CONFIDENTIAL SEVERANCE AGREEMENT
This Confidential Severance Agreement ("Agreement") is made in the
State of Arizona by and between Xxxxxx X. Xxxxx ("Employee"), and Viasoft, Inc.,
a Delaware corporation, its direct and indirect subsidiaries and affiliates, and
its and their respective businesses (the "Company").
RECITALS
WHEREAS, Employee is employed by the Company; and
WHEREAS, the parties have mutually agreed that Employee will resign as
an officer and employee of the Company; and
WHEREAS, the parties desire to express in a written agreement their
mutual agreements, covenants, promises, and understanding with respect to the
termination of Employee's employment relationship.
AGREEMENT
NOW THEREFORE, in consideration of the premises and the mutual
agreements, covenants, and provisions contained in this Agreement, the parties
agree and declare as follows:
1. TERMINATION OF EMPLOYMENT. Employee shall deliver his resignation as
an employee and officer of the Company to be effective as of November 20, 1998
(the "Termination Date"), and the Company shall accept such resignation. The
Company shall pay Employee on or before November 30, 1998, for (a) his regular
existing salary through November 20, 1998, (b) a bonus of $26,100 accrued for
performance in the quarter ended September 30, 1998, and (c) his accrued but
unused vacation time, all net of applicable withholding taxes. Employee
acknowledges that following payment of the amounts set forth in the previous
sentence, the Company will have paid Employee all wages and compensation to
which he was entitled as an employee of the Company. The Company agrees not to
make any claim for or otherwise set off the signing bonus previously paid to
Employee. The parties acknowledge and agree that Employee shall not be an
employee of the Company after the Termination Date, notwithstanding Employee's
continued receipt of certain sums as described in this Agreement.
2. SEVERANCE BENEFITS.
x. XXXXXXXXX PAY. The Company will: (1) continue paying
Employee his existing salary, net of applicable withholding, through February
20, 1999, on the Company's regular pay days; and (2) continue Employee's group
health plan coverage through February 20, 1999, with Employee's portion of the
premium for such coverage deducted from the severance payments described above.
The Company also shall reimburse Employee for any valid business expenses he
incurred on or prior to November 20, 1998, in accordance with the Company's
Travel and Expense policy, provided the expenses are submitted to the Company on
or before December 15, 1998. The Company also shall reimburse Employee for
amounts, if any, for which Employee is entitled to reimbursement under the
Company's Employee Stock Purchase Plan through and including the Termination
Date. The Company will not require reimbursement by Employee of any relocation
expenses.
b. CONSIDERATION. Employee acknowledges that it is not the
Company's usual policy to provide all of the severance benefits and other
consideration set forth in this Agreement, and that he would not be entitled to
those benefits and consideration if he were not releasing his Claims under this
Agreement.
3. WAIVER AND RELEASE OF CLAIMS. Employee covenants not to xxx for, and
waives and releases all of his existing rights to, any relief of any kind from
the Company, its insurers, affiliates, divisions, directors, officers,
shareholders, employees, agents, successors, assigns, and members ("the
Employer"), including without limitation all claims that arise out of or that
relate to his employment or the termination of his employment with the Company,
all claims that arise out of or that relate to the statements or actions of the
Employer or any contract or agreement with the Employer, all claims that arise
under the Civil Rights Act of 1964, the Age Discrimination in Employment Act,
the Arizona Employment Protection Act, the Americans with Disabilities Act, and
the Arizona Civil Rights Act, all claims for relief or other benefits under any
federal, state, or local statute, ordinance, regulation, or rule of decision,
all claims that Employer engaged in conduct prohibited on any basis under any
federal, state, or local statute, ordinance, regulation, or rule of decision,
and all claims for attorneys' fees, liquidated damages, punitive damages, costs,
and disbursements ("Claims"). If Employee breaches the covenant not to xxx
described in this paragraph, Employee agrees to indemnify, hold harmless, and
reimburse the Employer for attorneys' fees and costs the Employer incurs
defending Employee's action.
