Exhibit 10.23
EXECUTION COPY
EMPLOYMENT AGREEMENT TERMINATION AGREEMENT
This Employment Agreement Termination Agreement (the "Agreement") is
hereby entered into this twenty-third day of November, 1998, between Xxxx
Computer Corporation, a Virginia corporation (hereinafter "Xxxx") and Xxxxxx X.
Xxxxxx and D. Xxxxx Xxxxxx (hereinafter "the Fusters"), who are collectively
referred to herein as the "Parties."
WHEREAS, Xxxx entered into Employment Agreements with Xxxxxx X. Xxxxxx
and D. Xxxxx Xxxxxx on or about May 1, 1998 (hereinafter the "Employment
Agreements"), with respect to the Fusters' employment with Xxxx and
International Data Products Corp., a Maryland corporation ("IDP"), a wholly
owned subsidiary of Xxxx, which Agreements expire pursuant to their terms on May
1, 2001; and
WHEREAS, the Parties now desire and agree to terminate the Employment
Agreements, except as specified herein.
NOW, THEREFORE, in consideration of the mutual promises, obligations,
covenants and agreements contained herein, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, agree as follows:
1. TERMINATION. In full and complete settlement of these matters:
a. The Parties hereto agree to terminate the Employment Agreements
with respect to all provisions thereof, except those set forth in paragraph (b)
of Section 4, "Compensation and Benefits," Section 7, "Confidential
Information," Section 8, "Covenant Not to Compete" and Section 11, "Injunctive
Relief," which provisions shall remain in full force and effect hereafter and
are incorporated herein by reference, provided that the "term of Employment"
referred to in Section 8 shall be deemed to conclude as of the date hereof. If
either of the Fusters breaches any of such provisions incorporated herein, he
shall be deemed in breach of this Agreement and, in addition to the remedies set
forth in Section 11 of the Employment Agreement, Xxxx shall be entitled to cease
payments with respect to such breaching Fuster under subparagraph d of this
Section 1 and shall not have any further obligation to the breaching Fuster
under such subparagraph d. In the event that it is later determined in any
judicial or other government proceeding that Xxxx did not have cause to cease
payments to a breaching Fuster under subparagraph d of this Section 1, then the
breaching Fuster shall be entitled to recover from Xxxx (1) any attorneys' fees
and costs incurred by such breaching Fuster in enforcing his right to receive
such payments; (2) the unpaid amount of the Termination Payment (as defined in
subparagraph d of this Section 1); and (3) interest on the amount determined to
have been unjustly withheld (the
"Withheld Amount") at the rate of 9% per annum commencing, with respect to each
monthly payment comprising the Withheld Amount, the date each such payment was
due pursuant to this Agreement.
b. Each of the Fusters agrees to resign his employment with Xxxx,
IDP, PRIMO, and any subsidiaries or affiliates thereof (together, the
"Employers") effective on the date hereof (the "Effective Date").
c. Each of the Fusters agrees to resign, as of the Effective Date,
from (i) any positions as members of the boards of directors of the Employers,
and (ii) any positions as officers of the Employers to which each has been
appointed. The execution of this Agreement shall constitute notice of such
resignations. Each of the Fusters and Xxxx, including any successors, assigns,
affiliates, predecessors, purchasers, heirs, personal representatives,
directors, officers, employees and agents thereof, as the case may be, hereby
covenants that they will not represent or state to any persons that the
resignations of the Fusters contemplated by this Agreement were caused by reason
of any disagreement between the Fusters and Xxxx, on any matter relating to
Xxxx'x operations, policies or practices, or the Fusters' job performance,
except as required by law or by court order. Each of the Parties agrees not to
make any comment, disparaging or otherwise, to any third party relating in any
way to any of the Parties and, to the extent possible, to cause each subsidiary,
affiliate, director, officer, agent and employee of such Party, as applicable,
to refrain from making any such comments; provided, however, that factual
information regarding the Fusters' dates of employment and termination,
positions held and compensation may be provided to prospective employers of the
Fusters.
x. Xxxx agrees to pay each of the Fusters $250,000 (the
"Termination Payment"), to be paid ratably over an 18 month period commencing on
the date hereof, which shall result in a monthly payment of $13,888.89 to each
of the Fusters.
2. CONFIDENTIALITY. Each of Xxxx and the Fusters agrees that the
terms, provisions, and conditions of this Agreement and the negotiations in
pursuance thereof are strictly confidential and shall not be disclosed to any
person or entity, other than counsel or immediate family members, except as
required by law or by court order. The Fusters further agree that a violation of
the terms of this Paragraph is a material breach of this Agreement, for which
Xxxx shall be entitled to cease payments under subparagraph 1.d. with respect to
the breaching Fuster and to recover any attorneys' fees and costs incurred by it
in connection with enforcing this Paragraph, and any other legal, equitable,
injunctive, monetary or other appropriate relief. In the event that it is later
determined by a court of competent jurisdiction that Xxxx did not have cause to
cease payments to the breaching Fuster under subparagraph d of Section 1, then
the breaching Fuster shall be entitled to recover from Xxxx (1) any attorneys'
fees and costs incurred by such breaching Fuster in enforcing his right to
receive such payments; (2) the unpaid amount of the Termination Payment; and (3)
interest on the Withheld Amount at the rate of 9% per annum commencing, with
respect to each monthly payment comprising the
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Withheld Amount, the date each such payment was due pursuant to this Agreement.
