SEPARATION AGREEMENT
Exhibit 10.13
This Separation Agreement (“Agreement”) is made between comScore Networks, Inc. (“Company”), a
Delaware corporation, and Xxxxx Xxxxxx (“Employee”).
In consideration of the mutual promises contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are acknowledged, the undersigned,
intending to be legally bound, state and agree as provided below.
1. Separation. Employee’s last day of work with the Company and Employee’s employment
termination date will be February 28, 2006 (the “Separation Date”). Until the Separation Date,
Employee agrees to provide reasonable transition assistance, including without limitation,
commercially reasonable efforts to complete the projects listed under Paragraph 1 of the Transition
Summary attached as Exhibit B, and handing off of the projects listed under Paragraphs 2-5. From
time to time, after the Separation Date, Employee shall be available to respond to transition
related questions, to the extent reasonable.
2. Accrued Salary and Paid Time Off. The Company will pay Employee for all accrued salary,
and all accrued and unused vacation earned through the Separation Date, subject to standard payroll
deductions and withholdings, on the Company’s ordinary payroll dates. Employee is entitled to the
payments described in this section even if Employee elects not to execute this Agreement.
3. Severance Benefits. The Company will pay severance to Employee in the form of a lump sum
payment for an amount equivalent to six (6) months of the Employee’s current base salary (the
“Severance Payment”). The Severance Payment shall be made on the Separation Date. In addition,
Employee is eligible; for and shall be paid a bonus payment of $73,788 attributable to 2005
performance (the “Bonus”) The Bonus shall be paid upon full execution of this Separation Agreement.
Both the Severance Payment and the Bonus will be subject to standard payroll deductions and
withholdings.
4. Health Insurance. Beginning the first month following the month of separation, to the
extent provided by the federal COBRA law or, if applicable, state insurance laws, and by the
Company’s current group health insurance policies, Employee will be eligible to continue Employee’s
group health insurance benefits at Employee’s own expense. On the Separation Date, Company will
make a lump sum payment to Employee of $9014.00, subject to standard payroll deductions and
withholdings, intended to be equivalent to Company’s portion of Employee’s health insurance
premiums for a six (6) month period.
5.
Other Compensation or Benefits.
If Employee elects to exercise Employee’s vested stock options, Employee must exercise such
vested stock options within ninety (90) days of the Separation Date in accordance with the terms
and conditions of the comScore Networks, Inc. 1999 Stock Plan Stock Option Agreement.
In addition, Company’s Chief Executive Officer has agreed to designate Employee as a Participant
pursuant to Section 2.1(iii) of the Company Incentive Plan created by Company’s Board of
Directors on August 1, 2003, attached hereto as Exhibit C.
Employee acknowledges that, except as expressly provided in this Agreement, Employee will not receive any additional compensation, severance or benefits from the Company after the Separation Date.
6. Expense Reimbursements. Employee agrees that, within ten (10) days of the Separation Date,
Employee will submit Employee’s final documented expense reimbursement statement reflecting all
business expenses Employee incurred through the Separation Date, if
any, for which Employee seeks reimbursement. The Company will reimburse Employee for these
expenses pursuant to its regular business practice.
7. Return of Company Property. By the Separation Date, Employee agrees to return to the
Company all Company documents (ad all copies thereof) and other Company property that Employee had
in Employee’s possession at any time, including, but not limited to, Company files, manuals, notes,
drawings, records,: business plans and forecasts, financial information, specifications,
computer-recorded information, tangible property (including, but not limited to, computers), credit
cards, entry cards, identification badges and keys; and, any materials of any kind that contain or
embody any proprietary or confidential information of the Company (and all reproductions thereof).
Notwithstanding- anything to the contrary, Company shall remove all Company materials from
Employee’s laptop, and effective as of the Separation Date, Company hereby transfers ownership over
Employee’s laptop to Employee. In the event that Employee discovers any Company materials that
failed to be removed from the laptop, Employee shall treat such information as Company confidential
Information, promptly notify Company of such discovery and permit Company or an independent third
party to take reasonable actions to remove or destroy such information. Company makes no
warranties as to the operation of the laptop, and assumes no responsibility over its maintenance.
8. Proprietary Information and Noncompetition Obligations. Employee acknowledges Employee’s
continuing obligations under Employee’s Employment, Invention Assignment and Non-disclosure
Agreement, a copy of which is attached hereto as Exhibit A, including but not limited to,
Employee’s obligations related to confidentiality and noninterference with personnel relations.
