AGREEMENT
EXHBIT
10.1
AGREEMENT
This
Agreement (this “Agreement”) is executed as of August 8, 2007 (the
“Effective Date”) by and among Xxxxxx X. Xxxxxxxxx (the
“Executive”) and a21, Inc., a corporation formed under the laws
of the
State of Delaware (the “Company” or “a21”) (each, a “Party”
and, collectively, the “Parties”).
WHEREAS,
the Executive and the Company entered into a written agreement effective as
of
October 9, 2006 (the “Employment Agreement”) relating to the employment
of the Executive by the Company; and
WHEREAS,
the Executive desires to resign his employment with the Company and the
Executive and the Company wish to set forth their respective rights, liabilities
and obligations, if any, under the Employment Agreement, as provided
herein.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth below, and for other good and valuable consideration,
the receipt and sufficiency of which the Parties hereby acknowledge, the Parties
hereto agree as follows:
W I T N E S S E T H
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1.
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Termination
of Employment, Severance.
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(a)
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The
Executive’s employment with the Company is hereby terminated as of August
8, 2007 (the “Termination Date”). The Company will, in
the aggregate, pay the Executive severance (the “Severance”) equal
to seven (7) month’s salary, in the amount of $96,250, paid in
installments, at such intervals as the Company regularly makes payments
to
employees generally, over such seven (7) month period (the “Severance
Period”). Executive shall also be eligible to receive a
bonus (the “Bonus”) pursuant to the terms of paragraph 3(c) of the
Employment Agreement in the amount of $37,125. The Severance
payments shall commence and the Bonus shall be paid as soon as reasonably
practicable following (i) Executive’s execution and delivery of this
Agreement in accordance with the terms of Section 20 below and (ii)
the
expiration of the 7-day revocation period provided for in Section
20 below
without Executive revoking this Agreement pursuant to the terms
thereof. Executive understands and agrees that the Company will
deduct from the Severance and Bonus all federal, state and/or local
withholding taxes and other deductions the Company is required by
law to
make from its wage payments to employees. The Executive hereby
resigns, effective the Termination Date, as the Executive Chairman
and as
a Director of the Company and from each and every other position
he may
hold at the Company and its affiliates. In the event that the
Executive fails to comply with any
material
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Ex.
10.1
Page 1
provision
of this Agreement, the Severance payments hereunder shall be immediately
cancelled, if the Company has provided written notice to the Executive and
provide a period of ten (10) days to cure such non-compliance, if capable of
cure.
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(b)
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The
Company agrees that all of the Executive’s vested stock options may be
exercised by the Executive after the Effective Date in accordance
with the
terms of the Executive’s Employment Agreement (the “Option Expiration
Date”). After the Option Expiration Date, all of the
Executive’s unexercised stock options shall be
cancelled.
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(c)
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The
Company agrees that all of the Executive’s unvested shares of restricted
common stock as of the Effective Date shall continue to vest in accordance
with the terms and conditions contained in the Employment
Agreement. The then unvested shares of restricted common stock
shall be forfeited if the Executive breaches any of the terms and
conditions of this Agreement.
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2.
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Consideration. Except
as specifically provided in this Agreement, the Employment Agreement
is
hereby cancelled and terminated and none of the parties thereto shall
have
any obligations to each other under the Employment Agreement, except
as
set forth in this Agreement. Executive hereby acknowledges and
agrees that the provisions of the Employment Agreement relating to
any
severance payments that Executive would be entitled to receive thereunder
are cancelled and hereby terminated, and that except as provided
in this
Agreement, Executive has no legal or other entitlement to the arrangements
described in the Employment Agreement, and that the Company’s agreement to
make such payments and provide the other consideration specified
in this
Agreement, is sufficient consideration for the general release,
non-solicitation and non-competition terms set forth respectively
in this
Agreement.
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3.
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No
Other Payments. The Executive acknowledges that, as of the
date hereof, the Company has made or has agreed in this Agreement
to make
all payments to the Executive as required under the Employment Agreement
or otherwise for wages that the Executive has earned through the
Termination Date hereof including bonuses, if any; and has reimbursed
the
Executive for all expenses he incurred on behalf of the Company to
the
date hereof (except for company expenses from May through the Effective
Date to be reimbursed in a timely manner) and was entitled to be
reimbursed for; and, except as provided in this Agreement, the Company
currently owes him no other payments of any kind and of any
nature. Without limiting the generality of the foregoing,
except as provided in this Agreement, the Executive hereby relinquishes
any and all right he may have under the Employment Agreement to receive
cash payments, benefits, shares and options including, without limitation,
under the provisions of Sections 3(a), (b), (c), (d), (e) and (f)
of the
Employment Agreement.
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Ex.
10.1
Page 2
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4.
