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EXHIBIT 10.11
SEPARATION AND SETTLEMENT AGREEMENT
THIS SEPARATION AND SETTLEMENT AGREEMENT (the "Agreement") is made as of
April 18, 1997, by and among Graphix Zone, Inc., a Delaware corporation ("GZ"),
GZ Multimedia, Inc., a California corporation ("GZM"), StarPress, Inc., a
Colorado corporation ("SP") (GZ, GZM and SP are collectively referred to as the
"GZ Entities"), and Xxxxxx X. Block ("Block").
RECITALS
A. Block has been employed as a Director of each of the GZ
Entities, as President of GZ, and as President, Chief Financial Officer and
Secretary of each of GZM and SP. The parties to this Agreement mutually desire
to sever the relationship between the GZ Entities and Block.
B. The GZ Entities and Block have agreed to the terms and
conditions set forth in this Agreement and the amounts set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing promises and the
provisions hereinafter set forth, the parties agree as follows:
1. RESIGNATION AS DIRECTOR AND OFFICERS. Effective April 18, 1997,
Block will deliver his signed letter confirming his resignation from his
positions as a Director and officer of the various GZ Entities. Block will
vacate his office at GZ no later than April 18, 1997. Block hereby promises and
affirms that any information, computers (except as otherwise set forth in this
Agreement), laptops, files, records, documents, business equipment or
information of the GZ Entities, including but not limited to, handwritings,
typewritings, printing, photostating, photographing, computer files, hard disk
drive, tape, floppy disk, and every other means of recording upon any tangible
thing, for communication or representation, including letters, pictures, sounds
or symbols or any combination thereof, of the GZ Entities will not be retained,
utilized, disseminated, or in any other manner disclosed by Block and Block will
surrender possession of these items to whomsoever is designated by the GZ
Entities.
2. SEVERANCE PAYMENTS. Pursuant to the terms of this Agreement, GZ
agrees to make the following scheduled severance payments to Block:
a. On April 18, 1997, all accrued vacation pay through
April 18, 1997, which vacation pay totals $12,850.32 less applicable
withholdings.
b. On July 18, 1997, $45,000.00 less applicable
withholdings.
c. On August 18, 1997, $15,000.00 less applicable
withholdings.
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d. On September 18, 1997, $15,000.00 less applicable
withholdings.
e. On October 18, 1997, $15,000.00 less applicable
withholdings.
f. GZ agrees to pay for the continuation of Block's medical
and dental benefits for a period of six months from April 18, 1997.
3. BLOCK'S PURCHASE OF PERSONAL COMPUTER, MONITOR AND OPTICAL
DRIVE. Block agrees to purchase a personal computer, monitor and optical drive
agreed upon by GZ and Block for the purchase price of $1.00.
4. POST-EMPLOYMENT CONSULTING. Block will in good faith provide
reasonable cooperation and assistance to GZ Entities subsequent to the effective
date of this Agreement on an "as-needed" basis for a period of not less than six
months, but only as requested by the GZ Entities or their attorneys.
5. NON-DISCLOSURE AGREEMENT. Block by this Agreement promises,
assets, and affirms not to disclose any confidential information which he
learned while employed by or through the GZ Entities, including but not limited
to, the contents, terms, or other proprietary information contained in customer
lists, drawings, designs, plans, computer software and databases, financial
information, operational, marketing activities or employment practices of the GZ
Entities.
6. INDEMNITY. The GZ Entities will to the extent authorized in
their respective articles of incorporation and bylaws, defend, indemnify and
hold harmless Block from and against any and all third-party claims, demands,
causes of action, arbitration, litigation, administrative action, arising out of
or reasonably related to Block's employment with or service to the GZ Entities.
Block will not be indemnified for any claim that involves an allegation that all
or a portion of this Agreement has been breached.
7. RELEASE BY BLOCK. Except for the obligations and provisions set
forth in this Agreement, Block hereby releases and discharges the GZ Entities,
and their respective officers, directors, shareholders, parent corporations,
subsidiary corporations, brother/sister corporations, successors, assigns,
affiliates, employees, consultants and attorneys, from any and all agreements,
obligations, claims, demands and causes of action which arise out of or relate
to compensation or benefits relating to Block's employment by the GZ Entities.
Block will not initiate, cooperate with, or participate in any litigation,
claim, demand, arbitration or other proceeding of any kind in any form
pertaining to any of the released claims set forth in this Agreement.
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8. RELEASE BY GZ ENTITIES. Except for the obligations and
provisions set forth in this Agreement, each of the GZ Entities hereby releases
and discharges Block from any and all charges, complaints, claims, liabilities,
obligations, promises, agreements, controversies, damages, actions, causes of
action, suits, rights, demands, costs, losses, debts and expenses which arise
out of or relate to compensation or benefits relating to Block's employment by
the GZ Entities.
