Exhibit 10.42
SEPARATION AND RELEASE AGREEMENT
This SEPARATION AND RELEASE AGREEMENT ("Agreement"), executed as of 28th
day of March, 2003, is entered into by and between XXXXX ONLINE, INC., a
Delaware corporation with a principal place of business in Norwalk, Connecticut
(together with its subsidiaries and affiliates being collectively referred to
herein as "Company") and XXX XXX, an individual residing in Black Rock,
Connecticut ("Executive").
W I T N E S S E T H
WHEREAS, the Executive shall cease to be an employee of the Company as of
the Separation Date (as hereinafter defined);
WHEREAS, the Executive and the Company desire to settle fully and finally
any and all employment-related matters between them as of the Separation Date,
including, but not limited to, any issues that may arise out of the Executive's
employment with the Company and the termination thereof.
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein, intending to be legally bound, the parties
hereto hereby agree as follows:
Section 1. Termination of Employment; Benefits.
(a) Termination of Employment. The Executive's employment with the
Company shall terminate as of the close of business on March
28, 2003 (the "Separation Date").
(b) Benefits. In consideration for the Executive's agreement to be
bound by the terms of this Agreement the Executive shall be
entitled to receive from the Company the payments and benefits
set forth in subparagraphs (i) through (vi) of this Section
1(b).
(i) The Company agrees to pay the Executive:
(1) Two Hundred and Fifty Thousand Dollars ($250,000) on
or before April 16, 2003 (the "Commencement Date");
(2) Fifty Thousand Dollars ($50,000) on or before
January 15, 2004;
(3) Two Hundred and Ten Thousand Dollars ($210,000) in
equal regular installments consistent with Company's
group payroll pay dates paid over 21 months, such
installment payments to commence on or before April
16, 2003;
(4) Forty Two Thousand Dollars ($42,000) in equal
regular installments consistent with Company's group
payroll pay
dates paid over six months, commencing at the
conclusion of the payments referenced in 1(b)(i)(3)
herein. At Executive's option, the payments set
forth in this sub paragraph may be altered so that
the total sum of $42,000 is paid over a period as
long as 15 months in equal regular installments
consistent with Company's group payroll pay dates.
(5) All payments pursuant to this Section 1(b)(i) shall
be made by the Company by wire transfer to the
Executive's account in which his payroll is
currently deposited on the dates specified above;
provided, that to the extent any such payment
obligation remains unpaid by the Company for ten
(10) Business Days, after written notice is given by
the Executive to the Company not less than ten (10)
days following the due date for such payment
obligation, all payment obligations pursuant to this
Section 1(b)(i) that are then unpaid shall become
immediately due and payable on the day following the
fifth Business Day after such notice is received by
the Company.
(6) Notwithstanding anything to the contrary in this
Section 1(b)(i), all cash payments due under this
Agreement shall become immediately due and payable
in the event of a Change in Control as that term is
defined inss.7(e) of the June 29, 2001 Employment
Agreement between the parties hereto ("Employment
Agreement"), or upon Executive's death; provided,
however, that all non-cash benefits shall continue
to be provided according to the terms of the
Agreement.
(7) Notwithstanding anything to the contrary in this
Section 1(b)(i), all cash payments due under this
Agreement shall become immediately due and payable
in accordance with applicable debtor/creditor law in
the event of a voluntary filing for protection under
the United States Bankruptcy Code or if there is a
voluntary assignment of assets for the benefit of
the Company's creditors ("Event"). All non-cash
benefits shall continue to be provided according to
the terms of this Agreement. In the case of an
Event, the Executive may properly file a proof of
claim for the full amount of consideration set forth
in this Agreement, less payments made by the Company
to Executive as of the date of the Event.
(8) The Executive shall have the right, on or after June
30, 2004, of demanding payment in full of all
payments then remaining due under this Agreement. If
Executive elects this option, all other benefits due
Executive shall terminate at time of this election.
Notification of this election shall be made in
writing.
