SEVERANCE AGREEMENT AND GENERAL RELEASE
This Severance Agreement and General Release (the "Agreement") is entered
into this 25th day of October, 1999, between Xxxxxx X. Xxxxxxx ("Xx. Xxxxxxx")
and Vitrix Incorporated, an Arizona corporation ("Vitrix" or the "Company").
WHEREAS, the Company and Xx. Xxxxxxx wish to terminate Xx. Xxxxxxx'x
employment with Vitrix; and
NOW, THEREFORE, in light of the foregoing, and in consideration of the
mutual covenants and promises set forth herein, Xx. Xxxxxxx and Vitrix hereby
agree as follows:
1. TERMINATION.
a. Xx. Xxxxxxx and Vitrix hereby terminate Xx.Xxxxxxx'x employment with
Vitrix effective October 31, 1999.
b. The Employment Agreement, dated February 16, 1999, by and between Vitrix
and Xx. Xxxxxxx, attached hereto as EXHIBIT "A" (the "Employment Agreement"), is
hereby terminated by mutual agreement, effective October 31, 1999. Except as
otherwise provided in this Agreement, the Employment Agreement shall impose no
surviving obligations on either Xx. Xxxxxxx or the Company.
2. CONFIDENTIAL INFORMATION.
a. Xx. Xxxxxxx agrees that, as a principal executive officer of Vitrix, he
has had access to confidential information. For purposes of this Agreement,
"Confidential Information" includes, but is not limited to, the following: all
confidential information which Xx. Xxxxxxx possesses regarding the business,
properties, operations, and finances of the Company; the identity of clients or
customers or potential clients or customers of the Company; any written, typed
or printed lists, or other materials identifying the clients or customers of the
Company; any other financial or other information supplied by clients or
customers of the Company; any and all data or information involving the Company,
its programs, methods, or contacts in the conduct of their businesses; any
lists, documents, manuals, records, forms, or other material used by the Company
in the conduct of their businesses; and any other secret or confidential
information concerning the business or affairs of the Company. The terms "list,"
"document" or other equivalents, as used in this paragraph, are not limited to a
physical writing or compilation, but also include any and all information
whatsoever regarding the subject matter of the "list" or "document," whether or
not such compilation has been reduced to writing. Xx. Xxxxxxx agrees that all of
the Confidential Information which he may now possess in relation to the
business, properties, operations, and finances of the Company has not, and shall
not, be published, disclosed, or made accessible, directly or indirectly, by him
to any other person or business entity, either during or after the termination
of Xx. Xxxxxxx'x employment by Vitrix. Xx. Xxxxxxx further agrees that the
Company's Confidential Information constitutes trade secrets under applicable
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law and such information is the sole property of the Company and is essential to
the protection of its good will and the maintenance of its competitive position,
and, accordingly, shall be kept secret. Xx. Xxxxxxx further acknowledges and
agrees that the Company has taken reasonable efforts and measures to maintain
and preserve the secrecy of its Confidential Information.
b. Xx. Xxxxxxx warrants and represents that all Confidential Information
and property, including any computers and/or software, and all files, whether
hard or electronic, which were in his possession relating to the Company have
been returned to Vitrix, and that Xx. Xxxxxxx has not retained copies of such
files, whether hard or electronic.
c. Xx. Xxxxxxx agrees to keep the contents and terms of this Agreement
confidential and will not disclose or communicate to anyone, including, but not
limited to, other persons, the media or other public or private forum, except
that: (1) Xx. Xxxxxxx may communicate said content and terms to his attorneys
and attorneys' staff and others under his attorneys' control who have an
absolute need to know the content and terms hereof, provided that these persons
shall agree to maintain the confidentiality of said content and terms and to be
bound by the terms of this confidentiality provision; and (2) Xx. Xxxxxxx may
disclose said content and terms to the United States Internal Revenue Service or
any state or local department of revenue, as required by any such agency, for
payment of his taxes or otherwise as required by law.
3. COVENANT NOT TO COMPETE. Xx. Xxxxxxx acknowledges and agrees that he has
substantial experience in the labor management industry and possesses special,
unique, extraordinary skills and knowledge in this field. Accordingly, by
execution of this Agreement, Xx. Xxxxxxx agrees that, for a period of one (1)
year commencing on the date of this Agreement, Xx. Xxxxxxx shall not, for any
reason, directly or indirectly, compete with the Company. For purposes of this
Agreement, Xx. Xxxxxxx shall be deemed to compete with Vitrix if he takes any
measures, actively or passively, directly or indirectly, to obtain employment,
or should accept any employment with any of the Company's competitors as an
employee, consultant, or otherwise.
