EXHIBIT 99.2
SETTLEMENT AND RELEASE AGREEMENT
SETTLEMENT AND RELEASE AGREEMENT dated as of October 15, 2004 (this
"AGREEMENT"), by and among INFOCROSSING, INC., a Delaware corporation (the
"COMPANY") and Xxxxxxx X. Xxxxx, an individual ("EXECUTIVE").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS the Company and Executive are parties to an Employment
Agreement pursuant to which Executive serves as the President and Chief
Operating Officer of the Company (the "Employment Agreement"); and
WHEREAS certain events have occurred and certain disputes have arisen
between the Company and Executive which have caused the Company and Executive to
conclude that it is in their mutual best interests to terminate the employment
relationship between them; and
WHEREAS the Company and Executive do, in fact, desire to terminate
their employment relationship and to settle any and all outstanding claims among
them; and
WHEREAS the Company and Executive acknowledge that this Agreement
supercedes and replaces the Employment Agreement;
WHEREAS, each party hereto, having been afforded the opportunity to be
represented by counsel of its choice, has determined that a comprehensive and
final settlement of any and all claims among them is in the parties mutual best
interests.
NOW THEREFORE, in consideration of the mutual covenants, agreements and
releases set forth herein and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, it is hereby agreed between the
parties as follows:
ARTICLE I
DEFINITIONS
As used herein, the following terms shall have the following meanings:
"Affiliated Party" shall mean, with respect to any person or legal
entity, any spouse, heir, executor, administrator, successor assignee,
subsidiary, affiliate (as such term is defined under Rule 12b-2 under the
Exchange Act), officer, director, shareholder employee, agent or representative
(including any person or entity acting as legal counsel) of such person or legal
entity.
"Agreement" shall have the meaning set forth in the preamble hereto.
"Applicable Law" means (a) any United States federal, state, local or
foreign law, statute, rule, regulation, order, writ, injunction, judgment,
decree or permit of any Governmental Authority and (b) any rule or listing
requirement of any applicable national stock exchange or listing requirement of
any national stock exchange or Commission recognized trading market on which
securities issued by the Company is listed or quoted.
"Executive" shall have the meaning set forth in the preamble hereto.
"Claim" means any allegation, action, obligation, cause of action,
right of action, suit, debt, dues, sum of money, account, reckoning, xxxx, xxxx,
specialty, covenant, contract, controversy, agreement, promise, variance,
trespass, damages, judgment, expense, execution, claim or demand whatsoever,
whether in law, equity or admiralty and whether in contract or in tort.
"Closing Date" shall mean the date that is eight days after the
execution and delivery of this Agreement by each of the parties hereto.
"COBRA" means Section 4980B of the Internal Revenue Code of 1986, as
amended, and Part 6 of Subtitle B of Title I of the Employee Retirement Income
Security Act of 1974, as amended.
"Commission" means the United States Securities and Exchange
Commission.
"Company" shall have the meaning set forth in the preamble hereto.
"Confidential Information" shall have the meaning set forth in Section
4.3 hereof.
"Employment Agreement" shall have the meaning set forth in the recitals
hereto.
"Governmental Authority" means (i) any foreign, federal, state or local
court or governmental or regulatory agency or authority, (ii) any arbitration
board, tribunal or mediator and (iii) any national stock exchange or Commission
recognized trading market on which securities issued by the Company are listed
or quoted.
"Person" means any individual, partnership, corporation, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or agency or political subdivision
thereof, or other entity.
ARTICLE II
TERMS OF SETTLEMENT
Section 2.1. Salary and Benefits; Termination of Employment. The
Company shall pay to Executive all of his normal base salary (but not any bonus)
and benefits through October 15, 2004. Said payments shall be in the ordinary
course of the Company's business and in accordance with customary practices. The
parties hereto agree that October 15, 2004, shall be deemed to be Executive's
last day of employment by the Company and that his employment shall be deemed to
have terminated as of 5:00 p.m. Pacific Daylight Time. The Company shall pay to
Executive, in each case less applicable withholdings, $16,134.62 representing
deferred salary and $27,410.38 representing accumulated, but unused, paid
time-off of 203.62 hours. The unused paid time-off includes the amount accrued
by ITO Acquisition Corporation d/b/a Systems Management Specialists ("SMS") as
of the time that the Company acquired SMS. Although the Company believes that
Executive waived his right to the amount representing deferred salary and the
level of unused paid time-off does not properly reflect actual time-off taken by
Executive, the Company waives any Claim with respect thereto. Executive agrees
the determination of the gross sums payable with respect to deferred salary and
unused paid time-off are correct. The Company also shall pay to Executive as
severance (a) $105,000, less applicable withholdings, and (b) nine monthly
payments of $11,666.67, less applicable withholdings, (the "Monthly Severance
Payments") beginning on November 15, 2004; provided, however, that no Monthly
Severance Payments shall be due with respect to which Executive has entered into
an employment relationship with any other party. All parties agree that
Executive shall have no claim for any item of compensation (including, without
limitation, any salary, bonus, accrued and unused vacation pay or benefits) for
any period after October 15, 2004, except as expressly set forth in this
Agreement.
