Exhibit (e)(13)
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("the Agreement") is made and entered into
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this 16th day of August, 2001, by and between XxxxXxxxxx.Xxx, Inc., a Georgia
corporation ("HeadHunter"), and Xxxxx Xxxxx ("Employee"), a resident of the
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state of Georgia.
Witnesseth:
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WHEREAS, HeadHunter desires to employ/continue to employ Employee in the
capacities and on the terms and conditions set forth below and Employee desires
to continue employment with HeadHunter on the terms and conditions set forth
below;
WHEREAS, Employee will have knowledge and access to knowledge and
information regarding HeadHunter's trade secrets and confidential information,
by virtue of his employment with HeadHunter, which if used by Employee, in
contravention of this Agreement, would materially, adversely and irreparably
damage HeadHunter;
NOW THEREFORE, both parties, in consideration of the mutual and
exchanged promises and agreements contained herein and of wages paid and
services rendered hereunder, hereby agree as follows:
1. Offer and Acceptance of Employment. As of the date of this
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Agreement, as set forth above (the "Effective Date"), Employee shall continue to
serve as the Chief Financial Officer of HeadHunter, though this position and
title may be changed at any time by HeadHunter as HeadHunter or its needs grow
or change. HeadHunter agrees to employ Employee and Employee accepts such
employment for the period beginning as of the Effective Date and ending on March
31, 2002 (the "Term"), unless otherwise terminated pursuant to Section 4 herein.
Employee agrees to accept such employment and to perform the duties and services
specified herein, upon the terms and conditions hereinafter stated.
2. Duties. Employee agrees to discharge faithfully, diligently and to
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the best of his ability during the term hereof the duties normally incidental to
the position of Chief Financial Officer. Employee agrees to serve in such other
capacity and perform such other duties as HeadHunter may reasonably direct from
time to time. Employee agrees that, during the term of this Agreement, Employee
will devote Employee's entire business time, skill, energy, knowledge and best
efforts to the business and affairs of HeadHunter, subject to Employee
continuing to serve as advisor and/or director for non-competitive companies and
subject to Employee being allowed reasonable time to conduct interviewing
activities for employment. During his employment with HeadHunter, Employee will
not engage, directly or indirectly, in any other business, whether or not
similar to that of HeadHunter, except with the written consent of the Board.
Employee shall be expected to commit whatever time is necessary for the normal
responsibilities of HeadHunter's management.
3. Compensation.
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3.1 Base Salary. While employed hereunder, Employee shall be
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paid a salary at the annual rate of One Hundred Seventy Five Thousand Dollars
($175,000), less withholding for taxes and deductions for other appropriate
items ("Base Salary"). Employee's Base Salary shall be paid in approximately
equal semi-monthly installments.
3.2 Bonus. In addition to the Base Salary, while employed
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hereunder when earned, Employee shall be eligible to receive a bonus of up to
Twelve Thousand Five Hundred Dollars ($12,500) per quarter, for the quarters
ending September 30, 2001 and December 31, 2001, in accordance with and pursuant
to the terms and conditions set forth in the Standard Executive Incentive Bonus
Plan as modified by this Agreement. Employee shall be eligible for the bonuses
set forth herein, only if he is employed by HeadHunter during the entire
respective quarter, earns such bonus, and otherwise complies fully with this
Agreement; provided, however, that Employee shall be eligible to receive a bonus
for the quarter ending March 31, 2002, if he remains employed during the entire
quarter, and executes a Separation Agreement and General Release, substantially
similar in form to that attached hereto as Exhibit A.
3.3 Benefits. During the Employment Period, Employee shall be
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eligible to participate in employee benefit plans made available to the majority
of similarly situated employees of HeadHunter, subject to the terms, conditions
and eligibility requirements of each benefit plan.
