EXHIBIT 10.75
AGREEMENT AND COMPLETE RELEASE
WHEREAS Xxx Xxxxxxx (hereinafter "Xxxxxxx") and xxxxxx.xxx, Incorporated
(hereinafter "xxxxxx.xxx") wish to end the employment relationship between them
and wish to fully and finally resolve all differences between them, the
following constitutes their AGREEMENT:
In exchange for the mutual covenants herein expressed, the parties agree as
follows:
1. xxxxxx.xxx shall terminate Xxxxxxx'x employment to be effective on May 30,
2000. The Employment Agreement of July 1, 1999, between Xxxxxxx and
xxxxxx.xxx shall terminate as of May 30, 2000. (A copy of the Employment
Agreement is attached hereto as Exhibit A.) Notwithstanding the termination
of the Employment Agreement, Xxxxxxx shall remain bound by his promises
regarding nondisclosure and return of confidential information, assignment
of intellectual property, non-competition, and non-solicitation as set forth
in Article V of the Employment Agreement.
2. In consideration for this Agreement, xxxxxx.xxx will terminate Xxxxxxx'x
employment and pay Xxxxxxx the xxxxx sum of $75,000.00 as six months'
severance pay pursuant to the Company's severance plan for select employees,
less all applicable withholdings, in six monthly installments. The first
payment shall be made within four business days of the full execution of
this Agreement, and subsequent payments will be made on the 26th of each
month. Additionally, xxxxxx.xxx shall allow full vesting of all outstanding
stock options upon Xxxxxxx'x execution of this Agreement.
3. Xxxxxxx understands, agrees and expressly represents that the consideration
recited in the foregoing Paragraph 2 is separate from and additional to any
payments or benefits to which he was already entitled by virtue of his
services to xxxxxx.xxx and to which he has no legal right. Xxxxxxx
understands, agrees and expressly represents that he will be entitled to no
further compensation or payments of any type from xxxxxx.xxx. Xxxxxxx
further acknowledges the valuable consideration inherent in the resolution
of the dispute as to whether the circumstances constitute cause for
xxxxxx.xxx to discharge Xxxxxxx.
4. Xxxxxxx represents and affirms that he will return by May 31, 2000, any and
all xxxxxx.xxx property he may have had, including but not limited to
confidential information as defined in the Employment Agreement.
5. Xxxxxxx agrees to keep both the existence and the terms of this Agreement
confidential, and not to disclose any information regarding this Agreement
to anyone other than his attorney and spouse (if any) who shall be informed
of and bound by this confidentiality provision.
6. Xxxxxxx does, for himself and his heirs, agents, executors, administrators,
and assigns hereby RELEASE and FOREVER DISCHARGE xxxxxx.xxx and its
directors, officers, employees, agents, attorneys, successors, predecessors,
assigns and affiliated companies (collectively "Releasees") from any and all
claims, actions, and causes of action of whatever kind or nature, which he
may now have or ever may have had against the Releasees or any of them,
whether known or unknown to him, such as may have arisen in whole or in part
at any time prior to or on the date of execution of this Agreement. This
includes, but is not limited to, any claims arising out of any contract,
express or implied, any covenant of good faith and fair dealing, express or
implied, any tort (whether intentional or negligent, including claims
arising out of the NEGLIGENCE OR GROSS NEGLIGENCE of any person released in
this Agreement), and any federal, state or other governmental statute,
regulation or ordinance relating to employment discrimination, termination
of employment, or payment of wages or provision of benefits, including
without limitation, Title VII of the Civil Rights Act of 1964 as amended,
the Civil Rights Act of 1991, the Americans with Disabilities Act, the
Immigration Reform and Control Act, the Employee Retirement Income Security
Act, the Family and Medical Leave Act, the Fair Labor Standards Act, the
Texas Commission on Human Rights Act, the Texas Payday Law, and the Texas
Workers' Compensation Act.
