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Exhibit 10.16
January 14, 2000
Xxxxx Xxxxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Dear Xxxxx:
This Letter Agreement sets forth the terms of your employment separation
from net.Genesis Corp., a Delaware corporation (the "Company").
1. EMPLOYMENT SEPARATION. Your employment by the Company will terminate
effective January 31, 2000 (the "Separation Date").
2. SALARY CONTINUATION.
A. INITIAL SIX MONTHS. You will remain on the Company's payroll and
will receive your current base salary ($135,000 annually) from February 1 until
August 1, 2000. In addition, you shall receive, for the first and second
quarters of calendar year 2000, amounts equivalent to pro-rata portions of your
1999 incentive bonus at 100% achievement of objectives, or $41,250.00 for each
such quarter. The Company will deduct from such Salary and Incentive Bonus
Continuation payments withholding taxes or other similar governmental payments
and charges, as required, as well as any applicable insurance premium
contribution. The Salary and Annual Bonus Continuation payments described herein
shall commence only upon the expiration of the seven-day period immediately
following your indication of acceptance of the terms of this Letter Agreement on
the signature line below. Such payments shall be made as part of the Company's
regular payroll cycle. You agree that these payments described herein are above
and beyond any payments otherwise owed to you under the terms of your employment
with the Company, or required by law.
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January 14, 2000
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B. OPTIONAL THREE MONTHS. In the event that you have not obtained
alternative employment, as defined below, by August 1, 2000, the Company will
extend the Salary Continuation (but not Incentive Bonus Continuation) payments
described in paragraph 2(A) until the earlier occurring of November 1, 2000 or
the date on which you commence alternative employment. For purposes of this
subsection, "Alternative Employment" means full-time employment with another
employer at an annual base salary equal to or greater than 90% of your current
base salary. Receipt of the payments described in this subsection will be
conditioned on your written certification to the Company that you have made good
faith efforts to secure alternative employment, that you have not turned down
alternative employment, and that you have been unsuccessful in obtaining
alternative employment.
C. If you have not obtained alternative employment, as defined in
subsection B above, by August 1, 2000, the Company will consider providing to
you a secured, interest-free loan in an amount equivalent to the third-quarter
portion of your incentive bonus at 100% achievement of objectives ($41,250), on
such terms as you and the Company may agree upon at that time.
3. VACATION. You will receive, in the form of additional Salary
Continuation payments, the value of your unused vacation time accrued through
the Separation Date, less all required withholding taxes.
4. HEALTH COVERAGE. You shall be permitted to continue to participate in
the Company's group health and dental plan, at your current coverage level and
premium contribution rate, until July 31, 2000, after which your rights under
the so-called COBRA statute shall attach and shall entitle you to participate in
the Company's group health and dental plan at your own expense.
5. STOCK. You and the Company have executed a "Stock Restriction and
Repurchase Agreement" dated June 19, 1998 and a "Stock Restriction and
Repurchase Agreement" dated September 1, 1999 (collectively, the "SRRA's"),
pursuant to which you are the holder of a total of 280,000 shares of the
Company's Common Stock, par value $.001 per share. The SRRA's shall remain in
full force and effect, except that your final date of vesting, for purposes of
assessing your entitlement to vested shares under section 3 of the SRRA and the
Company's right to repurchase shares under sections 2 and 4 of the SRRA's, shall
be August 5, 2000. The Company retains its right to repurchase shares not vested
as of August 5, 2000. In the event of your material breach of this Letter
Agreement, all vesting shall cease and the Company immediately shall have the
right to repurchase any shares not then vested.
6. RELEASE. In exchange for the consideration set forth in this Letter
Agreement, you hereby irrevocably and unconditionally release, acquit and
forever discharge net.Genesis Corp.,
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January 14, 2000
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its affiliated and related corporations and each of their predecessors and
successors, and each of their agents, directors, officers, trustees, attorneys,
present and former employees, representatives, and related entities
(collectively referred to as "the Company") from any and all charges,
complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, damages and expenses (including attorneys' fees and costs
actually incurred) of any nature whatsoever known or unknown, suspected or
unsuspected, which you now have, own or hold, or claim to have, own or hold, or
which at any time heretofore, had owned or held, or claimed to have owned or
held, or which you at any time hereafter may have, own or hold, or claim to have
owned or held against the Company, based upon, arising out of or in connection
with any circumstance, matter or state of fact up to the date of this Letter
Agreement, including but not limited to, claims or rights under any federal,
state, or local statutory and/or common law in any way regulating or affecting
the employment relationship, including but not limited to Title VII of the Civil
Rights Act of 1964, the Americans with Disabilities Act, Chapter 151B of the
Massachusetts General Laws, and the Age Discrimination in Employment Act. THIS
MEANS YOU MAY NOT XXX THE COMPANY FOR ANY CURRENT OR PRIOR CLAIMS ARISING OUT OF
YOUR EMPLOYMENT WITH OR TERMINATION FROM THE COMPANY.
