EXHIBIT 10.25
SEVERANCE AGREEMENT
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THIS SEVERANCE AGREEMENT (this "Agreement") is made and entered into as of
this 15th day of October 1999, by and between XXXX XXXX, a resident of St. Louis
County, Missouri ("Xxxx"), and DIGITAL BROADCAST NETWORK CORPORATION, a Missouri
corporation ("dbn").
RECITALS
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X. Xxxx is one of the founders and executive officer of dbn.
X. Xxxx and dbn are parties to that certain Employment Agreement, dated
as of March 1, 1999 (the "Employment Agreement"); Xxxx and dbn are a party to
that certain Co-Sale Agreement dated the 30/th/ day of June, 1999 (the "Co-Sale
Agreement"), Xxxx and dbn are a party to that certain Voting Agreement dated the
30/th/ day of June, 1999 (the "Voting Agreement") and Xxxx and dbn are a party
to that certain Restricted Common Stock Agreement dated the 2nd day of February,
1998 (the "Restricted Common Stock Agreement") and that certain indemnification
agreement dated June 15, 1998 ("Indemnification Agreement").
X. Xxxx desires to terminate his employment with dbn in order to develop
and pursue other business ventures.
X. Xxxx and dbn desire to terminate the Employment Agreement and to set
forth herein the agreement between them regarding Xxxx' separation from
employment with dbn.
E. For and in consideration of the covenants, agreements and
understandings set forth herein, and for other good and valuable consideration,
the receipt and adequacy of which is acknowledged by Xxxx and dbn, Xxxx and dbn
hereby agree as follows:
AGREEMENT
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1. Resignation. Xxxx hereby resigns, effective as of the 31/st/ day of
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October, 1999 which resignation shall be irrevocable and this Agreement shall
constitute his resignation, as an employee of dbn without any further action on
the part of Xxxx or dbn. dbn shall pay and provide Xxxx his current salary
through October 31, 1999, net of usual withholdings and Xxxx shall provide such
services to dbn as requested by dbn through October 31, 1999. Xxxx and dbn
hereby terminate the Employment Agreement effective as of the date hereof;
provided, however, that Section 4 of the Employment Agreement (but not any other
Sections of the Employment Agreement that could apply to such Section 4, such as
Section 8 of the Employment Agreement) shall survive and remain in full force
and effect as if republished and incorporated by reference herein.
2. Severance Payments and Other Benefits.
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a. In consideration of the covenants and agreements of Xxxx set
forth in Section 3 hereof, dbn shall continue to pay Xxxx, a bi-monthly
severance payment equal to Xxxx'x base xxxxx bi-monthly income, minus applicable
federal and state tax withholding) through and including April 30, 2000.
b. dbn shall continue to maintain, at the sole cost and expense of
dbn, health and dental insurance coverage, on the same terms, conditions and
coverage as exist on the date hereof, for Xxxx and his eligible dependents
(which shall include those persons in Xxxx' family currently covered under dbn's
health and insurance coverage) from the date hereof until October 31, 2000.
Alternatively, Xxxx may, at his option at any time between the date hereof and
October 31, 2000, obtain his own policy of health and dental insurance coverage
(on terms no less favorable than the terms under dbn's existing coverage) for
Xxxx and his eligible dependents (which shall include those persons in Xxxx'
family currently covered under dbn's health and insurance coverage) and dbn
shall pay the costs and expenses of such insurance coverage until October 31,
2000 in an amount not to exceed the amount that dbn would be responsible for
under the first sentence of this Section 2.b.
c. dbn shall, in compliance with COBRA, offer Xxxx and his eligible
dependents continuation coverage in compliance with COBRA from and after October
31, 2000, at the sole cost and expense of Xxxx.
d. The provisions of this Agreement, and any payment provided for
hereunder, shall not reduce any amounts payable, or in any way diminish, Xxxx'
rights under any benefit, 401(k), retirement, defined contribution, defined
benefit or other plan or arrangement as of the date of this Agreement.
