BROADVIEW INSTITUTE
Exhibit 99.1
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BROADVIEW INSTITUTE |
December 29, 2008
Via Messenger
Xxxxxxxx X. Xxxxxx
0000 Xxxxx Xxxxxxx 000, Xxxxx 000
Xx. Xxxxx Xxxx, XX 00000
0000 Xxxxx Xxxxxxx 000, Xxxxx 000
Xx. Xxxxx Xxxx, XX 00000
Dear Xxxxx:
As you know, your employment with Broadview Institute, Inc. (“Broadview Institute”) will end
effective at the close of business on December 29, 2008, (the “Effective Date”) as a result of
your resignation. The purpose of this Separation Agreement and Release letter (the “Agreement”)
is to set forth the agreement of the parties with regard to your separation. While we are
providing this Agreement to you now for your review, you may not sign it until the Effective
Date.
By your signature below, you agree to the following terms and conditions:
1. End of Employment. Your employment with Broadview Institute ends effective at the
close of business on the Effective Date, as a result of your resignation. You hereby terminate
employment as of such effective time and you also hereby, without the need for any other notice or
document, resign as of such effective time from all of your positions with Broadview Institute,
including your positions as Chief Executive Officer and as a member of Broadview Institute’s Board
of Directors. You agree that you have received all compensation owed to you by virtue of your
employment with Broadview Institute or separation thereof. You further agree that you have been
reimbursed in full by Broadview Institute for all business expenses incurred by you for which you
are entitled to reimbursement, that you have no outstanding expense reimbursement requests and
that you are not incurring any expenses for which you are entitled to reimbursement from Broadview
Institute. The COBRA period for continuation of your insurance coverage under Broadview
Institute’s group plans at your expense will begin on the day immediately following the Effective
Date. Information regarding your right to elect COBRA coverage will be sent to you via separate
letter.
You are not eligible for any other payments or benefits by virtue of your employment with
Broadview Institute or separation thereof except for those expressly described in this Agreement.
You will not receive the separation consideration described in Section 2 of this Agreement if you
(i) do not sign this Agreement and return it to Broadview Institute by the stated due date, (ii)
rescind
this Agreement after signing it, or (iii) violate any of the terms and conditions set forth in
this Agreement.
0000
XXXXX XXXXX • XXXXXXXX, XX 00000 •
Ph.
651.332.8000 • XXX.XXXXXXXXXXXXXXXXXX.XXX
2. Separation Consideration. Specifically in consideration of your signing and not
rescinding this Agreement and subject to the limitations, obligations, and other provisions
contained in this Agreement, Broadview Institute agrees: (a) immediately prior to your termination,
to accelerate the vesting of 50,000 shares of Broadview Institute restricted common stock granted
to you pursuant to the Restricted Stock Agreement between Broadview Institute and you dated as of
February 4, 2008 (the “Restricted Stock Agreement”), which shares are currently in the possession
of Broadview Institute and shall remain in its possession to facilitate the delivery to Broadview
Institute of the shares purchased in accordance with clause (b) of this Section 2; and (b) to
purchase from you, at a price of $1.00 per share (the “Purchase Price”), 100,000 shares of
Broadview Institute common stock (such 100,000 shares referred to hereinafter as the “Vested Stock”
and consisting of the 50,000 restricted shares vested pursuant to the preceding clause and the
50,000 shares granted to you pursuant to the Restricted Stock Agreement that previously vested on
February 4, 2008). You acknowledge that, as specified in the Restricted Stock Agreement, as a
result of your termination of employment, as of the Effective Date all of your right to and
interest in the remaining 150,000 unvested shares of restricted stock granted to you pursuant to
the Restricted Stock Agreement have automatically been forfeited to Broadview Institute. You
further agree to deliver the stock certificate(s) representing the 50,000 shares of Vested Stock
currently held by you, as well as a properly executed assignment separate from certificate for all
100,000 shares of Vested Stock, medallion guaranteed by an eligible financial institution, to
Broadview Institute at the time of or prior to the payment of the Purchase Price, and acknowledge
that Broadview Institute shall have no obligation to pay the Purchase Price until and unless such
certificate(s) and such assignment separate from certificate are delivered.
