Exhibit 99.1
SEPARATION AND RELEASE AGREEMENT
Xxxx X. Xxxxxxx ("XXXXXXX") and WorldWide Web NetworX Corporation, 000
Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxx Xxxxxx 00000, and its successors
and assigns (together "WWWX"), hereby knowingly and voluntarily agree to enter
into this Separation and Release Agreement ("AGREEMENT"), this 24th day of
August, 2000 (the "Effective Date") in order to resolve all outstanding issues
and set forth all the obligations between the parties. Xxxxxxx and WWWX
acknowledge and agree that this Agreement, and the Agreements specifically
referenced in this document, constitute the sole obligation of each to the other
and that no other promises, commitments, or representations have been made with
or by each of the parties to the other.
WHEREAS, Xxxxxxx and WWWX have entered into (a) an Incentive Stock
Option Grant Agreement (the "ISO Agreement"), and (b) a Non-Qualified Stock
Option Grant Agreement (the "NQSO Agreement"); and
WHEREAS, Xxxxxxx and WWWX have entered into an Employment Agreement,
dated January 14, 2000 (the "Employment Agreement").
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. As of the Effective Date, Xxxxxxx resigns as an officer,
director, employee, agent or representative of WWWX and any of its subsidiaries
and affiliates, including but not limited to ATM Service, Ltd. And The Intrac
Group, Ltd., in which Xxxxxxx holds office, is a director, or for whom Xxxxxxx
currently acts as an agent or representative. As of the Effective Date, Xxxxxxx
also resigns as a fiduciary and member of any and all committees established
with respect to any employee benefit plan maintained by WWWX or any of its
subsidiaries and affiliates. The resignations described in the two preceding
sentences shall occur automatically and without any further required action by
Xxxxxxx, WWWX or any other person.
2. Within ten (10) says following the Effective Date, WWWX will (i) pay
Xxxxxxx any portion of Xxxxxxx'x Base Salary (as defined in the Employment
Agreement) for the period up to the date of termination that has been earned but
remains unpaid; (ii) pay Xxxxxxx any benefits that have accrued to Xxxxxxx under
the terms of any benefit plans of WWWX in which he is a participant, which
benefits shall be paid in accordance with the terms of those plans, including
without limitation, accrued but unpaid vacation time; (iii) cause any options to
purchase securities of WWWX held by Xxxxxxx that were not previously vested to
vest pursuant to Section 3 of this Agreement; and (iv) pay Xxxxxxx the sum of
$138,750.00.00, representing a severance payment equal to nine (9) months Base
Salary.
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3. Xxxxxxx and WWWX hereby terminate the ISO Agreement and amend the
NQSO Agreement, effective after expiration of the 7-day revocation period in
Section 19, as follows:
a. Paragraph 1(a) is hereby replaced in its entirety with
the following: "GRANT OF OPTION. Subject to the terms
and conditions set forth in this Agreement and in the
Plan, the Company hereby grants to the Grantee an option
(the "Option") to purchase 250,000 shares of common
stock of the Company ("Shares") at an exercise price of
$.75 per Share. The Option shall become exercisable
according to Paragraph 2 below."
b. Paragraph 2 is hereby replaced in its entirety with the
following:
"EXERCISABILITY OF OPTION. The Option is now exercisable
by Grantee in full. Notwithstanding Section 5 of the
Plan, the Option is exercisable until the end of the
term specified in Section 3, without regard to any other
termination or separation from the Company.
c. Paragraph 3(b) is hereby deleted in its entirety.
d. A new paragraph 4(c) is inserted as follows:
"At any time during which the Option may be exercised,
Grantee may, at his option, choose to exercise the
Option on a cashless basis by giving written notice at
the principal office of the Company of his intent to
effect a cashless exercise ("NOTICE OF CASHLESS
EXERCISE"). For any cashless exercise, the Company will
issue to Grantee the number of shares of its common
stock equal to (i) the number of Shares specified by
Grantee in his Notice of Cashless Exercise (the "TOTAL
NUMBER") less (ii) the number of shares equal to the
quotient obtained by dividing (A) the product of the
Total Number and the Exercise Price by (B) the current
market value of a share of the Company's common stock.
Otherwise, on the date the Company delivers the Shares
to Grantee, he shall pay the exercise price for each
Share in cash to the Company. For purposes of the
foregoing, the current market value of a share of the
Company's common stock is the price paid for one share
in the last open-market trade of the day either on a
national securities exchange or as listed on the OTC
Bulletin Board on the last trading day before the day
the Option is exercised."
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e. Paragraph 5 is hereby amended by inserting the following
after the first sentence:
"The Company will treat Grantee's outstanding Options in
a manner and with procedures no less favorable than it
treats all other Grantees."
