1
Exhibit 10.43
SEPARATION AND RELEASE AGREEMENT
Separation and Release Agreement dated as of February 8, 2000, between
XxxxxxxXxxxxx.xxx, Inc., a Delaware corporation (the "Company"), and Xxxxx X.
Xxxxxxx, an individual ("Xxxxxxx").
The Company and Russman desire to provide for the terms on which Xxxxxxx'x
employment by the Company will terminate.
The parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. TERMINATION. Xxxxxxx'x employment by the Company is terminated,
effective as of the date hereof. As a result of that termination, Russman will
hold no office or position, and will not be employed by, the Company. Russman
agrees and acknowledges that he will no longer serve in the position of Chief
Marketing Officer of the Company.
SECTION 2. SEVERANCE PAYMENTS; OPTIONS.
2.1 Severance. Russman will receive from the Company the severance payments
and benefits to which he is entitled pursuant to the terms of the July 20, 1999
Offer Letter Confirming Xxxxxxx'x Employment with the Company ("the Offer
Letter"). The severance payments shall be made monthly for a six-month period,
commencing as of January 24, 2000 in full satisfaction of all amounts payable by
the Company to Russman under the Offer Letter.
Russman acknowledges and agrees that this Agreement shall be the exclusive basis
on which he is entitled to receive any compensation or benefits of any kind from
the Company. All payments made by the Company to Russman hereunder shall be
subject to all applicable federal and state withholding taxes and Russman will
be fully liable and responsible for the payment of all taxes on said payments.
2.2 Stock Options. In consideration for Xxxxxxx'x entry into this Agreement
and the releases given by Russman hereunder, the Company hereby agrees to
accelerate to July 24, 2000 the vesting of options to purchase 25,000 shares of
the Company's Class A Common Stock at $3.82 per share granted to Russman under
the Nonqualified Stock Option Agreement, dated July 1, 1999. Russman
acknowledges that all other options and rights to purchase securities of the
Company under the Offer Letter, any option agreement with the Company or any
other arrangement with the Company remain unvested and lapse as of the date
hereof and that he will have no further claim with respect thereto.
1
2
SECTION 3. OFFICE.
The Company shall provide Xxxxxxx with office space for up to three months
from the date hereof (or, if earlier, until he should obtain new employment),
which shall not be in the Company's premises; provided that the Company shall
not be required to pay more than $2,000 per month for such office space.
SECTION 4. INDEMNIFICATION.
To the extent permitted by law, the Company shall indemnify Russman with
respect to matters arising from his service as an officer or employee of the
Company as provided by the Company's Articles of Incorporation and By-Laws as
currently in effect.
SECTION 5. MUTUAL RELEASES.
(a) In consideration of the acceleration of additional stock options, the
other benefits conferred by this agreement and for other valuable consideration,
the receipt and adequacy of which are hereby acknowledged, Russman hereby
releases and forever discharges the Company and its subsidiaries, and their
respective past, present and future affiliates, stockholders, officers,
directors, employees, agents, and controlling persons, and the respective heirs,
administrators, successors and assigns of each of the foregoing (each, a
"Releasee"), of and from any and all manner of action or actions, cause or
causes of action, in law or in equity, suits, debts, contracts, agreements,
promises, liability, claims, demands, damages, loss, cost or expense, of any
nature whatsoever, known or unknown to him, fixed or contingent, xxxxxx or
inchoate, which Russman ever had, now has or may have at any time arising out of
or relating to Xxxxxxx'x employment with, or status as an officer or employee
of, the Company or the termination of such employment or status (or any promise
or agreement made or entered into, or any action taken or omitted, in connection
with such employment, status or termination), including, but not limited to,
those arising under the federal Civil Rights Acts of 1866, 1871, 1964 and 1971,
as amended, the Age Discrimination in Employment Act of 1967, as amended by,
inter alia, the Older Workers Benefit Protection Act of 1990, the Americans with
Disabilities Act of 1990, the Employee Retirement Income Security Act of 1974 or
any other federal, state or local statute or principle of common law. Russman
shall refrain from asserting any matter released hereby against any Releasee in
any manner, including, but not limited to, by way of counterclaim, offset or
defense and shall actively resist any effort to assert on its behalf any such
matter. Russman shall indemnify and hold harmless each Releasee from and against
all losses, liabilities, claims, damages and expenses (including costs of
investigation and defense and reasonable attorneys' fees), arising directly or
indirectly from or in connection with the assertion by or on behalf of Russman
of any claim or other matter released pursuant to this paragraph.
Notwithstanding anything contained herein to the contrary, there is and shall be
excepted from the within and foregoing release and discharge any and all of the
following: any and all of the obligations of the Company under this Agreement;
and any and all rights which Russman may have as an owner of Common Stock and/or
Options.
