RESIGNATION AND RELEASE AGREEMENT
This RESIGNATION AND RELEASE AGREEMENT (the "Agreement") among Xxxxxxx X.
Xxxxx ("Xxxxx"), Egghead, Inc. and DJ&J Software Corporation d/b/a Egghead
(D J & J Software Corporation, collectively with Egghead, Inc., "Egghead") is
dated as of February 15, 1997. Xxxxx and Egghead wish to amicably terminate
Xxxxx'x employment with Egghead, and the parties wish to clearly set forth the
terms and conditions of Xxxxx'x departure from his employment. Therefore, in
consideration of the mutual promises and undertakings in this Agreement, Xxxxx
and Egghead agree as follows:
1. RESIGNATION. Effective February 15, 1997 (the "Date of Resignation"),
Xxxxx'x employment with Egghead is terminated. Concurrent thereto, Xxxxx will
resign from his position as a member of the Board of Directors of Elekom
Corporation and from any other designated Egghead responsibilities other than as
provided in Section 2(b) hereof, effective as of the Date of Resignation, except
that Xxxxx shall continue his term on the Board of Directors of Egghead, Inc.
and D J & J Software Corporation until his successor is elected and qualified or
until his earlier death, resignation or removal. The parties acknowledge and
confirm that Xxxxx previously resigned from his positions as President and Chief
Executive Officer of Egghead, Inc. and D J & J Software Corporation, effective
January 30, 1997.
2. PAY PROTECTION.
(a) GUARANTEED PAYMENT. Commencing the Date of Resignation, Egghead
shall pay Xxxxx his current annual base salary of $300,000 for a period of
twenty-four (24) months (the "Severance Period"), less any lawful withholding.
Such amount shall be paid in bi-weekly installments at normal bi-weekly payroll
intervals or pursuant to a payment schedule that is mutually agreeable to the
parties. Xxxxx shall also be paid any unused vacation pay accrued as of the
Date of Resignation, as reflected in Egghead's records, to be paid at the end of
the payroll period next following the Date of Resignation, or pursuant to a
payment schedule that is mutually agreeable to the parties. Xxxxx shall not be
entitled to vacation pay accrual during the Severance Period.
(b) CONSULTING ARRANGEMENT. In consideration for the severance payments
described herein, Xxxxx agrees to provide to Egghead consulting services for a
period not to exceed twelve (12) months from the Date of Resignation. The
purpose of such consulting is to ensure an orderly transition of Xxxxx'x duties.
Such duties shall be rendered in the state of Washington, and at such other
place or places as Egghead shall in good faith
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require, or as the interests, needs, businesses or opportunities of Egghead
shall require. Prior to the time Xxxxx obtains other employment, Xxxxx'x
services on behalf of Egghead shall occur no more than an average of one full
business day per week, and Xxxxx agrees that during such time he shall comply
with all policies, standards, and regulations of Egghead, including but not
limited to, entering into confidentiality agreements. Xxxxx agrees to perform
all duties required to the best of his ability, experience and talents. Egghead
further understands that once Xxxxx obtains alternative employment, his
consulting work will be limited to providing that assistance which does not
interfere with Xxxxx'x employment. At that time, Egghead will make a good faith
effort to limit consulting requests to phone rather than in-person. Egghead
will pay all reasonable and necessary business expenses incurred by Xxxxx while
acting as a consultant for Egghead promptly after receipt from Xxxxx of receipts
or other evidence satisfactory to Egghead verifying such expenses.
(c) DEATH OR DISABILITY. In the event of Xxxxx'x death prior to
completion of the Severance Period, Egghead shall be obligated to continue the
severance payments set forth under Section 2(a) hereof and the COBRA subsidies
set forth under Section 3(b) hereof, if applicable. Upon death, such payments
shall be made to Xxxxx'x spouse, if then living, and if Xxxxx'x spouse is not
then living, said payments shall be paid to Xxxxx'x estate. Other than the
foregoing, Egghead shall have no further obligation to Xxxxx'x estate under this
Agreement in the event of his death.