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General
Release.
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(a)
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Except
for the obligations undertaken by the Company under this Agreement,
Executive hereby covenants and agrees and releases the Company, and
all of
its respective Affiliates (as defined below), and their respective
employees, officers, directors and agents, from any and all debts,
demands, actions, causes of action, suits, dues, sum and sums of
money,
accounts, reckonings, bonds, specialties, covenants, contracts,
controversies, agreements, promises, doings, omissions, variances,
damages, extents, executions and liabilities and any and all other
claims
of every kind, nature and description whatsoever (collectively,
“Claims”) the Executive (or Executive’s respective successors and
assigns) has or hereafter can, shall or may have based on the Executive’s
employment by the Company, any events that may have occurred during
the
course of his employment or the termination of that employment, or
any
other matters or claims of any kind or nature from the beginning
of the
world to the Effective Date (including without limitation, those
arising
out of or which may hereafter be claimed to arise out of the Employment
Agreement or Executive’s status as a shareholder of the
Company). Without limiting the generality of the foregoing, the
scope of this release includes (but is not limited to) a release
of any
and all claims for unpaid wages or other compensation, breach of
contract,
wrongful discharge, disability benefits, health and medical insurance,
sick leave and employment discrimination. Executive
acknowledges and agrees that he is specifically releasing any rights
or
claims he may have under: the Age Discrimination in Employment Act
(“ADEA”) (which prohibits discrimination in employment based on age);
Older Workers Benefit Protection Act of 1990 (“OWBPA”) (which also
prohibits discrimination in employment based on age); Title VII of
the
Civil Rights Act of 1964, which prohibits discrimination in employment
based on race, color, national origin, religion or sex; the Equal
Pay Act,
which prohibits paying men and women unequal pay for equal work;
Title I
of the Americans with Disabilities Act; the New York Human Rights
Law; the
New York City Human Rights Law; and all other federal, state and
local
laws and regulations prohibiting discrimination in
employment. Executive acknowledges and agrees that this release
covers not only claims that he knows about, but also claims that
he might
not know about. Executive covenants and agrees that the release
set forth in this Section 4 shall be binding upon his successors
and
assigns. By signing this Agreement, Executive acknowledges and
agrees that he is forever giving up his rights to make any of the
claims
or demands mentioned above. For purposes of this Agreement,
“Affiliate” means any entity that controls, is controlled by, or is under
common control with the Company.
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(b)
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Except
for the obligations undertaken by the Executive under this Agreement,
the
Company, for good and valuable consideration, the receipt of which
is
hereby acknowledged, hereby forever remises, releases and discharges
the
Executive, and his or its subsidiaries, divisions, stockholders,
directors, officers, managers, employees and agents, from all Claims
(upon
any legal or equitable theory, whether contractual, common-law, statutory,
federal, state local or
otherwise)
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Ex.
10.1
Page 3
whether
known or unknown which against the Executive and his successors,
agents, servants, beneficiaries, attorneys or assigns, the Company now has,
may
have, or ever had, from the beginning of the world to the Effective Date,
including, without limitation, all statutory, tort, contract and other claims
that were or could have been asserted and any and all matters which in any
way
relate to or arise out of the Company’s relationship with the
Executive. This release covers claims the Company is or is not
currently aware of. This release includes, but is not limited to, all
claims for compensatory damages, punitive damages, attorneys’ fees, expenses and
costs or other compensation of any kind, including any claims which were or
might have been asserted by the Company or on its behalf.
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5.
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No
Lawsuits. The Parties represent and warrant that they have
not filed (whether recently or otherwise) any claim or lawsuit against
the
other Party or, in the case of the Company, its respective Affiliates,
or
any of their employees, officers or directors, based on the actions
of the
other Party or the Company’s Affiliates or any of their employees,
officers or directors, in connection with the Executive’s employment and
the termination of his employment with the Company. Each Party
covenants and agrees that they will never file a lawsuit asserting
any
claims that such Party has released in Section 4
above.
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6.
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Non-Solicitation;
Confidentiality and Non-Competition. Executive acknowledges
and agrees that (i) following provisions of the Employment Agreement
each
survives this Agreement, (ii) such provisions are hereby reaffirmed
and
incorporated herein by reference, and (iii) he will comply with each
and
every such provision: Sections 5 (Non-Solicitation), 6
(Confidentiality), 7 (Non-Competition), 8 (Reasonable Restrictions)
and 9
(Remedies).
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7.
