Exhibit 10.26
AGREEMENT AND RELEASE
AGREEMENT and RELEASE dated this 13th day of December, 1996, by and between
Joseph A. Amram ("Mr. Amram") and Individual, Inc. ("the Company"). (Mr. Amram
and the Company may be referred to jointly as "the parties.")
WHEREAS, Mr. Amram previously served as the Company's President and Chief
Executive Officer, and Chairman of the Company's Board of Directors; and
WHEREAS, various disputes have arisen between the parties concerning
severance pay and other matters pertaining to Mr. Amram's cessation of
employment with the Company on August 7, 1996; and
WHEREAS, Mr. Amram and the Company wish to resolve amicably, for their
mutual benefit, all matters regarding Mr. Amram's cessation of employment and
other disputes with the Company.
NOW, THEREFORE, for good and valuable consideration as more fully described
below, the sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Payments.
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a. The Company agrees to pay Mr. Amram a total gross sum of $480,000 (the
equivalent of two years' compensation) according to the schedule set forth
below:
i. The Company will pay Mr. Amram a gross lump sum payment of
$100,000 upon execution of this Agreement and Release.
ii. Starting on January 1, 1997 and continuing until July 31, 1998,
the Company shall pay Mr. Amram compensation continuation payments at the
rate of $20,000 per month. Said compensation continuation payments shall
be made according to the Company's regular payroll cycle pertaining to its
executive employees.
b. Payments made to Mr. Amram as specified in Paragraph 1 shall be
subject to applicable tax withholdings, if any, as required by law. Mr. Amram
has directed the Company to make the minimum withholdings as allowed by law with
respect to all payments and stock issuance to be made pursuant to this
Agreement.
c. The Company shall grant to Mr. Amram, subject to the terms and
conditions of the Company's Stock Option Plan, its standard non-employee
director stock options, effective as if he had first been elected to the Board
of Directors as an outside director as of the date of this Agreement. Said grant
shall occur at the first meeting of the Board of Directors held after the
execution of this Agreement and Release and the
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price of the options shall be the closing price of the Company's stock that day
on the NASDAQ.
d. The Company shall transfer to Mr. Amram the two personal computers
that Mr. Amram used prior to his cessation of employment. The parties agree
that the value of the computers is $3,000. Mr. Amram hereby authorizes the
Company to deduct any tax withholdings applicable to such transfer from the
payment by the Company specified in Paragraph 1(a)(i) above. All risk of damage
or loss with respect to such personal computers shall rest with Mr. Amram. The
computers are transferred to Mr. Amram "as is," with no representations or
warranties, express or implied, being made to Mr. Amram (including warranties of
merchantability or fitness for a particular purpose) and, without limiting the
generality of the foregoing in any way, in no event shall the Company be liable
for any consequential, special, punitive, or other damages in connection with
this computer transfer.
2. Noncompetition, Nondisclosure and Developments. Mr. Amram confirms the
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existence and continued validity of his Employee Noncompetition, Nondisclosure
and Developments Agreement with the Company dated January 24, 1989, a true and
correct copy of which is attached hereto as Exhibit A. The post-employment
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noncompetition period commenced on August 7, 1996.
