Exhibit 99.6
SEPARATION AND RELEASE AGREEMENT
Xxxxxxx X. Xxxxxxx ("XXXXXXX"), 00 Xxxxxxxxx Xxxx, Xxxxxx Xxxx, Xxx Xxxxxx
00000, and WorldWide Web NetworX Corporation, 000 Xxxxxxxxxx Xxxx, Xxxxx 000,
Xxxxx Xxxxxx, Xxx Xxxxxx 00000, and its successors and assigns (together
"WWWX"), hereby knowingly and voluntarily agree to enter into this Separation
and Release Agreement ("AGREEMENT"), in order to resolve all outstanding issues
and set forth all the obligations between the parties. Xxxxxxx and WWWX
acknowledge and agree that this Agreement, and the Agreements specifically
referenced in this document, constitute the sole obligation of each to the other
and that no other promises, commitments, or representations have been made with
or by each of the parties to the other.
WHEREAS, Xxxxxxx and WWWX have entered into (a) an Incentive Stock Option
Grant Agreement (the "ISO Agreement"), and (b) a Non-Qualified Stock Option
Grant Agreement (the "NQSO Agreement"), both dated March 20, 2000; and
WHEREAS, Xxxxxxx and WWWX have entered into a letter agreement concerning
his employment by WWWX, dated May 8, 2000 (the "Employment Agreement").
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Xxxxxxx'x employment with WWWX will terminate and Xxxxxxx hereby
resigns from his position as an officer and employee of WWWX upon the execution
and delivery of this Agreement to WWWX (the "Effective Date").
2. On the Effective Date, WWWX will (i) pay Xxxxxxx any portion of
Xxxxxxx'x base salary for the period up to the date of termination that has been
earned but remains unpaid; (ii) pay Xxxxxxx any benefits that have accrued to
Xxxxxxx through the Effective Date under the terms of any benefit plans of WWWX
in which he is a participant, which benefits shall be paid in accordance with
the terms of those plans, including without limitation, accrued but unpaid
vacation time; (iii) have any options to purchase securities of WWWX that were
not previously vested vest pursuant to Section 3 of this Agreement; (iv) pay to
Xxxxxxx the sum of $20,00.00.00, representing the severance payment that is
payable to Xxxxxxx pursuant to the Employment Agreement; and (v) transfer title
to one 1995 Lincoln Continental, white, four-door passenger car, vehicle
identification number 21LNLM97VOSY712340, to Xxxxxxx in full satisfaction of
WWWX's obligation to relocate his household goods from Poway, California to the
area of WWWX's principal place of business.
3. Xxxxxxx and WWWX hereby terminate the ISO Agreement and amend the NQSO
Agreement, effective after expiration of the 7-day revocation period in Section
26, as follows:
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a. Paragraph 1 is hereby replaced in its entirety with the
following: "GRANT OF OPTION. Subject to the terms and
conditions set forth in this Agreement and in the Plan, the
Company hereby grants to the Grantee an option (the
"Option") to purchase 75,000 shares of common stock of the
Company ("Shares") at an exercise price of $.75 per Share.
The Option shall become exercisable according to Paragraph
2 below."
b. Paragraph 2 is hereby replaced in its entirety with the
following:
"EXERCISABILITY OF OPTION. The Option is now exercisable by
Grantee in full. Notwithstanding Section 5 of the Plan, the
Option is exercisable until the end of the term specified
in Section 3, without regard to any other termination or
separation from the Company.
c. Paragraph 3(b) is hereby deleted in its entirety.
d. A new paragraph 4(c) is inserted as follows:
"At any time during which the Option may be exercised,
Grantee may, at his option, choose to exercise the Option
on a cashless basis by giving written notice at the
principal office of the Company of his intent to effect a
cashless exercise ("NOTICE OF CASHLESS EXERCISE"). For any
cashless exercise, the Company will issue to Grantee the
number of shares of its common stock equal to (i) the
number of Shares specified by Grantee in his Notice of
Cashless Exercise (the "TOTAL NUMBER") less (ii) the number
of shares equal to the quotient obtained by dividing (A)
the product of the Total Number and the Exercise Price by
(B) the current market value of a share of the Company's
common stock. Otherwise, on the date the Company delivers
the Shares to Grantee, he shall pay the exercise price for
each Share in cash to the Company. For purposes of the
foregoing, the current market value of a share of the
Company's common stock is the price paid for one share in
the last open-market trade of the day either on a national
securities exchange or as listed on the OTC Bulletin Board
on the last trading day before the day the Option is
exercised."
