing the grant of such Rollover Options (except for
Section 7(b)(ii) of the 1998 Plan).


 


4.             Termination of Agreements.


 


(a)           Effective as of the Termination Date,
the Company and you hereby agree that your Employment Agreement, dated January
8, 2001, with the Company, pursuant to which the Company employed you as its
Chief Financial Officer (the “Employment Agreement”) are
terminated in all respects, and that you and the Company are fully, completely
and irrevocably and forever discharged from any and all obligations set forth
therein, pursuant thereto or arising therefrom.  Notwithstanding the foregoing, you hereby agree to continue to
discharge the duties and responsibilities specified in Section 2 of your
Employment Agreement for the period commencing on the date hereof and ending on
the date upon which the Chief Executive Officer of the Company determines in
his sole discretion, that the training and transitioning program established
for the new Chief Financial Officer hired by the Company has been completed.


 


(b)           Notwithstanding anything to the
contrary contained in paragraph 4(a), at all times hereafter.  Sections 8 and 9 of the Employment Agreement
are incorporated by reference herein and made a part hereof, and as so
incorporated, shall remain in full force and effect in accordance with their
respective terms.


 


(c)           Notwithstanding anything to the
contrary contained in this letter agreement, during the period you receive
payments pursuant to this letter agreement, you agree to make yourself
available to, and cooperate with, the Company, on a reasonable basis, for any
post-Termination Date assistance that the Company reasonably requires.


 


5.             General Release of Claims by You.


 


(a)           Release of Claims.  Except for the benefits provided in Section
2 hereof, any accrued vested benefits available to you under the express terms
and conditions of


 


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any employee benefit plan
maintained by the Company, and your right to continue medical coverage at your
own expense after the Termination Date pursuant to Section 4980B of the
Internal Revenue Code of 1986, as amended, you, on behalf of yourself and your
family, agents, representatives, heirs, executors, trustees, administrators,
successors and assigns (the “Releasors”),
hereby irrevocably and unconditionally releases, settles, cancels, acquits,
discharges and acknowledges to be fully satisfied, and covenants not to sue the
Company and NCP-EH, L.P. and each of their respective subsidiaries, affiliates,
successors and assigns, and each of their respective stockholders, partners,
members, directors, managers, officers, employees, agents or other
representatives, and employee benefit plans of the Company (include current and
former trustees and administrators of these plans) (collectively, the “Releasees”) from any and all claims,
contractual or otherwise, demands, costs, rights, causes of action, charges,
debts, liens, promises, obligations, complaints, losses, damages and all
liability of whatever kind and nature, whether known or unknown, and hereby
waives any and all rights that he, she or it may have at the time of signing
this Agreement, at any time prior thereto or in the future (except with respect
to ADEA (as defined below) claims), or that otherwise may exist or may arise
(except with respect to ADEA claims) in respect of your employment or
separation from employment with the Company, or is in any way connected with or
related to the Employment Agreement, the 2000 Plan, the Options or any option
agreement evidencing the grant of Options pursuant to the 2000 Plan.


 


(b)           Covenant Not to Sue; Certain
Proceedings.  The Releasors agree
not to bring any action, suit or proceeding whatsoever (including the
initiation of governmental proceedings or investigations of any type) against
any of the Releasees hereto for any matter or circumstance concerning which the
Releasors have released the Releasees under this Agreement.  Further, the Releasors agree not to
encourage any other person or suggest to any other person that he, she or it
institute any legal action against the Releasees.  Notwithstanding the foregoing, this release is not intended to
interfere with your right to file a charge with the Equal Employment
Opportunity Commission in connection with any claim you believe you may have
against the Company.  The Releasors
hereby agree to waive the right to any relief (monetary or otherwise) in any
action, suit or proceeding you may bring in violation of this agreement,
including any proceeding before the Equal Employment Opportunity Commission or
any other similar body or in any proceeding brought by the Equal Employment
Opportunity Commission or any other similar body on your behalf.


 


(c)           Extent of Release.  This release is valid whether any claim
arises under any federal, state or local statute (including, without
limitation, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of
1991, the Age Discrimination in Employment Act of 1967 (“ADEA”), the Equal Pay Act, the Americans
with Disabilities Act of 1990, the Employee Retirement Income Security Act of
1974 and all other statutes regulating the terms and conditions of your
employment), regulation or ordinance, under the common law or in equity
(including any claims for wrongful discharge or otherwise), or under any


 


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policy, agreement,
understanding or promise, written or oral, formal or informal, between the
Company and yourself.


 


(d)           Penalties.   If you initiate or participate in any legal
actions or if you fail to abide by any of the terms of this Agreement, the
Company may reclaim any amounts paid hereunder, without waiving the release
granted herein, and terminate any remaining payments or benefits that are due
hereunder, in addition to any other remedies.


 


6.             General Release of Claims by the
Company.


 


(a)           The Releasees hereby irrevocably and
unconditionally release, settle, cancel, acquit, discharge and acknowledge to
be fully satisfied, and covenants not to sue the Releasors from any and all
claims, contractual or otherwise, demands, costs, rights, causes of action,
charges, debts, liens, promises, obligations, complaints, losses, damages and
all liability of whatever kind and nature, whether known or unknown, and hereby
waives any and all rights that he, she or it may have at the time of signing
this Agreement, at any time prior thereto or in the future, or that otherwise
may exist or may arise in respect of your employment or separation from
employment with the Company, or is in any way connected with or related to the
Employment Agreement, the 2000 Plan, the Options or any option agreement
evidencing the grant of Options pursuant to the 2000 Plan.