4. Term and Separation. Notwithstanding anything contained
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herein to the contrary, this Agreement may be terminated at any time by either
party for any reason in accordance with the following terms:
4.1 Termination Upon Death or Total Disability. This agreement
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shall terminate immediately upon Employee's death. This Agreement may also be
terminated by HeadHunter by reason of "Total Disability" upon at least thirty
(30) days' notice to Employee. As used herein, "Total Disability" means illness
or other physical or mental disability of Employee which shall continue for a
period of at least one hundred and eighty (180) days in the aggregate during any
twelve (12) month period during Employee's employment with HeadHunter, which
such illness or disability shall make it impossible or impracticable for
Employee to perform Employee's duties and responsibilities hereunder with
whatever reasonable accommodation may be required by applicable law. If a
disagreement arises between Employee and HeadHunter as to whether Employee is
suffering from "Total Disability", as defined herein, the question of Employee's
disability shall be determined by a physician designated by a majority of
HeadHunter's Board of Directors. In the event of Employee's death or Total
Disability, HeadHunter shall be obligated to pay to Employee's estate Employee's
Base Salary through the Term and shall pay Employee's estate the Severance
Payment referenced in Section 4.3 yet shall otherwise have no other payment
obligation or other liability to Employee or his estate under this Agreement.
4.2 Termination For Cause. HeadHunter may, with written notice
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to Employee, discharge Employee for Cause and terminate this Agreement without
any further liability hereunder to Employee or his estate, other than the
obligation to pay to Employee his base salary accrued to the date of termination
and accrued but unused vacation. For purposes of this Agreement, a discharge for
"Cause" shall mean a discharge resulting from a determination by HeadHunter that
Employee:
(a) has failed or refused to perform his duties
under this Agreement or to obey lawful directives from the Board of Directors of
HeadHunter or its designee(s);, if not remedied within ten (10) business days
after HeadHunter's providing written notice thereof which notice must identify
in detail the alleged failure and a reasonable cure ("Written Notice") or if the
failure or refusal occurs after one (1) such notice has been provided;
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(b) has failed to abide by HeadHunter policies,
rules, procedures or directives, if not remedied within ten (10) business days
after HeadHunter's providing Written Notice thereof or if the failure occurs
after one (1) such notice has been provided;
(c) has acted in a grossly negligent manner, or
has engaged in intentional misconduct with respect to HeadHunter which results
or could have resulted in material harm to HeadHunter or to its reputation or
standing among customers, suppliers, employees or other business relationships;
(d) has committed or been convicted of, or
plead guilty or nolo contendere (or any similar plea or admission) to, a felony
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or a criminal act involving fraud, dishonesty or other moral turpitude;
(e) has engaged in the use of drugs or alcohol
while on HeadHunter property or during regular business hours;
(f) has engaged in employee misconduct,
including but not limited to, breach of fiduciary duty, theft, fraud,
dishonesty, embezzlement, intentional violation of securities laws, violation of
employment-related laws (including but not limited to laws prohibiting
discrimination in employment), violation of non-competition, non-solicitation or
confidentiality agreements or this Agreement, falsification of employment
applications or other business records, insubordination, habitual absenteeism,
or other unethical activity; or
(g) has breached this Agreement or any other
material written agreement between Employee and HeadHunter.
If HeadHunter terminates Employee's employment for Cause hereunder, HeadHunter
shall be obligated to pay Employee's prorated Base Salary only through the
actual effective date of termination and shall have no other payment obligation
or other liability to Employee under this Agreement or otherwise. Unless
specifically required to be paid by law, other compensation and benefits will
not be provided or paid after termination.
4.3 Termination Without Cause or at Change of Control.
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HeadHunter may terminate Employee's employment at any time without Cause by
providing Employee with written notice of the termination. If Employee's
employment hereunder is terminated without Cause or in connection with and
following a Change of Control (as defined herein), Employee shall be entitled to
payment of Employee's Base Salary through the Term. In addition, if Employee
executes a Separation Agreement and General Release, substantially similar in
form to that attached hereto as Exhibit A, Employee shall be eligible to receive
an additional payment equal to Seventy Five Thousand Dollars ($75,000)
("Severance Payment") and such payment shall be made within two (2) weeks from
HeadHunter's receipt of the executed Separation Agreement and General Release.
If Employee executes the Separation Agreement and General Release, HeadHunter
agrees to execute the mutual release contained therein. Such release may be
executed with duplicate originals. HeadHunter shall have no other payment
obligation under this Agreement or otherwise. Unless specifically required to be
paid by law, other compensation and benefits will not be provided or paid after
termination. As used herein, "Change of Control" shall mean a business
transaction, pursuant to which all or substantially all of the stock of
HeadHunter is sold or transferred to person or entity who is not an affiliate of
HeadHunter, provided that such transaction is executed and closes prior to March
31, 2002 and Employee has not resigned or been terminated for Cause before March
31, 2002
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4.4 Resignation. Employee may resign from employment hereunder
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at any time by providing HeadHunter with written notice at least one (1) month
in advance of the effective date of the resignation. HeadHunter may, at its sole
discretion, elect to pay Employee salary and bonus, if applicable, in lieu of
any part, or all, of the notice period and shall have no other payment
obligation under this Agreement or otherwise (as long as Employee has been paid
for time worked). HeadHunter will have no further obligation if Employee resigns
other than to pay Employee for compensation already earned, and Employee
understands and agrees that Employee will still be subject to the Section 5 of
this Agreement.
