EXHIBIT 10.11
AGREEMENT AND GENERAL RELEASE
This Agreement and General Release ("Agreement") is entered into this
_____ day of October, 1997, by and between Xxxxx X. Xxxxxxxx ("Executive") and
Digital Biometrics, Inc. (the "Company").
WHEREAS, Executive has resigned from his position as Senior Vice
President, Technology, of the Company effective October 7, 1997;
WHEREAS, Executive has agreed to continue his employment with the
Company through November 30, 1997 on a transitional basis as provided below, and
to resign from his employment with the Company as of such date; and
WHEREAS, Executive and the Company desire fully and finally to settle
all matters or issues that exist or that might arise out of Executive's
employment with Company, and the termination thereof,
NOW, THEREFORE, in consideration of the mutual promises contained
herein, Executive and Company agree as follows:
1. Resignation and Separation. Executive resigns from his position as
Senior Vice President, Technology, effective at the close of business on October
7, 1997 (the "Resignation Date"). From and after his Resignation Date, Executive
will continue to render services to the Company on a full-time basis though and
including October 31, 1997. Executive shall remain in the employment of the
Company through and including November 30, 1997, after which Executive resigns
from employment with the Company. During the period from the date hereof through
November 30, 1997 (the "Transition Period"), Executive shall continue to be
compensated at his current base salary payable at regular payroll intervals.
Executive's employment with Company shall terminate at 6:00 o'clock P.M. on the
last day of the Transition Period (the "Termination Date"). In the event
Executive has any accrued vacation remaining unused as of the Termination Date,
he shall receive payment in lieu of such vacation. The Company agrees to pay to
Xxxxx and Associates, for Executive's benefit, a one-time placement service fee
of $500.00.
2. Services Between October 31, 1997 and November 30, 1997. During the
period following October 31, 1997 and through November 30, 1997, Executive shall
have no specific employment responsibilities or authority and will not, unless
requested by the Company, report for employment. Executive agrees, however, to
be available to consult in person or by telephone during such period, on any
matters within the scope of Executive's employment duties to date. Such
consultation shall be for no additional compensation, other than as set forth in
Section 1 of this Agreement.
3. Severance Pay Following Transition Period. Following the Transition
Period, and provided he complies with the terms of this Agreement, Executive
will be entitled to receive from the Company a lump sum severance payment equal
to Executive's current base compensation for two months (the "Severance
Payment"). Except as hereinafter provided, no further severance payments will be
made to Executive.
4. Resolution of Indebtedness. As additional consideration to Executive
in connection with this Agreement, the Company agrees to forgive and discharge
Executive's indebtedness to the Company evidenced by Executive's two Promissory
Notes to the Company dated January 14, 1994, and one note dated December 31,
1996 (the "Notes") on condition of his compliance with the terms of this
Agreement. In addition, and also conditioned upon Executive's compliance with
the terms of this Agreement, the Company agrees to forgive the amount of
$8,446.73 paid by the Company on behalf of Executive for taxes payable by
Executive on account of his purchase of restricted stock which vested on
September 1, 1996. It is further agreed that 40,000 shares of the Company's
Common Stock owned by Executive currently being held by the Company as security
for the Notes evidenced by the Company's Common Stock certificates numbered DBI
3162 through DBI 3170, for 5,000 shares each, shall be released to Executive
upon the expiration of the twenty-one (21) day period specified in Section 7(d)
of this Agreement. The Company agrees to provide to Executive accounting support
relating to this Agreement or the payments made hereunder, in the event
Executive becomes involved in a federal or state income tax audit, but such
support shall not include tax or legal advice.
5. Return of Property. Executive shall return to the Company all files,
records, documents, drawings, plans or other property of the Company in
Executive's possession within ten (10) days following the Termination Date.
6. Transfer of Property to Executive. On or before the Termination
Date, the Company agrees to transfer to Executive, for no additional
consideration from Executive: (a) the laptop computer currently utilized by
Executive, and (b) a manufactured example or demonstration unit of the NPC
Tenprinter currently in the Company's inventory. The latter product is
transferred to Executive on an as-is basis without support or warranty of any
kind. The laptop computer to be transferred to Executive is similarly
transferred to Executive on an as-is basis, but with any related and applicable
manufacturer's warranty.
