Agreement and Release - Authentidate Holding Corp. and Peter R. Smith
AGREEMENT AND RELEASE
CONSULT WITH AN ATTORNEY BEFORE SIGNING THIS AGREEMENT AND RELEASE.
BY SIGNING THIS AGREEMENT AND RELEASE, YOU GIVE UP AND WAIVE IMPORTANT LEGAL RIGHTS.
WHEREAS, Smith has been an employee of AHC, and
WHEREAS, Smith has been employed pursuant to a written offer letter dated as of November 4, 2003 (the “Offer Letter”); and
WHEREAS, Employee and AHC each desire an amicable cessation of the employment relationship,
NOW, THEREFORE, in consideration of the covenants and promises contained herein and for other good and valuable consideration, receipt of which is hereby acknowledged, Employee and AHC (who hereinafter collectively may be referred to as the “Parties”) hereby agree as follows:
1. Employee acknowledges and agrees that effective the close of business December 31, 2004, Employee’s employment is terminated (the “Termination Date”).
2. In consideration for Employee’s execution of this Agreement, and in consideration for the release of claims against AHC, the Company will give Employee the following:
b. Subject to Employee’s compliance with the provisions of this Agreement, Employee shall receive a severance benefit of up to 12 months of his current base salary of $300,000 (“Severance Payments”), payable in equal installments on each of the Company's regular pay dates for executives, commencing on the first regular executive pay date following the Termination Date (such 12 month period commencing on the Termination Date may be referred to herein as the “Severance Period”). Notwithstanding the foregoing, the Company’s obligation to pay the Severance Payments shall immediately cease: (i) on June 30, 2005, in the event Employee accepts or commences new full-time employment on or before June 30, 2005; (ii) upon the date that Employee commences new full-time employment if such event occurs after June 30, 2005 but before December 31, 2005; or (iii) if Employee does not accept new full-time employment during the Severance Period, on December 31, 2005.
B. Subsequent to June 30, 2005, in the event Employee fails to promptly advise the Company that he has accepted or commenced new employment during the Severance Period, Employee will be deemed to have committed a material breach of this Agreement and shall immediately refund all Severance Payments made by the Company subsequent to the Termination Date.
C. For the purposes of this Agreement, the term “full-time employment” shall mean becoming an employee (or co-employee) of another employer without regard to the level of compensation earned or available thereunder. Full-time employment shall also include any consultancy or other self-employment whereby Employee provides services to third parties and has a reasonable expectation to provide such services for a period longer than three consecutive months on a basis substantially similar to those he would receive in an employment relationship.
4. Employee understands that this Agreement does not constitute an admission by the Company of any liability, error or omission, including without limitation, any: (a) violation of any statute, law, or regulation; (b) breach of contract, actual or implied; or (c) commission of any tort.
5. Employee acknowledges that the consideration provided in this Agreement exceed that to which Employee would otherwise be entitled under the normal operation of any benefit plan, policy or procedure of the Company or under any previous agreement (written or oral) between Employee and the Company. Employee further acknowledges that the agreement by AHC to provide consideration pursuant to this Agreement beyond Employee’s entitlement is conditioned upon Employee’s release of all claims against AHC and Employee’s compliance with all the terms and conditions of this Agreement.
b. The Parties’ agreement to arbitrate disputes includes, but is not limited to, any claims of unlawful discrimination and/or unlawful harassment under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act 1967, as amended, the Americans with Disabilities Act, the New Jersey and New York Civil Rights Laws, the New Jersey Law Against Discrimination, the New York Executive Law, the New York City Human Rights Law, the New Jersey Conscientious Employee Protection Act, the New Jersey Family Leave Act, or any other federal, state or local law relating to discrimination in employment and any claims relating to wage and hour claims and any other statutory or common law claims.
10. Employee agrees that in consideration for the payments and other consideration provided in this Agreement, Employee will not, for a period of one (1) year following the Termination Date, directly or indirectly, enter into or become associated with or engage in any other business (whether as a partner, officer, director, shareholder, employee, consultant, or otherwise), which business is primarily involved in the manufacture, development and distribution of computers and/or document imaging systems, or digital image authentication or is otherwise engaged in the same or similar business as the Company in direct competition with the Company, or which the Company was in the process of developing, during the tenure of Employee’s employment by the Company (a “Competitive Business”). Notwithstanding the foregoing, the ownership by Employee of less than five percent of the shares of any publicly held corporation shall not violate the provisions of this provision. In furtherance of the foregoing, Employee shall not during the aforesaid period of non-competition, directly or indirectly, (a) solicit any customer, employee or prospective customers (a customer that was being solicited by the Company during the time of his employment) of the Company who was a customer, employee or prospective customer of the Company during the tenure of his employment or (b) otherwise interfere in any manner with the business of the Company.
