EXHIBIT 10.1
AGREEMENT
This Agreement (this "Agreement") is made as of April 30, 2007, between
CoActive Marketing Group, Inc., a Delaware corporation ("CoActive") and Xxxxx
Xxxxxxx ("Xxxxxxx").
RECITALS
WHEREAS, Xxxxxxx and CoActive are parties to an Employment Agreement,
dated as of April 1, 2005 (the "Employment Agreement"), pursuant to which
Xxxxxxx is currently employed as CoActive's Chief Financial Officer; and
WHEREAS, Xxxxxxx and CoActive have agreed to the termination of the
Employment Agreement, and the settlement and release of claims by each party on
the terms set forth herein.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Termination of Employment Agreement; Resignation. Effective as
of April 30, 2007 (the "Effective Date"), without any further action of the
parties hereto, the Employment Agreement shall, except as expressly set forth
below, be terminated and of no further force and effect, and Xxxxxxx shall cease
to be an officer or employee of CoActive and its subsidiaries.
2. Severance and Bonus Payments.
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(a) Xxxxxxx shall be entitled to receive six months'
severance payments ("Severance Payments") in the aggregate amount of $153,000.
The Severance Payments shall be paid to Xxxxxxx in periodic installments in
accordance with CoActive's regular payroll practices over the six-month period
beginning May 1, 2007 (the "Severance Period"), provided Xxxxxxx is then in
compliance, in all material respects, with his obligations under this Agreement.
Notwithstanding the foregoing, the Severance Payments shall be reduced on a
dollar-for-dollar basis by the amount Xxxxxxx earns for providing personal
services during the Severance Period, provided that in no event shall the
Severance Payments be reduced by more than $51,000. Xxxxxxx hereby agrees to
mitigate the Severance Payments payable hereunder by using reasonable efforts to
obtain other employment during the Severance Period.
(b) In addition, Xxxxxxx shall be entitled to retain
possession of the laptop computer and router currently used by him in connection
with his employment by CoActive, and shall be paid for an aggregate of nine (9)
accrued and unused vacation and personal days through April 30, 2007, in the
amount of $10,592.30.
(c) CoActive shall also pay Xxxxxxx the $65,000 cash
bonus recently approved for payment to him, provided, however, that such bonus
shall be paid to Xxxxxxx at the same time and only to the same extent as the
bonuses recently approved for payment to other executive and senior managers of
CoActive at a Board of Directors meeting held April 2, 2007 ("Management
Bonuses") are paid to such other employees. Such bonus shall be payable to
Xxxxxxx notwithstanding that he is not an employee of CoActive at the time the
Management Bonuses are paid. Xxxxxxx acknowledges and agrees that the Management
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Bonuses are not expected to be paid until the completion of the audit of
CoActive's financial statements for its fiscal year ended March 31, 2007.
(d) All references herein to amounts to be paid to
Xxxxxxx are to the gross amounts thereof which are due hereunder. CoActive shall
have the right to deduct therefrom all taxes which may be required to be
deducted or withheld by applicable law
3. Release.
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(a) In exchange for the consideration provided for by
Section 2 hereof, Xxxxxxx for himself and for his heirs, executors,
administrators and assigns (hereinafter referred to collectively as
"Releasors"), forever releases and discharges CoActive and any of its now or
hereafter existing subsidiaries, parent companies, divisions, affiliates or
related business entities, successors and assigns and any of their past or
present shareholders, directors, officers, attorneys, agents, trustees,
administrators, employees or assigns (whether acting as agents for CoActive or
in their individual capacities) (hereinafter referred to collectively as
"Releasees"), from any and all claims, demands, causes of action, fees and
liabilities of any kind whatsoever, whether known or unknown, which Releasors
ever had, now have or may have against Releasees by reason of any actual or
alleged act, omission, transaction, practice, conduct, occurrence or other
matter up to and including the date hereof; provided however that the release
hereunder shall not release CoActive from any obligations under that certain
Indemnity Agreement, dated November 8, 2006, between CoActive and Xxxxxxx (the
"Indemnity Agreement").
(b) Without limiting the generality of the foregoing,
this Agreement is intended to and shall release Releasees from any and all
claims, whether known or unknown, which Releasors ever had, now have and may
have (other than under the Indemnity Agreement) against Releasees, including but
not limited to any claims, whether or not asserted, arising out of Xxxxxxx'x
employment with Releasees and/or his termination from such employment, including
but not limited to: (i) any claim under the Civil Rights Act of 1964, as
amended; (ii) any other claim of discrimination or retaliation in employment
(whether based on federal, state or local law, statutory or decisional); (iii)
any claim arising out of the terms and conditions of Xxxxxxx'x employment with
CoActive, his termination from such employment, and/or any of the events
relating directly or indirectly to or surrounding such termination; (iv) any
claim of discrimination or breach of fiduciary duty under the Employee
Retirement Income Security Act of 1974, as amended (except claims for accrued
vested benefits under any employee benefit plan of CoActive in accordance with
the terms of such plan and applicable law); (v) any claim arising under the
Federal Age Discrimination in Employment Act of 1997, as amended ("ADEA"), and
the applicable rules and regulations thereunder; and (vi) any claim for
attorney's fees, costs, disbursements and/or the like.
4. Covenant not to Xxx. Xxxxxxx covenants, except to the extent
prohibited by law, not to commence, maintain, prosecute or participate in any
action, charge, complaint or proceeding of any kind (on his own behalf and/or on
behalf of any other person or entity and/or on behalf of or as a member of any
alleged class of persons) in any court, or before any administrative or
investigative body or agency (whether public, quasi-public or private), except
if otherwise required by law, against Releasees with respect to any act,
omission, transaction or occurrence up to and including the date on which this
Agreement is executed.
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5. Cooperation.
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(a) Xxxxxxx agrees to cooperate with the reasonable
inquiries of CoActive and its counsel in connection with any action, proceeding
or litigation relating to any matter in which Xxxxxxx was involved or of which
Xxxxxxx has knowledge as a result of or in connection with his employment by
CoActive.
(b) In addition Xxxxxxx shall also cooperate with
CoActive and its current and former auditors by responding telephonically to any
reasonable questions they may have in connection with their review and audit, as
applicable, of financial statements required to be filed by CoActive with the
Securities and Exchange Commission with respect to periods during which Xxxxxxx
was employed by CoActive.
6. Non-Disparagement. Xxxxxxx agrees that he will not at any
time, orally or in writing, willfully denigrate, disparage, ridicule or
criticize, or willfully make any derogatory, disparaging or damaging statements
(or induce or encourage others to engage in any such act) regarding CoActive and
any of its subsidiaries, divisions, affiliates or related business entities,
successors and assigns and any of their past or present shareholders, directors,
officers, attorneys, agents, trustees, administrators, employees or any other
representatives of CoActive or any of their respective products or properties,
including by way of news interviews or the expression of personal views,
opinions or judgments to the media. CoActive agrees that it will not at any
time, orally or in writing, willfully denigrate, disparage, ridicule or
criticize, or willfully make any derogatory, disparaging or damaging statements
(or induce or encourage others to engage in any such act) regarding Xxxxxxx,
including by way of news interviews or the expression of personal views,
opinions or judgments to the media.
7. Nondisclosure and Non-Compete. Following the date hereof,
Xxxxxxx shall continue to be bound by the provisions of Article 6 and Sections
8.2 and 8.3 of the Employment Agreement in accordance with the terms thereof.
8. Acknowledgment. Xxxxxxx acknowledges that: (i) he has
carefully read this Agreement in its entirety; (ii) he has been advised by
CoActive to seek the advice of an attorney; (iii) he has had an opportunity to
consider fully the terms of this Agreement; (iv) he has been give 21 days in
which to consider whether to enter into this Agreement, which he has waived; (v)
he fully understands the significance of all the terms and conditions of this
Agreement; (vi) he has had answered to his satisfaction any questions he has
asked with regard to the meaning and significance of any of the provisions of
this Agreement; and (vii) he is signing this Agreement voluntarily and of his
own free will and assents to all the terms and conditions contained herein.
9. Notices. All notices, requests, claims, demands and other
communications hereunder, other than requests of CoActive and responses of
Xxxxxxx under Section 5, shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by courier service, by telecopy or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a party as shall be specified
in a notice given in accordance with this Section 9):
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(a) if to CoActive:
CoActive Marketing Group, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Executive Officer
(b) if to Xxxxxxx:
Xxxxx Xxxxxxx
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
10. Governing Law. This Agreement shall be governed in all
respects by the laws of the State of New York without reference to its choice of
law rules.
11. Successors and Assigns. Except as otherwise provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
12. Entire Agreement; Amendment. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard to
the subjects hereof and thereof. Neither this Agreement nor any term hereof may
be amended, waived, discharged or terminated other than by a written instrument
signed by the party to be charged.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
14. Severability. The holding of any provision of this Agreement
to be invalid or unenforceable by a court of competent jurisdiction shall not
affect any other provision of this Agreement, which shall remain in full force
and effect.
15. Revocation. Xxxxxxx shall have seven days from the date he
signs this Agreement to revoke his release of his rights under the ADEA by
delivering a written revocation to CoActive, which action by Xxxxxxx shall
revoke such release. If Xxxxxxx revokes such release, then all of the provisions
of this Agreement shall be void and unenforceable except for Section 1 hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
COACTIVE MARKETING GROUP, INC.
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer
/s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx
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