SETTLEMENT AND RELEASE AGREEMENT
THIS SETTLEMENT AND RELEASE AGREEMENT ("Release Agreement") is made
this 1st day of May, 2000 by and between Xxxxxxx X. Xxxxxxx ("Lincoln"), ICF
Communication Solutions, Inc., a California corporation ("ICF"), and COMC, Inc.,
an Illinois corporation ("COMC").
WHEREAS a Loan Agreement, dated as of August 10, 1999, was entered into
by and between COMC, Inc., an Illinois corporation, and Xxxxxxx X. Xxxxxxx, an
individual residing in Alamo, California (hereinafter "The Loan Agreement").
WHEREAS an Employment Agreement, dated as of August 10, 1999, was
entered into between ICF Communication Solutions, Inc., a California corporation
("ICF"), COMC, Inc. an Illinois corporation and the sole shareholder of ICF
(together, the "Company"), and Xxxxxxx X. Xxxxxxx, as well as a First Amendment
To Employment Agreement ("Amendment"), deemed effective October 11, 1999,
between COMC, Inc., ICF Communication Solutions, Inc., and Xxxxxxx X. Xxxxxxx,
the term being through August 10, 2001, without regarding to any extensions of
the Employment Agreement.
WHEREAS the Board of Directors of COMC has terminated Lincoln's
employment without "cause," as such term is defined under the Employment
Agreement and used in Section 3(h) of the Agreement and Plan of Merger dated
July 24, 1998.
FOR AND IN CONSIDERATION of payment of the outstanding principal
balance and any interest due of the Subordinated Note, as defined in Article I,
Section 1.01 of The Loan Agreement, of a lump sum payment by the Company in the
amount of $176,538.59, minus applicable payroll withholdings, (the "Severance
Amount") on or before July 29, 2000 of all payments due Lincoln under the
Employment Agreement in
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the event of a termination without cause, Xx. Xxxxxxx'x continued participation,
at the Company's expense, in the Company's portion of health insurance and
disability insurance programs, to the extent permitted under such programs,
until August 10, 2001, a lump sum payment by the Company in the amount of
$8,753.14 of an automobile allowance on or before July 29, 2000, and retention
of the URL Xxxxxxxxxxxxxxxx.xxx, Xxxxxxx X. Xxxxxxx, does hereby, conditioned on
the receipt of the consideration above, generally release and forever discharge
and hold harmless ICF Communication Solutions, Inc., a California corporation
("ICF"), COMC, Inc. an Illinois corporation and the sole shareholder of ICF
(together, the "Company"), and their respective subsidiary and parent
corporation, officers, directors, agents, servants, employees, predecessors,
successors and assigns, and each of them, of all claims, demands, accounts,
actions, causes of action, obligations, proceedings, losses, liabilities, and
sums of money of every kind and character whatsoever, whether now known or
unknown, whether based on contract, tort, statute, or other legal or equitable
theory of recovery, which Lincoln, his successors, or assigns, can, shall or may
have against any of the above-named persons, parties, corporations, or entities,
arising out of or in any way related to his employment with the Company,
including, but not limited to, claims based upon the Loan Agreement and
Employment Agreement defined above, and all claims and demands set forth in the
business relationship between Lincoln and the Company; provided that nothing in
this Release Agreement shall be construed to eliminate or affect the Company's
obligations to defend and indemnify him against claims brought against him as a
result of him being, or having been, an employee, officer or director of the
Company. Lincoln also specifically agrees and acknowledges that he is waiving
any right to recovery based on state or
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federal sex, age, race, color, national origin, marital status, religion,
veteran status, disability, sexual orientation or other anti-discrimination
laws, including, without limitation, Title VII, the Age Discrimination in
Employment Act, the Americans with Disabilities Act and the California Fair
Employment and Housing Act, all as amended, and any state or federal overtime or
wage and hour laws. Lincoln understands and agrees that he has not executed this
Release Agreement without first having had the opportunity to consider it for a
full twenty-one days from receipt of the Release Agreement and that he did not
execute this Release Agreement without first being requested, in writing, to
consult with an attorney.
