EXHIBIT 10.24
SEVERANCE AGREEMENT
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THIS SEVERANCE AGREEMENT (this "Agreement") is made and entered into as of
this 15th day of January, 2000, by and between XXXXX XXXXXXX, a resident of St.
Louis County, Missouri ("Xxxxxxx"), and DIGITAL BROADCAST NETWORK CORPORATION
d/b/a Intira Corporation, a Missouri corporation ("Intira").
RECITALS
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X. Xxxxxxx is one of the founders and officers of Intira.
X. Xxxxxxx and Intira are parties to that certain Employment Agreement,
dated as of March 3, 1998 (the "Employment Agreement"); Xxxxxxx and Intira are a
party to that certain Shareholders' Agreement dated as of March 3, 1999 (the
"Restricted Common Stock Agreement") and that certain indemnification agreement
dated June 15, 1998 ("Indemnification Agreement").
X. Xxxxxxx desires to terminate his employment with Intira in order to
develop and pursue other business ventures.
X. Xxxxxxx and Intira desire to terminate the Employment Agreement and to
set forth herein the agreement between them regarding Xxxxxxx' separation from
employment with Intira.
E. For and in consideration of the covenants, agreements and
understandings set forth herein, and for other good and valuable consideration,
the receipt and adequacy of which is acknowledged by Xxxxxxx and Intira, Xxxxxxx
and Intira hereby agree as follows:
AGREEMENT
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1. Resignation. Xxxxxxx hereby resigns, effective as of the 15th day of
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January, 2000, which resignation shall be irrevocable and this Agreement shall
constitute his resignation, as an employee of Intira without any further action
on the part of Xxxxxxx or Intira. Intira shall pay and provide Xxxxxxx his
current base salary through January 15, 2000, net of usual withholdings and
Xxxxxxx shall provide such services to Intira as requested by Intira through
January 15, 2000. Xxxxxxx and Intira hereby terminate the Employment Agreement
effective as of January 15, 2000; provided, however, that Section 4 of the
Employment Agreement (but not any other Sections of the Employment Agreement
that could apply to such Section 4, such as Section 8 of the Employment
Agreement) shall survive and remain in full force and effect as if republished
and incorporated by reference herein.
2. Severance Payments and Other Benefits.
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a. In consideration of the covenants and agreements of Xxxxxxx set
forth in Section 3 hereof, Intira shall continue to pay Xxxxxxx, a bi-monthly
severance payment equal to Xxxxxxx'x base xxxxx bi-monthly income, minus
applicable federal and state tax withholding) through and including July 15,
2000.
b. Intira shall continue to maintain, at the sole cost and expense of
Intira, health and dental insurance coverage, on the same terms, conditions and
coverage as exist on the date hereof, for Xxxxxxx and his eligible dependents
(which shall include those persons in, Xxxxxxx' family currently covered under
Intira's health and insurance coverage) from the date hereof until January 14,
2001. Alternatively, Xxxxxxx may, at his option at any time between the date
hereof and January 14, 2001, obtain his own policy of health and dental
insurance coverage (on terms no less favorable than the terms under Intira's
existing coverage) for Xxxxxxx and his eligible dependents (which shall include
those persons in Xxxxxxx' family currently covered under Intira's health and
insurance coverage) and Intira shall pay the costs and expenses of such
insurance coverage until January 14, 2001 in an amount not to exceed the amount
that Intira would be responsible for under the first sentence of this Section
2.b.
c. Intira shall, in compliance with COBRA, offer Xxxxxxx and his
eligible dependents continuation coverage in compliance with COBRA from and
after January 14, 2001, at the sole cost and expense of Xxxxxxx.
d. The provisions of this Agreement, and any payment provided for
hereunder, shall not reduce any amounts payable, or in any way diminish,
Xxxxxxx' rights under any benefit, 401(k), retirement, defined contribution,
defined benefit or other plan or arrangement as of the date of this Agreement.
