Exhibit 10(l)
SETTLEMENT AGREEMENT AND GENERAL RELEASE
THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE ("Agreement
and Release") is made and entered into between CE Software, Inc., an Iowa
corporation, CE Distributing Inc., an Iowa corporation, CE Software Holdings,
Inc., a Delaware corporation, and the officers, directors, and agents thereof
(collectively "CES") and Xxxxxxxx X. Xxxxxxx ("Xxxxxxx") (CES and Xxxxxxx,
jointly the "Parties").
RECITALS:
WHEREAS, Xxxxxxx and CES desire now to settle fully and finally all matters
between them, relating to Xxxxxxx'x employment with CES
AND WHEREAS, Xxxxxxx has tendered, and CES has accepted, his resignations
effective June 18 1996 as a director, and as President and CEO of CE Software,
Inc., CE Software FSC, Inc. and CE Distributing, Inc.;
NOW, THEREFORE, in consideration of the premises and mutual promises herein
contained, it is agreed as follows:
1. Payment. CES agrees to pay Xxxxxxx the sum of Sixty-eight Thousand
Three Hundred Thirty-six dollars and no cents ($68,336.00), of which Forty-five
Thousand Seven Hundred Fifty dollars and no cents ($45,750.00) represents three
(3) months severance pay and Twenty-two Thousand Five Hundred Eighty-six dollars
and no cents ($22,586.00) represents a cash bonus for taxes which may arise by
reason of the forgiveness of cash advances as referenced in section five (5)
below. The above amounts shall be paid to Xxxxxxx on or before September
30, 1996.
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Exhibit 10(l)
2. Options Xxxxxxx retains all options for shares of stock of CE
Software Holdings, Inc. to which he may be entitled under the terms of the
1990 or the 1992 CE Software Holdings, Inc. Non-Qualified Employee Stock
Option Plans. All options to which Xxxxxxx may be entitled are subject to
paragraph 3(e) of the Amended and Restated Executive Employment Agreement dated
August 12, 1993 ("Employment Agreement").
3. Benefits. Xxxxxxx'x group health insurance will remain in effect
until midnight on August 31, 1996, at which time such insurance coverage will
terminate unless Xxxxxxx determines, at his option and expense, to continue the
coverage under applicable state or federal laws. All employment benefits not
referenced herein, whether direct or indirect, shall cease on August 15, 1996.
4. Loan to Xxxxxxx. Pursuant to the terms of the Employment Agreement
and the Stock Purchase and Buy-Sell Agreement dated August 12, 1993 ("Stock
Purchase Agreement") Xxxxxxx has agreed to purchase One Hundred Twenty-five
Thousand (125,000) shares of restricted Common Stock of CE Software Holdings,
Inc. (the "Loan Shares") for a total purchase price of Four Hundred Twenty-one
Thousand Eight Hundred Seventy-five dollars and no cents ($421,875.00). This
amount has been paid to CE Software Holdings, Inc. in cash of Two Thousand
Five Hundred dollars and no cents ($2,500.00) and a non-interest bearing
promissory note dated July 26, 1994 for Four Hundred Nineteen Thousand Three
Hundred Seventy-five dollars and no cents ($419,375.00) (the "Note"). The Note
remains unpaid in its entirety and CES has elected to repurchase from Xxxxxxx
all of the Loan Shares in accordance with paragraph three
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Exhibit 10(l)
(3) of the Stock Purchase Agreement. The repurchase price shall be Four Hundred
Twenty-one Thousand Eight Hundred Seventy-five dollars and no cents
($421,875.00), which amount shall be paid to Xxxxxxx in cash of Two Thousand
Five Hundred dollars and no cents ($2,500.00) and forgiveness of the Four
Hundred Nineteen Thousand Three Hundred Seventy-five dollars and no cents
($419,375.00) remaining payable under the Note. Any income taxes due from
Xxxxxxx as a result of imputed income arising from the non-interest bearing
nature of the Note shall be the sole responsibility of Xxxxxxx.
5. Advances to Xxxxxxx. As of the date of this Agreement, CES shall
have provided cash advances to Xxxxxxx on December 27, 1995 in the amount of
Twelve Thousand Three Hundred Sixty-one dollars ($12,361); on June 27, 1996 in
the amount of Eleven Thousand Five Hundred Forty-one dollars ($11,541); and
on August 30, 1996 in the amount of Six Thousand Six Hundred Fifty-six dollars
($6,656), for a total amount of Thirty Thousand Five Hundred Fifty-eight dollars
($30,558) (the "Advances"). CES hereby forgives the indebtedness from Xxxxxxx
to CES resulting from the Advances; waives any and all claim or right it may
have to recover from Xxxxxxx the amount, including any interest thereon, of the
Advances; and releases Xxxxxxx from any and all obligation to repay the
Advances.
