AGREEMENT
Exhibit
10.1
AGREEMENT
This
Agreement (this “Agreement”) is
executed as of October 6, 2008 (the “Effective Date”) by
and between Xxxxxx Xxxxxxxx (the “Executive”) and a21,
Inc. a corporation formed under the laws of the State of Delaware
(“a21”), and SuperStock Inc., a corporation formed under the laws of
the State of Florida (“SuperStock”) (collectively, the “Company”) (each, a
“Party” and,
collectively, the “Parties”).
WHEREAS, the Executive and the
Company entered into a written agreement effective as of January 3, 2006 (the
“Employment
Agreement”) relating to the employment of the Executive by the Company;
and
WHEREAS, the Executive has
resigned his employment with the Company and from each and every other position
he may hold with the Company and any of its subsidiaries as of the Termination
Date, as defined below, and the Executive and the Company wish to set forth
their respective rights, liabilities and obligations, if any, under the
Employment Agreement, as provided herein.
NOW, THEREFORE, in
consideration of the premises and the mutual covenants and agreements set forth
below, and for other good and valuable consideration, the receipt and
sufficiency of which the Parties hereby acknowledge, the Parties hereto agree as
follows:
W I T N E S S E T H
1. Termination of Employment,
Compensation.
(a) The
Executive’s employment with the Company terminated as of August 15, 2008 (the
“Termination
Date”). The Company will, in the aggregate, pay the Executive
continuing compensation (the “Compensation”) equal
to four (4) month’s (i.e., through December 15,
2008) salary paid in installments, at such intervals as the Company regularly
makes payments to employees generally, over such four (4) month period (the
“Compensation
Period”). The Executive acknowledges that he has already
received approximately one month of such payments. The continuing
compensation and other payments provided for in this Agreement shall immediately
terminate if Executive revokes this Agreement in accordance with the 7-day
revocation period provided for in Section 17 below. Executive
understands and agrees that the Company will deduct from any and all payments
pursuant to this Agreement all federal, state and/or local withholding taxes and
other deductions the Company is required by law to make from its wage payments
to employees. The Executive has already resigned effective as of
August 15, 2008 from each and every position he may have held at the Company and
its affiliates. In the event that the Executive fails to comply with
any material provision of this Agreement, the Compensation and other payments
pursuant to this Agreement shall be immediately cancelled.
(b) During
the Compensation Period, the Company shall provide the Executive with the same
benefits he received while employed by the Company in accordance with, and
subject to the terms and conditions of, the Company’s benefit plans and
policies.
(c) These
benefits shall include per normal bi-monthly payroll cycle: health coverage
benefit per bi-monthly pay cycle base premium and HSA contribution of $134.58
vision care benefit, dental care benefit, monthly life insurance coverage, and
short-term disability coverage. Notwithstanding the foregoing, the
Executive shall not be entitled to and shall not accrue or receive any 401(k),
pension or vacation benefits during or with regard to the Compensation
Period.
(d) The
Company shall reimburse the Executive $933.351 for business expenses incurred
prior to the Termination Date.
(e) If both a
Change in Control, as defined in the stock option agreement entered into
pursuant to the Company’s Incentive Plan, and a greater than Nine Million Dollar
($9,000,000) reduction in the amount of the Company’s outstanding promissory
notes occur after the Effective Date (collectively, the “Conditions”), then
the Company shall pay the Executive an amount determined as follows: (i) if both
of the Conditions are satisfied on or before October 15, 2008 – Forty Thousand
Dollars ($40,000), (ii) if both of the Conditions are satisfied after October
15, 2008 and on or before November 15, 2008 – Thirty Thousand Dollars ($30,000),
(iii) if both of the Conditions are satisfied after November 15, 2008 and on or
before December 15, 2008 – Fifteen Thousand Dollars ($15,000), and (iv) if the
Conditions are satisfied after December 15, 2008 - $0.00. The Company
shall pay the foregoing amount, if any, within ten (10) days after satisfaction
of both of the Conditions in accordance with its ordinary payroll
practices. The foregoing amount shall only be paid once.
(f) The
Company agrees that 30,555 unvested shares of restricted common stock shall vest
as of the Effective Date.
