SEPARATION AGREEMENT AND RELEASE OF CLAIMS
It is hereby agreed by and between IVI Publishing, Inc. ("IVI
Publishing") and Xxx X. Xxxxxxx ("Xxxxxxx") as follows:
WHEREAS, Solomon is currently the President and CEO of IVI Publishing,
and has voluntarily resigned from her position;
WHEREAS, Solomon wishes to receive certain payments and other valuable
consideration to which she would not otherwise be entitled; and
WHEREAS, the parties wish to set forth the terms of their agreement in
writing.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants contained herein, and for other good and valuable
consideration the receipt and sufficiency of which is specifically acknowledged
by the parties, IVI Publishing and Solomon agree as follows:
1. Last Date of Employment. IVI Publishing and Solomon agree that
Solomon has resigned from her position as President and CEO effective October 8,
1997 but has remained and will remain an employee of IVI Publishing through
December 31, 1997. During the period from October 31, 1997 through December 31,
1997, Solomon has and will assist the interim CEO as needed in the transition.
IVI Publishing will, upon the signing of this Separation Agreement and Release,
and the expiration of the 15 and 21-day periods as set forth in Paragraphs 12
and 14 without rescission, pay Xxxxxxx xxxxxxxxx in an amount equivalent to her
last salary excluding any bonuses or other payments, less appropriate
deductions, to be paid according to the normal payroll schedule, for the period
January 1, 1998 through June 30, 1999. Solomon's severance payments shall not be
reduced by compensation from any other source.
2. Stock Options. Solomon has been granted incentive stock options to
purchase Common Stock of the Company as set forth on Exhibit B hereto (the
"Options"). The Options are hereby amended to provide that (i) the Options shall
continue to vest according to their respective vesting schedules set forth on
Exhibit B until June 30, 1999; (ii) each such Option shall be exercisable at any
time on or before the expiration date for such Option as reflected on Exhibit B,
to the extent such Option has vested; (iii) each such Option shall terminate at
the close of business on the expiration date for such Option as reflected on
Exhibit B and all rights of Solomon under the Option shall be forfeited as of
that date; and (iv) if any of the Options are not exercised on or before the
date necessary to obtain incentive stock option treatment, such Option shall be
deemed to be a nonqualified stock option and will not be treated as an incentive
stock option, as defined under Section 422, or any successor provision, of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder.
3. Return of Property. Solomon shall, upon the completion of her duties
on January 1, 1998, return to IVI Publishing all equipment, and all documents or
other items, whether on computer disk or otherwise, and all copies thereof,
within her possession or control belonging to IVI Publishing or in any manner
relating to the business of, or the services provided by IVI Publishing, or the
duties and services performed by Solomon on behalf of IVI Publishing. Solomon
acknowledges, by her signature to this Separation Agreement and Release, that
she has returned all such documents and materials, and has not retained any
copies of such documents and materials.
4. Employment Agreement. Solomon acknowledges and agrees that she will
continue to be bound by Articles 5, 6, and 8 of the Employment Agreement dated
August 7, 1996, except that the Noncompetition Covenants are extended from one
(1) year from the termination of employment to eighteen (18) months from the
termination of employment and thus are extended through June 30, 1999.
5. Public Statements. IVI Publishing and Solomon acknowledge and agree
that IVI Publishing will not, in any public statements, indicate that Solomon
resigned due to any performance concerns, and shall provide the information
reflected in Exhibit A.
6. Communications with Prospective Employers. IVI Publishing and
Solomon agree that all inquiries from prospective employers of Solomon should be
directed to Xxxxxx Xxxxxxx, IVI Publishing, Inc., 0000 Xxxxxx Xxxxx Xxxxx,
Xxxxxxxxxxx, XX 00000-0000 (tel: 000-0000), and that Xx. Xxxxxxx will inform the
individual inquiring that it is the policy of IVI Publishing to confirm only
dates of employment and positions held of former employees. Xx. Xxxxxxx will
refer the prospective employers, however, to the reference letter which will be
issued in the form set forth on Exhibit A upon receipt by IVI Publishing of the
signed original Separation Agreement and Release without rescission. IVI
Publishing Board members, if contacted, will similarly inform the individual
inquiring that it is the policy of IVI Publishing to confirm only dates of
employment and positions held of former employees but will refer the prospective
employers to the reference letter in the form set forth on Exhibit X. Xxxxxxx
understands and agrees that she will inform prospective employers that they
should contact Xx. Xxxxxxx in relation to any inquiry regarding Solomon's
employment.
