Exhibit 10.28
SEPARATION AND GENERAL RELEASE AND CONSULTING AGREEMENT
This Separation and General Release and Consulting Agreement
("Agreement") is entered into as of January 31, 2001 (the "Effective Date")
between Xxxxx Xxxxxxx Xxxxxxx for herself, her spouse, beneficiaries and agents
("Employee") and XXXXXX.XXX LTD its subsidiaries, divisions, officers,
employees, and agents ("XXXXXX.XXX"). Because Employee and XXXXXX.XXX (the
"Parties") desire to terminate their employment relationship as of January 31,
2001 (the "Termination Date") on an amicable basis, and to resolve all legal
issues arising from said employment relationship, in consideration of the
promises, conditions and obligations set forth in this Agreement, the Parties
agree as follows:
1. XXXXXX.XXX promises to provide the compensation set forth below to
Employee in exchange for the promises made by Employee in this Agreement.
1.1 Continued base salary through the Termination Date, payable in
accordance with the normal payroll practices of XXXXXX.XXX.
1.2 Continuation through the Termination Date in all employee
benefit plans, programs and arrangements in which the Employee is participating
as of the Effective Date.
1.3 A lump-sum payment for all vacation days earned but not used
through the Termination Date. Such payment to be made on or about January 31,
2001. All required federal, state and local tax withholdings shall be deducted
from this payment.
1.4 XXXXXX.XXX shall promptly, and in any event no later than
ninety (90) days from the date hereof, grant Employee Fifty Thousand (50,000)
options (representing the right to purchase the corresponding number of shares
of common stock of XXXXXX.XXX), and vesting over a period not to exceed three
years at an exercise price no greater than the fair market value of the common
stock of XXXXXX.XXX on the grant date. Notwithstanding the foregoing vesting
schedule, in the event that Employee shall die prior to the vesting of all such
options, then and in such event, all such unvested options shall vest as of the
date of Employee's death, and Employee's estate shall have a period of twelve
(12) months therefrom in order to exercise all such unexercised options. .
1.5 From February 1, 2001 until March 31, 2002, Employee and her
dependants shall be eligible to participate in (a) any medical plan made
generally available to XXXXXX.XXX employees, subject, however, to the general
eligibility requirements and other provisions of the various medical plans in
effect from time to time and (b) in any medical plan in which she and her
dependants would, under COBRA, have a right to participate. To cover the
foregoing COBRA participation, XXXXXX.XXX shall make a payment to the Employee
in the amount of $14, 560.00 no later than February 15, 2001; and shall make any
additional payments as may be required (including without limitation in the
event of changes to the XXXXXX.XXX plans or simple rate increases) to allow the
Employee the full benefit of this right. Nothing in this section 1.5 shall
diminish or otherwise impair any of the COBRA rights of Employee under law.
1.6 In addition to the option grant referenced herein, Employee
was previously granted options to purchase shares of XXXXXX.XXX common stock.
All such options shall continue to vest during and remain outstanding throughout
the Consulting Period (as defined below) and shall be (and become) exercisable
in accordance with their terms.
1.7 Under Section 5 of the Employment Agreement, entered into
April 27, 1999, between Employee and XXXXXX.XXX (the"Employment Agreement"),
Employee was entitled to participate in certain plans and programs of
XXXXXX.XXX. Employee shall be eligible to participate in the plans or programs
identified in Section 5 and/or under applicable plans, programs and arrangements
of XXXXXX.XXX that apply generally to all employees only through her Termination
Date. After her Termination Date, except as provided in Paragraph 1.5 herein,
Employee shall only be eligible to participate in XXXXXX.XXX plans or programs
to the extent the terms and conditions of said plans or programs apply to
separated individuals.
1.8 After her Termination Date, Employee shall continue to be
entitled to the same rights to indemnification, and advancement of expenses, as
she possessed while employed with XXXXXX.XXX.
1.9 If any monies are due hereunder to Employee after her death,
payment shall be made to such person or persons as Employee shall have
designated in writing before her death, or if Employee shall have failed to make
such designation, to Employee's estate.
1.10 Employee shall continue to have access to her XXXXXX.XXX
e-mail account through the Consulting Period.
2. Effective on the Termination Date, Employee resigns from all positions
(including without limitation officer positions and directorships) she may hold
in XXXXXX.XXX or any subsidiary; provided, however, that she shall remain
Secretary of XXXXXX.XXX (the parent company) until the first meeting of its
Board of Directors in calendar year 2001 (expected to occur in February) unless
her resignation is earlier requested by the CEO or Board of XXXXXX.XXX in which
case her resignation shall be effective upon such request.