6. Settlement. All payments, options and benefits referenced in
paragraphs one (1) through three (3) above are tendered in full, final and
complete settlement of any and all of Xxxxxxx'x claims against CES including,
but not limited to, any claims for reinstatement, back pay, accrued vacation,
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compensatory damages, punitive damages, liquidated damages, interest, attorneys'
fees, and expenses and cost which Xxxxxxx or his attorneys may have incurred in
connection with his employment with CES.
7. Voluntary Resignations By his execution of this Agreement and
Release, Xxxxxxx hereby confirms his voluntary resignations. as a director, and
as President and CEO of CE Software, Inc., CE Software FSC, Inc. and CE
Distributing, Inc. effective June 18, 1996. CES, by its execution of this
Agreement and Release, hereby confirms its acceptance of such voluntary
resignations effective on such date. This voluntary resignation does not
include Xxxxxxx'x position as a member of the Board of Directors of CE Software
Holdings, Inc.
8. Non-competition. During the term of the Employment Agreement,
Xxxxxxx has obtained knowledge and familiarity with the operations of CES, the
conduct of its business, its operating and marketing procedures, the identity
and requirements of its customers and proprietary information and trade secrets,
which must be safeguarded. For a period commencing on the date of this
Agreement and continuing for a period of two (2) years thereafter, Xxxxxxx, or
any person or entity controlled by Xxxxxxx, will not directly or indirectly:
(a) own, manage, operate, control, be employed or engaged by, lend to, or
engage in the following, in any manner, directly or indirectly, including in the
capacity of a sole proprietor or a shareholder, officer, employee, agent,
partner or director of any person, firm, corporation or organization, or as a
consultant or otherwise, whether for compensation or otherwise, anywhere within
the United States or in any other country where CES's products are being sold;
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Exhibit 10(l)
any business or entity which designs, develops, manufactures, seany business or
entity which designs, develops, manufactures, sells, repairs,
distributes or otherwise promotes the design, development, manufacture, sale,
repair or distribution of any products or services in substantial and direct
competition with any CES product or CES service that is or has been available or
announced as of the date of this Agreement; provided, however, that the
foregoing shall not be deemed to prohibit Xxxxxxx'x ownership of stock in any
publicly owned corporation so long as such ownership, directly and indirectly,
when aggregated with the direct and indirect ownership of all members of such
Contractor's family, does not exceed five percent (5%) of the total outstanding
stock of such publicly owned corporation, measured by reference to either market
value of voting power.
(b) except as otherwise specifically agreed in writing between Xxxxxxx
and CES, solicit any employee, independent contractor or consultant of CES to
terminate his or her employment with CES, or to enter into employment with any
other person, firm or corporations; or,
(c) induce, persuade or entice any customer or supplier of CES to
terminate its relationship (contractual or otherwise) with CES, or to enter into
any relationship with any other person, firm or corporation engaged in a
business described in clause (a) above; or,
(d) in any way slander, libel or through any other means take any action
which may be detrimental to CES, its products, personnel or operations.
During the above non-competition period, Xxxxxxx shall not approach any
person, corporation or other entity for any such purpose or action described in
this Section or authorize or cooperate with the taking of any such action by any
other person, corporation or other entity.
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Exhibit 10(l)
9. Severance of Employment. Xxxxxxx agrees and recognizes that his
employment relationship with CES has been permanently and irrevocably severed
and that CES has no obligation, contractual or otherwise, to rehire, reemploy,
recall or hire Xxxxxxx in the future. Xxxxxxx remains obligated to furnish all
expense reports and supporting documents requested by CES in the ordinary course
of business.
