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\ EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of February 15, 2001, is made and
entered into between Xxxxxx Associates, Inc., a Minnesota corporation ("Xxxxxx")
and Xxxxxx Xxxxxxxx, an individual resident of the state of Minnesota
("Employee").
Xxxxxx and Employee hereby agree as follows:
1. Employment. Xxxxxx hereby employs Employee, and Employee accepts
such employment and agrees to perform services for Xxxxxx, for the period and
upon the other terms and conditions set forth in this Agreement. Except as
expressly provided herein, termination of this Agreement by either party or by
mutual agreement shall also terminate Employee's employment by Xxxxxx.
2. Term. The term of Employee's employment hereunder shall commence on
the date hereof and shall thereafter continue on an "at will" basis, until
terminated by Employee or Xxxxxx, with or without cause, subject to the
provisions of this Agreement.
3. Position and Duties.
3.01 Service with Company. During the term of this Agreement, Employee
agrees to serve as Executive Vice President and Chief Financial Officer of
Xxxxxx. Employee shall report to Xxxxxx'x Chief Executive Officer and shall
perform such duties, consistent with the position of Executive Vice President
and Chief Financial Officer of Xxxxxx, as Xxxxxx'x Chief Executive Officer and
the Board of Directors of Xxxxxx (the "Board") shall assign to Employee from
time to time. Employee shall have the power and authority of Executive Vice
President and Chief Financial Officer of Xxxxxx to the full extent provided by
Minnesota law, subject to the authority of the Board to modify Employee's power
and authority.
3.02 Performance of Duties. Employee agrees to serve Xxxxxx faithfully
and to the best of his ability and to devote his full time, attention and
efforts to the business and affairs of Xxxxxx during the term of his employment.
Employee hereby confirms that Employee is under no contractual commitments
inconsistent with his obligations set forth in this Agreement and that, during
the term of his employment, Employee will not render or perform any services for
any other corporation, firm, entity or person which are inconsistent with the
provisions of this Agreement or which would otherwise impair his ability to
perform his duties hereunder. Employee shall comply with Xxxxxx'x policies and
procedures; provided, that to the extent such policies and procedures are
inconsistent with this Agreement, this Agreement shall control.
4. Compensation.
4.01 Base Salary. As base compensation for all services to be rendered
by Employee under this Agreement during the term of this Agreement, Xxxxxx shall
pay to Employee an annual salary of $285,000 to be paid in substantially equal
regular periodic payments (at least semi-monthly) in accordance with Xxxxxx'x
normal payroll procedures and policies. Xxxxxx will review Employee's
compensation on or about each June 1st, commencing June 1, 2001, and may, at its
sole discretion, increase Employee's base compensation from time to time in the
future.
4.02 Incentive Compensation. Employee shall be eligible to receive an
annual bonus of 75% of base salary (the "Annual Target Bonus"), payable in five
installments at the end of each of Xxxxxx'x
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fiscal quarters and annually. Employee's Annual Target Bonus shall be payable in
accordance with, and subject to, the terms and conditions of Xxxxxx'x FY01
Executive Leadership Results Plan ("ELRP") and Employee's ELRP Participant
Letter dated August 15, 2000. Notwithstanding the foregoing, if Employee
receives a bonus payment of less than $142,500 under the ELRP for fiscal year
2001, Xxxxxx shall pay Employee for fiscal year 2001 an additional bonus equal
to the difference between $142,500 minus the bonus paid to Employee under the
ELRP for fiscal year 2001. Xxxxxx may, at its sole discretion, pay incentive
compensation in excess of Employee's Annual Target Bonus or increase Employee's
incentive compensation from time to time in the future.
4.03 Options. Xxxxxx has granted Employee effective August 15, 2000,
non-qualified stock options to purchase an aggregate of 750,000 shares of Common
Stock of Xxxxxx, at an exercise price of $3.22 per share, under Xxxxxx'x 1996
Stock Incentive Plan (the "Plan"), subject to the terms of the Plan and option
grant notice between Xxxxxx and Employee. Xxxxxx will grant to Employee
effective February 16, 2001, non-qualified stock options to purchase an
aggregate of 150,000 shares of Common Stock of Xxxxxx, at an exercise price of
$4.12 per share, under the Plan, subject to the terms of the Plan and option
grant notice between Xxxxxx and Employee. The Board of Directors of Xxxxxx may,
at its sole discretion, grant Employee in the future additional stock options,
on such terms as the Board may determine.
