Exhibit 10.1
JAG MEDIA HOLDINGS, INC.
0000 X.X. 00XX XXXXXX, XXXXX X00
XXXX XXXXX, XX 00000
April 2, 2004
Xxxx Xxxxxxxx
0 Xxxx Xxxxx
Xxx Xxxx, XX 00000
Re: Understanding Regarding Your Separation from the Company
Dear Xxxx:
This letter ("Letter Agreement") is intended to confirm our mutual understanding
regarding the termination of your employment relationship with JAG Media
Holdings, Inc. and its affiliates (collectively, the "Company"), as follows:
1. Termination Date. You have resigned from your positions as President
and Chief Executive of the Company effective April 2, 2004 (the
"Termination Date"). You agree that thereafter, you will not represent
yourself to be associated in any capacity with the Company.
2. Payments and Benefits. In connection with your resignation, you will be
entitled to receive only the following payments and benefits (in each
case subject to applicable tax withholding):
(a) Accrued Salary/Accrued Vacation/Benefits. You will receive a
final paycheck that will include your salary and all accrued
and unused vacation days through the Termination Date.
(b) Stock Options. Any stock options that have been granted to you
under the Company' s stock option plans that are not vested as
of the Termination Date will be forfeited and canceled. Vested
options will be exercisable in accordance with and subject to
the terms of the respective stock option plans.
(c) Executive Equipment. You are entitled to obtain ownership to
the Executive Equipment as provided in paragraph 8 of the
Amended and Restated Executive Employment Agreement between
you and Xxxxxxxx.xxx Inc., dated August 31, 2001 (the
"Employment Agreement").
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(d) Termination Payment. Subject to paragraph 2(f) below, you will
receive a lump sum termination payment equal to $150,000, as
soon as practicable following the revocation period set forth
in paragraph 13 below.
(e) Benefits. Subject to paragraph 2(f) below, you will be
entitled to continued medical and life insurance coverage for
a period of 12 months following the Termination Date.
(f) Conditions. Your right to receive the payments and benefits
set forth in paragraphs 2(d) and 2(e) are conditional upon:
(i) your acceptance of the terms of this Letter Agreement
within the twenty-one (21) day period set forth in paragraph
13 of this Letter Agreement and your nonrevocation of such
within the revocation period set forth in paragraph 13 of this
Letter Agreement, (ii) your continued compliance with the
provisions of paragraphs 14 and 15 of your Employment
Agreement and paragraph 5 of this Letter Agreement.
3. Cessation of all other Compensation and Benefits. From and after the
Termination Date, you will not receive compensation, payments or
benefits of any kind from the Company other than those set forth in
paragraph 2 above, and you expressly acknowledge and agree that, except
with respect to the payments and benefits specifically set forth in
this Letter Agreement, you are not entitled to any compensation,
payment or benefit whatsoever, including, without limitation, any right
to payments or benefits under your Employment Agreement (including any
payments or benefits that may become payable as a result of a "change
in control" (as defined in the Employment Agreement)). Specific
information will be provided to you about your rights to elect
continuation coverage under the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA") and/or any applicable state
statutes for the Company's group health insurance plan. As noted in
paragraph 2(e) above, the Company will pay for your COBRA premiums for
the 12 month period following the Termination Date, provided that you
sign, without revocation this Letter Agreement within the applicable
time periods as described herein.