Section 2.2. Medical Insurance. From and after the date the Closing
Date through the earlier to occur of (a) July 15, 2005 or (b) the date on which
Executive obtains employment with another employer pursuant to which he is
eligible to receive, the Company shall pay the cost of any COBRA or equivalent
coverage elected by Executive under the Company's existing employee medical
insurance coverage. Executive hereby agrees that he shall, within seven days of
obtaining alternate employment pursuant to which he is eligible to receive
medical insurance, notify the Company that he has obtained such employment and
the Company's obligation to provide medical insurance hereunder shall thereafter
cease.
Section 2.3. Resignations; Compensation Matters. Executive hereby
agrees that, on the Closing Date, he shall resign each of his positions as an
employee, officer, director, agent or representative of the Company (including,
but not limited to all positions or memberships in trade associations, if any,
held solely by virtue of his affiliation with the Company). From and after the
Closing Date, Executive will not represent himself as being affiliated with the
Company in any capacity whatsoever. In furtherance and not in limitation of this
Section 2.3, on the Closing Date Executive shall execute and deliver to the
Company a resignation letter substantially in the form of Exhibit A attached
hereto. Executive acknowledges that, as of the Closing Date, he has no
disagreement with the Company on any matter relating to the Company's
operations, policies or practices, including without limitation, with respect to
any accounting matters and Executive affirms that he has not complained of and
is not aware of any fraudulent activity or any act(s) which would form the basis
of a claim of fraudulent or illegal activity by the Company.
Section 2.4. Reimbursement of Reasonable Business Expenses. The Company
shall reimburse Executive for the reasonable business expenses incurred in
carrying out his duties and responsibilities as the Company's President and
Chief Operating Officer under the Employment Agreement through October 15, 2004
upon presentation of expense reports and such supporting documentation as the
Company customarily requires of its executives in accordance with the Company's
policies for reimbursement of business expenses incurred by the Company's
employees and officers.
Section 2.5. No Further Compensation or Benefits. It is the intention
of the parties that all obligations they are undertaking in settlement of their
disputes are fully set forth in this Agreement, together with the Exhibits
hereto, and that, notwithstanding anything to the contrary set forth in the
Employment Agreement or elsewhere, no further compensation or benefits shall be
due Executive from the Company or any of its Affiliated Parties. Executive and
the Company each shall bear their own expenses incurred in connection with the
negotiation and preparation of the Agreement.
ARTICLE III
MUTUAL RELEASES
Section 3.1. Release by Executive. Except for obligations specifically
undertaken pursuant to this Agreement or any Exhibit hereto, Executive hereby
releases and discharges each of the Company and its Affiliated Parties from all
Claims which either Executive and/or any of his Affiliated Parties ever had, now
have, or hereafter can, shall, or may have for, upon or by reason of the
Employment Agreement. Nothing in this Agreement shall affect the respective
rights and/or duties of the Company or Executive under that certain Stock Option
Agreement under the Infocrossing, Inc. 2002 Stock Option and Stock Appreciation
Rights Plan dated April 2, 2004, between the Company and the Executive.
Section 3.2. Release by the Company. Except for obligations
specifically undertaken pursuant to this Agreement or any Exhibit hereto, the
Company hereby releases and discharges Executive and each of his Affiliated
Parties from all Claims which the Company and/or any of its Affiliated Parties
ever had, now have, or hereafter can, shall, or may have for, upon or by reason
of the Employment Agreement, including any Claim for breach of contract or any
Claim for costs, fees or other expenses, including attorneys fees, incurred in
relation to the Employment Agreement.