10. Comprehensive Release. In consideration of the payments set forth
herein, Xxxxxxx hereby irrevocably and unconditionally releases, remisses and
forever discharges CES, and each of CES's directors, officers, agents,
employees, representatives, attorneys and its and their predecessors,
successors, heirs, executors, officers, and assigns, and all persons acting by,
through, under or in concert with any of them (collectively "Releasees"), of and
from any and all claims, actions, causes of actions, suits, debts, charges,
complaints, grievances, liabilities, obligations, promises, agreements,
controversies, damages, and expenses (including attorneys' fees and costs
actually incurred), of any nature whatsoever, in law or in equity, which he ever
had, now has, or he and his heirs, executors and administrators hereinafter may
have against each or any of the Releasees, from the beginning of time to the
date of this Agreement and Release, by reason of any claims against CES arising
from, or related to, Xxxxxxx'x employment with CES or the termination of that
employment; any claim filed pursuant to the federal Civil Rights Acts of 1866
and 1871; any claim alleging CES violated Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000e et seq.; any claim alleging the violation of the federal
Age Discrimination in Employment Act; any claim alleging discrimination in vio-
lation of Iowa Code Chapter 601A; any claim under Iowa Code Chapter 91A; and any
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Exhibit 10(l)
claim alleging breach of contract, wrongful termination, intentional or
negligent infliction of emotional distress, defamation, promissory estoppel or
wrongful interference with contractual or business relations under Iowa common
law, except any action to enforce the terms and conditions of this Agreement
and Release. Xxxxxxx also expressly acknowledges that this Agreement and
Release is intended to include in its effect, without limitation, all claims
which have arisen and of which Xxxxxxx knows or does not know, should have
known, had reason to know or suspects to exist in Xxxxxxx'x favor at the time of
execution hereof (except as otherwise provided in this paragraph), that this
Agreement and Release provides for the extinguishment of any such claim or
claims.
11. Release of Xxxxxxx. CES hereby irrevocably and unconditionally
releases, remisses and forever discharges Xxxxxxx of and from any and all
claims, actions, causes of action, suits, debts, charges, complaints,
grievances, liabilities, obligations, promises, agreements, controversies,
damages, and expenses (including attorneys' fees and costs actually incurred),
of any nature whatsoever, in law or in equity, which it ever had, now has or may
have against Xxxxxxx, from the beginning of time to the date of this Agreement
and Release, by reason of any claims against Xxxxxxx arising from, or related
to, the failure, or alleged failure, to perform any duty or obligation under
the Employment Agreement or the Stock Purchase Agreement.
12. Agreement Not to Initiate Legal Action. The Parties mutually agree,
promise and covenant that neither Party , nor any person, organization or any
other entity acting on such Party's behalf will file, charge, claim, xxx or
cause or permit to be filed, charged or claimed, any action for damages or other
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Exhibit 10(l)
relief (including injunctive, declaratory, monetary or administrative relief)
against the other, the other's directors, administrators, employees, agents and
representatives, involving any matter occurring in the past up to the date of
this Agreement and Release or involving any continuing effects of actions or
practices which concern Xxxxxxx'x employment with CES and arose prior to the
date of this Agreement and Release, and involving and based upon any claims,
demands, causes of action, obligations, damages or liabilities which are
otherwise released pursuant to the terms and conditions of this Agreement and
Release.
13. Voluntary Agreement. Xxxxxxx represents and certifies that he has
carefully read and fully understands all of the provisions and effects of this
Agreement and Release, and has thoroughly discussed all aspects of this
Agreement and Release with his attorney, that Xxxxxxx is voluntarily entering
into this Agreement and Release, and that neither CES nor its directors,
administrators, agents, representatives or attorneys, made any representations
14. Choice of Law. This Agreement and Release is made and entered into
in the State of Iowa, and shall in all respects be interpreted, enforced and
governed by the laws of this State. The language of all parts of this Agreement
and Release shall in all cases be construed as a whole, according to its fair
meaning, and not strictly for or against any of the parties.
15. Severability of Terms. Should any provision of this Agreement and
Release be determined by any court to be illegal or invalid, the validity of the
remaining parts, terms or provisions shall not be affected thereby and said
illegal or invalid part, term, or provision shall be deemed not to be a part of
this Agreement and Release.
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Exhibit 10(l)
16. Integrated Agreement. This Agreement and Release sets forth the
entire agreement between the parties hereto, and supersedes any and all prior
agreements or understanding between the parties hereto pertaining to the subject
matter hereof.
PLEASE READ CAREFULLY. THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE INCLUDES
A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the Xxxxxxx
and CES have executed the foregoing Agreement and Release.
Executed on this 30 day of September, 1996.
XXXXXXXX X. XXXXXXX
/s/ Ford X. Xxxxxxx
__________________________________
CE SOFTWARE, INC. CE SOFTWARE HOLDINGS, INC.
/s/ Xxxxxx X. Lack /s/ Xxxx X. Xxxx
By_________________________________ By__________________________________
CFO/Treasurer Secretary/Treasurer
Title______________________________ Title______________________________
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