AGREEMENT
THIS AGREEMENT, dated as of June 4, 1996 is entered into by and between
LifeRate Systems, Inc., a Minnesota corporation (the "Company"), and Xxxxxxx X.
Xxxxx, an individual presently residing in the State of Maryland (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 (i) enter into a
consulting arrangement and (ii) 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 prior employment and
consulting relationship and the termination of such relationships.
In consideration of the foregoing and the mutual agreements set forth
below, the parties hereto agree as follows:
1. In consideration for the Release by the Company provided in Section
2(d) and the other terms and conditions hereof, the Former Executive agrees to
the following:
(a) He will execute contemporaneously herewith the Release in
the form attached hereto as Exhibit A, the terms of which are incorporated
herein by reference.
(b) He will execute contemporaneously herewith the Consulting
Agreement in the form attached hereto as Exhibit B, the terms of which are
incorporated herein by reference.
2. In consideration for the Release by the Former Executive provided in
Section 1 and the other terms and conditions hereof, the Company agrees to the
following:
(a) The Company will use its reasonable efforts to cause a
Registration Statement on Form S-3 to be filed with the Securities and Exchange
Commission which includes 17,599 shares of Common Stock of the Company owned by
the Former Executive.
(b) The Company will execute the Consulting Agreement in the
form attached hereto as Exhibit B ("Consulting Agreement"), the terms of which
are incorporated herein by reference.
(c) The Company will execute the Non-Statutory Stock Option
Agreement in the form attached hereto as Exhibit C ("Option Agreement"), the
terms of which are incorporated herein by reference. The Company also confirms
the fact that Consultant holds an option to purchase 9,667 shares of Common
Stock of the Company, which option may be exercised at any time prior to June 5,
2005 at the exercise price of $5.875 per share.
(d) The Company will execute the Release in the form attached
hereto as Exhibit D (together with the Release referred to in Section 1(a), the
"Releases"), the terms of which are incorporated herein by reference.
3. 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 to anyone except his immediate family,
tax advisers, lawyers or accountants or as may otherwise be required by law or
by this Agreement. The Company agrees it will not, at any time, disparage,
demean or criticize, or do anything to cause injury to the Former Executive.
4. 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 matters and agrees to make himself available as may reasonably
be necessary in connection with such matters, including, without limitation,
litigation matters involving Xxxxx Xxxxxxx and/or Clinical Sales and Services,
Inc. ("CSSI"). The Company will make a good faith effort to ensure that this
cooperation and assistance will not unreasonably interfere with the Former
Executive's employment or other business activities.
5. Without in any way limiting the scope of the Release referred to in
Section 1(a), the Former Executive agrees not to assert as an employee, officer,
director, or shareholder of CSSI or in any other capacity, any claims or causes
of action against the Company, or any of its directors, officers or employees,
nor to cooperate or voluntarily assist other parties in the assertion of any
such claims or causes of action, for or in respect of any matters, actions or
relationships between the Company and CSSI, including, without limitation, in
respect of the Sales and Marketing Services Agreement dated as of September 18,
1995. This provision does not preclude the Former Executive from responding to a
subpoena or other legal process.
6. 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 other than as provided
herein.
7. 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.
8. After executing this Agreement, the Former Executive understands
that he may rescind this Agreement by delivering written notice of such
rescission ("Notice of Rescission") within 15 days of the date of such execution
by certified mail, return receipt requested, to LifeRate Systems, Inc., 0000
Xxxxx Xxxxxxxxx, Xxxxx, Xxxxxxxxx 00000; Attn: Chief Executive Officer. The
Former Executive understands that in the event he exercises this right of
rescission, then this Agreement, the Consulting Agreement, the Option Agreement
and the Releases shall all be simultaneously deemed to be rescinded and rendered
null and void in all respects upon receipt by the Company of the Notice of
Rescission.
9. This Agreement does not constitute an admission that the Company
violated any statute or principle of common law or engaged in any wrongdoing.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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 4, 1996 By: _____________________________
Title: __________________________
Dated: June 4, 1996 _________________________________
Xxxxxxx X. Xxxxx
Address: ________________________
________________________
________________________