Please note that if you exercise your right of rescission as set forth in Section 6 below,
Broadview Institute will have no obligation to perform under this Section 2 and you will be
obligated to return to Broadview Institute any payment(s) or other consideration already received
in connection with this Section 2.
3. Release of Claims. Specifically in consideration of the separation consideration
described in Section 2 and the release of claims described in Section 4 below, to which you would
not otherwise be entitled, by signing this Agreement you, for yourself and anyone who has or
obtains legal rights or claims through you, agree to the following:
a. You hereby do release and forever discharge the “Released Parties” (as defined in Section
3.e. below) of and from any and all manner of claims, demands, actions, causes of action,
administrative claims, liability, damages, claims for punitive or liquidated damages, claims for
attorney’s fees, costs and disbursements, individual or class action claims, or demands of any
kind whatsoever, you have or might have against them or any of them, whether known or unknown, in
law or equity, contract or tort, arising out of or in connection with your employment
with Broadview Institute, or the termination of that employment, or otherwise, and however
originating or existing, from the beginning of time through the date of your signing this
Agreement.
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b. This release includes, without limiting the generality of the foregoing, any claims you may
have for, wages, bonuses, commissions, penalties, deferred compensation, vacation, sick, and/or PTO
pay, separation pay and/or benefits; tortious conduct, defamation, invasion of privacy, negligence,
emotional distress; breach of implied or express contract, estoppel; wrongful discharge (based on
contract, common law, or statute, including any federal, state or local statute or ordinance
prohibiting discrimination or retaliation in employment); violation of any of the following: the
United States Constitution or the Minnesota Constitution, the Age Discrimination in Employment Act,
29 U.S.C. § 621 et seq., the Minnesota Human
Rights Act, Minn. Stat. § 363A.01 et seq., Title VII
of the Civil Rights Act, 42 U.S.C. § 2000e et seq., the Americans with Xxxxxxxxxxxx Xxx, 00 X.X.X. §
00000 et seq., the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., the
Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., the National Labor Relations Act, 29 U.S.C.
§ 151 et seq., the Xxxxxxxx-Xxxxx Act, 15 U.S.C.
§ 7201 et seq., any claim arising under Minn.
Stat. Chapters 177 or 181; any claim for retaliation, including any claim for retaliation under
Minn. Stat. Chapter 176; and any claim for discrimination or harassment based on sex, race, color,
creed, religion, age, national origin, marital status, sexual orientation, disability, status with
regard to public assistance, veteran or military status, or any other legally-protected class. You
hereby waive any and all relief not provided for in this Agreement. You understand and agree that,
by signing this Agreement, you waive and release any past, present, or future claim to employment
with Broadview Institute.
c. If you file, or have filed on your behalf, a charge, complaint, or action, you agree that
the payment described above in Section 2 is in complete satisfaction of any and all claims in
connection with such charge, complaint, or action and you waive, and agree not to take, any award
of money or other damages from such charge, complaint, or action.
d. You are not, by signing this Agreement, releasing or waiving (1) any vested interest you
may have in any 401(k) or profit sharing plan by virtue of your employment with Broadview
Institute, (2) any rights or claims that may arise after the Agreement is signed, (3) the
post-employment payment specifically promised to you under Section 2 of this Agreement, (4) the
right to institute legal action for the purpose of enforcing the provisions of this Agreement, (5)
any rights you have under workers compensation laws, (6) any rights you have under state
unemployment compensation benefits laws, or (7) the right to file a charge of discrimination with a
governmental agency, although, as noted above, you agree that you will not be able to recover any
award of money or damages if you file such a charge or have a charge filed on your behalf.
e. The “Released Parties,” as used in this Agreement, shall mean Broadview Institute, Inc. and
its parent, subsidiaries, divisions, affiliated entities, insurers, and its and their present and
former officers, directors, shareholders, trustees, employees, agents, attorneys, representatives
and consultants, and the successors and assigns of each, whether in their individual
or official capacities, and the current and former trustees or administrators of any pension or
other benefit plan applicable to the employees or former employees of Broadview Institute, in
their official and individual capacities.
