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Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), effective as of April 6, 2001
(the "Effective Date"), is between APERIAN, INC., a Delaware corporation (the
"Company"), and XXXXX XXXXX ("Xxxxx"). The Company and Xxxxx are collectively
referred to in this Agreement as the "Parties."
BACKGROUND
The Company wishes to employ Xxxxx as its President and Co-Chief Executive
Officer. The Company and Xxxxx wish to set the terms and conditions of the
employment of Xxxxx commencing on the Effective Date in accordance with the
terms of this Agreement.
TERMS OF AGREEMENT
The Parties agree as follows:
1. EMPLOYMENT. The Company hereby employs Xxxxx to devote his personal services
to the business and affairs of the Company, and Xxxxx hereby accepts such
employment, on the terms and conditions stated in this Agreement.
1.1. DUTIES. Craig's title and position shall be Vice Chairman and
Co-Chief Executive Officer and President of the Company. Craig's duties will be
corporate operations and services, sales, technology development, professional
services, business development, accounting/finance, legal, human resources and
the internal (inside) management of the Company, it being understood that each
Co-Chief Executive Officer shall have the same authority levels, be involved in
and be responsible for all major policy decisions and each shall have general
oversight over business and affairs of the Company. Xxxxx shall report directly
to the Board of Directors of the Company. Xxxxx shall also serve, upon request
and without additional compensation, as a director of the Company or as an
officer or a director, or both, of any subsidiary, division, or affiliate of the
Company or any other entity in which the Company holds an equity interest or
which it sponsors. Throughout the Term (as defined below), the Company shall
cause Xxxxx to be nominated to serve on the Board of Directors and will use
reasonable efforts to secure Craig's election to the Board of Directors. It is
the intention of the parties that Xxxxx will be elected to and will serve on the
Board of Directors while serving hereunder as Chairman and Co-Chief Executive
Officer of Company.
1.2. FULL-TIME EMPLOYEE. Xxxxx shall devote his full time (except for
reasonable vacation time and absence for any disability), attention, and best
efforts to the performance of his duties described in Article 1.1.
2. TERM. The term of Craig's employment under this Agreement (the "Term") shall
be as follows:
2.1. INITIAL TERM. The initial term shall commence on the date of this
Agreement and shall expire at 11:59:59 p.m., Central Time, on the day preceding
the third anniversary of the date of this Agreement, unless terminated earlier
pursuant to Article 5.
2.2. EXTENDED TERMS. Beginning with the third anniversary of the date
of this Agreement, the Term shall be extended automatically for an additional
successive one-year
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period as of each anniversary date of the date of this Agreement that occurs
while this Agreement is in effect; provided, however, that if either party shall
give written notice to the other not less than ninety days' prior any such
anniversary the that no such automatic extension shall occur, then Craig's
employment shall terminate on the anniversary date of the date of this Agreement
that next occurs after such notice is given.
3. COMPENSATION. As compensation for the services rendered by Xxxxx under this
Agreement, the Company shall, during the Term, pay or provide Xxxxx during the
Term the following:
3.1. BASE SALARY. The Company shall pay Xxxxx during the Term an annual
base salary equal to at least Three Hundred Thousand ($300,000), including any
extension of the Term described in Article 2.2, unless the Parties otherwise
agree. The annual amount of base salary in effect at the time is referred to in
this Agreement as "Base Salary." The Base Salary shall be paid in equal
installments semi-monthly, in arrears, at the Company's regular and routine
payroll dates, or at such intervals as may otherwise be agreed upon by the
Parties, and in accordance with any other payroll procedures of the Company. The
Base Salary shall be prorated (on a daily basis) for any partial payroll period
of employment under this Agreement.
3.2. ANNUAL BONUS OPPORTUNITY. Xxxxx shall be eligible to earn and
receive from the Company an incentive bonus as provided in a bonus plan for
employees of the Company and its subsidiaries to be adopted by the Board of
Directors of the Company or the Compensation Committee thereof.
3.3. INCENTIVE PLANS AND RESTRICTED STOCK. Xxxxx shall participate in
any stock option, performance share, phantom stock, or similar long-term
stock-based incentive plan adopted by the Company for its executive employees in
effect during the Term, including the Company's 2000 Stock Option Plan (the
"Option Plan"). Except as described in the remainder of this paragraph, the
extent to which Xxxxx shall participate in any such plan will be determined by
the Board or the Compensation Committee of the Board, but in no event shall
Craig's participation be less than that of any other officer of the Company.
3.4. SAVINGS AND RETIREMENT PLANS. Xxxxx shall be eligible to
participate in any long-term bonus, savings, deferred compensation, retirement
or pension, or death benefit plan adopted by the Company for its executive
employees generally in effect during the Term.
3.5. WELFARE BENEFIT PLANS. Xxxxx shall be eligible to participate in
any life insurance, medical, dental, and hospitalization insurance, disability
insurance benefit, or other similar employee welfare benefit plan or program
adopted by the Company covering its executive employees generally in effect
during the Term.
3.6. VACATION. Xxxxx shall be entitled to twenty (20) days of paid
vacation per fiscal year. Such vacation time shall, however, be prorated in any
fiscal year during which Xxxxx is employed by the Company for less than the
entire fiscal year, in accordance with the number of days in that fiscal year
during which Xxxxx is so employed. Such vacation time shall be in addition to
any paid time off ("PTO") to which Xxxxx may be entitled under the Company's PTO
policy in effect during the Term.