3. Non-Competition.
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a. From the date hereof and for one (1) year thereafter (the
"Restricted Period"), Xxxx shall not, within the continental United States,
directly or indirectly, acting alone or with others, voluntarily or
involuntarily, own, operate, engage in, have an interest in, control through
stock ownership or otherwise, or become employed by, work for, advise, be
connected with, consult with or represent in any capacity or in any manner
whatsoever in any role, any individual, firm, corporation, partnership,
association or other entity (other than dbn) who or which is engaged in business
as a "Netsourcing company" (as such terms are used and described in dbn's
current business plan, website or marketing materials which are incorporated
herein by this reference); provided, however, that the foregoing restrictions
shall not be construed or otherwise interpreted so as to prevent Xxxx from
owning stock or other securities in a company if (i) such stock or securities
are owned for investment purposes only, (ii) Xxxx does not, directly or
indirectly, acting alone or with others, participate in the management or
operation of such company, and (iii) such company has a class of stock publicly
traded or tradeable on the New York Stock Exchange, The Nasdaq National Market
or any other recognized national stock exchange (no Internet alternative trading
system or order matching system shall be considered a national stock exchange
for this purpose).
b. During the Restricted Period, Xxxx shall not, either directly or
indirectly, either on his own behalf or on behalf of any other individual, firm,
corporation, partnership, association or other entity, approach or solicit
customers of dbn as of the date hereof with a view towards diverting or
attempting to divert from dbn any business which dbn has enjoyed, to Xxxx or to
any other individual, firm, corporation, partnership, association or other
entity. During the Restricted Period, Xxxx shall not, directly or indirectly,
either on his own behalf or on behalf of any other individual, firm,
corporation, partnership, association or other entity, approach or solicit
employees, consultants, or other associates of dbn with a view towards
terminating said employee's, consultant's or other associate's employment,
relationship or association with dbn; provided, however, that the foregoing
restrictions shall not apply to any person who shall have been terminated by
dbn.
x. Xxxx shall keep all Confidential Information (as defined below in
this Section 3(c)) in the strictest confidence and shall not discuss, publish,
communicate, transmit, reproduce or otherwise disclose such Confidential
Information to anyone who is not a professional advisor of Xxxx. In the event
that Xxxx shall become legally compelled to disclose any of the Confidential
Information, Xxxx shall provide dbn with prompt notice thereof so that dbn may
seek a protective order or other appropriate remedy or waive compliance with the
provisions of this Agreement. In the event that such protective order or other
remedy shall not be obtained by dbn or dbn shall have waived compliance with the
provisions of this Agreement, then Xxxx shall furnish or cause to be furnished
only that portion of the Confidential Information which Xxxx shall have been
legally required to furnish. The term "Confidential Information," as used
herein, shall mean any communication disclosed to Xxxx by dbn or known by Xxxx
as a consequence of or through his past or present employment or business
relationship with dbn, which constitutes dbn's proprietary and non-public
method(s) of doing business, including, but not limited to, any information
related to trade secrets, pricing formulas, know-how, test data, customer lists,
vendor lists, training and operating manuals, software and reporting systems;
provided, however, that the term "Confidential Information" shall not include
such portions of any such communication or information which: (i) are or become
generally available to the public other than as a result of a disclosure by Xxxx
in violation of his obligation of confidentiality hereunder; or (ii) become
available to Xxxx on a non-confidential basis from a source which is not
prohibited from disclosing such information to Xxxx by a legal, contractual or
fiduciary obligation to dbn.
