Exhibit 10.1
Resignation Agreement dated as of January 26, 2001 between
Registrant and Xxxx X. Xxxxxx
RESIGNATION AGREEMENT
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This RESIGNATION AGREEMENT is dated as of January 26, 2001,
and is entered into between EarthWeb, Inc., a Delaware corporation (the
"Company"), and Xxxx X. Xxxxxx (the "Executive").
WHEREAS, Executive and the Company are parties to an
employment agreement, dated January 1, 1995 (the "Employment Agreement"), as
amended by that certain intercompany services agreement, dated October 25, 1996
(the "Intercompany Services Agreement");
WHEREAS, Executive and the Company have mutually agreed it to
be in the best interests of each party to terminate Executive's employment under
the Employment Agreement;
WHEREAS, Executive and the Company have mutually agreed to
embody in this Agreement the terms and conditions applicable to Executive's
termination of employment with the Company.
NOW, THEREFORE, the parties hereby agree:
1. Termination Date. Executive's termination of employment with the
Company is effective as of the date hereof (the "Termination Date"). Executive
hereby resigns as President and Chief Executive Officer. Executive will serve as
the non-executive Chairman of the Board of Directors of the Company, subject to
renomination and reelection in accordance with the Company's charter and bylaws.
2. Company Property. Except as otherwise provided herein, Executive
shall immediately return to the Company all Company-owned property in his
possession.
3. Termination Benefits. (a) Commencing as of the Termination Date, in
full satisfaction of the Company's obligations under the Employment Agreement
and the Intercompany Services Agreement, the Company shall pay to Executive (i)
in accordance with the Company's prevailing payroll practices, severance
payments equal to Executive's current monthly salary, for a period of
twenty-five months (the "Severance Period"), and (ii) the unpaid portion of
Executive's bonus for 2000, based on an aggregate bonus of 25% of Executive's
current annual salary. In addition, to the extent permissible under the
Company's health plans, until the earlier of (A) one-year from the Termination
Date, or (B) the date on which Executive is eligible for coverage under another
group insurance plan, the Executive shall continue to receive any health, dental
and vision benefits provided to him immediately prior to the Termination Date.
(b) Notwithstanding any provision of any option plan or
agreement to the contrary, all vested options held by Executive on the
Termination Date shall remain exercisable by Executive for a period of one-year
following the Termination Date and shall thereafter terminate to the extent not
exercised. As of the Termination Date, all unvested shall terminate immediately.
(c) The Company shall transfer ownership to Executive of (i)
his Company provided laptop computer, and (ii) the items contained in
Executive's office; provided, however, that Executive shall not retain any
confidential or proprietary information.
(d) The Company shall provide Executive (i) email and
voicemail access for the greater of (x) the period expiring on the first
anniversary of the date hereof, or (y) the period Executive remains a director
of the Company, (ii) forwarding of Executive's mail to an address provided by
Executive for a period not to exceed one-year, and (iii) three-months of
technology transition support.
4. Benefit Plans. Except as otherwise specifically provided in this
Agreement or by law or by any employee benefit plan, Executive's participation
in all employee benefit plans and Executive compensation plans and practices of
the Company shall terminate on the Termination Date, and there shall be no other
payments or benefits payable to Executive by the Company, including, but not
limited to, any other salary, bonus, commissions, fees, benefits, or other
payments of any nature whatsoever.
5. Taxes. The payments due to Executive under this Agreement shall be
subject to reduction to satisfy all applicable Federal, state and local
withholding tax obligations.
6. Payment Upon Death. Executive's rights and obligations under this
Agreement are not transferable. However, if Executive should die while any
amounts would still be payable to him hereunder, all such amounts shall be
payable to Executive's estate, heirs, executors or beneficiaries in accordance
with the terms hereof.
7. Restrictive Covenants. The Covenants set forth in Sections 11, 12
and 13 of the Employment Agreement shall continue to apply after the Termination
Date in accordance with their terms.