3. Releases.
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(a) In exchange for the benefits and undertakings described herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Mr. Amram on behalf of himself as well as those members of
his family who are stockholders of the Company and who Mr. Amram controls, and
his and their fiduciaries, representatives, agents, estates, trusts, attorneys,
executors, administrators, beneficiaries, successors and assigns, absolutely and
unconditionally to release and forever discharge the Company and/or its
successors and assigns, parent, subsidiary and/or affiliate companies, as well
as all of their past and present directors, investors (including without
limitation Microsoft and Knight-Ridder), officers, attorneys (including without
limitation Testa, Hurwitz & Thibeault, LLP and each of its partners and
employees), employees, insurers, representatives and agents, both individually
and in any of their official capacities with the Company (the "Releasees"), from
any and all actions or causes of action, suits, claims, complaints, contracts,
liabilities, agreements, promises, debts, judgments and damages, in law or
equity, whether existing or contingent, known or unknown, matured or immatured,
including without limitation: claims arising out of Mr. Amram's employment with
and/or cessation of employment with the Company; claims arising from or as a
consequence of any actions or omissions to act of the Company's Board of
Directors or individual directors of the Company; and claims arising from or as
a consequence of any actions or omissions to act of the Releasees. This release
is intended by Mr. Amram to be all encompassing and to act as a full and total
release of any claims that Mr. Amram has, may have in the future, or has had
against any or all of the Releasees resulting or arising from, relative to, or
based on facts, events or
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occurrences, since the Beginning of the World through the date of this Agreement
and Release, including without limitation all claims of breach of fiduciary
duty; all claims arising from or concerning Mr. Amram's status as a director,
corporate officer, employee or stockholder of the Company; all claims for
compensation (such as severance payments; bonus payments; benefits; accrued
vacation pay; sick pay; reimbursable expenses; expense vouchers; obligations or
commitments to grant stock options or to issue stock and all other rights to
acquire stock, if any such obligations, commitments and/or rights are claimed to
exist; performance bonuses; business-related expenses; and all other payments,
commissions, compensations or reimbursements of every kind and description); all
claims involving any federal or state securities laws; all claims involving any
federal or state law or regulation relating to employment or employment
discrimination (such as those laws or regulations concerning discrimination on
the basis of age, alienage, race, color, creed, sex, sexual orientation,
religion, national origin, handicap status or veteran status or any military
service or application for military service); all claims involving any contract,
whether oral or written, express or implied; or common law claims.
(b) Mr. Amram, on his own behalf and on behalf of members of his family who
are stockholders of the Company and who Mr. Amram controls, further agrees to
release and discharge the Company, its subsidiaries and affiliates and/or their
respective successors, assigns, stockholders, officers, directors, investors,
employees, attorneys, representatives and agents, from any and all claims that
might be made by any other person or organization on behalf of Mr. Amram or such
members of his family, and Mr. Amram and such members of his family specifically
waive any right to become, and promise not to become, a member of any class in a
case in which any claim against the Company is made involving any matters
subject to release pursuant to paragraph 3(a) (or, except as required by law or
rule of court, to assist or cooperate in the bringing of any such claim against
the Company, or its subsidiaries and/or their respective successors, assigns,
stockholders, officers, directors, investors, employees, attorneys,
representatives and/or agents).
(c) In exchange for the above release by Mr. Amram, the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company, on behalf of itself
and its successors, assigns, parent, subsidiaries and/or affiliated companies,
directors, officers, employees, attorneys, representatives and agents, both
individually and in their official capacities, hereby absolutely and
unconditionally release and forever discharge Mr. Amram and his fiduciaries,
representatives, agents, attorneys, estates, trusts, successors and assigns,
from any and all actions or causes of action, suits, claims, complaints,
contracts, liabilities, agreements, promises, debts, judgments, damages and
demands of every kind and nature, whether existing or contingent, known or
unknown, both in law and equity, including without limitation, all claims
arising out of Mr. Amram's employment or cessation of employment with the
Company, and his actions as an officer and director of the Company. This
release is intended by the Company to be all-encompassing and to act as a full
and total release of any claims that
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the Company may have or has had against Mr. Amram and his fiduciaries,
representatives, agents, estates, successors and assigns, since the Beginning of
the World through the date of this Agreement and Release; provided that nothing
herein shall be construed to release any claims arising out of any
misappropriation or infringing use of any confidential and/or proprietary
information of the Company. The Company acknowledges that it has no knowledge of
any misappropriation or infringing use of confidential and/or proprietary
information by Mr. Amram.