5. Restrictions on Conduct of Employee.
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5.1 Definitions. The following capitalized terms used in this
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Section 5 shall have the meanings assigned to them below, which definitions
shall apply to both the singular and the plural forms of such terms:
"Competitive Services" means an Internet based job
and/or resume database service.
"Competitor" means any Person engaged, wholly or in
part, in Competitive Services.
"Confidential Information" means all information
regarding HeadHunter, its activities, business or clients that is the subject of
reasonable efforts by HeadHunter to maintain its confidentiality and that is not
generally disclosed by practice or authority to persons not employed by
HeadHunter, but that does not rise to the level of a Trade Secret. "Confidential
Information" shall include, but is not limited to, financial plans and data
concerning HeadHunter; management planning information; business plans;
operational methods; market studies; marketing plans or strategies; product
development techniques or plans; customer lists; details of customer contracts;
current and anticipated customer requirements; past, current and planned
research and development; business acquisition plans; and new personnel
acquisition plans. "Confidential Information" shall not include information that
has become generally available to the public by the act of one who has the right
to disclose such information without violating any right or privilege of
HeadHunter. This definition shall not limit any definition of "confidential
information" or any equivalent term under state or federal law.
"Determination Date" means the date of termination
of Employee's employment with HeadHunter for any reason whatsoever or any
earlier date (during the Term) of an alleged breach of the restrictive covenants
by Employee.
"Person" means any individual or any corporation,
partnership, joint venture, limited liability company, association or other
entity or enterprise.
"Principal or Representative" means a principal,
owner, partner, shareholder, joint venturer, investor, member, trustee,
director, officer, manager, employee, agent, representative or consultant.
"Protected Customers" means any Person to whom
HeadHunter has sold its services or solicited or attempted to sell its services
during the two (2) years prior to the Determination Date.
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"Protected Employees" means employees of HeadHunter
who were employed by HeadHunter at any time within six (6) months prior to the
Determination Date.
"Restricted Period" means the Employment Period and a
period of eighteen (18) months thereafter.
"Trade Secret" means all information, without regard
to form, including, but not limited to, technical or nontechnical data, a
formula, a pattern, a compilation, a program, a device, a method, a technique, a
drawing, a process, financial data, financial plans, product plans, distribution
lists or a list of actual or potential customers, advertisers or suppliers which
is not commonly known by or available to the public and which information: (A)
derives economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use; and (B) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy.
Without limiting the foregoing, Trade Secret means any item of confidential
information that constitutes a "trade secret(s)" under the common law or
statutory law of the State of Georgia.
5.2 Restrictive Covenants. The parties acknowledge: (A) that
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Employee's services under this Agreement require special expertise and talent in
the provision of Competitive Services and that Employee will have substantial
contacts with customers, suppliers, advertisers and vendors of HeadHunter; (B)
that pursuant to this Agreement, Employee will be placed in a position of trust
and responsibility and he will have access to a substantial amount of
Confidential Information and Trade Secrets and that HeadHunter is placing him in
such position and giving him access to such information in reliance upon his
agreement not to compete with HeadHunter during the Restricted Period; (C) that
due to his management duties, Employee will be the repository of a substantial
portion of the goodwill of HeadHunter and would have an unfair advantage in
competing with HeadHunter; (D) that due to Employee's special experience and
talent, the loss of Employee's services to HeadHunter under this Agreement
cannot reasonably or adequately be compensated solely by damages in an action at
law; (E) that Employee is capable of competing with HeadHunter; and (F) that
Employee is capable of obtaining gainful, lucrative and desirable employment
that does not violate the restrictions contained in this Agreement. In
consideration of the compensation and benefits being paid and to be paid by
HeadHunter to Employee hereunder, Employee agrees as follows:
(a) Restriction on Disclosure and Use of
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Confidential Information and Trade Secrets. Employee understands and agrees that
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the Confidential Information and Trade Secrets constitute valuable assets of
HeadHunter and its affiliated entities, and may not be converted to Employee's
own use. Accordingly, Employee hereby agrees that Employee shall not, directly
or indirectly, at any time during the Restricted Period reveal, divulge, or
disclose to any Person not expressly authorized by HeadHunter any Confidential
Information, and Employee shall not, directly or indirectly, at any time during
the Restricted Period use or make use of any Confidential Information in
connection with any business activity other than that of HeadHunter. Throughout
the term of this Agreement and at all times after the date that this Agreement
terminates for any reason, Employee shall not directly or indirectly transmit or
disclose any Trade Secret of HeadHunter to any Person, and shall not make use of
any such Trade Secret, directly or indirectly, for himself or for others,
without the prior written consent of HeadHunter. The parties acknowledge and
agree that this Agreement is not intended to, and does not, alter either
HeadHunter's rights or Employee's obligations under any state or federal
statutory or common law regarding trade secrets and unfair trade practices.
