EXHIBIT 10.5
SEPARATION AND CONSULTING AGREEMENT
This Separation and Consulting Agreement ("Agreement") is entered
into effective as of July 1, 2002, by and between Xxxxxx Xxxxxx ("Xxxxxx") and
Xxxxxxx.xxx, Inc., a Delaware corporation (the "Company"), with regard to the
following:
R E C I T A L S
X. Xxxxxx and the Company are parties to an Employment Agreement
dated effective as of April 24, 2000 ("Employment Agreement") and an
Indemnification Agreement dated March 28, 2001 ("Indemnification Agreement").
X. Xxxxxx has been granted options to acquire a total of 117,430
shares of the Company's Common Stock (the "Stock Options"), as set forth on
Schedule I hereto.
C. The Company and Donkin have agreed that Donkin will voluntarily
resign from his employment with the Company effective July 1, 2002.
D. In connection with Donkin's separation from the Company, the
Company and Donkin have agreed to the releases, services, payments and benefits
set forth herein.
X. Xxxxxx is hereby informed that he has twenty-one (21) days from
receipt of this Agreement to consider it. The Company hereby advises Donkin to
consult with an attorney before signing this Agreement.
X. Xxxxxx acknowledges that for a period of seven (7) days following
his signing this Agreement (the "Revocation Period"), he may revoke the
Agreement. This Agreement shall not become effective or enforceable until the
Revocation Period has expired.
Therefore, in consideration of the premises recited above, the
mutual exchange of promises contained in this Agreement and other valuable
consideration, the receipt and adequacy of which are hereby acknowledged by the
Company and Donkin, the parties agree as follows:
AGREEMENT
1. Resignation. Donkin hereby voluntarily resigns from his
employment with the Company effective July 1, 2002.
2. Payment and Benefits.
2.1 Salary. The Company agrees to continue to pay Donkin his
regular base salary as set forth in the Employment Agreement through and
including June 30, 2003, on the Company's regular payroll dates. Such payments
shall be after applicable deductions and withholdings.
2.2 Donkin Consulting. During the period from July 1, 2002
through October 31, 2002, Donkin agrees to make himself available on an
as-requested basis to the
Company's officers, directors, employees and agents for up to one day per week
to consult with the Company on such matters as the Company shall reasonably
request. Donkin shall have no authority to act on behalf of the Company, to bind
the Company, or to commit the Company financially or to obligate the Company in
any way unless such authority is specifically delegated to Donkin by the Company
in writing. Donkin shall not make any representations to the contrary to any
person or entity. In consideration of the payments and other consideration
provided for herein, Donkin agrees that he will not, directly or indirectly,
during the term of his consultancy with the Company hereunder, engage or invest
in, own, manage, operate, finance, control or participate in the ownership,
management, operation, financing or control of, be employed by, associated with,
or in any manner connected with, or lend his name or any similar name to, any
business whose products or activities compete with the Company's integrated
ticketing products or services, such as Liquid Seats, ST (Season Tickets),
Paciolan or Ticketmaster.
2.3 Accrued Vacation. On July 1, 2002, upon his resignation,
Donkin will be issued a check by the Company in the amount of his accrued
vacation, less applicable withholdings.
3. Waiver of Rights Under Employment Agreement; No Other Benefits.
Except for the continuing obligations of Donkin under Sections 3.1, 3.2, 3.3,
3.4, 3.6, 3.7 and 5.8 of the Employment Agreement, which Donkin hereby
reaffirms, the parties agree that the Employment Agreement is terminated in its
entirety as of July 1, 2002, and Donkin expressly waives any notice periods for
termination or resignation under the Employment Agreement. Donkin agrees that he
is not entitled to receive, and will not claim, any damages, profits,
compensation, bonuses, benefits, vacation, stock options or rights other than
(i) what is expressly set forth in this Agreement, the Stock Options and the
Indemnification Agreement, and (ii) salary accrued through July 1, 2002. Donkin
acknowledges that the consideration he is receiving under this Agreement is in
lieu of, and he hereby waives any other rights he may have had under, the
Employment Agreement, and any other agreements, express or implied, he may have
had with the Company except for the Indemnification Agreement and any agreements
or resolutions adopted by the Company's Board of Directors providing rights of
indemnification to officers of the Company that were in effect during the term
of Donkin's employment. This Agreement supersedes all rights and/or benefits
Donkin may have or claim arising out of the Employment Agreement.
4. Return of Company Property; Expenses.
4.1 Prior to July 1, 2002, Donkin shall return to the Company
all Company property and equipment in his possession or under his control,
including, but not limited to, any cell phones, computers and pagers.
Notwithstanding the foregoing, Donkin shall be entitled to keep the laptop
computer previously provided to him by the Company.
4.2 On or before July 1, 2002, Donkin must submit to the
Company all outstanding business expenses incurred prior to July 1, 2002 for
reconciliation and payment. Reimbursement of such business expenses will be made
by July 15, 2002. Expenses submitted thereafter will not be reimbursed, unless
approved in advance by the Company in connection with the Donkin's consulting
services hereunder.