4.04 Club Membership Expenses. Xxxxxx shall reimburse Employee's
initiation fees and the then current monthly and annual cost of Employee's
current country club and golf membership, and for Xxxxxx business conducted by
Employee at that club.
4.05 Participation in Benefit Plans. During the term of Employee's
employment by Xxxxxx, Employee shall be entitled to receive such life,
disability, medical, dental and other insurance coverage (including directors
and officers insurance) as is then generally being provided by Xxxxxx to its
executive vice president level employees to the extent that Employee's age,
position or other factors qualify Employee for such benefits. Xxxxxx shall pay
all premiums for medical, dental, disability and survivor benefits (excluding
discretionary, supplemental survivor benefits). Employee shall receive four
weeks of flexible time off (FTO) annually, which begins accruing August 15,
2000. Xxxxxx shall reimburse a portion of Employee's parking expenses consistent
with the reimbursement provided to Xxxxxx'x executive vice president level
employees. Nothing in this Agreement is intended to or shall in any way restrict
Xxxxxx'x right to amend, modify or terminate any of its benefit plans during the
term of Employee's employment.
4.06 Expenses. In accordance with Xxxxxx'x normal policies for expense
verification, Xxxxxx will pay or reimburse Employee for all reasonable and
necessary out-of-pocket expenses incurred by Employee in the performance of his
duties under this Agreement, subject to the presentment of appropriate
documentation.
5. Termination and Severance. Upon the termination of Employee's
employment, Employee shall be entitled to severance benefits to the extent
provided below.
5.01 Termination Without Severance Benefits. Employee's employment and,
except as provided below (and except for benefits applicable under COBRA), any
rights to base salary, bonus and benefits, shall immediately terminate in the
event at any time:
(i) Employee dies;
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(ii) Employee becomes totally disabled which results in
Employee's inability to perform the essential functions of Employee's
position, with or without reasonable accommodation;
(iii) Employee's breach of any material contractual obligation
to Xxxxxx under the terms of this Agreement or limitation, the Xxxxxx
Associates Inc. Employee Invention and Non-Disclosure Agreement
previously entered into between Xxxxxx and Employee (the "Employee
Invention and Non-Disclosure Agreement"), provided that Employee is
first provided at least 30 days written notice and opportunity to cure
the alleged breach;
(iv) Employee is convicted of any felony (whether or not
Xxxxxx is a victim of such offense) after the date of this Agreement;
(v) Employee commits gross misconduct, fraud, misappropriation
or embezzlement in connection with Xxxxxx'x business; or
(vi) Employee elects to terminate Employee's employment with
Xxxxxx, other than as provided in Sections 5.02 or 5.03.
5.02 Termination With Severance Benefits.
(i) If Xxxxxx terminates Employee's employment at any time for
any reason other than the reasons set forth in any of clauses (i) - (v)
of Section 5.01 or if Employee elects to terminate Employee's
employment because of a material diminution or adverse change in the
title, duties, or hierarchical reporting relationships of Employee: (a)
Xxxxxx shall pay Employee severance payments equal to (1) 100% of
Employee's annual base salary (less applicable Taxes as defined in
Section 8.03) and (2) 100% of Employee's then current annual target
incentive compensation (less applicable Taxes) at the time of
termination, (b) Xxxxxx shall pay Employee accrued and unpaid salary
and flexible time off (FTO) benefits through the date of termination,
and (c) Xxxxxx shall pay Employee any unpaid incentive compensation
earned for the fiscal quarter preceding the fiscal quarter during which
termination occurs, but Xxxxxx shall have no obligation (other than the
annual target incentive compensation under clause (a) above) to pay
Employee any incentive compensation for the fiscal quarter during which
termination occurs (whether or not Employee would otherwise have been
eligible to receive such incentive compensation) (the amounts under
clauses (a), (b) and (c) of this Section 5.02(i) are collectively
referred to as "Severance Payments"). The Severance Payments shall be
payable in full promptly following termination of Employee's employment
and completion of the rescission period identified in Exhibit A.
