Exhibit 10.1
SEPARATION AND CONSULTING AGREEMENT
This
Separation and Consulting Agreement (“Agreement”) is
made and entered into this 12th day of October, 2007, by and
between info USA, Inc., its subsidiaries and affiliates
(“Company”) and Monica Messer
(“Messer”).
BACKGROUND
WHEREAS,
Messer is employed by Company as Chief Operations Officer and
intends to resign from that position effective October 1,
2007.
WHEREAS,
the Company intends to accept Messer’s resignation and
recognizes Messer’s many years of service to Company.
WHEREAS,
the Company and Messer desire to enter into a relationship pursuant
to which Messer will provide services to Company as a
consultant.
NOW
THEREFORE, in consideration of the promises and covenants contained
in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties, intending to be legally bound, agree as follows:
1.
Resignation . Messer’s employment with Company will
terminate effective October 1, 2007 (the “Resignation
Date”). Company shall pay Messer her regular compensation
through the Resignation Date, less appropriate payroll deductions,
on the pay date immediately following the Resignation Date.
2.
Paid Time Off (PTO) and Other Benefits . Company will
pay Messer for accrued, unused PTO, less appropriate payroll
deductions, on the pay date immediately following the Resignation
Date. All other Company benefits shall end on the Resignation Date,
and Messer acknowledges that she is not entitled to any additional
benefits, bonuses, or other compensation following the Resignation
Date, except as set forth in this Agreement.
3.
Stock . Messer may sell or transfer her shares of stock or
exercise any vested stock options pursuant to the terms and
conditions of the relevant stock purchase or option plan(s).
4.
Consulting Services . In exchange for the covenants,
agreements and release as provided in this Agreement, Company
agrees to engage Messer for a period of two years beginning on the
first business day after the Resignation Date, subject to earlier
termination as described below (the “Consulting
Period”), to provide consulting services to Company involving
transition and advisory services as may be reasonably requested by
Company concerning Company matters of which Messer is knowledgeable
and assistance and cooperation with any pending or future audit or
litigation (the “Consulting
Services”). The Consulting Services shall not exceed
thirty-five (35) hours per month, which shall not be
cumulative. Consulting Services shall be requested only in areas
consistent with Messer’s knowledge, skill and
experience.
| |
a. |
|
Company will pay Messer the monthly gross amount of $40,000.00
for the Consulting Services provided by Messer during the
Consulting Period and in consideration of the other covenants and
promises contained herein. The first payment shall be made at the
end of the first month of the Consulting Period and then at the end
of each subsequent month during the Consulting Period. Messer
acknowledges that she is responsible for paying all taxes due and
payable on amounts taxable as income in accordance with federal,
state and local laws, and Messer agrees to indemnify and hold
Company harmless from all tax obligations, including penalties and
interest, relating to amounts payable under this Agreement. |
| |
| |
b. |
|
Messer acknowledges that she is an independent contractor with
regard to the Consulting Services and that no employment,
partnership or other relationship is created by this Agreement.
Messer shall be responsible for any and all expenses incurred by
her in the performance of the Consulting Services unless otherwise
agreed to in writing by Company. Messer further acknowledges that
Company will not obtain workers’ compensation or any other
insurance on her behalf. Messer shall have no right or authority,
express or implied, to incur any liability or obligation on behalf
of or in the name of Company. |
| |
| |
c. |
|
During the Consulting Period, Messer shall not, directly or
indirectly, on her behalf or on behalf of or in conjunction with
any person or entity, solicit the business of any of
Company’s customers other than on behalf of Company, engage
in, or become an employee of or render services to, any business
which is in competition with the business of Company. |
| |
| |
d. |
|
If during the Consulting Period, Messer discontinues the
provision of Consulting Services to Company or if Messer violates
any of the terms of this Agreement, Company may, at its election,
after forty (40) days written notice to Messer during which
the violation or breach has not been reasonably cured, immediately
terminate the Consulting Period and Company’s obligation to
pay or continue paying Messer under this Agreement shall
terminate. |
5.
Nondisclosure . Messer acknowledges that employment and
performing Consulting Services with Company necessarily involves
access to and familiarity with highly sensitive confidential and
proprietary information and data belonging to Company including,
without limitation, information about employees, compensation,
customers, pricing, software, trade secrets, business methods and
operations, financial performance, marketing strategies, and
know-how regarding the business of Company and its products and
services (collectively referred to herein as “Confidential
Information”).
2
Therefore,
as part of the consideration to Company for entering into this
Agreement, Messer shall not disclose to any third party including,
without limitation, Company’s customers or other individuals,
employees, corporations, partnerships, sole proprietorships or any
other person or entity (collectively the “Third Party”)
any Confidential Information or use any Confidential Information
for her own benefit or the benefit of any Third Party. Messer shall
immedi
|
