TERMINATION AGREEMENT
This
TERMINATION
AGREEMENT
(this
“Agreement”),
dated
June 29, 2006 (the “Effective
Date”),
is
made by and among a21, Inc., a Texas corporation (the “Company”
or
“a21”),
SuperStock, Inc., a Florida corporation (“SuperStock”)
and
Xxxxxx X. Xxxxx, an individual (the “Executive”).
The
Company, SuperStock and the Executive are hereinafter collectively referred
to
as the “Parties.” Any capitalized term not defined herein shall have the meaning
for such term specified in the Employment Agreement (as defined
below).
WHEREAS,
the
Executive, the Company and SuperStock entered into an Employment Agreement
dated
as of May 1, 2005, (the “Employment
Agreement”)
a copy
of which is attached hereto as Exhibit
A;
and
WHEREAS,
after
the Executive’s employment with the Company and SuperStock was terminated, the
Parties engaged in negotiations and have
agreed to
enter
into this Agreement to finalize Executive’s relationship with the Company and
SuperStock on such terms.
NOW
THEREFORE, in
consideration of the foregoing and for other consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending
to be
legally bound, hereby agree as follows:
1. Termination
of Employment.
Executive’s employment with the Company and SuperStock was terminated as of June
19, 2006 (the “Termination
Date”).
2. Resignation
Upon Termination.
Executive hereby resigns as a director of the Company and SuperStock
and from
each and every other position he may hold as of the Effective Date. The
Executive agrees that he is not resigning due to any disagreements with the
Company with respect to its procedures, practices or policies.
3. Executive
Benefits.
(a) The
Company will, commencing as of June 20, 2006, (i) pay the Executive an amount
equal to five (5) months’ salary, in the aggregate amount of Fifty Two Thousand
Eighty-Three Dollars ($52,083), paid in installments, at such intervals as
the
Company regularly makes payments to employees generally over such five (5)
month
period, (ii) if Executive elects to continue existing health insurance coverage
under COBRA, the Company will pay the monthly premium cost for such coverage
for
such five (5) month period, and (iii) pay the Executive, within fifteen (15)
days of the Effective Date, any unpaid Salary and any unused vacation days
accrued as of the Termination Date. The Executive understands and agrees that
the Company will deduct from these payments all federal, state and/or local
withholding taxes and other deductions the Company is required by law to make
from its wage payments to employees.
(b) SuperStock
shall reimburse the Executive for all expenses, to the extent provided for
in
Section 3(e) of the Employment Agreement, within ten (10) days of the Effective
Date.
(c) The
Company hereby represents and warrants that a complete copy of the Company’s
current Director’s and Officer’s liability policy is attached to this Agreement
as Exhibit
B.
The
Company hereby represents and warrants that the Executive is covered by such
policy to the extent provided in and subject in all cases to the terms and
conditions of such policy. Additionally, to the extent that the Company’s
current Director’s and Officer’s liability policy will not cover the Executive
for claims made for a three (3) year period following the Termination Date,
the
Company agrees to assist the Executive in obtaining a “tail” Director’s and
Officer’s liability policy to cover the Executive for the period of three (3)
years commencing immediately after the Termination Date; provided that the
Executive shall bear the expense of all premiums relating to any such “tail”
policy.
4. Termination
of Employment Agreement.
The
Employment Agreement was terminated as of June 19, 2006, other than the
provisions of Sections 5, 6, 7 and 8 thereof, which shall survive in accordance
with their terms; provided, however, that the foregoing clause does not affect
in any way Executive’s ownership of securities of the Company (including,
without limitation, the Executive’s vested ownership of 1,200,000 shares of the
common stock of the Company pursuant to Section 3(b) of the Employment Agreement
and the Executive’s ownership of stock options pursuant to Section 3(c) of the
Employment Agreement, as vested in accordance with the terms of Section 7
hereof) or any rights Executive has as a shareholder of the Company, which
ownership of securities and shareholder rights continue unaffected by this
Agreement.
5. Mutual
Release And Waiver of Claims.