12. Employee agrees that as long as Employee is entitled to receive any payments under this Agreement, Employee shall not make any negative or derogatory statements in verbal, written, electronic or any other form about the Company, or its officers, employees and directors including, but not limited to, a negative or derogatory statement made in, or in connection with, any article or book, on a website, in a chat room or via the internet.
b. General. In consideration of the Company’s payments hereunder, for a period of sixty (60) days after the Termination Date, Employee shall make himself reasonably available to, and cooperate with, the Company and its officers, directors, employees and advisors in order to assist the Company in (i) reviewing matters that were Employee’s responsibility prior to the Termination Date and (ii) transitioning to new personnel.
15. Employee realizes there are many laws and regulations prohibiting employment discrimination, or otherwise regulating employment or claims related to employment pursuant to which Employee may have rights or claims. These include but are not limited to Title VII of the Civil Rights Act of 1964, as amended; the Americans with Disabilities Act of 1990; the Pregnancy Discrimination Act; the National Labor Relations Act, as amended; 42 U.S.C 1981; the Employee Retirement Income Security Act of 1974, as amended; the Age Discrimination in Employment Act of 1967, as amended; the Civil Rights Act of 1991; the Worker Adjustment and Retraining Notification Act; the New York State and City Human Rights Laws; the New Jersey Law Against Discrimination; the New Jersey Conscientious Employee Protection Act, the New Jersey Family Leave Act, and other Federal, State and local human rights, fair employment and other laws. Employee also understands there are other statutes and contract and tort laws which relate to Employee’s employment and/or the termination of Employee’s employment. Employee hereby knowingly and voluntarily agrees to waive and release any rights or claims Employee may have under these and other laws, but does not intend to, nor is Employee waiving any rights or claims that may arise after the date that this Agreement is signed by Employee. Notwithstanding the foregoing sentence, Employee’s waiver and release shall not extend to (i) any rights, remedies, or claims Employee may have in enforcing the terms of the Agreement; and (ii) any rights Employee may have to receive vested amounts under AHC’s stock option plans or pension plans.
16. This Agreement shall be deemed to have been made within the County of New York, State of New York, and shall be interpreted and construed and enforced in accordance with the laws of the State of New York without regard to its conflicts of law provision.
17. Employee is hereby advised of Employee’s rights to review this Agreement with counsel of Employee’s choice. Employee has had the opportunity to consult with an attorney and/or other advisor of Employee’s choosing before signing the Agreement, and was given a period of twenty-one (21) days to consider the Agreement. Employee is permitted, at his discretion, to return the Agreement prior to the expiration of this 21-day period. Employee acknowledges that in signing this Agreement, Employee has relied only on the promises written in this Agreement, and not on any other promise made by the Company or any other entity or person.
18. Employee shall, subject to the reasonable requirements of new employment, cooperate fully with the Company in the prosecution or defense, as the case may be, of any and all actions, governmental inquiries or other legal or regulatory proceedings in which Employee’s assistance may be reasonably requested by the Company, until December 31, 2005. Subsequently, Employee and Company may agree to Employee’s assistance for an agreed upon fee.
20. Employee agrees to immediately return any AHC property in his possession or custody or under his control, no matter where located including, but not limited to, AHC I.D. or security cards, corporate credit card, keys, computer disks, equipment, furniture, computers, peripherals and other electronic devices, and any written or electronic material prepared or received in the course of his employment at AHC, including without limitation, memoranda, reports, files, correspondence, manuals, notes, specifications, data, whether existing in hard copy or other media.
21. If any provision of this Agreement, or any part thereof, is held to be invalid or unenforceable because of the scope or duration of or the area covered by such provision, Employee and AHC agree that the court or other appropriate decision-making authority making such determination shall reduce the scope, duration and/or area of such provision (and shall substitute appropriate provisions for any such invalid or unenforceable provisions) in order to make such provision enforceable to the fullest extent permitted by law and/or shall delete specific words and phrases, and such modified provision shall then be enforceable and shall be enforced. In the event that any court or other appropriate decision-making authority determines that the time period or the area, or both, are unreasonable and that any of the covenants is to that extent invalid or unenforceable, the parties hereto agree that such covenants will remain in full force and effect, first, for the greatest time period, and second, in the greatest geographical area that would not render them unenforceable. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall nonetheless survive and be enforced to the fullest extent permitted by law.
22 .Except as otherwise expressly provided herein, this Agreement and Release, together with the General Release attached hereto, constitute the entire agreement between the Parties and supersede any and all prior agreements, whether written or oral. This Agreement may not be modified or changed, except in a written agreement signed by both Parties.
