EXHIBIT 10.54
SEPARATION AGREEMENT AND RELEASE OF CLAIMS
This Separation Agreement and General Release of all Claims (this
"Agreement") is entered into on May 2, 2001 by and between Xxxxx X. Xxxxxxxx
(the "Executive") and Razorfish, Inc., including its subsidiaries (the
"Company").
In Consideration of the promises set forth in this Agreement, the
Executive and the Company hereby agree as follows.
1. Entire Agreement.
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This Agreement is the entire agreement between the Executive and the
Company with respect to the subject matter hereof which includes
without limitation any rights which may arise from the separation of
the Executive from the Company and contains all of the agreements,
whether written, oral, express or implied, between the Executive and
the Company and supersedes any other agreement, whether written or
oral, express or implied, between the Executive and the Company.
Except as set forth herein, all prior agreements and alleged
agreements, whether written, oral, express or implied, between the
Executive and the Company including without limitation the Employment
Agreement between the Executive and the Company dated July 18, 2000,
as amended from time to time (collectively, the "Employment
Agreement") are hereby terminated and extinguished effective as of the
Separation Date. Other than this Agreement there are no other
agreements of any nature whatsoever between the Executive and the
Company which survive this Agreement. This Agreement cannot be
modified or amended except in a writing signed and agreed to by the
Executive and the Company.
2. Separation.
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As of May 2, 2001(the "Separation Date"), the Executive hereby resigns
from any and all appointments as an officer or employee he holds with
the Company (including as the Chief Strategic Officer of the Company)
and any appointments as an officer, employee or director of any of its
subsidiaries or other affiliates, and hereby agrees that his
employment with the Company is terminated as of the Separation Date.
Except as expressly set forth in this Agreement, the Executive and the
Company shall have no obligations to each other of any nature
whatsoever after the Separation Date. After the Separation Date, the
Executive shall have no authority to act on behalf of the Company, and
shall not hold himself out as having such authority. From and after
the Separation Date, Executive will continue to serve as Co-Chairman
of the Company's Board of Directors (the "Board") until such time as
he is removed from such position by a resolution of a majority of the
Board.
As soon as practicable after the Separation Date, the Company, in
consideration of the waiver of Executive's rights under the Employment
Agreement, shall pay the Executive (i) a lump sum payment equal to any
accrued wage benefits earned prior to the Separation Date and (ii) a
lump sum payment of $400,000. In
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addition, (i) all outstanding Company stock options previously granted
to Executive will become fully vested and exercisable as of the
Separation Date and shall remain so until the second anniversary of
the Separation Date at which time such options shall terminate and
(ii) should the Executive elect continuation of benefit coverage under
COBRA, the Company shall pay the premiums therefor through the earlier
of (A) the first anniversary of the Separation Date or (B) the date on
which the executive obtains comparable health care coverage from a
subsequent employer. In addition, in further consideration of the
waiver of Executive's rights under the Employment Agreement, the
Company agrees to release the Executive from the personal guarantee
made by him with respect to the loans made by the Company to Razorfish
Studios, Inc. The Company shall withhold from any amounts paid under
this Agreement, or otherwise, the amount of any federal, state or
local taxes then required to be withheld.
3. Documents, Confidentiality and Non Disparagement.
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A. Return of Documents and Property. Promptly after the Separation
Date, the Executive agrees to return to the Company all originals
and copies of papers, notes, and documents (in any medium,
including computer disks) to the extent not publicly available,
whether Company property or not, prepared, received or obtained
by the Executive or his counsel during the course of the
Executive's employment with the Company and related to the
Company, whether or not relating to the claims released hereby,
including, without limitation, all such papers, work papers,
notes, documents and equipment in the possession of the
Executive, Executive's family and counsel. The Executive agrees
that the Executive shall not retain copies of any such papers,
work papers, notes and documents. Notwithstanding the foregoing,
the Executive may keep copies of any benefits agreements between
the Executive and the Company, this Agreement with supporting
notes and documentation, any publicly filed materials and any
employee benefit plan and stock option plan materials distributed
generally to participants in any such plan by the Company.