Employee shall receive Severance Payments to the extent described in
this Section 5.02 only if Employee signs a general release of claims in
a form attached to this Agreement as Exhibit A (and the rescission
period thereunder has expired) and continues to comply with this
Agreement. If Employee does not sign, or if Employee rescinds, such a
general release of claims, Employee shall not be entitled to receive
any Severance Payments under the provisions of this Agreement. Any
Severance Payments or other payment made under this Section 5.02 will
be paid according to Xxxxxx'x normal payroll policies. No severance
payments shall commence until completion of the rescission period
identified in Exhibit A (and no severance payments shall be payable to
Employee if at the time of completion of the rescission period,
Employee has exercised Employee's right of rescission described in
Exhibit A).
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(ii) As used in this Section 5.02(ii), the term "IPO" means
the effective date of a registration statement filed by Xxxxxx with the
Securities and Exchange Commission under the Securities Act of 1933,
pertaining to the initial public offering of common stock of Xxxxxx.
Xxxxxx shall pay Employee an amount equal to twice the amount of the
Severance Payments under Section 5.02(i) if and only if Xxxxxx
terminates Employee's employment before the earlier of an IPO, a
"Change in Control" (as defined in Section 5.03) or the close of
business on February 15, 2002, and as a result of such termination
Employee is entitled to Severance Payments pursuant to Section 5.02(i).
In no event shall Xxxxxx be obligated to pay Severance Payments under
both Sections 5.02(i) and 5.02(ii). This Section 5.2(ii) shall not
apply to any termination of employment occurring after the earlier of
an IPO, a Change in Control or February 15, 2002.
5.03 Termination Upon Change in Control. Notwithstanding Section
5.01(vi), if Employee terminates Employee's employment, at Employee's option,
within 3 months after a Change in Control (as defined below): Xxxxxx shall pay
Employee Severance Payments, as defined in Section 5.02(i). Employee shall
receive Severance Payments to the extent described in this Section 5.03 only if
Employee signs a general release of claims in a form attached to this Agreement
as Exhibit A (and the rescission period thereunder has expired) and continues to
comply with this Agreement. If Employee does not sign, or if Employee rescinds,
such a general release of claims, Employee shall not be entitled to receive any
Severance Payments under the provisions of this Agreement. Any Severance
Payments made under this Section 5.03 will be payable in full promptly following
termination of Employee's employment according to Xxxxxx'x normal payroll
policies. No severance payments shall commence until completion of the
rescission period identified in Exhibit A (and no severance payments shall be
payable to Employee if at the time of completion of the rescission period,
Employee has exercised Employee's right of rescission described in Exhibit A).
In no event shall Xxxxxx be obligated to pay Severance Payments under both
Sections 5.02 and 5.03.
5.04 "Change in Control" Defined. As used in Section 5.02(ii) and 5.03
of this Agreement, "Change in Control" shall be deemed to have occurred if (i) a
tender offer shall be made and consummated for the ownership of 50% or more of
the outstanding voting securities of Xxxxxx, (ii) Xxxxxx shall be merged or
consolidated with another corporation and as a result of such merger or
consolidation less than 50% of the outstanding voting securities of the
surviving or resulting corporation shall be owned in the aggregate by the former
shareholders of Xxxxxx, other than affiliates (within the meaning of the
Securities Exchange Act of 1934 (the "Exchange Act")) of any party to such
merger or consolidation, as the same shall have existed immediately prior to
such merger or consolidation, (iii) Xxxxxx shall sell substantially all of its
assets to another corporation which is not a wholly owned subsidiary of Xxxxxx,
(iv) a person, within the meaning of Section 3(a)(9) or of Section 13(d)(3) (as
in effect on the date hereof) of the Exchange Act, shall acquire 50% or more of
the outstanding voting securities of Xxxxxx (whether directly, indirectly,
beneficially or of record) (for purposes hereof, ownership of voting securities
shall take into account and shall include ownership as determined by applying
the provisions of Rule 13d-3(d)(1)(i) as in effect on the date hereof) pursuant
to the Exchange Act, or (v) individuals who constitute the Xxxxxx'x Board of
Directors on the date hereof (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof, provided that any person becoming a
director subsequent to the date hereof whose election, or nomination for
election by Xxxxxx'x shareholders, was approved by a vote of at least 50% of the
directors comprising the Incumbent Board shall be, for purposes of this clause
(v), considered as though such person were a member of the Incumbent Board.
Notwithstanding anything in the foregoing to the contrary, no Change in Control
of Xxxxxx shall be deemed to have occurred for purposes of this Agreement by
virtue of any transaction
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which results in Employee, or a group of persons which includes Employee,
acquiring, directly or indirectly more than 50% of the combined voting power of
Xxxxxx'x outstanding voting securities.
