Exhibit 10.40
SEPARATION AGREEMENT
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The following sets forth an Agreement between Optimark, Inc. (the "Company") and
Xxxx X. Xxxxxxx ("Employee") regarding his separation from employment with the
Company.
WHEREAS, Employee has indicated a willingness to resign from his
employment with the Company as of January 30, 2002;
WHEREAS, the Company has indicated a willingness to accept Employee's
resignation; and
WHEREAS, the parties mutually agree to resolve any issues that may
exist between them regarding the circumstances of Employee's termination of
employment;
THEREFORE, the parties agree as follows:
1. PAYMENTS AND BENEFITS SUPPORTING AGREEMENT. In consideration for
signing this Agreement and compliance with the terms and promises made herein,
and upon receipt of (a) Employee's written resignation in substantially the form
set forth in Exhibit A hereto and (b) Employee's return to OptiMark, Inc. of the
laptop computer and other equipment belonging to OptiMark, Inc., OptiMark, Inc.
agrees (x) to pay to Employee the amount of $22,249.32 (less appropriate
withholdings) on the first business day after the Payment Date (as defined
below) and (y) to the extent permitted pursuant to the Company's existing
employee benefit plan, to continue Employee's existing medical benefits through
March 31, 2002, including making payments on behalf of Employee of $154.68 and
$96.00 for long term disability and life insurance, respectively. The payment
pursuant to subsection (x) above will be made by wire transfer to an account
designated in writing by Employee.
2. NO CONSIDERATION ABSENT EXECUTION OF THIS AGREEMENT. Employee
understands and agrees that he would not have received the consideration
specified in paragraph "1" above except for his execution of this Agreement and
fulfillment of the promises contained herein.
3. GENERAL RELEASE OF CLAIMS. Employee recognizes that the
consideration referred to in paragraph "1" is above and beyond any amounts
otherwise due him for services rendered or to be rendered or under the Company's
general policies or programs or under the Employee's employment agreement with
the Company.
In consideration of and as a condition to this consideration, Employee hereby,
to the extent allowed by law, releases and forever discharges the Company and
all of its respective affiliates, subsidiaries, parent, present or former
partners, members, stockholders, officers, directors, employees, agents,
successors or assigns (collectively, the "Releasees") from any
claim for future employment, and of and from all claims or causes of action or
other demands whatsoever, which he ever had, now has, or hereafter can, shall or
may have against the Releasees, arising out of or related to his employment
relationship with the Company or the termination of that relationship.
This general release or giving up of claims is binding on the Employee, his
heirs, his assigns, and/or his representatives.
Listed below are examples of the statutes and legal theories from which the
Employee has released and discharged the Releasees and under which the Employee
will not bring any claim. In the event that the law prohibits a release or
waiver of claims under any such statute or theory, the Employee hereby waives
the right to seek or accept damages in a proceeding under the statute or theory
and/or hereby acknowledges that he has no valid claim under such statute or
theory. The claims released or acknowledged not to exist include, but are not
limited to, any alleged violation of: The Age Discrimination and Employment Act
of 1967, as amended, and including the Older Workers Benefit Protection Act of
1990, 29 U.S.C. ss. 621 et seq.; Americans With Disabilities Act; Title VII of
the Civil Rights Act of 1964; Employee Retirement Income Security Act; New
Jersey Law Against Discrimination; any other federal, state or local civil or
human rights law or any other local, state or federal law, regulation or
ordinance prohibiting, among other things, sexual harassment or discrimination
on the basis of sex, race, color, creed, religion, age, disability, national
origin, sexual orientation or marital status; and any public policy, contract,
tort, or other common law claim or cause of action, including but not limited to
breach of implied or express contract, intentional or negligent infliction of
emotional distress, negligent misrepresentation, defamation, wrongful discharge.
4. UNKNOWN CLAIMS RELEASED. Employee understands that he is releasing
Claims that he may not know about. This is Employee's knowing and voluntary
intent, even though Employee recognizes that someday he might learn that some or
all of the facts he currently believes to be true are untrue and even though he
might then regret having signed this Agreement. Nevertheless, Employee assumes
that risk and agrees that this Agreement shall remain effective in all respects
in any such case. Employee expressly waives all rights he might have under any
law that is intended to protect Employee from waiving unknown claims, and he
understands the significance of doing so.
5. CLAIMS NOT RELEASED. Employee understands that he is not releasing
any claim that relates to his right to enforce this Agreement, any rights or
claims that arise after the signing of this Agreement, or his right, if any, to
government provided unemployment benefits. The Company agrees that it will not
contest Employee seeking or otherwise obtaining unemployment compensation
benefits
6. NO PARTICIPATION IN CLAIMS. Employee understands that if this
Agreement were not signed, he would have the right to voluntarily assist other
individuals
or entities in bringing claims against the Company. Employee hereby waives that
right and he will not provide any such assistance, other than assistance in an
investigation or proceeding conducted by an agency of the United States
government. To the extent that the law prohibits Employee from waiving his right
to bring and/or participate in the investigation of a claim, he nevertheless
waives his right to seek or accept any damages or relief in any proceeding.
7. PROHIBITED STATEMENTS. Employee agrees to refrain from taking
action or making statements, written or oral, (a) which disparage or defame the
goodwill or reputation of the Releasees, actual or potential clients and
investors of the Releasees, The Ashton Technology Group, Inc. and its
affiliates, or (b) which could adversely affect the morale of other employees of
any of the foregoing. The Company's executive officers and directors agree that
they will not make any false or disparaging statements, written or oral, to any
person or entity concerning Employee.
