Exhibit 10.3
NEGOTIATED SEPARATION AGREEMENT
AND GENERAL RELEASE
This Negotiated Separation Agreement and General Release ("AGREEMENT") is
made this 31/st/ day of May, 2001, by and between eBT International, Inc. ("eBT"
or the "Company") and Xxxxxxxxxxx Xxxxx, residing at _____________________ (the
"Employee"). In consideration for the mutual promises set forth below, the
parties agree as follows:
1. The Employee hereby irrevocably resigns effective September 1, 2001 (or
such earlier date as the Employee and Board of Directors of the Company may
agree to in writing)(the "Termination Date") as an employee and officer of the
Company and from any other position that that the Employee may hold with the
Company. The Employee acknowledges and agrees that the Company has the right to
terminate the Employee prior to the Termination Date and that, in the event that
such termination is based on the Employee's willful failure or refusal to
perform his job duties, or acts of misconduct which continue(s) and/or remain(s)
uncured for more than five (5) business days after the Company provides notice
of such failure, refusal or act(s), then at the Company's election, this
AGREEMENT shall be null and void.
2. The Employee acknowledges that on or about the date this AGREEMENT was
executed, a representative of the Company informed him of what he had a right to
receive upon the termination of his employment and explained to him that, if he
remains actively employed in good standing by the Company until the Termination
Date, signs this AGREEMENT, and complies with its terms, the Company, after the
Effective Date (as defined Paragraph 9) and as separation benefits, will give
him the following:
(i) an amount (the "Severance Payment") equal to ONE HUNDRED FORTY
THOUSAND AND 00/100 ($140,000.00) DOLLARS (subject to any applicable
payroll deductions and/or withholding) (the "Maximum Severance Payment").
The Severance Payment shall be paid to the Employee in installments
commencing on the first Friday on or after the Termination Date (or, if
later, the first Friday on or after the Effective Date) and thereafter paid
on each alternating Friday within the Severance Period. For purposes of
this AGREEMENT, the "Severance Period" shall be the period commencing on
the Effective Date (or, if later, September 1, 2001) and ending on December
31, 2001. The amount of each Severance Payment installment shall be the
same as the Employee's regular, bi-weekly base salary installments paid
prior to the Termination Date, provided however, that if the Severance
Period ends on December 31, 2001, then the final installment of the
Severance Payment shall be in an amount (subject to any applicable payroll
deductions and/or withholding) equal to the difference to between the
Maximum Severance Payment and the amounts paid under this Paragraph 2(i)
prior to such final installment.
(ii) continued coverage during the Severance Period under each of the
Company's insured group life, disability, dental, accident and health plans
in which the Employee participated as of the Termination Date, subject to
and in accordance with the terms of each such plan, provided that the
Employee continues to pay a portion of the insurance premiums and other
costs associated with such coverage equal to the portion paid by the
Employee as an active employee of the Company, and provided further that
if, during the Severance Period the Employee accepts employment (including
self-employment) with, or engagement as a contractor, consultant, joint
venturer or other service provider by, any entity, then such continued
coverage shall thereupon cease subject only to the Employee's rights, if
any, to continue coverage pursuant to COBRA (as hereinafter defined) or
comparable state law. Without limiting the foregoing, nothing in this
AGREEMENT shall constitute a promise to provide coverage that is not
expressly authorized under the terms of the applicable plan documents, or
in any way restrict the rights of the Company to amend, modify or terminate
any or all of its employee benefit plans. For purposes of the healthcare
coverage continuation provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA"), the Employee's "qualifying event"
shall be his employment loss on the Termination Date and any coverage
continuation provided under this Paragraph 2 shall be considered as part of
the Employee's continuation period under COBRA.
(iii) if the Employee has not accepted employment with, or engagement by,
any entity on or before December 31, 2001, and the Employee timely elects
to continue his coverage under the Company's group health plan pursuant to
COBRA, then the Company shall pay to the Employee, in installments or, at
the Company's election, in a lump sum, an amount equal to a portion of the
Employee's COBRA premium for the Extended Period (as hereinafter defined),
which portion shall be the same pro rata share of the premium paid by the
Company for the Employee's coverage under such plan as an active employee.
For purposes of this AGREEMENT, the Extended Period shall be the period
commencing on January 1, 2002 and ending on August 31, 2002 or, if earlier,
the date on which the Employee accepts employment with, or engagement by,
any entity.
(iv) each written option to acquire stock of the Company (an "Option
Agreement") granted to the Employee pursuant to a written stock option plan
adopted by the Company's Board of Directors shall, notwithstanding any
provisions of the grant or agreement pertaining to such option, be deemed
fully vested as of the Effective Date and may be exercised by the Employee
on or between the Effective Date and December 31, 2001, provided however
that any option that is intended to qualify as an incentive stock option
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended, must be exercised within ninety (90) days after the Termination
Date.
