1
Exhibit 10.19
TERMINATION AGREEMENT
(Xxxxxxx)
TERMINATION AGREEMENT dated as of March 18, 1997 by and between XXXXXXX
X. XXXXXXX, an individual residing at 00 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
00000 (the "EMPLOYEE") and EXCHANGE APPLICATIONS, INC., a Delaware corporation
that maintains its principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "COMPANY").
RECITALS
The Employee is employed by, and is a stockholder of, the Company.
Concurrently herewith, the Company is obtaining additional equity financing and,
in connection therewith, is ceasing to operate the consulting business that the
Employee has been engaged by the Company to manage and operate. The parties are
entering into this Agreement to provide for the termination of the Employee's
employment with the Company, the termination of various agreements to which the
Employee and the Company are parties, and for various other matters incidental
thereto.
NOW, THEREFORE, in consideration of the mutual covenants herein
expressed, the parties hereto agree as follows:
1. RESIGNATION.
(a) By mutual consent of the parties, the Employee hereby resigns
as an officer and an employee of the Company. The parties acknowledge and agree
that the termination of the Employee's employment as contemplated hereby is
without cause or fault of either the Employee or the Company and is being
effected hereby in order to accommodate the Company's obtaining financing from
outside sources.
(b) The Company shall pay the Employee concurrently with the
execution hereof in immediately available funds the balance of the Employee's
1996 bonus compensation in the amount of $50,000.
(c) The Employment Agreement dated as of November 15, 1996 between
the Employee and the Company is hereby terminated and neither the Employee nor
the Company shall hereafter have any rights or duties thereunder.
2
Exhibit 10.19
2. PURCHASE AND SALE OF STOCK; DELIVERY OF STOCK FROM ESCROW.
(a) The Employee hereby sells, conveys, transfers and assigns
166,750 shares of the Company's Common Stock, $.001 par value per share (the
Common Stock of the Company being referred to as "COMMON STOCK"), to the
Company, and the Company hereby purchases such shares from the Employee, for a
purchase price of $166.75.
(b) The Company hereby (i) waives its rights under Section 2 of
the Founder Restricted Stock Agreement dated as of November 15, 1996 between the
Employee and the Company (the "Restricted STOCK AGREEMENT") to purchase any of
the Employee's shares of Common Stock other than the 166,750 shares thereof that
are being purchased by the Company in accordance with Section 2(a) above (the
"REPURCHASED Shares"), and (ii) agrees to release to the Employee out of the
escrow contemplated by Section 7 of the Restricted Stock Agreement free and
clear of the encumbrance created thereby and all other liens and encumbrances
(other than those that may have been created by the Employee) one or more share
certificates in the Employee's name evidencing 500,250 shares of Common Stock in
the aggregate, such share certificates to be issued without reference to the
Restricted Stock Agreement or, except as may otherwise expressly agreed to by
the Employee in writing, any other agreement (such share certificates being
collectively referred to as the "EMPLOYEE SHARE CERTIFICATE"). The Employee
hereby represents and warrants to the Company that (i) the Employee is the
beneficial owner of the Repurchased Shares and has the right to sell, convey,
transfer and assign the same to the Company as contemplated hereby free and
clear of all liens and encumbrances except for those created by the Restricted
Stock Agreement, the Stockholders' Agreement dated as of November 15, 1996 among
the Company, the Employee and other of the Company's stockholders, which
Stockholder's Agreement is to be terminated concurrently herewith, and any other
agreements to which the Company and the Employee are party.
(c) The transactions contemplated by this Section 2 shall be
consummated concurrently herewith by (i) the Company delivering to the Employee
its check in the amount of $166.75 and the Employee Share Certificate and (ii)
the Company retaining the stock certificate and completing and retaining the
stock power (heretofore executed by the Employee) that it holds in accordance
with Section 7 of the Restricted Stock Agreement.
(d) The Restricted Stock Agreement is hereby terminated
immediately upon the consummation of the transactions contemplated by this
Section 2 and, after giving effect to the transactions contemplated by this
Section 2, neither the Employee nor the Corporation shall have any rights or
duties thereunder.
3
Exhibit 10.19
3. NONDISCLOSURE AND DEVELOPMENTS AGREEMENT.
(a) The Nondisclosure and Developments Agreement dated as of
November 15, 1996 between the Employee and the Company (the "NONDISCLOSURE
AGREEMENT") is hereby amended to provide that Grant & Partners Limited
Partnership is no longer a third party beneficiary thereof and that the
definition of the term "PROPRIETARY INFORMATION" as used therein shall include
only (i) all information concerning the Company's organization and financial
affairs and (ii) all information and know-how, whether or not in writing,
concerning the Company's VALEX software product and the development, production,
marketing and the sale thereof, including, but not limited to, all inventions,
products, processes, methods, techniques, projects, developments, plans,
research data, algorithms, specifications, formula, computer programs, codes and
other information relating thereto. The Nondisclosure Agreement is hereby
further amended to provide that the term "DEVELOPMENTS" as used therein shall
mean all inventions, improvements, discoveries, methods, developments, software
and works of authorship related to the Company's Proprietary Information
described in clause (ii) of the definition of "Proprietary Information" as set
forth above, whether patentable or not, that were created, made, conceived or
reduced to practice by the Employee, alone or jointly with others, or under the
Employee's direction and known to the Employee during his employment by the
Company, whether or not during normal working hours or on the Company's
premises.
(b) Without limitation of the provisions of the Nondisclosure
Agreement, the Employee agrees not to disclose any Proprietary Information to
others outside the Company or use the same for any unauthorized purposes without
written approval of the Board of Directors of the Company, from or after the
date hereof, unless and until such Proprietary Information as become public
knowledge without fault by the Employee.
4. MUTUAL RELEASES.
4.1. The Employee hereby releases the Company, Cyrk, Inc. and GPLP
and their respective officers, directors, partners, affiliates and legal
representatives (collectively, the "RELEASEES") from any and all claims,
demands, rights and causes of action of whatever kind or nature now existing or
that may result from the existing state of things, which the Employee now has or
ever had (whether or not known) against the Releasees, including, without
limitation, any claims for compensation (including any salary, bonuses, equity
or other compensation), any benefits, any claims based on or arising out of any
written or oral contract or agreement of any kind between any Releasee and the
Employee, and any statutory or other claims arising as a result of the
termination of the employment of such Employee, including any wrongful discharge
claims, but excluding claims arising under this Agreement and each other
agreement entered into by the Employee and any of the Releasees on
4
Exhibit 10.19
or as of the date hereof.
4.2. The Company, and by executing this Agreement where indicated
below, each of Cyrk, Inc. and GPLP, hereby release the Employee from any and all
claims, demands, rights and causes of action of whatever kind or nature now
existing or that may result from the existing state of things, that, the
Company, Cyrk, Inc. or GPLP now has or ever had (whether or not known) against
the Employee other than those claims, demands, rights and causes of action
arising under this Agreement and each other agreement entered into by the
Employee and any of the Company, Cyrk, Inc. or GPLP on the date hereof or
arising from any wrongful disclosure of "Proprietary Information" within the
meaning of the Nondisclosure Agreement, as amended by Section 3 above.
5. NON-COMPETITION.
The Employee hereby covenants and agrees that he will not during the
three year period ending on the third anniversary of the date of this Agreement
(such period being referred to as the "NON-COMPETE PERIOD") (i) develop database
marketing software ("SOFTWARE") or provide systems integration services (such
businesses being referred to as "COMPANY BUSINESSES") anywhere in the United
States or Canada either alone or as an employee, partner, consultant, member or
manager of any other person, (ii) solicit any Company employees to leave the
employ of the Company, (iii) solicit any Company employees to become employees
of any other person or entity, or (iv) solicit any customer of the Company with
respect to the Company Businesses. Nothing herein shall be deemed to prohibit
the Employee from providing, either alone or as an employee, partner,
consultant, member or manager of any person who is engaged in Company Businesses
(any such person being referred to as "COMPANY COMPETITORS"), database marketing
strategy and marketing program implementation consulting services ("CONSULTING
SERVICES") or from providing Consulting Services to persons in association with
Company Competitors that are selling to such persons Software or providing to
such persons systems integration services, as long as the same is not in
violation of the Nondisclosure Agreement, as amended by Section 3 above.
6. NOTICES.
All notices made under this Agreement shall be in writing and shall be
deemed effective upon personal delivery or upon deposit in the United States
Post Office, by registered or certified mail, postage prepaid, addressed to the
other party at the address shown above, or at such other address or addresses as
either party shall designate to the other in accordance with this Section 5.
7. AMENDMENT.
This Agreement may be amended or modified only by a written instrument
executed
5
Exhibit 10.19
by both the Company and the Employee.
8. GOVERNING LAW.
This Agreement shall be deemed to be a contract made under seal and
shall be construed in accordance with and governed by the laws of the
Commonwealth of Massachusetts (without giving effect to any conflicts or choice
of laws provisions that would cause the application of the domestic substantive
laws of any other jurisdiction).
9. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of both
parties and their respective successors and assigns, including any corporation
with which or into which the Company may be merged or that may hereafter succeed
to the Company's assets or business.
10. MISCELLANEOUS.
(a) No delay or omission by the Company or the Employee in
exercising any right under this Agreement shall operate as a waiver of that or
any other right. A waiver or consent given by the Company or the Employee on any
one occasion shall be effective only in that instance and shall not be construed
as a bar or waiver of any right on any other occasion.
(b) The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
(c) Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
(d) In case any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired thereby.
