SEPARATION, SEVERANCE
AND GENERAL RELEASE AGREEMENT
THIS AGREEMENT is entered into by and between AVI ITZHAKOV, the undersigned
employee ("Employee") and XXXXXX TECHNOLOGIES, INC. ("Employer" or "Company"),
as of the 20th day of August, 1999. (The Employee and Employer are sometimes
collectively referred to herein as the "parties.")
WHEREAS, the Board of Directors of the Company has determined that it is in
the Company's best interest to enter into this Agreement and that the terms
hereof constitute a full and complete resolution of all issues and matters
outstanding between the parties;
NOW THEREFORE, in consideration of the premises, of the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows :
The parties hereby knowingly and voluntarily agree to enter into this
Separation, Severance and General Release Agreement (the "Agreement") in order
to resolve any and all outstanding issues and to set forth all obligations
between the parties. Employee and Employer acknowledge and agree that this
Agreement constitutes the sole obligations of each to the other, supersedes all
previous agreements and/or promises and that no other promises, commitments or
representations have been made with or by either of the parties to the other.
Employee's employment with Employer will cease as of 5:00 p.m. on August
20, 1999 (the "Termination Date"). In consideration for executing this
Agreement, Employee will receive the following :
(a) Continued payment of his current salary, in the gross annual amount of
$130,000, minus applicable payroll deductions, for a period of one year
following the Termination Date. Said payments shall be made by Employer to
Employee in equal bi-weekly increments, on the dates on which the
Employer's company payroll is regularly paid;
(b) Continued receipt of the following benefits on the same terms by which
Employee currently receives those benefits from Employer : (i) medical
insurance and dental insurance, for a period of one year following the
termination Date; and (ii) automobile lease (including the continued
payment by Employer of auto insurance in connection with said lease) for
the remaining term of said lease. In the event that the terms or
availability of any of the foregoing benefits (with the sole exception of
the automobile lease -- including the payment by Employer of auto insurance
in connection with said lease) are changed, modified or terminated
generally for all Company employees or
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Itzhakov Separation, Severance and General Release Agreement
for a majority of said employees, then the terms of those benefits may be
changed, modified or terminated accordingly by Employer, at its sole
option, with respect to the benefits conferred upon Employee hereunder.
Furthermore, in the event that Employee obtains any of the foregoing
benefits from a third party (such as a new employer), then Employer, at its
sole option, may immediately cease to provide those benefits to Employee;
and
(c) Fifteen Thousand (15,000) stock options, previously granted to Employee by
the Company, which shall be governed by the terms of the annexed
Non-Statutory Stock Option Agreement.
Furthermore, Employee shall be entitled to indemnification by Employer in
connection with any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he was an officer
and/or employee of Employer, pursuant to the provisions of Article V of
Employer's By-laws, as amended, a copy of which Article is annexed hereto and
made a part hereof.
Employee acknowledges that he has been advised that his medical insurance
coverage will end no later than August 20, 2000 and that he can elect to
continue coverage under Employer's Medical Insurance Plan thereafter at his own
cost in accordance with applicable law.
Employee acknowledges that he is receiving a substantially increased
benefit as consideration for executing this Agreement. Employee acknowledges
that he is not entitled to any other benefits or monies.
Employee and Employer agree not to disparage or impugn each other or their
respective partners, officers, directors or employees, in any way. Employer
shall publicly disclose the termination of Employee's employment by the issuance
of a press release in the form annexed hereto. Unless required by law, rule or
regulation, Employer shall not make any further public disclosure or issue any
additional press releases which specifically mention Employee by name.
Notwithstanding anything herein to the contrary, however, Employer may, at its
sole discretion, make any public disclosures it deems appropriate provided that
Employee is not specifically mentioned therein by name.
