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EXHIBIT 10.44
RESIGNATION AGREEMENT
This Agreement is made this 26th day of February, 1997, by and between The Sled
Dogs Company, a Colorado corporation (the "Company"), and Xxxx X. Xxxxxxx
("Xxxxxxx").
WITNESSETH
WHEREAS, Xxxxxxx is serving as the Chief Operating Officer of the Company
and as a Director of the Company; and
WHEREAS, Xxxxxxx has decided to resign as an Officer and Director of the
Company; and
WHEREAS, the Company and Xxxxxxx desire to resolve any possible or
potential issues in dispute between them in connection with Xxxxxxx'x
resignation; and
WHEREAS, the Company and Xxxxxxx desire to set forth their agreement with
respect to certain matters in connection with Xxxxxxx'x resignation;
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants contained in this Agreement, the Company and Xxxxxxx hereby agree
as follows:
1. Resignation. Effective on the opening of business on the date hereof,
(a) Xxxxxxx hereby resigns from her positions as Chief Operating Officer and
Director, and all other positions which she may hold, in the Company, and (b)
that certain Employment Agreement, dated January 1, 1994, by and between
Xxxxxxx and the Company, as amended on October 31, 1995 (the "Employment
Agreement"), shall be null and void and of no further force and effect. In
consideration of the benefits provided hereunder, and (c) Xxxxxxx hereby
unconditionally and irrevocably waives any rights to any compensation under the
Employment Agreement, including, without limitation, any payments upon
termination of employment, and (d) the Company hereby unconditionally and
irrevocably waives its rights to enforce any provisions of the Employment
Agreement, including, without limitation, the restrictions on competition.
2. Options. Subject to Section 16 hereof, effective on the date hereof
the Company shall reprice all of the stock options currently granted to
Xxxxxxx, which the parties agree is 485,000, at an exercise price of $.50 per
share, and will, upon delivery to the Company of option certificates
representing the said 485,000 options, reissue new certificates to Xxxxxxx,
representing such new options, which shall be fully vested and exercisable on
the sixteenth day after the date hereof, for a term of five years from the date
hereof.
3. Vacations and Benefits. The Company shall pay Xxxxxxx for three weeks
of accumulated vacation. The Company will offer Xxxxxxx the option of
continuing her medical benefits, as required by the Consolidated Omnibus Budget
Reconciliation Act of 1986, as amended, at Xxxxxxx'x expense; provided,
however, that the foregoing obligation shall terminate on the earlier of (a)
the date on which Xxxxxxx accepts full-time employment, or (b) two years
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from the date hereof. The Company shall also reimburse Xxxxxxx for any
legitimate business expenses incurred by her prior to the date hereof, upon
presentation of appropriate documentation therefor. The parties acknowledge
that such expenses do not exceed $500.00.
4. Restrictive Covenants.
(a) For a period of twelve months from the date hereof, Xxxxxxx
shall not engage, either directly or indirectly, as a proprietor,
partner, employee, officer, director, consultant, shareholder, joint
venturer, member, governor, in any business or in any activities in
competition with the business of the Company. A business or activity
shall be deemed to be "in competition with the business of the Company"
only if it directly relates to the sport of snow skating. The
restriction contained in this subsection shall not prohibit Xxxxxxx from
becoming involved with a sporting goods or other enterprise which enters
the snow skate business, so long as none of Xxxxxxx'x activities for such
enterprise are related thereto.
(b) For a period of twelve months from the date hereof, Xxxxxxx
shall not solicit any person who is then employed by or otherwise engaged
to perform services for the Company, or is a customer or supplier of the
Company, to terminate such person's relationship with the Company, or
interfere with the Company's relationship with any such person.
