EXHIBIT 10.11
SEVERANCE AGREEMENT AND GENERAL RELEASE
THIS AGREEMENT is made and entered into this 16 day of July, 1999, by and
between M. XXXXX XXXXXXXXX, Social Security No. ###-##-#### (hereinafter
"XXXXXXXXX"), and MICROWARE SYSTEMS CORPORATION, an Iowa corporation with its
principal place of business in Clive, Iowa (hereinafter "MICROWARE").
W I T N E S S E T H:
WHEREAS, XXXXXXXXX was employed by MICROWARE from on or about May 19, 1997,
through July 21, 1999, when he resigned his employment with MICROWARE; and
WHEREAS, XXXXXXXXX acknowledges that in conjunction with the severance of the
employment relationship he has been tendered and hereby acknowledges receipt
of all "wages" (as that term is defined in Chapter 91A, Code of Iowa) which
are due him including payments for accrued wages through July 21, 1999, and
payments for accrued but unused vacation (4 weeks or 20 days), and further
acknowledges that he has been provided those benefits which are mandated by
state or federal law including the option to continue group health insurance,
transfer/continuation/ conversion of certain life insurance policies, all of
which are outside of this Agreement; and
WHEREAS, MICROWARE and XXXXXXXXX, and each of them, desire to conciliate,
compromise, and settle, fully and finally, any and all differences and
disputes between them and others herein identified, including all claims and
causes of action of any kind or description,
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whether known or unknown, which settlement constitutes a good faith settlement
of such claims;
NOW, THEREFORE, in consideration of the premises and mutual promises herein
contained, it is agreed as follows:
FIRST. XXXXXXXXX and MICROWARE agree that XXXXXXXXX voluntarily resigns all
officer, director and other positions held with MICROWARE or any of its
affiliated entities effective July 21, 1999, by his voluntary resignation.
(XXXXXXXXX agrees to execute resignation letters for MICROWARE and its
affiliates in the form attached hereto as Attachment A confirming his
resignation.)
SECOND. Neither this Agreement nor the making of the offer for it is, and
neither shall in any way be construed as, an admission by MICROWARE, or any
of its past or present directors, officers, agents, employees or
representatives, or any person or entity within the definition of "RELEASEES"
herein, that any of the RELEASEES violated any federal, state or local law or
is in any way liable to XXXXXXXXX. MICROWARE specifically disclaims any
liability to XXXXXXXXX or any other person, on the part of itself, its
directors, officers, agents, employees or representatives or any of the
RELEASEES. Similarly, neither this Agreement nor the acceptance of the offer
for it is, and neither shall in any way be construed as, an admission by
XXXXXXXXX that he is in any way liable to MICROWARE. XXXXXXXXX specifically
disclaims any liability to MICROWARE or any other person. The parties have
entered into this Agreement for the sole purpose of resolving all claims and
charges to avoid the burden, expense, delay and uncertainties of litigation,
and to further their mutual goals of an amicable severance of their
relationship.
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THIRD. XXXXXXXXX represents and covenants that he has not heretofore
assigned, transferred, or purported to assign or transfer, to any person or
entity any claim or portion thereof or interest therein, which is the subject
of this Agreement.
FOURTH. The parties hereto recognize that this Agreement may be subject to
the Older Worker Benefit Protection Act amendments to the federal Age
Discrimination in Employment Act. It is their mutual intent that this
Agreement be construed so as to conform with that law to the extent that it
may be found by a court of competent jurisdiction to be applicable.
Regardless of that applicability, XXXXXXXXX represents, warrants and
covenants:
a. That he has been given at least twenty-one (21) calendar days
from the date of delivery to him to consider the offer embodied by this
Agreement prior to its execution, and is under no compulsion from MICROWARE
to execute this document within a lesser time period, and has taken such time
as he feels appropriate to consider this document.
b. That he has been advised by MICROWARE to consult with his own
lawyer prior to the execution of this Agreement and has availed himself of
that right to the extent that he thought appropriate.
c. That the consideration called for by this Agreement arises
solely as a result of this Agreement, and that he is not now or will not in
the future be otherwise entitled to the same pursuant to any prior contract,
promise or representation.
d. That he understands that notwithstanding any provision of this
Agreement to the contrary, the Release herein does not apply to any alleged
violation of the Age Discrimination Employment Act (to the extent that it may
be applicable) which occurs after this Agreement has become final.
e. That this Agreement is written in such a manner that XXXXXXXXX
understands its provisions.