6
Exhibit 10.19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
EXCHANGE APPLICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx, President
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
7
Exhibit 10.19
ACKNOWLEDGMENT AND AGREEMENT
(a) The undersigned hereby acknowledges and agrees that the
Nondisclosure and Developments Agreement dated as of November 15, 1996 referred
to in Section 3 above is hereby amended as provided in Section 3 above.
(b) The undersigned further acknowledges and agrees that
notwithstanding the termination concurrently herewith of the Stockholders'
Agreement dated as of November 15, 1996 among the Company, the Employee, the
undersigned and Xxxxxx X. Xxxxxxx, the undersigned shall, to the fullest extent
permitted under Massachusetts law, continue to indemnify the Employee against
all expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement in respect of any action, suit or proceeding in which the Employee
may be involved or with which he may be threatened by reason of his actions or
omissions in connection with services rendered directly or indirectly to the
undersigned during the term of his employment by the undersigned. In addition to
any and all other remedies that may be available at law in the event of any
breach by the undersigned of its duties under this paragraph (b), the Employee
shall be entitled to specific performance of the undersigned's duties under this
paragraph (b) and to such other injunctive or other equitable relief as may be
granted by a court of competent jurisdiction.
(c) The undersigned hereby releases the Employee as provided in
Section 4.2 above.
GRANT & PARTNERS LIMITED PARTNERSHIP
By: Grant & Partners, Inc., its General Partner
By: /s/ Xxxx Xxxxx
-------------------------------------------
Title: President
ACKNOWLEDGMENT AND AGREEMENT
The undersigned hereby releases the Employee as provided in Section 4.2
above.
CYRK, INC.
By: /s/ Xxxxxxx Xxxxx
------------------------------------------
Title: President
8
Exhibit 10.19
TERMINATION AGREEMENT
(XXXXX)
TERMINATION AGREEMENT dated as of March 18, 1997 by and between XXXXXX
XXXXX, an individual residing at 00 Xxxxxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx
00000 (the "EMPLOYEE") and EXCHANGE APPLICATIONS, INC., a Delaware corporation
that maintains its principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "COMPANY").
RECITALS
The Employee is employed by, and is a stockholder of, the Company.
Concurrently herewith, the Company is obtaining additional equity financing and,
in connection therewith, is ceasing to operate the consulting business that the
Employee has been engaged by the Company to manage and operate. The parties are
entering into this Agreement to provide for the termination of the Employee's
employment with the Company, the termination of various agreements to which the
Employee and the Company are parties, and for various other matters incidental
thereto.
NOW, THEREFORE, in consideration of the mutual covenants herein
expressed, the parties hereto agree as follows:
1. RESIGNATION.
(a) By mutual consent of the parties, the Employee hereby resigns
as an employee of the Company. The parties acknowledge and agree that the
termination of the Employee's employment as contemplated hereby is without cause
or fault of either the Employee or the Company and is being effected hereby in
order to accommodate the Company's obtaining financing from outside sources.
(b) The Company shall pay to the Employee concurrently with the
execution hereof in immediately available funds the remaining balance of the
Employee's 1996 bonus compensation in the amount of $13,500.
2. PURCHASE AND SALE OF STOCK; DELIVERY OF STOCK FROM ESCROW.
(a) The Employee hereby sells, conveys, transfers and assigns
75,000 shares of the Company's Common Stock, $.001 par value per share (the
Common Stock of the Company being referred to as "COMMON STOCK"), to the
Company, and the Company hereby purchases such shares from the Employee, for a
purchase price of $75.00.
9
Exhibit 10.19
(b) The Company hereby (i) waives its rights under Section 3(b) of
the Employee Restricted Stock Agreement dated as of November 15, 1996 between
the Employee and the Company (the "RESTRICTED STOCK AGREEMENT") to purchase any
of the Employee's shares of Common Stock other than the 75,000 shares thereof
that are being purchased by the Company in accordance with Section 2(a) above
(the "REPURCHASED Shares"), and (ii) agrees to release to the Employee out of
the escrow contemplated by Section 8 of the Restricted Stock Agreement free and
clear of the encumbrance created thereby and all other liens and encumbrances
(other than those that may have been created by the Employee) one or more share
certificates in the Employee's name evidencing 25,000 shares of Common Stock in
the aggregate, such share certificates to be issued without any reference to the
Restricted Stock Agreement or, except as may otherwise expressly agreed to by
the Employee in writing, any other agreement (such share certificates being
referred to as the "EMPLOYEE SHARE CERTIFICATE"). The Employee hereby represents
and warrants to the Company that (i) the Employee is the beneficial owner of the
Repurchased Shares and has the right to sell, convey, transfer and assign the
same to the Company as contemplated hereby free and clear of all liens and
encumbrances except for those created by the Restricted Stock Agreement and any
other agreements to which the Company and the Employee are party.
(c) The transactions contemplated by this Section 2 shall be
consummated concurrently herewith by (i) the Company delivering to the Employee
its check in the amount of $75.00 and the Employee Share Certificate and (ii)
the Company retaining the stock certificate and completing and retaining the
stock power (heretofore executed by the Employee) that it holds in accordance
with Section 8 of the Restricted Stock Agreement.
(d) The Restricted Stock Agreement is hereby terminated
immediately upon the consummation of the transactions contemplated by this
Section 2 and, after giving effect to the transactions contemplated by this
Section 2, neither the Employee nor the Corporation shall have any rights or
duties thereunder.
3. AMENDMENT OF NONDISCLOSURE AND DEVELOPMENTS AGREEMENT AND TERMINATION
OF NON-COMPETITION AND NON-SOLICITATION AGREEMENT.
(a)(i) The Nondisclosure and Developments Agreement dated as of
November 15, 1996 between the Employee and the Company (the "NONDISCLOSURE
AGREEMENT") is hereby amended to provide that Grant & Partners Limited
Partnership is no longer a third party beneficiary thereof and that the
definition of the term "PROPRIETARY INFORMATION" as used therein shall include
only (i) all information concerning the Company's organization and financial
affairs and (H) all information and know-how, whether or not in writing,
concerning the Company's VALEX software product and the development, production,
marketing and the sale thereof, including, but not limited to, all inventions,
products, processes, methods, techniques, projects,
10
Exhibit 10.19
developments, plans, research data, algorithms, specifications, formula,
computer programs, codes and other information relating thereto. The
Nondisclosure Agreement is hereby further amended to provide that the term
"DEVELOPMENTS" as used therein shall mean all inventions, improvements,
discoveries, methods, developments, software and works of authorship related to
the Company's Proprietary Information described in clause (ii) of the definition
of "Proprietary Information" as set forth above, whether patentable or not, that
were created, made, conceived or reduced to practice by the Employee, alone or
jointly with others, or under the Employee's direction and known to the Employee
during his employment by the Company, whether or not during normal working hours
or on the Company's premises.
(ii) Without limitation of the provisions of the Nondisclosure
Agreement, the Employee agrees not to disclose any Proprietary Information to
others outside the Company or use the same for any unauthorized purposes without
written approval of the Board of Directors of the Company, from or after the
date hereof, unless and until such Proprietary Information as become public
knowledge without fault by the Employee.
(b) The Non-Competition and Non-Solicitation Agreement dated as of
December 11, 1996 between the Employee and the Company is hereby terminated and
neither the Company or its affiliates (including, without limitation, GPLP) nor
the Employee shall hereafter have any rights or duties thereunder.
4. MUTUAL RELEASES.
(a) The Employee hereby releases the Company, Cyrk, Inc. and GPLP
and their respective officers, directors, partners, affiliates and legal
representatives (collectively, the "RELEASEES") from any and all claims,
demands, rights and causes of action of whatever kind or nature now existing or
that may result from the existing state of things, which the Employee now has or
ever had (whether or not known) against the Releasees including, without
limitation, any claims for compensation (including any salary, bonuses, equity
or other compensation), any benefits, any claims based on or arising out of any
written or oral contract or agreement of any kind between any Releasee and the
Employee, and any statutory or other claims arising as a result of the
termination of the employment of such Employee, including any wrongful discharge
claims, but excluding claims arising under this Agreement and each other
agreement entered into by the Employee and any of the Releasees on the date
hereof.
(b) The Company, and by executing this Agreement where indicated
below, each of Cyrk, Inc. and GPLP, hereby release the Employee from any and all
claims, demands, rights and causes of action of whatever kind or nature now
existing or that may result from the existing state of things, that the Company,
Cyrk, Inc. or GPLP now has or ever had (whether or not known) against the
Employee other than those
11
Exhibit 10.19
claims, demands, rights and causes of action arising under this Agreement and
each other agreement entered into by the Employee and any of the Company, Cyrk,
Inc. or GPLP on the date hereof or arising from any wrongful disclosure of
"Proprietary Information" within the meaning of the Nondisclosure Agreement, as
amended by Section 3(a) above.
5. NON-COMPETITION.
The Employee hereby covenants and agrees that he will not during the
one year period ending on the first anniversary of the date of this Agreement
(such period being referred to as the "NON-COMPETE PERIOD") (a) develop database
marketing software ("SOFTWARE") or provide systems integration services (such
businesses being referred to as "COMPANY BUSINESSES") anywhere in the United
States or Canada either alone or as an employee, partner, consultant, member or
manager of any other person, (b) solicit any Company employees to leave the
employ of the Company, (c) solicit any Company employees to become employees of
any other person or entity, or (d) solicit any customer of the Company with
respect to the Company Businesses. Nothing herein shall be deemed to prohibit
the Employee from providing, either alone or as an employee, partner,
consultant, member or manager of any person who is engaged in Company Businesses
(any such person being referred to as "COMPANY COMPETITORS"), database marketing
strategy and marketing program implementation consulting services ("CONSULTING
SERVICES") or from providing Consulting Services to persons in association with
Company Competitors that are selling to such persons Software or providing to
such persons systems integration services.
