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Exhibit 10.11
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated effective as of February 15, 2001, is
made and entered into between Xxxxxx Associates, Inc., a Minnesota corporation
("Xxxxxx") and Xxx Xxxxxxxx, an individual resident of the state of Minnesota
("Employee").
Xxxxxx and Employee hereby agree as follows:
1. Employment. Xxxxxx hereby employs Employee, and Employee accepts
such employment and agrees to perform services for Xxxxxx, for the period and
upon the other terms and conditions set forth in this Agreement. Except as
expressly provided herein, termination of this Agreement by either party or by
mutual agreement shall also terminate Employee's employment by Xxxxxx.
2. Term. The term of Employee's employment hereunder shall be effective
on the date hereof and shall thereafter continue on an "at will" basis, until
terminated by Employee or Xxxxxx, with or without cause, subject to the
provisions of this Agreement.
3. Position and Duties.
3.01 Service with Company. During the term of this Agreement, Employee
agrees to serve as Chief Executive Officer and President. Employee shall report
to Xxxxxx'x Board of Directors and shall perform such duties, consistent with
the position of Chief Executive Officer and President, as the Board of Directors
of Xxxxxx (the "Board") shall assign to Employee from time to time. Employee
shall have the power and authority of Chief Executive Officer and President of
Xxxxxx to the full extent provided by Minnesota law, subject to the authority of
the Board to modify Employee's power and authority.
3.02 Performance of Duties. Employee agrees to serve Xxxxxx faithfully
and to the best of Employee's ability and to devote Employee's full time,
attention and efforts to the business and affairs of Xxxxxx during the term of
his employment. Employee hereby confirms that Employee is under no contractual
commitments inconsistent with his obligations set forth in this Agreement and
that, during the term of his employment, Employee will not render or perform any
services for any other corporation, firm, entity or person which are
inconsistent with the provisions of this Agreement or which would otherwise
impair his ability to perform his duties hereunder. Employee shall comply with
Xxxxxx'x policies and procedures; provided, that to the extent such policies and
procedures are inconsistent with this Agreement, this Agreement shall control.
4. Compensation.
4.01 Base Salary. As base compensation for all services to be rendered
by Employee under this Agreement during the term of this Agreement, Xxxxxx shall
pay to Employee an annual salary in the amount $400,000.00 commencing February
16, 2001, to be paid in substantially equal regular periodic payments (at least
monthly) in accordance with Xxxxxx'x normal payroll procedures and policies. The
Board of Directors of Xxxxxx will review Employee's compensation annually and
may, at its sole discretion, increase Employee's base compensation from time to
time in the future. If Employee's base compensation is increased from time to
time by the Board during the term of Employee's employment under this Agreement,
the increased base compensation shall become Employee's base compensation for
the remainder of the term of this Agreement, including any extensions thereof,
subject to subsequent increases.
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4.02 Incentive Compensation. For Xxxxxx'x fiscal year ending May 31,
2001, Employee shall be eligible to participate in Xxxxxx'x FY01 Executive
Leadership Results Plan (ELRP), with the annual target incentive plan amount and
criteria that were in effect immediately prior to the effective date of this
Agreement. For fiscal years after May 31, 2001, Employee will participate in the
incentive compensation program then in effect and approved by the Compensation
Committee of Xxxxxx'x Board of Directors and applicable to Xxxxxx'x executive
officers, based on Employee's position and responsibilities.
4.03 Options. Xxxxxx has previously granted Employee options to
purchase shares of Common Stock of Xxxxxx under Xxxxxx'x 1996 Stock Incentive
Plan ("Plan"), subject to the terms of each applicable stock option agreement
between Xxxxxx and Employee under the Plan ("Options"). The Options are governed
by such option agreements and the Plan, and are not amended by this Agreement.
The Board of Directors of Xxxxxx may, at its sole discretion, grant Employee in
the future additional stock options, on such terms as the Board may determine.
4.04 Club Membership Expenses. Xxxxxx shall reimburse Employee's then
current monthly and annual cost of Employee's current country club and golf
membership, and for Xxxxxx business conducted by Employee at that club.