(a) Except
for the obligations undertaken by the Company and SuperStock under this
Agreement, the Employment Agreement (to the extent provided for or incorporated
in this Agreement), the Executive’s entitlement, if any, to indemnification
pursuant to the terms and conditions of the Company’s Directors’ and Officers
liability policy and the Executive’s rights pursuant to the terms and conditions
of various Common Stock Purchase Warrants held by the Executive, Executive
hereby covenants and agrees and releases the Company and SuperStock, and all
of
their respective Affiliates (as defined below), and their respective employees,
officers, directors and agents, from all debts, demands, actions, causes of
action, suits, dues, sum and sums of money, accounts, reckonings, bonds,
specialties, covenants, contracts, controversies, agreements, promises, doings,
omissions, variances, damages, extents, executions and liabilities and any
and
all other claims of every kind, nature and description whatsoever (upon any
legal or equitable theory, whether contractual, common-law, statutory, federal,
state local or otherwise) the Executive (or Executive’s respective successors
and assigns) has or hereafter can, shall or may have based on the Executive’s
employment by the Company and SuperStock, any events that may have occurred
during the course of his employment or the termination of that employment,
or
any other matters or claims of any kind or nature from the beginning of the
world to the Effective Date (including without limitation, those arising out
of
or which may hereafter be claimed to arise out of the Employment Agreement
or
Executive’s status as a shareholder of the Company; provided, however, that the
foregoing release of the Executive’s shareholder claims shall be effective only
through the Termination Date). Without limiting the generality of the foregoing,
the scope of this release includes (but is not limited to) a release of any
and
all claims for unpaid wages or other compensation, breach of contract, wrongful
discharge, disability benefits, health and medical insurance, sick leave and
employment discrimination. Executive acknowledges and agrees that he is
specifically releasing any rights or claims he may have under: the Age
Discrimination in Employment Act, which prohibits discrimination in employment
based on age; Title VII of the Civil Rights Act of 1964, which prohibits
discrimination in employment based on race, color, national origin, religion
or
sex; the Equal Pay Act, which prohibits paying men and women unequal pay for
equal work; Title I of the Americans with Disabilities Act; the New York Human
Rights Law; the New York City Human Rights Law; and all other federal, state
and
local laws and regulations prohibiting discrimination in employment. Executive
acknowledges and agrees that this release covers not only claims that he knows
about, but also claims that he might not know about. This release includes,
but
is not limited to, all claims for compensatory damages, punitive damages,
attorneys’ fees, expenses and costs or other compensation of any kind, including
any claims which were or might have been asserted by the Executive or on his
behalf. Executive covenants and agrees that the release set forth in this
Section 5 shall be binding upon his successors and assigns. By signing this
Agreement, Executive acknowledges and agrees that he is forever giving up his
rights to make any of the claims or demands mentioned above. For purposes of
this Agreement, “Affiliate” means any entity that controls, is controlled by, or
is under common control with the Company and SuperStock. Notwithstanding
the foregoing, this release does not
apply to
(i)
claims
arising under, or after the Effective Date of, this Agreement,
(ii) pending claims for benefits under the Company’s welfare plans, (iii) claims
for vested benefits, (iv) claims for indemnification under the Company’s
articles of incorporation, bylaws and/or applicable law and/or (v) claims
relating to the Executive’s Common Stock Purchase Warrants and stock
options.
Without
limiting the foregoing, this Agreement shall not affect any rights the Executive
has in the future for indemnification from Company pursuant to the Company’s
articles of organization, bylaws and/or applicable law, all in accordance with
the terms thereof as in effect as of the Effective Date and notwithstanding
any
subsequent changes thereto. The Company hereby represents and warrants that
its
articles of organization and bylaws have not been amended so as to adversely
affect the Executive’s rights to indemnification since January 1,
2006.
