1
EXHIBIT 10.14
SEVERANCE AGREEMENT AND RELEASE
THIS SEVERANCE AGREEMENT AND RELEASE (this "AGREEMENT") is made by and
between Xxxxx Xxxxxxxxx (the "EXECUTIVE") and Digital Impact, Inc. (the
"COMPANY"; together with the Executive, the "PARTIES"):
WHEREAS, the Executive was employed by the Company;
WHEREAS, the Company and the Executive have entered into an Employee
Proprietary Information and Inventions Agreement (the "CONFIDENTIALITY
AGREEMENT");
WHEREAS, the Executive's employment with the Company was terminated on or
about March 27, 2001 (the "TERMINATION DATE").
WHEREAS, the Executive wishes to release the Company from any claims
arising from or related to the employment relationship;
WHEREAS, the Parties, and each of them, wish to resolve any and all
disputes, claims, complaints, grievances, charges, actions, petitions and
demands that the Executive may have against the Company as defined herein,
including, but not limited to, any and all claims arising or in any way related
to the Executive's employment with, or separation from, the Company;
NOW THEREFORE, in consideration of the promises made herein, the Parties
hereby agree as follows:
1. Resignation. The Executive hereby resigns from his employment with the
Company and any other office he may hold with any subsidiary of the Company, as
of the Termination Date. The Executive shall execute any additional
documentation necessary to remove the Executive from any position he may have at
any such subsidiary and hereby grants the Company a power of attorney for the
purpose of executing any such document.
2. Consideration.
(a) Payment. The Company will tender the settlement amount to the
Executive by delivering a check for $65,625, less applicable withholding, made
payable to the Executive, within ten (10) business days following the Effective
Date of this signed Agreement, subject to the Executive not revoking this
Agreement or any release contained herein during any applicable statutory
post-signing revocation period.
(b) Benefits. The Executive shall have the right to convert his
health insurance benefits to individual coverage pursuant to COBRA.
3. Confidential Information. The Executive shall continue to maintain the
confidentiality of all confidential and proprietary information of the Company
and shall continue to comply with the terms and conditions of the
Confidentiality Agreement between the Executive and the Company. The Executive
shall return all of the Company's property and confidential and proprietary
information in his possession to the Company on the Effective Date of this
Agreement.
2
4. Payment of Salary. The Executive acknowledges and represents that the
Company has paid all salary, wages, bonuses, accrued vacation, commissions and
any and all other benefits due to the Executive once the above noted payments
and benefits are received.
5. Release of Claims. The Executive agrees that the foregoing
consideration represents settlement in full of all outstanding obligations owed
to the Executive by the Company. The Executive, on his own behalf, and on behalf
of his respective heirs, family members, executors, and assigns, hereby fully
and forever releases the Company and its officers, directors, employees,
investors, shareholders, administrators, affiliates, divisions, subsidiaries,
predecessor and successor corporations, and assigns, from, and agree not to xxx
concerning, any claim, duty, obligation or cause of action relating to any
matters of any kind, whether presently known or unknown, suspected or
unsuspected, that the Executive may possess arising from any omissions, acts or
facts that have occurred up until and including the Effective Date of this
Agreement including, without limitation:
(a) any and all claims relating to or arising from the Executive's
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from, the
Executive's right to purchase, or actual purchase of shares of stock of the
Company, including, without limitation, any claims for fraud, misrepresentation,
breach of fiduciary duty, breach of duty under applicable state corporate law,
and securities fraud under any state or federal law;
(c) any and all claims under the law of any jurisdiction
including, but not limited to, wrongful discharge of employment; constructive
discharge from employment; termination in violation of public policy;
discrimination; breach of contract, both express and implied; breach of a
covenant of good faith and fair dealing, both express and implied; promissory
estoppel; negligent or intentional infliction of emotional distress; negligent
or intentional misrepresentation; negligent or intentional interference with
contract or prospective economic advantage; unfair business practices;
defamation; libel; slander; negligence; personal injury; assault; battery;
invasion of privacy; false imprisonment; and conversion;
(d) any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment
Act of 1967, the Americans with Disabilities Act of 1990, the Fair Labor
Standards Act, the Employee Retirement Income Security Act of 1974, The Worker
Adjustment and Retraining Notification Act, Older Workers Benefit Protection
Act; the California Fair Employment and Housing Act, and Labor Code section 201,
et seq. and section 970, et seq.;
(e) any and all claims for violation of the federal, or any state,
constitution;
(f) any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination;
(g) any claim for any loss, cost, damage, or expense arising out
of any dispute over the non-withholding or other tax treatment of any of the
proceeds received by the Executive as a result of this Agreement; and
(h) any and all claims for attorneys' fees and costs.