3. Non-Competition.
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a. From the date hereof and for one (1) year thereafter (the
"Restricted Period"), Xxxxxxx shall not, within the continental United States,
directly or indirectly, acting alone or with others, voluntarily or
involuntarily, own, operate, engage in, have an interest in, control through
stock ownership or otherwise, or become employed by, work for, advise, be
connected with, consult with or represent in any capacity or in any manner
whatsoever in any role, any individual, firm, corporation, partnership,
association or other entity (other than Intira) who or which is engaged in
business as a "Netsourcing company" (as such terms are used and described in
Intira's current business plan, website or marketing materials which are
incorporated herein by this reference); provided, however, that the foregoing
restrictions shall not be construed or otherwise interpreted so as to prevent
Xxxxxxx from owning stock or other securities in a company if (i) such stock or
securities are owned for investment purposes only, (ii) Xxxxxxx does not,
directly or indirectly, acting alone or with others, participate in the
management or operation of such company, and (iii) such company has a class of
stock publicly traded or tradeable on the New York Stock Exchange, The Nasdaq
National Market or any other recognized national stock exchange (no Internet
alternative trading system or order matching system shall be considered a
national stock exchange for this purpose).
b. During the Restricted Period, Xxxxxxx shall not, either directly or
indirectly, either on his own behalf or on behalf of any other individual, firm,
corporation, partnership, association or other entity, approach or solicit
customers of Intira as of the date hereof with a view towards diverting or
attempting to divert from Intira any business which Intira has enjoyed, to
Xxxxxxx or to any other individual, firm, corporation, partnership, association
or other entity. During the Restricted Period, Xxxxxxx shall not, directly or
indirectly, either on his own behalf or on behalf of any other individual, firm,
corporation, partnership, association or other entity, approach or solicit
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employees, consultants, or other associates of Intira with a view towards
terminating said employee's, consultant's or other associate's employment,
relationship or association with Intira; provided, however, that the foregoing
restrictions shall not apply to any person who shall have been terminated by
Intira.
x. Xxxxxxx shall keep all Confidential Information (as defined below
in this Section 3(c)) in the strictest confidence and shall not discuss,
publish, communicate, transmit, reproduce or otherwise disclose such
Confidential Information to anyone who is not a professional advisor of Xxxxxxx.
In the event that Xxxxxxx shall become legally compelled to disclose any of the
Confidential Information, Xxxxxxx shall provide Intira with prompt notice
thereof so that Intira may seek a protective order or other appropriate remedy
or waive compliance with the provisions of this Agreement. In the event that
such protective order or other remedy shall not be obtained by Intira or Intira
shall have waived compliance with the provisions of this Agreement, then Xxxxxxx
shall furnish or cause to be furnished only that portion of the Confidential
Information which Xxxxxxx shall have been legally required to furnish. The term
"Confidential Information," as used herein, shall mean any communication
disclosed to Xxxxxxx by Intira or known by Xxxxxxx as a consequence of or
through his past or present employment or business relationship with Intira,
which constitutes Intira's proprietary and non-public method(s) of doing
business, including, but not limited to, any information related to trade
secrets, pricing formulas, know-how, test data, customer lists, vendor lists,
training and operating manuals, software and reporting systems; provided,
however, that the term "Confidential Information" shall not include such
portions of any such communication or information which: (i) are or become
generally available to the public other than as a result of a disclosure by
Xxxxxxx in violation of his obligation of confidentiality hereunder; or (ii)
become available to Xxxxxxx on a non-confidential basis from a source which is
not prohibited from disclosing such information to Xxxxxxx by a legal,
contractual or fiduciary obligation to Intira.
