EXHIBIT 10.26
INTIRA CORPORATION
AMENDED AND RESTATED
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Amended and Restated Settlement Agreement and Mutual Release
("Agreement") dated as of March 24, 2000 is made by and between Intira
Corporation, a Delaware corporation and successor by merger with digital
broadcast network corporation, a Missouri corporation (the "Company"), and
Xxxxxxx X. Xxxxxxx ("Xxxxxxx").
WHEREAS, the Company and Xxxxxxx, a founder of the Company, previously
entered into a Severance Agreement dated as of August 27, 1999 (the "Original
Severance Agreement") whereby the parties mutually agreed to terminate the
employment relationship and to release each other from any claims arising from
or related to the employment relationship;
WHEREAS, the Company and Xxxxxxx have previously entered into the Second
Amended and Restated Employment Agreement, dated as of March 29, 1999 (the
"Employment Agreement"), the Rights Agreement dated March 19, 1999 (the "Rights
Agreement"), the Memorandum of Understanding, dated May 9, 1999 (the "MOU" and
collectively with the Original Severance Agreement, the Employment Agreement and
the Rights Agreement the "Prior Agreements");
WHEREAS, the Company and Xxxxxxx desire to enter into this Agreement, which
will supersede all current or future obligations of the parties under the Prior
Agreements, and to clarify certain matters regarding the rights of the parties.
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Xxxxxxx hereby agree as follows:
1. Payments. Company hereby authorizes Xxxxxxx to cash and receive
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payment under the $60,000 check previously delivered to him in connection with
the Original Severance Agreement. Xxxxxxx acknowledges and agrees that the
Company has no further payment obligations to Xxxxxxx as an employee, officer
or director.
2. Lock-Up Period for Equity Securities. Xxxxxxx has previously executed
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and delivered to Company a lock-up agreement and hereby agrees that, if so
requested by the Company or any representative of the underwriters (the
"Managing Underwriter") in connection with any registration of an initial
public offering of securities of the Company under the Securities Act of 1933,
as amended (the "Securities Act"), Xxxxxxx shall execute a Lock-Up Agreement
in the form attached hereto as Exhibit X. Xxxxxxx agrees that the Company may
place a legend on Xxxxxxx' stock certificate evidencing the Lock-Up Agreement.
3. Stock Transfer Matters. Company acknowledges receipt and acceptance of
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Xxxxxxx' Affidavit pursuant to Rule 144(k) under the Securities Act of 1933 with
respect to all of the shares of Company common stock owned beneficially or of
record by Xxxxxxx ("Xxxxxxx' Shares"); Company shall cause the Company's stock
transfer agent, upon the surrender by Xxxxxxx of the certificates representing
Xxxxxxx' Shares, to promptly reissue certificates in replacement thereof which
do not bear a legend or other statement pertaining to any restrictions on the
transferability of the shares represented thereby other than as provided by the
Lock-Up Agreement; Company shall cause the Company's stock transfer agent to
promptly execute the stock transfer request instructions previously submitted by
Xxxxxxx by letters dated February 15,
and March 24, 2000; Company shall cause the Company's stock transfer agent to
promptly execute any new stock transfer request instructions submitted by
Xxxxxxx prior to the commencement of any lock-up period provided in the Lock-
Up Agreement provided that such transferees agree to be bound by an agreement
with substantially the same terms as the Lock-Up Agreement; and Company shall
cause the Company's stock transfer agent, upon the request of Xxxxxxx at any
time after the expiration of the Lock-Up Period, to accept the surrender of
the certificates for Xxxxxxx' Shares and reissue replacement certificates
therefor which do not bear any legend or other statement pertaining to any
restrictions whatsoever on the transferability thereof.
4. Termination of Prior Agreements. The parties hereto agree that all
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Prior Agreements between the parties, including all previous employment
agreements, are hereby terminated and Xxxxxxx agrees that by signing this
Agreement he is not entitled to any additional capital stock or other
securities under the Prior Agreements.
5. Termination of Rights Under Shareholders Agreements. Xxxxxxx agrees
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that all of Xxxxxxx' rights under any previous shareholder agreements,
including the Shareholders' Agreements dated March 3, 1998 (collectively, the
"Shareholders Agreements"), entered into by any among, the Company, Xxxxxxx
and each of Xxx Xxxxxxx, Xxxx Xxxx, Xxxxx Xxxxxxx and Xxxxxxx Xxxxx are
terminated.
6. Statements and Filings. Company shall, in any formal written statement
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publicly distributed to more than ten people, in which it identifies or
otherwise lists its founders or organizers, include Xxxxxxx as a founder or
organizer as such. Company shall, in any prospectus or other offering document
relating to the initial public offering of its securities, list Xxxxxxx as a
founder of dbn who served as a director and executive officer of dbn until
August 1999 when he determined to leave dbn to pursue and develop other business
ventures and ideas. Neither party shall in any way make defamatory statements
concerning the other party or make or solicit any comments or statements, to the
media, financial underwriters, or the like, that are derogatory or detrimental
to the good name or business reputation of the other party.