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4. Broadview Institute’s Release of Claims. Specifically in consideration of your
release of claims as described in Section 3 of this Agreement, to which Broadview Institute would
not otherwise be entitled, Broadview Institute hereby does release, agree not to xxx, and forever
discharge you of and from any and all manner of claims, demands, actions, causes of action,
administrative claims, liability, damages, claims for punitive or liquidated damages, claims for
attorneys’ fees, costs and disbursements, individual or class action claims, or demands of any kind
whatsoever, Broadview Institute has or might have against you as of the date it signs this
Agreement, in law or equity, contract or tort, arising within the scope of your employment with
Broadview Institute, from the beginning of time through the date of Broadview Institute’s signing
this Agreement. Notwithstanding the foregoing, Broadview Institute is not, by signing this
Agreement, releasing or waiving (1) any rights or claims that may arise after it signs this
Agreement or (2) the right to institute legal action for the purpose of enforcing the provisions of
this Agreement.
5. Notice of Right to Consult Attorney and Twenty-One (21) Calendar Day Consideration
Period. By signing this Agreement, you acknowledge and agree that Broadview Institute has
informed you by this Agreement that (1) you have the right to consult with an attorney of your
choice prior to signing this Agreement, and (2) you are entitled to twenty-one (21) calendar days
from the receipt of this Agreement to consider whether the terms are acceptable to you. You have
the right, if you choose, to sign this Agreement prior to the expiration of the twenty-one (21) day
period.
6. Notification of Rights under the Minnesota Hitman Rights Act (Minn, Stat. Chapter 363A)
and the Federal Age Discrimination in Employment Act (29 U.S.C. § 621 et seq.). You are hereby
notified of your right to rescind the release of claims contained in Section 3 with regard to
claims arising under the Minnesota Human Rights Act, Minnesota Statutes Chapter 363A, within
fifteen (15) calendar days of your signing this Agreement, and with regard to your rights arising
under the federal Age Discrimination in Employment Act, 29 U.S.C.
§ 621 et seq., within seven (7)
calendar days of your signing this Agreement. The two rescission periods shall run concurrently. In
order to be effective, the rescission must (a) be in writing; (b) delivered to Xxxxxxx X.
XxXxxxxx, Chief Financial Officer, Broadview Institute, 0000 Xxxxx Xxxxx, Xxxxxxxx XX 00000 by hand
or mail within the required period; and (c) if delivered by mail, the rescission must be postmarked
within the required period, properly addressed to Xxxxxxx X. XxXxxxxx, as set forth above, and sent
by certified mail, return receipt requested. You understand and agree that if you rescind any part
of this Agreement in accordance with this Section 6, Broadview Institute will have no obligation to
provide you the consideration described in Section 2 of this Agreement and you will be obligated to
return to Broadview Institute any payment(s) or other consideration already received in connection
with Section 2 of this Agreement.
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7. Return of Property. You acknowledge and agree that all documents and materials
relating to the business of, or the services provided by, Broadview Institute are the sole property
of Broadview Institute. You agree and represent that you have returned to Broadview Institute all
of its property, including but not limited to, all student and investor records and other documents
and materials, whether on computer disc, hard drive or other form, and all copies thereof, within
your possession or control, which in any manner relate to the business of, or the duties and
services you performed on behalf of Broadview Institute.
8. Confidential and Proprietary Information. By signing this Agreement, you
acknowledge and agree that you have had access in your employment with Broadview Institute to
confidential and proprietary information of Broadview Institute and further acknowledge and agree
that the release or disclosure of any confidential or proprietary information of Broadview
Institute will cause Broadview Institute irreparable injury. You acknowledge that you have not used
or disclosed (other than for Broadview Institute’s sole benefit during your employment with
Broadview Institute), and agree that you will not at any time use or disclose, to any other entity
or person, directly or indirectly, any confidential or proprietary information of Broadview
Institute. For purposes of this Agreement, the term “confidential or proprietary information” shall
include, but not be limited to, business plans, financial affairs, student and investor lists and
information pertaining to students and investors; and information about the personal or business
affairs of Broadview Institute’s students and investors, vendors, or employees.