9. Confidentiality. The provisions of this Agreement will be held in strictest confidence by
Employee and the Company and will not be publicized or disclosed in any manner whatsoever;
provided, however, that: (a) Employee may disclose this Agreement in confidence to Employee’s
immediate family; (b) the parties may disclose this Agreement in confidence to their respective
attorneys, accountants, auditors, tax preparers, and financial advisors; (c) the Company may
disclose this Agreement as necessary to fulfill standard or legally required corporate reporting or
disclosure requirements; and (d) the parties may disclose this Agreement insofar as such disclosure
may be necessary to enforce its terms or as otherwise required by law. In particular, and without
limitation, Employee agrees not to disclose the terms of this Agreement to any current or former
Company employee. Notwithstanding anything to the contrary, the parties shall mutually agree on
the positioning if the communication regarding Employee’s separation to Company personnel, and to
any third parties, and such agreed-upon positioning may be disclosed by either party.
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10. Non-Disparagement. Each party agrees to refrain from all conduct, verbal or otherwise,
that disparages or damages or could disparage or damage the reputation, goodwill, or standing in
the community of the other party, or damage or interfere with the business of the Company. For the
purposes of this paragraph, “party” shall mean the Company’s current officers and directors. This
non-disparagement provision shall not in any way prevent the parties from disclosing any
information to their attorneys or in response to a lawful subpoena or
court order requiring disclosure of such information. Both parties agree that the separation was not a
function of Employee’s performance.
11. Release of All Claims/Indemnification. Company hereby releases, acquits and discharges
Employee, and Employee hereby releases, acquits and discharges the Company and its affiliates, and
their officers, directors,’ agents, servants, employees, attorneys, shareholders, successors and
assigns (collectively, the “Released Parties”), of and from any and all claims, liabilities,
demands, causes of action, costs, expenses, attorneys’ fees, damages, indemnities and obligations
of every kind and nature, in law, equity or otherwise, known or unknown, suspected or unsuspected,
disclosed and undisclosed, arising out of or in any way related to agreements, events, acts or
conduct at any time prior to and including the execution date of this Agreement, including but not
limited to: all such claims and demands directly or indirectly arising out of or in any way
connected with Employee’s employment with the Company or the termination of that employment; claims
or demands related to salary, bonuses, commissions, stock, stock options, or any other ownership
interests in the Company, vacation pay, fringe benefits, expense reimbursements, severance pay, or
any other form of compensation; claims pursuant to federal, state or local law, statute or cause of
action including, but not limited to, the federal Civil Rights Act of 1964, as amended; the federal
Americans with Disabilities Act of 1990, as amended; the federal Age Discrimination in Employment
Act of 1967, as amended (“ADEA”); the Virginia Human Rights Act; tort law; contract law; wrongful
discharge; discrimination; harassment; fraud; defamation; emotional distress; and breach of the
implied covenant of implied good faith and fair dealing. This release does not extend to the
Company’s right to pursue all available legal remedies against Employee for any intentional torts,
gross negligence, illegal acts, or acts for which criminal penalties are available. Company shall
indemnify Employee from and against any loss, damages, liabilities, judgments, settlements or costs
and expenses, (including reasonable attorneys’ fees) incurred by Employee to defend against any
third party claims arising out of or in any way connected with Employee’s employment with the
Company, or Employee’s performance thereunder, to the extent authorized by the Company’s Bylaws.
12. Cooperation. Employee agrees to reasonably cooperate with the Company in good faith in
any internal investigation or administrative, regulatory, or judicial proceeding, including without
limitation, making herself available to the Company upon reasonable notice for interviews and
factual investigations; appearing at the Company’s request to give testimony without requiring
service of a subpoena or other legal process; volunteering to the Company pertinent information;
and turning over to the Company all relevant documents which are or may come into my possession all
at times and on schedules that are reasonably consistent with her other permitted activities and
commitments. Employee understands that in the event the Company asks for her cooperation in
‘accordance with this provision, the Company will reimburse her solely for (a) reasonable
out-of-pocket expenses, including travel, lodging and meals, upon her submission of receipts. and
(b) to the
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extent that she is requested by the Company to cooperate in such an investigation or
proceeding for more than 40 cumulative hours, a daily rate of $950 per day, within 15 days of
receipt of an invoice.
