Separation Agreement and Release - EarthWeb Inc. and Harold Miltsch
April 12, 2001
Mr. Harold Miltsch
[Address]
Re: Separation Agreement and Release
--------------------------------
Dear Harold:
This letter confirms our recent conversations concerning your relinquishing your
duties as Vice President & Chief Marketing Officer of EarthWeb Inc., and sets
forth the agreement that has been reached between EarthWeb Inc., including its
subsidiaries, divisions, affiliates, predecessors, successors and assigns and
its past and present officers, directors, shareholders, counsel, employees,
agents, administrators, representatives, insurers or fiduciaries in their
individual and/or representative capacities (collectively referred to as the
"Company") and you regarding your separation from the Company.
Provided that you abide by the terms of this Agreement and in consideration for
the covenants and agreements herein contained, the Company will pay you a lump
sum on April 15, 2001 of $195,000, less applicable withholding deductions, as
severance
As a key senior executive of the Company, you have been intimately involved in
the management of the business of the Company and in planning and implementing
its business strategies. In the course of your employment with the Company, you
have developed special skills, knowledge and abilities in the Internet field
which are of a uniquely personal nature. You have also acquired detailed
knowledge of the internal operations of the Company and its business and possess
highly confidential information concerning both the U.S. and non-U.S. business
activities of the Company. In addition, you have been afforded the opportunity
to develop special relationships of confidence and trust with the customers,
suppliers, consultants, employees, officers and directors of the Company.
The parties acknowledge and agree that the Company would be unfairly and
irreparably damaged if you were to take any of such skills, knowledge,
information or relationships, which you have acquired and developed during the
course of your employment with the Company, and use them to
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the detriment of the Company, and therefore the provisions of this paragraph are
reasonable, appropriate and necessary for the protection of the Company's
properties, investments, business relationships, economic advantages and good
will. Accordingly, you hereby agree that:
1. For a period of one (1) year from the date of this Agreement, you will
not, without the Company's prior written consent, directly or
indirectly hold an ownership interest in, provide financing for,
control, manage or operate, or participate in the ownership, control,
management or operation of, or render services in the capacity of any
employee, freelancer, consultant, agent, independent sales
representative or a similar capacity to or for the benefit of any
publication, product or service which is competitive with any product
or service of the Company. Notwithstanding anything to the contrary
contained herein, you shall not be deemed to have breached the
provisions hereof solely by reason of your ownership of an equity
interest of less than one-half of one percent (0.5%) in the securities
of a publicly traded competitive business or an interest in a mutual or
other investment fund which owns an interest in a competitive business,
provided that you have no influence or control over such fund's
investment decisions.
2. For a period of one (1) year from the date of this Agreement, you will
not, without the Company's prior written consent, on your own behalf or
on behalf of any other person or entity, (1) solicit the service of or
employ any employee of the Company for your own benefit or the benefit
of any person or entity other than the Company; (2) induce or help to
induce any such employee to leave employment with the Company for any
reason; or (3) employ or cause any other person or entity to employ any
former employee of the Company whose resignation from the Company
occurred less than six months prior to such employment by you or such
other person or entity. You may seek a waiver of any provisions of this
section in writing from the Company.
3. For a period of one (1) year from the date of this Agreement, you will
not, without the Company's prior written consent, (1) induce or attempt
to induce any customer, supplier or contractor of the Company to
terminate or materially diminish any agreement or arrangement with the
Company; or (2) induce or attempt to induce any customer, supplier or
contractor, or any potential customer, supplier or contractor of the
Company not to enter into any agreement or arrangement with the
Company.
4. You will not at any time, either during and after your employment,
disclose, communicate or divulge, or use for your benefit or the
benefit of any third party, any of the trade secrets or other
confidential or proprietary information and materials of the Company,
including, solely by way of illustration but not of limitation, its
business strategies, business plans, budgets, pricing, financial data,
confidential reports, personnel records, credit and financial data
concerning is suppliers or its present and prospective customers, data
about competitors, new product-development initiatives, customer
research and new product or service ideas. Once your employment has
terminated, you will not retain copies of any confidential information
or materials of the Company in any form, whether print, electronic or
otherwise.
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5. You will not willfully make any oral or written statement which
reflects adversely upon the character, honesty, credit, efficiency or
business practices of the Company or its former or current
stockholders, directors, officers or employees in their capacities as
such.
6. Both during and after your employment with the Company you will, if
requested by the Company from time to time, provide information,
testimony and assistance in connection with the prosecution of any
rights or claims by the Company and the defense of any claims against
the Company arising out of matters of which you acquired knowledge
while an employee of the Company. You agree to make yourself available
for such purpose at such times as the Company may reasonably request
and as do not unreasonably interfere with your other business
activities or commitments. The Company will pay any reasonable
out-of-pocket expenses incurred by you in connection with the foregoing
(upon receipt of written documentation of such expenses). To the extent
that you indicate in advance that any of the foregoing will
unreasonably interfere with your other business activities or
commitments, you and the Company may agree in writing upon terms that
would reasonably compensate you for such interference.
