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EXHIBIT 10.13
SETTLEMENT AND RELEASE AGREEMENT
THIS SETTLEMENT AND RELEASE AGREEMENT is made and entered into as of the
31st day of July, 1999, by and between NewsReal, Inc. ("NewsReal"), located at
00 Xxxxx; Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000, and Xxxxx XxXxx ("Xx.
XxXxx"), residing at 00 Xxxxxxxx Xxxx, Xxxxxx, XX 00000-0000.
WHEREAS, Xx. XxXxx is a holder of 199,100 shares (the "Shares") of NewsReal
common stock, par value $.001 per share ("Common Stock"), and vested, time-based
options to purchase 199,500 shares of NewsReal Common Stock (the "Options"),
which Options were granted to Xx. XxXxx in October 1997 following the formation
of NewsReal; and
WHEREAS, Xx. XxXxx entered into an employment agreement with NewsReal dated
December 11, 1997 (the "Employment Agreement"), pursuant to which Xx. XxXxx
agreed to render certain services on behalf of NewsReal as Sr. Vice President of
Business Development, in exchange for a payment to Xx. XxXxx by NewsReal of
annual salary in the amount of $150,000 and for certain severance payments
("Severance Payments") in the event Xx. XxXxx is terminated without Cause or
resigns for Good Reason, as those terms are defined in the Employment Agreement;
and
WHEREAS, Xx. XxXxx desires to resign from employment with NewsReal,
effective July 31, 1999, on the terms and conditions set forth herein; and
WHEREAS, the parties to this settlement and release agreement desire to
settle any and all matters, claims and disputes between them without further
disputes regarding Xx. XxXxx'x ownership of the Shares and the Options during
his employment with NewsReal and with respect to any Severance Payments and the
rights and obligations arising under the Employment Agreement.
NOW, THEREFORE, IN CONSIDERATION of the terms and conditions set forth
below, the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. Xx. XxXxx agrees to voluntarily resign from his position as an officer and
employee of NewsReal, effective July 31, 1999 (the "Termination Date"), as set
forth in the resignation letter attached hereto. In connection with his
resignation and subject to the terms and conditions of this settlement and
release agreement, Xx. XxXxx agrees that his resignation was without "Good
Reason" (as that term is defined in section 8 of the Employment Agreement) and
hereby waives now and forever any claim he has or may have to any Severance
Payments under the Employment Agreement, as further set forth in section 6
hereof. Except for the Options and as a result of his resignation hereunder, Xx.
XxXxx acknowledges that he shall have no further ownership rights in any other
unvested time-based or performance-based options to purchase NewsReal Common
Stock or in any other equity issued by or on behalf of NewsReal on or before the
date of this settlement and release.
2. Subject to the terms and conditions of the Shareholders Agreement dated
December 11, 1997 and the Rights Agreement dated April 21, 1999, among NewsReal,
Xx. XxXxx and certain other shareholders of NewsReal (which agreements shall
remain in full force and effect and shall not be compromised or affected in any
way by this settlement and release), Xx. XxXxx is hereby permitted to continue
owning the Shares during and after the Extended Exercise Period (as defined in
section 3 below) and the Options during the Extended Exercise Period without
being required to sell or transfer any such Shares or Options under the "book
value" repurchase provisions of sections IV(a)(l)(ii) and
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IV(c)(ii) of the Amended and Restated Subscription Agreement between Xx. XxXxx
and NewsReal dated December 11, 1997 (the "Subscription Agreement"). To that
end, NewsReal hereby waives such repurchase rights under the Subscription
Agreement, so long as Xx. XxXxx does not violate or has not violated the
non-competition/non-circumvention and confidentiality provisions of sections 5
and 6 of the Employment Agreement, which provisions shall survive the
termination of the Employment Agreement as set forth in section 5 below.
3. NewsReal shall take any and all actions necessary to extend the exercise
period on the Options (the "Extended Exercise Period") until 5:00 p.m.
(Washington, D.C. time) on January 31, 2001.
4. Immediately following the closing of NewsReal's next round of private
equity financing, NewsReal shall pay Xx. XxXxx deferred compensation in the
amount of $5,625.00, which amount NewsReal acknowledges Xx. XxXxx previously
loaned to NewsReal and is currently due and payable to Xx. XxXxx.
5. Xx. XxXxx will continue to be bound by the non-competition/
non-circumvention and non-disclosure provisions of sections 5 and 6 of the
Employment Agreement for the required period following the Termination Date. In
connection therewith, NewsReal does not deem your employment with Xxxxxxx.xxx in
itself to be in violation of such non-competition provisions; provided, however,
NewsReal reserves the right to allege a violation of such non-competition and
non-disclosure provisions in the event Xx. XxXxx'x activities on behalf of
Xxxxxxx.xxx or any other party are in direct competition with NewsReal's
business activities and further reserves all other rights and privileges granted
under the Employment Agreement in connection with remedies for violation of such
non-competition and non-disclosure provisions.
