SEPARATION, SEVERANCE
AND GENERAL RELEASE AGREEMENT
THIS AGREEMENT is entered into by and between XXXX XXXXXX, the undersigned
employee ("Employee") and XXXXXX TECHNOLOGIES, INC. ("Employer" or the
"Company"), as of the 27th day of August, 1999. (The Employee and Employer are
sometimes collectively referred to herein as the "parties.")
The parties hereby knowingly and voluntarily agree to enter into this
Separation, Severance and General Release Agreement (the "Agreement") in order
to resolve any and all outstanding issues and to set forth all obligations
between the parties. Employee and Employer acknowledge and agree that this
Agreement constitutes the sole obligations of each to the other, supersedes all
previous agreements and/or promises and that no other promises, commitments or
representations have been made with or by either of the parties to the other.
Employee's employment with Employer, and Employee's membership on
Employer's Board of Directors will cease as of 5:00 p.m. on August 27, 1999 (the
"Termination Date"). In consideration for executing this Agreement, Employee
will receive the following :
(a) continued payment of his current salary, in the gross annual amount of
$170,000, minus applicable payroll deductions, for a period of one year
following the Termination Date. Said payments shall be made by Employer to
Employee in equal bi-weekly increments, on the dates on which the
Employer's company payroll is regularly paid.
(b) Continued receipt of the following benefits on the same terms by which
Employee currently receives those benefits from Employer : medical
insurance and dental insurance for a period of one year following the
Termination Date. In the event that the terms or availability of any of the
foregoing benefits are changed, modified or terminated generally for all
company employees or for a majority of said employees, then the terms of
those benefits may be changed, modified or terminated accordingly by
Employer, at its sole option, with respect to the benefits conferred upon
Employee hereunder. Furthermore, in the event that Employee obtains any of
the foregoing benefits from a third party (such as a new employer), then
Employer, at its sole option, may immediately cease to provide those
benefits to Employee;
Furthermore, Employee shall be entitled to indemnification by Employer in
connection with any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he was an officer
and/or employee of Employer,
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Xxxxxx Separation, Severance and General Release Agreement
pursuant to the provisions of Article V of Employer's By-laws, as amended, a
copy of which Article is annexed hereto and made a part hereof.
Employee acknowledges that he has been advised that his medical insurance
coverage will end no later than August 27, 2000 and that he can elect to
continue coverage under Employer's Medical Insurance Plan thereafter at his own
cost in accordance with applicable law.
Employer acknowledges that Employee was granted options in fiscal 1996 to
purchase 56,000 shares of Employer's common stock at an exercise price of $1.79
per share, all of which such options are currently vested. Said options will
survive the termination of Employee's employment with Employer and may be
exercised until they expire on December 31, 2000.
Employee acknowledges that he is receiving a substantially increased
benefit as consideration for executing this Agreement. Employee acknowledges
that he is not entitled to any other benefits or monies.
Employee and Employer agree not to disparage or impugn each other or their
respective partners, officers, directors or employees, in any way. Employer
shall publicly disclose the termination of Employee's employment by the issuance
of a press release in the form annexed hereto. Unless required by law, rule or
regulation, Employer shall not make any further public disclosure or issue any
additional press releases which specifically mention Employee by name.
Notwithstanding anything herein to the contrary, however, Employer may, at its
sole discretion, make any public disclosures it deems appropriate provided that
Employee is not specifically mentioned therein by name.
Employee agrees that for a period of twenty-four (24) months following the
termination of his employment with Employer, he will not, directly or
indirectly, engage or become interested as an owner, partner, lender, director,
officer, employee, consultant or in a similar capacity in any way (whether as an
owner, partner, lender, investor, director, officer, employee, consultant or
otherwise,) in any activity, business or enterprise, located within the
geographical area of the United States, that sells any product which competes
with any Company products is competitive with any significant part of the
Company's business, without the prior written consent of the President of the
Company.
By signing this Agreement, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Employee hereby
releases and discharges Employer, its employees, directors, officers,
shareholders and agents from, and waives for himself and for his heirs,
executors, administrators, successors, and assigns, any claim, suit, debt,
contract, agreement, damages, charge, arbitration, grievance, complaint, or
action (whether asserted or unasserted, known or unknown) which he now has or
hereafter can, shall or may have against Employer, its parent corporation,
affiliates, subsidiaries, all of its past and former subsidiaries and
affiliates,
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Xxxxxx Separation, Severance and General Release Agreement
present and former stockholders, partners, officers, directors, employees,
agents, representatives, attorneys, successors and assigns, for, upon or by
reason of any matter, cause or thing whatsoever from the beginning of the world
to the date of this Agreement, arising out of Employee's employment and/or
professional engagement with Employer and/or his separation from employment
and/or relating to the issuance to Employee of stock, options, warrants, equity
or any other benefits, compensation, gifts or incentives by Employer or by any
of Employer's officers, directors, employees or agents, including but not
limited to any claim under federal, state, local or common law for breach of
contract, for wrongful or abusive discharge or for discrimination based on race,
color, ethnicity, sex age, national origin, sexual orientation, religion or
disability, under Title VII of the Civil Rights Act of 1964 as amended; the
Civil Rights Act of 1991; the Age Discrimination in Employment Act; the
Americans with Disabilities Act; Employee Retirement Income Security Act; Family
and Medical Leave Act and similar state and local laws, or any other unlawful
criteria or circumstances.
By signing this Agreement, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Employer hereby
releases and discharges Employee from, and waives for itself and its successors
and assigns, any claim, suit, debt, contract, agreement, damages, charge,
arbitration, grievance, complaint, or action (whether asserted or unasserted,
known or unknown) which it now has or hereafter can, shall or may have against
Employee for, upon or by reason of any matter, cause or thing whatsoever from
the beginning of the world to the date of this Agreement, arising out of
Employee's employment and/or professional engagement with Employer and/or his
separation from employment, and/or relating to the issuance to Employee of
stock, options, warrants, equity or any other benefits, compensation, gifts or
incentives by Employer or by any of Employer's officers, directors, employees or
agents.
Employee agrees that he has been advised to consult with an attorney prior
to signing this Agreement, that he has read and understands this Agreement, and
that he is fully competent to enter into this Agreement and has signed this
Agreement knowingly and voluntarily. Employee has had the opportunity to ask
questions and fully understands this Agreement. Employee acknowledges : (i) that
the Company has expressly informed him that he has at least twenty-one (21) days
in which to decide whether to sign this Agreement, but that he has decided, of
his own free will and volition, to sign this Agreement before the expiration of
said 21-day period and, (ii) that he has the opportunity to revoke such
Agreement within seven (7) days of signing it.
Employee represents that he does not have and has returned all business
records of Employer, its parent and its affiliates, in any form and all copies
thereof.
This Agreement and the payment of any consideration hereunder shall not be
construed as an admission of any kind whatsoever on the part of the Employer or
the Employee.
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Xxxxxx Separation, Severance and General Release Agreement
Nothing contained herein shall constitute, or be deemed to constitute, a
waiver of either party's right to enforce the terms of this Agreement.
This Agreement can be amended only by a writing signed by both parties.
This Agreement shall be construed under New York law.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A
WAIVER AND RELEASE OF ALL CLAIMS.
XXXX XXXXXX XXXXXX TECHNOLOGIES, INC.
_________________________ By: ____________________
Xxxx Xxxxxx Xxxxx Xxxxxx
President & CEO
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Xxxxxx Separation, Severance and General Release Agreement
