EXECUTION COPY
SETTLEMENT AND RELEASE AGREEMENT
SETTLEMENT AND RELEASE AGREEMENT dated as of November 6, 2001 (this
"AGREEMENT"), by and among INFOCROSSING, INC., a corporation incorporated under
the laws of the State of Delaware (the "COMPANY") and XXXXXXX XXXXXX, a resident
of the State of New Jersey ("XXXXXX").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS the Company and Xxxxxx are parties to an Employment Agreement
pursuant to which Xxxxxx serves as the President and Chief Executive Officer of
the Company (the "Employment Agreement"); and
WHEREAS certain events have occurred and certain disputes have arisen
between the Company and Xxxxxx concerning, inter alia, various provisions of the
Employment Agreement and the application thereof, including the rights of Xxxxxx
upon the termination of his employment with the Company, which have caused the
Company and Xxxxxx to conclude that it is in their mutual best interests to
terminate the employment relationship between them; and
WHEREAS the Company and Xxxxxx do, in fact, desire to terminate their
employment relationship and to settle any and all outstanding claims among them;
and
WHEREAS, each party hereto, having been afforded the opportunity to be
represented by counsel of its choice, has determined that a comprehensive and
final settlement of any and all claims among them is in the parties mutual best
interests.
NOW THEREFORE, in consideration of the mutual covenants, agreements and
releases set forth herein and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, it is hereby agreed between the
parties as follows:
ARTICLE I
DEFINITIONS
As used herein, the following terms shall have the following meanings:
"Affiliated Party" shall mean, with respect to any person or legal
entity, any spouse, heir, executor, administrator, successor assignee,
subsidiary, affiliate (as such term is defined under Rule 12b-2 under the
Exchange Act), officer, director, employee, agent or representative (including
any person or entity acting as legal counsel) of such person or legal entity.
"Agreement" shall have the meaning set forth in the preamble hereto.
"Applicable Law" means (a) any United States federal, state, local or
foreign law, statute, rule, regulation, order, writ, injunction, judgment,
decree or permit of any Governmental Authority and (b) any rule or listing
requirement of any applicable national stock exchange or listing requirement of
any national stock exchange or Commission recognized trading market on which
securities issued by the Company is listed or quoted.
"Xxxxxx" shall have the meaning set forth in the preamble hereto.
"Xxxxxx Notes" shall mean that certain promissory note dated December
21, 2000, in the initial principal amount of $1,291,000, and that certain
promissory note dated April 12, 2001, in the initial principal amount of
$586,832, each made by Xxxxxxx Xxxxxx in favor of the Company, in each case
together with all accrued and unpaid interest due in respect thereof which as of
Xxxxxx'x last date of employment is $57,315.78.
"Claim" means any allegation, action, obligation, cause of action,
right of action, suit, debt, dues, sum of money, account, reckoning, xxxx, xxxx,
specialty, covenant, contract, controversy, agreement, promise, variance,
trespass, damages, judgment, expense, execution, claim or demand whatsoever,
whether in law, equity or admiralty and whether in contract or in tort.
"Closing Date" shall mean the date that is eight days after the
execution and delivery of this Agreement by each of the parties hereto.
"COBRA" means Section 4980B of the Internal Revenue Code of 1986, as
amended, and Part 6 of Subtitle B of Title I of the Employee Retirement Income
Security Act of 1974, as amended.
"Commission" means the United States Securities and Exchange Commission
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"Common Stock" means the Common Stock of the Company, par value $0.01
per share.
"Company" shall have the meaning set forth in the preamble hereto.
"Confidential Information" shall have the meaning set forth in Section
4.3 hereof.
"Employment Agreement" shall have the meaning set forth in the recitals
hereto.
"Governmental Authority" means (i) any foreign, federal, state or local
court or governmental or regulatory agency or authority, (ii) any arbitration
board, tribunal or mediator and (iii) any national stock exchange or Commission
recognized trading market on which securities issued by the Company are listed
or quoted.