Section 3.3. Indemnification Rights. Notwithstanding any of the
foregoing, the Company hereby agrees that Executive shall not forfeit any of his
rights to indemnification to which he may be entitled in his capacity as an
officer, director or employee of the Company for any actions taken by him in his
capacity as an officer, director or employee of the Company during the time that
he was employed by the Company.
ARTICLE IV
SPECIAL RELEASES OF EXECUTIVE & COVENANTS
Section 4.1. Employment Related Releases. In exchange for and in order
to induce the Company to release any Claims the Company may have against him
pursuant to the Employment Agreement and to induce the Company to make the
payments set forth in Article II of this Agreement, effective as of the Closing
Date, Executive, hereby releases and waives any and all Claims that he and his
Affiliated Parties may have against the Company and its Affiliated Parties,
known or unknown, existing or claimed to exist with respect to all matters
relating to his employment, and separation from employment, with the Company,
including, but not limited to, all allegations, Claims or violations related to
severance, notice of termination, the payment of salary or benefits and all
Claims arising under the following, in each case as amended: Title VII of the
Civil Rights Act of 1964, as amended; The Civil Rights Act of 1991; Sections
1981 through 1988 of Title 42 of the United States Code, as amended; The
Employee Retirement Income Security Act of 1974, as amended; The Immigration
Reform and Control Act, as amended; The Equal Pay Act of 1963; The Family and
Medical Leave Act of 1993; the Civil Rights Act of 1866; The Americans with
Disabilities Act of 1990, as amended; THE AGE DISCRIMINATION IN EMPLOYMENT ACT
OF 1967, AS AMENDED; The Older Workers Benefits Protection Act, as amended; The
Workers Adjustment and Retraining Notification Act, as amended; The Occupational
Safety and Health Act, as amended; The Xxxxxxxx-Xxxxx Act of 2002; any
Applicable Executive Order programs; California Family Rights Act - Cal. Govt.
Code ss. 12945.2 et seq.; California Fair Employment and Housing Act-Cal. Gov't
Code ss. 12900 et seq.; California Xxxxx Civil Rights Act-Civ. Code ss. 51 et
seq.; California Sexual Orientation Bias Law-Cal. Lab. Code ss.1101 et seq.;
California AIDS Testing and Confidentiality Law-Cal. Health & Safety Code
ss.120775 et seq. and ss.120975 et seq.; California Confidentiality of Medical
Information-Cal. Civ. Code ss.56 et seq.; California Smokers' Rights Law-Cal.
Lab. Code ss.96; California Parental Leave Law-Cal. Lab. Code ss.230.7 et seq.;
California Apprenticeship Program Bias Law-Cal. Lab. Code ss.3070 et seq.;
California Wage Payment Act, as amended; California Equal Pay Law-Cal. Lab. Code
ss.1197.5 et seq.; California Whistleblower Protection Law-Cal. Lab. Code ss.
1102-5(a) to (c); California Military Personnel Bias Law-Cal. Mil. & Vet. Code
ss.394 et seq.; California Family and Medical Leave-Cal. Lab. Code ss.233;
California's Rehabilitation Leave--Cal. Lab. Code ss. 1025; California Parental
Leave for School Visits Law-Cal. Lab. Code ss.230.7 et seq.; California
Electronic Monitoring of Employees-Cal. Lab. Code ss.435 et seq.; California
Occupational Safety and Health Act, as amended, California Labor Code ss.6300 ET
SEQ., and any applicable regulations thereunder; California Consumer Reports:
Discrimination Law-Cal. Civ. Code ss.1786.10 et seq.; California Political
Activities of Employees Act-Cal. Lab. Code ss.1101 et seq.; California Domestic
Violence Victim Employment Leave Act-Cal. Lab. Code ss.230.1; California Time
Off For Victims of Crime--Ca. Labor Code ss. 230.2; California Voting Leave
Law-Cal. Elec. Code ss.14350 et seq.; California Court Leave Law-Cal. Lab. Code
ss.230; California Volunteer Firefighter/Emergency Personnel Leave--Ca. Labor
Code ss. 230.3;Los Angeles AIDS-Based Discrimination Ordinance, Los Angeles
Municipal Ordinance ss.45.80 et seq.; the New Jersey Law Against Discrimination
(N.J.S.A. 10:5-12); New Jersey Family Leave Act; New Jersey State Wage and Hour
Law; New Jersey Conscientious Employee Protection Act; New Jersey Equal Pay Law;
New Jersey Occupational Safety and Health Law; New Jersey Genetic Privacy Act;
New Jersey Smokers' Rights Law; New Jersey Tobacco Use Discrimination Law; New
Jersey laws regarding Political Activities of Employees, Lie Detector Tests,
Jury Duty, Employment Protection, and Discrimination; any other federal, state
or local civil or human rights law or any other local, state or federal law,
regulation or ordinance; United States, California, and New Jersey
Constitutions; or any other federal, state or local statute or ordinance; or
under any public policy, contract or tort, or under common law; for wrongful