You further agree that you will not bring any lawsuits, file any charges or
complaints, or make any other demands against the Company, or further pursue any
lawsuits, cases or complaints already brought, based on your employment by the
Company. You further represent that you have no current or pending actions,
charges, lawsuits, or complaints against the Company. You acknowledge and
understand that the consideration provided for in this Letter Agreement
constitutes a full, fair and complete payment for the release and waiver of all
of your possible claims. You acknowledge and understand that the Company does
not owe you anything for your claims in addition to the consideration set forth
in this Letter Agreement.
7. RETURN OF DOCUMENTS AND THE COMPANY PROPERTY. You agree that you will
return to the Company all documents, tapes, notes, computer files, equipment and
other information or materials (and all copies) in your possession which contain
confidential information by January 31, 2000. You further agree that you will
return to the Company any and all other documents, tapes, notes, computer files,
equipment and other information or materials (and all copies) in your possession
which are the property of the Company by January 31, 2000.
8. NON-ADMISSION. Each party expressly disclaims any wrongdoing to the
other and each agrees that by entering into this Letter Agreement neither admits
any wrongdoing.
9. CONFIDENTIALITY. You and the Company agree that the terms of this
Letter Agreement are strictly confidential and shall not be disclosed to any
other person, except that you may disclose this Letter Agreement to your
immediate family, attorney, and tax and other
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January 14, 2000
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professional advisor, and the Company may disclose this Letter Agreement to the
Company employees and advisors with a need to know about the Letter Agreement,
including without limitation, legal counsel, corporate officers and officials,
tax consultants, human resources and payroll representatives.
10. NON-DISPARAGEMENT. You agree that you will not make any disparaging
comments concerning the Company or the Company's employment practices. The
Company agrees that Xxxxx Xxxx and Xxxxxx Xxxxxxx (or their respective
successors) will be designated by the Company to respond to inquiries from
prospective employers and will respond consistently with the substance of the
letter of reference described in paragraph 11 and attached hereto as Exhibit A.
11. REFERENCE AND EXIT POSITIONING. The Company will provide you with a
letter of reference in the form attached hereto as Exhibit A, and will provide
mutually-agreed upon positioning regarding your exit from the Company.
12. ENFORCEMENT. In the event that you violate paragraphs 9 or 10 of this
Letter Agreement during the six (or nine)-month period of Salary and Incentive
Bonus Continuation payments described in paragraph 2, all payments described in
paragraph 2 shall cease. In the event that you violate paragraphs 9 or 10
following the Salary and Incentive Bonus Continuation period, or the Company
violates paragraph 10, the aggrieved party shall be entitled to an order
enjoining future violations and an award of $2,500.00 in liquidated damages for
each such violation.
13. ENTIRE LETTER AGREEMENT -- OTHER AGREEMENTS. This Letter Agreement
sets forth the full terms of the separation arrangement between you and the
Company, and supersedes any prior oral or written understanding. Notwithstanding
the previous sentence, the "Employee Confidentiality, Noncompetition and
Intellectual Property Assignment Agreement" executed by you on June 25, 1998,
including provisions relating to nondisclosure, noncompetition and
nonsolicitation of employees, remains in full force and effect.
14. GOVERNING LAW. This Letter Agreement will be governed by and
interpreted in accordance with the substantive laws of the Commonwealth of
Massachusetts without regard to conflicts of law principles.
15. REPRESENTATIONS. You represent that you understand the various claims
you could have asserted under M.G.L. c. 151B, the American with Disabilities
Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination In
Employment Act, and other such similar laws; that you have read this Letter
Agreement carefully and understand all of its provisions; that you understand
that you have the right to and are advised to consult an attorney concerning
this Letter
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January 14, 2000
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Agreement and in particular the waiver of rights you might have under these
laws; that the consideration received by you under this Letter Agreement is
above and beyond the payments or benefits otherwise owed to you under the terms
of your employment with the Company or required by law; that to the extent, if
any, that you desired, you availed yourself of this right; that you have been
provided at least twenty-one (21) days to consider whether to sign this Letter
Agreement; and that you enter this Letter Agreement and waive any claims
knowingly and willingly.
16. EFFECTIVE DATE. This Letter Agreement shall become effective seven (7)
days after it is signed. You may revoke this Letter Agreement within seven (7)
days after it is signed, and it shall not become effective or enforceable until
this seven (7) day revocation period has expired.
Please indicate your acceptance of the terms of this Letter Agreement by
signing below.
Very truly yours,
/s/ Xxxxx Xxxx
Xxxxx Xxxx
President and CEO
Agreed and accepted:
/s/ Xxxxx Xxxxxxxx 1/14/2000
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Xxxxx Xxxxxxxx
Xxxxxx X. Xxxxxxx
Notary Public
Commonwealth of Massachusetts
My Commission Expires
[illegible], 2005
[seal]
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Notary Public
My Commission Expires:
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