EXHIBIT 10.2
AGREEMENT
This Agreement (this "Agreement") is made as of June 19, 2006, between
CoActive Marketing Group, Inc., a Delaware corporation ("CoActive") and Xxxx X.
Xxxxxxxx ("Xxxxxxxx").
RECITALS
WHEREAS, Xxxxxxxx and CoActive are parties to an Employment Agreement,
dated as of September 29, 1995, as amended by a First Amendment to Employment
Agreement, dated as of May 2, 1997, a Second Amendment to Employment Agreement,
dated as of November 14, 2001, a Third Amendment to Employment Agreement, dated
as of June 17, 2003, a Fourth Amendment to Employment Agreement, dated as of
January 26, 2006, and Fifth Amendment to Employment Agreement dated as of March
31, 2006 (as so amended, the "Employment Agreement"), pursuant to which Xxxxxxxx
is employed as CoActive's President and Chief Executive Officer; and
WHEREAS, Xxxxxxxx and CoActive have agreed to a termination of the
Employment Agreement, and the settlement and release of claims by each party on
the terms set forth herein.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Termination of Employment Agreement; Resignation as Officer
and Director. Effective as of July 1, 2006, or if later, the date on which
CoActive files with the Securities and Exchange Commission its Annual Report on
Form 10-K for the year ended March 31, 2006 (the "Effective Date"), without any
further action of the parties hereto, the Employment Agreement shall, except as
expressly set forth below, be terminated and of no further force and effect, and
Xxxxxxxx shall cease to be an officer and director of CoActive and its
subsidiaries.
2. Transition Payments and Services. For the period beginning on
the Effective Date and ending June 30, 2007 (the "Transition Period"), Xxxxxxxx
will be paid a base salary of $300,000, payable in periodic installment in
accordance with CoActive's regular payroll practices, provided, however that the
final payment (in an an amount so that the aggregate of such installments equals
$300,000) shall be made no later than June 15, 2007. In addition, until the end
of the Transition Period, Xxxxxxxx shall continue to be (i) provided with all
medical and other benefits currently provided to him under Section 4(d) of the
Employment Agreement on the same basis provided to Xxxxxxxx prior to the
Effective Date (or as are otherwise applicable to CoActive's executives), and
(ii) reimbursed for all reasonable expenses incurred by Xxxxxxxx consistent with
Section 5 of the Employment Agreement. In consideration of the foregoing, until
October 1, 2006, Xxxxxxxx shall continue in the employ of CoActive on a
full-time basis to assist it with the transition of its newly appointed chief
executive officer and with such other related matters as may reasonably be
requested by CoActive's chief executive officer. From October 1, 2006 until the
termination of the Transition Period, Xxxxxxxx shall periodically consult with
CoActive on an as-needed basis and shall continue to be deemed to be an employee
of CoActive with respect to all options to purchase CoActive common stock
previously issued to him.
3. Release.
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(a) In exchange for the consideration provided for by
Section 2 hereof, Xxxxxxxx for himself and for his heirs, executors,
administrators and assigns (hereinafter referred to collectively as
"Releasors"), forever releases and discharges CoActive and any of its now or
hereafter existing subsidiaries, parent companies, divisions, affiliates or
related business entities, successors and assigns and any of their past or
present shareholders, directors, officers, attorneys, agents, trustees,
administrators, employees or assigns (whether acting as agents for CoActive or
in their individual capacities) (hereinafter referred to collectively as
"Releasees"), from any and all claims, demands, causes of action, fees and
liabilities of any kind whatsoever, whether known or unknown, which Releasors
ever had, now have or may have against Releasees by reason of any actual or
alleged act, omission, transaction, practice, conduct, occurrence or other
matter up to and including the date hereof.