discharge; or arising under any practices or procedures of the Company or its
Affiliated Parties; or any Claim for breach of contract, infliction of emotional
distress, defamation, or any Claim for costs, fees or other expenses, including
attorneys fees, incurred in these matters. Section
4.2. WAIVER OF UNKNOWN CLAIMS. This is a full and final release
covering all unsuspected, unknown, undisclosed and unanticipated losses, wrongs,
injuries, debts, claims or damages to Executive which may have arisen, or may
arise, from any act or omission prior to the date of execution of this
Agreement, and which arise out of or are related, directly or indirectly, to
Executive's dealings with Company or its Affiliated Parties or any matters in
Section 4.1 above. Therefore, Employee waives any and all rights or benefits
which he may now have, or in the future may have, under the terms of Section
1542 of the California Civil Code, which provides 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.
Executive acknowledges that he has read this Agreement, including the waiver of
California Civil Code Section 1542, that Executive understands the Agreement and
the Section 1542 waiver, and so freely and knowingly enters into this Agreement.
Executive acknowledges that he may hereafter discover facts different from or in
addition to those he knows or now believes to be true with respect to the
matters released or described in this Agreement, and he agrees that the releases
and agreements contained herein shall be and will remain effective in all
respects notwithstanding any later discovery of any such different or additional
facts. Executive hereby assumes any and all risk of any mistake in connection
with the true facts involved in the matters, disputes, or controversies
described herein or with regard to any facts which are now unknown to Executive
relating thereto.
Section 4.3. Consideration Period; Waiver. Executive acknowledges that
he has been advised that he is entitled to at least 21 days to consider this
Agreement. Executive agrees that any modifications, material or otherwise, made
to this Agreement do not restart or affect in any manner the original 21
calendar day consideration period. In the event that he executes and delivers
this Agreement prior to the expiration of the 21 day period, Executive hereby
agrees such execution and delivery shall constitute a waiver of the balance of
said period.
Section 4.4. Acknowledgment of Executive Regarding Consideration.
Executive hereby acknowledges and agrees that he has received good and valuable
consideration for entering into this Agreement.
Section 4.5. Confidential Information. (a) Executive hereby agrees,
that except as may be required by law, to hold in strictest confidence and to
not directly or indirectly publish, disseminate or otherwise disclose or allow
to be disclosed, any "Confidential Information" (as defined below); PROVIDED,
HOWEVER, that Executive shall have no obligation to maintain in confidence any
information that is or becomes publicly available through no fault of himself.
"Confidential Information" shall mean business or proprietary information
(including, without limitation, business plans, financial information and other
subject matter pertaining to any business of the Company or any of its
affiliates) that is not commonly known in the industry. Confidential Information
shall also include, for example and without limitation, confidential knowledge,
data, financial information or data, marketing techniques and material, business
plans, methods and strategies (whether or not patentable or reduced to
practice), business operations and systems, software, computer code, flow
charts, pricing policies, information concerning employees, customers and/or
vendors, trade secrets, discoveries, inventions (whether or not patentable or
reduced to practice), improvements, research, scientific engineering
information, development, databases, know-how, show-how, designs, products,
compositions, original works of authorship, prototypes, maskworks, physical
materials, manufacturing processes and other information disclosed or submitted
orally, in writing, or by any other media. The Confidential Information as set
forth above may be in any form, including but not limited to, any intangible
form such as unrecorded knowledge, information, ideas or concepts, or may be
embodied in equipment or other tangible form such as documents, drawings,
photographs, computer code, software or other printed or electronic media.
(b) Executive agrees that a breach of his obligations
contained in this Section 4.5 would cause irreparable damage to the Company and
any of its affiliates, the exact amount of which will be difficult to ascertain
and that the remedies at law for any such breach will be inadequate.
