Exhibit 10.1
AMENDED AND RESTATED LETTER AGREEMENT
This Amended and Restated Letter Agreement (this "Agreement"), dated as of
February 22, 2001, is made between MindArrow Systems, Inc., a Delaware
corporation (the "Company"), and Xxxxxx X. Xxxxxxxx, an individual
("Consultant").
WHEREAS, the Company and Consultant are parties to that certain Letter
Agreement (the "Original Letter Agreement"), dated as of December 31, 2000,
pursuant to which the Company and Consultant mutually terminated that certain
Consulting Agreement, dated as of June 30, 2000, between Company and Consultant
(a copy of which is attached hereto as Exhibit A, the "Consulting Agreement").
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WHEREAS, the Company and Consultant have determined that the Original
Letter Agreement contained certain inadvertent errors with respect to the mutual
release provisions and inadvertently omitted to refer to the cancellation of
that certain Change in Control and Executive Retention Agreement, dated
September 28, 1999, between the Company and Consultant (a copy of which is
attached hereto as Exhibit B, the "Change in Control Agreement").
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WHEREAS, the Company and Consultant wish to correct such errors and
omissions by amending and restating the Original Letter Agreement as set forth
herein.
In consideration of the foregoing recitals, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company and
Consultant hereby amend and restate the Original Letter Agreement in its
entirety as follows:
1. EFFECTIVE DATE. Consultant's status as a consultant for the Company was
terminated effective as of the close of business on December 31, 2000 (the
"Effective Date"). It is expressly agreed and understood by the parties hereto
that the settlement of Consultant's consulting arrangement is by mutual consent
and is not in any manner to be construed as termination for cause.
2. CANCELLATION OF CONSULTING AGREEMENT. Effective as of the Effective Date,
the Consulting Agreement has been terminated and is of no further force and
effect.
3. CANCELLATION OF CHANGE IN CONTROL AGREEMENT. Effective as of the
Effective Date, the Change in Control Agreement has been terminated and is of no
further force and effect.
4. CONSIDERATION BY COMPANY. The Company shall deliver to Consultant (i)
payment of $23,750 per the Company's normal payment schedule during the month of
January 2001 (Consultant acknowledges receipt of such payment); (ii) 13 monthly
payments of $18,000 beginning on February 1, 2001 followed by a single payment
of $3,500 in the 14th month (Consultant acknowledges receipt of the first such
monthly payment); (iii) payment for the lease obligation on Consultant's car in
the amount of $750 per month for a period of 16 months beginning February 1,
2001 (Consultant acknowledges receipt of the first such monthly payment); (iv)
payment for auto insurance and reasonable maintenance fees for Consultant's car;
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(v) reimbursement for pre-approved expenses incurred by Consultant relating to
Consultant's role as a director of the Company; (vi) life and health insurance
benefits for Consultant consistent with those offered by the Company to its
directors generally, for so long as Consultant remains a director of the
Company; and (vii) a stock option agreement for the purchase of 57,000 shares of
the Company's common stock at a strike price of $5.00 per share (Consultant
acknowledges receipt of such stock option).
5. ROLE AS DIRECTOR. This Agreement in no way affects Consultant's role as
a director of the Company.
6. RELEASE OF SPECIFIED CLAIMS.
(a) In recognition of the consideration provided for herein, Consultant
hereby releases and discharges the Company and any of the Company's
present, former and future partners, affiliates, direct and indirect
parents, subsidiaries (other than the Company), successors, directors,
officers, employees, agents, attorneys, heirs and assigns (collectively,
the "Released Parties"), from any and all claims, actions and causes of
action that Consultant may have as of the Effective Date with respect to
the Released Parties, which arise from Consultant's service as a consultant
to the Company under the Consulting Agreement, including without
restriction Consultant's rights to any compensation or benefits from the
Released Parties under the Consulting Agreement and any of Consultant's
rights under the Change in Control Agreement. Consultant represents that he
has been given the opportunity to consult with the attorney(s) of his
choice prior to signing this Agreement and to have those attorney(s)
explain the provisions of this Agreement to Consultant and that Consultant
has knowingly and voluntarily accepted the terms of the offer as described
herein.
(b) The Released Parties hereby release Consultant from any and all
claims, actions and causes of action, known or unknown, that the Released
Parties, or any of them, may have with respect to Consultant as of the
Effective Date, which arise from Consultant's service as a consultant to
the Company under the Consulting Agreement.
7. PROTECTION OF THE COMPANY'S INTERESTS.
(a) Exclusive Property. Consultant confirms that all confidential
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information is and shall remain the exclusive property of the Company. All
business records, papers and documents kept or made by Consultant relating
to the business of the Company shall be and remain the property of the
Company. Consultant further represents that he has delivered to the
Company, and has not without the consent of the Company retained copies of,
any written materials not previously made available to the public, or
records and documents that Consultant made or that came into Consultant's
possession concerning the business or affairs of the Company.
