ATTACHMENT "A"
SEVERANCE AGREEMENT
This Agreement (the "Agreement") is entered into as of the 1st day of May,
2000 by and between Dispatch Management Services Corp., a Delaware corporation,
and its affiliates ("DMS" or the "Company") and Marko Bogoievski ("Bogoievski").
Whereas, DMS and Bogoievski entered into an employment agreement dated
February 5, 1998;
Whereas, DMS and Bogoievski entered into amendment no. 1 dated August 16,
1998;
Whereas, DMS and Bogoievski entered into amendment no. 2 dated March 30,
1999; and
Whereas, DMS and Bogoievski have agreed to terminate the employment
agreement effective July 31, 2000 according to the terms of this Agreement;
Now, therefore, in consideration of the premises and the mutual promises
set forth in this Agreement, the parties agree as follows:
1. Equity Options.
DMS shall effect an amendment to each of the outstanding equity option grants
existing with Bogoievski, and take such steps as are necessary to modify the
option agreements between DMS and Bogoievski such that:
(a) The vesting of the option originally granted on February 22, 1999 at a
strike price of $2.00 per share and relating to 100,000 shares shall be
accelerated and the expiration period shall be adjusted so that, as of May
1, 2000, Bogoievski shall have the right to exercise such option for a
period ending on July 31, 2001 and
(b) The vesting of the option originally granted on December 21, 1999 at a
strike price of $3.00 per share and relating to 50,000 shares shall be
accelerated and the expiration period shall be adjusted so that, as of May
1, 2000, Bogoievski shall have the right to exercise such option for a
period ending on July 31, 2001.
2. Future Financial, Legal and Advisory Work.
Following termination and through December 31, 2000, Bogoievski shall fully
cooperate with representatives of DMS and shall make himself reasonably
available outside of his business hours to answer questions and perform certain
advisory services (recognizing that Bogoievski has accepted full-time employment
in New Zealand). At the request of DMS, Bogoievski shall make himself available,
at mutually agreeable times and a mutually agreeable manner to assist
with questions concerning historical information relating to the Company. This
cooperation will extend to legal matters such as the provision of necessary
affidavits or depositions, and the limited overview of financial projections or
valuation models underlying potential business combinations, mergers,
recapitalizations, senior credit amendments, or the outright sale of the
Company. In recognition of these services, DMS agrees to grant to Bogoievski
pursuant to the Dispatch Management Services Corp. 1997 Stock Incentive Plan, as
amended, an award of 75,000 shares of common stock, effective May 1, 2000,
subject to the restrictions on transfer set forth in the form of restricted
stock agreement evidencing the award attached hereto.
3. Accrued Vacation Pay; Unreimbursed Expenses
The parties acknowledge and agree that Bogoievski will have 13 weeks of accrued
but unused vacation time as of May 1, 2000, and that Bogoievski will receive
payment for such vacation time at regular payroll intervals through July 31,
2000.
DMS shall pay Bogoievski promptly for any reasonable expenses which he incurred
prior to May 2, 2000 for which he has not yet received reimbursement.
4. Resignations
DMS acknowledges that Bogoievski has given notice of his intention to resign his
position as Chief Financial Officer of DMS effective July 31, 2000.
5. Mutual General Releases
Bogoievski hereby releases, acquits, and forever discharges any and all claims
and demands of whatever kind or character, indirect or direct, that he may have
or assert against DMS and/or its directors, officers, employees or agents. This
general release includes but is not limited to any claim or demand based on any
State, Federal or local statutory or common law that applies or is asserted to
apply directly or indirectly to any relationship which Bogoievski may have had
with DMS, including without limitation, claims arising out of or related to any
claims for breach of contract, wrongful discharge, unlawful discrimination,
violation of the public policy of the United States or the State of New York,
violations of Title VII of the Civil Rights Act of 1964, the Age Discrimination
in Employment Act of 1967, the Employee Retirement Income Security Act of 1974,
the Americans with Disabilities Act of 1990, the Family and Medical Leave Act,
the Fair Labor Law, the New York Executive Law, as amended, including the New
York Human Rights Law and the New York Labor Law, or any other State or Federal
Statute arising out of his relationship, or the termination of his relationship
with DMS, but expressly excluding claims directly arising out of or related to a
breach of the obligations of DMS under this Agreement.
DMS and its directors and officers hereby release, acquit and discharge any and
all claims and demands of whatever kind or character, whether direct or
indirect, that it may have or assert against Bogoievski. This general release
expressly excludes claims directly arising or related to a breach of the
obligations of Bogoievski under this Agreement.
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7. Confidentiality of this Agreement.
In consideration of the obligations of DMS under this Agreement, Bogoievski
agrees that the terms of this Agreement shall be and remain confidential, and
shall not be disclosed by him to any party other than family members, attorneys
or accountants (provided that such persons agree to keep such information
confidential), and except as may be required by law.
8. Governing Law.
This Agreement shall be interpreted and applied under the laws of the State of
New York.
9. Notices.
Any notice or communication required or permitted hereunder shall be in writing
and either delivered personally or telecopied or sent by overnight courier, or
by certified or registered mail, postage prepaid, and shall be deemed to be
given, dated and received when so delivered personally or by courier or
telecopied, or, if mailed, three business days after the date of mailing to the
following respective address or telecopy number, or to such other address or
addresses as such person may subsequently designate by written notice given
hereunder:
(a) if to DMS, to:
Xxxxx Xxxxx, President
Dispatch Management Services Corp.
0000 Xxxxxx Xxxxxx, X000
Xxxx Xxxxxxx, Xxx Xxxx 00000
if to Bogoievski to:
Marko Bogoievski
C/o Telecom NZ
Xxxxxxxx Xxxxx, Xxxxx Xxxxx
00 Xxxxxxx Xxxx
Xxxxxxxxxx, XXX XXXXXXX
10. Entire Agreement
This Agreement constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties, with
respect to the subject matter
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hereto. This Agreement may only be amended, modified or supplemented by a
written agreement signed by all parties hereto.
11. Severability
If any term or other provision of the Agreement is invalid, illegal or
unenforceable, all other provisions of this Agreement shall remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party.
12. Waiver
No waiver by any party to this Agreement of any breach or default shall be
effective unless the same shall be in writing and signed. No waiver by any party
of any breach or default of any term or provisions of this Agreement shall be
construed to constitute a waiver of, or consent to, the present or future breach
or default of that or any other term or provision hereof.
13. Successors and Assigns
This Agreement shall be binding upon the successors and assigns of the parties
hereto.
14. Costs of Enforcement
In the event it becomes necessary for a party to take legal action to enforce
its rights under this Agreement, the party prevailing in such action shall be
entitled to an award including the costs and expenses (including reasonable
attorneys' fees) incurred in connection with such action.
15. Arbitration of Disputes
Any disputes or litigation arising out of or related to this Agreement shall be
resolved pursuant to the arbitration laws of the state of Delaware.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
or on behalf of each of the parties hereto as of the date first above written.
"DMS"
DISPATCH MANAGEMENT SERVICES CORP.,
A Delaware Corporation
By:
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Xxxxx Xxxxx, Chairman and CEO
"BOGOIEVSKI"
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Marko Bogoievski
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