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(b) Except
for the obligations undertaken by the Executive under this Agreement or the
Employment Agreement (to the extent provided for or incorporated in this
Agreement), the Company and SuperStock and all of their respective Affiliates,
and their respective employees, officers, directors and agents, for good and
valuable consideration, the receipt of which is hereby acknowledged, hereby
forever remises, releases and discharges the Executive, and his or its
subsidiaries, divisions, stockholders, directors, officers, managers, employees
and agents, from all debts, demands, actions, causes of action, suits, dues,
sum
and sums of money, accounts, reckonings, bonds, specialties, covenants,
contracts, controversies, agreements, promises, doings, omissions, variances,
damages, extents, executions and liabilities and any and all other claims of
every kind, nature and description whatsoever (upon any legal or equitable
theory, whether contractual, common-law, statutory, federal, state local or
otherwise) whether known or unknown which against the Executive and his
affiliates, successors, agents, servants, beneficiaries, employees, attorneys
or
assigns, the Company and SuperStock and all of their respective Affiliates,
and
their respective employees, officers, directors and agents, now have, may have,
or ever had, from the beginning of the world to the Effective Date, including,
without limitation, all statutory, tort, contract and other claims that were
or
could have been asserted and any and all matters which in any way relate to
or
arise out of the Company’s or SuperStock’s and all of their respective
Affiliates’ relationships with the Executive. This release covers claims the
Company and SuperStock and all of their respective Affiliates are or are not
currently aware of. This release includes, but is not limited to, all claims
for
compensatory damages, punitive damages, attorneys’ fees, expenses and costs or
other compensation of any kind, including any claims which were or might have
been asserted by the Company or SuperStock or their respective Affiliates,
and
their respective employees, officers, directors and agents, or on their
behalf.
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6. Termination
of Unvested Additional Bonus.
Notwithstanding the provisions of Section 3(b) of the Employment Agreement,
any
Additional Bonus owing to the Executive shall be immediately cancelled upon
the
Effective Date.
7. Stock
Options.
As of
the Effective Date, the Executive shall be deemed to hold vested stock options
to purchase 500,000 shares of the Company’s common stock at a purchase price of
$0.30 per common share, which may be exercised by the Executive until September
19, 2006 (the “Option
Expiration Date”).
After
the Option Expiration Date, all of the Executive’s unexercised stock options
shall be cancelled. During the period commencing on the Effective Date and
until
the Option Expiration Date, the Executive may exercise his vested stock options
either for cash or on a cashless basis. Any of the Executive’s unvested stock
options shall be immediately cancelled as of the Effective Date. The Company
hereby represents and warrants that the aforementioned stock options were
properly granted to the Executive as of May 1, 2005.
8. Lock-Up.
The
Executive agrees that for a period commencing on the Effective Date and expiring
one (1) year thereafter (the “Lock-Up
Period”),
the
Executive will not, directly or indirectly issue, offer, agree or offer to
sell,
sell, grant an option for the purchase or sale of, transfer, pledge, assign,
hypothecate, distribute or otherwise encumber or dispose of any securities
of
the Company, including common stock or options, rights, warrants or other
securities underlying, convertible into, exchangeable or exercisable for or
evidencing any right to purchase or subscribe for any common stock (whether
or
not beneficially owned by the undersigned), or any beneficial interest therein,
other than the sale or other disposition of up to Three Hundred Fifty Thousand
(350,000) shares of a21 common stock in a non-market transaction to a third
party in a private transaction. Notwithstanding the foregoing, the Lock-Up
Period will be immediately and automatically terminated upon a change of control
of the Company, including, but not limited to, a sale of substantially all
of
the Company’s assets to a third party. The Executive consents to the placing of
legends and/or stop-transfer orders with the transfer agent of the Company’s
securities with respect to any securities registered in the name of the
Executive or beneficially owned by the Executive. The Company represents that
it
has not imposed any restrictions on the securities of the Company owned by
the
Executive other than those expressly described in this Agreement, those certain
Common Stock Purchase Warrants which grant the Executive a right to acquire
an
aggregate of 175,950 shares of the Company’s common stock, and the a21 2005
Stock Incentive Plan under which options to purchase 500,000 shares were issued
to the Executive. From and after the expiration of the Lock-Up Period, at the
Executive’s request, the Company shall remove any restrictive legends appearing
upon the Executive’s stock certificates (and return clean certificates to the
Executive) within five (5) business days of the Company’s receipt of such
certificates and the applicable representation letter in the form attached
as
Exhibit
C
hereto.
