RETIREMENT AGREEMENT
THIS AGREEMENT effective as of June 13, 2008 (the "Agreement"), is by
and between DATARAM CORPORATION, a New Jersey corporation (the "Company")
and XXXXXX XXXXXXXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive and the Company agree that the Executive retired
from the Company as an employee and officer effective as of May 7, 2008 and
as a member of the Board of Directors of the Company as of June 13, 2008.
NOW, THEREFORE, in consideration of the foregoing and in exchange for
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Retirement. The Executive and the Company agree to the
Executive's retirement from the Company and all of its subsidiaries and
affiliates, as an employee and officer, effective as of May 7, 2008 (the
"Retirement Date") and as a member of the Board of Directors of the Company
as of June 13, 2008. The Executive acknowledges having been paid all salary
or other compensation due him for any and all work performed by him through
the Retirement Date.
2. Retirement Payment. The Executive shall receive from the Company
retirement pay, less applicable payroll taxes (the "Retirement Payment"),
which shall be comprised of:
(a) The Executive's current salary and benefits, pursuant to
Section 5.5 of the Executive's Employment Agreement, dated February 1, 2005,
by and between the Executive and the Company, and any amendments or
extensions thereof (collectively, the "2005 Employment Agreement"), shall be
paid and provided to the Executive for a term of one year, commencing as of
the Retirement Date;
(b) Three Hundred Thousand Dollars ($300,000), equal to one
(1) year of the Executive's current salary, payable within seven (7) days of
the execution of this Agreement;
(c) With respect to the Company's fiscal year ending April
30, 2009, the Executive will receive a bonus calculated in the same manner
as was his 2008 bonus, as applied to the financial results for the fiscal
year ending April 30, 2009; and
(d) The legal fees actually incurred by the Executive in
connection with the review and negotiation of this Agreement, in an amount
not to exceed $10,000, to be paid directly to the attorney for the Executive
upon delivery to the Company of a detailed invoice from the Executive's
attorney.
3. Benefits. In addition to the benefits to be paid to the
Executive pursuant to Section 2(a) of this Agreement, the Executive shall be
entitled to the following benefits:
(a) To the extent stock options have been granted to the
Executive, such stock options must be exercised by May 7, 2009;
(b) Continuation of the Executive's automobile allowance
through June 13, 2009, less applicable payroll taxes;
(c) Payment to the Executive of an amount equal to 20 days
of accrued vacation, less applicable payroll taxes, to be paid no later than
seven (7) days after the execution of this Agreement; and
(d) Health insurance based on the coverage as of the
Retirement Date, for as long as the Company's health insurance policy allows;
provided, however, that in no event shall the Company be required to maintain
such coverage beyond May 31, 2009.
4. Delivery of Company Property. The Executive shall return to the
Company the following property of the Company currently in the possession of
the Executive, no later than June 19, 2008:
(a) all keys to any and all facilities or assets of the
Company;
(b) all files and records of the Company; and
(c) all other assets, if any, of the Company in the
possession of the Executive; provided, however, the Executive may retain the
Apple computer currently being used by him, provided that he removes and
destroys any Confidential Information (as such term is defined in Paragraph
6 below) from such computer.