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3.7. TAX WITHHOLDING. The Company may deduct from any compensation or
other amount payable to Xxxxx under this Agreement (including under Article 5)
social security (FICA) taxes and all federal, state, municipal, and other taxes
or governmental charges as may, in the Company's judgment, be required. The
Company will consult with Xxxxx as to amounts to be withheld in this regard.
3.8. PARTICIPATION IN COMPENSATION AND BENEFIT PLANS. Craig's
participation during the Term in any or all of the plans or programs adopted by
the Company described in Articles 3.3 through 3.6 ("Compensation and Benefit
Plans") will be subject to the terms and conditions of those Compensation and
Benefit Plans as they now exist or may hereafter be adopted, amended, restated,
or discontinued by the Company, including the satisfaction of all applicable
eligibility requirements and vesting provisions of those Compensation and
Benefit Plans. The Company shall have no obligation under this Agreement to
continue any or all of the Compensation and Benefit Plans that now exist or are
hereafter adopted. To the extent that Xxxxx is eligible to participate in any
Compensation and Benefit Plan existing on the date of this Agreement for which a
plan description or plan materials are available, the Company has provided to
Xxxxx.
4. EXPENSE REIMBURSEMENT. During the Term, Xxxxx may incur, and shall be
reimbursed by the Company for, reasonable, ordinary and necessary, and
documented business expenses to the extent that Xxxxx complies with, and
reimbursement is permitted by, the Company's policies, practices, and
procedures.
5. EMPLOYMENT TERMINATION. Either Party may terminate Craig's employment under
this Agreement by giving written notice of termination to the other Party. If
the Company is terminating, it shall include in that notice a statement whether
the termination is because of Disability or for Cause or without Cause. The
Parties' respective rights and obligations upon the termination of Craig's
employment under this Agreement include the sums, if any, due under paragraph
5.3 and the following::
5.1. TERMINATION GENERALLY. Upon any termination of Craig's employment
under this Agreement, the Company shall pay or provide Xxxxx the following:
5.1.a. Any amount of Base Salary earned by, but not yet paid
to, Xxxxx through the effective date of termination of employment, as
further described below (the "Termination Date");
5.1.b. All benefits that have been earned by or vested in, and
are payable to, Xxxxx under, and subject to the terms (including all
eligibility requirements) of, the Compensation and Benefit Plans in
which Xxxxx participated through the Termination Date;
5.1.c. All reimbursable expenses due, but not yet paid, to
Xxxxx as of the Termination Date under Article 4; and
5.1.d. An amount equal to all accrued and unused PTO,
calculated in accordance with the Company's PTO policies, practices,
and procedures (including authorized deductions and the deductions
required by law), through the Termination Date.
The amount of Base Salary due under Section 5.1.a shall be paid no
later than thirty (30) business days after the Termination Date; the amounts or
benefits due under Section 5.1.b shall be paid or provided in accordance with
the terms of the Compensation and Benefit Plans under
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which such amounts or benefits are due to Xxxxx; and the amounts due under
Sections 5.1.c and 5.1.d shall be paid in accordance with the terms of the
Company's policies, practices, and procedures regarding reimbursable expenses
and PTO, respectively. Except as expressly provided below in this Article 5,
upon paying or providing Xxxxx the preceding amounts or benefits, the Company
shall have no further obligation or liability under this Agreement for Base
Salary or any other cash compensation or for any benefits under any of the
Compensation and Benefit Plans. Upon termination of Craig's employment, Xxxxx
shall be deemed to have resigned from any position as a director of the Company
or as an officer or director, or both, of any subsidiary, division, or affiliate
of the Company or any other entity in which the Company holds an equity interest
or which it sponsors that Xxxxx then holds; no written resignation need be given
or delivered to the Company.
In this Agreement, the Termination Date shall be (i) the date of
Craig's death, (ii) the third business day after the date on which the Company
gives notice of termination because of Disability, or (iii) the date of
termination specified in any other notice of termination, or if not specified in
the notice of termination, the date that notice of termination is given.
In this Agreement, "Disability" means Craig's permanent and total
disability, which shall be deemed to exist if he is unable reasonably to perform
his duties under this Agreement because of any medically determinable physical
or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for at least ninety (90) consecutive days. Any
Disability shall be determined by the Board or an authorized committee or
representative thereof ("Representative"), in its sole and absolute discretion,
upon receipt of competent medical advice from a qualified physician selected by
or acceptable to the Board or its Representative. Xxxxx shall, if there is any
question about his Disability, submit to a physical examination by a qualified
physician selected by the Board or its Representative.
