EXHIBIT 10.70
SETTLEMENT AND RELEASE AGREEMENT
THIS SEVERANCE AND RELEASE AGREEMENT (the "AGREEMENT") is entered into May 14,
2002, (the "Notice Date") by and between XXXXXX TECHNOLOGIES, INC., a Delaware
corporation ("Company") and Xxxxxx Xxx ("Team Member") relating to Team Member's
termination of employment and separation from the company effective May 31, 2002
(the "Separation Date"). "Company" includes all current or former affiliated
corporations, parent corporations, partnerships, divisions and subsidiaries or
other entities, and the officers, directors, shareholders, other team members,
agents, attorneys, successors and assigns of the Company.
SECTION 1. SEPARATION FROM EMPLOYMENT AND SEVERANCE PAYMENT.
A. Team Member's termination as an employee of the Company will begin
and be effective on the Separation Date. However, Team Member will
not be required to report to work after May 24, 2002. Team Member
will be paid remaining standard gross wages less applicable taxes
and withholdings in accordance with standard payroll practices
through the Separation Date. Team Member will also be reimbursed
for all legitimate business expenses incurred on Company's behalf
that have been approved and are otherwise in accordance with the
Company's written policies. Team member will also be paid any
accrued and unused personal time as of the Separation Date.
B. In exchange for the promises of the Team Member as set forth or
otherwise described in this Agreement, the Company agrees to
provide Team Member the severance as described below. This Section
sets forth the entire and complete description of the severance to
be paid to the Team Member by the Company.
i. Company will pay $50,000 (equal to 3 months salary) in a lump
sum payment less withholding taxes as severance payable within 3
weeks of the Separation Date. The Separation Period as referred
to herein shall be three months from the Separation Date.
ii.
For up to 3 months following the Separation Date, which is
deemed the qualifying event to initiate Cobra, the Company will
pay the Cobra premiums for Employee's health and dental benefit
programs in accordance with the employee's current
participation. The Cobra continuation period as required by law
shall apply and run concurrent with the severance period. In no
event shall the Cobra continuation period be less than or more
than what is required by law.
C. Team Member acknowledges that the monies (described in this
Agreement) represent all monies to which Team Member may now or may
hereafter be entitled from the Company. This includes but is not
limited to back-pay, severance pay, wages, overtime pay,
commissions, bonuses, vacation pay, relocation fees, benefits,
attorneys' fees and damages of any nature whatsoever.
SECTION 2. COVENANTS OF TEAM MEMBER.
A. Team Member (on his own behalf and on behalf of his heirs, personal
representatives, and any other person who may be entitled to make a
claim on his behalf) hereby agrees to remise, release, acquit,
satisfy, and forever discharge Company, of and from all, and all
manner of action and actions, cause and causes of action, suits,
debts, dues, sums of money, accounts, bills, contracts,
controversies, agreements, promises, variances, claims and demands
whatsoever, in law or in equity, which Team Member ever had, now
has, or which any representative of Team Member, hereafter can,
shall or may have, against Company, for, upon or by reason of any
matter, cause or thing whatsoever, from the beginning of time to
the day of this Agreement. Team Member represents that Team Member
does not currently have on file, and has not made in any forum, any
complaints, charges, or claims (whether civil, administrative, or
criminal) against Company. Team Member agrees not to bring any
charges, claims, or actions against Company in the future, except
claims that Company has breached its obligations set forth in this
Agreement.
B. The rights and claims which Team Member waives and releases in this
Agreement include, to every extent allowed by law, those arising
under the Team Member Retirement Income Security Act of 1974, the
Civil Rights Acts of 1866, 1871, 1964 and 1991, the Rehabilitation
Act of 1973, the Equal Pay Act of 1963, the Vietnam Era Veteran's
Readjustment
Assistance Act of 1974, the Occupational Safety and Health Act, the
Immigration reform and Control Act of 1986, the Americans with
Disabilities Act, the Age Discrimination in Employment Act of 1967,
the Older Worker's Benefit Protection Act, and the Florida Civil
Rights Act. This is not a complete list, and Team Member waives and
releases all similar rights and claims under all other federal,
state and local discrimination provisions and all other statutory
and common law causes of action, to the extent allowed by law,
relating in any way to Team Member's employment or separation from
employment with Company.
