EXHIBIT 10.74
AGREEMENT AND COMPLETE RELEASE
WHEREAS Xxxxx Xxxxxxxx (hereinafter "Xxxxxxxx") and xxxxxx.xxx,
Incorporated (hereinafter "xxxxxx.xxx") (collectively, "the Parties") wish to
end the employment relationship between them and they wish to fully and finally
resolve all differences between them to avoid future claims and controversies
related to Xxxxxxxx'x employment, the following constitutes, their AGREEMENT:
In exchange for the mutual covenants herein expressed, the parties agree as
follows:
1. Xxxxxxxx shall tender his resignation in writing on or before the eighth day
following his execution of this Agreement to be effective on June 2, 2000.
The Employment Agreement of May 12, 1999, between Xxxxxxxx and xxxxxx.xxx
shall terminate as of June 2, 2000. (A copy of the Employment Agreement is
attached hereto as Exhibit A.) Notwithstanding the termination of the
Employment Agreement, Xxxxxxxx shall remain bound by his promises regarding
nondisclosure and return of confidential information, assignment of
intellectual property, non-competition, and non-solicitation as set forth in
Article V of the Employment Agreement for a period of one year from June 2,
2000, provided, however, that the definition of a "Competing Business," as
that term is used in Sections 5.4 and 5.5, is limited to the following
entities: AOL, GO, Xxxxxxxxxxxxx.xxx, HealtheonWebMdonhealth.
2. In consideration for this Agreement, xxxxxx.xxx shall place Xxxxxxxx on
"special assignment" in Cleveland, Ohio for the period between the eight day
following Xxxxxxxx'x execution of this Agreement through June 2, 2000. While
on "special assignment," Xxxxxxxx shall perform duties as assigned by
xxxxxx.xxx's President and Chief Executive Officer and shall be compensated
in accordance with the provisions of the Employment Agreement.
3. In consideration for this Agreement, xxxxxx.xxx will pay Xxxxxxxx the gross
sum of $223,500, less all applicable withholdings. This payment will be made
on June 2, 2000, provided that Xxxxxxxx does not exercise his revocation
rights as set forth in Paragraph 12 below.
4. xxxxxx.xxx represents and affirms that, pursuant to the Incentive Stock
Option Agreement of June 4, 1999, between the Parties, a copy of which is
attached as Exhibit B, Xxxxxxxx'x option to purchase 68,750 shares of
xxxxxx.xxx's Common Stock at $9.00 per share shall vest on June 1, 2000. The
option to purchase these 68,750 shares may be exercised by Xxxxxxxx
according to the Stock Option Plan.
5. Xxxxxxxx understands, agrees and expressly represents that the consideration
recited in the foregoing Paragraphs 2 and 3 is separate from and additional
to any payments or benefits to which he was already entitled by virtue of
his services to xxxxxx.xxx and to which he has no legal right. Xxxxxxxx
understands, agrees and expressly represents that he will be entitled to no
further compensation or payments of any type from xxxxxx.xxx. The Parties
both acknowledge the valuable consideration inherent in the resolution of
any
claims or controversies related to the Employment Agreement or Xxxxxxxx'x
employment with xxxxxx.xxx.
6. Xxxxxxxx WAIVES AND DISCLAIMS any claim or right he may have to be engaged
or employed by xxxxxx.xxx or any of its affiliate companies at any time in
the future. Xxxxxxxx promises not to seek or demand future engagement or
employment with xxxxxx.xxx or any of its affiliate companies.
7. Xxxxxxxx represents and affirms that he will return by June 3, 2000 any and
all xxxxxx.xxx property he may have had, including but not limited to
confidential information as defined in the Employment Agreement as well as
the laptop computer, cellular phone and Blackberry pager.
8. Xxxxxxxx shall not hereafter represent xxxxxx.xxx in any matters or with
respect to any other entities except as specifically authorized by
xxxxxx.xxx's President and Chief Executive Officer during the period of
"special assignment."