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Anything herein to the contrary notwithstanding, Employee shall not be
restricted from disclosing or using Confidential Information that is required to
be disclosed by law, court order or other legal process; provided, however, that
in the event disclosure is required by law, Employee shall provide HeadHunter
with prompt notice of such requirement so that HeadHunter may seek an
appropriate protective order prior to any such required disclosure by Employee.
(b) Nonsolicitation of Protected Employees.
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Employee understands and agrees that the relationship between HeadHunter and
each of its Protected Employees constitutes a valuable asset of HeadHunter and
may not be converted to Employee's own use. Accordingly, Employee hereby agrees
that during the Restricted Period Employee shall not directly or indirectly on
Employee's own behalf or as a Principal or Representative of any Person or
otherwise solicit or induce any Protected Employee with whom Employee has
worked, or whom Employee has supervised, to terminate his or her employment
relationship with HeadHunter or to enter into employment with any other Person.
(c) Restriction on Relationships with Protected
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Customers. Employee understands and agrees that the relationship between
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HeadHunter and each of its Protected Customers constitutes a valuable asset of
HeadHunter and may not be converted to Employee's own use. Accordingly, Employee
hereby agrees that, during the Restricted Period, Employee shall not, without
the prior written consent of HeadHunter, directly or indirectly, on Employee's
own behalf or as a Principal or Representative of any Person, solicit, divert,
take away or attempt to solicit, divert or take away a Protected Customer for
the purpose of providing or selling Competitive Services; provided, however,
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that the prohibition of this covenant shall apply only to Protected Customers
with whom Employee had Material Contact on HeadHunter's behalf during the twelve
(12) months immediately preceding the termination of his employment hereunder.
For purposes of this Agreement, Employee had "Material Contact" with a Protected
Customer if (a) he had business dealings with the Protected Customer on
HeadHunter's behalf; (b) he was responsible for supervising or coordinating the
dealings between HeadHunter and the Protected Customer; or (c) he obtained Trade
Secrets or Confidential Information about the Protected Customer as a result of
his association with HeadHunter.
The parties agree that the term and scope of the covenants set forth in this
Agreement are reasonable and are necessary to protect the legitimate business
interests of HeadHunter. The provisions do not prevent Employee from competing
with HeadHunter with respect to any non-Internet-based business or any
Internet-based business that does not engage in Competitive Services.
5.3 Enforcement of Restrictive Covenants.
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(a) Rights and Remedies Upon Breach. In the
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event Employee breaches, or threatens to commit a breach of, any of the
provisions of the restrictive covenants, HeadHunter shall have the following
rights and remedies, which shall be independent of any others and severally
enforceable, and shall be in addition to, and not in lieu of, any other rights
and remedies available to HeadHunter at law or in equity:
(i) the right and remedy to enjoin,
preliminarily and permanently, Employee from violating or threatening to violate
the Restrictive Covenants and to have the Restrictive Covenants specifically
enforced by any court of competent jurisdiction, without necessity of posting
bond, it being agreed that any breach or threatened breach of the Restrictive
Covenants would cause irreparable injury to HeadHunter and that money damages
would not provide an adequate remedy to HeadHunter; and
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(ii) the right and remedy to require
Employee to account for and pay over to HeadHunter all compensation, profits,
monies, accruals, increments or other benefits derived or received by Employee
as the result of any transactions constituting a breach of the Restrictive
Covenants.