4.05 Participation in Benefit Plans. During the term of Employee's
employment by Xxxxxx, Employee shall be entitled to receive such life,
disability, medical, dental and other insurance coverage (including directors
and officers insurance) as is then generally being provided by Xxxxxx to its
executive vice president level and above employees to the extent that Employee's
age, position or other factors qualify Employee for such benefits. Employee
shall be entitled to annual flexible time off (FTO) consistent with that
received by Xxxxxx'x executive vice president level and above employees. Nothing
in this Agreement is intended to or shall in any way restrict Xxxxxx'x right to
amend, modify or terminate any of its benefit plans during the term of
Employee's employment.
4.06 Expenses. In accordance with Xxxxxx'x normal policies for expense
verification, Xxxxxx will pay or reimburse Employee for all reasonable and
necessary out-of-pocket expenses incurred by Employee in the performance of his
duties under this Agreement, subject to the presentment of appropriate
documentation.
5. Termination and Severance. Upon the termination of Employee's
employment, Employee shall be entitled to severance benefits to the extent
provided below.
5.01 Termination Without Severance Benefits. Employee's employment and,
except as provided below (and except for benefits applicable under COBRA), any
rights to base salary, bonus and benefits, shall immediately terminate in the
event at any time:
(i) Employee dies;
(ii) Employee becomes totally disabled which results in
Employee's inability to perform the essential functions of Employee's
position, with or without reasonable accommodation;
(iii) Employee's breach of any material contractual obligation
to Xxxxxx under the terms of this Agreement or limitation, the Xxxxxx
Associates Inc. Employee Invention and Non-Disclosure Agreement
previously entered into between Xxxxxx and Employee (the "Employee
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Invention and Non-Disclosure Agreement"),provided that Employee is
first provided at least 30 days written notice and opportunity to cure
the alleged breach;
(iv) Employee is convicted of any felony (whether or not
Xxxxxx is a victim of such offense) after the date of this Agreement;
(v) Employee commits fraud, misappropriation or embezzlement
in connection with Xxxxxx'x business; or
(vi) Employee elects to terminate Employee's employment by
Xxxxxx, other than as provided in Sections 5.02 or 5.03.
5.02 Termination With Severance Benefits.
(i) If Xxxxxx terminates Employee's employment at any time for
any reason other than the reasons set forth in clauses (i) - (v) of
Section 5.01 or if Employee elects to terminate Employee's employment
because of a material diminution or adverse change in the title,
duties, or hierarchical reporting relationships of Employee (if
Employee no longer serves as President, but continues to serve as Chief
Executive Officer, that change will not be considered a material
diminution or adverse change in title, duties or hierarchical reporting
relationships under this clause (i)): (a) Xxxxxx shall pay Employee
severance payments equal to (1) 100% of Employee's annual base salary
(less applicable Taxes as defined in Section 7.03) and (2) 100% of
Employee's then current annual target incentive compensation (less
applicable Taxes) at the time of termination, (b) Xxxxxx shall pay
Employee accrued and unpaid salary and flexible time off (FTO) benefits
through the date of termination, and (c) Xxxxxx shall pay Employee any
unpaid incentive compensation earned for the fiscal quarter preceding
the fiscal quarter during which termination occurs, but Xxxxxx shall
have no obligation (other than the annual target incentive compensation
under clause (a) above) to pay Employee any incentive compensation for
the fiscal quarter during which termination occurs (whether or not
Employee would otherwise have been eligible to receive such incentive
compensation) (the amounts under clauses (a), (b) and (c) of this
Section 5.02(i) are collectively referred to as "Severance Payments").
The Severance Payments shall be payable in full promptly following
termination of Employee's employment and completion of the rescission
period identified in Exhibit A. Employee shall receive Severance
Payments to the extent described in this Section 5.02 only if Employee
signs a general release of claims in a form attached to this Agreement
as Exhibit A (and the rescission period thereunder has expired) and
continues to comply with this Agreement. If Employee does not sign, or
if Employee rescinds, such a general release of claims, Employee shall
not be entitled to receive any Severance Payments under the provisions
of this Agreement. Any Severance Payments or other payment made under
this Section 5.02 will be paid according to Xxxxxx'x normal payroll
policies. No severance payments shall commence until completion of the
rescission period identified in Exhibit A (and no severance payments
shall be payable to Employee if at the time of completion of the
rescission period, Employee has exercised Employee's right of
rescission described in Exhibit A).
