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Exhibit
10.13
AGREEMENT AND GENERAL
RELEASE
For good and valuable
consideration, rendered to resolve and settle finally, fully, and
completely all matters that now or may exist between them, the
parties below enter this Agreement and General Release as of
September 1, 2006.
1. Parties . The
parties to this Agreement are David Page, his heirs,
representatives, successors and assigns (hereinafter referred to
collectively as “Mr. Page”) and PAR3
Communications, Inc. and/or any of its successors, subsidiaries,
affiliates, parents, and related companies (hereinafter referred to
collectively as “PAR3” or the
“Company”).
2. Separation from
Employment . Mr. Page acknowledges and agrees that
the effective date of his separation from employment with the
Company is December 15, 2006 (the “Separation
Date”), after which date he will continue in service to the
Company in the capacity as a consultant. Mr. Page shall
continue to receive his current salary and benefits up to and
including the Separation Date. Mr. Page shall continue in his
position as Senior Vice President and General Manager up to and
including the Separation Date provided that (i) his average
time commitment will be reduced to approximately half-time (or such
other time commitment as the parties mutually agree upon) effective
as of August 15, 2006 and (ii) his duties will consist of
transition related activities and strategic projects assigned by
the CEO. Mr. Page will be eligible to receive a prorated
performance bonus for 2006 based on individual and Company
performance.
3. Separation Benefits
. As consideration for the promises and covenants of
Mr. Page set forth in this Agreement and provided (i the
Company is not otherwise entitled to terminate him prior to the
Separation Date for “Cause,” as defined under the terms
of his Employment Agreement dated November 30, 2005 (provided,
however, that such definition shall be adpated, mutatis mutandis,
in light of the reduced responsibilities and time commitments
specified herein), and (ii) Mr. Page signs the Second
Release attached hereto as Exhibit A on or within 21 days
following the Separation Date and does not revoke it, the Company
shall provide Mr. Page with the following separation
benefits:
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(a) |
Severance Pay. The Company shall provide
Mr. Page with a one-time severance payment equal to $229,000,
less applicable withholding taxes, payable on the eighth day
following his execution and delivery of the Second Release,
provided that if such date is prior to January 2, 2007,
Mr. Page may elect to delay such payment until January 2,
2007 in his sole discretion. |
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(b) |
Continued Medical Insurance . The Company will pay
the applicable premiums for Mr. Page and his dependents
through June 30, 2007 in order to continue their current group
medical insurance coverage pursuant to the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended,
(“COBRA”). |
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(c) |
Retained Consultant. The Company shall retain
Mr. Page’s services as a consultant for a six-month
period following the Separation Date. For this retention,
Mr. Page shall be paid a monthly fee of $1,000.00, which sum
shall be paid at the end of each month and shall be in addition to
the severance payment described in Paragraph 3(a) above. Because
this is a consulting fee, payroll taxes will not be withheld and a
1099 form will be issued following the end of the calendar year.
Projects and related scope will be mutually agreed to in advance of
each assignment. |
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(d) |
Continued Vesting of Options. The consulting
services set forth in Section 3(c) above shall be deemed
“Continuous Service Status” under the Company’s
2000 Stock Option Plan (the “Plan”) for purposes of the
option granted to Mr. Page on December 6, 2005 (the
“Option”) such that the Option will continue to vest
through June 15, 2007 (the “Six Months Continued
Vesting”). Mr. Page shall have 180 days following
June 15, 2007 to exercise the Option. Mr. Page shall not
be entitled to any acceleration benefits (other than acceleration
to the amount that would be vested as of June 15, 2007
pursuant to the Six Months Continued Vesting) pursuant to
Section 12(c) of the Plan for any Corporate Transaction or
Change of Control that is consummated after the Separation Date.
Solely for the purposes of determining his rights under the Plan,
Mr. Page further acknowledges and agrees that his termination
of employment and transition to a consulting role shall not be
deemed to be in connection with or within 12 months following a
Change of Control for purposes of Section 12(c) of the
Plan. |
4. Release of Claims by
Mr. Page . Subject to the last sentence of this
Section 4, in exchange for the promises contained in this
Agreement, Mr. Page hereby waives, releases, and forever
discharges, and agrees that he will not in any manner institute,
prosecute or pursue, any and all complaints, claims, charges, or
causes of action, whether in law or in equity, which he asserts or
could assert, at common law or under any statute, rule, regulation,
order or law, whether federal, state, or local, or on any grounds
whatsoever, including but not limited to, any claims under Title
VII of the 1964 Civil Rights Act, as amended, the Age
Discrimination in Employment Act of 1967, the Equal Pay Act of
1963, the Americans With Disabilities Act, the Massachusetts
Fair
Employment Practice Act, the Fair Labor
Standards Act, the Employee Retirement Income Security Act of 1974,
as related to severance benefits, and the family and medical leave
acts, against PAR3 and any of its or their current or former
owners, shareholders, agents, employee benefit plans,
representatives, servants, employees, attorneys, successors,
predecessors, and assigns (collectively referred to as
“Released Parties”) with respect to any event, matter,
claim, damage or injury arising out of Mr. Page’s
employment relationship with PAR3, and Mr. Page’s
separation from such employment relationship, under or
relat
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