(ii) the Company will continue coverage of the Executive
(and the Executive's spouse and dependents if same
were covered on the Separation Date) in the
Company's health and life insurance plans, or
similar coverage on an after tax basis if Executive
is unable to participate in the Company's health and
life insurance plans, at no expense to the Executive
(and the Executive's Spouse and eligible dependents)
and at the levels generally applicable to other
executive officers of the Company as may be changed
by the Company from time to time, for the shorter of
the following periods:
(1) through and including June 30, 2005 or a
period co-existent with the payments to be
made in section 1(b)(i)(4) hereof, if at the
Executive's choice the payments extend beyond
this date; OR
(2) through the date occurring on or after March
28, 2004 on which Executive (and his spouse
and eligible dependents) is eligible for
coverage under a reasonably comparable
employer sponsored health insurance plan.
(iii) the Company will make all scheduled payment to the
Deferred Compensation Plan in 2003, 2004 and 2005,
all as more particularly set forth inss.4(b) of the
Employment Agreement and Section 4.1 of the
Deferred Compensation Plan. For purposes of the
Deferred Compensation Plan only, Executive shall be
deemed to have been involuntarily separated from
the Company and, as such, all benefits under the
plan shall vest as of October 30, 2005 in the
greater amount of the Net Surrender Value of the
Executive's account OR the sum of $304,860.00, with
such amount to be paid on or before April 16, 2006.
At Executive's option, Executive may terminate the
Deferred Compensation Plan at anytime and the funds
contributed therein by the Company shall
immediately vest in Executive. In the event that
Executive elects to terminate the Deferred
Compensation Plan, the Company shall be released
from any obligation to further fund such Plan after
the date on which Executive terminates same. The
Company agrees not to terminate or change in any
material way this Deferred Compensation Plan
without written consent from Executive.
(iv) Executive shall be permitted, though not required,
to participate in the Company's 401K Plan and the
contributions made by the Company shall vest in
accordance with such Plan during the payment period
set forth in section 1(b)(i) hereof. Executive's
continued participation in the 401K Plan shall be
limited in time to the longer of the following
periods: a.) through and including June 30, 2005,
or b.) through a period co-existent with the
payments to be made in section 1(b)(i)(4) of this
Agreement if at the Executive's choice the payments
extend beyond this date. If for any reason during
the term of this Agreement the Executive is deemed
to be ineligible for inclusion in the 401K plan,
the Company shall make payments to the Executive
consistent with the maximum amount the Company
would have matched had Executive been permitted to
continue his participation in the 401K plan.
(v) Executive's rights in and to stock options
previously granted shall vest as of the Separation
Date. Executive shall have the right to exercise
all vested options through and including March 30,
2008. In the event that a Change in Control (as
defined herein) occurs or the Company has two
consecutive quarters with Positive Earning per
share in either case at anytime prior to March 31,
2006, the Executive shall be entitled to an
additional Eight Thousand (8,000) shares of Company
Stock distributed free and clear of all
restrictions.
Executive shall be entitled to reimbursement for
outplacement services rendered to him in an amount
not to exceed Twenty Five Thousand Dollars
($25,000.00), provided however, that Executive's
right to reimbursement for outplacement services
shall cease if he accepts employment on or after
March 28, 2004.
(vi) Executive shall have no duty to mitigate his
damages by seeking new employment or otherwise in
order to receive the benefits set forth herein.
2. Mutual Release.
--------------
(a) Release by the Executive.
(i) The Executive knowingly and voluntarily releases
and forever discharges the Company and the
Company's parents, subsidiaries and affiliates,
together with all of their respective past and
present directors, managers, officers, partners,
employees and attorneys, and each of their
predecessors, successors and assigns, and any of
the foregoing in their capacity as a shareholder or
agent of the Company (collectively, "Releasees")
from any and all claims, charges, complaints,
promises, agreements, controversies, liens,
demands, causes of action, obligations, damages and
liabilities of any nature whatsoever, known or
unknown, suspected or unsuspected, which against
them the Executive or his executors,
administrators, successors or assigns ever had, now
have, or may hereafter claim to have against any of
the Releasees by reason of any matter, cause or
thing whatsoever arising on or before the
Separation Date and whether or not previously
asserted before any
state or federal court or before any state or
federal agency or governmental entity (the
"Release"). The Release includes, without
limitation, any rights or claims relating in any way
to the Executive's employment relationship with the
Company or any of the Releasees, or the termination
thereof, or arising under any statute or regulation,
including the Age Discrimination in Employment Act
of 1967, Title VII of the Civil Rights Act of 1964,
the Civil Rights Act of 1991, the Americans with
Disabilities Act of 1990, the Employee Retirement
Income Security Act of 1974, and the Family Medical
Leave Act of 1993, each as amended, or any other
federal, state or local law, regulation, ordinance
or common law, or under any policy, agreement,
understanding or promise, whether written or oral,
formal or informal, between any of the Releasees and
the Executive.
