EXHIBIT 10.51
SETTLEMENT AGREEMENT AND GENERAL RELEASE
THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE (the "Agreement") is made and
entered into as of the 14th day of September, 1999 (the "Effective Date"), by
and between System Software Associates, Inc., a Delaware corporation (the
"Employer"), and Xxxxxxx X. Xxxxx ("Xxxxx").
RECITALS
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X. Xxxxx has been employed by the Employer as its Chief Executive Officer
and Chairman of its Board of Directors.
B. The Employer and Stuek agree that his employment has terminated
effective September 15, 1999 and that he has resigned as Chairman of, and as a
member of, the Board of Directors, also effective on September 15, 1999.
NOW, THEREFORE, in consideration of the above premises and the following
mutual covenants and conditions, the parties agree as follows:
1. Termination of Employment. Effective the close of business on
September 15, 1999, the Employer and Stuek agree that his employment with the
Employer terminated and, also effective on September 15, 1999, that Stuek has
resigned as Chairman of, and as a member of, the Board of Directors of the
Employer. Stuek's termination shall be deemed to have occurred by virtue of his
voluntary resignation under mutually amicable circumstances.
2. Release Payments.
A. In accordance with the terms of the Amended and Restated
Employment Agreement made and entered into effective as of the 16th day of
October, 1998 by and between the Employer and Stuek (the "Employment
Agreement"), and as a settlement payment hereunder, the Employer shall
continue to pay Stuek his annual base salary of $500,000 for a period of
twenty-four months (through and including September 15, 2001). The amount
payable hereunder shall be subject to any payroll or other deductions as
may be required to be made pursuant to law, government order, or by
agreement with, or consent of, Stuek.
B. The Employer and Stuek hereby agree that, in further consideration
of this Agreement, the 110,625 shares of the Employer's Common Stock in
which Stuek is vested pursuant to the terms of Exhibits A and B of the
Employment Agreement shall, notwithstanding the terms thereof, continue to
be exercisable through and including September 15, 2002, beginning
September 30, 1999. In addition, and as further consideration, Stuek shall
immediately become vested in an option to purchase an
additional 42,062 shares of Common Stock under Exhibits A and B, which
option shall be exercisable through and including September 15, 2002. The
Employer agrees that it will use all reasonable efforts to cause a
registration of the shares of Common Stock obtained by Stuek through the
exercise of all or any portion of the option hereunder to be declared
effective as soon as practicable after Stuek requests the filing of such a
registration statement.
C. Ten percent (10%) of the payments made hereunder shall be in
consideration of the release of any claim under the Age Discrimination in
Employment Act of 1967, as amended, and as described in Paragraph 3, and
Stuek agrees that such consideration is in addition to anything of value to
which he already is entitled. The remainder of the payments shall be in
consideration of the release of all other claims described below in
Paragraph 3, and the Protective Agreement described in, and incorporated by
reference in, Paragraph 6.
X. Xxxxx agrees that he has been paid for all earned but unused
vacation pay. Except as set forth in this Agreement, no other sums
(contingent or otherwise), other than unpaid expense reimbursements
incurred through September 15, 1999 for which he shall be paid in the
ordinary course of business, shall be paid to Stuek in respect of his
employment with the Employer, and any such sums (whether or not owed) are
hereby expressly waived by Stuek, provided, however, that Stuek (i) may
elect to continue his health insurance coverage, as mandated by COBRA,
which may continue to the extent required by applicable law, and (ii) shall
be entitled to receive his account balance, if any, under the Employer's
401(k) Plan in accordance with the terms of such Plan.
