Exhibit 10.6
SEPARATION AGREEMENT
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THIS SEPARATION AGREEMENT ("Agreement") is made as of the 17th day of
December 2001 by and between XxxXxxxx.xxx, Inc. ("BarPoint") and Xxxx X. Xxxxxxx
("Xxxxxxx")(BarPoint and Xxxxxxx referred to collectively as the "Parties").
WHEREAS, on March 27, 2000 the Parties entered into an Employment
Agreement, which was subsequently amended on June 19, 2001 (collectively, the
"Employment Agreement"); and
WHEREAS, the Parties have mutually agreed to terminate the Employment
Agreement on the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Parties hereby agree as follows:
1. Termination of Certain Agreements. Subject to the terms herein, the
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Employment Agreement and the Change in Control Agreement by and between the
Parties dated May 9, 2001 are hereby terminated in their entirety and shall have
no further force or effect; provided, however Sections 6 ("Covenant Not to
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Compete"), Section 8 ("Confidential Information") and Section 9 ("Surrender of
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Documents") of the Employment Agreement shall survive in accordance with their
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respective terms.
2. Board Service; Consulting Assistance. Xxxxxxx shall step down as
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Chief Executive Officer of BarPoint effective December 31, 2001; provided,
however, he shall continue to serve out his term on BarPoint's Board of
Directors until BarPoint's 2002 annual shareholders meeting and, at the request
of the Company, shall stand for re-election at said meeting. In addition, at
the continuing option of BarPoint, Xxxxxxx shall serve as a consultant to
BarPoint through March 27, 2003 without additional compensation; provided,
however, Xxxxxxx shall not be required to be available at any particular time or
at any particular location in providing such consulting services. Xxxxxxx shall
be reimbursed for all pre-approved travel and other expenses related to his
service upon BarPoint's Board of Directors or as a consultant to BarPoint, such
expenses to be paid in accordance with the policies of BarPoint then in effect.
3. Separation Payments. BarPoint shall pay to Xxxxxxx the following:
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(a) Cash Payments. BarPoint shall continue to pay Xxxxxxx his base
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salary through March 27, 2003 at the following rates:
From December 17, 2001 - April 9, 2002: Payments shall be based upon
an annual rate of $ 450,000, $ 400,000 of which is to be paid to
Xxxxxxx in cash, $ 50,000 of which is payable in stock in accordance
with the terms of the Restricted Stock Agreement by and between the
Parties dated Xxxxx 0, 0000 ("XXX");
From April 10, 2002 - March 27, 2003: Payments shall be based upon an
annual rate of $ 450,000, all of which is to be paid to Xxxxxxx in
cash.
These payments shall be made in the same manner as otherwise would
have been paid under the terms of the Employment Agreement; provided,
however, if a "Change in Control" occurs (as that term is defined in
the Change of Control Agreement) before March 27, 2003, then any
remaining base salary payments, together with a payment for the fair
market value of the remaining benefits
Exhibit 10.6
described in Section 3(c), shall be accelerated and paid in a lump sum
no later than thirty (30) days after the date of such Change in
Control.
(b) Stock Options. Xxxxxxx shall retain all options received
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pursuant to existing agreements in accordance with their terms. The
following is a schedule of all options held by Xxxxxxx, their exercise
prices and their expiration dates:
Grant Date Grant Amount Exercise Price Expiration Date
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03/27/2000 300,000 $ 12.750/share 03/27/2010
08/31/2000 125,000 $ 3.562/share 08/31/2010
12/06/2000 100,000 $ 1.437/share 12/06/2010
(c) Benefits. Xxxxxxx shall be included to the extent eligible
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thereunder (at the expense of BarPoint) in any and all existing plans
providing benefits for BarPoint's employees generally including, but
not limited to, group life and disability insurance, hospitalization,
medical, dental and any and all similar or comparable benefits, such
benefits to expire on March 27, 2003.
(d) Restricted Stock. The RSA shall survive in accordance with its
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terms. As of the date hereof, Xxxxxxx has vested in (and received)
44,094 shares of BarPoint's common stock as required by the Restricted
Stock Agreement. The balance of the shares shall vest as follows:
(i) 22,047 on December 31, 2001; and (ii) an additional 22,047 on
March 31, 2002, it being agreed that Xxxxxxx'x performance of
consulting services to BarPoint shall be deemed to be sufficient
performance of services to satisfy the vesting requirements of Section
2 of the Restricted Stock Agreement ("Vesting of Restricted Stock").
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Nothing in this Section 3(c) shall be deemed to prevent earlier
vesting of the restricted stock as provided in Section 2(b) of the
Restricted Stock Agreement.
(d) Taxes. To the extent that any payments provided under this
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Separation Agreement are subject to any applicable federal, state,
foreign, and local income, excise or other taxes, Xxxxxxx agrees to
pay such taxes and not to seek reimbursement or indemnification for
such amounts from BarPoint. BarPoint shall withhold any amounts
required by law from such payments.
4. Non-disparagement. Each party hereby agrees to refrain from making
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any disparaging or negative comments to any person or entity regarding the other
party.
5. Complete Release; Additional Covenants. Upon the complete
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performance of all of their respective obligations set forth in this Separation
Agreement, the Parties waive and forever discharge each other (and each others
agents, employees, officers, directors, shareholders, advisors, related
companies, successors and assigns, as the case may be) of and from any and all
claims or causes of action whatsoever arising from or relating in any way to
Xxxxxxx'x relationship with the Company that either party had, now has or may
have in the future against the other. In addition, commencing on the date of
this Separation Agreement, Xxxxxxx agrees to refrain from participating in any
claim or action against BarPoint concerning any matter relating in any way to
Xxxxxxx'x relationship with the Company, excepting therefrom any claim for
indemnification which arises from and is attributable Xxxxxxx'x service upon
BarPoint's Board of Directors.
6. Governing Law. This Separation Agreement shall be governed and
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construed in accordance with the laws of the State of Florida without
application of any conflicts of laws principles. The Parties agree that any
litigation or action directly or indirectly connected with this Separation
Agreement shall take place and be litigated in courts located in Broward County,
Florida.
Exhibit 10.6
7. Entire Agreement. This Agreement constituted the entire agreement
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between the Parties with respect to the subject matter hereof and supersedes all
prior negotiations, agreements, understandings and arrangements, both oral and
written, between BarPoint and Xxxxxxx with respect to this subject matter. This
Separation Agreement may not be modified in any way, except by a written
instrument executed by each of BarPoint and Xxxxxxx.
8. Attorneys' Fees. In the event that any litigation shall arise between
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the Parties based, in whole or in part, upon this Separation Agreement or any or
all of the provisions contained herein, the prevailing party in any such
litigation shall be entitled to recover from the non-prevailing party, and shall
be awarded by a court of competent jurisdiction, any and all reasonable fees and
disbursement and costs of trial and appellate counsel paid, incurred or suffered
by such prevailing party as the result of, arising from, or in connection with,
any such litigation.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement on the
day and year first above written.
XXXXXXXX.XXX, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx /s/ Xxxx X. Xxxxxxx
XXXX X. XXXXXXX
Name: XXXXX X. XXXXXXXXXX
Title: CHAIRMAN