In this Agreement, "Cause" means any of the following: (i) Craig's
willful failure to substantially perform his duties under this Agreement without
legal cause, other than any such failure resulting from his incapacity due to
physical or mental illness or Disability; (ii) Craig's engaging willfully in any
action which, or omitting to engage in any action the omission of which, he
knows or should know is, or is reasonably expected to be substantially injurious
(monetarily or otherwise) to the Company or its business or reputation; (iii)
Craig's performance of any illegal conduct or act or omission constituting
serious dishonesty that results, directly or indirectly, in significant gain or
enrichment of Xxxxx or his family or affiliates at the expense of the Company or
which adversely affects, or reasonably could in the future adversely affect,
Craig's value, reliability, or performance in a material manner; or (iv) any
deliberate breach by Xxxxx of any material obligation under any of Articles 6, 7
or 8. Whether an event or circumstance constituting Cause exists will be
determined in good faith the Board of Directors but only if such termination is
approved by at least two-thirds of the members of the Board of Directors after
Xxxxx has been given written notice by Company of the specific reason for such
termination and an opportunity, together with his counsel, to be heard before
the Board of Directors. Members of the Board of Directors may participate in any
hearing that is required pursuant to this paragraph by means of conference
telephone or similar communications equipment by means of which all persons
participating in the hearing can hear and speak to each other; provided,
however, that at least one-half of the members of the Board of Directors (in
addition to Xxxxx) shall attend the hearing in person. If the Company determines
that Cause for termination exists under clause (i) above in this paragraph, the
Company shall notify Xxxxx of that belief, and that notice shall describe the
event or circumstance believed to constitute Cause for termination. If that
event or circumstance may reasonably be remedied or corrected, Xxxxx shall have
thirty (30) days to effect that correction or remedy. If not corrected or
remedied within that
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thirty (30) day period (as determined by at least two-thirds the members of the
Board after opportunity for a hearing as described above), Cause for termination
shall immediately be deemed to exist, and Craig's employment shall be deemed
terminated. If the Company determines, as provided above, that Cause for
termination exists under any of clauses (ii), (iii), and (iv) above in this
paragraph, the Company shall notify Xxxxx of that belief, and that notice shall
constitute immediate termination of Craig's employment.
In this Agreement, "Good Reason" means any of the following: (i) a
significant reduction in the nature or scope of Xxxxx authorities or duties from
those set forth in Section 1.1, (ii) a change in Craig's reporting relationship
so that Xxxxx reports to anyone other than the Board of Directors of the
Company, (iii) a reduction in Craig's annual base salary or target opportunity
under any applicable bonus or incentive compensation plan or arrangement, (iv) a
diminution in Craig's eligibility to participate in bonus, stock option,
incentive award and other compensation plans which provide opportunities for
compensation which are at least equivalent to the opportunities afforded by the
Company (including its subsidiaries) to its most senior executives; (v) a
diminution in employee benefits (including but not limited to medical, dental,
life insurance, and long-term disability plans) and perquisites applicable to
Xxxxx from the employee benefits and perquisites provided by the Company
(including its subsidiaries) to its most senior executives; or (ii) a change,
without Craig's consent, in the location of Craig's principal place of
employment by the Company by more than 50 miles from the location where Xxxxx
was principally employed prior to such change. If Xxxxx determines that an event
constituting Good Reason has occurred, Xxxxx shall notify the Company and the
Chairman of the Compensation Committee of the Board of Directors of that belief,
which notice shall set forth the bases for that belief. The Company shall have
30 days after receipt of such notice in which to either (a) rectify such event
to Craig's reasonable satisfaction or (b) determine, in accordance with the
standards and procedures described in the preceding sentence that an event
constituting Cause exists. If the Company does not take either of such actions
within such 30-day period, Xxxxx may terminate his employment for Good Reason
immediately by giving written notice to the Company. Any termination by Xxxxx
under this paragraph shall for all purposes of this Agreement be deemed a
termination of Craig's employment by the Company without Cause.
In this Agreement "Change of Control" means the first to occur of the
following events: (i) any sale, lease, exchange, or other transfer (in one
transaction or series of related transactions) of all or substantially all of
the assets of the Company to any person or group of related persons for purposes
of Section 13(d) of the Exchange Act, (ii) a majority of the Board of Directors
of the Company shall consist of persons who are not Continuing Directors (as
defined below); (iii) the acquisition after the date of this Agreement by any
person or group of related persons of the power, directly or indirectly, to vote
or direct the voting of securities having more than 50% of the ordinary voting
power for the election of directors of the Company, or (iv) the approval by the
stockholders of the Company of a merger or consolidation of the Company with any
other entity, other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or such surviving entity's
parent) at least fifty percent (50%) of the total voting power represented by
the voting securities of the Company or such surviving entity or such surviving
entity's parent outstanding immediately after such merger or consolidation. A
"Continuing Director" means, as of the date of determination, any person who (i)
was a member of the Board of Directors of the Company on the date of this
Agreement or (ii) was nominated for election or elected to the Board of
Directors of the Company with the affirmative vote of a majority of the
Continuing Directors who were members of such Board of Directors at the time of
such nomination or election.
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Xxxxx may voluntarily terminate his employment under this Agreement
only by giving at least ten (10) days' prior written notice to the Company.
Xxxxx shall not be liable to the Company for breach of this Agreement because of
his termination of employment in accordance with the preceding sentence.
