VIZACOM INC.
Glenpointe Center East
000 Xxxxx X. Xxxx Xxxxxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Tel: (000) 000-0000
Facsimile: (000) 000-0000
June 16, 2000
RELEASE AND SEPARATION AGREEMENT
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Dear Xx. Xxxxxxxx:
This letter sets forth our proposed agreement regarding your separation from
employment with Vizacom Inc. (the "Company"), which would, among other things,
provides you with additional monetary benefits in return for your release of,
and promise not to xxx on, any claims you may have against the Company arising
out of that employment, including any claims you might have under the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. 621 et seq. You should
consider the terms of this agreement carefully, including obtaining review by
your own attorney. You will have at least until July 7, 2000 to decide whether
to accept this agreement. To indicate your acceptance of our proposal, you need
only sign and date this document, have it witnessed, and return it to me.
1. Separation. By mutual agreement, your employment with the Company will
end effective June 16, 2000 (the "Separation Date"). Effective such date,
you will be deemed to have resigned as an Executive Vice President of the
Company and of any subsidiary of the Company. Under the Company's
established policies, you are not entitled to receive any severance benefit
but you will be reimbursed for all legitimate business expenses incurred by
you prior to the Separation Date upon presentation of appropriate
documentation therefor. However, by this letter the Company is offering you
a special separation allowance.
2. Special Separation Allowance. In return for you entering into the
agreement set forth in this letter, you will be provided with a special
allowance ("Special Allowance"). The Special Allowance will provide you
with a payment equal to your base salary ($225,000 per annum), payable in
accordance with the Company's normal payroll practice, for the period (the
"Separation Period") equal to the shorter of: (a) six months following your
Separation Date; or (b) until a bona fide offer to you of a comparable
position (i.e. Vice President or higher) in either the New
York Metropolitan area or California or a position (whether as a
consultant or employee) at a comparable salary; or (c) until your
acceptance, or the commencement, of your performance of any duties with
respect to any employment or consulting position with any third party. In
addition, during the Separation Period, the Company will (i) except as
provided below, pay you a monthly stipend of $1,250.00 to be used to pay
the rent on your New York City apartment; and (ii) continue health care
coverage for you under the Company's plans, subject to applicable
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employee contributions. Further, in the event that after the Separation
Period, you do not have a new job or your new job is not in the New
York City Metropolitan area, then the Company agrees to pay the base
rent of your current apartment located at 000 Xxxx 00xx Xxxxxx, Xxx. 00X,
Xxx Xxxx, XX, 00000, until March 23, 2001, the end of the initial lease,
which rent is $4,650 per month. You hereby agree to use your best efforts
to mitigate the above obligation (i.e. sublet or be released from the
apartment) and provide to the Company full use of the apartment in the
event that you vacate it. Notwithstanding the foregoing, in the event that
you decide to return permanently to California prior to the end of the
Separation Period, then the Company hereby agrees to (x) pay your base rent
on your apartment from the date of your leaving; provided that you have
given the landlord two weeks notice with respect to vacating the
apartment; and provided further, that such obligation shall not commence
until the first day of the next rental period after the date hereof, and
once this obligation begins, the monthly stipend referred to above shall
not be paid by the Company to you; (y) provide you with a coach class
airline ticket back to California; and (z) pay to ship your automobile
back to California, upon receipt of appropriate documentation showing
the costs for the foregoing.
In consideration for the foregoing Special Allowance, you hereby agree to
the following terms: (a) any stock options either granted or promised to
you by the Company are terminated immediately and are no longer
exercisable; (b) no past or future bonus payments will be paid by the
Company to you; (c) no additional relocation allowance will be paid by the
Company to you; (d) you will promptly return to the Company any assets of
the Company in your possession; (e) you will use your best efforts to
obtain a new position as soon as possible with as high a title and as high
a compensation as possible; and (f) until you find a new position, you will
make yourself available as a consultant to the Company for up to one day
per week for no additional compensation. In addition, in consideration of
the payment of the Special Allowance, you hereby agree not to solicit, any
customer or client of the Company, its subsidiaries or its affiliates, and
you agree not to solicit for employment, or hire, any employees of the
Company or any of its subsidiaries or affiliates, for a period of one year
after the Separation Date. Further, you shall supply the Company within
five (5) business days of the date hereof, with a list of all companies or
businesses you contacted on behalf of the Company as potential acquisition
or partnering candidates, and you agree not to attempt to acquire on behalf
of yourself or any entity any such companies or businesses.
