Exhibit
10.11
AGREEMENT AND RELEASE
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THIS AGREEMENT AND RELEASE is by and between Xxxx Xxxxxxxx ("Xx.
Xxxxxxxx"), a resident of Tomball, Texas, and DA Consulting Group, Inc ("DACG"),
a Texas corporation, having its principal place of business in Houston, Texas.
WINESSETH:
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Xx. Xxxxxxxx, at various times, has been an employee and officer of DACG
and certain of its affiliated and subsidiary companies or their predecessors or
successors in interest;
Xx. Xxxxxxxx'x employment with DACG and any of its affiliated and
subsidiary companies will terminate effective on August 15,2000;
Xx. Xxxxxxxx and DACG desire to avoid the expense, delay and uncertainty
attendant to any disputes or claims which may arise from Xx. Xxxxxxxx'x
employment with and termination from his positions and employment with DACG or
any of its parent, sister, affiliated and subsidiary companies and their
predecessors or successors in interest including without limitation DA
International, Inc. (collectively, the "DACG Companies");
Xx. Xxxxxxxx desires to release each of the DACG Parties, as defined in
this Agreement and Release, individually and collectively, from all claims or
causes of action, if any, he may have arising from or relating to his employment
or service or termination from DACG or any of the other DACG Companies; and
Xx. Xxxxxxxx and DACG desire to establish their respective rights and
obligations for the future.
Now, therefore, for and in consideration of the following mutual covenants
and promises, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Xx. Xxxxxxxx and DACG hereby
agree:
1. Separation. Xx. Xxxxxxxx has separated from his position and
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employment with DACG to be effective on August 15, 2000. Xx. Xxxxxxxx
acknowledges and agrees that he has no authority to and will not act for DACG in
any capacity on or after August 15,2000 and that DACG xxxx pay his regular
salary and earned vacation to the effective date of this agreement, less
customary withholding for taxes and applicable deductions, and that such payment
will be full satisfaction of all wages, incentive compensation, bonuses, or any
other compensation owed him by any DACG Company.
2. Separation Payment. Provided that he complies fully with the terms
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and conditions of this Agreement and Release, DACG agrees to pay to Xx. Xxxxxxxx
$8,769.60 in lieu of accrued unused vacation and $7,325.98 as full payout as
part of an Executive Deferred Compensation plan
in his final paycheck, plus $204,483.92 minus customary withholding for taxes
payable in 24 installments as follows: first 2 payments in the amount of
$17,686.83 and the remaining 22 in equal payments of $ 7,686.83; which will be
paid on the fifteenth and last day of each month beginning on August 31, 2000
and ending on August 15, 2001. DACG reserves the right, at anytime, to
accelerate the payments due to Xx. Xxxxxxxx by making a single lump sum payment
equal to the total of the installments not yet paid minus appropriate
withholding taxes. In addition, as agreed in Xx. Xxxxxxxx'x Employment Contract
dated January 1, 1998, section 5.c.ii, all outstanding stock options held by Xx.
Xxxxxxxx shall become fully vested and exercisable. Options will be exercisable
for the time period in which Xx. Xxxxxxxx continues to receive separation
payments under this Agreement from DACG, with a minimum of three(3) months to
exercise from his last day of employment (as per the Company's Stock Option
plan), but not beyond August 15,2001. The following options have been identified
to be outstanding on the date of Xx. Xxxxxxxx'x separation from employment with
DACG:
Number of Options Price/Share (Strike Price) Date of Grant
25,200 $ 6.55 8/1/97
4,200 $ 14.50 2/11/98
12,458 $ 15.00 2/5/99
4,042 $ 15.00 2/5/99
10,750 $ 3.69 11/2/99
5,750 $ 3.44 1/3/00
10,000 $ 3.44 1/3/00
In addition, due to reductions in force which affected eligible plan
participants, the Company's 401(k) plan was partially terminated in March, 2000.
As a result, eligible participants who were affected by a reduction in force or
certain involuntary terminations without cause, received full vesting. Xx.
Xxxxxxxx'x termination meets this criteria, therefore full vesting of his 401(k)
will take place upon his last day of employment.
The Company and Xx. Xxxxxxxx agree that the payments and other
considerations received under this Agreement will constitutes as full payment to
Xx. Xxxxxxxx as stated in paragraph 5.(c), of his Employment Agreement dated
January 1, 1998 as well as any monies associated with a Executive Deferral
Compensation plan and any other special considerations provided to Xx. Xxxxxxxx
under this Agreement.