5.05 Effect of Termination. Notwithstanding any termination of
Employee's employment with Xxxxxx, Employee, in consideration of Employee's
employment hereunder to the date of such termination, shall remain bound by the
provisions of this Agreement which specifically relate to periods, activities or
obligations upon or subsequent to the termination of Employee's employment,
including, but not limited to, the covenants contained in Section 6 hereof (to
the extent described in Section 6) and the Employee Invention and Non-Disclosure
Agreement. Upon termination of employment, Employee's outstanding stock options
will be exercisable to the extent set forth in the terms of the applicable stock
option agreement or grant notice for each stock option and the terms and
conditions of the stock option plan.
5.06 Surrender of Records and Property. Upon termination of Employee's
employment with Xxxxxx, Employee shall deliver promptly to Xxxxxx all records,
manuals, Xxxxxx employee directories, books, blank forms, documents, letters,
memoranda, notes, notebooks, reports, computer disks, computer software,
computer programs (including source code, object code, on-line files, e-mail
files, documentation, testing materials and plans and reports), computer
hardware, designs, drawings, formulae, data, tables or calculations or copies
thereof, which are the property of Xxxxxx or which relate in any way to the
business, products, practices or techniques of Xxxxxx, and all other property,
trade secrets and confidential information of Xxxxxx, including, but not limited
to, all tangible, written, graphical, machine readable and other materials
(including all copies) which in whole or in part contain any trade secrets or
confidential information of Xxxxxx which in any of these cases are in Employee's
possession or under Employee's control.
5.07 Limitation of Liability. In no event shall Xxxxxx be liable to
Employee under this Agreement for any amount in excess of the payments
potentially to be made under Sections 4 and 5. In no event shall Xxxxxx be
liable to Employee under this Agreement for any indirect, special, consequential
or punitive damages.
6. Noncompetition.
6.01 Agreement Not to Compete. In consideration of Xxxxxx'x providing
Employee with the severance benefits under Section 5.02, Employee agrees that,
during the "Restricted Period" (as hereinafter defined), Employee shall not,
directly or indirectly, engage in any "Competing Business Activity" (as
hereinafter defined), in any manner or capacity (e.g., as an advisor,
consultant, principal, agent, partner, officer, director, shareholder, employee,
member of any association or otherwise). As used herein, "Restricted Period"
shall mean: (a) the period from the date hereof through the date of termination
of Employee's employment with Xxxxxx and (b) the one year period commencing on
the date of termination of Employee's employment with Xxxxxx, but only if Xxxxxx
pays Employee the applicable Severance Payments under Section 5.02. If upon
termination of Employee's employment with Xxxxxx, Xxxxxx is not obligated to pay
Employee the Severance Payments under the terms of Section 5.02, but Xxxxxx
elects to pay Employee the Severance Payments under Section 5.02(i) anyway, then
the Restricted Period shall continue for one year after termination of
Employee's employment with Xxxxxx. If upon termination of Employee's employment
with Xxxxxx, Xxxxxx is not obligated to pay Employee the Severance Payments
under the terms of Section 5.02, and Xxxxxx elects not to pay Employee the
Severance Payments under Section 5.02(i), then the Restricted Period shall end
on the date of termination of Employee's employment with Xxxxxx. This Section
6.01 shall not excuse Xxxxxx from making the applicable Severance Payments to
Employee under Section 5.02 if Employee complies with this Section 6. As used
herein, "Competing Business Activity" shall mean any business activities that
are competitive
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with the business conducted by Xxxxxx at or prior to the date of the termination
of Employee's employment with Xxxxxx.
6.02 Geographical Extent of Covenant. The obligations of Employee under
this Section 6 shall apply to all markets, domestic or foreign, in which: (a)
Xxxxxx operates during the term of the Restricted Period; and (b) Xxxxxx has
plans to enter at the time of the termination of Employee's employment with
Xxxxxx.
6.03 Limitation on Covenant. Ownership by Employee, as a passive
investment, of less than one percent of the outstanding shares of capital stock
of any corporation listed on a national securities exchange or publicly traded
in the over-the-counter market shall not constitute a breach of this Section 6.
