EXHIBIT 10.2
AGREEMENT AND GENERAL RELEASE
This Agreement and General Release (the "Agreement") is made and entered
into, at Minneapolis, Minnesota, as of the 31st day of January, 1999, by and
between PurchaseSoft, Inc. ("the Company"), a corporation duly organized under
the laws of the State of Delaware, with offices at 0000 Xxxx Xxxx, Xxxxx 000,
Xxxxx, Xxxxxxxxx, 00000, and Xxxxxx X. Xxxxxx, Xx. ("Employee"), who is
domiciled at 0000 Xxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000.
WHEREAS:
A. Employee is employed by the Company as Chief Executive Officer
pursuant to an Executive Employment Agreement dated February 2, 1998 but
effective as of December 15, 1996, as amended by a First Amendment To The
Executive Employment Agreement Of Xxxxxx X. Xxxxxx dated April 14, 1998, and by
Amendment Number Two To The Executive Employment Agreement Of Xxxxxx X. Xxxxxx
dated April 15, 1998 (collectively, the "Employment Agreement"), and also serves
as a Director of the Company;
B. There are differences between Employee and the Company that include
but are not limited to the parties' rights and obligations under the Employment
Agreement; and
C. Employee and the Company desire to settle fully and finally any and
all differences between them, including but not limited to, any differences that
might arise out of Employee's employment with the Company, the conclusion
thereof, and the Employment Agreement;
NOW, THEREFORE, IT IS HEREBY AGREED THAT:
1. (a) Employee irrevocably tenders, and the Company irrevocably accepts
Employee's resignation from employment with, and as an officer and director of
the Company, effective as of the close of business on January 31, 1999, (the
"Termination Date"). Attached as Exhibit A is Employee's resignation letter.
(b) Employee will not be reemployed by, and will not henceforth
accept, apply for, or otherwise seek employment with the Company or any of its
successors, subsidiaries, controlling shareholders, affiliates, or related
companies at any time.
2. Employee represents and warrants that Employee has returned to the
Company any and all documents, software, equipment (including, but not limited
to, computers, and computer-related items), and all other materials or other
things in Employee's possession, custody, or control which are the property of
the Company, including, but not limited to, the Company's identification, keys,
cellular telephones, office artwork, office furniture, and the like, wherever
such items may have been located; as well as all copies (in whatever form
thereof) of all materials relating to employment, or obtained or created in the
course of employment, with the Company, or that he will do so on or before the
Termination Date. Notwithstanding anything in this Agreement to the contrary,
nothing in this Agreement prevents the Employee from retaining duplicate copies
of documents that relate to him personally, such as agreements and contracts to
which he personally is a party and benefit plans in which he is a participant.
Further, Employee is entitled to retain all items that are Employee's personal
property, including but not limited to art work, furniture, appliances, and
other personal property of Employee.
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3. Employee represents that, other than those materials Employee has
returned or will return to the Company pursuant to Paragraph 2 of this
Agreement, Employee has not copied or caused to be copied, and has not
printed-out or caused to be printed-out, any software, computer disks, or
other documents other than those documents generally available to the public,
or retained any other materials originating with or belonging to the Company.
Except as set forth in paragraph 2 of this Agreement, Employee further
represents that Employee has not retained in Employee's possession any
software, documents or other materials in machine or other readable form,
which are the property of the Company, originated with the Company, and/or
were obtained or created in the course of or relate to Employee's employment
with the Company.
