SEPARATION AND CONSULTING AGREEMENT
EXHIBIT
10.1 — Separation and Consulting Agreement dated August 19, 2005
This Separation and Consulting Agreement (the “Agreement”) is made and entered into this
19th day of August, 2005, by and between Donnelley Marketing, Inc. (“Company”), Xxx Xxxxxx
(“Xxxxxx”) and White Oak Consulting , Inc. (“White Oak Consulting”).
BACKGROUND
X. | Xxxxxx has resigned from his employment with Company effective August 31, 2005. |
X. | Xxxxxx owns and operates White Oak Consulting, an independent consulting business. |
C. | In consideration of Xxxxxx’ covenants, agreements and release contained in this Agreement, Company wishes to engage Xxxxxx and White Oak Consulting to perform certain consulting services for Company as described below. |
NOW THEREFORE, consistent with the above Background, which is hereby incorporated into
this Agreement by this reference, and in consideration of the promises and covenants contained
below, and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties, intending to be legally bound, agree as follows:
TERMS
1. Resignation. Xxxxxx’ employment with Company will terminate effective August 31,
2005 (the “Resignation Date”). Company will pay Xxxxxx his regular compensation through the
Resignation Date, less appropriate payroll deductions, on the pay date immediately following the
Resignation Date.
2. Paid Time Off (PTO) and Other Benefits. Company will pay Xxxxxx for accrued,
unused PTO, less appropriate payroll deductions on the pay date immediately following the
Resignation Date. All other Company benefits shall end on Xxxxxx’ Resignation Date, and Xxxxxx
acknowledges that he is not entitled to any additional benefits, bonuses, or other compensation
following the Resignation Date, except as set forth in this Agreement.
3. Stock. Xxxxxx may sell or transfer his shares of stock or exercise any vested
stock options pursuant to the terms and conditions of the relevant stock purchase or option
plan(s).
4. Consulting Services. In exchange for Xxxxxx’ covenants, agreements and release as
provided in this Agreement, Company agrees to engage Xxxxxx and White Oak Consulting from September
1, 2005 through August 31, 2006, subject to earlier termination as described below (the “Consulting
Period”), for the purpose of providing the following consulting services to Company:
x. Xxxxxx and White Oak Consulting will provide Company, its directors, officers and
employees with consulting, transition and advisory services as may be reasonably requested
by Company concerning Company matters of which Xxxxxx is knowledgeable (the “Consulting
Services”). Company will pay White Oak Consulting the monthly gross amount of $33,333.00
for the Consulting Services provided by Xxxxxx (“Consulting Fees”). White Oak Consulting
will receive the first monthly Consulting Fee on October 1, 2005, and on the first of the
month each month thereafter during the Consulting Period with the final monthly payment
being made on September 1, 2006, unless Consulting Services are terminated prior to this
date as described below. Xxxxxx and White Oak Consulting acknowledge that they
are responsible for paying all taxes due and payable on the Consulting Fees received from
Company in accordance with federal, state and local laws, and Xxxxxx and White Oak
Consulting agree to indemnify and hold Company harmless from all tax obligations relating to
the Consulting Fees.
x. Xxxxxx and White Oak Consulting acknowledge that they are independent contractors
with regard to the Consulting Services and Xxxxxx is no longer an employee of Company.
Xxxxxx and White Oak Consulting shall be responsible for any and all expenses incurred by
Xxxxxx in the performance of the Consulting Services unless otherwise agreed to in writing
by Company. Xxxxxx further acknowledges that Company will not obtain workers’ compensation
or any other insurance on his or White Oak Consultings’ behalf. Xxxxxx and White Oak
Consulting shall have no right or authority, express or implied, to incur any liability or
obligation on behalf of or in the name of Company.
c. If during the Consulting Period, Xxxxxx and/or White Oak Consulting discontinue the
provision of Consulting Services to Company, or if Xxxxxx secures employment or other
compensable work, whether as an employee, independent contractor or otherwise (collectively
referred to as “Employment”), Company’s obligation to pay or continue paying either Xxxxxx
or White Oak Consulting the Consulting Fees shall immediately terminate. Xxxxxx shall
immediately notify Xxxx Xxxxxxxxx at Company if he obtains other Employment.
5. Nondisclosure. Xxxxxx acknowledges that employment with Company necessarily
involved access to and familiarity with highly sensitive confidential and proprietary information
and data of Company’s including, without limitation, information about employees, compensation,
customers, pricing, software, trade secrets, business methods and operations, financial
performance, marketing strategies, and know-how regarding the business of Company and its products
and services (collectively referred to herein as “Confidential Information”).
