AGREEMENTAND GENERAL RELEASE
AGREEMENT AND GENERAL RELEASE
This Agreement and General Release (‘‘Agreement’’), is hereby executed by and between (‘‘Executive’’ or ‘‘you’’), and AXS-One Inc. (the ‘‘Company’’) on behalf of its past, present and future parent entities, subsidiaries, divisions, affiliates and related business entities, successors and assigns, assets, employee benefit plans or funds, and any of its or their respective past, present and/or future directors, officers, fiduciaries, agents, trustees, administrators, employees and assigns, whether acting as agents for the Company or in their individual capacities (collectively the ‘‘Company Entities’’), and sets forth the parties’ agreement regarding Executive’s termination of employment.
1. The Company and Executive agree that Executive’s last day of employment with the company will be June 30, 2005 (the termination date). Executive’s coverage under the various employee benefit plans maintained by the Company shall terminate effective as of the termination date.
2. Following the Effective Date of this Agreement (as defined in paragraph 18 below), and in exchange for your waiver of claims against the Company Entities and compliance with other terms and conditions of this Agreement, the Company agrees to pay you severance of $337,500. This payment will be made to you as a salary continuation, paid on the Company’s normal pay dates, beginning on the pay date which is no sooner than fourteen days after the Effective Date of this agreement. Executive may purchase, if eligible, continuation health benefits coverage to the extent and for the period provided by federal law (COBRA), however, provided Executive executes, timely returns, and does not revoke this Agreement, the Company will pay for Executive’s COBRA benefits through December 31, 2006 in addition to, and not as a set off against, the severance set forth above.. For the avoidance of doubt, the Company paid COBRA benefits include only medical and dental insurance, and excludes all other employee benefits you currently are entitled to. Compensation and benefits already paid to you beginning July 1, 2005 shall count towards your severance hereunder.
You agree and acknowledge that the payments and benefits provided for by the above paragraphs constitute full payment to you of amounts which you might otherwise be entitled under any policy, plan or procedure of the Company or pursuant to any prior agreement or contract with the Company, including but not limited to, your employment agreement dated January 1, 2003.
3. You agree and acknowledge that the payment(s) and other benefits provided pursuant to this Agreement are in full discharge of any and all liabilities and obligations of the Company to you, monetarily or with respect to employee benefits or otherwise, including but not limited to any and all obligations arising under any alleged written or oral agreement (including, but not limited to, your employment contract), policy, plan or procedure of the Company and/or any alleged understanding or arrangement between you and the Company.
4. (a) In consideration for the payment and benefits to be provided you pursuant to paragraph ‘‘2’’ above, you, for yourself and for your heirs, executors, administrators, trustees, legal representatives and assigns (hereinafter referred to collectively as ‘‘Releasors’’), forever release and discharge the Company Entities from any and all claims, demands, causes of action, fees and liabilities of any kind whatsoever, whether known or unknown, which you ever had, now have, or may have against any of the Company Entities by reason of any act, omission, transaction, practice, plan, policy, procedure, conduct, occurrence, or other matter up to and including the date on which you sign this Agreement.
(b) Without limiting the generality of the foregoing, this Agreement is intended to and shall release the Company Entities from any and all claims, whether known or unknown, which Releasors ever had, now have, or may have against the Company Entities arising out of your employment, and/or the termination of that employment, including, but not limited to: (i) any claim under the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Employee Retirement Income Security Act of 1974 (excluding claims for accrued, vested benefits under any employee benefit or pension plan of the Company Entities in accordance with the terms and conditions of such plan and applicable law), and the Family and Medical Leave Act; (ii) any claim under the New Jersey Law Against Discrimination, the New Jersey Equal Pay Act, the New Jersey Family Leave Act, and the New Jersey Conscientious Employee Protection Act; (iii) any other claim (whether based on federal, state, or local law, statutory or decisional) relating to or
arising out of your employment, the terms and conditions of such employment, the termination of such employment, and/or any of the events relating directly or indirectly to or surrounding the termination of that employment, including but not limited to breach of contract (express or implied), wrongful discharge, detrimental reliance, defamation, emotional distress, retaliation, discrimination or harassment under any applicable law, or compensatory or punitive damages; and (iv) any claim for attorneys’ fees, costs, disbursements and/or the like. Nothing in this Agreement shall be a waiver of claims that may arise after the date on which you sign this Agreement.
