Exhibit 10.1
AGREEMENT
This Agreement (this "Agreement") is made as of March 27, 2007, between
CoActive Marketing Group, Inc., a Delaware corporation ("CoActive") and Paul A.
Amershadian ("Amershadian").
RECITALS
WHEREAS, Amershadian and CoActive are parties to an Employment
Agreement, dated as of September 29, 1995, as amended by a First Amendment to
Employment Agreement, dated as of May 2, 1997, a Second Amendment to Employment
Agreement, dated as of November 14, 2001, a Third Amendment to Employment
Agreement, dated as of June 17, 2003, a Fourth Amendment to Employment
Agreement, dated as of January 26, 2006, and a Fifth Amendment to Employment
Agreement dated as of March 31, 2006 (as so amended, the "Employment
Agreement"), pursuant to which Amershadian is employed as CoActive's Executive
Vice President;
WHEREAS, the Employment Agreement by its terms terminates on March 31,
2007;
WHEREAS, Amershadian has executed in favor of CoActive an Amended and
Restated Promissory Note, dated May 24, 2001, in the principal amount of
$550,000 (the "Note");
WHEREAS, Amershadian is in default under the Note, which by its terms
matured on May 24, 2006, and the entire principal amount thereof, plus
approximately $14,510 in accrued interest as of March 26, 2007, is currently due
and owing to the Company;
WHEREAS, Amershadian's obligations to CoActive under the Note are
secured pursuant to an Amended and Restated Pledge Agreement dated May 24,
2001(as amended, the "Pledge Agreement"), under which Amershadian has granted
CoActive a first priority perfected lien in and to, among other things, all
shares of CoActive common stock ("Common Stock") held by Amershadian, and all
options to purchase shares of Common Stock held by Amershadian ("Stock
Options");
WHEREAS, pursuant to a Restricted Stock Agreement dated as of January
18, 2007, Amershadian has been issued 52,500 shares of Common Stock which are
subject to forfeiture (the "Restricted Shares"); and
WHEREAS, Amershadian and CoActive have agreed to a termination of the
employment relationship between CoActive and Amershadian, and the settlement and
release of claims by each party on the terms set forth herein.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Termination of Employment Relationship; Resignation as Officer
and Director. Effective as of March 31, 2007 (the "Effective Date"), without any
further action of the parties hereto, Amershadian shall cease to be an officer
and employee of CoActive and its subsidiaries. CoActive shall reimburse
Amershadian for all reasonable expenses incurred by him until the Effective Date
consistent with Section 5 of the Employment Agreement.
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2. Payments and Consulting Services.
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(a) CoActive shall pay Amershadian a lump sum severance
payment in the amount of $50,000 on or before April 15, 2007 (the "Severance
Payment"). CoActive shall not be required to pay the Severance Payment to
Amershadian unless (i) Amershadian shall have performed all of his obligations
under this Agreement, as determined by CoActive in its reasonable discretion,
and (ii) all represenations and warranties of Amershadian hereunder shall be
true and correct in all material respects.
(b) For the three-month period beginning April 1, 2007
and ending June 30, 2007 (the "Consulting Period"), Amershadian shall
periodically consult with CoActive during regular business hours in a manner
commensurate with his current duties and in consideration therefor shall be paid
consulting fees in the amount of $12,500 per month, payable in periodic
installments in accordance with CoActive's regular practices. In addition, until
the end of the Consulting Period (i) CoActive shall pay all COBRA costs required
to provide Amershadian with continued medical benefits as currently provided to
him under Section 4(d) of the Employment Agreement, and (ii) Amershadian shall
continue to be entitled to the use of the cel phone and lap top computer
currently provided to him by CoActive.
(c) All references herein to compensation to be paid to
Amershadian are to the gross amounts thereof which are due hereunder. CoActive
shall have the right to deduct therefrom all taxes which may be required to be
deducted or withheld by applicable law.