4. Releases.
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a. dbn (on behalf of itself and its shareholders, officers,
directors, employees, affiliates, agents, successors and assigns) hereby
irrevocably, unconditionally and forever releases, waives, discharges and
covenants not to xxx Xxxx (and his heirs, personal representatives and advisors)
from and with respect to any and all claims, charges, debts, judgments, demands,
liabilities, obligations, damages and causes of action (personal, statutory or
otherwise) whether known or unknown, matured or unmatured, fixed or contingent,
which dbn (or its shareholders, officers, directors, employees, affiliates,
agents, successors and assigns) may have or assert against Xxxx (and his heirs
and personal representatives), for any reason whatsoever, for, or arising out
of, or related to, or in connection with, actions or omissions occurring or
matters existing prior to or as of
the date hereof, including, but not limited to, any such matter as arises out
of, relates to or is in connection with Xxxx' capacity as a shareholder,
director, officer or agent of dbn (including, for example, claims for breach of
fiduciary duties, corporate opportunities or otherwise). This release and
covenant shall not apply to actions to enforce the express terms and provisions
of this Agreement or to third party claims against dbn in connection with Xxxx'
sale of his dbn stock. dbn also shall indemnify and hold harmless Xxxx (and his
heirs and personal representatives) from any and all claims, damages and losses
(including reasonable attorneys' fees) suffered or incurred by Ivie in
connection with any personal guaranties made by Xxxx, if any, prior to the date
hereof with respect to any debts or obligations of dbn.
This is a full and general release which includes, without
limitation, a release of any right dbn may have to xxx, with respect to the
matters described above: (1) under Title VII of the Civil Rights Act of 1964, as
amended, (2) under the Civil Rights Act of 1866, 42 U.S.C. (S) 1981, (3) under
the Age Discrimination In Employment Act, 29 U.S.C. (S) 621 et seq., (4) under
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the Missouri Human Rights Act, Chapter 213 of the Missouri Revised Statutes, (5)
under any ordinance of the City of St. Louis, (6) Executive Order 11246 or any
other state, federal, or local law, ordinance, or regulation dealing with
employment discrimination, discrimination on the basis of age or gender, or
other form of discrimination, or retaliation for filing any charge or claim,
complaining about any practice or conduct or participating or testifying in any
investigation, (7) under the Family and Medical Leave Act of 1993, 29 U.S.C.
(S)2601 et seq., (8) under (S) 290.140 of the Missouri Revised Statutes, (8)
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under the National Labor Relations Act, (9) under the Employee Retirement Income
Security Act of 1974, as amended, (10) under the Missouri Minimum Wage Act,
Sections 290.500-530 of the Missouri Revised Statutes and Section 290.080 et
--
seq. of the Missouri Revised Statutes, (11) under any federal or state
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securities laws, (12) under the Fair Labor Standards Act of 1938, as amended, or
the Equal Pay Act, (13) under the Consolidated Omnibus Budget Reconciliation Act
(COBRA) or any other law regarding insurance continuation, (14) for damages of
any kind including but not limited to damages for personal, emotional, or
economic injury, damage to reputation, breach of contract, wrongful discharge,
or violation of implied or express contract rights under any state, federal, or
local law, decision, or regulation, (15) for lost pay, reinstatement, liquidated
damages, or any other form of equitable relief, (16) for overtime pay, vacation
or sick pay, violation of any equal pay law, sex discrimination, severance pay,
attorneys' fees, expert's fees, or costs, and (17) for personal injury, slander,
libel, defamation, fraud, misrepresentation, intimidation, retaliation,
intentional tort, economic loss, intentional or negligent infliction of
emotional distress, costs, damages, punitive damage, front pay, failure to grant
insurance continuation, retaliation, retaliatory or wrongful discharge, breach
of contract, or breach of an implied contract.
This release shall not extinguish the obligation of dbn to indemnify
Xxxx in accordance with the Indemnification Agreement or otherwise its
indemnification obligations arising under its articles or bylaws arising prior
to the date of this agreement.
