EXHIBIT 10.21
SEVERANCE AGREEMENT
DEFINITIONS. All the words used in this Severance Agreement have their plain
meaning in ordinary English. Specific terms used in this Severance Agreement
have the following meanings:
1. Words such as I and ME include both me and anyone who has or obtains
any legal rights or claims through me. My name is XXXXXXX X. XXXXXXX.
2. "COMPANY " means ACTIVE IQ TECHNOLOGIES, INC., and its affiliated
entities, and each of them, and past or present officials, managers,
agents, officers, directors, employees, shareholders, committees,
insurers, indemnitors, successors or assigns of any of the foregoing
entities or persons.
COMPANY'S PROMISES. In exchange for My Promises, as set forth below, Company has
promised to extend the following consideration to me following the expiration of
my right to rescind, but only if I have not exercised my right to revoke or
rescind as provided in this Severance Agreement:
1. The Company will pay me a total severance payment of $135,000, as
described in Sections 10 and 12 of my Employment Agreement with the
Company dated May 8, 2002, except that such sum will be paid in one
lump sum. This payment will be made on the date of this agreement and
will be subject to applicable federal and state income tax, FICA
withholding and any other routine withholdings made by Company.
2. All outstanding options to purchase shares of the Company common stock
that have been granted to me by the Company shall expire in accordance
with their respective terms.
3. The Company will make available to me COBRA benefits as provided for in
the Company's current Employee Handbook.
MY CLAIMS. The claims I am releasing include all of my rights to any relief of
any kind from Company, including, but not limited to:
1. All claims I have now, whether or not I now know about the claims;
2. All claims for attorney's fees or other legal costs;
3. All claims for alleged discrimination against me and any other rights
and claims under Title VII, the Age Discrimination in Employment Act
("ADEA"), the Minnesota Human Rights Act ("MHRA"), the Americans with
Disabilities Act ("ADA"), the Family and Medical Leave Act ("FMLA"), or
any other federal, state, or local law;
4. All claims arising out of my employment or my separation from
employment with Company, including, but not limited to, any alleged
breach of contract, wrongful termination, defamation, invasion of
privacy or intentional infliction of emotional distress;
5. All claims for any other alleged unlawful employment practices arising
out of or relating to my employment or my separation from employment;
and
6. All claims for any other form of pay, for example holiday pay, vacation
pay, severance pay, bonus pay and sick pay, subject to the payment of
my regular base salary plus accrued vacation through the date of this
agreement.
MY PROMISES. In exchange for receiving the payments and other consideration set
forth in this Severance Agreement, I promise to give up all my claims against
Company. I fully and finally release, give up, and otherwise relinquish all of
my rights and claims against Company, including, for example, rights and claims
under Title VII, the ADEA, MHRA, ADA and FMLA. I will not bring any lawsuits or
make any other demands against Company, except if necessary to enforce the
provisions of this Severance Agreement. The money and benefits I will receive as
set forth in this Severance Agreement are full and fair payment for the release
of all my rights and claims. Company does not owe me anything in addition to
what I will receive under this Severance Agreement. The consideration extended
by Company in this Severance Agreement in return for my release of rights and
claims is more than anything of value to which I am already entitled.
I agree that my obligation to comply with the restrictions contained in
the Employment Agreement between me and Company dated May 8, 2002, specifically
paragraphs 7, 8, 9, 12 and 13 (the "Restrictive Covenants"), shall survive the
termination of my employment with Company. I acknowledge and agree that, when
this Severance Agreement becomes effective, the remaining provisions of my
employment agreement shall terminate and have no further force or effect.
I agree to cooperate with Company now and in the future concerning
aspects of Company's business, including, but not limited to, the obligation to
answer any reasonable questions presented by Company to me and the obligation to
assist Company in the defense of any claim against Company. I further agree
that, through April 30, 2003, I will make myself available to provide consulting
and other services to the Company, at no additional charge, as reasonably
requested from time to time by the Company.
I agree that I have returned all of Company's confidential and
proprietary information, documents, computer disks, computer files, and other
property in my possession or under my control. If I later discover that I am
still in possession of such information or property, I will immediately return
them to the Company.