3. Settlement of Indebtedness. Amershadian hereby represents and
warrants to CoActive that, excluding the Restricted Shares, he is the owner of
record of 163,196 shares of Common Stock (the "Shares"), which are subject to
CoActive's first-priority perfected security interest. Concurrently with the
execution of this Agreement (i) all Stock Options shall terminate and cease to
be exercisable, and (ii) Amershadian shall sell and transfer all of the Shares
to the persons identified on Schedule 1 hereto (the "Purchasers"), at a price
per Share equal to 85% of the average closing sales price of the Common Stock on
the Nasdaq Capital Market for the five trading days preceding the date of this
Agreement. CoActive's lien and security interest on the Shares shall attach to
the proceeds of such sale, which shall be paid by the Purchasers directly to
CoActive and applied against the oustanding indebtedness under the Note. By his
execution hereof, Amershadian authorizes CoActive and its agents to cause the
Shares to be transferred to the Purchasers upon receipt by CoActive of the
purchase price therefor as provided herein, and in connection therewith
Amershadian hereby appoints CoActive and its agents as his attorney-in-fact and
proxy with full authority and in his name or otherwise, to take any action and
to execute any instrument to effect such transfer. Upon receipt by CoActive of
such payment for the Shares (i) all of Amershadian's remaining indebtedness
under the Note shall be cancelled and deemed to have been satisfied in full, and
(ii) CoActive's lien and security interest on any other assets of Amershadian
shall be released. CoActive shall from time to time execute such releases as
Amershadian may reasonably request to evidence such release. CoActive may amend
Schedule 1 to this Agreement without Amershadian's consent to reflect any change
in the Purchasers of the Shares.
4. Release.
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(a) In exchange for the consideration provided for by
Sections 2 hereof and the cancellation of indebtedness under Section 3 hereof,
Amershadian for himself and for his heirs, executors, administrators and assigns
(hereinafter referred to collectively as "Releasors"), forever releases and
discharges CoActive and any of its now or hereafter existing subsidiaries,
divisions, affiliates or related business entities, successors and assigns and
any of their past or present shareholders, directors (including, without
limitation, the Purchasers), managers, officers, attorneys, agents, trustees,
administrators, employees or assigns (whether acting as agents for CoActive or
in their individual capacities) (hereinafter referred to collectively as
"Releasees"), from any and all claims, demands, causes of action, fees and
liabilities of any kind whatsoever, whether known or unknown, which Releasors
ever had, now have or may have against Releasees by reason of any actual or
alleged act, omission, transaction, practice, conduct, occurrence or other
matter up to and including the date hereof.
(b) Without limiting the generality of the foregoing,
this Agreement is intended to and shall release Releasees from any and all
claims, whether known or unknown, which Releasors ever had, now have and may
have against Releasees, including but not limited to any claims, whether or not
asserted, arising out of Amershadian's employment with Releasees and/or his
termination from such employment, including but not limited to: (i) any claim
under the Civil Rights Act of 1964, as amended; (ii) any other claim of
discrimination or retaliation in employment (whether based on federal, state or
local law, statutory or decisional); (iii) any claim arising out of the terms
and conditions of Amershadian's employment with CoActive, his termination from
such employment, and/or any of the events relating directly or indirectly to or
surrounding such termination; (iv) any claim of discrimination or breach of
fiduciary duty under the Employee Retirement Income Security Act of 1974, as
amended (except claims for accrued vested benefits under any employee benefit
plan of CoActive in accordance with the terms of such plan and applicable law);
(v) any claim arising under the Federal Age Discrimination in Employment Act of
1997, as amended ("ADEA"), and the applicable rules and regulations thereunder;
and (vi) any claim for attorney's fees, costs, disbursements and/or the like.
5. Covenant not to Sue. Amershadian covenants, except to the
extent prohibited by law, not to commence, maintain, prosecute or participate in
any action, charge, complaint or proceeding of any kind (on his own behalf
and/or on behalf of any other person or entity and/or on behalf of or as a
member of any alleged class of persons) in any court, or before any
administrative or investigative body or agency (whether public, quasi-public or
private), except if otherwise required by law, against Releasees with respect to
any act, omission, transaction or occurrence up to and including the date on
which this Agreement is executed.
6. Cooperation. Amershadian agrees to cooperate with CoActive and
its counsel in any action, proceeding or litigation relating to any matter in
which Amershadian was involved or of which Amershadian has knowledge as a result
of or in connection with his employment by CoActive.