6.04 Nonsolicitation; Non-hire and Noninterference. During the
Restricted Period, Employee shall not (a) induce or attempt to induce any
employee of Xxxxxx to leave the employ of Xxxxxx, or in any way interfere
adversely with the relationship between any such employee and Xxxxxx; (b) induce
or attempt to induce any employee of Xxxxxx to work for, render services to,
provide advice to, or supply confidential business information or trade secrets
of Xxxxxx to any third person, firm, corporation or entity; (c) employ, or
otherwise pay for services rendered by, any employee of Xxxxxx in any business
enterprise with which Employee may be associated, connected or affiliated; or
(d) induce or attempt to induce any customer, supplier, licensee, licensor,
reseller or other business relation of Xxxxxx to cease doing business with
Xxxxxx, change how it does business with Xxxxxx, or in any way interfere with
the relationship between any such customer, supplier, licensee, licensor,
reseller or other business relation and Xxxxxx. While Employee is employed by
Xxxxxx, this Section 6.04 will not restrict Employee from performing Employee's
duties as an officer and employee of Xxxxxx.
6.05 Indirect Competition or Solicitation. Employee agrees that, during
the Restricted Period, Employee will not, directly or indirectly, assist,
solicit or encourage any other person in carrying out, directly or indirectly,
any activity that would be prohibited by the provisions of this Section 6 if
such activity were carried out by Employee, either directly or indirectly; and,
in particular, Employee agrees that Employee will not, directly or indirectly,
induce any employee of Xxxxxx to carry out, directly or indirectly, any such
activity.
6.06 Disparaging Remarks. Employee shall refrain from making any
statements, whether written or oral, which are disparaging of Xxxxxx or any of
its subsidiaries, directors, officers, agents, employees, successors, assigns
and controlling persons.
7. Representations of Employee. Employee represents and warrants to
Xxxxxx that: (a) Employee is not bound by a former or current employment
agreement that would adversely affect Employee's ability to perform the duties
of an employee and officer of Xxxxxx pursuant to this Agreement and as the Board
may from time to time determine, (b) Employee will comply with any
nondisclosure, nonsolicitation or other agreements between Employee and any
third party and (c) Employee has the right to work in the United States in
accordance with the requirements set forth in the Immigration and Control Act of
1986.
8. Miscellaneous.
8.01 Governing Law. This Agreement is made under and shall be governed
by and construed in accordance with the laws of the State of Minnesota without
regard to conflicts of laws principles thereof.
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8.02 Entire Agreement. This Agreement does not terminate or amend the
Employee Invention and Non-Disclosure Agreement, which shall remain in effect
pursuant to its terms. This Agreement (including any other agreement
specifically mentioned in this Agreement) contains the entire agreement of the
parties relating to the employment of Employee by Xxxxxx and the other matters
discussed herein and supersedes all prior promises, contracts, agreements and
understandings of any kind (other than any other agreement mentioned herein),
whether express or implied, oral or written, with respect to such subject matter
(including, but not limited to, any promise, contract or understanding, whether
express or implied, oral or written, by and between Xxxxxx and Employee, and the
offer letter dated July 25, 2000 from Xxxxxx to Employee), and the parties
hereto have made no agreements, representations or warranties relating to the
subject matter of this Agreement which are not set forth herein or in any other
agreement mentioned herein.
8.03 Withholding Taxes. Xxxxxx may take such action as it deems
appropriate to insure that all applicable federal, state, city and other
payroll, withholding, income or other taxes ("Taxes") arising from any
compensation, benefits or any other payments made pursuant to this Agreement, or
any other contract, agreement or understanding which relates, in whole or in
part, to Employee's employment with Xxxxxx, are withheld or collected from
Employee. In connection with the foregoing, Employee agrees to notify Xxxxxx
promptly upon entering into any contract, agreement or understanding relating to
Employee's employment with Xxxxxx (other than this Agreement and those
agreements expressly provided for herein) and also to notify Xxxxxx promptly of
any payments or benefits paid or otherwise made available pursuant to any such
agreements.
8.04 Amendments. No amendment or modification of this Agreement shall
be deemed effective unless made in writing and signed by Employee and Xxxxxx,
and approved by the Chief Executive Officer or Board of Directors of Xxxxxx.
8.05 No Waiver. No term or condition of this Agreement shall be deemed
to have been waived, nor shall there be any estoppel to enforce any provisions
of this Agreement, except by a statement in writing signed by the party against
whom enforcement of the waiver or estoppel is sought. Any written waiver shall
not be deemed a continuing waiver unless specifically stated, shall operate only
as to the specific term or condition waived, and shall not constitute a waiver
of such term or condition for the future or as to any act other than as
specifically set forth in the waiver.