x. Xxxx (on behalf of himself and his heirs, personal
representatives and companies or other entities wholly-owned by Xxxx and/or Xxxx
and his spouse and/or children) hereby irrevocably, unconditionally and forever
releases, waives, discharges and covenants not to xxx dbn (and its shareholders,
officers, directors, employees, affiliates, advisors, agents, successors
and assigns) from and with respect to any and all claims, charges, debts,
judgments, demands, liabilities, obligations, damages and causes of action
(personal, statutory or otherwise) whether known or unknown, matured or
unmatured, fixed or contingent, which Xxxx (and his heirs, personal
representatives and companies or other entities wholly-owned by Xxxx and/or Xxxx
and his spouse and/or children) may have or assert against dbn, its
shareholders, officers, directors, employees, affiliates, advisors, agents,
successors and assigns, for any reason whatsoever, for, or arising out of, or
related to, or in connection with, actions or omissions occurring or matters
existing prior to or as of the date hereof. This release and covenant shall not
apply to (i) actions to enforce the express terms and conditions of this
Agreement, and (ii) any claim, charge, debt, judgement, liability, loss, cause
of action or other matter that does not arise out of or in connection with, or
relate to either (x) the business or operations of dbn or (y) the ownership of
dbn stock or other dbn securities.
This is a full and general release which includes, without
limitation, a release of any right Xxxx may have to xxx, with respect to the
matters described above: (1) under Title VII of the Civil Rights Act of 1964, as
amended, (2) under the Civil Rights Act of 1866, 42 U.S.C. (S) 1981, (3) under
the Age Discrimination In Employment Act, 29 U.S.C. (S) 621 et seq., (4) under
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the Missouri Human Rights Act, Chapter 213 of the Missouri Revised Statutes, (5)
under any ordinance of the City of St. Louis, (6) Executive Order 11246 or any
other state, federal, or local law, ordinance, or regulation dealing with
employment discrimination, discrimination on the basis of age or gender, or
other form of discrimination, or retaliation for filing any charge or claim,
complaining about any practice or conduct or participating or testifying in any
investigation, (7) under the Family and Medical Leave Act of 1993, 29 U.S.C. (S)
2601 et seq., (8) under (S) 290.140 of the Missouri Revised Statutes, (8) under
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the National Labor Relations Act, (9) under the Employee Retirement Income
Security Act of 1974, as amended, (10) under the Missouri Minimum Wage Act,
Sections 290.500-530 of the Missouri Revised Statutes and Section 290.080 et
--
seq. of the Missouri Revised Statutes, (11) under any federal or state
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securities laws, (12) under the Fair Labor Standards Act of 1938, as amended, or
the Equal Pay Act, (13) under the Consolidated Omnibus Budget Reconciliation Act
(COBRA) or any other law regarding insurance continuation, (14) for damages of
any kind including but not limited to damages for personal, emotional, or
economic injury, damage to reputation, breach of contract, wrongful discharge,
or violation of implied or express contract rights under any state, federal, or
local law, decision, or regulation, (15) for lost pay, reinstatement, liquidated
damages, or any other form of equitable relief, (16) for overtime pay, vacation
or sick pay, violation of any equal pay law, sex discrimination, severance pay,
attorneys' fees, expert's fees, or costs, and (17) for personal injury, slander,
libel, defamation, fraud, misrepresentation, intimidation, retaliation,
intentional tort, economic loss, intentional or negligent infliction of
emotional distress, costs, damages, punitive damage, front pay, failure to grant
insurance continuation, retaliation, retaliatory or wrongful discharge, breach
of contract, or breach of an implied contract.
Xxxx hereby waives any and all rights to request a service letter
under Section 290.140 X.X.Xx., and agrees not to request any such letter. Xxxx
further agrees that for purposes of any such letter or other inquiry, the reason
for his cessation of employment is his voluntary resignation.
5. Rights as Shareholder. The provisions of this Agreement shall not
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affect or otherwise diminish the rights that Xxxx has as of the date hereof as a
shareholder of dbn.
6. Invalidity of Provisions; Independence of Certain Provisions. In the
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event that any provision of this Agreement is adjudicated to be invalid or
unenforceable under applicable law, the validity or enforceability of the
remaining provisions shall be unaffected. To the extent that any court or other
body having appropriate jurisdiction determines that any provision of this
Agreement is invalid or unenforceable because it is too broad or otherwise
unreasonable (including the area and duration of the restraints on competition
provided in Section 3 hereof), such overbroad or unreasonable provision shall
not be void but rather shall be limited only to the extent required by
applicable law and enforced as so limited.