3. Prior Rights and Obligations. Except as herein set forth, this
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Agreement and Release extinguishes all rights, if any, which Xx. Xxxxxxxx may
have, and obligations, if any, which any of the DACG Companies may have,
contractual or otherwise, relating to the employment or termination of
employment of Xx. Xxxxxxxx with DACG or any of the other DACG Companies
including without limitation all tights or benefits he may have under any
employment contract, incentive compensation plan, or stock option plan with any
DACG Company. However, Xx. Xxxxxxxx agrees that he will
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remain bound by the Covenant Not to Compete provisions of the January 31, 1998
employment agreement.
4. Expenses. Xx. Xxxxxxxx shall, within ten (10) days of his execution
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of this Agreement, submit all actual, reasonable and customary expenses incurred
by him in the course of his employment with proper documentation and DACG shall
reimburse such expenses promptly.
5. Company Assets. Xx. Xxxxxxxx hereby represents and warrants that he
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has no claim or tight, title or interest in any property designated on any DACG
Companies' books as property or assets of any of the DACG Companies. Promptly
after the effective date of his resignation, Xx. Xxxxxxxx shall deliver to DACG
any such property in his possession or control, including, without limitation,
any equipment and any credit cards furnished by DACG Companies for his use. DACG
has agreed to allow Xx. Xxxxxxxx to retain a laptop computer until December 31,
2000, whereupon Xx. Xxxxxxxx will return the computer to DACG.
6. Proprietary and Confidential Information. In accordance with Mr.
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Xxxxxxxx'x existing and continuing obligations, Xx. Xxxxxxxx agrees and
acknowledges that the various DACG Companies have developed and own valuable
"Proprietary and Confidential Information" which constitutes valuable and unique
property including, without limitation, concepts, ideas, plans, strategies,
analyses, surveys, and proprietary information related to the past, present or
anticipated business of the various DACG Companies. Except as may be required by
law, Xx. Xxxxxxxx agrees that he will not at any time disclose to others, permit
to be disclosed, use, permit to be used, copy or permit to be copied, any such
Proprietary and Confidential Information (whether or not developed by Xx.
Xxxxxxxx) without DACG's prior written consent. Except as may be required by
law, Xx. Xxxxxxxx further agrees to maintain in confidence any Proprietary and
Confidential Information of third parties received or of which he has knowledge
as a result of his employment with DACG or any DACG Company.
7. Documents. Xx. Xxxxxxxx agrees to deliver to DACG to the attention
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of Xxxxx Xxxxxxxxxxxx all correspondence, memoranda, notes, records, data or
information, analysis, or other documents and all copies thereof, made, composed
or received by Xx. Xxxxxxxx, solely or jointly with others, and which are in Xx.
Xxxxxxxx'x possession, custody or control and which are related in any manner to
the past, present or anticipated business of any of the DACG Companies.
8. Cooperation. Xx. Xxxxxxxx shall cooperate with the DACG Companies to
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the extent reasonably required in all matters relating to his employment or the
winding up of his pending work on behalf of any DACG Company and the orderly
transfer of any such pending work as designated by DACG. This obligation of
cooperation shall continue indefinitely subject to Xx. Xxxxxxxx'x reasonable
availability and shall include, without limitation, assisting DACG and its
counsel in preparing and defending against any claims which may be brought
against DACG or any DACG Company or responding to any inquiry by any
governmental agency or stock exchange. DACG's
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requests for Xx. Xxxxxxxx'x cooperation as may be required from time to time
shall be reasonable and Xx. Xxxxxxxx agrees that he shall be reasonable in
providing such cooperation, taking into account the needs of the DACG Companies
and the position he may have with another employer at the time such cooperation
is required. Xx. Xxxxxxxx shall take such further action and execute and such
further documents as may be reasonably necessary or appropriate in order to
carry out the provisions and purposes of this Agreement. In the event Xx.
Xxxxxxxx is required to incur expenses in cooperating with any DACG Company,
DACG shall reimburse such actual, reasonable and customary expenses as are
approved in advance in writing.
9. DACG Parties. Xx. Xxxxxxxx agrees that DACG, its parent, sister,
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affiliated and subsidiary companies, past and present, including but not limited
to DA International, Inc., and their respective employees, officers, directors,
shareholders, agents and representatives, past or present, shall be defined
collectively, including DACG, as the "DACG Parties" and each of them, corporate
or individual, individually as a "DACC* Party."
