SEPARATION AND RELEASE AGREEMENT
Exhibit
10.17
This
Separation and Release Agreement (this “Agreement”) is entered into by and
between INTERACTIVE INTELLIGENCE, INC. (the “Company”) and XXXXXXXX X. XXXXXXX
(“Xxxxxxx”).
Recitals
X. Xxxxxxx
has been employed with the Company in various executive positions pursuant
to
that certain Employment Agreement dated as of March 1, 1997, as amended by
that
certain Employment Agreement Amendment A dated as of May 14, 1999 and by
that
certain Second Amendment to Employment Agreement dated as of February 23,
2000
(as so amended the “Employment Agreement”).
X. Xxxxxxx
and the Company desire for Xxxxxxx to voluntarily resign and terminate his
employment with the Company effective March 6, 2007, under the terms of this
Agreement.
C. In
consideration of Xxxxxxx’x release and waiver of any and all claims he may have
against the Company Released Parties (as defined below), his re-affirmation
of
his non-competition and non-disclosure covenants under the Employment Agreement
and his compliance with the other covenants of this Agreement, the Company
is
willing to provide certain special severance compensation to Xxxxxxx and
to
release Xxxxxxx from certain claims the Company may have against him in
accordance with the terms of this Agreement. In exchange for certain special
severance compensation and the Company’s release of claims as described in this
Agreement, Xxxxxxx is willing to waive, and to release the Company Released
Parties from, any and all rights or claims that he may have against the Company
Released Parties, including, but not limited to, any claims under the Age
and
Discrimination in Employment Act of 1967 (29 U.S.C. § 621 et seq.),
to
re-affirm his non-competition and non-disclosure covenants under the Employment
Agreement and to abide by the covenants and provisions contained in this
Agreement.
Agreement
In
consideration of the covenants and promises hereby provided, the actions
taken
pursuant thereto, and other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the Company and Xxxxxxx agree
as
follows:
1. Resignation/Separation
of Employment.
Xxxxxxx
hereby voluntarily resigns his employment with the Company effective as of
March
6, 2007, and the Company accepts such resignation. The Company and Xxxxxxx
agree
that Xxxxxxx’x employment with the Company has terminated effective March 6,
2007 (the “Separation Date”) as a result of Xxxxxxx’x voluntary resignation.
Xxxxxxx further hereby resigns any and all positions he holds with the Company
or any of its affiliates, including, but not limited to, any officer positions,
effective as of the Separation Date.
2. Salary;
Submission of Business Expense Reimbursement Request.
The
Company will pay Xxxxxxx his base salary through the Separation Date. The
Company will make such final salary payment to Xxxxxxx in accordance with
the
Company’s customary payroll practices. Xxxxxxx acknowledges and agrees that the
Company has paid him all wages and other compensation, including, but not
limited to, commissions, bonuses, incentive compensation and vacation pay,
to
which he is entitled under the Employment Agreement or otherwise in connection
with his employment with the Company and that, except as expressly provided
in
this Agreement, Xxxxxxx is not entitled to any additional compensation from
the
Company. Xxxxxxx shall submit to the Company any request for reimbursement
of
business expenses together with all required supporting documentation by
no
later than March 19, 2007. The Company will evaluate and pay any such business
expense reimbursement request timely submitted by Xxxxxxx in accordance with
the
Company standard expense reimbursement policies and practices. Xxxxxxx agrees
that he is not entitled to any reimbursement if he does not submit such
reimbursement request and the applicable supporting documentation to the
Company
by March 19, 2007.
3. Termination
of Employee Benefits.
Xxxxxxx’x eligibility to participate in and/or his receipt of, all employee
benefits and perquisites will terminate as of the Separation Date, except
for
any applicable COBRA rights and any vested benefits under any Company-sponsored
qualified retirement plans.
4. Severance
Compensation.
The
Company agrees to pay Xxxxxxx the following special severance compensation,
which absent this Agreement Xxxxxxx would not otherwise be entitled to receive:
The Company will pay Xxxxxxx severance compensation in the total gross sum
of
One Hundred Seventy-Five Thousand Dollars ($175,000.00). Such severance
compensation shall be paid in a single lump-sum payment, less all applicable
payroll tax deductions/withholdings, within five (5) calendar days after
this
Agreement becomes effective.
5. Xxxxxxx’x
Release of Claims.