(ii) As used in this Section 5.02(ii), the term "IPO" means
the effective date of a registration statement filed by Xxxxxx with the
Securities and Exchange Commission under the Securities Act of 1933,
pertaining to the initial public offering of common stock of Xxxxxx.
Xxxxxx shall pay Employee an amount equal to twice the amount of the
Severance Payments under Section 5.02(i) if and only if Xxxxxx
terminates Employee's employment before the earlier of an IPO, a
"Change in Control" (as defined in Section 5.04) or the close of
business on
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February 15, 2002, and as a result of such termination Employee is
entitled to Severance Payments pursuant to Section 5.02(i). In no event
shall Xxxxxx be obligated to pay Severance Payments under both Sections
5.02(i) and 5.02(ii). This Section 5.2(ii) shall not apply to any
termination of employment occurring after the earlier of an IPO, a
Change in Control or February 15, 2002.
5.03 Termination Upon Change in Control. Notwithstanding Section
5.01(vi), if Employee terminates Employee's employment, at Employee's
option, within 3 months after a Change in Control (as defined below):
(i) Xxxxxx shall pay Employee Severance Payments, as defined in Section
5.02(i). Employee shall receive Severance Payments to the extent
described in this Section 5.03 only if Employee signs a general release
of claims in a form attached to this Agreement as Exhibit A (and the
rescission period thereunder has expired) and continues to comply with
this Agreement. If Employee does not sign, or if Employee rescinds,
such a general release of claims, Employee shall not be entitled to
receive any Severance Payments under the provisions of this Agreement.
Any Severance Payments or other payment made under this Section 5.03
will be payable in full promptly following termination of Employee's
employment according to Xxxxxx'x normal payroll policies. No severance
payments shall commence until completion of the rescission period
identified in Exhibit A (and no severance payments shall be payable to
Employee if at the time of completion of the rescission period,
Employee has exercised Employee's right of rescission described in
Exhibit A). In no event shall Xxxxxx be obligated to pay Severance
Payments under both Sections 5.02 and 5.03.
5.04 "Change in Control" Defined. As used in Sections 5.02(ii) and 5.03
of this Agreement, "Change in Control" shall be deemed to have occurred if (i) a
tender offer shall be made and consummated for the ownership of 50% or more of
the outstanding voting securities of Xxxxxx, (ii) Xxxxxx shall be merged or
consolidated with another corporation and as a result of such merger or
consolidation less than 50% of the outstanding voting securities of the
surviving or resulting corporation shall be owned in the aggregate by the former
shareholders of Xxxxxx, other than affiliates (within the meaning of the
Securities Exchange Act of 1934 (the "Exchange Act")) of any party to such
merger or consolidation, as the same shall have existed immediately prior to
such merger or consolidation, (iii) Xxxxxx shall sell substantially all of its
assets to another corporation which is not a wholly owned subsidiary of Xxxxxx,
(iv) a person, within the meaning of Section 3(a)(9) or of Section 13(d)(3) (as
in effect on the date hereof) of the Exchange Act, shall acquire 50% or more of
the outstanding voting securities of Xxxxxx (whether directly, indirectly,
beneficially or of record) (for purposes hereof, ownership of voting securities
shall take into account and shall include ownership as determined by applying
the provisions of Rule 13d-3(d)(1)(i) as in effect on the date hereof) pursuant
to the Exchange Act, or (v) individuals who constitute the Xxxxxx'x Board of
Directors on the date hereof (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof, provided that any person becoming a
director subsequent to the date hereof whose election, or nomination for
election by Xxxxxx'x shareholders, was approved by a vote of at least 50% of the
directors comprising the Incumbent Board shall be, for purposes of this clause
(v), considered as though such person were a member of the Incumbent Board.
Notwithstanding anything in the foregoing to the contrary, no Change in Control
of Xxxxxx shall be deemed to have occurred for purposes of this Agreement by
virtue of any transaction which results in Employee, or a group of persons which
includes Employee, acquiring, directly or indirectly more than 50% of the
combined voting power of Xxxxxx'x outstanding voting securities.
