Exhibit 10.7
SETTLEMENT AND GENERAL RELEASE AGREEMENT
THIS SETTLEMENT AND GENERAL RELEASE AGREEMENT (the
"Agreement") is made and entered into as of the 20th day of November, 2001
by and between Xxxxxx Xxxxxxx ("AE"), an individual residing at 000 Xxxxx Xxx
Xxxxxx, Xxxxxxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000, Vizacom Inc., a Delaware
corporation (the "Company") and Renaissance Multimedia, Inc., a Delaware
Corporation ("Renaissance" and together with AE and the Company, 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, AE has been employed as a Vice President of the
Company and as President of Renaissance;
WHEREAS, the Company desires to accept AE's resignation as an
employee and officer of the Company and Renaissance; and
WHEREAS, the Parties now desire to settle fully and finally
claims AE may have against the Company and Renaissance and that the Company
and Renaissance may have against AE, including, but not limited to, any matters
arising out of his employment with the Company and Renaissance 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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AE hereby resigns as an officer and employee of the
Company and Renaissance. AE agrees to return to the Company and Renaissance all
assets, equipment or other items which in the possession of AE and which are
owned by the Company not later than the date hereof.
3. Consideration to AE.
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(a) The Company shall pay to AE his unpaid reasonable
expenses incurred in the normal course of the fulfillment of his duties as
an officer of the Company and Renaissance upon submission of customary
documentation relating thereto, including the $3,079.67 incurred by AE on behalf
of Renaissance on a credit card for which he is personally liable.
(b) The Company shall issue to AE the promissory Note
in the form attached as Exhibit A hereto.
(c) The Company shall issue to AE 40,000 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 AE 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, AE shall execute and deliver to the Company an investment
representation letter dated the date hereof in the form of Exhibit B hereto and
a Lock-Up Agreement in the form of Exhibit C hereto. The Company shall deliver
to AE certificates evidencing the ownership of such Shares no later than 20 days
after the date hereof. The Company and AE shall execute and deliver the
Registration Rights Agreement in the form of Exhibit D hereto.
(d) The Company shall pay to AE within five (5) days
of the date hereof all salary payable to AE that has been accrued through the
date hereof.
(e) The Company shall continue to make all payments
with respect to health insurance for AE's benefit comparable to that
coverage made available to the Company's executive officers through February
2002. Thereafter, the Company will provide COBRA benefits to AE at AE's sole
cost and expense.
4. Complete Release.
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(a) As a material inducement to the Company and
Renaissance to enter into this Agreement, AE hereby waives, releases and
discharges the Company and Renaissance their subsidiaries and 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 AE 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. Nothing in this Section 4(a)
limits, waives, releases or impairs any obligation which the Company or
Renaissance may have to indemnify AE pursuant to the certificate of
incorporation or bylaws thereof.
(b) As a material inducement to AE to enter into this
Agreement, the Company, Renaissance and their subsidiaries hereby
irrevocably and unconditionally waive, release and discharge AE, 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, 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
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limited to, any claim that the Company or Renaissance 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 material
willful misconduct, gross negligence or fraud committed by AE, or any violation
by AE 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. As of the date hereof, the
Company and Renaissance represent that they are not aware of any material
willful misconduct, gross negligence or fraud on the part of AE.
(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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AE 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, Renaissance and their 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 and Renaissance, as set forth in Section 4 above;
(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.ss.621 et seq.) that may
arise after the date of this Agreement is executed are not waived.
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6. Non-Disclosure.
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AE shall not disclose or deliver to any other party any
trade secrets or confidential or proprietary information gained through
employment with the Company or Renaissance, 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,
Renaissance or any subsidiary, affiliate or division thereof. AE 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 and
Renaissance 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 (in which case AE shall not be
subject to the provisions of this section in respect of any statement made by AE
to rebut any false statement made by the Company), 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
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 or Renaissance'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.
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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.
(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.
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15. Non-Solicitation and Non-Interference.
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For a period of twelve (12) months after the date of
this Agreement, AE shall not:
(a) knowingly for the his own account or for the
account of any other person or entity interfere with the Company's,
Renaissance's or any of their subsidiaries' or affiliate's business relationship
with any of its customers, accounts, employees, principals, partners,
stockholders, sales representatives, consultants or trainees; or
(b) employ or otherwise engage, or solicit, entice or
induce on behalf of the AE or any other person or entity, for the purpose
of participation in a business substantially similar to the business of
Renaissance, the services, retention or employment of any person who has been an
employee, principal, partner, stockholder, sales representative, trainee,
consultant to or agent of the Company, Renaissance or any of their subsidiaries
or affiliates.
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.
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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
November 20, 2001 November 20, 2001
VIZACOM INC.
By: /s/ Xxxx Xxxxxxxxxx /s/ Xxxxxx Xxxxxxx
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Name: Xxxx Xxxxxxxxxx Xxxxxx Xxxxxxx
Title: CFO
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