10. Xx. Xxxxxxxx'x Representation. Xx. Xxxxxxxx represents, warrants and
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agrees that he has not filed any claims, appeals, complaints, charges or
lawsuits against any of the DACG Parties with any governmental agency or court
and that he will not file or permit to he filed or accept benefit from any
claim, complaint or petition filed with any court by him or on his behalf at any
time hereafter; provided, however, this shall not limit Xx. Xxxxxxxx from filing
an action for the sole purpose of enforcing his rights under this Agreement and
Release. Further, Xx. Xxxxxxxx represents and warrants that no other person or
entity has any interest or assignment of any claims or causes of action, if any,
he may have against any DACG Party, which have been satisfied fully by this
Agreement and Release and which he now releases in their entirety, and that he
has not sold, assigned, transferred, conveyed or otherwise disposed of any of
the claims, demands, obligations, or causes of action referred to in this
Agreement and Release, and that he has the sole right and exclusive authority to
execute this Agreement and Release and receive the consideration provided.
11. Release. Xx. Xxxxxxxx agrees to release, acquit and discharge and
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does hereby release, acquit and discharge the DACG Parties, individually and
collectively, from any and all claims and from any and all causes of action
against any of the DACG Patties, of any kind or character, whether now known or
not known, he may have against any such DACG Party including, but not limited
to, any claim for salary, benefits, expenses, costs, damages, compensation,
remuneration or wages; and all claims or causes of action arising from his
employment, termination of employment, or any alleged discriminatory employment
practices, including but not limited to any and alt claims or causes of action
arising under the Age Discrimination in Employment Act, as amended, 29 U.S.C.
'621, et seg. and any and all claims or causes of action arising under any other
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federal, state or local laws pertaining to discrimination in employment or equal
employment opportunity. This release also applies to any claims brought by any
person or agency or class action under which Xx. Xxxxxxxx may have a right or
benefit.
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12. No Admissions. Xx. Xxxxxxxx expressly understands and agrees that
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the terms of this Agreement and Release are contractual and not merely recitals
and that the agreements herein and consideration paid is to compromise doubtful
and disputed claims, avoid litigation, and buy peace, and that no statement or
consideration given shall he construed as an admission of liability by DACG, all
such liability being expressly denied. This Agreement and Release does not
constitute evidence of unlawful conduct or wrongdoing by DACG. By his execution
of this Agreement and Release, Xx. Xxxxxxxx acknowledges and agrees under oath
that (1) he knows of no act, event, or omission by any DACG Party which is
unlawful or violates any governmental rule or regulation or any rule or
regulation of any stock exchange, (ii) he has not committed nor has he been
requested to commit during his employment with DACG or any DACG Company, any act
which is unlawful or which violates any governmental rule or regulation or any
rule or regulation of any stock exchange, (iii) he has not requested any DACG
Party to commit any unlawful act or violate any governmental rule or regulation
or any rule or regulation of any stock exchange, and (iv) neither he nor any
other person employed by or contracting with any DACG Party has been subjected
to any adverse action because any such person refused to commit any unlawful act
or violate any governmental rule or regulation or any rule or regulation of any
stock exchange.
13. Covenant Not to Compete. Xx. Xxxxxxxx agrees that he will remain
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bound by the terms Covenant Not to Compete in Paragraph 6 of his January 31,
1998 employment agreement.
14. Remedies. Xx. Xxxxxxxx and DACG agree that, because damages at law
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for any breach or nonperformance of this Agreement and Release by Xx. Xxxxxxxx,
while recoverable, will be inadequate, this Agreement and Release may be
enforced in equity by specific performance, injunction, accounting or otherwise.
Further, the parties agree that in the event Xx. Xxxxxxxx violates the
provisions of paragraphs 6 or 17 of this Agreement and Release the damage to
DACG or any DACG Party shall, at a minimum, exceed the sum of fifty thousand
dollars ($50,000.00) and that such sum shall be the amount of liquidated damages
for such breach but shall not preclude DACG from recovering actual damages in
such greater amount as may be sustained.