6. NOTICES.
All notices made under this Agreement shall be in writing and shall be
deemed effective upon personal delivery or upon deposit in the United States
Post Office, by registered or certified mail, postage prepaid, addressed to the
other party at the address shown above, or at such other address or addresses as
either party shall designate to the other in accordance with this Section 6.
7. AMENDMENT.
This Agreement may be amended or modified only by a written instrument
executed by both the Company and the Employee.
8. GOVERNING LAW.
This Agreement shall be deemed to be a contract under seal and shall be
construed in accordance with and governed by the laws of the Commonwealth of
Massachusetts (without giving effect to any conflicts or choice of laws
provisions that would cause the application of the domestic substantive laws of
any other jurisdiction).
12
Exhibit 10.19
9. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of both
parties and their respective successors and assigns, including any corporation
with which or into which the Company may be merged or that may hereafter succeed
to the Company's assets or business.
10. MISCELLANEOUS.
(a) No delay or omission by the Company or the Employee in
exercising any right under this Agreement shall operate as a waiver of that or
any other right. A waiver or consent given by the Company or the Employee on any
one occasion shall be effective only in that instance and shall not be construed
as a bar or waiver of any right on any other occasion.
(b) The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
(c) Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
(d) In case any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
EXCHANGE APPLICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx, President
EMPLOYEE
/s/ Xxxxxx Xxxxx
--------------------------------------
Xxxxxx Xxxxx
13
Exhibit 10.19
ACKNOWLEDGMENT AND AGREEMENT
(a) The undersigned hereby acknowledges and agrees (i) that the
Nondisclosure and Developments Agreement dated as of November 15, 1996
referenced in Section 3(a) above is hereby amended as provided in Section 3(a)
above, and (ii) that the Non-Competition and Non-Solicitation Agreement dated as
of December 11, 1996 referred to in Section 3(b) above is hereby terminated and
that neither the undersigned nor the Employee hereafter has any rights or duties
thereunder.
(b) The undersigned hereby releases the Employee as provided in
Section 4(b) above.
GRANT & PARTNERS LIMITED PARTNERSHIP
By: Grant & Partners, Inc., its General Partner
By: /s/ Xxxx Xxxxx
-------------------------------------------
Title: President
ACKNOWLEDGMENT AND AGREEMENT
The undersigned hereby releases the Employee as provided in Section 4.2
above.
CYRK, INC.
By: /s/ Xxxxxxx Xxxxx
-------------------------------------------
Title: President
14
Exhibit 10.19
TERMINATION AGREEMENT
(AHN)
TERMINATION AGREEMENT dated as of March 18, 1997 by and between XXXX
XXX, an individual residing at 00 Xxxxxx Xxxx, Xxxxx, Xxxxxxxxxxxxx 00000 (the
"EMPLOYEE") and EXCHANGE APPLICATIONS, INC., a Delaware corporation that
maintains its principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "COMPANY").
RECITALS
The Employee is employed by, and is a stockholder of, the Company.
Concurrently herewith, the Company is obtaining additional equity financing and,
in connection therewith, is ceasing to operate the consulting business that the
Employee has been engaged by the Company to manage and operate. The parties are
entering into this Agreement to provide for the termination of the Employee's
employment with the Company, the termination of various agreements to which the
Employee and the Company are parties, and for various other matters incidental
thereto.
NOW, THEREFORE, in consideration of the mutual covenants herein
expressed, the parties hereto agree as follows:
1. RESIGNATION.
(a) By mutual consent of the parties, the Employee hereby resigns
as an employee of the Company. The parties acknowledge and agree that the
termination of the Employee's employment as contemplated hereby is without cause
or fault of either the Employee or the Company and is being effected hereby in
order to accommodate the Company's obtaining financing from outside sources.
(b) The Company shall pay to the Employee concurrently with the
execution hereof in immediately available funds the remaining balance of the
Employee's 1996 bonus compensation in the amount of $39,000.
2. PURCHASE AND SALE OF STOCK-, DELIVERY OF STOCK FROM ESCROW.
(a) The Employee hereby sells, conveys, transfers and assigns
37,500 shares of the Company's Common Stock, .$.001 par value per share (the
Common Stock of the Company being referred to as "COMMON STOCK"), to the
Company, and the Company hereby purchases such shares from the Employee, for a
purchase price of $37.50.
15
Exhibit 10.19
(b) The Company hereby (i) waives its rights under Section 3(b) of
the Employee Restricted Stock Agreement dated as of November 15, 1996 between
the Employee and the Company (the "RESTRICTED STOCK AGREEMENT") to purchase any
of the Employee's shares of Common Stock other than the 37,500 shares thereof
that are being purchased by the Company in accordance with Section 2(a) above
(the "REPURCHASED SHARES"), and (ii) agrees to release to the Employee out of
the escrow contemplated by Section 8 of the Restricted Stock Agreement free and
clear of the encumbrance created thereby and all other liens and encumbrances
(other than those that may have been created by the Employee) one or more share
certificates in the Employee's name evidencing 12,500 shares of Common Stock in
the aggregate, such share certificates to be issued without any reference to the
Restricted Stock Agreement or, except as may otherwise expressly agreed to by
the Employee in writing, any other agreement (such share certificates being
referred to as the "EMPLOYEE SHARE CERTIFICATE"). The Employee hereby represents
and warrants to the Company that (i) the Employee is the beneficial owner of the
Repurchased Shares and has the right to sell, convey, transfer and assign the
same to the Company as contemplated hereby free and clear of all liens and
encumbrances except for those created by the Restricted Stock Agreement and any
other agreements to which the Company and the Employee are party.
(c) The transactions contemplated by this Section 2 shall be
consummated concurrently herewith by (i) the Company delivering to the Employee
its check in the amount of $37.50 and the Employee Share Certificate and (ii)
the Company retaining the stock certificate and completing and retaining the
stock power (heretofore executed by the Employee) that it holds in accordance
with Section 8 of the Restricted Stock Agreement.
(d) The Restricted Stock Agreement is hereby terminated
immediately upon the consummation of the transactions contemplated by this
Section 2 and, after giving effect to the transactions contemplated by this
Section 2, neither the Employee nor the Corporation shall have any rights or
duties thereunder.
3. AMENDMENT OF NONDISCLOSURE AND DEVELOPMENTS AGREEMENT AND TERMINATION
OF NON-COMPETITION AND NON-SOLICITATION AGREEMENT.
(a)(i) The Nondisclosure and Developments Agreement dated as of
November 15, 1996 between the Employee and the Company (the "NONDISCLOSURE
AGREEMENT") is hereby amended to provide that Grant & Partners Limited
Partnership is no longer a third party beneficiary thereof and that the
definition of the term "PROPRIETARY INFORMATION" as used therein shall include
only (i) all information concerning the Company's organization and financial
affairs and (ii) all information and know-how, whether or not in writing,
concerning the Company's VALEX software product and the development, production,
marketing and the sale thereof, including, but not limited to, all inventions,
products, processes, methods, techniques, projects, developments, plans,
research data, algorithms, specifications, formula, computer
16
Exhibit 10.19
programs, codes and other information relating thereto. The Nondisclosure
Agreement is hereby further amended to provide that the term "DEVELOPMENTS" as
used therein shall mean all inventions, improvements, discoveries, methods,
developments, software and works of authorship related to the Company's
Proprietary Information described in clause (ii) of the definition of
"Proprietary Information" as set forth above, whether patentable or not, that
were created, made, conceived or reduced to practice by the Employee, alone or
jointly with others, or under the Employee's direction and known to the Employee
during his employment by the Company, whether or not during normal working hours
or on the Company's premises.
(ii) Without limitation of the provisions of the Nondisclosure
Agreement, the Employee agrees not to disclose any Proprietary Information to
others outside the Company or use the same for any unauthorized purposes without
written approval of the Board of Directors of the Company, from or after the
date hereof, unless and until such Proprietary Information as become public
knowledge without fault by the Employee.
(b) The Non-Competition and Non-Solicitation Agreement dated as of
November 15, 1996 between the Employee and the Company is hereby terminated and
neither the Company or its affiliates (including, without limitation, GPLP) nor
the Employee shall hereafter have any rights or duties thereunder.
4. MUTUAL RELEASES.
(a) The Employee hereby releases the Company, Cyrk, Inc. and GPLP
and their respective officers, directors, partners, affiliates and legal
representatives (collectively, the "RELEASEES") from any and all claims,
demands, rights and causes of action of whatever kind or nature now existing or
that may result from the existing state of things, which the Employee now has or
ever had (whether or not known) against the Releasees including, without
limitation, any claims for compensation (including any salary, bonuses, equity
or other compensation), any benefits, any claims based on or arising out of any
written or oral contract or agreement of any kind between any Releasee and the
Employee, and any statutory or other claims arising as a result of the
termination of the employment of such Employee, including any wrongful discharge
claims, but excluding claims arising under this Agreement and each other
agreement entered into by the Employee and any of the Releasees on the date
hereof.
(b) The Company, and by executing this Agreement where indicated
below, each of Cyrk, Inc. and GPLP, hereby release the Employee from any and all
claims, demands, rights and causes of action of whatever kind or nature now
existing or that may result from the existing state of things, that the Company,
Cyrk, Inc. or GPLP now has or ever had (whether or not known) against the
Employee other than those claims, demands, rights and causes of action arising
under this Agreement and each
17
Exhibit 10.19
other agreement entered into by the Employee and any of the Company, Cyrk, Inc.
or GPLP on the date hereof or arising from any wrongful disclosure of
"Proprietary Information" within the meaning of the Nondisclosure Agreement, as
amended by Section 3(a) above.