4. INDEMNIFICATION. Notwithstanding any other provision of this
Agreement, the Company agrees to indemnify Employee in accord with Article IX of
the Company's Restated Certificate of Incorporation dated February 23, 1995 as
the same may be amended from time to time.
5. MUTUAL CONFIDENTIALITY.
a. GENERAL STANDARD. The parties intend that the terms and
conditions upon which this matter has been settled, including the provisions of
this Agreement ("Confidential Information"), will be forever treated as
confidential. Employee and the Company will not disclose Confidential
Information to any person or entity at any time, except as provided herein.
b. EXCEPTIONS.
(1) It will not be a violation of this Agreement for
Employee to disclose Confidential Information to his attorneys.
(2) It will not be a violation of this Agreement for
Employee to disclose Confidential Information to his spouse, to his accountants
or to his tax planners, provided that if Employee discloses Confidential
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Information to any such person, he must simultaneously inform that person that
the information is considered confidential, and that the person cannot disclose
the information to any other person without the advance written consent of
Employee and the Company. Any disclosure of Confidential Information by any such
person will be considered a disclosure by Employee.
(3) It will not be a violation of this Agreement for
the Company to disclosure Confidential Information to its attorneys, to its
auditors, to its insurers, to its accountants, to its tax planners, to the
Securities and Exchange Commission, National Association of Securities' Dealers,
or other governmental entities or self-regulatory organizations, to its
affiliates, divisions, directors, officers, shareholders, employees,
representatives, or other agents who have a legitimate reason to obtain the
Confidential Information in the course of performing their duties or
responsibilities for the Company, or as necessary or advisable in compliance
with its disclosure obligations under applicable law or accounting rules.
(4) It will not be a violation of this Agreement for
either party to give truthful testimony in response to direct questions asked
pursuant to an enforceable court order obtained after providing notice to the
other party, which order pays due regard to the concerns for confidentiality
expressed by the parties herein.
6. NON-DISPARAGEMENT. Employee will not disparage, defame, or besmirch
the reputation, character, image, or services of the Company, its affiliates,
divisions, directors, officers, shareholders, employees, or agents.
7. CLAIMS INVOLVING THE COMPANY. Employee will not recommend or suggest
to any potential claimants or plaintiffs or their attorneys or agents that they
initiate claims or lawsuits against the Company or any of its affiliates,
divisions, directors, officers, shareholders, employees, agents, successors, or
assigns, nor will Employee voluntarily aid, assist, or cooperate with any such
claims or lawsuits; provided, however, that this paragraph will not be construed
to prevent Employee from giving truthful testimony in response to direct
questions asked pursuant to a lawful subpoena during any future legal
proceedings.
8. TIME TO CONSIDER AGREEMENT. Employee understands that the Company's
offer as set forth in this Agreement shall expire on December 4, 1998 at 5:00
p.m. unless Employee executes the Agreement and the Company receives it prior to
that time.
9. RETURN OF COMPANY PROPERTY. Employee agrees to promptly return to
the Company all property that belongs to the Company, including without
limitation all equipment, supplies, documents, files, computer disks, and
Employee agrees to remove from any person computer all data files containing
Company information.
10. CONFIDENTIALITY AGREEMENT. Employee acknowledges and reaffirms his
obligations under the Company's Employment Confidentiality and Proprietary
Information Agreement dated June 1, 1998, except as noted in Section 14.
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11. FULL COMPENSATION. The payments made and other consideration
provided under this Agreement constitute full compensation for and extinguish
all Employee's Claims, including, but not limited to, all Claims for attorneys'
fees, costs, and disbursements, and all Claims for any type of legal or
equitable relief.
12. AGREEMENT NOT TO SOLICIT CUSTOMERS. Employee agrees that for a
period of six (6) months after the Termination Date, he will not, either
directly or indirectly, on his own behalf or in the service or on behalf of
others, solicit, divert or appropriate, or attempt to solicit, divert or
appropriate, to any competing business (a) any person or entity whose account
with the Company was sold or serviced (including maintenance) by the Company
during the twelve (12) months preceding the Termination Date, or (b) any person
or entity whose account with the Company has been directly solicited at least
twice by the Company within the twelve (12) month period prior to the
Termination Date.
