Exhibit 10.66
AGREEMENT AND RELEASE
On this 22nd day of January 2000, Tremont Advisers, Inc., a Delaware
corporation with its principal place of business located at 000 Xxxxxxxx Xxxxx
Xxxxxx, Xxx, Xxx Xxxx 00000 (together with its affiliates "Tremont") and
Xxxxxxxx Xxxxxxxxxx Xxxxxx, II ("Employee"), an individual residing at 00 Xxxx
Xxx, Xxx Xxxxx, Xxx Xxxx 00000, each agrees to the terms and conditions set
forth below:
1. Termination: Employee's employment by and with Tremont has been
terminated as of January 22nd, 2000 (the "Termination Date").
2. Resolution of All Matters:
a. Employment Agreement; Stock Transfer Agreement; Employment. Other
than as set forth herein, this Agreement and Release ("Agreement") resolves
all matters between the parties, including, but not limited to, each of the
following:
i. All matters arising under or in connection with the Employment
Agreement made as of March 11, 1999 by and between Tremont and
Employee (the "Employment Agreement"), a copy of which is attached
hereto as Exhibit A and all matters arising under or in connection
with the termination thereof;
ii. All matters arising under or in connection with the Stock
Transfer Agreement (the "Stock Transfer Agreement") made as of August
13, 1999 by and between Tremont (Bermuda) Limited, an exempted Bermuda
company ("Bermuda") and Employee, a copy of which is attached hereto
as Exhibit B, pursuant to which Bermuda transferred to Employee six
thousand (6,000) shares of common stock, par value $0.01 per share, of
FITX Group Limited, an exempted Bermuda company (the "Transferred FITX
Stock");
iii. All matters arising under or in connection with the
promissory demand note dated May 13, 1999 made payable by Employee to
the order of Tremont, a copy of which is attached hereto as Exhibit C,
pursuant to which Employee unconditionally promised to pay Tremont the
principal sum of fifty thousand dollars ($50,000), with interest
thereon, as further described in promissory note (the "Note"); and
iv. All other matters relating to Employee's employment and the
termination of that employment with Tremont.
Employee agrees that he hereby waives any right to employment, reinstatement or
reemployment with Tremont and any of its affiliates or subsidiaries, and
specifically agrees that he will not apply for same. Employee shall not at any
time after the Termination Date represent himself as being in any way connected
with or interested in the business of Tremont or any of its affiliates or its
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subsidiaries and/or knowingly make any untrue or misleading statement in
relation to Tremont or any of its affiliates or subsidiaries.
b. Redemption of the Transferred FITX Stock.
i. Redemption of the Transferred FITX Stock. Employee
acknowledges and agrees that pursuant to the Note Employee owes
Tremont, as of the Termination Date, monies in the principal amount of
eighteen thousand one hundred and fifty dollars ($18,150), plus
interest, which interest shall be calculated, through to and including
the Effective Date, in accordance with the terms set forth in the Note
(the "Monies Owed"). Employee agrees that Bermuda shall have the
option to redeem the Transferred FITX Stock during the period
commencing on the Termination Date and ending five (5) calendar days
after the Effective Date for a redemption price per share of eleven
dollars and 46/100 ($11.46). Each of Tremont, Bermuda and Employee
acknowledges and agrees that Bermuda hereby exercises its option to
redeem the Transferred FITX Stock in exchange for the payment to
Employee of sixty eight thousand seven hundred and sixty dollars
($68,760) (the "Redemption Price"). Each of Tremont and Employee
further agrees that simultaneously with the delivery by Employee to
Tremont of the certificate(s), if any, representing the Transferred
FITX Stock, that payment of an amount equal to the Redemption Price
less the Monies Owed shall be made by wire transfer on the Effective
Date in accordance with the instructions provided by Employee to
Tremont on the Effective Date.
ii. Bermuda's Shareholders' Agreement. Employee confirms that
upon Bermuda's payment of the Redemption Price as set forth above,
Employee shall cease being a party to the Shareholders' Agreement
dated December 15, 1999 by and among Bermuda and its shareholders (the
"Shareholders' Agreement"), a copy of which is attached hereto as
Exhibit D, and Employee shall have no further rights or claims
thereunder.
iii. Employee's Representations and Warranties. Employee
represents and warrants to each of Tremont and Bermuda that upon
Employee's delivery to Bermuda of the Transferred FITX Stock, Bermuda
shall receive good and marketable title to the Transferred FITX Stock
which Bermuda shall be redeeming from Employee pursuant to the terms
set forth in this Section, which Transferred FITX Stock shall, upon
its delivery by Employee to Tremont, be free and clear of all liens,
claims and other encumbrances other than pursuant to the terms of the
Shareholders' Agreement.
