exv10w1



 





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 infoUSA, 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”).




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          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 immediately return
all Confidential Information, including all copies of same, in any form (including computer
records), to Company. Messer shall also immediately return all Company property including, without
limitation, Company credit cards, Company keys, and Company calling cards.




          6.     Nonsolicitation/Noncompetition. If the Consulting Period is terminated by Company
prior to the end of the term, pursuant to 4.d. above, all of Messer’s noncompete restrictions set
forth in any agreement between Company and Messer shall be modified to provide as follows:





	 	a.	 	For the twenty-four (24) months from and after the Resignation Date, Messer
will not, directly or indirectly, on Messer’s behalf or by aiding any other individual
or entity:






	 	i.	 	Call on, solicit the business of, sell to, service, or accept
business from any of Company’s customers with whom Messer had personal contact
and did business within the twelve (12) month period immediately prior to the
termination of her employment for the purpose of providing the customer with
products and/or services of the type or character typically provided by
Company; or
	 
	 	ii.	 	Encourage any vendor or supplier of Company to curtail,
sever, or alter its relationship or business with Company.





          7.     Indemnification. Messer hereby agrees to indemnify, defend and hold Company
harmless with respect to any and all actions, suits, proceedings, investigations, demands or claims
which are incurred by or brought against Company during the Consulting Period arising out of or
related to the performance of the Consulting Services or by reason of Messer’s gross negligence,
criminal acts or gross misconduct. Company hereby agrees to indemnify, defend and hold Messer
harmless with respect to any and all actions, suits, proceedings, investigations, demands or claims
which are incurred by or brought against Messer during the Consulting Period arising out of or
related to the performance of Consulting Services.




          8.     No Disparaging Comments. Messer covenants and agrees that she will not directly or
indirectly, verbally or in writing, make statements to any Third Party which defame or disparage
Company’s reputation (including its parent, subsidiaries or affiliates), its business, services,
products, or its directors, officers, employees or agents.




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          9.     No Admission. Messer agrees that neither this Agreement nor any obligations under
this Agreement constitute an admission by Company of any violation of any federal, state or local
laws, rules or regulations or of any liability under contract or tort theories. Company
specifically disclaims any wrongdoing whatsoever against Messer on the part of Company or its
parent, subsidiaries or affiliates or their respective officers, directors, employees or agents.




          10.     Release. Messer hereby releases and forever discharges Company, its parent,
subsidiaries and affiliates, and their respective officers, directors, employees and agents, from
any and all claims, damages (including attorney fees), demands, actions or causes of action of any
kind or nature, whether known or unknown, that Messer has, or may have, up to and including the
date of this Agreement, arising out of Messer’s employment with Company and/or the termination of
Messer’s employment with Company, (collectively the “Claims”) including, but not limited to, any
Claim alleging breach of the Stock Option Agreement or Plan, or any other contract, express or
implied, promissory estoppel or any tort, and Claims under any federal, state statute or local
ordinance, or government regulation or common laws, including, but not limited to, the Age
Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Americans With
Disabilities Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Employee
Retirement Income Security Act, the Nebraska Fair Employment Practice Act, and the Nebraska Wage
Payment and Collection Act, all as amended. Company’s obligation to indemnify Messer from claims
as set forth in paragraph 7 herein is not released herein.




          11.     Review Period. Messer confirms and acknowledges that she has read and understands
this Agreement and that she has signed this Agreement freely and voluntarily. Messer further
acknowledges that she has been given up to twenty-one (21) days from October 1, 2007, to consider
signing this Agreement (the “Review Period”). Messer agrees that any changes made to this
Agreement, whether material or immaterial, did not restart the running of the Review Period.
Messer may sign this Agreement before the expiration of the Review Period by signing and delivering
to Company this Agreement and the Waiver of the 21-Day Review Period attached hereto as Exhibit “A”
and incorporated by this reference.




