Separation of Employment Agreement and General Release - Internet Capital Group Inc. and Nigel Andrews
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SEPARATION OF EMPLOYMENT AGREEMENT AND GENERAL RELEASE
WHEREAS Nigel Andrews (hereinafter "Employee") has been employed by
Internet Capital Group (hereinafter "EMPLOYER"); and
WHEREAS Employee and EMPLOYER mutually desire to terminate amicably
Employee's employment with EMPLOYER.
IT IS HEREBY AGREED by and between Employee and EMPLOYER as follows:
1. Employee, for and in consideration of the undertakings of
EMPLOYER set forth herein, and intending to be legally bound, does hereby
permanently and irrevocably sever his employment relationship with EMPLOYER
effective February 28, 2001, and also does hereby REMISE, RELEASE AND FOREVER
DISCHARGE, EMPLOYER and its parent, subsidiary, and affiliated entities, and its
and their officers, directors, shareholders, employees and agents, its and their
respective successors and assigns, heirs, executors, and administrators
(hereinafter referred to collectively as "RELEASEES") of and from any and all
actions and causes of actions, suits, debts, claims and demands whatsoever in
law or in equity, which he ever had, now has, or which his heirs, executors or
administrators may have, by reason of any matter, cause or thing whatsoever,
from the beginning of his employment with EMPLOYER up to and including the
termination of his employment, and particularly, but without limitation, any
claims arising from or relating in any way to his employment relationship or the
termination of his employment relationship with EMPLOYER, including, but not
limited to, any claims which have been asserted, could have been asserted or
could be asserted now or in the future, including any claims under any federal,
state or local laws, including the Pennsylvania Human Relations Act,
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43 P.S. Section 951 et seq.; Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. Section 2000e et seq., the Age Discrimination in Employment
Act, 29 U.S.C. Section 621 et seq., the Americans with Disabilities Act, 29
U.S.C. Section 12101 et seq.; any common law contract or tort claims now or
hereafter recognized, including but not limited to all claims for cash severance
and all claims for counsel fees and costs.
2. In full consideration of Employee's execution of this Separation
of Employment Agreement and General Release, and his agreement to be legally
bound by its terms, EMPLOYER agrees, beginning upon the 8th day following
Employee's execution of this agreement, to do the following:
(a) EMPLOYER shall accelerate the vesting of 400,000 stock
options granted to Employee on December 21, 2000 with an exercise price of
$3.0312 so that all 400,000 of such options will be completely vested as of the
date of his termination of employment with EMPLOYER. EMPLOYER also agrees to
extend the expiration date that Employee has to exercise such stock options to
two (2) years after termination of employment.
(b) Employee agrees to be available to provide advisory
services to ICG for six (6) months for an amount of time equivalent to two (2)
days per week. Employee specifically acknowledges that he shall receive no
additional compensation in exchange for these services;
(c) EMPLOYER shall pay the COBRA premiums for continued
medical and dental insurance benefits for Employee per their current benefits
election through February 28, 2002 or until eligible for these benefits under a
new employer's or spouse's employer's plan, whichever occurs first;
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(d) EMPLOYER shall pay Employee accrued and unused vacation;
(e) EMPLOYER shall pay to Employee any distribution declared
prior to March 31, 2002 under the 1999 ICG Limited Partnership for events
occurring in calendar years 2000 and 2001;
(f) EMPLOYER shall provide Employee with outplacement
assistance for a period of 12 months or until subsequent employment begins;
(g) After Employee no longer has an advisory role with
EMPLOYER or any of its partner companies, EMPLOYER agrees to release Employee
from the non-compete provision of any restrictive covenant signed by EMPLOYER
and Employee, only to the extent that any such provision would have limited
Employee's ability to work for competitors of EMPLOYER other than Safeguard,
CMGI, idealab!, Divine interVentures, i2, Ariba, Softbank, Commerce One and/or
their affiliate companies; however, such non-compete provision shall expressly
apply at all times while Employee is serving in an advisory capacity to EMPLOYER
or any of its partner companies and shall apply to prohibit Employee's
employment with, or provision of services to, the companies and/or entities
identified in this paragraph without EMPLOYER'S prior written approval. In
addition, as a condition of EMPLOYER'S agreement to partially waive such
non-compete provision as set forth herein, Employee agrees to comply with all
other provisions of this agreement including paragraph 5(a).