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f. That he has been advised that, notwithstanding anything in this
Agreement to the contrary, he has a period of seven (7) calendar days
following the date of his initial execution of this Agreement to change his
mind and revoke the Agreement. The parties hereto agree and understand that
the provisions of this Agreement shall become effective and final on the
eighth calendar day after XXXXXXXXX'x initial execution, provided that he
does not revoke prior to that time.
FIFTH. As a material inducement to MICROWARE to enter into this Agreement:
x. XXXXXXXXX hereby irrevocably and unconditionally releases, acquits
and forever discharges MICROWARE and any affiliated organization, and any
predecessor or successor organization and each and every one of its or their
past or present agents, directors, officers, employees, stockholders,
representatives -- whether acting individually or in that capacity -- and its
and their predecessors, successors, heirs, executors, administrators and
assigns, and all persons acting by, through, under or in concert with them or
any of them (collectively "RELEASEES"), or any of them, of and from (i) any
and all actions, causes of actions, suits, debts, charges, complaints,
claims, liabilities, obligations, promises, agreements, controversies,
damages, and expenses (including attorney's fees and costs actually
incurred), of any nature whatsoever, in law or equity, which he ever had, or
hereafter may have against each or any of the RELEASEES, arising from or
related to any activity or action of RELEASEES during or related to
XXXXXXXXX'x employment by MICROWARE; and (ii) any claims, demands or causes
of action relating to or arising out of XXXXXXXXX'x recruitment, hiring,
employment, separation from employment with MICROWARE including the making of
any announcements regarding that separation, including any claims arising
from any alleged violation by RELEASEES of any federal or state constitution,
statute, ordinance or common law, including, without limitation, any claims,
demands or causes of action arising under Title VII of the Civil Rights Act
of 1964, as
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amended, 42 U.S.C. Section 2000e, ET SEQ.; the federal Americans With
Disabilities Act; the federal Age Discrimination in Employment Act, as
amended, 29 U.S.C. Section 621 ET SEQ.; the Consolidated Omnibus Budget
Reconciliation Act; the Fair Labor Standards Act of 1938, as amended, 29
U.S.C. Section 201 ET SEQ.; the Iowa Civil Rights Act, Iowa Code Chapter 216;
federal or state common law (including, but not limited to, any claims for
wrongful discharge, for violation of public policy, for violation of express
or implied contract, breach of a covenant of good faith and fair dealing, for
infliction of emotional distress or for punitive damages); federal or state
administrative regulations; or any other local, state or federal statutory
provisions.
b. As a further material inducement to MICROWARE to enter into this
Agreement, XXXXXXXXX further agrees, promises and covenants that neither he
nor any person, organization or any other entity acting on his behalf will
file, charge, claim, xxx or cause or permit to be filed, charged or claimed,
any action for damages or other relief (including injunctive, declaratory,
monetary relief or other) against MICROWARE, or its officers, directors,
employees, agents and representatives or any other of the RELEASEES, their
agents or representatives, any claims, demands, causes of action,
obligations, damages or liabilities which are the subject of Subparagraph (a)
of paragraph Fifth of this Agreement. Nothing in this Agreement is intended,
nor shall it be construed, to preclude any action based on this Agreement.
x. XXXXXXXXX agrees and recognizes that his employment relationship
with MICROWARE has been permanently and irrevocably severed, and that
MICROWARE has no obligation, contractual or otherwise, to rehire, reemploy,
recall, or hire him in the future.
d. Upon MICROWARE's request XXXXXXXXX can be available to MICROWARE
on a:
- Full-time, on call basis through August 27, 1999.
- Part-time, scheduled basis through September 30, 1999.
- As available basis through December 31, 1999.
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XXXXXXXXX acknowledges that he has and reaffirms that he will comply
with his continuing obligations under the "AGREEMENT TO PROTECT CONFIDENTIAL
INFORMATION FROM COMPETITIVE DISCLOSURE" which XXXXXXXXX signed on September
19, 1997 and the "AGREEMENT ON NON-DISCLOSURE OF TRADE SECRETS AND
CONFIDENTIAL INFORMATION AND THE OWNERSHIP OF WORK PRODUCT" which XXXXXXXXX
signed on May 21, 1997 which are attached to this agreement as Exhibit 1 and
Exhibit 2.
XXXXXXXXX further agrees and acknowledges that any and all work
product developed during the course of XXXXXXXXX'x employment with MICROWARE,
including programs, software, architecture, techniques, manuals,
documentation, correspondence, business plans, internal memoranda, and any
other material protected or protectable under the applicable laws regarding
copyrights, patents, trade secrets, trade dress and other proprietary rights
constitute works-made-for hire and belong solely and exclusively to
Microware.
