RESIGNATION AGREEMENT
This Agreement (the "Agreement") is entered into as of the 22nd day of
September 2000 by and between Dispatch Management Services Corp., a Delaware
corporation, and its affiliates ("DMS" or the "Company") and H. Steve Swink
("Mr. Swink").
Whereas, DMS and Mr. Swink entered into an employment agreement dated
February 1, 1999, as amended on March 30, 1999 (the "Employment Agreement");
Whereas, DMS and Mr. Swink have agreed to terminate the Employment
Agreement effective September 22, 2000 according to the terms of this Agreement;
and
Whereas, Mr. Swink has tendered his resignation from his positions as both
a director and Chief Executive Officer of DMS;
Now, therefore, in consideration of the premises and the mutual promises
set forth in this Agreement, the parties agree as follows:
1. Compensation Through to end of Employment Contract Period
(a) Cash Compensation: From this date through January 31, 2001 (the
"Employment Period"), DMS shall continue to pay to Mr. Swink, for services
as, and subject to performance as, an employee upon request of DMS or any
of its representatives, an annualized salary at a rate of $300,000.00 per
year. Such payments shall be made in equal bi-weekly installments, or such
other installments as may be mutually agreed upon between the parties,
subject to deduction and withholding for taxes, employee benefits and/or
as otherwise required by law or provided by agreement of the parties.
(b) Benefits: During the Employment Period, DMS shall continue to
provide Mr. Swink with all health, insurance and other employee benefits
customarily provided to employees of the company.
2. Stock Options:
Upon termination of the Employment Period, Mr. Swink's stock options shall
become exercisable as follows:
(a) The stock options exercisable for 250,000 shares of the
Company's common stock granted pursuant to Mr. Swink's employment
agreement, which have vested, shall remain exercisable through February
22, 2009, as is consistent with the terms of Mr. Swink's employment
agreement. Mr. Swink's Stock Option Agreements dated February 22, 1999
shall be appropriately revised to be consistent with the intent of the
parties to Mr. Swink's employment agreement.
(b) All other stock options exercisable for shares of the Company's
common stock granted to Mr. Swink shall vest and become exercisable
pursuant to the terms of their respective Stock Option Agreements.
3. Future Advisory Work.
From February 1, 2001 through September 31, 2001 (the "Advisory Period"), Mr.
Swink shall fully cooperate with representatives of DMS and shall make himself
reasonably available to answer questions and perform certain advisory services.
At the request of DMS, Mr. Swink shall make himself available, at mutually
agreeable times and in a mutually agreeable manner, to assist with questions
concerning historical information relating to the Company. DMS agrees to pay Mr.
Swink consulting fees in an annualized amount equal to $300,000.00 per year,
payable in equal bi-weekly installments through the end of the Advisory Period
subject to Mr. Swink's performance of such advisory services.
4. Resignation
DMS acknowledges that Mr. Swink has tendered his resignation from his positions
as both a member of the board of directors and as Chief Executive Officer of DMS
effective September 22, 2000.
5. Mutual General Releases
Mr. Swink hereby releases, acquits, and forever discharges any and all claims
and demands of whatever kind or character, indirect or direct, that he may have
or assert against DMS and/or its directors, officers, employees or agents. This
general release includes, but is not limited to, any claim or demand based on
any State, Federal or local statutory or common law that applies or is asserted
to apply directly or indirectly to any relationship which Mr. Swink may have had
with DMS, including, without limitation, claims arising out of any, or related
to any claims for, breach of contract, wrongful discharge, unlawful
discrimination, violation of the public policy of the United States or the State
of New York, violations of Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act of 1967, the Employee Retirement Income
Security Act of 1974, the Americans with Disabilities Act of 1990, the Family
and Medical Leave Act, the Fair Labor Law, the New York Executive Law, as
amended, including the New York Human Rights Law and the New York Labor Law, or
any other State or Federal Statute arising out of his relationship, or the
termination of his relationship with DMS, but expressly excluding claims
directly arising out of or related to a breach of the obligations of DMS under
this Agreement.
DMS and its directors and officers hereby release, acquit and discharge any and
all claims and demands of whatever kind or character, whether direct or
indirect, that it may have or assert against Mr. Swink. This general release
expressly excludes claims directly arising or related to a breach of the
obligations of Mr. Swink under this Agreement.
6. Confidentiality of this Agreement
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In consideration of the obligations of DMS under this Agreement, Mr. Swink
agrees that the terms of this Agreement shall be and remain confidential, and
shall not be disclosed by him to any party other than family members, attorneys
or accountants (provided that such persons agree to keep such information
confidential), and except as may be required by law.
7. Non-disparagement
Mr. Swink agrees to refrain from making disparaging, negative or other similar
remarks concerning DMS, its directors, officers, employees, agents or other
related persons to any third party, except to the extent that Mr. Swink is
required to make such remarks (a) by applicable law or regulation or judicial or
regulatory process or (b) in or in connection with any pending or threatened
litigation relating to this Agreement or any transaction contemplated hereby or
thereby. In view of the difficulty of determining the amount of damages that may
result to DMS from the breach of the provision of this Section 6, it is the
intent of the parties hereto that, in addition to monetary damages, DMS shall
have the right to prevent any such breach in equity or otherwise, including,
without limitation, prevention by means of injunctive relief, and to withhold
payment of any compensation or fees required by Sections 1 or 2 hereof in the
event of any such breach.
8. Governing Law
This Agreement shall be interpreted and applied under the laws of the State of
New York.
9. Notices
Any notice or communication required or permitted hereunder shall be in writing
and either delivered personally or telecopied or sent by overnight courier, or
by certified or registered mail, postage prepaid, and shall be deemed to be
given, dated and received when so delivered personally or by courier or
telecopied, or, if mailed, three business days after the date of mailing to the
following respective address or telecopy number, or to such other address or
addresses as such person may subsequently designate by written notice given
hereunder:
if to DMS, to:
Mr. Bruce Morgan
President
Dispatch Management Services Corp.
1981 Marcus Avenue, C131
Lake Success, New York 11042
if to Mr. Swink to:
Mr. H. Steve Swink
[ ]
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10. Entire Agreement
This Agreement constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties, with
respect to the subject matter hereto. This Agreement may only be amended,
modified or supplemented by a written agreement signed by all parties hereto.
11. Severability
If any term or other provision of the Agreement is invalid, illegal or
unenforceable, all other provisions of this Agreement shall remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party.
12. Waiver
No waiver by any party to this Agreement of any breach or default shall be
effective unless the same shall be in writing and signed. No waiver by any party
of any breach or default of any term or provisions of this Agreement shall be
construed to constitute a waiver of, or consent to, the present or future breach
or default of that or any other term or provision hereof.
13. Successors and Assigns
This Agreement shall be binding upon the successors and assigns of the parties
hereto.
14. Costs of Enforcement
In the event it becomes necessary for a party to take legal action to enforce
its rights under this Agreement, the party prevailing in such action shall be
entitled to an award including the costs and expenses (including reasonable
attorneys' fees) incurred in connection with such action.
15. Arbitration of Disputes
Any disputes or litigation arising out of or related to this Agreement shall be
resolved pursuant to the arbitration laws of the state of Delaware.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
or on behalf of each of the parties hereto as of the date first above written.
DISPATCH MANAGEMENT SERVICES CORP.,
A Delaware Corporation
By:
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Bruce Morgan, President
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H. Steve Swink
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