3. General Release.
A. As a material inducement to the Employer to enter into this
Agreement and in consideration of the payments to be made by the Employer
to Stuek in Paragraph 2 above, Stuek, with full understanding of the
contents and legal effect of this Agreement, and having the right and
opportunity to consult with his counsel, releases and discharges the
Employer, its stockholders, officers, directors, supervisors, managers,
employees, agents, representatives, attorneys, divisions, subsidiaries and
affiliates, and its and their predecessors, successors, heirs, executors,
administrators, and assigns (collectively, the "Employer Released Parties")
from any and all claims, actions, causes of action, grievances, suits,
charges, or complaints of any kind or nature whatsoever, that he ever had
or now has, whether fixed or contingent, liquidated or unliquidated, known
or unknown, suspected or unsuspected, and whether arising in tort,
contract, statute, or equity, before any federal, state, local, or private
court, agency, arbitrator, mediator, or other entity, regardless of the
relief or remedy. Without limiting the generality of the foregoing, it
being the intention of the parties to make this Agreement as broad and as
general as the law permits, this Agreement specifically includes any and
all claims arising from any alleged violation by the Employer Released
Parties under the Age Discrimination in Employment Act of 1967, as amended;
Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act
of 1866, as amended by the Civil Rights Act of 1991 (42 U.S.C. (S) 1981);
the
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Rehabilitation Act of 1973, as amended; the Employee Retirement Income
Security Act of 1974, as amended; the Illinois Wage Payment and Collection
Act; the Illinois Human Rights Act, the Chicago Human Rights Ordinance, the
Xxxx County Human Rights Ordinance, and other similar state or local laws;
the Americans with Disabilities Act; the Family and Medical Leave Act; the
Equal Pay Act; Executive Order 11246; Executive Order 11141; and any other
statutory claim, employment or other contract claim or implied contract
claim (including, but not limited to, any claim arising under the
Employment Agreement and any exhibits thereto), or common law claim for
wrongful discharge, defamation, or invasion of privacy arising out of or
involving his employment with the Employer, the termination of his
employment with the Employer, or involving any continuing effects of his
employment with the Employer or termination of his employment with the
Employer. Stuek further acknowledges that he is aware that statutes exist
that render null and void releases and discharges of any claims, rights,
demands, liabilities, action and causes of action which are unknown to the
releasing or discharging party at the time of execution of the release and
discharge. Stuek hereby expressly waives, surrenders and agrees to forego
any protection to which he otherwise would be entitled by virtue of the
existence of any such statute in any jurisdiction including, but not
limited to, the State of Illinois. The foregoing notwithstanding, this
Paragraph 3A does not release the Employer Released Parties from any claims
Stuek may have with respect to the enforcement of the terms of this
Agreement.
B. As a material inducement to Stuek to enter into this Agreement and
in consideration of his releases and other items of value provided by him
hereunder, the Employer, on behalf of itself and all of the Employer
Released Parties, with full understanding of the contents and legal effect
of this Agreement, and having the right and opportunity to consult with its
counsel, releases and discharges Stuek and his successors, heirs,
executors, administrators, representatives and assigns (collectively, the
"Stuek Released Parties") from any and all claims, actions, causes of
action, grievances, suits, charges, or complaints of any kind or nature
whatsoever, that it and/or they ever had or now has or have, whether fixed
or contingent, liquidated or unliquidated, known or unknown, suspected or
unsuspected, and whether arising in tort, contract, statute, or equity,
before any federal, state, local, or private court, agency, arbitrator,
mediator, or other entity, regardless of the relief or remedy. Without
limiting the generality of the foregoing, it being the intention of the
parties to make this Agreement as broad and as general as the law permits,
this Agreement specifically includes any and all claims arising from any
alleged violation by the Stuek Released Parties under any statute, law,
ordinance, regulation, or contract, and any other statutory claim,
employment or other contract claim or implied contract claim, or common law
claim for defamation, or invasion of privacy, or arising out of or
involving his employment with the Employer, the termination of his
employment with the Employer, or involving any continuing effects of his
employment with the Employer or termination of his employment with the
Employer. The Employer, on behalf of the Employer Released Parties,
further acknowledges that it and they are aware that statutes exist that
render null and void releases and discharges of any claims, rights,
demands, liabilities, action and causes of action which are unknown to the
releasing or discharging party at the time of execution of the release and
discharge. The Employer, on behalf of itself and the Employer
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Released Parties, hereby expressly waives, surrenders and agrees to forego
any protection to which it or they otherwise would be entitled by virtue of
the existence of any such statute in any jurisdiction including, but not
limited to, the State of Illinois. The foregoing notwithstanding, this
Paragraph 3B does not release the Stuek Released Parties from any claims
the Employer may have with respect to the enforcement of the terms of this
Agreement.
4. Covenant Not to Xxx.
X. Xxxxx, for himself, his heirs, executors, administrators,
successors and assigns covenants and agrees not to bring, file, charge,
claim, xxx or cause, assist, or permit to be brought, filed, charged or
claimed any action, cause of action, or proceeding based upon any of the
claims released under Paragraph 3A hereof, and further covenants and agrees
that this Agreement is, will constitute and may be pleaded as, a bar to any
such claim, action, cause of action or proceeding. If any government
agency or court assumes jurisdiction of any charge, complaint, or cause of
action released by this Agreement, Stuek will not seek and will not accept
any personal equitable or monetary relief in connection with such
investigation, civil action, suit or legal proceeding.
