SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit
10.13
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (“Agreement”) is entered into by and between
Compellent Technologies, Inc. (the “Company”) and Xxx Xxxxx (“Employee”), and shall become
effective upon expiration of the revocation periods specified in Paragraphs 5.A(l) and (2) below.
WHEREAS, the Company and Employee desire to make provision for her separation and to fully and
finally settle all issues, differences, and actual and potential claims between them, including,
but not limited to, any claims that might arise out of Employee’s employment and termination
thereof.
NOW THEREFORE, in consideration of the mutual promises contained herein, Company and Employee
agree as follows:
1. It is agreed that Employee’s last day of employment is March 31, 2006. During the
three-month period thereafter, and in consideration for the payments to be provided to Employee
pursuant to Paragraph 2.A below, Employee, as the former Chief Financial Officer of the Company,
will make herself available to the Company on an as-needed basis to assist in the transition of her
responsibilities to other employees or independent contractors of the Company. Without limiting
the generality of the foregoing, Employee agrees to consult with the Company’s new Chief Financial
Officer (whether interim or permanent) and assist in the monthly closing of the Company’s financial
books.
2. The Company agrees to provide the following payments and benefits:
1.
A. Employee will receive a gross severance payment equal to three (3) months salary, less all
applicable deductions for tax withholding. The severance payment will be paid in regular monthly
payroll installments in the gross amount of $15,417.
B. Employee will be paid for any accrued vacation that remains unused as of March 31, 2006.
The amount owed to Employee under this provision will be paid to the Employee as part of her last
regular paycheck.
C. Employee’s current Company-paid benefits will continue to be in effect, in accordance with
the terms of the Company’s benefit plans, through March 31, 2006. In addition, effective March 31,
2006, the vesting of all 150,000 shares of the Company’s common stock previously acquired by
Employee upon exercise of an option granted to Employee pursuant to a stock option agreement dated
January 1, 2003 between the Company and Employee will be accelerated so that all of such shares
will be fully vested as of such date.
3. Employee agrees that she is not entitled to the payment specified in this Paragraph 2.A
absent execution of this Agreement. Employee understands that if she does not agree with the
proposed terms of this Agreement, she will not receive any severance package.
4. The Company will not oppose any attempt on Employee’s part to obtain unemployment benefits.
5. As an essential inducement to the Company to enter into this Agreement, and as
consideration for the foregoing promises of the Company, Employee agrees as follows:
2.
A. Employee for herself and for her heirs, agents, successors and assigns, hereby fully and
completely releases and forever discharges the Company, its predecessors, successors, assigns,
subsidiaries, parent companies and affiliates and all officers, employees, and agents of those
persons and companies (collectively, the “Released Parties”) from any and all claims, demands,
actions, liability, damages or rights of any kind, arising out of or resulting from any matter,
fact or thing occurring prior to the date of this Agreement, including but not limited to any
claims relating to the Company’s hiring of Employee, Employee’s employment with the Company,
Employee’s compensation while employed with the Company, and/or the cessation of Employee’s
employment with the Company, including, without limitation, claims arising under or based upon the
Minnesota Human Rights Act, Minn. Stat. § 363A.01, et seq.; Title VII of the Civil Rights Act, 42
U.S.C. § 2000e, et seq.; the Americans with Xxxxxxxxxxxx Xxx, 00 X.X.X. § 00000, et seq.; the Age
Discrimination in Employment Act, 29 U.S.C. § 621, et seq.; the Older Workers’ Benefit Protection
Act, 29 U.S.C. § 626(f); the Family and Medical Leave Act, 29 U.S.C. §§ 2601, et seq.; the Employee
Retirement and Income Security Act, 29 U.S.C. § 1001, et seq.; or any other federal, state, or
local laws, or any contract or tort claim whether legal or equitable, whether statutory or common
law, arising from or relating to the Company’s hiring of Employee, Employee’s employment with the
Company, Employee’s compensation while employed with the Company, and/or the cessation of
Employee’s employment with the Company.
(1) Employee has been informed of her right to revoke this Agreement as far as it extends to
potential claims under the Age Discrimination in
3.
Employment Act, 29 U.S.C.§ 621, et seq., by informing the Company of her intent to revoke this
Agreement within seven (7) calendar days following her execution of this Agreement. To be
effective such written notice must be delivered either by hand or by mail to Xxxxxx Xxxxx, Chief
Executive Officer, Compellent Technologies, Inc., 00000 Xxxxxx Xxxx Xxxx, Xxxx Xxxxxxx, XX 00000,
within the 7-day period. If a notice of revocation is delivered by mail, it must be: 1) postmarked
within the 7-day period; 2) properly addressed to Xxxxxx Xxxxx, as set forth above; and 3) sent by
certified mail, return receipt requested. This Agreement shall not become effective or enforceable
until this seven (7) day period has expired.
(2) Employee has also been informed of her right to revoke this Agreement as far as it extends
to potential claims under the Minnesota Human Rights Act, Minn. Stat.§ 363A.01, et seq., by
informing the Company of her intent to revoke this Agreement within fifteen (15) calendar days
following her execution of this Agreement. To be effective such written notice must be delivered
either by hand or by mail to Xxxxxx Xxxxx, Chief Executive Officer, Compellent Technologies, Inc.,
00000 Xxxxxx Xxxx Xxxx, Xxxx Xxxxxxx, XX 00000, within the 15-day period. If a notice of
revocation is delivered by mail, it must be: 1) postmarked within the 15-day period; 2) properly
addressed to Xxxxxx Xxxxx, as set forth above; and 3) sent by certified mail, return receipt
requested. This Agreement shall not become effective or enforceable until this fifteen (15) day
period has expired.
