SEPARATION AGREEMENT AND GENERAL RELEASE
EXHIBIT 10.1
SEPARATION AGREEMENT AND
GENERAL RELEASE
In consideration for my signing of this
Separation Agreement and General Release (“Agreement”) and agreement to abide by
its terms, Innodata Isogen, Inc. (“Innodata Isogen”) agrees to provide me
with:
(a)
Continuation of my employment through June 30, 2009 per the terms of the
employment agreement attached to this Agreement as Exhibit A.
(b) If
I elect to continue medical and dental coverage under Innodata Isogen’s health
insurance plan in accordance with the continuation requirements of COBRA,
Innodata Isogen shall pay for the cost of said coverage beginning on the last
day of employment and ending on December 31, 2009. Thereafter, I
shall be entitled to elect to continue such COBRA coverage for the remainder of
the COBRA period, at my own expense.
I
understand and agree that I would not receive such consideration except for my
execution of this Agreement and my fulfillment of the promises contained in this
document that apply to me.
I acknowledge this Agreement is invalid
if signed before April 27, 2009, the date of my resignation as Executive Vice
President and Chief Financial Officer of Innodata Isogen. A copy of my
resignation letter is attached to this Agreement as Exhibit B.
I knowingly and
voluntarily release and forever discharge, to the full extent permitted by
law, Innodata Isogen, its affiliates, subsidiaries, divisions,
successors and assigns, and their current and former partners, affiliates,
owners, agents, officers, directors, employees, successors and assigns,
individually and in their corporate capacities and Innodata Isogen’s attorneys,
insurers, employee benefit plans, programs and arrangements and their
administrators, functionaries and fiduciaries (collectively referred to
throughout the remainder of this Agreement as “Releasees”), of and from any and
all claims, known or unknown, asserted and unasserted, that I, my heirs,
executors, administrators, successors and assigns, have or may have against
Releasees as of the date of my execution of this Agreement, including but not
limited to, arising out of or related to my employment or the cessation of my
employment with Innodata Isogen, including, but not limited to, any alleged
violation of: Title VII of the Civil Rights Act of 1964; The Civil Rights Act of
1991; Sections 1981 through 1988 of Title 42 of the United States Code; The
Employee Retirement Income Security Act of 1974 (“ERISA”) (except for any vested
benefits under any tax qualified benefit plan); The Immigration Reform and
Control Act; The Americans with Disabilities Act of 1990; The Age Discrimination
in Employment Act of 1967 (“ADEA”); The Workers Adjustment and Retraining
Notification Act; The Occupational Safety and Health Act; The Fair Credit
Reporting Act; Xxxxxxxx-Xxxxx Act of 2002; New Jersey Law Against
Discrimination; New Jersey Statutory Provision Regarding
Retaliation/Discrimination for Filing a Workers’ Compensation Claim; New Jersey
Family Leave Act; New Jersey Equal Pay Act; New Jersey
Conscientious Employee Protection Act (Whistleblower Protection); The New Jersey
Wage Payment and Work Hour Laws; The New Jersey Public Employees’
Occupational Safety and Health Act; New Jersey Fair Credit Reporting
Act; New Jersey laws regarding Political Activities of Employees, Lie
Detector Tests, Jury Duty, Employment Protection, and Discrimination; any claim
for costs, fees, or other expenses including attorneys’ fees incurred in these
matters; any other federal, state, local or other civil or human rights law; or
any other regulation or ordinance, and/or public policy, contract, tort or
common law; provided, however, that nothing
herein shall release Innodata Isogen from its obligations to provide the
payments and benefits set forth on Exhibits A hereto, any of my rights to
indemnification or coverage under Innodata Isogen’s officers’ and directors’
liability insurance and as provided in the Innodata Isogen by-laws, which shall
continue to apply to me as in effect on the date hereof solely in accordance
with their terms and with respect to actions taken by me while an officer of
Innodata Isogen (collectively, the “Indemnification Rights”) or any of my vested
benefits under any tax-qualified retirement plans (the “Retirement Plans”), the
health insurance benefits, vacation, and other accrued benefits in accordance
with the Innodata Isogen “Personnel Handbook for U.S.-Based Employees (the
“Accrued Benefits”), and the 2001 Stock Option Plan of Innodata Isogen (the
“Stock Plan”) in which I participate. Moreover, although I retain the
right to file a charge of discrimination, I will not be entitled to receive any
relief, recovery or monies in connection with any complaint, charge or legal
proceeding brought against Releasees, including attorneys’ fees, without regard
to the party or parties who have instituted any such complaint, charge or legal
proceeding, to the extent permitted by law.