B. The Employer, on behalf of all the Employer Released Parties,
covenants and agrees not to bring, file, charge, claim, xxx or cause,
assist, or permit to be brought, filed, charged or claimed any action,
cause of action, or proceeding based upon any of the claims released under
Paragraph 3B hereof, and further covenants and agrees that this Agreement
is, will constitute and may be pleaded as, a bar to any such claim, action,
cause of action or proceeding. If any government agency or court assumes
jurisdiction of any charge, complaint, or cause of action released by this
Agreement, the Employer and the Employer Released Parties will not seek and
will not accept any equitable or monetary relief in connection with such
investigation, civil action, suit or legal proceeding.
5. No Disparaging, Untrue Or Misleading Statements.
A. From and after the Effective Date, Stuek represents that he has
not made or authorized, and agrees that he will not make or authorize, to
any third party any disparaging, untrue, or misleading written or oral
statements about or relating to the Employer or its products or services
(or about or relating to any officer, director, agent, employee, or other
person acting on the Employer's behalf). Stuek acknowledges that his
continuing entitlement to payments under Paragraph 2 of the Agreement shall
be conditioned upon his continuing compliance with Paragraphs 5, 6 and 9 of
the Agreement and any violation of Paragraphs 5, 6 or 9 by Stuek shall
terminate the Employer's obligation to continue to make payments under
Paragraph 2.
B. From and after the Effective Date, the Employer represents that it
has taken and will continue to take commercially reasonable efforts to
ensure that it has not made or authorized and will not make or authorize,
to any third party any disparaging, untrue, or misleading written or oral
statements about or relating to Stuek or his job performance.
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6. Protective Agreement.
X. Xxxxx agrees that he will not, for any reason whatsoever, whether
voluntarily or involuntarily, use for himself or disclose to any person any
"Confidential Information" of the Employer acquired by Stuek during his
relationship with the Employer. Confidential Information includes but is
not limited to: (a) any financial, business, planning, operations,
services, potential services, products, potential products, technical
information and/or know-how, formulas, production, purchasing, marketing,
sales, personnel, customer, broker, supplier or other information of the
Employer; (b) any papers, data, records, processes, methods, techniques,
systems, models, samples, devices, equipment, compilations, invoices,
customer lists or documents of the Employer; (c) any confidential
information or trade secrets of any third party provided to the Employer in
confidence or subject to other use or disclosure restrictions or
limitations; and (d) any other information, written, oral or electronic,
whether existing now or at some time in the future, which pertains to the
Employer's affairs or interests or with whom or how the Employer does
business. The Employer acknowledges and agrees that Confidential
Information does not include (i) information properly in the public domain,
or (ii) information in Stuek's possession prior to the date of his original
employment with the Employer. In addition, Stuek acknowledges and agrees
that he shall continue to be bound by the terms and conditions of the
protective agreement to which he is a party under Paragraph 9 of the
Employment Agreement, the terms of which are incorporated herein by
reference. Stuek further acknowledges and agrees that he is estopped from
and will not dispute in any proceeding the enforceability of this Paragraph
6(a).
B. It is agreed that breach of this Paragraph 6 will result in
irreparable harm and continuing damages to the Employer and its business
and that the Employer's remedy at law for any such breach or threatened
breach, will be inadequate and, accordingly, in addition to such other
remedies as may be available to the Employer at law or in equity in such
event, any court of competent jurisdiction may issue a temporary and
permanent injunction, without the necessity of the Employer posting bond
and without proving special damages or irreparable injury, enjoining and
restricting the breach, or threatened breach, of this Paragraph 6,
including, but not limited to, any injunction restraining the breaching
party from disclosing, in whole or part, any Confidential Information. In
addition to, but not in lieu of, the remedies contained herein, the
Employer and Stuek agree that for purposes of this Agreement, damages will
be difficult to assess and, in recognition thereof, Stuek shall pay and the
Employer shall accept as liquidated damages, and not as a penalty, the sum
of $250,000. Stuek will pay all of the Employer's costs and expenses,
including reasonable attorneys' and accountants' fees, incurred in
enforcing this Paragraph 6.
7. Severability. If any provision of this Agreement shall be found by a
court to be invalid or unenforceable, in whole or in part, then such provision
shall be construed and/or modified or restricted to the extent and in the manner
necessary to render the same valid and enforceable, or shall be deemed excised
from this Agreement, as the case may require, and this
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Agreement shall be construed and enforced to the maximum extent permitted by
law, as if such provision had been originally incorporated herein as so modified
or restricted, or as if such provision had not been originally incorporated
herein, as the case may be. The parties further agree to seek a lawful
substitute for any provision found to be unlawful; provided, that, if the
parties are unable to agree upon a lawful substitute, the parties desire and
request that a court or other authority called upon to decide the enforceability
of this Agreement modify the Agreement so that, once modified, the Agreement
will be enforceable to the maximum extent permitted by the law in existence at
the time of the requested enforcement.