3. Except as set forth herein, it is expressly agreed and understood
that EMPLOYER does not have, and will not have, any obligation to provide
Employee at any time in the future with any payments, benefits or considerations
other than those recited in paragraphs
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2(a) - 2(g) above other than any vested benefits to which Employee may be
entitled under the terms of EMPLOYER'S benefit plans.
4. Employee further agrees and covenants that neither he, nor any
person, organization or other entity on his behalf, will file, charge, claim,
sue or cause or permit to be filed, charged or claimed, any civil action, suit
or legal proceeding for personal relief (including any action for damages,
injunctive, declaratory, monetary or other relief) against RELEASEES involving
any matter occurring at any time in the past up to and including the date of
this Separation of Employment Agreement and General Release or involving any
continuing effects of any acts or practices which may have arisen or occurred
prior to the date of this Separation of Employment Agreement and General
Release. Employee further agrees that if any person, organization, or other
entity should bring a claim against RELEASEES involving any such matter, he will
not accept any personal relief in any such action.
5. In further consideration of the agreements of EMPLOYER as set
forth herein, Employee agrees that:
(a) During the one (1) year period beginning on the date of
this Agreement, he will not either directly or through others (i) solicit, hire
or attempt to solicit or hire any employee of EMPLOYER or any other entity in
which EMPLOYER owns, directly or indirectly, an equity interest (an "Affiliate")
to change or terminate his or her relationship with any Affiliate or otherwise
to become an employee of any other person or business entity, or (ii) solicit,
hire or attempt to solicit or hire any consultant, independent contractor or
customer of EMPLOYER or of any Affiliate with whom he had contact during the
course of his employment with EMPLOYER to change or terminate his or her
relationship with any Affiliate or otherwise
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to become a consultant, independent contractor or customer to, for or of any
other person or business entity. Notwithstanding the foregoing, general
solicitations of employment published in a journal, newspaper, over the Internet
or other publication of general circulation and not specifically directed
towards such employees, consultants or independent contractors shall not be
deemed to constitute solicitation for purposes of this Section. Employee shall
not be prohibited from employing or maintaining as a customer any person or
business that contacts Employee on such person's or such business' own
initiative and without any solicitation on Employee's part, directly or through
others.
(b) At all times hereafter, Employee agrees to hold in
strictest confidence and not to disclose, use, lecture upon or publish any of
EMPLOYER'S Proprietary Information (defined below), unless EMPLOYER expressly
authorizes such disclosure in writing. "Proprietary Information" shall mean any
and all confidential and/or trade secrets and/or proprietary knowledge, data or
information of EMPLOYER, its affiliated entities, any of its partner companies,
investors, and partners, including but not limited to information relating to
financial matters, investments, budgets, business plans, marketing plans,
personnel matters, business contacts, products, processes, know-how, designs,
methods, improvements, discoveries, inventions, ideas, data, programs, and other
works of authorship. The term "Inventions" shall mean all trade secrets,
inventions, ideas, processes, data, programs, other works of authorship,
know-how, improvements, discoveries, developments, designs and techniques.
(c) To deliver to the person designated by EMPLOYER all
originals and copies of all documents and other property of EMPLOYER in his
possession, under his control or to which he may have access. Employee will not
reproduce or appropriate for his own
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use, or for the use of others, any Employer property, Proprietary Information or
Company Inventions.
(d) Because Employee's services to EMPLOYER were personal and
unique, and because he had access to and has become acquainted with the
Proprietary Information of EMPLOYER, and because any breach by Employee of any
of the restrictive covenants contained in this Agreement would result in
irreparable injury and damage for which money damages would not provide an
adequate remedy, EMPLOYER shall have the right to enforce the obligations set
forth in Section 6 of this Agreement by injunction, specific performance or
other equitable relief, without bond and without prejudice to any other rights
and remedies that EMPLOYER may have for a breach, or threatened breach, of the
provisions of Section 6 of this Agreement. Employee agrees that in any action in
which EMPLOYER seeks injunction, specific performance or other equitable relief,
Employee will not assert or contend that any of the provisions of Section 6 of
this Agreement are unreasonable or otherwise unenforceable.
