EXHBIT 10.1
AGREEMENT
This
Agreement (this “ Agreement ”) is executed
as of August 8, 2007 (the “ Effective Date
”) by and among Philip N. Garfinkle (the “
Executive ”) and a21, Inc., a corporation formed
under the laws of the State of Delaware (the “
Company ” or “ a21 ”) (each, a
“ Party ” and, collectively, the “
Parties ”).
WHEREAS , the Executive and the Company entered into a
written agreement effective as of October 9, 2006 (the “
Employment Agreement ”) relating to the employment of
the Executive by the Company; and
WHEREAS , the Executive desires to resign his employment
with the Company and the Executive and the Company wish to set
forth their respective rights, liabilities and obligations, if any,
under the Employment Agreement, as provided herein.
NOW, THEREFORE , in consideration of the premises and the
mutual covenants and agreements set forth below, and for other good
and valuable consideration, the receipt and sufficiency of which
the Parties hereby acknowledge, the Parties hereto agree as
follows:
W I T N E S S E T H
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1.
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Termination of Employment, Severance .
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(a)
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The
Executive’s employment with the Company is hereby terminated
as of August 8, 2007 (the “ Termination Date
”). The Company will, in the aggregate, pay the
Executive severance (the “ Severance ”) equal to
seven (7) month’s salary, in the amount of $96,250, paid in
installments, at such intervals as the Company regularly makes
payments to employees generally, over such seven (7) month period
(the “ Severance Period ”). Executive
shall also be eligible to receive a bonus (the “ Bonus
”) pursuant to the terms of paragraph 3(c) of the Employment
Agreement in the amount of $37,125. The Severance
payments shall commence and the Bonus shall be paid as soon as
reasonably practicable following (i) Executive’s execution
and delivery of this Agreement in accordance with the terms of
Section 20 below and (ii) the expiration of the 7-day revocation
period provided for in Section 20 below without Executive revoking
this Agreement pursuant to the terms thereof. Executive
understands and agrees that the Company will deduct from the
Severance and Bonus all federal, state and/or local withholding
taxes and other deductions the Company is required by law to make
from its wage payments to employees. The Executive
hereby resigns, effective the Termination Date, as the Executive
Chairman and as a Director of the Company and from each and every
other position he may hold at the Company and its
affiliates. In the event that the Executive fails to
comply with any material
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provision
of this Agreement, the Severance payments hereunder shall be
immediately cancelled, if the Company has provided written
notice to the Executive and provide a period of ten (10) days
to cure such non-compliance, if capable of cure.
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(b)
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The
Company agrees that all of the Executive’s vested stock
options may be exercised by the Executive after the Effective Date
in accordance with the terms of the Executive’s Employment
Agreement (the “ Option Expiration Date
”). After the Option Expiration Date, all of the
Executive’s unexercised stock options shall be
cancelled.
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(c)
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The
Company agrees that all of the Executive’s unvested shares of
restricted common stock as of the Effective Date shall continue to
vest in accordance with the terms and conditions contained in the
Employment Agreement. The then unvested shares of
restricted common stock shall be forfeited if the Executive
breaches any of the terms and conditions of this
Agreement.
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2.
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Consideration . Except as specifically provided in
this Agreement, the Employment Agreement is hereby cancelled and
terminated and none of the parties thereto shall have any
obligations to each other under the Employment Agreement, except as
set forth in this Agreement. Executive hereby
acknowledges and agrees that the provisions of the Employment
Agreement relating to any severance payments that Executive would
be entitled to receive thereunder are cancelled and hereby
terminated, and that except as provided in this Agreement,
Executive has no legal or other entitlement to the arrangements
described in the Employment Agreement, and that the Company’s
agreement to make such payments and provide the other consideration
specified in this Agreement, is sufficient consideration for the
general release, non-solicitation and non-competition terms set
forth respectively in this Agreement.
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3.
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No Other Payments . The Executive acknowledges that,
as of the date hereof, the Company has made or has agreed in this
Agreement to make all payments to the Executive as required under
the Employment Agreement or otherwise for wages that the Executive
has earned through the Termination Date hereof including bonuses,
if any; and has reimbursed the Executive for all expenses he
incurred on behalf of the Company to the date hereof (except for
company expenses from May through the Effective Date to be
reimbursed in a timely manner) and was entitled to be reimbursed
for; and, except as provided in this Agreement, the Company
currently owes him no other payments of any kind and of any
nature. Without limiting the generality of the
foregoing, except as provided in this Agreement, the Executive
hereby relinquishes any and all right he may have under the
Employment Agreement to receive cash payments, benefits, shares and
options including, without limitation, under the provisions of
Sections 3(a), (b), (c), (d), (e) and (f) of the Employment
Agreement.
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(a)
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Except
for the obligations undertaken by the Company under this Agreement,
Executive hereby covenants and agrees and releases the Company, and
all of its respective Affiliates (as defined below), and their
respective employees, officers, directors and agents, from any and
all debts, demands, actions, causes of action, suits, dues, sum and
sums of money, accounts, reckonings, bonds, specialties, covenants,
contracts, controversies, agreements, promises, doings, omissions,
variances, damages, extents, executions and liabilities and any and
all other claims of every kind, nature and description whatsoever
(collectively, “ Claims ”) the Executive (or
Executive’s respective successors and assigns) has or
hereafter can, shall or may have based on the Executive’s
employment by the Company, any events that may have occurred during
the course of his employment or the termination of that employment,
or any other matters or claims of any kind or nature from the
beginning of the world to the Effective Date (including without
limitation, those arising out of or which may hereafter be claimed
to arise out of the Employment Agreement or Executive’s
status as a shareholder of the Company). Without
limiting the generality of the foregoing, the scope of this release
includes (but is not limited to) a release of any and all claims
for unpaid wages or other compensation, breach of contract,
wrongful discharge, disability benefits, health and medical
insurance, sick leave and employment
discrimination. Executive acknowledges and agrees that
he is specifically releasing any rights or claims he may have
under: the Age Discrimination in Employment Act
(“ADEA”) (which prohibits discrimination in employment
based on age); Older Workers Benefit Protection Act of 1990
(“OWBPA”) (which also prohibits discrimination in
employment based on age); Title VII of the Civil Rights Act of
1964, which prohibits discrimination in employment based on race,
color, national origin, religion or sex; the Equal Pay Act, which
prohibits paying men and women unequal pay for equal work; Title I
of the Americans with Disabilities Act; the New York Human Rights
Law; the New York City Human Rights Law; and all other federal,
state and local laws and regulations prohibiting discrimination in
employment. Executive acknowledges and agrees that this
release covers not only claims that he knows about, but also claims
that he might not know about. Executive covenants and
agrees that the release set forth in this Section 4 shall be
binding upon his successors and assigns. By signing this
Agreement, Executive acknowledges and agrees that he is forever
giving up his rights to make any of the claims or demands mentioned
above. For purposes of this Agreement,
“Affiliate” means any entity that controls, is
controlled by, or is under common control with the
Company.
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(b)
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Except
for the obligations undertaken by the Executive under this
Agreement, the Company, for good and valuable consideration, the
receipt of which is hereby acknowledged, hereby forever remises,
releases and discharges the Executive, and his or its subsidiaries,
divisions, stockholders, directors, officers, managers, employees
and agents, from all Claims (upon any legal or equitable
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