(c) You acknowledge and agree that by virtue of the foregoing, you have waived any relief available to you (including without limitation, monetary damages, equitable relief and reinstatement) under any of the claims and/or causes of action waived in this paragraph ‘‘4’’.
5. The terms and conditions of this Agreement are and shall be deemed to be confidential, and shall not be disclosed by a party to any person or entity without the prior written consent of the other, except if required by law, and to a party’s accountants, attorneys and/or immediate family members, provided that, to the maximum extent permitted by applicable law, rule, code or regulation, they agree to maintain the confidentiality of the Agreement. You further represent that you have not disclosed the terms and conditions of the Agreement to anyone other than your attorneys, accountants and/or immediate family members. For the avoidance of doubt, the Company will be required by law to disclose the full terms of this agreement in an 8-K filing with the Securities and Exchange Commission, and file this agreement as an exhibit to such filing.
6. You acknowledge that during the course of your employment with the Company and/or any of the Company Entities, you have had access to information relating to the Company and/or the Company Entities and their respective business that is not generally known by persons not employed by the Company and/or the Company Entities and that could not easily be determined or learned by someone outside of the Company and/or the Company Entities (‘‘Confidential Information’’). You agree not to disclose or use such Confidential Information at any time in the future. You also hereby acknowledge and reaffirm that you remain bound by the restrictive covenants set forth in Paragraph 12 of your Employment Agreement dated January 1, 2003, as well as your continuing obligations under your Non-Disclosure Agreement dated July 12, 1991.
7. You represent that you have returned to the Company all property belonging to the Company and/or the Company Entities, including but not limited to keys, card access to the building and office floors, Employee Handbook, phone card, rolodex (if provided by the Company and/or the Company Entities), computer user name and password, disks and/or voicemail code. The Company agrees that you may keep your laptop computer and your cell phone. The parties acknowledge full compliance with this Paragraph 7.
8. If any provision of this Agreement is held to be illegal, void or unenforceable, such provision shall have no effect; however, the remaining provisions shall be enforced to the maximum extent possible. If a court should determine that any portion of this Agreement is overbroad or unreasonable, such provision shall be given effect to the maximum extent possible by narrowing or enforcing in part that aspect of the provision found overbroad or unreasonable.
9. This Agreement is not intended, and shall not be construed, as an admission that any of the Company Entities has or have violated any federal, state or local law (statutory or decisional), ordinance or regulation, breached any contract or committed any wrong whatsoever against you.
10. The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business or assets of the Company, by agreement in form and substance reasonably satisfactory to the Executive, expressly to assume and agree to perform this Agreement in the same manner and to the same extent the Company would be required to perform if no such succession had taken place. This Agreement will be binding upon and inure to the benefit of the Company and any successor to the Company, including without limitation any persons acquiring directly or indirectly all or substantially all of the business or assets of the Company whether by purchase, merger, consolidation, reorganization or otherwise (and such successor shall thereafter be deemed the ‘‘Company’’ for the purposes of this
Agreement), but will not otherwise be assignable, transferable or delegable by the Company. (b) This Agreement will inure to the benefit of and be enforceable by the Executive's personal or legal representatives, executors, administrators, successors, heirs, distributees and legatees.
11. This Agreement shall be construed and enforced in accordance with the laws of the State of New Jersey without regard to the principles of conflicts of law.
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement.
12. You understand that this Agreement constitutes the complete understanding between the Company and you, and, with the exception of the agreements referred to in paragraph ‘‘6’’ above, as well as the Restrictive Covenants set forth in Paragraph 12 of your Employment Agreement, dated January 1, 2003, and Paragraph 13 therein relating to Assignment of Inventions, which provisions shall survive the termination of your employment and are incorporated by reference into this Agreement, supersedes any and all agreements, understandings, and discussions, whether written or oral between you and any of the Company Entities. No other promises or agreements shall be binding unless in writing and signed by both an authorized representative of the Company and you after the Release Effective Date.