2. Consideration. Except
as specifically provided in this Agreement, the Employment Agreement is hereby
cancelled and terminated and none of the parties thereto shall have any
obligations to each other under the Employment Agreement, except as set forth in
this Agreement. Executive hereby acknowledges and agrees that the
provisions of the Employment Agreement relating to any severance payments that
Executive would be entitled to receive thereunder are cancelled and hereby
terminated, and that except as provided in this Agreement, Executive has no
legal or other entitlement to the arrangements described in the Employment
Agreement, and that the Company’s agreement to make such payments and provide
the other consideration specified in this Agreement, is sufficient consideration
for the general release, non-solicitation and non-competition terms set forth
respectively in this Agreement.
3. No Other
Payments. The Executive acknowledges that, as of the date
hereof, the Company has made or has agreed in this Agreement to make all
payments to the Executive as required under the Employment Agreement or
otherwise for wages that the Executive has earned through the Termination Date
hereof including bonuses, if any; and has reimbursed the Executive for all
expenses he incurred on behalf of the Company to the date hereof and was
entitled to be reimbursed for; and, except as provided in this Agreement, the
Company currently owes him no other payments of any kind and of any
nature. Without limiting the generality of the foregoing, except as
provided in this Agreement, the Executive hereby relinquishes any and all right
he may have under the Employment Agreement to receive cash payments, benefits,
shares and options.
4. General
Release.
(a) Except
for the obligations undertaken by the Company under this Agreement, Executive
hereby covenants and agrees and releases the Company, and all of its respective
Affiliates (as defined below), and their respective employees, officers,
directors and agents, from any and all debts, demands, actions, causes of
action, suits, dues, sum and sums of money, accounts, reckonings, bonds,
specialties, covenants, contracts, controversies, agreements, promises, doings,
omissions, variances, damages, extents, executions and liabilities and any and
all other claims of every kind, nature and description whatsoever (collectively,
“Claims”) the
Executive (or Executive’s respective successors and assigns) has or hereafter
can, shall or may have based on the Executive’s employment by the Company, any
events that may have occurred during the course of his employment or the
termination of that employment, or any other matters or claims of any kind or
nature from the beginning of the world to the Effective Date (including without
limitation, those arising out of or which may hereafter be claimed to arise out
of the Employment Agreement or Executive’s status as a shareholder of the
Company). Without limiting the generality of the foregoing, the scope
of this release includes (but is not limited to) a release of any and all claims
for unpaid wages or other compensation, breach of contract, wrongful discharge,
disability benefits, health and medical insurance, sick leave and employment
discrimination. Executive acknowledges and agrees that he is
specifically releasing any rights or claims he may have under: the Age
Discrimination in Employment Act (“ADEA”) (which
prohibits discrimination in employment based on age); Older Workers Benefit
Protection Act of 1990 (“OWBPA”) (which also
prohibits discrimination in employment based on age); Title VII of the Civil
Rights Act of 1964, which prohibits discrimination in employment based on race,
color, national origin, religion or sex; the Equal Pay Act, which prohibits
paying men and women unequal pay for equal work; Title I of the Americans with
Disabilities Act; ; and all other federal, state and local laws and regulations
prohibiting discrimination in employment. Executive acknowledges and
agrees that this release covers not only claims that he knows about, but also
claims that he might not know about. Executive covenants and agrees
that the release set forth in this Section 4 shall be binding upon his
successors and assigns. By signing this Agreement, Executive
acknowledges and agrees that he is forever giving up his rights to make any of
the claims or demands mentioned above. For purposes of this
Agreement, “Affiliate” means any entity that controls, is controlled by, or is
under common control with the Company.