Additionally, from and after the expiration of the Lock-Up Period, no
restrictive legends shall appear on certificates issued to the Executive upon
(i) the exercise of the Executive’s options, provided that the shares of the
Company’s common stock underlying the options are registered on Form S-8 at the
time the options are exercised, or (ii) the cashless exercise of the Executive’s
Common Stock Purchase Warrants. With respect to the Executive’s Common Stock
Purchase Warrants (as referred to above) to acquire 175,950 shares of the
Company’s common stock, the Company represents that the Executive shall continue
to have piggyback registration rights.
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9. Non-Disparagement.
(a) Except
to
the extent required by law or under legal process, the Executive agrees not
to
(i) in any way publicly disparage the Company or a21, their respective
shareholders, officers, directors, employees, or agents (ii) act in a manner
reasonably likely to cause embarrassment or public humiliation to such entities
or persons, or (iii) make any public statement or take any action that is
reasonably likely to be adverse, inimical or otherwise detrimental to the
interests of such entities or persons.
(b) Except
to
the extent required by law or under legal process, the Company and a21 agree
not
to and agree to cause their respective directors and executive officers not
to
and agree to use commercially reasonable efforts to cause their respective
employees not to (i) in any way publicly disparage the Executive, his heirs,
employees, or agents, (ii) act in a manner reasonably likely to cause
embarrassment or public humiliation to such entities or persons, or (iii) make
any public statement or take any action that is reasonably likely to be adverse,
inimical or otherwise detrimental to the interests of such entities or persons.
The Company and SuperStock will respond to employment inquiries concerning
the
Executive only by confirming dates of employment, position, salary and, if
so
requested by the Executive or the inquiring party, by issuing a letter of
reference in the form attached as Exhibit
D
hereto.
10. Return
of Property and Other Matters.
(a) The
Executive shall, no later than the end of business on July 5, 2006, deliver
to
the Company and/or SuperStock all property of the Company and/or SuperStock
or
their respective Affiliates currently in the possession or control of the
Executive, including a Blackberry and credit card. The Executive shall no later
than the end of business on July 5, 2006 deliver to the Company the laptop
computer belonging to the Company in good working order, ordinary wear and
tear
excepted, and Executive agrees that any business content on such computer shall
not be destroyed or altered.
(b) For
a
period of five (5) months after the Effective Date, the Company shall (i) cause
an auto-reply message to appear on the Executive’s Company e-mail address that
shall inform personal correspondents of the Executive’s personal e-mail address
()
and
personal telephone number ((000) 000-0000) and that shall direct business
correspondents to an appropriate contact person at the Company, and (ii) forward
telephone calls received on the Executive’s Blackberry phone number to the
SuperStock receptionist who shall inform personal callers of Executive’s
personal telephone number ((000) 000-0000) and who shall direct business callers
to an appropriate contact person at the Company.
(c) The
Company covenants and agrees that it will arrange for the delivery, on or before
June 30, 2006, of all of the Executive’s personal belongings located at the
Company’s offices (together with a sufficient number of cardboard boxes to pack
and ship all of the Executive’s personal belongings) to the Company’s apartment
located in Jacksonville, Florida. The Executive covenants and agrees that he
will pack all of his personal belongings into such boxes on or before the end
of
business on July 5, 2006. The Company will reimburse the Executive for (i)
the
cost of shipping all of the Executive’s personal belongings located at the
Company’s facilities and the Company’s apartment located in Jacksonville,
Florida, to Chapel Hill, North Carolina or Manhasset, New York, and (ii) the
cost of the Executive’s roundtrip travel to Jacksonville, Florida; provided that
the aggregate costs for (i) and (ii) do not exceed One Thousand Dollars
($1,000). The foregoing payment will be made within ten (10) business days
after
the Executive delivers to the Company appropriate written documentation in
support of such expenses.