(c) Xxxxxxx shall not communicate to any person, firm or entity, or
use for her own benefit, any confidential information which she may have
acquired with respect to the business of the Company. "Confidential
information" means any information not generally known and proprietary to
the Company and includes, without limiting the generality of the
foregoing, trade secrets, inventions and information pertaining to
research, development, manufacturing, manufacturing methods,
manufacturing processes, techniques, engineering, purchasing, marketing,
selling, accounting, customers, prices and licensing. Such confidential
information may be contained in the Company's development plans, business
plans, proposed new products, product designs, marketing plans or
proposals, customer lists, the particular needs and requirements of
customers and the identify of customers and potential customers. Such
information shall be treated as confidential information irrespective of
its source.
(d) Xxxxxxx shall not remove any files, documents or any other
property of the Company (regardless of the medium) relating to the
business of the Company or constituting confidential information from the
Company's place of business and shall return to the Company all such
items which are in her personal possession or under her control. Xxxxxxx
hereby represents that she either has not removed any such Company
property or has returned any of the same.
5. Indemnification. The Company shall maintain a policy of officer and
director liability insurance, covering Xxxxxxx as an insured, for so long as it
maintains such insurance for
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its then-existing officers and directors and such policy shall cover Xxxxxxx to
the same extent as existing officers and directors are covered.
6. Acknowledgments.
(a) Xxxxxxx acknowledges that (i) she has been informed of her right
to consider this Agreement for twenty-one (21) days before signing this
Agreement, insofar as it extends to potential claims under the Federal
Age Discrimination in Employment Act (29 U.S.C. Section 621 et. seq.) and
she hereby waives such right; and (ii) she has been informed of her right
to rescind or revoke this Agreement under the Federal Age Discrimination
in Employment Act within seven (7) calendar days following execution of
this Agreement.
(b) Xxxxxxx acknowledges that she has been informed of her right to
rescind this Agreement, insofar as it extends to potential claims under
the Minnesota Human Rights Act, Minnesota Statutes Chapter 363, which
prohibits discrimination in employment on the basis of race, sex, age,
national origin, disability, marital status, status with regard to public
assistance and status for having served on a local or state commission,
within fifteen (15) calendar days following the execution of this
Agreement. This fifteen day time period encompasses the seven (7) day
rescission or revocation period referenced above under the Federal Age
Discrimination in Employment Act. Xxxxxxx understands that for any
rescission to be effective she must comply with the terms of the Notice
which appears after the signature page of this Agreement.
7. Release by Xxxxxxx. In consideration of the faithful performance of
this Agreement by the Company, Xxxxxxx hereby irrevocably and unconditionally
releases, acquits and forever discharges the Company, its officers, directors,
agents, employees, shareholders, partners, divisions, subsidiaries, successors
and assigns, individually and in their representative capacities, and any
entity affiliated with any of the foregoing, from any and all past or present,
known or unknown claims, demands, obligations, actions, damages, expenses, and
compensation of any nature and from whatever source, whether based in tort,
contract, or any other theory of recovery, and whether for compensatory or
punitive or other damages, which Xxxxxxx now has or which may hereafter accrue
on account of or in any way growing out the employment relationship among the
parties or her service as a director, the termination of employment, and the
statements or actions of the Company, including, without limitation, claims
arising under the Minnesota Human Rights Act, Minnesota Statutes Section 363
et. seq. (or all applicable provisions in the Minnesota Human Rights Act),
claims arising under the Federal Age Discrimination in Employment Act, claims
of violation of civil rights, discrimination, promissory estoppel, wrongful
termination, or contract rights; provided, however, that this release shall not
apply to (a) the executory provisions of this Agreement; (b) a third party
action (including a shareholder or shareholder directive suit) relating to the
operations, management or activities of the Company, in which Xxxxxxx in good
faith believes that the Company or its other officers and directors may be
liable, in which case, Xxxxxxx may proceed with an action which includes
joinder of such persons, making such persons third party defendants, seeking
indemnity or contribution from such persons, or seeking an apportionment of
liability between or among herself
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and such persons; and (c) any claims by Xxxxxxx to indemnification arising out
of her capacity as an officer, director, employee or agent of the Company
pursuant to Minnesota Statutes, Section 302A.521.