5.05 Effect of Termination. Notwithstanding any termination of
Employee's employment with Xxxxxx, Employee, in consideration of Employee's
employment hereunder to the date of such termination, shall remain bound by the
provisions of this Agreement which specifically relate to periods, activities or
obligations upon or subsequent to the termination of Employee's employment,
including, but
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not limited to, the covenants contained in Section 6 hereof (to the extent
described in Section 6) and the Employee Invention and Non-Disclosure Agreement.
Upon termination of employment, Employee's outstanding stock options will be
exercisable to the extent set forth in the terms of the applicable stock option
agreement for each stock option and the terms and conditions of the stock option
plan.
5.06 Surrender of Records and Property. Upon termination of Employee's
employment with Xxxxxx, Employee shall deliver promptly to Xxxxxx all records,
manuals, Xxxxxx employee directories, books, blank forms, documents, letters,
memoranda, notes, notebooks, reports, computer disks, computer software,
computer programs (including source code, object code, on-line files, e-mail
files, documentation, testing materials and plans and reports), computer
hardware, designs, drawings, formulae, data, tables or calculations or copies
thereof, which are the property of Xxxxxx or which relate in any way to the
business, products, practices or techniques of Xxxxxx, and all other property,
trade secrets and confidential information of Xxxxxx, including, but not limited
to, all tangible, written, graphical, machine readable and other materials
(including all copies) which in whole or in part contain any trade secrets or
confidential information of Xxxxxx which in any of these cases are in Employee's
possession or under Employee's control.
5.07 Limitation of Liability. In no event shall Xxxxxx be liable to
Employee under this Agreement for any amount in excess of the payments
potentially to be made under Sections 4 and 5. In no event shall Xxxxxx be
liable to Employee under this Agreement for any indirect, special, consequential
or punitive damages.
6. Noncompetition.
6.01 Agreement Not to Compete. In consideration of Xxxxxx'x providing
Employee with the severance benefits under Section 5.02, Employee agrees that,
during the "Restricted Period" (as hereinafter defined), Employee shall not,
directly or indirectly, engage in any "Competing Business Activity" (as
hereinafter defined), in any manner or capacity (e.g., as an advisor,
consultant, principal, agent, partner, officer, director, shareholder, employee,
member of any association or otherwise). As used herein, "Restricted Period"
shall mean: (a) the period from the date hereof through the date of termination
of Employee's employment with Xxxxxx and (b) the one year period commencing on
the date of termination of Employee's employment with Xxxxxx, but only if Xxxxxx
pays Employee the applicable Severance Payments under Section 5.02. If upon
termination of Employee's employment with Xxxxxx, Xxxxxx is not obligated to pay
Employee the Severance Payments under the terms of Section 5.02, but Xxxxxx
elects to pay Employee the Severance Payments under Section 5.02(i) anyway, then
the Restricted Period shall continue for one year after termination of
Employee's employment with Xxxxxx. If upon termination of Employee's employment
with Xxxxxx, Xxxxxx is not obligated to pay Employee the Severance Payments
under the terms of Section 5.02, and Xxxxxx elects not to pay Employee the
Severance Payments under Section 5.02(i), then the Restricted Period shall end
on the date of termination of Employee's employment with Xxxxxx. This Section
6.01 shall not excuse Xxxxxx from making the applicable Severance Payments to
Employee under Section 5.02 if Employee complies with this Section 6. As used
herein, "Competing Business Activity" shall mean any business activities that
are competitive with the business conducted by Xxxxxx at or prior to the date of
the termination of Employee's employment with Xxxxxx.
6.02 Geographical Extent of Covenant. The obligations of Employee under
this Section 6 shall apply to all markets, domestic or foreign, in which: (a)
Xxxxxx operates during the term of the Restricted Period; and (b) Xxxxxx has
plans to enter at the time of the termination of Employee's employment with
Xxxxxx.
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6.03 Limitation on Covenant. Ownership by Employee, as a passive
investment, of less than one percent of the outstanding shares of capital stock
of any corporation listed on a national securities exchange or publicly traded
in the over-the-counter market shall not constitute a breach of this Section 6.
