SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (hereafter "Agreement") is made
and entered into between Xxxxxxx X. Xxxxxxxx (hereafter "Irestone") and Spanlink
Communications Company, Inc., a Minnesota corporation (hereafter "Spanlink").
I. RECITALS
1. Irestone is to be employed by Spanlink between September 23, 1994,
and July 15, 1997, pursuant to the terms of an Employment Agreement dated as of
September 23, 1994, as amended by the First Amendment to Employment Agreement,
dated as of January 31, 1996, and the Second Amendment to Employment Agreement
dated as of April 18, 1996 (collectively, the "Employment Agreement").
2. The purpose of this Separation Agreement and Release is to set forth
the terms and conditions under which Irestone and Spanlink will terminate their
employment relationship.
II. AGREEMENT
In consideration of the mutual agreements and promises made below, the
parties agree as follows:
1. Resignation. Subject to the following terms and conditions, Irestone
hereby voluntarily resigns from, and terminates his employment with Spanlink and
his status as an officer and director of Spanlink, and Spanlink hereby accepts
such resignation and termination, effective July 15, 1997.
2. Final Wages/Commissions/etc. Irestone agrees and understands that,
other than what he is to be paid under paragraph 3 of this Agreement, he has
been fully compensated, and hereby waives, any and all claims which he ever had,
now has, or may in the future have, against Spanlink or any of Spanlink's
Releasees, as defined in paragraph 5 below, for salary, bonuses, commissions, or
wage payments; accrued or unused vacation and/or sick pay; short term or long
term disability benefits; payments for any other type of leave of absence or
time off of work; and contributions by Spanlink to Spanlink's employee benefit
plans.
3. Additional Payment Obligations and Other Consideration.
a. Upon the expiration of the 15 day rescission clause as
allowed by paragraph 11 below, Spanlink shall pay Irestone at his current salary
of $8,333.33 per month, three month's gross pay, less all standard and usual
federal, state and FICA payroll tax withholdings and other standard employee
deductions. Irestone and Spanlink agree that this payment by Spanlink will
constitute compensation to Irestone and is therefore fully taxable. Spanlink
will issue appropriate W-2 forms to Irestone and to the government to report
this payment. Irestone will report this payment as wages on his 1997 individual
income tax returns, and will pay all associated income, social security,
Medicare, or other taxes owing, if additional
taxes are owing beyond the amounts withheld. Irestone agrees that he will
defend, indemnify and hold harmless Spanlink, and all of Spanlink's "Releasees"
as defined in paragraph 5 below, from any and all claims, demands, actions and
causes of action, losses, costs, attorney's fees, interests, penalties, expenses
and taxes of any sort relating to this payment and his obligation to pay taxes
thereon.
b. Spanlink hereby transfers its rights in the portable
personal computer and associated software heretofore used by Irestone.
c. Spanlink shall permit Irestone to have reasonable access to
Spanlink's voice mail, e-mail, paper and cellular phone service for purposes not
inconsistent with his obligations hereunder until October 15, 1997.
x. Xxxxxxxx shall maintain his rights under all stock options
heretofore granted to him in accordance with the terms of such grants, and the
obligations under all previous notes and security or pledge agreements
heretofore executed by him in favor of Spanlink shall continue in accordance
with the terms thereof; provided that, Spanlink shall renew the tax loans
previously made to Irestone on an annual basis as they come due through April
14, 2002, according to the cur-rent terms of the loans. The stock certificate
needs to be provided to the Spanlink per the original loan agreement.
e. At Spanlink's request Irestone may provide consulting
services through October 15, 1997, at $100.00 per hour, for a mutually agreed
upon number of hours.
f. If Irestone rescinds this Agreement pursuant to paragraph
11 below, it is understood that neither Spanlink nor Irestone will be obligated
to make the payment set forth above or perform any other of their respective
obligations in this Agreement, unless expressly stated otherwise.
g. The above payment and all other agreements which Spanlink
is making in this Agreement are being made to Irestone in exchange for the
various agreements which he is making in this Agreement, and to obtain a release
of any claims which Irestone might have relating to Irestone's employment at and
termination of employment from Spanlink. Irestone intends to completely and
finally release any and all claims, actions, causes of action or costs,
including attorney's fees and costs, which Irestone may have or claim to have
against Spanlink and the other persons and entities released herein, except for
claims being expressly excluded from his release in paragraph 6 below.