(b) Severability of Covenants. Employee
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acknowledges and agrees that the Restrictive Covenants are reasonable and valid
in time and scope and in all other respects. The covenants set forth in this
Agreement shall be considered and construed as separate and independent
covenants. Should any part or provision of any covenant be held invalid, void or
unenforceable in any court of competent jurisdiction, such invalidity, voidness
or unenforceability shall not render invalid, void or unenforceable any other
part or provision of this Agreement. If any portion of the foregoing provisions
is found to be invalid or unenforceable by a court of competent jurisdiction
because its duration, the territory, the definition of activities or the
definition of information covered is considered to be invalid or unreasonable in
scope, the invalid or unreasonable term shall be redefined, or a new enforceable
term provided, such that the intent of HeadHunter and Employee in agreeing to
the provisions of this Agreement will not be impaired and the provision in
question shall be enforceable to the fullest extent of the applicable laws.
6. Notices. Any notice provided for in this Agreement must be in
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writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested) or sent by reputable overnight
courier service (charges prepaid) to the recipient at the address below
indicated:
If to HEADHUNTER:
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XXXXXXXXXX.XXX, Inc.
[
]
If to Employee:
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Xxxxx Xxxxx
000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
7. General Provisions.
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7.1 Severability. Whenever possible, each provision of this
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Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed,
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construed and enforced in such jurisdiction as if such invalid illegal or
unenforceable provision had never been contained herein.
7.2 Complete Agreement. This Agreement embodies the complete
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agreement and understanding among the parties and supercede and preempt any
prior understanding, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
7.3 Counterparts. This Agreement may be executed in separate
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counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreements.
7.4 Successors and Assigns. Except as otherwise provided
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herein, this Agreement shall bind and inure to the benefit of and be enforceable
by Employee, HeadHunter and their respective successors and assigns; provided
that the rights and obligations of Employee under this Agreement shall not be
assignable.
7.5 Choice of Law. This Agreement shall be deemed to be made
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in and shall in all respects be interpreted, construed and governed by and in
accordance with the laws of the State of Georgia (without giving effect to the
conflict of law principles thereof). No provision of this Agreement or any
related documents shall be construed against, or interpreted to the disadvantage
of, any party hereto by any court or any governmental or judicial authority by
reason of such party having, or being deemed to have, structured or drafted such
provision.
7.6 Remedies. Each of the parties to this Agreement will be
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entitled to enforce its rights under this Agreement specifically, to recover
damages and costs (including attorneys' fees) caused by any breach of any
provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and that any
party may in its sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance and/or other injunctive relief
in order to enforce or prevent any violations of the provisions of this
Agreement.
7.7 Amendment and Waiver. The provisions of this Agreement may
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be amended and waived only with the prior written consent of HeadHunter and
Employee.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first written above.
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Its: CEO
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/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
SIGNATURE PAGE TO EMPLOYMENT AGREEMENT
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ATTACHMENT A
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release ("Agreement") is entered
into by and between _____________. ("Company") and _______ ("Employee") this ___
day of ____, 200_.
WHEREAS, Employee's employment with Company terminated effective
_______;
WHEREAS, Company and Employee desire in this Agreement to resolve all
issues between them including, without limitation, issues relating to or arising
from (i) the formation of the employment relationship, (ii) Employee's
employment with Company, and (iii) termination of the employment relationship
between Employee and Company;
NOW THEREFORE, in consideration of the promises and covenants set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. TERMINATION OF EMPLOYMENT.
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Employee acknowledges that his employment relationship with Company and
its affiliates terminated on _________, and that, upon receipt of the Base
Salary (less standard deductions) through the Term and any Bonus earned (as
those capitalized terms are defined in the Employment Agreement), he has been
paid all compensation due him through the date of the termination of his
employment, whether in the form of salary, bonus or benefits of employment, and
that there are no longer any agreements in effect between Employee and Company
except for this Agreement and the post-termination or resignation obligations
contained [in paragraphs _ of the Employment Agreement dated ___], which shall
remain in full effect as written therein.
2. SEVERANCE COMPENSATION.
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In consideration of Employee's promises, covenants and releases set
forth in this Agreement, Company hereby agrees to pay to Employee a sum equal to
the Severance Payment (as defined in the Employment Agreement dated _____,
payment to be made within two (2) weeks from Company's receipt of an original
counterpart of this Agreement properly executed by Employee.