I agree to return to Innodata Isogen or
destroy all Innodata Isogen confidential information, and to return to Innodata
Isogen all Innodata Isogen property on or before the last day of my employment,
or earlier upon written request. Innodata Isogen will have no obligation to
provide any consideration hereunder unless I return or destroy all such
confidential information and Innodata Isogen property to Innodata Isogen as
requested.
I agree not to defame, disparage, or
demean Innodata Isogen, its affiliates, subsidiaries and their respective
current and former officers and directors, in any manner whatsoever, provided that nothing
contained herein shall prevent me from providing truthful information about
Innodata Isogen in connection with any legal proceeding or to the extent
compelled to do so by law or in connection with seeking new employment, subject
to my on-going obligations under the Confidentiality Agreement (defined below)
and Innodata Isogen, on behalf of itself and its officers and
directors, agrees not to defame, disparage, or demean me, provided that nothing
contained herein shall prevent Innodata Isogen, its officers and directors from
providing truthful information about me in connection with any legal proceeding
or to the extent compelled to do so by law or in connection with any reference
which I request Innodata Isogen to provide on my behalf.
I have not filed or caused to be filed,
and I am not a party to, any claim, charge, complaint, action or other legal
proceeding against Releasees in any forum or form as of the date of execution of
this Agreement and to the current knowledge of Innodata Isogen and its senior
officers and directors, there is no present circumstance of which they are aware
that would give rise to any claim, charge, complaint, action or other legal
proceeding against me. I have been paid and/or have received all
compensation, wages, bonuses, commissions and/or benefits to which I may be
entitled, and acknowledge that no other compensation, wages, bonuses,
commissions and/or benefits are due to me except as provided in this
Agreement. I affirm that I have no
known workplace injuries or occupational diseases, and that I have been provided
and/or have not been denied any leave under any federal, state or local
family/medical or disability leave law.
I
acknowledge that neither this Agreement nor the furnishing of the consideration
for this Agreement is an admission by Innodata Isogen of any liability or
unlawful conduct of any kind.
I have 250,000 nonqualified options to
acquire common stock of Innodata Isogen that were granted on December 22, 2005
pursuant to the Stock Plan and which are fully vested and have been since the
time of grant and which pursuant to the terms of grant shall remain
fully exercisable through August 29, 2009 (the “Expiration Date”); provided
that, (a) 187,500 of the nonqualified options will continue to be exercisable
through the Expiration Date through the cashless exercise feature of the Stock
Option Plan and the arrangements with Xxxxxx Xxxxxxx (subject to the normal
blackout periods provided under Innodata Isogen’s policies and applicable SEC
rules and regulations) and (b) the remaining 62,500
nonqualified options are currently subject to a “lock-up” restriction which
prohibits me from disposing of the shares received upon exercise prior to
December 22, 2009, and, therefore, I am unable to utilize the cashless exercise
feature of the Stock Plan. I understand that in lieu of my open
market exercise of all or a portion of my options, Innodata Isogen may offer to
“stock settle” such options, but is not obligated to do so, and I may accept
such offer, but am not obligated to do so.
I understand that: (i) this Agreement
shall be governed and conformed in accordance with the laws of the state of New
Jersey without regard to its conflict of laws provisions; (ii) should any
provision of this Agreement be declared illegal or unenforceable by any court of
competent jurisdiction and cannot be modified to be enforceable, excluding the
general release language, such provision shall immediately become null and void,
leaving the remainder of this Agreement in full force and effect; and (iii) this
Agreement may not be modified, altered or changed except upon express written
consent of both parties in which specific reference is made to this Agreement. I
further understand that after I enter into this Agreement, both Innodata Isogen
and I will have the right to enforce its terms.
I understand that I have up to
twenty-one (21) days to consider this Agreement and I have been advised of my
right to consult with an attorney prior to executing this
Agreement. I further agree that any modifications, material or
otherwise, made to this Agreement, do not restart or affect in any manner my
original twenty-one (21) day consideration period.
I further
understand that I may revoke this Agreement for a period of seven (7) days
following the day I execute it. Any revocation within this period
must be submitted, in writing, to Xxxxxxxx Xxxxxxxx, Director of Human Resources
at Innodata Isogen, Xxxxx Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, and
must state, "I hereby revoke my acceptance of our Agreement and General
Release." The revocation must be personally delivered to Xxxxxxxx
Xxxxxxxx, or to her designee, or be mailed to Innodata Isogen, Inc., Three
Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, and postmarked within seven (7)
days of my execution of this Agreement. This Agreement shall not
become effective or enforceable until the revocation period has
expired. If the last day of the revocation period is a Saturday,
Sunday or legal holiday recognized in the state in which I last worked, then the
revocation period shall not expire until the next following day which is not a
Saturday, Sunday or legal holiday.