5.2. TERMINATION UPON DEATH OR DISABILITY. If Craig's employment is
terminated by death or by the Company because of Disability, Xxxxx (or his legal
representative, estate, or heirs) shall be entitled to receive from the Company:
5.2.a. The payment of a total Three Hundred Thousand Dollars
($300,000.00), in a lump sum (the "Termination Payment"); and
5.2.b. if Xxxxx elects and maintains continued coverage under
the Consolidated Omnibus Benefits Reconciliation Act of 1985 and
corresponding regulations ("COBRA"), then for up to the twelve (12)
consecutive months immediately after the Termination Date, payments in
an amount equal to the difference between (i) the premiums paid or
payable by Xxxxx for coverage under COBRA for himself and his
dependents (if any) and (ii) the premiums that he would have paid for
comparable coverage under the Company's then current group insurance
plan or plans if his employment under this Agreement had not ceased
(the "Insurance Payments"); except that the Insurance Payments shall
expire or terminate immediately upon Craig's becoming eligible for
coverage under another employer's plan or policy.
In addition, subject to and upon the release executed and delivered
pursuant to Article 5.4 becoming irrevocable, (a) all shares of restricted stock
granted to Xxxxx as described in Section 3.4 will vest and become
non-forfeitable and (b) each stock option granted to Xxxxx, whether now
outstanding or granted in the future, shall vest and shall be exercisable until
the earlier of (x) two years from the date of such termination or (y) the
expiration of the option in accordance with its terms .
The Company will make the Termination Payment and commence the
Insurance Payments within ten (10) business days after the first business day on
which the release executed and delivered in accordance with Section 5.4.a
becomes irrevocable by Xxxxx (or his legal representative, estate, or heirs).
The Company's obligations for the Insurance Payments are not intended to negate
or impair any obligation of the Company or right of Xxxxx under COBRA. The
Severance Payment and the Insurance Payments shall be in addition to the amounts
or benefits to which Xxxxx is entitled under Article 5.1. Any Severance Payment
or Insurance Payments (or both) under this Article 5.2 shall not be deemed the
continuation of Craig's employment for any purpose.
5.3 TERMINATION WITHOUT CAUSE. If Craig's employment is terminated by
the Company without Cause or by Xxxxx for Good Reason, Xxxxx (or his legal
representative, estate, or heirs) shall be entitled to receive from the Company
(except if and to the extent waived by Xxxxx in accordance with Article 7), as
liquidated damages:
5.3.a. The payment equivalent to one year's base salary
payable as a lump sum as provided below (the "Severance Payment"); and
5.3.b. if Xxxxx elects and maintains continued coverage under
the Consolidated Omnibus Benefits Reconciliation Act of 1985 and
corresponding regulations
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("COBRA"), then for up to the twenty-four (24) consecutive months
immediately after the Termination Date, payments in an amount equal to
the difference between (i) the premiums paid or payable by Xxxxx for
coverage under COBRA for himself and his dependents (if any) and (ii)
the premiums that he would have paid for comparable coverage under the
Company's then current group insurance plan or plans if his employment
under this Agreement had not ceased (the "Insurance Payments"); except
that the Insurance Payments shall expire or terminate immediately upon
Craig's becoming eligible for coverage under another employer's plan or
policy.
In addition, subject to and upon the release executed and delivered
pursuant to Article 5.4 becoming irrevocable, (a) all shares of restricted stock
granted to Xxxxx as described in Section 3.4 will vest and become
non-forfeitable and (b) each stock option granted to Xxxxx, whether now
outstanding or granted in the future, shall vest and shall be exercisable until
the earlier of (x) two years from the date of such termination or (y) the
expiration of the option in accordance with its terms.
The Company will pay the Severance Payment and commence the Insurance
Payments within ten (10) business days after the first business day on which the
release executed and delivered in accordance with Section 5.4.a becomes
irrevocable by Xxxxx (or his legal representative, estate, or heirs). The
Company's obligations for the Insurance Payments are not intended to negate or
impair any obligation of the Company or right of Xxxxx under COBRA. The
Severance Payment and the Insurance Payments shall be in addition to the amounts
or benefits to which Xxxxx is entitled under Article 5.1. Any Severance Payment
or Insurance Payments (or both) under this Article 5.3 shall not be deemed the
continuation of Craig's employment for any purpose.
5.4. CONDITIONS TO SEVERANCE BENEFITS. Except as provided in Section
5.2.b or 5.3.b, none of the Termination Payment, Severance Payment or the
Insurance Payments under Articles 5.2 and 5.3 will be subject to reduction as
the result of future compensation earned or received by Xxxxx (including by
self-employment), and Xxxxx shall have no duty to mitigate his damages. The
Severance Payment and the Insurance Payments and the vesting of restricted
stock, shall, however, be conditioned upon the Company's receipt of a Settlement
Agreement, General Release, and Covenant Not to Xxx executed by Xxxxx (or his
legal representative, estate, or heirs) in substantially the form of Exhibit A
to this Agreement (the "Release Agreement").
5.5. TERMINATION FOR CAUSE OR BY XXXXX. If Xxxxx'x employment is
terminated by the Company for Cause or is voluntarily terminated by Xxxxx, then
Xxxxx shall not be entitled to any payments under this Agreement other than the
amounts or benefits to which he is entitled under Article 5.1.
5.6 FAILURE TO EXTEND. If at any time, the Company elects not to extend
the Term as described in Article 2.1, then Xxxxx shall continue to perform under
this Agreement until the expiration of the Term and shall then be entitled to
continued payment of the Base Salary then in effect for an additional six (6)
months after the expiration date. The obligation of the Company to make such
payments under this Article 5.6 shall be subject to the same conditions, and
shall have the same effect, as Severance Payment under this Agreement.