7. Board of Directors. IVI Publishing and Solomon acknowledge and agree
that Solomon has resigned from the Board of Directors effective as of December
31, 1997.
8. Release of Claims by Solomon. In consideration of the severance pay
and other benefits set forth in this Separation Agreement and Release, to which
Solomon would not otherwise be entitled, Solomon, for herself, her heirs,
representatives, agents, successors and assigns, hereby releases and forever
discharges IVI Publishing and any parent, subsidiary, and related entity, and
all present and past officers, directors, shareholders, employees, agents and
representatives of IVI Publishing, or of any parent, subsidiary, or related
entity and the successors and assigns of each, from any and all manner of
claims, demands, actions, causes of action, administrative claims, liability,
damages, claims for punitive or liquidated damages, claims for attorney's fees,
costs and disbursements, individual or class action claims, or demands of any
kind whatsoever, including but not limited to any claims for wages, vacation,
severance, benefits, any claims arising by statute, in tort or contract, any
claims arising under Title VII of the Civil Rights Act, 42 U.S.C. ss. 2000e et
seq., the Age Discrimination in Employment Act, 29 U.S.C. ss. 621 et seq., the
Americans with Disabilities Act, 42 U.S.C. ss. 12101, et seq., the Employee
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. ss. 1001, et seq., the
Family and Medical Leave Act, 29 U.S.C. ss. 2601, et seq., the Minnesota Human
Rights Act, Minn. Stat. Ch. 363, the Minneapolis Civil Rights Ordinance, any
claims under her Employment Agreement dated August 7, 1996, any other claims
arising under federal, any state or local law, or any claims in any manner
relating to Solomon's employment or Solomon's association with or separation
from IVI Publishing, arising in law or equity, whether known, suspected or
unknown, and however originating or existing, from the beginning of time to the
date of the signing of this Separation Agreement and Release.
Solomon agrees to and hereby does release and discharge IVI Publishing,
and any parent, subsidiary, and any related entity, and all present and past
officers, directors, shareholders, employees, agents and representatives of IVI
Publishing, any parent, subsidiary, or related entity, and the successors and
assigns of each, not only from any and all claims that Solomon could make on
Solomon's own behalf, but also those that may or could be brought by any other
person, entity or organization on Solomon's behalf, and Solomon specifically
waives any right to become, and agrees not be become, a member of any class in
any proceeding or case in which a claim or claims against IVI Publishing, or any
parent, subsidiary, or any related entity, or any present or past officers,
directors, shareholders, employees, agents or representatives of IVI Publishing,
or of any parent, subsidiary, or related entity, and the successors and assigns
of each, arise, in whole or in part, from any event which occurred from the
beginning of time to the date of this Separation Agreement and Release.