23. The Agreement may be executed in multiple counterparts, each of which shall be considered an original but all of which shall constitute one agreement.
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I have read this Agreement, and I understand all of its terms. I enter into and sign this Agreement knowingly and voluntarily with full knowledge of what it means. I understand that I have twenty-one (21) days to consider this Agreement and return it to AHC. I also understand that I have seven (7) days to revoke this Agreement in writing after I sign it. I understand that a revocation will become effective only if I furnish AHC with written notice, within such seven (7) day period. This Agreement will not become effective or enforceable until AHC’s receipt back of Employee’s executed Agreement and the expiration of the seven day revocation period.
|/s/ Peter R. Smith |
Peter R. Smith
|February 4, 2005 |
Authentidate Holding Corp.
/s/ Surendra Pai
February 8, 2005
CONSULT WITH AN ATTORNEY BEFORE SIGNING GENERAL RELEASE. BY SIGNING THIS GENERAL RELEASE, YOU GIVE UP AND WAIVE IMPORTANT LEGAL RIGHTS.
In consideration of the payments, benefits, agreements, and other consideration to be provided by Authentidate Holding Corp. as described in the agreement of which this General Release is a part (such agreement, this General Release, together, the “Agreement”), Peter R. Smith, for himself or herself and for his heirs, executors, administrators, and their respective successors and assigns (collectively, “Employee”), HEREBY RELEASES AND FOREVER DISCHARGES, to the maximum extent permitted by law, Authentidate Holding Corp., its stockholders, subsidiaries, affiliates, divisions, successors and assigns, their respective current and former officers, directors, employees, agents, attorneys, whether as individuals or in their official capacity, and each of their respective successors and assigns (hereinafter collectively referred to as “AHC”) of and from all or any manner of actions, causes and causes of action, suits, debts, obligations, damages, complaints, liabilities, losses, covenants, contracts, controversies, agreements, promises, variances, trespasses, judgments and expenses (including attorneys’ fees and costs), extents, executions, claims and demands whatsoever at law or in equity (“claims”), specifically including by way of example but not limitation, Title VII of the Civil Rights Acts of 1964 and 1991, as amended; the Civil Rights Act of 1866; the Employee Retirement Income Security Act of 1974, as amended; the National Labor Relations Act, as amended; the Americans with Disabilities Act of 1990; the Age Discrimination in Employment Act of 1967, as amended; the Worker Adjustment and Retraining Notification Act; the Pregnancy Discrimination Act; and all Federal, State and local statutes, regulations, decisional law and ordinances and all human rights, fair employment, contract and tort laws relating to Employee’s employment with AHC and/or the termination thereof including, again by way of example but without limitation, the New Jersey and New York Civil Rights Laws, the New Jersey Law Against Discrimination, the New York Executive Law, the New York City Human Rights Law, the New Jersey Conscientious Employee Protection Act, the New Jersey Family Leave Act, any civil rights or human rights law, as well as all claims for wrongful discharge, breach of contract, personal injury, defamation, mental anguish, injury to health and reputation, and sexual harassment, which Employee ever had, now has, or which Employee hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever arising out of Employee’s employment by AHC or the termination thereof, provided that this General Release shall not extend to (i) any rights, remedies, or claims Employee may have in enforcing the terms of this Agreement; (ii) any rights Employee may have to receive vested amounts under AHC’s stock option plan, 401-K or pension plans; (iii) Employee’s rights to medical benefit continuation coverage, on a self-pay basis, pursuant to federal law (COBRA); and (iv) claims for indemnification (whether under state law, AHC’s by-laws or otherwise) for acts performed as an officer of AHC or any of its affiliates. Employee takes this action fully aware of Employee’s rights arising under the laws of the United States (and any State or local governmental entity thereof) and voluntarily waives and releases all such rights or claims under these or other laws, but does not intend to, nor is Employee waiving any rights or claims that may arise after the date that this Agreement is signed by Employee. The provisions of any laws providing in substance that releases shall not extend to claims which are at the time unknown to or unsuspected by the person executing such release, are hereby waived.
Employee has seven (7) days to revoke the Agreement after Employee signs it. The Agreement will not become effective or enforceable until AHC’s receipt back of Employee’s executed Agreement and the expiration of the seven day revocation period.
Employee has read and understood the Agreement and enters into it knowingly and voluntarily.
IN WITNESS WHEREOF, Peter R. Smith has set his hand this ___ day of December, 2004 having had the opportunity to review this with counsel of his choice.
|/s/ Peter R. Smith |
Peter R. Smith