Accordingly, Executive agrees that if he breaches any of his obligations
contained in the Section 4.5, in addition to any other remedy which may be
available at law or in equity, the Company shall be entitled to specific
performance and injunctive relief, without a showing that monetary damages will
not provide an adequate remedy and without being required to post a bond.
Section 4.6. Non-Solicitation. (a) Executive agrees and acknowledges
that for a period of twelve (12) months after October 15, 2004, Executive shall
not, either directly or indirectly, personally, or on behalf of or in
conjunction with any person or firm, divert or take away any client or customer
of the Company or solicit, induce, facilitate, recruit, encourage or cause any
employee, consultant, contractor, agent or representative of the Company, to
leave their employment or engagement with the Company for any reason. Company
and Executive acknowledge that restrictions on solicitation do not apply to Xxx
Xxxxxxx who concurrently herewith is entering into a separate severance
agreement with the Company. As indicated in Section 8(b) of the Employment
Agreement, Executive acknowledged that the foregoing non-solicitation covenant
was given, in part, in connection with and in consideration of the Company's
acquisition of ITO Acquisition Corporation, now known as Infocrossing West,
Inc., pursuant to a Stock Purchase Agreement dated as of March 3, 2004 between
the Company and ITO Holdings, LLC, a California limited liability company in
which Executive holds a member interest.
(b) Executive agrees that a breach of his obligations
contained in this Section 4.6 would cause irreparable damage to the Company and
any of its affiliates, the exact amount of which will be difficult to ascertain
and that the remedies at law for any such breach will be inadequate.
Accordingly, Executive agrees that if he breaches any of his obligations
contained in the Section 4.6, in addition to any other remedy which may be
available at law or in equity, the Company shall be entitled to specific
performance and injunctive relief, without a showing that monetary damages will
not provide an adequate remedy and without being required to post a bond.
Section 4.7. Return of Company Property. Executive agrees to return to
the Company any and all documents, materials, records, computer disk or other
items in his possession or control belonging to the Company or containing
Confidential Information relating to the Company, to surrender to the Company
any identification or credit cards, keys, telephones, equipment or other such
items owned by the Company or within the lawful possession of the Company.
Section 4.8. Continued Assistance. Executive agrees if requested by the
Company, in the Company's sole discretion, to provide reasonable assistance
during normal business hours during the period ending on July 15, 2005 (the
"Severance Period") with the transition of management of the Company or any
subsidiary of the Company including, but not limited to, matters involving
customers, human resources, vendors, financial, strategic, marketing, sales, and
supplier matters as well as acquisitions with respect to which the company or
business acquired is owned directly or indirectly by the Company. Such
reasonable assistance during the Severance Period shall not exceed twenty five
(25) hours per month; provided, however, if the Company does not use the full
twenty five (25) hours available for a particular month, any unused hours shall
be available for use by the Company in a subsequent month. Any continued
assistance provided hereunder shall be without additional compensation except
Company shall reimburse Executive for reasonable out-of-pocket costs and
expenses incurred in connection with the rendering of any such assistance.
Executive shall obtain Company's pre-approval of any such expenses and Company
shall not unreasonably withhold approval of such expenses. Notwithstanding
anything to the contrary, however, Executive will not be obligated to provide
such assistance hereunder after July 15, 2005.
Section 4.9. Expense Reports. Within 15 calendar days of the Closing
Date], Executive will submit all expense reports and supporting documentation
for the reasonable business expenses incurred in carrying out his duties and
responsibilities as the Company's President and Chief Operating Officer under
the Employment Agreement through October 15, 2004. Executive agrees that the
Company will not be obligated to consider reimbursement of any expenses not
reflected in such reports, time being of the essence.
ARTICLE V
CERTAIN MATTERS
Section 5.1. Representation by Counsel. Each party hereto acknowledges
that, at all times during the negotiation and preparation of this Agreement,
including, but not limited to the releases contained in Articles III and IV
hereof such party has been represented by counsel of its choice, that such party
understands the contents of this Agreement and its binding effect, that such
party has reviewed this Agreement with its counsel prior to the execution and
delivery hereof, and intends to knowingly and voluntarily release the Claims
released hereby as of the Closing Date.