(b) Except
for the obligations undertaken by the Executive under this Agreement, the
Company, for good and valuable consideration, the receipt of which is hereby
acknowledged, hereby forever remises, releases and discharges the Executive, and
his or its subsidiaries, divisions, stockholders, directors, officers, managers,
employees and agents, from all Claims (upon any legal or equitable theory,
whether contractual, common-law, statutory, federal, state local or otherwise)
whether known or unknown which against the Executive and
his successors, agents, servants, beneficiaries, attorneys or
assigns, the Company now has, may have, or ever had, from the beginning of the
world to the Effective Date, including, without limitation, all statutory, tort,
contract and other claims that were or could have been asserted and any and all
matters which in any way relate to or arise out of the Company’s relationship
with the Executive. This release covers claims the Company is or is
not currently aware of. This release includes, but is not limited to,
all claims for compensatory damages, punitive damages, attorneys’ fees, expenses
and costs or other compensation of any kind, including any claims which were or
might have been asserted by the Company or on its behalf.
5. No
Lawsuits. The Parties represent and warrant that they have not
filed (whether recently or otherwise) any claim or lawsuit against the other
Party or, in the case of the Company, its respective Affiliates, or any of their
employees, officers or directors, based on the actions of the other Party or the
Company’s Affiliates or any of their employees, officers or directors, in
connection with the Executive’s employment and the termination of his employment
with the Company. Each Party covenants and agrees that they will
never file a lawsuit asserting any claims that such Party has released in
Section 4 above.
6. Non-Solicitation;
Confidentiality and Non-Competition. Executive acknowledges
and agrees that (i) following provisions of the Employment Agreement each
survives this Agreement, (ii) such provisions are hereby reaffirmed and
incorporated herein by reference, and (iii) he will strictly comply with each
and every such provision: Sections 5 (Non-Solicitation), 6
(Confidentiality), 7 (Non-Competition) and 8 (Remedies).
7. Legal
Process. If Executive is served with legal process or other
request purporting to require Executive to testify and/or produce documents at a
legal proceeding involving any of the Company Entities, Executive shall (i)
refuse to provide testimony or documents absent a subpoena, court order or
similar process from a regulatory agency; (ii) promptly notify the Company of
such legal process or other request; and (iii) promptly deliver to the Company a
copy of all legal papers and documents served upon Executive and – prior to
producing such documents – any and all documents that are responsive to such
legal process or request.
8. Non-Disparagement.
(a) From and
after the Termination Date for a period of six months, except to the extent
required by law or under legal process, the Executive agrees not to (i) in any
way publicly disparage the Company, its Affiliates or their respective
shareholders, officers, directors, or employees, (ii) act in a manner reasonably
likely to cause embarrassment or public humiliation to such entities or persons,
or (iii) make any public statement or take any action that is reasonably likely
to be adverse, inimical or otherwise detrimental to the interests of such
entities or persons.
(b) From and
after the Termination Date for a period of six months, except to the extent
required by law or under legal process, the Company agrees to use commercially
reasonable efforts to cause its directors and executive officers not to (i) in
any way publicly disparage the Executive, (ii) act in a manner reasonably likely
to cause embarrassment or public humiliation to the Executive, or (iii) make any
public statement or take any action that is reasonably likely to be adverse,
inimical or otherwise detrimental to the interests of the
Executive.
9. Non-Admission of
Liability. This Agreement and the release contained herein
shall not be construed as evidence nor an admission of any wrongdoing or
violation of any law, regulation, rule or agreement.
10. Equitable Remedies and
Waiver. Each Party recognizes that irreparable injury will result to the
other Party if a Party breaches any provision of this Agreement, and the Parties
agree that if any Party should engage, or directly cause any other person or
entity to engage, in
11. any act
in violation of any provision of this Agreement, then the non-breaching Party
shall be entitled, in addition to any other remedies, damages and relief as may
be available under applicable law, to seek an injunction prohibiting the
breaching Party from engaging in any such act or specifically enforcing this
Agreement, as the case may be. It is understood and agreed that no
failure or delay by the non-breaching Party in exercising any right, power or
privilege under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any right, power or privilege under this
Agreement.
12. Severability and Blue
Penciling. If any provision of this Agreement is held to be
invalid, the remaining provisions shall remain in full force and
effect. However, if any court determines that any covenant in this
Agreement or incorporated herein by reference from the Employment Agreement,
including, without limitation, any restrictive covenant or any part thereof, is
unenforceable because the duration, geographic scope or restricted activities
thereof are overly broad, then such provision or part thereof shall be modified
by reducing the overly broad duration, geographic scope or restricted activities
to the maximum extent enforceable by law and, in such modified form, such
provision shall be enforced.
