Exhibit 10.3
AGREEMENT
AGREEMENT, made as of June 22, 2001, by and among STONEPATH GROUP, INC.
(the "Company"), a corporation organized and existing under the laws of the
State of Delaware and XXX XXXXXX, ("Xxxxxx"), an individual presently residing
within the State of California.
W I T N E S S E T H
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WHEREAS, the Company and Xxxxxx are parties to an employment agreement
dated September 15, 1999 (the "Employment Agreement") pursuant to which Xxxxxx
served as an officer and/or director of the Company;
WHEREAS, the Company and Xxxxxx desire to terminate the Employment
Agreement, together with any and all other arrangements, agreements or
understandings between them, and except as otherwise set forth herein, to
terminate any and all claims that relate in any manner to any matter arising out
of or relating in any way to Xxxxxx'x employment with or severance from the
Company, or that otherwise relate to Xxxxxx'x relationship with the Company, and
to take the other actions as provided below;
WHEREAS, in conjunction with the termination of all such agreements and
arrangements, Xxxxxx does hereby tender his resignation from the Company's Board
of Directors as of the effective date set forth in Paragraph 1 hereafter.
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein, the parties hereto, intending to be legally bound hereunder,
agree as follows:
1. Resignation and Termination of Services.
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1.1 Xxxxxx hereby resigns as an officer, director and
employee of the Company, effective as of June 22, 2001 and the Company hereby
accepts such resignation. Xxxxxx confirms that such resignation is not related
to or as a result of, a disagreement relating to the Company's operations,
policies or practices. The Company agrees that in any publicly released
materials it will attribute the resignation to "Xx. Xxxxxx'x election to pursue
other professional endeavors." Xxxxxx and the Company further agree to
terminate, effective June 22, 2001, the Employment Agreement, together with any
and all other arrangements, agreements and understandings between them relating
in any way or manner to Xxxxxx'x employment by the Company or services on behalf
of the Company; provided, however, that the provisions of the Employment
Agreement relating to: (i) Xxxxxx'x Non-Disclosure Covenant; and (ii) the
Company's obligations to indemnify and hold Xxxxxx harmless, shall survive the
termination thereof.
2. Release of Obligations.
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2.1 By Xxxxxx
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(a) Except for the Company's obligations set forth
herein and subject to the Company fulfilling its obligations as set forth
herein, Xxxxxx agrees to and does hereby release, remise and forever discharge
the Company (including its officers, directors and current employees all as
third party beneficiaries) from and against any and all claims, obligations,
actions, causes of action, demands, debts and responsibilities, now or hereafter
existing, from the beginning of the world until the date hereof, particularly
with respect to any and all such claims, causes of action, demands, notes or
actions which in any way relate to his status as an employee, officer or
director of the Company and with regard to the termination of the Employment
Agreement and with respect to or in connection with any other subject matter of
this Agreement.
(b) The general release above shall extend to and
cover without limitation claims, demands, liabilities, responsibilities, causes
of action, obligations, damages, liens, costs and expenses arising out of or
relating in any way to the employment relationship, the termination of the
employment relationship, title VII of the Civil Rights Act of 1964, and any
similar or analogous state of California law or regulation, including without
limitation the California Fair Employment and Housing Act or any similar or
analogous federal, state or local legislation or regulation relevant or
applicable to the employment relationship.
(c) Xxxxxx specifically waives the benefits of
Section 1542 of the California Civil Code that provides:
"A general release does not extend to claims
that 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."
2.2 By the Company.
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Except for his obligations hereunder and subject to Xxxxxx
fulfilling his continuing obligations as set forth hereafter, the Company agrees
to and does hereby release, remise and forever discharge Xxxxxx from and against
any and all claims, demands, actions, causes of action, notes, debts or
obligations from the beginning of the world until the date hereof including,
among others, those matters arising with respect to the services performed by
Xxxxxx under and pursuant to the Employment Agreement or in connection with his
status as an employee, officer or director of the Company. Furthermore, the
Company specifically waives the benefits of Section 1542 of the California Code
that provides:
"A general release does not extend to claims
that 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."
3. Continuous Obligations.
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3.1 Xxxxxx agrees, that for and in consideration of
compliance by the Company of the covenants and agreements contained herein, he
shall continue to be bound by paragraph 7 of his Employment Agreement,
"Non-Disclosure Covenant", the terms of which shall survive this Agreement.
3.2 The Company agrees that for and in consideration of
compliance by Xxxxxx of the covenants and agreements contained herein, it shall
continue to indemnify and hold Xxxxxx harmless in the manner and to the extent
provided for upon Exhibit A to the Employment Agreement, the terms of which
shall survive this Agreement.
4. Consideration.
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4.1 In consideration of the covenants and agreements
contained herein, Xxxxxx shall receive as sole, total and exclusive cash
consideration hereunder, the sum of $85,000 as severance, less any amounts
required to be withheld under applicable tax laws, payable within five (5) days
of the date hereof.
4.2 In addition to the consideration set forth above, the
Company shall agree at its own expense, for a period of six (6) months from the
date hereof, to maintain Xxxxxx and family as a participant in the major medical
or group health plan available to its other employees as of the date hereof.
4.3 In further consideration of the covenants and
agreements contained herein, the Company does hereby agree to accelerate the
vesting of that number of Options Xxxxxx was entitled to had he remained an
employee of the Company for an additional period of six (6) months from June 30,
2001. Xxxxxx and the Company agree that Xxxxxx would be entitled to an
additional 135,000 Options. Inclusive of the Options accelerated by virtue of
the above, the Company and Xxxxxx agree that Xxxxxx shall be the beneficial
owner of Options to purchase 697,500 shares of the Company's common stock, and
the terms of such Options shall be set forth entirely and exclusively within the
"Option to Purchase Common Stock of Stonepath Group, Inc., Non-Plan Option No.