8. Release and Waiver of Claims. (a) Effective as of the Termination
Date, subject to Section 9 hereof, in consideration of the payments, benefits,
and other consideration provided to Executive under this Agreement, Executive,
for himself and his family, heirs, executors, administrators, legal
representatives, and their respective successors and assigns, hereby releases
and forever discharges the Company, and all of its subsidiaries, officers,
directors, employees, agents, stockholders, representatives, and their
successors and assigns (collectively, "Company Entities"), from all rights,
claims or demands Executive may have, arising at any time on or before the date
hereof, based on his employment with any Company Entity or the termination of
that employment, including without limitation any claims under the Employment
Agreement. This includes a release of any and all rights, claims or demands
Executive may have, whether known or unknown, under 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; or under any other federal,
state or local laws or regulations regarding employment discrimination or
termination of employment. This also includes a release by Executive of any
claims for wrongful discharge under any statute, rule, regulation or under the
common law. Executive hereby agrees never individually or with any person to
file, or commence the filing of, any charges, lawsuits, complaints or
proceedings with any governmental agency, or against any Company Entity, with
respect to any of the matters released by Executive pursuant to this Section 8.
(b) Effective as of the Termination Date, the Company hereby
releases and forever discharges Executive, his family, heirs, executors,
administrators, legal representatives, and their respective successors and
assigns, from all rights, claims or demands the Company may have, arising at any
time on or before the date hereof, based on his employment with any
Company Entity or the termination of that employment. This paragraph shall not
apply to any rights or claims that the Company may have for a breach or
enforcement of this Agreement, or any surviving provision of the Employment
Agreement expressly set forth herein.
9. Rights Not Released or Waived. Section 8 hereof notwithstanding, by
signing this Agreement, Executive shall not have relinquished his right to (i)
benefits in accordance with the provisions of any Company retirement plans
subject to the Employee Retirement Income Security Act of 1974, as amended, or
(ii) enforce the provisions of this Agreement.
10. Non-Admission. Each of Executive and the Company expressly
acknowledge that this Agreement does not constitute an admission by the either
party of any violation of any employment law, regulation, ordinance, or
administrative procedure, or any other federal, state, or local law, common law,
regulation or ordinance, liability for which is expressly denied.
11. Non-Disparagement. Executive agrees that, except as required by
applicable law, or compelled by process of law, at any time following the date
hereof, neither he, nor anyone acting on his behalf, shall hereafter (a) make
any derogatory, disparaging or critical statement about the Company, or any of
the Company's current officers, directors, employees, shareholders or lenders or
any persons who were officers, directors, employees, shareholders or lenders of
the Company; or (b) without the Company's prior consent (which shall not be
unreasonably withheld), communicate, directly or indirectly, with the press or
other media, concerning the present business of the Company or of any Company
Entities; provided, however, that nothing herein shall prevent Executive from
speaking, giving interviews or otherwise communicating concerning issues common
to co-founders of a company. The Company agrees that, except as required by
applicable law, or compelled by process of law, neither it, nor anyone acting on
its behalf, shall hereafter (a) make any derogatory, disparaging or critical
statement about Executive; or (b) without Executive's prior written consent,
communicate, directly or indirectly, with the press or other media, concerning
Executive.
12. Reference. Upon request, each member of the Board of Directors of
the Company shall provide to Executive a letter of recommendation.
13. Confidentiality of Agreement. Executive and the Company hereby
agree to keep the terms of this Agreement confidential. The obligations of
Executive and the Company under this Section 13 shall not apply to disclosures
required by applicable law, regulation or order of a court or governmental
agency, to either parties counsel, or to Executive's immediate family.
14. Opportunity for Advice. By signing this Agreement, Executive
acknowledges that with the advice of the Company, he has had a reasonable
opportunity to consider advice from his legal counsel. Fully understanding these
terms, Executive is entering into this Agreement knowingly and voluntarily.
15. Entire Agreement. This Agreement represents the entire agreement of
the parties with respect to Executive's employment and termination thereof.
Except as specifically provided herein, this Agreement shall supersede all prior
oral and written agreements, arrangements and understandings relating to the
terms and conditions of Executive's employment relationship, termination of
employment, including, without limitation, the Employment Agreement and the
Intercompany Services Agreement. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date and year first above written.
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
EARTHWEB, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: Vice President & General Counsel
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