4. Releases.
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a. Intira (on behalf of itself and its shareholders, officers,
directors, employees, affiliates, agents, successors and assigns) hereby
irrevocably, unconditionally and forever releases, waives, discharges and
covenants not to xxx Xxxxxxx (and his heirs, personal representatives and
advisors) from and with respect to any and all claims, charges, debts,
judgments, demands, liabilities, obligations, damages and causes of action
(personal, statutory or otherwise) whether known or unknown, matured or
unmatured, fixed or contingent, which Intira (or its shareholders, officers,
directors, employees, affiliates, agents, successors and assigns) may have or
assert against Xxxxxxx (and his heirs and personal representatives), for any
reason whatsoever, for, or arising out of, or related to, or in connection with,
actions or omissions occurring or matters existing prior to or as of the date
hereof, including, but not limited to, any such matter as arises out of, relates
to or is in connection with Xxxxxxx' capacity as a shareholder, director,
officer or agent of Intira (including, for example, claims for breach of
fiduciary duties, corporate opportunities or otherwise). This release and
covenant shall not apply to actions to enforce the express terms and provisions
of this Agreement or to third party claims against Intira in connection with
Xxxxxxx' sale of his Intira stock. Intira also shall indemnify and hold harmless
Xxxxxxx (and his heirs and personal representatives) from any and all claims,
damages and losses (including reasonable attorneys' fees) suffered or incurred
by Xxxxxxx in connection with any personal guarantees made by Xxxxxxx, if any,
prior to the date hereof with respect to any debts or obligations of Intira.
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This is a full and general release which includes, without limitation,
a release of any right Intira may have to xxx, with respect to the matters
described above: (1) under Title VII of the Civil Rights Act of 1964, as
amended, (2) under the Civil Rights Act of 1866, 42 U.S.C. (S) 1981, (3) under
the Age Discrimination in Employment Act, 29 U.S.C. (S) 621 et seq., (4) under
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the Missouri Human Rights Act, Chapter 213 of the Missouri Revised Statutes, (5)
under any ordinance of the City of St. Louis, (6) Executive Order 11246 or any
other state, federal, or local law, ordinance, or regulation dealing with
employment discrimination, discrimination on the basis of age or gender, or
other form of discrimination, or retaliation for filing any charge or claim,
complaining about any practice or conduct or participating or testifying in any
investigation, (7) under the Family and Medical Leave Act of 1993, 29 US.C (S)
2601 et seq., (8) under (S) 290.140 of the Missouri Revised Statutes, (8) under
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the National Labor Relations Act, (9) under the Employee Retirement Income
Security Act of 1974, as amended, (10) under the Missouri Minimum Wage Act,
Sections 290.500-530 of the Missouri Revised Statutes and Section 290.080 et
--
seq. of the Missouri Revised Statutes, (11) under any federal or state
securities laws, (12) under the Fair Labor Standards Act of 1938, as amended, or
the Equal Pay Act, (13) under the Consolidated Omnibus Budget Reconciliation Act
(COBRA) or any other law regarding insurance continuation, (14) for damages of
any kind including but not limited to damages for personal, emotional, or
economic injury, damage to reputation, breach of contract, wrongful discharge,
or violation of implied or express contract rights under any state, federal, or
local law, decision, or regulation, (15) for lost pay, reinstatement, liquidated
damages, or any other form of equitable relief, (16) for overtime pay, vacation
or sick pay, violation of any equal pay law, sex discrimination, severance pay,
attorneys' fees, expert's fees, or costs, and (17) for personal injury, slander,
libel, defamation, fraud, misrepresentation, intimidation, retaliation,
intentional tort, economic loss, intentional or negligent infliction of
emotional distress, costs, damages, punitive damage, front pay, failure to grant
insurance continuation, retaliation, retaliatory or wrongful discharge, breach
of contract, or breach of an implied contract.
This release shall not extinguish the obligation of Intira to
indemnify Xxxxxxx in accordance with the Indemnification Agreement or otherwise
its indemnification obligations arising under its articles or bylaws arising
prior to the date of this agreement.