4. In consideration of this Agreement, and Employee's promises,
covenants, and representations set forth herein, and in full, final, and
complete settlement, the Company will commence to pay Employee specific
payments, as set forth below, which are special payments not otherwise owed
to Employee, in the total gross amount of Five Hundred Thousand Dollars and
No Cents ($500,000.00), and further to honor certain other commitments, as
set forth below:
(a) Not less than sixteen (16) and not more than twenty-one (21)
calendar days after the Company's attorneys, the law firm of Xxxxxx Xxxx &
Priest LLP, receive a fully-executed original copy of this Agreement, the
Company will pay the Employee the gross amount of One Hundred Thousand Dollars
and No Cents ($100,000.00), payable in two lump sums, as follows: one lump sum
in the amount of Sixty Thousand Dollars and No Cents ($60,000.00), less
applicable federal, state, and local taxes and other appropriate payroll
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deductions, representing remaining balance of Employee's deferred employment
compensation; and one lump sum in the amount of Forty Thousand Dollars and No
Cents ($40,000.00), for which the Company will issue a 1099, and which is
consideration for Employee foregoing all other rights, benefits, and expenses
to which he may be entitled as a result of his Employment and/or his
association with the Company.
(b) The gross amount of Four Hundred Thousand Dollars and No Cents
($400,000.00), less applicable federal, state and local taxes and other
appropriate payroll deductions, payable in 48 equal installments on the 15th and
last day of every month starting with February 15, 1999 and ending January 31,
2001.
(c) Employee's rights as set forth in Article 4 of the Employment
Agreement, as previously modified, including but not limited to Employee's
option to purchase up to 366,666 shares of Company Stock of the Company shall
continue, in effect, except that such option shall expire and terminate on April
29, 2000.
(d) Employee's right to receive the Facilitator's Fee, as set forth
in Article 3.8 of the Employment Agreement, as previously modified, is hereby
extended through and including April 29, 2000.
(e) Employee has no duty to mitigate and Employee's right to receive
any payments and/or benefits under this Agreement is not subject to rescission
or offset based on Employee's earnings and/or benefits from any subsequent
employer and/or source.
5. (a) Employee will be entitled to any rights guaranteed by the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"). In the event
Employee elects to receive continued health insurance coverage in accordance
with COBRA, the Company will
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pay, on behalf of Employee and his dependents, or reimburse Employee for the
payment of, any required premiums for such coverage through and including
January 31, 2000, to the extent that Employee and/or his dependents remain
eligible for such COBRA benefits. To the extent not otherwise provided under
COBRA and/or in the preceding sentence, the Company will further pay, on
behalf of Employee and his dependents, or reimburse Employee for the payment
of, any required premiums for dental coverage through and including
January 1, 2000. The premiums that the Company agrees to pay in this
paragraph are over and above any other sums that the Company is required to
pay under this Agreement. In accordance with COBRA, premium and other
payments required for any continued health insurance coverage beyond January
31, 2000, will be the sole responsibility of Employee.
(b) The time during which Employee receives any payments pursuant to
this Agreement and any payments received by Employee pursuant to this Agreement
will not be counted, credited, or otherwise considered for any purpose under any
Company pension or retirement savings plan, including but not limited to
credited service, contributions, benefit accrual, or compensation for purposes
of such plan(s).
6. Employee represents, warrants, and acknowledges that the Company owes
Employee no wages, salary, commissions, bonuses, vacation pay, severance pay,
expenses, fees, or other compensation or payments of any kind or nature, other
than as expressly provided in this Agreement. Notwithstanding anything in this
Agreement to the contrary, the Company agrees to pay Employee his salary through
January 31, 1999, to reimburse Employee for any additional reasonable expenses,
which Employee may submit after the Effective Date of this Agreement, up to the
aggregate of Five Hundred Dollars and No Cents ($500.00), and
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to pay the credit card expenses set forth in Exhibit B to this Agreement, for
which Employee represents and warrants he has not yet received reimbursement
from the Company.
7. In consideration of this Agreement, the monies paid and benefits
provided pursuant to this Agreement, and for other good and valuable
consideration received from the Company, receipt whereof is hereby acknowledged,
and except as limited by the last sentence of this paragraph, Employee RELEASES
AND FOREVER DISCHARGES the Company and the Company's current, former, and future
controlling shareholders, subsidiaries, affiliates, related companies,
predecessor companies, divisions, directors, trustees, officers, employees,
agents, attorneys, successors, and assigns, including but not limited to L-R
Global Partners, L.P., Rockefeller & Co., Inc., and Greentree Software, Inc.