I agree that I will keep the terms of this Severance Agreement
confidential and that I will not disclose any of its terms to any third party,
other than to my spouse, accountant and legal counsel. In turn, my spouse,
accountant and legal counsel shall be advised regarding the confidentiality
provisions of this Severance Agreement and must agree to maintain the
confidentiality of this Severance Agreement as a condition of disclosure.
I understand that my representations are material, and Company is relying on my
representations to enter into this Severance Agreement with me. The covenants
and undertakings of this section shall survive termination of this Severance
Agreement.
ADDITIONAL AGREEMENTS AND UNDERSTANDINGS.
1. Company does not admit that it is responsible or legally obligated to
me, and in fact Company denies that it is responsible or legally
obligated to me for any amount even though it has paid me to release my
claims.
2. Both Company and I agree not to disparage the other now or in the
future.
3. My separation from employment by the Company is effective the date that
this Severance Agreement is executed. Company and I both admit that
this Severance Agreement results from an agreement to separate on
mutually agreeable terms, and that I was not terminated by the Company
nor did I first agree to quit employment. Company desires to offer
severance benefits to me and I understand that my eligibility to
receive such benefits depends upon my signing this agreement.
4. This Severance Agreement constitutes the entire understanding between
me and Company and supersedes all prior discussions, representations,
and negotiations with respect to the matters herein relating to my
employment and the termination of my employment, except that the
Restrictive Covenants survive the termination of my employment.
5. Company an I understand that I have resigned as Chief Financial Officer
and Secretary of the Company as of the date this Severance Agreement is
signed by me. I have also resigned all other offices and positions that
I have held with subsidiaries of the Company as of such date. Company
and I understand and agree that Company has paid me all money due up to
and including my employment separation date, which amount included all
benefits and other pay due and owing to me from Company.
RIGHTS TO CONSIDER AND REVOKE OR RESCIND.
1. I understand that I am advised by Company to consult an attorney prior
to signing this Severance Agreement.
2. I further understand that I have forty-five (45) days to consider my
waiver of rights and claims of age discrimination under the ADEA,
beginning March 11, 2003, the date on which I received this Severance
Agreement. If I sign this Severance Agreement, I understand that I will
then be entitled to revoke my release of any rights and claims of age
discrimination under the ADEA within seven (7) days of executing it,
and the release of my ADEA rights and claims shall not become effective
or enforceable until the seven-day period has expired. If I choose to
revoke my release of claims under the ADEA, I must immediately return
all severance payments made by the Company to me, as described in
Paragraph 1 under the heading "Company's Promises," above.
3. I further understand that I have the right to rescind this release of
discrimination rights and claims under the MHRA within fifteen (15)
calendar days of the date upon which I sign it. I understand that, if I
desire to rescind my release of discrimination rights and claims under
the MHRA, I must put my rescission request in writing and deliver it to
Company by hand or by mail within 15 calendar days of the date of
execution of this Severance Agreement by me. I agree that, if I choose
to rescind my release of claims under the MHRA, I will immediately
return the entire severance payments made to me by the Company (as
described in Paragraph 1, above, under the heading "Company's
Promises"). If I deliver my rescission request by mail, it must be:
a. postmarked within 15 calendar days of the day on which I sign
this Severance Agreement;
b. addressed to Chief Executive Officer, Active IQ Technologies,
Inc., 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000; and
c. sent by certified mail, return receipt requested.
I understand that if I revoke or rescind this Severance Agreement, all
of Company's obligations under this Severance Agreement will immediately cease,
I will be required to return all of the severance payments paid to me by the
Company and the Company will not pay me any of the additional money or benefits
in this Severance Agreement.
I have read this Severance Agreement carefully and understand all of
its terms. In agreeing to sign this Severance Agreement, I have not relied on
any statements or explanations made by Company, its agents or its attorneys.
Dated: March 14, 2003 /s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
ACTIVE IQ TECHNOLOGIES, INC.
Dated: March 14, 2003 By: /s/ Xxxx X. Xxxxxxx
-------------------
Its: President and Chief Executive Officer