7. Release of Claims by Executive.
(a) As an essential inducement to Company to enter into this
Agreement, and as consideration for the foregoing promises of Company,
Executive, for himself, his successors and assigns, hereby fully and completely
releases and waives any and all claims, complaints, rights, causes of action or
demands of whatever kind, whether known or unknown or suspected to exist by
Executive, which he has or may have against Company and its predecessors,
successors, assigns, subsidiaries and affiliates, and all officers, directors,
shareholders, employees and agents of those persons and companies ("the Released
Parties")
arising out of or relating to any actions, conduct, promises, statements,
decisions, or events occurring on or prior to the date of execution of this
Agreement, including, without limitation, Executive's employment with Company,
the resignations documented by this Agreement and the ultimate termination of
his employment with Company contemplated by this Agreement. Executive further
agrees that he will not, except as otherwise expressly permitted by applicable
federal law or regulation, institute or authorize any other party, either
governmental or otherwise, to institute any administrative or legal proceedings
against the Released Parties as a result of any claims of any kind or character
which Executive might have arising from or related to his employment with
Company, the resignations documented by this Agreement, the ultimate termination
of his employment with Company contemplated by this Agreement, and the nature
and substance of the disputes giving rise to this Agreement. Notwithstanding the
foregoing, Executive's release shall not affect his rights under the terms of
this Agreement itself or his rights to indemnity under applicable law, the
Company's By-Laws or any indemnification agreement previously entered into by
Executive and the Company.
(b) Executive's release of claims is intended to extend to and
include claims of any kind arising under the Minnesota Human Rights Act, Minn.
Stat. Section 363.01 et seq., Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. ss.2000e et seq., the Age Discrimination in Employment Act,
29 U.S.C. Section 621 et seq., the Americans with Disabilities Act, 42 U.S.C.
xx.xx. 12101 et seq., Minnesota Statutes xx.xx. 181.932 et seq. and any other
federal, state or local statute, Executive Order, or ordinance prohibiting
employment discrimination or otherwise relating to employment, as well as any
claim for breach of contract, wrongful discharge, breach of any express or
implied promise, misrepresentation, fraud, retaliation, violation of public
policy, infliction of emotional distress, defamation, promissory estoppel,
equitable estoppel, invasion of privacy or any other theory, whether legal or
equitable.
(c) Executive has been informed of his right to revoke this
Agreement insofar as it extends to potential claims under the Age Discrimination
in Employment Act by informing Company of his intent to revoke this Agreement
within seven (7) calendar days following the date appearing with his signature
below (the "Execution Date"). Executive has likewise been informed of his right
to rescind this release insofar as it relates to potential claims under the
Minnesota Human Rights Act by written notice to Company within fifteen (15)
calendar days following the Execution Date. Executive has further been informed
and understands that any such rescission must be in writing and hand-delivered
to Company or, if sent by mail, postmarked within the applicable time period,
sent by certified mail, return receipt requested, and addressed as follows:
Xxxxx X. Xxxxxxx
Chief Executive Officer
Digital Biometrics, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Executive and Company agree that if Executive exercises his right of rescission,
this Agreement shall be entirely null and void and Executive shall return to
Company any consideration paid or benefit received pursuant to this Agreement
contemporaneously with the delivery of rescission notice.
(d) Executive has also been informed that the terms of this
Agreement will be open for acceptance and execution by him for a period of
twenty-one (21) days during which time he may consider whether to accept this
Agreement. Executive and Company agree that any changes to this Agreement made
prior to signing do not restart the 21-day period.