9. BINDING OBLIGATION. This Agreement is intended by the parties
to this Agreement to be a valid and legally binding obligation, enforceable
against such parties in accordance with its terms. Neither the execution or
delivery of this Agreement, nor the performance of any of their obligations
pursuant to this Agreement, constitutes or will constitute a breach or violation
of any contract, law, rule, order, decree, judgment, agreement, indenture,
bylaw, certificate of incorporation or other instrument which the parties to
this Agreement are legally bound.
10. CONFIDENTIALITY. This Agreement and the transactions described
herein are confidential. No party to this Agreement, or any party under the GZ
Entities' or Block's respective control, including without limitation,
employees, officers, directors, consultants, attorneys and agents, will
disclose publicly a copy of all or any portion of this Agreement, or make any
statement or disclosure pertaining to the financial transactions described in
this Agreement, except as required by law or if necessary for the enforcement
of this Agreement.
11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original, but all of which
together will constitute one and the same instrument.
12. ENTIRE AGREEMENT/AMENDMENT/WAIVER. This Agreement contains the
entire and complete understanding between the parties concerning its subject
matter and all representations, agreements, arrangements and understandings
between or among the parties, whether oral or written, have been fully merged
herein and are superseded hereby. This Agreement may be amended, supplemented,
modified or rescinded only through an express written instrument signed by all
the parties or their respective successors and assigns. The parties may
specifically and expressly waive in writing any portion of this Agreement or
any breach hereof, but such waiver will not constitute a further or continuing
waiver of any proceeding or succeeding breach of the same or any other
provision. The consent by one party to any act for which such consent was
required will not be deemed to imply consent or waiver of the necessity of
obtaining such consent for the same or similar acts in the future.
13. SEVERABILITY. Each provision of this Agreement is intended to
be severable and if any term or provision herein is determined invalid or
unenforceable for any reason, such illegality or invalidity will not affect the
validity of the remainder of this Agreement and, wherever possible, intent
will be given to the invalid or unenforceable provision.
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14. FURTHER DOCUMENTS AND ACTS. Each of the parties will cooperate
in good faith with the others, and execute and deliver such further instruments
and perform such other acts as may be reasonably necessary or appropriate to
consummate and carry into effect the transactions contemplated by this
Agreement.
15. BENEFIT OF AGREEMENT. This Agreement is for the sole and
exclusive benefit of the signatories hereto and nothing in this Agreement will
be construed to give any person or entity other than the parties hereto any
legal or equitable right, claim or remedy. Subject to the foregoing sentence,
this Agreement will inure to the benefit of and will be binding upon the
specific successors, assigns, personal representatives, estates, heirs and
legatees of each of the parties.
16. SIGNATORIES' AUTHORITY. Each of the individuals signing this
Agreement represents and warrants to the others that he or she has the right,
capacity, power and authority to sign this Agreement on his or her behalf, or
on behalf of the corporation or other business entity for which he or she has
signed, as the case may be, and to sign all other documents and perform all
other acts as may be necessary in relation to this Agreement.
17. COSTS. Each of the parties to this Agreement will pay its own
costs and expenses relative to the negotiation and preparation of this
Agreement.
18. INTERPRETATION. This Agreement will be interpreted in
accordance with California law and any action or proceeding concerning this
Agreement will be brought and decided exclusively in Orange County,
California. The prevailing party in any action, litigation or other dispute
will be entitled to recover all of their costs, expenses, including without
limitation, costs, attorneys' fees, postjudgment attorneys' fees and experts'
fees.
19. INTERPRETATION. The language in all parts of this Agreement
will be in all cases construed simply according to its fair meaning and not
strictly for or against any party. Whenever the context requires, all words
used in the singular will be construed to have been used in the plural, and
vice versa, and each gender will include any other gender. The captions of the
sections of this Agreement are for the convenience only and will not affect the
construction or interpretation of any of the provisions herein.
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20. ARBITRATION. All disputes involving or arising out of any
alleged breach of this Agreement shall be resolved by final and binding
arbitration without resort to a trial by jury. Issues of procedure,
arbitrability, or confirmation of awards shall be governed by the Federal
Arbitration Act, 9 U.S.C. Sections 1-16, except that court review of the
arbitrator's award shall be that of an appellate court reviewing a decision of
a trial judge sitting without a jury.
IN WITNESS WHEREOF, this Agreement has been entered into as of the date
first set forth above.
GRAPHIX ZONE, INC., a Delaware corporation
By: /s/ XXXXX X. XXXXXXXXXX
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Xxxxx X. Xxxxxxxxxx
GZ MULTIMEDIA, INC., a California
corporation
By: /s/ XXXXX X. XXXXXXXXXX
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Xxxxx X. Xxxxxxxxxx
STARPRESS, INC., a Colorado corporation
By: /s/ XXXXX X. XXXXXXXXXX
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Xxxxx X. Xxxxxxxxxx
/s/ XXXXXX X. BLOCK
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XXXXXX X. BLOCK, an individual
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