9. Xxxxxxxx agrees to keep both the existence and the terms of this Agreement
confidential, and not to disclose any information regarding this Agreement
to anyone other than his attorney, spouse (if any), and accountant or tax
advisor who shall be informed of and bound by this confidentiality
provision.
10. Xxxxxxxx does, for himself and his heirs, agents, executors, administrators,
and assigns hereby RELEASE and FOREVER DISCHARGE xxxxxx.xxx and its
directors, officers, employees, agents, successors, predecessors, assigns
and affiliated companies (collectively "Releasees") from any and all claims,
actions, and causes of action of whatever kind or nature, which he may now
have or ever may have had against the Releasees or any of them, whether
known or unknown to him, such as may have arisen in whole or in part at any
time prior to or on the date of execution of this Agreement. This includes,
but is not limited to, any claims arising out of any contract, express or
implied, any covenant of good faith and fair dealing, express or implied,
any tort (whether intentional or negligent, including claims arising out of
the negligence or gross negligence of any person released in this
Agreement), and any federal, state or other governmental statute, regulation
or ordinance relating to employment discrimination, termination of
employment, or payment of wages or provision of benefits, including without
limitation, Title VII of the Civil Rights Act of 1964 as amended, the Civil
Rights Act of 1991, the Americans with Disabilities Act, the Immigration
Reform and Control Act, the Employee Retirement Income Security Act, the
Family and Medical Leave Act, the Fair Labor Standards Act, the Age
Discrimination in Employment Act as amended, the Texas Commission on Human
Rights Act, the Texas Payday Law, and the Texas Workers' Compensation Act.
Xxxxxxxx and xxxxxx.xxx agree that by this Agreement, Xxxxxxxx is not
releasing any claims he may have under the Age Discrimination in Employment
Act that may arise after this Agreement becomes effective (i.e., after the
revocation period described in Paragraph 11 elapses without Xxxxxxxx having
exercised his revocation right).
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11. Xxxxxxxx has a maximum of twenty-one (21) days from February 18, 2000 in
which to review and consider this Agreement before signing it, and may use
as much or as little of that period as he wishes.
12. After Xxxxxxxx signs this Agreement, Xxxxxxxx has seven (7) days in which
to revoke the Agreement. Any such revocation will not be effective unless
Xxxxxxxx delivers a written notice of such revocation to xxxxxx.xxx c/o
Xxxxxx Xxxxxxx, President and CEO, 0000 Xxxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxx 00000, no later than the close of business on the seventh day after
Xxxxxxxx signs the release.
13. xxxxxx.xxx does, for itself and its directors, officers, employees, agents,
successors, predecessors, assigns and affiliated companies, hereby RELEASE
AND FOREVER DISCHARGE Xxxxxxxx from any and all claims, actions and causes
of action of whatever kind or nature, which it may now have or ever may
have had against Xxxxxxxx, whether known or unknown to it, such as may have
arisen in whole or part at any time prior to or on the date of execution of
this Agreement. This includes, but is not limited to, any and all statutory
and common law causes of action.
14. The Parties also expressly PROMISE NOT TO XXX OR INSTITUTE OTHER LEGAL
PROCEEDINGS against each other or the Releasees or any of them, on the
basis of any claims, actions, or causes of action that are being released
by this Agreement. The Parties understand and agree that if they breach
this promise and file a lawsuit or institute other legal proceedings with
any court or governmental agency, they will pay for all costs incurred by
the parties sued, including attorneys' fees.
15. Xxxxxxxx is encouraged to consult an attorney before signing this
Agreement; however, whether to do so is his decision.
16. The Parties understand and agree that by entering into this Agreement, the
Parties are not admitting any liability or wrongdoing. Rather, they
understand and agree that this Agreement is merely to settle any
differences between them arising out of Xxxxxxxx'x employment relationship
with xxxxxx.xxx and the termination of that relationship.