8. Release by the Company. In consideration of the faithful performance
of this Agreement by Xxxxxxx, the Company hereby irrevocably and
unconditionally releases, acquits and forever discharges Xxxxxxx, and her heirs
and personal representatives from any and all past or present, known or unknown
claims, demands, obligations, actions, damages, expenses, and compensation of
any nature and from whatever source, whether based in tort, contract, or any
other theory of recovery, and whether for compensatory or punitive or other
damages, which the Company now has or which may hereafter accrue on account of
or in any way growing out the employment relationship among the parties or her
service as a director, the termination of employment, and her statements or
actions; provided, however, that this release shall not apply to (a) the
executory provisions of this Agreement; and (b) a third party action (including
a shareholder or shareholder derivative suit) relating to the operations,
management or activities of Xxxxxxx, in which the Company or its officers and
directors in good faith believe that Xxxxxxx may be liable, in which case, the
Company or such persons may proceed with an action which includes joinder of
Xxxxxxx, making Xxxxxxx a third party defendant, seeking indemnity or
contribution from Xxxxxxx, or seeking an apportionment of liability between or
among such persons and Xxxxxxx.
9. Press Release. The Company and Xxxxxxx have agreed on the wording of a
press release regarding Xxxxxxx'x resignation and on the statement the Company
may make to prospective employers of Xxxxxxx. Such press release and statement
are attached hereto as Exhibit 1 and the parties shall make no communication or
press release, nor statement to prospective employers, other than as set forth
as Exhibit 1.
10. Future Statements. Xxxxxxx and the Company agree that they will not
engage in speech or actions which are detrimental to the name and/or reputation
of each other, nor make any disparaging comments concerning each other,
including the products, plans and operations of the Company and the officers,
directors, agents, employees, and shareholders of the Company, except that this
provision shall have no effect in the event a party hereto is made the subject
of any action commenced by the other party, its officers, directors, agents,
employees or shareholders in the future.
11. Confidentiality. Xxxxxxx and the Company agree that the terms and
conditions of, and the consideration under, this Agreement shall be
confidential and shall not be disclosed to third parties, subject to the
following:
a. A party's right to discuss this Agreement with her or its
attorney, tax adviser, accountant and spouse;
b. A party's right to make disclosure pursuant to any lawfully
issued court order and as may be required by state or federal law or
regulation, in which case the disclosing party shall notify the other
promptly of such disclosure; and
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c. A party's right to make disclosure in the event it is necessary
to commence any action to force compliance with the terms of this
Agreement or in the event a party is made a defendant in any action
commenced by the other party, its directors, officers, employees, agents,
or shareholders.
12. Referrals of Mail and Telephone Calls. The Company shall promptly
forward all mail received by the Company and addressed to Xxxxxxx to Xxxxxxx'x
home address. The Company shall immediately refer all telephone calls for
Xxxxxxx that do not relate to the Company's business to Xxxxxxx'x home
telephone number or to such other number as Xxxxxxx may reasonably request.
13. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to their claims against each other, Xxxxxxx'x
employment relationship with the Company and her resignation from the Company
and the parties agree that there were no inducements or representations leading
to the execution hereof, except as herein stated. This Agreement may not be
modified or amended except in a writing signed by Xxxxxxx and the Company.
14. Minnesota Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota. In accordance with
Minnesota Statues, Section 363.031, subd. 2, Xxxxxxx has been provided the
notice appended to this Agreement on the last page.
15. Effect. This Agreement shall be binding upon and inure to the benefit
of each party and upon her or its heirs, administrators, representatives,
executors, successors and assigns.
16. Rescission. In the event this Agreement is rescinded pursuant to
Minnesota Statutes, Section 363.031, subd. 2, as provided in the notice under
this statute, this Agreement shall immediately terminate and shall be null and
void and of no further force or effect. Without limiting the generality of the
foregoing, in the event this Agreement is rescinded, the repricing of options
as provided for in Section 2 hereof shall be null and void and said options
shall revert to their original exercise prices.
