Exhibit 10.23
XXXXXXXXX.XXX
SEVERANCE AGREEMENT
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THIS SEVERANCE AGREEMENT by and between Xxxxxxxxx.xxx, Inc., a Delaware
corporation (the "Company"), and Xxxxx Xxxxxxx (the "Employee") is made as of
December 6, 1999 (the "Effective Date").
NOW, THEREFORE, as an inducement for and in consideration of Employee's
continued employment with the Company and in further consideration of the
Employee's obligations under that certain Non-Competition and Non-Solicitation
and Invention and Non-Disclosure Agreement between the Company and the Employee,
the Company agrees that the Employee shall receive the severance benefit set
forth in this Agreement in the event the Employee's employment with the Company
is terminated under the circumstances described below.
1. SEVERANCE BENEFIT. If the Company terminates the Employee's
employment with the Company without Cause during the Term of this Agreement the
Employee shall be entitled to, and the Company shall pay to the Employee, an
aggregate amount equal to six (6) months' salary at the Employee's base salary
rate (excluding any bonuses and other forms of compensation) in effect at the
time of termination. Such aggregate amount shall be paid in twelve equal
bi-weekly installments commencing two weeks after the date of the Employee's
termination of Employment.
For the purposes of this Agreement, "Cause" for termination shall be
deemed to exist upon (A) a good faith finding by the Company's President/CEO or
Board of Directors of (i) the failure of the Employee, or the refusal or
inability of the Employee, to perform diligently and competently the duties
assigned to the Employee after written notice to the Employee of such failure
and a reasonable opportunity (not to exceed 30 days) to cure the failure (unless
such failure is not susceptible to cure, in which case termination shall be
deemed to be immediate) or (ii) fraud, dishonesty or theft by the Employee in
connection with the performance by him of his duties for the Company; (B) the
conviction of the Employee of, or the entry of a pleading of guilty or nolo
contendere by the Employee to, any crime involving moral turpitude or any felony
or any crime which adversely affects the Company or its reputation; or (C) the
breach or default by the Employee of any material terms of any employment or
confidentiality agreement between the Employee and the Company (including
without limitation the Non-Competition and Non-Solicitation and Invention and
Non-Disclosure Agreement). The Employee shall be considered to have been
discharged for "Cause" if the Company determines, within 30 days after the
Employee's resignation, that discharge for cause was warranted.
2. TERM OF AGREEMENT. This Agreement, and all rights and obligations of
the parties hereunder, shall take effect upon the Effective Date and shall
expire on December 31, 2000. Such period being referred to herein as the "Term."
3. NOT AN EMPLOYMENT CONTRACT. The Employee acknowledges that this
Agreement does not constitute a contract of employment, does not imply that the
Company will continue his employment for any period of time and does not change
the at-will nature of his employment. If the Employee's employment with the
Company terminates at any time for any reason (including without limitation by
death, retirement or disability) other than a termination without Cause by the
Company during the Term, the Employee shall not be entitled to any benefits
hereunder.
4. MISCELLANEOUS.
4.1 EMPLOYMENT BY SUBSIDIARY. For purposes of this Agreement,
the Employee's employment with the Company shall not be deemed to have
terminated solely as a result of the Employee continuing to be employed by the
parent or a subsidiary of the Company.
4.2 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the Commonwealth of
Massachusetts, without regard to conflicts of law principles. Any action, suit,
or other legal proceeding which is commenced to resolve any matter arising under
or relating to any provision of this Agreement shall be commenced only in a
court of the Commonwealth of Massachusetts (or, if appropriate, a federal court
located within Massachusetts), and the Company and the Employee each consents to
the jurisdiction of such a court.
4.3 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original but both of which
together shall constitute one and the same instrument.
4.4 TAX WITHHOLDING. Any payments provided for hereunder shall
be paid net of any applicable tax withholding required under federal, state or
local law.
4.5 ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto with respect to the
subject matter hereof.
4.6 AMENDMENTS. This Agreement may be amended or modified
only by a written instrument executed by both the Company and the Employee.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first set forth above.
XXXXXXXXX.XXX
By: /s/ Xxxxxx Xxxxxx
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Title: CEO
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/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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