6.04 Nonsolicitation; Non-hire and Noninterference. During the
Restricted Period, Employee shall not (a) induce or attempt to induce any
employee of Xxxxxx to leave the employ of Xxxxxx, or in any way interfere
adversely with the relationship between any such employee and Xxxxxx; (b) induce
or attempt to induce any employee of Xxxxxx to work for, render services to,
provide advice to, or supply confidential business information or trade secrets
of Xxxxxx to any third person, firm, corporation or entity; (c) employ, or
otherwise pay for services rendered by, any employee of Xxxxxx in any business
enterprise with which Employee may be associated, connected or affiliated; or
(d) induce or attempt to induce any customer, supplier, licensee, licensor,
reseller or other business relation of Xxxxxx to cease doing business with
Xxxxxx, change how it does business with Xxxxxx, or in any way interfere with
the relationship between any such customer, supplier, licensee, licensor,
reseller or other business relation and Xxxxxx. While Employee is employed by
Xxxxxx, this Section 6.04 will not restrict Employee from performing Employee's
duties as an officer and employee of Xxxxxx.
6.05 Indirect Competition or Solicitation. Employee agrees that, during
the Restricted Period, Employee will not, directly or indirectly, assist,
solicit or encourage any other person in carrying out, directly or indirectly,
any activity that would be prohibited by the provisions of this Section 6 if
such activity were carried out by Employee, either directly or indirectly; and,
in particular, Employee agrees that Employee will not, directly or indirectly,
induce any employee of Xxxxxx to carry out, directly or indirectly, any such
activity.
6.06 Disparaging Remarks. Employee shall refrain from making any
statements, whether written or oral, which are disparaging of Xxxxxx or any of
its subsidiaries, directors, officers, agents, employees, successors, assigns
and controlling persons.
7. Miscellaneous.
7.01 Governing Law. This Agreement is made under and shall be governed
by and construed in accordance with the laws of the State of Minnesota without
regard to conflicts of laws principles thereof.
7.02 Entire Agreement. This Agreement does not terminate or amend the
Employee Invention and Non-Disclosure Agreement, which shall remain in effect
pursuant to its terms. This Agreement (including any other agreement
specifically mentioned in this Agreement) contains the entire agreement of the
parties relating to the employment of Employee by Xxxxxx and the other matters
discussed herein and supersedes all prior promises, contracts, agreements and
understandings of any kind (other than any other agreement mentioned herein),
whether express or implied, oral or written, with respect to such subject matter
(including, but not limited to, the Employment Agreement between Xxxxxx and
Employee dated March 9, 2000, as amended, and any other promise, contract or
understanding, whether express or implied, oral or written, by and between
Xxxxxx and Employee), and the parties hereto have made no agreements,
representations or warranties relating to the subject matter of this Agreement
which are not set forth herein or in any other agreement mentioned herein.
7.03 Withholding Taxes. Xxxxxx may take such action as it deems
appropriate to insure that all applicable federal, state, city and other
payroll, withholding, income or other taxes ("Taxes") arising from any
compensation, benefits or any other payments made pursuant to this Agreement, or
any other contract, agreement or understanding which relates, in whole or in
part, to Employee's employment with
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Xxxxxx, are withheld or collected from Employee. In connection with the
foregoing, Employee agrees to notify Xxxxxx promptly upon entering into any
contract, agreement or understanding relating to Employee's employment with
Xxxxxx (other than this Agreement and those agreements expressly provided for
herein) and also to notify Xxxxxx promptly of any payments or benefits paid or
otherwise made available pursuant to any such agreements.
7.04 Amendments. No amendment or modification of this Agreement shall
be deemed effective unless made in writing and signed by Employee and Xxxxxx,
and approved by the Board of Directors of Xxxxxx.
7.05 No Waiver. No term or condition of this Agreement shall be deemed
to have been 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 or estoppel is sought. Any written waiver shall
not be deemed a continuing waiver unless specifically stated, shall operate only
as to the specific term or condition waived, and shall not constitute a waiver
of such term or condition for the future or as to any act other than as
specifically set forth in the waiver.