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5.7. POST-TERMINATION SURVIVAL. The provisions of this Article 5 shall
survive the termination of Craig's employment by the Company and its
subsidiaries to the extent necessary to effect the post-termination payments or
benefits to which Xxxxx is entitled under the terms of this Article 5.
6. CONFIDENTIAL INFORMATION. The Company shall provide to Xxxxx, during the
Term, access to various trade secrets, confidential information, and proprietary
information of the Company (which, in this Article 6 as well as in Articles 7
and 8, shall include the Company's subsidiaries and affiliates) which are
valuable and unique to the Company ("Confidential Information"). Confidential
Information includes the Company's plans, policies, and procedures relating to
its BBN Certification as well as the terms of, and the Company's plans,
policies, and procedures relating to, the Company's relationships with any
supplier of telecommunications services, network services or other services, and
other persons having relationships that are material to the Company's business
and affairs. Xxxxx shall not, either while in the employ of the Company or at
any time thereafter, (i) use any of the Confidential Information, or (ii)
disclose any of the Confidential Information to any person not an employee of
the Company or not engaged to render services to the Company, except (in either
case) to perform his duties under this Agreement or otherwise with the Company's
prior written consent. Nothing in this Article 6 shall preclude Xxxxx from the
use or disclosure of information generally known to the public or not considered
confidential by the Company or from any disclosure to the extent required by law
or court order (though Xxxxx must give the Company prior notice of any such
required disclosure and must cooperate with any reasonable requests of the
Company to obtain a protective order regarding, or to narrow the scope of, the
Confidential Information required to be disclosed). All files, records,
documents, information, data, and similar items relating to the business or
affairs of the Company, whether prepared by Xxxxx or otherwise coming into his
possession, shall remain the exclusive property of the Company and shall not be
removed from the premises from the Company, except in the ordinary course of
business as part of Craig's performance of his duties under this Agreement, and
(in any event) shall be promptly returned or delivered to the Company (without
Craig's retaining any copies) upon the termination of employment under this
Agreement.
7. NONSOLICITATION. Xxxxx shall not, at any time within the twelve (12)
consecutive months immediately after the Termination Date, either directly or
indirectly:
7.1. DISCLOSE CONTACT INFORMATION. Make known to any person the names
and addresses, or other contact information, of any of the customers, suppliers,
or other persons having significant business relationships with the Company
within the information technology industry, so that such person could affect, or
attempt to affect, any of those relationships to the detriment of the Company;
or
7.2. SOLICIT EMPLOYEES. Solicit, recruit, or hire, or attempt to
solicit, recruit, or hire, any employee or consultant of the Company, or in any
other manner attempt to induce any employee or consultant of the Company to
leave the employ of the Company or cease his or her consulting or similar
business relationship with the Company. References in this Article 7.2 to "any
employee or consultant" shall include any person who was an employee or
consultant of the Company at any time within the six (6) consecutive months
preceding, and including, the Termination Date.
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8. DEVELOPMENTS. Xxxxx shall promptly disclose to the Company all inventions,
discoveries, improvements, processes, formulas, ideas, know-how, methods,
research, compositions, and other developments, whether or not patentable or
copyrightable, that Xxxxx, by himself or in conjunction with any other person,
conceives, makes, develops, or acquires during the Term which (i) are or relate
to the properties, assets, or existing or contemplated business or research
activities of the Company, (ii) are suggested by, arise out of, or result from,
directly or indirectly, Craig's association with the Company, or (iii) arise out
of or result from, directly or indirectly, the use of the Company's time, labor,
materials, facilities, or other resources ("Developments").
Xxxxx hereby assigns, transfers, and conveys to the Company, and hereby agrees
to assign, transfer, and convey to the Company during or after the Term, all of
his right and title to and interest in all Developments. Xxxxx shall, from time
to time upon the request of the Company during or after the Term, execute and
deliver any and all instruments and documents and take any and all other actions
which, in the judgment of the Company or its counsel, are or may be necessary or
desirable to document any such assignment, transfer, and conveyance to the
Company or to enable the Company to file and process applications for, and to
acquire, maintain, and enforce, any and all patents, trademarks, registrations,
or copyrights with respect to any of the Developments, or to obtain any
extension, validation, re-issue, continuance, or renewal of any such patent,
trademark, registration, or copyright. The Company will be responsible for the
preparation of any such instrument or document and for the implementation of any
such proceedings and will reimburse Xxxxx for all reasonable expenses incurred
by him in complying with this Article 8.
9. INDEMNIFICATION. To the extent Xxxxx is an officer or director of the
Company, the Company shall include Xxxxx under any existing or future (i)
directors' and officers' liability insurance policy that the Company obtains and
maintains or (ii) indemnification agreements between the Company and other
executives of the Company. Subject to the foregoing sentence, the Company will
indemnify Xxxxx to the fullest extent permitted by the laws of the Company's
state of incorporation in effect at that time or by the articles or certificate
of incorporation and by-laws of the Company, whichever affords the greater
protection to Xxxxx.
10. CERTAIN REMEDIES. Any breach or violation by Xxxxx of any of Articles 6 7
and 8 shall entitle the Company, as a matter of right, to an injunction issued
by any court of competent jurisdiction, restraining any further or continued
breach or violation, or to specific performance requiring the compliance with
Craig's covenants. This right to an injunction or other equitable relief shall
be in addition to, and not in lieu of, any other remedies to which the Company
may be entitled. The existence of any claim or cause of action of Xxxxx against
the Company, or any subsidiary or affiliate of the Company, whether based on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company of Craig's covenants in any of Articles 6, 7 and 8. The covenants
in Articles 6, 7 and 8 and in this Article 10 shall survive the termination of
Craig's employment under this Agreement.
11. BINDING AGREEMENT; SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon, and shall inure to the benefit of, the Company and Xxxxx and their
respective legal representatives, heirs, executors, administrators, and
successors and assigns (as permitted by this Article 11), including any
successor to the Company by merger, consolidation, or reorganization and any
other person that acquires all or substantially all of the business and assets
of the Company. The rights, benefits, remedies, and obligations of Xxxxx under
this Agreement are personal to Xxxxx and may not be assigned or delegated by
him; except that this shall not preclude (i) Xxxxx from designating one or more
beneficiaries to receive any amount or benefit that may be paid or provided
after Craig's death or (ii) the legal representative of Craig's estate from
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assigning any right or benefit under this Agreement to the person or persons
entitled thereto under Craig's will or the laws of intestacy applicable to
Craig's estate, as the case may be.
12. SEVERABILITY. If any provision of this Agreement is found to be invalid or
unenforceable for any reason, then (i) that provision shall be severed from this
Agreement, (ii) this Agreement shall be construed and enforced as if that
invalid or unenforceable provision never constituted a part of this Agreement,
and (iii) the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by
applicable law. Further, in lieu of that invalid or unenforceable provision,
there shall be added to this Agreement a provision as similar in its terms to
that invalid or unenforceable provision as may be possible and be valid and
enforceable.
13. NOTICES. Any notice, request, or other communication to be given by either
Party under this Agreement by to the other shall be in writing and either (i)
delivered in person, (ii) delivered by prepaid same-day or overnight courier
service, (iii) sent by certified mail, postage prepaid with return receipt
requested, or (iv) transmitted by facsimile, in any case addressed to the other
Party as follows:
To the Company:
Aperian, Inc.
0000 Xxxx 0xx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Chairman of the Compensation Committee
with a copy (which shall not constitute notice) to:
Aperian, Inc.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Secretary
To Xxxxx:
Xxxxx Xxxxx
10645 North Xxxxx Boulevard, No. 200-602
Phoenix, Arizona 85028
or to such other address or facsimile number as the Party to be notified may
have designated by notice previously given in accordance with this Article 13.
Communications delivered in person or by courier service or transmitted by
facsimile shall be deemed given and received as of actual receipt (or refusal)
by the addressee. Communications mailed as described above in this Article 14
shall be deemed given and received three (3) business days after mailing or upon
actual receipt, whichever is earlier.
14. CERTAIN DEFINED TERMS. In this Agreement, (i) "person" means an individual
or any corporation, partnership, trust, unincorporated association, limited
liability company, or other legal entity, whether acting in an individual,
fiduciary, or other capacity, and any government, court, or governmental agency,
(ii) "include" and "including" do not signify any limitation, (iii) "Article"
and "Section" means any Article and any Section, respectively, of this
Agreement, unless otherwise indicated, (iv) an "affiliate" of a person means any
other person controlling,
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controlled by, or under common control with that person, and (v) "business day"
means any Monday through Friday, other than any such weekday on which the
executive offices of the Company are closed. In addition, the use in this
Agreement of "year," "annual," "month," or "monthly" (or similar terms) to
indicate a measurement period shall not itself be deemed to grant rights to
Xxxxx for employment or compensation for that period.
15. ENTIRE AGREEMENT. This Agreement, with Exhibit "A," constitutes the entire
agreement between the Company and Xxxxx with respect to the subject matter
hereof and supersedes any prior agreement between the Company and Xxxxx with
respect to the same subject matter.
16. MODIFICATION AND WAIVER. No amendment to or modification of this Agreement,
or waiver of any term, provision, or condition of this Agreement, will be
binding upon a Party unless the amendment, modification, or waiver is in writing
and signed by the Party to be bound. Any waiver by a Party of a breach or
violation of any provision of this Agreement by the other Party shall not be
deemed a waiver of any other provision or of any subsequent breach or violation.
17. GENDER. Whenever the context requires in this Agreement, words denoting
gender in this Agreement include the masculine, feminine, and neuter.
18. GOVERNING LAW; VENUE. This Agreement, and the rights, remedies, obligations,
and duties of the Parties under this Agreement, shall be governed by, construed
in accordance with, and enforced under the laws of the State of Texas. The
exclusive venue of any action or proceeding relating to this Agreement or its
subject matter shall be in Dallas County, Texas.
19. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
constitutes an original, but all of which constitute one and the same document.
The Parties have executed this Agreement to be effective as of the date stated
in the first paragraph.
