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EXHIBIT 10.42
SEPARATION AND RELEASE AGREEMENT
Separation and Release Agreement dated as of January 17, 2000, between
XxxxxxxXxxxxx.xxx, Inc., a Delaware corporation (the "Company"), and Xxxxxxx
Xxxxxx, an individual ("Xxxxxx").
The Company and Xxxxxx desire to provide for the terms on which Xxxxxx'x
employment by the Company will terminate.
The parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. Termination. Xxxxxx'x employment by the Company is terminated,
effective as of the date hereof. As a result of that termination, Xxxxxx will
hold no office or position, and will not be employed by, the Company. Xxxxxx
agrees and acknowledges that she will no longer serve in the positions of
President and Chief Executive Officer of the Company and that she has resigned
from the Board of Directors of the Company effective as of the date hereof.
SECTION 2. SEVERANCE PAYMENTS; OPTIONS.
2.1 Severance. Xxxxxx will receive from the Company the severance payments
and benefits to which she is entitled pursuant to Section 4(c) of the Employment
and Noncompetition Agreement between the Company and her dated as of June 14,
1999 (the "Employment Agreement "); provided, that such severance payments shall
not be made quarterly but shall be made by the Company to Xxxxxx on the
following dates in the amounts set forth opposite such dates, in full
satisfaction of all amounts payable by the Company to Xxxxxx under the
Employment Agreement:
DATE AMOUNT
February 17, 2000 $8,333.33
March 17, 2000 $8,333.33
April 17, 2000 $208,333.33
July 17, 2000 $24,999.99
September 14, 2000 $50,000.00
October 17, 2000 $24,999.99
December 14, 2000 $50,000.00
January 17, 2001 $24,999.99
March 14, 2001 $50,000.00
April 17, 2001 $24,999.99
June 14, 2001 $65,307.90
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Xxxxxx acknowledges and agrees that this Agreement shall be the exclusive basis
on which she is entitled to receive any compensation or benefits of any kind
from the Company. All payments made by the Company to Xxxxxx hereunder shall be
subject to all applicable federal and state withholding taxes.
2.2 Stock Options. Xxxxxx currently holds fully vested options to acquire
130,815 shares of the Company's Class A Common Stock at $3.82 per share granted
under the Company's Stock Option Plan for Employees effective as of June 14,
1999 (the "Plan") and the Nonqualified Stock Option Agreement between the
Company and Xxxxxx made as of July 1, 1999, effective as of June 14, 1999 (the
"Option Agreement") and no other vested options or equity securities of the
Company. In consideration for her entry into this agreement and the releases
given by her hereunder, the Company hereby agrees to accelerate to today the
vesting of options to purchase an additional 50,000 shares of the Company's
Class A Common Stock at $3.82 per share granted to her under the Plan and the
Option Agreement. Xxxxxx acknowledges that all other options and rights to
purchase securities of the Company under the Employment Agreement, any option
agreement with the Company or any other arrangement with the Company remain
unvested and lapse as of the date hereof and that she will have no further claim
with respect thereto.
SECTION 3. OFFICE/EQUIPMENT.
3.1 Use of Office. The Company shall provide Xxxxxx with office space for
up to six months from the date hereof (or, if earlier, until she obtains new
employment), which shall not be in the Company's premises; provided that the
Company shall not be required to pay more than $2,500 per month for such office
space.
3.2 Equipment. The Company hereby transfers to Xxxxxx, on an "as is" basis
without representation or warranty the Company's personal laptop computer
currently in her possession; provided that, prior to such transfer Xxxxxx shall
provide the Company with access to such laptop computer to enable the Company to
delete any and all information, data and files stored on such laptop computer as
the Company shall in its sole discretion elect to delete.
SECTION 4. INDEMNIFICATION.
To the extent permitted by law, the Company shall indemnify Xxxxxx with
respect to matters arising from her service as a director or officer or employee
of the Company as provided by the Company's Articles of Incorporation and
By-Laws as currently in effect.
SECTION 5. MUTUAL RELEASES.
(a) In consideration of the acceleration of additional stock options, the
other benefits conferred by this agreement and for other valuable consideration,
the receipt and adequacy of which are hereby acknowledged, Xxxxxx hereby
releases and forever discharges the Company and its subsidiaries, and their
respective past, present and future affiliates, stockholders, officers,
directors, employees, agents, and controlling persons, and the respective heirs,
administrators, successors and
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assigns of each of the foregoing (each, a "Releasee"), of and from any and all
manner of action or actions, cause or causes of action, in law or in equity,
suits, debts, contracts, agreements, promises, liability, claims, demands,
damages, loss, cost or expense, of any nature whatsoever, known or unknown to
her, fixed or contingent, xxxxxx or inchoate, which Xxxxxx ever had, now has or
may have at any time arising out of or relating to Xxxxxx'x employment with, or
status as a director or officer of, the Company or the termination of such
employment or status (or any promise or agreement made or entered into, or any
action taken or omitted, in connection with such employment, status or
termination), including, but not limited to, those arising under the federal
Civil Rights Acts of 1866, 1871, 1964 and 1971, as amended, the Age
Discrimination in Employment Act of 1967, as amended by, inter alia, the Older
Workers Benefit Protection Act of 1990, the Americans with Disabilities Act of
1990, the Employee Retirement Income Security Act of 1974 or any other federal,
state or local statute or principle of common law. Xxxxxx shall refrain from
asserting any matter released hereby against any Releasee in any manner,
including, but not limited to, by way of counterclaim, offset or defense and
shall actively resist any effort to assert on its behalf any such matter. Xxxxxx
shall indemnify and hold harmless each Releasee from and against all losses,
liabilities, claims, damages and expenses (including costs of investigation and
defense and reasonable attorneys' fees), arising directly or indirectly from or
in connection with the assertion by or on behalf of Xxxxxx of any claim or other
matter released pursuant to this paragraph.
