1. Xxxxxxxx Xxxxxxxx ("Employee"), on his behalf and on behalf of
Employee's heirs, executors, administrators, successors and assigns
(collectively, "Releasor"), hereby acknowledges and agrees that Employee's
employment with xxxxxxxxxxxxxx.xxx inc. and xxxxxxxxxxxxxx.xxx llc
(collectively, the "Company") terminated effective January 14, 2000 (the
"Termination Date").
2. In accordance with the terms and conditions of this Agreement,
Employee shall accept, as and on behalf of Releasor, and the Company shall
deliver, on its behalf and on behalf of each Releasee (as defined below), the
following consideration:
(a) Upon the execution of this Agreement by Employee and the
Company, $808,625, less withholding for all applicable taxes and deductions.
(b) With respect to the vested options previously granted to
Employee to purchase 1,000,000 shares of Class A Common Stock in the Company for
$4.06 per share, not later than March 21, 2000 the Company shall (i) cause a
third party to purchase such shares from Employee upon Employee's exercise of
the foregoing options such that Employee shall receive not less $10,940,000
(after payment to the Company of the exercise price for such shares), less
withholding for all applicable taxes and deductions, if any; or (ii) deliver to
Employee $10,940,000, less withholding for all applicable taxes and deductions,
in cancellation of the foregoing options.
(c) With respect to Employee's stock options in the Company,
the Company and Employee acknowledge and agree as follows:
(i) in addition to the vested options referred to in
clause (b) above, Employee currently has vested
options to purchase an additional 35,000 shares of
Class A Common Stock in the Company for $4.06 per
share;
(ii) as of February 1, 2000, Employee shall have
additional vested options to purchase an additional
766,250 shares of Class A Common Stock in the Company
for $4.06 per share;
(iii) the vested options referred to in clauses (b), (c)(i)
and (c)(ii) above (collectively, the "Vested
Options") shall expire, and shall no longer be
exercisable, on or after December 31, 2000, and
except for such Vested Options, Employee has no
additional options to purchase any capital stock of
the Company, and any such options which may have
heretofore been granted are forfeited and of no
further force or effect; and
(iv) Employee agrees that, with respect to those shares
issuable upon the exercise of the Vested Options
referred to in clauses (c)(i) and (c)(ii) above,
Employee: (A) may sell or cause to be sold up to
400,000 of such shares in the aggregate during the
period from February 1, 2000 through May 31, 2000, at
the rate of no more than 20,000 of such shares on any
single day; and (B) may sell or cause to be sold up
to 401,250 of such shares in the aggregate during the
period from June 1, 2000 through December 31, 2000,
at the rate of no more than 5,000 of such shares on
any single day.
(d) All of the consideration set forth in subparagraphs (a),
(b) and (c) above shall be referred to as the Termination Consideration.
(e) Employee acknowledges and agrees that (i) the Termination
Consideration provides adequate consideration for all the terms of this
Agreement and includes monetary and other benefits to which Employee was not
otherwise entitled and which were not previously earned, accrued or vested; and
(ii) any monetary or other benefits which, prior to the execution of this
Agreement, may have been earned, accrued or vested, or to which Employee may
have been entitled, are deemed to have been satisfied or such benefits have been
released, waived or settled by Employee pursuant to this Agreement.
3. THIS PARAGRAPH PROVIDES A COMPLETE RELEASE AND WAIVER OF ALL
EXISTING AND POTENTIAL CLAIMS EMPLOYEE MAY HAVE AGAINST EVERY PERSON AND ENTITY
INCLUDED WITHIN THE DESCRIPTION BELOW OF "RELEASEE." BEFORE EMPLOYEE SIGNS THIS
AGREEMENT, EMPLOYEE MUST READ THIS PARAGRAPH CAREFULLY, AND MAKE SURE THAT HE
UNDERSTANDS IT FULLY.
