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EXHIBIT 10.12
SETTLEMENT AGREEMENT
AND GENERAL RELEASE
This Settlement Agreement and General Release (the "Settlement Agreement")
is made this 1 day of February, 2000 by and among NewsReal, Inc., a Delaware
corporation ("NewsReal") with offices at 00 Xxxxx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000, and Xxxxxxxxx Xxxxxxx, 00000 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxx 00000 ("Michela").
RECITALS
WHEREAS, NewsReal and Michela are parties to the following Agreements (i)
the Employment Agreement dated as of December 11, 1997 under which Michela
served as an Executive Officer of NewsReal (the "Employment Agreement"), (ii)
the Shareholders Agreement dated as of December 11, 1997 (the "Shareholders
Agreement"); (iii) the Amended and Restated Subscription Rights Agreement dated
as of December 11, 1997 (the "Subscription Rights Agreement"); (iv) the Amended
and Restated Stock Option Agreement dated as of March 31, 1999 (the "Amended
and Restated Stock Option Agreement"), and (v) the Performance Stock Option
Agreement dated as of March 31, 1999 (the "Performance Stock Option Agreement")
(collectively, the "Agreements");
WHEREAS, Michela's employment with NewsReal was terminated on March 31,
1999 (the "Termination Date");
WHEREAS, pursuant to the Subscription Rights Agreement NewsReal issued to
Michela 1991 shares of NewsReal common stock, par value .001 per share (now
199,100 shares following a stock split) ("Common Stock");
WHEREAS, pursuant to the Amended and Restated Stock Option Agreement and
the Performance Stock Option Agreement, NewsReal granted to Michela an option
to purchase shares of Common Stock of NewsReal (the "Options"), which Options
have expired and/or been terminated by their terms; and
WHEREAS, the parties hereto wish to settle and compromise the matters
arising between them relating to or resulting from Michela's employment with
NewsReal and termination thereof, and to execute a release and waiver of claims
in the form hereof;
NOW THEREFORE, in consideration of the execution, delivery and performance
of this Settlement Agreement, and for other good and valuable consideration,
the parties hereto, intending to be legally bound, mutually agree as follows:
1. Termination. Except as set forth in Section 5 hereof, the parties
acknowledge that all of the Agreements are terminated in all respects, and,
effective as of the date hereof, the parties hereto waive their respective
rights under, and compliance with the terms of, the Agreements.
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The parties acknowledge that, as a result of this Settlement Agreement, except
as set forth in Section 5 hereof, no further obligation is owed by either party
to the other under the Agreements, and neither party shall be responsible for
any further payments to the other under the Agreements. Specifically, without
limiting the generality of the foregoing, NewsReal shall no longer have any
rights under Section IV of the Subscription Agreement.
2. Terms of Release. NewsReal agrees (i) to pay Michela twenty thousand
dollars (U.S.$20,000.00) upon the expiration of the seven (7) day revocation
period provided for in Section 11 hereof provided that Michela has not
exercised her right of revocation within such seven (7) day period and ten
thousand dollars (U.S.$10,000) a month for twenty (20) months thereafter, the
first such monthly payment to be due and payable on March 1, 2000, and (ii) to
pay for Michela's participation in the health, dental, and vision insurance
programs, if any, of NewsReal through December 10, 2000, less all applicable
wage, FICA, and other withholding as required by law, all in consideration for
Michela's termination of employment and waiver of claims against NewsReal.
3. Waiver and Release by Michela. Michela hereby waives any and all
claims, charges, complaints, liabilities, obligations, promises, Agreements,
contracts, damages, actions, causes of action, suits, accrued benefits or other
liabilities of any kind or character, whether known or hereafter discovered,
arising in connection with or otherwise relating to her employment with
NewsReal, her termination therefrom or any of the Agreements, that she has or
may have against NewsReal of any kind whatsoever, including, but not limited to,
allegations of wrongful termination, breach of contract (other than in
connection with this Settlement Agreement), intentional infliction of emotional
distress, negligent infliction of emotional distress, defamation, invasion of
privacy, any action in tort or contract, any violation of any federal, state, or
local law (including, but not limited to, any violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq., the Civil
Rights Act of 1866, 42 U.S.C. Section 1981 et seq., the Equal Pay Act, 29 U.S.C.
Section 206, the Employee Retirement Income Security Act of 1974, as amended, 29
U.S.C. Section 1001 et seq., the Americans with Disabilities Act, 42 U.S.C.
Section 12101 et seq., the Age Discrimination Employment Act of 1967, as
amended, 29 U.S.C. Section 621 et seq., the Fair Labor Standards Act, as
amended, 29 U.S.C. Section 201 et seq., the National Labor Relations Act, 29
U.S.C. Section 151 et seq., the Family and Medical Leave Act of 1993, 29 U.S.C.