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5. Releases.
5.1 General Release by Donkin. Excepting only the obligations
undertaken by the Company in accordance with this Agreement, the Stock Options
and the Indemnification Agreement, and except for any obligation to indemnify
Donkin pursuant to the Company's Certificate of Incorporation or Bylaws as in
effect as of the date hereof, which obligations shall not be released or, except
as specifically set forth in this Agreement, altered or amended in any way by
this Agreement, and in exchange for the consideration provided to Donkin in this
Agreement, Donkin hereby releases, acquits, relieves and forever discharges the
Company and its successors, heirs, assigns, employees, officers, directors,
agents, representatives, stockholders, attorneys, affiliated corporations,
divisions or organizations, whether previously or hereinafter affiliated in any
manner (collectively, the "Company Released Parties"), from any and all claims,
rights, actions, complaints, demands, causes of actions, wage claims,
obligations, promises, contracts, agreements, controversies, suits, debts,
expenses, damages, attorneys' fees, costs and liabilities of any nature
whatsoever, matured or unmatured, fixed or contingent, which Donkin ever had,
now has, or may claim to have from the beginning of time to the moment he signs
this Agreement against the Company Released Parties (whether directly or
indirectly), or any of them, by reason of any act, event or omission concerning
any matter, cause or thing, including, without limiting the generality of the
foregoing, any claims related to or arising out of (i) Donkin's employment with
the Company or the cessation of that employment; (ii) any common law torts,
including, without limitation, infliction of emotional distress; (iii) any
federal, state or governmental constitution, statute, regulation or ordinance,
including, without limitation, Title VII of the Civil Rights Act of 1964, the
Fair Labor Standards Act of 1938, the Employee Retirement Income Security Act,
the California Labor Code, the California Fair Employment and Housing Act and
the Age Discrimination in Employment Act of 1967, the Wage, Pay and Collection
Act of the State of Delaware, and any other federal, state or local employment
practice legislation; (iv) any agreement, express or implied, between Donkin and
any of the Company Released Parties; (v) any impairment of his ability to
compete in the open labor market; or (vi) any permanent or temporary disability
or loss of future earnings as a result of injury or disability arising from or
associated with his employment or termination of his employment relationship
with the Company.
5.2 Donkin's Release of Unknown Claims. Donkin hereby waives
and relinquishes all rights and benefits afforded by Section 1542 of the Civil
Code of California. Donkin hereby acknowledges that he understands the
significance and consequences of this specific waiver of Section 1542. Section
1542 of the Civil Code of California 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.
Notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release and discharge of the Company Released
Parties (except as provided in Section 5.1, above), Donkin expressly
acknowledges that the release contained in this Agreement is intended to include
in its effect, without limitation, all claims covered by the release set forth
in Section 5.1 above which Donkin does not know or suspect to exist in his
favor.
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5.3 Donkin's Covenant To Forebear. Donkin further agrees not
to institute, maintain or aid any action at law or in equity or any legal
proceeding whatsoever against any or all of the Company Released Parties (as
defined in Section 5.1, above), which is based on, in whole or in part, or which
arises out of, or is connected with, the claims hereby released.
5.4 Donkin's Representation and Warranty Regarding Assignment
of Claims. Donkin represents and warrants that he has not assigned any claims
made the subject of Section 5.1 of this Agreement or authorized any other person
or entity to assert any such claim on behalf of him. Further, Donkin agrees that
by the releases contained in this Section 5.1 he waives any claim for damages
incurred at any time after the date on which he signs this Agreement because of
alleged continuing effects of any alleged acts or omissions involving the
Company that occurred on or before the date on which he signs this Agreement,
and any right to xxx for monetary or injunctive relief against the alleged
continuing effects of acts or omissions that occurred before the date on which
he signs this Agreement.
6. No Employment Rights. Donkin acknowledges that effective as
of July 1, 2002, he will no longer be an employee of the Company for any
purpose. Nothing in this Agreement shall be construed to continue, create or
imply any contract of employment between Donkin and the Company.
7. Assistance/Cooperation With Litigation. In connection with the
Company's participation in current or future litigation relating to events which
occurred during Donkin's employment or about which Donkin has information,
Donkin agrees to cooperate fully and devote such time as may be reasonably
required in the preparation, prosecution or defense of the Company's case or
cases, including, but not limited to, the execution of truthful declarations or
providing information and/or documents requested by the Company. The Company
shall reimburse Donkin, promptly upon receipt of satisfactory evidence thereof,
for all reasonable expenses (not including any amount for Donkin's time)
incurred by Donkin in connection with such assistance and/or cooperation with
the Company with respect to such litigation.
8. No Admission. Nothing contained in this Agreement or the fact
that the parties have signed this Agreement shall be considered an admission
of any liability whatsoever.