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Cooperation. Executive
agrees to assist and to cooperate with the Company in connection
with the
defense or prosecution of any claim that may be made against or by
the
Company, or in connection with any ongoing or future investigation
or
dispute or claim of any kind involving the Company, including any
proceeding before any arbitral, administrative, judicial, legislative,
or
other body or agency, including testifying in any proceeding to the
extent
such claims, investigations or proceedings relate to services performed
or
required to be performed by Executive, pertinent knowledge possessed
by
Executive, or any act or omission by Executive. Executive will
also perform all acts and execute and deliver any documents that
may be
reasonably necessary to carry out the provisions of this
paragraph. The Company will reimburse Executive for reasonable
expenses Executive incurs in fulfilling Executive’s obligations under this
paragraph.
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8.
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Legal
Process. If Executive is served with legal process or other
request purporting to require Executive to testify and/or produce
documents at a legal proceeding involving any of the Company Entities,
Executive shall (i) refuse to provide testimony or documents absent
a
subpoena, court order or similar process from a regulatory agency;
(ii)
promptly notify the Company of such legal process or
other
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Ex.
10.1
Page 4
request;
and (iii) promptly deliver to the Company a copy of all legal papers and
documents served upon Executive and – prior to producing such documents – any
and all documents that are responsive to such legal process or
request.
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9.
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Non-Disparagement.
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(a)
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During
the Severance Period, except to the extent required by law or
under legal
process, the Executive agrees not to (i) in any way publicly disparage
the
Company, its Affiliates or their respective shareholders, officers,
directors, or employees, (ii) act in a manner reasonably likely to
cause
embarrassment or public humiliation to such entities or persons,
or (iii)
make any public statement or take any action that is reasonably likely
to
be adverse, inimical or otherwise detrimental to the interests of
such
entities or persons.
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(b)
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During
the Severance Period, except to the extent required by law or under
legal
process, the Company agrees to use commercially reasonable efforts
to
cause its directors and executive officers not to (i) in any way
publicly
disparage the Executive, (ii) act in a manner reasonably likely to
cause
embarrassment or public humiliation to the Executive, or (iii) make
any
public statement or take any action that is reasonably likely to
be
adverse, inimical or otherwise detrimental to the interests of the
Executive.
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10.
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Non-Admission
of Liability. This Agreement and the release contained
herein shall not be construed as evidence nor an admission of any
wrongdoing or violation of any law, regulation, rule or
agreement.
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11.
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Consequences
if Violation of Certain Promises.If any Party must take legal action
to enforce the terms of this Agreement, the prevailing Party will
be
entitled to receive reasonable attorney’s fees and costs from the
non-prevailing Party. The remedy provided under this Section 11
shall not be construed to limit or exclude any other remedy available
to
the Parties under any other provision of this Agreement. The
preceding sentence shall not apply to any claims that Executive files
under ADEA or OWBPA or any challenge that Executive makes to the
validity
of the ADEA or OWBPA waiver contained in this
Agreement. However, while Executive may challenge the validity
of the ADEA or OWBPA waiver herein, in the event Executive unsuccessfully
does so, Executive may be held liable for the attorneys' fees and
costs of
the Company to the same extent that successful defendants are allowed
attorneys' fees under the ADEA and/or
OWBPA.
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12.
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Equitable
Remedies and Waiver. Each Party recognizes that irreparable injury
will result to the other Party if a Party breaches any provision
of this
Agreement, and the Parties agree that if any Party should engage,
or
directly cause any other person or entity to engage, in any act in
violation of any provision of this Agreement, then the non-breaching
Party
shall be entitled, in addition to any other remedies, damages and
relief
as may be available under applicable law, to seek an injunction
prohibiting the breaching Party from engaging in any such act or
specifically enforcing this
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Ex.
10.1
Page 5
Agreement,
as the case may be. It is understood and agreed that no failure or
delay by the non-breaching Party in exercising any right, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single
or
partial exercise thereof preclude any other or further exercise thereof or
the
exercise of any right, power or privilege under this Agreement.
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13.
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Severability
and Blue Penciling. If any provision of this Agreement is
held to be invalid, the remaining provisions shall remain in full
force
and effect. However, if any court determines that any covenant
in this Agreement or incorporated herein by reference from the Employment
Agreement, including, without limitation, any restrictive covenant
or any
part thereof, is unenforceable because the duration, geographic scope
or
restricted activities thereof are overly broad, then such provision
or
part thereof shall be modified by reducing the overly broad duration,
geographic scope or restricted activities to the maximum extent
enforceable by law and, in such modified form, such provision shall
be
enforced.
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14.
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Choice
of Law and Forum. This Agreement shall be interpreted and
enforced in accordance with the laws of the State of New York, without
reference to its conflicts of laws principles. The Parties
hereby irrevocably consent to the exclusive jurisdiction of the state
or
federal courts sitting in New York, New York in connection with any
controversy or claim arising out of or relating to this Agreement,
Executive’s employment with the Company and/or the termination of such
employment, and hereby waive any claim that such forum is inconvenient
or
otherwise improper. Each Party hereby agrees that any such
court shall have in personam jurisdiction over it and consents to
service of process in any matter authorized by New York
law.