3. Acceptance of Special Allowance. As indicated by your signature below,
you have decided to accept the Company's offer of the Special Allowance
described above. By your signature below, you acknowledge that you are
agreeing to the terms set forth in this letter in return for the Company's
promise to provide you with money and/or benefits provided herein.
4. General Release. The Special Allowance is being given to you and hereby
is accepted by you in full and final release and settlement of any and all
claims, charges, actions, liens, demands, liabilities, causes of action,
complaints, suits (judicial, administrative or otherwise); damages, debts,
demands and obligations of any nature, whether past or present, known or
unknown, whether in law or equity, which you had or may now or
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hereafter have against the Company, its subsidiaries and affiliates, its
officers, directors, and stockholders, or anyone employed by any of them,
or acting on their behalf; and their successors and assigns (the "Released
Parties") from the beginning of the world to the date hereof, including
but not limited to any discrimination claim based on age, sex, race,
religion, color, national origin, disability, marital status, appearance or
sexual orientation under federal, state or local law, rule or regulation,
and/or any claim for wrongful termination, defamation, and any other
claim, whether in tort, contract or otherwise.
You will be receiving a separate letter which explains your rights under
the Consolidated Omnibus Budget Reconciliation Act (COBRA) as regards to
your health insurance coverage.
5. ADEA Release. The Special Allowance being given to you is also accepted
by you in full and final release and settlement of any and all claims that
you may have under the ADEA connected with your employment with the Company
(or your separation therefrom) arising on or before the date of your
acceptance of this agreement that is indicated below.
6. Waiver of California Civil Code Section 1542. You acknowledge that you
have been advised of California Civil Code Section 1542, which reads as
follows:
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.
You agree that you are waiving the provisions of Civil Code Section 1542
and this waiver is an essential part of this agreement.
7. Promise Not To Xxx On Claims Released. The Special Allowance is being
given to you in return for your promise not to initiate any court or
judicial-type proceeding against the Company or any affiliate that involves
any claim that you have released in paragraphs 4 and 5 of this agreement.
If a court or arbitrator determines that you have violated this release by
suing the Company or any of its affiliates, officers, directors, or
employees, you hereby agree that you will pay all costs and expense of
defending against the suit incurred by the Company. Nothing in this
paragraph shall be construed to prevent you from participating in an
investigation or proceeding conducted by the Equal Employment Opportunity
Commission. However, you waive your right to any monetary recovery should
any claims on your behalf arising out of or related to your employment with
and/or separation from employment with the Company.
8. Consultation With an Attorney. By your signature below, you acknowledge
that you have been advised to consult your own attorney prior to entering
into this agreement and that you were afforded sufficient time to undertake
such consultation.
9. Future Employment. You will not, now or at any time in the future seek
employment with the Released Parties or any one of them.
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10. References. The Company agrees that, in response to any request submitted
to it for references regarding your employment with the Company, such
references shall be provided in accordance with Section 12 hereof.
11. Unemployment. The Company will not contest your eligibility for
unemployment insurance benefits at the end of the Separation Period if you
have not found other employment.
12. Non-Disparagement. Neither party to this Agreement shall make
disparagements about or in any other way attempt to disparage or impair the
reputation or good name of the other party, the Company's divisions,
affiliates, subsidiaries, parents, publications or any of their officers,
directors or employees.
13. Confidential Information. You hereby covenant and agree that during the
course of your employment with the Company, you came into contact with, and
had access to, certain trade secrets or confidential or proprietary
information that is the property of the Company. Such information includes,
but is not limited to, proprietary technologies, software programs and
tools, financial information, systems files, algorithms, file structures,
customer lists, supplier lists, internal program structures, marketing
plans, specific strategic undertakings, decisions and plans for future
business and other development, all of which information you acknowledge
and agree is highly confidential and not generally known or available to
the public. You agree that you have not and will not utilize or disclose
any of the above described confidential information to any person(s) or
entities for any reason or purpose whatsoever. You agree that any breach of
this Section 13 will cause the Company substantial and irreparable damages
that would not be quantifiable and therefore, in the event of any such
breach, in addition to other remedies that may be available; the Company
shall have the right to seek specific performance and other injunctive and
equitable relief.