15. Enforcement of Agreement and Release. No waiver or nonaction with
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respect to any breach by the other party of any provision of this Agreement and
Release, nor the waiver or nonaction with respect to any breach of the
provisions of similar agreements with other employees shall be construed to be a
waiver of any succeeding breach of such provision, or as a. waiver of the
provision itself. Should any provisions hereof be held to be invalid or wholly
or partially urn-enforceable, such provisions shall be revised and reduced in
scope so as to be valid and enforceable.
16. Choice of Law. This Agreement shall be governed by and construed and
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enforced, in all respects, in accordance with the law of the State of Texas
without regard to the principles of conflict of law except as preempted by
federal law.
17. Merger. This Agreement and Release supersedes, replaces and merges
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all previous agreements and discussions relating to the same or similar subject
matters between Xx. Xxxxxxxx and
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DACG and constitutes the entire agreement between Xx. Xxxxxxxx and DACG with
respect to the subject matter of this Agreement and Release. This Agreement and
Release may not be changed or terminated orally, and no change, termination or
waiver of this Agreement and Release or any of the provisions herein contained
shall be binding unless made in writing and signed by all parties, and in the
case of DACG, by an authorized officer.
18. No Derogatory Comments. Except as required by judicial process or
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governmental rule or regulation, Xx. Xxxxxxxx shall refrain from making public
or private comments relating to any DACG Party which are derogatory or which may
tend to injure any such party in such party's business, public or private
affairs.
19. Confidentiality. Xx. Xxxxxxxx agrees that he will not disclose the
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terms of this Agreement or the consideration received from DACG to any other
person, except his attorney or financial advisors and only on the condition that
they keep such information strictly confidential; provided, however, that the
foregoing obligation of confidence shall not apply to information that is
required to be disclosed by any applicable law, rule or regulation of any
governmental authority.
20. ADEA Rights. Xx. Xxxxxxxx acknowledges and agrees:
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(i) that he has at least twenty-one days to review this Agreement
and Release;
(ii) that he has been advised in writing to consult with an
attorney regarding the terms of this Agreement and Release prior to
executing this Agreement and Release;
(iii) that, if he executes this Agreement and Release, that he has
seven days following the execution of this Agreement and Release to revoke
this Agreement and Release;
(iv) that this Agreement and Release shall not become effective or
enforceable until the revocation period has expired;
(v) that he does not, by the terms of this Agreement and Release,
waive claims or rights that may arise after the date he executes this
Agreement and Release;
(vi) that he is receiving, pursuant to this Agreement and Release,
consideration in addition to anything of value to which he is already
entitled; and
(vii) that this Agreement and Release is written in such a manner
that he understands his rights and obligations.
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21. Agreement and Release Voluntary. Xx. Xxxxxxxx acknowledges and
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agrees that he has carefully read this Agreement and Release and understands
that it is a release of all claims, known and unknown, past or present including
all claims under the Age Discrimination in Employment Act. He further agrees
that he has entered into this Agreement and Release for the above stated
consideration. He warrants that he is fully competent to execute this Agreement
and Release which be understands to be contractual. He further acknowledges that
he executes this Agreement and Release of his own free will, after having a
reasonable period of tune to review, study and deliberate regarding its meaning
and effect, and after being advised to consult an attorney, and without reliance
on any representation of any kind or character not expressly set forth herein.
Finally, he executes this Agreement and Release fully knowing its effect and
voluntarily for the consideration stated above.
22. Notices. Any notices required or permitted to be given under this
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Agreement and Release shall be properly made if delivered in the case of DACG
to:
DA Consulting Group, Inc.
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxxx
and in the case of Xx. Xxxxxxxx to: 00000 Xxxxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxx
00000
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IN WITNESS WHEREOF, the parties have caused this Agreement and Release to be
executed in multiple counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument, this
day of , 2000 at Houston, Xxxxxx County, Texas, to be effective
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the eighth day following execution by Xxxx Xxxxxxxx unless earlier revoked.
8-15-2000 /s/ Xxxx Xxxxxxxx
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Date Xxxx Xxxxxxxx
STATE OF TEXAS
COUNTY OF XXXXXX
I, Xxxx Xxxxxxxx, after first being duly sworn and under penalty of
perjury, state that the statements to which I acknowledge and agree in paragraph
14 of this Agreement and Release are true and correct.
Subscribed and sworn to before me, this 15th day of August, 2000.
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/s/ Xxxxx Xxxxxxxx
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NOTARY PUBLIC in and for
Texas
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8/15/00 DA CONSULTING GROUP. INC.
Date
By /s/ Xxxxx Stideleatly
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