Exhibit 10.25
SEPARATION AGREEMENT
AND GENERAL RELEASE
This Separation Agreement and General Release ("Agreement") is
made and entered into this 18th day of November, 2002, by and between
Xxxxxxxx.xxx, Inc. (hereinafter the "Company" or "Employer") and Xxxxx Xxxxxx
("Employee") (hereinafter collectively referred to as the "Parties"), and is
made and entered into with reference to the following facts.
RECITALS
WHEREAS, Employee was hired by the Company on or about June
28, 2001, pursuant to a Letter Agreement of Employment (the "Employment
Agreement"), as its Chief Operating Officer; and
WHEREAS, the Company sold Employee 15,420 restricted shares of
the Company's common stock pursuant to a Stock Issuance Agreement, dated June
28, 2001 (the "First Stock Grant"); and
WHEREAS, the Company provided Employee with a loan in the
amount of $97,463.32 pursuant to a Promissory Note, dated July 25, 2001 (the
"Employee Loan"), of which $64,975.55 is outstanding; and
WHEREAS, the Company provided Employee with a second grant of
34,247 shares of the Company's common stock pursuant to a Stock Issuance
Agreement, dated August 13, 2002 (the "Second Stock Grant"); and
WHEREAS, the Company has made stock option grants to Employee,
a portion of which have vested (the "Options"); and
WHEREAS, the Company and Employee have agreed to terminate
their employment relationship effective October 29, 2002; and
WHEREAS, the Parties each desire to resolve any potential
disputes that exist or may exist arising out of Employee's employment with the
Company and/or the termination thereof.
NOW THEREFORE, in consideration of the covenants and promises
contained herein, the Parties hereto agree as follows:
AGREEMENT
1. Agreement By the Employee. In exchange for the payments
described in paragraph 2 below and the other agreements of the Company contained
herein, Employee agrees to the following:
(a) that his employment with the Company is
terminated effective October 29, 2002
(hereinafter the "Termination Date"); and
(b) to be bound by the terms of this entire
Agreement.
2. Agreement By the Company. In exchange for Employee's
agreement to be bound by the terms of this entire Agreement, including but not
limited to the Release of Claims in paragraph 3, the Company agrees to the
following:
(a) the Company agrees to classify the
Employee's termination as without "Cause";
and
(b) the Company acknowledges that, pursuant to
the Employment Agreement, the unpaid
principal and interest of the Employee Loan
shall be forgiven as of the Effective Date;
and
(c) the Company shall pay to the Employee a
lump-sum payment, in the amount of thirty
thousand Dollars ($30,000), less statutory
deductions and withholdings relating to this
payment and the forgiveness of the Employee
Loan, payable upon the first regularly
scheduled payroll date following the
Effective Date, as defined below.
Employee acknowledges that, absent this Agreement, he has no
legal, contractual or other entitlement to the consideration set forth in this
paragraph and that the amount set forth in this paragraph constitute valid and
sufficient consideration for Employee's release of claims and other obligations
set forth herein. Specifically, Employee waives any additional payments or
benefits under the Employment Agreement. Employee further acknowledges and
agrees that no portion of the First Stock Grant or the Second Stock Grant has
vested, and the Company intends to exercise its right to repurchase all of the
stock granted to Employee pursuant to the respective Stock Issuance Agreements,
which shall continue to govern the terms of the First and Second Stock Grants.
Employee further agrees to undertake all necessary actions to effect the
Company's exercise of its repurchase right, including surrendering any stock
certificates issued to Employee in connection with the First or Second Stock
Grants.