(b) Without limiting the generality of the foregoing,
this Agreement is intended to and shall release Releasees from any and all
claims, whether known or unknown, which Releasors ever had, now have and may
have against Releasees, including but not limited to any claims, whether or not
asserted, arising out of Xxxxxxxx'x employment with Releasees and/or his
termination from such employment, including but not LIMITED to: (i) any claim
under the Civil Rights Act of 1964, as amended; (ii) any other claim of
discrimination or retaliation in employment (whether based on federal, state or
local law, statutory or decisional); (iii) any claim arising out of the terms
and conditions of Xxxxxxxx'x employment with CoActive, his termination from such
employment, and/or any of the events relating directly or indirectly to or
surrounding such termination; (iv) any claim of discrimination or breach of
fiduciary duty under the Employee Retirement Income Security Act of 1974, as
amended (except claims for accrued vested benefits under any employee benefit
plan of CoActive in accordance with the terms of such plan and applicable law);
(v) any claim arising under the Federal Age Discrimination in Employment Act of
1997, as amended ("ADEA"), and the applicable rules and regulations thereunder;
and (vi) any claim for attorney's fees, costs, disbursements and/or the like.
4. Covenant not to Xxx. Xxxxxxxx covenants, except to the extent
prohibited by law, not to commence, maintain, prosecute or participate in any
action, charge, complaint or proceeding of any kind (on his own behalf and/or on
behalf of any other person or entity and/or on behalf of or as a member of any
alleged class of persons) in any court, or before any administrative or
investigative body or agency (whether public, quasi-public or private), except
if otherwise required by law, against Releasees with respect to any act,
omission, transaction or occurrence up to and including the date on which this
Agreement is executed.
5. Cooperation. Xxxxxxxx agrees to cooperate with CoActive and
its counsel in any action, proceeding or litigation relating to any matter in
which Xxxxxxxx was involved or of which Xxxxxxxx has knowledge as a result of or
in connection with his employment by CoActive.
6. Non-Disparagement. Xxxxxxxx agrees that he will not at any
time, orally or in writing, willfully denigrate, disparage, ridicule or
criticize, or willfully make any derogatory, disparaging or damaging statements
(or induce or encourage others to engage in any such act) regarding CoActive and
any of its subsidiaries, divisions, affiliates or related business entities,
successors and assigns and any of their past or present shareholders, directors,
officers, attorneys, agents, trustees, administrators, employees or any other
representatives of CoActive or any of its respective products or properties,
including by way of news interviews or the expression of personal views,
opinions or judgments to the media. CoActive agrees that it will not at any
time, orally or in writing, willfully denigrate, disparage, ridicule or
criticize, or willfully make any derogatory, disparaging or damaging statements
(or induce or encourage others to engage in any such act) regarding Xxxxxxxx,
including by way of news interviews or the expression of personal views,
opinions or judgments to the media.
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7. Confidentiality; Return of Corporate Property,
Non-Solicitation. Following the date hereof, Xxxxxxxx shall continue to be bound
by the provisions of Sections 11 and 12 of the Employment Agreement in
accordance with the terms thereof.
8. Acknowledgment. Xxxxxxxx acknowledges that: (i) he has
carefully read this Agreement in its entirety; (ii) he has been advised by
CoActive to seek the advise of an attorney; (iii) he has had an opportunity to
consider fully the terms of this Agreement; (iv) he has been give 21 days in
which to consider whether to enter into this Agreement, which he has waived; (v)
he fully understands the significance of all the terms and conditions of this
Agreement; (vi) he has had answered to his satisfaction any questions he has
asked with regard to the meaning and significance of any of the provisions of
this Agreement; and (vii) he is signing this Agreement voluntarily and of his
own free will and assents to all the terms and conditions contained herein.
9. Governing Law. This Agreement shall be governed in all
respects by the laws of the State of New York without reference to its choice of
law rules.
10. Successors and Assigns. Except as otherwise provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
11. Entire Agreement; Amendment. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard to
the subjects hereof and thereof. Neither this Agreement nor any term hereof may
be amended, waived, discharged or terminated other than by a written instrument
signed by the party to be charged.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
13. Severability. The holding of any provision of this Agreement
to be invalid or unenforceable by a court of competent jurisdiction shall not
affect any other provision of this Agreement, which shall remain in full force
and effect.
14. Revocation. Xxxxxxxx shall have seven days from the date he
signs this Agreement to revoke his release of his rights under ADEA by
delivering a written revocation to CoActive, which action by Xxxxxxxx shall
revoke his release. If Xxxxxxxx revokes his release, all of the provisions of
this Agreement shall be void and unenforceable except for Section 1 hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
COACTIVE MARKETING GROUP, INC.
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer
/s/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx
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