4. Confidentiality and Noncompetition Agreement/Return of Property.
Irestone acknowledges that he continues to be bound by the invention,
confidentiality and non-competition provisions of the Employment Agreement, and
that this Agreement is not intended in any way to relieve him of any of his
obligations thereunder.
Irestone specifically represents to Spanlink that; other than as
specifically provided herein, he has returned all of Spanlink's property,
including work in progress, originals and
copies of business forms, computer files, diskettes, source codes, manuals,
training materials, catalogs, customer lists, financial information, computer
equipment, office equipment, and all other material in his possession or control
which belongs to Spanlink or contains information subject to those provisions.
He also represents that he has returned all other Spanlink property, such as
office keys, parking cards, office equipment, files, or other documents of any
sort. Irestone acknowledges that this obligation is continuing and agrees to
promptly return to Spanlink any discovered property or confidential information
as described above.
5. General Release of Claims.
a. Spanlink and Irestone agree that, in exchange for the
payments and other considerations set forth in this Agreement, on behalf of
their respective agents, representatives, attorneys, designees, heirs,
successors, assigns, executors, administrators, and anyone else, acting, or
claiming to act, on their behalf, hereby releases and forever discharges
Spanlink and Irestone and all of its past and present employees, agents,
insurers, officers, board members, divisions, parents, joint venturers,
subsidiaries, successors, assigns, and all affiliated companies, partnerships,
corporations, and other associated entities (hereinafter "Releasees") from any
and all charges, claims, liabilities, obligations, agreements, losses, demands,
damages, costs, debts and expenses (including attorney's fees and costs),
actions or causes of action, both known and unknown, asserted and unasserted,
direct and indirect, and of any kind, nature, or description whatsoever, under
any state or federal law or laws, or the common law, from the beginning of time
to the date hereof, which Irestone or Spanlink ever had, may now have, or ever
can, shall, or may have or claim to have, against Spanlink or Irestone, or any
of the other Releasees, for, upon, or by reason of any matter, act, or thing
occurring on or prior to the date they sign this Agreement.
b. Without limiting the generality of the foregoing, this
General Release of Claims specifically includes, but is not limited to, all
charges, claims, liabilities, obligations, agreements, losses, demands, damages,
costs, debts and expenses (including attorney's fees and costs), actions, or
causes of action of any type arising, or which may have arisen, out of, or in
connection with, Irestone's work and employment with, or termination of
employment from, Spanlink or out of the provision of information about Irestone
to any person or entity, under any and all of the following legal theories: (1)
any and all claims arising under Title VII of the Civil Rights Act, as amended,
the Minnesota Human Rights Act, as amended, the National Labor Relations Act, as
amended, the Age Discrimination in Employment Act of 1967, as amended, the Older
Workers Benefits Protection Act of 1990, as amended, the Equal Pay Act of 1963,
as amended, the Age 70 Retirement Act, as amended, any "Whistleblower" statutes,
as amended, the Americans with Disabilities Act of 1990, as amended, the Civil
Rights Acts of 1964 and 1991, as amended, any and all wage and hour statutes,
any and all laws or statutes relating to termination of sales representatives,
any statutes regarding retaliatory treatment, and any other federal, state or
local statute or ordinance, regulation, order, or the common law of any state
regarding wages, commissions, bonuses or other earnings, employment, termination
of employment, or discrimination in employment; (2) any and all statutory or
common law claims for defamation, libel, or slander (including any future
statements by Irestone regarding Irestone's employment with and termination of
employment from Spanlink), (3) any and all statutory or
common law claims for assault, battery, reprisal, retaliation, negligent or
intentional infliction of emotional distress, negligent hiring or retention,
misrepresentation, breach of contract, promissory estoppel, fraud, wrongful
discharge, tortious interference with contract, breach of covenant of good faith
and fair dealing, or any other theory, whether legal or equitable; and (4) any
and all other contract, tort, or employment related claims which Irestone had or
has against Spanlink or any of the other Releasees herein. Irestone agrees that
he will not in the future commence any type of legal action based upon any of
the foregoing.
x. Xxxxxxxx expressly agrees and understands that, as a
further consideration and inducement for this Agreement, he has fully and
finally released all past and present claims. He expressly understands and
agrees that this General Release of Claims applies to all claims that Irestone
does not know of or expect to exist in his favor at the time he signs this
General Release of Claims and that this General Release of Claims contemplates
the extinguishment of any such claim or claims except as expressly provided
below.