7. Non-Disparagement. Amershadian agrees that he will not at any
time, orally or in writing, willfully denigrate, disparage, ridicule or
criticize, or willfully make any derogatory, disparaging or damaging statements
(or induce or encourage others to engage in any such act) regarding CoActive and
any of its subsidiaries, divisions, affiliates or related business entities,
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successors and assigns and any of their past or present shareholders, directors,
officers, attorneys, agents, trustees, administrators, employees or any other
representatives of CoActive or any of its respective products or properties,
including by way of news interviews or the expression of personal views,
opinions or judgments to the media. CoActive agrees that it will not at any
time, orally or in writing, willfully denigrate, disparage, ridicule or
criticize, or willfully make any derogatory, disparaging or damaging statements
(or induce or encourage others to engage in any such act) regarding Amershadian,
including by way of news interviews or the expression of personal views,
opinions or judgments to the media.
8. Confidentiality; Return of Corporate Property,
Non-Solicitation. Following the date hereof, Amershadian shall continue to be
bound by the provisions of Sections 11 and 12 of the Employment Agreement in
accordance with the terms thereof, provided, however, that notwithstanding
Section 12(a) of the Employment Agreement, and subject to compliance with this
Section 8, Amershadian shall be permitted to engage in a business competitive
with the business of CoActive, but only to the extent Amershadian does not,
directly or indirectly (i) solicit, induce or influence, or attempt to induce or
influence, any customer of CoActive to terminate, reduce or otherwise harm its
relationship with CoActive, or (ii) recruit, solicit, induce or influence, any
personnel of CoActive to discontinue, reduce the extent of, or otherwise harm
their relationship or commitment to CoActive.
9. Restricted Stock. Amershadian agrees and acknowledges that as
a result of Amershadian's termination of employment with CoActive hereunder, all
of the Restricted Shares are forfeited to CoActive.
10. Acknowledgment. Amershadian acknowledges that: (i) he has
carefully read this Agreement in its entirety; (ii) he has been advised by
CoActive to seek the advice of an attorney; (iii) he has had an opportunity to
consider fully the terms of this Agreement; (iv) he has been give 21 days in
which to consider whether to enter into this Agreement, which he has waived; (v)
he fully understands the significance of all the terms and conditions of this
Agreement; (vi) he has had answered to his satisfaction any questions he has
asked with regard to the meaning and significance of any of the provisions of
this Agreement; and (vii) he is signing this Agreement voluntarily and of his
own free will and assents to all the terms and conditions contained herein.
11. Governing Law. This Agreement shall be governed in all
respects by the laws of the State of New York without reference to its choice of
law rules.
12. Successors and Assigns. Except as otherwise provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
13. Entire Agreement; Amendment. This Agreement constitutes the
full and entire understanding and agreement between the parties with regard to
the subjects hereof. Neither this Agreement nor any term hereof may be amended,
waived, discharged or terminated other than by a written instrument signed by
the party to be charged.
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14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
15. Severability. The holding of any provision of this Agreement
to be invalid or unenforceable by a court of competent jurisdiction shall not
affect any other provision of this Agreement, which shall remain in full force
and effect.
16. Further Assurances. Each of the parties hereto shall use all
reasonable efforts to do, or cause to be done, all things necessary, proper or
advisable under applicable law to carry out the provisions of this Agreement,
and shall execute and deliver such instruments and other documents as may be
required to carry out the provisions of this Agreement, including, without
limitation, to effect the transfer of the Shares to the Purchasers pursuant to
Section 3 above.
17. Revocation. Amershadian shall have seven days from the date he
signs this Agreement to revoke his release of his rights under the ADEA by
delivering a written revocation to CoActive, which action by Amershadian shall
revoke such release. If Amershadian revokes such release, then such release
together with CoActive's obligations under Section 2 of this Agreement and the
proviso set forth in Section 8 of this Agreement, shall be void and
unenforceable, but all other provisions of this Agreement shall continue in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
COACTIVE MARKETING GROUP, INC.
By: /s/ CHARLIE TARZIAN
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Name: Charlie Tarzian
Title: Chief Executive Officer
/s/ PAUL A. AMERSHADIAN
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Paul A. Amershadian
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Schedule I
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Purchaser Shares
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Marc Particelli 66,598
Herbert M. Gardner 66,598
John A. Ward, III 30,000
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