6. Xx. XxXxx for himself, his successors and assigns, agents and servants,
hereby releases, acquits and forever discharges NewsReal, its successors and
assigns, and its former and present officers, directors, stockholders, agents,
servants, independent contractors and employees, from any and all manner of
action or actions, suits, claims, demands, judgments, letters or execution,
whether direct, indirect or derivative, liquidated or unliquidated, fixed or
contingent, which he, his successors and assigns, agents and servants ever had,
have or ever may have, can, shall or claim to have, relating to the ownership of
the Shares or the Options on or prior to the Termination Date, the obligation to
make any Severance Payments under the Employment Agreement or the rights or
obligations arising from or out of the Employment Agreement. Xx. XxXxx further
covenants and agrees that he will not voluntarily participate, either directly
as a plaintiff or complainant or indirectly as a witness or otherwise, in any
action, whether in law or in equity, against NewsReal, its former or present
officers, directors, stockholders, agents, servants, independent contractors,
employees, successors and assigns, in connection with any matter arising from or
out of his ownership of the Shares or the Options for events occurring during
his employment with the Company and the Extended Exercise Period or relating to
the Employment Agreement or any Severance Payments arising thereunder, unless
otherwise required by law. Xx. XxXxx agrees to indemnify and hold NewsReal, its
former or present officers, directors, stockholders, agents, servants,
independent contractors, employees, successors and assigns harmless from and
against any and all liability or causes of action that arise out of the matters
for which this release is being granted.
7. Except as provided in section 5 above, NewsReal, for itself, its successors
and assigns, agents and servants, hereby releases, acquits and forever
discharges Xx. XxXxx, his successors and assigns from any and all manner of
action or actions, suits, claims, demands, judgments, letters or execution,
whether direct, indirect or derivative, liquidated or unliquidated, fixed or
contingent, which NewsReal,
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its successors and assigns, agents and servants ever had, have or ever may
have, can, shall or claim to have, relating to Xx. XxXxx'x ownership of the
Shares and the Options prior to the Termination Date and matters arising out of
Xx. XxXxx'x employment with the Company. Except as provided in section 5 above,
NewsReal further covenants and agrees that it will not voluntarily participate,
either directly as a plaintiff or complainant or otherwise, in any action,
whether in law or in equity, against Xx. XxXxx, his successors and assigns, in
connection with his ownership of the Shares or the Options or relating to the
Employment Agreement. NewsReal agrees to indemnify and hold Xx. XxXxx, his
successors and assigns harmless from and against any and all liability or
causes of action that arise out of matters for which this release is being
granted.
8. This settlement and release is in full and final compromise, settlement
and satisfaction of all claims by each party against the other party in
connection with the matters covered by the release, and the payment and
acceptance of the consideration herein before recited does not constitute and
shall not be construed as an admission of liability by either party, or the
waiver by either party of its other rights and obligations, which rights and
obligations shall remain in full force and effect.
9. The terms and conditions of this settlement and release and the
circumstances surrounding Xx. XxXxx'x employment with and resignation from
NewsReal, his ownership of the Shares and the Options and the terms and
conditions of the Employment Agreement, the Shareholders Agreement, the Rights
Agreement and all other documents executed by Xx. XxXxx in connection with such
matters shall be kept confidential by Xx. XxXxx and NewsReal, and shall not be
voluntarily disclosed by either party to any other person, business, firm,
partnership, joint venture, or corporation, or its officers, directors,
stockholders, partners, agents, venturers, representatives, servants,
independent contractors or employees, or to any agency, employee or
representative of the federal, state or District of Columbia government or any
other government without the prior written consent of the other party to this
release. The damages for breach by either party of the confidentiality
provisions in this section will cause irreparable harm to the other party and
are difficult to ascertain and, therefore, either party shall be permitted to
exercise any right or assert the existence of any remedy which he or it may
have for the breach of such confidentiality provisions, including, without
limitation, obtaining permanent injunctive or equitable relief for any such
breach.
10. This settlement and release agreement reflects the entire agreement
between the parties, and that its terms are contractual and not merely recitals.
11. The laws of the Commonwealth of Virginia shall govern this settlement and
release agreement, and any provision of this settlement and release which is
ruled invalid under the laws of the Commonwealth of Virginia shall be invalid
only with respect to that provision, without invalidating the remaining
provisions of this settlement and release. The parties expressly consent and
agree to be subject to the exclusive jurisdiction of the courts of the
Commonwealth of Virginia in connection with any dispute arising out of this
settlement and release agreement.
12. Xx. XxXxx has read and understands the terms and conditions of this
settlement and release, and has reviewed the terms or has had the opportunity
to review the terms of this settlement and release with his attorney.
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IN WITNESS WHEREOF, the undersigned have executed this settlement and
release as of the date first written above.
NEWSREAL, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, President & Chief Executive Officer
/s/ Xxxxx XxXxx
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Xxxxx XxXxx
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XXXXX XXXXX
00 XXXXXXXX XXXX
XXXXXX, XX 00000-0000
July 31, 1999
To the Board of Directors of NewsReal, Inc.:
Gentlemen:
I hereby resign as an officer of NewsReal, Inc., effective July 31, 1999.
Sincerely,
/s/ Xxxxx XxXxx
Xxxxx XxXxx
