Separation Agreement and General Release - LifeMinders Inc., Administaff Companies Inc. and Mark Bryant
SEPARATION AGREEMENT
AND GENERAL RELEASE
This Separation Agreement and General Release ("Agreement") is made
and entered into by and between LifeMinders, Inc. and Administaff Companies,
Inc. (collectively, the "Company" or "Employer") and Mark Bryant ("Executive";
Executive and the Company being collectively referred to as the "Parties"), and
is made and entered into with reference to the following facts:
RECITALS
--------
WHEREAS, Executive is employed by the Company and the Parties have
agreed to terminate their employment relationship effective March 31, 2001; and
WHEREAS, the Parties each desire to resolve any potential disputes
which exist or may exist arising out of Executive'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 Executive. In exchange for the payments
--------------------------
described in paragraph 2 below, Executive agrees to the following:
(a) that his employment with the Company is terminated effective
March 31, 2001 (hereinafter the "Termination Date");
(b) Executive shall, from time to time, at the reasonable
request of the Company, provide information or assistance in
transitioning work or accounts associated with his
employment with the Company; and
(c) to be bound by the terms of this entire Agreement.
2. Agreement By the Company. In exchange for Executive's agreement
------------------------
to be bound by the terms of this entire Agreement, including but not limited to
the Release of Claims in paragraph 3, and contingent upon Executive's continuing
compliance with his obligations under this Agreement during the period set forth
below, the Company agrees to provide Executive the following:
(a) An amount equal to Executive's base salary, at the rate in
effect on the Termination Date, less statutory deductions
and withholdings, for a period of six (6) months, to be paid
in one lump sum within fifteen (15) days after the
Termination Date;
(b) Continuation of health benefits paid fully by the Company
via COBRA for Executive and Executive's dependents who are
covered under the Company's group health benefits, on
substantially the same terms and conditions as existed on
the Termination Date, for a period of six (6) months after
the Termination Date.
<PAGE>
Executive 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 constitutes valid and
sufficient consideration for Executive's release of claims and other obligations
set forth herein.
3. Release of Claims. Executive 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
"Company Releasees"), from any and all claims, demands, and causes of action
which Executive has or claims to have, whether known or unknown, of whatever
nature, which exist or may exist on Executive's behalf from the beginning of
time up to and including the date of this Agreement. The Company hereby
expressly waives, releases, acquits and forever discharges Executive and his
agents, attorneys, representatives, successors and assigns (hereinafter
collectively referred to as "Executive Releasees"), 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. 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, 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 Virginia Human Rights Act, 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
Executive Retirement Income Security Act.
4. Last Date of Employment/Options Treatment. It is understood and
-----------------------------------------
agreed that Executive's last date of employment with Employer is the Termination
Date or March 31, 2001. Executive's unvested stock options will continue to vest
up through the Termination Date. On the Termination Date, Executive's initial
option to purchase 125,000 shares granted on May 1, 1998 will be vested in full.
Executive acknowledges that, except as set forth above, any unvested stock
options as of the Termination Date will be forfeited. Executive further
acknowledges that any vested stock options shall be exercisable for a period of
three (3) months from the Termination Date, but in no event shall any vested
option be exercisable at any time after the expiration date of the option (the
10-year term). Likewise, in order for Executive's stock options to be treated as
Incentive Stock Options as defined in Section 422 of the Internal Revenue Code,
the options must be exercised within 90 days of the Termination Date. In all
other respects, the terms of Executive's Stock Option Agreement will continue to
apply.
5. Receipt of Wages and Other Compensation; Reimbursement of
---------------------------------------------------------
Expenses. Executive acknowledges and agrees that he has received payment for all
--------
wages, salary, bonuses, accrued vacation, and all other compensation owed to
Executive by the Company up to the date of Executive's execution of this
Agreement. Within fifteen (15) days after the Termination Date, the Company will
pay to Executive all wages, salary, bonuses, accrued vacation, expenses and all
other compensation owed to Executive by the Company up to and including the
Termination Date and Executive will provide written acknowledgement of his
receipt of such payments prior to the Company's payment to Executive of the
amounts set forth in Section 2 of this Agreement. Notwithstanding the previous
sentence, as soon as practicable after the Termination Date, the Company shall
pay Executive a commission in an amount equal to three percent (3%) of revenues
booked by the Company for the period January 1, 2001 through
2
<PAGE>
March 31, 2001 which revenues are directly attributable to Executive's sales
efforts during that period and are received from one or more of the following
companies: The Weather Channel/weather.com; North American Marketing Group;
Flipside; Freedrive; and NBCi. No later than March 19, 2001, Executive shall
submit documentation for all expenses incurred by Executive from his date of
employment through March 18, 2001 for which Executive seeks reimbursement by the
Company. No later than March 30, 2001, Executive shall submit documentation for
all expenses incurred by Executive from March 19, 2001 through March 30, 2001
for which Executive seeks reimbursement by the Company.