-2-
3
The Company and the Executive agree that the release set forth in this
section shall be and remain in effect in all respects as a complete general
release as to the matters released. This release does not extend to any
obligations incurred under this Agreement.
The Executive acknowledges and agrees that any breach of any provision of
this Agreement shall constitute a material breach of this Agreement and shall
entitle the Company immediately to recover the severance benefits provided to
the Executive under this Agreement. The Executive shall also be responsible to
the Company for all costs, attorneys' fees and any and all damages incurred by
the Company (a) enforcing the obligation, including the bringing of any suit to
recover the monetary consideration, and (b) defending against a claim or suit
brought or pursued by the Executive in violation of this provision.
6. Acknowledgement of Waiver of Claims Under ADEA. The Executive
acknowledges that he is waiving and releasing any rights he/she may have under
the Age Discrimination in Employment Act of 1967 ("ADEA") and that this waiver
and release is knowing and voluntary. The Executive and the Company agree that
this waiver and release does not apply to any rights or claims that may arise
under ADEA after the Effective Date of this Agreement. The Executive
acknowledges that the consideration given for this waiver and release is in
addition to anything of value to which the Executive was already entitled. The
Executive further acknowledges that he has been advised by this writing that
(a) he should consult with an attorney prior to executing this
Agreement;
(b) he has up to twenty-one (21) days within which to consider
this Agreement;
(c) he has seven (7) days following his execution of this
Agreement to revoke the Agreement;
(d) this Agreement shall not be effective until the revocation
period has expired; and
(e) nothing in this Agreement prevents or precludes the Executive
from challenging or seeking a determination in good faith of the validity of
this waiver under the ADEA, nor does it impose any condition precedent,
penalties or costs for doing so, unless specifically authorized by federal law.
7. Civil Code Section 1542. The Executive represents that he is not aware
of any claim by the Company other than the claims that are released by this
Agreement. The Executive acknowledges that he has been advised by legal counsel
and is familiar with the provisions of California Civil Code Section 1542, which
provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
-3-
4
The Executive, being aware of said code section, agrees to expressly
waive any rights he may have thereunder, as well as under any other statute or
common law principles of similar effect.
8. No Pending or Future Lawsuits. The Executive represents that he has no
lawsuits, claims, or actions pending in his name, or on behalf of any other
person or entity, against the Company or any other person or entity referred to
herein. The Executive also represents that he does not intend to bring any
claims on his own behalf or on behalf of any other person or entity against the
Company or any other person or entity referred to herein.
9. Application for Employment. The Executive understands and agrees that,
as a condition of this Agreement, he shall not be entitled to any employment
with the Company and he hereby waives any right, or alleged right, of employment
or re-employment with the Company. The Executive further agrees that he will not
apply for employment with the Company.
10. No Cooperation. The Executive agrees he will not act in any manner
that might damage the business of the Company. The Executive agrees that he will
not counsel or assist any attorneys or their clients in the presentation or
prosecution of any disputes, differences, grievances, claims, charges, or
complaints by any third party against the Company and/or any officer, director,
employee, agent, representative, shareholder or attorney of the Company, unless
under a subpoena or other court order to do so.
11. Non-Disparagement. Each party agrees to refrain from any defamation,
libel or slander of the other party or tortious interference with the contracts
and relationships of the other party. All inquiries by potential future
employers of the Executive will be directed to the Company's Human Resources
Department. Upon inquiry, the Company shall only state the following: the
Executive's last position and dates of employment.
12. Non-Solicitation. The Executive agrees that for a period of twelve
(12) months immediately following the Effective Date, the Executive shall not
either directly or indirectly solicit, induce, recruit or encourage any of the
Company's employees to leave their employment, or take away such employees, or
attempt to solicit, induce, recruit, encourage, take away or hire employees of
the Company, either for himself or any other person or entity.
13. No Admission of Liability. The Parties understand and acknowledge
that this Agreement constitutes a compromise and settlement of disputed claims.