8.06 Assignment. This Agreement shall not be assignable, in whole or in
part, by any party without the written consent of the other party, except that
Xxxxxx may, without the consent of Employee, assign its rights and obligations
under this Agreement to any affiliate or to any corporation, firm or other
business entity with or into which Xxxxxx may merge or consolidate, or to which
Xxxxxx may sell or transfer all or substantially all of its assets or applicable
operating division, or of which 50% or more of the equity investment and of the
voting control is owned, directly or indirectly, by, or is under common
ownership with, Xxxxxx. After any such assignment by Xxxxxx, Xxxxxx shall be
discharged from all further liability hereunder and such assignee shall
thereafter be deemed to be Xxxxxx for the purposes of all provisions of this
Agreement including this Section 8.06.
8.07 Injunctive Relief. Employee acknowledges and agrees that the
services to be rendered by Employee hereunder are of a special, unique and
extraordinary character, that it would be difficult to replace such services and
that any violation of Sections 5.05, 6.01, 6.04 or 6.05 hereof or of the
Employee Invention and Non-Disclosure Agreement would be highly injurious to
Xxxxxx and that it would be extremely difficult to compensate Xxxxxx fully for
damages for any such violation. Accordingly, Employee specifically agrees that
Xxxxxx shall be entitled to temporary and permanent injunctive relief to enforce
the provisions of Sections 5.05, 6.01, 6.04 or 6.05 hereof and the Employee
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Invention and Non-Disclosure Agreement, and that such relief may be granted
without the necessity of proving actual damages. This provision with respect to
injunctive relief shall not, however, diminish the right of Xxxxxx to claim and
recover damages, or to seek and obtain any other relief available to it at law
or in equity, in addition to injunctive relief.
8.08 Arbitration. Any dispute arising out of or relating to this
Agreement or the alleged breach of it, or the making of this Agreement,
including claims of fraud in the inducement, or any dispute arising from or
related in any way to Employee's employment, including any statutory or tort
claims, shall be discussed between the disputing parties in a good faith effort
to arrive at a mutual settlement of any such controversy. If such dispute cannot
be resolved, such dispute shall be settled by binding arbitration. Judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The arbitrator shall be a retired state or federal judge
or an attorney who has practiced business or employment litigation for at least
10 years. If the parties cannot agree on an arbitrator within 20 days, either
party may request that the chief judge of the district court for Hennepin
County, Minnesota, select an arbitrator. If the chief judge does not select an
arbitrator within 30 days of such request, either party may request that the
American Arbitration Association (AAA) designate a panel of five proposed
arbitrators meeting the criteria set forth in this Section, and the parties
shall alternate striking members of the panel, with Xxxxxx having the first
strike, until an arbitrator is thereby selected. Arbitration will be conducted
pursuant to the provisions of this Agreement, and the applicable arbitration
rules of the AAA, unless such rules are inconsistent with the provisions of this
Agreement, but, unless an arbitrator is selected through the AAA, without
submission of the dispute to the AAA. Each party shall be permitted reasonable
discovery, including the production of relevant documents by the other party,
exchange of witness lists, and a limited number of depositions, including
depositions of any experts who will testify at the arbitration. The summary
judgment procedure applicable in Hennepin County, Minnesota, District Court
shall be available and apply to any arbitration conducted pursuant to this
Agreement. The arbitrator shall have the authority to award to the prevailing
party any remedy or relief that a court of the State of Minnesota could order or
grant, including costs and attorneys' fees. Unless otherwise agreed by the
parties, the place of any arbitration proceedings shall be Minneapolis,
Minnesota.
8.09 Severability. To the extent any provision of this Agreement shall
be determined to be invalid or unenforceable in any jurisdiction, such provision
shall be deemed to be deleted from this Agreement as to such jurisdiction only,
and the validity and enforceability of the remainder of such provision and of
this Agreement shall be unaffected. In furtherance of and not in limitation of
the foregoing, Employee expressly agrees that should the duration of,
geographical extent of, or business activities covered by, any provision of this
Agreement be in excess of that which is valid or enforceable under applicable
law in a given jurisdiction, then such provision, as to such jurisdiction only,
shall be construed to cover only that duration, extent or activities that may
validly or enforceably be covered. Employee acknowledges the uncertainty of the
law in this respect and expressly stipulates that this Agreement shall be
construed in a manner that renders its provisions valid and enforceable to the
maximum extent (not exceeding its express terms) possible under applicable law
in each applicable jurisdiction.