If Xxxxx is unable to perform his consulting duties pursuant to Section
2(b) for a period of more than twelve (12) weeks, the severance payments set
forth under Section 2(a) otherwise payable to Xxxxx shall be continued for the
entire Severance Period, which shall include the twelve (12) weeks during which
Xxxxx was unable to perform his consulting duties; provided, however, that such
severance payments shall only continue if Egghead has received proof to its
satisfaction that Xxxxx has suffered a total disability. For purposes of this
Agreement, total disability shall mean an illness or physical or mental
incapacity that prevents Xxxxx from carrying out his consulting duties pursuant
to this Agreement. Proof of such disability shall be supplied by Xxxxx in the
form of a written letter of Xxxxx'x physician stating that in the physician's
opinion Xxxxx is physically or mentally incapable of performing his consulting
duties pursuant to this Agreement. Egghead shall have the right to have Xxxxx
examined by a physician of Egghead's choice, solely at Egghead's expense, to
render an opinion as to whether or not Xxxxx is physically or mentally incapable
of performing his consulting duties pursuant to this Agreement. In the event
the physician selected by Xxxxx and the physician selected by Egghead render
contrary opinions, the issue of whether Xxxxx is physically or mentally
incapable of performing his consulting duties pursuant to this Agreement may be
submitted by Egghead
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to arbitration under Washington law, and the decision of such arbitration shall
be final and binding on all parties. So long as severance payments are made to
Xxxxx, Egghead will also continue to make COBRA subsidies, if applicable. Other
than the foregoing, Egghead shall have no further obligation to Xxxxx under this
Agreement in the event of his total disability.
3. EMPLOYEE BENEFIT PROGRAMS.
(a) STOCK OPTIONS. Egghead and Xxxxx agree that there are two groups of
stock options which Xxxxx has had certain rights to exercise. The first group
pertains to a nonqualified stock option to purchase 200,000 shares of common
stock of Egghead, Inc. at an exercise price of $8.125 per share, all of which
are fully vested. The second group pertains to a nonqualified stock option to
purchase 50,000 shares of common stock of Egghead, Inc. at an exercise price of
$10.25 per share, of which rights to purchase 25,000 shares are vested as of the
Date of Resignation (such vested portion to purchase 25,000 shares, together
with the vested option to purchase 200,000 shares described in the preceding
sentence, the "Vested Options"). Egghead agrees to provide Xxxxx two years from
the Date of Resignation to exercise the Vested Options. Egghead, Inc. and Xxxxx
expressly agree that there shall be no further vesting of any options held by
Xxxxx beyond the Date of Resignation or beyond the 225,000 options already
vested. Subject to the foregoing, Xxxxx'x exercise shall be in compliance with
the provisions of Egghead, Inc.'s 1993 Stock Option Plan and with the provisions
of Section 16 of the Securities Exchange Act of 1934, as amended. Any change to
such stock option plan shall not adversely affect Xxxxx'x rights under this
Section 3(a).
(b) COBRA. Except as expressly provided in this Agreement and except as
set forth in the succeeding three sentences of this Section 3(b), all benefits
and perquisites, original, remaining or otherwise, to which Xxxxx may have had
an entitlement immediately prior to the Date of Resignation shall cease
effective the Date of Resignation. At his election, Xxxxx and his family may
continue to participate in Egghead's medical and dental benefit plans governed
by the Comprehensive Omnibus Budget Reconciliation Act ("COBRA") for the time
period provided in COBRA ("COBRA Period"). Egghead will subsidize the cost of
such coverage at the level in effect for Xxxxx and his family as of the Date of
Resignation through the end of the COBRA Period. Xxxxx will pay the balance of
such cost, if any.
4. REFERENCES. Upon request, Egghead will provide a letter of
recommendation for Xxxxx containing his dates of employment and pay confirmation
only. Unless authorized by Xxxxx in writing, Egghead's response to any inquiry
from third parties regarding Xxxxx'x employment with Egghead shall be limited to
this same information.
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5. RELOCATION EXPENSES. Egghead shall reimburse Xxxxx for the cost of
relocating Xxxxx'x residence to any place outside Spokane County, Washington, up
to a total amount not to exceed $80,000, promptly after receipt of valid
receipts submitted by Xxxxx for the costs of moving household goods, farm
equipment and pets and for costs related to the sale of his Spokane residence,
including real estate commissions. No other relocation expenses shall be
reimbursed. Egghead has no obligation to reimburse or pay Xxxxx any amount with
respect to any decrease in the value of Xxxxx'x residential property from the
amount paid by Xxxxx to purchase such residential property. No reimbursement
under this Section 5 will be made after sixty (60) days from the date of Xxxxx'x
final xxxxxxxxx payment received in accordance with the provisions of Section 2
hereof.