13. Choice of Law and
Forum. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Florida, without reference to its
conflicts of laws principles. The Parties hereby irrevocably consent
to the exclusive jurisdiction of the state or federal courts sitting in
Jacksonville, Florida in connection with any controversy or claim arising out of
or relating to this Agreement, Executive’s employment with the Company and/or
the termination of such employment, and hereby waive any claim that such forum
is inconvenient or otherwise improper. Each Party hereby agrees that
any such court shall have in
personam jurisdiction over it and consents to service of process in any
matter authorized by Florida law.
14. Successors and
Assigns. This Agreement shall be binding upon and shall inure
to the benefit of the Parties and their respective heirs, successors,
representatives and assigns, provided, however, that this Agreement is
assignable to any legal successor of the Company but this Agreement may not be
assigned by Executive. Nothing herein limits the right of Executive’s
estate to receive all consideration provided for in this Agreement should
Executive become deceased during the Compensation Period.
15. Return of Company
Property. The Executive acknowledges and agrees that he has
delivered to the Company, without retaining any copies thereof, all evidence of
the Confidential Information, including, without limitation, all notes,
memoranda, records, files and other documents. The Executive hereby
further acknowledges and agrees that he has returned to the Company all other
property of the Company or its respective affiliates that was in the possession
or control of the Executive.
16. Entire
Agreement. With the exception of (i) the terms of the a21
stock incentive plan and (ii) the terms of the Employment Agreement that survive
the termination of Executive’s employment with the Company pursuant to Section 6
above, which terms are hereby reaffirmed by Executive and incorporated herein in
full by this reference, this Agreement constitutes the entire understanding and
agreement between the Executive, the Company with regard to all matters
contained herein, and supersedes all prior agreements and understandings among
the Parties with respect to its subject matter. This Agreement may
not be changed, modified, superseded or canceled except by a written agreement
that has been signed by the Executive and by a duly authorized officer of the
Company.
17. Interpretation. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement. The language in all parts of this Agreement shall in all
cases be construed according to its fair meaning, and not strictly for or
against any Party. In this Agreement, unless the context otherwise
requires, the masculine, feminine and neuter genders and the singular and the
plural include one another.
18. Period for Review and Right
to Revoke. Company and Executive acknowledge and agree that,
(i) Executive has
had 21 days from the receipt of this Agreement in which to consider
its terms (including, without limitation, Executive’s release and waiver of any
and all claims under the ADEA) before executing it, (ii) changes to the terms of
this Agreement, whether material or immaterial, will not restart this 21-day
period, (iv) Executive will have seven (7) days after Executive’s execution of
this Agreement in which to revoke Executive’s acceptance of this Agreement, in
which event a written notice of such revocation must be received by the Company,
on or before 5:00 p.m. (Eastern Time) on the seventh (7th) day,
and (v) this Agreement will not become effective and enforceable until the seven
(7) day revocation period has expired without revocation of the Agreement by
Executive.
19. Voluntary and Knowing
Execution of Agreement. Executive acknowledges that he has
been encouraged by the Company and its agents to and has had an adequate
opportunity to consult with an attorney of his own choosing before signing this
Agreement. By signing this Agreement, Executive acknowledges that (i) he has
read this Agreement thoroughly, (ii) Executive fully understands the terms of
this Agreement including, without limitation, the significance and consequences
of the General Release in paragraph 4 above, (iii) Executive is executing this
Agreement in exchange for consideration in addition to anything of value to
which he/she is already entitled, and (iv) Executive is fully satisfied with the
terms of this Agreement and is executing this Agreement voluntarily, knowingly
and willingly and without duress.
20. Execution in
Counterparts. This Agreement may be signed in counterparts, each of which
shall be deemed an original and all of which taken together will constitute one
and the same instrument.
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In WITNESS WHEREOF, the
Parties have executed, or caused to be executed by a duly authorized
representative, this Agreement as of the Effective Date.
SuperStock
Inc .
By:
Name: Xxxx Xxxxxxxx
Title: Chief Executive
Officer
Date:
EXECUTIVE
Xxxxxx
Xxxxxxxx
Date:
