AGREEMENT
THIS AGREEMENT, dated as of June 5, 1996 is entered into by and between
LifeRate Systems, Inc., a Minnesota corporation (the "Company") and Xxxxx X.
Xxxxxx, an individual presently residing in the State of Minnesota (the "Former
Executive").
A. The Former Executive's employment with the Company terminated
effective April 24, 1996 (the "Termination Date").
B. The Company and the Former Executive desire to settle and resolve in
a final and binding way any and all existing and potential claims or disputes
between the Company and the Former Executive relating in any way to their
employment relationship and the termination of such employment relationship.
In consideration of the foregoing and the mutual agreements set forth
below, the parties hereto agree as follows:
1. In consideration for entering into and performing his obligations
under this Agreement and waiving the claims described in Section 4(a), subject
to the occurrence of the Effective Date (as defined in Section 9), the Former
Executive will be entitled to receive the benefits set forth in this Section 1.
The Company will pay or reimburse the Former Executive, up to a maximum of
$10,000 per year (less any applicable withholding taxes and pro rated for any
portion of a year), for premiums on health insurance coverage for himself and
his spouse in respect of private health insurance purchased by the Former
Executive from the Termination Date and until such time as the Former Executive
reaches age 65 (the "Payment Period").
2. The Former Executive reaffirms the provisions of his Employment,
Non-Compete and Confidentiality Agreement, entered into as of July 1, 1992,
relating to (a) non-competition with the Company and (b) assignment of
inventions and non-disclosure of confidential and proprietary information and
agrees to continue to be fully bound by the terms of such provisions at all
times after the date hereof in accordance with the terms and conditions of such
provisions.
3. In consideration for the release from the Former Executive provided
in Section 4(a) and the other terms and conditions hereof, the Company agrees to
the following:
(a) Promptly following the Effective Date, the Company will
use its reasonable efforts to cause a Registration Statement on Form S-3 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission which includes 31,555 shares of Common Stock of the Company owned by
the Former Executive (out of a total of 191,555 shares of Common Stock of the
Company (the "Shares") owned by the Former Executive).
(b) Promptly following the Effective Date, the Company will
use its reasonable efforts to obtain a release of (I) 31,555 Shares (which are
to be included in the Registration Statement) from the MJK Lock-up (as defined
below) and (ii) the following portion of the Shares at the respective times
indicated from both the Cheap Stock Escrow (as defined below) and the MJK
Lock-up: 20,000 Shares no later than June 1, 1996 (or as soon thereafter as
practicable ); 20,000 Shares no later than December 1, 1996; 20,000 Shares no
later than June 1, 1997; and 20,000 Shares no later than December 1, 1997. It is
understood that the Former Executive may elect, in his sole discretion, to
request fewer shares than specified above to be released from the Cheap Stock
Escrow or the MJK lock-up and the Company shall use its reasonable efforts to
reduce the requested release in such event. "Cheap Stock Escrow" means the
"cheap stock" escrow with the Commissioner of Commerce for the State of
Minnesota covering certain shares of the Company's common stock including
160,000 of the Shares, and the "MJK Lock-up" means a certain lock-up arrangement
with Xxxxxx, Xxxxxxx & Xxxxx, Inc. The Former Executive acknowledges his
understanding that the decision to release the Shares from the Cheap Stock
Escrow and the MJK Lock-up are solely within the discretion of the Minnesota
Commissioner of Commerce and Xxxxxx, Xxxxxxx & Xxxxx, Inc., respectively, and
that the Company has no control or influence over such discretionary decisions.
(c) Promptly following the Effective Date, the Company will
execute the Release referred to in Section 4(b).
4. (a) The Former Executive agrees to execute the Release
attached hereto as Exhibit A, the terms of which are incorporated herein by
reference.
(b) The Company agrees to execute the Release attached hereto
as Exhibit B, the terms of which are incorporated herein by reference.
