EXHIBIT 10.16 SEPARATION AGREEMENT BETWEEN XXX X. XXXXX AND THE REGISTRANT
SEPARATION AGREEMENT
This Separation Agreement (the "Separation Agreement") is made and
entered into as of the 12th day of February, 2001 between Xxx X. Xxxxx ("Xxxxx")
and ONTRACK Data International, Inc. (the "Company"), with regard to the
following:
WHEREAS, Xxxxx has been employed by the Company since February 11,
1999;
WHEREAS Xxxxx' employment with the Company will end on December 31,
2001, with his resignation dated the date hereof and effective December 31,
2001;
WHEREAS the parties agreed Xxxxx would be paid his normal salary and
benefits through December 31, 2001 as set forth in paragraph 1 herein;
WHEREAS, the Company and Xxxxx desire to amicably conclude Xxxxx'
employment with the Company and resolve all disputes, if any, and other
employment issues with the Company arising out of his employment, or the end of
his employment relationship with the Company, with the understanding that such
resolution shall not constitute evidence of or be an admission of wrongful
conduct, liability, or fault on the part of either Xxxxx or the Company; and
WHEREAS, Xxxxx agrees to a full and final settlement of all employee
issues with the Company, whether disputed or not;
NOW, THEREFORE, in consideration of the promises of the parties hereto
and payments related below and to fully and completely resolve and conclude his
employment with the Company, the parties agree as follows:
1. Payment and Duties. If Xxxxx signs this Separation
Agreement and the Release attached as Exhibit "A," does not exercise his right
to rescind the Separation Agreement or Release as allowed by paragraph 4 below,
and fulfills all of his obligations under this Separation Agreement, the Company
will pay to Xxxxx 100% of his base salary ($10,834 per month) , through December
31, 2001, with appropriate withholdings as required by law. These payments are
both in consideration of the consultation duties set forth hereinafter and in
settlement and consideration for the release of any and all claims, asserted or
unasserted, arising out of or relating in any way to Xxxxx' employment, or the
end of his employment relationship with the Company, and shall extinguish all
claims that Xxxxx may have against the Company. Xxxxx' duties from and after the
date hereof, until and through December 31, 2001, shall be that of a consultant
for the Company. The Company shall be entitled to call upon Xxxxx at reasonable
times with reasonable notice (but only during normal business days and hours),
and by mutual agreement, during the period from the date hereof through the
effective date of his resignation of employment, December 31, 2001. The Company
shall designate from time to time an executive contact to interface with Xxxxx
during this period; the first Company contact-designee under this Agreement
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shall be Xxxx X. Xxxxx, Vice President, General Counsel and Secretary. Xxxxx
will be assigned tasks and do only tasks as assigned in writing from time to
time by said executive contact or the Company's board of directors and otherwise
will not act on behalf of the Company.
2. Release of Claims. In consideration of the payments by the
Company as set forth in paragraph 1 of this Separation Agreement, and the
provisions of this Separation Agreement, the receipt and sufficiency of which is
hereby acknowledged, Xxxxx, for himself, his heirs, executors, and assigns, does
hereby absolutely and unconditionally release and forever discharge the Company
and any and all of its parent corporations, subsidiary corporations, affiliated
and predecessor corporations, divisions, insurers, indemnitors, heirs,
successors, and assigns, and each and everyone of them, together with all past
and present directors, officers, employees, agents, and each and everyone of
them, of and from any and all actions, suits, proceedings, claims (including,
but not limited to, claims for attorneys' fees), complaints, charges, judgments,
and executions, whether liquidated or unliquidated, known or unknown, suspected
or unsuspected, and whether related or unrelated to any present dispute as to
law or facts or both, which Xxxxx has ever had, presently has, or claims to have
had against the Company or any of its parent corporations, subsidiaries,
affiliated corporations, divisions, insurers, indemnitors, heirs, successors, or
assigns, together with all past and present directors, officers, employees, and
agents of each and everyone of them, the agreed upon consideration having been
negotiated and bargained for all things above mentioned, and received in full
satisfaction for all of the above. At the time that Xxxxx executes this
Separation Agreement, he will also execute a separate Release, a copy of which
is attached hereto and incorporated herein by reference. This Separation
Agreement shall not be interpreted or construed to limit the Release in any
manner.