7.06 Assignment. This Agreement shall not be assignable, in whole or in
part, by any party without the written consent of the other party, except that
Xxxxxx may, without the consent of Employee, assign its rights and obligations
under this Agreement to any affiliate or to any corporation, firm or other
business entity with or into which Xxxxxx may merge or consolidate, or to which
Xxxxxx may sell or transfer all or substantially all of its assets or applicable
operating division, or of which 50% or more of the equity investment and of the
voting control is owned, directly or indirectly, by, or is under common
ownership with, Xxxxxx. After any such assignment by Xxxxxx, Xxxxxx shall be
discharged from all further liability hereunder and such assignee shall
thereafter be deemed to be Xxxxxx for the purposes of all provisions of this
Agreement including this Section 7.06.
7.07 Injunctive Relief. Employee acknowledges and agrees that the
services to be rendered by Employee hereunder are of a special, unique and
extraordinary character, that it would be difficult to replace such services and
that any violation of Sections 5.06, 6.01, 6.04 or 6.05 hereof or any violation
of the Employee Invention and Non-Disclosure Agreement would be highly injurious
to Xxxxxx and that it would be extremely difficult to compensate Xxxxxx fully
for damages for any such violation. Accordingly, Employee specifically agrees
that Xxxxxx shall be entitled to temporary and permanent injunctive relief to
enforce the provisions of Sections 5.06, 6.01, 6.04 or 6.05 hereof and the
Employee Invention and Non-Disclosure Agreement, and that such relief may be
granted without the necessity of proving actual damages. This provision with
respect to injunctive relief shall not, however, diminish the right of Xxxxxx to
claim and recover damages, or to seek and obtain any other relief available to
it at law or in equity, in addition to injunctive relief.
7.08 Arbitration. Any dispute arising out of or relating to this
Agreement or the alleged breach of it, or the making of this Agreement,
including claims of fraud in the inducement, or any dispute arising from or
related in any way to Employee's employment, including any statutory or tort
claims, shall be discussed between the disputing parties in a good faith effort
to arrive at a mutual settlement of any such controversy. If such dispute cannot
be resolved, such dispute shall be settled by binding arbitration. Judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The arbitrator shall be a retired state or federal judge
or an attorney who has practiced business or employment litigation for at least
10 years. If the parties cannot agree on an arbitrator within 20 days, either
party may request that the chief judge of the district court for Hennepin
County, Minnesota, select an arbitrator. If the chief judge does not select an
arbitrator within 30 days of such request, either party may request that the
American Arbitration Association (AAA) designate a
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panel of five proposed arbitrators meeting the criteria set forth in this
Section, and the parties shall alternate striking members of the panel, with
Xxxxxx having the first strike, until an arbitrator is thereby selected.
Arbitration will be conducted pursuant to the provisions of this Agreement, and
the applicable arbitration rules of the AAA, unless such rules are inconsistent
with the provisions of this Agreement, but, unless an arbitrator is selected
through the AAA, without submission of the dispute to the AAA. Each party shall
be permitted reasonable discovery, including the production of relevant
documents by the other party, exchange of witness lists, and a limited number of
depositions, including depositions of any experts who will testify at the
arbitration. The summary judgment procedure applicable in Hennepin County,
Minnesota, District Court shall be available and apply to any arbitration
conducted pursuant to this Agreement. The arbitrator shall have the authority to
award to the prevailing party any remedy or relief that a court of the State of
Minnesota could order or grant, including costs and attorneys' fees. Unless
otherwise agreed by the parties, the place of any arbitration proceedings shall
be Minneapolis, Minnesota.
7.09 Severability. To the extent any provision of this Agreement shall
be determined to be invalid or unenforceable in any jurisdiction, such provision
shall be deemed to be deleted from this Agreement as to such jurisdiction only,
and the validity and enforceability of the remainder of such provision and of
this Agreement shall be unaffected. In furtherance of and not in limitation of
the foregoing, Employee expressly agrees that should the duration of,
geographical extent of, or business activities covered by, any provision of this
Agreement be in excess of that which is valid or enforceable under applicable
law in a given jurisdiction, then such provision, as to such jurisdiction only,
shall be construed to cover only that duration, extent or activities that may
validly or enforceably be covered. Employee acknowledges the uncertainty of the
law in this respect and expressly stipulates that this Agreement shall be
construed in a manner that renders its provisions valid and enforceable to the
maximum extent (not exceeding its express terms) possible under applicable law
in each applicable jurisdiction.
