Exhibit 10.24
SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement Agreement and General Release ("Agreement" or "Settlement
Agreement") is entered into by and between Xxxxxx X. Xxxxxx ("Xxxxxx" or
"Plaintiff"), and Magnitude, Inc. to settle any and all claims which Xxxxxx may
have against Magnitude, and any of its subsidiaries, affiliated companies,
divisions, or its representative predecessors, successors and assigns (as well
as its respective past or present officers, directors, agents, representatives
or employees, and its respective successors and assigns, heirs, executors, and
personal or legal representatives), including, but not limited to, any and all
claims, including claims to attorney's fees or frivolous pleading claims, which
have been or which could have been asserted by Xxxxxx in the matter entitled
Xxxxxx X. Xxxxxx v. Magnitude, Inc., Superior Court of New Jersey, Xxxxxx
County, Docket No. MRS-L-2544-06 (the "Action"). The parties agree that:
1. Confidentiality.
Xxxxxx agrees to keep the facts alleged in the Action, the facts and terms of
this Agreement, and all discussions leading to this Agreement, in strict
confidence, except as required by law or court order. Xxxxxx also agrees not to
disclose this document, its contents or subject matter to anyone other than his
spouse, financial planner, attorney, accountant or income tax preparer who
likewise agrees to keep such information confidential. The parties agree that
disclosure of this document and/or the terms of this Agreement to any taxing
authority shall not be deemed a breach of this confidentiality provision.
Xxxxxx further agrees that if he is required by law to disclose the Agreement or
its contents, he shall notify Magnitude's legal counsel (Mauro, Xxxx, Xxxxxxxx &
Xxxxx, 00 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 08876) in writing of any
such required disclosure not less
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than 10 days (or such shorter period if the time set for disclosure is less than
10 days) prior to the time set for disclosure to allow Magnitude sufficient time
to move to quash.
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Xxxxxx agrees that he will respond to any inquiries about the Action by
stating only that it has been resolved.
Xxxxxx agrees that confidentiality is a material and essential term of
this Agreement, and that these confidentiality provisions shall survive, and be
given full force and effect separately from any invalid, unenforceable or
inoperative provision of this Agreement. Xxxxxx further agrees that Magnitude
shall be entitled, upon any breach or threatened breach of this confidentiality
provision, to an immediate injunction to prevent any such breach, future breach
or threatened breach and to any damages proven at trial. In addition, Xxxxxx
agrees that Magnitude shall be entitled to liquidated damages in the amount of
Ten Thousand Dollars ($10,000.00) upon proof of breach of the confidentiality
provisions of this Agreement by Xxxxxx or someone acting in his behalf. Xxxxxx
further agrees that if Magnitude is successful in proving that he has breached
the confidentiality provisions of this Agreement, Xxxxxx shall pay to Magnitude
all of its attorneys' fees and costs incurred in proving that breach.
2. Stipulation of Dismissal.
Xxxxxx will cause his counsel to execute and provide to Magnitude's
attorneys within ten (10) days a Stipulation of Dismissal of the claims in the
Action, in the form annexed hereto as Exhibit "A", together with a stipulation
staying further proceedings in the Action until March 9, 2007, and adjourning
the trial of the action to a date thereafter convenient for the parties and the
Court. The Stipulation of Dismissal shall be held in escrow by Magnitude's
attorneys pending Magnitude's full performance hereunder, including the making
of the Settlement Payment, as provided in the next paragraph.
3. Settlement Payment.
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x. Xxxxxx will receive, in consideration for release of any and all claims
and any and all potential claims against Magnitude, including those asserted in,
or which could have been asserted in, the Action, a payment of the gross sum of
Twenty Thousand Forty Dollars ($20,040.00) ("the Partial Payment") together with
the full Purchase Price, as hereinafter defined. To the extent The Partial
Payment shall be deemed "wages," the same shall be subject to the withholding of
applicable payroll taxes. Xxxxxx may provide Magnitude with a revised Form W-4
on or before January 10, 2007, in accordance with which his withholdings shall
be calculated, but, if he does not do so, Magnitude may rely upon his most
recent form W-4, on file, for this purpose. A check in payment of the Partial
Payment, net of withholdings, shall be payable to "Xxxxxx X. Xxxxxx." Xxxxxx
understands and agrees that Magnitude shall issue him a Form W-2 with respect to
the payment in this subparagraph. This payment shall be made by Magnitude to
Xxxxxx on or before January 12, 2007.