All other terms of the NQSO Agreement remain unmodified and in force. WWWX
hereby covenants that it will use commercially reasonable efforts to file a
registration statement on Form S-8 or otherwise to register the WWWX shares
underlying Xxxxxxx'x Option not later than 120 days from the Effective Date of
this Agreement.
4. Xxxxxxx acknowledges that he is not entitled to any further
consideration or monies, including any benefits, payments or wages, except as
set forth in this Agreement. Xxxxxxx acknowledges and agrees that Sections 2 and
3 include all amounts owed to him for vacation, bonus, severance, commission or
any other entitlement. This Agreement supersedes or modifies, as applicable, any
and all previous agreements, whether written or oral, between Xxxxxxx and WWWX.
5. Xxxxxxx shall execute and deliver to WWWX, simultaneously
with the execution and delivery of this Agreement, his letter of resignation as
an officer, director, agent or representative of WWWX and its subsidiaries and
affiliates, attached hereto as Exhibit "A."
6. Xxxxxxx will return all WWWX-owned or leased property,
documents, records and other information of any type whatsoever concerning or
relating to the business and affairs of WWWX and its subsidiaries and
affiliates.
7. Xxxxxxx agrees that acceptance of this Agreement
constitutes a full, complete, and knowing waiver of any claims asserted or
non-asserted that Xxxxxxx may have against WWWX arising out of his employment
and termination of employment including, but not limited to, any claims Xxxxxxx
may have under the laws of New York or New Jersey for wages, bonuses, torts,
contracts, or employment agreements or under any federal, state, or local
statute, regulation, rule, ordinance, or order which covers or purports to cover
or relates to any aspect of employment, including, but not limited to,
discrimination based on race, sex, age, religion, national origin, sexual
orientation, physical, medical, or mental condition, or marital status under,
among other statutes, Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, the Americans with Disabilities Act, the Age Discrimination
in Employment Act, the Fair Labor Standards Act, the Family and Medical Leave
Act, the New Jersey Family and Medical Leave Act, the Employee Retirement Income
Security Act, and other similar federal, state or local laws.
8. As a material inducement to WWWX to enter into this
Agreement, Xxxxxxx hereby irrevocably and unconditionally releases, acquits, and
forever discharges WWWX, and its shareholders and each of WWWX's and such
shareholders' directors, officers, employees, representatives, attorneys, and
all persons acting by, through, under or
SEPARATION & RELEASE AGREEMENT PAGE 3 OF 8
in concert with any of them (collectively "WWWX RELEASEES"), from any and all
charges, complaints, claims, controversies, damages, actions, causes of action,
suits, rights, demands, costs, losses, debts, and expenses (including attorneys
fees and costs actually incurred), of any nature whatsoever, known or unknown,
which Xxxxxxx now has, owns, holds, or claims to have, own, or hold, or claimed
to have, own, or hold, or which Xxxxxxx at any time hereafter may have, own, or
hold, or claim to have, own, or hold, from the beginning of time arising out of
or in any manner relating to Xxxxxxx'x employment with WWWX or the separation of
that employment until the date of execution of this Agreement.
9. As a material inducement to Xxxxxxx to enter into this
Agreement, WWWX hereby irrevocably and unconditionally releases, acquits, and
forever discharges Xxxxxxx from any and all charges, complaints, claims,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts, and expenses (including attorneys fees and costs actually
incurred), of any nature whatsoever, known or unknown, which WWWX now has, owns,
holds, or claims to have, own, or hold, or claimed to have, own, or hold, or
which WWWX at any time hereafter may have, own, or hold, or claim to have, own,
or hold, from the beginning of time arising out of or in any manner relating to
Xxxxxxx'x employment with WWWX, or service as a director or an officer to the
extent permitted by law, or the separation of that employment and service, until
the date of execution of this Agreement.
10. Xxxxxxx represents that he has not filed any complaint,
charge or claim against WWWX with any other governmental agencies and, on behalf
of himself, his heirs, executors, administrators and assigns agrees never to
directly or indirectly commence or prosecute, or assist in the commencement or
prosecution, or in any way cause, or advise to be commenced or prosecuted, any
action or proceeding against WWWX, its successors, and assigns or their past,
present or future officers, directors, agents or employees, and WWWX Releasees,
with respect to any matter, whether or not now known, based upon any act,
transaction, practice, conduct or omission that occurred prior to the date of
this Agreement, unless required by law. In the event that Xxxxxxx institutes, is
a party to, or is a voluntary member of a class that institutes any such action,
his claims shall be dismissed or class membership terminated with prejudice
immediately upon presentation of this Agreement. In addition, Xxxxxxx will pay
WWWX its costs, including reasonable attorney's fees, in obtaining dismissal of
such action.