17. Remedies. The parties acknowledge that any breach of the covenants
and agreements set forth herein would lead to irreparable injury which could
not be satisfied solely by monetary damages. Accordingly, the parties agree
that each party hereto may, in addition to pursuing any and all remedies
provided by law, obtain equitable remedies, including the remedies of
injunction and specific performance, to restrain or prevent any breach or
threatened breach of the provisions of this Agreement. The parties further
agree that no party seeking such remedy shall be required to post any bond.
18. Consulting. Upon the request of the Company, Xxxxxxx shall provide
consulting services to the Company, not to exceed ten hours per week for up to
eight weeks, at hourly rates to be agreed upon by the Company and Xxxxxxx.
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20. Severability. If any provision of this Agreement is found to be
unenforceable, this shall not affect the other provisions, which are severable.
Without limiting the generality of the foregoing, if any court of competent
jurisdiction holds that any restriction in Sections 4(a) - (c) exceeds the
limit of restrictions that are enforceable under applicable law, then the
restriction will nevertheless apply to the maximum extent that is enforceable
under applicable law.
21. Representation. Xxxxxxx acknowledges that she has been represented by
her own attorney in this matter and that she has had a full opportunity to
consider this Agreement and the release contained herein.
22. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Resignation Agreement to
be executed on the day and year first above written.
THE SLED DOGS COMPANY
By ________________________________
Xxxx Xxxxxxxxx
Chairman of the Board
___________________________________
Xxxx X. Xxxxxxx
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NOTICE UNDER MINNESOTA STATUTES. SECTION 363.031. SUBD. 2.
You may rescind this Settlement Agreement for any reason within fifteen
(15) calendar days after you have signed it. To be effective, the rescission
must be in writing and hand delivered or mailed to The Sled Dogs Company, 000
Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000, Attention: Xxxx
Xxxxxxxxx, within the fifteen (15) day period. If mailed, the rescission must
be sent by certified mail, return receipt requested.
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EXHIBIT 1
PRESS RELEASE
THE SLED DOGS COMPANY ANNOUNCES MANAGEMENT CHANGES
MINNEAPOLIS, Feb. 00, 1997--The Sled Dogs Company (Nasdaq: SNOW) announced
today that Xxxx Xxxxxx, the Company's President and Chief Executive Officer,
and Xxxx Xxxxxxx, the Company's Chief Operating Officer, have both resigned as
officers and members of the Company's Board of Directors, effective today, to
pursue other interests. Xxxx Xxxxxxxxx, the Company's Chairman, stated: "Xx.
Xxxxxx and Xx. Xxxxxxx have laid the foundation for snow skating to become the
next big winter sport. Our record breaking sales this season are a tribute to
their accomplishments here. The main task now is to raise additional financing
to ensure that the investment in that foundation delivers an attractive return.
Xxxxx Xxxxxx, Vice President of Sales and Xxxx Xxxx, Director of Marketing,
have taken charge of the sales and marketing functions."
The Sled Dogs Company markets, manufactures and distributes Sled Dogs
brand show skates and related accessories and is pioneering snow skating as a
new winter sport. The Sled Dogs Company has developed the world's first
patented snow skate that integrates a comfortable, supportive boot and a unique
replaceable base allowing the skate to glide over the snow. Snow skating is
currently enjoyed at approximately 75 percent of all ski/snow areas across the
country. In addition to its U.S. roots, Sled Dogs has distribution in Canada,
Japan, Korea and Norway.
[FORWARD LOOKING STATEMENTS PARAGRAPH.]
STATEMENTS TO PROSPECTIVE EMPLOYERS:
Xxxx Xxxxxxx was employed by The Sled Dogs Company in the position of Vice
President, Marketing and Chief Operating Officer from January 1, 1994, through
February 28, 1997. The Company issued a press release on February 28, 1997,
which said [QUOTE FROM PRESS RELEASE].
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