13. Omitted
14. Exception For Challenge Under the Older Workers Benefit Protection Act: The provisions of paragraph 4 are not intended to, and shall not affect Executive’s right to file a lawsuit, complaint or charge that challenges the validity of this Agreement under the Older Workers Benefit Protection Act, 29 U.S.C. § 626(f), with respect to claims under the Age Discrimination in Employment Act (‘‘ADEA’’). Furthermore, in the event of such a proceeding, the provisions of paragraphs 13 and 19 pertaining to the Company’s right to cease making payments pursuant to this Agreement, Executive’s obligation to repay monies paid pursuant to this Agreement, and the recovery of attorneys’ fees, shall not apply. This paragraph is not intended to and shall not limit the right of a court to determine, in its discretion, that the Company is entitled to restitution, recoupment or setoff of any monies paid should the release of ADEA claims in this Agreement be found to be invalid. Neither does this paragraph affect the Company’s right to recover attorneys’ fees or costs to the extent authorized under federal law. The provisions of paragraph 4 shall apply with full force and effect with respect to any other legal proceeding.
15. Acknowledgment of Receipt of Disclosure Information. Executive acknowledges receipt of Disclosure Information Provided Pursuant to Older Workers Benefit Protection Act, which is attached hereto as Schedule A.
16. Nondisparagement. The parties represent, each to the other, that they have not and agree that they will not in any way disparage the other and/or its employees, or make or solicit any comments, statements, or the like to the media or to others that may be considered to be derogatory or detrimental to the good name or business reputation of the other and/or its employees.
17. You acknowledge that you: (a) have carefully read this Agreement in its entirety; (b) have had an opportunity to consider this Agreement fully for at least forty-five (45) days; (c) have been, and are hereby, advised by the Company in writing to consult with an attorney of your choosing in connection with this Agreement; (d) fully understand the significance of all of the terms and conditions of this Agreement and have discussed them with your independent legal counsel, or have had a reasonable opportunity to do so; (e) have had answered to your satisfaction any questions you have asked with regard to the meaning and significance of any of the provisions of this Agreement; and (f) are signing this Agreement voluntarily and of your own free will and agree to all the terms and conditions contained herein.
18. You understand that you will have at least forty-five (45) days (the ‘‘Consideration Period’’) from the date of receipt of this Agreement to consider the terms and conditions of this Agreement. You may accept this Agreement by signing it and returning it to Elizabeth Mack, Human Resources, AXS-One Inc., 301 Route 17 North, Rutherford, NJ 07070. After executing this Agreement, you shall
have seven (7) days (the ‘‘Revocation Period’’) to revoke this Agreement by indicating your desire to do so in writing delivered to Elizabeth Mack at the address above (or by fax at ###-###-####) by no later than 5:00 p.m. on the seventh (7th) day after the date you sign this Agreement. The effective date of this Agreement shall be the eighth (8th) day after you sign the Agreement (the ‘‘Effective Date’’). If the last day of the Consideration or Revocation Period falls on a Saturday, Sunday or holiday, the last day of the Consideration or Revocation Period, as applicable, will be deemed to be the next business day. In the event you do not accept this Agreement as set forth above, or in the event you revoke this Agreement during the Revocation Period, this Agreement, including but not limited to the obligation of the Company to provide the payment(s) and other benefits referred to in paragraph ‘‘2’’ above, shall be deemed automatically null and void.
19. Any notice given to a Party shall be in writing and shall be deemed to have been given when delivered personally or sent by certified or registered mail, postage prepaid, return receipt requested, duly addressed to the Party concerned at the address indicated below or to such changed address as such party may subsequently give such notice of
If to the Company:
AXS-One Inc., 301 Route 17 North, Rutherford, NJ07070
If to the Executive:
Gennaro Vendome, 22 Wayside Place, Montclair, NJ07042
20.
: /s/ Gennaro Vendome Date: 10-13-2005
Gennaro Vendome
THE COMPANY
By: /s/ Joseph P. Dwyer
Print Name: Joseph P. Dwyer
Title: CFO