3. Release of Claims. Employee hereby expressly waives,
releases, acquits and forever discharges the Company and its divisions,
subsidiaries, affiliates, parents, related entities, partners, officers,
directors, shareholders, investors, executives, managers, employees, agents,
attorneys, representatives, successors and assigns (hereinafter collectively
referred to as "Releasees"), from any and all claims, demands, and causes of
action which Employee has or claims to have, whether known or unknown, of
whatever nature, which exist or may exist on Employee's behalf from the
beginning of time up to and including the date of this Agreement. As used in
this paragraph, "claims," "demands," and "causes of action" include, but are not
limited to, claims based on contract, whether express or implied, including but
not limited to any claims to entitlement to payments or benefits under the
Employment Agreement, fraud, stock fraud, defamation, wrongful termination,
estoppel, equity, tort, retaliation, intellectual property, personal injury,
spoliation of evidence, emotional distress, public policy, wage and hour law,
statute or common law, claims for severance pay, claims related to stock options
and/or fringe benefits, claims for attorneys' fees, vacation pay, debts,
accounts, compensatory damages, punitive or exemplary damages, liquidated
damages, and any and all claims arising under any federal, state, or local
statute, law, or ordinance prohibiting discrimination on account of race, color,
sex, age, religion, sexual orientation, disability or national origin, including
but not limited to, the New York Human Rights Law, the New York City
Administrative Code, the Age Discrimination in Employment Act, Title VII of the
Civil Rights Act of 1964 as amended, the Americans with Disabilities Act, the
Family and Medical Leave Act or the Employee Retirement Income Security Act.
This release shall not affect any rights to indemnification pursuant to the
Company's Amended and Restated Certificate of Incorporation and/or to insurance
coverage pursuant to such directors and officers insurance policy as the Company
may maintain. The Company will not remove Employee from coverage under any such
policy.
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The Company hereby expressly waives, releases, acquits and
forever discharges the Employee from any and all claims, demands, and causes of
action which the Company has or claims to have, whether known or unknown, of
whatever nature, which exist or may exist on the Company's behalf from the
beginning of time up to and including the date of this Agreement, provided,
however that the foregoing release shall not apply to acts of intentional
malfeasance committed by the Employee against the Company which are unknown to
the Company at the time it executes this Agreement.
4. Last Date of Employment. It is understood and agreed that
Employee's last date of employment with Employer is October 29, 2002.
5. Receipt of Wages and Other Compensation. Employee
acknowledges and agrees that, prior to his execution of this Agreement, he has
received payment for all wages, salary, bonuses, accrued vacation and all other
compensation owed to Employee by the Company.
6. Company Property/Proprietary Information. Employee agrees
to continue to abide by the terms of the Proprietary Information, Inventions and
Non-Solicitation Agreement, the terms of which are incorporated herein by
reference and a copy of which is attached hereto as Attachment A.
7. Acceptance of Agreement/Revocation. This Agreement was
received by Employee on October 29, 2002. Employee may accept this Agreement by
returning a signed original to the Company. This Agreement shall be withdrawn if
not accepted in the above manner on or before November 19, 2002 Employee shall
have seven (7) days after signing this Agreement to revoke it by delivering
written confirmation of revocation to the Company within the seven (7) day
period. The eighth day following Employee's execution and delivery of this
Agreement shall be the "Effective Date."
8. Non-Admission of Liability. The Company denies any
wrongdoing whatsoever in connection with its dealings with Employee, including
but not limited to Employee's employment and termination. Employee denies any
wrongdoing whatsoever in connection with his dealings with the Company. It is
expressly understood and agreed that nothing contained in this Agreement shall
constitute or be treated as an admission of any wrongdoing or liability on the
part of the Company or the Employee.
9. No Filing of Claims. Employee represents and warrants that
he does not presently have on file, and further represents and warrants that he
will not hereafter file, any claims, charges, grievances or complaints against
any of the Releasees (defined above) in or with any administrative, state,
federal or governmental entity, agency, board or court, or before any other
tribunal or panel or arbitrators, public or private, based upon any actions or
omissions by the Releasees occurring prior to the date of this Agreement.