ICF Communication Solutions, Inc., a California corporation ("ICF"),
COMC, Inc. an Illinois corporation and the sole shareholder of ICF (together,
the "Company"), do hereby generally release and forever discharge and hold
harmless Xxxxxxx X. Xxxxxxx, of all claims, demands, accounts, actions, causes
of action, obligations, proceedings, losses, liabilities, and sums of money of
every kind and character whatsoever, whether based on contract, tort, statute,
or other legal or equitable theory of recovery, which the Company, the Company's
successors, or assigns, currently have or may have against Lincoln, arising out
of or in any way related to his employment with the Company, including, but not
limited to, claims based upon the Loan Agreement and Employment Agreement
defined above; provided, however, the Company does not release Lincoln from any
undiscovered or unknown conduct in the nature of fraud, embezzlement,
misappropriation of trade secrets, unauthorized disclosure of confidential or
proprietary information, or similar acts by Lincoln resulting from his
employment with the Company
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that could result in a claim, cause of action or liability for the Company
against Lincoln ("the "Unreleased Claims")
FOR AND IN CONSIDERATION of the aforesaid payment and grants, and as a
condition of this Release Agreement, Lincoln and the Company (collectively
"Parties") agree, represent and warrant as follows:
1. ICF, COMC and Lincoln each expressly denies any violation of any
federal, state or local statute, ordinance, rule, regulation,
policy, order or other law. The payment herein provided for is
not to be construed as an admission of liability, which is
expressly denied, and that this Release Agreement arises from
compromise.
2. That this is a full and final release by Lincoln applying to all
unknown and unanticipated injuries or damages, including any and
all claims now existing or which may arise in the future, arising
out of the employment of Lincoln, as well as those not known or
disclosed; Lincoln expressly waives any right or claim of right
to assert hereafter that any claim, demand, obligation and/or
cause of action has, through ignorance, oversight or error, been
omitted from the terms of this Release Agreement, and further
expressly waives any right or claim of right that he may have
under the law of any jurisdiction that releases such as those
herein given do not apply to unknown or unstated claims. It is
the express intent of Lincoln to waive any and all claims he has
against the persons and entities herein released, including any
which are presently unknown, unsuspected, unanticipated or
undisclosed. LINCOLN EXPRESSLY WAIVES THE PROVISIONS OF SECTION
1542 OF THE CIVIL CODE OF CALIFORNIA, WHICH PROVIDES:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR;
3. Lincoln and the Company warrant and represent that they have not
heretofore assigned or transferred or purported to assign or
transfer to any person not a party hereto any matter released by
this Release Agreement. Lincoln and the Company will indemnify
and save harmless the parties herein released from any loss,
claim, expense, demand, or cause of action of any kind or
character through the assertion by any stranger hereto of a
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claim or claims connected with the subject matter of this Release
Agreement.
4. Lincoln and the Company agree that the provisions of Section 10
and Section 11 of the Employment Agreement remain in full force
and effect, and is additionally hereby incorporated into this
Release Agreement as if fully set forth within. Lincoln agrees
that he has received payment of the Loan Agreement and Company
acknowledges receipt of the original Promissory Note.
5(a). Lincoln and the Company agree that this is a private agreement
and covenant and agree not to disclose, (whether orally, in
writing, or otherwise) without prior written consent of the other
party, to any person, corporation, agency, group, or other
organization, either directly or indirectly, any information
relating to the existence of and/or contents of this Release
Agreement, including the nature or amount of the consideration
paid except as required by the Parties' financial or legal
advisors to enable them to provide financial or legal advice to
the Parties or as otherwise required by law (collectively
referred to as "the permitted disclosures"). Lincoln and the
Company agree that, except for the permitted disclosures, they
will only state that the agreements which are the subject matter
of this Release Agreement have been disposed of to the
satisfaction of the Parties.
(b) Lincoln and the Company further agree that, without prior written
consent of the other party, they will not publicly or privately
communicate (whether orally, in writing, or otherwise) any
information about any claims which they believe they have, had or
may have against the other parties, or any of them, or the
substance of any such claims, including but not limited to the
facts arising out of Lincoln's employment or related to his
employment at the Company, including to any past, present or
prospective employee of ICF and COMC, or any of them, with any
member of the media or with any representative of governmental
agency, unless compelled by law, except as to the Unreleased
Claims. Lincoln further agrees not to disparage or make
pejorative comments regarding ICF, COMC, or any officers or
directors of ICF and COMC, and the Company further agrees not to
disparage or make pejorative comments about Lincoln. Nothing in
the covenants contained in paragraphs 5(a) and 5 (b) prevents
Lincoln, ICF or COMC from holding a press conference, issuing any
press release or engaging in any other communication to the
public or the media regarding the separation of Lincoln's
employment, on the condition that the Parties fully comply with
their obligations pursuant to paragraphs 5(a) and 5(b).