Therefore, as part of the consideration to Company for entering into this Agreement, Xxxxxx shall
not disclose to any third party including, without limitation, Company’s customers or other
individuals, employees, corporations, partnerships, sole proprietorships or any other person or
entity (collectively the “Third Party”) any Confidential Information or use any Confidential
Information for his own benefit or the benefit of any Third Party. Xxxxxx shall immediately return
all Confidential Information, including all copies of same, in any form (including computer
records), to Company. Xxxxxx shall also immediately return all Company property including, without
limitation, Company credit cards, Company keys, and Company calling cards.
6. Nonsolicitation/Noncompetition. Unless a written waiver and consent is obtained by
Xxxxxx from Company, Xxxxxx acknowledges that he remains bound by the terms of the Standards of
Business Conduct executed by Xxxxxx on November 11, 2002, which is attached hereto as “Exhibit A”
and incorporated by this reference, and the covenant not to compete restrictions as described in
the Stock Option Agreement between Xxxxxx and infoUSA, Inc., which is attached hereto as “Exhibit
B” and incorporated by this reference. Notwithstanding the foregoing, if the Consulting Period is
terminated by Company prior to August 31, 2006, pursuant to 4.c. above, all of Xxxxxx’ noncompete
restrictions, including those described in the Stock Option Agreement and the Standards of Business
Conduct shall be modified as follows:
a. For the remainder of Xxxxxx’ noncompete period, Xxxxxx will not, directly or
indirectly, on Xxxxxx’ own behalf or by aiding any other individual or entity:
i. Call on, solicit the business of, sell to, service, or accept business from,
any of Company’s customers with whom Xxxxxx had personal contact and did business
within the twelve (12) month period immediately prior to the termination of his
employment for the purpose of providing the customer with products and/or services
of the type or character typically provided by Company; or
ii. Encourage any vendor or supplier of Company to curtail, sever, or alter its
relationship or business with Company.
All other terms and conditions of the Standards of Business Conduct shall remain in full force and
effect.
7. Indemnification. Xxxxxx hereby agrees to indemnify, defend and hold Company
harmless with respect to any and all actions, suits, proceedings, investigations, demands or claims
which are incurred by or brought against Company during the Consulting Period arising out of or
related to the performance of the Consulting Services or by reason of Xxxxxx’ xxxxx negligence,
criminal acts or gross misconduct. Company hereby agrees to indemnify, defend and hold Xxxxxx
harmless with respect to any and all actions, suits, proceedings, investigations, demands or claims
which are incurred by or brought against Xxxxxx during the Consulting Period arising out of or
related to the performance of the Consulting Services or by reason of Company’s gross negligence,
criminal acts or gross misconduct.
8. No Disparaging Comments. Xxxxxx covenants and agrees that he will not directly or
indirectly, verbally or in writing, make statements to any Third Party which defame or disparage
Company’s reputation (including its parent, subsidiaries or affiliates), its business, services,
products, or its directors, officers, employees or agents.
9. No Admission. Xxxxxx agrees that neither this Agreement nor any obligations under
this Agreement constitute an admission by Company of any violation of any federal, state or local
laws, rules or regulations or of any liability under contract or tort theories. Company
specifically disclaims any wrongdoing whatsoever against Xxxxxx on the part of Company or its
parent, subsidiaries or affiliates or their respective officers, directors, employees or agents.
10. Release. Xxxxxx hereby releases and forever discharges Company, its parent,
subsidiaries and affiliates including, without limitation, infoUSA, Inc., and their respective
officers, directors, employees and agents, from any and all claims, damages (including attorney
fees), demands, actions or causes of action of any kind or nature, whether known or unknown, that
Xxxxxx has, or may have, up to and including the date of this Agreement, arising out of Xxxxxx’
employment with Company and/or the termination of Xxxxxx’ employment with Company, (collectively
the “Claims”) including, but not limited to, any Claim alleging breach of the Stock Option
Agreement or Plan, or any other contract, express or implied, promissory estoppel or any tort, and
Claims under
any federal, state statute or local ordinance, or government regulation or common laws,
including, but not limited to, the Age Discrimination in Employment Act, Title VII of the Civil
Rights Act of 1964, the Americans With Disabilities Act, the Fair Labor Standards Act, the Family
and Medical Leave Act, the Employee Retirement Income Security Act, the New Jersey Law Against
Discrimination, and the New Jersey Wage Payment Law, all as amended.