B. Confidentiality and Non Disparagement. For purposes of this
Section 3 of this Agreement, the term "Communicate" shall include
without limitation, any oral or written communication with any
other person or entity through any means including any
electronic, telephonic or other medium, directly or indirectly
publishing, or causing, participating in, assisting or providing
any statement or any information or making, publishing, or
producing or in any way participating in placing into the public
domain any statement, opinion or information in connection with
the publication of any diary, memoir, letter, story, photograph,
interview, article, essay, account or description (whether
fictionalized or not, whether written or electronic) publication
being deemed to include any presentation or reproduction of any
written, verbal or visual material in any communication medium,
including any book, magazine, newspaper, theatrical production or
movie, or television or radio programming or commercial or
electronic medium of any kind.
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(i) The Executive explicitly and fully agrees that he will not
at any time (a) defame, impugn or impair the reputation or
public perception of or with respect to, or disparage,
criticize or otherwise make negative comments in respect of
the Company, its subsidiaries or affiliates, the business,
assets, properties, operations, prospects, plans performance
(including stock market performance), strategies, current or
former employees, directors, advisors, stockholders,
lenders, joint venture partners, customers, tenants or
borrowers of any of the foregoing, and (b) will not
Communicate the terms or circumstances of the Executive's
separation from the Company or of this Agreement to the
extent not otherwise publicly known (collectively "Company
Matters"). Company Matters shall be deemed not to include
the mutually agreed upon departure statement with respect to
the Executive's separation from the Company provided for by
Section 3(C) of this Agreement. In addition, the Executive
explicitly and fully agrees that at any and all times the
Executive will hold all confidential and propriety
information (including without limitation the Company's
financial affairs or business processes or methods or
research, development or marketing programs or plans, any
other of its trade secrets, any information regarding
customers or customer lists) in confidence for the benefit
of the Company, and the Executive will not disclose to any
third party in any medium or use for the Executive's benefit
or that of any third party, any such confidential
information except to the extent required by law or agreed
to by the Company.
(ii) Notwithstanding anything to the contrary in this Section 3,
the Executive may confer in confidence with the Executive's
legal counsel, make truthful statements if required by law,
and confer with his immediate family members and personal
financial or tax advisors. In the event that the Executive
is required to make disclosure under any court order,
subpoena or other judicial or governmental administrative
process, the Executive will promptly notify the Company,
take all reasonable steps requested by the Company to defend
against compulsory disclosure and permit the Company to
participate with counsel of its choice and at its expense in
any proceeding relating to the compulsory disclosure.
C. The Company and the Executive shall develop a mutually acceptable
public departure statement regarding the Executive's separation
from the Company. The Company and the Executive shall develop a
mutually acceptable standard response for the Executive to
unsolicited inquiries from stockholders of the Company, and Media
Persons, which statement shall be deemed not to be a violation of
any provision of this Section 3 if made in response to any
inquiry not solicited by the Executive. The Company and the
Executive will also develop a mutually acceptable farewell "E-
mail" from the Executive to the employees of the Company.
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D. Nothing in this Agreement is intended to prevent the Executive
from (i) using on the Executive's behalf general knowledge or
experience in any area of professional activity, whether or not
involving the Executive's services with the Company; and (ii)
referring to the Executive's performance of services for the
Company as descriptive of the Executive's abilities and
qualifications for employment or engagement by any other person.
4. General Release and Waiver of Claims.
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A. The Executive and the Company hereby unconditionally and forever
release, discharge and waive any and all claims of any nature,
whatsoever, whether legal, equitable or otherwise which the
Executive or the Company may have against the other arising at
any time on or before the Separation Date. This mutual release
of all claims extends to any and all claims of any nature
whatsoever, whether known, unknown or capable or incapable of
being known as of the Separation Date or thereafter, with regard
to actions or omissions prior to the Separation Date. This
Agreement is a release of all claims of any nature whatsoever by
the Executive and the Company against the other with regard to
actions or omissions prior to the Separation Date and includes,
without limitation, any and all claims, demands, causes of
action, liabilities whether known or unknown including those
arising from or related to the Executive's employment
relationship with the Company, including but without limitation,
any and all alleged discrimination or acts of discrimination
which occurred or may have occurred on or before the Separation
Date based upon race, color, sex, creed, national origin, age,
disability or any other violation of any Equal Employment
Opportunity Law, ordinance, rule, regulation or order, including
but not limited to, Title VII of the Civil Rights Act of 1964, as
amended; the Civil Rights Act of 1966; the Civil Rights Act of
1991; the Fair Labor Standards Act, as amended, the Americans
with Disabilities Act; and any similar state statute or
regulations. The parties agree and understand and knowingly
agree to this release because it is their respective intent in
executing this Agreement to forever discharge each other from any
and all present, future, foreseen or unforeseen causes of action
with regard to actions or omissions prior to the Separation Date.