(c) The Parties acknowledge and agree that the covenants contained in
paragraph 5 are material terms of this Release Agreement and that
a
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violation of the covenants contained in this paragraph 5 shall
constitute a material breach of this Release Agreement. The
Parties further acknowledges and agrees that, without limiting
any other remedy that may be available at law or in equity, such
a breach or threatened breach shall be grounds for the Parties to
seek appropriate restraining orders and injunctive relief to
enjoin violation of paragraph 5 as well as to seek any other
appropriate remedies.
6. Lincoln understands and agrees that he:
(a) Has had a full twenty-one days within which to consider this
Release Agreement before executing it.
(b) Has carefully read and fully understands all of the provisions of
this Release Agreement.
(c) Is, through and subject to the terms of this Release Agreement,
releasing the Company from any and all claims he may have against
the Company.
(d) Knowingly and voluntarily agrees to all of the terms set forth in
this Release Agreement.
(e) Knowingly and voluntarily intends to be legally bound by the
same.
(f) Was advised and hereby is advised in writing to consider the
terms of this Release Agreement and consult with an attorney of
his choice prior to executing this Release Agreement.
(g) Has a full seven days following the execution of this Release
Agreement to revoke this Release Agreement and has been and
hereby is advised in writing that this Release Agreement shall
not become effective or enforceable until the revocation period
has expired.
(h) Understands that rights or claims under the Age Discrimination in
Employment Act of 1967 (29 U.S.C.ss.621 et seq.) that may arise
after the date this Release Agreement is executed are not waived.
7. Lincoln knowingly and voluntarily waives all rights he may have
under federal and/or state law to reinstatement to his employment
with the Company.
8. By executing this Agreement, Lincoln acknowledges and certifies
that he has not filed any claim against the Company under
California Labor Code Section 132a.
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9. Lincoln acknowledges that the Company makes no representation or
warranty to Lincoln concerning the effect of this settlement on
the past, present or future state or federal tax liabilities of
Lincoln. Lincoln agrees that any tax that may be payable by
Lincoln on the consideration received by Lincoln pursuant to this
Release Agreement is the sole responsibility of Lincoln. Lincoln
agrees to indemnify, defend and hold ICF and COMC, and each of
them, harmless from and against any liability or claim, including
penalties, for any tax or other governmental contribution that
may be incurred or demanded as a result of the receipt by Lincoln
of the consideration provided for in this Release Agreement
except to the extent any such liability or claim arises out of
the tax obligations of the Company. If, due to Lincoln's failure
to satisfy his obligations, if any, to pay taxes or make other
governmental contributions as a result of his receipt of the
consideration provided for in this Release Agreement, any
governmental authority demands or requests payments by ICF and
COMC, or any of them, of any such tax or other governmental
contribution, Lincoln shall, at the request of ICF and COMC, make
the payment or post appropriate security for such payment.
10. If any provision of this Release Agreement or application thereof
is held invalid, the invalidity shall not affect other provisions
or applications of the Release Agreement which can be given
effect without the invalid provision or application. To this end,
the provisions of this Release Agreement are severable.
11. This Release Agreement and all covenants and provisions set forth
herein shall be binding upon and shall inure to the benefit of
Lincoln, ICF and COMC, their legal successors, heirs, assigns,
partners, representatives, parent companies, subsidiary
companies, agents, attorneys, officers, employees, directors and
shareholders.
12. Lincoln hereto acknowledges he has read this Release Agreement,
that he fully understands his rights, privileges and duties under
the Release Agreement, and that he enters this Release Agreement
freely and voluntarily. Lincoln further acknowledges he has had
the opportunity to consult with an attorney of his choice to
explain the terms of this Release Agreement and the consequences
of signing it.
13. Except to the extent that the terms of the Employment Agreement
referred to above and the Agreement and Plan of Merger made July
24, 1998 have been specifically terminated by the provisions of
this Release Agreement, this Release Agreement contains the
entire agreement between the parties hereto and supersedes any
and all prior oral and written agreements and understandings with
respect to the subject matter hereof, and no representation,
warranty, condition, understanding or agreement of any kind with
respect to the subject matter hereof shall be relied upon by the
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parties unless incorporated herein. This Release Agreement may
not be amended or modified except by an agreement in writing
signed by the party against whom the enforcement of any
modification or amendment is sought. The terms of this Release
Agreement are contractual and not a mere recital. The Company
additionally acknowledges that the terms of that certain Stock
Option Agreement dated as of August 10, 1999 between COMC and
Lincoln, a copy of which is attached hereto, remains in full
force and effect, and that such agreement, and Lincoln's right to
exercise the options granted therein, are unaffected by this
Release Agreement.