(ii) Nothing herein shall be deemed to release any of
the Executive's rights under this Agreement.
(iii) The Executive represents that the Company has
advised him to consult with an attorney of his
choosing prior to signing this Agreement. The
Executive further represents that he understands
and agrees that he has the right and has in fact
reviewed this Agreement and, specifically, the
Release, with an attorney of the Executive's
choice. The Executive further represents that he
understands and agrees that the Company is under no
obligation to offer him this Agreement, and that
the Executive is under no obligation to consent to
the Release, and that he has entered into this
Agreement freely and voluntarily.
(iv) THE EXECUTIVE SHALL HAVE 21 DAYS TO CONSIDER THIS
AGREEMENT AND ONCE HE HAS SIGNED THIS AGREEMENT, THE
EXECUTIVE SHALL HAVE SEVEN ADDITIONAL DAYS FROM THE
DATE OF EXECUTION TO REVOKE HIS CONSENT TO THE
RELEASE SET FORTH ABOVE. Any such revocation shall
be made by delivering written notification to the
Chairman of the Board of Directors of the Company
and the Chairman of the Audit Committee of the Board
of Directors of the Company. In the event that the
Executive revokes his Release, all the terms of the
other sections and subsections of this Agreement,
other than Section 1(a) hereof, shall be null and
void and shall not become effective. If no such
revocation occurs, the Release and this Agreement
shall become effective as of the eighth day after
the date the Executive signs this Agreement.
(b) Release by the Company.
(1) Except as provided below, as a material inducement
to enter into this Agreement, the Company, on its
behalf and that of its affiliates and their
officers and directors, agents, employees,
successors and assigns (solely in their capacity as
officers or directors of the Company) hereby
knowingly and voluntarily releases and forever
discharges the Executive and his agents, employees,
successors, heirs, beneficiaries or assigns (the
"Executive Released Parties") from any and all
claims, charges, complaints, promises, agreements,
controversies, liens, demands, causes of action,
obligations, damages and liabilities of any nature
whatsoever that it had, now has, or may hereafter
claim to have against the Executive Released
Parties arising out of or relating in any way to
the Executive's employment relationship with the
Company, whether or not previously asserted before
any state or federal court or before any state,
federal or regulatory agency or governmental
entity; provided, however, that neither the
Executive nor any of the Executive Released Parties
shall be released or discharged from any such
claim, charge, complaint, promise, agreement,
controversy, lien, demand, cause of action,
obligation, damage or liability which arises in
whole or in part out of or relates in any way to
the willful misconduct or gross negligence of the
Executive or any of the Executive Released Parties.
(2) Nothing herein shall be deemed to release any of
the Company's rights under this Agreement.
3. Mutual Non-Disparagement.
------------------------
The Executive agrees that he will not make or publish any statement
which is, or may reasonably be considered to be, disparaging of the
Company, the Company's subsidiaries or affiliates, or directors,
officers or employees of the businesses of the Company or any of the
Company's subsidiaries or affiliates. The Company agrees that it will
not make or publish any statement that is, or may reasonably be
considered to be, disparaging of the Executive.
4. Confidentiality; Intellectual Property; Disclosure.
--------------------------------------------------
(a) Following the Separation Date, the Executive shall keep secret and
retain in strictest confidence, any and all Confidential
Information (as hereinafter defined) relating to the Company. For
purposes of this Agreement, "Confidential Information" shall mean
any confidential or proprietary information including, without
limitation, plans, specifications, models, samples, data, customer
lists and customer information, computer programs and
documentation, and other technical and/or business information, in
whatever form, tangible or intangible, printed, electronic or
magnetic, that can be communicated by whatever means available at
such time, that relates to the Company's business during the period
the Executive served as an executive officer of the Company,
products, services and/or developments, or information
received from others that the Company is obligated to treat as
confidential or proprietary, and the Executive shall not disclose
such Confidential Information to any person other than the Company,
except as may be required by law or court or administrative order
(in which event the Executive shall so notify the Company as
promptly as practicable). The Executive shall promptly return to
the Company reproductions and summaries of Confidential Information
in his possession or control and erase the same from all media in
his possession or control, and, if the Company so requests, shall
certify in writing that he has done so. All Confidential
Information is and shall remain the property of the Company, or in
the case of information that the Company receives from a third
party which it is obligated to treat as confidential, the property
of such third party.
(b) All Intellectual Property (as hereinafter defined) created,
developed, co-developed, obtained or conceived of by the Executive
during the period the Executive served as an executive officer of
the Company shall be owned by and belong exclusively to the
Company, provided that they reasonably relate to any of the
business of the Company on the date of such creation, development,
obtaining or conception, and the Executive shall (i) promptly
disclose any such Intellectual Property to the Company, and (ii)
promptly execute and deliver to the Company, without additional
compensation, such instruments as the Company may require from time
to time to evidence its ownership of any such Intellectual Property
(the "Intellectual Property Documents"). If the Company is unable
because of the Executive's mental or physical incapacity or for any
other reason to secure the Executive's signature for any
Intellectual Property Document, then the Executive hereby
irrevocably designates and appoints the Company and its duly
authorized officers and agents as his agent and attorney in fact,
to act for and in his behalf and stead to execute and file any
Intellectual Property Document and to do all other lawfully
permitted acts to evidence or perfect the Company's ownership and
rights of and to any Intellectual Property or business opportunity
with the same legal force and effect as if executed by the
Executive. For purposes of this Agreement, the term "Intellectual
Property" means any and all of the following and all statutory
and/or common law rights throughout the world in, arising out of,
or associated therewith: (i) all patents and applications
therefore, including docketed patent disclosures awaiting filing,
reissues, divisions, renewals, extensions, provisionals,
continuations and continuations-in-part thereof; (ii) all
inventions (whether patentable or not), inventions disclosures and
improvements, all trade secrets, confidential business information
(including ideas, research and development, know-how, compositions,
designs, specifications, pricing and cost information and business
and market plans and proposals), proprietary information,
manufacturing, engineering and technical drawings and
specifications and processes; (iii) all works of authorship, "moral
rights," copyrights (including derivative works thereof), mask
works, copyright and mask work registrations and applications
therefore; (iv) all trade names, trade dress, logos, product names,
collective marks, collective membership marks, trademarks
certification marks and
service marks, trademark and service xxxx registrations and
applications together with the goodwill of the business symbolized
by the names and the marks; (v) all data and related documents,
object code, databases, passwords, encryption, firmware,
development tools, files, records and data, and all media on which
any of the foregoing is recorded; (vi) any similar, corresponding
or equivalent rights to any of the foregoing; (vii) all
documentation related to any of the foregoing; and (viii) all
goodwill associated with any of the foregoing.
5. Non-Competition; Non-Solicitation.
---------------------------------
(a) During the period commencing on April 1, 2003 and expiring on March
31, 2004 ("Noncompetition Period"), the Executive shall not,
directly or indirectly, own, manage, operate, control or
participate in the ownership, management, operation or control of,
or be connected as an officer, employee, consultant, partner, or
director with, any business conducted anywhere in any State within
the United States of America which is or which becomes during the
Noncompetition Period directly or indirectly competitive with the
Company, as the same is conducted as of the Separation Date. During
the Noncompetition Period, ownership by the Executive of not more
than 5% of the equity securities of any Competitive Operation shall
not constitute a violation of this Section 5(a).