(a) In consideration of Employee's receipt and acceptance of
the Termination Consideration from and on behalf of the Company and each
Releasee (as defined below), Releasor hereby irrevocably, unconditionally and
generally releases Xxxxxx & Xxxxx, Inc. and the Company, and their respective
current and former officers, directors, shareholders, trustees, parents,
affiliates, subsidiaries, branches, divisions, agents, attorneys and employees,
and the current and former officers, directors, shareholders, agents, attorneys
and employees of any such parent, affiliate, subsidiary, branch or division of
Xxxxxx & Xxxxx, Inc. and the Company, and the heirs, executors, administrators,
receivers, successors, predecessors and assigns of all of the foregoing
(collectively, "Releasee"), from or in connection with, and hereby waives and/or
settles, except as may otherwise be stated in this Agreement, any and all
actions, causes of action, suits, debts, dues, sums of money, accounts,
controversies, agreements, promises, damages, judgments, executions, or any
liability, claims or demands, known or unknown and of any nature whatsoever and
which Releasor ever had, now has or hereafter can, shall or may have as of the
date of this Agreement, including, without limitation, arising directly or
indirectly pursuant to or out of Employee's employment with the Company, the
performance of services for the Company or any Releasee, the termination of such
employment or services and/or any decision not to offer to Employee any
employment with any Releasee subsequent to Employee's employment with the
Company, except any claims arising out of, relating to or based upon the
covenants, representations and acknowledgements made by the Company in this
Agreement.
(b) Specifically, without limitation, the release in this
paragraph 3 shall include and apply to any rights and/or claims (i) as to any
options to purchase shares in the Company or any Releasee (except the Vested
Options), including without limitation, under or pursuant to the Company's 1999
Incentive Plan and any Stock Option Agreement or Certificate issued thereunder,
and Releasor expressly acknowledges that no options other than the Vested
Options have vested or will vest and any options granted to Employee other than
the Vested Options have been forfeited and/or are of no force or effect; (ii) as
to any employee benefits or fringe benefits, vested or unvested, to which
Employee is, may have been or may become entitled; (iii) arising under any
contract, express or implied, written or oral, including without limitation, the
Company's 1999 Incentive Plan and any Stock Option Agreement or Certificate
issued thereunder, any other pension or employee benefit plan, policy or
practice of any Releasee, the Employment Agreement made as of November 1, 1998
and effective as of November 1, 1998, and the Amended and Restated Employment
Agreement made as of September 20, 1999 and effective as of November 1, 1998,
and Releasor expressly acknowledges that all of the foregoing are of no force or
effect with respect to Releasor; (iv) for wrongful dismissal or termination of
employment; (v) arising under any applicable foreign, federal, state, local or
other statutes, orders, laws, ordinances, regulations or the like, or case law,
that relate to employment or employment practices and/or, specifically, that
prohibit discrimination based upon age, race, religion, sex, national origin,
disability or any other unlawful bases, including without limitation, the Civil
Rights Act of 1964, as amended, the Civil Rights Act of 1991, as amended, the
Civil Rights Acts of 1866 and 1871, as amended, the Americans with Disabilities
Act of 1990, as amended, the Family Medical Leave Act of 1993, as amended, the
Employee Retirement Income Security Act of 1990, as amended, the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended, the Workers Adjustment
and Relocation Notice Act, as amended, the Fair Labor Standards Act, as amended,
the Vietnam Era Veterans' Readjustment Assistance Act, as amended, the Equal Pay
Act, as amended, and any similar applicable statutes, orders, laws, ordinances,
regulations or the like, or case law, of New York and any State (or any
political subdivision thereof) in which the Company transacts business, and all
applicable rules and regulations promulgated pursuant to or concerning any of
the foregoing statutes, orders, laws, ordinances, regulations or the like; (vi)
based upon any other foreign, federal, state or local statutes, orders, laws,
ordinances, regulations or the like, or case law; (vii) for tortious or
harassing conduct, infliction of mental distress, interference with contract,
fraud, libel or slander; and (viii)
for damages, including without limitation, punitive or compensatory damages, or
for attorneys' fees, expenses, costs, wages, injunctive or equitable relief.