Xxxx further agrees that a violation of the terms of this Paragraph is a
material breach of this Agreement, for which the Fusters shall be entitled to
receive a payment equal to the unpaid amount of the Termination Payment and
recover attorneys' fees and costs incurred by them in connection with enforcing
this Paragraph, and any other legal, equitable, injunctive, monetary or other
appropriate relief. The Parties agree that any press release to be issued with
respect to this Agreement, if any, shall be approved by each of the Parties
hereto.
3. RELEASE.
x. Xxxx for itself and its successors, assigns, affiliates,
predecessors, purchasers, and all other persons acting on its behalf or claiming
under it, including without limitation, its stockholders, directors, officers,
employees and agents (separately and collectively, the "Xxxx Releasors"), agrees
that each of the Xxxx Releasors hereby fully and forever irrevocably and
unconditionally releases, remises, acquits, exonerates and discharges each of
the Fusters their heirs, executors, personal representatives, administrators,
successors and assigns, and all persons acting on their behalf (separately and
collectively, the "Fuster Releasees"), of and from any and all grievances,
claims, demands, debts, defenses, suits, actions or causes of action, promises,
proceedings, orders, debts, judgments, contracts, allegations, damages,
obligations, liabilities (except for willful misconduct or illegal activity by
the Fuster Releasees (the executive officers and directors of Xxxx are currently
unaware of any such willful misconduct or illegal activity)), costs and expenses
(including attorney's fees) of whatever kind or nature, whether known or
unknown, suspected or unsuspected, both in law or in equity, in any way arising
on or after the "Commencement Date" (as defined in the Employment Agreements)
through the date hereof, from or relating to the Fusters service as a director,
officer or employee of Xxxx or any of its affiliates pursuant to the Employment
Agreements (the "Fuster Settled Matters"), which any of the Xxxx Releasors ever
had, now has, or can, shall or may have in the future against any of the Fuster
Releasees, and that the terms hereof constitute a full and complete, legally
binding final resolution by the parties of the Settled Matters. Xxxx hereby
irrevocably covenants to refrain from, directly or indirectly, asserting any
claim or demand, or commencing, instituting or causing to be commenced, any
proceeding of any kind against any Fuster Releasee, based upon any matter
purported to be released hereby.
b. The Fusters, for themselves and their heirs, executors, personal
representatives, administrators, successors and assigns, and all other persons
acting on their behalf (separately and collectively, the "Fuster Releasors"),
agrees that each of the Fuster Releasors hereby fully and forever irrevocably
and unconditionally releases, remises, acquits, exonerates and discharges Xxxx
and each of its successors, assigns, affiliates, predecessors and purchasers
(the "Xxxx Releasees"), of and from any and all grievances, claims, demands,
debts, defenses, suits, actions or causes of action, promises, proceedings,
orders, debts, judgments, contracts, allegations, damages,
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obligations, liabilities (except for willful misconduct or illegal activity by
Xxxx (the Xxxxxx Releasees are currently unaware of any such willful misconduct
or illegal activity)), costs and expenses (including attorney's fees) of
whatever kind or nature, whether known or unknown, suspected or unsuspected,
both in law or in equity, in any way arising on or after the Commencement Date,
from or relating to the Employment Agreements and the employment relationship
created thereby, including, but not limited to, any law related to employment,
cessation of employment, or wage matters or prohibiting employment
discrimination ("the Xxxx Settled Matters"), which any of the Fuster Releasors
ever had, now has, or can, shall or may have in the future against any of the
Xxxx Releasees, and that the terms hereof constitute a full and complete,
legally binding final resolution by the parties of the Settled Matters. Each of
the Fusters hereby irrevocably covenants to refrain from, directly or
indirectly, asserting any claim or demand, or commencing, instituting or causing
to be commenced, any proceeding of any kind against any Xxxx Releasee, based
upon any matter purported to be released hereby.
c. The Parties expressly acknowledge that nothing herein shall
alter the rights and obligations of each Party, or create any additional right
or obligation of any Party, with respect to the application of the Fusters and
IDP for eligibility under the 8(a) Program administered by the U.S. Small
Business Administration.
