SETTLEMENT AND GENERAL RELEASE AGREEMENT
THIS SETTLEMENT AND GENERAL RELEASE AGREEMENT (the "Agreement")
is made and entered into as of the 15th day of January, 2001 by and between Xxxx
X. Xxxxxxxxx ("XXX"), an individual residing at 00 Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxx Xxxxxx 00000, and Vizacom Inc., a Delaware corporation (the "Company", and
together with XXX, the "Parties"). The Parties acknowledge that the terms and
conditions of this Agreement have been voluntarily agreed to and that such terms
are final and binding.
WHEREAS, XXX has been a director of the Company and has been employed by
the Company as President and Chief Executive Officer; and
WHEREAS, the Company desires to accept MEL's resignation as an employee,
officer and director of the Company; and
WHEREAS, the Parties now desire to settle fully and finally claims XXX
may have against the Company and that the Company may have against XXX,
including, but not limited to, any matters arising out of his employment with
the Company and his separation therefrom.
NOW, THEREFORE, in consideration of the premises and mutual promises
herein contained, it is agreed as follows:
1. Non-Admission of Liability or Wrongdoing.
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This Agreement shall not be construed in any way as an admission by the
Parties that either of them has acted wrongfully with respect to the other or
any other person or that any one of them has any rights whatsoever against the
other.
2. Resignation.
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XXX hereby resigns as an officer (President and Chief Executive
Officer), employee and director of the Company and all direct and indirect
subsidiaries of the Company. From and after the date hereof until April 15, 2001
(the "Consulting Period"), XXX shall perform consulting services on behalf of
the Company at reasonable times and upon reasonable notice relating to the
disposition of assets by the Company, the transition of executive and
administrative tasks previously performed by XXX and any activities of the
Company which XXX was involved in during his employment by the Company. XXX
agrees to return to the Company all assets, equipment or other items which are
owned by the Company not later than the date on which the Consulting Period
terminates, except that the Company shall transfer to XXX upon conclusion of the
Consulting Period the Compaq Armada laptop computer and the cellular telephone
utilized and in the possession of XXX on the date hereof. Upon such transfer,
XXX shall have all rights and title to such property and shall be responsible
for any charges incurred in connection with the use thereof.
3. Consideration to XXX.
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(a) The Company shall pay XXX $10,500 per month, payable semi-monthly,
from the date hereof through the date on which the Consulting Period terminates,
pro rated for any partial month.
(b) The Company shall pay to XXX his unpaid reasonable expenses
incurred in the normal course of the fulfillment of his duties as an
officer and director of the Company and as a consultant to the Company pursuant
to Section 2 hereof (provided that, in connection with expenses incurred while
acting as a consultant, all expenses in excess of $200 shall be approved in
advance by the President of the Company), including but not limited to
reasonable travel and business expenses incurred through the date of this
Agreement, upon submission of customary documentation relating thereto, but in
any event no later than 21 days after presentment of such documentation.
(c) The Company shall issue to XXX 300,000 shares (the "Shares") of
common stock, par value $.001 per share, of the Company, constituting payment in
full of any and all amounts which are or may be due from the Company to XXX for
any and all accrued and unpaid vacation, sick and personal days or other
employee benefits, as well as severance. In connection with such issuance, XXX
shall execute an investment representation letter dated the date hereof in the
form of Exhibit A hereto. The Company shall deliver to XXX certificates
evidencing the ownership of such Shares no later than 20 days after the date
hereof. The Company shall register the Shares in its currently pending S-3
Registration Statement.
(d) The Company shall pay to XXX five percent (5%) of the gross
proceeds, if any, received from Wexford Holdings Inc., or any affiliate thereof
("Wexford"), or from Serif management, or from any other third party XXX may
hereafter introduce to the Company, in connection with the sale (the "Sale") by
the Company of all of the issued and outstanding capital stock of any one or
more of the following subsidiaries of the Company: Serif (Europe) Limited, Serif
Inc., Serif GmbH, Dialog 24 Limited, Dialog 24 Inc., Xxxxxxxxxxxx.xxx Inc. and
Junction 15 Limited (including interMETHODS Limited). The payments to XXX under
this Paragraph 3(d) shall be made as follows: (i) XXX shall be paid five percent
(5%) of the gross proceeds received by the Company in the same ratio of cash,
equity or debt received by the Company at or prior to the closing of the Sale
(the "Closing") at the Closing and (ii) XXX shall be paid five percent (5%) of
the gross proceeds received by the Company thereafter within five (5) days of
receipt of such payment(s) by the Company; provided, however, that XXX shall be
paid ten percent (10%) of any portion of the gross proceeds paid to the Company
in excess of $2 million and shall also be entitled to 10% of any equity issued
by Wexford to the Company in connection with the Sale. The Company shall pay to
XXX five percent (5%) of the gross proceeds of any equity or debt financing XXX
shall hereafter introduce to the Company; provided, that no such amount shall be
payable in connection with any transaction with any of the Company's current
stockholders or investors. To the extent any secured creditor of the Company
requires payment of the sales proceeds to it then any payment to XXX pursuant to
this paragraph shall be made from other Company funds.