11. Review Period. Xxxxxx confirms and acknowledges that he has read and understands
this Agreement and that he has signed this Agreement freely and voluntarily. Xxxxxx further
acknowledges that he has been given up to twenty-one (21) days from August 8, 2005, to consider
signing this Agreement (the “Review Period”). Xxxxxx agrees that the changes made, whether
material or immaterial, did not restart the running of the Review Period. Xxxxxx may sign this
Agreement before the expiration of the Review Period by signing and delivering to Company this
Agreement and the Waiver of the 21-Day Review Period attached hereto as Exhibit “C” and
incorporated by this reference.
12. Consultation with Attorney. Xxxxxx acknowledges that he has been advised to
consult with an attorney of his choosing prior to signing this Agreement and has done so. Xxxxxx
will be solely responsible for any attorneys’ fees he incurs in connection with this Agreement.
13. Right of Revocation. Xxxxxx acknowledges and understands that he may revoke this
Agreement for a period of up to seven (7) days after he executes it (not counting the day it is
signed). To revoke this Agreement, Xxxxxx must give written notice to Company stating that he
wishes to revoke this Agreement, by providing notice by hand-delivery, mail or facsimile to Xxxx
Xxxxxxxxx, 0000 Xxxxx 00xx Xxxxxx, X.X. Xxx 00000, Xxxxx, Xxxxxxxx 00000-0000 (000)
000-0000 (facsimile). This Agreement shall become effective upon the expiration of the seven (7)
day revocation period (the “Effective Date”).
14. Remedies. Xxxxxx expressly acknowledges that each of his obligations hereunder
are considered material terms of this Agreement. Xxxxxx further acknowledges that any material
breach or violation of any of the covenants and agreements contained in this Agreement will cause
immediate and irreparable injury to Company and that in the event of a breach or threatened or
intended breach of this Agreement by Xxxxxx, Company, in addition to all other legal and equitable
remedies available to it, shall be entitled to injunctive relief to enforce the covenants,
agreements and restrictions set forth herein. Additionally, upon a breach of this Agreement, all
further obligations of Company with respect to Consulting Fees shall terminate.
15. General.
a. Governing Law and Venue. This Agreement shall be construed in accordance
with the laws of the State of Nebraska. Xxxxxx hereby expressly consents to the personal
jurisdiction of the state and federal courts located in Nebraska for any lawsuit that arises
from or relates to this Agreement. Xxxxxx hereby consents to venue in Nebraska.
b. Entire Agreement. This Agreement sets forth the entire Agreement and
understanding of the parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral between the parties. Xxxxxx
acknowledges that he has not relied on any representation or statement not set forth in this
Agreement by any representative of Company.
c. Amendments. Any amendment to, modification of, or supplement to this
Agreement must be in writing and signed by the parties hereto.
d. Binding Effect. This Agreement and the rights, interests and obligations of
Company hereunder shall be assignable by Company. This Agreement is not assignable by
Independent Consultant without Company’s advance written consent.
e. Confidentiality. Xxxxxx agrees not to disclose the existence or contents of
this Agreement. Notwithstanding the foregoing, it is agreed that Xxxxxx may disclose the
terms and amounts of this Agreement to Xxxxxx’ respective attorney, accountant and spouse;
provided, however, that any person to whom such disclosure is made will, prior to
disclosure, acknowledge the confidentiality of such information and agree to keep such
information confidential.
IN WITNESS WHEREOF, the parties hereto have executed this Separation Agreement and General Release
as of the day and year first above written.
DONNELLEY MARKETING, INC. |
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By |
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Its: |
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WHITE OAK CONSULTING, INC. | XXX XXXXXX | ||
By | |||
Its: | |||
EXHIBIT “C”
WAIVER OF 21-DAY REVIEW PERIOD
I, the undersigned, hereby knowingly and voluntarily waive the twenty-one (21) day review
period to consider the Separation Agreement and General Release (“Agreement”) set forth above. I
fully understand and agree that by signing this WAIVER I surrender for all time whatever right(s)
and/or claim(s) I may have to challenge the Agreement set forth above because a full twenty-one
days did not expire before I signed said Agreement in exchange for expediting implementation of the
terms of the Agreement. I have read, fully understand and consent to the terms of this WAIVER and
I sign it in the absence of fraud, duress, undue influence or reliance upon any oral and/or written
representations not included in the terms of this WAIVER. This WAIVER shall be interpreted in
accordance with the plain meaning of its terms and not strictly for or against any interested
party.
Dated: |
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Xxx Xxxxxx |