10. Ownership of Claims. Employee represents and warrants that
he is the sole and lawful owner of all rights, title and interest in and to all
released matters, claims and demands referred to herein. Employee further
represents and warrants that there has been no assignment or other transfer of
any interest in any such matters, claims or demands which she may have against
the Releasees. The Company represents and warrants that it is the sole and
lawful owner of all rights, title and interest in and to all released matters,
claims and demands referred to herein. The Company further represents and
warrants that there has been no assignment or other transfer of any interest in
any such matters, claims or demands which it may have against Employee.
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11. Confidentiality. Employee understands and agrees that,
until this Agreement is publicly filed, this Agreement, and the matters
discussed in negotiating its terms, are entirely confidential. It is therefore
expressly understood and agreed that Employee will not reveal, discuss, publish
or in any way communicate any of the terms, amount or fact of this Agreement to
any person, organization or other entity, with the exception of his immediate
family members and professional representatives, unless required by subpoena or
court order. Employee further agrees that he will not, at any time in the
future, make any statements to any third parties that disparage any of the
Releasees personally or professionally. The Company further agrees that its
officers, executives and directors will not, at any time in the future, make any
statements to any third parties that disparage Employee personally or
professionally.
12. Tax Indemnification. It is understood and agreed that
Employee is liable for all tax obligations, if any, with respect to the
settlement payments provided for herein. Employee agrees to indemnify, defend
and hold harmless Employer from any and all taxes, assessments, penalties, loss,
costs, attorneys' fees, expenses or interest payments that Employer may at any
time incur by reason of any demand, proceeding, action or suit brought against
Employer arising out of or in any manner related to any local, state or federal
taxes owed by Employee in connection with this Agreement.
13. New York Law Applies. This Agreement, in all respects,
shall be interpreted, enforced and governed by and under the laws of the State
of New York. Any and all actions relating to this Agreement shall be filed and
maintained in the federal and/or state courts located in the State of New York,
and the parties consent to the jurisdiction of such courts. In any action
arising out of this Agreement, or involving claims barred by this Agreement, the
prevailing party shall be entitled to recover all costs of suit, including
reasonable attorneys' fees.
14. Successors and Assigns. The Parties expressly understand
and agree that this Agreement, and all of its terms, shall be binding upon their
representatives, heirs, executors, administrators, successors and assigns.
15. Consultation with Counsel. Employee acknowledges that he
has been advised to consult with legal counsel of his choice prior to execution
and delivery of this Agreement.
16. Integration. Except as otherwise specifically provided
for, this Agreement constitutes an integrated, written contract, expressing the
entire agreement between the Parties with respect to the subject matter hereof.
In this regard, Employee represents and warrants that he is not relying on any
promises or representations which do not appear written herein. Employee further
understands and agrees that this Agreement can be amended or modified only by a
written agreement, signed by all of the Parties hereto.
17. Counterparts. This Agreement may be executed in separate
counterparts and by facsimile, and each such counterpart shall be deemed an
original with the same effect as if all Parties had signed the same document.
18. Headings. The headings in each paragraph herein are for
convenience of reference only and shall be of no legal effect in the
interpretation of the terms hereof.
19. Severability. If any provision in this Agreement is held
to be invalid, the remainder of this Agreement shall not be affected by such a
determination.
20. Voluntary Agreement. EMPLOYEE UNDERSTANDS AND AGREES THAT
HE MAY BE WAIVING SIGNIFICANT LEGAL RIGHTS BY SIGNING THIS AGREEMENT, AND
REPRESENTS THAT HE HAS ENTERED INTO THIS AGREEMENT KNOWINGLY AND VOLUNTARILY,
WITH A FULL UNDERSTANDING OF AND IN AGREEMENT WITH ALL OF ITS TERMS.
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IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement on the dates provided below.
DATED: November 14, 2002 XXXXXXXX.XXX, INC.
By: /s/ Xxxx Xxxx
-------------------------------
Its: VP & General Counsel
DATED: November 18th, 2002 XXXXX XXXXXX
/s/ Xxxxx Xxxxxx
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