3. Time to Consider and Right to Revoke: Employee hereby acknowledges that
he has a period of at least twenty one (21) days during which to consider
whether to enter into this Agreement. Employee hereby further acknowledges and
understands that Employee has the right to revoke this Agreement within seven
(7) calendar days after the date of his execution of this Agreement (the
"Revocation Period"), by delivering a written notice of revocation to Tremont
(c/o Xxxxxx Xxxxxxxx, President, Tremont Advisers, Inc., 000 Xxxxxxxx Xxxxx
Xxxxxx, Xxx, Xxx Xxxx 00000), which written notice must have been given, in
accordance with Section 18 below, no later than 5pm New York time on the seventh
calendar day immediately following the date of Employee's execution of this
Agreement, as such date is set forth on the signature page of this
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Agreement. If Employee revokes this Agreement within the Revocation Period, then
this Agreement will not be effective and enforceable, and Employee will not
receive from Tremont the compensation referred to in Section 4 below.
4. Severance Compensation: If, upon the expiration of the Revocation Period
(the "Effective Date"), Employee has not revoked this Agreement, then in
consideration thereof, Employee shall be entitled to receive the following
Severance Compensation (as such term is defined below):
x. Xxxxxxxxx Payment: The payment by Tremont to Employee of the
amounts set forth in Section 9(b) of the Employment Agreement, subject to
the terms and conditions of such Section 9(b), (or such lesser amount as
may be computed in accordance with the terms set forth below), less
customary deductions, including, without limitation, deductions for (i) the
required federal, state and local withholdings and (ii) the benefit
payments as referred to in Section 9(b) (each such installment payment, a
"Severance Installment Payment", collectively, the "Severance Payment").
Each Severance Installment Payment shall be payable in accordance with the
terms set forth in Section 9(b) of the Employment Agreement, commencing
with Tremont's first regular payday following the Effective Date and ending
on Tremont's first regular payday immediately following March 11, 2001 (the
"Severance Payment Period"), all in accordance with the usual payroll
procedures of Tremont. Each of Employee and Tremont agrees that Employee's
Base Compensation (as such term is defined in the Employment Agreement) is
one hundred and fifty thousand dollars ($150,000) per annum and that
Employee's Guaranteed Bonus (as such term is defined in the Employment
Agreement), or any portion thereof, for the year ending March 11, 2000 and
March 11, 2001, respectively is fifty thousand ($50,000) dollars. Employee
acknowledges and agrees that Tremont, prior to the Effective Date, has paid
to Employee Employee's Guaranteed Bonus for the year ending March 11, 2000.
Accordingly, Employee further acknowledges and agrees that Tremont is
obligated to pay to Employee Employee's Guaranteed Bonus for the year
ending March 11, 2001 only.
b. Stock Options Employment Extension: For purposes of the Stock
Options only (as such term is defined in the Stock Option and Benefits
Agreement made as of March 8, 1999 by and between Tremont and Employee, a
copy of which is attached hereto as Exhibit E (the "Option Agreement")),
Employee shall be entitled, in accordance with the terms and conditions set
forth in Section 2 of the Option Agreement, to exercise the Stock Options
that he would have been entitled to exercise if Employee's employment with
Tremont were to have continued up until and then terminated on March 12,
2001 (the "Stock Options Employment Extension", together with the Severance
Payment, the "Severance Compensation"). The parties hereto agree and
acknowledge that, subject to the foregoing, the Option Agreement shall
remain in full force and effect.
c. Conditions to the Severance Compensation. Employee agrees and
acknowledges that the payment and/or grant, as the case may be, of the
Severance Compensation (in excess of five hundred dollars ($500)) is
conditioned upon Employee's compliance with all of the terms of this
Agreement, including, but not limited to, those set forth in Sections 8, 9,
10 and 11 below. In no event will the Severance Compensation be less than
five hundred dollars ($500).