13. ADEA Waiver. Employee acknowledges that Employee is knowingly and voluntarily waiving and
releasing any rights Employee may have under the ADEA. Employee also acknowledges that the
consideration given for the waiver and the release in the preceding paragraph
hereof is in addition to anything of value to which Employee was already entitled. Employee
further acknowledges that Employee has been advised by this writing, as required by the ADEA, that:
(a) Employee’s waiver and release do not apply to any rights or claims that may arise after the
execution date of this Agreement; (b) Employee has been advised hereby that Employee has the right
to consult with an attorney prior to executing this Agreement; (c) Employee has twenty-one (21)
days to consider this Agreement (although Employee may choose to voluntarily execute this Agreement
earlier); (d) Employee has seven (7) days following execution of this Agreement by the parties to
revoke the Agreement; and (e) this Agreement will become effective on the. date upon which the
revocation period has expired, which will be the eighth day after this Agreement is executed by
Employee. In addition, this Agreement specifically incorporates and includes by reference all
other legally required federal and state notice and rescission periods applicable to Employee.
14. Remedies. Employee and the Company each agree that it would be impossible or inadequate
to measure and calculate the other’s damages from any breach of the covenants set forth in the
“Confidentiality” Section above. Accordingly, Employee and the Company each agree that the
non-breaching party will have available, in addition to any other right or remedy available, in
law, in equity or otherwise, the right to obtain injunctive relief against the threatened breach of
the “Confidentiality” Section or the continuation of such breach by the breaching party, without
the necessity of proving damages.
15. Enforcement. Except as otherwise provided herein, if any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
16. Costs. The parties intend that each shall bear its own costs (including attorney’s fees),
if any, that may have been incurred relating to this Agreement.
17. No Admission of Liability. This Agreement is not intended as an admission of liability by
any party.
18. Effective Date. This Agreement will become effective on the latter of: (a) February 28,
2006; or (b) after seven days have passed since Employee signed the Agreement, assuming that
Employee does not revoke the Agreement (the “Effective Date”).
19. Notice. In the event that any notice is to be given to any party under this Agreement, it
shall be given by certified mail, return receipt requested, and addressed to the party as follows:
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| To Company: | comScore Networks, Inc. | |||
| Attention: Corporate Counsel | ||||
| 00000 Xxxxxx Xxxxx Xxxxx, Xxxxx 000 | ||||
| Xxxxxx, XX 00000 |
| To Employee: | Xxxxx X. Xxxxxx | |||
| 0000 Xxxxx Xxxxx | ||||
| Xxxxxx, XX 00000 | ||||
| 773.25 1.7466 |
20. Miscellaneous. This Agreement, including Exhibits A, B and C, constitutes the full and
entire understanding and agreement between the parties regarding the subjects hereof. It is
entered into without reliance on any promise or representation, written or oral, other than those
expressly contained herein, and it supersedes any other such promises, warranties or
representations. This Agreement may not be modified or amended except in writing signed by both
Employee and a duly authorized officer of the Company. This Agreement shall bind the heirs,
personal representatives, successors and assigns of both Employee and the Company, and inure to the
benefit of both Employee and the Company, their heirs, successors and assigns. If any provision of
this Agreement is determined to be invalid or unenforceable, in whole or in part, this
determination will not affect any other provision of this Agreement and the provision in question
shall be modified by the court so as to be rendered enforceable. This Agreement shall be governed
in all respects by the laws of the Commonwealth of Virginia as such laws are applied to agreements
between Virginia residents entered into and performed entirely in Virginia.
In Witness Whereof, the undersigned have executed this Agreement as of the date written below.
| COMPANY: | ||||||
| COMSCORE NETWORKS, INC. | ||||||
| By: | /s/ Xxxxx Xxxxxxx
|
|||||
| Xxxxx Xxxxxxx, Chief Executive Officer | ||||||
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| EMPLOYEE: | ||||||||
| /s/ Xxxxx Xxxxxx
|
2.09.06
|
Exhibit A — Employment, Invention Assignment and Non-disclosure Agreement
Exhibit B — Transition Summary
Exhibit C — comScore Networks, Inc. Incentive Plan created August 1, 2003
Exhibit B — Transition Summary
Exhibit C — comScore Networks, Inc. Incentive Plan created August 1, 2003
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