1
Exhibit 10.14
AGREEMENT AND GENERAL RELEASE
This Agreement and General Release ("Agreement") is made and entered
into by and between Mobius Management Systems, Inc. and Xxxxxx Xxxxxxxxxx.
DEFINITIONS
As used throughout this Agreement:
A. "Mobius" refers to Mobius Management Systems, Inc. together with
its past and present parents, subsidiaries, and affiliates, and each of their
respective past and present officers, directors, agents, employees, successors,
and assigns.
B. "Xxxxxxxxxx" refers to Xxxxxx Xxxxxxxxxx, his heirs, executors,
administrators, agents, successors, assigns, and dependents.
RECITALS
WHEREAS, Xxxxxxxxxx has been employed by Mobius; and
WHEREAS, the parties have agreed that Xxxxxxxxxx'x employment by
Mobius shall end effective October 1, 1997; and
WHEREAS, the parties hereto desire to settle any and all disputes
and extinguish any and all claims relating to Xxxxxxxxxx'x employment by Mobius
which Xxxxxxxxxx now has or might otherwise hereafter have against Mobius;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, and intending to be and being legally bound
hereby, the parties agree as follows:
AGREEMENT
1. Xxxxxxxxxx will cease to be employed by Mobius effective October
1, 1997 (the "Termination Date").
2. (a) Except as necessary to enforce the terms of this Agreement,
and in exchange for and in consideration of the promises, covenants, and
agreements set forth herein, Xxxxxxxxxx hereby releases Mobius to the maximum
extent permitted by law from all actions, causes of action, suits, debts, dues,
sums of money, accounts, reckonings, extents, executions, claims, and demands
whatsoever, in law, admiralty or equity, which against Mobius, Xxxxxxxxxx ever
had, now have or hereafter can, shall or may, have for, upon, or by reason of
any matter, cause or thing whatsoever from the beginning of the world to the day
of the date of this
2
Agreement and including without limitation all causes of action relating to
Xxxxxxxxxx'x employment with Mobius, the termination of that employment on
October 1, 1997, any claim to any options under any agreement except as set
forth in this Agreement and any claim for further or additional compensation.
(b) Except as necessary to enforce the terms of this
Agreement, and in exchange for and in consideration of the promises, covenants,
and agreements set forth herein, Mobius hereby releases Xxxxxxxxxx to the
maximum extent permitted by law from all actions, causes of action, suits,
debts, dues, sums of money, accounts, reckonings, extents, executions, claims,
and demands whatsoever, in law, admiralty or equity, which against Xxxxxxxxxx,
Mobius ever had, now have or hereafter can, shall or may, have for, upon, or by
reason of any matter, cause or thing whatsoever actually known to the President,
Executive Vice President or Chief Financial Officer of Mobius as of the date
hereof.
3. Except as necessary to enforce the terms of this Agreement, each
party promises never to file or participate in a lawsuit, arbitration, agency,
or other legal proceeding asserting any claims that are released by such party
pursuant to this Agreement. If a party breaks such promise and files or
participates in a legal proceeding based on claims such party has released
pursuant to this Agreement, such party agrees to pay for all costs, including
reasonable attorneys' fees, incurred by the other party in defending against
such party's claim.
4. (a) Xxxxxxxxxx acknowledges and recognizes the highly competitive
nature of the Company's business and that access to Mobius' confidential records
and proprietary information renders him special and unique within Mobius'
industry. In consideration of the grant of options by Mobius to Xxxxxxxxxx
pursuant to Paragraph 6(a) hereof (the "Termination Grant") and the acceleration
of the exercisability of certain options pursuant to Paragraph 6(b) hereof (the
"Acceleration"), Xxxxxxxxxx agrees that during the period beginning on the Date
of Termination and ending twenty-four months after the Date of Termination (the
"Covered Time"), Xxxxxxxxxx will not compete with the business of Mobius, which
means that Xxxxxxxxxx will not engage, directly or indirectly, in any business
related to the development, sale, or provision of any services related to the
archiving and retrieval of documents and records or other related document and
record management services.
(b) In further consideration of the Termination Grant and the
Acceleration, Xxxxxxxxxx agrees that during the Covered Time he shall not (i)
directly or indirectly solicit or attempt to solicit any of the employees,
agents, consultants or representatives of Mobius to terminate his, her, or its
relationship with Mobius; (ii) directly or indirectly solicit or attempt to
solicit any of the employees, agents, consultants or representatives of Mobius
to become employees, agents, representatives or consultants of any other person
or entity; or (iii) directly or indirectly solicit or attempt to solicit any
customer, vendor or distributor of Mobius with respect to any product or service
being furnished, made, sold or leased by Mobius.
(c) Xxxxxxxxxx understands that the provisions of this Paragraph 4
may limit his ability to earn a livelihood in a business similar to the business
of Mobius but nevertheless agrees and hereby acknowledges that the consideration
provided under this Agreement is
-2-
3
sufficient to justify the restrictions contained in such
provisions. In consideration thereof and in light of Xxxxxxxxxx'x education,
skills and abilities, Xxxxxxxxxx agrees that he will not assert in any forum
that such provisions prevent him from earning a living or otherwise are void or
unenforceable or should be held void or unenforceable.