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5. General Release: In consideration of the Severance Compensation,
Employee hereby forever releases Tremont, its successors and assigns and any and
all of its related companies, including parents, subsidiaries, affiliates,
stockholders and divisions, and the successors and assigns, employees,
directors, officers, independent contractors, clients and agents of any of them
(the "Releasees"), from any and all claims, demands, obligations, promises or
agreements of any nature that he may have, ever has had or hereafter may have,
from the beginning of the world to the end of time, including, but not limited
to, claims based on or arising out of the Employment Agreement or the
termination of the Employment Agreement, Employee's employment with Tremont or
the termination of that employment, including, but not limited to claims for
wrongful discharge or claims that the Releasees have dealt with Employee
unfairly or in bad faith. This includes, but shall not be limited to, any and
all such claims or causes of action that Employee may have, known or unknown to
Employee, arising out of, or in any way connected with or relating to the
Employment Agreement, the Stock Transfer Agreement, the Note, the Shareholders'
Agreement and the Option Agreement (except as set forth herein) or the
termination of Employment Agreement, the Stock Transfer Agreement, the Note, the
Shareholders' Agreement and the Option Agreement (except as set forth herein) or
of Employee's employment with, and separation from, Tremont for breach of
contract, implied or express; impairment of economic opportunity; intentional or
negligent infliction of emotional distress; false arrest; assault; battery;
false imprisonment; prima facie tort; defamation; libel; slander; negligent
termination; malicious prosecution; wrongful discharge; or any other tort,
whether intentional or negligent; or any claim or cause of action known or
unknown under Title VII of The Civil Rights Act of 1964; the Age Discrimination
Employment Act of 1967, as amended; The Older Worker's Benefit Protection Act
(except with respect to claims for age discrimination that may arise after the
date this Agreement is signed); the Equal Pay Act; the Fair Labor Standards Act;
the Employment Retirement Income Security Act; the Rehabilitation Act of 1973;
the Civil Rights Acts of 1866 and 1871; the New York State Human Rights Law; the
New York City Human Rights Law; the New York Labor Law, including, but not
limited to, Section 740 thereof; the New Jersey Human Rights Act; the Americans
With Disabilities Act of 1990; the United States Constitution, the New York
State Constitution and the New Jersey State Constitution, all as amended, if
applicable or any other federal, state, county or municipal statute or ordinance
relating to employment discrimination or retaliation. This Agreement covers
claims of which Employee currently may or may not have knowledge.
6. No Lawsuits: Employee represents and warrants that neither he nor his
legal representative has filed or has been involved, directly or indirectly, in
filing any complaints, charges or lawsuits against the Releasees with any
governmental agency, commission, court or any other forum. Employee agrees that
neither he nor his legal representatives, directly or indirectly, will do so at
any time hereafter. Employee further covenants and agrees that neither he nor
his legal representatives will provide support or assistance, directly or
indirectly, to other persons in connection with any action, suit or proceeding
involving the Releasees, unless required to do so by law. Employee further
understands and agrees that Tremont is in no way liable or responsible for his
attorney's fees and costs, if any, in this matter.
7. Non-Admission: This Agreement shall not in any way be construed as an
admission by the Releasees of any liability or any wrongful or discriminatory
act.
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8. Non-Disparagement: Employee agrees that he will not say, write or cause
to be said or written, directly or indirectly, any statement that may be
considered defamatory, derogatory or disparaging with respect to any of the
Releasees.
9. Non-Disclosure/Confidentiality: Employee acknowledges and agrees that as
a result of his employment with Tremont, confidential information of Tremont and
any of its affiliates or subsidiaries has been imparted to him, which if
disclosed by him or improperly used by him will result in harm to Tremont and
any of its affiliates or subsidiaries. "Confidential Information" shall mean all
research, information, software, databases, trade secrets, sales and marketing
information, subscriber information, operations material and memoranda,
personnel records, client lists, information relating to investment funds,
accounts and customers, pricing information, and financial information
concerning or relating to the business, clients, subscribers, employees, and
affairs of Tremont and any of its affiliates or subsidiaries and contact
persons, the information contained in any systems, applications or tools used by
Tremont which contain any Confidential Information or any other information of
Tremont or of any of its affiliates or subsidiaries and other information
maintained by Tremont and any of its affiliates or subsidiaries, obtained by or
furnished, disclosed or disseminated to Employee, or obtained, assembled or
compiled by Employee or under his supervision during the course of his
employment with Tremont and any of its affiliates or subsidiaries, and all
physical embodiments of the foregoing, all of which are hereby agreed to be the
property of and confidential to Tremont and any of its affiliates or
subsidiaries. Confidential Information shall not include any of the foregoing to
the extent that the same can be shown by written documentation by Employee, to
be available to the public through no fault or breach of this Agreement.