(v) the restrictions on transfer or disposition of any share of Company
stock issued to the Employee imposed by a written agreement between the
Company and the Employee (a "Restricted Stock Agreement") shall be waived
by the Company,
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provided however, that the Company shall have the option to purchase all,
but not less than all, such shares at any time on or prior to July 31, 2001
at the fair market value of such shares as at the date of such purchase by
the Company. For purposes of this Paragraph 2(v), the fair market value of
the restricted shares shall be the average closing price reported with
respect to the shares for the ten (10) trading days immediately preceding
the date on which the option is exercised.
(vi) a lump sum payment of FIFTEEN THOUSAND AND 00/100 ($15,000.00)
DOLLARS (subject to applicable withholding and deductions) which amount
shall be paid within sixty (60) days after the Employee's termination if,
but only if, he remains employed in good standing by the Company until
September 1, 2001 (or such earlier date as the Company's Board of Directors
may designate).
(vii) a lump sum payment of TEN THOUSAND AND 00/100 ($10,000.00) DOLLARS
(subject to applicable withholding and deductions) to be used to obtain
outplacement services or for such other purposes as the Employee may elect,
which amount shall be paid within sixty (60) days after the Termination
Date.
(viii) a lump sum payment of FIFTEEN THOUSAND AND 00/100 ($15,000.00)
DOLLARS (subject to applicable withholding and deductions) to be paid
within sixty (60) days after the Termination Date if, as determined by the
Company's Board of Directors in its sole discretion, the Employee
participates materially in (a) the filing of a draft proxy statement, and
(b) the management of the Company's assets in such a way as to ensure that
the anticipated distribution to shareholders remains not less than $3.10
per share of Company stock. The effect of any change in the amount of the
Company's liability attributable to Microlytics, compared to amount of such
liability reflected in the Company's financial statements as at the date of
this AGREEMENT, shall be disregarded in determining the price per share of
Company stock for purposes of this Paragraph 2(viii).
All payments (including, without limitation, the Severance Payment) to be made
to the Employee and benefits to be made available to the Employee in accordance
with the terms of this AGREEMENT, and the performance by the Company of its
other obligations hereunder, shall be conditioned on the Employee's continued
compliance with the covenants set forth in this AGREEMENT.
3. This AGREEMENT shall inure to the benefit of and be binding upon the
Company and the Employee, and their respective successors, executors,
administrators, heirs and permitted assigns.
4. In consideration of the promise of the Company as set forth in paragraph 2,
the Employee hereby, on behalf of himself, his executors, heirs, administrators,
assigns and anyone else claiming by, through or under him, waives, releases,
covenants not to xxx and forever discharges the Company, its predecessors,
successors, related corporations, parents,
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subsidiaries, divisions, employee benefit plans and affiliated organizations,
and their respective present and former trustees, officers, directors,
representatives, agents, shareholders, employees and attorneys (hereinafter
"Releasees"), and each and all of them of, from and with respect to any and all
debts, demands, actions, causes of action, suits, covenants, contracts,
agreements, promises, torts, damages, claims, demands and liabilities whatsoever
of any name and nature, both in law and in equity (hereinafter "Claims") which
he now has, ever had, or may in the future have against each or any of the
Releasees by reason of any matter, cause or thing whatsoever from the beginning
of the world to the Effective Date of this AGREEMENT (as defined in Paragraph
9), including, but not limited to, any Claims arising out of, based upon or
connected with his employment by the Company, the compensation and working
conditions for that employment and/or the termination of that employment and any
Claims that may exist under federal, state or local laws, including, but not
limited to, any Claims based on race, disability, color, national origin,
marital status, age or sex. The foregoing waiver and release includes, without
limitation, a waiver and release of any rights and Claims that the Employee may
have under Title VII of the Civil Rights Act of 1964; the Americans with
Disabilities Act; the Employee Retirement Income Security Act of 1974 ("ERISA");
the Worker Adjustment and Retraining Notification Act; and the Age
Discrimination in Employment Act of 1967, as amended, except that this AGREEMENT
does not waive or release any rights or claims (i) for indemnification, to the
extent provided under the terms of the Company's by-laws or any written
indemnification agreement between the Employee and the Company, with respect to
actions taken by the Employee in his capacity as an employee and/or officer of
the Company, (ii) to employee benefits to which the Employee is entitled
pursuant to Paragraph 2 and/or under the terms of any employee pension benefit
plan within the meaning of section 3(2) of ERISA maintained by the Company, or
(iii) to enforce the terms of this AGREEMENT.