6. NON-DISPARAGEMENT. Xxxxx agrees not to make any disparaging or derogatory
remarks, comments or statements about Egghead and its officers, directors, and
employees, or any of them, at any time. Egghead agrees not to, and will
instruct its officers, directors and senior management not to, make any
disparaging or derogatory remarks, comments or statements about Xxxxx at any
time.
7. CONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETITION.
(a) NON-DISCLOSURE. Except as required by applicable law or regulation
and except as may be required to insure compliance with the terms of this
Agreement, Egghead and Xxxxx agree to keep the terms of this Agreement
confidential; provided, that Xxxxx may share its provisions with his spouse,
attorneys, and professional advisors, who will be informed of and bound by this
confidentiality obligation, and Egghead may share its provisions with its senior
management, attorneys, and professional advisors, who will be informed of and
bound by this confidentiality obligation. Xxxxx agrees not to use or disclose
any confidential information. As used herein, "confidential information" means
all non-public information, trade secrets, methods, strategies, practices,
computer programs and systems, research and related documentation, customer
lists and other data, marketing plans, financial information, and all other
compilations of information that relate in any manner to the business of
Egghead, Inc., the direct or indirect subsidiaries of Egghead, Inc., or Egghead
SSI, LLC d/b/a Egghead Computer Surplus (such subsidiaries, together with
Egghead SSI, LLC d/b/a Egghead Computer Surplus, the "Affiliate Entities") or
any of them. Xxxxx acknowledges that all confidential information is the
proprietary and confidential property of Egghead or the Affiliate Entities.
Xxxxx further agrees to return all tangible items containing any confidential
information, wherever located and in whatever form, in addition to all other
property belonging to Egghead or the Affiliate Entities, on or before the Date
of
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Resignation; provided, however, that Xxxxx may retain the FAX machine, printer,
monitor, PC and laptop computer, all as more specifically set forth on the
attached Exhibit A herein incorporated by this reference. Xxxxx will transfer
to Egghead and delete from electronic storage on such PC and peripherals any
confidential information stored therein; provided further, however, Xxxxx is not
obligated to transfer to Egghead, but must simply delete from his personal
records, such information that he knows is duplicative of information already in
Egghead's possession and control. Egghead shall execute such documentation, if
any, required to effect transfer of title in the property listed on Exhibit A.
(b) NON-SOLICITATION. Xxxxx agrees that during the Severance Period he
will not individually, or in conjunction with any other person, corporation or
other entity, in any capacity, directly or indirectly (i) solicit or recruit
any employee of Egghead or any of the Affiliate Entities or (ii) cause or seek
to cause (A) any employee of or consultant to Egghead or any of the Affiliate
Entities to terminate his or her employment or consulting relationship with
Egghead or any of the Affiliate Entities or (B) any customer, client or vendor
of Egghead or any of the Affiliate Entities to alter or terminate any business
relationship with Egghead or any of the Affiliate Entities. "Consultant" as
used in this Section 7(b) shall mean any individual that is a consultant to
Egghead or any Affiliate Entity.
(c) NON-COMPETITION. For a period of two (2) years from the Date of
Resignation, Xxxxx shall not, directly or indirectly, be employed by, own,
manage, operate, join, control or participate in the ownership, management,
operation or control of or "be connected with" (as that phrase is interpreted
below), any person or entity engaged in any operations in competition with
Egghead or any of the Affiliate Entities in the retail sale of computer software
or computer hardware or both, through stores, mail order, telephonic means or
electronic commerce, including, without limitation, through the Internet;
provided, however, that for purposes of this Section 7(c) the following shall be
deemed to be persons or entities not engaged in operations in competition with
Egghead or any of its Affiliate Entities: (i) any person or entity if the sale
of computer software and computer hardware generates less than ten (10) percent
of its total annual revenue and less than ten (10) percent of the total annual
revenue of the division of such person or entity, if any, which Xxxxx is
connected with; (ii) any person or entity that is a software publisher or
hardware manufacturer provided that it generates the substantial majority of its
annual revenue from the sale of products that it developed or manufactured; and
(iii) any person or entity that is an importer of computer hardware provided
that it sells only computer hardware. The Board of Directors of Egghead, Inc.
may, in its sole discretion, release Xxxxx from any or all of his obligations
pursuant to this Section 7(c), provided that such release shall not be effective
unless made in writing.