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(d) The
Executive acknowledges and agrees that any unauthorized charges he made to
the
Company’s credit card shall be offset on a dollar for dollar basis against the
payments Company is obligated to make pursuant to this Agreement; provided,
however, that the Parties shall first discuss and reach mutual agreement
regarding any purported unauthorized charges before any such offsets may be
made.
11. Continuing
Obligations.
Notwithstanding anything to the contrary in this Agreement, in the event that
the Executive after the Termination Date breaches any of the Executive’s
continuing obligations under the Employment Agreement, including, but not
limited to, the obligations contained in Sections 5, 6 or 7 of the Employment
Agreement, the Company shall not be required to make any further payments
pursuant to this Agreement or otherwise.
12. Relief.
(a) Executive
agrees that a breach of any of the provisions of Sections 8
or 9 of
this Agreement and Sections 5, 6 or 7 of the Employment Agreement may result
in
material and irreparable injury to Company for which there is no adequate remedy
at law and that it may not be possible to measure damages for such injuries
precisely. In the event of a breach
of such
provisions by the Executive,
the
Company shall be entitled to obtain a temporary restraining order and/or a
preliminary or permanent injunction restraining the Executive from further
violations.
(b) The
Company agrees that a breach of any of the provisions of Sections 5 and 9 of
this Agreement may result in material or irreparable injury to the Executive
for
which there is no adequate remedy at law and that it may not be possible to
measure damages for such injuries precisely. In the event of a breach of such
provisions by the Company, the Executive shall be entitled to obtain a temporary
restraining order and/or a preliminary or permanent injunction restraining
the
Company from further violations of Sections 5 and 9 hereof. The
remedies in this Section are in addition to those otherwise available to
the
Parties.
13. Binding
Effect.
This
Agreement is binding upon and shall inure to the benefit of anyone who succeeds
to the rights, interests or responsibilities of the Parties.
14. Enforceability.
If a
court rules that any provision of this Agreement is not enforceable in the
manner set forth in this Agreement, that provision should be enforceable to
the
maximum extent possible under applicable law and should be reformed accordingly.
If a court rules that any provision of this Agreement is invalid or
unenforceable, that ruling shall not affect the validity or enforceability
of
the other portions of this Agreement, which shall continue in full force and
effect.
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15. Entire
Agreement.
This
Agreement and the surviving provisions of the Employment Agreement constitute
the entire agreement among
the
Parties with respect to the subject matter hereof.
It
supersedes any existing oral or written agreements with respect to Executive’s
employment or termination of employment with the Company and SuperStock, except
as stated herein.
16. Amendment.
This
Agreement cannot be amended, except by a written document signed by the party
against whom enforcement of any such amendment is sought.
17. Full
Understanding.
The
Executive has read this Agreement carefully, fully understands the meaning
of
its terms, and is signing this Agreement knowingly and voluntarily, after
consulting with counsel of Executive’s own choosing.
18. Counterparts.
This
Agreement may be signed in any number of counterparts, each of which shall
be an
original and all of which shall be deemed to be one and the same instrument,
with the same effect as if the signatures thereto and hereto were upon the
same
instrument. A facsimile signature shall be deemed to be an original signature
for purposes of this Agreement.
19. Governing
Law.
This
Agreement shall be interpreted in accordance with the laws of the State of
Florida, without regard to its principles of conflicts of law.
IN
WITNESS WHEREOF,
the
Parties hereto have duly executed this Agreement as of the day and year first
above written.
| a21, INC. | EXECUTIVE | ||
| By: /s/ Xxxxxx X. Xxxxx | /s/ Xxxxxx X. Xxxxx | ||
|
Name: Xxxxxx X. Xxxxx |
Xxxxxx X. Xxxxx |
||
|
Title:
Chairman & CEO
|
| SUPERSTOCK, INC. | |||
| By: /s/ Xxxxxx Xxxxxxxx | |||
|
Name: Xxxxxx Xxxxxxxx |
|||
|
Title:
EVP &
CFO
|
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