5. The Employee declares that he has not filed or caused to be filed any
complaints, charges or claims against any of the Releasees with any local, state
or federal court or administrative agency which are currently outstanding. If he
has done so, however, he will cause all such complaints, charges or claims to be
dismissed with prejudice before the Effective Date of this AGREEMENT, as defined
in Paragraph 9. The Employee further agrees and covenants that he will not file
or cause to be filed any complaints, charges or claims against any of the
Releasees concerning or arising out of events occurring prior to the Effective
Date of this AGREEMENT. If the Employee violates any provision of this AGREEMENT
including, without limitation, the provisions of this Paragraph 5, all money
paid and the value of all other benefits provided pursuant to Paragraph 2
(including, without limitation, all gain realized upon the disposition of any
stock acquired in connection with Paragraph 2(iv) or 2(v)) will be repaid to the
Company upon demand, and the Company shall have the right, if it so elects
within sixty (60) days after the Company acquires actual knowledge of such
violation, to purchase all Company stock, or any portion thereof, held by the
Employee at the stock's fair market value (determined in accordance with
Paragraph 2(v)) as at the date of such purchase by the Company or, if less, the
price paid by the Employee for the shares.
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6. The Employee will not disclose any of the terms and conditions of this
AGREEMENT to any person other than his attorney, tax advisor or spouse except as
may be required by compulsory process of law. If the Employee violates this
Paragraph, all money paid pursuant to Paragraph 2 will be repaid to the Company
upon demand. Without limiting the Company's rights, the Company may disclose the
terms and conditions of this AGREEMENT if and to the extent such disclosure is
deemed necessary or appropriate by the Company's Board of Directors, including
without limitation, such disclosure as may be necessary or appropriate in
connection with any proxy statement prepared by or on behalf of the Company.
7. In further consideration of the promise of the Company as set forth in
Paragraph 2, the Employee agrees to (i) cooperate fully with the Company in each
and every investigation, arbitration, litigation or other proceeding conducted
by the Company or to which the Company is a party, which is initiated or
conducted, in whole or in part, at any time between the Effective Date and
December 31, 2003, if and to the extent requested to do so by the Company,
including without limitation, participation in any such proceeding as a witness,
(ii) be available to provide information and otherwise assist in the preparation
of any proxy statement prepared by or on behalf of the Company, and (iii) be
available to provide information and otherwise assist in connection with the
Company's liquidation, dissolution and winding down. The Company shall
reimburse the Employee for reasonable and necessary expenses incurred by the
Employee in connection with this Paragraph 7, provided such expenses are
approved by the Company, which approval shall not be withheld unreasonably. If
the services required under this Paragraph 7 are substantial and rendered after
August 31, 2002, then the parties shall negotiate a reasonable consulting fee
for such services provided after such date.
8. The Employee acknowledges that he has been given a full and fair
opportunity to consider this AGREEMENT. The Employee is hereby advised to
consult with an attorney before signing this AGREEMENT.
9. From the date that he receives this AGREEMENT, the Employee has until May
31, 2001 (or such later date as the Company may establish in writing) to
consider it. Should he sign the AGREEMENT on or before such date, the AGREEMENT
shall become effective and enforceable upon such signature (the "Effective
Date"). Should the Employee fail or refuse to sign this AGREEMENT within the
time period permitted by the Company, then this AGREEMENT shall be null and
void.
10. This AGREEMENT is the entire AGREEMENT between the Company and the Employee
and may only be modified in a writing signed by the parties. This AGREEMENT will
be governed by the laws of the State of Delaware. This AGREEMENT supercedes all
prior agreements and understandings between the parties including without
limitation each and every employment agreement, excepting only those provisions,
if any, of (i) any prior agreements restricting the Employee's ability to
disclose proprietary information of the Company, (ii) except as otherwise
provided herein, any Option Agreement or Restricted Stock Agreement, and (iii)
any indemnification agreement described in Paragraph 4.
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11. If any provision of this AGREEMENT is ruled to be unenforceable or invalid
by a court of competent jurisdiction, then the remainder of this AGREEMENT will
remain in full force and effect, provided however that if the Employee or anyone
acting on behalf or for the benefit of the Employee, directly or indirectly,
seeks to invalidate or render unenforceable any provision of this AGREEMENT, and
any such provision is consequently ruled to be unenforceable or invalid by a
court of competent jurisdiction, then, at the Company's election, the AGREEMENT
shall be deemed null and void and all money and things of value provided to the
Employee under this AGREEMENT shall be returned immediately to the Company.
12. The Employee states that he has read and understands this AGREEMENT, that
he is accepting its terms and that he is executing it knowingly, voluntarily,
without coercion and as his own free act and deed.
eBT International, Inc.
By /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Its Chairman
/s/ Xxxxxxxxxxx Xxxxx
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Xxxxxxxxxxx Xxxxx
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