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b. In addition, Magnitude shall issue 3,000,000 shares of its common stock
to Xxxxxx (the "Shares") on or before January 12, 2007 and Magnitude shall
notify plaintiff's counsel via e-mail once the Shares are issued. The
certificate representing the Shares shall be delivered to Magnitude's corporate
counsel, Xxxxxx X. Xxxxxxx, Esq., 00 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000 (the "Escrow Agent"). On or before January 12, 2007, Jagel shall deliver
to the Escrow Agent his fully executed Stock Power, containing a medallion
signature guarantee (the "Stock Power"), to the Escrow Agent. Magnitude shall
register the Shares for resale on behalf of Xxxxxx under the Securities Act of
1933, as amended (the "1933 Act"). Magnitude shall register the Shares as
aforesaid and following their registration under the 1933 Act, cause a purchaser
or purchasers to deliver $75,000, representing the purchase price for the Shares
(the "Purchase Price") into the Escrow Agent's Attorney Trust Account on or
before February 28, 2007. Upon the receipt by the Escrow Agent of the Purchase
Price on or before February 28,
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2007, the Escrow Agent is authorized to deliver the Stock Power and the Shares
to the purchaser or purchasers and to withdraw from his Attorney Trust Account
and pay the $75,000 to Xxxxxx.
c. In the event that for any reason whatsoever, the Purchase Price is not
delivered into the Attorney Trust Account of the Escrow Agent on or before
February 28, 2007, and thereafter paid over to Xxxxxx, as aforesaid, the
Stipulation of Dismissal shall be null, void and of no further force and effect,
and the same shall not be filed with the court, but shall be returned to
plaintiff's attorneys. Plaintiff shall thereupon have the right to continue
prosecution of this Action as if this Settlement Agreement had not been entered,
provided Magnitude shall receive a credit against any liability ultimately found
against it for any sums paid hereunder. The Escrow Agent shall thereupon deliver
the Shares and the Stock Power to plaintiff's counsel on or before March 5,
2007. Upon Escrow Agent's delivery of the Purchase Price to Xxxxxx and the
delivery of the Shares and Stock Power to the purchaser(s) in the former case or
upon Escrow Agent's delivery of the Shares and the Stock Power to plaintiff's
counsel in the latter case, Escrow Agent duties under this Agreement shall be
deemed fully discharged and terminated. Except in the instance of gross
negligence exhibited exclusively by the Escrow Agent's inexcusable failure to
take the express measures identified in this section 3, all parties to this
Agreement agree to defend Escrow Agent and hold him harmless from and against
any liability of any nature whatsoever arising out of or in connection with
Escrow Agent's participation and agreement to act as the Escrow Agent for the
express purposes identified in this Agreement.
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c. The above check shall be sent to plaintiff's counsel, Xxxxxxx Xxxxxx,
Esq., Xxxxxx, Xxxxxxx & Xxxxx, P.C. provided that plaintiff has delivered the
executed Agreement and Stipulation of Dismissal to Magnitude's counsel.
x. Xxxxxx agrees that he is solely responsible for determining the tax
consequences of the payments referred to above, and for paying taxes, if any,
which are determined to be owed
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(including penalties and interest related thereto) by any taxing authority with
respect to such payments. Xxxxxx agrees and understands that Magnitude has not
made any representations regarding the tax treatment of the sum pursuant to this
Agreement. In the event a claim for such taxes and/or penalties and interest is
asserted by any taxing authority, Xxxxxx agrees to, and does hereby indemnify
and hold Magnitude harmless against any and all tax liability, interest and/or
penalties as due thereon from Magnitude other than what Magnitude would owe for
its share of FICA and any other amount for which it would ordinarily be
responsible.
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4. Employment Rights.
Xxxxxx hereby waives any and all rights to reinstatement or re-employment with
Magnitude as an employee or independent contractor, and specifically promises
not to apply for or accept future employment, or seek retention as a consultant,
contractor, or any other type of non-payroll worker, with Magnitude, any
subsidiary or parent of Magnitude, or any party to the extent that his services
would be performed directly for Magnitude. Xxxxxx also agrees that employment
contrary to this provision is a material breach of this Agreement which will be
grounds for immediate termination. Xxxxxx further agrees that Magnitude shall be
under no obligation to employ, re-employ, contract with, or accept any services
performed by him as part of his employment with any third party.