XXXXXXXXX further acknowledges that in his capacity as an executive
officer of MICROWARE, he was privy to confidential technical and business
information, including but not limited to trade secrets (as defined in the
Uniform Trade Secrets Act, Iowa Code Ch. 550) and financial information,
relating to MICROWARE and/or its products, customers, etc., including all
material described in the preceding paragraph, and XXXXXXXXX covenants to
continue to treat such information as confidential and not to disclose or use
such information in the future for his own benefit or for the benefit of any
third party, or reveal to any third party and trade secret or confidential
information belonging to Microware absent advance written permission of
Microware.
XXXXXXXXX represents and warrants that he has delivered, or will
with all deliberate speed deliver, to MICROWARE any and all MICROWARE-related
materials or documents he may currently have in his possession.
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x. XXXXXXXXX further agrees that from the date of this Agreement
until one (1) year from the date XXXXXXXXX'x employment has been voluntarily
terminated, XXXXXXXXX shall not interfere with or disrupt, or attempt to
interfere with or disrupt, the relationship between MICROWARE, its present or
future employees, customers and business partners. This provision also means
that XXXXXXXXX will not hire present or future MICROWARE employees for a
period of one (1) year from above mentioned date.
SIXTH. In consideration of the promises and representations in Paragraph
FIFTH, when and if this agreement becomes "final," MICROWARE agrees to pay
XXXXXXXXX, as severance pay, through February 29, 2000, the total gross sum
of One Hundred Twenty Two Thousand, Three Hundred and Eight Dollars
($122,308), less applicable federal and state withholding. This sum shall be
paid periodically to XXXXXXXXX on regularly scheduled MICROWARE paydays
beginning on the first regularly scheduled payday after this Agreement
becomes effective and final as defined in Paragraph FOURTH(f). In addition,
MICROWARE will:
- Pay XXXXXXXXX'x COBRA payments for seven (7) months.
- Supply office space through February 29, 2000. This will be arranged by
MICROWARE's Corporate Services group.
- Allow XXXXXXXXX to retain his current computer equipment (laptop computer).
- Allow XXXXXXXXX to retain access to his business voicemail through August
27, 1999.
The severance pay, and the above items will cease once XXXXXXXXX begins work
in an equivalent position as that held at MICROWARE. In the case of a change
of control of MICROWARE, all outstanding and due monies (severance payments,
COBRA payments, and office space payments) will be paid to XXXXXXXXX as a
lump sum.
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MICROWARE hereby irrevocably and unconditionally releases, acquits, and
forever discharges XXXXXXXXX of and from any and all actions, courses of
action, suits, debts, charges, claims, damages and expenses which it may have
against XXXXXXXXX relating to XXXXXXXXX'x employment, except for any claims
that MICROWARE may have against XXXXXXXXX for conduct or omissions of
XXXXXXXXX that MICROWARE deems to have been outside the course and scope of
his employment, against the best interests of the corporation and/or its
shareholders, in violation of an applicable federal, state or local law or in
violation of or inconsistent with any than existing policy or procedure of
MICROWARE, and except for any claims that MICROWARE may have against
XXXXXXXXX for breach of this Severance Agreement and General Release or
breach of the "AGREEMENT TO PROTECT CONFIDENTIAL INFORMATION FROM COMPETITIVE
DISCLOSURE" which XXXXXXXXX signed on September 19, 1997 and the "AGREEMENT
ON NON-DISCLOSURE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION AND THE
OWNERSHIP OF WORK PRODUCT" which XXXXXXXXX signed on May 21, 1997.
XXXXXXXXX represents, warrants and promises that the sum of $122,308 and the
items listed in Paragraph SIXTH are new consideration to which he is not
otherwise entitled under any policy or practice of MICROWARE, and which he
would not receive but for this Agreement, and that he will accept the
foregoing in full, final and complete settlement of all claims he may have,
and which he is releasing, under this Agreement including any claims for pay,
compensatory damages, punitive damages, liquidated damages, attorneys fees,
and expenses or costs which CONNGHAN may have, or may have incurred. No
promise for any other or further consideration to XXXXXXXXX has been made by
anyone subject to this Severance Agreement and General Release.
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SEVENTH. The parties agree that neither party shall make any defamatory or
disparaging comments about the other party. Nothing in this paragraph
prohibits either party from truthfully stating the reason that the employment
relationship was severed, including as articulated in the internal
announcement attached hereto.
EIGHTH. XXXXXXXXX represents and certifies that he has carefully read and
fully understands all of the provisions and effects of this Agreement, that
XXXXXXXXX is fully aware of his rights to discuss any and all aspects of this
matter with an attorney chosen by him, and that he is knowingly and
voluntarily entering into this Agreement and that neither MICROWARE nor its
agents, representatives or attorneys, nor anyone else has made any
representations concerning the terms or effects of this Agreement other than
those contained herein.