(b) During the period commencing on April 1, 2003 and expiring on March
31, 2004 ("Nonsolicitation Period"), the Executive shall not,
directly or indirectly, solicit, interfere with, hire or offer to
hire any person who is or was an employee of the Company during the
12-month period prior to the Separation Date (excepting from this
exclusion any person falling within this category who approaches
Executive independently (i.e., not solicited by Executive)), or
induce such person to discontinue his or her relationship with the
Company or to accept employment by, or enter into a business
relationship with, the Executive or any other entity or person.
During the Nonsoliciation Period, the Executive shall not, directly
or indirectly, (i) solicit, interfere with, induce or entice away
any person or entity that is or was a client, customer or agent of
the Company during the 12-month period prior to the Separation
Date, with respect to any product or service which is directly or
indirectly competitive with the Company, as the same are conducted
as of the Separation Date, or (ii) in any manner persuade or
attempt to persuade any such person or entity (A) to discontinue a
business relationship with the Company or (B) to enter into a
business relationship with the Executive or any other entity or
person which would be adverse to the interests of the Company.
(c) In the event any restriction against engaging in a competitive
activity contained in this Section 5 shall be determined by any
court of competent jurisdiction to be unenforceable by reason of
its extending for too great a period of time or over too great a
geographical area or by reason of its being too extensive in any
other respect,
it shall be interpreted to extend only over the maximum period of
time for which it may be enforceable, over the maximum geographical
area as to which it may be enforceable and to the maximum extent in
all other respects as to which it may be enforceable, all as
determined by such court in such action.
6. Knowledge of Claims.
--------------------
The Executive represents and warrants that, to the knowledge of the
Executive and other than what has been disclosed by the Company in its
SEC filings, there is no reasonable basis for any third party to assert
any claim against the Company or any of the Company's subsidiaries or
affiliates, or any of the past or present officers or directors of any
of the forgoing (including the Executive) acting in their capacities as
such, under federal, state or local law, including a breach of any
applicable duty under common law. Except as set forth on Schedule A
hereto, the Executive further represents and warrants that, to the
knowledge of the Executive, there are no claims, actions, suits,
investigations or proceedings threatened against the Company or any of
the Company's parents, subsidiaries or affiliates, or any of the past or
present officers or directors of any of the forgoing (including the
Executive) acting in their capacities as such, under any federal, state
or local law, including a breach of any applicable duty under common
law. The Executive further represents and warrants that there is no
reasonable basis for the Company to assert any claim against the
Executive for violation of any federal, state, or local law, or breach
of any applicable duty under common law.
7. Cooperation.
------------
Subject to the provisions of Section 10 hereof, the Executive agrees
that he will fully cooperate in any litigation in which the Company or
any of the Company's parents, subsidiaries and affiliates may become
involved provided that it does not unreasonably interfere with his then
current employment or business activities. Subject to the preceding
sentence, such cooperation shall include the Executive making himself
available, upon the request of the Company, for depositions, court
appearances and interviews by Company's counsel. To the maximum extent
permitted by law, the Executive agrees that he will notify the Chairman
of the Board of Directors of the Company and the Chairman of the Audit
Committee of the Board of Directors of the Company if he is contacted by
any government agency or any other person contemplating or maintaining
any claim or legal action against the Company or any of the Company's
parents, subsidiaries and affiliates, or by any agent or attorney of
such person.
8. Proceedings.
------------
The Executive has not filed, and agrees not to initiate or cause to be
initiated on his behalf, any complaint, charge, claim or proceeding
against the Company before any local, state or federal agency, court or
other body relating to his employment or the separation or termination
of his employment, other than with respect to the obligations of the
Company to
the Executive under this Agreement, (each individually, a "Proceeding"),
and agrees not to voluntarily participate or join in any Proceeding.
9. Board of Directors
------------------
Executive is currently a member of the Company's Board of Directors and
will continue to serve in that capacity after the Commencement Date. The
normal and regular corporate governance rules of the Company apply.