8. Release of Claims by Company. Company hereby releases and discharges
Executive and his heirs, successors and assigns, from any and all claims,
demands, actions, liabilities, damages or rights of any kind, whether known or
unknown or suspected to exist by Company, which it ever had or may now have
against Executive and his heirs, successors and assigns, or any of them, arising
out of or resulting from any matter, fact or thing occurring prior to the
Execution Date, including, without limitation, claims pursuant to any federal,
state, or local laws, regulations or other requirements or common law, provided,
however, the Company's release does not apply to or affect in any way claims
which might be made by reason of any intentional misconduct or criminal act by
Executive.
9. Nondisclosure. Executive agrees that he will keep the financial
terms of this Agreement confidential and will not disclose such information to
any person other than his legal counsel, immediate family members, financial or
tax consultants for professional use only in connection with Executive's
affairs, or as may be required in response to a proper inquiry by a government
agency, subpoena or court order or as may be required by applicable law. Company
agrees that it will keep the financial terms of this Agreement confidential and
will not disclose such information to any persons other than: (1) to Company's
officers, directors or employees in the ordinary course and scope of their
duties, Company's legal counsel, accountants, auditors, or tax advisors, or (2)
as may be required to satisfy all disclosure and reporting requirements
applicable to it as a publicly traded company, or (3) in response to a proper
inquiry by a government agency, subpoena or court order or as may be required by
applicable law. In the event either party believes disclosure may be required in
response to a court order, subpoena or valid inquiry by a government agency, it
will give the other party sufficient notice prior to disclosure to permit such
other party to seek, at its own expense, to prevent or limit such disclosure.
10. Non-Disparagement. The Company's officers, directors and managing
agents will not make remarks disparaging of Executive. Executive will not make
any remarks disparaging of the Company, its officers, directors or managing
agents.
11. Indemnity; Cooperation in Legal Actions.
(a) Company shall indemnify Executive against any claims
arising from or related to his employment with Company to the full extent
allowed by Company By-laws, any written indemnification agreement and Delaware
law, in connection with any action or proceeding against Executive, whether
pending or threatened, for which Company is obliged to indemnify Executive.
Executive shall cooperate fully, and without additional compensation, with
Company in the defense of any action, suit, claim or proceeding commenced or
threatened against him and in the defense of any action, suit, claim or
proceeding commenced or threatened against Company in conjunction with any
action, suit, claim or proceeding commenced or threatened against him.
(b) In addition to the foregoing, following the Termination
Date, Executive agrees to provide assistance to Company (hereinafter "Litigation
Support") as may be reasonably requested by Company or its attorneys in
connection with the litigation of any action, suit, claim or proceeding
involving Company, whether now pending or to be commenced, which arises out of
or its related to any matters in which Executive was involved or for which he
was responsible during the term of his employment with Company. The Company will
compensate Executive for his Litigation Support services at the rate of $65.00
per hour and reimburse Executive for all reasonable travel and lodging expenses.
12. Consulting Services Following Termination Date. From and after the
Termination Date, Executive agrees to consult with the Company as needed and
requested by the Company from time to time. Such consultation shall relate to
the general areas of work in which Executive was engaged while an employee of
the Company. Unless another rate is agreed to by Executive and the Company, the
fees of Executive for such consulting services shall be $1,001 per eight hour
day. In performing such services for the Company, Executive shall be in the
relationship of an independent contractor, and not as an employee of the
Company. Executive acknowledges and agrees, however, that his services as a
consultant and all works created by him shall be considered work made for hire,
and all works, patents, improvements, inventions, discoveries, processes,
formulae, techniques, know-how, trade secrets and intellectual property rights,
whether or not patentable or registerable under copyright or similar statutes
(collectively, "Inventions"), directly connected with the business of the
Company, its subsidiaries or affiliates, authored or made by him while
consulting with the Company are the property of the Company. Executive shall
assign to the Company all of Executive's rights, title and interest in and to
any Inventions which have arisen pursuant to his consulting with the Company, or
may arise during the term of his employment with the Company, and relate to the
business of the Company. Executive agrees to execute and deliver to the Company,
promptly upon request, any documents which the Company may request to evidence
the Company's ownership of and exclusive rights in such Inventions.