5. NON-COMPETITION.
The Employee hereby covenants and agrees that he will not during the
one year period ending on the first anniversary of the date of this Agreement
(such period being referred to as the "NON-COMPETE PERIOD") (a) develop database
marketing software ("SOFTWARE") or provide systems integration services (such
businesses being referred to as "COMPANY BUSINESSES") anywhere in the United
States or Canada either alone or as an employee, partner, consultant, member or
manager of any other person, (b) solicit any Company employees to leave the
employ of the Company, (c) solicit any Company employees to become employees of
any other person or entity, or (d) solicit any customer of the Company with
respect to the Company Businesses.
Nothing herein shall be deemed to prohibit the Employee from providing, either
alone or as an employee, partner, consultant, member or manager of any person
who is engaged in Company Businesses (any such person being referred to as
"COMPANY COMPETITORS"), database marketing strategy and marketing program
implementation consulting services ("CONSULTING SERVICES") or from providing
Consulting Services to persons in association with Company Competitors that are
selling to such persons Software or providing to such persons systems
integration services.
6. NOTICES.
All notices made under this Agreement shall be in writing and shall be
deemed effective upon personal delivery or upon deposit in the United States
Post Office, by registered or certified mail, postage prepaid, addressed to the
other party at the address shown above, or at such other address or addresses as
either party shall designate to the other in accordance with this Section 6.
7. AMENDMENT.
This Agreement may be amended or modified only by a written instrument
executed by both the Company and the Employee.
18
Exhibit 10.19
8. GOVERNING LAW.
This Agreement shall be deemed to be a contract under seal and shall be
construed in accordance with and governed by the laws of the Commonwealth of
Massachusetts (without giving effect to any conflicts or choice of laws
provisions that would cause the application of the domestic substantive laws of
any other jurisdiction).
9. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of both
parties and their respective successors and assigns, including any corporation
with which or into which the Company may be merged or that may hereafter succeed
to the Company's assets or business.
10. MISCELLANEOUS.
(a) No delay or omission by the Company or the Employee in
exercising any right under this Agreement shall operate as a waiver of that or
any other right. A waiver or consent given by the Company or the Employee on any
one occasion shall be effective only in that instance and shall not be construed
as a bar or waiver of any right on any other occasion.
(b) The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
(c) Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
(d) In case any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired thereby.
19
Exhibit 10.19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
EXCHANGE APPLICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx, President
EMPLOYEE
/s/ Xxxx Xxx
------------------------------------------
Xxxx Xxx
20
Exhibit 10.19
ACKNOWLEDGMENT AND AGREEMENT
(a) The undersigned hereby acknowledges and agrees (i) that the
Nondisclosure and Developments Agreement dated as of November 15, 1996
referenced in Section 3(a) above is hereby amended as provided in Xxxxxxx 0,(x)
above, and (ii) that the Non-Competition and Non-Solicitation Agreement dated as
of November 15, 1996 referred to in Section 3(b) above is hereby terminated and
that neither the undersigned nor the Employee hereafter has any rights or duties
thereunder.
(b) The undersigned hereby acknowledges and agrees that the
Non-Competition and Non-Solicitation Agreement dated May 7, 1996 and the
Nondisclosure and Developments Agreement dated May 7, 1996 between the Employee
and GPLP are hereby terminated and that neither the undersigned nor the Employee
has any rights or duties thereunder.
(c) The undersigned hereby releases the Employee as provided in
Section 4(b) above.
GRANT & PARTNERS LIMITED PARTNERSHIP
By: Grant & Partners, Inc., its General Partner
By: /s/ Xxxx Xxxxx
-------------------------------------------
Title: President
ACKNOWLEDGMENT AND AGREEMENT
The undersigned hereby releases the Employee as provided in Section 4.2
above.
CYRK, INC.
By: /s/ Xxxxxxx Xxxxx
-------------------------------------------
Title: President
21
Exhibit 10.19
TERMINATION AGREEMENT
(XXXXXXX)
TERMINATION AGREEMENT dated as of March 18, 1997 by and between
XXXXXXXX XXXXXXX, an individual residing at 00 Xxxxxxx Xxxxxx, Xx. 0,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "EMPLOYEE") and EXCHANGE APPLICATIONS,
INC., a Delaware corporation that maintains its principal place of business at
000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 021 11 (the "COMPANY").
RECITALS
The Employee is employed by, and is a stockholder of, the Company.
Concurrently herewith, the Company is obtaining additional equity financing and,
in connection therewith, is ceasing to operate the consulting business that the
Employee has been engaged by the Company to manage and operate. The parties are
entering into this Agreement to provide for the termination of the Employee's
employment with the Company, the termination of various agreements to which the
Employee and the Company are parties, and for various other matters incidental
thereto.
NOW, THEREFORE, in consideration of the mutual covenants herein
expressed, the parties hereto agree as follows:
1. RESIGNATION.
(a) By mutual consent of the parties, the Employee hereby resigns
an employee of the Company. The parties acknowledge and agree that the
termination of the Employee's employment as contemplated hereby is without cause
or fault of either the Employee or the Company and is being effected hereby in
order to accommodate the Company's obtaining financing from outside sources.
(b) The Company shall pay to the Employee concurrently with the
execution hereof in immediately available funds the remaining balance of the
Employee's 1996 bonus compensation in the amount of $2,000.
2. Purchase AND SALE OF STOCK-, DELIVERY OF STOCK FROM ESCROW.
(a) The Employee hereby sells, conveys, transfers and assigns
2,500 shares of the Company's Common Stock, $.001 par value per share (the
Common Stock of the Company being referred to as "COMMON STOCK"), to the
Company, and the
22
Exhibit 10.19
Company hereby purchases such shares from the Employee, for a purchase price of
$2.50.
(b) The Company hereby (i) waives its rights under Section 3(b) of
the Employee Restricted Stock Agreement dated as of November 15, 1996 between
the Employee and the Company (the "RESTRICTED STOCK AGREEMENT") to purchase any
of the Employee's shares of Common Stock other than the 2,500 shares thereof
that are being purchased by the Company in accordance with Section 2(a) above
(the "REPURCHASED SHARES"), and (ii) agrees to release to the Employee out of
the escrow contemplated by Section 8 of the Restricted Stock Agreement free and
clear of the encumbrance created thereby and all other liens and encumbrances
(other than those that may have been created by the Employee) one or more share
certificates in the Employee's name evidencing 2,500 shares of Common Stock in
the aggregate, such share certificates to be issued without any reference to the
Restricted Stock Agreement or, except as may otherwise expressly agreed to by
the Employee in writing, any other agreement (such share certificates being
referred to as the "EMPLOYEE SHARE CERTIFICATE"). The Employee hereby represents
and warrants to the Company that (i) the Employee is the beneficial owner of the
Repurchased Shares and has the right to sell, convey, transfer and assign the
same to the Company as contemplated hereby free and clear of all liens and
encumbrances except for those created by the Restricted Stock Agreement and any
other agreements to which the Company and the Employee are party.
(c) The transactions contemplated by this Section 2 shall be
consummated concurrently herewith by (i) the Company delivering to the Employee
its check in the amount of $2.50 and the Employee Share Certificate and (ii) the
Company retaining the stock certificate and completing and retaining the stock
power (heretofore executed by the Employee) that it holds in accordance with
Section 8 of the Restricted Stock Agreement.
(d) The Restricted Stock Agreement is hereby terminated
immediately upon the consummation of the transactions contemplated by this
Section 2 and, after giving effect to the transactions contemplated by this
Section 2, neither the Employee nor the Corporation shall have any rights or
duties thereunder.
3. AMENDMENT OF NONDISCLOSURE AND DEVELOPMENTS AGREEMENT AND TERMINATION
OF NON-COMPETITION AND NON-SOLICITATION AGREEMENT.
(a)(i) The Nondisclosure and Developments Agreement dated as of
November 15, 1996 between the Employee and the Company (the "NONDISCLOSURE
AGREEMENT") is hereby amended to provide that Grant & Partners Limited
Partnership is no longer a third party beneficiary thereof and that the
definition of the term "PROPRIETARY INFORMATION" as used therein shall include
only (i) all information concerning the Company's organization and financial
affairs and (ii) all information and know-how, whether or not in writing,
concerning the Company's VALEX software product and
23
Exhibit 10.19
the development, production, marketing and the sale thereof, including, but not
limited to, all inventions, products, processes, methods, techniques, projects,
developments, plans, research data, algorithms, specifications, formula,
computer programs, codes and other information relating thereto. The
Nondisclosure Agreement is hereby further amended to provide that the term
"DEVELOPMENTS" as used therein shall mean all inventions, improvements,
discoveries, methods, developments, software and works of authorship related to
the Company's Proprietary Information described in clause (ii) of the definition
of "Proprietary Information" as set forth above, whether patentable or not, that
were created, made, conceived or reduced to practice by the Employee, alone or
jointly with others, or under the Employee's direction and known to the Employee
during his employment by the Company, whether or not during normal working hours
or on the Company's premises.
(ii) Without limitation of the provisions of the Nondisclosure
Agreement, the Employee agrees not to disclose any Proprietary Information to
others outside the Company or use the same for any unauthorized purposes without
written approval of the Board of Directors of the Company, from or after the
date hereof, unless and until such Proprietary Information as become public
knowledge without fault by the Employee.