(and the current, former and future controlling shareholders, directors,
trustees, officers, employees, agents, and attorneys of such subsidiaries,
affiliates, related companies, predecessor companies, and divisions), and all
persons acting by, through, under, or in concert with any of them (the Company
and the foregoing other persons and entities are hereinafter defined separately
and collectively as the "Company Releasees"), from all actions, causes of
action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims, and
demands whatsoever, WHETHER KNOWN OR UNKNOWN, whether in law or equity, whether
statutory or common law, whether federal, state, local, or otherwise, including,
but not limited to, any claims related to, or arising out of any aspect of
Employee's employment with the Company, any agreement concerning such
employment, or the termination of such
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employment, including, without limitation, the Employment Agreement,
including, but not limited to:
(a) any and all claims of wrongful discharge or breach of contract,
any and all claims for equitable estoppel, any and all claims for employee
benefits, including, but not limited to, any and all claims under the Employee
Retirement Income Security Act of 1974, as amended, any and all claims under the
Family and Medical Leave Act of 1993, and any and all claims of employment
discrimination on any basis or of unlawful retaliation, including, but not
limited to, any and all claims under Title VII of the Civil Rights Act of 1964,
as amended, under the Age Discrimination in Employment Act of 1967, as amended,
under the Civil Rights Act of 1866, 42 U.S.C. Section 1981, under the Civil
Rights Act of 1991, as amended, under the Americans With Disabilities Act of
1990, as amended, under the Immigration Reform and Control Act of 1986, as
amended, under the Minnesota Human Rights Act, as amended, under the Minnesota
Parental Leave Act, as amended, and under the Minnesota Age Discrimination Law,
Sections 181.81 et seq., as amended;
(b) any and all claims under any other federal, state, or local labor
law, civil rights law, fair employment practices law, or human rights law;
(c) any and all claims of slander, libel, defamation, invasion of
privacy, intentional or negligent infliction of emotional distress, intentional
or negligent misrepresentation, fraud, and prima facie tort; and
(d) any and all claims for monetary recovery, including, but not
limited to, back pay, front pay, liquidated, compensatory, and punitive damages,
and attorneys' fees, experts' fees, disbursements, and costs,
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which may be asserted against the Company Releasees, or any of them, by
Employee or Employee's heirs, executors, administrators, successors, and
assigns, ever had, now have, or hereafter can, will, or may have, for, upon,
or by reason of any matter, cause, or thing whatsoever from the beginning of
the world to the date of Employee's execution of this Agreement.
Notwithstanding anything in this Agreement to the contrary, Employee does not
release, and nothing in this Agreement shall be construed to release of or
supersede, any right Employee may have to defense, indemnification, and/or
contribution from the Company as provided by statute, common law, insurance
contracts, officers and directors' policies, and/or the third paragraph of
Article 3.4 of the Employment Agreement.
8. Notwithstanding anything in this Agreement to the contrary, nothing
in this Agreement releases, diminishes, or otherwise affects any vested
monies or other benefits to which Employee might be entitled from or under
any pension or retirement savings plan.
9. In consideration of this Agreement, and for other good and valuable
consideration received from Employee, receipt whereof is hereby acknowledged,
the Company, on its behalf and on behalf of the other Company Releasees,
hereby RELEASES AND FOREVER DISCHARGES Employee from all actions, causes of
action, suits, debts, dues, sums of money, accounts, reckonings, bonds,
bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, extents, executions,
claims, and demands whatsoever, WHETHER KNOWN OR UNKNOWN, whether in law or
equity, whether statutory or common law, whether federal, state, local, or
otherwise, including, but not limited to, any claims related to, or arising
out of any aspect of Employee's employment with the Company, any agreement
concerning such employment, or the termination of such
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employment, including, without limitation, the Employment Agreement, which
may be asserted against the Employee or Employee's heirs, executors,
administrators, successors, and assigns, by the Company and/or the Company
Releasees, ever had, now have, or hereafter can, will, or may have, for,
upon, or by reason of any matter, cause, or thing whatsoever from the
beginning of the world to the date of the Company's execution of this
Agreement.