13. Abandoned Patents. The Company acknowledges that Executive may have
been named as an inventor on one or more patent applications or patents issued
to, or owned by, the Company. The parties hereto acknowledge that renewal or
maintenance fees or annuities may periodically be due and payable on pending
applications and issued patents
on which Executive is named as an inventor. Should the Company determine that it
no longer wishes to pay a renewal or maintenance fee or annuity for a particular
pending patent application or issued patent, then the Company will use
reasonable efforts to notify Executive of its decision prior to the due date of
any such fee. Executive may elect to pay such fee or annuity at his option. Upon
presentation to the Company of proof of payment of such fee by Executive, the
Company will assign all of its rights, title and interest in and to the pending
patent application or issued patent to Executive. It is understood and agreed
that the assignment of any particular pending patent application or issued
patent by the Company to Executive shall not be deemed to be an assignment of
any counterpart patent application or issued patent. Notwithstanding the
foregoing, the failure of the Company to notify Executive of its intent not to
pay any renewal or maintenance fee on any pending patent application or issued
patent shall not give rise to any claim or cause of action against the Company
in favor of Executive or any other person for damages, and Executive waives and
covenants not to xxx the Company for any alleged damages or losses resulting
from the failure of the Company to give such notice to Executive. The rights
contained in this Section shall not be assignable by Executive.
14. Non-Competition. (a) Executive agrees, in consideration of this
Agreement and specifically the payments, covenants and benefits provided by the
Company in Sections 3, 4, 6 and 8, that during the period from the date hereof
through October 31, 1998, he will not, except for the services provided herein,
directly or indirectly: (i) enter into or engage in any business of the type and
character of the Covered Business (as hereinafter defined), whether as an
employee, consultant, partner or joint venturer, or as an officer, director,
adviser or shareholder of a corporation; (ii) call upon any of the persons,
firms, associations, corporations, organizations or governmental units listed in
Exhibit A for the purpose of soliciting, selling, diverting, taking away,
transferring or interfering with, the Company's business or prospective business
with such persons; or (iii) solicit, attempt to solicit or otherwise cause any
employee of the Company to terminate employment with the Company.
For the purposes of this Agreement, the term "Covered Business" of the
Company refers to the development, manufacture, marketing or sale of: (a)
Tenprinter fingerprint identification systems for identifying, verifying,
printing or electronically processing or transmitting fingerprints, or (b)
hand-held or portable fingerprint and mug shot systems, including, but not
limited to, systems competitive with the Squid, SR, VR or FR products or series
of products of the Company.
Executive recognizes and acknowledges that the Company's proprietary
technology is valuable on a world-wide basis and not limited to a particular
geographic area and therefore that the restrictions imposed by this Section 14
must be without geographic limitation.
15. Confidentiality. Executive hereby confirms, recognizes and
acknowledges that the business of the Company is highly competitive and that
during the course of his employment with the Company he has had access to all of
its proprietary and confidential
information. Executive therefore covenants and agrees, and in consideration of
this Agreement covenants, agrees and reaffirms, that for a period of five (5)
years from and after the date of this Agreement, he will treat and protect as
confidential and proprietary information of the Company all business plans,
technology plans, patent applications, patent rights, inventions, intellectual
property rights, techniques, know-how, trade secrets, software, technical
designs, trademarks, trademark rights, trade names, trade name rights,
copyrights, customer and supplier lists and other business and financial
information of the Company which is not otherwise publicly known or available.
Executive agrees that he will not disclose or publish the foregoing without the
written consent of the Company.
16. Improvements, Patents, Etc. Executive hereby acknowledges and
agrees that all patents, improvements, inventions, discoveries, processes,
formulae, techniques, know-how, trade secrets and other intellectual property
rights, whether or not patentable or registerable under copyright or similar
statutes (collectively, "Inventions"), directly connected with the business of
the Company, its subsidiaries or affiliates, authored or made by him while in
the employment of the Company are the property of the Company; and the Company
at its discretion and expense may undertake promotion and exploitation of such
Inventions acquired by it. Executive may, at his sole discretion, upon the
Company's request, assist the Company in such promotion and exploitation under
the terms set forth in Section 12. Executive shall assign to the Company all of
Executive's rights, title and interest in and to any Inventions which have
arisen pursuant to his employment by the Company, or may arise during the term
of his employment with the Company, and relate to the business of the Company.
