Exhibit 10.1
CONFIDENTIAL SEPARATION AGREEMENT AND RELEASE
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This CONFIDENTIAL SEPARATION AGREEMENT AND RELEASE ("Agreement") is made
and entered effective this 28th day of March, 2001 (the "Effective Date"), by
and between Xxxxxx Xxx, his heirs, successors and assigns (collectively "Sax")
and Homecom Communications, Inc., its successors and assigns (collectively
"Homecom").
1. Severance Payment. Homecom agrees to pay, and Sax agrees to accept, in full
settlement of any and all responsibilities or obligations Homecom may have
to Sax and in full and final settlement of any and all monetary demands of
Sax arising out his employment, affiliation or association with Homecom,
the start-up of Homecom, and/or the Executive Employment Agreement between
Homecom and Sax dated January 1, 1996 and any amendments thereto (the
"Employment Agreement"), the total sum of ONE HUNDRED FIFTY THOUSAND
DOLLARS ($150,000), less applicable tax and FICA withholdings, payable to
Xxxxxx Xxx in one lump sum payment.
2. No Other Benefits. Except as set forth herein, Sax shall not be entitled to
any other employee or other benefits, fringe benefits or other
remuneration, compensation or payments of any kind from Homecom or any of
the other parties released below.
3. Voluntary Resignation. As of the Effective Date of this Agreement, Sax
voluntarily resigns from, terminates and/or surrenders any and all offices,
directorships and/or other positions he may have held or occupied at
Homecom. Sax acknowledges that as of the Effective Date, he will no longer
be employed by, associated or affiliated with Homecom, no longer hold any
offices or positions at Homecom, and will have no authority to act for or
bind Homecom, its officers and/or directors in any manner.
4. Confidentiality. The parties agree that neither they nor anyone acting on
their behalf will disclose to any third party the terms of this Agreement,
other than to their counsel or tax advisors, pursuant to applicable
securities laws, rules or regulations, pursuant to a confidentiality
arrangement approved by an executive officer of Homecom, or as validly
required by a court or administrative body, pursuant to judicial or
administrative order, subpoena, or other compulsory process.
5. Release and Covenant Not to Xxx by Sax.
(a) As a material inducement for Homecom to enter into this Agreement,
Sax, for Sax and for Sax's heirs, successors, assigns, affiliates,
corporations or other entities which he owns or controls, and present
or former officers, agents, representatives and employees does hereby
fully, finally, irrevocably and unconditionally release, acquit and
forever discharge Homecom and its respective successors, assigns,
subsidiaries, affiliates, parent corporations, and present or former
officers, agents, representatives and employees, of and from any and
all charges, complaints, claims, liabilities, obligations, promises,
damages, causes of action, rights, demands, costs, lawsuits, debts and
expenses, claims or charges of discrimination, retaliation claims,
back pay claims, claims for personal physical injury or physical
sickness, claims for emotional or mental anguish and distress,
negligence claims, fraud claims, claims for attorneys' fees and costs,
claims for compensatory and punitive damages, and any and all damages,
claims, charges and demands of any kind or nature whatsoever, whether
in law or in equity, and including claims for injunctive, declaratory,
equitable and monetary relief, arising out of, related to, or
connected with any acts, events or facts from the beginning of time
through the date of this Agreement, including but not limited to
(i) any and all claims, causes of action, charges or complaints that
Sax has, could have, or might have asserted under any age, race,
color, sex, national origin, religion, disability or other
discrimination law, including specifically claims under the Age
Discrimination in Employment Act ("ADEA"), in any lawsuit or
before the EEOC or any other governmental agency;
(ii) any and all claims, causes of action, charges or complaints that
Sax has, could have, or might have asserted under any other
federal or state law, statute, executive order, regulation,
ordinance, decision, or rule of law; and
(iii) any and all claims, counterclaims, causes of action and damages
arising out of Sax's employment, affiliation or association with
Homecom, the Employment Agreement and any amendments thereto, and
any offices or directorships held by Sax in Homecom.