5. Xxxxxxxxxx acknowledges that during the course of his employment
with Mobius he had access to proprietary information and confidential records of
Mobius. Xxxxxxxxxx covenants that he shall not, directly or indirectly, use for
his own purpose or for the benefit of any person or entity other than Mobius,
nor otherwise disclose, any proprietary information to any individual or entity,
unless such disclosure has been authorized in writing by Mobius or is otherwise
required by law. Xxxxxxxxxx acknowledges and understands that the term
"proprietary information" includes, but is not limited to: (a) the name and/or
address of any customer, vendor or affiliate of Mobius or any information
concerning the transactions or relations of any customer, vendor or affiliate of
Mobius with Mobius or any of its partners, principals, directors, officers or
agents; (b) any information concerning any product, technology, or procedure
employed by Mobius but not generally known to its customers, vendors or
competitors, or under development by or being tested by Mobius but not at the
time offered generally to customers or vendors; (c) any information relating to
Mobius' computer software, computer systems, pricing or marketing methods, sales
margins, cost of goods, cost of material, capital structure, operating results,
borrowing arrangements or business plans; (d) any information which is generally
regarded as confidential or proprietary in any line of business engaged in by
Mobius; (e) any business plans, budgets, advertising or marketing plans; (f) any
information contained in any of Mobius' written or oral policies and procedures
or manuals; (g) any information belonging to customers, vendors or affiliates of
Mobius or any other person or entity which Mobius has agreed to hold in
confidence; (h) any inventions, innovations or improvements covered by this
Agreement; and (i) all written, graphic and other material relating to any of
the foregoing. Xxxxxxxxxx acknowledges and understands that information that is
not novel or copyrighted or patented may nonetheless be proprietary information.
The term "proprietary information" shall not include information generally
available to and known by the public or information that is or becomes available
to me on a non-confidential basis from a source other than Mobius or Mobius'
directors, officers, employees, partners, principals or agents (other than as a
result of a breach of any obligation of confidentiality).
6. In full and complete consideration for Xxxxxxxxxx'x promises,
covenants, and agreements set forth herein, with no further services to be
rendered by Xxxxxxxxxx to Mobius and regardless of Xxxxxxxxxx'x employment
status elsewhere:
(a) Mobius will grant to Xxxxxxxxxx fully vested options to purchase
1,000 shares of the common stock of Mobius, in accordance with the Mobius 1996
Stock Incentive Plan and the Stock Option Agreement (the "Stock Option
Agreement") attached hereto as Exhibit A.
(b) Mobius shall accelerate to the date hereof the exercisability of
options to purchase 800 shares of the common stock of Mobius previously granted
to Xxxxxxxxxx by Mobius pursuant that certain stock option agreement dated as of
November 6, 1996 (the "1996
-3-
4
Agreement"). All other options to purchase shares of the common stock of Mobius
granted pursuant to the 1996 Agreement are hereby irrevocably cancelled.
7. The parties agree that it is a material condition of this
Agreement that Xxxxxxxxxx maintain strictly confidential and shall take all
reasonable steps to prevent the disclosure to any person or entity the
existence, terms, or subject matter of this Agreement. This provision does not
prohibit Xxxxxxxxxx from providing this information to his attorneys or
accountants for purposes of obtaining legal or tax advice or as otherwise
required by law. To the extent Xxxxxxxxxx makes any disclosure to any attorney
or accountant as permitted pursuant to this paragraph, he shall instruct such
person not to make any further disclosure except in accordance with this
paragraph.
8. In executing this Agreement, neither Mobius nor Xxxxxxxxxx admits
any liability or wrongdoing, and the considerations exchanged herein do not
constitute an admission of any liability, error, contract violation, or
violation of any federal, state, or local law or regulation.
9. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
10. The unenforceability or invalidity of any provision or
provisions of this Agreement shall not render any other provision or provisions
hereof unenforceable or invalid.
11. This Agreement and the Stock Option Agreement constitute the
entire agreement between the parties and cannot be altered except in a writing
signed by the parties. The parties acknowledge that they entered into this
Agreement, that they fully understand all of its provisions, and that no
representations were made to induce execution of this Agreement and the Stock
Option Agreement which are not expressly contained herein.
12. The parties agree that any disputes concerning the
interpretation or application of this Agreement shall be governed by New York
law and submitted to a court in New York, without regard to principles of
conflict of law or where the parties are located at the time a dispute arises.
13. Xxxxxxxxxx acknowledges that he has been afforded an opportunity
to consider this Agreement and has been advised to consult with an attorney
prior to executing this Agreement and the Stock Option Agreement. Xxxxxxxxxx
acknowledges that he has had an adequate opportunity to review this Agreement
before its execution.
the remainder of this page is blank
-4-
5
IN WITNESS WHEREOF, the parties have executed this Agreement as of
September 30, 1997.
MOBIUS MANAGEMENT SYSTEMS, INC.
/s/ Xxxxxx Xxxxxxxxxx By: /s/ Xxxxxxxx Xxxxx
------------------------- ----------------------
Xxxxxx Xxxxxxxxxx Xxxxxxxx Xxxxx, President
- 5 -