3. In exchange for the promises contained in this Agreement, Employee
promises not to bring any lawsuit against XXXXXX.XXX and generally releases
XXXXXX.XXX from any and all claims, complaints, charges, demands, suits, causes
and rights of action, and liabilities, whether known or unknown, which she ever
had, or may claim to have had, from the beginning of the world up to the
Effective Date, including but not limited to any claim arising out of or under
(i) any aspect of Employee's employment with XXXXXX.XXX, including, but not
limited to, any action arising out of the Employment Agreement; (ii) any
federal, state, local or other government statute, regulation or ordinance,
including, but not limited to, the Age Discrimination in Employment Act, 29
U.S.C. ss. 621 et seq., as amended by the Older Workers' Benefit Protection Act
of 1990, Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights
Act of 1991, the Americans with Disabilities Act, the Family and Medical Leave
Act, the Employee Retirement Income Security Act, the Rehabilitation Act of
1973, the State of New York Human Rights Law, and the New York City
Administrative Code; and (iii) the common law of the State of New York, or any
other jurisdiction, including, without limitation, any claims for intentional
infliction of emotional distress and/or breach of contract and any claims for
consequential and/or punitive damages for any reason. Employee intends, in
executing this Agreement, to provide a General Release that shall be an
effective bar to each and every claim, demand and cause of action, either known
or unknown, for all acts or omissions of XXXXXX.XXX occurring prior to and
including the Effective Date.
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For purposes of implementing full and complete releases, the parties expressly
acknowledge the releases given herein are intended to include, without
limitation, claims which Employee does not know or suspect to exist in her favor
at the at the date of this Agreement, regardless of whether the knowledge of
such claims, or facts upon which they may be based would materially have
affected Employee's decision to enter into this Agreement, and that the
consideration given under this Agreement was also for a release of those claims,
and contemplates the extinguishments of any such unknown claims, despite the
fact that California Civil Code Section 1542 may provide otherwise. Employee
expressly, knowingly and intentionally waives and relinquishes all rights or
benefits available to her in any capacity under the provisions of Section 1542,
which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
In connection with such waiver and relinquishment, Employee acknowledges
that Employee is aware that she may hereafter discover claims presently unknown
or unsuspected, or facts in addition to or different from those which Employee
now knows or believes to be true with respect to the matters released herein.
Nevertheless, it is Employee's express intention to fully, finally and forever
releases all such matters, and all potential claims relative thereto, which do
now exist, may exist or heretofore have existed against the Company.
4. Excluded from the releases in Paragraph 3 are any claims based on
claims arising under, or preserved by, this Agreement, and any claims which
cannot be waived by law, including, but not limited to, the right to file a
charge with, and/or participate in an investigation conducted by, certain
government agencies (provided, however, that Employee is waiving her right to
(x) bring a lawsuit based on any such charge and (y) any monetary recovery
should any agency pursue any claim on Employee's behalf).
5. Also in exchange for the promises contained in this Agreement,
Employee agrees to make herself available, subject to her prior commitments
(including, without limitation, obligations to any new employer), from February
1, 2001 until December 31, 2005 (the "Consulting Period") to render consulting
services to XXXXXX.XXX. If requested to perform consulting services during the
Consulting Period, Employee shall perform advisory services consistent with the
type of services she performed while employed by XXXXXX.XXX (including without
limitation remaining as Secretary of the parent company for the period provided
above). Employee shall not be required to render more than three (3) days of
service to XXXXXX.XXX in any calendar quarter during the Consulting Period.
XXXXXX.XXX shall reimburse Employee for all reasonable and necessary expenses
she may incur in connection with
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the performance of such consulting services upon presentation of a invoice
(including supporting statements, bills or receipts evidencing the re-approved
travel or out-of-pocket expenses for which the Employee seeks payment or
reimbursement) and such other information or materials as XXXXXX.XXX may from
time to time reasonably require.
In addition to such reimbursement, Employee shall be paid fees for her services
(irrespective of the extent to which they are actually utilized by XXXXXX.XXX)
as follows:
5.1 At the rate of $120,000 per annum, payable in twice-monthly
installments, through March 31, 2002; and
5.2 At the rate of $60,000 per annum, payable in twice-monthly
installments, for the remainder of the Consulting Period.