2001-1" attached hereto as Exhibit "A". Furthermore, as soon as practicable
after the date of this Agreement the Company intends to file and cause to become
effective a registration statement on Form S-8 with the Securities and Exchange
Commission covering shares issuable by the Company upon exercise of stock
options including those shares issuable to Xxxxxx upon exercise of options held
by him.
5. Affirmative Covenants.
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5.1 Advisory Services.
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(a) For a period of six (6) months from the date hereof,
Xxxxxx agreesto provide advisory services on a limited basis, to, or on behalf
of, the Company. In this regard, Xxxxxx shall be required to respond to
telephonic inquiries of employees or members of the Board of Directors of the
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Company and to otherwise provide general assistance in connection with business
or legal matters as they relate to the Company, primarily in connection with
confirming matters or providing information relative to matters as to which he
had principal responsibility while in the employ of the Company.
(b) With respect to facts and circumstances arising during the
performance of advisory services by Xxxxxx, including service on the board of
directors of a portfolio investment, the Company will indemnify and hold Xxxxxx
harmless in the manner and to the extent provided for upon Exhibit A to the
Employment Agreement.
(c) The Company will reimburse Xxxxxx for reasonable expenses
incurred by him in the performance of advisory services to the Company or in
connection with his participation in the defense of litigation against the
Company or its officers and directors.
5.2 Return of Company Materials.
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Xxxxxx has, or will upon the execution hereof,
deliver to the Company or destroy any and all Company property in his possession
or under his control. For the purpose of this paragraph, the term "property"
means all files, memoranda, minutes of Board meetings, employee files,
documents, papers, agreements, keys, credit cards, items, records, computer
hardware, computer software, computer apparatus, items of personal property,
machinery and equipment or other materials, that belong to the Company, were
taken from the premises of the Company or were purchased with funds or in the
name of the Company.
5.3 Non-Disparagement.
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(a) Xxxxxx agrees that he shall not make or
publish any negative, critical, disparaging, slanderous, or libelous statements
about the Company or any of its officers, directors, agents, employees, or
representatives, and unless (and then only to the extent required by law), shall
not disclose the terms and provisions of this Agreement to any third party.
(b) The Company agrees that neither it nor its
officers, directors, agents, employees, or representatives shall make or publish
negative, critical, disparaging, slanderous, or libelous statements about
Xxxxxx, and unless (and then only to the extent required by law), shall not
disclose the terms and provisions of this Agreement to any third party.
6. Standstill Provision.
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For and in consideration of the mutual covenants and premises
contained herein, for a period of one (1) year, neither Xxxxxx nor any family
member (defined for this purpose to include his spouse and children) or company,
partnership or trust in which Xxxxxx (or such family member) owns five (5%)
percent more of its equity or voting interests or for which Xxxxxx serves as an
employee, agent, officer, director or partner will: (i) for the purposes of
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subparagraphs (ii) or (iii) hereafter, acquire, offer to acquire, or agree to
acquire, directly or indirectly, by purchase or otherwise, any voting securities
or direct or indirect rights or options to acquire any voting securities of the
Company; (ii) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies" to vote (as such terms are interpreted in the proxy
rules of the Securities and Exchange Commission), or seek to advise or influence
any person or entity with respect to the voting of any voting securities of the
Company, or (iii) form, join or in any way participate in a "group" within the
meaning of Section 13(d)(3) of the Securities Exchange Act of 1934 with respect
to any voting securities of the Company for the purpose of seeking to control
the management, Board of Directors or policies of the Company. Further, the
parties acknowledge the Company would not have an adequate remedy at law for
money damages in the event that this covenant were not performed in accordance
with its terms and therefore Xxxxxx agrees that the Company shall be entitled to
specific enforcement of the terms hereof in additional to any other remedy to
which it may be entitled, at law or in equity.
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7. Notice.
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Any notice required or permitted to be given under this
Agreement shall be sufficient, if in writing, and if sent by registered mail to
Xxxxxx at:
0000 Xxxxxxx Xxxxxx
Xxxxxxxxx 000
Xxx Xxxxxxxxx, XX 00000
or to the Company at its principal place of business.
8. Applicable Law.
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This Agreement shall be construed in accordance with the laws
of the State of Delaware.
9. Entire Agreement.
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This instrument contains the entire agreement of the parties.
It may not be changed orally but only by an agreement in writing signed by the
party against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
10. Signatures of Counterpart.
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This Agreement may be executed in multiple counterparts, each
of which shall constitute an original, but all of which taken together shall
constitute one and the same instrument.
11. Binding Obligation.
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Xxxxxx understands that this Agreement constitutes a binding,
legal obligation on Xxxxxx'x part, and that after signing it, Xxxxxx will not be
able to bring suit or make any other kind of claim against Company or anyone
else with respect to any matter arising out of Xxxxxx'x employment with Company
or Xxxxxx'x termination from that employment.
12. Counsel Review.
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Xxxxxx acknowledges that he has read and understands the contents of
this Agreement. Xxxxxx acknowledges that he has been specifically advised by
Company to consult with an attorney before signing it. Xxxxxx acknowledges that
he has executed this Agreement voluntarily and of his own free will, without
coercion and with full knowledge of what it means to do so.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
ATTEST: STONEPATH GROUP, INC.
_____________________________ By: _____________________________
WITNESS:
_____________________________ _________________________________
XXX X XXXXXX
