AGREEMENT
THIS AGREEMENT, dated as of September 25, 1996 is entered into by and
between LifeRate Systems, Inc., a Minnesota corporation (the "Company"), and
Xxxxx X. Xxxxxxx, an individual presently residing in the State of Virginia (the
"Former Executive").
A. The Former Executive's employment with the Company terminated
effective April 24, 1996 (the "Termination Date").
B. The Company and the Former Executive desire to settle and resolve in
a final and binding way any and all existing and potential actions, claims or
disputes between the Company and the Former Executive relating in any way to
their prior employment and consulting relationship and the termination of such
relationships.
In consideration of the foregoing and the mutual agreements set forth
below, the parties hereto agree as follows:
1. In consideration for the Release by the Company provided in Section
2(c) and the other terms and conditions hereof, the Former Executive agrees to
the following:
(a) The Former Executive will execute contemporaneously
herewith the Release in the form attached hereto as Exhibit A-1 and the Release
by Clinical Sales and Services, Inc. ("CSSI") in the form of Exhibit A-2, the
terms of which Releases are incorporated herein by reference.
(b) The Former Executive will (i) execute a stipulation of
dismissal with prejudice, in the form attached hereto as Exhibit D (the "Xxxxxxx
Stipulation"), to fully and finally resolve the Former Executive's claims and
causes of action in the action now pending in Hennepin Count District Court,
Case No. EM 96-009311 and styled XXXXX X. XXXXXXX V. LIFERATE SYSTEMS, INC. AND
XXXXX XXXXXXXXXXX (the "Xxxxxxx Litigation"), and (ii) otherwise cooperate with
the Company to seek the dismissal with prejudice of the Xxxxxxx Litigation.
2. In consideration for the Releases by the Former Executive and CSSI
provided in Section 1 and the other terms and conditions hereof, the Company
agrees to the following:
(a) The Company will pay the Former Executive (or designee)
the sum of One Hundred Eighty Thousand Dollars ($180,000) within five business
days after the date hereof.
(b) The Company will pay the Former Executive (or designee),
as reimbursement for certain expenses incurred during the term of employment by
or consultancy with the Company, the sum of Ten Thousand Dollars ($10,000)
within five business days after the date hereof.
(c) The Company will execute the Non-Statutory Stock Option
Agreement in the form attached hereto as Exhibit B ("Option Agreement"), the
terms of which are incorporated herein by reference. The Company also agrees
that, with respect to the Former Executive's Non-Statutory Stock Option issued
on June 5, 1995 under the Company's 1993 Stock Option Plan (the "Plan Option"),
(i) the Plan Option shall be vested with respect to 20,000 shares thereof and
(ii) the Plan Option may be exercised with respect to the vested portion at any
time prior to June 5, 2005 at the exercise price of $5.875 per share. The
Company shall use its reasonable efforts to include in a Registration Statement
on Form S-8 (or any successor form thereto), which will be filed within 45 days
hereafter, the shares issuable in respect of the Plan Option and the Option
Agreement.
(d) The Company will execute the Release in the form attached
hereto as Exhibit C (together with the Releases referred to in Section 1, the
"Releases"), the terms of which are incorporated herein by reference.
(e) The Company agrees (i) to execute and file the Xxxxxxx
Stipulation to fully and finally resolve all counterclaims which the Company has
asserted against the Former Executive in the Xxxxxxx Litigation and (ii) to
execute and file the stipulation and order for dismissal of third-party claim,
in the form attached hereto as Exhibit E, to dismiss with prejudice its third
party action now pending in Hennepin County District Court, Case No. EM
96-013086 and styled XXXXX XXXXXXXXXXX V. LIFERATE SYSTEMS, INC., and to
cooperate with the Former Exective in seeking the dismissal with prejudice of
the Company's third party claims in that action.
3. The Former Executive agrees that she will not, at any time,
disparage, demean or criticize, or do or say anything to cause injury to, the
technology, products, customer relationships, business or management of the
Company. In addition, each party hereto agrees that such party will hold the
facts and circumstances of this Agreement in strict confidence and will not
reveal the existence or the terms of this Agreement to anyone except, in the
case of the Former executive, to her immediate family, tax advisers, lawyers or
accountants, or, in the case of the Company, to its officers, directors,
employees, lawyers or accountants, or as may otherwise be required by law or by
this Agreement. The Company agrees it will not, at any time, disparage, demean
or criticize, or do anything to cause injury to the Former Executive.
4. The Former Executive agrees that from the date hereof and until the
first anniversary hereof she will not alone, or in any capacity with another
entity, become employed by, consult with or provide advice to Seattle Systems,
Medical Logic or Summit Medical Systems, or any affiliate of any such entity.
5. The Former Executive agrees and understands that she is entitled to
no other compensation or benefits other than those enumerated in this Agreement
and will not accrue or become entitled to any benefits other than as provided
herein.
6. The Former Executive hereby acknowledges she has had up to 21 days
to consider the terms of this Agreement before signing, that she fully
understands and accepts the terms of this Agreement, that her signature is
freely, voluntarily and knowingly given, and that she has been provided a full
opportunity to review and reflect on the terms of this Agreement and to obtain
the advice of legal counsel of her choice.
7. This Agreement does not constitute an admission that the Company or
the Former Executive violated any statute or principle of common law or engaged
in any wrongdoing.
8. This Agreement constitutes the entire agreement between the parties
and supersedes all previous negotiations, representations and agreements
heretofore made by the parties with respect to the subject matter hereof. No
amendment, waiver or discharge hereof shall be valid unless in writing and
executed by both parties hereto.
9. The laws of the State of Minnesota will govern the validity,
construction and performance of this Agreement, without regard to the conflict
of law provisions of any jurisdictions. Any legal proceeding related to this
Agreement will be brought in an appropriate Minnesota court, and both the
Company and the Former Executive hereby consent to the exclusive jurisdiction of
that court for this purpose.
10. Whenever possible, each provision of this Agreement will be
interpreted so that it is valid under the applicable law. If any provision of
this Agreement is to any extent invalid under the applicable law, that provision
will still be effective to the extent it remains valid. The remainder of this
Agreement also will continue to be valid, and the entire Agreement will continue
to be valid in other jurisdictions.
11. The Former Executive may not assign this Agreement to any third
party for whatever purpose without the express written consent of the Company.
The Company may not assign this Agreement to any third party, except by
operation of law through merger, consolidation, liquidation or recapitalization,
or by sale of all or substantially all of the assets of the Company, without the
express written consent of the Former Executive.
12. The parties hereto agree that the rights granted by this Agreement
are both unique and special, and the parties contemplate that enforcement of
this Agreement may be had by recourse to the equitable remedies available in
courts of appropriate jurisdiction in addition to any other remedies which may
be or may become available at law.
The parties have duly executed this Agreement as of the dates set forth
below.
LIFERATE SYSTEMS, INC.
Dated: September ___, 1996 By: __________________________
Title: _______________________
Dated: September ___, 1996 ______________________________
Xxxxx X. Xxxxxxx
Address: _____________________
_____________________
_____________________