Xxxxxxx
hereby generally, irrevocably and unconditionally releases and forever
discharges and covenants not to xxx the Company and all of its current and/or
former employees, officers, shareholders, directors, employee benefit plans
and
their fiduciaries, representatives and agents, and all persons acting by,
through, or under or in concert with any of them, both individually and in
their
representative capacities (collectively, including without limitation the
Company, the “Company Released Parties”) from any and all complaints, claims,
demands, liabilities, obligations, injuries, actions or rights of action
of any
nature whatsoever (including without limitation claims for damages, attorneys’
fees, interest and costs), whether known or unknown, disclosed or undisclosed,
administrative or judicial, suspected or unsuspected, that exist in whole
or in
part as of the date Xxxxxxx signs this Agreement, including, but not limited
to,
any claims based upon, arising out of or in any manner connected with Xxxxxxx’x
employment with the Company or the separation of Xxxxxxx’x employment with the
Company, but excluding Xxxxxxx’x rights under Sections 3 and 4 of this
Agreement. Without limiting the generality of the foregoing, Xxxxxxx
acknowledges that the foregoing release/covenant not to xxx is to be construed
as broadly as possible and includes, but is not limited to, and constitutes
a
complete waiver of, any and all possible claims against the Company Released
Parties under the Age Discrimination in Employment Act of 1967 (29 U.S.C.
§ 621
et seq.),
as
amended (including the Older Workers Benefit Protection Act), Title VII of
the
Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal Pay Act,
the
Americans With Disabilities Act, the Family and Medical Leave Act, the Employee
Retirement Income Security Act and all other federal, state and local laws
and
statutes. Xxxxxxx represents that he has not filed with any agency or court
any
charges, complaints or legal actions against any of the Company Released
Parties. Should any administrative agency or other person bring a complaint,
charge or legal action on Xxxxxxx’x behalf against any of the Company Released
Parties based on any acts, omissions or events occurring up through the date
Xxxxxxx signs this Agreement, Xxxxxxx will notify such agency or person promptly
that the matter has been resolved to his satisfaction and that he does not
wish
to have the matter pursued. If such agency or other person independently
determines to initiate or pursue a complaint, charge or legal action on
Xxxxxxx’x behalf against any of the Company Released Parties based on any acts,
omissions or events occurring up through the date Xxxxxxx signs this Agreement,
Xxxxxxx hereby waives any rights to, and will not accept, any remedy obtained
through the efforts of such agency or person.
6. The
Company’s Release of Claims.
The
Company hereby generally, irrevocably and unconditionally releases and forever
discharges and covenants not to xxx Xxxxxxx from any and all complaints,
claims,
demands, liabilities, obligations, injuries, actions or rights of action
of any
nature whatsoever (including without limitation claims for attorneys’ fees,
interest and costs), whether known or unknown, disclosed or undisclosed,
administrative or judicial, suspected or unsuspected, that exist in whole
or in
part as of the date the Company executes this Agreement, including but not
limited to, any claims based upon, arising out of or in any manner connected
with Xxxxxxx’x employment with the Company or the separation of Xxxxxxx’x
employment with the Company; provided, however, the foregoing release/covenant
not to xxx does not affect, release, or constitute a waiver of, Xxxxxxx’x
obligations (and the Company’s rights) under the provisions of the Employment
Agreement that survive this Agreement and the termination of Xxxxxxx’x
employment with the Company, including Xxxxxxx’x obligations (and the Company's
rights) pursuant to Sections 7, 8, 9, 10 and 11 of the Employment Agreement,
which such provisions of the Employment Agreement remain effective and in
full
force.
7. Return
of Company Property.
Xxxxxxx
represents and covenants (a) that he has returned, or will immediately return,
to the Company all property belonging to the Company, including, but not
limited
to, keys, access cards, files, equipment, business plans, financial statements,
computer disks or files, documents and/or any such other Company property
in
Xxxxxxx’x possession or custody or under Xxxxxxx’x control, and (b) that he has
not retained and will not retain copies of any the Company’s files, documents,
electronic data or other property, including, but not limited to, any documents,
materials or data containing any confidential information of the
Company.
8. Non-Disparagement.
Xxxxxxx
agrees and covenants that he will not make any statements, oral or written,
that
disparage, or damage the reputation of any of the Company Released Parties
or
the Company’s business. The Company agrees and covenants that it will not make
any statements, oral or written, that disparage, or damage the reputation
of,
Xxxxxxx. Nothing in this section is intended to preclude or restrict in any
way
Xxxxxxx or the Company from making any disclosures as may be required by
law,
whether in response to any legal process, subpoena or otherwise.
9. Employment
Agreement.