3. Confidentiality. It is the intent of the Company that the
underlying factual basis for any alleged claims by Xxxxx and the terms upon
which this matter has been settled, including the terms and conditions of this
Separation Agreement and the Release attached hereto, will be forever treated as
confidential. Accordingly, Xxxxx will not disclose the underlying facts and/or
terms of this Separation Agreement to anyone, except as follows: Xxxxx may
disclose the terms of this Separation Agreement only to his spouse, lawyer,
accountant, and tax advisor or preparer. Other than as set forth above, the
underlying facts and/or terms of this Separation Agreement shall not be
disclosed, except pursuant to written authorization by the Company. Furthermore,
Xxxxx may not in any way falsely represent the terms of this Separation
Agreement to anyone.
4. Consideration and Rescission Periods. Xxxxx understands
that he may take 21 calendar days to decide whether to sign this Separation
Agreement and Release, which 21-day period will commence on the date on which
Xxxxx first receives copies of this Separation Agreement and Release for review,
and that in conjunction with paragraph 13 he is free and invited to consult with
his own attorney regarding this period and this matter in general. Xxxxx
represents that if he signs this Separation Agreement and Release before the
expiration of the 21-day period, it is because he has decided that he does not
need any additional time to decide whether to sign this Separation Agreement and
Release. Xxxxx may rescind this Separation Agreement and Release within seven
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(7) calendar days to reinstate federal claims under the Age Discrimination in
Employment Act and within fifteen (15) calendar days to reinstate state claims
under the Minnesota Human Rights Act. To be effective, any rescission within the
relevant time periods must be in writing and delivered to the Company, in care
of Xxxx Xxxxx, Esq., ONTRACK Data International, Inc., 0000 Xxxxxxxxx Xxxx, Xxxx
Xxxxxxx, Xxxxxxxxx 00000, either by hand or by mail within the rescission
period. If delivered by mail, the rescission must be (1) postmarked within the
7-day or 15-day period; (2) properly addressed to the Company; and (3) sent by
certified mail, return receipt requested. If Xxxxx rescinds this Separation
Agreement and Release or any part of it, then the remaining provisions of this
Separation Agreement and Release shall be and are void, Xxxxx shall not be
entitled to the consideration specified in this Separation Agreement, and shall
return any and all consideration received from the Company.
5. Non-Disparagement. Xxxxx agrees that he shall not disparage
or defame the Company in any respect or make any negative comments concerning
the parties' employment relationship, the end of the employment relationship, or
the matters contained in this Separation Agreement. Furthermore, Xxxxx shall not
in any way assist or encourage any individual or group of individuals to bring
or pursue a lawsuit, charge, complaint, or grievance, or in making any other
demands against the Company or any of its officers, employees, or
representatives. Xxxxx may only testify in a court or other proceeding against
the Company to the extent he is compelled to do so by lawful subpoena.
6. Confidential Information. Xxxxx hereby represents that as
of the date he signs this Separation Agreement, he has not in the past, directly
or indirectly, released any information, data, figures, financial records,
projections, estimates, customer lists, tax records, personnel histories, human
resource policies or documents of any type, accounting procedures, or any other
confidential information which he acquired while performing services or working
for the Company to any person, firm, corporation, or other entity at any time,
except as was required by law. Xxxxx acknowledges that this is a material
representation, and that the Company is relying on it as part of this Separation
Agreement.
Xxxxx agrees that he will continue to treat, as private and
privileged, any information, data, figures, financial records, projections,
estimates, customer lists, tax records, personnel history, human resource
policies or documents of any type, accounting procedures, and all other
confidential information which he acquired while performing services to or
working for the Company. Further, Xxxxx agrees that he will not release any such
information to any person, firm, corporation or other entity at any time, except
as may be required by law, or as agreed to in writing by the Company.
7. Cooperation in Claims. Xxxxx agrees that, until December
31, 2001, and for a reasonable period of time thereafter, at the Company's
request, he will cooperate with the Company in any claims or lawsuits involving
the Company where Xxxxx has knowledge of the facts involved in the claim or
lawsuit. Xxxxx further agrees that he will not voluntarily encourage, aid,
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assist, or cooperate with anyone, or with their attorneys or agents, in bringing
any lawsuit, charge, complaint, or grievance, or in making any other demands
against the Company or any of its officers, employees, or representatives.
However, nothing in this Separation Agreement prevents Xxxxx from testifying at
an administrative hearing, arbitration, deposition, or in court, in response to
a lawful and properly served subpoena in a proceeding involving the Company.
8. Non-Admission. This Separation Agreement does not
constitute an admission by the Company that it has discriminated against or
mistreated Xxxxx for any reason, or in any way violated any of his legal rights,
and Xxxxx does not contend that it does constitute such an admission.