11. WWWX represents that it has not filed any complaint,
charge or claim against Xxxxxxx in any forum or with any governmental agencies
and, on behalf of itself, subsidiaries, affiliates, successors, assigns or their
past, present or future officers, directors, agents or employees, and WWWX
agrees never to directly or indirectly commence or prosecute, or assist in the
commencement or prosecution, or in any way cause, or advise to be commenced or
prosecuted, any action or proceeding against Xxxxxxx, his heirs, executors,
administrators and assigns, with respect to any matter, whether or not now
known, based upon any act, transaction, practice, conduct or omission that
occurred prior to the Effective Date of this Agreement. In the event that WWWX
institutes, is a party to, or is a voluntary member of a class that institutes
any such action, its claims shall be dismissed or class membership terminated
with prejudice immediately
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upon presentation of this Agreement. In addition, WWWX will pay Xxxxxxx his
costs, including reasonable attorney's fees, in obtaining dismissal of such
action.
12. In the course of employment with WWWX prior to the date
hereof, Xxxxxxx has had access to confidential and proprietary information and
records, data and other trade secrets of WWWX ("CONFIDENTIAL INFORMATION").
Confidential Information shall include, without limitation, the following types
of information or material, both existing and contemplated, regarding WWWX, or
its subsidiary or affiliated companies: corporate information, including plans,
strategies, policies, resolutions, and any litigation or negotiations; marketing
information, including strategies, methods, customers, prospects, or market
research data; financial information, including cost and performance data, debt
arrangement, equity structure, investors, and holdings, operational and
scientific information, including trade secrets and technical information; and
personnel information, including personnel lists, resumes, personnel data,
organizational structure, compensation structure, and performance evaluations.
Xxxxxxx shall not directly or indirectly disclose Confidential Information to
any person or entity or use Confidential Information in any way, except that
Xxxxxxx may utilize Confidential Information, if and to extent that he is
required to do so in order to render consulting services to WWWX, during the
Consulting Period.
13. Xxxxxxx acknowledges that the terms of this Agreement and
all discussions leading up to it are confidential and agrees that he will not
divulge the terms of this Agreement to any third party, except his immediate
family, financial advisor, attorney or as required by law or court order.
14. Xxxxxxx agrees not to directly or indirectly take,
support, encourage or participate in any action or attempted action that in any
way would damage the reputation of WWWX and/or any of its subsidiaries or
affiliates. Nothing contained in this Agreement nor the fact that the parties
have signed the Agreement shall be considered an admission by either party.
Xxxxxxx agrees that he will cooperate with WWWX, at its cost, and its designated
agents/representatives as reasonably necessary consistent with his business
obligations in any legal disputes and/or proceedings and/or business matters
relating to issues and/or incidents which took place during his term of
employment.
15. Both Xxxxxxx and WWWX agree not to disparage each other in
any way. Xxxxxxx and WWWX agree that they will not speak about each other in
negative terms. Should Xxxxxxx discuss the terms of the Agreement with
individuals other than his immediate family, his attorney, or as required by
law, Xxxxxxx shall pay only the actual damages proximately caused by his
violation, WWWX's reasonable attorneys' fees and costs incurred in enforcing its
rights, and may be subject to injunctive relief. Similarly, should WWWX or any
of its directors, officers, employees, agents, or other authorized
representatives discuss the terms of the Agreement with individuals other than
WWWX directors, officers, employees, agents, other authorized representatives,
their attorneys, or as required by law, WWWX shall pay only the actual damages
proximately caused by its violation, Xxxxxxx'x reasonable attorneys fees and
costs incurred to enforce his rights, and may be subject to injunctive relief.
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16. In the event of any default by WWWX under this Agreement,
Xxxxxxx will use reasonable efforts to mitigate his damages, but such acts will
not limit or modify any of Xxxxxxx'x rights under this Agreement, and WWWX will
pay to Xxxxxxx a reasonable sum for attorney fees and other reasonable costs and
expenses incurred by Xxxxxxx in enforcing any right or privilege under this
Agreement.
17. Xxxxxxx agrees that this Agreement shall be construed
under New Jersey law without regard to the conflict of laws provision therein
and any actions relating thereto must be brought within the State of New Jersey.
18. The provisions of this Agreement are independent and
severable from each other and this Agreement and any other documents executed
pursuant to this Agreement are independent of each other whereby if any term or
provision of this Agreement or any document delivered pursuant hereto shall be
determined to be illegal or unenforceable, all of the terms and provisions of
this Agreement and any document delivered pursuant hereto shall nevertheless
remain effective and shall be enforced to the fullest extent permitted by
applicable law.
19. Xxxxxxx and WWWX, along with their respective attorneys,
have participated fully in the review and revision of this Agreement. Any rule
of construction to the effect that ambiguities are to be resolved against the
drafting party shall not apply in interpreting this Agreement.