Section 2601 et seq., and the Worker Adjustment and Retraining Notification Act,
29 U.S.C. Section 2101 et seq., and any other employment or civil rights act,
any and all claims for severance pay or benefits or bonus payments under any
compensation or employee benefit plan, program, policy, contract, agreement or
other arrangement of NewsReal and does hereby remise, release and forever
discharge NewsReal and its respective officers, directors, shareholders, agents
and employees and their successors and assigns, and all other persons, firms,
partnerships, or corporations in control of, under the direction of, or in any
way presently or formerly associated with NewsReal of and from any and all
debts, claims, demands, damages, actions, causes of action, or liabilities of
any nature whatsoever arising in connection with or otherwise relating to her
employment with, and her position as an Executive of, NewsReal, the termination
of such employment, or any of the Agreements, that Michela shall or may have
against NewsReal, excluding from the application of the foregoing release and
waiver any claims, rights or liabilities for the performance of the terms and
provisions of this Settlement Agreement.
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4. Confidentiality. Michela agrees to hold and maintain confidential and
not disclose to any third party the terms and conditions of this Settlement
Agreement including, without limitation, the consideration provided for by this
Settlement Agreement; provided, however, that the foregoing shall not apply to
any disclosure that may be required to the extent compelled by legal process or
necessary to enforce Michela's rights hereunder. Michela further agrees not to
make any disparaging or derogatory comment about NewsReal or any of its
respective officers, directors, employees or representatives at any time
following the date of this Settlement Agreement. Michela understands and agrees
that in the event she breaches any of the terms of this Section 4, she shall
forfeit her right to receive the payment specified in Section 2, and shall be
liable to NewsReal for such amount.
5. Survivability of the Shareholders Agreement and Certain Provisions of
the Agreements. Michela agrees that, notwithstanding any other provisions of
this Settlement Agreement to the contrary, she will continue to be bound by (i)
the Shareholders Agreement, (ii) Sections 5 and 6 of the Employment Agreement
and (iii) Sections II and III of the Subscription Agreement.
6. Governing Law. This Settlement Agreement shall be governed by the
laws of the State of New York.
7. Payment of Legal Fees. If any party is required to engage in any
proceedings, legal or otherwise, to defend or enforce its rights under this
Settlement Agreement, such party, if successful, shall be entitled to recover
from the other party which is in breach of its duties hereunder, in addition to
any other remedy or sums due, the reasonable attorneys' fees and disbursements
and costs of such proceeding incurred in connection therewith.
8. Counterparts. This Settlement Agreement may be executed in more than
one counterpart, each of which shall be an original, but all of which, taken
together, shall be and remain one instrument.
9. Headings. The headings of the several sections of this Settlement
Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
10. Invalid Provisions. If any provision of this Settlement Agreement is
held to be illegal, invalid or unenforceable under present or future law
effective during the term hereof, such provision shall be fully severable. This
Settlement Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof and the
remaining portions hereof shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically, as part of this
Settlement Agreement, a provision similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
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11. TIME FOR REVIEW; REVOCATION. Michela understands that she has
twenty-one (21) days within which to consider this Settlement Agreement and
that this Settlement Agreement is revocable by her for a period of seven (7)
days following the execution of this Settlement Agreement, and if not so
revoked, will become effective and enforceable.
12. REVIEW BY MICHELA AND COUNSEL. Michela expressly represents and
warrants to NewsReal that she has entered into this Settlement Agreement freely
without duress and completely read this Settlement Agreement prior to executing
it, has had an opportunity to review it with her counsel, has been offered
twenty-one (21) days within which to consider this Settlement Agreement and to
understand its terms, contents, conditions and effects and has entered into
this Settlement Agreement knowingly and voluntarily.
13. AMENDMENT. This Settlement Agreement may not be amended or
modified in any respect except by an Agreement in writing executed by the
parties in the same manner as this Settlement Agreement.
14. SUCCESSORS. This Settlement Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by each of the parties and
their respective successors and assigns.
15. ENTIRE AGREEMENT. This Settlement Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
of this Settlement Agreement and supersedes and is in full substitution for any
and all prior agreements and understandings whether written or oral between
said parties relating to the subject matter of this Settlement Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Settlement
Agreement to be executed effective the day and year set forth above.
NEWSREAL, INC.
By: /s/ XXXXX X. XXXXXXXX
__________________________
Name: Xxxxx X. Xxxxxxxx
Title: President & CEO
XXXXXXXXX XXXXXXX
/s/ Xxxxxxxxx X. Xxxxxxx
__________________________
Xxxxxxxxx Xxxxxxx
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