"Person" means any individual, partnership, corporation, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or agency or political subdivision
thereof, or other entity.
"Restricted Shares" means the 800,000 restricted shares of Common Stock
awarded to Xxxxxx pursuant to Section 4(c) of the Employment Agreement.
"Securities Act" means the Securities Act of 1933, and the rules and
regulations of the Committee promulgated thereunder.
"Shares" means the Restricted Shares and the shares of Common Stock
comprising the Stock Investment.
"Stockholders' Agreement" means the Amended and Restated Stockholders'
Agreement, dated as of December 11, 2000, by and among the Company, DB Capital
Investors, L.P., Sandler Capital Partners V, L.P., Sandler Internet Partners,
L.P., Sandler Co-Investment Partners, L.P., the Management Stockholders (as such
term is defined in the Stockholders' Agreement) and the Non-Management
Stockholders (as such term is defined in the Stockholders' Agreement).
"Stock Investment" means the 68,446 shares of Common Stock purchased by
Xxxxxx pursuant to Section 5 of the Employment Agreement.
ARTICLE II
TERMS OF SETTLEMENT
Section 2.1. Repurchase of Stock Investment. The Company hereby
acknowledges that Xxxxxx has asserted the right to rescind his purchase of the
Stock Investment. In response to such claim, and without admitting or denying
the validity thereof, Company has agreed to repurchase the Stock Investment on
the terms herein provided. Accordingly, on the Closing Date, the Company shall
repurchase the shares of Common Stock comprising the Stock Investment at a price
of $12.8373868 per share of Common Stock, or an aggregate consideration of
$878,667.78. Such amount shall be paid by a reduction in the amount payable
under the Xxxxxx Notes.
Section 2.2. Vesting and Repurchase of Restricted Shares. (a)
Notwithstanding anything to the contrary set forth in the Employment Agreement,
the parties hereto agree (i) that as of the Closing Date, all 800,000 Restricted
Shares will be deemed to vest, and (ii) that as of the Closing Date, the fair
market value of the 800,000 Restricted Shares is $2,580,000, being $3.225 per
share.
(b) On the Closing Date, the Company will purchase from Xxxxxx a total
of 327,613 Restricted Shares for a purchase price of $3.225 per share, or an
aggregate consideration of $1,056,552. Such amount shall be paid by a reduction
in the amount payable under the Xxxxxx Notes.
(c) On the Closing Date, the Company shall purchase from Xxxxxx an
additional 139,535 Restricted Shares for a purchase price of $3.225 per share,
or an aggregate consideration of $450,000.00. Such amount shall be paid by
cheque, to be made out to the order of Xxxxxx and delivered on the Closing Date.
Section 2.3. Medical Insurance. From and after the date the Closing
Date through the earlier to occur of (a) April 2, 2003, or (b) the date on which
Xxxxxx obtains employment with another employer pursuant to which he is eligible
to receive, the Company shall pay the cost of any COBRA or equivalent coverage
elected by Xxxxxx under the Company's existing employee medical insurance
coverage. Xxxxxx hereby agrees that he shall, within seven days of obtaining
alternate employment pursuant to which he is eligible to receive medical
insurance, notify the Company that he has obtained such employment and the
Company's obligation to provide medical insurance hereunder shall thereafter
cease.
Section 2.4. Use of Office Space; Secretarial Assistance. During the 60
day period immediately succeeding the Closing Date, Xxxxxx, upon request, shall
be entitled to the use of an office in the Company's offices located in New
York, New York and shall be afforded the use of a secretary to provide normal
and routine secretarial services to him.
Section 2.5. Salary and Benefits; Termination of Employment. The
Company shall pay to Xxxxxx all of his normal base salary (but not any bonus)
and benefits through October 2, 2001. Said payments shall be in the ordinary
course of the Company's business and in accordance with customary practices. The
parties hereto agree that October 2, 2001, shall be deemed to be Xxxxxx'x last
day of employment by the Company and that his employment shall be deemed to have
terminated as of 5:00 p.m. Eastern Daylight Time on such date. All parties agree
that Xxxxxx shall have no claim for any item of compensation (including, without
limitation, any salary, bonus, accrued and unused vacation pay or benefits) for
any period after October 2, 2001, except as expressly set forth in this
Agreement.
Section 2.6. (a) Transfer of Shares; Other Matters with respect to
Company Common Stock. On the Closing Date, Xxxxxx will deliver to the Company
(i) the certificates representing the shares of Common Stock comprising the
Stock Investment and (ii) certificates representing 467,148 Restricted Shares,
in each case duly endorsed in blank or accompanied by stock powers executed in
blank. Xxxxxx agrees that he shall cooperate with the Company and take all such
reasonable action as the Company may request, to facilitate the transfer of such
Shares.
(b) Xxxxxx agrees not to directly or indirectly sell, assign,
pledge, hypothecate, deposit in any voting trust, or in any manner, transfer or
dispose of any of Shares held by Xxxxxx as of the Closing Date, or any right or
interest therein, (including, without limitation, by use of any derivative
instrument) to any Person (each such action, a "Transfer") unless such Transfer
(a) occurs 90 days after the Closing Date and (b) is in compliance with Rule 144
under the Securities Act or any successor rule or regulation; provided, however,
that prior to October 15, 2002, without the consent of the board of directors of
the Company, Xxxxxx shall not Transfer an amount of Shares held by him in any
three month period which exceeds the number of such Shares held by him which he
could permissibly sell under Rule 144(e)(1); except that, to the extent
permitted by Applicable Law, for purposes of this Agreement the reference in
Rule 144(e)(1)(i) to "one percent of the shares or other units of the class
outstanding as shown by the most recent report or statement published by the
issuer" shall be deemed to be read as "one and a half percent of the shares or
other units of the class outstanding as shown by the most recent report or
statement published by the issuer," and all other provisions pursuant to Rule
144(e)(1) shall remain the same.
Section 2.7. Resignations; Compensation Matters. (a) Xxxxxx hereby
agrees that, on the Closing Date, he shall resign each of his positions as an
employee, officer, director, agent or representative of the Company (including,
but not limited to all positions or memberships in trade associations, if any,
held solely by virtue of his affiliation with the Company). From and after the
Closing Date, Xxxxxx will not represent himself as being affiliated with the
Company in any capacity whatsoever. In furtherance and not in limitation of this
Section 2.7, on the Closing Date Xxxxxx shall execute and deliver to the Company
a resignation letter substantially in the form of Exhibit A attached hereto.
Xxxxxx acknowledges that, as of the Closing Date, he has no disagreement with
the Company on any matter relating to the Company's operations, policies or
practices, including without limitation, with respect to any accounting matters.
Section 2.8. No Further Compensation or Benefits. It is the intention
of the parties that all obligations they are undertaking in settlement of their
disputes are fully set forth in this Agreement, together with the Exhibits
hereto, and that, notwithstanding anything to the contrary set forth in the
Employment Agreement or elsewhere, no further compensation or benefits shall be
due Xxxxxx from the Company or any of its Affiliated Parties, including, without
limitation, any severance or termination pay or any other amounts which might
otherwise be due under the Employment Agreement.
Section 2.9. Effectiveness of Documents. This Agreement and each of the
related Exhibits and documents related hereto which are contemplated to be
executed and delivered on the Closing Date shall become effective simultaneously
at such time as this Agreement and all Exhibits and documents contemplated
hereby have been executed and delivered by all parties thereto.
ARTICLE III
MUTUAL RELEASES
Section 3.1. Release by Xxxxxx. Except for obligations specifically
undertaken pursuant to this Agreement or any Exhibit hereto, Xxxxxx hereby
releases and discharges each of the Company and its Affiliated Parties from all
Claims which either Xxxxxx and/or any of his Affiliated Parties ever had, now
have, or hereafter can, shall, or may have for, upon or by reason of (a) the
Employment Agreement, (b) the Stockholders' Agreement, or (c) any other cause or
thing whatsoever, whether expressly set forth in this Agreement or otherwise, in
each case to the Closing Date of this Agreement.
Section 3.2. Release by the Company. Except for obligations
specifically undertaken pursuant to this Agreement or any Exhibit hereto, the
Company hereby releases and discharges Xxxxxx and each of his Affiliated Parties
from all Claims which the Company and/or any of its Affiliated Parties ever had,
now have, or hereafter can, shall, or may have for, upon or by reason of (a) the
Employment Agreement, (b) the Xxxxxx Notes, (c) the Stockholders' Agreement, or
(c) any other cause or thing whatsoever, whether expressly set forth in this
Agreement or otherwise, in each case to the Closing Date of this Agreement.
Section 3.3. Indemnification Rights. Notwithstanding any of the
foregoing, the Company hereby agrees that Xxxxxx shall not forfeit any of his
rights to indemnification to which he may be entitled in his capacity as an
officer, director or employee of the Company for any actions taken by him in his
capacity as an officer, director or employee of the Company during the time that
he was employed by the Company.
ARTICLE IV
SPECIAL RELEASES OF XXXXXX; COVENANTS
Section 4.1. Employment Related Releases. In exchange for and in order
to induce the Company to release any Claims the Company may have against him
pursuant to the Employment Agreement and the Xxxxxx Notes and to induce the
Company to make the payments set forth in Article II of this Agreement,
effective as of the Closing Date, Xxxxxx, hereby releases and waives any and all
Claims that he and his Affiliated Parties may have against the Company and its
Affiliated Parties, known or unknown, existing or claimed to exist with respect
to all matters relating to his employment, and separation from employment, with
the Company, including, but not limited to, all allegations, Claims or
violations related to severance, notice of termination, the payment of salary or
benefits and all Claims arising under the following, in each case as amended:
the Age Discrimination in Employment Act of 1967; Title VII of the Civil Rights
Act of 1964; the Civil Rights Act of 1991; the Equal Pay Act of 1963, the
Americans with Disabilities Act of 1990, the Family and Medical Leave Act of
1993; the Civil Rights Act of 1866; the Worker Adjustment and Retraining
Notification Act, the Employee Retirement Income Security Act of 1974; any
applicable Executive Order Programs; the Fair Labor Standards Act; and each of
their state or local counterparts, the New York State Human Rights Law (Article
15 of the New York State Executive Law), the New York City Human Rights Law, as
amended (Title I, Chapter B of the Administrative Code of the City of New York,
the New Jersey Law Against Discrimination (N.J.S.A. 10:5-12)) or any other
federal, state or local statute or ordinance; or under any public policy,
contract or tort, or under common law; for wrongful discharge; or arising under
any practices or procedures of the Company or its Affiliated Parties; or any
claim for breach of contract, infliction of emotional distress, defamation, or
any claim for costs, fees or other expenses, including attorneys fees, incurred
in these matters.
Section 4.2. Consideration Period; Waiver. Xxxxxx acknowledges that he
has been advised that he is entitled to at least 21 days to consider this
Agreement. In the event that he executes and delivers this Agreement prior to
the expiration of the 21 day period, Xxxxxx hereby agrees such execution and
delivery shall constitute a waiver of the balance of said period.
Section 4.3. Acknowledgment of Xxxxxx Regarding Consideration. Xxxxxx
hereby acknowledges and agrees that he has received good and valuable
consideration for entering into this Agreement.
Section 4.4. Confidential Information. (a) Auster hereby agrees, that
except as may be required by law, to hold in strictest confidence and to not
directly or indirectly publish, disseminate or otherwise disclose or allow to be
disclosed, any "Confidential Information" (as defined below); provided, however,
that Xxxxxx shall have no obligation to maintain in confidence any information
that is or becomes publicly available through no fault of himself. "Confidential
Information" shall mean business or proprietary information (including, without
limitation, business plans, financial information and other subject matter
pertaining to any business of the Company or any of its affiliates) that is not
commonly known in the industry. Confidential Information shall also include, for
example and without limitation, confidential knowledge, data, financial
information or data, marketing techniques and material, business plans, methods
and strategies (whether or not patentable or reduced to practice), business
operations and systems, software, computer code, flow charts, pricing policies,
information concerning employees, customers and/or vendors, trade secrets,
discoveries, inventions (whether or not patentable or reduced to practice),
improvements, research, scientific engineering information, development,
databases, know-how, show-how, designs, products, compositions, original works
of authorship, prototypes, maskworks, physical materials, manufacturing
processes and other information disclosed or submitted orally, in writing, or by
any other media. The Confidential Information as set forth above may be in any
form, including but not limited to, any intangible form such as unrecorded
knowledge, information, ideas or concepts, or may be embodied in equipment or
other tangible form such as documents, drawings, photographs, computer code,
software or other printed or electronic media.
(b) Xxxxxx agrees that a breach of his obligations contained
in this Section 4.4 would cause irreparable damage to the Company and any of its
affiliates, the exact amount of which will be difficult to ascertain and that
the remedies at law for any such breach will be inadequate. Accordingly, Xxxxxx
agrees that if he breaches any of his obligations contained in the Section 4.4,
in addition to any other remedy which may be available at law or in equity, the
Company shall be entitled to specific performance and injunctive relief, without
a showing that monetary damages will not provide an adequate remedy and without
being required to post a bond.
Section 4.5. Non-Solicitation. (a) Xxxxxx hereby agrees that for two
(2) years after the date of the Closing, he shall not, directly or indirectly,
on his own behalf or on behalf of others, solicit for employment any employee of
the Company or any of its affiliates at the time of this Agreement or who shall
subsequently become an employee of the Company or any of its affiliates or
encourage any employee or consultant of the Company or any of its affiliates to
leave the employ or service of the Company, nor shall Auster assist or encourage
any person or entity to do any of the foregoing.
(b) Xxxxxx agrees that a breach of his obligations contained
in this Section 4.5 would cause irreparable damage to the Company and any of its
affiliates, the exact amount of which will be difficult to ascertain and that
the remedies at law for any such breach will be inadequate. Accordingly, Xxxxxx
agrees that if he breaches any of his obligations contained in the Section 4.5,
in addition to any other remedy which may be available at law or in equity, the
Company shall be entitled to specific performance and injunctive relief, without
a showing that monetary damages will not provide an adequate remedy and without
being required to post a bond.
Section 4.6. Return of Company Property. Xxxxxx agrees to return to the
Company any and all documents, materials, records, computer discs or other items
in their respective possession or control belonging to the Company or containing
Confidential Information relating to the Company, to surrender to the Company
any identification or credit cards, keys, telephones, equipment or other such
items owned by the Company or within their respective possession; provided that
Xxxxxx shall be entitled to retain as his own personal property the laptop
computer used by him in the performance of his duties for the Company.
Section 4.7. Tax Cooperation. (a) Xxxxxx has represented to the Company
that he filed an election pursuant to ss.83(b) of the Internal Revenue Code on
July 13, 2000 in connection with his acquisition of the Restricted Shares. The
Company filed 1999 federal and state income tax returns claiming a deduction
relative to Xxxxxx'x acquisition of the Restricted Shares predicated upon the
premise that Xxxxxx'x Section 83(b) election was valid.
(b) The Company acknowledges that Xxxxxx became the beneficial
owner of the Restricted Shares prior to June 12, 2000.
(c) The Company hereby agrees to file amended 1999 federal and
state income tax returns in which it adjusts its 1999 taxable income to reflect
that it was not entitled to claim a deduction attributable to Xxxxxx'x
acquisition of the Restricted Shares. Such amended returns shall contain a
disclosure statement to the effect that the Company had understood that Xxxxxx
filed a ss.83(b) election on a timely basis with respect to the Restricted
Shares, but the Company has now been informed by Xxxxxx that no such timely and
valid election was filed. Consequently, assuming Xxxxxx did not file a timely
ss.83(b) election with respect to the Restricted Shares and because the
Restricted Shares, upon issuance and throughout the period in which Xxxxxx held
the Restricted Shares were non-transferable and subject to a substantial risk of
forfeiture, in each case within the meaning of ss.83 of the Internal Revenue
Code and the Treasury Regulations thereunder, the Company was not entitled to
claim a deduction in 1999 with respect to its issuance of the Restricted Shares.
(d) The Company shall file the foregoing amendments to its
1999 tax returns with the appropriate taxing authorities no later than February
28, 2002, and shall promptly furnish Xxxxxx with a certificate from a
responsible officer of the Company attesting to that effect.
(e) Each party hereto hereby covenants to the other party
hereto that it will take no position with any Governmental Authority, including
without limitation any taxing authority, and will make no statement in any
proceeding involving any such authority, that is inconsistent with the
representations and agreements made by the party herein, to the extent permitted
by Applicable Law. The Company further agrees that it will not settle or concede
any claim regarding the filing or validity of Xxxxxx'x xx.83(b) election without
Xxxxxx'x consent, such consent not to be unreasonably withheld, conditioned or
delayed. Without being in limitation of the foregoing, the parties hereto hereby
acknowledge that their agreements regarding the Stock Investment, the
acquisition, vesting, and repurchase of Restricted Shares, and the filing by the
Company of amended 1999 tax returns are all material elements of this Agreement
and the settlement between the parties that is hereby memorialized.
(f) Xxxxxx shall be personally liable for the satisfaction of
any federal, state or local taxes arising in connection with the award by the
Company of the Restricted Shares. In addition, Xxxxxx hereby undertakes and
agrees to indemnify, defend and hold harmless the Company and its affiliates and
their respective directors and officers from and against any and all federal,
state and local taxes or tax withholding obligations including interest and
penalties, arising in connection with the vesting or repurchase by the Company
hereunder of the Restricted Shares and the other undertakings by the Company as
set forth in this Section 4.7. Should the Company receive notice of any claim
embraced by this paragraph, it shall promptly notify Xxxxxx thereof and permit
Xxxxxx and/or his representatives to comment on such claim. The Company agrees
to consider such comments in good faith.
ARTICLE V
CERTAIN MATTERS
Section 5.1. Representation by Counsel. Each party hereto acknowledges
that, at all times during the negotiation and preparation of this Agreement,
including, but not limited to the releases contained in Articles III and IV
hereof such party has been represented by counsel of its choice, that such party
understands the contents of this Agreement and its binding effect, that such
party has reviewed this Agreement with its counsel prior to the execution and
delivery hereof, and intends to knowingly and voluntarily release the Claims
released hereby as of the Closing Date.
Section 5.2. Right of Revocation. Xxxxxx shall have seven (7) days
following the execution of this Agreement to revoke this Agreement and this
Agreement shall not become effective or enforceable and the Closing Date shall
not occur until such revocation period has expired. Any revocation within this
period shall be submitted in writing. The revocation must be in writing and must
be personally delivered, or mailed and post marked, within seven (7) days of the
execution and delivery of this Agreement. No payments provided for herein will
be made until the Closing Date. If this Agreement is revoked by Xxxxxx during
such revocation period, then this Agreement shall be void and of no effect.
Section 5.3. No Release of Claims for Failure to Perform this
Agreement. For the avoidance of doubt, each party expressly acknowledges and
agrees that no party hereto is releasing any Claim arising out of the failure of
any party hereto to perform any obligation which such party is expressly
required to perform under this Agreement.
Section 5.4. Acknowledgment. By her acknowledgment set forth below,
Xxxxx Xxxxxx, wife of Xxxxxx, hereby acknowledges, consents and agrees to the
releases contained in Articles III and IV hereof, acknowledges that she is an
Affiliated Party of Xxxxxx and agrees that the Company will have no liability to
her on account of any Claim released thereby.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.1. Representations and Warranties of Xxxxxx. Xxxxxx hereby
represents and warrants to the Company on the date hereof and on and as of the
Closing Date as follows:
(a) Capacity. Xxxxxx has full capacity to enter into this
Agreement and this Agreement constitutes his valid and legally binding
obligation, enforceable in accordance with its terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally, and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
(b) No Violation; Consents. The execution, delivery and
performance by Xxxxxx of this Agreement does not and will not contravene any
Applicable Law to which he is subject. The execution, delivery and performance
by Xxxxxx of this Agreement will not violate, result in a breach of or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation or acceleration) under any
contract to which Xxxxxx is a party or by which Xxxxxx is bound or to which any
of his assets is subject.
(c) No Known Third Party Claims. Xxxxxx is not aware of any
third party Claims or potential Claims which individually or in the aggregate
are material to the Company which could be reasonably asserted against the
Company or its subsidiaries, officers, directors or employees as a result of
actions taken by Xxxxxx while acting as an officer or director of the Company.
(d) Use of Proceeds. Xxxxxx hereby represents and warrants to
the Company that pursuant to Section 4(c)(iii) of the Employment Agreement, he
used the entire proceeds of the Xxxxxx Notes to pay federal, state and local
income, withholding and other taxes for the year 2000.
Section 6.2. Representations and Warranties of the Company. The Company
hereby represents and warrants to each Purchaser on the date hereof and on and
as of the Closing Date as follows:
(a) Organization, Good Standing and Qualification. The Company
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to carry on its business as now conducted and as proposed to be
conducted.
(b) Authorization. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement and the performance of
all obligations of the Company hereunder has been taken or will be taken prior
to the Closing, and this Agreement constitutes, or will, upon execution hereof
by the parties hereto, constitute, a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally, and
(ii) as limited by laws and principles relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
(c) No Violation; Consents. The execution, delivery and
performance by the Company of this Agreement does not and will not contravene
any Applicable Law. The execution, delivery and performance by the Company of
this Agreement will not (i) violate, result in a breach of or constitute (with
or without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under any contract to which
the Company is a party or by which the Company is bound or to which any of its
assets is subject and (ii) will not conflict with or violate any provision of
the certificate of incorporation or by-laws or other governing documents of the
Company.
(d) No Known Third Party Claims. The Company is not aware of
any third party Claims or potential Claims which individually or in the
aggregate are material to Xxxxxx which could reasonably be asserted against
Xxxxxx as a result of actions taken by the Company in respect of Xxxxxx during
the time Xxxxxx was acting as an officer or director of the Company.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Expenses. The parties hereto shall pay all of their own
expenses relating to the transactions contemplated by this Agreement, including,
without limitation, the fees and expenses of their respective counsel.
Section 7.2. Governing Law. The interpretation and construction of this
Agreement, and all matters relating hereto, shall be governed by the laws of the
State of New York applicable to agreements executed and to be performed solely
within such State.
Section 7.3. Jurisdiction; Agents for Service of Process. Any judicial
proceeding brought against any of the parties to this Agreement on any dispute
arising out of this Agreement or any matter related hereto may be brought in the
courts of the State of New York, or in the United States District Court for the
Southern District of New York, and, by execution and delivery of this Agreement,
each of the parties to this Agreement consents to and accepts the exclusive
jurisdiction of such courts, and irrevocably agrees to be bound by any judgment
rendered thereby in connection with this Agreement.
Section 7.4. Captions. The Article and Section captions used herein are
for reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
Section 7.5. Notices. Any notice or other communication required or
permitted under this Agreement shall be sufficiently given if delivered in
person or sent by telecopy or by registered or certified mail, postage prepaid,
addressed as follows: if to the Company, to Infocrossing, Inc., 0 Xxxxxxxx
Xxxxxxx Xxxxxx , Xxxxxx, Xxx Xxxxxx 00000, with a copy to White & Case LLP, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: X. Xxxx Xxxxxxxxx,
Esq.; and if to Xxxxxx, to Xxxxxxx Xxxxxx, 00 Xxxxxxxx Xxxx, Xxxxxx, Xxx Xxxxxx
00000, with a copy to Xxxxxx Xxxxxxxxx, Esq., Law Offices of Xxxxxx Xxxxxxxxx,
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, or such
other address or number as shall be furnished in writing by any such party, and
such notice or communication shall be deemed to have been given as of the date
so delivered, sent by telecopier or mailed.
Section 7.6. Parties in Interest. This Agreement may not be
transferred, assigned, pledged or hypothecated by any party hereto, other than
by operation of law. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective Affiliated Parties.
Section 7.7. Counterparts. This Agreement may be executed in two or
more counterparts, all of which taken together shall constitute one instrument.
Section 7.8. Entire Agreement. This Agreement, including the other
documents referred to herein which form a part hereof, contains the entire
understanding of the parties hereto with respect to the subject matter contained
herein and therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
Section 7.9. Amendments. This Agreement may not be changed orally, but
only by an agreement in writing signed by each of the parties hereto.
Section 7.10. Severability. It is the desire and intent of the parties
that this Agreement, including, without limitation, the mutual releases
contained herein, shall be enforced to the fullest extent permissible under the
laws of the State of New York. If any particular provision or portion of any
provision hereof, including, without limitation, any of the mutual releases
contained herein, shall be adjudicated to be invalid or unenforceable, this
Agreement shall be deemed to be amended to delete herefrom any such provision or
portion so adjudicated in a manner calculated to give maximum effect to the
remaining provisions of this Agreement; provided that the essence of this
Agreement can be maintained. No such deemed amendment of this Agreement shall in
any way whatsoever affect or impair the validity, legality and enforceability of
the remaining provisions hereof.
Section 7.11. Confidentiality. (a) The Company and its affiliates and
their respective officers and directors covenant and agree that they shall not
knowingly issue, participate in or cause (in whole or in part) the release of
any adverse information or adverse statements relating to Xxxxxx or this
Agreement or the circumstances surrounding this Agreement to anyone (including
but not limited to any person or entity in the business trade, media or public)
except to each of their counsel, accountants or agents or as required by law or
upon the prior written consent of Xxxxxx. Notwithstanding, the foregoing within
five business days after the Closing Date, the Company shall cause to filed with
the Commission a Form 8-K announcing the resignation of Xxxxxx and attaching
this Agreement as an Exhibit thereto.
(b) Xxxxxx covenants and agrees that he shall not knowingly
issue, participate in or cause (in whole or in part) the release of any adverse
information or adverse statements relating to the Company and its affiliates and
their respective officers and directors or this Agreement or the circumstances
surrounding this Agreement to anyone (including, but not limited to any person
or entity in the business trade, media or public) except to each of his counsel
or accountant or as required by law or upon the prior written consent of the
Company.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company has caused its corporate name to be
hereunto subscribed by its officer thereunto duly authorized, and Xxxxxx has
signed this Agreement, all as of the day and year first above written.
INFOCROSSING, INC.
By: /s/
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Secretary, Sr. VP &
General Counsel
XXXXXXX XXXXXX
/s/
---------------------------------
Acknowledged and Agreed:
XXXXX XXXXXX
/s/
--------------------------------
EXHIBIT A
FORM OF RESIGNATION LETTER
[Letterhead of Xxxxxxx Xxxxxx]
November 14, 2001
Infocrossing, Inc.
0 Xxxxxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Board of Directors
Gentlemen:
Effective immediately, I hereby resign any and all positions which I
may hold as an officer, director, agent, employee or other representative of
Infocrossing, Inc (the "Company"). In addition, I hereby acknowledge that, as of
the date hereof, I have no disagreement with the Company on any matter relating
to the Company's operations, policies or practices, including without
limitation, with respect to any accounting matters.
Sincerely yours
-------------------------------
Xxxxxxx Xxxxxx