(e) The Company shall continue to make all payments with respect to
health insurance for MEL's benefit comparable to that coverage made available to
the Company's executive
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officers through the earlier of (i) December 31, 2001 or (ii) such time as
XXX is employed or retained on a substantially full-time basis.
(f) All stock options granted to XXX by the Company shall be
non-terminable and shall be exercisable according to their terms through the
expiration date thereof.
(g) The Company shall pay to XXX within five (5) days of the date
hereof all salary payable to XXX and accrued through the date hereof.
4. Complete Release.
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(a) As a material inducement to the Company to enter into this
Agreement, XXX hereby waives, releases and discharges the Company, its
subsidiaries and their respective officers, directors, stockholders, employees,
agents, attorneys, subsidiaries, servants, successors, insurers, affiliates and
their successors and assigns, from any and all manner of action, claims, liens,
demands, liabilities, causes of action, charges, complaints, suits (judicial,
administrative or otherwise), damages, debts, obligations of any nature, past or
present, known or unknown, whether in law or in equity, whether founded upon
contract (expressed or implied), tort (including, but not limited to,
defamation), statute or regulation (State, Federal or local), common law and/or
any other theory or basis, from the beginning of the world to the date hereof,
including, but not limited to, any claim that XXX has asserted, now asserts or
could have asserted, but not including any claim for the enforcement of this
Agreement. This includes, but is not limited to, claims arising under Federal,
State or local laws prohibiting employment or other discrimination or claims
growing out of any legal restrictions on the Company's rights to terminate its
employees, including without limitation any claim arising under Title VII of the
United States Code or under any age or gender discrimination law.
Notwithstanding anything else contained in this Agreement, this Agreement is not
intended to release any rights XXX has with respect to participation in company
sponsored stock option plans, or any rights XXX has to seek and obtain
indemnification and/or defense from the Company in the event that any claim is
asserted against XXX by a third party.
(b) As a material inducement to XXX to enter into this Agreement, the
Company and its subsidiaries hereby irrevocably and unconditionally waives,
releases and discharges XXX, his agents and attorneys, successors and assigns,
from any and all manner of action, claims, liens, demands, liabilities, causes
of action, charges, complaints, suits (judicial, administrative or otherwise),
damages, debts, obligations of any nature, past or present, known or unknown to
the Company, whether in law or in equity, whether founded upon contract
(expressed or implied), tort (including, but not limited to, defamation),
statute or regulation (State, Federal or local), common law and/or any other
theory or basis, from the beginning of the world to the date hereof, arising out
of his employment and position as an officer and director, and the resignation
therefrom or the termination thereof, including, but not limited to, any claim
that the Company has asserted, now asserts or could have asserted, but not
including any (i) claims for the enforcement of this Agreement and (ii) action,
claims, liens, demands, liabilities, causes of action, charges, complaints,
suits (judicial, administrative or otherwise), damages, debts, demands or
obligations of any other nature which directly arise out of or directly relate
to any willful misconduct, gross negligence or fraud committed by XXX, or any
violation by XXX of Section 13(d) or 16 of the Securities Exchange Act of 1934,
as amended, unless such actions were taken in good faith with a reasonable
belief that such actions were in the best interests of the Company.
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(c) It is understood and agreed by the Parties 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. The Parties
expressly accept and assume the risk of the facts and assumptions to be so
different, and 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.
5. Acknowledgments.
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XXX acknowledges that:
(a) He has had a full twenty-one (21) days within which to consider
this Agreement before executing it;
(b) He has carefully read and fully understands all of the provisions
of this Agreement;
(c) He is, through this Agreement, releasing the Company and its
affiliates from any and all claims he or she may have against any of them and
being released from certain potential liabilities by the Company;
(d) He knowingly and voluntarily agrees to all of the terms set forth
in this Agreement;
(e) He knowingly and voluntarily intends to be legally bound by the
same;
(f) He was advised and hereby is advised in writing to consider the
terms of this Agreement and consult with an attorney of his or her choice prior
to executing this Agreement;
(g) He has a full seven (7) days following the execution of this
Agreement to revoke this Agreement and has been and hereby is advised in writing
that this Agreement shall not become effective or enforceable until the
revocation period has expired; and
(h) He understands that rights or claims under the Age Discrimination
in Employment Act of 1967 (29 U.S.C. 621 et seq.) that may arise after the date
of this Agreement is executed are not waived.