This
Agreement reflects the entire agreement between the myself and Innodata Isogen
and supersedes all prior agreements and understandings regarding the same
subject matter except for (i) the Agreement Concerning Confidentiality and
Non-Disclosure I previously executed (the “Confidentiality Agreement”); (ii) the
obligations contained in Paragraphs 8, 9, 10 and 12 of the employment agreement
dated December 22, 2005 between myself and the Company (the “Employment
Agreement”) and (iii) the Indemnification Rights, Stock Plan, the
Accrued Benefits and the Retirement Plans. By signing this Agreement I re-affirm
my continuing obligations under the Confidentiality Agreement and the Employment
Agreement provisions identified in the preceding sentence, including, without
limitation, my obligations of non-solicitation of Innodata Isogen customers and
employees, and my obligations of confidentiality and non-disclosure, and by
signing this Agreement Innodata Isogen re-affirms its obligations under the
Indemnification Rights and the Stock Plan. Having elected to execute this
Agreement, to fulfill the promises set forth in these documents that apply to me
and to receive the consideration set forth herein, I freely and knowingly, and
after due consideration, enter into this Agreement intending to waive, settle
and release all claims I have or might have against Releasees to the full extent
provided in this Agreement. I acknowledge that I have not relied on
any representations, promises or agreements of any kind made to me in connection
with my decision to execute this Agreement, except for those set forth in this
Agreement.
Signed:
/s/ Xxxxxx X.
Xxxx
Print
Name: Xxxxxx X. Xxxx
Date:
April 27,
2009
Acknowledged and
agreed:
Innodata
Isogen, Inc.
By: /s/ Xxxx Xxxxxxx
Name:
Xxxx Xxxxxxx
Title:
Chairman and CEO
Date:
April 27,
2009
Exhibit
A
Employment
Agreement
This
Employment Agreement (the “Agreement”) is made and entered into as of the 27th
day of April 2009 by and between Innodata Isogen, Inc. (the “Company”) and
Xxxxxx X. Xxxx (the “Executive”).
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1.
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The
Company hereby employs the Executive as a Consultant for a period
commencing on April 27, 2009 and ending on June 30, 2009 (the “Term”).
Executive’s employment with the Company shall automatically end at the
conclusion of the Term.
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2.
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The
Executive hereby accepts such employment with the Company under the terms
and conditions set forth in this
Agreement.
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3.
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The
Executive shall report to the Chief Executive Officer of the
Company. The Executive shall not be an officer of the Company
during the Term and shall not be required to execute any filing or other
document on behalf of the Company during the
Term.
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4.
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The
Executive shall receive a salary of $25,875 per month during the Term,
prorated for any partial months. Salary shall be paid in accordance with
the Company’s standard practices and shall be subject to deduction for
applicable U.S. federal, state and local withholding taxes. The Executive
shall not be entitled to any other form of compensation during the Term or
upon the conclusion of the Term.
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5.
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The
Executive shall entitled to health insurance benefits, vacation, and other
benefits in accordance with the Company’s “Personnel Handbook for
U.S.-Based Employees”, including reimbursement for business expenses
incurred on behalf of the Company.
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6.
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The
Executive acknowledges his continuing obligation pursuant to the Company’s
standard “Agreement Concerning Confidentiality and Non-Disclosure”
previously signed by the Executive.
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7.
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The
terms of this Agreement and the resolution of any disputes shall be
governed by New Jersey Law.
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8.
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This
Agreement may not be amended or modified except by an express written
agreement signed by the Executive and the Chief Executive Officer of the
Company. This Agreement shall not be terminated by the Company
prior to the end of the Term.
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9.
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Upon
the conclusion of the Term, the Company may, at the Company’s sole
discretion, elect to extend a no-commitment consulting agreement to the
Executive. Any such consulting agreement shall be at a rate to be
determined, not to exceed $300 per
hour.
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Acknowledged
and Agreed:
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Innodata
Isogen, Inc.
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Xxxxxx
X. Xxxx
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By:
/s/ Xxxx
Xxxxxxx
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By:
/s/ Xxxxxx X.
Xxxx
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| Xxxx Xxxxxxx | |
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Date:
April 27,
2009
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Date:
April 27,
2009
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Exhibit
B
Resignation
Letter
April 27,
2009
Xx. Xxxx
Xxxxxxx
Chairman
and CEO
Innodata
Isogen, Inc.
0
Xxxxxxxxxx Xxxxx
Xxxxxxxxxx,
Xxx Xxxxxx 00000
Dear
Xxxx,
I hereby
resign as Executive Vice President and Chief Financial Officer of Innodata
Isogen, Inc. effective today, April 27, 2009.
Sincerely,
/s/
Xxxxxx X. Xxxx
Xxxxxx X.
Xxxx