7.10 Confidentiality. The terms of this Agreement shall remain strictly
confidential between the parties hereto, except to the extent that disclosure of
such terms is required by law, and to the extent that Employee may disclose such
terms to Employee's spouse, and to the extent that either party may disclose
this Agreement to that party's advisors on a need-to-know basis, provided that
such persons agree to maintain the confidentiality of such information.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth in the first paragraph.
XXXXXX ASSOCIATES, INC.
By /s/ H. Xxxxxxx Xxxxxx
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Name: H. Xxxxxxx Xxxxxx
Title: Chairman
/s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx
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EXHIBIT A
GENERAL RELEASE
This General Release is made and entered into as of the __________ day
of ________________, by ________________________ ("Employee") and Xxxxxx
Associates, Inc. ("Xxxxxx").
WHEREAS, Xxxxxx Associates, Inc. ("Xxxxxx") and Employee are parties to
an Agreement dated February 15, 2001 (the "Agreement");
WHEREAS, Employee intends to settle any and all claims that Employee
has or may have against Xxxxxx as a result of Employee's employment with Xxxxxx
and the cessation of Employee's employment with Xxxxxx;
WHEREAS, under the terms of the Agreement, which Employee agrees are
fair and reasonable, Employee agreed to enter into this General Release as a
condition precedent to the severance arrangements described in Section 5.02 or
5.03 of the Agreement;
NOW, THEREFORE, in consideration of the provisions and the mutual
covenants herein contained, the parties agree as follows:
1. SEVERANCE BENEFITS.
X. Xxxxxx agrees to provide severance pay of Ten Thousand Dollars
($10,000.00), out of the severance benefits described in the
Agreement, in consideration of the release set forth in Paragraph
2(B) below.
X. Xxxxxx agrees to provide all remaining severance benefits
described in the Agreement in consideration of the release set forth
in Paragraph 2(A) below.
2. RELEASE OF CLAIMS.
A. For the consideration expressed in Paragraph 1(B) above, Employee
does hereby fully and completely release and waive any and all
claims, complaints, causes of action, demands, suits, and damages,
of any kind or character, which Employee has or may have against the
Releasees, as hereinafter defined, arising out of any acts,
omissions, conduct, decisions, behavior, or events occurring up
through the date of Employee's signature on this General Release,
including Employee's employment with Xxxxxx and the cessation of
that employment, with the exception of possible claims under the Age
Discrimination in Employment Act. For purposes of this General
Release, the "Releasees" means collectively Xxxxxx, its
predecessors, successors, assigns, parents, affiliates,
subsidiaries, related companies, officers, directors, shareholders,
agents, servants, auditors, attorneys, employees, and insurers, and
each and all thereof.
Employee understands and accepts that Employee's release
of claims includes any and all possible claims, both known or
unknown, asserted or unasserted, direct or indirect, including but
not limited to claims based upon:
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(i) the value of stock options that have not vested or are
unexercisable pursuant to the express terms of the applicable
stock option agreements, grant notices or stock option plans;
(ii) the value of stock options previously granted to Employee and
that have vested and are exercisable as of the date of
termination of Employee's employment with Xxxxxx, but that
Employee elects not to exercise and pay for before the
applicable termination date of the stock options pursuant to
the express terms of the applicable stock option agreements,
grant notices or stock option plans;
(iii) Title VII of the Federal Civil Rights Act of 1964, as amended;
(iv) the Americans with Disabilities Act; the Equal Pay Act;
(v) the Fair Labor Standards Act; the Employee Retirement Income
Security Act;
(vi) the Minnesota Human Rights Act; Minn. Stat. Section 181.81;
(vii) the Minneapolis or St. Xxxx Code of Ordinances; or
(viii) any other federal, state or local statute, ordinance or law.
Employee also understands that Employee is giving up all other claims,
including those grounded in contract or tort theories, including but
not limited to: wrongful discharge; violation of Minn. Stat. Section
176.82; breach of contract; tortious interference with contractual
relations; promissory estoppel; breach of the implied covenant of good
faith and fair dealing; breach of express or implied promise; breach of
manuals or other policies; assault; battery; fraud; sexual harassment;
false imprisonment; invasion of privacy; intentional or negligent
misrepresentation; defamation, including libel, slander, discharge
defamation and self-publication defamation; discharge in violation of
public policy; whistleblower; intentional or negligent infliction of
emotional distress; or any other theory, whether legal or equitable.