(d) These releases may be pleaded as a full and complete defense and may be
used as the basis for an injunction against any action, suit or proceeding that
may be prosecuted, instituted, or attempted in breach hereof. Nothing herein
shall be deemed to waive the right of either party to bring an action to enforce
the terms of, or recover damages for breach of any of terms of this Agreement
and Release or of the Noncompetition, Nondisclosure and Developments Agreement.
(e) In the event either party brings an action barred by these releases or
the Company prevails in an action for violation of the Noncompetition,
Nondisclosure and Developments Agreement, the losing party shall be obligated to
reimburse the prevailing party for reasonable attorneys' fees and costs in such
action.
(f) Nothing herein is intended to affect any right to insurance or to
indemnification either party may have under applicable law, under the Company's
Certificate of Incorporation, or the Company's By-laws.
(g) Mr. Amram acknowledges that the payments and benefits set forth herein,
together with payments and benefits previously provided to Mr. Amram, shall be
complete and unconditional payment, settlement, satisfaction and accord for all
compensation arising out of his employment or the cessation thereof or that
otherwise might be owed to him by the Company, including without limitation to
all wages, salary, accrued but unused vacation pay, commissions, equity, stock
options, stock warrants, bonus pay and severance pay.
4. Commitments.
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(a) In connection with any pooling transaction entered into by the Company
while Mr. Amram serves as a director of the Company, Mr. Amram will execute any
affiliate agreement that all other members of the Board of Directors also sign.
In the event that Mr. Amram demonstrates to the reasonable satisfaction of the
Board of Directors that he has a requirement to sell shares of Company common
stock during any "lock-up" period relating to a pooling transaction to which the
Company is a party, the Company will make good faith efforts to permit Mr. Amram
to make such a sale in a manner and amount that, in the opinion of the Company's
independent public accountants, is permitted under pooling-of-interests
accounting rules.
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(b) Mr. Amram will provide the Board of Directors with not less than seven
days prior written notice of his intention to purchase the securities of any
privately-held company that at the time of such purchase is engaged in any
business of the Company.
(c) The parties shall maintain strict confidentiality concerning the dollar
amount and all other terms of this Agreement and Release and, except as required
pursuant to legal process, law or governmental regulation (including without
limitation S.E.C. disclosure obligations), will not discuss the same with
anyone, except on a confidential basis, with Mr. Amram's spouse, with
accountants or attorneys when such disclosure is necessary for them to render
professional services, and with representatives of the Company to the extent
necessary for them to discharge their corporate duties and obligations. Nothing
herein shall preclude Mr. Amram from advising any prospective employer of his
post employment obligations to the Company under this Agreement and Release
and/or the Noncompetition, Nondisclosure and Developments Agreement.
(d) Nothing herein shall be deemed to bar either party from making any
truthful disclosures as required by legal process or otherwise mandated by law
subject to maximum appropriate protection of confidential information. Mr.
Amram further agrees to provide the Company with prompt and timely notice of any
request by subpoena or other legal process seeking testimony or information
regarding the Company, its business, its employees and/or any and all matters
relating to Mr. Amram's employment with or cessation of employment from the
Company.
(e) Mr. Amram agrees that he will not engage in any defamatory,
disparaging, critical or otherwise detrimental communication with any other
person or entity concerning the Company, including its officers, directors,
employees, attorneys, business affairs or financial conditions or the
circumstances surrounding his employment and separation from employment with the
Company. The Company agrees that it will not engage in any defamatory,
disparaging, critical or otherwise detrimental communication with any person or
entity concerning Mr. Amram. Nothing herein shall be deemed to bar either party
from making any truthful disclosures as required by legal process, or otherwise
mandated by law, or upon request of any governmental agency.
5. Compromise. The parties agree and acknowledge that this Agreement and
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Release is the result of a compromise. While this Agreement and Release
resolves the issues between the parties, it does not constitute an admission by
either party of any liability whatsoever. Neither this Agreement and Release
nor any of its terms shall be construed to be, or shall be admissible in any
proceeding as, evidence of liability by either party. However, this Agreement
and Release may be introduced in any proceeding to enforce its terms.
