EX-10
EXHIBIT 10(d)(2)
SEVERANCE AND RELEASE AGREEMENT
-------------------------------
THIS SEVERANCE AND RELEASE AGREEMENT (the "Agreement"), entered into as
of January 23, 1999 by and between Inter*Act Systems, Incorporated, a North
Carolina corporation (the "Company"), and Xxxxxx X. Xxxxx, an individual and
resident of New York ("Manna"),
W I T N E S S E T H:
Whereas, Manna and the Company desire to memorialize their understanding
and agreement with respect to various matters relating to the termination of
Manna's employment with the Company;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledge, the parties hereto agree as follows:
1. Resignation Date. Manna understands, acknowledges and agrees to
resign as an employee and an officer of the Company and that his employment with
the Company shall terminate as of January 7, 1999.
2. Severance Benefit. After the Effective Date, the Company will
continue to pay Manna's salary minus applicable withholdings for a period of 12
months from the "Presentation Date" of this Severance and Release Agreement, as
provided for in the offer letter from the Company to Manna dated March 15, 1997
("March 15, 1997 Letter"). In addition the Company will pay Manna $40,000.00 as
an Incentive Pay Opportunity stipulated in the letter of September 1, 1998,
amending the March 15, 1997 Letter). Manna and the Company agree that the terms
of both the letter of September 1, 1998 and the March 15, 1997 Letter are hereby
amended to pay out the $40,000.00 Incentive Pay Opportunity in equal
installments of $5,000.00 per month. Manna acknowledges and agrees that, except
for accrued salary, vacation pay and reimbursement of expenses approved in
accordance with Company policy owing through January 7, 1999, he is entitled to
no other salary, compensation, benefits, bonuses or perquisites from the
Company. As additional consideration the Company will pay for Manna's full
medical and dental premiums for a period of six months from the "Presentation
Date" under federal COBRA regulations. COBRA insurance coverage for the 12 month
period beyond that will be at Manna's expense.
3. Stock Options. Manna's options to purchase shares of Inter*Act's
common stock will vest as set forth in the March 15, 1997 Letter and as provided
for in the 1994 Stock Compensation Plan Agreement and the 1996 NonQualified
Stock Option Plan Agreement between Manna and the Company, both of which were
dated as of March 31, 1997. Manna's vested options will expire if unexercised
within three months following the termination of Manna's employment.
Severance and Release Agreement Page 1 of 4
Subject to Board or Committee approval, Manna's Option Agreements will
be voluntarily amended to extend the exercise period for all vested shares for a
period of one year from Manna's resignation date.
4. Release. As material inducement for the Company to enter into this
Agreement, to pay the severance benefit and accelerate the options described
herein, Manna for himself, his heirs, his executors, administrators, successors
and assigns, fully, finally and forever releases and discharges the Company and
each and every one of its affiliate and parent companies, agents, directors,
employees, officers, successors, assigns and attorneys (hereinafter collectively
referred to as "the Company"), of and from any, every and all manner of actions,
cause and causes of actions, suits, debts, dues, sums of money, damages,
judgments, decrees, claims, costs, expenses, loss of services, back wages, front
pay, liquidated damages, punitive damages, injunctive relief, attorneys' fees
and demands of whatsoever kind and nature prior to and including the Effective
Date of this Agreement, including but not limited to all claims based on
allegations of discrimination, whether based on grounds of race, color,
religion, sex, age, national origin, disability or otherwise, and particularly
on account of any claims arising under the Age Discrimination In Employment Act
("ADEA"), the Employee Retirement Income Security Act, Title VII of the Civil
Rights Act of 1964 claims relating to hiring, assignment, classification,
transfer, promotion, compensation, fringe benefits, layoffs, leaves of absence,
discipline, demotion, termination, forced resignation, referrals for employment
or otherwise, claims relating in any way to the termination of Manna or the
execution of this Agreement, and any other federal, state or common law claims
which Manna now has or claims to have, or which Manna at any time heretofore had
or claimed to have against any of them (collective, "Such Claims"). Manna
further covenants not to xxx or bring any administrative actions relating to any
Such Claims, except that this release and covenant not to xxx shall not release
the Company of the continuing payments and benefits obligations set forth in
this Agreement.