5. Releases.
(a) For valuable consideration from the Company, receipt of
which is hereby acknowledged, the Executive releases and forever discharges
the Company, its affiliates, members, officers, directors, agents, employees,
successors and assigns (the "Company Releasees"), from any and all rights,
causes of action, claims or demands, of any kind in tort or in contract,
whether express or implied, known or unknown, which could be brought before
any government or administrative agency, or court, which the Executive has or
may have against the Company Releasees, including but not limited to, claims
under the Age Discrimination in Employment Act; Title VII of the Civil Rights
Act of 1964; the Americans with Disabilities Act of 1990; Sections 1981
through 1986 of Title 42 of the U.S. Code; the New Jersey Law Against
Discrimination; the New Jersey Conscientious Executive Protection Act; the
New Jersey Family Leave Act; as well as any other federal, state or local
law, ordinance or regulation, or based on any public policy, contract, tort
or common law or any claim for costs, fees or other expenses, including
attorney's fees, and any other applicable federal, state or local,
constitutional or statutory provision, order or regulation, arising from any
event or act of omission or commission. This release includes, but is not
limited to, any and all rights, causes of action, claims or demands of any
kind, occurring during the Executive's term of employment with the Company
through the date of this Agreement, including any alleged injuries or damages
suffered at any time after the date of this Agreement by reason of the
continued effects of any such alleged acts which occurred on or before the
date hereof. In consideration of the payments provided herein, the Executive
gives up any rights he may have under these or any other laws with respect to
his employment and termination of his employment and acknowledges that the
Company (including its subsidiaries and affiliates) has not (i) discriminated
against him; (ii) breached any express or implied contract with him; or (iii)
otherwise acted unlawfully toward him. The release set forth in this Section
5(a) includes, without limitation, any and all amounts due, or which may
hereafter become due, to the Executive pursuant to the 2005 Employment
Agreement. The release set forth in this Section 5(a) does not apply to
matters to be performed under this Agreement subsequent to the date of this
Agreement.
(b) For valuable consideration from the Executive, receipt of
which is hereby acknowledged, the Company releases and forever discharges the
Executive, his successors and assigns (the "Executive Releasees"), from any
and all rights, causes of action, claims or demands, of any kind in tort or
in contract, whether express or implied, known or unknown, which could be
brought before any government or administrative agency, or court, which the
Company has or may have against the Executive Releasees. This release
includes, but is not limited to, any and all rights, causes of action, claims
or demands of any kind, occurring during the Executive's term of employment
with the Company through the date of this Agreement, including any alleged
injuries or damages suffered at any time after the date of this Agreement by
reason of the continued effects of any such alleged acts which occurred on or
before the date hereof; provided, however, notwithstanding anything to the
contrary herein, this release shall not release the Executive Releasees from
any and all rights, causes of action, claims or demands, of any kind in tort
or in contract, whether express or implied, known or unknown, which could be
brought before any government or administrative agency, or court, which the
Company has or may have against the Executive Releasees relating to fraud,
willful misconduct or breach of fiduciary duty or which result from any
actions of the Executive which were taken outside of the scope of his
employment with the Company, contrary to explicit written directions of the
Board of Directors (including instructions contained in the notes of the
minutes of meetings of the Board of Directors), or without the authority of
the Board of Directors, when Executive knew or should have known that such
authority was required. The release set forth in this Section 5(b) does not
apply to matters to be performed under this Agreement subsequent to the date
of this Agreement.
6. Confidentiality. Executive shall not, without the prior written
consent of the Company, use, for his own account or use, divulge, disclose or
make accessible to any other person, firm, partnership, corporation or any
other entity any Confidential Information (as defined below) pertaining to
the business of the Company or any of its affiliates. If Executive is
required or has cause to anticipate that he may be required by law or by any
court having jurisdiction over Executive, to disclose any of the Confidential
Information, Executive must immediately notify the Company of his actual or
anticipated disclosure in order to allow the Company to seek a protective
order or other appropriate remedy prior to disclosure by Executive. In the
event that a remedy is not obtained by the Company or the Company waives
compliance with this Section 6 of the Agreement, only that part of the
Confidential Information legally required to be disclosed shall be disclosed
and Executive shall use his best efforts to obtain reliable assurances that
confidential treatment shall be accorded to the Confidential Information so
disclosed. "Confidential Information" shall be defined as any information,
whether written or oral, disclosed by or relating to the Company, including,
without limitation, business plans, drawings, models, data, specifications,
formulae, reports, computer programs, trade secrets, know-how, technology,
customers, collection techniques, marketing or financing plans, supplier
relationships, customer relationships, account relationships and matters
relating thereto such as the identity and purchase history of, and the
Company's customer/account pricing strategies with respect to, such
customers/accounts. "Confidential Information" shall not include information
that is in or becomes part of the public domain without any fault of
Executive, or information which is provided to others without restriction on
disclosure, or information which is required by law to be disclosed.
7. Disclosure of this Agreement. The Executive acknowledges that
the Company will be required to announce the Executive's retirement. The
Company will endeavor to provide the Executive the opportunity to comment on
any public announcement or filing with the SEC prior to such announcement;
provided, however, that the content of any such announcement or filing shall
be in the sole discretion of the Company.