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e. Paragraph 5 is hereby amended by inserting the following
after the first sentence:
"The Company will treat Grantee's outstanding Options in a
manner and with procedures no less favorable than it treats
all other Grantees."
All other terms of the NQSO Agreement remain unmodified and in force. WWWX
hereby covenants that it will use commercially reasonable efforts to file a
registration statement on Form S-8 or otherwise to register the WWWX Shares
underlying Xxxxxxx'x Option not later than 120 days from the Effective Date of
this Agreement.
4. Xxxxxxx acknowledges that he is not entitled to any further
consideration or monies, including any benefits, payments or wages, except as
set forth in this Agreement. Xxxxxxx acknowledges and agrees that Sections 2 and
3 include all amounts owed to him for vacation, bonus, severance, commission or
any other entitlement. This Agreement supersedes or modifies, as applicable, any
and all previous agreements, whether written or oral, between Xxxxxxx and WWWX.
5. Xxxxxxx shall execute and deliver to WWWX, simultaneously with the
execution and delivery of this Agreement, his letter of resignation as Associate
General Counsel and Assistant Secretary of WWWX, attached hereto as Exhibit "A."
6. Xxxxxxx will return all WWWX-owned or leased property, documents,
records and other information of any type whatsoever concerning or relating to
the business and affairs of WWWX or any successor, except that Xxxxxxx shall not
be required to return his current computer, workstation and related accessories.
7. Xxxxxxx agrees that acceptance and performance of this Agreement
constitutes a full, complete, and knowing waiver of any claims asserted or
non-asserted that Xxxxxxx may have against WWWX arising out of his employment
and termination of employment including, but not limited to, any claims Xxxxxxx
may have under the laws of New York or New Jersey for wages, bonuses, torts,
contracts, or employment agreements or under any federal, state, or local
statute, regulation, rule, ordinance, or order which covers or purports to cover
or relates to any aspect of employment, including, but not limited to,
discrimination based on race, sex, age, religion, national origin, sexual
orientation, physical, medical, or mental condition, or marital status under,
among other statutes, Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, the Americans with Disabilities Act, the Age Discrimination
in Employment Act, the Fair Labor Standards Act, the Family and Medical Leave
Act, the New Jersey Family and Medical Leave Act, the Employee Retirement Income
Security Act, and other similar federal, state or local laws.
8. As a material inducement to WWWX to enter into this Agreement, Xxxxxxx
hereby irrevocably and unconditionally releases, acquits, and forever discharges
WWWX, and its shareholders and each of WWWX's and such shareholders' directors,
officers, employees, representatives, attorneys, and all persons acting by,
through, under or in
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concert with any of them (collectively "WWWX RELEASEES"), from any and all
charges, complaints, claims, controversies, damages, actions, causes of action,
suits, rights, demands, costs, losses, debts, and expenses (including attorneys
fees and costs actually incurred), of any nature whatsoever, known or unknown,
which Xxxxxxx now has, owns, holds, or claims to have, own, or hold, or claimed
to have, own, or hold, or which Xxxxxxx at any time hereafter may have, own, or
hold, or claim to have, own, or hold, from the beginning of time arising out of
or in any manner relating to Xxxxxxx'x employment with WWWX or the separation of
that employment until the Effective Date.
9. As a material inducement to Xxxxxxx to enter into this Agreement, WWWX
hereby irrevocably and unconditionally releases, acquits, and forever discharges
Xxxxxxx from any and all charges, complaints, claims, controversies, damages,
actions, causes of action, suits, rights, demands, costs, losses, debts, and
expenses (including attorneys fees and costs actually incurred), of any nature
whatsoever, known or unknown, which WWWX now has, owns, holds, or claims to
have, own, or hold, or claimed to have, own, or hold, or which WWWX at any time
hereafter may have, own, or hold, or claim to have, own, or hold, from the
beginning of time arising out of or in any manner relating to Xxxxxxx'x
employment with WWWX, or service as a director or an officer to the extent
permitted by law, or the separation of that employment and service, until the
Effective Date.