7. Release of Claims.
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(a) Company Release. The Company (on behalf of itself and its
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stockholders, officers, directors, employees, affiliates, agents,
successors and assigns) hereby irrevocably, unconditionally and forever
releases, waives, discharges and covenants not to xxx Xxxxxxx (and his
heirs, personal representatives and advisors) from and with respect to
any and all claims, charges, debts, judgments, demands, liabilities,
obligations, damages and causes of action (personal, statutory or
otherwise) whether known or unknown, matured or unmatured, fixed or
contingent, which the Company (or its stockholders, officers, directors,
employees, affiliates, agents, successors and assigns) may have or assert
against Xxxxxxx (and his heirs and personal representatives), for any
reason whatsoever, for, or arising out of, or related to, or in
connection with, actions or omissions occurring or matters existing prior
to or as of the date hereof, including, but not limited to, any such
matter as arises out of, relates to or is in connection with Xxxxxxx'
capacity as a stockholder, director, officer or agent of the Company
(including, for example, claims for breach of fiduciary duties, corporate
opportunities or otherwise). This release and covenant shall not apply to
actions to enforce the express terms and provisions of this Agreement
with respect to matters occurring after the date hereof or to third party
claims against the Company in connection with Xxxxxxx' sale of Company
capital stock or for any personal obligations of Xxxxxxx (other than in
his capacity as an officer, director or employee of the Company). The
Company also shall indemnify and hold harmless Xxxxxxx (and his heirs and
personal representatives) from any and all claims, damages and losses
(including reasonable attorneys' fees) suffered or incurred by Xxxxxxx in
connection with any personal guaranties made by Xxxxxxx prior to the date
hereof with respect to any debts or obligations of the Company.
(b) Xxxxxxx Release. Xxxxxxx (on behalf of himself and his heirs,
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personal representatives and companies or other entities wholly-owned by
Xxxxxxx and/or Xxxxxxx and his spouse and/or children) hereby
irrevocably, unconditionally and forever releases, waives, discharges and
covenants not to xxx the Company (and its stockholders, officers,
directors, employees, affiliates, advisors, agents, successors and
assigns) from and with respect to any and all claims, charges, debts,
judgments, demands, liabilities, obligations, damages and causes of
action (personal, statutory or otherwise) whether known or unknown,
matured or unmatured, fixed or contingent, which Xxxxxxx (and his heirs,
personal representatives and companies or other entities wholly-owned by
Xxxxxxx and/or Xxxxxxx and his spouse and/or children) may have or assert
against the Company, its stockholders, officers, directors, employees,
affiliates, advisors, agents, successors and assigns, for any reason
whatsoever, for, or arising out of, or related to, or in connection with,
actions or omissions occurring or matters existing prior to or as of the
date hereof. This release and covenant shall not apply to (i) actions to
enforce the express terms and conditions of this Agreement with respect
to matters occurring after the date hereof, (ii) any claim or right that
Xxxxxxx may have or assert against or from the Company or its predecessor
for indemnification by reason of the fact that he was an officer,
director and employee of digital broadcast network corporation
(predecessor to the Company) to the fullest extent set forth in the
Certificate of Incorporation and Bylaws of the Company, and (iii) any
claim, charge, debt, judgement, liability, loss, cause of action or other
matter that does not arise out of or in connection with, or relate to
either (x) the business or operations of the Company or (y) the purchase,
ownership or sale of Company capital stock or other Company securities.
8. Civil Code Section 1542. Xxxxxxx and the Company each represent that
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they are not aware of any claim by either of them other than the claims that
are released by this Agreement. Xxxxxxx and the Company acknowledge that they
have been advised by legal counsel and are familiar with the provisions of
California Civil Code Section 1542, which provides 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.
Xxxxxxx and the Company, being aware of said California Civil Code section,
agree to expressly waive any rights they may have thereunder, as well as under
any other statute or common law principles of similar effect.
9. Entire Agreement; Supersession of Prior Agreements. This Agreement
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represents the entire agreement and understanding between the Company and
Xxxxxxx concerning Xxxxxxx' previous relationship with the Company, and
supersedes and replaces any and all prior agreements and any other agreements
and understandings concerning Xxxxxxx' relationship with the Company and his
compensation by the Company, including the Employment Agreement, the Rights
Agreement the MOU and the Original Severance Agreement.
10. Miscellaneous. The parties agree that the Agreement shall be governed
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by and interpreted in accordance with the laws of the State of California. This
Agreement may be executed in counterparts, and each counterpart shall have the
same force and effect as an original and shall constitute an effective, binding
agreement on the part of each of the undersigned.
IN WITNESS WHEREOF, the Parties have executed this Amended and Restated
Severance Agreement on the respective dates set forth below.
INTIRA CORPORATION
Dated: March 27, 2000 By /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
President
XXXXXXX X. XXXXXXX, an individual
Dated: March 27, 2000 By /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Exhibit A
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Xxxxxxx Sachs & Co. Lock-Up Agreement