14. The undersigned hereby represents and agrees that he:
(a) Will not at any time, without the prior written consent of ICF
and COMC, either directly or indirectly use, divulge or
communicate to any person, firm or corporation, in any manner
whatsoever, any confidential or proprietary information of any
kind concerning any matters affecting or relating to the business
of ICF and COMC. This includes, but is not limited to: trade
secrets; formulas; know-how; specifications; drawings;
distributor and supplier lists; the names, contact persons,
habits or practices of any of ICF or COMC clients or customers;
the business, financial and marketing strategies, forecasts,
methods, procedures, techniques, practices and standards of ICF
or COMC; drawings, models, financial and planning data, studies,
manuals, memoranda, notebooks, files, documents, correspondence,
salary information, computer reports, compilations of business
and financial information and other confidential business or
financial information concerning the business of ICF or COMC, its
manner of operation, or other confidential data of any kind,
nature or description that is not generally available to the
public. This paragraph shall not be construed to apply to any
information that (i) was acquired by Lincoln subsequent to his
employment with the Company and without the use of any resources
belonging to the Company, or (ii) is, at the time of its use or
disclosure, information that is generally available to the
public.
(b) Does not have in his possession, custody or control any items
belonging to ICF or COMC, including, but not limited to,
computers, laptop computers, monitors, peripheral computer
equipment, cellular telephones, pagers, San Francisco Giants
tickets, keys, credit cards, files, records, compilations,
reports, studies, manuals, memoranda, notebooks, documents,
correspondence, software programs, computer reports, drawings,
models, visual or conceptual presentations of any type, and other
confidential information or records and similar confidential
items relating to the business of ICF or COMC, and any copies or
duplicates thereof. The Company acknowledges that Lincoln has
previously returned a credit card, cellular telephone, pager,
laptop computer, peripheral computer equipment, office keys and
San Francisco Giants tickets to the Company.
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15. Lincoln hereby represents and agrees:
(a) That the ICF and COMC have invested substantial time and effort
in assembling its present staff of personnel. Accordingly,
Lincoln agrees that at no time prior to May 1, 2002 will Lincoln,
directly or indirectly, either on Lincoln's own behalf or in
concert with others, solicit or induce, or attempt to solicit or
induce, any person who has been employed as an employee, agent,
independent contractor or otherwise by ICF or COMC, to leave his
or her employment with ICF or COMC, and/or to perform services of
any kind for any other person, firm or corporation.
(b) At no time prior to May 1, 2002 will Lincoln, directly or
indirectly, either on Lincoln's own behalf or on behalf of any
other person, firm or corporation, divert or take away, or
attempt to divert or take away, or call on or solicit, or attempt
to call on or solicit, any customers or clients of ICF or COMC
that were customers or clients while Lincoln was engaged as an
employee of ICF or COMC. Notwithstanding any other provisions of
this paragraph 15(b), Lincoln may notify any or all of the
customers or clients with which Lincoln dealt while employed at
the Company that he is no longer with the Company and may provide
such customers or clients with his new business address,
telephone and facsimile numbers, and electronic mail address, if
any. Nothing in this subparagraph 15(b) shall be construed (i) to
prohibit Lincoln from calling on, soliciting, or otherwise doing
business with any client or customer of the Company on behalf of
himself or any other entity so long as such business activity
does not compete with the business of the Company; or (ii) to
prohibit Lincoln from sending a generalized mailing or
generalized advertisement which happens to result in a subsequent
contact with a client or customer of the Company, so long as
Lincoln does not use any of the Company's confidential
information in preparing the generalized mailing or generalized
advertisement. Nothing in this paragraph 15(b) shall prohibit
Lincoln from using information that is generally available to the
public. Nothing in this paragraph 15(b) shall prohibit Lincoln
from doing business with any client or customer of the Company
that may approach Lincoln unsolicited and request to do business
with Lincoln. Provided, however, that in no event shall Lincoln
use or reveal any confidential information of the Company except
as expressly permitted by paragraph 14(a).
(c) If the Company fails to make payment of the Severance Amount on
or before July 29, 2000, Company shall have a period of ten (10)
days from the date of receipt of a written notice of non-payment
to pay Lincoln the Severance Amount at the address set forth in
paragraph 23. If after the expiration of ten (10) days the
Company has not paid Lincoln the Severance Amount, Lincoln's
obligations under paragraph 15(a) and 15(b) will terminate.
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16. This Release Agreement and the provisions contained herein shall
not be construed or interpreted for or against any individual or
company because that individual or company drafted or caused a
legal representative to draft any of its provisions.
