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EXHIBIT 10.39.1
SEPARATION AGREEMENT
[Conformed Copy]
THIS SEPARATION AGREEMENT (this "Agreement") is entered into as of
January 16, 2001, by and between Aperian, Inc., a Delaware corporation
("Aperian"), and Xxxxxxxxxxx Xxxxxxxx" ("Xx. Xxxxxxxx");
WITNESSETH:
WHEREAS, Xx. Xxxxxxxx is currently an officer and employee of the
Company (as such term is hereinafter defined) and will remain an officer and
employee of the Company through January 31, 2001 (the "Resignation Date"); and
WHEREAS, Xx. Xxxxxxxx is currently a director of Aperian and will
continue as a director beyond the Resignation Date until he resigns or is
replaced in accordance with the Certificate of Incorporation and By-laws of
Aperian.
WHEREAS, Xx. Xxxxxxxx and Aperian are contemporaneously with the
execution of this Agreement entering into that certain Advisory Agreement (the
"Advisory Agreement"), which Advisory Agreement sets forth the terms and
conditions pursuant to which Xx. Xxxxxxxx will perform certain advisory and
other services for Aperian after the Resignation Date; and
WHEREAS, Xx. Xxxxxxxx and Aperian have agreed to certain terms and
conditions concerning Xx. Xxxxxxxx'x termination of employment with the Company;
NOW, THEREFORE, for and in consideration of the amounts and benefits to
be paid and provided to Xx. Xxxxxxxx under this Agreement and the mutual
promises, covenants, and undertakings contained in this Agreement, and intending
to be legally bound, Aperian and Xx. Xxxxxxxx agree as follows:
1. RESIGNATION; TRANSITION FROM EMPLOYEE TO CONTRACTOR: Effective as of
the Resignation Date, Xx. Xxxxxxxx resigns as an officer and employee of the
Company. For purposes of this Agreement, the term "Company" shall mean Aperian
and each of its subsidiaries. From the date hereof through the Resignation Date,
(1) Xx. Xxxxxxxx shall continue to be an employee of the Company, (2) Xx.
Xxxxxxxx shall receive compensation from the Company at Xx. Xxxxxxxx'x rate of
base salary as in effect on the date hereof (3) Xx. Xxxxxxxx will not be
required to perform any duties or report for work to any Aperian location.
Effective as of the Resignation Date, Xx. Xxxxxxxx'x employment with the Company
shall terminate. As of February 1, 2001, there shall be an independent
contractor relationship between Aperian and Xx. Xxxxxxxx, which relationship
shall be governed by the Advisory Agreement. Upon (A) the payment of Xx.
Xxxxxxxx'x base salary through the Resignation Date, (B) compliance with
Sections 2 and 4 hereof, the Company shall have no
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further obligations to Xx. Xxxxxxxx for any salary, bonus, or other compensation
of any type for services rendered by Xx. Xxxxxxxx to the Company on or before
the Resignation Date.
2. PAYMENTS AND BENEFITS: (a) Aperian will pay Xx. Xxxxxxxx his basic salary,
less normal withholdings through and including January 31, 2001. The final check
will be mailed to Xx. Xxxxxxxx, or at his request available for personal
delivery at Aperian's Addison office, on or about January 31, 2001 in accordance
with Aperian's normal payroll practices. In addition, Aperian will make a lump
sum payment for all accrued but unused vacation days, if any, earned by him.
Vacation pay, if any, will be included in the final January 31, 2001 payroll
check. Vacation pay will cease accruing as of the Resignation Date.
(b) Xx. Xxxxxxxx recognizes that he will not, after the Resignation
Date, participate as an employee of Aperian in any option, savings, insurance or
other benefit plan of Aperian except to the extent any such plan provides
otherwise. Xx. Xxxxxxxx recognizes that he and his dependents will cease to be
eligible for coverage under Aperian's medical and dental insurance plans from
and after February 28, 2001. Xx. Xxxxxxxx will remain entitled to any rights he
may have under any benefit plan of Aperian (a) to vested benefits under a
benefit plan which by its terms specifically provides for the vesting of
benefits, (b) to convert any insured benefits under an employee benefits plan to
the extent the plan allows conversion or (c) to maintain his medical insurance
in force as provided by the Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA").
3. WAIVER OF SEVERANCE PAYMENT: Xx. Xxxxxxxx waives, and the Company
shall not be required to pay, any other severance pay or severance benefits in
connection with the termination of the employment relationship, whether from a
severance plan sponsored by the Company or the general assets of the Company.
The consideration and remuneration provided for under this Agreement are in lieu
of and take the place of any other severance pay or severance benefit, which Xx.
Xxxxxxxx forfeits.
4. RESTRICTED STOCK AND STOCK OPTIONS: On the Resignation Date, but
effective the date hereof, all shares of common stock of Aperian issued to Xx.
Xxxxxxxx pursuant to the Restricted Stock Award Agreement dated October 30, 2000
will become fully vested in accordance with Section 8(b) of such Agreement and
shall no longer be subject to any restrictions or risk of forfeiture. All stock
options issued to Xx. Xxxxxxxx which, as of the Resignation Date, are (a) not
vested will expire in accordance with the applicable stock option unless
exercised prior to such expiration in accordance with such agreement and (b) are
vested will continue to be exercisable as provided, and for the periods
specified in, the applicable stock option agreements.
3. NONSOLICITATION OF EMPLOYEES: From the date hereof through January
1, 2002, Xx. Xxxxxxxx agrees that he shall not, directly or indirectly, for
himself or for others, solicit or initiate contact any employee of the Company
with regard to terminating his or her employment with the Company, without the
written consent of the Chief Executive Officer of Aperian, it being agreed that
continuing discussions with individuals who contact Xx. Xxxxxxxx first on their
own initiative with regard to terminating their employment with the Company,
shall not be considered solicitation or initiation of contact.
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4. PUBLISHING STATEMENTS: Each party hereto shall refrain, during the
remaining portion of the employment relationship, during the advisory
relationship, and after the advisory relationship terminates, from publishing
any oral or written statements about the other party, any of its subsidiaries,
or any of such entities' officers, directors, employees, agents or
representatives that are slanderous, libelous, or defamatory; or that disclose
private or confidential information about such other party or any of its
subsidiaries, or any of such entities' business affairs, officers, directors,
employees, agents, or representatives; or that constitute an intrusion into the
seclusion or private lives of such other party or any of its subsidiaries, or
any of such parties' officers, directors, employees, agents, or representatives;
or that give rise to unreasonable publicity about the private lives of such
other party or any of its subsidiaries, or any of such entities' officers,
directors, employees, agents, or representatives; or that place such other party
or any of its subsidiaries, or any of such entities' officers, directors,
employees, agents, or representatives in a false light before the public; or
that constitute a misappropriation of the name or likeness of such other party
or any of its subsidiaries, or any of such entities' officers, directors,
employees, agents, or representatives. A violation or threatened violation of
this paragraph 6 may be enjoined by the courts. The rights afforded such other
party under this paragraph 6 are in addition to any and all rights and remedies
otherwise afforded by law. Notwithstanding the foregoing, (a) nothing in this
paragraph 6 shall be interpreted to mean that Xx. Xxxxxxxx will be constrained
from making responsible statements as to his business judgment on material
corporate matters affecting the Company and (b) the provisions of this paragraph
6 shall cease to apply two years after Xx. Xxxxxxxx is no longer an employee,
director, advisor or consultant of Aperian.
5. MUTUAL RELEASE AND INDEMNITY:
(a) Xx. Xxxxxxxx, on his behalf and on behalf of his
representatives, heirs, administrators, executors, and assigns, and on behalf of
any other persons or entities claiming by, through, or under Xx. Xxxxxxxx, does
hereby fully release, acquit and forever discharge the Company and its
employees, officers, directors, trustees, committee-members, Boards, members of
such Boards, chairmen of the boards, shareholders, contractors, consultants,
agents, representatives, attorneys, successors, and assigns (the "Released
Entities"), from and against any and all of Xx. Xxxxxxxx'x rights, claims,
charges, demands, and causes of action against the Released Entities of any kind
or character, both past and present, known or unknown, including but not limited
to those arising under the Age Discrimination in Employment Act of 1967, Title
VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of
1990, and the Employee Retirement Income Security Act of 1974, all as amended,
and any other state or federal statute, regulation or the common law (contract,
tort or other), which relate to Xx. Xxxxxxxx'x employment or termination of
employment with the Company, including but not limited to any alleged
discriminatory or retaliatory employment practices, any matter relating to or
arising under any employment agreement with the Company, any and all prior
discussions, representations, understandings, or agreements between, on the one
hand, the Company and/or its agents, representatives, attorneys, or contractors,
and, on the other hand, Xx. Xxxxxxxx or his agents or representatives, regarding
his employment and termination of employment with the Company or services
heretofore rendered to the Company, or any other matter whatsoever.