9. Confidentiality.
9.1 As a material inducement to the Company to enter into this
Agreement and as an indivisible part of the consideration to be received for
entering into this Agreement and for the performance of obligations under this
Agreement by each party to this Agreement, Donkin agrees that he will not
disclose, disseminate and/or publicize and cause or permit to be disclosed,
disseminated and/or publicized, any of the specific terms of this Agreement, any
claims or allegations or the basis for any claims or allegations, which were or
could have been made against the Company, or any of its officers, directors,
shareholders, employees, representatives, agents, attorneys or affiliated
companies, which concern and are within the scope of this Agreement, directly or
indirectly, specifically or generally, to any person, corporation, association,
governmental agency or other entity except: (a) to the extent necessary to
report income to appropriate taxing authorities; (b) in response to an order of
a court
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of competent jurisdiction or a subpoena issued under the authority thereof; (c)
in response to any subpoena issued by a state or federal governmental agency; or
(d) as otherwise required by law.
9.2 Donkin further warrants and agrees that he will limit his
comments about his separation from the employment of the Company to the fact
that his situation has been resolved satisfactorily and that he has moved on to
other professional opportunities. Donkin shall not disseminate orally or in
writing any comments which are in any way disparaging to the Company or to the
Company's business, owners, officers, agents, representatives or employees.
10. Fees and Costs. Donkin and the Company agree that in the event
of litigation relating to a breach of this Agreement, the prevailing party shall
be entitled to its attorneys' fees and costs.
11. Successors and Assigns. This Agreement, and all the terms and
provisions hereof, shall be binding upon and shall inure to the benefit of the
parties and their respective heirs, legal representatives, successors and
assigns.
12. Waiver. No waiver of any of the provisions of this Agreement
shall be deemed, or shall constitute, a waiver of any other provision, whether
or not similar. No waiver shall constitute a continuing waiver. No waiver shall
be binding unless executed in writing by the party charged with the waiver.
13. Severability. In the event any provision of this Agreement shall
finally be determined by a court of competent jurisdiction to be unlawful, such
provision shall be deemed to be severed from this Agreement and every other
provision of this Agreement shall remain in full force and effect. If, moreover,
any one or more of the provisions contained in this Agreement shall for any
reason be held by a court of competent jurisdiction to be excessively broad, it
shall be construed, by limiting and reducing it, so as to be enforceable to the
extent compatible with the applicable law as it shall then appear.
14. Legal Representation. The parties acknowledge that they have had
the opportunity to receive the advice of independent legal counsel prior to the
execution of this Agreement and the opportunity to receive an explanation from
legal counsel of the legal nature and affect of the Agreement, and each party
has fully exercised that opportunity to the extent desired and understands the
terms and provisions of this Agreement and its nature and affect. Each party
further represents that it is entering into this Agreement freely and
voluntarily, and not relying on the representations of any other party or of the
counsel of any other party. Each party expressly agrees that this Agreement
shall not be construed or interpreted for or against the party drafting the
Agreement.
15. Notices. All notices, requests, demands and other communications
under this Agreement must be in writing and shall be deemed to have been duly
given (i) on the date of service if served personally on the party to whom
notice is to be given; (ii) on the second business day following delivery to a
courier or messenger service guaranteeing overnight delivery; (iii) on the date
of confirmation of receipt if sent by telecopy or telex; and (iv) on the date of
receipt or refusal indicated on the return receipt if mailed to the party to
whom notice is
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to be given by first-class mail, registered or certified, postage prepaid,
return receipt requested, and in each case, properly addressed as follows:
If to the Company: Xxxxxxx.xxx, Inc.
000 Xxxxx Xxxx., 00xx Xxxxx
Xxxxx Xxxx, XX 00000
Attn: Chief Executive Officer
If to Donkin : Xxxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
16. Miscellaneous.
16.1 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations between the parties with respect to
the subject matter of this Agreement.
16.2 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, and all of which
shall constitute one and the same instrument.
16.3 Amendment. This Agreement may not be amended except by an
agreement in writing signed by the parties to this Agreement or their respective
successors-in-interest and expressly stating that it is an amendment of this
Agreement.
16.4 Governing Law. This Agreement shall be governed in all
respects, including validity, interpretation and effect, by the laws of the
State of California.
16.5 Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive the
execution and delivery of this Agreement.
Any party may change its address for the purpose of this Agreement
by giving the other party written notice of the new address in the manner set
forth above.
[Signature page follows]
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This Agreement has been executed as of the day first hereinbefore
written.
"COMPANY"
XXXXXXX.XXX, INC., a Delaware
corporation
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx,
Chief Executive Officer
"DONKIN"
/s/ Xxxxxx Xxxxxx
-----------------------------------------
Xxxxxx Xxxxxx
SCHEDULE I
STOCK OPTIONS
No. of Exercise Price
Grant Date Shares Per Share
---------- --------- --------------
09/16/99 6,945 $ 72.00
02/02/00 5,555 112.50
05/15/00 12,500 18.50
09/25/00 9,375 7.75
03/07/01 27,500 5.50
12/18/01 55,555 2.79
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117,430
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