Employee further understands that Employee is releasing, and
does hereby release, any claims for damages, by charge or otherwise,
whether brought by Employee or on Employee's behalf by any other party,
governmental or otherwise, and agrees not to institute any claims for
damages via administrative or legal proceedings against any of the
Releasees. Employee also waives and releases any and all rights to
money damages or other legal relief awarded by any governmental agency
related to any charge or other claim against any of the Releasees.
B. For the consideration expressed in Paragraph 1(A) above, Employee
does hereby fully and completely release the Releasees, as above
defined, from each and every legal claim or demand of any kind, that
Employee ever had or might now have arising out of any action, conduct,
or decision taking place during Employee's employment with Xxxxxx,
asserted or unasserted, known or unknown, direct or indirect, arising
under or relating to the Age Discrimination in Employment Act, as
amended.
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C. This Release does not apply to any post-termination claim that
Employee may have for benefits under the provisions of any employee
benefit plan maintained by Xxxxxx.
D. Employee's release of claims shall not apply to any claims Employee
might have to indemnification under Minnesota Statute Section
302A.521, any other applicable statute or regulation, or Xxxxxx'x
by-laws.
3. RESCISSION. Employee has been informed of Employee's right to rescind
this General Release by written notice to Xxxxxx within fifteen (15) calendar
days after the execution of this General Release. Employee has been informed and
understands that any such rescission must be in writing and delivered by hand,
or sent by mail within the 15-day time period to Xxxxxx'x General Counsel,
Xxxxxx Software, 000 Xx. Xxxxx Xxxxxx, Xx. Xxxx, XX 00000. If delivered by mail,
the rescission must be: (1) postmarked within the applicable period and (2) sent
by certified mail, return receipt requested.
Employee understands that Xxxxxx will have no obligations under the General
Release in the event a notice of rescission by Employee is timely delivered.
4. ACCEPTANCE PERIOD; ADVICE OF COUNSEL. The terms of this General Release
will be open for acceptance by Employee for a period of 21 days, during which
time Employee may consider whether or not to accept this General Release.
Employee agrees that changes to this General Release, whether material or
immaterial, will not restart this acceptance period. Employee is hereby advised
to seek the advice of an attorney regarding this General Release.
5. BINDING AGREEMENT. This General Release shall be binding upon, and inure
to the benefit of, Employee and Xxxxxx and their respective successors and
permitted assigns.
6. REPRESENTATION. Employee hereby acknowledges and states that Employee
has read this General Release. Employee further represents that this General
Release is written in language which is understandable to Employee, that
Employee fully appreciates the meaning of its terms, and that Employee enters
into this General Release freely and voluntarily.
7. NON-ADMISSION. It is understood and agreed that this General Release
does not constitute an admission by Xxxxxx of any liability, wrongdoing, or
violation of any law. Further, Xxxxxx expressly denies any wrongdoing of any
kind whatsoever in its actions and dealings with Employee.
8. CONFIDENTIALITY. Employee agrees to keep the terms and existence of this
General Release strictly confidential in accordance with the confidentiality
provisions of the Agreement.
9. CONTINUING OBLIGATIONS. Employee acknowledges and agrees to his
continuing obligations under the Agreement.
10. SAVINGS CLAUSE. If any provision of this Release is determined later to
be unenforceable or illegal, other than the provisions contained in Paragraph 2
above, the remaining provisions shall remain in full force and effect. If the
release contained in Paragraph 2(A) is held to be void or unenforceable in any
respect, this entire General Release shall be voidable at Xxxxxx'x option.
Nothing in this General Release is intended to or shall be construed as
entitling Xxxxxx to abrogate or require tender back of the severance payment of
Paragraph 1(A) relating to the enforcement of Paragraph 2(B).
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11. AMENDMENTS. No amendment or modification of this General Release shall
be deemed effective unless made in writing and signed by Employee and Xxxxxx,
and approved by the Board of Directors of Xxxxxx.
EMPLOYEE
Signature
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Printed Name
------------------------------------
Date
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XXXXXX ASSOCIATES, INC.
By
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Its
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Date
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