8.10 Confidentiality. The terms of this Agreement shall remain strictly
confidential between the parties hereto, except to the extent that disclosure of
such terms is required by law, and to the extent that Employee may disclose such
terms to Employee's spouse, and to the extent that either party may
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disclose this Agreement to that party's advisors on a need-to-know basis,
provided that such persons agree to maintain the confidentiality of such
information.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth in the first paragraph.
XXXXXX ASSOCIATES, INC.
By /s/ H. Xxxxxxx Xxxxxx
----------------------------
Name: H. Xxxxxxx Xxxxxx
Title: Chairman
/s/ Xxxxxx Xxxxxxxx
--------------------------------
Xxxxxx Xxxxxxxx
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EXHIBIT A
GENERAL RELEASE
This General Release is made and entered into as of the __________ day
of ________________, by ________________________ ("Employee").
WHEREAS, Xxxxxx Associates, Inc. ("Xxxxxx") and Employee are parties to
an Agreement dated February 15, 2001 (the "Agreement");
WHEREAS, Employee intends to settle any and all claims that Employee
has or may have against Xxxxxx as a result of Employee's employment with Xxxxxx
and the cessation of Employee's employment with Xxxxxx;
WHEREAS, under the terms of the Agreement, which Employee agrees are
fair and reasonable, Employee agreed to enter into this General Release as a
condition precedent to the severance arrangements described in Section 5.02 or
5.03 of the Agreement;
NOW, THEREFORE, in consideration of the provisions and the mutual
covenants herein contained, the parties agree as follows:
1. SEVERANCE BENEFITS.
X. Xxxxxx agrees to provide severance pay of Ten Thousand
Dollars ($10,000.00), out of the severance benefits described
in the Agreement, in consideration of the release set forth in
Paragraph 2(B) below.
X. Xxxxxx agrees to provide all remaining severance benefits
described in the Agreement in consideration of the release set
forth in Paragraph 2(A) below.
2. RELEASE OF CLAIMS.
A. For the consideration expressed in Paragraph 1(B) above,
Employee does hereby fully and completely release and waive
any and all claims, complaints, causes of action, demands,
suits, and damages, of any kind or character, which Employee
has or may have against the Releasees, as hereinafter defined,
arising out of any acts, omissions, conduct, decisions,
behavior, or events occurring up through the date of
Employee's signature on this General Release, including
Employee's employment with Xxxxxx and the cessation of that
employment, with the exception of possible claims under the
Age Discrimination in Employment Act. For purposes of this
General Release, the "Releasees" means collectively Xxxxxx,
its predecessors, successors, assigns, parents, affiliates,
subsidiaries, related companies, officers, directors,
shareholders, agents, servants, auditors, attorneys,
employees, and insurers, and each and all thereof.
Employee understands and accepts that Employee's
release of claims includes any and all possible claims, both
known or unknown, asserted or unasserted, direct or indirect,
including but not limited to claims based upon:
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(i) the value of stock options that have not vested or
are unexercisable pursuant to the express terms of
the applicable stock option agreements, grant notices
or stock option plans;
(ii) the value of stock options previously granted to
Employee and that have vested and are exercisable as
of the date of termination of Employee's employment
with Xxxxxx, but that Employee elects not to exercise
and pay for before the applicable termination date of
the stock options pursuant to the express terms of
the applicable stock option agreements, grant notices
or stock option plans;
(iii) Title VII of the Federal Civil Rights Act of 1964, as
amended;
(iv) the Americans with Disabilities Act; the Equal Pay
Act;
(v) the Fair Labor Standards Act; the Employee Retirement
Income Security Act;
(vi) the Minnesota Human Rights Act; Minn. Stat. Section
181.81;
(vii) the Minneapolis or St. Xxxx Code of Ordinances; or
(viii) any other federal, state or local statute, ordinance
or law.
Employee also understands that Employee is giving up all other
claims, including those grounded in contract or tort theories,
including but not limited to: wrongful discharge; violation of
Minn. Stat. Section 176.82; breach of contract; tortious
interference with contractual relations; promissory estoppel;
breach of the implied covenant of good faith and fair dealing;
breach of express or implied promise; breach of manuals or
other policies; assault; battery; fraud; sexual harassment;
false imprisonment; invasion of privacy; intentional or
negligent misrepresentation; defamation, including libel,
slander, discharge defamation and self-publication defamation;
discharge in violation of public policy; whistleblower;
intentional or negligent infliction of emotional distress; or
any other theory, whether legal or equitable.