Xxxxxxx
acknowledges and agrees that this Agreement does not affect his obligations
(and
the Company’s rights) under Section 7 (Covenant Not to Compete), Section 8
(Covenant Not to Disclose Confidential Information), Section 9 (Remedies),
Section 10 (Inventions), and Section 11 (Surrender of Records) of the Employment
Agreement and all related procedural and enforcement provisions of the
Employment Agreement, and Xxxxxxx hereby re-affirms such covenants and
obligations under the Employment Agreement. Xxxxxxx acknowledges that he
does
not have any continuing rights under the Employment Agreement.
10. Age
Act Advisements.
Xxxxxxx
acknowledges that: (a) the Company has advised him that his employment with
the
Company was covered by the Age Discrimination in Employment Act of 1967 (29
U.S.C. § 621 et seq.),
as
amended (including the Older Workers Benefit Protection Act) (the "Age Act"),
and by this Agreement Xxxxxxx is releasing and waiving all claims under such
Age
Act; (b) the Company has advised him to consult with an attorney prior to
signing this Agreement; (c) the Company has advised him that he has up to
twenty-one (21) calendar days to consider and accept this Agreement by signing
and returning this Agreement to the Company; and (d) the Company has advised
him
that for a period of seven (7) calendar days following Xxxxxxx’x signing of this
Agreement, Xxxxxxx may revoke this Agreement by written notice to the Company
and that this Agreement will not become binding and enforceable until the
seven-day revocation period has expired, without Xxxxxxx having exercised
his
revocation right.
11. No
Admission.
This
Agreement and the actions taken pursuant to this Agreement do not constitute
an
admission by any party of any wrongdoing or liability, and each party expressly
denies any wrongdoing or liability.
12. Successors.
This
Agreement shall be binding upon and shall inure to the benefit of the heirs,
personal representatives, successors, and assigns of each of the parties.
13. Entire
Agreement; Limited Survival of Employment Agreement
Provisions.
This
Agreement constitutes the entire agreement of the parties with respect to
the
subject matter addressed herein and supersedes any prior agreements,
understandings or representations, oral or written, with respect to the subject
matter addressed herein, except for the provisions of Section 7 (Covenant
Not to
Compete), Section 8 (Covenant Not to Disclose Confidential Information),
Section
9 (Remedies), Section 10 (Inventions), and Section 11 (Surrender of Records)
of
the Employment Agreement, and except for the related procedural and enforcement
provisions of the Employment Agreement, all of which shall remain in effect.
Xxxxxxx acknowledges he is not relying on any representations, promises or
inducements, whether oral or written, made by the Company or its representatives
except those expressly stated in this Agreement. The parties acknowledge
that,
except for this Agreement and those provisions of the Employment Agreement
that
remain in effect, there are no other agreements, oral or written, between
them.
14. Modification.
This
Agreement may not be amended, supplemented, or modified except by a written
document signed by both Xxxxxxx and a duly authorized officer of the
Company.
15. Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of Indiana. Any legal action relating to this Agreement
shall
be commenced and maintained exclusively in the state or federal courts located
in Xxxxxx County, Indiana, and the parties hereby consent to the jurisdiction
and venue of such courts.
16. Severability.
The
provisions of this Agreement are severable, and the invalidity of any one
or
more provisions shall not affect or limit the enforceability of the remaining
provisions. Should any covenant or provision be held unenforceable for any
reason, then such covenant or provision shall be enforced to the maximum
extent
permitted by law.
17. Counterparts.
This
Agreement may be executed in one or more counterparts (or upon separate
signature pages bound together into one or more counterparts), all of which
taken together shall constitute but one agreement. The parties acknowledge
that
signatures transmitted by facsimile or other electronic means are acceptable
as
much as original signatures for execution of this Agreement.
18. Language
Construed As A Whole.
The
language of this Agreement shall in all cases be construed as a whole, according
to its fair meaning, and not strictly for or against any of the parties.
19. Acknowledgement.
Xxxxxxx
acknowledges that he has read this Agreement, that he has had ample time
to
consider this Agreement, that he has had the opportunity to consult with
his own
legal counsel concerning this Agreement if he so chooses and that he is
knowingly and voluntarily entering into this Agreement.
IN
WITNESS WHEREOF, the Company and Xxxxxxx have executed this Agreement on
the
date(s) indicated below, intending it to become effective seven (7) days
after
Xxxxxxx signs the Agreement.
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XXXXXXX
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INTERACTIVE
INTELLIGENCE, INC.
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By:
/s/ Xxxxxxxx X. Xxxxxxx
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By:
/s/ Xxxxxx X. Xxxxx
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Xxxxxxxx
X. Xxxxxxx
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Xxxxxx
X. Xxxxx, M.D., President
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Date:
March 7, 2007
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Date:
March 7, 2007
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