Exhibit 10.13
SEPARATION AGREEMENT AND
GENERAL RELEASE
This SEPARATION AGREEMENT AND GENERAL
RELEASE (“Agreement”) is made as of this 18
th day of June 2009 by and between MEDIALINK
WORLDWIDE INCORPORATED, a Delaware corporation, having an address
at 708 Third Avenue, New York, New York 10017
(“Medialink”), and LAWRENCE A. THOMAS, an individual
residing at 204 Borden Road, Middletown, New Jersey 07748
(“Thomas”).
NOW, THEREFORE, in consideration of the mutual promises and
covenants hereinafter set forth, the parties agree as
follows:
1. This
Agreement shall be deemed effective (the “Effective
Date”) upon the execution date of that certain agreement and
plan of merger (the “Merger Agreement”) between
Medialink, The NewsMarket, Inc. (“TNM”) and a wholly
owned subsidiary of TNM (the “Merger Partner”);
provided, however, that in the event that the proposed merger
transaction (the “Merger”) pursuant to the Merger
Agreement is not consummated by December 31, 2009, then this
Agreement shall be null and void and of no force and
effect.
2. Thomas
and Medialink are parties to that certain Employment Agreement
dated as of September 9, 2005 (the “Employment
Agreement”) pursuant to which Thomas performed duties as the
Chief Operating Officer of Medialink. Certain terms of
the Employment Agreement, including without limitation, Sections
4.3, 4.6, 4.7, 5.2-5.4, 8.3 and 11 are expressly modified by the
terms of this Agreement. Thomas’s employment
relationship with Medialink will be deemed (with no further action
required by Medialink) terminated by Medialink effective as of the
date on which the Merger becomes effective (the “Termination
Date”). The termination of Thomas’s
employment hereunder shall not be deemed a For Cause termination,
as such term is defined in the Employment
Agreement. Nothing herein shall be deemed to affect
Thomas’s compensation or benefits prior to the Termination
Date.
3. Thomas
acknowledges that he fully understands the terms and implications
of this Agreement. Thomas has carefully considered other
alternatives to executing this Agreement and has decided that he
will execute this Agreement.
4. Thomas
understands that he will have up to twenty-one (21) days from the
date hereof to review and execute this Agreement and that he shall
have the right, within seven (7) days after his execution of this
Agreement, to revoke same unless such right is waived by
Thomas. If and to the extent Thomas executes this
Agreement prior to the expiration of the twenty-one (21) day period
referred to above, Thomas represents and warrants to Medialink that
he has done so knowingly and voluntarily.
5. Thomas
further recognizes that he executes this Agreement voluntarily and
that Medialink requires that he discuss the same with his legal
advisors to ensure full and thorough knowledge of the legal
significance of this Agreement. Medialink agrees to
reimburse Thomas for all reasonable legal fees incurred in the
review of this Agreement, up to a maximum reimbursement of
$1,500. Thomas has been represented by Moses &
Singer LLP in his review and consideration of this
Agreement.
6. (a) In
lieu and in place of any payments or benefits otherwise due Thomas
under Sections 4.3, 4.6, 4.7, 5.2-5.4 and 8.3 of the Employment
Agreement and in consideration for Thomas signing and adhering to
the terms and conditions of this Agreement, Thomas will receive the
gross amount of One Hundred Fifty Thousand ($150,000) Dollars,
subject to downward adjustment as set forth below, which amount
shall be reduced by all applicable deductions as shall be required
to be withheld by applicable law and regulation (the
“Severance Payment”). Such Severance Payment
will be payable in one lump sum no later than fifteen (15) business
days after the Termination Date and shall not be offset by any
amounts Thomas earns or could have earned with reasonable diligence
after the Termination Date. Thomas expressly releases
Medialink from making any payments or making any benefits available
pursuant to Sections 4.3, 4.6, 4.7, 5.2-5.4 and 8.3 of the
Employment Agreement.