x. Xxxxxxx (on behalf of himself and his heirs, personal
representatives and companies or other entities wholly-owned by Xxxxxxx and/or
Xxxxxxx and his spouse and/or children) hereby irrevocably, unconditionally and
forever releases, waives, discharges and covenants not to xxx Intira (and its
shareholders, officers, directors, employees, affiliates, advisors, agents,
successors and assigns) from and with respect to any and all claims, charges,
debts, judgments, demands, liabilities, obligations, demands and causes of
action (personal, statutory or otherwise) whether known or unknown, matured or
unmatured, fixed or contingent, which Xxxxxxx (and his heirs, personal
representatives and companies or other entities wholly-owned by Xxxxxxx and/or
Xxxxxxx and his spouse and/or children) may have or assert against Intira, its
shareholders, officers, directors, employees, affiliates, advisors, agents,
successors and assigns, for any reason whatsoever, for, or arising out of, or
related to, or in connection with, actions or omissions occurring or matters
existing prior to or as of the date hereof. This release and covenant shall not
apply to (i) actions to enforce the express terms and conditions of this
Agreement, and (ii) any claim, charge, debt, judgement, liability, loss, cause
of action or other matter that does not arise out of or in connection with, or
relate to either (x) the business or operations of Intira or (y) the ownership
of Intira stock or other Intira securities.
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This is a full and general release which includes, without limitation,
a release of any right Xxxxxxx may have to xxx, with respect to the matters
described above: (1) under Title V11 of the Civil Rights Act of 1964, as
amended, (2) under the Civil Rights Act of 1866, 42 U.S.C. (S) 1981, (3) under
the Age Discrimination In Employment Act, 29 U.S.C. (S) 621 et seq., (4) under
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the Missouri Human Rights Act, Chapter 213 of the Missouri Revised Statutes, (5)
under any ordinance of the City of St. Louis, (6) Executive Order 11246 or any
other state, federal, or local law, ordinance, or regulation dealing with
employment discrimination, discrimination on the basis of age or gender, or
other form of discrimination, or retaliation for filing any charge or claim,
complaining about any practice or conduct or participating or testifying in any
investigation, (7) under the Family and Medical Leave Act of 1993, 29 U.S.C. (S)
2601 et seq., (8) under (S) 290.140 of the Missouri Revised Statutes, (8) under
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the National Labor Relations Act, (9) under the Employee Retirement Income
Security Act of 1974, as amended, (10) under the Missouri Minimum Wage Act,
Sections 290.500-530 of the Missouri Revised Statutes and Section 290.080 et
--
seq. of the Missouri Revised Statutes, (11) under any federal or state
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securities laws, (12) under the Fair Labor Standards Act of 1938, as amended, or
the Equal Pay Act, (13) under the Consolidated Omnibus Budget Reconciliation Act
(COBRA) or any other law regarding insurance continuation, (14) for damages of
any kind including but not limited to damages for personal, emotional, or
economic injury, damage to reputation, breach of contract, wrongful discharge,
or violation of implied or express contract rights under any state, federal, or
local law, decision, or regulation, (15) for lost pay, reinstatement, liquidated
damages, or any other form of equitable relief, (16) for overtime pay, vacation
or sick pay, violation of any equal pay law, sex discrimination, severance pay,
attorneys' fees, expert's fees, or costs, and (17) for personal injury, slander,
libel, defamation, fraud, misrepresentation, intimidation, retaliation,
intentional tort, economic loss, intentional or negligent infliction of
emotional distress, costs, damages, punitive damage, front pay, failure to grant
insurance continuation, retaliation, retaliatory or wrongful discharge, breach
of contract, or breach of an implied contract.
Xxxxxxx hereby waives any and all rights to request a service letter
under Section 290.140 X.X.Xx., and agrees not to request any such letter.
Xxxxxxx further agrees that for purposes of any such letter or other inquiry,
the reason for his cessation of employment is his voluntary resignation.
5. Rights as Shareholder. The provisions of this Agreement shall not
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affect or otherwise diminish the rights that Xxxxxxx has as of the date hereof
as a shareholder of Intira provided however, Xxxxxxx hereby agrees (which such
agreement shall be binding on his successors and assigns) that, if so requested
by any representative of the underwriters (the "Managing Underwriter") in
connection with any registration of the offering of any securities of Intira
under the federal securities and exchange acts ("Securities Act"), Xxxxxxx shall
not sell or otherwise transfer any shares or other securities of Intira during
the 180-day period (or such other shorter period as may be requested in writing
by the Managing Underwriter and agreed to in writing by Intira) (the "Market
Standoff Period") following the effective date of a registration statement of
Intira filed tinder the Securities Act. Such restriction shall apply only to the
first registration statement of Intira to become effective under the Securities
Act that includes securities to be sold on behalf of Intira to the public in an
underwritten public offering under the Securities Act. Intira may impose stop-
transfer instructions with respect to securities subject to the foregoing
restrictions until the end of such Market Standoff Period. The obligation not to
sell shares of Intira during the Market Standoff Period shall apply to Xxxxxxx
only if Xxxxxxx receives terms relating thereto at least as favorable
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(applied to Xxxxxxx on the basis of the proportion of the number of shares owned
by Xxxxxxx to the number of shares owned by such other shareholder if such terms
depend upon the number of shares owned) as the terms agreed to by Intira or the
Managing Underwriter to induce any other shareholder who signs a similar
agreement not to sell shares of Intira, including without limitation, the
exclusion of any shares from such agreement or the reserving of shares for such
shareholder to purchase under Intira's first effective registration statement.
The immediately foregoing sentence shall not apply to: (i) Xxxxxxx X. Xxxxxxx or
the Xxxxxxx Family Trust, (ii) the rights of shareholders holding Series A
Preferred Stock that exist prior to their execution of any agreement requested
by the Managing Underwriter restricting the right to sell shares, or (iii) the
rights of Ascend Communications and Stifel Capco that exist prior to their
execution of any agreement requested by the Managing Underwriter restricting the
right to sell shares.
6. Invalidity of Provisions: Independence of Certain Provisions. In the
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event that any provision of this Agreement is adjudicated to be invalid or
unenforceable under applicable law, the validity or enforceability of the
remaining provisions shall be unaffected. To the extent that any court or other
body having appropriate jurisdiction determines that any provision of this
Agreement is invalid or unenforceable because it is too broad or otherwise
unreasonable (including the area and duration of the restraints on competition
provided in Section 3 hereof), such overbroad or unreasonable provision shall
not be void but rather shall be limited only to the extent required by
applicable law and enforced as so limited.
7. Governing Law. This Agreement shall be construed and governed by the
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laws of the State of Missouri.
8. Successors and Assigns. This Agreement shall be binding upon and inure
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to the benefit of any successors or assigns of Intira and this Agreement shall
be binding upon and inure to the benefit of the heirs and personal
representatives of Xxxxxxx. In the event that Intira is merged with or
consolidated into another entity or sells or transfers all or substantially all
of its assets, then the survivor of such merger or consolidation or the
purchaser of such assets, as the case may be, shall assume all of the
obligations of Intira hereunder.
9. No Waiver. Any delay or failure by Intira or Xxxxxxx to exercise a right
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under this Agreement, or a partial or singe exercise of that right, shall not
constitute a waiver of that or any other right.
10. Entire Agreement. This writing contains the whole and entire agreement
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of the parties hereto with respect to the subject matter hereof and supersedes
all prior and contemporaneous agreements, representations and understandings;
provided, however, that this Agreement shall not supersede or otherwise
terminate the Shareholders' Agreement or the Indemnification Agreement which
shall continue in full force and effect in accordance with their respective
terms.
11. Amendments. No amendments or variations of the term or conditions of
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this Agreement shall be valid unless in writing and signed by the parties
thereto.
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12. Registration Rights. Xxxxxxx shall be entitled to receive registration
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rights with respect to his shares of Intira stock on terms that are at least as
favorable as the terms granted by Intira to its officer(s), director(s),
executive(s), and/or employee(s).
13. Miscellaneous.
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a. Intira and Xxxxxxx shall, within five (5) days after the date hereof,
change the billing on his cellular phone to his personal account and Xxxxxxx
shall thereafter pay all outstanding amounts due as of such date.
b. At the time of signing this Agreement, Intira and Xxxxxxx shall
cancel his Intira American Express credit cards, if any. Contemporaneous with
the execution of this Agreement, Xxxxxxx shall pay or otherwise reimburse Intira
for all personal obligations incurred by Xxxxxxx under such credit cards then
outstanding. Xxxxxxx hereby represents and warrants that he has no other credit
arrangements or obligations in respect of which Intira is or could become liable
in whole or part.
c. Intira shall promptly forward to Xxxxxxx (at the address set forth
in Section 14.a hereof or at such other address as Xxxxxxx may from time to time
designate in writing to Intira) personal mail, packages, faxes and other
correspondence sent to Xxxxxxx at the Intira offices from and after the date
hereof.
