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EXHIBIT 10.48
SEPARATION AND RELEASE AGREEMENT
This Separation and Release Agreement ("Agreement") is entered into as
of November 15, 1999 by and between Nextera Enterprises, Inc., a Delaware
corporation ("Nextera") and Xxxxxxx X. Xxxxxxx, Xx. (the "Executive").
RECITALS
WHEREAS, Executive was employed by Nextera as President and Chief
Executive Officer pursuant to a written employment agreement between Executive
and Education Technology Consulting Holding, L.L.C. effective as of March 3,
1997 (the "Employment Agreement") until he was terminated by Nextera without
cause effective October 28, 1999 (the "Termination Date"); and
WHEREAS, Executive continues to serve on the Board of Directors of
Nextera and as a director of Nextera's subsidiaries; and
WHEREAS, Executive wishes voluntarily to resign from the Board of
Directors of Nextera, and from his other director positions with Nextera's
subsidiaries; and
WHEREAS, Nextera and Executive (together, "the Parties") mutually desire
fully and finally to settle any and all disputes arising from the termination of
Executive's employment;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties hereby agree as follows:
1. Separation Payments and Benefits.
a. Pursuant to Section 13.3 of the Employment Agreement, Nextera
will pay to the Executive his current base salary, on Nextera's normal payroll
schedule, and subject to all applicable withholding, through March 3, 2000 (the
"End of the Employment Term"). Nextera will pay Executive for any accrued,
unused vacation through the Termination Date.
b. Nextera shall reimburse Executive for any business expenses
incurred prior to the Termination Date to which Executive is entitled to
reimbursement under Section 9 of the Employment Agreement, including without
limitation such expenses related to planning the Nextera Christmas party.
c. Executive acknowledges and agrees that he is not entitled to the
guaranteed bonus described in Section 7.2 of the Employment Agreement subsequent
to the Termination Date, and that excepting his vacation pay and
post-Termination Date base salary referred to in subparagraph 1(a), and
unreimbursed expenses (if any) referred to in subparagraph 1(b), as of the date
of this Agreement he has received all monies, bonuses, commissions, and other
compensation or perquisites he earned or was due during his employment by
Nextera.
d. Nextera will pay the full cost for maintaining (i) the
Executive's existing life insurance coverage, and (ii) existing group medical
and dental coverage through COBRA for Executive and his eligible dependents
(except to the extent any one or more of such plans may be modified by Nextera
for its employees generally) through the earlier to occur of (x) the End of the
Employment Term or (y) the date upon which the Executive has commenced full time
employment with another employer and has qualified for comparable coverage under
the benefit plans of such employer.
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e. Except as expressly provided for in this Agreement, Executive's
entitlement to benefits from Nextera, and eligibility to participate in
Nextera's benefit plans, shall cease on the End of the Employment Term, except
to the extent that the Executive has conversion or continuation rights pursuant
to the relevant plan documents or is eligible to and chooses to continue his
medical and dental coverage at his expense pursuant to COBRA.
2. Additional Payments and Benefits.
Executive acknowledges and agrees that his execution of this
Agreement and the expiration of the revocation period set forth in paragraph 6
below are conditions precedent to his entitlement to receive the additional
payments and benefits described below:
a. Nextera will pay to the Executive a bonus in the amount of
$94,000, in lieu of any bonus compensation to which the Executive would have
been entitled had the Executive continued to be employed by Nextera through
December 31, 1999 pursuant to Section 7.3 of the Employment Agreement; such
bonus shall be paid within five (5) days of the expiration of the revocation
period set forth in paragraph 6 below.
b. Nextera will promptly reimburse Executive for carrying costs not
to exceed $6,000 per month on Executive's Beverly Hills, California condominium
(the "Condo") for 120 days after the Termination Date or until Executive closes
escrow on the sale of the Condo, whichever occurs first. Executive shall use his
best efforts to list and sell the Condo as promptly as reasonably practicable.
Upon close of escrow, Nextera will reimburse Executive for brokerage commissions
for such sale not exceeding six percent (6%) of the purchase price. Any net
proceeds of such sale shall belong to Executive.
c. Nextera will use its best efforts promptly to amend the
Stockholders Agreement dated August 31, 1998, as amended, and any other
applicable agreements, to permit Executive's transfer or sale of his Nextera
shares; provided, however, that Executive shall remain subject to the IPO lockup
restrictions to the extent applicable.
d. Executive's indebtedness to Nextera in the current amount of
approximately $358,134, as evidenced in the Note dated January 2, 1998 shall be
deemed repaid and Executive hereby relinquishes all his rights and interest
under any and all Debentures issued by Nextera with an original maturity date of
May 1, 2002.
e. Executive shall be allowed to keep up to two (2) laptop computers
furnished by and belonging to Nextera. Executive shall promptly return all other
office equipment or other property purchased by Nextera for his use.
f. Nextera will use its best efforts to transfer Executive's
existing disability insurance policy to Executive at Executive's sole expense.
3. Resignation from Board of Directors.
Effective as of the date of this Agreement, Executive hereby resigns
from the Board of Directors of Nextera and from all other director positions
held by the Executive with Nextera or any of its subsidiaries. Executive agrees
to execute any documentation necessary to effectuate such resignations, provided
that such documentation is reasonably acceptable to the Parties.
4. Release of Claims.
a. By Executive. In consideration for Nextera's agreement to provide
the additional payments and benefits set forth in paragraph 2, the adequacy of
which is hereby acknowledged, Executive, on behalf of himself and his heirs,
executors, administrators, successors, agents, and assigns, agrees to release
fully and without limitation and forever discharge Nextera and each of its
respective shareholders, parents, owners, subsidiaries, divisions, officers,
directors, agents, employees, consultants, insurers, representatives, lawyers,
affiliates, predecessors, successors and assigns, employee welfare benefit plans
and pension, profit-sharing or deferred compensation plans under Section 401 of
the Internal Revenue Code of 1986, as amended, and their trustees,
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administrators and other fiduciaries, and all persons acting by, through, under
or in concert with them, or any of them ("Releasees"), both individually and
collectively, from any and all rights, claims, demands, liabilities, actions,
causes of action, damages, losses, costs, expenses and compensation, of whatever
nature whatsoever, known or unknown, fixed or contingent, in law or in equity
("Claims"), which Executive may have, or now claim to have against, or in the
future claim from the Releasees by reason of any matter, cause, or thing
whatsoever, from the beginning of time to the date hereof, including, without
limiting the generality of the foregoing, any Claims arising out of, based upon,
or relating to Executive's recruitment, hire, employment, benefits, remuneration
(including salary; bonus; incentive or other compensation; vacation, sick leave
or medical insurance benefits; and/or benefits from any employee stock
ownership, stock option, pension, profit-sharing and/or any deferred
compensation plan under Section 401 of the Internal Revenue Code of 1986, as
amended) or separation by Nextera, or any contract, agreement, or compensation
arrangement between Executive and the Releasees, or any of them, including
without limitation the Employment Agreement. Without limiting the generality of
the foregoing, the Parties acknowledge and agree that the Employment Agreement
shall be of no further force and effect after the date hereof, and that
Executive shall not be entitled to any salary, bonus compensation or other
benefits under the Employment Agreement except as expressly set forth in
paragraphs 1 and 2 of this Agreement.
As part of this Agreement, Executive expressly waives any Claims
arising out of any federal, state or other governmental statute, regulation or
ordinance, including, without limitations: (1) Title VII of the Civil Rights Act
of 1964, as amended; (2) the Equal Pay Act, as amended; (3) the Age
Discrimination in Employment Act, as amended; (4) the Family and Medical Leave
Act of 1993; (5) the California Fair Employment and Housing Act of 1993, as
amended; (6) the California Labor Code (including but not limited to Section
970); (7) the Fair Labor Standards Act, as amended; (8) the federal and state
wage and hour laws; (9) the Americans With Disabilities Act, as amended; (10)
the Employee Retirement Income Security Act of 1974, as amended; (11) the
California Family Rights Act; (12) the Worker Adjustment and Retraining
Notification Act; (13) the California common law of fraud, misrepresentation,
negligence, defamation, infliction of emotional distress, breach of contract, or
wrongful termination; (14) Executive Order 11246; (15) Executive Order 11141;
(16) the Rehabilitation Act of 1973, including sections 503 and 504; and/or (17)
any other local, state or federal law, rule, or regulation governing employment,
discrimination in employment or the payment of wages and benefits. This
Agreement does not include waiver of (1) any rights or Claims which may arise
after the date hereof, (2) any rights or Claims arising from breach of this
Agreement, and (3) Executive's right to indemnification as an officer or
director of Nextera, as determined by applicable law.
Notwithstanding anything to the contrary contained in this
Agreement, Executive shall retain any vested benefits to which Executive may be
entitled under Nextera's 401k Retirement Savings Plan as of the Termination
Date.
This Agreement shall not affect Executive's ownership of or rights
in shares of common stock of Nextera or Knowledge Universe, L.L.C. (or its
subsidiaries and affiliates) as to which Executive was the holder of record (or
an option holder) on the Termination Date; provided, however, that Executive
relinquishes and waives his right to purchase any equity interest in Nextera or
its predecessors pursuant to Section 7.4 of the Employment Agreement.
b. By Nextera. Nextera, on behalf of itself and its successors,
shareholders, subsidiaries, corporate affiliates, agents, and assigns agrees to
release fully and without limitation and forever discharge Executive and his
heirs, executors, administrators, successors, agents, and assigns, from any and
all rights, claims, demands, liabilities, actions, causes of action, damages,
losses, costs, expenses and compensation, of whatever nature whatsoever, fixed
or contingent, in law or in equity, that are known to the Board of Directors of
Nextera (other than Executive) as of the effective date of this Agreement. The
claims released herein include, without limiting the generality of the
foregoing, any claims arising out of, based upon, or relating to Executive's
recruitment, hire, employment, benefits, remuneration or separation by Nextera,
or any contract, agreement, or compensation arrangement between Executive and
the Releasees, or any of them, including without limitation the Employment
Agreement.
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5. Knowing and Voluntary Waiver of Unknown Claims by Executive.
Executive understands that California law includes Civil Code Section
1542 which says that releases usually do not apply to certain unknown claims.
Specifically, Section 1542 of the California Civil Code states as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
With full awareness and understanding of the above provisions, Executive hereby
waives any rights he may have under Section 1542, as well as under any other
statutes or common law principles of similar effect. Executive intends to, and
hereby does, release Releasees from claims which he does not presently know or
suspect to exist at this time.
6. Older Workers Benefit Protection Act.
In accordance with the Older Workers Benefit Protection Act of 1990,
Executive acknowledges that:
a. This Agreement includes a waiver and release of Executive's
claims under the Age Discrimination in Employment Act, 29 U.S.C. Section 621 et
seq.
b. Executive has the right to consult with an attorney before
signing this Agreement.
c. Executive has twenty-one (21) days from November 15, 1999 to
consider this Agreement but he may waive that period by signing it earlier.
d. Executive has seven (7) days after signing this Agreement to
revoke this Agreement and with the exception of paragraph 3 this Agreement will
not be effective until that revocation period has expired. Written notice of
revocation must be delivered in person to Nextera Enterprises, Inc., c/o Xxxxxxx
X. Xxxxxxx, Maron & Sandler, 000 Xxxxxx Xxxxx, Xxx Xxxxxxx, XX 00000. If
Executive revokes this Agreement, Executive will not receive the payments and
benefits described in paragraph 2 of this Agreement.
7. Cooperation.
a. Until the End of the Employment Term and for a period of two (2)
years thereafter, Executive agrees to cooperate fully with Nextera (including
its Board of Directors and any special committees of the Board) and its counsel
or accountants in any financial audits or internal investigation involving
securities, financial or accounting matters, and in its defense, assertion,
prosecution, or other participation in, any administrative, judicial, or other
proceeding, claim, or dispute relating to the period during which Executive was
engaged in employment with Nextera. Any such activities shall be scheduled, to
the extent reasonably possible, to accommodate Executive's business and personal
obligations at the time. Nextera shall pay Executive's reasonable travel and
incidental out-of-pocket expenses incurred in connection with any such
cooperation, provided such expenses are documented and approved in advance.
Except as otherwise required by applicable law or regulation, Executive further
agrees not to disparage or otherwise publish or communicate negative statements
or opinions about Nextera, its officers, directors, shareholders, parents,
subsidiaries or affiliates in any way. Except as required by law or authorized
in advance by the Board of Directors, Executive shall not communicate, directly
or indirectly, with shareholders of Nextera or their representatives concerning
the management of Nextera, the operations of Nextera, or the financial status of
Nextera. Executive shall take no action detrimental to the interests of Nextera
or its management.
b. Except as otherwise required by applicable law or regulation,
Nextera will not disparage or otherwise publish or communicate negative
statements about Executive to any third person. Nextera will not make any
derogatory statements about Executive to any prospective employer.
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8. Indemnification.
Nextera shall, to the maximum extent permitted by law, indemnify,
defend, and hold Executive harmless for all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries, and deficiencies,
including reasonable attorneys' fees, that Executive shall incur or suffer that
arise from, result from, or relate to the discharge of Executive's duties under
the Employment Agreement or as a consultant under this Agreement, except to the
extent that Executive has acted in bad faith or shall be guilty of willful
misconduct, fraud, gross negligence or a wrongful taking.
9. Non-Admission of Liability.
Executive and Nextera agree that neither the payment of any sum of
money nor the execution of this Agreement shall constitute or be construed as an
admission of any liability by either Executive of Nextera.
10. Encouragement to Consult with Attorney; Tax Consequences.
Executive has the right to consult with an attorney and is encouraged
to do so before signing this Agreement. Executive understands that whether or
not to do so is Executive's decision and if it is done, it is done at
Executive's expense. Executive further acknowledges that the benefits provided
in this Agreement may have tax consequences, that Nextera has not provided any
tax advice, and that Executive is free to consult with an accountant, legal
counsel, or other tax advisor regarding the tax consequences.
11. Confidential Arbitration.
The Parties agree that any and all disputes, controversies or claims
based on, arising out of, or relating to this Agreement, or the alleged breach
thereof, shall be submitted to final and binding arbitration. Such arbitration
proceeding shall be conducted confidentially and under seal. The arbitration
shall take place in the county of Los Angeles, and may be compelled and enforced
according to the California Arbitration Act (Code of Civil Procedure
Sections 1280 et seq.). Unless the Parties mutually agree otherwise, the
arbitration shall be conducted before the American Arbitration Association,
according to its Employment Dispute Resolution Rules. Judgment on the award the
arbitrator renders may be entered in any court having jurisdiction over the
Parties. Arbitration shall be initiated in accordance with the Employment
Dispute Resolution Rules of the American Arbitration Association.
12. Proprietary Information and Return of Documents.
Upon the Separation Date, Executive shall promptly return to Nextera
the original and all copies of all accounts, notes, data, sketches, drawings,
reports, studies and other documents and records, materials and physical items
of any kind, which are the property of Nextera or which relate in any way to the
business, products, practices or techniques of Nextera. Executive further agrees
that he will not disclose to any person or use for his own account any such
information, observations or data, or Nextera's trade secrets, including without
limitation information relating to intellectual property, patents, trademarks,
trade secrets, supplier lists, customer lists, pricing or cost data, bidding
procedures, marketing studies, business plans, sales projections, product
research and development, strategic plans, consultant reports, customer surveys,
financing techniques and sources, and non-public financial information, without
the prior written consent of the Board of Directors, Chairman, or Chief
Executive Officer of Nextera. Executive shall hold all such information in trust
and confidence for Nextera and shall not use or disclose any such information,
and shall be liable for damages incurred by Nextera as a result of any
disclosure of such information by Executive. Executive acknowledges that any
unauthorized use or misuse of the above described confidential, proprietary or
trade secret information will cause irreparable harm to Nextera and will give
rise to an immediate action by Nextera for injunctive relief.
13. Non-Solicitation.
a. Until the End of the Employment Term and for a period of two (2)
years thereafter, Executive agrees that he will not directly or indirectly
(whether as an employee, director, owner, stockholder, consultant, limited or
general partner, or otherwise), for himself or for any other person or entity:
(i) solicit, induce or entice, or
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attempt to solicit, induce, or entice, any person who is (or was within the
prior ninety (90) days) an employee of Nextera to terminate such employment
relationship or to become employed by any other person, firm or entity; or (ii)
solicit, induce or entice, or attempt to solicit, induce, or entice, any
customer of Nextera to purchase from another person or entity products or
services of the type then marketed by Nextera.
b. Executive acknowledges that any unauthorized solicitation
or diversion of Nextera's employees or customers in violation of paragraph 13 of
this Agreement will result in irreparable harm to Nextera and will give rise to
an immediate action by Nextera for injunctive relief.
