EXHIBIT 10.29
SEVERANCE AGREEMENT AND GENERAL RELEASE
This Severance Agreement and General Release (this "Agreement") is
entered into by and between Xxxxxxx Xxxxxxxxxx ("Employee") and eLoyalty
Corporation, a Delaware corporation ("eLoyalty" or the "Company"), on the date
set forth at the Employee signature lines below, arising out of the employment
relationship between Employee and eLoyalty and constitutes an amendment to
Employee's Employment Agreement with eLoyalty, a copy of which is attached
hereto as Exhibit A (the "Employment Agreement"). It shall become effective
seven days after execution of the Agreement by both parties, unless revoked
within such seven-day period in accordance with this Agreement.
Employee's employment will terminate effective January 15, 2005
("Termination Date").
Pursuant to the Employment Agreement with eLoyalty and subject to
the terms and conditions thereof, Employee will receive payments in lieu of
notice equal to his regular base salary, less applicable deductions, beginning
on the day after the Termination Date and continuing through July 15, 2005
("Termination Payments"). In addition, if Employee accepts this Agreement and
does not revoke his acceptance (as described below), Employee would receive
payments equal to his regular base salary, less applicable deductions, for an
additional period ending October 15, 2005, and an additional period ending
January 15, 2006, subject to the terms and conditions set forth in this
Agreement.
Employee will continue to pay his portion of the cost of his
existing medical, dental, vision and flexible spending account coverage while
receiving Termination Payments, and such coverage will continue until July 31,
2005 ("Termination Benefit Period"). Employee, however, may elect to discontinue
such coverage by submitting a completed election change form to eLoyalty's
Employee Loyalty Service Center ("ELSC") at eLoyalty Corporation, 000 Xxxxx
Xxxxx, Xxxxx 000, Xxxx Xxxxxx, Xxxxxxxx, 00000 within 31 days of the Termination
Date; however, any such change will not be effective until the day after the
election change form is received by the ELSC. Except as otherwise provided in
this Agreement (if it becomes effective as provided herein), after the
Termination Benefit Period, Employee will no longer be eligible to participate
in any eLoyalty benefit programs, except to the extent that he may be eligible
to continue his existing health benefit coverage under the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended ("COBRA"), at the applicable COBRA
rate and for the period prescribed by COBRA.
In addition to Employee's Termination Payments and the Termination
Benefit Period, and in consideration of the mutual covenants and agreements
hereinafter set forth, and intending to be legally bound, the parties, eLoyalty
and Employee, agree as follows:
1. Employee specifically acknowledges and agrees that he is not otherwise
entitled to the additional payments and benefits set forth in Paragraph 4 below,
that the Company is providing such payments and benefits in exchange for the
mutual covenants and agreements
set forth herein, and that such payments and benefits under Paragraph 4 below
are greater than the payments and benefits Employee would have been entitled to
receive upon termination in the absence of this Agreement. Further, Employee
specifically acknowledges and agrees that (i) the payments and benefits
described in this Agreement are in full and final settlement of any and all
amounts that may be claimed to be payable to Employee by the Company for any
period or portion thereof ending on or prior to the date hereof, and (ii)
Employee is not entitled to any other payments whatsoever, including, without
limitation, any amounts in the nature of base or incentive (bonus) compensation,
commissions or other compensatory payments or reimbursements.
2. Employee represents and warrants that Employee has no interest or
obligation that is inconsistent with or in conflict with this Agreement or that
would prevent, limit or impair Employee's performance of any part of this
Agreement.
3. In exchange for the valuable consideration set forth in Paragraph 4
below and the mutual covenants contained herein:
a. Employee agrees to release and forever discharge the Company and
its past and present officers, directors, employees, agents, subsidiaries,
divisions, affiliates, stockholders, predecessors, successors and assigns,
(collectively "Releasees") from any and all claims and/or causes of action,
known or unknown, arising (i) from or during Employee's employment or (ii) as a
result of the termination of that employment, whether currently known or
unknown, and agrees that he will not assert any such claims and/or causes of
action against any Releasees. This release includes, but is not limited to, (i)
claims and/or causes of action arising under Title VII of the Civil Rights Act;
(ii) claims and/or causes of action arising under the Americans with
Disabilities Act; (iii) claims and/or causes of action arising under the Age
Discrimination in Employment Act, as amended by the Older Workers Benefit
Protection Act; (iv) claims and/or causes of action arising under federal, state
or local laws, including national origin, religion, sex, disability, race, or
age discrimination, or any other discrimination or retaliation prohibited by
law; (v) claims and/or causes of action growing out of any alleged legal
restrictions on eLoyalty's right to terminate its employees, including breach of
contract, express or implied, discharge in violation of public policy, wrongful
or retaliatory termination, or promissory estoppel; or (vi) tort claims and/or
causes of action, including infliction of emotional distress, defamation, libel
or slander. This release specifically excludes the following: (i) any right
Employee has to seek or obtain indemnification from the Company or relating to
his service with the Company, whether by contract, insurance policy, statute,
law or otherwise; (ii) any right or claims relating to facts or circumstances
arising after this Agreement is executed; (iii) any expense reimbursement that
has been validated and approved through the Company's normal established
processes and practices; and/or (iv) any right provided for or any action
necessary to enforce any right or obligation provided in this Agreement.
b. Employee and the Company agree not to disparage, defame, libel,
slander, place in a negative light, or otherwise harm the reputation, business
or goodwill of the other, including any statements in any format regarding the
Company's employment practices, business, services, products, conduct, or
policies, or its employees, directors, officers or agents. Any public statements
by Employee or the Company regarding the other will be mutually agreed in
writing, in advance of publication or dissemination.
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c. Employee agrees to return all property in good working condition
(including computer equipment, any and all files and documents, whether in
written or electronic form or in any other form or media whatsoever, and
including all copies, excerpts and derivatives) of the Releasees in his
possession. Employee specifically understands and agrees that no payments or
obligations set forth in Paragraph 4 below shall arise until Employee returns
all such property to the Company pursuant to this Paragraph.
d. Employee agrees that the terms of this Agreement are confidential
and that Employee will treat them as confidential and will not disclose them to
any person, except as may be required by law or legal process, other than
Employee's attorneys, accountants, tax or financial advisors, or spouse or
domestic partner (who must be informed of and agree to be bound by the terms of
this Paragraph). Notwithstanding the foregoing, Employee will notify any person,
firm, corporation or other entity with which Employee becomes employed of
Employee's undertakings in Paragraph 7 and 8 hereof.
e. Employee agrees that he will consult with and advise the Company
on an as-needed basis during the first quarter of 2005 regarding the Company's
annual audit process, form 10-K filing, Section 404 compliance and requirements,
proxy statement, and other accounting and finance issues that may arise during
that period, such consulting to occur at such times as are mutually agreed by
the parties in their reasonable determination. In addition, Employee agrees that
he will be available on a consulting basis after that period on an as-needed
basis, such consulting to occur at such times as are mutually agreed by the
parties in their reasonable determination; however, the Company agrees to pay
Employee $200 per hour for his time, plus expenses, for time spent in this
capacity after the end of the first quarter 2005.
4. In exchange for Employee's covenants contained herein, the Company
agrees:
a. To pay Employee the gross amount of $75,000.00 (from which
applicable taxes, benefit premiums and other withholdings will be deducted).
Such gross amount will be paid in installments of $12,500.00 (less applicable
deductions) on regular eLoyalty paydays, beginning on the first payday after the
Termination Payments have ended, until the total gross amount is reached. These
payments represent continuation of Employee's base salary through October 15,
2005.
b. To continue installment payments to Employee in the amount of
$12,500.00 each (less applicable deductions) on regular eLoyalty paydays for up
to six additional payperiods following the completion of payments to Employee
pursuant to Paragraph 4(a) (meaning through January 15, 2006), if Employee has
not begun alternate employment.
c. To provide Employee with the option of continuing his existing
medical and dental/vision coverage, and the health care spending account and
dependent care spending account benefits for three additional months
automatically (meaning through October 31, 2005), and for the duration of the
period in which he is receiving payments under Paragraph 4(b). Such continuation
will begin on the first day following expiration of the Termination Benefit
Period set forth above. Employee will continue to pay his portion of the cost of
those coverages and benefits during this period. Employee, however, is not
required to continue such coverage or benefits and he may terminate them within
31 days of the Termination Date by following the
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procedure outlined above. (After coverage ends, Employee may be eligible for
continued health benefit coverage under COBRA).
d. In the event of Employee's death during the payment period
described in Paragraphs 4(a) or 4(b) above, the payments and benefits described
in this Paragraph 4 will be provided to Employee's spouse. If Employee's spouse
is not then living, the payments and benefits will be provided to Employee's
survivors. Notwithstanding the foregoing, the continuation of benefits in the
Company's benefit programs under this Paragraph 4(d) will be limited by the
terms of the benefits programs, including eligibility restrictions.
5. This Agreement does not waive any benefits Employee may be eligible to
receive under the eLoyalty Corporation 401(k) Plan. Employee acknowledges that
eligibility and benefits under that plan, if any, will be determined and payable
in accordance with the terms of that plan.
6. This Agreement does not waive Employee's entitlement to receive
continued vesting in his outstanding grants of restricted Company stock for the
period in which he receives payments pursuant to Paragraph 4. Employee and
Company have agreed that Employee will continue to vest in his grants during
that period, and that the grant he received on November 9, 2001 (for which he
made an election under Section 83(b) of the Internal Revenue Code) will vest
fully on the Termination Date.