17. The undersigned acknowledges that he may hereafter discover facts
different from, or in addition to, those he now knows or believes
to be true with respect to the claims, demands, liens,
agreements, contracts, covenants, actions, suits, causes of
action, wages, obligations, debts, expenses, damages, judgments,
orders and liabilities herein released, and agrees the release
herein shall be and remain in effect in all respects as a
complete and general release as to all matters released herein,
notwithstanding any such different or additional facts.
18. Regarding claims for breach of this Release Agreement: This
Release Agreement irrevocably and forever extinguishes all of the
claims listed herein and such claims cannot be revived in any
way, including but not limited to, any attempt to characterize a
listed claim herein as an alleged breach of this Release
Agreement. The remedy for any such alleged breach shall be
limited exclusively to breach of this Release Agreement.
Notwithstanding anything else in paragraph 18, if the Company
fails to make payment of the Severance Amount on or before July
29, 2000, the Company shall then have a period of ten (10) days
from the date of receipt of a written notice of non-payment from
Lincoln to pay Lincoln the Severance Amount. If after the
expiration of ten (10) days the Company has not paid Lincoln the
Severance Amount at the address set forth in paragraph 23,
Lincoln's obligations to release the Company of all of the claims
listed herein shall terminate. Provided, however, that in no
event shall Lincoln use or reveal any confidential information of
the Company except as expressly permitted by paragraph 14(a).
19. This Release Agreement shall be construed in accordance with, and
be deemed governed by, the laws of the State of California
without reference to its principles of conflicts of laws.
20. This Release Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original and such counterparts shall together constitute one and
the same Release Agreement.
21. As used in this Release Agreement, the masculine, feminine, or
neuter gender, and the singular or plural number shall each be
deemed to include the other whenever the contents so indicate.
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22. In the event any dispute arising from this Release Agreement is
pursued to litigation or to arbitration, the prevailing party in
any such dispute shall, in addition to recovering all costs of
suit or arbitration, be entitled to an award of reasonable
attorney's fees. The parties agree that should any subsequent
litigation or arbitration arising from this Release Agreement
allege any violation or disputes of the terms of paragraphs 5(a),
5(b), 5(c), 20, 21 or 23, the prevailing party of such dispute
shall not be entitled to his/its attorney's fees and costs.
The attorney's fees provision applies solely to the paragraphs
not contained in the named exception, and shall not be
interpreted to apply to the excepted paragraphs of this
agreement. Each party to this Release Agreement, Lincoln, ICF and
COMC, was represented by counsel in the negotiation and execution
of this Release Agreement, so that this attorney's fee provision
cannot be construed as applying to the entire contract. Any
action brought by the parties to enforce or interpret any
provision of this Agreement shall be commenced and maintained in
state court in Contra Costa County, California or in the United
States District Court for the Northern District of California.
The parties hereby consent to such jurisdiction and venue and
expressly waive any objection to the same.
23. For the purpose of this Agreement, notices and all other
communications provided for herein shall be in writing and shall
be deemed to have been duly given when delivered, if personally
delivered, or three (3) days after being mailed by United States
registered mail, return receipt requested, postage prepaid,
addressed as follows:
If to Lincoln: 000 Xxxxx Xxxxx
Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
If to the Company: 0000 Xxxx Xxxx, Xxxxx X
Xxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: President
or to such other address as any party may have furnished to
the other in writing in accordance herewith, except that
notices of change of address shall be effective only upon
receipt.
24. The Severance Amount shall be immediately due and payable in the
event that either ICF or COMC enters into an agreement (a) for
the sale of substantially all of the assets of ICF or COMC or (b)
respecting a transaction in which, whether by merger,
consolidation, sale of stock, reorganization, or otherwise, the
holders of the outstanding voting stock of the Company
immediately prior to such transaction will own, immediately after
such transaction, securities representing less than fifty percent
(50%)
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of the voting power of the corporation or other entity surviving
such transaction.
The undersigned, Xxxxxxx X. Xxxxxxx, does hereby declare that the
meaning of this Release Agreement has been explained to him by his attorney, and
that he fully understands and appreciates the meaning thereof and has executed
the same of him own free will and accord.
PLEASE READ CAREFULLY. THIS AGREEMENT SIGNIFICANTLY AFFECTS YOUR
LEGAL RIGHTS.
DATED: ____________________ ______________________________
Xxxxxxx X. Xxxxxxx
DATED: ____________________ ICF Communication Solutions, Inc.
By: ____________________________
Title: _________________________
DATED: ____________________ COMC, Inc.
By: ____________________________
Title: ____________________
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