8. CONFIDENTIALITY. Except for informing his spouse and communicating
with legal or financial advisers, and except as otherwise may be required by
applicable law, Employee will keep confidential the terms and conditions of this
Agreement.
9. NONADMISSION OF LIABILITY. Employee recognizes and agrees that this
Agreement is not intended to imply any wrongdoing on the Company's part with
respect to his employment or its termination, or any other reason, and shall not
constitute evidence of the same. Employee acknowledges that he resigned from the
employment with the Company as of January 30, 2002 and that such resignation was
voluntary on his part.
10. RETURN OF COMPANY PROPERTY. Employee represents that he has
returned all Company property, documents and copies of documents, including but
not limited to "Confidential Information." "Confidential Information" means
inventions, trade secrets, designs, discoveries and improvements, patentable and
unpatentable, concerning products and solutions related to the actual and
anticipated business of the Company, price and customer lists, customer contact
information, materials, research or test reports, sales organization or methods,
sales presentations, weekly reports, operating organization or methods, supplier
relationships, and inventories of the Company." Employee further agrees not to
disclose or use any Confidential Information.
11. DUTY OF COOPERATION. Employee covenants and agrees to cooperate
with the Company with respect to any reasonable request to provide information
or assist in any matter relating to the business of the Company of which he may
have knowledge or information including, but not limited to, the defense of any
pending or threatened litigation or government audit.
12. VOLUNTARY AGREEMENT. Employee's decision to enter into this
Agreement is based solely on the mutual considerations described above and is
wholly his free act and deed. Before signing this Agreement, Employee has had
the opportunity for up to twenty-one (21) days to carefully consider the terms
and ramifications of the Agreement and the opportunity to consult with his
advisors, legal or otherwise, which the Company has encouraged Employee to do.
13. GOVERNING LAW AND INTERPRETATION. This Agreement shall be governed
and conformed in accordance with the laws of the State of New Jersey without
regard to its conflict of laws provision.
14. LIMITATIONS ON CHANGING AGREEMENT. This Agreement may not be
modified, altered or changed except upon express written consent of both parties
wherein specific reference is made to this Agreement.
15. ENTIRE AGREEMENT. Employee acknowledges that he has not relied on
any representations, promises, or agreements of any kind made to him in
connection with his decision to sign this Agreement, except for those set forth
in this Agreement.
16. REVOCATION. Employee may revoke this Agreement for a period of
seven (7) days following the day he executes this Agreement. Any revocation
within this period must be submitted, in writing, to Xxxx Xxxxx, Esq. and state,
"I hereby revoke my acceptance of our Agreement and General Release." This
Agreement shall not become effective or enforceable until the revocation period
has expired. The day after the revocation period expires shall be the "Payment
Date" as referred to in paragraph 1 of this Agreement. If the last day of the
revocation period is a Saturday, Sunday, or legal holiday, then the revocation
period shall not expire until the next following day which is not a Saturday,
Sunday, or legal holiday.
17. SEVERABILITY. If any provision of this Agreement shall be deemed
invalid or unenforceable in any respect, such invalidity or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed and enforced as if it had never contained such invalid or
unenforceable provision. In addition, in place of such invalid or unenforceable
provision, there shall automatically be added hereto a provision as similar to
such invalid or unenforceable provision as may be possible and still be valid
and enforceable.
EMPLOYEE HAS HAD TWENTY ONE (21) DAYS TO CONSIDER THIS AGREEMENT AND
GENERAL RELEASE AND CONFIRMS THAT THE COMPANY ADVISED HIM TO CONSULT WITH HIS
ATTORNEY BEFORE EXECUTING THE AGREEMENT.
EMPLOYEE AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO
THIS AGREEMENT AND GENERAL RELEASE DO NOT RESTART OR AFFECT IN ANY MANNER THE
ORIGINAL TWENTY ONE DAY CONSIDERATION PERIOD.
HAVING ELECTED TO EXECUTE THIS AGREEMENT AND GENERAL RELEASE, TO
FULFILL THE PROMISES SET FORTH HEREIN, AND TO RECEIVE THE CONSIDERATION SET
FORTH IN PARAGRAPH "1" ABOVE, EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE
CONSIDERATION ENTERS INTO THIS AGREEMENT AND GENERAL RELEASE INTENDING TO WAIVE,
SETTLE AND RELEASE ALL CLAIMS HE HAS OR MIGHT HAVE AGAINST THE RELEASED
ENTITIES.
IN WITNESS WHEREOF, the parties knowingly and voluntarily executed
this agreement as of the date set forth below:
2-14-02 /s/ Xxxx X. Xxxxxxx
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Date Xxxx X. Xxxxxxx, Employee
Optimark, Inc.
2/20/02 By: /s/ Xxxx Xxxxx
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Its Executive Vice President
EXHIBIT A
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FORM OF RESIGNATION
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XXXX X. XXXXXXX
January 30, 2002
By Facsimile
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Xxxxxx X. Xxxxxxx, CEO
OptiMark, Inc.
00 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx Xxxx, XX 00000
Re: Resignation
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Dear Xxx:
Effective at the close of business on January 30, 2002, I hereby resign from my
position as an officer of OptiMark, Inc., and any other positions that I may
have with OptiMark, Inc., OptiMark Holdings, Inc. or any of their respective
affiliates.
Sincerely,
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