All payments shall be made to Employee in the state in which she is then
domiciled (which is expected to be California). All amounts payable to Employee
pursuant to this Agreement shall be subject to deductions for amounts required
to be withheld by law.
6. Each Party further agrees that such Party shall hereafter keep
confidential and make no disclosure of any kind concerning the terms of this
Agreement and the payments and benefits provided to such Party under this
Agreement, to any person, persons or organizations, except that (a) either Party
may make such disclosure in confidence to such Party's attorneys and/or
accountants, when required by law or court order, or when necessary to enforce
rights under this Agreement, (b) Employee may make such disclosure in confidence
to her spouse and other immediate family members, and (c) Employee may disclose
Paragraphs 5 and 10 in confidence to any future employer or potential employer.
7. By executing this Agreement and accepting the payments and benefits
referenced in Paragraph 1, Employee waives any right to, and agrees not to seek,
reinstatement, employment or re-employment with XXXXXX.XXX. Notwithstanding the
foregoing, if the Employee is offered employment with XXXXXX.XXX, she may accept
such offer without breach of this agreement.
8. The Parties agree that the Employment Agreement shall terminate as of
the Termination Date and shall thereupon become null and void (except to the
extent otherwise provided herein, and except with respect to the provisions of
section 9 thereof concerning the transfer of intellectual property rights). The
Parties further agree that Employee is not entitled to any payments or benefits
other than as described in herein, including but not limited to payments for
salary, benefits, bonuses, allowances, severance pay, notice pay, vacation or
holidays, or any other form or kind of payment, compensation or benefit.
9. Employee acknowledges that she is not otherwise entitled to certain of
the payments and benefits described in Paragraph 1 and that such payments and
benefits exceed any obligation owed by XXXXXX.XXX.
10. In exchange for certain of the payments and benefits described in
Paragraph 1, Employee agrees to the following regarding Confidential
Information.
10.1 DEFINITION OF CONFIDENTIAL INFORMATION. For the purposes of
this Agreement, the term "Confidential Information" shall mean, but shall not be
limited to, any
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technical or non-technical data, formulae, compilations, programs, devices,
methods, techniques, procedures, manuals, financial data, business plans, lists
of actual or potential customers, lists of executives, and any information
regarding XXXXXX.XXX's products, marketing or database, or that of any affiliate
of XXXXXX.XXX, which is not generally known to the public. XXXXXX.XXX and
Employee acknowledge and agree that such Confidential Information is extremely
valuable to XXXXXX.XXX and shall be deemed to be a "trade secret" under
applicable law, regardless of whether it would otherwise be so treated under
applicable law. For the purposes of this Section, such information is "not
generally known to the public" if it is not generally known to third parties who
can obtain economic value from its disclosure and use, and is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy or
confidentiality. In the event that any part of the Confidential Information
becomes generally known to the public through legitimate origins (other than by
the breach of this Agreement by Employee or by other misappropriation of the
Confidential Information), that part of the Confidential Information shall no
longer be deemed Confidential Information for the purposes of this Agreement,
but Employee shall continue to be bound by the terms of this Agreement as to all
other Confidential Information.
10.2 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Except as
required by law, Employee shall not, in any form or manner, directly or
indirectly, divulge, disclose or communicate to any person, entity, firm,
corporation or any other third party, or utilize for Employee's personal
benefit, the benefit of any third party, or to the detriment of XXXXXX.XXX, any
Confidential Information.
10.3 DELIVERY UPON SEPARATION. Employee shall, on or before the
Termination Date, deliver to XXXXXX.XXX all correspondence, files, records,
manuals, letters, notes, notebooks, reports, programs, plans, proposals,
financial documents, and any other documents or data concerning XXXXXX.XXX's
customers, database, business plan, marketing strategies, or processes and/or
which contains Confidential Information, other than Confidential Information
that the Employee must retain to perform her consulting services hereunder. Upon
request by XXXXXX.XXX, Employee shall also promptly deliver to XXXXXX.XXX all
other property of XXXXXX.XXX or any affiliate in Employee's possession, custody
or control, including but not limited to computers, facsimile machines,
printers, cellular telephones, beepers, pagers, keys, credit cards, security
badges and personnel information. If Employee fails to deliver any property of
XXXXXX.XXX or any affiliate in Employee's possession, custody or control as and
when required by this Paragraph 10.3, Employee agrees that XXXXXX.XXX may
withhold the cost of the undelivered property from the payments and benefits
described in Paragraph 1.