(b) The Non-Competition and Non-Solicitation Agreement dated as of
November 15, 1996 between the Employee and the Company is hereby terminated and
neither the Company or its affiliates (including, without limitation, GPLP) nor
the Employee shall hereafter have any rights or duties thereunder.
4. MUTUAL RELEASES.
(a) The Employee hereby releases the Company, Cyrk, Inc. and GPLP
and their respective officers, directors, partners, affiliates and legal
representatives (collectively, the "RELEASEES") from any and all claims,
demands, rights and causes of action of whatever kind or nature now existing or
that may result from the existing state of things, which the Employee now has or
ever had (whether or not known) against the Releasees including, without
limitation, any claims for compensation (including any salary, bonuses, equity
or other compensation), any benefits, any claims based on or arising out of any
written or oral contract or Agreement of any kind between any Releasee and the
Employee, and any statutory or other claims arising as a result of the
termination of the employment of such Employee, including any wrongful discharge
claims, but excluding claims arising under this Agreement and each other
agreement entered into by the Employee and any of the Releasees on the date
hereof.
(b) The Company, and by executing this Agreement where indicated
below, each of Cyrk, Inc. and GPLP, hereby release the Employee from any and all
claims, demands, rights and causes of action of whatever kind or nature now
existing or that
24
Exhibit 10.19
may result from the existing state of things, that the Company, Cyrk, Inc. or
GPLP now has or ever had (whether or not known) against the Employee other than
those claims, demands, rights and causes of action arising under this Agreement
and each other agreement entered into by the Employee and any of the Company,
Cyrk, Inc. or GPLP on the date hereof or arising from any wrongful disclosure of
"Proprietary Information" within the meaning of the Nondisclosure Agreement, as
amended by Section 3(a) above.
5. NON-COMPETITION.
The Employee hereby covenants and agrees that he will not during the
one year period ending on the first anniversary of the date of this Agreement
(such period being referred to as the "NON-COMPETE PERIOD") (a) develop database
marketing software ("SOFTWARE") or provide systems integration services (such
businesses being referred to as "COMPANY BUSINESSES") anywhere in the United
States or Canada either alone or as an employee, partner, consultant, member or
manager of any other person, (b) solicit any Company employees to leave the
employ of the Company, (c) solicit any Company employees to become employees of
any other person or entity, or (d) solicit any customer of the Company with
respect to the Company Businesses. Nothing herein shall be deemed to prohibit
the Employee from providing, either alone or as an employee, partner,
consultant, member or manager of any person who is engaged in Company Businesses
(any such person being referred to as "COMPANY COMPETITORS"), database marketing
strategy and marketing program implementation consulting services ("CONSULTING
SERVICES") or from providing Consulting Services to persons in association with
Company Competitors that are selling to such persons Software or providing to
such persons systems integration services.
6. NOTICES.
All notices made under this Agreement shall be in writing and shall be
deemed effective upon personal delivery or upon deposit in the United States
Post Office, by registered or certified mail, postage prepaid, addressed to the
other party at the address shown above, or at such other address or addresses as
either party shall designate to the other in accordance with this Section 6.
7. AMENDMENT.
This Agreement may be amended or modified only by a written instrument
executed by both the Company and the Employee.
8. GOVERNING LAW.
This Agreement shall be deemed to be a contract under seal and shall be
construed in accordance with and governed by the laws of the Commonwealth of
Massachusetts (without giving effect to any conflicts or choice of laws
provisions that
25
Exhibit 10.19
would cause the application of the domestic substantive laws of any other
jurisdiction).
9. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of both
parties and their respective successors and assigns, including any corporation
with which or into which the Company may be merged or that may hereafter succeed
to the Company's assets or business.
10. MISCELLANEOUS.
(a) No delay or omission by the Company or the Employee in
exercising any right under this Agreement shall operate as a waiver of that or
any other right. A waiver or consent given by the Company or the Employee on any
one occasion shall be effective only in that instance and shall not be construed
as a bar or waiver of any right on any other occasion.
(b) The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
(c) Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
(d) In case any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
EXCHANGE APPLICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx, President
EMPLOYEE:
/s/ Xxxxxxxx Xxxxxxx
-------------------------------------------
Xxxxxxxx Xxxxxxx
26
Exhibit 10.19
ACKNOWLEDGMENT AND AGREEMENT
(a) The undersigned hereby acknowledges and agrees (i) that the
Nondisclosure and Developments Agreement dated as of November 15, 1996
referenced in Section 3(a) above is hereby amended as provided in Section,3(a)
above, and (ii) that the Non-Competition and Non-Solicitation Agreement dated as
of November 15, 1996 referred to in Section 3(b) above is hereby terminated and
that neither the undersigned nor the Employee hereafter has any rights or duties
thereunder.
(b) The undersigned hereby acknowledges and agrees that the
Non-Competition and Non-Solicitation Agreement dated November__, 1995 and the
Nondisclosure and Developments Agreement dated November___, 1995 between the
Employee and GPLP are hereby terminated and that neither the undersigned nor the
Employee has any rights or duties thereunder.
(c) The undersigned hereby releases the Employee as provided in
Section 4(b) above.
GRANT & PARTNERS LIMITED PARTNERSHIP
By: Grant & Partners, Inc., its General Partner
By: /s/ Xxxx Xxxxx
-------------------------------------------
Title: President
ACKNOWLEDGMENT AND AGREEMENT
The undersigned hereby releases the Employee as provided in Section 4.2
above.
CYRK, INC.
By: /s/ Xxxxxxx Xxxxx
-------------------------------------------
Title: President
27
Exhibit 10.19
TERMINATION AGREEMENT
(XXXXXX)
TERMINATION AGREEMENT dated as of March 18, 1997 by and between XXXX
XXXXXX, an individual residing at 00 Xxxxxx Xxxxxx, Xx. 0, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 (the "EMPLOYEE") and EXCHANGE APPLICATIONS, INC., a Delaware
corporation that maintains its principal place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "COMPANY").
RECITALS
The Employee is employed by, and is a stockholder of, the Company.
Concurrently herewith, the Company is obtaining additional equity financing and,
in connection therewith, is ceasing to operate the consulting business that the
Employee has been engaged by the Company to manage and operate. The parties are
entering into this Agreement to provide for the termination of the Employee's
employment with the Company, the termination of various agreements to which the
Employee and the Company are parties, and for various other matters incidental
thereto.
NOW, THEREFORE, in consideration of the mutual covenants herein
expressed, the parties hereto agree as follows:
1. RESIGNATION.
By mutual consent of the parties, the Employee hereby resigns as an
employee of the Company. The parties acknowledge and agree that the termination
of the Employee's employment as contemplated hereby is without cause or fault of
either the Employee or the Company and is being effected hereby in order to
accommodate the Company's obtaining financing from outside sources.
2. PURCHASE AND SALE OF STOCK, DELIVERY OF STOCK FROM ESCROW.
(a) The Employee hereby sells, conveys, transfers and assigns
9,375 shares of the Company's Common Stock, $.001 par value per share (the
Common Stock of the Company being referred to as "COMMON STOCK"), to the
Company, and the Company hereby purchases such shares from the Employee, for a
purchase price of $9.38.
(b) The Company hereby (i) waives its rights under Section 3(b) of
the Employee Restricted Stock Agreement dated as of November 15, 1996 between
the Employee and the Company (the "RESTRICTED STOCK AGREEMENT") to purchase any
of
28
Exhibit 10.19
the Employee's shares of Common Stock other than the 9,375 shares thereof that
are being purchased by the Company in accordance with Section 2(a) above (the
"REPURCHASED SHARES"), and (ii) agrees to release to the Employee out of the
escrow contemplated by Section 8 of the Restricted Stock Agreement free and
clear of the encumbrance created thereby and all other liens and encumbrances
(other than those that may have been created by the Employee) one or more share
certificates in the Employee's name evidencing 3,125 shares of Common Stock in
the aggregate, such share certificates to be issued without any reference to the
Restricted Stock Agreement or, except as may otherwise expressly agreed to by
the Employee in writing, any other agreement (such share certificates being
referred to as the "EMPLOYEE SHARE CERTIFICATE"). The Employee hereby represents
and warrants to the Company that (i) the Employee is the beneficial owner of the
Repurchased Shares and has the right to sell, convey, transfer and assign the
same to the Company as contemplated hereby free and clear of all liens and
encumbrances except for those created by the Restricted Stock Agreement and any
other agreements to which the Company and the Employee are party.
(c) The transactions contemplated by this Section 2 shall be
consummated concurrently herewith by (i) the Company delivering to the Employee
its check in the amount of $9.38 and the Employee Share Certificate and (ii) the
Company retaining the stock certificate and completing and retaining the stock
power (heretofore executed by the Employee) that it holds in accordance with
Section 8 of the Restricted Stock Agreement.
(d) The Restricted Stock Agreement is hereby terminated
immediately upon the consummation of the transactions contemplated by this
Section 2 and, after giving effect to the transactions contemplated by this
Section 2, neither the Employee nor the Corporation shall have any rights or
duties thereunder.
3. AMENDMENT OF NONDISCLOSURE AND DEVELOPMENTS AGREEMENT AND TERMINATION
OF NON-COMPETITION AND NON-SOLICITATION AGREEMENT.
(a)(i) The Nondisclosure and Developments Agreement dated as of
November 15, 1996 between the Employee and the Company (the "NONDISCLOSURE
AGREEMENT") is hereby amended to provide that Grant & Partners Limited
Partnership is no longer a third party beneficiary thereof and that the
definition of the term "PROPRIETARY INFORMATION" as used therein shall include
only (i) all information concerning the Company's organization and financial
affairs and (ii) all information and know-how, whether or not in writing,
concerning the Company's VALEX software product and the development, production,
marketing and the sale thereof, including, but not limited to, all inventions,
products, processes, methods, techniques, projects, developments, plans,
research data, algorithms, specifications, formula, computer programs, codes and
other information relating thereto. The Nondisclosure Agreement is hereby
further amended to provide that the term "DEVELOPMENTS" as used therein shall
mean all inventions, improvements, discoveries, methods,
29
Exhibit 10.19
developments, software and works of authorship related to the Company's
Proprietary Information described in clause (ii) of the definition of
"Proprietary Information" as set forth above, whether patentable or not, that
were created, made, conceived or reduced to practice by the Employee, alone or
jointly with others, or under the Employee's direction and known to the Employee
during his employment by the Company, whether or not during normal working hours
or on the Company's premises.
(ii) Without limitation of the provisions of the Nondisclosure
Agreement, the Employee agrees not to disclose any Proprietary Information to
others outside the Company or use the same for any unauthorized purposes without
written approval of the Board of Directors of the Company, from or after the
date hereof, unless and until such Proprietary Information as become public
knowledge without fault by the Employee.
(b) The Non-Competition and Non-Solicitation Agreement dated as of
November 15, 1996 between the Employee and the Company is hereby terminated and
neither the Company or its affiliates (including, without limitation, GPLP) nor
the Employee shall hereafter have any rights or duties thereunder.
4. MUTUAL RELEASES.
(a) The Employee hereby releases the Company, Cyrk, Inc. and GPLP
and their respective officers, directors, partners, affiliates and legal
representatives (collectively, the "RELEASEES") from any and all claims,
demands, rights and causes of action of whatever kind or nature now existing or
that may result from the existing state of things, which the Employee now has or
ever had (whether or not known) against the Releasees including, without
limitation, any claims for compensation (including any salary, bonuses, equity
or other compensation), any benefits, any claims based on or arising out of any
written or oral contract or agreement of any kind between any Releasee and the
Employee, and any statutory or other claims arising as a result of the
termination of the employment of such Employee, including any wrongful discharge
claims, but excluding claims arising under this Agreement and each other
agreement entered into by the Employee and any of the Releasees on the date
hereof.
(b) The Company, and by executing this Agreement where indicated
below, each of Cyrk, Inc. and GPLP, hereby release the Employee from any and all
claims, demands, rights and causes of action of whatever kind or nature now
existing or that may result from the existing state of things, that the Company,
Cyrk, Inc. or GPLP now has or ever had (whether or not known) against the
Employee other than those claims, demands, rights and causes of action arising
under this Agreement and each other agreement entered into by the Employee and
any of the Company, Cyrk, Inc. or GPLP on the date hereof or arising from any
wrongful disclosure of "Proprietary Information" within the meaning of the
Nondisclosure Agreement, as amended by
30
Exhibit 10.19
Section 3(a) above.
5. NON-COMPETITION.
The Employee hereby covenants and agrees that he will not during the
one year period ending on the first anniversary of the date of this Agreement.
(such period being referred to as the "NON-COMPETE PERIOD") (a) develop database
marketing software ("SOFTWARE") or provide systems integration services (such
businesses being referred to as "COMPANY BUSINESSES") anywhere in the United
States or Canada either alone or as an employee, partner, consultant, member or
manager of any other person, (b) solicit any Company employees to leave the
employ of the Company, (c) solicit any Company employees to become employees of
any other person or entity, or (d) solicit any customer of the Company with
respect to the Company Businesses. Nothing herein shall be deemed to prohibit
the Employee from providing, either alone or as an employee, partner,
consultant, member or manager of any person who is engaged in Company Businesses
(any such person being referred to as "COMPANY COMPETITORS"), database marketing
strategy and marketing program implementation consulting services ("CONSULTING
SERVICES") or from providing Consulting Services to persons in association with
Company Competitors that are selling to such persons Software or providing to
such persons systems integration services.
6. NOTICES.
All notices made under this Agreement shall be in writing and shall be
deemed effective upon personal delivery or upon deposit in the United States
Post Office, by registered or certified mail, postage prepaid, addressed to the
other party at the address shown above, or at such other address or addresses as
either party shall designate to the other in accordance with this Section 6.
7. AMENDMENT.
This Agreement may be amended or modified only by a written instrument
executed by both the Company and the Employee.
8. GOVERNING LAW.
This Agreement shall be deemed to be a contract under seal and shall be
construed in accordance with and governed by the laws of the Commonwealth of
Massachusetts (without giving effect to any conflicts or choice of laws
provisions that would cause the application of the domestic substantive laws of
any other jurisdiction).
9. SUCCESSORS AND ASSIGNS.
31
Exhibit 10.19
This Agreement shall be binding upon and inure to the benefit of both
parties and their respective successors and assigns, including any corporation
with which or into which the Company may be merged or that may hereafter succeed
to the Company's assets or business.
10. MISCELLANEOUS.
(a) No delay or omission by the Company or the Employee in
exercising any right under this Agreement shall operate as a waiver of that or
any other right. A waiver or consent given by the Company or the Employee on any
one occasion shall be effective only in that instance and shall not be construed
as a bar or waiver of any right on any other occasion.
(b) The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
(c) Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
(d) In case any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
EXCHANGE APPLICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx, President
EMPLOYEE:
/s/ Xxxx Xxxxxx
--------------------------------------
Xxxx Xxxxxx
32
Exhibit 10.19
ACKNOWLEDGMENT AND AGREEMENT
(a) The undersigned hereby acknowledges and agrees (i) that the
Nondisclosure and Developments Agreement dated as of November 15, 1996
referenced in Section 3(a) above is hereby amended as provided in Section 3(a)
above, and (ii) that the Non-Competition and Non-Solicitation Agreement dated as
of November 15, 1996 referred to in Section 3(b) above is hereby terminated and
that neither the undersigned nor the Employee hereafter has any rights or duties
thereunder.
(b) The undersigned hereby acknowledges and agrees that the
Non-Competition and Non-Solicitation Agreement dated July 24, 1996 and the
Nondisclosure and Developments Agreement dated July 24, 1996 between the
Employee and GPLP are hereby terminated and that neither the undersigned nor the
Employee has any rights or duties thereunder.
(c) The undersigned hereby releases the Employee as provided in
Section 4(b) above.
GRANT & PARTNERS LIMITED PARTNERSHIP
By: Grant & Partners, Inc., its General Partner
By: /s/ Xxxx Xxxxx
-------------------------------------------
Title: President
ACKNOWLEDGMENT AND AGREEMENT
The undersigned hereby releases the Employee as provided in Section 4.2
above.
CYRK, INC.
By: /s/ Xxxxxxx Xxxxx
-------------------------------------------
Title: President
33
Exhibit 10.19
TERMINATION AGREEMENT
(XXXXXX)
TERMINATION AGREEMENT dated as of March 18, 1997 by and between XXXXXX
XXXXXX, an individual residing at 000 Xxxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxxxxxxxxx
00000 (the "EMPLOYEE") and EXCHANGE APPLICATIONS, INC., a Delaware corporation
that maintains its principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "COMPANY")
RECITALS
The Employee is employed by, and is a stockholder of, the Company.
Concurrently herewith, the Company is obtaining additional equity financing and,
in connection therewith, is ceasing to operate the consulting business that the
Employee has been engaged by the Company to manage and operate. The parties are
entering into this Agreement to provide for the termination of the Employee's
employment with the Company, the termination of various agreements to which the
Employee and the Company are parties, and for various other matters incidental
thereto.
NOW, THEREFORE, in consideration of the mutual covenants herein
expressed, the parties hereto agree as follows:
1. RESIGNATION.
(a) By mutual consent of the parties, the Employee hereby resigns
as an employee of the Company. The parties acknowledge and agree that the
termination of the Employee's employment as contemplated hereby is without cause
or fault of either the Employee or the Company and is being effected hereby in
order to accommodate the Company's obtaining financing from outside sources.
(b) The Company shall pay to the Employee concurrently with the
execution hereof in immediately available funds the remaining balance of the
Employee's 1996 bonus compensation in the amount of $40,000.
2. PURCHASE AND SALE OF STOCK; DELIVERY OF STOCK FROM ESCROW.
(a) The Employee hereby sells, conveys, transfers and assigns
31,250 shares of the Company's Common Stock, $.001 par value per share (the
Common Stock of the Company being referred to as "COMMON STOCK"), to the
Company, and the Company hereby purchases such shares from the Employee, for a
purchase price of $31.25.
34
Exhibit 10.19
(b) The Company hereby (i) waives its rights under Section 3(b) of
the Employee Restricted Stock Agreement dated as of November 15, 1996 between
the Employee and the . Company (the "RESTRICTED STOCK AGREEMENT") to purchase
any of the Employee's shares of Common Stock other than the 31,250 shares
thereof that are being purchased by the Company in accordance with Section 2(a)
above (the "REPURCHASED SHARES"), and (ii) agrees to release to the Employee out
of the escrow contemplated by Section 8 of the Restricted Stock Agreement free
and clear of the encumbrance created thereby and all other liens and
encumbrances (other than those that may have been created by the Employee) one -
or more share certificates in the Employee's name evidencing 31,250 shares of
Common Stock in the aggregate, such share certificates to be issued without any
reference to the Restricted Stock Agreement or, except as may otherwise
expressly agreed to by the Employee in writing, any other agreement (such share
certificates being referred to as the "EMPLOYEE SHARE CERTIFICATE"). The
Employee hereby represents and warrants to the Company that (i) the Employee is
the beneficial owner of the Repurchased Shares and has the right to sell,
convey, transfer and assign the same to the Company as contemplated hereby free
and clear of all liens and encumbrances except for those created by the
Restricted Stock Agreement and any other agreements to which the Company and the
Employee are party.