7. Xxxxxxx also expressly PROMISES NOT TO XXX OR INSTITUTE OTHER LEGAL
PROCEEDINGS against the Releasees or any of them, on the basis of any
claims, actions, or causes of action that are being released by this
Agreement. Xxxxxxx understands and agrees that if he breaches this promise
and files a lawsuit or institutes other legal proceedings with any court or
governmental agency, he will pay for all costs incurred by the Releasees or
any of them, including attorneys' fees.
8. Xxxxxxx understands and agrees that by entering into this Agreement,
xxxxxx.xxx is not admitting any liability or wrongdoing. Rather, he
understands and agrees that this Agreement is merely to settle any
differences between them arising out of Xxxxxxx'x relationship with
xxxxxx.xxx and the termination of that relationship.
9. Xxxxxxx agrees that he will not, directly or indirectly, in any individual
or representative capacity whatsoever, make any statement, oral or written,
or perform any act or omission which is or could be detrimental in any
material respect to the reputation or goodwill of xxxxxx.xxx or any other
person or entity released herein. Xxxxxxx further agrees he will not
voluntarily participate in, or aid or encourage any other party in
connection with, any lawsuit or proceeding of any kind brought or asserted
by any person or entity against xxxxxx.xxx or any other person or entity
released herein.
10. Xxxxxxx hereby agrees that he is solely responsible for all federal, state
and local tax obligations, if any, including, but not limited to, all
reporting and payment
obligations which may arise as a consequence of this Agreement. Xxxxxxx
acknowledges that xxxxxx.xxx and the other persons or entities released
herein make no representations regarding the tax treatment or consequences
of such benefit(s). Xxxxxxx agrees to indemnify and hold xxxxxx.xxx and the
other persons or entities released herein, or any of them, harmless from and
against any and all loss, cost, damage or expense, including, without
limitation, attorneys' fees, penalties or interest, incurred by the
xxxxxx.xxx and the other persons or entities released herein, or any of
them, arising out of the tax treatment of the benefit(s) received by Xxxxxxx
as a result of his employment with xxxxxx.xxx, his stock options, or this
Agreement.
11. This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all other agreements
between the parties with respect to the subject matter hereof. No waiver,
amendment, or modification of this Agreement shall be valid unless in
writing and signed by each of the parties.
12. The provisions of this Agreement are severable. If any provision is held to
be invalid or unenforceable, it shall not affect the validity or the
enforceability of any other provision.
13. This Agreement shall be interpreted and enforced under the laws of the state
of Texas.
XXXXXXX UNDERSTANDS THAT HE HAS THE RIGHT TO DISCUSS ALL ASPECTS OF THIS
AGREEMENT AND COMPLETE RELEASE ("AGREEMENT") WITH AN ATTORNEY OF HIS CHOICE. BY
HIS SIGNATURE BELOW, XXXXXXX AGREES THAT HE HAS EXERCISED THIS RIGHT TO THE
EXTENT HE DESIRED, THAT HE HAD A SUFFICIENT PERIOD OF TIME TO REVIEW THIS
AGREEMENT, THAT HE FULLY UNDERSTANDS THIS AGREEMENT, AND THAT THIS AGREEMENT IS
MADE KNOWINGLY AND VOLUNTARILY.
IN WITNESS THEREOF, the parties have affixed their signatures in the spaces
provided on this 30th day of May, 2000.
xxxxxx.xxx, Inc. Xxx Xxxxxxx, An Individual
BY: /s/ Xxxxxx Xxxxxxx /s/ Xxx Xxxxxxx
------------------ ---------------
[Name] Xxxxxx Xxxxxxx
[Title] CEO/Pres
STATE OF TEXAS )
) ss.
COUNTY OF XXXXXX )
BEFORE ME, the undersigned notary public, on this day personally appeared
XXX XXXXXXX, known to me to be the person who executed the foregoing instrument,
and acknowledged to me that he executed the same for the purposes and
consideration therein expressed.
GIVEN under my hand and seal of office, this 6th day of June, 2000.
/s/ Xxxxx Xxxxxxxxx
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Notary Public in and for the State of Texas