5. Release.
a. In consideration for the payment and other consideration provided for
in this Agreement, Plaintiff for himself, his administrators, executors, heirs
and assigns, waives, releases and gives up any and all claims and rights which
he may have against Magnitude, Inc. and any of its subsidiaries, divisions,
affiliated companies, benefit plans or their respective predecessors, successors
and assigns (as well as their respective past or present officers, directors,
shareholders, trustees, administrators, agents, representatives or employers and
their
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respective successors and assigns, heirs, executors, and personal or legal
representatives, including but not limited to Magnitude, Inc.)(hereinafter
referred to as "Releasees"), based on any act, event or omission occurring
before the execution of this Agreement, including, but not limited to, any
events related to, arising out of or in connection with Xxxxxx X. Xxxxxx'
employment, and any claims arising out of or relating to the Action. Plaintiff
specifically waives, releases and gives up any and all claims against Releasees
based on any act, event, or omission occurring before the execution of this
Agreement, including, but not limited to: any claim which could be asserted now
or in the future under (a) the common law, including, but not limited to
theories of tort or contract (express or implied), defamation, or violation of
public policy; (b) any policies, practices, or procedures of the Company; (c)
any federal, state or local law, statute or regulation expressly including, but
not limited to: the Employee Retirement Income Security Act of 1974, 29 U.S.C.
Section 1001, et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C.
Section 791, et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C.
Section 2000(e), et seq.; 42 U.S.C. Section 1981 through 1988; the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Section 621, et
seq.; the Older Worker's Benefit Protection Act, 29 U.S.C. Section 629, et seq.;
the Family and Medical Leave Act, 29 U.S.C. Section 2601, et seq.; the Fair
Labor Standards Act, 29 U.S.C. Section 201, et seq.; the Americans with
Disabilities Act, 42 U.S.C. Section 12101, et seq.; the New Jersey Law Against
Discrimination, N.J.S.A. 10:5-1, et seq.; the New Jersey Conscientious Employee
Protection Act, N.J.S.A. 34:19-1, et seq., the New Jersey Family Leave Act,
N.J.S.A. 34:11B-1 et seq.; the Equal Pay Act, 29 U.S.C. Section 206(d) et seq.;
the New Jersey Wage Payment Law, N.J.S.A. 34:11-4.1 et seq.; and/or the New
Jersey Wage and Hour Law, N.J.S.A. 34:11-56a et seq.; (d) any contract of
employment, expressed or implied; (e) any provision of the Constitution of the
United States, the State of New Jersey or any other state; (f) any and all
claims or actions for attorneys' fees arising out of the Action; and (g) any
provision
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of any other law, common or statutory, of the United States, New Jersey, or any
other state or locality.
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b. Xxxxxx X. Xxxxxx is further waiving, releasing, and giving up any claim
for attorneys' fees or costs relating to the Action (including claims by Xxxxxxx
X. Xxxxxx, Esq.) upon payment of the sums set forth in paragraph 3.
6. Covenant Not to Xxx.
Xxxxxx represents that with the exception of the Action, he has no pending
lawsuits, charges or other claims of any nature whatsoever against Magnitude,
Inc., any of its subsidiaries, divisions, affiliated companies or their
respective predecessors, successors and assigns (as well as each of their
respective past or present officers, directors, shareholders, agents,
representatives or employees) in any state or federal court, or before any
agency or administrative body. Further, Xxxxxx agrees to the fullest extent
permitted by law, not to assert any claims, charges or other legal proceedings
against Magnitude, Inc., its parent company, any of its subsidiaries, divisions,
affiliated companies or their respective predecessors, successors and assigns
(as well as each of their respective past or present officers, directors,
shareholders, agents, representatives or employees), based on any events,
whether known or unknown, occurring prior to the date of the execution of this
Agreement, including but not limited to, any events related to any aspect of
Xxxxxx' employment with Magnitude, Inc. or the cessation thereof. Xxxxxx further
agrees that he will not "opt in" to and will "opt out" of any class action in
which Magnitude, Inc. is named as a defendant. Xxxxxx also agrees that if any
charge or complaint is filed on his or another person's or entity's behalf based
on events occurring prior to the date of the execution of this Agreement, he
will not accept any relief or recovery therefrom.
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If Xxxxxx breaches either paragraph 5 or 6 hereof by, for example, filing and/or
joining a lawsuit regarding claims he has released, Xxxxxx shall pay any party
being released under
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paragraph 5 all reasonable attorneys' fees and costs applicable to Xxxxxx
incurred in each action, suit or other proceeding, including any and all appeals
or petitions therefrom.