No action taken by the Parties hereto, or either of them, either previously or
in connection with this Agreement, shall be deemed or construed to be:
(a) an admission of the truth or falsity of any claims heretofore
made; or
(b) an acknowledgment or admission by either party of any fault or
liability whatsoever to the other party or to any third party.
14. No Knowledge of Wrongdoing. The Executive represents that he has no
knowledge of any wrongdoing involving improper or false claims against a federal
or state governmental agency, or any other wrongdoing that involves the
Executive or other present or former Company employees.
-4-
5
15. Costs. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
16. Indemnification. The Executive agreed to indemnify and hold harmless
the Company from and against any and all loss, costs, damages or expenses,
including, without limitation, attorneys' fees or expenses incurred by the
Company arising out of the breach of this Agreement by the Executive, or from
any false representation made herein by the Executive, or from any action or
proceeding which may be commenced, prosecuted or threatened by the Executive or
for the Executive's benefit, upon the Executive's initiative, or with the
Executive's aid or approval, contrary to the provisions of this Agreement. The
Executive further agrees that in any such action or proceeding, this Agreement
may be pled by the Company as a complete defense, or may be asserted by way of
counterclaim or cross-claim.
17. Authority. The Company represents and warrants that the undersigned
has the authority to act on behalf of the Company and to bind the Company and
all who may claim through it to the terms and conditions of this Agreement.
Executive represents and warrants that he has the capacity to act on his own
behalf and on behalf of all who might claim through him to bind them to the
terms and conditions of this Agreement. Each party warrants and represents that
there are no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action released herein.
18. No Representations. Each party represents that it has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement.
19. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision so long as the remaining provisions remain intelligible and continue
to reflect the original intent of the Parties.
20. Entire Agreement. This Agreement, and the agreements incorporated
herein by reference to the extent they are consistent with this Agreement,
constitute the entire agreement and understanding between the Parties concerning
the subject matter of this Agreement and all prior representations,
understandings, and agreements concerning the subject matter of this Agreement
have been merged into this Agreement.
21. No Waiver. The failure of any party to insist upon the performance of
any of the terms and conditions in this Agreement, or the failure to prosecute
any breach of any of the terms and conditions of this Agreement, shall not be
construed thereafter as a waiver of any such terms or conditions. This entire
Agreement shall remain in full force and effect as if no such forbearance or
failure of performance had occurred. 22. No Oral Modification. Any modification
or amendment of this Agreement, or additional obligation assumed by either party
in connection with this Agreement, shall be effective only if placed in writing
and signed by both Parties or by authorized representatives of each party. No
-5-
6
provision of this Agreement can be changed, altered, modified, or waived except
by an executed writing by the Parties.
23. Governing Law. This Agreement shall be deemed to have been executed
and delivered within the State of California, and it shall be construed,
interpreted, governed, and enforced in accordance with the laws of the State of
California. Any action at law, suit in equity, or other judicial proceedings for
the enforcement of this Agreement, or related to any provision of this
Agreement, shall be instituted only in courts with venue in the State of
California, except that the Company may seek injunctive relief in any court
having jurisdiction for any claim relating to the alleged misuse or
misappropriation of the Company's trade secrets or confidential or proprietary
information. The Executive hereby expressly consents to venue and personal
jurisdiction of the state and federal courts in the State of California for any
lawsuit filed there against the Executive by the Company arising from or
relating to this Agreement.
24. Attorneys' Fees. In the event that either Party brings an action to
enforce or effect its rights under this Agreement, the prevailing party shall be
entitled to recover its costs and expenses, including the costs of mediation,
arbitration, litigation, court fees, plus reasonable attorneys' fees, incurred
in connection with such an action.
25. Effective Date. This Agreement shall be effective on the eighth day
following the date on which the Executive executes this Agreement, provided that
the Executive does not revoke this Agreement prior to such date (the "EFFECTIVE
DATE").
26. Counterparts. This Agreement may be executed in counterparts, and
each counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
27. Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiation,
and execution of this Agreement by legal counsel of their own choice or that
they have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this Agreement
and of the releases it contains; and
(d) They are fully aware of the legal and binding effect of this
Agreement.
-6-
7
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
DIGITAL IMPACT, INC.
Dated: May 10, 2001 By: /s/ Xxxxx Xxxxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Chief Financial Officer
EXECUTIVE
Dated: May 17, 2001 /s/ Xxxxx Xxxxxxxxx
----------------------------------------
Xxxxx Xxxxxxxxx
-7-