6. Exclusions From Release. The parties agree and understand that
Irestone's General Release of Claims, as set forth in paragraph 5, does not
apply to and shall not affect the parties' rights to enforce the terms of this
Agreement, or to seek remedies for the breach thereof, and shall not prohibit
claims for events occurring after this Agreement becomes effective, except for
Irestone's statements to anyone regarding his employment with or termination of
employment from Spanlink. (It is understood that, in the event Irestone at some
point in the future "self-publishes" information which he claims to be
defamatory, then such "self-publication" is not considered a "future event"
under this provision; Irestone is releasing any and all defamation, libel or
slander claims based on any future "self-publication".) Further, the General
Release of Claims does not include the release of any claims which Irestone has
for Irestone's post-termination benefits under "COBRA" or to post-termination
benefits, if any, under any applicable employee benefit plan including, but not
limited to, Spanlink stock options granted to Irestone. Irestone's rights for
post termination benefits under COBRA and Spanlink's employee benefit plans are
not intended to be increased or decreased as a result of this Agreement, except
as specifically stated. Spanlink agrees to continue to pay the regular
employer's portion of the cost of the health benefits through December 31, 1997,
and Irestone's portion will be due to Spanlink on the first of each month.
Further, the General Release of Claims is not intended to waive Irestone's
rights, if any, to file a claim for unemployment compensation benefits, subject
to all qualification requirements.
7. a. No Interference/No Disparaging Remarks. Irestone agrees not to
interfere in any way with the employment or business relationship which Spanlink
or any of the other Releasees herein have with any past, current or future
employees, board members, customers, vendors, competitors, or any other person
or entity. Among other things, Irestone agrees not to make any disparaging
remarks of any sort or otherwise communicate any disparaging comments about
Spanlink or any of the other Releasees herein, to any of their employees, board
members, customers, vendors, competitors or to any other person or entity.
b. Spanlink agrees that, other than as needed to enforce the terms
of this Agreement (e.g. Sections 2, 5, 9, etc.), its shareholders, directors,
officers and management
employees will not interfere in any way with the employment or business
relationships which Irestone has with any current or potential future employers,
co-employees, customers, vendors, competitors or any other person or entity.
Among other things, Spanlink agrees that, other than as needed to enforce the
terms of this Agreement (e.g. Sections 2, 5, 9, etc.), its shareholders,
Directors, officers and management employees will not make any disparaging
remarks of any sort or otherwise communicate any disparaging comments about
Irestone to any of his current or future employers, co-employees, customers,
vendors, competitors, or to any other people or entities with whom he has
business or employment relationships.
8. Future Claims Against Spanlink. Irestone agrees that, at Spanlink's
request, and upon payment by Spanlink of reasonable consideration, Irestone will
cooperate with Spanlink in any claims or lawsuits by or against Spanlink where
Irestone has knowledge of the facts involved in the claim or lawsuit. Irestone
further agrees that he will not voluntarily aid, assist, or cooperate with
anyone who is involved in claims against Spanlink or with their attorneys or
agents in any claims or lawsuits. However, nothing in this Agreement prevents
Irestone from testifying at an administrative hearing, arbitration, deposition,
or in court, in response to a lawful and properly served subpoena in a
proceeding involving Spanlink.
9. Confidentiality Regarding Settlement Terms.
a. Spanlink has issued a press release on July 3, 1997
announcing Irestone's resignation as specified in paragraph 1.
x. Xxxxxxxx agrees to keep the detailed terms of this
Agreement in strict confidence, except that he may confidentially disclose to
his legal advisors, immediate family members, accountants, federal, state or
local tax authorities, or as otherwise required by law, with the agreement of
those people or entities that they will maintain the confidentiality, and not
disclose the information to anyone else. With these exceptions, Irestone agrees
not to ever make any comment to any person or entity regarding the details of
any term of this document or this settlement.
c. Without limiting the generality of the foregoing, Irestone
agrees that he will not disclose any information regarding this Agreement to any
current or former employee, officer, board member, vendor or competitor of
Spanlink or any other Releasee, except as required by law.
x. Xxxxxxxx acknowledges and agrees that this confidentiality
provision is a material provision of this Agreement. Irestone hereby agrees that
any material breach by him of this confidentiality provision shall constitute
and be treated as a breach of this Agreement, and shall relieve Spanlink of all
payment and other obligations to Irestone under this Agreement.
10. No Wrong Doing. Irestone agrees and acknowledges as follows: the
consideration being paid herein does not constitute, and shall not be construed
as, an admission of liability or wrong doing on the part of Spanlink, or any of
the other Releasees herein; this
Agreement does not constitute a precedent with respect to any other claims; and
Spanlink denies and will always deny that Irestone was in any way treated
illegally.
