Exhibit 99.5
SEPARATI0N AND RELEASE AGREEMENT
Xxxxxx X. Xxxxx ("XXXXX") and WorldWide Web NetworX Corporation, 000
Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxx Xxxxxx 00000, and its successors
and assigns (together "WWWX"), hereby knowingly and voluntarily agree to enter
into this Separation and Release Agreement ("AGREEMENT"), this 24th day of
August, 2000 (the "Effective Date") in order to resolve all outstanding issues
and set forth all the obligations between the parties. Xxxxx and WWWX
acknowledge and agree that this Agreement, and the Agreements specifically
referenced in this document, constitute the sole obligation of each to the other
and that no other promises, commitments, or representations have been made with
or by each of the parties to the other.
WHEREAS, Xxxxx and WWWX have entered into (a) an Incentive Stock Option
Grant Agreement (the "ISO Agreement"), and (b) a Non-Qualified Stock Option
Grant Agreement (the "NQSO Agreement"); and
WHEREAS, Xxxxx and WWWX have entered into an Employment Agreement,
dated February 9, 2000 (the "Employment Agreement").
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. As of the Effective Date, Xxxxx resigns as an officer, director,
employee, agent or representative of WWWX and any of its subsidiaries and
affiliates, including but not limited to ATM Service, Ltd. And The Intrac Group,
Ltd., in which Xxxxx holds office, is a director, or for whom Xxxxx currently
acts as an agent or representative. As of the Effective Date, Xxxxx also resigns
as a fiduciary and member of any and all committees established with respect to
any employee benefit plan maintained by WWWX or any of its subsidiaries and
affiliates. The resignations described in the two preceding sentences shall
occur automatically and without any further required action by Xxxxx, WWWX or
any other person.
2. Within ten (10) days following the Effective Date, WWWX will (i) pay
Xxxxx any portion of Xxxxx'x Base Salary (as defined in the Employment
Agreement) for the period up to the date of termination that has been earned but
remains unpaid; (ii) pay Xxxxx any benefits that have accrued to Xxxxx under the
terms of any benefit plans of WWWX in which he is a participant, which benefits
shall be paid in accordance with the terms of those plans, including without
limitation, accrued but unpaid vacation time; (iii) cause any options to
purchase securities of WWWX held by Xxxxx that were not previously vested to
vest pursuant to Section 3 of this Agreement; and (iv) pay Xxxxx the sum of
$168,750.00.00, representing a severance payment equal to nine (9) months Base
Salary.
SEPARATION & RELEASE AGREEMENT PAGE 1 OF 7
3. Xxxxx and WWWX hereby terminate the ISO Agreement and amend the NQSO
Agreement, effective after expiration of the 7-day revocation period in Section
19, as follows:
a. Paragraph 1(a) is hereby replaced in its entirety
with the following: "GRANT OF OPTION. Subject to the
terms and conditions set forth in this Agreement and
in the Plan, the Company hereby grants to the Grantee
an option (the "Option") to purchase 200,000 shares
of common stock of the Company ("Shares") at an
exercise price of $.75 per Share. The Option shall
become exercisable according to Paragraph 2 below."
b. Paragraph 2 is hereby replaced in its entirety with
the following:
"EXERCISABILITY OF OPTION. The Option is now
exercisable by Grantee in full. Notwithstanding
Section 5 of the Plan, the Option is exercisable
until the end of the term specified in Section 3,
without regard to any other termination or separation
from the Company.
c. Paragraph 3(b) is hereby deleted in its entirety.
d. A new paragraph 4(c) is inserted as follows:
"At any time during which the Option may be
exercised, Grantee may, at his option, choose to
exercise the Option on a cashless basis by giving
written notice at the principal office of the Company
of his intent to effect a cashless exercise ("NOTICE
OF CASHLESS EXERCISE"). For any cashless exercise,
the Company will issue to Grantee the number of
shares of its common stock equal to (i) the number of
Shares specified by Grantee in his Notice of Cashless
Exercise (the "TOTAL NUMBER") less (ii) the number of
shares equal to the quotient obtained by dividing (A)
the product of the Total Number and the Exercise
Price by (B) the current market value of a share of
the Company's common stock. Otherwise, on the date
the Company delivers the Shares to Grantee, he shall
pay the exercise price for each Share in cash to the
Company. For purposes of the foregoing, the current
market value of a share of the Company's common stock
is the price paid for one share in the last
open-market trade of the day either on a national
securities exchange or as listed on the OTC Bulletin
Board on the last trading day before the day the
Option is exercised."