NINTH. a. This Agreement shall be binding upon XXXXXXXXX and upon XXXXXXXXX'x
heirs, administrators, representatives, executors, successors and assigns, and
shall inure to the benefit of the RELEASEES and each of them, and to their
heirs, administrators, representatives, executors, successors, and assigns.
b. This AGREEMENT shall be binding upon MICROWARE and upon
MICROWARE's successors and assigns, and shall inure to the benefit of the
persons identified therein, and to their heirs, administrators,
representatives, executors, successors and assigns.
TENTH. XXXXXXXXX expressly acknowledges that, except as specifically provided
herein, this Agreement is intended to include in its effect, without
limitation, all claims which have arisen and of which XXXXXXXXX knows or does
not know, should have known, had reason to know or suspects to exist in
XXXXXXXXX'x favor at the time of execution hereof, and that this
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Agreement contemplates the extinguishment of any such claim or claims.
ELEVENTH. Should any tax liability arise or accrue under state or federal tax
laws as a result of any payments made pursuant to this Agreement beyond that
for which withholdings are made, XXXXXXXXX agrees to timely pay any and all
such obligations and to hold MICROWARE and the RELEASEES harmless therefrom.
TWELFTH. This Agreement is made and entered into in the State of Iowa, and
shall in all respects be interpreted, enforced and governed under the laws of
said State. The language of all parts of this Agreement shall in all cases be
construed as a whole, according to its fair meaning, and not strictly for or
against any of the parties. Any controversy, claim, dispute, or disagreement
arising under, out of, or relating to this Agreement shall be submitted for
resolution exclusively to a federal or state court of competent jurisdiction
located in Polk County, State of Iowa, USA. XXXXXXXXX and MICROWARE consent
and submit to the jurisdiction and venue of such courts for the resolution of
such controversies, claims, disputes, or disagreements.
THIRTEENTH. Should any provision of this Agreement be declared or be
determined by any court to be illegal or invalid, the validity of the
remaining parts, terms or provisions shall not be affected thereby and said
illegal or invalid part, term, or provision shall be deemed not to be a part
of this Agreement.
FOURTEENTH. XXXXXXXXX agrees and acknowledges that the terms and conditions
of this Agreement constitute confidential information of MICROWARE, and has
not or will not be disclosed by XXXXXXXXX or MICROWARE to any third party
(except for attorneys and tax advisors under privilege or as required by law
as determined by advice of counsel) without first obtaining written
permission from MICROWARE.
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FIFTHTEENTH. This Agreement sets forth the entire agreement between the
parties hereto, and fully supersedes any and all prior agreements or
understandings between the parties hereto pertaining to the subject matter
hereof, excluding the September 19, 1997 "AGREEMENT TO PROTECT CONFIDENTIAL
INFORMATION FROM COMPETITIVE DISCLOSURE" and the May 21, 1997 "AGREEMENT ON
NON-DISCLOSURE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION AND THE
OWNERSHIP OF WORK PRODUCT", any agreements regarding confidentiality and
ownership of intellectual property, and all agreements under the Company's
Stock Option Plans between XXXXXXXXX and MICROWARE. Facsimile versions of
this document shall be deemed originals in all respects.
SIXTEENTH. In the event of a breach or threatened breach by XXXXXXXXX of the
agreements set forth in Xxxxxxxxx 0X, 0X xxx 00, XXXXXXXXX acknowledges and
agrees that damages constitute an inadequate remedy at law and that MICROWARE
shall be entitled, in addition to remedies otherwise available in law or
equity, to preliminary and final injunctions enjoining such breach or
threatened breach and XXXXXXXXX consents to the issuance thereof.
SEVENTEENTH. All notices and other communications in connection with this
Agreement shall be made in writing and addressed as follows, or to such other
address as shall have been designated in writing by the addressee:
(a) If to XXXXXXXXX:
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(b) If to MICROWARE:
0000 XX 000xx Xx.
Xxx Xxxxxx, XX 00000
ATTN: President
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS. THE SIGNATORIES HERETO ACKNOWLEDGE THAT THEY HAVE EACH READ
THE FOREGOING DOCUMENT, AND UNDERSTAND ITS TERMS, AND FREELY AND VOLUNTARILY
SIGN THE SAME.
MICROWARE SYSTEMS CORPORATION M. XXXXX XXXXXXXXX
By: /s/ Xxxxxxx X. Xxxxxx /s/ M. Xxxxx Xxxxxxxxx
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