Employee agrees he is not entitled to receive, and will not claim, any
additional compensation, wages, bonuses or benefits, other than what is
expressly set forth herein, and hereby expressly waives any right to additional
compensation, wages, bonuses, and benefits. Employee further acknowledges and
agrees that the consideration from Company described herein constitutes
consideration to which he is otherwise not entitled unless he signs this
Agreement, and that such additional consideration is given in exchange for
Employee signing this Agreement.
3A. RELEASE AND COVENANT NOT TO XXX BY EMPLOYEE.
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In consideration of Company's promises and covenants herein, Employee,
for himself, his heirs, executors, administrators and assigns, now and forever,
hereby releases and discharges Company, its affiliates, subsidiaries,
shareholders, directors, officers, agents, employees, attorneys, successors and
assigns (hereinafter "Company Releasees") from all liabilities, claims,
allegations and causes of action whatsoever, known or unknown, suspected or
unsuspected, that Employee may now have or may later claim to have had arising
out of anything that has occurred up through the date hereof, including, but not
by way of limitation, claims relating to or arising from (i) the formation of
the employment relationship, (ii) Employee's employment with Company, or (iii)
termination of the employment relationship; provided, however, that Employee
reserves and does not waive or release any rights he may have under this
Agreement or to receive benefits under any Company insurance or other benefit
plans that either have accrued or vested prior to the date hereof. Without
limiting the generality of the foregoing, Employee hereby releases any claim or
suit for wrongful discharge or any claim under either state or federal
employment or discrimination laws, including without limitation Title VII of the
Civil Rights Act of 1964, 42 U.S.C. ss.2000e et seq., The Americans with
Disabilities Act, 42 U.S.C. ss.12101 et seq., the Equal Pay Act, 29 U.S.C.
ss.ss.201, the Fair Labor Standards Act, and the Family and Medical Leave Act,
and any other state or federal law or regulation relating to employment
discrimination, emotional and/or mental distress, defamation, privacy, breach of
contract, and/or workers' compensation, as well as any claims or causes of
action based on, or arising out of prior agreements between Employee and
Company. Employee shall forever refrain and forebear from commencing,
instituting or prosecuting any lawsuit, action, claim, or proceeding in or
before any court, regulatory, governmental, arbitral or other authority against
Company Releasees by naming or joining such Company Releasees as parties to
collect or enforce any claims or causes of action which are released and
discharged hereby.
3B. RELEASE AND COVENANT NOT TO XXX BY COMPANY
In consideration of Employee's promises and covenants herein, Company,
for itself, its successors and assigns, now and forever, hereby releases and
discharges Employee, and Employee's heirs, attorneys, successors and assigns
(hereinafter "Employee Releasees") from all liabilities, claims, allegations and
causes of action whatsoever, known or unknown, suspected or unsuspected, that
Company may now have or may later claim to have had arising out of anything that
has occurred up through the date hereof, including, but not by way of
limitation, claims relating to or arising from (i) the formation of the
employment relationship, (ii) Company's employment of Employee, or (iii)
termination of the employment relationship. Company shall forever refrain and
forebear from commencing, instituting or prosecuting any lawsuit, action, claim,
or proceeding in or before any court, regulatory, governmental, arbitral or
other authority against Employee Releasees by naming or joining such Employee
Releasees as parties to collect or enforce any claims or causes of action which
are released and discharged hereby.
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4. NO PRIOR ASSIGNMENTS.
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Employee hereby represents and warrants that he has not heretofore
assigned or transferred or purported to assign or transfer to any person or
entity any claim or matter herein released, disclaimed, discharged or terminated
by Employee. In the event of such assignment or transfer of any claims or other
matters herein released, disclaimed, discharged or terminated, Employee agrees
to indemnify and hold harmless Company from and against any liability or loss,
and for any cost or expense, including attorneys' fees, or judgment or
settlement arising out of or occasioned by any such assignment or transfer.