5. Other Benefits. The parties further agree that COBRA rights following
the Effective Date of this Agreement have been or will be tendered to Manna for
the purpose of continuing health coverage of Manna and /or his dependents, and
that if Manna elects to continue applicable health benefits under COBRA, the
Company will continue the benefits as required by law provided that Manna makes
the applicable individual premium payments in a timely manner after the initial
six month period paid by the Company. The parties further agree that the
termination of Manna's employment shall not prejudice any vested benefits which
Manna has in any pension, profit sharing, retirement or other benefit plans
beyond January 7, 1999. Finally, the parties agree that the payments and
benefits set forth herein constitute all the payments and benefits Manna is
entitled to receive in the future from the Company.
6. Confidentiality. The parties agree that the terms of the Agreement
shall remain confidential and shall not be disclosed to persons other than the
following: specific representatives of the Company (Xxxxxxx X. Xxxxxxx, Xxxxxxx
X. Xxxxxxxx, Xxxxx X. Xxxxxxx), members of Manna's immediate family and the
attorneys, accountants and other advisors representing the parties, except that
the terms of this Agreement may be disclosed
Severance and Release Agreement Page 2 of 4
as required by law. Also, Manna agrees that he will continue to hold in
confidence all knowledge or information of a confidential nature with respect to
the business of the Company, and its affiliated companies, received by him
during his employment with the Company..
7. Future Employment. Manna waives any and all claims of employment, now
and in the future, with or by the Company or its affiliate companies, and agrees
that under no circumstances will the Company or its affiliate companies be
required to employ Manna in the future. Further, Manna agrees not to apply for
or otherwise seek employment with the Company or its affiliate companies in the
future.
8. Employment, Noncompetition and Nondisclosure Agreement. Manna agrees
that the Employment, Noncompetition and Nondisclosure Agreement Employee between
him and the Company entered into as of March 31, 1997 shall remain in full force
and effect and bind Manna.
9. Acknowledgments. Manna acknowledges that he has carefully read this
Agreement, that he knows and understands the contents of this Agreement, that he
has had ample opportunity to review the terms of this Agreement, that he is
under no pressure to execute this Agreement, that he has consulted or had the
opportunity to consult with a lawyer regarding this Agreement, and that he
executes this Agreement of his own free act and deed.
10. Entire Agreement. This Agreement contains all the terms and
conditions agreed upon by the parties with respect to the subject matters
hereof, and the parties agree that there are no other terms or conditions of
this Agreement, except as expressly set forth herein. Further, the parties agree
that this Agreement shall not be altered or modified or in any way changed
except in writing signed by the parties.
11. Presentation Date. This Agreement is presented to Manna for
consideration as of the date this Agreement is signed by Manna as set forth
below (the "Presentation Date"). Manna shall be entitled to twenty-one (21) days
from the Presentation Date to consider this Agreement. If Manna has any
questions or concerns about this document he is advised by the Company to
consult with an attorney or anyone else he chooses during this twenty-one (21)
day period prior to executing this Agreement. The execution of this Agreement by
the Company shall constitute a binding written offer of the Agreement but shall
remain valid for written acceptance by Manna only for a period of twenty-one
(21) days from the Presentation Date.
12. Effective Date. If Manna executes the Agreement within twenty-one
(21) days from the Presentation Date, the parties agree that Manna shall have
seven (7) days from this execution date to revoke the Agreement, and that if not
revoked, the Agreement shall become effective and enforceable on the day after
the seven (7) day revocation period has expired (the "Effective Date").
[remainder of page is intentionally left blank]
Severance and Release Agreement Page 3 of 4
IN WITNESS WHEREOF, the undersigned, with authority duly given, hereto set their
hands and seals as of the dates set forth below.
Executed by the Company, this 2nd day of March, 1999.
INTER*ACT SYSTEMS, INCORPORATED
By: Xxxxxxx X. Xxxxxxx
----------------------
Chairman & CEO
ATTEST:
-----------------------
Secretary
THIS DOCUMENT WAS PRESENTED TO XXXXXX X. XXXXX FOR
CONSIDERATION ON JANUARY 23, 1999.
/s/Xxxxxx X. Xxxxx
------------------------
Xxxxxx X. Xxxxx
WITNESS:
-------------------------------
Name:
Executed by Xxxxxx X. Xxxxx this ___ day of ________, 1999.
/s/Xxxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxx
WITNESS:
-------------------------------
Name:
Signed before me this 12th day of February 1999
/s/Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx
Notary Public
Severance and Release Agreement Page 4 of 4