Employee agrees that any and all Confidential Information concerning
Tremont or any of its affiliates or subsidiaries and its business and affairs
obtained by Employee in the course of Employee's employment with Tremont, will
be held by Employee as inviolate and in the strictest of confidence. Employee
further covenants and agrees not to use such information for Employee's personal
benefit or for the benefit of others and not disclose to anyone, other than his
immediate family, accountant or Employee's attorney, and then only upon their
agreement not to disclose to another person, except as required by law, any such
information and the existence of this Agreement, the circumstances surrounding
it, its terms, conditions or negotiation, including, but not limited to, the
dollar amounts set forth herein.
Employee shall immediately surrender and turn over to Tremont, the computer
equipment, including, without limitation, lap tops, books, forms, records,
electronic calendars, client lists, all other papers and writings relating to
Tremont, all other property belonging to Tremont, all information contained in
any systems, applications or tools comprising or used in connection with the
running of its business, then in the possession or under the control, either
directly or indirectly, of Employee, it being understood and agreed that the
same are the sole property of Tremont.
Notwithstanding the foregoing, except as otherwise required by law,
Employee shall at all times maintain as confidential such Confidential
Information which is also confidential to or contains confidential information
concerning any officer, director, shareholder, client or account of
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Tremont or any of its or their affiliates or subsidiaries, without the prior
written consent of the party to whom such confidential information applies.
10. Non-Solicitation of Employees: Employee shall not directly or
indirectly and whether as employee, director, consultant, owner or otherwise,
during the Severance Payment Period and the twelve (12) month period following
the Severance Payment Period, entice or endeavor to entice away from Tremont or
any of its affiliates or subsidiaries, any of its or their employees (whether or
not the departure of such employee would constitute a breach of contract on his
or her part). For the purposes of this paragraph, "employees" means any person
employed or retained by Tremont or any of its affiliates or subsidiaries with
management or senior level sales responsibilities, whether on a permanent or
consultancy basis, with whom Employee shall have had personal dealings in the
course of performing his duties under the Employment Agreement. Nothing in this
covenant will prevent Employee from hiring an employee responding to a general
solicitation appearing in a newspaper, trade publication or similar medium.
11. Non-Solicitation of Clients: Employee shall not, directly or indirectly
and whether as employee, director, consultant, owner or otherwise, during the
Severance Payment Period and the twelve (12) month period following the
Severance Payment Period, in competition with Tremont or any of its affiliates
or subsidiaries, canvas, solicit or seek to entice away from Tremont or any of
its affiliates or subsidiaries (i) any Client (as such term is defined below);
or (ii) any Potential Client (as such term is defined below). "Client" shall
mean any person that, as of the Termination Date or within six (6) before the
Termination Date, is or was, as the case may be, a client of or subscriber to
Tremont or any of its affiliates or subsidiaries, or its or their services, and
being a person (i) with which Employee or any person reporting directly to
Employee has had personal dealings in the course of performing his or her duties
to Tremont; or (ii) of which Employee has personal knowledge. "Potential Client"
shall mean any person with which there were, as of the Termination Date, ongoing
negotiations with a view to such person becoming a client of or subscribing to
Tremont or any of its affiliates or subsidiaries, and being a person (i) with
which Employee or any person reporting directly to Employee has had personal
dealings in the course of performing his or her duties to Tremont or (ii) of
which Employee has personal knowledge.
12. No Other Representations: Employee represents and acknowledges that in
executing this Agreement, he is not relying, and has not relied, upon any oral
or written representations or statements not set forth or referred to herein.
13. Encouragement to Consult with Attorney: Employee is encouraged to
consult with an attorney or other representative of Employee's interests of
Employee's own choice at Employee's own expense prior to executing this
Agreement. By executing this Agreement, Employee is signifying that Employee has
read this Agreement thoroughly, that Employee has consulted with an attorney
prior to executing this Agreement or has knowingly waived the right to do so,
and that Employee's agreement to the terms of this Agreement is knowing, willing
and voluntary.
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14. Entire Agreement; Amendment; Waiver: This Agreement and the Option
Agreement constitute the entire understanding and agreement between the parties
and supersede and cancel, unless otherwise stated herein, all previous
agreements and commitments, whether oral or written, in connection with the
matters described herein. No waiver or modification of this Agreement shall be
binding unless it is in writing and signed by the parties hereto. No failure to
insist upon compliance with any term or condition of this Agreement, whether by
conduct or otherwise, shall be deemed to be or construed to be a waiver of such
term or condition.