5. EFFECTIVE DATE AND BREACH
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This Agreement shall become effective and enforceable immediately
following the date of execution of this Agreement. The Agreement may not be
revoked after that time. Employee agrees that if he ever attempts to rescind,
revoke or annul this Agreement after the date of execution or if he attempts at
any time to make, assert or prosecute any claim(s) covered by the release and
covenant not to xxx contained in Paragraph 3 above, he will, prior to filing or
instituting such claim(s), return to Company any all payments already received
by him under this Agreement, plus interest at the highest legal rate, and, if
Company prevails in defending the enforceability of any portion of the Agreement
or in defending itself against any such claim brought by Employee, he will pay
Company's attorney's fees and costs incurred in defending itself against the
claim(s) and/or the attempted revocation, recission or annulment. Nothing in
this Agreement shall limit Company's rights to seek and obtain other remedies
for breach of this Agreement.
6. COMPANY PROPERTY.
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Employee agrees that he will not retain or destroy, and will
immediately return to Company, any and all property of Company in his possession
or subject to his control, including, but not limited to, keys, credit and
identification cards, personal items or equipment provided for his use, all
files and documents relating to Company and its business, together with all
written or recorded materials, documents, computer disks, plans, records or
notes or other papers belonging to Company. Employee further agrees not to make,
distribute or retain copies of any such information or property.
7. TAXES.
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Employee acknowledges that he is not relying on any representation or
warranties by Company regarding tax liability associated with any payments made
pursuant to this Agreement. Employee recognizes that he is responsible for any
personal or federal state tax liability that could arise as a result of the
aforementioned monetary payments to him. Employee further agrees to indemnify
and hold harmless Company for any personal tax, interest or penalties assessed
as a result of the payments made hereunder.
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8. NONDISPARAGEMENT
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The parties agree that each shall not for a period of one (1) year
after the date of this Agreement make derogatory reference to the character or
to the quality or propriety of the skills or business of the other party, any of
the Other Party Releasees, or any of the employees of the Company or of the
Company Releasees, and specifically agrees that each party will not publish,
assert, repeat or disseminate to any third party any statement directly or
indirectly accusing the other party or any of the Other Party Releasees, or any
of the employees of the Company or of the Company Releasees, of unethical
behavior or improper practices based upon any occurrence, action or omission
occurring prior to, or at the time of execution of this Agreement.
9. MISCELLANEOUS.
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9.1 Severability. If any term, provision, covenant or condition of this
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Agreement is determined by a court of competent jurisdiction to be invalid, void
or unenforceable, in whole or in part, such determination will not affect any
other provision of this Agreement or the remaining portion of a partially
invalid provision, which shall remain in full force and effect and shall be in
no way affected, impaired or invalidated, and the provision in question shall be
modified, as appropriate, by a court of appropriate jurisdiction so as to be
rendered enforceable.
9.2 Entire Agreement. This Agreement constitutes the sole understanding
----------------
of the parties hereto with respect to the subject matter hereof. Except as
otherwise expressly provided herein, this Agreement supersedes all prior
agreements and understandings related to the subject matter hereof. Employee
agrees that he has not relied on any representations, promises or agreements of
any kind made to his in connection with this Agreement except those expressly
set forth in this Agreement. No amendment of this Agreement shall be binding
unless made in writing and duly executed by all Parties to be bound thereby.
9.3 Parties Bound by Agreement. The terms, conditions and obligations
--------------------------
of this Agreement shall inure to the benefit of and be binding upon Company and
its successors and assigns and Employee and his heirs and assigns. Without the
prior written consent of the other party, no party hereto may assign such
party's rights, duties or obligations hereunder or any part thereof to any other
person or entity; provided, however, that this Agreement will automatically
inure to the benefit of any successor to Company and to the heirs of Employee.
9.4 Headings. The headings of the Sections of this Agreement are
--------
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction hereof.
9.5 Modification and Waiver. Any of the terms or conditions of this
-----------------------
Agreement may be waived in writing at any time by the party which is entitled to
the benefits thereof. No waiver of any of the provisions of this Agreement shall
be deemed to or will constitute a waiver of any other provisions hereof.
9.6 Governing Law. This Agreement shall be construed in accordance with
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and governed by the laws of the State of Georgia.
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9.7 Acknowledgment. Employee expressly states that he has carefully
--------------
read this Agreement and agrees and acknowledges that he is knowingly and
voluntarily releasing Company from any possible claim that he may have,
including any claim relating to his employment with Company or the termination
of such employment.
IN WITNESS WHEREOF, the undersigned have set their hands on the dates
indicated.
[Company]
Dated: __________________ By: ________________________________
Title: _____________________________
Dated: __________________ ___________________________________
Employee
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