14. No Adequate Remedy at Law.
a. Equitable Relief. In the event that Executive shall breach any of
the provisions of paragraphs 12 or 13 hereof, or in the event that any such
breach is threatened by Executive, in addition to and without limiting or
waiving any other remedies available to Nextera in law or in equity, Nextera
shall be entitled to immediate injunctive relief in any court, domestic or
foreign, having the capacity to grant such relief, to restrain such breach or
threatened breach and to enforce the provisions of such paragraphs. Executive
acknowledges that it is impossible to measure in money the damages that Nextera
will sustain in the event that Executive breaches or threatens to breach any of
the provisions of such paragraphs and, in the event that Nextera shall institute
any action or proceeding to enforce those provisions seeking injunctive relief,
Executive hereby waives and agrees not to assert and shall not use as a defense
thereto the claim or defense that Nextera has an adequate remedy at law. The
foregoing shall not prejudice the right of Nextera to require Executive to
account for and pay over to it the amount of any actual damages incurred by
Nextera as a result of any such breach.
b. Enforcement. The Parties acknowledge that (i) the provisions of
paragraphs 12 and 13 are essential to protect the business, goodwill, and trade
secrets of Nextera, and (ii) the foregoing restrictions are under all of the
circumstances reasonable and necessary for the protection of Nextera and its
business. If, however, at the time of enforcement of any or such paragraphs or
any other provision of this Agreement, a court or arbitrator shall hold that the
duration, scope or area restriction or any other provision hereof is
unreasonable under circumstances now or then existing, the Parties hereto agree
that the maximum duration, scope or area reasonable under the circumstances
shall be substituted for the stated duration, scope or area.
15. Miscellaneous Provisions.
a. This Agreement shall be interpreted as a whole in accordance with
its fair meaning and in accordance with the laws of the State of California. The
language in the Agreement shall not be construed for or against any particular
party.
b. If any party to this Agreement brings an action to enforce his or
its rights hereunder, the prevailing party shall be entitled to recover his or
its costs and expenses, including court costs and attorneys' fees, if any,
incurred in connection with such suit.
c. If Executive willfully breaches his obligations under this
Agreement, including without limitation the obligations set forth in paragraphs
12 and 13, Nextera, in addition to its other rights and remedies, shall be
permitted to discontinue any payments or benefits otherwise due Executive, and
Executive shall forfeit his right to any additional payments or benefits
pursuant to paragraph 2.
16. Notices.
Any notice, consent, waiver, demand, or other communication required or
permitted to be given by or to any person pursuant to this Agreement
(collectively "Notice") will be in writing, and will be given either by personal
service, facsimile transmission, by certified mail, return receipt requested, or
by Federal Express or similar commercial overnight courier service, to a party
at the address set forth below:
If to Nextera:
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Nextera Enterprises, Inc.
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
With a copy to:
Xxxxxxx X. Xxxxxxx
Maron & Sandler
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
and
Xxxx X. Xxxxxxx
Xxxxxx & Xxxxxxx
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
If to Executive:
Xxxxxxx X. Xxxxxxx, Xx.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
In the case of personal service, Notice will be deemed effective on the
date of service. In all other cases, Notice will be deemed effective on the date
of delivery, as shown on the return receipt or other written evidence of
delivery, if any, or five (5) days after dispatch if there is not return receipt
or written evidence of delivery. A party may change the address at which Notice
is to be given, at any time and from time to time, by giving Notice of the new
address to the other parties in accordance with this Section.
17. Severability.
The provisions of this Agreement are severable. If any part of this
Agreement is found to be invalid or unenforceable, the other provisions shall
remain fully valid and enforceable.
18. Entire Agreement.
This Agreement sets forth the entire agreement between Executive and
Nextera, and except as expressly set forth in this Agreement supersedes the
Employment Agreement and any and all prior oral or written arrangements or
understandings between Employee and Nextera concerning the subject matter of
this Agreement. This Agreement may not be altered, amended, or modified, except
by a further writing signed by Executive and the newly-appointed Chairman of the
Board, or the successor thereto, of Nextera.
19. Executive Acknowledgments.
a. Executive acknowledges and agrees that he has read this Agreement
carefully, understands all of its terms, and agrees to those terms voluntarily.
b. EXECUTIVE ACKNOWLEDGES AND UNDERSTANDS THAT THIS AGREEMENT
INCLUDES A GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
dates indicated below.
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EXECUTIVE NEXTERA ENTERPRISES, INC.
/s/XXXXXXX X. XXXXXXX, XX. /s/XXXXXX X. XXXX
------------------------------------- -----------------------------------
Xxxxxxx X. Xxxxxxx, Xx. Name: Xxxxxx X. Xxxx
Dated: November 30, 1999 Title: Chief Executive Officer
Dated: November 29, 1999
