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EXHIBIT 10.24
INDEMNIFICATION AND RELEASE AGREEMENT
THIS AGREEMENT ("Agreement") is entered into the 9th day of August,
2000 by and between YOUcentric, Inc., a North Carolina corporation (the
"Company") and X. Xxxxx Xxxxxxxx (the "Employee"), an individual resident of
North Carolina.
W I T N E S S E T H:
WHEREAS, the Employee is a valuable and trusted employee of the
Company; and
WHEREAS, as of December 30, 1999, the Employee and the Company entered
into an agreement (the "December 1999 Agreement") to settle the parties'
misunderstanding regarding the terms of the Employee's compensation and to
modify the terms of the Employee's employment arrangement; and
WHEREAS, the Company wishes to indemnify the Employee against certain
potential liabilities that might arise from the transactions related to the
December 1999 Agreement; and
WHEREAS, the Employee, in exchange for the agreement of the Company to
indemnify the Employee against certain potential liabilities, has agreed to
release the Company from any potential claims that might arise from the
transactions related to the December 1999 Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other consideration, the sufficiency of which is hereby
acknowledged, effective as of the date hereof, the parties hereto agree as
follows:
1. The Company agrees to indemnify, defend and hold harmless the Employee
for liabilities to third parties (including costs of defense) asserted
against the Employee which are related to or arise out of the
transactions described in or executed pursuant to the December 1999
Agreement up to the amount specified in paragraph 4 hereof
("Indemnified Liabilities"); provided, however, that the term
Indemnified Liabilities does not include the Employee's income,
withholding or payroll taxes to the extent related to the receipt or
disposal of the Company's preferred stock. The foregoing right of
indemnity against the Company shall be the Employee's sole right of
recovery and exclusive remedy for the Employee against any liabilities
related to or arising out of the transactions described in or executed
pursuant to the December 1999 Agreement.
2. Within ten (10) days of the Employee's first receipt from any third
party of written notice of a claim or potential claim against the
Employee arising from an Indemnified Liability, the Employee shall
send a copy of such notice and a copy of this Agreement to the
Company's Chief Financial Officer. Acceptable methods of delivering
notice to the Company are described below. Notwithstanding any other
provision of this Agreement, failure to comply with this paragraph
with respect to each claim or potential claim will terminate the
Employee's rights under this agreement with respect to such claim or
potential claim.
3. If the Employee gives the Company notice of a claim or potential
claim, the Company may elect to assume the defense of the claim;
provided, however, that the Employee shall in the interim use his best
efforts to take all action (not including settlement) reasonably
necessary to protect against further damage or loss with respect to
the claim. The Employee shall have the right to employ counsel
separate from counsel employed by the Company and may elect to
participate in
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the action, but the fees and expenses of such counsel shall be at the
Employee's own expense. Whether or not the Company chooses to defend
the claim, all parties to this Agreement shall cooperate in the
defense of the claim and shall furnish such records, information and
testimony and shall attend such conferences, discovery proceedings and
other proceedings as may be reasonably requested in connection with
the defense. The Company shall not be liable for any settlement of
such claim effected without the Company's prior written consent.
4. The Company's aggregate obligation to the Employee under this
Agreement for all Indemnified Liabilities shall not exceed one hundred
twenty-five thousand dollars ($125,000).
5. This Agreement shall terminate on June 30, 2005.
6. The Employee understands and acknowledges that the agreement of the
Company to indemnify the Employee as set forth herein is discretionary
in nature, is not an admission of liability, is not required of the
Company and constitutes adequate consideration for the agreement of
the Employee to release the Company from any potential claims that
might arise from the transactions related to the December 1999
Agreement. In executing this Agreement, the Employee has not relied on
any representations, promises or agreements of any kind except for
those set forth herein.
7. In exchange for the agreement of the Company to indemnify the Employee
against certain potential liabilities as set forth herein, the
Employee, for himself and his heirs, executors, administrators and
assigns, hereby irrevocably and unconditionally forever releases and
discharges the Company and its officers and directors from all actual
or potential claims, counterclaims, cross-claims, demands, losses,
actions, causes of action, or liabilities of any kind or nature,
whether known or unknown, accrued to date arising out of or related to
the transactions described in or executed pursuant to the December
1999 Agreement whether based in tort, contract (express or implied) or
any federal, state or local law, statute or regulation.
8. The Employee agrees that he will never institute a claim released
above in paragraph 7 against the Company or any of the parties
released above. If the Employee violates this Agreement by suing the
Company or any of the parties released above in paragraph 7, the
Employee agrees that he will pay all costs and expenses of defending
the suit incurred by the Company or any of the parties listed above in
paragraph 7, including reasonable attorneys' fees.
9. The Employee agrees that the parties released above in paragraph 7 may
plead this Agreement as a complete bar to any action or suit before
any court or administrative body with respect to any claim released
herein.
10. General Terms.
(i) The rights and obligations of each party to this Agreement
shall inure to the benefit of and be binding upon the heirs,
representatives, successors and assigns of such party.
(ii) All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered, if sent by certified or
registered mail, postage prepaid, return receipt requested or
if delivered by a nationally recognized express courier
service, charges prepaid, to such address as any party may
from time to time designate in writing to the other party
hereto, or if no such address has been designated, to the last
known business address of the party to whom such notice is to
be given.
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(iii) This Agreement constitutes the entire agreement of the parties
in regard to the subject matter hereof and supersedes any
prior or other agreement, whether written or oral, between the
parties in regard thereto. This Agreement may be changed only
by an agreement in writing signed by the party against whom
the enforcement of any waiver, change, modification, extension
or discharge is sought.
(iv) Failure of any party to insist, in one or more instances, of
performance by the other in strict accordance with the terms
and conditions of this Agreement shall not be deemed a waiver
or relinquishment of any right granted in this Agreement or of
the future performance of any such term or condition or any
other term or condition of this Agreement, unless such waiver
is contained in a writing signed by the party making the
waiver.
(v) This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of North
Carolina.
THE COMPANY
YOUCENTRIC, INC.
By /s/ X. Xxxxxx Xxxxx
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Name: X. Xxxxxx Xxxxx
Title: Chief Financial Officer
THE EMPLOYEE
/s/ X. Xxxxx Xxxxxxxx
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X. Xxxxx Xxxxxxxx
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