Solomon further agrees that she will not institute any civil action,
administrative proceeding or other legal proceeding of any nature against IVI
Publishing, or any parent, subsidiary, or any related company or any present or
past officers, directors, shareholders, employees, agents or representatives of
IVI Publishing, or of any parent, subsidiary, or any related company, or the
successors and assigns of each, including but not limited to any action or
proceeding raising claims for wages, vacation, severance, benefits, any claims
arising by statute, in tort or contract, any claims arising under Title VII of
the Civil Rights Act, 42 U.S.C. ss. 2000e et seq., the Age Discrimination in
Employment Act, 29 U.S.C. ss. 621 et seq., the Americans with Disabilities Act,
42 U.S.C. ss. 12101, et seq., the Employee Retirement Income Security Act of
1974 (ERISA), 29 U.S.C. ss. 1001, et seq., the Family and Medical Leave Act, 29
U.S.C. ss. 2601, et seq., the Minnesota Human Rights Act, Minn. Stat. Ch. 363,
the Minneapolis Civil Rights Ordinance, any claims under her Employment
Agreement dated August 7, 1996, any other claims arising under federal, any
state or local law, or any claims in any manner relating to Solomon's employment
or Solomon's association with or separation from IVI Publishing, arising in law
or equity, whether known, suspected or unknown, and however originating or
existing, from the beginning of time to the date of the signing of this
Separation Agreement and Release. If, for any reason, an administrative or other
legal proceeding results in any relief to Solomon based on any claims or demands
noted in this Separation Agreement and Release, Solomon further agrees that the
consideration provided to Solomon under this Separation Agreement and Release
shall be in full satisfaction of any such claims or demands, and that Solomon
will not be entitled to any further relief of any kind.
Nothing in this Release of Claims would affect any claim by Solomon
against any individual Board member which is a claim based on a commercial
transaction unrelated to IVI Publishing, or Solomon's employment or separation
from IVI Publishing, or the individual's capacity as a Board member of IVI
Publishing.
9. Release of Claims by IVI Publishing. IVI Publishing, any parent,
subsidiary, and related entity, and all present and past officers, directors,
shareholders, employees, agents and representatives of IVI Publishing, all in
their capacity as such, and the successors and assigns of each, hereby release
and forever discharge Solomon, her heirs, representatives, agents, successors
and assigns, from any and all manner of demands, actions, causes of action,
administrative claims, liability, damages, claims for punitive or liquidated
damages, claims for attorney's fees, costs and disbursements, individual or
class action claims, or demands of any kind whatsoever, any claims arising under
federal, any state or local law, or any claims in any manner relating to
Solomon's employment or her association with or separation from IVI Publishing,
arising in law or equity, whether known, suspected or unknown, and however
originating or existing, from the beginning of time to the date of the signing
of this Separation Agreement and Release.
IVI Publishing agrees to and hereby does release and discharge Solomon,
her heirs, representatives, agents, successors and assigns, not only from any
and all claims that it could make on its own behalf, but also those that may or
could be brought by any other person, entity or organization on his behalf or
for his benefit, and IVI Publishing specifically waives any right to become, and
agrees not to become, a member of any class in any proceeding or case in which a
claim or claims against Solomon, her heirs, representatives, agents, successors
and assigns, arise, in whole or in part, from any event which occurred from the
beginning of time to the date of this Separation Agreement and Release.
IVI Publishing further agrees that it will not, directly or indirectly,
institute any civil action, administrative proceeding or other legal proceeding
of any nature against Solomon, her heirs, representatives, agents, successors
and assigns, arising in law or equity, whether known, suspected or unknown, and
however originating or existing, from the beginning of time to the date of the
signing of this Separation Agreement and Release of Claims. If, for any reason,
an administrative or other legal proceeding results in any relief to IVI
Publishing based on any claims or demands noted in this Separation Agreement and
Release of Claims, IVI Publishing further agrees that the consideration provided
under this Separation Agreement and Release of Claims, shall be in full
satisfaction of any such claims or demands, and that it will not be entitled to
any further relief of any kind.
Nothing in this Release of Claims would affect any claim by IVI
Publishing or any Board member of IVI Publishing against Solomon which is a
claim based on a commercial transaction unrelated to IVI Publishing, or
Solomon's employment or separation from IVI Publishing, or the individual's
capacity as a Board member of IVI Publishing.
10. Affirmation Regarding Pending Matters. Solomon affirms that she has
not filed or instituted any charge, complaint, or action against IVI Publishing,
or any parent, subsidiary, or any related company or any present or past
officers, directors, shareholders, employees, agents and representatives of IVI
Publishing, or of any parent, subsidiary, or any related company, or the
successors and assigns of each. If there is outstanding any such charge,
complaint, or action, Solomon agrees to seek its immediate withdrawal and
dismissal with prejudice. If for any reason the charge, complaint, or action is
not dismissed, Solomon agrees not to voluntarily testify, provide documents, or
otherwise participate, or to permit others to voluntarily participate on
Solomon's behalf, in any further proceeding arising therefrom or associated
therewith and to execute such other papers or documents as may be necessary to
have the charge dismissed with prejudice.