14. Counterpart Facsimile Execution. For purposes of this Agreement, a
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document (or signature page thereto) signed and transmitted by facsimile machine
or telecopier is to be treated as an original document. The signature of any
party thereon, for purposes hereof, is to be considered as an original
signature, and the document transmitted is to be considered to have the same
binding effect as an original signature on an original document. At the request
of any party, any facsimile or telecopy document is to be re-executed in
original form by the parties who executed the facsimile or telecopy document.
No party may raise the use of a facsimile machine or telecopier or the fact that
any signature was transmitted through the use of a facsimile or telecopier
machine as a defense to the enforcement of this Agreement or any amendment or
other document executed in compliance with this Section 14.
15. Amendment to Shareholders' Agreement. The Company and Xxxxxxx agree
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that Article II.1 of the Shareholders' Agreement is hereby amended so that the
period that the Company has to exercise its option to repurchase Xxxxxxx' stock
shall begin on the date hereof and end on the date 60 days thereafter. The
Company and Xxxxxxx further agree that the Company shall only have the right to
exercise the option during said 60 day period in the event that Xxxxxxx either
breaches this Agreement and fails to cure such breach within 5 business days
after receipt of written notice from the Company, or engages in activity that
irreparably xxxxx the Company. The parties agree that Xxxxxxx shall have no
opportunity to cure any activity that irreparably xxxxx the Company. In the
event that the Company exercises its option hereunder, it shall pay the purchase
price by delivering a cashier's check to Xxxxxxx for the full amount of the
purchase price. All other terms of the Restricted Stock Agreement shall remain,
except as otherwise provided in section 15 of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Severance Agreement
as of the date above written.
I HAVE READ THIS SEVERANCE AGREEMENT, UNDERSTANDING ALL ITS TERMS, AND SIGN
IT AS MY FREE ACT AND DEED.
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
I HAVE READ THIS SEVERANCE AGREEMENT & UNDERSTANDING ALL ITS TERMS, AND
SIGN IT ON BEHALF OF INTIRA AS THE FREE ACT AND DEED OF INTIRA WITH FULL
AUTHORITY TO EXECUTE THIS DOCUMENT ON BEHALF OF INTIRA.
DIGITAL BROADCAST NETWORK CORPORATION
d/b/a Intira Corporation
By:__________________________________
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LETTER OF UNDERSTANDING
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This Letter of Understanding is made and entered into as of this 15th day
of January, 2000 by and between XXXXX XXXXXXX, a resident of St. Louis County,
Missouri ("Xxxxxxx") and DIGITAL BROADCAST NETWORK CORPORATION d/b/a INTIRA
CORPORATION, a Missouri corporation ("Intira"), as an addendum to the Severance
Agreement, a copy of which is attached.
1. Paragraph 3, Non-Competition, shall have no application to the
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following entities:
. Phoenix Networks
0000 Xxxxxxxx Xxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
. Broadband Investment Group, L.L.C. ("Broadband")
0000 Xxxxxxxx Xxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Xxxxxxx acknowledges that Xxxxxxx X. Xxxxxxx, who is affiliated with
Broadband, is subject to a restriction on solicitation of employees of Intira
and that Xxxxxxx will not accept employment with Broadband unless Intira waives
such restriction.
2. Xxxxxxx is entitled to ownership and possession, at no additional cost
to him, of the three (3) nature-scape framed photos by Xxxxx Xxxxxxx that were
obtained for his office.
IN WITNESS WHEREOF, the undersigned have executed this Letter of
Understanding as the date above written.
XXXXX XXXXXXX DIGITAL BROADCAST NETWORK
CORPORATION d/b/a INTIRA CORPORATION
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxx
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