14. Nondisclosure Obligation. You acknowledge and agree that the terms of
this Release and Separation Agreement are to remain confidential and that
you will not discuss with any person(s) including past, present and future
employees of the Company, the terms or conditions of this Release and
Separation Agreement except as may be required by law, rule or regulation
adopted pursuant to law, court or administrative order or decree, in or in
connection with testimony given or documents subpoenaed in a judicial or
administrative proceeding. Should you be called in to testify and divulge
the terms of this release, you agree to assist the Company in seeking a
confidentiality order in the form sought by the Company.
15. Non-Admission of Liability or Wrongdoing. This agreement shall not be
construed in any way as an admission by the Company or you that either has
acted wrongfully with respect to each other or any other person or that
either has any rights whatsoever against the other.
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16. Period of Consideration. By your signature below, you acknowledge that
the Company complied with the ADEA by giving you a period of at least
twenty-one (21) days from the date that this agreement was first provided
to you to consider and to decide whether to accept it. You further
acknowledge that no representative of the Company ever stated or implied
that you had less than twenty-one (21) days to consider this agreement. You
also acknowledge that, to the extent you decide to sign this agreement
prior to the expiration of the full twenty-one (21) day period, such
decision was knowing and voluntary on your part and was in no way coerced
by the Company. To the extent any changes were made in this agreement as a
result of negotiations taking place after the date this agreement was
provided to you, you and the Company agree that such changes, whether
material or not, did not restart the running of the period of twenty-one
(21) days to consider this agreement required by the ADEA.
17. Entire Agreement. This agreement sets forth the entire agreement
between you and the Company relating to your employment with the Company or
your separation therefrom. By your signature below, you acknowledge that in
entering into this agreement you have not relied upon representation, oral
or written, not set forth in this agreement.
18. Right to Revoke Agreement. This agreement will not become effective or
enforceable for a period of seven (7) days from the date of your acceptance
of the agreement indicated below. During this seven day period, you have
the right to change your decision to accept the Special Allowance that has
been offered to you and to revoke this agreement. During this seven day
period, you will not receive any monies or benefits which you would be
entitled to solely as a result of this agreement.
19. Governing Law; Arbitration. You acknowledge that you were employed in
the State of New Jersey and that this agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey,
regardless of applicable conflicts of law principles. Any dispute between
the parties, including but not limited to those pertaining to the
information, validity, interpretation, effect or alleged breach of this
agreement ("Arbitration Dispute") will be submitted to arbitration in
northern New Jersey before an experienced employment arbitrator and
selected in accordance with the rules of the American Arbitration
Association labor tribunal. Each party shall pay the fees of their
respective attorneys, the expenses of their witnesses and any other
expenses connected with presenting their claim. Other costs of the
arbitration, including fees of the arbitrator, cost of any record or
transcript of the arbitration, administrative fees, and other fees and
costs shall be borne equally by the parties.
20. Changes After the Date Hereof. It is understood and agreed by all
parties hereto that the facts and respective assumptions of law in
contemplation of which this agreement is made may hereafter prove to be
other than or different from those facts and assumptions now known, made or
believed by them to be true. Each of the parties hereto expressly accepts
and assumes the risk of the facts and assumptions to be so different, and
the parties hereto agree that all terms of this agreement shall be in all
respects effective and not subject to termination or reclusion by any such
difference in facts or assumptions of law.
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21. Successors and Assigns. This agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective administrators,
representatives, executors, successors and assigns.
22. Proper Construction. (a) The language of all parts of this agreement shall
in all cases be construed as a whole according to its fair meaning, and not
strictly for or against any of the parties; and
(b) The paragraph headings used in this agreement are intended solely
for convenience of reference and shall not in any other manner
amplify, limit, modify, or otherwise be used in the interpretation of
any of the provisions hereof.
23. Severability. Should any of the provisions of this agreement be declared
or be determined to be illegal or invalid, the validity of the remaining
parts, terms or provisions shall not be affected thereby and said illegal
or invalid part, term or provision shall be deemed not be a part of this
agreement.
24. Counterparts. This agreement may be executed in counterparts. Each
counterpart shall be deemed an original, and when taken together with the
other signed counterpart, shall constitute one fully executed agreement.
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If the above agreement is acceptable to you, please sign, date, and return
the original to me.
Very Truly Yours,
VIZACOM INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
President and CEO
I have read the above Release and Separation Agreement, and I understand,
accept, and voluntarily and knowingly agree to the terms and acknowledgements it
contains.
June 19, 2000 /s/ Xxxx Xxxxxxxx
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Date Xxxx Xxxxxxxx
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