11. Notification of Rights under the Minnesota Human Rights Act (Minn.
Stat. ch. 363) and Federal Age Discrimination in Employment Act (29 U.S.C. ss.
621 et seq. ). Solomon is hereby notified of her right to rescind the release of
claims in regard to claims arising under the Minnesota Human Rights Act, Minn.
Stat. ch. 363, within (15) calendar days, and in regard to claims arising under
the Federal Age Discrimination in Employment Act, 29 U.S.C. ss. 621, et seq.,
within seven (7) calendar days, of her signing of this Separation Agreement and
Release, rescission periods to run concurrently. The rescission must be in
writing and delivered or mailed to: Xxxxxx Xxxxxxx, IVI Publishing, Inc., 0000
Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxxx, XX 00000-0000. If delivered by mail, the
rescission must be post-marked within the required period, properly addressed to
the individual noted above at the above address, and sent by certified mail,
return receipt requested. It is further understood that, if Solomon rescinds the
release of claims in accordance with this Paragraph 11, that Solomon will not be
entitled to the payments as set forth in Paragraph 1 (apart from her salary
through her last date of employment), and Solomon will immediately reimburse IVI
Publishing for any such payments, nor shall she be entitled to the benefit of
the amendment to her stock option agreements as set forth in Paragraph 2. This
Separation Agreement and Release will be effective upon the expiration of the
15-day period noted in this Paragraph 11 without rescission.
12. Acknowledgment of Reading and Understanding/Consultation with
Counsel. By Solomon's signature to this Separation Agreement and Release,
Solomon acknowledges and agrees that she has carefully read and understood all
provisions of this Separation Agreement and Release, and that she has entered
into this Separation Agreement and Release knowingly and voluntarily. Solomon
further acknowledges that IVI Publishing has advised her to consult with counsel
prior to signing this Separation Agreement and Release, and that Solomon has in
fact been represented by counsel throughout the negotiations for and signing of
this Separation Agreement and Release.
13. Period for Consideration. By her signature to this Separation
Agreement and Release, Solomon acknowledges that IVI Publishing has informed her
that she has 21 days from the date of receipt of this Separation Agreement and
Release to consider whether its terms are acceptable to her, and that she has
had the benefit of the 21-day period, or has chosen, of her own volition and on
advice of counsel, to waive the 21-day period.
14. Nonadmission. It is expressly understood and agreed that this
Separation Agreement and Release does not constitute, nor shall either be
construed as an adjudication or finding on the merits of any potential claim by
Solomon or IVI Publishing, nor does this Separation Agreement and Release
constitute, nor shall either be in any manner construed, as an admission of any
wrongful conduct or liability on the part of Solomon or of IVI Publishing, or
any parent, subsidiary, or any related company of IVI Publishing or any present
or past officers, directors, shareholders, employees, agents or representatives
of IVI Publishing, or of any parent, subsidiary, or any related company, or the
successors and assigns of each, by all of whom any such liability is expressly
denied.
15. Nondisparagement. Solomon and IVI Publishing agree that neither
will make any disparaging or negative remarks, whether written or oral,
regarding the other.
16. Indemnification. IVI Publishing will indemnify Solomon as a former
officer, director and employee in accordance with applicable Minnesota law.
17. Confidentiality. Solomon understands and agrees that the fact of,
terms of, and any negotiations relating to this Separation Agreement and Release
shall remain confidential, and that she shall not disclose any such information
to any person or entity, other than counsel, her accountant or tax advisor, her
spouse, unless specifically compelled by subpoena, summons or court order, or by
taxing authorities, without the express written consent of IVI Publishing.