10.4 NON-SOLICITATION. In exchange for certain of the payments and
benefits described in Paragraph 1, Employee agrees that the non-solicitation and
confidentiality agreements contained in Section 8 of her Employment Agreement
shall continue in full force and effect notwithstanding the termination of such
agreement.
11. Employee represents that she has not sold, assigned, transferred or
otherwise disposed of to any third party, any action, debt, suit, obligation,
contract, damage, claim or demand of any nature whatsoever in contravention of
any matter covered by this Agreement.
12. In further exchange for the promises contained in this Agreement,
Employee agrees that she shall not disparage XXXXXX.XXX in any manner to any
person or entity.
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13. Employee acknowledges and agrees that:
- she has been advised by this Agreement to consult with an
attorney concerning this Agreement;
- she has been advised of her right to take 21 days to
consider this Agreement;
- after Employee signs this Agreement, she shall have 7 days
to revoke it. If Employee wants to revoke it, she should
deliver a written revocation to Xxxxx Xxxx, Executive Vice
President, People Organization, XXXXXX.XXX, 00 Xxxxxxxx
Xxxxx, Xxx Xxxx, XX 00000. If Employee does not revoke it
within 7 days after having signed it, she shall receive the
payments and benefits provided in Paragraphs 1 and 5; and
- if Employee chooses to revoke this Agreement within 7 days
after she signs it, she is not entitled to the payments and
benefits described in Paragraphs 1 and 5, except for the
payments and benefits required to be made by law.
14. Nothing contained in this Agreement, or the fact the Parties have
signed this Agreement and exchanged the payments/benefits and promises provided
for in this Agreement, constitutes or should be construed as an admission of
liability and/or any wrongdoing whatsoever by either Party. Any such liability
and/or any wrongdoing is expressly denied by each Party.
15. Each Party agrees and states that no promise, inducement or agreement
not expressed in this Agreement has been made to such Party regarding this
Agreement. In signing this Agreement, each Party further acknowledges that such
Party has entered into this Agreement freely and voluntarily, with full
knowledge of all material facts after independent investigation, and without
fraud, duress, or undue influence of any kind or nature whatsoever. Each Party
also agrees and states that such Party fully understands each and every
provision contained in this Agreement, and that each Party has consulted with as
attorney concerning the legal ramifications of signing this Agreement. Employee
agrees and understands that she is waiving legal rights by signing this
Agreement.
16. The Parties agree that if any portion, word, clause, phrase, sentence
or paragraph of this Agreement is found to be unenforceable or prohibited, the
remainder of the Agreement shall remain in full force and effect. Nonetheless,
if Employee seeks a determination by any court or other adjudicative body that
this Agreement is void, unenforceable or prohibited, and a court or adjudicative
body finds the Agreement void, unenforceable or prohibited, Employee must return
any and all payments made by XXXXXX.XXX to her and reimburse XXXXXX.XXX for any
and all benefits provided to her (including options) pursuant to Paragraphs 1
and 5.
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17. In any action brought to enforce the provisions of this Agreement,
this Agreement may be used as evidence, and the prevailing party in any such
action shall be entitled to such party's reasonable attorneys' fees and costs.
18. This Agreement is the entire agreement between the Parties that
exists as of the date it is signed. Any and all prior agreements or
understandings that are not a part of this Agreement are of no force and effect.
The terms of this Agreement may not be modified or waived, except by written
agreement of the Parties.
19. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. The Parties further agree that this Agreement
may be enforced in any court of competent jurisdiction in New York and the
Parties hereby subject themselves to the jurisdiction of such courts in any such
enforcement action.
20. Employee shall be under no obligation to seek other employment or
otherwise mitigate the obligations of XXXXXX.XXX under this Agreement, and there
shall be no offset against amounts due to Employee under this Agreement or
otherwise on account of any remuneration or other benefit attributable to any
subsequent employment that she may obtain.
21. This Agreement may be executed in counterparts, each of which shall
be deemed an original and all of which together shall constitute all and the
same instruments. Signatures may be delivered by facsimile.
XXXXXX.XXX, LTD. XXXXX XXXXXXX XXXXXXX
By: _______________________ _____________________________
(Signature) (Signature)
Its: _______________________ Date:________________________
(Title)
Date: _______________________
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