Notwithstanding anything contained herein to the contrary, there is and
shall be excepted from the within and foregoing release and discharge any and
all of the following: any and all of the obligations of the Company under this
Agreement; and any and all rights which Xxxxxx may have as an owner of Common
Stock and/or Options.
(b) For valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Company hereby releases and forever discharges Xxxxxx
and her heirs, administrators, executors, agents, representatives, successors
and assigns (each, a "Xxxxxx Releasee"), of and from any and all manner of
action or actions, cause or causes of action, in law or in equity, suits, debts,
contracts, agreements, promises, liability, claims, demands, damages, loss, cost
or expense, of any nature whatsoever, known or unknown to the Company, fixed or
contingent, xxxxxx or inchoate, which the Company ever had, now has or may have
at any time arising out of or relating to Xxxxxx'x employment or status as a
director or officer or the termination of such employment or status (or any
promise or agreement made or entered into, or any action taken or omitted, in
connection with such employment, status or termination). The Company shall
refrain from asserting any matter released hereby against any Xxxxxx Releasee in
any manner, including, but not limited to, by way of counterclaim, offset or
defense and shall actively resist any effort to assert on its behalf any such
matter. The Company shall indemnify and hold harmless each Xxxxxx Releasee from
and against all losses, liabilities, claims, damages and expenses (including
costs of investigation and defense and reasonable attorneys' fees), arising
directly or indirectly from or in connection with the assertion by or on behalf
of the Company of any claim or other matter released pursuant to this paragraph.
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Notwithstanding anything contained herein to the contrary, there is and
shall be excepted from the within and foregoing release and discharge any and
all of the following: any and all of the obligations of Xxxxxx under this
Agreement.
SECTION 6. NO DISPARAGEMENT. The Company shall not , directly or
indirectly, disparage or impugn the reputation of Xxxxxx. Xxxxxx shall not,
directly or indirectly, disparage or impugn the reputation of the Company, or
any of its shareholders, directors, officers, employees or agents. Xxxxxx hereby
confirms that she does not intend to and shall not, directly or indirectly, make
or deliver to the Company any statement for inclusion (or that the Company might
be required to include or refer to) in the Company's proxy statement or any
filing by the Company with the Securities and Exchange Commission.
SECTION 7. MISCELLANEOUS.
7.1 Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of New York, without regard to any conflicts
of laws principles thereof that would call for the application of the laws of
any other jurisdiction. Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement may be
brought against either of the parties hereto in the courts of the State of New
York, or if it has or can acquire jurisdiction, in the United States District
Court for the Southern District of New York, and each of the parties hereto
hereby consents to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection to
venue laid therein. Process in any action or proceeding referred to in the
preceding sentence may be served on any party anywhere in the world, whether
within or without the State of New York.
7.2 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which, when
taken together, shall constitute one and the same agreements.
7.3 Notices. All notices, demands, requests or other communications which
may be or are required to be given, served or sent by any party to any other
party pursuant to this Agreement shall be in writing and shall be mailed by
first class, registered or certified mail, return receipt requested, postage
prepaid, or transmitted by hand delivery (including delivery by courier), or
facsimile transmission, addressed as follows (or to such other addresses as a
party may specify as to itself by notice to the other):
If to the Company:
XxxxxxxXxxxxx.xxx, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attention: President and Chief Executive Officer
Facsimile:
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with copies to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Xxxxxx Xxxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Executive:
Xxxxxxx Xxxxxx
00 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxx, Esq.
Xxxxxx & Associates, P.C.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
7.4 Binding Nature of Agreement; Successors and Assigns. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and permitted assigns as
provided herein.
7.5 Entire Agreement. This Agreement contains the entire agreement and
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof. The express terms hereof
control and supersede any course of performance and/or usage of trade
inconsistent with any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing.
7.6 Indulgences, Not Waivers. Neither the failure nor any delay on the part
of a party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power of privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and signed by the party asserted to have granted such waiver.
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7.7 Confidentiality. Xxxxxx shall keep the terms of this Agreement
confidential and she will not hereafter disclose any information concerning the
Company and/or this Agreement to anyone except her attorneys, accountants, tax
and financial advisors; except that she may repeat the statements made in the
press release issued by the Company with respect thereto on January 18, 2000
(which statements she authorized). The Company shall keep the terms of this
Agreement confidential and not hereafter disclose any information concerning
this Agreement to anyone except its attorneys, accountants, and tax and
financial advisors; except that the Company may make any disclosure regarding
the terms of this Agreement (including regarding the amounts payable to Xxxxxx
and the options accelerated hereunder) that it is advised by counsel is required
to be made under the Securities Exchange Act of 1934 (and the rules promulgated
thereunder) and any other applicable securities laws, and shall file this
Agreement as an exhibit to a report filed by the Company with the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended.
7.8 Independent Judgment; Revocation. The Company and Xxxxxx have each been
represented and advised by counsel in connection with the negotiation, execution
and delivery of this Agreement, have exercised independent judgment in
connection therewith, and have not relied on any statement, promise,
representation or warranty not expressly set forth in this Agreement. Xxxxxx may
revoke this agreement by written notice given to the Company within seven
calendar days after the date on which this Agreement is executed by Xxxxxx; if
so revoked, this agreement shall be of no effect. Xxxxxx hereby waives the
benefit of any longer revocation or review period to which she may be entitled
under any applicable law.
XXXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title:
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx Xxxxxx
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