4. Release.
(a) In exchange for the payments, benefits and other consideration
provided for in paragraphs 2(d) and 2(e) in this Letter
Agreement, you irrevocably and unconditionally release,
remise, and forever discharge the Company and the Releasees
from any and all agreements, promises, liabilities, claims and
demands of any kind, in law or equity, whether known or
unknown, suspected or unsuspected, which you, your heirs,
executors, administrators, successors or assigns ever had, or
now have against the Company or any Releasee, including
without limitation any and all contract claims, benefit
claims, tort claims, fraud claims, claims for payments,
bonuses, severance, defamation, disparagement, or any other
personal injury claims, claims relating to retirement, pension
or unemployment, arising out of or relating to your status as
a stockholder of the Company, your employment, compensation
and benefits with the Company or the Releasees, and/or the
termination thereof, and any and all claims of unfair or
unjust dismissal or discrimination on any basis including but
not limited to on the
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basis of age, race, gender, disability, ethnic or national
origin, sexual orientation, and claims for costs, expenses and
attorneys' fees with respect thereto (other than those
relating to your enforcement of the Letter Agreement)
existing, in each case arising or occurring at any time up to
and including the date of your execution of this Letter
Agreement. This release specifically includes, without
limitation, any and all claims under the Age Discrimination in
Employment Act, 29 U.S.C.ss.621 et seq., Title VII of the
Civil Rights Act of 1964, 42 U.S.C.ss.2000(e), the Americans
with Disabilities Act, 42 U.S.C. 1201, et seq., the Employee
Retirement Income Security Act of 1974, any and all other
federal, state and/or local statutes, ordinances, regulations
or common laws, and any and all claims for benefits under any
compensation, bonus or benefit plan, program or policy of the
Company or the Releasees. This release will not apply to any
claim you may have for indemnification under the Company's
Articles of Incorporation, the By-Laws of the Company or any
of its affiliates, any agreement which you may be party to
with the Company or any of its affiliates, or under applicable
law, including, without limitation, any claim for
indemnification which you may have arising out of your service
as an officer, director or employee of the Company or any of
its affiliates. For purposes of this Letter Agreement, the
term "the Releasees" includes any of the Company's past,
present and future direct and indirect parents, subsidiaries,
affiliates, divisions, predecessors, successors, and assigns,
and their past, present and future officers, directors,
shareholders, representatives, employees, agents and attorneys
in their official and individual capacities, and all other
related individuals and entities, jointly and individually,
and this Letter Agreement shall inure to the benefit of, and
shall be binding and enforceable by, all such entities and
individuals.
(b) The Company, on its own behalf and on behalf of its
predecessors, past and current subsidiaries, irrevocably and
unconditionally releases, remises, and forever discharges you
from any and all agreements, promises, liabilities, claims and
demands of any kind, in law or equity, whether known or
unknown, suspected or unsuspected, which the Company ever had,
or now has against you, including without limitation any and
all contract claims, tort claims, claims for payments,
bonuses, severance, defamation, disparagement, or any other
personal injury claims, claims relating to retirement, pension
or unemployment, arising out of or relating to your status as
an employee of the Company and/or its subsidiaries and
affiliates, your employment, compensation and benefits with
the Company and/or its subsidiaries and affiliates, and/or the
termination thereof, and claims for costs, expenses and
attorneys' fees with respect thereto, in each case arising or
occurring at any time up to and including the date of the
Company's execution of this Letter Agreement; provided,
however, that nothing in this Letter Agreement shall release
you from claims (i) for breach of this Letter Agreement, or
(ii) attributable to your gross negligence and/or willful
misconduct during the course of your employment with the
Company or its affiliates.
5. Future Cooperation. You agree that upon the Company's reasonable
request following your termination of employment, you will use
reasonable efforts to assist and cooperate with the Company in
connection with the defense or prosecution of any claim that may be
made against or by the Company or its affiliates, or in connection with
any ongoing or future investigation or dispute or claim of any kind
involving the Company or its affiliates, including any proceeding
before any arbitral, administrative, regulatory, self-regulatory,
judicial, legislative, or other body or agency. You will be entitled
only to reimbursement for reasonable out-of-pocket expenses (including
travel expenses) incurred in connection with providing such assistance.
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6. Employment Agreement. You acknowledge that your Employment Agreement
shall be of no further force and effect; provided, however, that
paragraphs 14 (Company Policies) (but only to the extent that such
Company Policies specifically apply during the period following your
termination of employment) and 15 (Confidentiality) shall remain in
effect in accordance with their terms.
7. Entire Agreement; Amendments; Waiver. Except as expressly provided in
paragraph 6 above, you acknowledge that this Letter Agreement
supersedes all previous and contemporaneous communications, agreements
and understandings, whether oral or written, between you, on the one
hand, and the Company or any of its affiliates, on the other hand,
including, but not limited to your Employment Agreement, and
constitutes the sole and entire agreement between you and the Company
pertaining to the subject matter hereof. This Letter Agreement cannot
be modified, altered or amended except by a writing signed by all the
parties. No waiver by either party of any provision or condition of
this Letter Agreement at any time shall be deemed a waiver of such
provision or condition at any prior or subsequent time or of any
provision or condition at the same or any prior or subsequent time.