APERIAN, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx, Vice President,
General Counsel and Secretary
XXXXX XXXXX
/s/ Xxxxx Xxxxx
-----------------------------------------
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EXHIBIT A
SETTLEMENT AGREEMENT, GENERAL RELEASE
AND COVENANT NOT TO XXX
This Settlement Agreement, General Release, and Covenant Not to Xxx
("Agreement") is made and entered into as of the ___day of _____________ , ____
.by and between Xxxxx Xxxxx ("Employee") and Aperian, Inc., a Delaware
corporation (the "Company"), both of which are hereinafter collectively referred
to as the "parties".
RECITALS
WHEREAS, Employee was employed by the Company as its Vice Chairman,
President and Co-Chief Operating Officer under the terms of an Employment
Agreement dated as of April 6, 2001 (the "Employment Agreement"); WHEREAS,
Employee's employment under the Employment Agreement [shall terminate/has
terminated] effective ____________________ .(the "Termination Date"); and
WHEREAS, the parties desire to settle fully and finally, in the manner
set forth herein, all differences between them which have arisen, or which may
arise, prior to, or at the time of, the execution of this Agreement, including,
but in no way limited to, any and all claims and controversies arising out of
the Employment Agreement, the employment relationship between Employee and the
Company, and the cessation or termination thereof;
AGREEMENT
NOW, THEREFORE, in consideration of the recitals and the mutual
promises, covenants and agreements set forth herein, the parties covenant and
agree as follows:
1. Employee, for himself or herself and on behalf of his attorneys,
heirs, legatees, assigns, successors, executors, and administrators, IRREVOCABLY
AND UNCONDITIONALLY RELEASES, ACQUITS, AND FOREVER DISCHARGES the Company, its
current and former parent, subsidiary, affiliated, and related corporations,
firms, associations, partnerships, limited liability companies, and other
entities, their successors and assigns, and the current and former owners,
members, shareholders, managers, directors, officers, partners, employees,
agents, attorneys, representatives, and insurers of said corporations, firms,
associations, partnerships, limited liability companies, and other entities, and
their guardians, successors, assigns, heirs, executors, and administrators
(hereinafter collectively referred to as the "Releasees"), from any and all
claims, complaints, grievances, liabilities, obligations, promises, agreements,
damages, causes of action, rights, debts, demands, controversies, costs, losses,
damages, and expenses (including, without limitation, attorneys' fees and
expenses) whatsoever (collectively, ".claims") under any municipal, local,
state, or federal law, common or statutory including, but in no way limited to,
Claims under the Age Discrimination in Employment Act of 1967, 29 U.S.C. Section
621, et seq. for any actions or omissions whatsoever, whether known or unknown,
that are connected with or related to the Employment Agreement, the employment
of Employee by the Company, or the cessation or termination thereof, which
existed or may have existed prior to, or contemporaneously with, the execution
of this Agreement. Employee does not, however, release, acquit, or discharge the
Releasees from any Claim arising out of any nonperformance or failure to perform
by the Company of any of its obligations under this Agreement or any Claim not
connected with or related to the Employment Agreement, the employment of
Employee by the Company, or the cessation or termination thereof
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2. Employee, for himself or herself and on behalf of his or her
attorneys, heirs, legatees, assigns, successors, executors, and administrators,
COVENANTS NOT TO XXX OR OTHERWISE CONSENT TO PARTICIPATE IN ANY ACTION AGAINST,
any of the Releasees based upon any of the Claims released in paragraph 1 of
this Agreement.
3. Employee agrees that he will keep the terms, amount, and fact of
this Agreement STRICTLY AND COMPLETELY CONFIDENTIAL and that he will not
communicate or otherwise disclose to any employee (past, present, or future) of
the Company or any of the other Releasees or to a member of the general public
the terms, amount, or fact of this Agreement, except as may be required by law
or compulsory process.
4. Employee waives and releases forever any right or rights he might
have to employment, reemployment, or reinstatement with the Company or any of
the other Releasees, except as may be provided under the terms of this Agreement
5. Upon the expiration of seven (7) days after Employee's execution of
this Agreement, the Company agrees to begin to payor provide Employee the
Severance Payments and, if applicable, the Insurance Payments (as those terms
are defined in the Employment Agreement) in accordance with the surviving terms
of the Employment Agreement
6. The parties hereto recognize that, by entering into this Agreement,
the Company and each other Releasee does not admit, and does specifically deny,
any violation of any local, state, or federal law, common or statutory. The
parties further recognize that this Agreement has been entered into in release
and compromise of any claims which might be asserted by Employee in connection
with his employment by the Company, or the termination thereof, and to avoid the
expense and burden of any litigation related thereto.
7. The parties acknowledge and agree that in the event Employee
materially breaches any provision of this Agreement, (a) Employee will indemnify
and hold the Company harmless from and against any and all resulting damages,
expense, or loss incurred by the Company (including, without limitation,
attorneys' fees and expenses), (b) Employee will immediately repay to the
Company in full any payments made to him under the provisions (including,
without limitation, paragraph 5) of this Agreement, and (c) the Company will be
entitled to file counterclaims against Employee for breach of the covenant not
to xxx and may recover from Employee any payment not repaid to the Company, as
required by clause (b) of this paragraph 7, as well as any and all other
resulting actual or consequential damages.
8. One or more waivers of a breach of any covenant, term, or provision
of this Agreement by either party shall not be construed as a waiver of a
subsequent breach of the same covenant, term, or provision, nor shall it be
considered a waiver of any other then existing or subsequent breach of a
different covenant, term, or provision.