SEPARATION & RELEASE AGREEMENT PAGE 2 OF 7
e. Paragraph 5 is hereby amended by inserting the
following after the first sentence:
"The Company will treat Grantee's outstanding Options
in a manner and with procedures no less favorable
than it treats all other Grantees."
All other terms of the NQSO Agreement remain unmodified and in force. WWWX
hereby covenants that it will use commercially reasonable efforts to file a
registration statement on Form S-8 or otherwise to register the WWWX shares
underlying Xxxxx'x Option not later than 120 days from the Effective Date of
this Agreement.
4. Xxxxx acknowledges that he is not entitled to any further
consideration or monies, including any benefits, payments or wages, except as
set forth in this Agreement. Xxxxx acknowledges and agrees that Sections 2 and 3
include all amounts owed to him for vacation, bonus, severance, commission or
any other entitlement. This Agreement supersedes or modifies, as applicable, any
and all previous agreements, whether written or oral, between Xxxxx and WWWX.
5. Xxxxx shall execute and deliver to WWWX, simultaneously
with the execution and delivery of this Agreement, his letter of resignation as
an officer, director, agent or representative of WWWX and its subsidiaries and
affiliates, attached hereto as Exhibit "A."
6. Xxxxx will return all WWWX-owned or leased property,
documents, records and other information of any type whatsoever concerning or
relating to the business and affairs of WWWX and its subsidiaries and
affiliates.
7. Xxxxx agrees that acceptance of this Agreement constitutes
a full, complete, and knowing waiver of any claims asserted or non-asserted that
Xxxxx may have against WWWX arising out of his employment and termination of
employment including, but not limited to, any claims Xxxxx may have under the
laws of New York or New Jersey for wages, bonuses, torts, contracts, or
employment agreements or under any federal, state, or local statute, regulation,
rule, ordinance, or order which covers or purports to cover or relates to any
aspect of employment, including, but not limited to, discrimination based on
race, sex, age, religion, national origin, sexual orientation, physical,
medical, or mental condition, or marital status under, among other statutes,
Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the
Americans with Disabilities Act, the Age Discrimination in Employment Act, the
Fair Labor Standards Act, the Family and Medical Leave Act, the New Jersey
Family and Medical Leave Act, the Employee Retirement Income Security Act, and
other similar federal, state or local laws.
8. As a material inducement to WWWX to enter into this
Agreement, Xxxxx hereby irrevocably and unconditionally releases, acquits, and
forever discharges WWWX, and its shareholders and each of WWWX's and such
shareholders' directors, officers, employees, representatives, attorneys, and
all persons acting by, through, under or
SEPARATION & RELEASE AGREEMENT PAGE 3 OF 7
in concert with any of them (collectively "WWWX RELEASEES"), from any and all
charges, complaints, claims, controversies, damages, actions, causes of action,
suits, rights, demands, costs, losses, debts, and expenses (including attorneys
fees and costs actually incurred), of any nature whatsoever, known or unknown,
which Xxxxx now has, owns, holds, or claims to have, own, or hold, or claimed to
have, own, or hold, or which Xxxxx at any time hereafter may have, own, or hold,
or claim to have, own, or hold, from the beginning of time arising out of or in
any manner relating to Xxxxx'x employment with WWWX or the separation of that
employment until the date of execution of this Agreement.
9. As a material inducement to Xxxxx to enter into this
Agreement, WWWX hereby irrevocably and unconditionally releases, acquits, and
forever discharges Xxxxx from any and all charges, complaints, claims,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts, and expenses (including attorneys fees and costs actually
incurred), of any nature whatsoever, known or unknown, which WWWX now has, owns,
holds, or claims to have, own, or hold, or claimed to have, own, or hold, or
which WWWX at any time hereafter may have, own, or hold, or claim to have, own,
or hold, from the beginning of time arising out of or in any manner relating to
Xxxxx'x employment with WWWX, or service as a director or an officer to the
extent permitted by law, or the separation of that employment and service, until
the date of execution of this Agreement.
10. Xxxxx represents that he has not filed any complaint,
charge or claim against WWWX with any other governmental agencies and, on behalf
of himself, his heirs, executors, administrators and assigns agrees never to
directly or indirectly commence or prosecute, or assist in the commencement or
prosecution, or in any way cause, or advise to be commenced or prosecuted, any
action or proceeding against WWWX, its successors, and assigns or their past,
present or future officers, directors, agents or employees, and WWWX Releasees,
with respect to any matter, whether or not now known, based upon any act,
transaction, practice, conduct or omission that occurred prior to the date of
this Agreement, unless required by law. In the event that Xxxxx institutes, is a
party to, or is a voluntary member of a class that institutes any such action,
his claims shall be dismissed or class membership terminated with prejudice
immediately upon presentation of this Agreement. In addition, Xxxxx will pay
WWWX its costs, including reasonable attorney's fees, in obtaining dismissal of
such action.