Solomon specifically acknowledges and agrees that this Paragraph 17 prevents
her, among other matters, from sharing any information relating to this
Separation Agreement and Release with any current or past employee of IVI
Publishing. Solomon further understands and agrees that any individual to whom
information is disclosed in accordance with this Paragraph 17 shall be informed
of these confidentiality obligations. Solomon specifically warrants, by her
signature to this Separation Agreement and Release, that she has not made any
disclosures beyond those authorized by this Paragraph 17. IVI Publishing
understands and agrees that the fact of, terms of, and any negotiations relating
to this Separation Agreement and Release shall remain confidential and that it
shall not disclose any such information to any person or entity, other than
those within IVI Publishing that need to know such information, counsel,
accountants or tax advisors, except as specifically compelled by subpoena,
summons, or court order, or by taxing authorities. IVI Publishing further
understands and agrees that any individual to whom information is disclosed in
accordance with this Paragraph 17 shall be informed of the confidentiality
obligations. IVI Publishing specifically warrants that it has not made any
disclosures beyond those authorized by this Paragraph 17.
18. Successors and Assigns. This Agreement shall inure to the benefit
of the successors and assigns of IVI Publishing, and the heirs and estate of
Solomon.
19. Arbitration. Solomon and IVI Publishing agree to submit to final
and binding arbitration any and all disputes, claims or controversies for breach
of this Separation Agreement and Release, except for any disputes, claims or
controversies arising out of a violation of those provisions noted in Paragraph
4 of this Separation Agreement and Release. The Rules of the American
Arbitration Association ("AAA") shall apply to such arbitration. Either party
may initiate an arbitration proceeding under this Separation Agreement and
Release by giving the other party written notice specifying the issues to be
resolved in arbitration. A single arbitrator shall be selected by agreement
between Solomon and IVI Publishing from a list of 12 or more arbitrators
proposed by the AAA, or Solomon and IVI Publishing may agree to a person not on
the list. If IVI Publishing and Solomon fail to agree on a person to serve as
arbitrator within 30 days of delivery of the list of the proposed arbitrators by
the AAA, then IVI Publishing and Solomon may ask the AAA to designate an
arbitrator. In addition to any other procedures provided for under AAA rules,
upon written request, each party shall, at least 14 days before the date of any
hearing, provide the other party with copies of all documents the party believes
to be relevant to the issues raised and a list of all witnesses the party
expects to call at the hearing and all exhibits the party expects to present at
the hearing. Each party shall be responsible for its/her own attorneys' fees and
costs, and shall each share one half of the cost of the arbitrator and the
arbitration proceeding. The parties agree that any arbitration will take place
in Hennepin County, Minnesota.
20. Entire Agreement. This Separation Agreement and Release supersedes
any prior agreement, oral or written, and contains all of the terms and
conditions agreed upon by IVI Publishing and Solomon with respect to the subject
matter hereof. No other agreements, whether oral or written, not specifically
referred to or included herein, shall be deemed to exist or modify this
Separation Agreement and Release or bind IVI Publishing and Solomon. No
modification, release, discharge or waiver of any provision of this Separation
Agreement and Release shall be of any force or effect unless made in writing and
signed by the parties hereto, and specifically identified as a modification,
release or discharge of this Separation Agreement and Release. If any term,
clause or provision of this Separation Agreement and Release shall for any
reason be adjudged invalid, unenforceable or void, the same shall not impair or
invalidate any of the other provisions of the Separation Agreement and Release,
all of which shall be performed in accordance with their respective terms.
Solomon acknowledges, by her signature to this Separation Agreement and Release,
that she has not relied on any representations or statements, whether oral or
written, other than the express statements of this Separation Agreement and
Release, in signing this Separation Agreement and Release.
Dated: 1/26/98 /s/ Xxx X. Xxxxxxx
Xxx X. Xxxxxxx
IVI PUBLISHING, INC.
Dated: 1/30/98 By /s/ Xxxxxxx Xxxxxxxxx
Its Vice President and
Acting Chief Financial Officer