Employee further understands that Employee is
releasing, and does hereby release, any claims for damages, by
charge or otherwise, whether brought by Employee or on
Employee's behalf by any other party, governmental or
otherwise, and agrees not to institute any claims for damages
via administrative or legal proceedings against any of the
Releasees. Employee also waives and releases any and all
rights to money damages or other legal relief awarded by any
governmental agency related to any charge or other claim
against any of the Releasees.
B. For the consideration expressed in Paragraph 1(A) above,
Employee does hereby fully and completely release the
Releasees, as above defined, from each and every legal claim
or demand of any kind, that Employee ever had or might now
have arising out of any action, conduct, or decision taking
place during Employee's employment with Xxxxxx, asserted or
unasserted, known or unknown, direct or indirect, arising
under or relating to the Age Discrimination in Employment Act,
as amended.
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C. This Release does not apply to any post-termination claim
that Employee may have for benefits under the provisions of
any employee benefit plan maintained by Xxxxxx.
D. Employee's release of claims shall not apply to any claims
Employee might have to indemnification under Minnesota Statute
Section 302A.521, any other applicable statute or regulation,
or Xxxxxx'x by-laws.
3. RESCISSION. Employee has been informed of Employee's right to
rescind this General Release by written notice to Xxxxxx within fifteen (15)
calendar days after the execution of this General Release. Employee has been
informed and understands that any such rescission must be in writing and
delivered by hand, or sent by mail within the 15-day time period to Xxxxxx'x
General Counsel, Xxxxxx Software, 000 Xx. Xxxxx Xxxxxx, Xx. Xxxx, XX 00000. If
delivered by mail, the rescission must be: (1) postmarked within the applicable
period and (2) sent by certified mail, return receipt requested.
Employee understands that Xxxxxx will have no obligations under the
General Release in the event a notice of rescission by Employee is timely
delivered.
4. ACCEPTANCE PERIOD; ADVICE OF COUNSEL. The terms of this General
Release will be open for acceptance by Employee for a period of 21 days, during
which time Employee may consider whether or not to accept this General Release.
Employee agrees that changes to this General Release, whether material or
immaterial, will not restart this acceptance period. Employee is hereby advised
to seek the advice of an attorney regarding this General Release.
5. BINDING AGREEMENT. This General Release shall be binding upon, and
inure to the benefit of, Employee and Xxxxxx and their respective successors and
permitted assigns.
6. REPRESENTATION. Employee hereby acknowledges and states that
Employee has read this General Release. Employee further represents that this
General Release is written in language which is understandable to Employee, that
Employee fully appreciates the meaning of its terms, and that Employee enters
into this General Release freely and voluntarily.
7. NON-ADMISSION. It is understood and agreed that this General Release
does not constitute an admission by Xxxxxx of any liability, wrongdoing, or
violation of any law. Further, Xxxxxx expressly denies any wrongdoing of any
kind whatsoever in its actions and dealings with Employee.
8. CONFIDENTIALITY. Employee agrees to keep the terms and existence of
this General Release strictly confidential in accordance with the
confidentiality provisions of the Agreement.
9. CONTINUING OBLIGATIONS. Employee acknowledges and agrees to his
continuing obligations under the Agreement.
10. SAVINGS CLAUSE. If any provision of this Release is determined
later to be unenforceable or illegal, other than the provisions contained in
Paragraph 2 above, the remaining provisions shall remain in full force and
effect. If the release contained in Paragraph 2(A) is held to be void or
unenforceable in any respect, this entire General Release shall be voidable at
Xxxxxx'x option. Nothing in this General Release is intended to or shall be
construed as entitling Xxxxxx to abrogate or require tender back of the
severance payment of Paragraph 1(A) relating to the enforcement of Paragraph
2(B).
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11. AMENDMENTS. No amendment or modification of this General Release
shall be deemed effective unless made in writing and signed by Employee and
Xxxxxx, and approved by the Board of Directors of Xxxxxx.
EMPLOYEE
Signature
----------------------
Printed Name
-------------------
Date
---------------------------
XXXXXX ASSOCIATES, INC.
By
-------------------------------------
Its
------------------------------------
Date
-----------------------------------
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