Section 5.2. Right of Revocation. Executive shall have seven (7) days
following the execution of this Agreement to revoke this Agreement and this
Agreement shall not become effective or enforceable and the Closing Date shall
not occur until such revocation period has expired. Any revocation within this
period shall be submitted in writing to the Board of Directors, as set forth in
Section 7.5. The revocation must be in writing and must be personally delivered,
or mailed and post marked, within seven (7) days of the execution and delivery
of this Agreement. No payments provided for herein will be made until the
Closing Date. If this Agreement is revoked by Executive during such revocation
period, then this Agreement shall be void and of no effect. At the Closing Date,
and in the absence of a revocation under this Section 5.2, Executive will
confirm that he has elected not to revoke this Agreement by delivering a letter
to the Company in the form attached as Exhibit B.
Section 5.3. No Release of Claims for Failure to Perform this
Agreement. For the avoidance of doubt, each party expressly acknowledges and
agrees that no party hereto is releasing any Claim arising out of the failure of
any party hereto to perform any obligation which such party is expressly
required to perform under this Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.1. Representations and Warranties of Executive. Executive
hereby represents and warrants to the Company on the date hereof and on and as
of the Closing Date as follows:
(a) Capacity. Executive has full capacity to enter into this
Agreement and this Agreement constitutes his valid and legally binding
obligation, enforceable in accordance with its terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally, and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
(b) No Violation; Consents. The execution, delivery and
performance by Executive of this Agreement does not and will not contravene any
Applicable Law to which he is subject. The execution, delivery and performance
by Executive of this Agreement will not violate, result in a breach of or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation or acceleration) under any
contract to which Executive is a party or by which Executive is bound or to
which any of his assets is subject.
(c) No Known Third Party Claims. Executive is not aware of any
third party Claims or potential Claims which individually or in the aggregate
are material to the Company which could be reasonably asserted against the
Company or its subsidiaries, officers, directors or employees as a result of
actions taken by Executive while acting as an officer or director of the
Company.
Section 6.2. Representations and Warranties of the Company. The Company
hereby represents and warrants to each Purchaser on the date hereof and on and
as of the Closing Date as follows:
(a) Organization, Good Standing and Qualification. The Company
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to carry on its business as now conducted and as proposed to be
conducted.
(b) Authorization. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement and the performance of
all obligations of the Company hereunder has been taken or will be taken prior
to the Closing, and this Agreement constitutes, or will, upon execution hereof
by the parties hereto, constitute, a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally, and
(ii) as limited by laws and principles relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
(c) No Violation; Consents. The execution, delivery and
performance by the Company of this Agreement does not and will not contravene
any Applicable Law. The execution, delivery and performance by the Company of
this Agreement will not (i) violate, result in a breach of or constitute (with
or without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under any contract to which
the Company is a party or by which the Company is bound or to which any of its
assets is subject and (ii) will not conflict with or violate any provision of
the certificate of incorporation or by-laws or other governing documents of the
Company.
(d) No Known Third Party Claims. The Company is not aware of
any third party Claims or potential Claims which individually or in the
aggregate are material to Executive which could reasonably be asserted against
Executive as a result of actions taken by the Company in respect of Executive
during the time Executive was acting as an officer or director of the Company.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Expenses. The parties hereto shall pay all of their own
expenses relating to the transactions contemplated by this Agreement, including,
without limitation, the fees and expenses of their respective counsel.
Section 7.2. Governing Law. The interpretation and construction of this
Agreement, and all matters relating hereto, shall be governed by the laws of the
State of California applicable to agreements executed and to be performed solely
within such State.
Section 7.3. Jurisdiction. Any judicial proceeding brought against any
of the parties to this Agreement on any dispute arising out of this Agreement or
any matter related hereto may be brought in the courts of the State of
California, or in the United States District Courts in California, and, by
execution and delivery of this Agreement, each of the parties to this Agreement
consents to and accepts the exclusive jurisdiction of such courts, and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with this Agreement.
Section 7.4. Captions. The Article and Section captions used herein are
for reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
Section 7.5. Notices. Any notice or other communication required or
permitted under this Agreement shall be sufficiently given if delivered in
person or sent by telecopy or by registered or certified mail, postage prepaid,
addressed as follows:
If to the Company:
Infocrossing, Inc.
0 Xxxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Attention: Chairman of the Board
If to Executive:
Xxxxxxx X Xxxxx
c/o McDermott Will & Xxxxx LLP
00000 Xxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Section 7.6. Parties in Interest. This Agreement may not be
transferred, assigned, pledged or hypothecated by any party hereto, other than
by operation of law. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective Affiliated Parties.