          12.     Consultation with Attorney. Messer acknowledges that she has been advised to
consult with an attorney of her choosing prior to signing this Agreement and has done so. Messer
will be solely responsible for any attorneys’ fees she incurs in connection with this Agreement.




          13.     Right of Revocation. Messer acknowledges and understands that she may revoke this
Agreement for a period of up to seven (7) days after she executes it (not counting the day it is
signed). To revoke this Agreement, Messer must give written notice to Company stating that she
wishes to revoke this Agreement, by providing notice by hand-delivery, mail or facsimile to John H.
Longwell, General Counsel, infoUSA, Inc., 5711 South 86th Circle, Omaha, Nebraska,
68127, (402), 537-6197. This Agreement




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shall become effective upon the expiration of the seven (7) day revocation period (the
“Effective Date”).




          14.     Remedies. Messer expressly acknowledges that each of her obligations hereunder
are considered material terms of this Agreement. Messer further acknowledges that any material
breach or violation of any of the covenants and agreements contained in this Agreement may, at the
Company’s election and after forty (40) days written notice to Messer during which the violation or
breach has not been reasonably cured, be deemed to cause immediate and irreparable injury to
Company and that in the event of a breach or threatened or intended breach of this Agreement by
Messer, Company, in addition to all other legal and equitable remedies available to it, shall be
entitled to injunctive relief to enforce the covenants, agreements and restrictions set forth
herein. Additionally, upon a breach of this Agreement by Messer, and after the written notice and
cure period, and failure to cure, all further obligations of Company with respect to payments of
any amounts under this Agreement shall terminate.




          15.     General.





	 	a.	 	Governing Law and Venue. This Agreement shall be construed in
accordance with the laws of the State of Nebraska. Messer hereby expressly consents
to the personal jurisdiction of the state and federal courts located in Nebraska for
any lawsuit that arises from or relates to this Agreement. Messer hereby agrees to
the exclusive venue in Nebraska.
	 
	 	b.	 	Entire Agreement. This Agreement sets forth the entire Agreement and
understanding of the parties relating to the subject matter hereof, and supersedes all
prior agreements, arrangements and understandings, written or oral between the
parties, except as otherwise provided herein. Messer acknowledges that she has not
relied on any representation or statement not set forth in this Agreement by any
representative of Company.
	 
	 	c.	 	Amendments. Any amendment to, modification of, or supplement to this
Agreement must be in writing and signed by the parties hereto.
	 
	 	d.	 	Binding Effect. This Agreement and the rights, interests and
obligations of Company hereunder shall be assignable by Company. This Agreement is
not assignable by Independent Consultant without Company’s advance written consent.





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          IN WITNESS WHEREOF, the parties hereto have executed this Separation and Consulting Agreement
as of the day and year first above written.




infoUSA, Inc.




	 	 	 	 	 	 	 
	/s/ Stormy L. Dean

	 	 	 	/s/ Monica Messer
	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Monica Messer	 	 
	By: Stormy L. Dean
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Its: Chief Financial Officer
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





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EXHIBIT “A”




WAIVER OF 21-DAY REVIEW PERIOD




          I, the undersigned, hereby knowingly and voluntarily waive the twenty-one day review period to
consider the Separation and Consulting Agreement (“Agreement”) set forth above. I fully understand
and agree that by signing this Waiver I surrender for all time whatever right(s) and/or claim(s) I
may have to challenge the Agreement set forth above because a full twenty-one days did not expire
before I signed said Agreement in exchange for expediting implementation of the terms of the
Agreement. I have read, fully understand and consent to the terms of this Waiver and I sign it in
the absence of fraud, duress, undue influence or reliance upon any oral and/or written
representations not included in the terms of this Waiver. This Waiver shall be interpreted in
accordance with the plain meaning of its terms and not strictly for or against any interested
party.




	 	 	 	 	 
	 	 	 
	Dated:  October 9, 2007          	/s/ Monica Messer
 	 
	 	Monica Messer 	 
	 	 	 
	 




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