20. Xxxxxxx warrants that he is fully competent to enter into
this Agreement and that, consistent with the terms of the Older Workers Benefit
Protection Act of 1990, he has carefully read and fully understands the terms of
this Agreement, has had the advice of counsel with respect this Agreement and
has been given the opportunity to consider the terms of the Agreement for at
least 21 days, and has signed this Agreement freely and voluntarily. Further,
Xxxxxxx understands that he has the opportunity to revoke such Agreement within
7 days of signing it. Bnaigan understands that if he does revoke the Agreement,
he must notify WWWX in writing within 7 days of signing the Agreement.
21. Xxxxxxx warrants that he is fully competent to enter into
this Agreement and that he has carefully read and fully understands the terms of
this Agreement, has had the advice of counsel with respect this Agreement and
has signed this Agreement freely and voluntarily. Further, Xxxxxxx understands
that he has the opportunity to revoke such Agreement within 7 days of signing
it. Xxxxxxx understands that if he does revoke the Agreement, he must notify
WWWX in writing within 7 days of signing the Agreement.
22.(a) Right To Indemnification: If Xxxxxxx is made a party
or is threatened to be made a party or is involved in any action, suit or
proceeding, whether civil, criminal, administrative, or investigative
(hereinafter a "Proceeding"), by reason of the fact that he is the legal
representative, is or was a director or officer, of WWWX or is or was serving at
the request of WWWX as a director, officer, employee, or agent of another
corporation or of a partnership, joint venture, trust, or other enterprise,
whether the
SEPARATION & RELEASE AGREEMENT PAGE 6 OF 8
basis of such proceeding is alleged action in an official capacity as a
director, officer, employee, or agent or in any other capacity while serving as
a director, officer, employee, or agent, Xxxxxxx shall be indemnified and held
harmless by WWWX to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits WWWX
to provide broader indemnification rights than said law permitted WWWX to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties,
and amounts paid or to be paid in settlement) incurred or suffered by the
Xxxxxxx in connection therewith and such indemnification shall continue even
though Xxxxxxx has ceased to be a director, officer, employee, or agent and
shall inure to the benefit of his heirs, executors, and administrators. The
right to indemnification conferred in this Section shall be a contract right and
shall include the right to be paid by WWWX the expenses incurred in defending
any such proceeding in advance of its final disposition.
(b) Right Of Xxxxxxx To Bring Suit: If a claim under paragraph (a)
of this Section is not paid in full by WWWX within ten days after a written
claim has been received by WWWX, Xxxxxxx may at any time thereafter bring suit
against WWWX to recover the unpaid amount of the claim and, if successful in
whole or in part, Xxxxxxx shall be entitled to be paid also the expense of
prosecuting such claim.
(c) Rights Not Exclusive: Notwithstanding any limitation to the
contrary contained in sub-paragraphs (a) and (b) of this section, WWWX shall, to
the fullest extent permitted by Section 145 of the General Corporation Law of
the State of Delaware, as the same may be amended and supplemented, indemnify
Xxxxxxx from and against any and all of the expenses, liabilities, or other
maters referred to in or covered by said section, and the indemnification
provided for herein shall not be deemed exclusive of any other rights to which
Xxxxxxx may be entitled under any law, By-Law, agreement, vote of stockholders
or disinterested Directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue even though Xxxxxxx has ceased to be director, officer, employee,
or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(d) Insurance: For a period of at least six (6) years, WWWX shall
maintain insurance, at its expense, to protect itself and Xxxxxxx resulting from
his service as a director, officer, employee, or agent of WWWX or another
corporation, partnership, joint venture, trust, or other enterprise against any
such expense, liability or loss, whether or not WWWX would have the power to
indemnify Xxxxxxx against such expense, liability, or loss under the Delaware
General Corporation Law. Such insurance shall be substantially similar in terms,
insurer ratings, and policy limits to the policies currently in effect as of the
date of this Agreement.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF
ALL KNOWN AND UNKNOWN CLAIMS.
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To signify the parties' agreement to the terms of the foregoing Agreement, the
parties have executed this Agreement on the date set forth opposite their
signatures, which appear below.
Date: 8/24/00 /s/ Xxxx X. Xxxxxxx
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XXXX X. XXXXXXX
Date: 8/24/00 WORLDWIDE WEB NETWORX CORPORATION
--------------
/s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
and General Counsel
Exhibit A
August 24, 2000
The Board of Directors of
WorldWide Web NetworX Corporation
000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
Gentlemen:
I hereby voluntarily resign as an officer, director, employee, agent or
representative of WorldWide Web NetworX Corporation ("WWWX") and its
subsidiaries and affiliates, including but not limited to ATM Service, Ltd.
and The Intrac Group, Ltd., effective immediately.
Very truly yours,
/s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