11. Consideration and Rescission Rights.
x. Xxxxxxxx acknowledges that he has been advised, in writing,
by Spanlink to seek the advice of legal counsel in determining whether to accept
the terms of this Separation Agreement and Release. Irestone further understands
that he has a statutory right to have twenty-one (21) days from the date he
received this Separation Agreement and Release in which to decide to accept its
terms. If Irestone decides to sign this Separation Agreement and Release sooner
than twenty-one (21) days, he hereby agrees and represents that he is doing so
voluntarily and based on a complete discussion with his own attorney.
x. Xxxxxxxx further understands that he has a statutory right
to nullify and rescind this Agreement at any time within fifteen (15) days from
the date of his signature below by indicating his desire to do so in writing and
delivering that writing to Xxxxx Xxxxxxxx, Spanlink Communications, 0000
Xxxxxxxxx Xxxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000. It is understood that Spanlink
will not make the payments required by this Agreement until Irestone signs and
delivers this Agreement to Spanlink, fulfills all of his other obligations
required by this Agreement, and does not revoke within fifteen (15) days of
signing this Agreement.
12. Minnesota Law Applies. This Separation Agreement and Release shall
be governed by, and construed and enforced, in accordance with Minnesota Law.
13. Invalidity. If any one or more of the terms of this Separation
Agreement and Release are deemed to be invalid or unenforceable by a court of
law, the validity, enforceability, and legality of the remaining provisions of
this release will not, in any way, be affected or impaired thereby.
14. No Claims Filed. Irestone represents as follows: He has not filed
any complaints, charges, or claims against Spanlink, or any of the other of the
Releasees herein, with any local, state or federal agency, court, or insurer
regarding his claims herein; he will not commence any lawsuits or administrative
charges at any time hereafter for anything that has occurred up to this point;
and if any such agency, court, or insurer assumes jurisdiction of any complaint,
charge, or claim against Spanlink, or any of the other Releasees herein,
Irestone will request such agency, court, or insurer, to withdraw from the
matter. Irestone further represents and warrants that no other person other than
himself is entitled to assert any claim based on the events giving rise to his
claims.
15. Capacity Advice and Consultation with Counsel. Irestone represents
that he is of legal age, under no legal disability, and has full legal authority
to release any and all claims specified herein and to undertake all other
obligations specified herein. Irestone further warrants that no promise or
inducement has been offered to him except as set forth herein; and that this
Separation Agreement and Release is executed without reliance upon any statement
or representation by Spanlink or any of the other Releasees, or their
representatives, employees,
officers, agents, board members, or attorneys concerning the nature and extent
of his claims, damages, or legal liability therefore. Irestone further
represents and agrees that he has had an opportunity to consult with an attorney
of his choice regarding the effect of this Separation Agreement and Release and
that he understands it and its effect.
16. Merger. This document supersedes all prior oral or written
agreements and communications between Irestone and Spanlink, except as otherwise
stated herein. Irestone agrees that (except as expressly stated otherwise in
this Agreement) any and all claims which he might have against Spanlink are
being fully released and discharged by this document. Irestone expressly agrees
that he continues to be bound to all of his obligations under the invention,
confidentiality and non-competition provisions of the Employment Agreement and
the tax loan and security agreement documentation.
17. Modification. This Separation Agreement and Release shall not be
modified, amended or terminated unless such modification, amendment or
termination is executed in writing by Irestone and Spanlink.
18. No Assignment. Irestone's obligations under this Agreement shall be
binding upon Irestone and Irestone's heirs, administrators, representatives or
executors. No assignment of Irestone's rights under this Agreement shall be made
by Irestone and such purported assignment shall be null and void.
19. Voluntary and Knowing Action. Irestone represents as follows: He
has carefully read and fully understands this Separation Agreement and Release,
and its final and binding effect; he has been afforded sufficient time and
opportunity to review this Separation Agreement and Release; he is fully
competent to manage his own business affairs and enter into or sign this
Separation Agreement and Release; that the only promises made to induce him to
sign this Separation Agreement and Release are those stated herein and that he
has signed this Separation Agreement and Release knowingly, freely and
voluntarily.
Dated: 7/15/97 /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxx Xxxxxx /s/ Xxxx Xxxxxx
Witnessed (Printed Name) Witnessed (Signature)
SPANLINK COMMUNICATIONS, INC.
Dated: 7/15/97 By:/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Chairman and Chief Executive Officer