(b) Non-Disparagement. For a period of twenty-four (24) months after
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the Effective Date, Consultant agrees that he shall not disparage the
Company or its products, services, or management to any third party. The
Company agrees that in response to any inquiry from a prospective employer
directed to the Company, Xxxxxx X. Xxxxxx or his successor shall
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respond to the inquiry by highlighting Consultant's accomplishments and
explaining Consultant's ceasing to provide consulting services to the
Company.
8. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of California applicable to contracts
to be performed in that state and without regard to laws that might otherwise
govern under applicable principles of conflicts of law.
9. SUCCESSORS AND ASSIGNS. The rights and obligations under this
agreement shall be binding upon and shall inure to the benefit of the successors
and assigns of the Company and to Consultant's heirs, executives, successors and
assigns.
10. NON-ADMISSION OF LIABILITY. Both parties to this Agreement
acknowledge and agree that this Agreement is a settlement and release of claims
agreement designed to terminate any consultant/client relationship between the
parties and to release any claims that Consultant may have against the Company.
This Agreement shall not in any way be construed as an admission of liability by
any of the parties to this Agreement.
11. NON-ASSIGNMENT OF CLAIM. Consultant warrants that he has not
assigned and will not assign any claim, right of action, or any right of any
kind whatsoever, embodied in this Agreement, and that no other person or entity
of any kind had or has any interest in any of the demands, obligations, actions,
causes of action, debts, liabilities, rights, contracts, damages, attorneys'
fees, costs, expenses, losses or claims referred to herein.
12. ENTIRE AGREEMENT/MODIFICATION. The terms and provisions of this
instrument constitute the entire agreement between the Company and Consultant,
and shall supersede all previous communications, representations or agreements,
either verbal or written, between the parties hereto with respect to
Consultant's engagement by the Company under the Consulting Agreement, except as
otherwise provided herein. This Agreement may not be enlarged, modified,
amended or altered except in a writing signed by the Company and Consultant.
13. KNOWING AND VOLUNTARY AGREEMENT. This Agreement in all respects
has been voluntarily and knowingly executed by the parties hereto. Consultant
has been advised that this is an important legal document and that he should
consult with an attorney of his choice prior to entering into this Agreement.
Consultant specifically represents that he has been given an opportunity to
consult with counsel and that, to the extent desired, Consultant has consulted
with an attorney of his choice regarding the terms and conditions of this
Agreement.
14. NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be (i) delivered personally or
by facsimile, (ii) transmitted by first-class mail, postage prepaid, or airmail,
postage prepaid, in the event of mailing for delivery outside of the country in
which mailed, (iii) transmitted by an overnight courier of recognized reputation
or of recognized international reputation in the event of an international
delivery, or (iv) transmitted by telecopier (with confirmation by airmail or
courier), addressed to the parties at the address set forth below (or at such
other address as the parties shall have furnished to each other in writing):
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If to the Company: MindArrow Systems, Inc.
----------------- 000 Xxxxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Legal Department
If to Consultant: Xxxxxx X. Xxxxxxxx
---------------- 2025 Via Teca
Xxx Xxxxxxxx, Xxxxxxxxxx 00000
Facsimile (000) 000-0000
Except as otherwise specified herein, all notices and other communications shall
be deemed to have been duly given on (A) the date of receipt if delivered
personally or by facsimile, (B) the date seven (7) days after posting if
transmitted by mail, (C) the date three (3) days after delivery to a courier if
sent by recognized or internationally recognized courier service, or (D) the
date on which written confirmation would be deemed to have been given as
provided above, whether by mail or by courier, as applicable, if transmitted by
telecopier, whichever shall first occur.
15. SEVERABILITY OF THIS AGREEMENT. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
16. TITLES AND SUBTITLES. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
18. ARBITRATION. Any disputes concerning this Agreement or otherwise
arising out of Consultant's engagement by the Company as a consultant pursuant
to the Consulting Agreement or the termination of the Consulting Agreement or
Change in Control Agreement shall be submitted to final and binding arbitration
in Orange County, California under the rules of the Judicial Arbitration and
Mediation Service ("JAMS"). The arbitrator(s) shall award reasonable attorneys'
fees and costs, including expert fees, to the prevailing party in any
arbitration or court proceeding, including any appeal.
[signatures appear on the following page]
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IN WITNESS WHEREOF, this Agreement is made and entered into as of the date
first above written.
MINDARROW SYSTEMS, INC.
By: _______________________________
Xxxxxx X. Xxxxxx
President/CEO
XXXXXX X. XXXXXXXX
By: _______________________________
Xxxxxx X. Xxxxxxxx
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EXHIBIT A
CONSULTING AGREEMENT
[attached hereto]
A-1
EXHIBIT B
CHANGE IN CONTROL AGREEMENT
[attached hereto]
B-1