6. This Separation of Employment Agreement and General Release will
be governed by and construed according to the laws of the State of Delaware,
where the EMPLOYER is incorporated. Employee acknowledges and agrees that he has
had an opportunity to seek advice of counsel in connection with this Separation
of Employment Agreement and General Release and that the covenants contained
herein are reasonable in geographical and temporal scope and in all other
respects. If any court or other decision-maker of competent jurisdiction
determines that any of the covenants contained in this Agreement, or any part
thereof, is unenforceable because of the duration or geographical scope of such
provision, then, the duration or scope of such provision, as the case may be,
shall be reduced so that such
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provision becomes enforceable and, in its reduced form, such provision shall
then be enforceable and shall be enforced. In case any one or more of the
provisions contained in Section 6 of this Agreement shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect the other provisions of Section
6 of this Agreement, which shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. No waiver by EMPLOYER
of any breach of this Agreement shall be a waiver of any preceding or succeeding
breach. No waiver by EMPLOYER of any right under this Agreement shall be
construed as a waiver of any other right.
7. The parties hereto acknowledge that the undertakings of each of
the parties herein are expressly contingent upon the fulfillment and
satisfaction of the obligations of the other party as set forth herein.
8. Employee hereby agrees and recognizes that his employment
relationship with RELEASEES have been permanently and irrevocably severed and
that RELEASEES have no obligation, contractual or otherwise, to hire, rehire or
re-employ him/her in the future, and he agrees not to seek re-employment with
EMPLOYER.
9. Employee agrees and acknowledges that the agreement by EMPLOYER,
described herein, is not and shall not be construed to be an admission of any
violation of any federal, state or local statute or regulation, or of any duty
owed by EMPLOYER and that this agreement is made voluntarily to provide an
amicable conclusion of his employment relationship with EMPLOYER.
10. Employee agrees, covenants and promises that he has not
communicated or disclosed, and will not hereafter communicate or disclose, the
terms of this Separation of
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Employment Agreement and General Release to any persons with the exception of
members of his immediate family, his attorney, and his accountant or tax
advisor, each of whom shall be informed of this confidentiality obligation and
shall be bound by its terms. Employee further agrees that he will not disparage
in any way the professional or personal reputation or character of EMPLOYER, its
affiliated corporations or entities, or any of their officers, directors,
employees, agents or representatives.
11. Employee hereby certifies that he has read the terms of this
Separation of Employment Agreement and General Release, that he has been
informed by EMPLOYER, through this document and otherwise, that he should
discuss this Agreement with an attorney of his own choice, and that he
understands its terms and effects. Employee further certifies that he has the
intention of releasing all claims recited herein in exchange for the
consideration described herein, which he acknowledges as adequate and
satisfactory to him/her. Neither EMPLOYER nor any of its agents, representatives
or attorneys has made any representations to Employee concerning the terms or
effects of this Separation of Employment Agreement and General Release other
than those contained herein.
12. Employee acknowledges that he has been informed that he has the right to
consider this Agreement for a period of at least 21 days prior to entering into
this Agreement. Employee further acknowledges that he has the right to revoke
this Agreement within seven (7) days of its execution by giving written notice
of such revocation by hand delivery or fax to EMPLOYER, Attention: Stephen M.
Prichard, within the seven (7) day period.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties have executed the foregoing Separation of Employment Agreement and
General Release this 2nd day of March, 2001.
WITNESS: /s/ Karen Toren /s/ Nigel Andrews
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Nigel Andrews
INTERNET CAPITAL GROUP
WITNESS: /s/ Penny Stoker By: /s/ Stephen M. Prichard
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Stephen M. Prichard
Vice President, Human Resources
February 21, 2001
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