Executive agrees to execute and deliver to the Company, promptly upon its
request, any documents which the Company may reasonably request to evidence the
Company's ownership of and exclusive rights in such Inventions. Pursuant to
Minnesota Statutes ss. 181.78, Executive is notified that Executive's
obligations to assign or offer to assign any of the Executive's rights in an
Invention to the Company shall not apply to an Invention for which no equipment,
supplies, facility or trade secret information of the Company was used and which
was developed entirely on the Executive's own time, and (i) which does not
relate (a) directly to the business of the Company or (b) to the Company's
actual or demonstrably anticipated research or development, or (ii) which does
not result from any work performed by the Executive for the Company. Any
provision which purports to apply to such an Invention is to that extent against
the public policy of this state and is to that extent void and unenforceable.
17. Communications. There shall be no communication by Executive or the
Company to third parties concerning Executive's separation until such time as an
appropriate press release (to be approved by Executive and by Xxxxx X. Xxxxxxx
on behalf of the Company's Board of Directors) shall have been issued.
Thereafter, internal communication to the Company's employees shall be made in
terms to be mutually agreed upon. Any communications to third parties thereafter
shall be in terms consistent with the substance of the press release described
above.
18. Entire Agreement, Amendment. Executive acknowledges that the only
consideration for signing this Agreement are the terms stated herein and that no
other promises or agreements of any kind have been made to him by any person or
entity whatsoever to cause him to sign this Agreement. The payments provided for
in this Agreement are to be made for, among other things, full satisfaction of
any claim, right or entitlement of Executive to compensation or benefits of any
kind, whether in the form of salary, fringe benefits, bonus, stock options,
commissions, incentive pay, severance pay, damages or otherwise. The foregoing
shall not be deemed to release, or operate as a waiver of, any rights which
Executive may have to exercise any stock option previously granted, in
accordance with its terms. All payments from the Company to Executive shall be
subject to all legally required reporting, withholding, deductions and taxation.
Executive acknowledges that the Company has made no representation whatsoever to
him regarding the appropriate tax treatment of any payments or benefits to be
received by him under the terms of this Agreement. Executive and Company agree
that this Agreement is the entire agreement between them, that it supersedes any
prior agreements regarding any of the subject matter of the Agreement, and that
any such prior agreements are now null and void. This Agreement can be modified
only in a writing which must be signed by both Executive and Company to be
effective.
19. No Admission of Wrongdoing. Executive and Company agree that this
Agreement is not an admission by Company, the Released Parties, or Executive of
any wrongdoing or of any acts that might be considered a violation of federal,
state or local law, with respect to the employment of Executive or otherwise,
and that this Agreement should not be interpreted as such.
20. Headings. Paragraph headings used herein are for convenience only
and are not part of this Agreement and shall not be used in construing it.
21. Assignment, Successors. Executive may not assign any of his rights
or delegate any of his duties or obligations under this Agreement. The rights
and obligations of Company under this Agreement shall inure to the benefit of
and be binding upon the successors (by purchase, merger, consolidation or
otherwise) and assigns of Company.
22. Governing Law. The validity, interpretation, construction,
performance, enforcement and remedies of or relating to this Agreement, and the
rights and obligations of the parties hereunder, shall be governed by the laws
of the State of Minnesota.
23. Opportunity to Review. Executive represents that he has read this
Agreement and agrees to all of the conditions and obligations set forth.
Further, Executive represents that he has had adequate time to consider the
terms of this Agreement, that he is voluntarily and without duress entering into
this Agreement with full understanding of its meaning, and that he has consulted
extensively with legal counsel of his choosing for advice in connection with
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
signatures below.
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Xxxxx X. Xxxxxxxx
DIGITAL BIOMETRICS, INC.
By
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Xxxxx X. Xxxxxxx
Its Chief Executive Officer