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Xxxxx shall be deemed to be "connected with" such business if such business is
carried on by a partnership, corporation or association of which he is an
officer, director, employee, partner, member, consultant or agent; provided,
however, that nothing herein shall prevent the purchase or ownership by Xxxxx of
shares which constitute less than 2% of the outstanding equity securities of a
publicly or privately held corporation.
(d) VIOLATION. Xxxxx acknowledges that his confidentiality,
non-solicitation and non-competition obligations under this Section 7 are
material inducements to Egghead in entering into this Agreement, that his
violation thereof shall constitute a material breach of this Agreement and
that any disclosure or action by Xxxxx in violation of this Section 7 will
cause serious and irreparable injury to Egghead for which there is no
adequate remedy at law. If, upon investigation, Egghead determines that Xxxxx
is in material violation of this Section 7, then Egghead may retain as
liquidated damages the balance of the payments coming due Xxxxx under Section
2 hereof, if any, and may obtain immediate and permanent injunctive relief in
any court of competent jurisdiction. If Egghead determines that Xxxxx is in
violation of this Section 7, then Egghead may in its sole discretion provide
Xxxxx an opportunity to cure such violation, but Egghead shall have no
obligation to do so. The rights and remedies set forth in this Section 7 are
in addition to all other legal, equitable and contractual rights and remedies
available to Egghead.
8. REPRESENTATIONS AND WARRANTIES.
(a) BY XXXXX. Xxxxx hereby represents and warrants as follows:
(i) That, to the best of his knowledge, as of the Date of
Resignation, there is no litigation or claim of any kind pending or
contemplated in any court or before any governmental authority or
regulatory body or arbitrator, pertaining to acts or omissions that
occurred within the scope of his employment as an officer of Egghead or as
a member of Egghead's Board of Directors, and that he knows of no facts or
circumstances that would give rise to such litigation or claim.
(ii) That he has reviewed this Agreement with independent legal
counsel, that the terms of this Agreement have been negotiated in good
faith at arms' length, that he has read and understands the terms of this
Agreement and the consequences thereof, and that he enters into this
Agreement as his free, voluntary and independent act.
(b) BY EGGHEAD. Egghead represents and warrants as follows:
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(i) That, to the best of its knowledge, as of the Date of
Resignation, there is no litigation or claim of any kind pending or
contemplated in any court or before any governmental authority or
regulatory body or arbitrator, pertaining to acts or omissions that
occurred within the scope of Xxxxx'x employment as an officer of Egghead,
and that it knows of no facts or circumstances that would give rise to such
litigation or claim;
(ii) That it is a Washington corporation duly authorized and validly
existing under the laws of the State of Washington;
(iii) That this Agreement and the obligations and undertakings
arising hereunder constitute the valid, binding and enforceable obligations
of Egghead; and
(iv) That it will promptly inform its officers, directors and senior
managers of its obligations under the relevant sections of this Agreement.
9. MUTUAL RELEASE. In consideration of the benefits and payments provided
to Xxxxx in this Agreement, and as a material inducement to Egghead to enter
into this Agreement, Xxxxx, individually and for his marital community, heirs,
personal representatives, successors and assigns (collectively "Xxxxx
Releasees"), releases and forever discharges Egghead and the Affiliate Entities,
including any and all of Egghead's and each Affiliate Entity's affiliates,
shareholders, officers, directors, representatives, agents, and employees, each
of their successors and assigns, and each of them (collectively, the "Egghead
Releasees"), from any and all Claims (as defined below) that Xxxxx may have
against any of the Egghead Releasees as of the Date of Resignation. The Egghead
Releasees release and forever discharge the Xxxxx Releasees from any and all
Claims (as defined below) that any of the Egghead Releasees may have against any
of the Xxxxx Releasees as of February 15, 1997. "Claims" as used in this
Section 9 is defined to mean any and all claims, demands, charges, liability,
causes of action, and damages, including without limitation, attorneys' fees and
costs actually incurred, known or unknown, including without limitation, any and
all claims, rights, demands, and causes of action for breach of any employment
contract or agreement (whether express or implied, written or oral), wrongful
discharge, intentional and/or negligent infliction of emotional distress,
defamation, invasion of privacy, tort claims, discrimination on the basis of
marital status, race, sex, national origin, color, religion, handicap or
disability, retaliation, violation of public policy, and violation of any and
all federal, state and/or local statutes, laws, rules, regulations and/or
ordinances, including, but not limited to, Title VII of the Civil Rights Act of
1964, as amended, Sections 1981 through 1988 of Title 42 of the United States
Code, as amended, The
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National Labor Relations Act, as amended, The Employee Retirement Income
Security Act of 1974, as amended, The Americans with Disabilities Act of
1990, as amended, The Family and Medical Leave Act of 1993, The Age
Discrimination in Employment Act of 1967 ("ADEA"), as amended, The Washington
State Wage and Hour Laws, and The Washington Law Against Discrimination, Ch.