9. If any provision or term of this Agreement is held to be illegal,
invalid, or unenforceable, (a) such provision or term shall be fully severable,
(b) this Agreement shall be construed and enforced as if such illegal, invalid,
or unenforceable provision had never constituted part of this Agreement, and (c)
the
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remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid, or unenforceable provision or by
its severance from this Agreement. Furthermore, in lieu of each such illegal,
invalid, or unenforceable provision or term there shall be added automatically
as a part of this Agreement another provision or term as similar to the illegal,
invalid, or unenforceable provision as may be possible and that is legal, valid,
and enforceable.
10. The parties agree that should one party xxx the other party for a
breach of any provision of this Agreement, the prevailing party shall be
entitled to recover its attorneys' fees and costs of court. Each party shall
have the right to xxx for specific performance of this Agreement, and for
declaratory and injunctive relief.
11. Employee may revoke this Agreement, within seven (7) days of the
date of its execution by Employee (the "Revocation Period"), by written notice
to the Company. Employee agrees that if he revokes this Agreement, he shall
receive none of the benefits provided for under its terms or the surviving terms
of the Employment Agreement Employee further understands and agrees that, unless
the Company receives from Employee, prior to the expiration of the Revocation
Period, written notice of his revocation of this Agreement, this Agreement and
all of its terms shall have full force and effect, and Employee shall have
forever waived his right to revoke this Agreement.
12. This Agreement and the terms of the Employment Agreement that
survive the cessation or termination of Employee's employment thereunder
constitute the entire agreement of the parties, and supersedes all prior and
contemporaneous negotiations and agreements, oral or written, between the
parties. All prior and contemporaneous negotiations and agreements are deemed
incorporated and merged into this Agreement and are deemed to have been
abandoned if not so incorporated. No representations, oral or written, are being
relied upon by either party in executing this Agreement other than the express
representations of this Agreement and the terms of the Employment Agreement that
survive the cessation or termination of Employee's employment thereunder. This
Agreement cannot be changed or terminated without the express written consent of
the parties.
13. This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas, except where preempted by federal law.
14. By executing this Agreement, Employee acknowledges that (a) this
Agreement has been reviewed with him by a representative of the Company (see
Attachment "A", which is attached hereto and incorporated herein by reference),
(b) he has had at least twenty-one (21) days to consider the terms of the
Agreement (see Attachment "A"), and has considered its terms for that period of
time or has knowingly and voluntarily waived his right to do so, (c) he has been
advised by the Company in writing to consult with an attorney regarding the
terms of the Agreement (see Attachment "A"), (d) he has consulted with, or has
had sufficient opportunity to consult with, an attorney of his own choosing
regarding the terms of this Agreement, (e) any and all questions regarding the
terms of this Agreement have been asked and answered to his complete
satisfaction, (f) he has read this Agreement and fully understands its terms and
their import, (g) except as provided by this Agreement, he has no contractual
right or claim to the benefits described herein, (h) the consideration provided
for herein is good and valuable, and (i) he is entering into this Agreement
voluntarily, of his own free will, and without any coercion, undue influence,
threat, or intimidation of any kind or type whatsoever.
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EXECUTED in _________________ ,___________, this ____day of ___________, ______.
EMPLOYEE:
_______________________________
THE STATE OF )
)
COUNTY OF )
BEFORE ME, the undersigned, a Notary Public, on this day personally
appeared ______________________, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he or she
executed the same for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ______day of ___________,
______
__________________________________________
Notary Public, State of
[SEAL]
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EXECUTED in ________________, Texas, this _____day of ____________, ______.
APERIAN, INC.
By: ___________________________________
Its:_____________________________________
THE STATE OF )
)
COUNTY OF )
BEFORE ME, the undersigned, a Notary Public, on this day
personally appeared __________________________________________________________of
APERIAN, INC., known to me to be the person Whose name is subscribed to the
foregoing instrument, and acknowledged to me that he or she executed the same as
the act of that company for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____day of ________ ,
_____
__________________________________________
Notary Public, State of
[SEAL]
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ATTACHMENT A
NOTICE OF RIGHTS
Attached hereto you will find a proposed Settlement Agreement, General
Release, and Covenant Not to Xxx ("Agreement") with respect to the cessation or
termination of your employment. It is required by law that you be given at least
21 days from the date of receipt of the proposed Agreement within which to
consider its terms. During this period, please feel free to contact the person
listed below to ask any questions regarding the Agreement including. but not
limited to, the definitions of words which you do not know and the meanings of
phrases, sentences, or paragraphs which you do not understand. It is recommended
that you consult with an attorney regarding your legal rights with respect to
the Agreement during this 21-day period.
ACKNOWLEDGMENT OF RECEIPT
I acknowledge that I received a copy of APERIAN, INC.'s proposed
Settlement Agreement, General Release, and Covenant Not to Xxx at __:__ _.m.
this ________ day of _________________, _____, and that the Agreement and the
Notice of Rights above have been reviewed with me by the person signing below on
behalf of APERIAN, INC.
EMPLOYEE:
____________________________________
______________________
(Date)
APERIAN, INC.
By: ______________________________
Its: _____________________________