7. Employee acknowledges that Employee has an obligation of confidence,
non-disclosure and non-use with respect to any and all confidential information
and trade secrets that Employee acquired during the course of employment with
Company, pursuant to the Employment Agreement. This obligation of confidence,
non-disclosure and non-use extends to both Company information and third-party
information held by the Company in confidence, and this obligation continues
after the Termination Date. Employee acknowledges that in his position, he has
had access to confidential and proprietary information including, without
limitation, that concerning eLoyalty's business, operations, services/products,
strategies, finances, customers, prospects, employees, plans, designs, and
goals. Employee further acknowledges that he is bound by the non-competition,
confidentiality/trade secrets and non-solicitation provisions of the Employment
Agreement and that such provisions continue in full force and effect according
to the terms of that agreement. Employee represents and acknowledges that his
experience and capabilities are such that he would be able to use his skills and
knowledge in businesses that do not compete with the business of eLoyalty.
8. Employee acknowledges and agrees that in the event that Employee
breaches any provision of this Agreement, or any of the post-employment
covenants in the Employment Agreement, the Company will have the right to
immediately discontinue the payments and benefits described in Paragraph 4, in
addition to any other remedy that may be available to the Company, including but
not limited to recovery of amounts theretofore paid to Employee under Paragraph
4, additional monetary damages or injunctive relief. Employee further
acknowledges and agrees that he will pay any expenses or damages incurred by the
Company as a result of any such breach, including reasonable attorneys' fees and
costs. The parties expressly acknowledge that this provision does not apply to a
challenge or suit filed where such suit or challenge solely
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pertains to the validity of this Agreement under the Age Discrimination in
Employment Act as amended by the Older Workers' Benefit Protection Act.
9. Employee acknowledges and agrees that if he is re-hired by eLoyalty
before all the installments described in Paragraph 4 have been received, the
installments will cease and Employee will not be entitled to any further
payments under this Agreement.
10. Except as specifically provided herein, the Employment Agreement, as
amended by this Agreement, and the provisions thereof that continue in effect
after termination of Employee's employment constitute the entire understanding
between Employee and the Company relating to the subject matter contained herein
and supersede any previous agreement(s) that may have been made in connection
with Employee's employment with eLoyalty. The provisions of the Employment
Agreement that expressly survive termination of Employee's employment with
eLoyalty, together with the provisions hereof, shall continue to survive such
termination.
11. This Agreement may not be changed, modified, or altered without the
express written consent of Employee and Xxxxx Xxxxxxxxx or an executive officer
of eLoyalty.
12. The Company's or Employee's failure to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver of,
or deprive the Company or the Employee of, the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement. To be
effective, any waiver by the Company must be in writing and signed by Xxxxx
Xxxxxxxxx or an executive officer of eLoyalty. To be effective, any waiver by
the Employee must be in writing and signed by the Employee.
13. This Agreement shall be construed in accordance with the laws of the
State of Illinois. The parties specifically agree that if any dispute should
arise with respect to this Agreement, any legal claim shall be brought in a
court of the State of Illinois, federal or state, as appropriate. The parties
specifically agree to waive any argument that jurisdiction or venue is not
proper in the State of Illinois.
14. If any provision herein is determined to be unenforceable, the parties
agree that any such provision, or any part thereof, shall be construed
consistent with the apparent purpose of the provision to avoid the
unenforceability or, in the event that this is not possible, the provision shall
be severed and all remaining provisions shall remain in full force and effect.
However, in the event that the waiver or release of any claim is found to be
invalid or unenforceable, then Employee shall promptly execute any documents
presented by Company that would make the waiver or release valid and
enforceable.
15. The parties to this Agreement have been given an opportunity to review
and to revise the language in this Agreement. Therefore, in any construction to
be made of this Agreement, the same shall not be construed against any party.
16. Employee acknowledges: that he has been advised to consult an attorney
before signing this Agreement; that he understands the terms of this Agreement
and is signing this Agreement knowingly and voluntarily. Employee further
understands that he may accept this Severance Agreement offer at any time up to
and including January 6, 2005 by returning one
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signed original of this Agreement to Xxxxx Xxxxxxxxx, Director of Human
Resources, at eLoyalty Corporation, 000 Xxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxxx,
Xxxxxxxx 00000. If Employee does not accept this Agreement on or before that
date, the offer set forth in this Agreement is automatically rescinded unless
eLoyalty expressly notifies Employee in writing otherwise. To be effective, any
revocation within the seven (7) day period after acceptance must be in writing
and it must be received by Xxxxx Xxxxxxxxx by the close of business on the
seventh day. This Agreement shall not become effective or enforceable until this
seven (7) day revocation period has expired. Employee expressly acknowledges
that if he revokes this Agreement, he is not entitled to any payments or
benefits set forth in Paragraph 4 of this Agreement.
IN WITNESS WHEREOF, the parties have executed and agreed to this Agreement
consisting of six (6) pages.
ELOYALTY CORPORATION
By: /s/ Xxxxxx X. Xxxx Date: 12/15/04
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XXXXXXX XXXXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxxxx Date: 1/5/2005
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