5. The Former Executive agrees that he will not, at any time,
disparage, demean or criticize, or do or say anything to cause injury to, the
technology, products, customer relationships, business or management of the
Company. In addition, the Former Executive agrees that he will hold the facts
and circumstances of this Agreement in strict confidence and will not reveal the
existence or the terms of this Agreement in strict confidence and will not
reveal the existence or the terms of this Agreement to anyone except his
immediate family, tax advisers or accountants or as may otherwise be required by
law or by subpoena resulting from judicial or administrative proceedings. The
Company agrees it will not, at any time, disparage, demean or criticize, or do
anything to cause injury to, the Former Executive.
6. The Former Executive agrees to cooperate fully with the Company and
its counsel in connection with any litigation matters or disputes involving the
Company with respect to which the Former Executive has information that would be
relevant to such matter and agrees to make himself available as may reasonably
be necessary in connection with such matters.
7. The Former Executive agrees and understands that he is entitled to
no other compensation or benefits other than those enumerated in this Agreement
and will not accrue or become entitled to any benefits during the Payment Period
other than as provided herein.
8. The Former Executive hereby acknowledges he has had up to 21 days to
consider the terms of this Agreement before signing, that he fully understands
and accepts the terms of this Agreement, that his signature is freely,
voluntarily and knowingly given, and that he has been provided a full
opportunity to review and reflect on the terms of this Agreement and to obtain
the advice of legal counsel of his choice, which advice the Company has
encouraged him to obtain.
9. After executing this Agreement, the Former Executive understands
that he may rescind this Agreement by delivering written notice of such
rescission within 15 days of such execution by certified mail, return receipt
requested, to Life Rate Systems, Inc., 0000 Xxxxx Xxxxxxxxx, Xxxxx, Xxxxxxxxx
00000; Attn: Chief Executive Officer. The Former Executive understands that this
Agreement will not become effective until the end of such 15-day period (the
"Effective Date") and only if the Former Executive does not rescind this
Agreement.
10. This Agreement does not constitute an admission that the Company
violated any statute or principle of common law or engaged in any wrongdoing.
11. This Agreement constitutes the entire agreement between the parties
and supersedes all previous negotiations, representations and agreements
heretofore made by the parties with respect to the subject matter hereof. No
amendment, waiver or discharge hereof shall be valid unless in writing and
executed by both parties hereto.
12. The laws of the State of Minnesota will govern the validity,
construction and performance of this Agreement, without regard to the conflict
of law provisions of any jurisdictions. Any legal proceeding related to this
Agreement will be brought in an appropriate Minnesota court, and both the
Company and the Former Executive hereby consent to the exclusive jurisdiction of
that court for this purpose.
13. Whenever possible, each provision of this Agreement will be
interpreted so that it is valid under the applicable law. If any provision of
this Agreement is to any extent invalid under the applicable law, that provision
will still be effective to the extent it remains valid. The remainder of this
Agreement also will continue to be valid, and the entire Agreement will continue
to be valid in other jurisdictions.
14. The Former Executive may not assign this Agreement to any third
party for whatever purpose without the express written consent of the Company.
The Company may not assign this Agreement to any third party, except by
operation of law through merger, consolidation, liquidation or recapitalization,
or by sale of all or substantially all of the assets of the Company, without the
express written consent of the Former Executive.
15. The parties hereto agree that the rights granted by this Agreement
are both unique and special, and the parties contemplate that enforcement of
this Agreement may be had by recourse to the equitable remedies available in
courts of appropriate jurisdiction in addition to any other remedies which may
be or may become available at law.
The parties have duly executed this Agreement as of the dates set forth
below.
LIFERATE SYSTEMS, INC.
Dated: June 5, 1996 By: /s/ Xxxxx Xxxxxxxx
Title: Chairman
Dated: June 6, 1996 /s/ Xxxxx X. Xxxxxx
Address: 0000 Xxxxx Xx.
Xxxxxxx Xxxxxxx, XX 00000