9. Inducement. Both Xxxxx and the Company recognize and agree
that each party was substantially induced to enter into this Separation
Agreement by the terms set forth herein.
10. Attorneys' Fees, Costs, Disbursements and Expenses. Xxxxx
acknowledges that he is responsible for his own attorneys' fees, costs,
disbursements, and expenses incurred in connection with this Separation
Agreement.
11. Entire Agreement; No Waiver of Stock Option Rights; D&O
Coverage. With the exception of the standard ONTRACK Confidentiality and
Non-competition Agreement and the Stock Option Agreement both of which Xxxxx
signed on or about February 11, 1999, which shall remain in full force and
effect, the terms of this Separation Agreement and the Release attached hereto
as Exhibit "A," supersede and terminate all prior oral and written agreements
and communications between the parties. Xxxxx agrees that this Separation
Agreement and the Release attached hereto, contain all of the agreements between
the parties, and that they have no other written or oral agreements, with the
exception of the standard ONTRACK Confidentiality and Non-competition Agreement
and the Stock Option Agreement referred to above. The parties further confirm
that Xxxxx has an additional ninety (90) days after December 31, 2001 within
which to exercise any rights he may have under the Stock Option Agreement
between Xxxxx and the Company dated February 11, 1999, a copy of which is
attached hereto. Notwithstanding any other provision of this Separation
Agreement, including exhibits, to the contrary, Xxxxx shall continue to be
eligible for indemnification from liability, judgments and costs of defense, and
the benefits of D&O insurance coverage, to the same extent as any other present
and former officer and director of ONTRACK.
12. Governing Law. This Separation Agreement will be construed
and enforced in accordance with the laws of the State of Minnesota.
13. Representation. Xxxxx acknowledges that he has had the
opportunity to be represented by his own attorney in this matter, has fully
negotiated this settlement, and has not relied upon any statements made by the
Company, its agents, or attorneys in agreeing to sign this Separation Agreement
or the Release attached hereto.
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14. Counterparts - This Separation Agreement may be executed
in any number of counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Xxxxx has executed this Separation
Agreement on the date indicated at his signature below.
Dated: February 12, 2001
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Xxx X. Xxxxx
Dated: February 12, 2001 ONTRACK Data International, Inc.
By
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Its
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EXHIBIT "A"
RELEASE
DEFINITIONS. All words in this Release have their plain meanings in ordinary
English. Specific terms used in this Release have the following meanings:
I. "I", "me", and "my" mean both me and anyone who has or obtains any
legal rights or claims through me.
II. "Company" means ONTRACK Data International, Inc., any of its
present or past affiliates, divisions, committees, or joint venture partners,
and any of its predecessors, successors or assigns.
III. "Employer" means the Company, any company providing insurance to
the Company in the present or past, any present or past deferred compensation,
retirement, or other employee benefit plans sponsored by the Company, any
present or past directors, officers, employees, trustees, fiduciaries, or agents
of the Company, and any person who acted on behalf of or on instructions from
the Company.
IV. "Separation Agreement" means the Separation Agreement between the
Company and me that I am executing on the same date that I execute this Release,
together with all the documents attached to the Agreement.
V. "My Claims" mean all of my existing rights to any relief of any kind
from the Employer, whether or not I know about those rights, including, but not
limited to:
a. all claims that arise out of or that relate to my
employment, or the end of the employment relationship with the
Employer;
b. all claims that arise out of or that relate to the
statements or actions of the Employer;
c. all claims for any alleged unlawful discrimination or any
other alleged unlawful practices that arise out of or that relate to
the statements or actions of the Employer, including, but not limited
to, claims of discrimination based on sex, age, race, religion,
disability, national origin, marital status, or sexual orientation or
any other protected category arising under city or state
anti-discrimination laws or federal laws including the Civil Rights Act
of 1967, as amended, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Civil Rights Act of 1991, the
Minnesota Human Rights Act, and any federal or state wage and hour
laws; and claims that the Employer engaged in conduct prohibited on any
other basis under any federal, state, or local statute, ordinance, or
regulation;
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d. all claims arising out of the execution, performance, or
termination of any employment agreement or any other agreement or
contract of any kind between the Employer and me, provided however that
all rights pursuant to the Separation Agreement between the employer
and me are exempted from the terms of this Release; all claims for
alleged unpaid compensation, expenses (except for final or open expense
reports not yet submitted for reimbursement), stock options, deferred
compensation, retirement, and employee benefits, provided however that
all rights pursuant to the severance agreement between the employer and
me are exempted from the terms of this Release;
e. all claims for wrongful discharge; harassment; retaliation
or reprisal; constructive discharge; assault or battery; defamation;
intentional or negligent infliction of emotional distress; invasion of
privacy; false imprisonment; fraud; intentional or negligent
misrepresentation; interference with contractual or business
relationships; violation of public policy; my conduct, if any, as a
"whistleblower"; negligence; false imprisonment; breach of contract;
breach of fiduciary duty, provided however that all rights pursuant to
the Employee Retirement Income Security Act are specifically exempted
from the terms of this Release; breach of the covenant of good faith
and fair dealing; promissory or equitable estoppel; or any other local,
state or federal statutory or common law claims;
f. all claims for compensatory damages, liquidated damages,
punitive damages, attorneys' fees, costs, and disbursements, except for
those claims set forth in subpart (e) above.