6. Executive Covenants.
-------------------
(a) Executive acknowledges that during his employment with the Company, he
had access to confidential and proprietary business information that
is the property of the Company, the disclosure of which could cause
substantial and irreparable harm, loss of goodwill, or injury to the
Company. Executive agrees not to disclose any such confidential or
proprietary business information without the prior written
authorization of the Board. Notwithstanding the foregoing, the parties
acknowledge that Executive's obligation not to disclose shall not
apply, or shall terminate, with respect to any portion of such
business information which: (i) is in the public domain; or (ii) is
required to be disclosed under applicable law. Without limiting the
foregoing, Executive agrees to continue to abide by the terms of the
Company's Confidential Information and Invention Assignment Agreement,
the terms of which are incorporated herein by reference.
(b) Executive shall, as a condition of receiving any of the payments
provided for in Section 2 above, return to the Company prior to his
acceptance of this Agreement all records, including original documents
and electronically stored documents, and all copies thereof,
pertaining to the business and customers of the Company as well as any
other property of the Company in his possession, custody or control as
of the Termination Date; provided that Executive shall be entitled to
keep the following laptop computers as his own property (Asset #10-
000348/Dell Latitude LS):
(c) For a period of six (6) months after the Termination Date, Executive
shall not, without the prior written consent of the Chief Executive
Officer of the Company, (whether as an employee, agent, servant,
owner, partner, consultant, independent contractor, representative,
stockholder or in any other capacity whatsoever), participate in any
business that offers products or services directly competitive in any
way to the products or services offered by the Company or under active
development by the Company on the Termination Date. The foregoing
restrictions shall not apply to ownership by Executive of less than a
five percent (5%) beneficial interest in outstanding equity securities
of any business entity that has equity securities registered under the
Securities Exchange Act of 1934.
(d) For a period of six (6) months after the Termination Date, Executive
shall not, without the prior written consent of the Chief Executive
Officer of the Company, directly or indirectly, entice, solicit or
encourage any Company employee to leave the employ of the Company or
any independent contractor to sever its engagement with the Company.
(e) For a period of six (6) months after the Termination Date, Executive
shall not, directly or indirectly, entice, solicit or encourage any
customer or prospective customer of the Company to cease doing
business with the Company, reduce its relationship with the Company or
refrain from establishing or expanding a relationship with the
Company.
3
<PAGE>
(f) Executive agrees that all inventions, improvements and developments
("Developments") which he made, conceived, reduced to practice or
developed (in whole or in part, either alone or jointly with others)
during his employment with the Company shall be the sole property of
the Company. Unless the Company decides otherwise, the Company shall
be the sole owner of all rights in connection therewith. All
copyright-protected Developments are and at all times shall remain
"work made for hire". Executive hereby assigns to the Company any and
all rights to any Developments, absolutely and forever, throughout the
world and for the full term of each and every such right, including
renewal or extension of any such term.
7. Acceptance of Agreement/Expiration. This Agreement was
----------------------------------
received by Executive on March 16, 2001. Executive 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 March 22, 2001.
8. Non-Admission of Liability. The Company denies any
--------------------------
wrongdoing whatsoever in connection with its dealings with Executive, including
but not limited to Executive's employment and termination. 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 Executive.
9. No Filing of Claims. Executive 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 Company Releasees 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 Company Releasees occurring prior to the date of this Agreement.
10. Ownership of Claims. Executive 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. Executive further
represents and warrants that there has been no assignment or other transfer of
any interest in any such matters, claims or demands that he may have against the
Company Releasees.
11. Confidentiality. Executive understands and agrees that this
---------------
Agreement, and the matters discussed in negotiating its terms, are entirely
confidential. It is therefore expressly understood and agreed that Executive
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. Executive further
agrees that he will not, at any time in the future, make any statements to any
third parties that disparage any of the Company Releasees personally or
professionally. The Company agrees that it will not, at any time in the future,
make any statements to any third parties that disparage any of the Executive
Releasees personally or professionally.
12. Tax Indemnification. It is understood and agreed that
-------------------
Executive is liable for all tax obligations, if any, with respect to the
settlement payments provided for herein. Executive 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 allegedly due from Executive in connection with this Agreement.
13. Commonwealth of Virginia Law Applies. This Agreement, in all
------------------------------------
respects, shall be interpreted, enforced and governed by and under the laws of
the Commonwealth of Virginia.
4
<PAGE>
Any and all actions relating to this Agreement shall be filed and maintained in
the federal and/or state courts located in the Commonwealth of Virginia, 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. Executive 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, Executive represents and warrants that he is not relying on any
promises or representations that do not appear written herein. Executive 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.
5
<PAGE>
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.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the dates set forth below.
DATED: March 20, 2001 LIFEMINDERS, INC.
By: /s/ Allison Abraham
-------------------------
Allison Abraham
Its: President
DATED: March __, 2001 ADMINISTAFF COMPANIES, INC.
By: ________________________
Name: ________________________
Its: ________________________
DATED: March 20, 2001 /s/ Mark Bryant
------------------------------
Mark Bryant
6