Notwithstanding the preceding provisions of this paragraph 7(a), this release
(1) shall not serve to waive or release any of Xx. Xxxxxxxx'x rights or claims
that may arise after the date this Agreement is executed and (2) shall not
affect any future obligation which the Company may
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have to Xx. Xxxxxxxx under the terms of this Agreement or the Advisory
Agreement. Xx. Xxxxxxxx acknowledges and agrees that he has been given an
adequate period to consider this Agreement and this release, that he was advised
by the Company to consult an attorney, and that he has in fact consulted an
attorney prior to executing this Agreement and this release. Xx. Xxxxxxxx
understands that this Agreement and this release are not revocable in whole or
in part.
(b) The Company hereby unconditionally and irrevocably forever
releases and discharges Xx. Xxxxxxxx from all claims, charges, complaints,
obligations, liabilities, promises, agreements, contracts, damages, causes of
action, suits, accrued benefits or other liabilities of any kind or character,
whether known or hereafter discovered, arising from or in any way connected with
or related to Xx. Xxxxxxxx'x past service as an officer or employee of the
Company; provided, however, that such release (A) shall not apply to any claims,
demands or causes of action that the Company may have against Xx. Xxxxxxxx for
past conduct that constitutes a felony, (B) shall not serve to waive or release
any rights or claims of the Company that may arise after the date this Agreement
is executed, (C) shall not serve to waive or release any rights or claims of the
Company that arise out of Xx. Xxxxxxxx'x status as a director of the Company and
(D) shall not affect any future obligation which Xx. Xxxxxxxx may have to the
Company under the terms of this Agreement or the Advisory Agreement.
(c) It is expressly agreed that no future disputes between (1)
any of the Company or any of the Released Entities, and (2) Xx. Xxxxxxxx,
whether under this Agreement or otherwise, shall in any way affect the
enforceability of the releases granted above.
6. NOTICES: For purposes of this Agreement, notice, demands and all
other communications between the parties shall be in writing and shall be deemed
to have been duly given when delivered or mailed by United States certified or
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to Xx. Xxxxxxxx:
Xx. Xxxxxxxxxxx Xxxxxxxx
0000 Xxxxxx, #000
Xxxxxx, Xxxxx 00000
If to Aperian or the Company:
Aperian, Inc.
Attn: Xxxxxx X. Xxxxx, Chairman
00000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
or to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
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7. WITHHOLDING OF TAXES: The Company may withhold from any benefits and
payments made pursuant to this Agreement all federal, state, city and other
taxes as may be required pursuant to any law or governmental regulation or
ruling.
8. SUCCESSOR OBLIGATIONS AND ASSIGNMENT: The rights and obligations of
the Company under this Agreement shall inure to the benefit of and be binding
upon the successors and assigns of the Company. Xx. Xxxxxxxx can freely assign
any rights accruing to him under this Agreement (other than rights pursuant to
any plan which are not assignable under the terms of such plan) to any
associated party subject to the consent of Aperian, which consent shall not be
unreasonably withheld.
9. AMENDMENT: This Agreement may not be modified except by an agreement
in writing executed by both Aperian and Xx. Xxxxxxxx.
10. GOVERNING LAWS: This Agreement shall be subject to and governed by
the laws of the State of Texas, without giving effect to principles of conflicts
of law.
11. VALIDITY: In the event that any portion or provision of this
Agreement is found to be invalid or unenforceable, such invalid or unenforceable
portion shall be severed and the remainder of this Agreement shall remain valid
and enforceable.
12. COUNTERPARTS: This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
13. EFFECT OF AGREEMENT: The terms of this Agreement shall supersede
any obligations and rights of the Company and Xx. Xxxxxxxx relating to the
subject matter hereof. However, nothing in this Agreement shall be construed to
diminish in any way the rights of Xx. Xxxxxxxx or the Company pursuant to the
Advisory Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
APERIAN, INC.
BY: /s/ XXXXXX X. XXXXX
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XXXXXX X. XXXXX, CHAIRMAN
/s/ XXXXXXXXXXX XXXXXXXX
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XXXXXXXXXXX XXXXXXXX
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