10. The parties to this Agreement represent and warrant that they have not
assigned any rights or claims that they have against each other, except that the
Company acknowledges that it is subject to a court order relating to payments to
be made to Employee's former wife, and the Company shall continue to comply with
such court order with respect to amounts payable to Employee under paragraph
4(b) of this Agreement.
11. Employee represents that, to the best knowledge of his knowledge,
excluding the day-to-day expenses and obligations of operating the Company,
Employee is unaware of any claim against the Company or against Employee as it
relates to the Company. To the full extent permitted by law, Employee agrees to
cooperate with the Company in defense of any claim should such claim arise.
12. Employee's obligations as set forth in Article 7.1 of the
Employment Agreement, as previously modified, shall continue and Employee
will keep confidential, and will not hereafter disclose to any person, firm,
corporation, governmental agency, or other entity, any trade secret,
proprietary information, or confidential information of the Company,
including, but not limited to, information relating to processes, methods,
pricing strategies, customer lists, contracts, marketing plans, product
introductions, advertising or promotional programs, sales, financial results,
financial records and reports, regulatory matters and
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compliance, and other confidential business matters. Except as set forth in
the immediately preceding sentence of this Agreement, the Company
acknowledges and agrees that, except to the extent set forth in the
immediately preceding sentence, Employee has no contractual obligations to
the Company concerning competition and/or solicitation.
13. The parties to this Agreement agree that the Company will issue a
press release substantially in the form attached as Exhibit C to this
Agreement, promptly following the execution and delivery of this Agreement by
both parties.
14. This Agreement will be deemed to have been made at Minneapolis,
Minnesota, and will be interpreted, construed, and enforced pursuant to, and all
matters arising out of or relating to this Agreement will be determined pursuant
to, the substantive laws of the State of Minnesota. As used in this Agreement,
the singular or plural number will be deemed to include the other whenever the
context so indicates or requires.
15. This Agreement sets forth the entire agreement between the parties
hereto, fully terminates and supersedes any and all prior agreements or
understanding between them, including, without limitation, the Employment
Agreement EXCEPT as to Articles 1, 3.8, 4, the third paragraph of Article 3.4,
and Article 7.1 of the Employment Agreement, as previously modified and as
further modified by this Agreement. No amendment, modification, or waiver of
the Agreement, or any right under this Agreement, shall be effective unless
signed by the parties to this Agreement.
16. This Agreement will not in any way be construed as an admission by
either party to this Agreement of any liability, or of any wrongful or unlawful
acts whatsoever against the other party to this Agreement or any other person,
and each party to this
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Agreement specifically disclaims any liability to or wrongful or unlawful
acts against the other party to this Agreement or any other person.
17. Each party to this Agreement expressly acknowledges, represents, and
warrants that the terms and provisions of this Agreement herein stated are the
only consideration for signing this Agreement; and that no other promise or
agreement of any kind has been made to or with any person or entity whatsoever
to cause the signing of this Agreement.
18. Notwithstanding any other provision of this Agreement to the contrary:
(a) Employee, in consideration of the monies paid by the Company, as
described in Paragraph 4 of this Agreement (which Employee agrees constitutes
consideration in addition to anything of value to which Employee is already
entitled), agrees that this Agreement constitutes a knowing and voluntary waiver
of all rights or claims Employee may have against the Company Releasees, or any
of them, including, but not limited to, all rights or claims arising under the
Age Discrimination in Employment Act of 1967, as amended ("ADEA"), including,
but not limited to, all claims of age discrimination in employment and all
claims of retaliation in violation of the ADEA.
(b) The Company and Employee agree that, by entering into this
Agreement, Employee does NOT waive rights or claims that may arise after the
date this Agreement is executed.