6. Severability. The parties agree that each provision herein shall be
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treated as a separate and independent clause, and the unenforceability of any
one clause shall in no way impair the enforceability of any of the other
clauses. Moreover, if one or more of the provisions or subparts contained in
this Agreement and Release shall for any reason be
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held to be excessively broad as to scope or subject matter as to be
unenforceable at law or equity, such provision, provisions or subparts shall be
construed by limiting and reducing it or them so as to be enforceable to the
extent compatible with applicable law.
7. Notices and Payments. All payments to Mr. Amram shall be made at the
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address set forth below, or such other address as he shall inform the Company of
in writing or, at the Company's option, shall be made by electronic deposit to a
bank account designated by Mr. Amram. All notices and communications shall be
given to the parties at the following addresses, or such other addresses as the
parties shall provide to each other in writing:
If to Mr. Amram:
Joseph Amram
330 Beacon Street
Boston, MA 02116
with a copy to:
Gerard D. Goldstein, Esq.
Goldstein & Manello, P.C.
265 Franklin Street
Boston, MA 02110
If to the Company:
Chairman of the Board of Directors
Individual, Inc.
8 New England Executive Park West
Burlington, MA 01803
with a copy to:
William B. Asher, Jr., Esq.
Testa, Hurwitz & Thibeault, LLP
High Street Tower
125 High Street
Boston, MA 02110
8. Representations and Governing Law.
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(a) This Agreement and Release, together with its Exhibit A, (and those
Agreements expressly referenced herein, such as the stock option plan)
represents the complete understanding between the parties, supersedes any and
all agreements and
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understandings, whether oral or written, and may not be modified, altered,
changed or waived, in whole or in part, except upon written consent of both
parties. The parties agree that the Company will not have an adequate remedy if
Mr. Amram fails to comply with Paragraphs 2 and 4 hereof, and that damages will
not be readily ascertainable for such breach, and that in the event of such
failure or breach, Mr. Amram shall not oppose any application by the Company
seeking a decree of specific performance or an injunction enjoining a breach of
this Agreement and Release.
(b) Mr. Amram represents that he has carefully read this Agreement and
Release, fully understands its terms, and is voluntarily executing same. In
entering into this Agreement and Release, Mr. Amram does not rely on any
representation, promise or inducement made by the Company, or any of its
representatives, agents or attorneys, with the exception of the consideration
described in this document.
(c) This Agreement and Release shall in all respects be interpreted,
enforced and governed under the internal and domestic laws of the Commonwealth
of Massachusetts without giving effect to the principles of conflicts of law
thereof. Any dispute hereunder will be adjudicated only in the courts located
in Massachusetts. Mr. Amram hereby submits to the jurisdiction of such courts.
(d) The parties agree to cooperate fully in the execution of any and all
documents, and the taking of any additional action, which may be necessary or
appropriate to give full force and effect to the terms and intent of this
Agreement and Release.
(e) The language of all parts of this Agreement and Release shall in all
cases be construed as a whole according to its fair meaning and not strictly for
or against either of the parties.
(f) This Agreement and Release shall not be assigned by either party but
shall be binding on the parties hereto and their respective heirs, legal
representatives, successors and assigns, and shall inure to the benefit of the
Company's successors and assigns by merger or consolidation with another company
or by the sale of all or substantially all of the assets or capital stock of the
Company. The parties acknowledge and warrant that they have not assigned to any
third party any rights, or claims of any nature against either party or any of
the releasees specified in paragraph 3.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement and
Release to be executed as of the date set forth above.
INDIVIDUAL, INC., JOSEPH A. AMRAM,
By: /s/ Robert Lentz By: /s/ Joseph A. Amram
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Robert Lentz Joseph A. Amram