10. Indemnification.
----------------
(a) From and after the Separation Date, the Company shall indemnify,
defend and hold harmless the Executive against all costs or
expenses (including reasonable attorneys' fees), judgments, fines,
losses, claims, damages or liabilities (collectively, "Costs")
incurred in connection with any claim, action, suit, proceeding or
investigation, whether civil, criminal, administrative or
investigative, arising out of actions or omissions of the Executive
occurring prior to the Separation Date, which is based upon or
relates to the Executive's capacity as a director or officer of the
Company, to the fullest extent the Executive is permitted to be
indemnified under the Company's Articles of Incorporation and
Bylaws as in effect on the date of this Agreement. In the event of
any such threatened or actual claim, action, suit, proceeding or
investigation (whether asserted or arising before or after the
Separation Date), the Executive may retain counsel reasonable
satisfactory to the Executive and the Company; provided, however,
that (1) the Company shall have the right to assume the defense
thereof and upon such assumption the Company shall not be liable to
the Executive for any legal expenses of other counsel or any other
expenses subsequently incurred by the Executive in connection with
the defense thereof, except that if the Company elects not to
assume such defense, or counsel for the Executive reasonably
advises the Executive that there are issues which raise conflicts
of interest between the Company and the Executive, the Executive
may retain counsel reasonably satisfactory to the Executive and the
Company, and the Company shall pay the reasonable fees and expenses
of such counsel for the Executive and (2) the Company shall not be
liable for any settlement effected without its prior written
consent; provided, further, that nothing in this Section 10 shall
prevent the Executive from retaining separate counsel with the
prior written consent of the Company which consent shall not be
unreasonably withheld. If the Executive wishes to claim
indemnification under this Section 10, upon learning of any such
claim, action, suit, proceeding or investigation, the Executive
shall promptly notify the Company thereof, provided that the
failure to notify shall not affect the obligation of the Company
under this Section 10 except to the extent such failure to notify
materially prejudices the Company. The Company's obligations under
this Section 10 shall continue in full force and effect for a
period of six years after the Separation Date; provided that all
rights to indemnification in respect of any claim, action, suit,
proceeding or investigation made, asserted or commenced with such
six year period shall continue until the final disposition of such
claim, action, suit, proceeding or investigation.
(b) Notwithstanding anything in this Section 10 of the Agreement,
Executive shall be required to participate in the defense of any
claim covered by this indemnity provision in a commercially
reasonable manner including, but not limited, fully and completely
disclosing/providing all relevant information/documents (and
information/documents that could lead to relevant
information/documents) concerning such claim(s), meeting with
Company officials and attorneys, cooperating in taking of
depositions and trial testimony, and otherwise cooperating in the
conduct of the defense, provided that it does not unreasonably
interfere with his then current employment or business activities.
11. Consultation and Repayment of Loan.
----------------------------------
(a) Executive agrees to make himself available to consult with the
Company as and when needed on an ongoing basis regarding issues
arising out of or related to matters within the scope of his
employment, as reasonably requested by the Company from the
Commencement Date to June 30, 2005 ("Consulting Period"), provided,
however, that nothing in this paragraph shall prohibit or restrict
Executive from accepting other employment during the Consulting
Period.
(b) Executive shall have the use of private office space at the
Company's Norwalk office during the Consulting Period, or until
such earlier time on or after March 28, 2004 as Executive shall
secure employment that requires 20 or more hours per week to
perform. During the time the office space is provided to Executive
as set forth herein, the Company shall permit Executive to use the
laptop computer and cell phone currently in his possession, and the
Company shall reimburse Executive for all expenses he reasonably
incurs on behalf of the Company.
(c) Executive is obligated under a current loan agreement to repay a
loan ("Loan") to the Company in the amount of $198,231.25 as of
March 31, 2003. Executive hereby reaffirms this obligation. At
Executive's option, the Loan may be repaid with Executive's shares
of Company Stock, with such stock to be valued in accordance with
the closing market price on the Business Day immediately prior to
the day such stock is tendered.
(d) The Employment Agreement shall remain in full force and effect
until the expiration of the revocation period set forth herein for
the acceptance by Executive of the terms hereof.
12. Certain Defined Terms. For purposes of this Agreement, the
following terms shall have the following meanings:
-----------------------------------------------------------
(a) "Affiliate" or "Affiliates" shall mean, with respect to any Person,
any other Person which directly or indirectly controls or is
controlled by or is under common control with such Person (as used
in this definition, "control" (including its correlative meanings,
"controlled by" and "under common control with") shall mean
possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract
or otherwise)).