7. Non-Admission.
This Agreement shall not be construed as an admission by the parties of any
wrongdoing or liability of any nature whatsoever. Xxxxxx recognizes that
Magnitude expressly denies each and every one of the allegations of wrongdoing
in the Action. The parties further recognize that they specifically deny any
liability whatsoever for any damages, injuries or other claims made by him or
which could be claimed by them Magnitude and Xxxxxx are entering into this
Agreement solely because they are desirous of settling all claims between them
and thereby avoiding further expense and inconvenience, and putting to rest the
controversies between Magnitude and Xxxxxx.
8. Return of Property/Proprietary Information.
Xxxxxx represents and warrants that he has returned all of Magnitude's
property in his possession, including documents, memoranda, reports, manuals,
handbooks, telephone lists, emails, notes, keys and any other articles he used
in the course of his employment, or acquired in any way at any time, and that he
has not retained copies of any such property (except for employee benefits
information).
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Xxxxxx acknowledges that during the course of his employment with
Magnitude, he was entrusted with business and technical information regarding
Magnitude's products which are confidential and are proprietary to Magnitude and
which are the property of Magnitude ("Confidential Information"). Xxxxxx agrees
that he will not communicate or disclose to any third party, or use for his own
benefit or for any other third party's benefit, any Confidential Information.
Xxxxxx agrees and understands that any work product he may have produced while
employed at Magnitude is the exclusive property of Magnitude. Xxxxxx agrees and
understands
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that he has not right to license, sell, or use in any way Confidential
Information or such work product.
9. Nondisparagement.
The parties agree that they shall not make any derogatory or disparaging
statement to anyone about each other, nor will they respectively take any action
intended, or which may reasonably be expected, directly or indirectly, to impair
the good will, business reputation or good name of either of the other.
10. Successors and Assigns.
Xxxxxx and Magnitude are bound by this Agreement. Those who succeed to
Xxxxxx' rights and responsibilities, such as his heirs, the executors or his
estate, or his personal or legal representatives are also bound by this
Agreement. This Agreement is made for the benefit of Magnitude and all who
succeed to its rights and responsibilities, such as any successors and/or
assigns. It is understood that the General Release (whether or not specifically
stated) applies as well to Magnitude's subsidiaries, affiliates, divisions, and
related companies, and each of their respective predecessors, successors and
assigns (as well as the past or present officers, directors, shareholders,
agents, representatives and employees of each entity).
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11. Severability.
Xxxxxx and Magnitude agree that if any court declares any portion of this
Agreement unenforceable, the remaining portions shall be fully enforceable. If
one or more provisions of this Agreement are held to be excessively broad as to
scope so as to be unenforceable at law, such provision shall be construed by the
appropriate judicial body by limiting and reducing it or them so as to be
enforceable to the maximum extent compatible with the applicable law.
12. Counterparts and Applicable Law.
This Agreement may be executed in counterparts and shall be construed and
interpreted
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in accordance with the laws of the State of New Jersey. The parties agree that
any action to enforce or interpret this Agreement shall only be brought in a
court of competent jurisdiction within the State of New Jersey.
13. Waivers.
The failure of a party to insist upon strict adherence to any term of this
Agreement on any occasion shall not be considered a waiver thereof nor deprive
that party of the right thereafter to insist upon strict adherence to that term.
No waiver or modification of this Agreement shall be binding unless it is in
writing and signed by the parties hereto, and expressly states that it is a
waiver or modification of this Agreement.
14. Full Knowledge of Terms and Period of Review.
By signing this Agreement, Xxxxxx states that he has the right to and is
hereby advised to consult with any attorney of his choice and at his expense
prior to signing it.
Xxxxxx hereby represents and warrants that, prior to executing this
Settlement Agreement, he has fully discussed its meaning and effect with his
counsel, and that he fully understands its meaning and effect; and, in
particular, he represents and warrants that his counsel has explained to him,
and he fully comprehends, the meaning of each of the provisions of this
Settlement Agreement and the legal effect thereof, and that he has entered into
this Settlement Agreement voluntarily.
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Xxxxxx states he was given a reasonable period or time to consider his
release of all claims referred to herein, including all claims that he asserted
in the Action.