10. Xxxxxxx represents that he has not filed any complaint, charge or
claim against WWWX with any other governmental agencies and, on behalf of
himself, his heirs, executors, administrators and assigns agrees never to
directly or indirectly commence or prosecute, or assist in the commencement or
prosecution, or in any way cause, or advise to be commenced or prosecuted, any
action or proceeding against WWWX, its successors, and assigns or their past,
present or future officers, directors, agents or employees, and WWWX Releasees,
with respect to any matter, whether or not now known, based upon any act,
transaction, practice, conduct or omission that occurred prior to the Effective
Date, unless required by law. In the event that Xxxxxxx institutes, is a party
to, or is a voluntary member of a class that institutes any such action, his
claims shall be dismissed or class membership terminated with prejudice
immediately upon presentation of this Agreement. In addition, Xxxxxxx will pay
WWWX its costs, including reasonable attorney's fees, in obtaining dismissal of
such action.
11. WWWX represents that it has not filed any complaint, charge or claim
against Xxxxxxx in any forum or with any governmental agencies and, on behalf of
itself, subsidiaries, affiliates, successors, assigns or their past, present or
future officers, directors, agents or employees, and WWWX agrees never to
directly or indirectly commence or prosecute, or assist in the commencement or
prosecution, or in any way cause, or advise to be commenced or prosecuted, any
action or proceeding against Xxxxxxx, his heirs, executors, administrators and
assigns, with respect to any matter, whether or not now known, based upon any
act, transaction, practice, conduct or omission that occurred prior to the
Effective Date of this Agreement. In the event that WWWX institutes, is a party
to, or is a voluntary member of a class that institutes any such action, its
claims shall be dismissed or class membership terminated with prejudice
immediately upon presentation
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of this Agreement. In addition, WWWX will pay Xxxxxxx his costs, including
reasonable attorney's fees, in obtaining dismissal of such action.
12. In the course of employment with WWWX prior to the date hereof,
Xxxxxxx may have had access to confidential and proprietary information and
records, data and other trade secrets of WWWX ("CONFIDENTIAL INFORMATION").
Confidential Information shall include, without limitation, the following types
of information or material, both existing and contemplated, regarding WWWX, or
its subsidiary or affiliated companies: corporate information, including plans,
strategies, policies, resolutions, and any litigation or negotiations; marketing
information, including strategies, methods, customers, prospects, or market
research data; financial information, including cost and performance data, debt
arrangement, equity structure, investors, and holdings, operational and
scientific information, including trade secrets and technical information; and
personnel information, including personnel lists, resumes, personnel data,
organizational structure, compensation structure, and performance evaluations.
Xxxxxxx shall not directly or indirectly disclose Confidential Information to
any person or entity or use Confidential Information in any way.
13. Xxxxxxx acknowledges that the terms of this Agreement and all
discussions leading up to it are confidential and agrees that he will not
divulge the terms of this Agreement to any third party, except his immediate
family, financial advisor, attorney or as required by law or court order.
14. Xxxxxxx agrees not to directly or indirectly take, support, encourage
or participate in any action or attempted action that in any way would damage
the reputation of WWWX and/or any of its subsidiaries or affiliates. Nothing
contained in this Agreement nor the fact that the parties have signed the
Agreement shall be considered an admission by either party. Xxxxxxx agrees that
he will cooperate with WWWX, at its cost, and its designated
agents/representatives as reasonably necessary consistent with his business
obligations in any legal disputes and/or proceedings and/or business matters
relating to issues and/or incidents which took place during his term of
employment.
15. Both Xxxxxxx and WWWX agree not to disparage each other in any way.
Xxxxxxx and WWWX agree that they will not speak about each other in negative
terms. Should Xxxxxxx discuss the terms of the Agreement with individuals other
than his immediate family, his attorney, or as required by law, Xxxxxxx shall
pay only the actual damages proximately caused by his violation, WWWX's
reasonable attorneys' fees and costs incurred in enforcing its rights, and may
be subject to injunctive relief. Similarly, should WWWX or any of its directors,
officers, employees, agents, or other authorized representatives discuss the
terms of the Agreement with individuals other than WWWX directors, officers,
employees, agents, other authorized representatives, their attorneys, or as
required by law, WWWX shall pay only the actual damages proximately caused by
its violation, Xxxxxxx'x reasonable attorneys fees and costs incurred to enforce
his rights, and may be subject to injunctive relief.
16. In the event of any default by WWWX under this Agreement, Xxxxxxx will
use reasonable efforts to mitigate his damages, but such acts will not limit or
modify
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any of Xxxxxxx'x rights under this Agreement, and WWWX will pay to Xxxxxxx a
reasonable sum for attorney fees and other reasonable costs and expenses
incurred by Xxxxxxx in enforcing any right or privilege under this Agreement.
17. Xxxxxxx agrees that this Agreement shall be construed under New Jersey
law without regard to the conflict of laws provision therein and any actions
relating thereto must be brought within the State of New Jersey.