4. D AND O INSURANCE AND INDEMNIFICATION.
x. Xxxx agrees that it will maintain its existing director and
officer liability insurance coverage for a period of 36 months from the date
hereof which will cover the acts of each of the Fusters in their capacities as
officers and directors of Xxxx and any of its affiliates through the date
hereof.
x. Xxxx agrees to indemnify and hold harmless each of the Fusters,
their heirs, executors, personal representatives, administrators, successors and
assigns, and all persons acting on their behalf (each, a "Fuster Indemnified
Person"), from and against all loss, liability, claim, damage (including
incidental and consequential damages) or expense (including costs of
investigation and defense and reasonable attorney's fees) whether or not
involving third party claims, arising directly or indirectly in connection with
the Fuster Settled Matters and will reimburse the Fuster Indemnified Persons for
any loss, liability, claim, damage, expense (including costs of investigation
and defense and attorneys' fees) or diminution of value, whether or not
involving a third-party claim, arising from or in connection with: (i) the
assertion by or on behalf of Xxxx or any of its directors, officers, employees,
agents, consultants, advisors or other representatives including legal counsel,
accountants, financial advisors, shareholders, controlling persons, and
affiliates (collectively, "Related Persons") of any claim or other matter
purported to be released pursuant to this Agreement and (ii) the assertion by
any third party of any claim or demand against any Fuster Releasee which claim
or demand arises directly or indirectly from, or in connection with, any
assertion by or on behalf of Xxxx or any of their Related Persons against such
third party of any claims or other
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matters purported to be released pursuant to this Agreement.
c. The Fusters agree to indemnify and hold harmless each of the
Xxxx Releasees, (each, a "Xxxx Indemnified Person"), from and against all loss,
liability, claim, damage (including incidental and consequential damages) or
expense (including costs of investigation and defense and reasonable attorney's
fees) whether or not involving third party claims, arising directly or
indirectly in connection with the Xxxx Settled Matters and will reimburse the
Xxxx Indemnified Persons for any loss, liability, claim, damage, expense
(including costs of investigation and defense and attorneys' fees) or diminution
of value, whether or not involving a third-party claim, arising from or in
connection with: (i) the assertion by or on behalf of the Fusters or any of
their agents, consultants, advisors or other representatives including legal
counsel, accountants, financial advisors, and affiliates (collectively, "Related
Persons") of any claim or other matter purported to be released pursuant to this
Agreement and (ii) the assertion by any third party of any claim or demand
against any Xxxx Releasee which claim or demand arises directly or indirectly
from, or in connection with, any assertion by or on behalf of the Fusters or any
of their Related Persons against such third party of any claims or other matters
purported to be released pursuant to this Agreement.
5. CERTAIN OBLIGATIONS. Xxxx agrees that Xxxx or one of its
subsidiaries will satisfy the notes payable as listed on Exhibit A hereto (the
"Notes"), in the aggregate amount of $907,391.51, in full by paying the persons
listed on Exhibit A the amount listed opposite their name by check delivered to
the payees on or before November 25, 1998.
6. OPTIONS. The Parties expressly acknowledge that this Agreement is
not intended to alter in any way the rights privileges or obligations associated
with the nonqualified stock option granted to each of the Fusters to purchase
from Xxxx 300,000 shares of Xxxx common stock pursuant to section 4(b) of the
Employment Agreement (the "Options") and that the Options shall continue to
survive in accordance with the terms of section 4(b) of the Employment Agreement
subsequent to the date hereof and any other agreement executed in furtherance of
such provision including the Option Agreements, dated May 1, 1998, by and
between Xxxx and each of the Fusters.
7. MISCELLANEOUS.
a. Each of the Parties further agrees that this Agreement shall be
binding upon and inure to the benefit of his or its assigns, personal
representatives, heirs, executors, and administrators; that this Agreement
contains and comprises the entire agreement and understanding of the Parties
pertaining to the subject matter hereof, except as specifically provided in
Sections 1(a) and 6 hereof and that this Agreement shall not be modified except
through a writing signed by each of the Parties hereto.
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b. The Parties further agree that this Agreement and the rights and
obligations hereunder shall be governed by, and construed in accordance with,
the laws of the Commonwealth of Virginia.
c. The Parties agree that, if any terms of the above provisions of
this Agreement are found null, void or inoperative, for any reason, the
remaining provisions will remain in full force and effect. The language of all
parts of this Agreement shall in all cases be construed as a whole, according to
its fair meaning, and not strictly for or against any of the Parties.
d. The Fusters agree that on or before November 15, 1998, they will
provide to Xxxx a listing of their relatives that currently are employed by any
of the Employers.
e. The Fusters represent that they understand all of the terms of
this Agreement, that they have consulted with an attorney, that, in executing
this Agreement, they did not rely and have not relied upon any representation or
statement made by Xxxx'x agents, representatives, or attorneys with regard to
the subject matter, basis or effect of the Agreement, and that they enter into
this Agreement voluntarily, of their own free will and with knowledge of its
meaning and effect.
f. This Agreement may be executed in one or more counterparts, each
of which together shall constitute one and the same instrument.
g. This Agreement shall not confer any rights or remedies upon any
person other than the parties hereto and their respective successors and
permitted assigns.
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IN WITNESS WHEREOF, the Parties have hereunto executed this
Agreement, this 23 day of November, 1998.
WITNESS/ATTEST: XXXX COMPUTER CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
THE FUSTERS
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ D. Xxxxx Xxxxxx
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D. Xxxxx Xxxxxx
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