C. Team Member agrees to the following Non-Solicitation and
Confidentiality Provisions:
i. Without limitation of any other Agreement between Team Member
and Company, Team Member shall not employ or engage or attempt
to employ or engage the services of any Team Member of Company,
either directly or through the agency of a third party for a
period of one year after the Separate Date.
ii. During the Severance Period, Team Member shall not directly or
indirectly, as owner, director, employee or agent conduct or be
related to any business in direct competition with any business
of Company.
iii. In addition to, and not in limitation of the other provisions
hereof or of any other Agreement between Team Member and
Company, Team Member shall not at any time in any manner
interfere with, or otherwise jeopardize the business of Company
or do or permit to be done anything which may tend to take away
or diminish the trade, business or good will of Company or give
to any person the benefit or advantage of Company's methods of
operation, advertising, publicity, training, business customers
or accounts, or any other information relating or useful to
Company's business. Team Member agrees to preserve as
confidential or proprietary, technical and business information
to include, but not limited to, the Company's past, present,
and future business, developments, technical data,
specifications, designs, concepts, discoveries, copyrights,
improvements, product plans and information, research and
development plans and product roadmaps, personal information,
personnel information, financial information, customer or
business alliance partner lists, customer and business alliance
leads, and/or marketing programs (the "Confidential
Information").
iv. The existence of any claim or cause of action by Team Member
against Company predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by Company of
these covenants.
v. Team Member acknowledges and confirms that the restrictions
contained herein are fair and reasonable and not the result of
overreaching, duress, or coercion of any kind.
D. Team Member and Company agree that each will refrain from making
any written or oral statement or taking any action, directly or
through others, which either knows or reasonably should know to be
disparaging or negative concerning the Company or its officers,
directors, Team Members or agents or the Team Member.
E. Team Member agrees that Team Member will be responsible for Team
Member's own attorneys' fees incurred in connection with the
negotiation, preparation and execution of this Agreement and that
Team Member unconditionally releases and discharges Employer from
any claim for such attorneys' fees incurred by Team Member or on
Team Member's behalf.
F. Team Member agrees and acknowledges that this Agreement does not
constitute an admission by Employer of any violation of any
federal, state, or local statue or regulation, or any violation of
any of Team Member's rights or of any duty owed by Employer to Team
Member.
G. Team Member warrants that Team Member has surrendered to the
Company, in good condition, all material records (and copies
thereof) pertaining to Company's business operations and related to
any work performed for Company, all Company property, and any and
all third party property, including all confidential and/or
proprietary information, drawings, computer programs or copies
thereof, documentation, notebooks and notes, reports and any other
materials on electronic or printed media. Included are any
documents or media containing the names, addresses, and other
information with regard to Confidential Information.
H. It is recognized and acknowledged that a breach by the Team Member
or the Company of any of the covenants in Section 2 of this
Agreement will cause irreparable harm and damage to the other
party, the monetary amount of which may be virtually impossible to
ascertain. As a result, each recognizes and acknowledges that the
other party shall be entitled to, in
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addition to any other remedies available to the other party, an
injunction from any court of competent jurisdiction enjoining and
restraining any violation of any or all of the covenants contained
in Section 2 of this Agreement by Team Member or Company and such
right to an injunction shall be cumulative and in addition to
whatever other remedies the Company or the Team Member (as the case
may be) may possess.
I. Employee agrees and acknowledges that Employee will be responsible
for payment of any outstanding balance on Employee's company-issued
or company-guaranteed American Express account. Employee agrees
that Company will be entitled to deduct from Employee's payment an
amount equal to the unpaid balance on the American Express account
as of the Separation Date.
SECTION 3. INFORMED, VOLUNTARY SIGNATURE.
Company has informed Team Member that he may consult counsel before
executing this Agreement. Team Member agrees that Team Member has
had a full and fair opportunity to review this Agreement with
counsel and signs it knowingly, voluntarily, and without duress or
coercion. Further, in executing this Agreement, Team Member agrees
that Team Member has not relied on any representation or statement
not set forth in this Agreement.
SECTION 4. MISCELLANEOUS.
This Agreement shall be interpreted and enforced in accordance with
the laws of the State of Florida. Each of the parties submits to
the jurisdiction of any state or federal court sitting in Palm
Beach County, Florida, in any action or proceeding arising out of
or relating to this Agreement and agrees that all claims in respect
of the action or proceeding may be heard and determined by any such
court. In addition, the parties agree to waive any rights to a jury
trial should any dispute arise under this Agreement or related in
any way to Team Member's employment with Company. This Agreement
represents the sole and entire agreement between the parties and
supersedes any and all prior agreements, negotiations, and
discussions between the parties or their respective counsel with
respect to the subject matters covered herein. If either party
initiates proceedings for the other's breach of this Agreement, the
prevailing party shall recover attorneys' fees and costs, including
such fees and costs on any enforcement or appeal proceedings. If
one or more paragraphs of this Agreement are ruled invalid or
unenforceable, such invalidity or unenforceability shall not affect
any other provision of the Agreement, which shall remain in full
force and effect. This Agreement may be modified only in writing
signed by both parties. This Agreement may be executed in two
counterparts, each of which shall constitute an original, but all
of which together shall constitute one and the same document.
IN WITNESS WHEREOF, Team Member and Company have agreed upon and executed this
Agreement as of the date first set forth above.
TEAM MEMBER: XXXXXX TECHNOLOGIES, INC.:
/s/ Xxxxx Xxx By: /s/ Xxxxx Xxxxxx
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Signature of Team Member
Title: President and Chief Executive
Officer
Date: May 14, 2002 Date: May 14, 2002
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