11. WWWX represents that it has not filed any complaint,
charge or claim against Xxxxx in any forum or with any governmental agencies
and, on behalf of itself, subsidiaries, affiliates, successors, assigns or their
past, present or future officers, directors, agents or employees, and WWWX
agrees never to directly or indirectly commence or prosecute, or assist in the
commencement or prosecution, or in any way cause, or advise to be commenced or
prosecuted, any action or proceeding against Xxxxx, his heirs, executors,
administrators and assigns, with respect to any matter, whether or not now
known, based upon any act, transaction, practice, conduct or omission that
occurred prior to the Effective Date of this Agreement. In the event that WWWX
institutes, is a party to, or is a voluntary member of a class that institutes
any such action, its claims shall be dismissed or class membership terminated
with prejudice immediately upon
SEPARATION & RELEASE AGREEMENT PAGE 4 OF 7
presentation of this Agreement. In addition, WWWX will pay Xxxxx his costs,
including reasonable attorney's fees, in obtaining dismissal of such action.
12. In the course of employment with WWWX prior to the date
hereof, Xxxxx has had access to confidential and proprietary information and
records, data and other trade secrets of WWWX ("CONFIDENTIAL INFORMATION").
Confidential Information shall include, without limitation, the following types
of information or material, both existing and contemplated, regarding WWWX, or
its subsidiary or affiliated companies: corporate information, including plans,
strategies, policies, resolutions, and any litigation or negotiations; marketing
information, including strategies, methods, customers, prospects, or market
research data; financial information, including cost and performance data, debt
arrangement, equity structure, investors, and holdings, operational and
scientific information, including trade secrets and technical information; and
personnel information, including personnel lists, resumes, personnel data,
organizational structure, compensation structure, and performance evaluations.
Xxxxx shall not directly or indirectly disclose Confidential Information to any
person or entity or use Confidential Information in any way, except that Xxxxx
may utilize Confidential Information, if and to extent that he is required to do
so in order to render consulting services to WWWX, during the Consulting Period.
13. Xxxxx acknowledges that the terms of this Agreement and
all discussions leading up to it are confidential and agrees that he will not
divulge the terms of this Agreement to any third party, except his immediate
family, financial advisor, attorney or as required by law or court order.
14. Xxxxx agrees not to directly or indirectly take, support,
encourage or participate in any action or attempted action that in any way would
damage the reputation of WWWX and/or any of its subsidiaries or affiliates.
Nothing contained in this Agreement nor the fact that the parties have signed
the Agreement shall be considered an admission by either party. Xxxxx agrees
that he will cooperate with WWWX, at its cost, and its designated
agents/representatives as reasonably necessary consistent with his business
obligations in any legal disputes and/or proceedings and/or business matters
relating to issues and/or incidents which took place during his term of
employment.
15. Both Xxxxx and WWWX agree not to disparage each other in
any way. Xxxxx and WWWX agree that they will not speak about each other in
negative terms. Should Xxxxx discuss the terms of the Agreement with individuals
other than his immediate family, his attorney, or as required by law, Xxxxx
shall pay only the actual damages proximately caused by his violation, WWWX's
reasonable attorneys' fees and costs incurred in enforcing its rights, and may
be subject to injunctive relief. Similarly, should WWWX or any of its directors,
officers, employees, agents, or other authorized representatives discuss the
terms of the Agreement with individuals other than WWWX directors, officers,
employees, agents, other authorized representatives, their attorneys, or as
required by law, WWWX shall pay only the actual damages proximately caused by
its violation, Xxxxx'x reasonable attorneys fees and costs incurred to enforce
his rights, and may be subject to injunctive relief.
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16. In the event of any default by WWWX under this Agreement,
Xxxxx will use reasonable efforts to mitigate his damages, but such acts will
not limit or modify any of Xxxxx'x rights under this Agreement, and WWWX will
pay to Xxxxx a reasonable sum for attorney fees and other reasonable costs and
expenses incurred by Xxxxx in enforcing any right or privilege under this
Agreement.
17. Xxxxx agrees that this Agreement shall be construed under
New Jersey law without regard to the conflict of laws provision therein and any
actions relating thereto must be brought within the State of New Jersey.
18. The provisions of this Agreement are independent and
severable from each other and this Agreement and any other documents executed
pursuant to this Agreement are independent of each other whereby if any term or
provision of this Agreement or any document delivered pursuant hereto shall be
determined to be illegal or unenforceable, all of the terms and provisions of
this Agreement and any document delivered pursuant hereto shall nevertheless
remain effective and shall be enforced to the fullest extent permitted by
applicable law.