(b) "Business Day" shall mean any day, other than a Saturday, Sunday or
a day on which banking institutions in the State of Connecticut are
authorized or obligated by law or executive order to close.
(c) "Change in Control" shall be defined in the same manner asss.7(e)
of the Employment Agreement.
(d) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(e) "Person" shall mean an individual, corporation, association,
partnership, group (as such term is used in Section 13(d)(3) of the
Exchange Act), trust, joint venture, business trust or
unincorporated organization, or a government or any agency or
political subdivision thereof.
13. Notice.
-------
For purposes of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be deemed
to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid as follows:
If to the Company:
XXXXX Online, Inc.
00 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
with a copy to:
Xxxx X. Xxxxxx, Esq.
Ury & Moskow, LLC
000 Xxxxx Xxxx Xxxx.
Xxxxxxxxx, XX 00000
If to the Executive:
Xxx Xxx
000 Xxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
With a copy to:
Xxxxx X. Xxxxxxxxxxxx
Xxxxx & Xxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
14. Miscellaneous.
--------------
(a) Enforcement; Governing Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State
of Connecticut without regard to its conflicts of law principles.
The Company shall have the right, without prejudice to any other
rights or remedies it might have under the law which are reserved,
to apply for injunctive relief to restrain any breach or threatened
breach by the Executive of this Agreement or otherwise to
specifically enforce any provision of this Agreement; provided,
however, that such injunctive relief does not preclude the Company
from seeking monetary damages for a breach by the Executive of this
Agreement; and provided, further, that the Company shall not be
precluded from seeking monetary damages from the Executive that
exceed the amount of the Company's obligations to Executive.
(b) Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(d) Entire Agreement. This Agreement contains the entire understanding
between the parties and supersedes all previous oral and/or written
communications and agreements, expressed or implied, between them
pertaining to Executive's employment with the Company, and the
termination of that relationship, including,
but not limited to, the Employment Agreement, in order to resolve,
completely and finally, all issues between them. The Company's
Deferred Compensation Plan is attached hereto as Exhibit A and made
a part hereof and shall not be affected hereby except as referenced
in section 1(b)(iii). To the extent that the Employment Agreement
has been cited herein for definitions, those definitions are
incorporated herein and made a part hereof by such reference.
(e) Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect.
(f) Successors. This Agreement shall be binding upon and shall inure to
the benefit of each of the parties hereto, and their respective
heirs, legatees, executors, administrators, legal representatives,
successors and assigns. The provisions of Section 2(a) hereof are
intended to be for the benefit of, and shall be enforceable by,
each Releasee and his, her or its, heirs and representatives.
(g) Withholding. All payments made by the Company to the Executive
pursuant to Section 1(b) of this Agreement shall be reduced by all
federal, state, city or other taxes that are required to be
withheld pursuant to any law or governmental regulation.
(h) Review by Attorney. Each signatory to this Agreement has had an
opportunity to discuss the terms of this Agreement with an
attorney, and each signatory hereto knowingly, voluntarily, and
willingly enters into this Agreement with the full understanding of
its and his rights and liabilities hereunder. The parties each
acknowledge that their respective counsel have provided competent,
professional and effective representation in this matter, and that
this Agreement is based on an assessment of the strengths and
weaknesses of the respective positions, the cost of litigation, the
time value of money, and a desire to amicably resolve Executive's
separation from the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
XXXXX ONLINE, INC.
By:
Name:
Title:
-------------------------------
By: XXX XXX
STATE OF CONNECTICUT )
) ss. March , 2003
COUNTY OF FAIRFIELD )
Personally appeared, , of XXXXX Online, Inc., signer(s) and sealer(s) of
the foregoing instrument and acknowledged the same to be his/her free act and
deed and that of XXXXX Online, Inc., before me
-------------------------------
Notary Public
STATE OF CONNECTICUT )
) ss. March , 2003
COUNTY OF FAIRFIELD )
Personally appeared, Xxx Xxx, signer(s) and sealer(s) of the foregoing
instrument and acknowledged the same to be his free act and deed, before me
-------------------------------
Notary Public
SCHEDULE A
The following could be construed as threatened claims:
None.