6. Non-Disclosure.
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XXX shall not disclose or deliver to any other party any trade secrets
or confidential or proprietary information gained through employment with the
Company, except in connection with the performance of his consulting duties
hereunder. This includes, but is not limited to, proprietary technologies,
patents, patent applications, software programs and tools, financial
information, business plans, systems, files, algorithms, file structures,
customer lists, supplier lists, internal program structures, options,
documentation and data developed by the Company or any subsidiary, affiliate or
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division thereof. XXX agrees that any breach of this Section 6 may 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.
7. Non-Disparagement.
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The Parties mutually agree not to publish, communicate or disseminate
any negative information relating to the other Party, including the Company's
divisions, affiliates, subsidiaries, products or services, or any of their
officers, directors or employees, or any information regarding this Agreement to
the public, the media, suppliers, vendors and other industry participants,
except that they may disclose its contents to their respective financial
advisors, accountants and attorneys and as required by law, rule or regulation
adopted pursuant to law, court order or decree, or in connection with testimony
given or documents subpoenaed in a judicial or administrative proceeding.
8. No Representations.
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The Parties represent that in signing this Agreement, they do not rely
on nor have they relied on any representation or statement not specifically set
forth in this Agreement by any of the releasees or by any of the releasees'
agents, representatives or attorneys with regard to the subject matter, basis or
effect of this Agreement or otherwise.
9. Successors.
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This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective administrators, representatives, executors,
successors and assigns, by reason of merger, consolidation, and/or purchase or
acquisition of substantially all of the Company's assets or otherwise.
10. Governing Law.
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This agreement is made and entered into in this State of New York, and
shall in all respects be interpreted, enforced and governed under the laws of
the State of New York.
11. Arbitration.
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(a) Any dispute arising between the Parties, including but not limited
to those pertaining to the formation, validity, interpretation, effect or
alleged breach of this Agreement ("Arbitrable Dispute") will be submitted to
arbitration in New York, New York, 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 the 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.
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(b) Should any party to this Agreement hereafter institute any legal
action or administrative proceedings against another party with respect to any
claim waived by this Agreement or pursue any other Arbitrable Dispute by any
method other than said arbitration, the responding party shall be entitled to
recover from the initiating party all damages, costs, expenses and attorneys'
fees incurred as a result of such action.
12. Proper Construction.
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(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;
(b) As used in this Agreement, the term "or" shall be deemed to include
the term "and/or" and the singular or plural number shall be deemed to include
the other whenever the context so indicates or requires;
(c) The paragraph headings used in this Agreement are intended solely
for convenience of reference and shall not in any manner amplify, limit, modify
or otherwise be used in the interpretation of any of the provisions hereof.
13. Severability.
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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 to be a part of this Agreement.
14. Entire Agreement.
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This Agreement sets forth the entire agreement between the Parties, and
fully supersedes any and all prior agreements or understandings between the
Parties pertaining to the subject matter hereof. All other contracts, agreements
or understandings between the Parties are null and void. Without limiting the
foregoing, any and all employment agreements, including all amendment and/or
addendums thereto, shall be terminated and of no further force or effect,
whether or not such agreements state that the same, or portions thereof, are to
survive termination.
15. Non-Solicitation and Non-Interference.
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For a period of twelve (12) months after the date of this Agreement,
XXX shall not:
(a) for his own account or for the account of any other person or
entity, directly or indirectly interfere with the Company's or any of its
affiliates' or subsidiaries' relationship with any of its suppliers, customers,
accounts, brokers, representatives or agents; or
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(b) employ or otherwise engage, or solicit, entice or induce on
behalf of himself or any other person or entity, directly or indirectly, the
services, retention or employment of any employees of the Company or its
subsidiaries.
16. Counterparts.
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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.
17. Further Assurances.
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From and after the date hereof, the parties hereto shall take all
actions, including the execution and delivery of all documents, necessary to
effectuate the terms hereof.
18. Survival.
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All obligations of the Parties as set forth herein shall survive the
execution and delivery hereof.
19. Indemnification.
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XXX will be indemnified and provided defense by the Company with
respect to any claims asserted against XXX as provided in the Company's by-laws
in effect on the date hereof, and the indemnification agreement dated September
20, 1995 between XXX and the Company from and after the date of this Agreement.
PLEASE READ CAREFULLY. THIS SETTLEMENT AND GENERAL RELEASE
AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
Dated: New York, New York Dated: New York, New York
January 15, 2001 January 15, 2001
VIZACOM INC.
By: /s/ Xxxxxxx XxXxxxxx /s/ Xxxx X. Xxxxxxxxx
-------------------------------- -------------------------------
Name: Xxxxxxx XxXxxxxx Xxxx X. Xxxxxxxxx
Title: President