 


(b)           Covenant Not to Sue.   The Releasees agree not to bring any
action, suit or proceeding whatsoever (including the initiation of governmental
proceedings or investigations of any type) against any of the Releasors for any
matter or circumstance concerning which the Releasees have released the
Releasors under this Agreement. 
Further, the Releasees agree not to encourage any other person or
suggest to any other person that he, she or it institute any legal actions
against the Releasees.  The Company
represents and acknowledges that it has not heretofore assigned or transferred
or purportd to assign or transfer, to any person or entity, any of the claims
described in paragraph 6, any portion thereof, or any interest therein.


 


7.             Consideration.   The consideration provided hereunder is not
required under the Company’s standard policies, and you know of no other
circumstances other than your agreeing to the terms of this agreement that
would require the Company to provide such consideration.


 


8.             Legal Advice; Reliance.  You represent and acknowledge that (i) you have been given adequate time (at
least twenty-one (21) days) to consider this Agreement and have been advised to
discuss all aspects of this Agreement with your private attorney, (ii) you have carefully read and fully
understands all the provisions of this Agreement (iii) you have voluntarily entered into this Agreement,
without duress or coercion, and (iv)
you have not heretofore assigned or transferred or purported to assign or
transfer, to any


 


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person or entity, any of the
claims described in paragraph 5 hereof, any portion thereof, or any interest
therein.  You understand that if you
request additional time to review the terms of this agreement, a reasonable
extension of time will be granted.


 


9.             Confidentiality.   The parties to this Agreement agree not to
disclose its terms to any person, other than their attorneys, accountants,
financial advisors or in your case, members of your immediate family; provided
that this paragraph 9 shall not be construed to prohibit any disclosure
required by law or in any proceeding to enforce the terms and conditions of
this Agreement.


 


10.           Miscellaneous.


 


(a)           Third Party Beneficiaries.   All Releasees under this Agreement who are
not signatories to this Agreement shall be deemed to be third party
beneficiaries of this Agreement to the same extent as if they were signatories
hereto.


 


(b)           Withholding.   The Company may withhold from any payments
made under this Agreement all federal, state, local or other applicable taxes
as shall be required by law.


 


(c)           Entire Agreement.   This Agreement constitutes the sole and
complete understanding of you and the Company with respect to the subject
matter hereof.  You and the Company
represent to each other that in executing this Agreement, you and the Company
do not rely and have not relied upon any representation or statement not set
forth herein made by any other person, with regard to the subject matter, basis
or effect of this Agreement.


 


(d)           Amendment; Waiver; Successors.   No amendment, modification or alteration of
the terms and provisions of this Agreement shall be binding unless the same
shall be in writing and duly executed by you and the Company.  No waiver of any of the provisions of this
Agreement shall be deemed to or shall constitute a waiver of any other provision
hereof.  No delay on the part of any
party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof.  This
Agreement shall be binding upon the parties hereto and their respective
successors, transferees and assigns.


 


(e)           Governing Law; Severability; Blue
Pencil.   This Agreement will be
governed by the laws of the State of New York, without regard to its conflict
of laws rules.  In the event that any
one or more of the provisions of this Agreement is held to be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.  The parties hereto agree that the covenants
incorporated into this Agreement by paragraph 4 hereof are reasonable covenants
under the circumstances, and further agree that if, in the opinion of any court
of competent jurisdiction such covenants are not reasonable in any respect,
such court


 


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shall have the right, power and
authority to exercise or modify such provision or provisions of these covenants
as to the court shall appear not reasonable and to enforce the remainder of
these covenants as so amended.


 


(f)            Revocation.   You may revoke this agreement within seven
(7) days after the date on which you sign this agreement.  You understand that this agreement is not
binding or enforceable until such seven (7) day period has expired.  Any such revocation must be made in a signed
letter executed by you and received by the Company at the following address no
later than 5:00 p.m., New York time, on the seventh day after you have executed
this agreement; Equinox Holdings, Inc., 895 Broadway, New York, New York 10003,
Attention: Harvey J. Spevak.  You
understand that if your revoke this agreement, you will not be entitled to any
benefits hereunder.


 


(g)           Further Assurances.   Each party hereto agrees with the other
party hereto that it will cooperate with such other party and will execute and
deliver, or cause to be executed and delivered, all such other instruments and
documents, and will take such other actions, as such other parties may
reasonably request from time to time to effectuate the provisions and purposes
of this Agreement.


 


(h)           Counterparts.   This Agreement may be executed in counterparts,
each of which shall for all purposes be deemed to be in original and all of
which shall constitute the same instrument.


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
  EQUINOX
  HOLDINGS, INC,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Harvey Spevak

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  
	
   

  
	
  ACCEPTED AND
  AGREED

  
	
  as of the
  date first written above:

  
	
   

  
	
   

  
	
  /s/ Kenneth
  P. Fleischer

  	
   

  
	
  Kenneth P.
  Fleischer

  
					



 


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