(c) The transactions contemplated by this Section 2 shall be
consummated concurrently herewith by (i) the Company delivering to the Employee
its check in the amount of $31.25 and the Employee Share Certificate and (ii)
the Company retaining the stock certificate and completing and retaining the
stock power (heretofore executed by the Employee) that it holds in accordance
with Section 8 of the Restricted Stock Agreement.
(d) The Restricted Stock Agreement is hereby terminated
immediately upon the consummation of the transactions contemplated by this
Section 2 and, after giving effect to the transactions contemplated by this
Section 2, neither the Employee nor the Corporation shall have any rights or
duties thereunder.
3. AMENDMENT OF NONDISCLOSURE AND DEVELOPMENTS AGREEMENT AND TERMINATION
OF NON-COMPETITION AND NON-SOLICITATION AGREEMENT.
(a)(i) The Nondisclosure and Developments Agreement dated as of
November 15, 1996 between the Employee and the Company (the "NONDISCLOSURE
AGREEMENT") is hereby amended to provide that Grant & Partners Limited
Partnership is no longer a third party beneficiary thereof and that the
definition of the term "PROPRIETARY INFORMATION" as used therein shall include
only (i) all information concerning the Company's organization and financial
affairs and (ii) all information and know-how, whether or not in writing,
concerning the Company's VALEX software product and the development, production,
marketing and the sale thereof, including, but not limited to, all inventions,
products, processes, methods, techniques, projects,
35
Exhibit 10.19
developments, plans, research data, algorithms, specifications, formula,
computer programs, codes and other information relating thereto. The
Nondisclosure Agreement is hereby further amended to provide that the term
"DEVELOPMENTS" as used therein shall mean all inventions, improvements,
discoveries methods, developments, software and works of authorship related to
the Company's Proprietary Information described in clause (ii) of the definition
of "Proprietary Information" as set forth above, whether patentable or not, that
were created, made, conceived or reduced to practice by the Employee, alone or
jointly with others, or under the Employee's direction and known to the Employee
during his employment by the Company, whether or not during normal working hours
or on the Company's premises.
(ii) Without limitation of the provisions of the Nondisclosure
Agreement, the Employee agrees not to disclose any Proprietary Information to
others outside the Company or use the same for any unauthorized purposes without
written approval of the Board of Directors of the Company, from or after the
date hereof, unless and until such Proprietary Information as become public
knowledge without fault by the Employee.
(b) The Non-Competition and Non-Solicitation Agreement dated as of
November 15, 1996 between the Employee and the Company is hereby terminated and
neither the Company or its affiliates (including, without limitation, GPLP) nor
the Employee shall hereafter have any rights or duties thereunder.
4. MUTUAL RELEASES.
(a) The Employee hereby releases the Company, Cyrk, Inc. and GPLP
and their respective officers, directors, partners, affiliates and legal
representatives (collectively, the "RELEASEES") from any and all claims,
demands, rights and causes of action of whatever kind or nature now existing or
that may result from the existing state of things, which the Employee now has or
ever had (whether or not known) against the Releasees including, without
limitation, any claims for compensation (including any salary, bonuses, equity
or other compensation), any benefits, any claims based on or arising out of any
written or oral contract or agreement of any kind between any Releasee and the
Employee, and any statutory or other claims arising as a result of the
termination of the employment of such Employee, including any wrongful discharge
claims, but excluding claims arising under this Agreement and each other
agreement entered into by the Employee and any of the Releasees on the date
hereof.
(b) The Company, and by executing this Agreement where indicated
below, each of Cyrk, Inc. and GPLP, hereby release the Employee from any and all
claims, demands, rights and causes of action of whatever kind or nature now
existing or that may result from the existing state of things, that the Company,
Cyrk, Inc. or GPLP now has or ever had (whether or not known) against the
Employee other than those
36
Exhibit 10.19
claims, demands, rights and causes of action arising under this Agreement and
each other agreement entered into by the Employee and any of the Company, Cyrk,
Inc. or GPLP on the date hereof or arising from any wrongful disclosure of
"Proprietary Information" within the meaning of the Nondisclosure Agreement, as
amended by Section 3(a) above.
5. NON-COMPETITION.
The Employee hereby covenants and agrees that he will not during the
one year period ending on the first anniversary of the date of this Agreement
(such period being referred to as the "NON-COMPETE PERIOD") (a) develop database
marketing software ("SOFTWARE") or provide systems integration services (such
businesses being referred to as "COMPANY BUSINESSES") anywhere in the United
States or Canada either alone or as an employee, partner, consultant, member or
manager of any other person, (b) solicit any Company employees to leave the
employ of the Company, (c) solicit any Company employees to become employees of
any other person or entity, or (d) solicit any customer of the Company with
respect to the Company Businesses. Nothing herein shall be deemed to prohibit
the Employee from providing, either alone or as an employee, partner,
consultant, member or manager of any person who is engaged in Company Businesses
(any such person being referred to as "COMPANY COMPETITORS"), database marketing
strategy and marketing program implementation consulting services ("CONSULTING
SERVICES") or from providing Consulting Services to persons in association with
Company Competitors that are selling to such persons Software or providing to
such persons systems integration services.
6. NOTICES.
All notices made under this Agreement shall be in writing and shall be
deemed effective upon personal delivery or upon deposit in the United States
Post Office, by registered or certified mail, postage prepaid, addressed to the
other party at the address shown above, or at such other address or addresses as
either party shall designate to the other in accordance with this Section 6.
7. AMENDMENT.
This Agreement may be amended or modified only by a written instrument
executed by both the Company and the Employee.
8. GOVERNING LAW.
This Agreement shall be deemed to be a contract under seal and shall be
construed in accordance with and governed by the laws of the Commonwealth of
Massachusetts (without giving effect to any conflicts or choice of laws
provisions that would cause the application of the domestic substantive laws of
any other jurisdiction).
37
Exhibit 10.19
9. SUCCESSORS AND ASSIGNS.
This Agreement shall-be binding upon and inure to the benefit of both
parties and their respective successors and assigns, including any corporation
with which or into which the Company may be merged or that may hereafter succeed
to the Company's assets or business.
10. MISCELLANEOUS.
(a) No delay or omission by the Company or the Employee in
exercising any right under this Agreement shall operate as a waiver of that or
any other right. A waiver or consent given by the Company or the Employee on any
one occasion shall be effective only in that instance and shall not be construed
as a bar or waiver of any right on any other occasion.
(b) The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
(c) Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
(d) In case any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired thereby.
38
Exhibit 10.19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
EXCHANGE APPLICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx, President
EMPLOYEE:
/s/ Xxxxxx Xxxxxx
------------------------------------------
Xxxxxx Xxxxxx
39
Exhibit 10.19
ACKNOWLEDGEMENT AND AGREEMENT
(a) The undersigned hereby acknowledges and agrees (i) that the
Nondisclosure and Developments Agreement dated as of November 15, 1996
referenced in Section 3(a) above is hereby amended as provided in Section 3(a)
above, and (ii) that the Non-Competition and Non Solicitation Agreement dated as
of November 15, 1996 referred to in Section 3(b) above is hereby terminated and
that neither the undersigned nor the Employee hereafter has any rights or duties
thereunder.
(b) The undersigned hereby acknowledges and agrees that the
Non-Competition and Non-Solicitation Agreement dated February 13, 1995 and the
Nondisclosure and Developments Agreement dated February 13, 1995 between the
Employee and GPLP are hereby terminated and that neither the undersigned nor the
Employee has any rights or duties thereunder.
(c) The undersigned hereby releases the Employee as provided in
Section 4(b) above.
GRANT & PARTNERS LIMITED PARTNERSHIP
By: Grant & Partners, Inc., its General Partner
By: /s/ Xxxx Xxxxx
-------------------------------------------
Title: President
ACKNOWLEDGMENT AND AGREEMENT
The undersigned hereby releases the Employee as provided in Section 4.2
above.
CYRK, INC.
By: /s/ Xxxxxxx Xxxxx
-------------------------------------------
Title: President
40
Exhibit 10.19
TERMINATION AGREEMENT
(XXXXX)
TERMINATION AGREEMENT dated as of March 18, 1997 by and between XXXXXXX
XXXXX, an individual residing at 00 Xxxxxxxxxxxx Xxxxxx, Xx. 00, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "EMPLOYEE") and EXCHANGE APPLICATIONS, INC., a Delaware
corporation that maintains its principal place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "COMPANY").
RECITALS
The Employee is employed by, and is a stockholder of, the Company.
Concurrently herewith, the Company is obtaining additional equity financing and,
in connection therewith, is ceasing to operate the consulting business that the
Employee has been engaged by the Company to manage and operate. The parties are
entering into this Agreement to provide for the termination of the Employee's
employment with the Company, the termination of various agreements to which the
Employee and the Company are parties, and for various other matters incidental
thereto.
NOW, THEREFORE, in consideration of the mutual covenants herein
expressed, the parties hereto agree as follows:
1. RESIGNATION.
By mutual consent of the parties, the Employee hereby resigns as an
employee of the Company. The parties acknowledge and agree that the termination
of the Employee's employment as contemplated hereby is without cause or fault of
either the Employee or the Company and is being effected hereby in order to
accommodate the Company's obtaining financing from outside sources.