Section 7.7. Counterparts. This Agreement may be executed in two or
more counterparts, all of which taken together shall constitute one instrument.
Section 7.8. Entire Agreement. This Agreement, including the other
documents referred to herein which form a part hereof, contains the entire
understanding of the parties hereto with respect to the subject matter contained
herein and therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
Section 7.9. Amendments. This Agreement may not be changed orally, but
only by an agreement in writing signed by each of the parties hereto which makes
specific reference to this Agreement.
Section 7.10. Severability. It is the desire and intent of the parties
that this Agreement, including, without limitation, the mutual releases
contained herein, shall be enforced to the fullest extent permissible under the
laws of the State of California. If any particular provision or portion of any
provision hereof, including, without limitation, any of the mutual releases
contained herein, shall be adjudicated to be invalid or unenforceable, this
Agreement shall be deemed to be amended to delete herefrom any such provision or
portion so adjudicated in a manner calculated to give maximum effect to the
remaining provisions of this Agreement; PROVIDED that the essence of this
Agreement can be maintained. No such deemed amendment of this Agreement shall in
any way whatsoever affect or impair the validity, legality and enforceability of
the remaining provisions hereof.
Section 7.11. Confidentiality. (a) The Company, through its respective
officers and directors, covenant and agree that they shall not knowingly issue,
participate in or cause (in whole or in part) the release of any adverse
information or adverse statements relating to Executive or this Agreement or the
circumstances surrounding this Agreement to anyone (including but not limited to
any person or entity in the business trade, media or public) except to each of
their counsel, accountants or agents or as required by law or upon the prior
written consent of Executive. Notwithstanding, the foregoing within two business
days after the Closing Date, the Company shall cause to filed with the
Commission a Form 8-K announcing the resignation of Executive and attaching this
Agreement as an Exhibit thereto.
(b) Executive covenants and agrees that he shall not knowingly
issue, participate in or cause (in whole or in part) the release of any adverse
information or adverse statements relating to the Company and its affiliates and
their respective officers and directors or this Agreement or the circumstances
surrounding this Agreement to anyone (including, but not limited to any person
or entity in the business trade, media or public) except to each of his counsel
or accountant or as required by law or upon the prior written consent of the
Company.
IN WITNESS WHEREOF, the Company has caused its corporate name to be
hereunto subscribed by its officer thereunto duly authorized, and Executive has
signed this Agreement, all as of the day and year first above written.
INFOCROSSING, INC.
By: /s/ XXXX XXXXXXXX
--------------------------------
Name: Xxxx Xxxxxxxx
Title: Chairman & Chief Executive Officer
/s/ XXXXXXX X. XXXXX
--------------------------------
Xxxxxxx X. Xxxxx
EXHIBIT A
FORM OF RESIGNATION LETTER
[Letterhead of Xxxxxxx X. Xxxxx]
___________ __, 2004
Infocrossing, Inc.
0 Xxxxxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Board of Directors
Gentlemen:
Effective immediately, I hereby resign any and all positions which I
may hold as an officer, director, agent, employee or other representative of
Infocrossing, Inc (the "Company"). In addition, I hereby acknowledge that, as of
the date hereof, I have no disagreement with the Company on any matter relating
to the Company's operations, policies or practices, including without
limitation, with respect to any accounting matters. Further, I hereby affirm
that I have not complained of nor am I aware of any fraudulent activity or any
act(s) which would form the basis of a claim of fraudulent or illegal activity
by the Company.
Yours truly,
-------------------------------
Xxxxxxx X. Xxxxx
EXHIBIT B
[Letterhead of Xxxxxxx X. Xxxxx]
____________ __, 2004
Infocrossing, Inc.
0 Xxxxxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Board of Directors
Gentlemen:
On ______________ [date] I executed a Settlement and Release
Agreement between Infocrossing, Inc. (the "Company") and me. I was advised by
the Company, in writing, to consult with an attorney of my choosing, prior to
executing this Settlement and Release Agreement.
More than seven (7) calendar days have elapsed since I executed the
above-mentioned Settlement and Release Agreement. I have at no time revoked my
acceptance or execution of that Agreement and hereby reaffirm my acceptance of
that Settlement and Release Agreement. Therefore, in accordance with the terms
of our Settlement and Release Agreement, I hereby request payment of the monies
described in Article II of that Agreement.
Yours truly,
-------------------------------
Xxxxxxx X. Xxxxx