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15.
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Mutual
Waiver of Jury Trial. Each Party hereto hereby waives the
right to trial by jury in any action or proceeding based upon, arising
out
of, or in any way relating to this Agreement, Executive’s employment with
the Company or the termination of such employment, whether sounding
in
contract, tort or otherwise.
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16.
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Successors
and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the Parties and their respective heirs,
successors, representatives and assigns, provided, however, that
this
Agreement is assignable to any legal successor of the Company but
this
Agreement may not be assigned by Executive. Nothing herein
limits the right of Executive’s estate to receive all consideration
provided for in this Agreement should Executive become deceased during
the
Severance Period.
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17.
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Return
of Company Property and Confidential Information. The
Executive acknowledges and agrees that he has delivered to the Company,
without retaining any copies thereof, all evidence of the Confidential
Information, including, without limitation, all notes, memoranda,
records,
files and other documents, whether tangible or intangible, and regardless
of how stored or maintained, whether on computer tapes, discs or
any other
form of technology. The Executive hereby further
acknowledges
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Ex.
10.1
Page 6
and
agrees that he has returned to the Company all other property of the Company
or
its respective Affiliates that was in the possession of the
Executive.
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18.
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Entire
Agreement. With the exception of (i) the terms of the a21
stock incentive plan and the restricted stock agreement between the
Company and Executive and (ii) the terms of the Employment Agreement
that
survive the termination of Executive’s employment with the Company
pursuant to Section 6 above, which terms are hereby reaffirmed by
Executive and incorporated herein in full by this reference, this
Agreement constitutes the entire understanding and agreement between
the
Executive, the Company with regard to all matters contained herein,
and
supersedes all prior agreements and understandings among the Parties
with
respect to its subject matter. This Agreement may not be
changed, modified, superseded or canceled except by a written agreement
that has been signed by the Executive and by a duly authorized officer
of
the Company.
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19.
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Interpretation. The
headings contained in this Agreement are for reference purposes only
and
shall not affect in any way the meaning or interpretation of this
Agreement. The language in all parts of this Agreement shall in
all cases be construed according to its fair meaning, and not strictly
for
or against any Party. In this Agreement, unless the context
otherwise requires, the masculine, feminine and neuter genders and
the
singular and the plural include one
another.
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20.
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Period
for Review and Right to Revoke. Company and Executive
acknowledge and agree that, (i) to accept this Agreement, Executive
must
execute and deliver a copy of this Agreement to the Company (fax
000-000-0000) on or before 5:00 p.m. (Eastern Time) on August 29,
2007 (ii) Executive has had 21 days from the receipt
of this Agreement in which to consider its terms (including,
without limitation, Executive’s release and waiver of any and all claims
under the ADEA) before executing it, (iii) changes to the terms of
this
Agreement, whether material or immaterial, will not restart this
21-day
period, (iv) Executive will have seven (7) days after Executive’s
execution of this Agreement in which to revoke Executive’s acceptance of
this Agreement, in which event a written notice of such revocation
must be
received by the Company, on or before 5:00 p.m. (Eastern Time) on
the
seventh (7th)
day, and
(v) this Agreement will not become effective and enforceable until
the
seven (7) day revocation period has expired without revocation of
the
Agreement by Executive.
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21.
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Voluntary
and Knowing Execution of Agreement. Executive acknowledges
that (i) Executive has been advised by Company to consult an attorney
regarding any potential claims as well as the terms and conditions
of this
Agreement before executing it, (ii) Executive fully understands the
terms
of this Agreement including, without limitation, the significance
and
consequences of the General Release in paragraph 4 above, (iii) Executive
is executing this Agreement in exchange for consideration in addition
to
anything of value to which he/she is already entitled, and (iv) Executive
is fully satisfied with the terms of this Agreement and is executing
this
Agreement voluntarily, knowingly and willingly and without
duress.
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Ex.
10.1
Page 7
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22.
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Execution
in Counterparts. This Agreement may be signed in counterparts, each of
which shall be deemed an original and all of which taken together
will
constitute one and the same
instrument.
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In
WITNESS WHEREOF, the Parties have executed, or caused to be executed by
a duly authorized representative, this Agreement as of the Effective
Date.
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By:
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/s/
Xxxx Xxxxxxxx
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Xxxx
Xxxxxxxx
Title:
Chief Executive Officer
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Date:
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August
8, 2007
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EXECUTIVE
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By:
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/s/
Xxxxxx X. Xxxxxxxxx
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Date:
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Xxxxxx
0, 0000
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Xx.
10.1
Page 8