(c) The Company and Employee agree that this Agreement will not
affect the rights and responsibilities of the U.S. Equal Employment Opportunity
Commission (the "EEOC") to enforce the ADEA and other laws, and further agree
that this Agreement will not be used to justify interfering with Employee's
protected right to file a charge or participate in
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an investigation or proceeding conducted by the EEOC. The Company and
Employee further agree that Employee knowingly and voluntarily waives all
rights or claims (that arose prior to Employee's execution of this Agreement)
Employee may have against the Company Releasees, or any of them, to receive
any benefit or remedial relief (including, but not limited to, reinstatement,
back pay, front pay, damages, and attorneys' and experts' fees) as a
consequence of any charge filed with the EEOC, and of any litigation
concerning any facts alleged in any such charge.
(d) The Company and Employee agree that, for a period of fifteen
(15) calendar days following the execution of this Agreement, Employee has
the right to revoke this Agreement by written notice of revocation delivered
to Xxxxxx Xxxxx, Secretary, PurchaseSoft, Inc., 0000 Xxxx Xxxx, Xxxxx 000,
Xxxxx, Xxxxxxxxx, 00000. Such written notice of revocation must either (i)
be delivered by hand within such period, or (ii) if delivered by mail, must
be postmarked within such period, must be sent by certified mail, return
receipt requested, and must be properly addressed. Should Employee revoke
this Agreement, Employee also agrees to provide notice by telecopy
(000-000-0000) and telephone (000-000-0000) to Xxxxxx Xxxxx, Secretary,
PurchaseSoft, Inc. The Company and Employee further agree that this
Agreement will not become effective or enforceable until the sixteenth (16th)
calendar day after the execution of this Agreement; and that, if revoked by
Employee prior to such date, this Agreement, and all promises contained in
this Agreement, will automatically be deemed null and void.
(e) The Company hereby advises and urges Employee in writing to
consult with an attorney prior to executing this Agreement.
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(f) Employee's acceptance of any of the monies paid by the
Company, as described in Paragraph 4 of this Agreement, at any time more than
fifteen (15) calendar days after the execution of this Agreement will
constitute an admission by Employee that Employee did not revoke this
Agreement and will further constitute an admission by Employee that this
Agreement has become effective and enforceable.
(g) Employee further represents and warrants that the Company gave
Employee a period of at least twenty-one (21) days in which to consider this
Agreement before executing this Agreement. If Employee executed this
Agreement at any time prior to the end of such twenty-one (21) day period
that, such early execution was a knowing and voluntary waiver of Employee's
right to consider this Agreement for at least twenty-one (21) days, and was
due to Employee's belief that Employee had ample time in which to consider
and understand this Agreement, and in which to review this Agreement with an
attorney.
19. (a) For purposes of this Agreement, "Successor" shall mean any
corporation, individual, group, association, partnership, limited liability
company, firm, venture, or other entity or person that, subsequent to the date
hereof, succeeds to the Company and/or the Company's business and/or assets,
directly or indirectly, by merger, consolidation, recapitalization, purchase,
liquidation, redemption, assignment, similar, corporate transaction, operation
of law, or otherwise.
(b) This Agreement, and all rights and obligations of the Company
hereunder, shall be binding upon and inure to the benefit of, and be enforceable
by and against the Company and any Successor of the Company.
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(c) This Agreement and all rights of the Employee hereunder, shall
be binding upon and inure to the benefit of, and be enforceable by Employee
and Employee's personal or legal representative, executors, administrators,
successors, heirs, distributees, devisees, legatees, and any assignees
permitted hereunder. If Employee should die while any amounts would still be
payable to Employee hereunder if Employee had continued to live, all such
amounts shall be paid in accordance with the terms of this Agreement to
Employee's devisee, legatee, or other designee, or if there is no such
designee, to Employee's estate.
(d) Notwithstanding anything in this Agreement to the contrary,
Employee may assign his rights under this Agreement to his spouse, one or
more of his children, and/or any trust for the primary benefit of Employee,
his spouse, and/or one or more of his children. children. Except as provided
in the immediately preceding sentence of this Agreement, Employee may not
assign his this Agreement or any of his rights hereunder without the prior
written consent of the Company.