(b) The
amount of the Severance Payment referenced above is subject to
downward adjustment based on Medialink’s Adjusted Cash
Balance as of the closing of the Merger (the
“Closing”). For purposes of this
calculation, Adjusted Cash Balance means the sum of (A) the actual
cash available at the Closing (after payment or accrual of
Medialink’s transaction costs associated with the Merger) (i)
prior to payment of (x) contractual and non-contractual severance
obligations (including the Severance Payment) and (y) 2009 board of
directors’ fees, and (ii) adjusted, upward or downward for
the Working Capital Adjustment (as such term is defined in the
Merger Agreement) and (B) the amount of severance obligations
assumed by the Merger Partner pursuant to the Merger
Agreement. The amount of the Severance Payment shall be
adjusted as follows:
(i) If
the Adjusted Cash Balance is at least equal to $1,126,000, there
shall be no adjustment to the amount of the Severance
Payment;
(ii) If
the Adjusted Cash Balance is less than $1,126,000, then the
Severance Payment shall be reduced by an amount equal to the
product of (x) 0.158 and (y) the amount by which the actual
Adjusted Cash Balance falls short of $1,126,000.
For purposes of
clarification, an adjustment shall be made pursuant to only one of
Sections 6(b)(i) or 6(b)(ii) above, but not both.
(c) Thomas
and Medialink agree that notwithstanding anything to the contrary
herein, in the event that during the period between the Effective
Date and the Termination Date, Thomas dies or suffers a Disability
(as such term is defined in Section 6.1 of the Employment
Agreement), then Thomas (or his estate, as the case may be) shall
be entitled to receive from Medialink the benefits set forth in
Sections 5.2 (upon death) or 5.4 (upon a Disability) of the
Employment Agreement until the Termination Date, and from and after
the Termination Date, if any, Thomas (or his estate, as the case
may be) shall receive, in lieu of such benefits, the payment set
forth in Section 6(a), as adjusted by Section 6(b) of this
Agreement.
7. The
Company agrees to pay and Thomas acknowledges that he will have
been paid his accrued and unpaid salary and bonus through the
Termination Date and is not entitled to any further payments for
same. Thomas further acknowledges that he will not be
entitled to participate in any of Medialink’s benefit plans
after the Termination Date; provided, however, that Thomas may
continue to participate in Medialink’s hospitalization and
group health benefit plans pursuant to the Consolidated Omnibus
Budget Reconciliation Act (COBRA) at Thomas’s sole cost and
expense, unless otherwise provided by law.
8. As
a condition to Thomas receiving the Severance Payment referenced
above and as a material inducement for Medialink to enter into this
Agreement:
(a) Thomas
agrees to be available to Medialink for telephone consultations for
up to thirty (30) days after the Termination Date. In no
event shall Thomas be required to be available for more than an
aggregate of ten (10) hours during such period.
(b) Thomas
agrees that on the Termination Date, Thomas shall deliver all
Medialink Property, as hereinafter defined, in his custody or
possession to Medialink or its representatives, and Thomas
represents and warrants that no such Medialink Property or copies
thereof have been knowingly retained by him, any of his
representatives or any person, firm or corporation owned or
controlled by him or delivered to any third party other than in the
normal course of performing his duties pursuant to the Employment
Agreement. The term “Medialink Property” as
used herein means any and all confidential or proprietary materials
belonging to Medialink that are in Thomas’s possession,
including but not limited to books, records, files, documents,
accounting or financial records, statements, reports, equipment,
computer hardware, computer software, programs, contact lists,
customer data and files (hardcopies and electronic), any
proprietary information or data of Medialink in any format and any
and all copies thereof, hard drives, keys to Thomas’s offices
and files, computer passwords provided by Medialink to Thomas,
passwords established by Thomas on Medialink hardware and passwords
established by Thomas on any file containing Medialink
information. Notwithstanding the foregoing, Thomas shall
be permitted, at his sole option, to retain the cell phone and
phone number, pda/BlackBerry, laptop computer with one docking
station and one monitor that were used by Thomas immediately prior
to the Termination Date; provided however, that all Medialink
Property must be removed from each item retained, and each retained
item shall be subject to prompt review and modification by
Medialink’s IT personnel to ensure that all Medialink
Property has been permanently removed therefrom. In
addition, the laptop computer, if any, retained by Thomas shall be
reformatted by Medialink’s personnel; provided, however, that
Medialink will reload standard software (including, but not limited
to, Microsoft Office and Adobe Acrobat) on the retained laptop
computer and, to the extent reasonably practicable, provide Thomas
with the pertinent licenses, discs, and manuals related to such
reloaded software. After the Termination Date, Thomas,
and not Medialink, shall be responsible for any service fees
associated with the use and maintenance of any of the retained
items.
(c) Thomas
acknowledges that the principal business of Medialink is providing
video and audio production and satellite and other distribution
services to television and radio stations and online news outlets
for corporations and other organizations seeking to communicate
their news to the public (the
“Business”). Thomas acknowledges that he
h