Employee agrees that for a period of twelve (12) months following the
termination of his employment with Employer, he will not, directly or
indirectly, engage or become interested in any way (whether as an owner,
stockholder, partner, lender, investor, director, officer, employee, consultant
or otherwise) in any activity, business or enterprise, located within the
geographical area of the United States, that is competitive with any significant
part of the Company's business, without the prior written consent of the
President of the Company.
By signing this Agreement, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Employee hereby
releases and
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Itzhakov Separation, Severance and General Release Agreement
discharges Employer, its employees, directors, officers, shareholders and agents
from, and waives for himself and for his heirs, executors, administrators,
successors, and assigns, any claim, suit, debt, contract, agreement, damages,
charge, arbitration, grievance, complaint, or action (whether asserted or
unasserted, known or unknown) which he now has or hereafter can, shall or may
have against Employer, its parent corporation, affiliates, subsidiaries, all of
its past and former subsidiaries and affiliates, present and former
stockholders, partners, officers, directors, employees, agents, representatives,
attorneys, successors and assigns, for, upon or by reason of any matter, cause
or thing whatsoever from the beginning of the world to the date of this
Agreement, arising out of Employee's employment and/or professional engagement
with Employer and/or his separation from employment and/or relating to the
issuance to Employee of stock, options, warrants, equity or any other benefits,
compensation, gifts or incentives by Employer or by any of Employer's officers,
directors, employees or agents, including but not limited to any claim under
federal, state, local or common law for breach of contract, for wrongful or
abusive discharge or for discrimination based on race, color, ethnicity, sex
age, national origin, sexual orientation, religion or disability, under Title
VII of the Civil Rights Act of 1964 as amended; the Civil Rights Act of 1991;
the Age Discrimination in Employment Act; the Americans with Disabilities Act;
Employee Retirement Income Security Act; Family and Medical Leave Act and
similar state and local laws, or any other unlawful criteria or circumstances.
By signing this Agreement, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Employer hereby
releases and discharges Employee from, and waives for itself and its successors
and assigns, any claim, suit, debt, contract, agreement, damages, charge,
arbitration, grievance, complaint, or action (whether asserted or unasserted,
known or unknown) which it now has or hereafter can, shall or may have against
Employee for, upon or by reason of any matter, cause or thing whatsoever from
the beginning of the world to the date of this Agreement, arising out of
Employee's employment and/or professional engagement with Employer and/or his
separation from employment, and/or relating to the issuance to Employee of
stock, options, warrants, equity or any other benefits, compensation, gifts or
incentives by Employer or by any of Employer's officers, directors, employees or
agents.
Employee agrees that he has been advised to consult with an attorney prior
to signing this Agreement, that he has read and understands this Agreement, and
that he is fully competent to enter into this Agreement and has signed this
Agreement knowingly and voluntarily. Employee has had the opportunity to ask
questions and fully understands this Agreement. Employee acknowledges:(i) that
the Company has expressly informed him that he has at least twenty-one (21) days
in which to decide whether to sign this Agreement, but that he has decided, of
his own free will and volition, to sign this Agreement before the expiration of
said 21-day period and, (ii) that he has the opportunity to revoke such
Agreement within seven (7) days of signing it.
Employee represents that he does not have and has returned all business
records of Employer, its parent and its affiliates, in any form and all copies
thereof.
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Itzhakov Separation, Severance and General Release Agreement
This Agreement and the payment of any consideration hereunder shall not be
construed as an admission of any kind whatsoever on the part of the Employer or
the Employee.
Nothing contained herein shall constitute, or be deemed to constitute, a
waiver of either party's right to enforce the terms of this Agreement.
This Agreement can be amended only by a writing signed by both parties.
This Agreement shall be construed under New York law.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A
WAIVER AND RELEASE OF ALL CLAIMS.
AVI ITZHAKOV XXXXXX TECHNOLOGIES, INC.
_____________________ By: _____________________
Avi Itzhakov Xxxxx Xxxxxx
President & CEO
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Itzhakov Separation, Severance and General Release Agreement