20. Each party to this Agreement represents and acknowledges that such
party has represents and acknowledges that such party has Employee had ample
opportunity to review and comment on this Agreement. This Agreement will be
read and interpreted according to its plain meaning and an ambiguity will not
be construed against either party.
21. The Company represents that Xxxxxxx X. Xxxxxxxx, the individual who
signs this Agreement on behalf of the Company is fully authorized to enter
into this Agreement and to legally bind the Company.
22. EMPLOYEE EXPRESSLY ACKNOWLEDGES, REPRESENTS, AND WARRANTS THAT HE
HAS CAREFULLY READ THIS AGREEMENT AND GENERAL
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RELEASE; FULLY UNDERSTANDS ITS TERMS, CONDITIONS, AND SIGNIFICANCE; HAS HAD
AMPLE TIME TO CONSIDER AND NEGOTIATE THIS AGREEMENT AND GENERAL RELEASE; HAS
BEEN ADVISED AND URGED BY THE COMPANY TO CONSULT WITH AN ATTORNEY CONCERNING
THIS AGREEMENT AND GENERAL RELEASE; HAS HAD A FULL OPPORTUNITY TO REVIEW THIS
AGREEMENT AND GENERAL RELEASE WITH AN ATTORNEY AND HAS DONE SO; AND EMPLOYEE
HAS EXECUTED THIS AGREEMENT AND GENERAL RELEASE VOLUNTARILY, KNOWINGLY, AND
WITH THE ADVICE OF HIS ATTORNEYS, THE LAW FIRM OF XXXXX & XXXXXXX, L.L.P.
(SIGNATURE PAGE FOLLOWS)
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PLEASE READ CAREFULLY. THIS AGREEMENT AND GENERAL RELEASE HAS IMPORTANT
LEGAL CONSEQUENCES.
Dated: January 31, 1999 PURCHASESOFT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Its: Director
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Dated: January 31, 1999 Xxxxxx X. Xxxxxx
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EXHIBIT A
0000 Xxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
January 31, 1999
Xx. Xxxxxxx X. Xxxxxxxx
PurchaseSoft, Inc.
0000 Xxxx Xxxx
Xxxxx, Xxxxxxxxx 00000
Re: Resignation
Dear Xxxx:
Pursuant to the Agreement and General Release between me and
PurchaseSoft, Inc., I hereby resign as Chairman of the Board, a Member of the
Board of Directors, and CEO of PurchaseSoft, Inc., effective January 31, 1999.
Best of luck.
Regards,
/s/ Xxxxxx X. Xxxxxx
-------------------------
Xxxxxx X. Xxxxxx, Xx.
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EXHIBIT B
Schedule of Unreimbursed Expenses:
(a) American Express:
---------------------
1. ATT Airphones $ 7.39
2. ATT Airphones 10.05
3. Hertz 523.78
4. Sidneys 22.38
5. Kincaids 21.88
6. Xxxxxxx 18.54
7. TGIF's 18.65
8. AOL 21.95
--------
Total $ 644.62
(B) VISA:
-------
1. Sun Country $ 228.00
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EXHIBIT C
PRESS RELEASE:
PurchaseSoft, Inc., announced the January 31, 1999 resignation of Xxxxxx X.
Xxxxxx as CEO and Chairman of the Board, Monday, February 1, 1999.
Xxxxxxx X. Xxxxxxxx, who joined the Company as a Director and Consultant in
September 1998, has been named as Xxxxxx'x successor. "I am very pleased
that Xxxx has agreed to become the Chairman and CEO," said Xxxxxx. "The
strength of the product and Mike's leadership make the outlook for
PurchaseSoft very positive."
Statements contained herein that are not historical facts, including but not
limited to statement's about the Company's outlook, product, corporate
identity, and focus, may be forward-looking statements that are subject to a
variety of risks and uncertainties. There are a number of important factors
that could cause actual results to differ materially from those expressed in
any forward-looking statements made by the Company, including but not limited
to, the continuing development of the Company's sales, marketing, support,
research, and development efforts.
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