7. For a period of one (1) year from the date of this Agreement, you will
make yourself available to the Company and its designated
representatives for consultation with respect to the past business and
affairs of the Company by telephone or in person at such times as the
Company may reasonably request and as do not unreasonably interfere
with your other business activities or commitments. The Company will
pay any reasonable out-of-pocket expenses incurred by you in connection
with the foregoing (upon receipt of written documentation of such
expenses). To the extent that you indicate in advance that any of the
foregoing will unreasonably interfere with your other business
activities or commitments, you and the Company may agree in writing
upon terms that would reasonably compensate you for such interference.
8. You will not willfully take any action materially adverse to the
interests of the Company, even if such action is in technical
compliance with the other provisions of this letter, but shall at all
times conduct yourself in the same manner and with the same degree of
loyalty to the Company as if you were still an employee and officer of
the Company.
9. You will keep this letter strictly confidential and, except as may be
required by law, you agree not to disclose it or any of its terms or
conditions to any person other than your legal counsel and financial
advisors to whom disclosure is necessary to effectuate the purposes of
your consulting with such advisors, provided that they are informed of
the confidentiality agreement herein and agree to be bound by it. For
purposes of the restrictions in this agreement that relate to
non-competition and non-solicitation, you may provide a summary
description or excepts of those provisions of the agreement to a
prospective employer, provided it is informed of the confidentiality
agreement herein and agrees to be bound by it. In the event that any
court or agency of competent jurisdiction shall require this Agreement
to be filed with it, you and the Company shall request that the
Agreement be filed and maintained under seal.
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10. You hereby fully release and discharge the Company and its successors
and assigns from any and all claims, liabilities, obligations, damages,
losses, costs and expenses, known and unknown, suspected or
unsuspected, which you have, have had or may hereafter have arising out
of your employment with the Company, the termination thereof or your
compensation in connection therewith (other than obligations created
by, acknowledged in or arising from this agreement), and you hereby
waive any and all rights to assert against the Company and its
successors and assigns, any such claims, including, without limitation,
claims of discrimination (whether based on race, religion, national
origin, sex, sexual orientation, age, marital status, veteran status,
handicap, physical or mental disability, or any other cause), wrongful
discharge, emotional distress, defamation, breach of contract, breach
of covenant of good faith and fair dealing, claims for wages, bonuses,
vacation or sick pay or other benefits, and violation of any local,
state or federal law or regulation. You specifically waive any and all
rights and claims arising under the federal Age Discrimination in
Employment Act of 1967 (although such waiver does not apply to rights
or claims that may arise after the date this Agreement is executed).
11. You acknowledge and agree that, except as expressly provided herein,
you will be entitled to no further employment with the Company, and,
except for the foregoing, you are not entitled to and will not receive
any additional compensation, payments or benefits of any kind from the
Company, and that no representations or promises to the contrary have
been made to you.
12. This letter sets forth our entire agreement with respect to the subject
matter thereof and supersedes all prior written or oral agreements
between you and any representative of the Company on that subject. No
provision of this agreement may be modified or waived except in a
writing signed by the party against whom the enforcement of any such
modification or waiver is sought. If any provision of this agreement is
prohibited or invalid under any law, such provision shall be
ineffective to the extent of any prohibition or invalidity, without
invalidating the remainder of such provision or the other provisions of
this agreement. This agreement will bind and benefit both parties and
their respective heirs, executors, administrators, successors and
assigns. This agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to
its rules regarding choice or conflicts of laws.
13. You acknowledge that you have read and understand this agreement; that
you have signed it voluntarily and without coercion; and that the
waivers you have made in this agreement have been made with full
appreciation that you will be foreclosed from pursuing the rights so
waived. You agree that if you assert or attempt to assert any claims or
rights so waived, you will pay all costs incurred by the Company or its
employees, including reasonable attorneys' fees and disbursements, in
defending against such claims.
14. For a period of seven (7) days following the execution of this
agreement, you may revoke the agreement by delivering written notice of
revocation to the Company's Vice President & General Counsel at 3 Park
Avenue, New York, NY 10016. This agreement will not become effective or
enforceable until the 7-day revocation period has expired. If the 7-day
revocation period expires without you having revoked the agreement, the
agreement becomes effective as of the date executed by both parties. If
you revoke the agreement, the Company will not be bound by the terms
set forth above. You understand that your acceptance of any of the
payments or benefits described herein at any time after you sign this
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agreement and release confirms that you did not revoke your consent to
this agreement and release and therefore that it is fully effective and
enforceable.
Harold, if the above accurately reflects our agreement on this matter, please
sign the attached duplicate of this letter in the space provided below and
return it to me.
Sincerely,
EARTHWEB INC.
By: /s/ Peter A. Derow
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Peter A. Derow
CEO & President
AGREED AND ACCEPTED:
/s/ Harold Miltsch
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Harold Miltsch