4. RELEASE.
a. Xx. Xxxxxxx hereby knowingly, voluntarily, and irrevocably releases and
discharges the Company, its stockholders, officers, directors, agents,
representatives, attorneys, servants, employees, consultants, predecessors,
successors, subsidiaries, parents, divisions, other corporate affiliates,
assigns and all persons or entities acting by, through, under, or in concert
with any of them (hereinafter collectively referred to as the "Released
Parties") from any and all claims, demands, liabilities, judgements, damages,
expenses, or causes of action of any kind or nature whatsoever which Xx.
Xxxxxxx, his heirs, personal representatives, and assigns, and each of them, may
have had or may now or hereafter have or assert, whether now known or unknown.
The claims which are waived, released and discharged include, but are not
limited to, breach of express or implied contract; breach of the covenant of
good faith and fair dealing; wrongful discharge; public policy torts of any kind
or nature; promissory estoppel; unjust enrichment; discrimination on the basis
of age, sex, religion, handicap, disability, race, country of national origin,
or any other reason prohibited by applicable law; claims under the Age
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Discrimination in Employment Act (the "ADEA"), the Older Workers Benefit
Protection Act, the Family and Medical Leave Act, Title VII of the Civil Rights
Act of 1964, the Equal Pay Act, the Fair Labor Standards Act, the Employee
Retirement Income Security Act of 1974, or the Americans with Disabilities Act,
all as amended, the Arizona Civil Rights Act; or any other federal, state or
local law, regulation or ordinance; tort claims of any kind whatsoever; any
other common-law or statutory claims; claims for salary, wages, vacation pay,
severance pay, bonus payments, or earnings of any kind, fringe benefits
(including the automotive and golf expenses set forth in the Employment
Agreement), medical or hospital expenses or benefits, litigation expenses,
attorneys' fees, employment reinstatement, compensatory damages of any kind,
liquidated or statutory damages, punitive damages, and any and all other damages
arising out of or connected in any way whatsoever with the employment of Xx.
Xxxxxxx by Vitrix at any time, or with the termination of such employment.
b. Xx. Xxxxxxx hereby knowingly, voluntarily and irrevocably releases,
acquits and forever discharges the Released Parties, or any of them, from all
causes of action and claims which could be brought against the Released Parties,
or any of them, arising out of the Employment Agreement, or any other agreement,
oral or otherwise, or document executed by Xx. Xxxxxxx and the Released Parties,
or any of them, in relation to or in connection with Xx. Xxxxxxx' employment
with Vitrix or any other affiliated company, as applicable. Xx. Xxxxxxx further
warrants that he has not assigned any cause of action released herein to any
other person or entity prior to the execution of this Agreement. In addition,
and in particular, Xx. Xxxxxxx, knowingly, voluntarily and irrevocably releases,
acquits and forever discharges the Released Parties from all causes of action
and claims which were or could have been brought or asserted in connection with
his employment with Vitrix.
c. Xx. Xxxxxxx agrees and covenants not to xxx or bring, commence,
institute, maintain, or prosecute any action at law or proceeding in equity, or
any legal or administrative proceeding, arbitration or mediation whatsoever,
based in whole or in part, arising out of or connected in any way whatsoever
with, the employment of Xx. Xxxxxxx by Vitrix, the termination of such
employment, the Employment Agreement, any other agreement, oral or otherwise, or
document executed by Xx. Xxxxxxx and any of the Released Parties in relation to,
or in connection with Xx. Xxxxxxx' employment with any of the Released Parties.
d. By signing this Agreement, Xx. Xxxxxxx does not waive his rights or
claims under the ADEA that may arise thereunder out of incidents which occur
after the date upon which Xx. Xxxxxxx signs this Agreement. Xx. Xxxxxxx hereby
acknowledges that the waiver of rights or claims under the ADEA is in exchange
for consideration in addition to anything of value to which Xx. Xxxxxxx' is
already entitled.
5. PAYMENTS BY VITRIX TO XX. XXXXXXX. In consideration of the general release of
all claims, covenant not to xxx, and other commitments detailed herein, Vitrix
agrees to provide Xx. Xxxxxxx with the items listed below (the "Severance Pay").
x. Xxxxxxxxx pay equal to amount to his current Base Salary (as defined in
Section 3 of the Employment Agreement) at the rate currently being paid Xx.
Xxxxxxx and as set forth in Section 3(a) of the Employment Agreement.
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b. A cash payment equal to $3,846.40, which shall represent compensation
for accrued vacation time. Payment of the latter amount shall be made on
November 6, 1999.
c. The continuation of medical and dental benefits currently provided to
Xx. Xxxxxxx until the earlier of the expiration of the terms of the Employment
Agreement or the receipt by Xx. Xxxxxxx of comparable benefits in connection
with any new employment obtained by Xx. Xxxxxxx.
d. Stock options to purchase an aggregate of 120,000 shares of Vitrix, Inc.