I agree that the above list contains examples only and may not contain all
claims that are released. I intend to release all claims against the Company.
AGREEMENT TO RELEASE MY CLAIMS. I will receive certain sums of money and other
consideration from the Employer as set forth in the Separation Agreement if I
sign and do not rescind this Release as provided below. In exchange for that
money and other consideration, I agree to give up all My Claims. I will not
bring any lawsuits or make any other demands against the Employer based on My
Claims. The money and other consideration that I will receive in exchange for
this Release are a full and fair payment for the release of My Claims. The
Employer does not owe me anything for the release of My Claims in addition to
the money and other consideration that I am receiving in exchange for this
Release.
MY RIGHT TO RESCIND THIS RELEASE. I understand that I have the right to rescind
(that is, cancel or revoke) this Release for any reason within 15 calendar days
after I sign it. I understand that this 15-day period includes any other shorter
time periods provided by law. I understand that this Release will not become
effective or enforceable unless and until the rescission period has expired and
I have not rescinded this Release. I understand that if I wish to rescind, the
rescission must be in writing and delivered to the Company, in care of Xxxx
Xxxxx, Esq., ONTRACK Data International, Inc., 0000 Xxxxxxxxx Xxxx, Xxxx
Xxxxxxx, Xxxxxxxxx 00000, either by hand or by mail within the rescission
period. If delivered by mail, the rescission must be (1) postmarked within the
7-day or 15-day period; (2) properly addressed to the Company; and (3) sent by
certified mail, return receipt requested.
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CONFIDENTIALITY. I understand that the facts surrounding my employment
relationship and the termination of this relationship and the terms of this
Release are confidential, and that I may not disclose those matters to any
person except under the circumstances described in the Separation Agreement.
NONDISCLOSURE AND NONDISPARAGEMENT. I understand that I have agreed I will not
disclose any confidential information about the Company and I will not disparage
the Company.
NONPARTICIPATION IN CLAIMS. I understand that I have agreed that if there are
any claims against the Company, I will not participate in prosecuting those
claims, except to the extent required to do so by law.
BREACH. I understand that if I fail to live up to the promises I have made in
the Separation Agreement and this Release regarding confidentiality, I will have
to pay the Company back all of the money the Company has paid in consideration
of signing this Release.
ADDITIONAL AGREEMENTS AND UNDERSTANDINGS. Even though the Employer will pay me
for the release of My Claims, the Employer does not admit that it is responsible
or legally obligated to me for My Claims. In fact, I understand that the
Employer denies that it is responsible or legally obligated for My Claims or
that it has engaged in any improper or unlawful conduct or wrongdoing against
me.
I have read this Release carefully and I understand all its terms. I
have been advised to consult with my own attorneys, if I deem that appropriate,
prior to executing this Release. In agreeing to sign this Release, I have not
relied on any statements or explanations made by the Employer or its attorneys,
other than statements made in this Release, the Separation Agreement and, except
as modified by the Separation Agreement, any deferred compensation, retirement,
and other employee benefit plans sponsored by the Company (including my
agreements relating thereto) in which I am a participant.
I understand that this Release, the Separation Agreement and, except as
modified by the Separation Agreement, any deferred compensation, retirement, and
other employee benefit plans sponsored by the Company (including my agreements
relating thereto) in which I am a participant contain all the agreements between
the Employer and me relating to this settlement. We have no other written or
oral agreements relating to this settlement.
I am not under any legal disabilities that prevent me from being
legally bound by the agreements that I am making in this Release. I am legally
able and entitled to receive the money and other consideration that I will
receive from the Employer as set forth in the Separation Agreement in settlement
of My Claims.
Dated: February 12, 2001
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Xxx X. Xxxxx
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