8. Non-Disparagement. The Executive and the Company shall each
refrain from taking any action or making any statement, written or oral,
which disparages the reputation of the other or any of the Company Releasees
or Executive Releasees, respectively.
9. Non-Solicitation, Non-Competition. The 2005 Employment Agreement
is hereby terminated, however, the Executive shall continue to be bound by
the restrictive covenants and all provisions contained in Sections 7, 8 and 9
thereof, through May 7, 2011.
10. Representations. The Executive represents that the Executive has
not filed, caused to be filed, or presently is a party to any claim,
complaint, or action against the Company in any forum or form and that there
is no reason why a claim, complaint or action should be filed or threatened
against the Company, as a result of the Executive's conduct while employed
with the Company. The Executive further acknowledges that the Executive has
always been treated by the Company in a fair, equitable and honorable manner
consistent with the Executive's position.
11. Covenant Not to Xxx. The Executive covenants and agrees not to
bring any action, suit, or administrative proceeding contesting the validity
of this Agreement (and the release contained in it) or attempting to negate,
modify, or reform it; and covenants and agrees not to bring any action, suit,
administrative proceeding, or arbitration proceeding against any of the
Company Releasees for any reason arising out of his employment or the
termination of his employment or for any claims covered by this Agreement set
forth in Section 5(a) above or otherwise. The Executive further agrees that
he shall not be entitled to receive any relief, recovery, or monies in
connection with any complaint or charge brought against the Company by others
or on the Executive's behalf. This Section 11 shall not limit the Executive
from seeking to enforce this Agreement.
12. Cooperation; Passwords.
(a) The Executive hereto agrees to use all commercially
reasonable efforts to cooperate with the Company, including without
limitation, the Executive's successor as President of the Company, to take,
or cause to be taken, all actions and to do so, or cause to be done, all
things necessary, proper or advisable to complete any and all outstanding
projects and matters the Executive is involved in at the time of the
Retirement Date, and further to provide all information to, and otherwise to
assist, the Company in making all required filings with the Securities and
Exchange Commission, and any other governmental entity, for a period of one
year from and after the Retirement Date.
(b) The Executive shall provide the Company with a written
list of any and all passwords, usernames, code words, and similar electronic
access codes (collectively, "Security Codes") used by him in connection with
his employment by the Company and shall indicate on the written list the
software, computer, web site, or other electronic gateway to which each
listed Security Code applies.
13. Review Period and Right to Revoke. The Executive acknowledges
that he has had more than twenty-one (21) days from his receipt of this
Agreement to consider whether or not to sign it. The Executive has consulted
with an attorney of his choice (Xxxxxx X. Xxxxx, Esq.) concerning this
Agreement. If the Executive signs this Agreement and delivers the signed
Agreement to the Company, it will not become effective and binding until
seven (7) days later (the "Revocation Period"). During the Revocation
Period, the Executive has the right to revoke this Agreement. To do so, the
Executive must deliver a written revocation to the Company before the end of
the Revocation Period. If the Executive does not deliver a written
revocation to the Company before the end of the Revocation Period, this
Agreement, including the release contained in Section 5(a) above will become
fully effective and enforceable at that time. If the Executive signs and
then revokes this Agreement before expiration of the Revocation Period, this
offer shall be deemed automatically withdrawn and the Executive will not be
entitled to the Retirement Payment or any other benefits pursuant to this
Agreement.
14. Legal Consultation. The Executive represents and warrants that:
(a) he has been advised by the Company of his right to
consult with independent legal counsel before signing this Agreement and has
consulted with Xxxxxx X. Xxxxx, Esq.;
(b) he has read this Agreement carefully, that he fully
understands its terms, and that he is signing it voluntarily and of his own
free will;
(c) he is not relying upon any representations made by any
official, employee or any other representative of the Company concerning this
Agreement except those representations which are set forth herein; and
(d) he understands that by signing this Agreement he cannot
in the future bring or authorize any grievance, arbitration, lawsuit or other
proceeding against the Company based upon his employment or the termination
of his employment with the Company except for a claim to enforce the terms of
this Agreement.