13. AGREEMENT NOT TO SOLICIT EMPLOYEES AND CONTRACTORS. Employee agrees
that for a period of six (6) months after the Termination Date, he will not,
either directly or indirectly, on his own behalf or in the service or on behalf
of others, solicit, divert or hire away, or attempt to solicit, divert or hire
away, any person then employed by the Company or then serving as a consultant,
sales representative or distributor or reseller of the Company.
14. SUPERSEDES PRIOR OBLIGATIONS. The parties agree that Sections 12
and 13 specifically supersede the obligations of Employee under Section 2(c) of
his Employment Confidentiality and Proprietary Information Agreement.
15. EMPLOYEE COOPERATION. Employee agrees to cooperate in all
reasonable requests of the Company, in connection with any litigation,
administrative proceeding or any other claim of a third party against the
Company relating to acts or omissions of Employee or of which Employee would
have personal knowledge or other information, including, without limitation,
providing information, deposition testimony, appearing in court, etc. The
Company agrees to pay Employee all reasonable out-of-pocket expenses in
connection with such assistance.
16. NO ADMISSION OF WRONGDOING. This Agreement does not constitute an
admission that any person or entity violated any local, state, or federal
ordinance, regulation, ruling, statute, rule of decision, or principle of common
law, or that any person or entity engaged in any improper or unlawful conduct or
wrongdoing. Employee will not characterize this Agreement or the payment of any
money or other consideration in accord with this Agreement as an admission or
indication that any person or entity engaged in any improper or unlawful conduct
or wrongdoing.
17. LEGAL REPRESENTATION. Employee acknowledges that the Company has
advised him to consult a lawyer regarding this Agreement before signing it.
Employee acknowledges that he has had a full opportunity to consider this
Agreement, that he has had a full opportunity to ask any questions that he may
have concerning this Agreement, and that in deciding whether to sign this
Agreement he has not relied upon any statements made by the Company or its
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attorneys, other than the statements made in this Agreement. Employee further
acknowledges that he has read and understands the contents to this Agreement and
that he executes this Agreement knowingly and voluntarily and based upon and
with the opportunity to obtain independent legal advice of his own choosing.
18. AUTHORITY. Employee represents and warrants that he has the
authority to enter into this Agreement, and that he has not assigned any Claims
to any person or entity.
19. INVALIDITY. In the event that a court of competent jurisdiction
determines that any provision of this Agreement is invalid, illegal, or
unenforceable in any respect, such a determination will not affect the validity,
legality, or enforceability of the remaining provisions of this Agreement, and
the remaining provisions of this Agreement will continue to be valid and
enforceable.
20. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and
inure to the benefit of the parties and their respective heirs, representatives,
successors, and assigns.
21. ENTIRE AGREEMENT. This Agreement and the other agreements
referenced herein are intended to and do define the full extent of the legally
enforceable undertakings of the parties, and no promises or representations,
written or oral, that are not set forth explicitly in this Agreement are
intended by any party to be legally binding, and all other agreements and
understandings between Employee and the Company relating to Employee's
employment with the Company are hereby superseded. No provision of this
Agreement shall be amended, waived, or modified except by an instrument in
writing, signed by all parties hereto.
22. HEADINGS. The descriptive headings of the paragraphs and
subparagraphs of this Agreement are intended for convenience only, and do not
constitute parts of this Agreement.
23. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
24. GOVERNING LAW. This Agreement will be construed in accord with, and
any dispute or controversy arising from any breach or asserted breach of this
Agreement will be governed by, the laws of the State of Arizona.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
dates indicated below.
DATED this 3RD day of December, 1998.
/s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx
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DATED this 3RD day of December, 1998.
Viasoft, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx
Chairman, President and CEO
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 3RD day of
December, 1998, by XXXXXX X. XXXXXXX.
/s/ Xxxx X. Xxxxxxx
-----------------------------------------
Notary Public
My Commission Expires:
MARCH 30, 2000
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 3RD day of
December, 1998, by XXX XXXXX .
/s/ Xxxx X. Xxxxxxx
-----------------------------------------
Notary Public
My Commission Expires:
MARCH 30, 2000