19. Xxxxx and WWWX, along with their respective attorneys,
have participated fully in the review and revision of this Agreement. Any rule
of construction to the effect that ambiguities are to be resolved against the
drafting party shall not apply in interpreting this Agreement.
20. Xxxxx warrants that he is fully competent to enter into
this Agreement and that, consistent with the terms of the Older Workers Benefit
Protection Act of 1990, he has carefully read and fully understands the terms of
this Agreement, has had the advice of counsel with respect this Agreement and
has been given the opportunity to consider the terms of the Agreement for at
least 21 days, and has signed this Agreement freely and voluntarily. Further,
Xxxxx understands that he has the opportunity to revoke such Agreement within 7
days of signing it. Xxxxx understands that if he does revoke the Agreement, he
must notify WWWX in writing within 7 days of signing the Agreement
21.(a) Right To Indemnification: If Xxxxx is made a party or
is threatened to be made a party or is involved in any action, suit or
proceeding, whether civil, criminal, administrative, or investigative
(hereinafter a "Proceeding"), by reason of the fact that he is the legal
representative, is or was a director or officer, of WWWX or is or was serving at
the request of WWWX as a director, officer, employee, or agent of another
corporation or of a partnership, joint venture, trust, or other enterprise,
whether the basis of such proceeding is alleged action in an official capacity
as a director, officer, employee, or agent or in any other capacity while
serving as a director, officer, employee, or agent, Xxxxx shall be indemnified
and held harmless by WWWX to the fullest extent authorized by the Delaware
General Corporation Law, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
WWWX to provide broader indemnification rights than said law permitted WWWX to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties,
and
SEPARATION & RELEASE AGREEMENT PAGE 6 OF 7
amounts paid or to be paid in settlement) incurred or suffered by the Xxxxx in
connection therewith and such indemnification shall continue even though Xxxxx
has ceased to be a director, officer, employee, or agent and shall inure to the
benefit of his heirs, executors, and administrators. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by WWWX the expenses incurred in defending any such
proceeding in advance of its final disposition.
(b) Right Of Xxxxx To Bring Suit: If a claim under paragraph (a) of
this Section is not paid in full by WWWX within ten days after a written claim
has been received by WWWX, Xxxxx may at any time thereafter bring suit against
WWWX to recover the unpaid amount of the claim and, if successful in whole or in
part, Xxxxx shall be entitled to be paid also the expense of prosecuting such
claim.
(c) Rights Not Exclusive: Notwithstanding any limitation to the
contrary contained in sub-paragraphs (a) and (b) of this section, WWWX shall, to
the fullest extent permitted by Section 145 of the General Corporation Law of
the State of Delaware, as the same may be amended and supplemented, indemnify
Xxxxx from and against any and all of the expenses, liabilities, or other maters
referred to in or covered by said section, and the indemnification provided for
herein shall not be deemed exclusive of any other rights to which Xxxxx may be
entitled under any law, By-Law, agreement, vote of stockholders or disinterested
Directors, or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall continue even
though Xxxxx has ceased to be director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
(d) Insurance: For a period of at least six (6) years, WWWX shall
maintain insurance, at its expense, to protect itself and Xxxxx resulting from
his service as a director, officer, employee, or agent of WWWX or another
corporation, partnership, joint venture, trust, or other enterprise against any
such expense, liability or loss, whether or not WWWX would have the power to
indemnify Xxxxx against such expense, liability, or loss under the Delaware
General Corporation Law. Such insurance shall be substantially similar in terms,
insurer ratings, and policy limits to the policies currently in effect as of the
date of this Agreement.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF
ALL KNOWN AND UNKNOWN CLAIMS.
[SIGNATURES ON NEXT PAGE]
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To signify the parties' agreement to the terms of the foregoing Agreement, the
parties have executed this Agreement on the date set forth opposite their
signatures, which appear below.
Date: 8/24/00 /s/ Xxxxxx X. Xxxxx
-------------- ----------------------------------
XXXXXX X. XXXXX
Date: 8/24/00 WORLDWIDE WEB NETWORX CORPORATION
--------------
/s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
and General Counsel
Exhibit A
August 24, 2000
The Board of Directors of
WorldWide Web NetworX Corporation
000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
Gentlemen:
I hereby voluntarily resign as an officer, director, employee, agent or
representative of WorldWide Web NetworX Corporation ("WWWX") and its
subsidiaries and affiliates, including but not limited to ATM Service, Ltd. and
The Intrac Group, Ltd., effective immediately.
Very truly yours,
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