14. Expenses. Except as set forth in Section 2(d) of this Agreement,
each party will pay its own expenses incurred in connection with this
Agreement.
15. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Company, its successors and assigns and shall be
binding upon and inure to the benefit of the Executive and his heirs,
executors, administrators, legal representatives and assigns; provided,
however, that the Executive may not assign his rights or obligations under
this Agreement without the prior written consent of the Company.
16. Entire Agreement; Amendments. This Agreement contains the entire
understanding and agreement of the Parties hereto with respect to the matters
contained herein, and may not be amended or supplemented at any time unless
by writing, executed by each of the Parties. Any agreement or understanding,
written or otherwise, prior to the effective date of this Agreement between
the Executive and the Company relating to the employment of the Executive is
hereby terminated and discharged.
17. No Waiver. A waiver by either Party of a breach of this
Agreement by the other Party is not to be construed as a waiver of any other
breach. A waiver of any provision does not operate as a future waiver of the
same provision or a waiver of the breach of any other provision. The failure
to enforce any provision does not operate as a waiver of such provision.
18. Governing Law; Jurisdiction. This Agreement is governed by and
is to be construed and enforced in accordance with the laws of the State of
New Jersey as though made and to be fully performed in the State of New
Jersey. All disputes arising under this Agreement are to be resolved in the
courts of the State of New Jersey or the U.S. District Court sitting in the
State of New Jersey. The Parties agree that the courts of the State of New
Jersey and the U.S. District Court sitting in the State of New Jersey are to
have co-exclusive jurisdiction over this Agreement. The Parties agree to
waive their rights to a jury trial should any dispute arise under this
Agreement.
19. Severability. In the event any one or more of the provisions of
this Agreement shall be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall be deemed to
be amended to be only as broad as may be fully enforceable and shall not
affect other provisions hereof. Any provision of this Agreement which,
notwithstanding the foregoing sentence, is determined by a court of competent
jurisdiction to be invalid or unenforceable for any reason, shall not affect,
impair or invalidate the remainder of this Agreement.
20. Notices. All notices, requests, demands and other communications
hereunder must be in writing and shall be deemed to have been duly given if
(i) mailed by first class certified mail, return receipt requested, postage
prepaid, or (ii) delivered by a reputable private overnight courier service
utilizing a written receipt or other written proof of delivery, to the
Parties at their address as first set forth above. Any Party refusing
delivery of a notice shall be charged with knowledge of its contents. Either
Party, by notice in writing mailed to the other Party as provided herein, may
change the address to which future notices to such Party shall be mailed.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original
hereof, but all of which together shall constitute but one and the same
document.
22. Headings and Captions. All captions and headings of paragraphs,
subparagraphs and sections are not part of this Agreement and shall not be
used for the interpretation or determination of the validity of this
Agreement or any provision hereon.
23. Names and Entities. The masculine gender shall include the
neuter genders, and the word "person" shall include an individual, a
corporation, a partnership, a limited partnership, a limited liability
partnership, a limited liability company and a trust. Whenever the singular
is used in this Agreement the same shall include the plural when required by
the context and vice versa.
24. Representation by Counsel. The law firm Greenbaum, Rowe, Xxxxx &
Xxxxx LLP ("GRS") represents only the Company with respect to this Agreement.
The Executive has had the opportunity and has been advised to consult with
attorneys of his own choice and has consulted with Xxxxxx X. Xxxxx, Esq. The
Executive acknowledges that he has waived and grants a continuing waiver of
any conflict of interest which arises or may arise from past, present, or
future legal representation of the Company by GRS, including without
limitation, the negotiation and consummation of this Agreement and the
enforcement of the terms of this Agreement.
IN WITNESS WHEREOF, the parties have signed this Agreement on the date
first set forth above.
DATARAM CORPORATION
By: /s/ XXXX X. XXXXXXX
_________________________________________
Xxxx X. Xxxxxxx, President
EXECUTIVE:
/s/ XXXXXX X. XXXXXXXXX
_________________________________________
Xxxxxx X. Xxxxxxxxx
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