Xxxxxx states that he was given a period of at least twenty-one days after
receipt of this Settlement Agreement to consider his waiver of claims of age
discrimination and that he has seven days after signing this Settlement
Agreement in which to revoke his waiver of the age discrimination claims by hand
delivering written notice revoking his waiver of such claims to
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Xxxxxxx X. Xxxxxx, Esq., Mauro, Xxxx, Xxxxxxxx & Xxxxx, P.A., 00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000. Xxxxxx agrees that if he signed this
Settlement Agreement and General Release before the twenty-one days have
expired, it was a voluntary decision to do so because he did not need any
additional time to decide whether to sign it or waive any age discrimination
claims. Xxxxxx' waiver of age discrimination claims shall not become effective
or enforceable until the seven-day revocation period has expired. If no such
revocation occurs, Xxxxxx' waiver of age discrimination claims shall become
effective on the eight (8) day th following its execution by Xxxxxx.
15. Interpretation.
Xxxxxx and Magnitude agree and acknowledge that their counsel have
reviewed and negotiated this Settlement Agreement and that the usual rules of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Settlement
Agreement.
16. Headings and Syntax.
The headings set forth in this Settlement Agreement are for convenience
and reference only and are not intended to modify, limit, describe or affect in
any way the content, scope or intent of this Settlement Agreement. All
references made and pronouns used shall be construed in the singular or the
plural and in such gender as common sense and circumstance require.
17. Entire Agreement.
This Agreement contains the sole and the entire agreement between Xxxxxx
X. Xxxxxx and Magnitude, Inc., and completely and fully supersedes and replaces
any and all prior contracts, agreements, discussions, representations,
negotiations, understandings and any other communications among the parties
pertaining to the subject matter hereof. Xxxxxx represents and acknowledges, in
executing this Agreement, that he has not relied upon any representation or
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statement not set forth in this Agreement made by Magnitude or its counsel or
representatives with regard to the subject matter of this Agreement. No other
promises or agreements shall be binding unless in writing, signed by the parties
hereto, and expressly stated to represent an amendment to this Agreement.
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18. BY SIGNING THIS AGREEMENT, XXXXXX STATES THAT:
(a) HE HAS READ IT AND HAS HAD AN ADEQUATE OPPORTUNITY TO REVIEW ITS
TERMS, AND UNDERSTAND ITS TERMS AND CONSEQUENCES;
(b) HE UNDERSTANDS IT AND KNOWS THAT HE IS GIVING UP IMPORTANT RIGHTS,
INCLUDING RIGHTS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 (42 U.S.C.
Section 2000(e) et seq.) AND THE NEW JERSEY LAW AGAINST DISCRIMINATION (N.J.S.A.
10:5-1 et seq.);
(c) HE AGREES WITH EVERYTHING IN IT;
(d) HE HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING
THIS RELEASE AND HAS IN FACT DONE SO;
(e) HE HAS HAD A REASONABLE PERIOD OF TIME IN WHICH TO CONSIDER THE TERMS
AND EFFECT OF THIS AGREEMENT; AND
(f) HE HAS SIGNED THIS RELEASE FREELY, KNOWINGLY AND VOLUNTARILY.
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Witness XXXXXX X. XXXXXX
Dated: _______________________, 2007 Dated: ______________________, 2007
MAGNITUDE, INC.
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ATTEST
Dated: _______________________, 2007 Dated: ______________________, 2007
ESCROW AGENT:
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Xxxxxx X. Xxxxxxx
Dated: ________________________, 2007
EXHIBIT "A"
00
XXXXX, XXXX, XXXXXXXX & XXXXX, P.A.
Attorneys at Law
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attorneys for Defendant Magnitude, Inc.
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XXXXXX X. XXXXXX, : SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION: XXXXXX COUNTY
Plaintiff, : DOCKET NO. MRS-L-2544-06
:
vs. : Civil Action
MAGNITUDE INC., : STIPULATION OF DISMISSAL WITH
: PREJUDICE AND WITHOUT
: ATTORNEYS' FEES OR COSTS
Defendant.
:
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It is hereby stipulated and agreed between the parties that this action be
and is hereby dismissed with prejudice and without costs or attorneys' fees
against any party.
XXXXXX, XXXXXXX & XXXXX, P.C.
Attorneys for Plaintiff Xxxxxx X. Xxxxxx
By:
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Xxxxxxx X. Xxxxxx, Esq.
Dated:
MAURO, XXXX, XXXXXXXX & XXXXX, P.A.
Attorneys for Defendant Magnitude, Inc.
By:
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Xxxxxxx X. Xxxxxx, Esq.
Dated:
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