9. Non-Disparagement. You promise and agree not to disparage the Released Parties, its
employees, products or services.
10. Remedies. If you breach any term of this Agreement, Broadview Institute shall be
entitled to its available legal and equitable remedies, including but not limited to suspending and
recovering any and all payments and benefits made or to be made under this Agreement and payment by
you of its attorneys’ fees and costs. If Broadview Institute seeks and/or obtains relief from an
alleged breach of this Agreement, all of the provisions of this Agreement shall remain in full
force and effect.
11. Non-Admission. It is expressly understood that this Agreement does not constitute,
nor shall it be construed as, an admission by Broadview Institute or you of any liability or
unlawful conduct whatsoever. Broadview Institute and you specifically deny any liability or
unlawful conduct.
12. Successors and Assigns. This Agreement is personal to you and may not be assigned
by you without the written agreement of Broadview Institute. The rights and obligations of this
Agreement shall inure to the successors and assigns of Broadview Institute.
13. Enforceability. If a court finds any term of this Agreement to be invalid,
unenforceable, or void, the parties agree that the court shall modify such term to make it
enforceable to the maximum extent possible. If the term cannot be modified, the parties agree that the term
shall be severed and all other terms of this Agreement shall remain in effect.
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14. Law Governing. This Agreement shall be governed and construed in accordance with
the laws of the State of Minnesota.
15. Full Agreement. This Agreement contains the full agreement between you and
Broadview Institute as to its subject matter and may not be modified, altered, or changed in any
way except by written agreement signed by both parties. The parties agree that this Agreement
supersedes and terminates any and all other written and oral agreements and understandings between
the parties as to its subject matter; provided, however, that the provisions of the Restricted
Stock Agreement intended to survive the termination of such agreement shall remain effective and in
force.
16. Acknowledgment of Reading and Understanding. By signing this Agreement, you
acknowledge that you have read this Agreement, including the release of claims contained in Section
3, and understand that the release of claims is a full and final release of all claims you may have
against Broadview Institute and the other entities and individuals covered by the release. By
signing, you also acknowledge and agree that you have entered into this Agreement knowingly and
voluntarily.
The offer contained in this Agreement will expire at 5:00 p.m. on the 22nd calendar
day following your receipt of the Agreement. After you have reviewed this Agreement and obtained
whatever advice and counsel you consider appropriate regarding it, please evidence your agreement
to the provisions set forth in this Agreement by dating and signing the Agreement. Please then
return an original signed Agreement to me no later than 5:00 p.m. on
the 22nd calendar day
following your receipt of the Agreement. Please keep a copy for your records.
Xxxxx, we thank you for the work you have performed on behalf of Broadview Institute. We wish
you all the best both professionally and personally.
Sincerely, |
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/s/
Xxxxxxx X. XxXxxxxx
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Chief Financial Officer |
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ACKNOWLEDGMENT
AND SIGNATURE
By signing below, I, Xxxxxxxx X. Xxxxxx, acknowledge and agree to the following:
| • | I have had
adequate time to consider whether to sign this Separation Agreement and Release.
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| • | I have read this Separation Agreement and Release carefully. |
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| • | I understand and agree to all of the terms of the Separation Agreement and Release. |
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| • | I am knowingly and voluntarily releasing my claims against Broadview Institute and the other
persons and entities defined as the Released Parties. |
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| • | I have not, in signing this Agreement, relied upon any statements or explanations made by
Broadview Institute except as for those specifically set forth in this Separation Agreement and
Release. |
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| • | I intend this Separation Agreement and Release to be legally binding. |
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| • | I am signing this Separation
Agreement and Release on or after my last day of employment with Broadview Institute. |
Accepted
this 29th day of December, 2008.
/s/ Xxxxxxxx X. Xxxxxx
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