8. Withholding. The Company shall have the right to withhold from any
amount payable to you hereunder an amount necessary in order for the
Company to satisfy any withholding tax obligation it may have under
applicable law and to the extent such obligations cannot be satisfied
through withholding, you agree to pay the Company the amount necessary
to satisfy such obligations.
9. Notices. Any notice required or permitted to be given under this Letter
Agreement shall be in writing and given by hand delivery, by certified
or registered United States mail, postage prepaid, or by facsimile and
shall be effective on the date delivered by hand, mailed, or sent by
facsimile in the case of the Company, to its usual business address
from time to time to the attention of Xxxxxx Xxxxxxxxx, and in your
case, to your most recent home address as shown on the records of the
Company.
10. Severability. If any provision of this Letter Agreement is declared or
determined by any court to be illegal or invalid, validity of the
remaining parts, terms or provisions shall not be affected thereby and
said illegal or invalid part, term or provision shall be deemed not to
be a part of this Letter Agreement.
11. Choice of Law. This Letter Agreement shall be governed by and construed
in accordance with the domestic laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the
State of New York.
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12. Acknowledgment. By signing this Letter Agreement, you acknowledge that
this Letter Agreement is executed with the consent and upon the advice
of counsel. You acknowledge that no person or entity, including but not
limited to a party or agent or attorney of any party, has made any
promise, representation, or warranty, express or implied, not contained
in this Letter Agreement, to induce you to execute this Letter
Agreement. You certify that you have read the terms of this Letter
Agreement, accept and agree to its provisions, and hereby execute it
voluntarily with full understanding of its consequences and intending
to be bound by its terms. In signing this Letter Agreement, you have
not relied on any statements or explanations made by the Company except
as specifically set forth in this Letter Agreement. You intend this
Letter Agreement to be legally binding.
13. Period of Review; Right to Revoke. You understand that to accept this
Letter Agreement you must sign and return it to the Company in
accordance with paragraph 9 above. You further understand that you have
21 days to review this Letter Agreement with your attorneys, not
counting the day on which you receive it. If you sign this Letter
Agreement before the end of the 21-day period, it will be your
voluntary decision to do so because you have decided that you do not
need any additional time to decide whether to sign this Letter
Agreement. You further understand that you have the right to revoke
this Letter Agreement at any time during the 7-day period following the
date on which you sign the Letter Agreement, not counting the day on
which you sign it. If you want to revoke, you must provide written
notice to the Company within the 7-day revocation period in accordance
with paragraph 9 above. This Letter Agreement shall not become
effective or enforceable unless and until you notify the Company, in
accordance with paragraph 9, upon or following expiration of the 7-day
revocation period, that you have not exercised your right to revoke
this Letter Agreement. You understand that if you fail to execute and
return this Letter Agreement on a timely basis, or if you execute and
then elect to revoke this Letter Agreement, you will not be entitled to
the payments and benefits set forth in paragraphs 2(d) and 2(e) above.
14. Voluntary and Knowing Waiver; Acceptance. By signing this Letter
Agreement, you acknowledge and agree that you have entered into this
Letter Agreement knowingly and voluntarily, and that you have read the
entire Letter Agreement carefully, and understand all its terms.
YOU UNDERSTAND THAT THIS LETTER AGREEMENT RELEASES ANY AND ALL RIGHTS
YOU MAY HAVE UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT. YOU
UNDERSTAND THAT YOUR RIGHT TO RECEIVE THE PAYMENTS AND BENEFITS SET
FORTH IN PARAGRAPHS 2(d) AND 2(e) ARE SUBJECT TO THE TERMS AND
CONDITIONS SET FORTH IN THIS LETTER AGREEMENT AND THAT YOU WOULD NOT
RECEIVE SUCH PAYMENTS AND BENEFITS BUT FOR YOUR EXECUTION OF THIS
LETTER AGREEMENT.
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* * * *
If the foregoing is acceptable to you, kindly sign and return a copy of
this Letter Agreement to the Company.
Sincerely,
JAG MEDIA HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxx
Chief Operating Officer
ACCEPTED AND AGREED
/s/ Xxxx Xxxxxxxx
-----------------
Xxxx Xxxxxxxx
Date: April 2, 2004
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