7. Governing Law. This Agreement shall be construed and governed by the
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laws of the State of Missouri.
8. Successors and Assigns. This Agreement shall be binding upon and inure
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to the benefit of any successors or assigns of dbn and this Agreement shall be
binding upon and inure to the benefit of the heirs and personal representatives
of Xxxx. In the event that dbn is merged with or consolidated into another
entity or sells or transfers all or substantially all of its assets, then the
survivor of such merger or consolidation or the purchaser of such assets, as the
case may be, shall assume all of the obligations of dbn hereunder.
9. No Waiver. Any delay or failure by dbn or Xxxx to exercise a right
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under this Agreement, or a partial or single exercise of that right, shall not
constitute a waiver of that or any other right.
10. Entire Agreement. This writing contains the whole and entire agreement
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of the parties hereto with respect to the subject matter hereof and supersedes
all prior and contemporaneous agreements, representations and understandings;
provided, however, that this Agreement shall not supersede or otherwise
terminate the Co-Sale Agreement, the Voting Agreement, the Indemnification
Agreement or the Restricted Stock Purchase Agreement which shall continue in
full force and effect in accordance with their respective terms.
11. Amendments. No amendments or variations of the terms or conditions of
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this Agreement shall be valid unless in writing and signed by the parties
thereto.
12. Registration Rights. Xxxx shall be entitled to receive registration
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rights with respect to his shares of dbn stock on terms that are at least as
favorable as the terms granted by dbn to its officer(s), director(s),
executive(s), and/or employee(s).
13. Miscellaneous.
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a. dbn and Xxxx shall, within five (5) days after the date hereof,
change the billing on his cellular phone to his personal account and Xxxx shall
thereafter pay all outstanding amounts due as of such date.
b. At the time of signing this Agreement, dbn and Xxxx shall cancel
his American Express credit cards. Contemporaneous with the execution of this
Agreement, Xxxx shall pay or otherwise reimburse dbn for all personal
obligations incurred by Xxxx under such credit cards then outstanding. Xxxx
hereby represents and warrants that he has no other credit arrangements or
obligations in respect of which dbn is or could become liable in whole or part.
c. dbn shall promptly forward to Xxxx (at the address set forth in
Section 14.a hereof or at such other address as Xxxx may from time to time
designate in writing to dbn) personal mail, packages, faxes and other
correspondence sent to Xxxx at the dbn offices from and after the date hereof.
14. Counterpart Facsimile Execution. For purposes of this Agreement, a
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document (or signature page thereto) signed and transmitted by facsimile machine
or telecopier is to be treated as an original document. The signature of any
party thereon, for purposes hereof, is to be considered as an original
signature, and the document transmitted is to be considered to have the same
binding effect as an original signature on an original document. At the request
of any party, any facsimile or telecopy document is to be re-executed in
original form by the parties who executed the facsimile or telecopy document.
No party may raise the use of a facsimile machine or telecopier or the fact that
any signature was transmitted through the use of a facsimile or telecopier
machine as a defense to the enforcement of this Agreement or any amendment or
other document executed in compliance with this Section 14.
IN WITNESS WHEREOF, the undersigned have executed this Severance Agreement
as of the date above written.
I HAVE READ THIS SEVERANCE AGREEMENT, UNDERSTANDING ALL ITS TERMS, AND SIGN
IT AS MY FREE ACT AND DEED.
/s/ Xxxx Xxxx
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Xxxx Xxxx
I HAVE READ THIS SEVERANCE AGREEMENT, UNDERSTANDING ALL ITS TERMS, AND SIGN
IT ON BEHALF OF DBN AS THE FREE ACT AND DEED OF DBN WITH FULL AUTHORITY TO
EXECUTE THIS DOCUMENT ON BEHALF OF DBN.
DIGITAL BROADCAST NETWORK CORPORATION
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Vice President of Channel Development