Nothing in this Section 4(A) shall be deemed to limit the
remedies of either party set forth in Section 8 of this
Agreement.
B. The Company and its successors and/or assigns, will indemnify and
defend the Executive with respect to any claims that may be
brought against the Executive arising out of any action taken or
not taken in the Executive's capacity as an officer of the
Company. In addition, the Executive shall continue to be
covered, in respect of the Executive's activities as an officer
of the Company, by the Company's Directors and Officer liability
policy or other comparable policies obtained by the Company's
successors, to the extent permitted by such policies.
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5. Proceedings.
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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 or its affiliates before any local, state or
federal agency, court, arbitration tribunal or other body relating to
his employment or the 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 in any Proceeding. The Executive waives any
right he may have to benefit in any manner from any relief (whether
monetary or otherwise) arising out of any Proceeding.
6. Continued Cooperation.
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The Executive agrees to cooperate with all reasonable requests by the
Company with respect to matters relating to the Executive's former
position as Chief Strategic Officer of the Company, including
agreement to provide sworn testimony.
7. Survival of Competition, etc. Covenants.
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The Executive acknowledges and agrees that the covenants contained in
Section 5 of the Employment Agreement shall survive the Separation
Date and be effective for the periods described therein as if those
periods had commenced on the date Executive ceases to serve as member
of the Board.
7. Directors' & Officers' Insurance.
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During the period that Executive continues to serve on the Board and
for a period of six years thereafter, the Company shall provide
Executive with directors' and officers' liability insurance coverage
on the same basis as provided to other directors and officers of the
Company at the time Executive ceases to serve on the Board.
8. Remedies.
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The parties acknowledge, consent and agree that the remedies at law
available to the Company and the Executive for breach of any of the
obligations of this Agreement would be inadequate and that damages
flowing from such a breach may not readily be susceptible to being
measured in monetary terms. Accordingly, the parties will have the
right to seek both damages and specific performance, including
immediate injunctive relief as remedies in the case of a breach by the
other party of this Agreement and nothing in this Agreement will be
deemed to eliminate, limit or otherwise inhibit such rights or the
right of either party to seek legal or equitable remedies, including
seeking immediate injunctive relief, in connection with or arising out
of any other action or omission by the other party on or subsequent to
the Separation Date.
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9. Severability Clause.
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In the event any provisions or part of this Agreement is found to be
invalid or unenforceable, only that particular provision or part so
found, and not the entire Agreement will be inoperative. If any of
the restrictions contained herein are deemed to be unenforceable by
reason of the extent, duration or scope thereof, or otherwise, then
the court or other tribunal making such determination shall reduce the
extent, duration or other provisions hereof to the broadest provision
deemed by such tribunal to be enforceable, and in its reduced form,
this Agreement will then be enforceable in the manner contemplated
hereby. To the extent permitted by applicable law the parties hereto
hereby waive any provisions of law now or hereafter in effect which
renders any provision hereof unenforceable in any respect.
10. Resolution of Disputes and Governing Law.
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This Agreement will be governed by the laws of the State of New York.
Any dispute under this Agreement (including, but not limited to,
disputes regarding the obligations to make payment thereunder) will be
decided in accordance with the laws of the State of New York, in a
court of competent jurisdiction, with each party bearing its own
expenses and such dispute will not be subject to arbitration.
11. Non-Admission.
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Nothing contained in this Agreement will be deemed or construed as an
admission of wrongdoing or liability on the Executive's part or on the
part of the Company, or its officers, employees, directors or
representatives or agents.
12. Headings.
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Headings are given to the sections and subsections of this Agreement
solely as a convenience to facilitate reference. Such headings shall
not be deemed in any way material or relevant to the construction or
interpretation of this Agreement or any provision thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the 2nd
day of May, 2001.
RAZORFISH, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title:
