Exhibit 10.11
July 16, 1997
Xxxxxxx Xxxxxxx
0000 Xxxxxx Xxxxx Xxxxx Xxxxx
#000
Xxxxxxx, XX 00000
Re: Settlement Agreement and Release of All Claims
Dear Xxxx:
This letter confirms the settlement terms that you and I have negotiated
regarding any and all disputes relating to your employment with Onesoft Corp,
(Onesoft), formerly Global Exchange, Incorporated, which shall be deemed for
purposes of this Settlement Agreement and Release of All Claims to include and
any of its current or former divisions, affiliates, subsidiaries and related
entities, and its and their respective current or former officers, directors,
employees, agents, successors and assigns, including specifically and without
limitation, Xx. Xxxxxxx X. Xxxxxxxxx, (the "Company"). As more fully set forth
below, the Company shall provide you with settlement pay in exchange for certain
agreements by you.
1. Settlement Pay. Commencing on the fifteenth of the month after ONESOFT
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receives a copy of this Agreement executed by you (the "Effective Date"), the
Company will provide you with the following Settlement Pay:
(i) Settlement Pay in the gross amount of $80,000.00 (less state, federal
and other employment related deductions) shall be in sixteen (16)
equal installments of $5,000 (less deductions) pursuant to a monthly
schedule to be determined by the Company, provided, however, that the
Company shall make such installment payments in at least sixteen (16)
of the twenty (20) months that follow payment of the first installment
and shall have paid the full amount of Settlement Pay ($80,000 less
deductions) within twenty (20) months of the date it pays the first
installment. The first and second installments shall be paid to the
law firm of Mason, Ketterman, & Xxxxxx. All subsequent installments
shall be paid directly to you. The first installment shall be paid on
the seventeenth day of July, 1997. In any subsequent month in which
ONESOFT elects to make a payment, it shall pay the installment by the
fifteenth day of the month.
(ii) ONESOFT agrees to make an additional payment of $30,000 to you within
sixty (60) days of any initial public offering or acquisition of
ONESOFT. For the purposes of this Section 1(ii), an acquisition shall
be defined as the acquisition of fifty-one percent or more of the
Company by a third party entity.
You acknowledge and agree that the Settlement Pay provided herein is not
otherwise due or owing to you under any Company employment agreement (oral or
written) or Company policy or practice, nor is this Settlement Pay intended to,
and shall not, constitute a severance plan, and shall confer no benefit on
anyone other than the parties hereto. You further acknowledge that except for
the specific financial consideration set forth in this Agreement, you have
been paid and provided all wages, commissions, bonuses, vacation pay, holiday
pay and any other form of compensation or benefit that may be due to you now or
which would have become due in the future in connection with your employment
with or separation of employment from the Company.
2. Confidentiality: You hereby agree and acknowledge the following:
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(i) that you have returned to the Company all of its documents (and any
copies thereof) and property, and that you otherwise shall abide by any and
all common law and/or statutory obligations relating to the protection and
non- disclosure of the Company's trade secrets and/or confidential and
proprietary documents and information;
(ii) that all information relating in any way to the subject matter of this
Agreement, including the terms, amounts and fact of this Agreement, shall
be held confidential by you and shall not be publicized or disclosed to any
person (other than an immediate family member, legal counsel or financial
advisor, provided that any such individual to whom disclosure is made
agrees to be bound by these confidentiality obligations), business entity
or government agency (except as mandated by state or federal law).
3. No Disparagement. You hereby agree that you will not make any
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statements that are professionally or personally disparaging about, or adverse
to, the interests of the Company including, but not limited to, any statements
that disparage any person, product, service, finances, financial condition,
capability or any other aspect of the business of the Company, or engage in any
conduct which is intended to harm professionally or personally the reputation of
the Company.
ONESOFT hereby agrees that the Officers, Directors, and Employees of the
Company will not make any statements that are professionally or personally
disparaging about, or adverse to your interests, including, but not limited to
any statements that disparage you personally or professionally. Nor shall the
Officers, Directors, or Employees of the Company engage in any conduct which is
intended to harm your reputation, professionally or personally.
4. Release of Claims: You hereby agree and acknowledge that by signing
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this letter and accepting the offer of Settlement Pay provided for in Section 1
and other good and valuable consideration provided for in this letter, you are
waiving your right to assert against the Company any form of legal claim of any
kind whatsoever from the beginning of time through the Effective Date of this
Agreement. Your waiver and release herein is intended to bar any form of legal
claim, charge, complaint or any other form of action (jointly referred to as
"Claims") against the Company seeking any form of relief, including, without
limitation, equitable relief (whether declaratory, injunctive or otherwise), the
recovery of any damages or any other form of monetary recovery whatsoever
(including, without limitation, back pay, front pay, compensatory damages,
emotional distress damages, punitive damages, attorneys fees and any other
costs) against the Company, from the beginning of time through the Effective
Date.
Without limiting the foregoing general waiver and release, you specifically
waive and release the Company from any Claim arising from or related to your
employment relationship with the Company, the offer thereof or the termination
thereof, including, without limitation:
** Claims under any state or federal discrimination, fair employment
practices or other employment related statute, regulation or executive
order (as they may have been amended through the Effective Date)
prohibiting discrimination or harassment based
2
upon any protected status including, without limitation, race,
national origin, age, gender, marital status, disability, veteran
status or sexual orientation. Without limitation, specifically
included in this paragraph are any Claims arising under the federal
Age Discrimination in Employment Act, the Older Workers Benefit
Protection Act, the Civil Rights Acts of 1866 and 1871, Title VII of
the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal
Pay Act, the Americans With Disabilities Act and any similar Virginia
or other state statute.
** Claims under any other state or federal employment related statute,
regulation or executive order (as they may have been amended through
the Effective Date) relating to wages, hours or any other terms and
conditions of employment. Without limitation, specifically included in
this paragraph are any Claims arising under the Fair Labor Standards
Act, the Family and Medical Leave Act of 1993, the National Labor
Relations Act, the Employee Retirement Income Security Act of 1974,
the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) and
any similar Virginia or other state statute.
** Claims under any state or federal common law theory including, without
limitation, wrongful discharge, breach of express or implied contract,
promissory estoppel, unjust enrichment, breach of a covenant of good
faith and fair dealing, violation of public policy, defamation,
interference with contractual relations, intentional or negligent
infliction of emotional distress, invasion of privacy,
misrepresentation, deceit, fraud or negligence.
** Any other Claim arising under local, state or federal law.
You also agree to take promptly all steps necessary to withdraw and
voluntarily dismiss with prejudice and in its entirety any Claim previously
filed against the Company in any court, agency or forum. Without limiting the
foregoing, you also agree to execute and file in court promptly the attached
Notice of Dismissal in the matter of Xxxxxxx Xxxxxxx v. Global Exchange, Inc.
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and Xxxxxxx X. Xxxxxxxxx, XX Xx. 00-0000-X, Xxxxxx Xxxxxx District Court for the
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Eastern District of Virginia. (See Exhibit A). You also agree to mail promptly a
copy of this executed Notice of Dismissal to Xxxx X. Xxxxx, Esq., counsel for
the Company, at the following address:
Xxxx X. Xxxxx, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.
0 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
(000) 000-0000
Notwithstanding the foregoing, this Section shall not release the Company
from any obligation expressly set forth in this Agreement.
5. Breach. The breach by you of any of the covenants in Sections one
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through four of this Agreement shall constitute a material breach of this
Agreement and shall relieve the Company of any further obligations hereunder
and, in addition to any other legal or equitable remedy available to it, shall
entitle the Company to recover any monies already paid to you pursuant to
Section 1 of this Agreement.
6. Jurisdiction. You hereby consent to the jurisdiction of the state and
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federal courts of the Commonwealth of Virginia, and any action by you relating
to this Agreement shall be brought only in the Commonwealth of
3
Virginia before a judge sitting without a jury.
7. Entire Agreement/Choice of Law/Full Agreement. This Agreement
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supersedes any and all prior oral and/or written agreements, and sets forth the
entire agreement between you and the Company, provided, however, that your
obligations set forth in any confidentiality, non-disclosure or non-competition
agreements with the Company shall remain in effect. No variations or
modifications hereof shall be deemed valid unless reduced to writing and signed
by the parties hereto. This Agreement shall take effect as an instrument under
seal and shall be governed by and construed in accordance with the laws of the
Commonwealth of Virginia, excluding its choice of law provisions. The provisions
of this Agreement are severable, and if for any reason any part hereof shall be
found to be unenforceable, the remaining provisions shall be enforced in full.
It is the Company's desire and intent to make certain that you fully
understand the provisions and effects of this letter. To that end, you have been
encouraged and given the opportunity to consult with legal counsel for the
purpose of reviewing the terms of this letter. Also, by executing this letter,
you are acknowledging that you have been afforded sufficient time to understand
the terms and effects of this letter, that your agreements and obligations
hereunder are made voluntarily, knowingly and without duress, and that neither
the Company nor its agents or representatives have made any representations
inconsistent with the provisions of this letter.
If the foregoing correctly sets forth our understanding, please sign, date
and return the enclosed copy of this letter to me.
Very truly yours,
/s/ Xxxxx X. XxxXxxxxx, XX
ONESOFT, INCORPORATED
By: Xxxxx X. XxxXxxxxx XX
CEO & President
Confirmed and Agreed:
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Dated: July 18, 1997
Cc: Xxx X. Xxxxx
Mason, Ketterman, & Xxxxxx
Xxxxx X. Xxxxxxxx
Mintz, Levin, Xxxx, Xxxxxx