2
3
(b) For valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Company hereby releases and forever discharges Russman
and his heirs, administrators, executors, agents, representatives, successors
and assigns (each, a "Russman Releasee"), of and from any and all manner of
action or actions, cause or causes of action, in law or in equity, suits, debts,
claims, demands, damages, loss, cost or expense, of any nature whatsoever, known
or unknown to the Company, which the Company ever had, now has or may have at
any time arising out of or relating to Xxxxxxx'x employment or status as an
officer or employee or the termination of such employment or status. The Company
shall refrain from asserting any matter released hereby against any Russman
Releasee in any manner, including, but not limited to, by way of counterclaim,
offset or defense and shall actively resist any effort to assert on its behalf
any such matter. The Company shall indemnify and hold harmless each Russman
Releasee from and against all losses, liabilities, claims, damages and expenses
(including costs of investigation and defense and reasonable attorney's fees),
arising directly or indirectly from or in connection with the assertion by or on
behalf of the Company of any claim or other matter released pursuant to this
paragraph.
Notwithstanding anything contained herein to the contrary, there is and
shall be excepted from the within and foregoing release and discharge any and
all of the following: any and all of the obligations of Russman under this
Agreement; Xxxxxxx'x obligations under the Non-Competition, Non-Solicitation and
Confidentiality Agreement with the Company, dated September 1, 1999.
SECTION 6. NO DISPARAGEMENT. The Company shall not , directly or
indirectly, disparage or impugn the reputation of Russman. Russman shall not,
directly or indirectly, disparage or impugn the reputation of the Company, or
any of its shareholders, directors, officers, employees or agents. Xxxxxxx
hereby confirms that he does not intend to and shall not, directly or
indirectly, make or deliver to the Company any statement for inclusion (or that
the Company might be required to include or refer to) in the Company's proxy
statement or any filing by the Company with the Securities and Exchange
Commission.
SECTION 7. MISCELLANEOUS.
7.1 Reimbursement of Business Expenses. Russman shall be reimbursed for all
business expenses incurred through January 24, 2000 for which he submits
appropriate expense reports in accordance with existing Company policies.
7.2 Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of New York, without regard to any conflicts
of laws principles thereof that would call for the application of the laws of
any other jurisdiction. Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement may be
brought against either of the parties hereto in the courts of the State of New
York, or if it has or can acquire jurisdiction, in the United States District
Court for the Southern District of New York, and each of the parties hereto
hereby consents to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection to
venue laid therein. Process in any action or proceeding referred to in the
preceding sentence may be served on any party anywhere in the world, whether
within or without the State of New York.
3
4
7.3 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which, when
taken together, shall constitute one and the same agreements.
7.4 Notices. All notices, demands, requests or other communications which
may be or are required to be given, served or sent by any party to any other
party pursuant to this Agreement shall be in writing and shall be mailed by
first class, registered or certified mail, return receipt requested, postage
prepaid, or transmitted by hand delivery (including delivery by courier), or
facsimile transmission, addressed as follows (or to such other addresses as a
party may specify as to itself by notice to the other):
If to the Company:
XxxxxxxXxxxxx.xxx, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
Facsimile: 308-6186
with copies to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Xxxxxx Xxxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Executive:
Xxxxx X. Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile:
7.5 Binding Nature of Agreement; Successors and Assigns. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and permitted assigns as
provided herein.
7.6 Entire Agreement. This Agreement contains the entire agreement and
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof. The express terms
4
5
hereof control and supersede any course of performance and/or usage of trade
inconsistent with any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing.
7.7 Indulgences, Not Waivers. Neither the failure nor any delay on the part
of a party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and signed by the party asserted to have granted such waiver.
7.8 Confidentiality. Russman shall keep the negotiation and terms of this
Agreement confidential and he will not hereafter disclose any information
concerning the Company and/or this Agreement to anyone except his attorneys,
accountants, tax and financial advisors. The Company shall keep the terms of
this Agreement confidential and not hereafter disclose any information
concerning this Agreement to anyone except its attorneys, accountants, and tax
and financial advisors; except that the Company may make any disclosure
regarding the terms of this Agreement (including regarding the amounts payable
to Russman and the options accelerated hereunder) that it is advised by counsel
is required to be made under the Securities Exchange Act of 1934 (and the rules
promulgated thereunder) and any other applicable securities laws, and may file
this Agreement as an exhibit to a report filed by the Company with the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended.
7.9 Independent Judgment; Revocation. Russman enters into this Agreement
voluntarily and acknowledges that he has been advised to consult with counsel as
to the contents of this Agreement. The Company and Russman have each exercised
independent judgment in connection with the negotiation and execution of this
Agreement and have not relied on any statement, promise, representation or
warranty not expressly set forth in this Agreement. Xxxxxxx may revoke this
Agreement by written notice given to the Company within seven calendar days
after the date on which this Agreement is executed by Russman; if so revoked,
this Agreement shall be of no effect. Russman hereby waives the benefit of any
longer revocation or review period to which he may be entitled under any
applicable law.
XXXXXXXXXXXXX.XXX, INC.
By: /s/ Xxx X. Xxxxxxx
---------------------------------
Name: Xxx X. Xxxxxxx
Title: Chief Financial Officer, Secretary
and Treasurer
/s/ Xxxxx Xxxxxxx
---------------------------------
Xxxxx X. Xxxxxxx
5