4. (a) If a federal, state, or local income or excise tax (or any tax
of a foreign jurisdiction) shall be assessed against Employee by a tax authority
with respect to the grant, vesting or any event related to the options to
purchase Company stock previously granted to Employee (collectively, the
"Options") other than the tax on exercise of such Options or sale of the shares
underlying such Options, the Company shall upon demand pay Employee an amount
equal to the sum of: (i) an amount which, when multiplied by the difference
between Employee's Tax Rate (as hereinafter defined) for the year in which such
amount shall be paid to Employee and l00%, shall equal the additional income tax
owing; and (ii) an amount which when multiplied by the difference between
Employee's Tax Rate for the year in which such amount shall be paid to Employee
and 100% shall equal the interest and penalties, if any, payable by Employee
with respect to such tax. The term "Tax Rate" shall mean the sum of the
following: (x) the highest federal income tax rate applicable to ordinary income
of an individual taxpayer; and (y) the sum of the highest applicable state and
local tax rates for such ordinary income, reduced to account for the
deductibility of state and local taxes against federal income tax if and to the
extent such state and local taxes are so deductible by the Employee. Employee
shall give the Company notice of any proposed tax, but Employee shall be under
no obligation to contest such proposed tax, provided that Employee shall contest
such proposed tax if requested to do so by the Company and at the sole cost and
expense of the Company. It is the intention of this paragraph 4 (a) to reimburse
Employee for any additional income taxes, interest and penalties thereon arising
from any tax on the Options prior to exercise thereof, with a gross-up based
upon tax rates in effect for the year of such reimbursement and taking into
account all the benefits (deductions and/or credits) available to Employee in
connection with the payment of such taxes, interest and penalties. To the extent
the incomes taxes paid by Employee and reimbursed by the Company under this
paragraph 4(a) reduce the income taxes that would be payable by Employee, his
estate, or successors and assigns upon the exercise of the Vested Options and/or
sale of the shares acquired pursuant to the exercise of the Vested Options if
the income taxes incurred by Employee (and paid by the Company to Employee
hereunder) had not been incurred, the Company shall be reimbursed by Employee,
or his estate, successors or assigns, as the case may be, an amount equal to the
reduction in income taxes described above.
(b) Employee shall be indemnified by the Company, qua an
officer and director of the Company and its affiliates, against claims, etc. to
the fullest extent permitted by law, including partial indemnification and
indemnification of Employee's estate and his heirs, executors and assigns.
5. In consideration of Employee's execution of this Agreement and
Releasor's covenants and obligations hereunder, the Company and its parents,
affiliates and subsidiaries hereby irrevocably, unconditionally and generally
release Releasor from or in connection with, and hereby waive and/or settle,
except as may otherwise be stated in this Agreement, any and all
actions, causes of action, suits, debts, dues, sums of money, accounts,
controversies, agreements, promises, damages, judgments, executions, or any
liability, claims, demands or defenses, known or unknown and of any nature
whatsoever and which the Company and its parents, affiliates and subsidiaries
ever had, now has or hereafter can, shall or may have, for, upon, or by reason
of any matter, cause or thing as of the date of this Agreement (collectively,
"Claims"), except any Claims arising out of, relating to or based upon (i) the
covenants, representations and acknowledgements made by Employee in this
Agreement; (ii) any act or omission by Employee during his employment with the
Company that is finally determined by a court of competent jurisdiction to
subject Employee or any Releasee to any criminal liability or penalties; (iii)
any conduct by Employee during his employment with the Company which is finally
determined by a court of competent jurisdiction to constitute fraud,
embezzlement or any misappropriation or conversion (on his own behalf or on
behalf of any other person or entity) of any assets or property of the Company
or any Releasee; or (iv) any act or omission by Employee during his employment
with the Company that is finally determined by a court of competent jurisdiction
to have been beyond the scope of his authority or duties for and on behalf of
the Company, and upon which any person or entity not a party to this Agreement
asserts any claim against any Releasee.
6. This Agreement and any consideration given hereunder are not
intended to be, shall not be construed as and are not an admission or concession
by any Releasee of any wrongdoing or illegal or actionable acts or omissions.
Employee, as and on behalf of Releasor, hereby represents and agrees that
Releasor shall not intentionally make or cause to be made (a) any written or
oral statements or representations that any Releasee has made or implied any
such admission or concession of any wrongdoing or illegal or actionable acts or
omissions; or (b) any oral or written disparaging statements or representations
of or concerning the Company or any Releasee. The Company hereby represents and
agrees that the Company's senior management shall not intentionally make or
cause to be made any oral or written disparaging statements or representations
of or concerning Employee.
7. (a) Except as may be required by law, in further consideration of
the Company's agreement to deliver the Termination Consideration, and in
addition to the terms of paragraph 8 hereof, Releasor shall keep confidential
and shall not disclose orally or in writing directly or indirectly to any person
(other than to Employee's attorney, accountant and immediate family, each of
whom shall be directed by Employee not to disclose such information), any and
all information concerning (i) any facts, claims or assertions relating or
referring to any experiences of Employee or treatment he received by or on
behalf of any Releasee during his employment through the date of this Agreement,
to the extent that such experiences or treatment could have provided a factual
or legal basis for any claim of any kind in any action or proceeding before any
court or administrative or arbitral body; and (ii) the terms of this Agreement
and the nature and/or amount of the Termination Consideration.