(formerly known as FBR Capital Corporation) common stock (AFTER giving effect to
the exchange of Vitrix Incorporated common stock for FBR Capital Corporation
common stock in connection with the April 1999 transaction between such
companies (the "Transaction")). The term and expiration of such options shall be
as set forth in the original option grants. The exercise price of such options
shall also be as set forth in the original option grants, as adjusted to reflect
the Transaction. All other stock options previously granted to Xxxxxxx by Vitrix
Incorporated or Vitrix, Inc. shall terminate as of the effective date of this
Agreement.
e. All of the payments and benefits set forth in this Section 5 will be
paid and provided contingent upon Xx. Xxxxxxx'x continued compliance with all of
the terms of this Agreement, including those terms in Sections 2 and 3 hereof.
6. ENFORCEABILITY AND REMEDIES.
a. The parties hereto agree that the scope of the restrictions imposed by
Sections 2 and 3 of this Agreement are necessary and reasonable to protect the
Company in the conduct of their businesses, and as such, are enforceable as
written. However, in the event that a court of competent jurisdiction should
decline to enforce any provision of this Agreement, it is intended and agreed
that the court may and should modify such provision so as to render it
enforceable.
b. The parties hereto agree that irreparable injury will result to the
Company in the event that Xx. Xxxxxxx violates Sections 2 or 3 of this
Agreement. The parties agree and acknowledge that the remedies at law for any
such breach of Sections 2 or 3 would be inadequate and that the Company shall be
entitled to injunctive relief against Xx. Xxxxxxx in addition to any other
remedy and damages available.
7. GENERAL.
a. This Agreement is entered into and shall be interpreted, enforced and
governed by the laws of the State of Arizona, regardless of conflict of laws
rules under Texas law. Any action regarding this agreement shall be brought in a
court in Maricopa County, Arizona. In any proceeding to enforce this Agreement,
the non-prevailing party will pay the costs and reasonable attorneys' fees of
the prevailing party.
b. Xx. Xxxxxxx warrants that no promise or agreement not expressed herein
has been made to him; that in executing this Agreement, he is not relying upon
any statement or representation made by any other party, its agents or servants
concerning the merits of any claim or the nature, extent or duration of any
damages concerning this Agreement, or concerning any other thing or matter, but
is relying solely upon his own judgement; that the above-mentioned sum and the
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general release of all claims and other commitments against the Released Parties
are in full and final settlement and satisfaction of all of the aforesaid claims
and demands whatsoever; that Xx. Xxxxxxx' is legally competent to execute this
agreement of his own free will after he has consulted with his attorneys; and
that Xx. Xxxxxxx has had the Agreement and its binding effect explained to him
by his attorneys.
c. This Agreement contains the entire agreement between the parties and
supercedes any and all other agreements or understandings relating to the
subject matter of this Agreement.
d. This Agreement may be executed in counterparts, and will be deemed to be
binding and final when the parties hereto have executed a counterpart hereof,
said Agreement to be effective from the date first-above written.
E. XX. XXXXXXX HAS SEVEN (7) BUSINESS DAYS AFTER SIGNING THIS AGREEMENT TO
REVOKE THIS AGREEMENT. ANY REVOCATION MUST BE IN WRITING AND ADDRESSED TO
XXXXXXX X. XXXX AND MUST BE TRANSMITTED TO AND RECEIVED BY SQUIRE, XXXXXXX &
XXXXXXX L.L.P., 00 XXXXX XXXXXXX XXXXXX, XXXXX 0000, XXXXXXX, XXXXXXX
00000-0000, WITHIN TEN (10) DAYS FOLLOWING THE SIGNING OF THE AGREEMENT. IF XX.
XXXXXXX DOES NOT TIMELY REVOKE THIS AGREEMENT, ITS TERMS AND CONDITIONS SHALL BE
FINAL AND BINDING.
f. The Company hereby acknowledges that it is aware of no facts in
existence as of the date of this Agreement that would provide a basis for any
claim by the Company against Xx. Xxxxxxx.
[Signature page follows]
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/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
VITRIX, INC.
By: /s/ Xxxxxxx X. Xxxx
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Its: President & CEO
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State of Arizona )
) ss.
County of Maricopa )
On this 25th day of October, 1999, before me personally appeared Xxxxxx X.
Xxxxxxx who voluntarily executed the foregoing Severance Agreement and General
Release.
/s/ Xxxx Xxxx Xxxxxxxxx
----------------------------------------
Notary Public
My Commission Expires:
June 1, 2002
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State of Arizona )
) ss.
County of Maricopa )
On this 8th day of October, 1999, before me personally appeared Xxxxxxx X.
Xxxx, who voluntarily executed the foregoing Severance Agreement and General
Release on behalf of Vitrix, Inc., as its duly authorized agent.
/s/ Xxxx X. Xxxxxx
----------------------------------------
Notary Public
My Commission Expires:
March 15, 2003
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