(3) Employee also has been informed that the terms of this Agreement shall be open for
acceptance and execution by her for a period of twenty-one
4.
(21) days during which time she may consider whether to accept this Agreement. Employee
agrees that changes to this Agreement, whether material or immaterial, will not restart this
acceptance period. No payments or benefits will be provided pursuant to Paragraph 2 until
expiration of the revocation periods described in Paragraphs 5.A(1) and (2) above.
(4) It is understood that, in the event a notice of revocation by Employee is timely
delivered, pursuant to the terms of Paragraph 5.A(1) or (2), the Company may, at its discretion,
either enforce the remaining provisions of this Agreement, or void the entire Agreement and require
any payments made or benefits provided to Employee as of that date be immediately repaid by
Employee to the Company.
B. This Agreement includes a release of Employee’s right to file a court action, and
Employee’s release of these rights shall apply with full force and effect to any proceeding arising
from or relating to such an action. However, to the extent required by law, nothing contained in
this Agreement shall be interpreted to prevent Employee from filing a charge with a governmental
agency or participating in or cooperating with an investigation conducted by a governmental agency.
Nevertheless, Employee agrees that she is waiving the right to monetary damages or other
individual legal or equitable relief awarded as a result of any such proceeding related to any
claim against the Released Parties arising from or related to the Company’s hiring of Employee,
Employee’s employment with the Company, Employee’s compensation while employed with the
5.
Company, and/or the cessation of her employment with the Company. In addition, nothing in
this Agreement shall prohibit Employee from testifying if compelled by law.
6. Notwithstanding any agreement to the contrary set forth in Paragraph 5.A above, all rights
to indemnification in favor of Employee as an officer of the Company for claims made against her in
such capacity will survive her employment with the Company and be observed by the Company to the
fullest extent permitted by Delaware law until March 31, 2011.
7. Employee shall promptly return to the Company, on or before March 31, 2006, all property of
the Company, including all Company computers, credit cards, security cards, records, manuals,
books, documents (including all customer lists, letters, memoranda, notes, notebooks, and reports)
and other data, and all copies thereof, and all other tangible Company property, which are at the
time of separation in Employee’s possession or control.
8. Employee shall promptly provide to the Company all of her computer passwords, a list of any
documents that she created, or of which she is otherwise aware, that are password-protected, and
the password(s) necessary to access such password-protected documents.
9. Employee agrees that she will keep the terms of this Agreement confidential and that she
will not disclose the terms of this Agreement, other than to immediate family members, to legal,
financial or tax consultants, for professional use only, and to government agencies upon proper
inquiry or pursuant to subpoena or court order.
6.
10. The provisions of this Agreement are severable. If any provision of this Agreement is
held invalid or unenforceable, such provision shall be deemed deleted from this Agreement and such
invalidity or unenforceability shall not affect any other provision of this Agreement, the balance
of which will remain in and have its intended full force and effect; provided, however that if such
invalid or unenforceable provision may be modified so as to be valid and enforceable as a matter of
law, such provision shall be deemed to have been modified so as to be valid and enforceable to the
maximum extent permitted by law.
11. This Agreement contains the entire agreement between the parties and supersedes all prior
agreements, oral or written, between the parties. Any modifications of, or additions to, this
Agreement must be in writing signed by Employee and by an authorized representative of the Company.
No term or condition of this Agreement shall be deemed waived, nor shall there be any estoppel to
enforce any provisions of this Agreement, except by a statement in writing signed by the party
against whom enforcement of the waiver is sought. No valid waiver shall be a waiver of such term
or condition for the future or a waiver of any other term or condition other than as specifically
set forth in the waiver. Employee hereby affirms that her rights to payments or benefits from the
Company are specified exclusively and completely by this Agreement.
12. This Agreement shall not in any way be construed as an admission by the Company that it
has acted wrongfully with respect to Employee or any other person, or that Employee has any rights
whatsoever against the Company. The Company
7.
specifically disclaims any liability to, or wrongful acts against, Employee or any other
person, on the part of itself, its directors, its officers, its employees, investors,
representatives or agents.
13. Employee represents and acknowledges that in executing this Agreement, she does not rely
and has not relied upon any representation or statement made by the Company, or by any of its
agents, representatives or attorneys with regard to the subject matter, basis, or effect of this
Agreement or otherwise.
14. Employee represents and agrees that she has hereby been advised to, and is fully aware of
her right to, discuss any and all aspects of this matter with an attorney and that she has
carefully read and fully understands the language and legal effect of all of the provisions of this
Agreement, and that she is voluntarily entering into this Agreement.
15. Employee represents and agrees that this Agreement is written in a manner that she
understands.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS AS OF THE
DATE OF THE EXECUTION OF THIS AGREEMENT. BY SIGNING THIS AGREEMENT, EMPLOYEE AFFIRMS THAT SHE HAS
READ THE AGREEMENT IN ITS ENTIRETY, HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY, AGREES THAT THE
PROVISIONS OF THE AGREEMENT ARE UNDERSTANDABLE TO HER, AND THAT SHE HAS ENTERED INTO THE AGREEMENT
FREELY AND VOLUNTARILY.
8.
IN WITNESS WHEREOF, the parties have executed this Agreement by their signatures below.
| Dated: March ___, 2006 | COMPELLENT TECHNOLOGIES, INC. |
|||
| /s/ Xxxxxx X. Xxxxx | ||||
| Xxxxxx X. Xxxxx | ||||
| Chief Executive Officer | ||||
| Dated: March 30, 2006 | /s/ Xxx Xxxxx | |||
| Xxx Xxxxx | ||||