18. The provisions of this Agreement are independent and severable from
each other and this Agreement and any other documents executed pursuant to this
Agreement are independent of each other whereby if any term or provision of this
Agreement or any document delivered pursuant hereto shall be determined to be
illegal or unenforceable, all of the terms and provisions of this Agreement and
any document delivered pursuant hereto shall nevertheless remain effective and
shall be enforced to the fullest extent permitted by applicable law.
19. Xxxxxxx and WWWX, along with their respective attorneys, have
participated fully in the review and revision of this Agreement. Any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party shall not apply in interpreting this Agreement.
20. Xxxxxxx warrants that he is fully competent to enter into this
Agreement and that he has carefully read and fully understands the terms of this
Agreement, has had the advice of counsel with respect this Agreement and has
signed this Agreement freely and voluntarily. Further, Xxxxxxx understands that
he has the opportunity to revoke such Agreement within 7 days of signing it.
Xxxxxxx understands that if he does revoke the Agreement, he must notify WWWX in
writing within 7 days of signing the Agreement.
21. (a) Right To Indemnification: If Xxxxxxx is made a party or is
threatened to be made a party or is involved in any action, suit or proceeding,
whether civil, criminal, administrative, or investigative (hereinafter a
"Proceeding"), by reason of the fact that he is the legal representative, is or
was a director or officer, of WWWX or is or was serving at the request of WWWX
as a director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, employee, or agent or in any other capacity while serving as a
director, officer, employee, or agent, Xxxxxxx shall be indemnified and held
harmless by WWWX to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits WWWX
to provide broader indemnification rights than said law permitted WWWX to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties,
and amounts paid or to be paid in settlement) incurred or suffered by the
Xxxxxxx in connection therewith and such indemnification shall continue even
though Xxxxxxx has ceased to be a director, officer, employee, or agent and
shall inure to the benefit of his heirs, executors, and administrators. The
right to indemnification conferred in this Section shall be a contract right and
shall
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include the right to be paid by WWWX the expenses incurred in defending
any such proceeding in advance of its final disposition.
(b) Right Of Xxxxxxx To Bring Suit: If a claim under paragraph (a) of
this Section is not paid in full by WWWX within ten days after a written claim
has been received by WWWX, Xxxxxxx may at any time thereafter bring suit against
WWWX to recover the unpaid amount of the claim and, if successful in whole or in
part, Xxxxxxx shall be entitled to be paid also the expense of prosecuting such
claim.
(c) Rights Not Exclusive: Notwithstanding any limitation to the contrary
contained in sub-paragraphs (a) and (b) of this section, WWWX shall, to the
fullest extent permitted by Section 145 of the General Corporation Law of the
State of Delaware, as the same may be amended and supplemented, indemnify
Xxxxxxx from and against any and all of the expenses, liabilities, or other
maters referred to in or covered by said section, and the indemnification
provided for herein shall not be deemed exclusive of any other rights to which
Xxxxxxx may be entitled under any law, By-Law, agreement, vote of stockholders
or disinterested Directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue even though Xxxxxxx has ceased to be director, officer, employee,
or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(d) Insurance: For a period of at least six (6) years, WWWX shall
maintain insurance, at its expense, to protect itself and Xxxxxxx resulting from
his service as an officer, employee, or agent of WWWX or another corporation,
partnership, joint venture, trust, or other enterprise against any such expense,
liability or loss, whether or not WWWX would have the power to indemnify Xxxxxxx
against such expense, liability, or loss under the Delaware General Corporation
Law. Such insurance shall be substantially similar in terms, insurer ratings,
and policy limits to the policies currently in effect as of the date of this
Agreement.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF ALL
KNOWN AND UNKNOWN CLAIMS.
[SIGNATURES ON NEXT PAGE]
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To signify the parties' agreement to the terms of the foregoing Agreement, the
parties have executed this Agreement on the date set forth opposite their
signatures, which appear below.
Date: 8/22/00 /s/ Xxxxxxx X. Xxxxxxx
--------- ----------------------------------
XXXXXXX X. XXXXXXX
Date: 8/22/00 WORLDWIDE WEB NETWORX CORPORATION
---------
/s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
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Exhibit A
August 22, 2000
The Board of Directors of
WorldWide Web NetworX Corporation
000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
Gentlemen:
I hereby voluntarily resign my position and employment as Associate
General Counsel and Assistant Secretary of WorldWide Web NetworX Corporation
("WWWX"), effective immediately.
Very truly yours,
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
