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EXHIBIT 10.23
INDEMNIFICATION AND RELEASE AGREEMENT
THIS AGREEMENT ("Agreement") is entered into the 9th day of August,
2000 by and between YOUcentric, Inc., a North Carolina corporation (the
"Company") and Xxxx Xxxxx (the "Employee"), an individual resident of North
Carolina.
W I T N E S S E T H:
WHEREAS, the Employee is a valuable and trusted employee of the
Company; and
WHEREAS, as of December 30, 1999, the Employee and the Company entered
into an agreement (the "December 1999 Agreement") to settle the parties'
misunderstanding regarding the terms of the Employee's compensation and to
modify the terms of the Employee's employment letter; and
WHEREAS, the Company wishes to indemnify the Employee against certain
potential liabilities that might arise from the transactions related to the
December 1999 Agreement; and
WHEREAS, the Employee, in exchange for the agreement of the Company to
indemnify the Employee against certain potential liabilities, has agreed to
release the Company from any potential claims that might arise from the
transactions related to the December 1999 Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other consideration, the sufficiency of which is hereby
acknowledged, effective as of the date hereof, the parties hereto agree as
follows:
1. The Company agrees to indemnify, defend and hold harmless the
Employee for liabilities to third parties (including costs of
defense) asserted against the Employee which are related to or
arise out of the transactions described in or executed
pursuant to the December 1999 Agreement up to the amount
specified in paragraph 4 hereof ("Indemnified Liabilities");
provided, however, that the term Indemnified Liabilities does
not include the Employee's income, withholding or payroll
taxes to the extent related to the receipt or disposal of the
Company's preferred stock. The foregoing right of indemnity
against the Company shall be the Employee's sole right of
recovery and exclusive remedy for the Employee against any
liabilities related to or arising out of the transactions
described in or executed pursuant to the December 1999
Agreement.
2. Within ten (10) days of the Employee's first receipt from any
third party of written notice of a claim or potential claim
against the Employee arising from an Indemnified Liability,
the Employee shall send a copy of such notice and a copy of
this Agreement to the Company's Chief Financial Officer.
Acceptable methods of delivering notice to the Company are
described below. Notwithstanding any other provision of this
Agreement, failure to comply with this paragraph with respect
to each claim or potential claim will terminate the Employee's
rights under this agreement with respect to such claim or
potential claim.
3. If the Employee gives the Company notice of a claim or
potential claim, the Company may elect to assume the defense
of the claim; provided, however, that the Employee shall in
the interim use his best efforts to take all action (not
including settlement) reasonably necessary to protect against
further damage or loss with respect to the claim. The Employee
shall have the right to employ counsel separate from counsel
employed by the Company and may elect to participate in the
action, but the fees and expenses of such counsel shall be at
the Employee's own expense.
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Whether or not the Company chooses to defend the claim, all
parties to this Agreement shall cooperate in the defense of
the claim and shall furnish such records, information and
testimony and shall attend such conferences, discovery
proceedings and other proceedings as may be reasonably
requested in connection with the defense. The Company shall
not be liable for any settlement of such claim effected
without the Company's prior written consent.
4. The Company's aggregate obligation to the Employee under this
Agreement for all Indemnified Liabilities shall not exceed
eight-hundred seventy-five thousand dollars ($875,000).
5. This Agreement shall terminate on June 30, 2005.
6. The Employee understands and acknowledges that the agreement
of the Company to indemnify the Employee as set forth herein
is discretionary in nature, is not an admission of liability,
is not required of the Company and constitutes adequate
consideration for the agreement of the Employee to release the
Company from any potential claims that might arise from the
transactions related to the December 1999 Agreement. In
executing this Agreement, the Employee has not relied on any
representations, promises or agreements of any kind except for
those set forth herein.
7. In exchange for the agreement of the Company to indemnify the
Employee against certain potential liabilities as set forth
herein, the Employee, for himself and his heirs, executors,
administrators and assigns, hereby irrevocably and
unconditionally forever releases and discharges the Company
and its officers and directors from all actual or potential
claims, counterclaims, cross-claims, demands, losses, actions,
causes of action, or liabilities of any kind or nature,
whether known or unknown, accrued to date arising out of or
related to the transactions described in or executed pursuant
to the December 1999 Agreement whether based in tort, contract
(express or implied) or any federal, state or local law,
statute or regulation.
8. The Employee agrees that he will never institute a claim
released above in paragraph 7 against the Company or any of
the parties released above. If the Employee violates this
Agreement by suing the Company or any of the parties released
above in paragraph 7, the Employee agrees that he will pay all
costs and expenses of defending the suit incurred by the
Company or any of the parties listed above in paragraph 7,
including reasonable attorneys' fees.
9. The Employee agrees that the parties released above in
paragraph 7 may plead this Agreement as a complete bar to any
action or suit before any court or administrative body with
respect to any claim released herein.
10. General Terms.
(i) The rights and obligations of each party to this
Agreement shall inure to the benefit of and be
binding upon the heirs, representatives, successors
and assigns of such party.
(ii) All notices, requests, demands and other
communications hereunder shall be in writing and
shall be deemed to have been duly given if personally
delivered, if sent by certified or registered mail,
postage prepaid, return receipt requested or if
delivered by a nationally recognized express courier
service, charges prepaid, to such address as any
party may from time to time designate in writing to
the other party hereto, or if no such address has
been designated, to the last known business address
of the party to whom such notice is to be given.
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(iii) This Agreement constitutes the entire agreement of
the parties in regard to the subject matter hereof
and supersedes any prior or other agreement, whether
written or oral, between the parties in regard
thereto. This Agreement may be changed only by an
agreement in writing signed by the party against whom
the enforcement of any waiver, change, modification,
extension or discharge is sought.
(iv) Failure of any party to insist, in one or more
instances, of performance by the other in strict
accordance with the terms and conditions of this
Agreement shall not be deemed a waiver or
relinquishment of any right granted in this Agreement
or of the future performance of any such term or
condition or any other term or condition of this
Agreement, unless such waiver is contained in a
writing signed by the party making the waiver.
(v) This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State
of North Carolina.
THE COMPANY
YOUCENTRIC, INC.
By /s/ X. Xxxxxx Xxxxx
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Name: X. Xxxxxx Xxxxx
Title: Chief Financial Officer
THE EMPLOYEE
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
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