15. Breach: Employee acknowledges and agrees that if Employee breaches any
of the provisions of Sections 8, 9, 10 and 11 above (i) Tremont shall be
entitled to apply for and receive an injunction to restrain any breach of the
provisions of Sections 8, 9, 10 and 11 above, (ii) Tremont shall be entitled to
immediately cease and desist from making any payments or providing for any
benefits to be paid or provided for in connection with the Severance
Compensation and from permitting the vesting and/or exercise, as the case may
be, of any Stock Options, that as of the date of any such breach, remain
unvested and/or unexercised, as the case may be, (iii) any and all claims for
and/or rights of Employee to the Severance Compensation shall be deemed
renounced and/or extinguished, (iv) Employee shall be obligated to pay to
Tremont its costs and expenses, including legal costs and attorneys fees, in
enforcing this Agreement and defending against any lawsuit relating to this
Agreement, (v) Employee shall be obligated, at Tremont's option and upon
Tremont's written demand, to (a) repay to Tremont all but five hundred dollars
($500) of the Severance Payment paid or provided to Employee by Tremont in
connection herewith, and (b) deliver to Tremont, upon Tremont's repayment of the
applicable Exercise Price, those Shares (as such terms are defined in the Option
Agreement), if any, that shall have been (x) designated by Tremont in its
written demand therefor and (y) delivered to Employee in connection with any
Stock Options that vested and were exercised after the Effective Date.
16. Enforcement: This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of New York, without
reference to that State's conflict of law principles. If any term or condition
of this Agreement shall be held to be invalid, illegal or unenforceable in any
respect by a court of competent jurisdiction, this Agreement shall be construed
without such term or condition. For purposes of any claim arising under this
Agreement, Employee hereby submits to the exclusive jurisdiction of the courts
of the State of New York and of the United States having jurisdiction in the
County of New York, State of New York, and agrees not to raise and waives any
objection to or defense based upon the venue of any such court or based upon
forum non conveniens. Each of the parties consents to service of process by
personal service in any manner in which notice may be delivered hereunder in
accordance with Section 18 below.
17. Counterparts: This Agreement may be executed in counterparts (including
by means of faxed signature pages), both of which shall be considered one and
the same Agreement, and this Agreement shall become effective when one or more
of such counterparts has been signed by each of the parties and delivered to the
other party.
18. Notices: All notices, requests and other communications made under this
Agreement must be in writing, and must be (i) mailed by registered or certified
mail, postage
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prepaid and return receipt requested, (ii) transmitted by facsimile with
evidence of receipt or (iii) delivered by hand to the party to whom such notice
is required or permitted to be given. If mailed, any such notice will be
considered to have been given three (3) business days after it was mailed, as
evidenced by the postmark. If delivered by facsimile, any notice will be
considered to have been given on the date of receipt, as evidenced by the
confirmation of facsimile receipt. If delivered by hand, any such notice will be
considered to have been given when received by the party to whom notice is
given, as evidenced by a written and dated receipt from the receiving party. The
mailing address for notice to either party will be the address set forth in the
first paragraph of this Agreement. Either party may change its mailing address
by providing written notice of any such change to the other party.
19. Section Headings; Interpretation; Person: Section headings are for
purposes of convenient reference only and will not affect the meaning or
interpretation of any provision of this Agreement. This Agreement shall be
construed without regard to any presumption or other rule requiring construction
against the party causing this Agreement to have been drafted. The word "person"
shall include a corporation, firm, partnership or other form of association or
entity.
20. Cooperation: Employee agrees that Employee will, at the sole cost and
expense of Tremont, cooperate with Tremont in the defense and/or prosecution of
any and all litigation either against and by Tremont or any of its affiliates or
subsidiaries with respect to matters arising when Employee was an employee of
Tremont.
This Document May Be Revoked By Employee Up to Seven Days After The
Document Is Signed.
WHEREFORE, in mutual consideration of these covenants, both parties agree
to be bound by the above from this day forth.
TREMONT ADVISERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
Date of
Execution: January 22nd, 2000 /s/ Xxxxxxxx Xxxxxxxxxx Xxxxxx XX
--------------------------------------------
Xxxxxxxx Xxxxxxxxxx Xxxxxx, II, individually
TREMONT (BERMUDA) LIMITED
(with respect to Section 2 only)
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
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