17. The Parties agree that they will not, directly or indirectly, in any
individual or representative capacity whatsoever, make any statement, oral
or written, or perform any act or omission which is or could be detrimental
in any material respect to the reputation or goodwill of the other Party or
any other person or entity released herein, except as may be required by
law, court order, government agency request or subpoena, or to defend
itself or himself in connection with a legal proceeding. xxxxxx.xxx's
obligations under this paragraph shall be limited to statements made by any
executive management employee who was an executive management employee of
xxxxxx.xxx at the time the statement was made. The Parties further agree
they will not voluntarily participate in, or aid or encourage any other
party in connection with any lawsuit or proceeding of any kind brought or
asserted by any person or entity against xxxxxx.xxx or any other person or
entity released herein.
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18. Xxxxxxxx hereby agrees that he is solely responsible for all federal, state
and local tax obligations, if any, including, but not limited to, all
reporting and payment obligations which may anise as a consequence of this
Agreement. Xxxxxxxx acknowledges that xxxxxx.xxx and the other persons or
entities released herein make no representations regarding the tax
treatment or consequences of such benefit(s). Xxxxxxxx agrees to indemnify
and hold xxxxxx.xxx and the other persons or entities released herein, or
any of them, harmless from and against any and all loss, cost, damage or
expense, including, without limitation, attorneys' fees, penalties or
interest, incurred by the xxxxxx.xxx and the other persons or entities
released herein, or any of them, arising out of the tax treatment of the
benefit(s) received by Xxxxxxxx as a result of his employment with
xxxxxx.xxx, his stock options, or this Agreement.
19. Xxxxxxxx understands and agrees that any breach of any term of this
Agreement will obligate him to return all but $1,000 of the payment
described in Paragraph 3, but that all other provisions of this Agreement,
including the release in Paragraph 10, will remain in effect. Xxxxxxxx
further understands and agrees that if any representation made by him in
this Agreement is false, such false representation will constitute breach
of this Agreement and he will be obligated to return all but $1,000 of the
payment described in Paragraph 3, but that all other provisions of this
Agreement, including the release in Paragraph 10, will remain in effect.
20. This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all other agreements
between the parties with respect to the subject matter hereof. No waiver,
amendment, or modification of this Agreement shall be valid unless in
writing and signed by each of the parties.
21. The provisions of this Agreement are severable. If any provision is held to
be invalid or unenforceable, it shall not affect the validity or the
enforceability of any other provision.
22. This Agreement shall be interpreted and enforced under the laws of the
state of Texas.
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XXXXXXXX UNDERSTANDS THAT HE HAS THE RIGHT TO DISCUSS ALL ASPECTS OF THIS
AGREEMENT AND COMPLETE RELEASE ("AGREEMENT") WITH AN ATTORNEY OF HIS CHOICE. BY
HIS SIGNATURE BELOW, XXXXXXXX AGREES THAT HE HAS EXERCISED THIS RIGHT TO THE
EXTENT HE DESIRED, THAT HE HAD A SUFFICIENT PERIOD OF TIME TO REVIEW THIS
AGREEMENT, THAT HE FULLY UNDERSTANDS THIS AGREEMENT, AND THAT THIS AGREEMENT IS
MADE KNOWINGLY AND VOLUNTARILY.
IN WITNESS THEREOF, the parties have affixed their signatures in the spaces
provided on this 12 day of April, 2000.
xxxxxx.xxx, Inc. Xxxxx Xxxxxxxx, An Individual
By: /s/ Xxxxxx Xxxxxxx /s/ Xxxxx Xxxxxxxx
-------------------- --------------------
[Name] Xxxxxx Xxxxxxx
[Title] CEO
STATE OF TEXAS )
) ss.
COUNTY OF XXXXXX )
BEFORE ME, the undersigned notary public, on this day personally appeared
XXXXX XXXXXXXX, known to me to be the person who executed the foregoing
instrument, and acknowledged to me that he executed the same for the purposes
and consideration therein expressed.
GIVEN under my hand and seal of office, this 12 day of April, 2000.
/s/ X. Xxxxxxx
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Notary Public in and for the State of Texas
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