(b) Notwithstanding the foregoing, Employee (i) may state that
he voluntarily resigned his employment with the Company, (ii) may describe the
positions he held and
compensation he received, the job duties and functions he performed, and the
dates of commencement and termination of his employment, and (iii) may otherwise
make any statement consistent with the Company's and Employee's joint press
release, a copy of which is annexed hereto as Exhibit A.
8. (a) Employee hereby acknowledges that during his employment he
acquired proprietary, private and/or otherwise confidential information,
processes, business methods, know-how and trade secrets ("Confidential
Information," as further defined and described in this sub-paragraph), which are
and were valuable, special and unique assets of the Company and/or Releasees,
concerning or relating to (i) the Company and Releasees, (ii) persons or
entities with whom or which the Company or Releasees transacted business during
Employee's employment, (iii) persons or entities with respect to whom or which
the Company acquired any non-public information, and (iv) all aspects of the
operation of the business and affairs of the Company and Releasees, including
without limitation, all financial, operational and statistical information.
Employee acknowledges and agrees that Confidential Information shall include all
memoranda, books, papers, letters, customer lists, processes, computer software,
records, financial information, policy and procedure manuals, training and
recruiting procedures and other data, and all copies thereof and therefrom,
whether made by him or otherwise coming into his possession. All Confidential
Information and Confidential Materials (as defined below) shall be and shall
remain the sole property of the Company.
(b) Employee hereby represents and agrees that upon execution
of this Agreement: (i) he has returned to the Company, and has not retained any
copies of, all documents, records or materials of any kind, whether written or
electronically created or stored, which contain, relate to or refer to any
Confidential Information ("Confidential Materials"), and all other property of
the Company or any Releasee, including without limitation, any building or other
identification related to Employee's employment, and all keys to all offices at
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx and any other premises under the management
or control of any Releasee; (ii) he has not disclosed any Confidential
Information or Confidential Materials to any person or entity without the
authorization of the Company; and (iii) in consideration of the Company's
agreement to deliver the Termination Consideration pursuant to the terms of this
Agreement, Employee and/or any Releasor shall not disclose, or make use of for
himself or on behalf of any other person or entity, any Confidential Information
or Confidential Materials, in any manner directly or indirectly, except as shall
be required by law or in the event such Confidential Information or Confidential
Materials are then in the public domain (provided that Employee was not
responsible, directly or indirectly, for such Confidential Information or
Confidential Materials entering the public domain without the Company's
consent).
(c) In the event that Employee and/or any Releasor receives a
subpoena or any other written or oral request for any Confidential Information,
Confidential Materials or any other information concerning the Company or any
Releasee, Employee shall, within five (5) business days from his actual notice
of the service of such subpoena or other request (i) notify the Company in
writing, by fax to Xxxxx Xxxxxxxxx (at 212-414-6107) on behalf of the Company,
and
(ii) provide a copy to the Company of such subpoena or other request if in
writing, and/or disclose the nature of the request for information if oral.
9. For a period of one (1) year from the Termination Date, Employee
shall not directly or indirectly (a) engage in activities in any state of the
United States and any equivalent section or area of any country, in which the
Company has revenue-producing customers or activities ("Territory"), either on
Employee's own behalf or that of any other person or entity which are in direct
or indirect competition with the Company; or (b) solicit any employee of the
Company to terminate his or her employment with the Company or, either on
Employee's own behalf or that of any other person or entity, hire any employee
of the Company, except that this subparagraph (b) shall not apply to Xxxxxxxxx
Xxxx, a current employee of the Company. Employee and the Company expressly
declare that the territorial and time limitations contained in this paragraph
Section and the definition of "Territory" are entirely reasonable at this time
and are properly and necessarily required for the adequate protection of the
business and intellectual property of the Company. If such territorial or time
limitations, or any portions thereof, are deemed to be unreasonable by a court
of competent jurisdiction, whether due to passage of time, change of
circumstances or otherwise, Employee and the Company agree to a reduction or
modification of said territorial and/or time limitations to such areas and/or
periods of time as said court shall deem reasonable.
10. Employee acknowledges that his services to the Company were of a
unique character which gave them a special value to the Company. Employee
further acknowledges that any violation by Employee of any one or more of the
provisions of paragraphs 7, 8 and 9 of this Agreement may give rise to losses or
damages for which the Company cannot be reasonably or adequately compensated in
an action at law and that such violation may result in irreparable and
continuing harm to the Company. Employee agrees that, therefore, in addition to
any other remedy which the Company may have at law and equity, the Company shall
be entitled to injunctive relief to restrain any violation, actual or
threatened, by Employee of the provisions of paragraphs 7, 8 and 9 of this
Agreement.
11. Employee will comply with all reasonable requests from the Company
for assistance and/or information in connection with any matters and/or issues
relating to or encompassed within the duties and responsibilities of Employee's
employment with the Company, including without limitation, consulting with the
Company's employees and attorneys with respect to, and/or appearing as a witness
in, any dispute, controversy, action or proceeding of any kind, and in
connection with the transition of on-going matters to other employees of the
Company. The Company agrees to promptly reimburse Employee for all expenses,
including reasonable attorneys' fees (to the extent that Employee shall require
representation by reason of the existence of any conflict preventing Employee's
representation by counsel provided by the Company), incurred in connection with
compliance with his obligations under this paragraph.
12. Xxxxxxxx agrees to execute any other writings and/or documents
consistent with this Agreement and reasonably necessary to effectuate the terms
of this Agreement. The
Company acknowledges and agrees that the foregoing sentence is not intended to,
and shall not, create any additional substantive obligation on the part of
Employee that is not otherwise set forth in this Agreement. The Company agrees
to promptly reimburse Employee for all expenses incurred in connection with
compliance with his obligations under this paragraph.
13. The covenants, representations and acknowledgments made by Employee
in this Agreement shall survive the execution of the Agreement and the delivery
of the Termination Consideration, and this Agreement shall inure to the benefit
of each Releasee, and the successors and assigns of each of them. Employee
represents and warrants that he has not assigned any right, claim or cause of
action that he may have had against any Releasee. In addition to any claims for
damages or other relief that either party may assert arising out of, without
limitation, any breach of the terms of this Agreement, Employee shall be
obligated to return to the Company any Termination Consideration that has been
delivered in the event that the release contained in paragraph 3 hereof is
determined to be invalid or unenforceable.
14. This Agreement constitutes the sole and complete understanding and
agreement between the parties with respect to the matters set forth herein and
there are no other agreements or understandings between the parties with respect
to such subject matter, whether written or oral and whether made
contemporaneously or otherwise. No term, condition, covenant, representation or
acknowledgment contained in this Agreement may be amended unless in a writing
signed by both parties. If any section of this Agreement is determined to be
void, voidable or unenforceable, it shall have no effect on the remainder of the
Agreement which shall remain in full force and effect. This Agreement shall in
all respects be subject to, governed by and enforced and construed pursuant to
and in accordance with the laws of the State of New York, without regard to and
excluding its choice of law rules.
15. Employee agrees and acknowledges that (a) Employee has had an
adequate opportunity to review this Agreement and all of its terms, and has been
represented by counsel; (b) Employee understands all of the terms of this
Agreement, which are fair, reasonable and are not the result of any fraud,
duress, coercion, pressure or undue influence exercised by or on behalf of any
Releasee; and (c) Employee represents and warrants that he is under no legal
disability and that he has the full right and authority to execute this
Agreement, and that he has agreed to and/or entered into this Agreement and all
of the terms hereof, knowingly, freely and voluntarily.
XXXXXXXXXXXXXX.XXX INC., individually
and on behalf of XXXXXXXXXXXXXX.XXX
LLC, as its sole manager
________________________________ By:________________________________
XXXXXXXX XXXXXXXX Xxxxx Xxxxxxxxx,
Chief Financial Officer
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 24th day of January, 2000 personally came Xxxxxxxx
Xxxxxxxx, and being duly sworn, acknowledged that he is the person described in
and who executed the foregoing Agreement and acknowledged that he executed same.
/s/ Xxxxx X. Xxxxxx
-------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 31st day of January, 2000, personally came Xxxxx
Xxxxxxxxx, to me known, and known to me to be the Chief Financial Officer of
XXXXXXXXXXXXXX.XXX INC., the corporation described in, and which executed the
foregoing Agreement and who, by me duly sworn, did depose and say that the
execution was duly authorized by said company and acknowledged that she executed
same.
/s/ Xxxxxxx Xxxxxxxx
-------------------------
Notary Public
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