(b) The parties agree that the release set forth in this Paragraph 5 shall
be and remain in effect in all respects as a complete general release
and covenant not to xxx as to the matters released, provided, however,
that this release and covenant shall not extend to (a) any obligations
incurred in this Agreement; and (b) any claims either party may have
against the other arising out of or resulting from any breach of
obligations under this Agreement.
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(c) Sax acknowledges that the consideration he has been given for this
release and other obligations contained in this Agreement exceeds that
to which he is entitled by law or contract, and is fair and adequate
consideration for the release and other obligations contained in this
Agreement.
6. Release and Covenant Not to Xxx by Homecom. As a material inducement for
Sax to enter into this Agreement, Homecom, for itself and its successors,
assigns, subsidiaries, affiliates, parent corporations, and present or
former officers, agents, representatives and employees, does hereby fully,
finally, irrevocably and unconditionally release, acquit and forever
discharge Sax and his respective heirs, successors, assigns, affiliates,
officers, agents, representatives and employees, of and from any and all
charges, complaints, claims, liabilities, obligations, promises, damages,
causes of action, rights, demands, costs, lawsuits, debts and expenses,
claims or charges of discrimination, retaliation claims, back pay claims,
claims for personal physical injury or physical sickness, claims for
emotional or mental anguish and distress, negligence claims, claims for
attorneys' fees and costs, claims for compensatory and punitive damages,
and any and all damages, claims, charges and demands of any kind or nature
whatsoever, whether in law or in equity, and including claims for
injunctive, declaratory, equitable and monetary relief, arising out of,
related to, or connected with any acts, events or facts from the beginning
of time through the date of this Agreement, including but not limited to
any and all claims, counterclaims, causes of action and damages arising out
of Sax's employment, affiliation or association with Homecom, the
Employment Agreement and any amendments thereto, and any offices or
directorships held by Sax in Homecom.
The parties agree that the release set forth in this Paragraph 6 shall
be and remain in effect in all respects as a complete general release and
covenant not to xxx as to the matters released, provided, however, that
this release and covenant shall not extend to (a) any obligations in this
Agreement, and (b) any claims either party may have against the other
arising out of or resulting from any breach of obligations under this
Agreement.
7. Entire Agreement. This Agreement sets forth the entire agreement between
Homecom and Sax, supersedes any and all prior agreements or understandings
between the parties, whether written or oral, and may not be modified
orally. This Agreement shall inure to the benefit of, and be binding upon,
any successors or assigns. As of the Effective Date of this Agreement, the
Employment Agreement is specifically cancelled and of no further force and
effect, except for that certain Amendment to Employment Agreement,
effective as of August 1, 1996, by and between Homecom and Sax, which
remains in effect in its entirety and is incorporated herein by this
reference.
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8. Severability. Should any term or provision of this Agreement be declared or
determined by a court to be illegal or invalid, the remaining terms and
provisions shall not be affected, and the term or provision held to be
invalid shall be deemed not to be a part of this Agreement.
9. Knowing and Voluntary Release. Sax represents that he has read this
Agreement and understands that this Agreement contains a waiver and release
of any and all rights and claims that he might otherwise have against
Homecom; that Sax understands fully the terms, conditions, requirements and
effects of this Agreement; and that Sax executes this Agreement freely,
knowingly, and voluntarily without threat, duress, coercion or promise of
any future consideration.
10. Governing Law. All matters relating to the interpretation, construction and
enforcement of this Agreement shall be governed by the laws of the State of
Georgia.
IN WITNESS WHEREOF, this Confidential Separation Agreement and Release has
been executed by the parties.
Homecom Communications Inc.
BY: /s/ Xxxxxxx X. Xxxxxxxx BY: /s/ Xxx Xxxxxxxxx
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TITLE: Executive Vice President, TITLE: Chief Technical Officer,
Chief Financial Officer Director
March 29, 2001 March 29, 2001
Xxxxxx Xxx
/s/ Xxxxxx Xxx
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March 29, 2001