2. PURCHASE AND SALE OF STOCK; DELIVERY OF STOCK FROM ESCROW.
(a) The Employee hereby sells, conveys, transfers and assigns
18,750 shares of the Company's Common Stock, $.001 par value per share (the
Common Stock of the Company being referred to as "COMMON STOCK"), to the
Company, and the Company hereby purchases such shares from the Employee, for a
purchase price of $18.75.
(b) The Company hereby (i) waives its rights under Section 3(b) of
the Employee Restricted Stock Agreement dated as of November 15, 1996 between
the Employee and the Company (the "RESTRICTED STOCK AGREEMENT") to purchase any
of the Employee's shares of Common Stock other than the 18,750 shares thereof
that
41
Exhibit 10.19
are being purchased by the Company in accordance with Section 2(a) above (the
"REPURCHASED SHARES"), and (ii) agrees to release to the Employee out of the
escrow contemplated by Section 8 of the Restricted Stock Agreement free and
clear of the encumbrance created thereby and all other liens and encumbrances
(other than those that may have been created by the Employee) one or more share
certificates in the Employee's name evidencing 6,250 shares of Common Stock in
the aggregate, such share certificates to be issued without any reference to the
Restricted Stock Agreement or, except as may otherwise expressly agreed to by
the Employee in writing, any other agreement (such share certificates being
referred to as the "EMPLOYEE SHARE CERTIFICATE"). The Employee hereby represents
and warrants to the Company that (i) the Employee is the beneficial owner of the
Repurchased Shares and has the right to sell, convey, transfer and assign the
same to t e Company as contemplated hereby free and clear of all liens and
encumbrances except for those created by the Restricted Stock Agreement and any
other agreements to which the Company and the Employee are party.
(c) The transactions contemplated by this Section 2 shall be
consummated concurrently herewith by (i) the Company delivering to the Employee
its check in the amount of $18.75 and the Employee Share Certificate and (ii)
the Company retaining the stock certificate and completing and retaining the
stock power (heretofore executed by the Employee) that it holds in accordance
with Section 8 of the Restricted Stock Agreement.
(d) The Restricted Stock Agreement is hereby terminated
immediately upon the consummation of the transactions contemplated by this
Section 2 and, after giving effect to the transactions contemplated by this
Section 2, neither the Employee nor the Corporation shall have any rights or
duties thereunder.
3. AMENDMENT OF NONDISCLOSURE AND DEVELOPMENTS AGREEMENT AND TERMINATION
OF NON-COMPETITION AND NON-SOLICITATION AGREEMENT.
(a)(i) The Nondisclosure and Developments Agreement dated as of
November 15, 1996 between the Employee and the Company (the "NONDISCLOSURE
AGREEMENT") is hereby amended to provide that Grant & Partners Limited
Partnership is no longer a third party beneficiary thereof and that the
definition of the term "PROPRIETARY INFORMATION" as used therein shall include
only (i) all information concerning the Company's organization and financial
affairs and (ii) all information and know-how, whether or not in writing,
concerning the Company's VALEX software product and the development, production,
marketing and the sale thereof, including, but not limited to, all inventions,
products, processes, methods, techniques, projects, developments, plans,
research data, algorithms, specifications, formula, computer programs, codes and
other information relating thereto. The Nondisclosure Agreement is hereby
further amended to provide that the term "DEVELOPMENTS" as used therein shall
mean all inventions, improvements, discoveries, methods, developments, software
and works of authorship related to the Company's
42
Exhibit 10.19
Proprietary Information described in clause (ii) of the definition of
"Proprietary Information" as set forth above, whether patentable or not, that
were created, made, conceived reduced to practice by the Employee, alone or
jointly with others, or under the Employee's direction and known to the Employee
during his employment by the Company, whether or not during normal working hours
or on the Company's premises.
(ii) Without limitation of the provisions of the Nondisclosure
Agreement, the Employee agrees not to disclose any Proprietary Information to
others outside the Company or use the same for any unauthorized purposes without
written approval of the Board of Directors of the Company, from or after the
date hereof, unless and until such Proprietary Information as become public
knowledge without fault by the Employee.
(b) The Non-Competition and Non-Solicitation Agreement dated as of
December 11, 1996 between the Employee and the Company is hereby terminated and
neither the Company or its affiliates (including, without limitation, GPLP) nor
the Employee shall hereafter have any rights or duties thereunder.
4. MUTUAL RELEASES.
(a) The Employee hereby releases the Company, Cyrk, Inc. and GPLP
and their respective officers, directors, partners, affiliates and legal
representatives (collectively, the "RELEASEES") from any and all claims,
demands, rights and causes of action of whatever kind or nature now existing or
that may result from the existing state of things, which the Employee now has or
ever had (whether or not known) against the Releasees including, without
limitation, any claims for compensation (including any salary, bonuses, equity
or other compensation), any benefits, any claims based on or arising out of any
written or oral contract or agreement of any kind between any Releasee and the
Employee, and any statutory or other claims arising as a result of the
termination of the employment of such Employee, including any wrongful discharge
claims, but excluding claims arising under this Agreement and each other
agreement entered into by the Employee and any of the Releasees on the date
hereof.
(b) The Company, and by executing this Agreement where indicated
below, each of Cyrk, Inc. and GPLP, hereby release the Employee from any and all
claims, demands, rights and causes of action of whatever kind or nature now
existing or that may result from the existing state of things, that the Company,
Cyrk, Inc. or GPLP now has or ever had (whether or not known) against the
Employee other than those claims, demands, rights and causes of action arising
under this Agreement and each other agreement entered into by the Employee and
any of the Company, Cyrk, Inc. or GPLP on the date hereof or arising from any
wrongful disclosure of "Proprietary Information" within the meaning of the
Nondisclosure Agreement, as amended by Section 3(a) above.
43
Exhibit 10.19
5. NON-COMPETITION.
The Employee hereby covenants and agrees that he will not during the
one year period ending on the first anniversary of the date of this Agreement
(such period being referred to as the "NON-COMPETE PERIOD") (a) develop database
marketing software ("SOFTWARE") or provide systems integration services (such
businesses being referred to as "COMPANY BUSINESSES") anywhere in the United
States or Canada either alone or as an employee, partner, consultant, member or
manager of any other person, (b) solicit any Company employees to leave the
employ of the Company, (c) solicit any Company employees to become employees of
any other person or entity, or (d) solicit any customer of the Company with
respect to the Company Businesses. Nothing herein shall be deemed to prohibit
the Employee from providing, either alone or as an employee, partner,
consultant, member or manager of any person who is engaged in Company Businesses
(any such person being referred to as "COMPANY COMPETITORS"), database marketing
strategy and marketing program implementation consulting services ("CONSULTING
SERVICES") or from providing Consulting Services to persons in association with
Company Competitors that are selling to such persons Software or providing to
such persons systems integration services.
6. NOTICES.
All notices made under this Agreement shall be in writing and shall be
deemed effective upon personal delivery or upon deposit in the United States
Post Office, by registered or certified mail, postage prepaid, addressed to the
other party at the address shown above, or at such other address or addresses as
either party shall designate to the other in accordance with this Section 6.
7. AMENDMENT.
This Agreement may be amended or modified only by a written instrument
executed by both the Company and the Employee.
8. GOVERNING LAW.
This Agreement shall be deemed to be a contract under seal and shall be
construed in accordance with and governed by the laws of the Commonwealth of
Massachusetts (without giving effect to any conflicts or choice of laws
provisions that would cause the application of the domestic substantive laws of
any other jurisdiction).
9. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of both
parties and their respective successors and assigns, including any corporation
with which or
44
Exhibit 10.19
into which the Company may be merged or that may hereafter succeed to the
Company's assets or business.
10. MISCELLANEOUS.
(a) No delay or omission by the Company or the Employee in
exercising any right under this Agreement shall operate as a waiver of that or
any other right. A waiver or consent given by the Company or the Employee on any
one occasion shall be effective only in that instance and shall not be construed
as a bar or waiver of any right on any other occasion.
(b) The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
(c) Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
(d) In case any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
EXCHANGE APPLICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx, President
EMPLOYEE:
/s/ Xxxxxxx Xxxxx
--------------------------------------
Xxxxxxx Xxxxx
45
Exhibit 10.19
ACKNOWLEDGEMENT AND AGREEMENT
(a) The undersigned hereby acknowledges and agrees (i) that the
Nondisclosure and Developments Agreement dated as of November 15, 1996
referenced in Section 3(a) above is hereby amended as provided in Section 3(a)
above, and (ii) that the Non-Competition and Non Solicitation Agreement dated as
of November 15, 1996 referred to in Section 3(b) above is hereby terminated and
that neither the undersigned nor the Employee hereafter has any rights or duties
thereunder.
(b) The undersigned hereby acknowledges and agrees that the
Non-Competition and Non-Solicitation Agreement dated February 13, 1995 and the
Nondisclosure and Developments Agreement dated February 13, 1995 between the
Employee and GPLP are hereby terminated and that neither the undersigned nor the
Employee has any rights or duties thereunder.
(c) The undersigned hereby releases the Employee as provided in
Section 4(b) above.
GRANT & PARTNERS LIMITED PARTNERSHIP
By: Grant & Partners, Inc., its General Partner
By: /s/ Xxxx Xxxxx
-------------------------------------------
Title: President
ACKNOWLEDGMENT AND AGREEMENT
The undersigned hereby releases the Employee as provided in Section 4.2
above.
CYRK, INC.
By: /s/ Xxxxxxx Xxxxx
-------------------------------------------
Title: President