8. Waiver. A waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver or
estoppel of any subsequent breach. No waiver shall be valid unless in writing
and signed by an authorized officer of the Employer (if an Employer waiver) or
by Stuek (if a Stuek waiver).
9. Miscellaneous Provisions.
A. Both parties agree they will keep the terms, contents, and amounts
set forth in this Agreement completely confidential and, other than as
required by statute, regulation, a court of competent jurisdiction, or the
rules of any governmental agency, will not disclose any information
concerning this Agreement's terms and amounts to any person other than each
party's attorney, accountants, tax advisors, or (if disclosed by Stuek)
Stuek's immediate family.
X. Xxxxx represents and certifies that he has carefully read and
fully understands all of the provisions and effects of this Agreement, has
knowingly and voluntarily entered into this Agreement freely and without
coercion, and acknowledges that on September 10, 1999, the Employer advised
him to consult with an attorney prior to executing this Agreement and
further advised him that he had twenty-one (21) days from the Effective
Date within which to consider this Agreement. Stuek is voluntarily
entering into this Agreement and neither the Employer nor its agents,
representatives, or attorneys made any representations concerning the terms
or effects of this Agreement other than those contained in the Agreement
itself.
X. Xxxxx acknowledges that he has seven (7) days from the date this
Agreement is executed in which to revoke his acceptance of this Agreement,
and this Agreement will not be effective or enforceable until such seven
(7)-day period has expired.
10. Complete Agreement. This Agreement sets forth the entire agreement
between the parties, and, except as set forth in Paragraph 6 of this Agreement,
fully supersedes any and all prior agreements or understandings between the
parties pertaining to actual or potential claims arising from Stuek's employment
with the Employer or the termination of Stuek's employment with the Employer.
11. Reimbursement. If Stuek or his heirs, executors, administrators,
successors or assigns (a) breaches Paragraphs 5, 6 or 9(a) of this Agreement, or
(b) attempts to challenge the
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enforceability of this Agreement, or (c) files a charge of discrimination, a
lawsuit, or a claim of any kind for any matter released herein, Stuek or his
heirs, executors, administrators, successors or assigns shall be obligated to
tender back to the Employer all payments made to him or them under this
Agreement.
12. Amendment. This Agreement may not be altered, amended, or modified
except in writing signed by both Stuek and the Employer.
13. Future Cooperation. In connection with any and all claims, disputes,
negotiations, investigations, lawsuits or administrative proceedings involving
the Employer, Stuek agrees to make himself available, upon reasonable notice
from the Employer, to provide information or documents, provide declarations or
statements to the Employer, meet with attorneys or other representatives of the
Employer, prepare for and give depositions or testimony, and/or otherwise
cooperate in the investigation, defense or prosecution of any or all such
matters.
14. Joint Participation. The parties hereto participated jointly in the
negotiation and preparation of this Agreement, and each party has had the
opportunity to obtain the advice of legal counsel and to review and comment upon
the Agreement. Accordingly, it is agreed that no rule of construction shall
apply against any party or in favor of any party. This Agreement shall be
construed as if the parties jointly prepared this Agreement, and any uncertainty
or ambiguity shall not be interpreted against one party and in favor of the
other.
15. Headings. The headings in this Agreement are inserted for convenience
only and are not to be considered a construction of the provisions hereof.
16. Execution of Agreement. This Agreement may be executed in several
counterparts, each of which shall be considered an original, but which when
taken together, shall constitute one Agreement.
17. Recitals. The recitals to this Agreement are an integral part hereof
and shall be considered as substantive and not precatory language.
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18. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Illinois, and any court action
commenced to enforce this Release shall have as its sole and exclusive venue the
County of Xxxx, Illinois.
PLEASE READ THIS AGREEMENT AND CAREFULLY CONSIDER ALL OF ITS PROVISIONS
BEFORE SIGNING IT. THIS AGREEMENT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS, INCLUDING THOSE UNDER THE FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT,
AND OTHER FEDERAL, STATE AND LOCAL LAWS PROHIBITING DISCRIMINATION IN
EMPLOYMENT.
IN WITNESS WHEREOF, the parties have set their signatures on the date first
written above.
SYSTEM SOFTWARE ASSOCIATES, INC. XXXXXXX X. XXXXX
By: /s/ Xxxx Xxxxxxxx /s/ Xxxxxxx X. Xxxxx
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Its:
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