49.60 RCW, as amended; except that the term "Claims" does not include (i) any
claims for indemnification that Xxxxx may have as a former officer or
director of Egghead pursuant to the Bylaws of Egghead, Inc. or pursuant to
any policies of insurance held by Egghead, if any, that provide coverage for
liability of former officers and directors of Egghead; (ii) any claims based
on rights created by this Agreement; and (iii) any claims where the events in
dispute first arise after the date of this Agreement. Egghead will not
contest any claim for unemployment compensation filed by Xxxxx, but Egghead
may report the severance payments paid to Xxxxx hereunder as appropriate.
10. TAX LIABILITY. Some or all of the payments and benefits which Xxxxx may
receive hereunder may be deemed income and taxable to Xxxxx under relevant
provisions of the Internal Revenue Code of 1986, as amended, and other federal,
state, and local statutes and regulations (collectively "Codes"). Xxxxx is
advised that Egghead does not "gross up" benefits paid to or on behalf of its
employees. Xxxxx shall have sole responsibility to determine and, to the extent
any withholdings made by Egghead hereunder are insufficient, to pay, and shall
indemnify and hold Egghead harmless from, all taxes coming due under such Codes.
This hold harmless and indemnity obligation covers only those taxes which, in
the ordinary course, would normally be obligations of or paid by Xxxxx.
11. NONADMISSION CLAUSE. This Agreement shall not be construed as an
admission by either party of any liability to the other party, breach of any
agreement between the parties, or violation by either party of any statute, law,
rule or regulation.
12. CONSIDERATION/REVOCATION PERIOD. Xxxxx acknowledges that he has been
informed of his right to fully consider the terms of this Agreement for a period
not to exceed twenty-one (21) days pursuant to applicable provisions of the
ADEA. If Xxxxx chooses to execute this Agreement, he shall have an additional
seven (7) days after signing this Agreement to revoke it by providing written
notice thereof to Egghead addressed to: Xxxxx X. Xxxxxx, Vice President and
Chief Financial Officer, 00000 Xxxx Xxxxxxx Xxx., Xxxxxxx Xxxx, XX 00000.
13. SEVERABILITY. If any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions shall nevertheless
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continue to be valid and enforceable to the maximum extent consistent with
applicable law.
14. COMPLETE AGREEMENT. This Agreement contains the entire understanding and
agreement between the parties in connection with its subject matter and
supersedes any and all other prior and contemporaneous oral or written
agreements, understandings, or representations between the parties pertaining to
same. This Agreement cannot be altered except in a writing signed by Xxxxx and
an authorized representative of Egghead.
15. FURTHER ASSURANCES. The parties agree to execute any further documents and
instruments as may be reasonably necessary to fully carry out the terms and
conditions of this Agreement.
16. ARBITRATION. Except as set forth under Section 2(c) hereof, any
controversy or claim arising out of this Agreement shall be resolved by
arbitration pursuant to this Section 16 and the then current rules and
supervision of the American Arbitration Association ("AAA"); provided, Egghead
may obtain the relief set forth in Section 7 hereof in addition to any
resolution of such claim or controversy by arbitration as provided herein. The
arbitration shall be held in Spokane before a single arbitrator either mutually
agreed upon by the parties or selected in accordance with AAA Rules. The
arbitrator shall have no authority to add to, subtract from, or modify any of
the terms of this Agreement. The arbitrator's decision shall be final and
binding upon the parties and may be entered in any court having jurisdiction.
17. BINDING AGREEMENT. This Agreement shall bind and inure to the benefit of
the parties and their respective heirs, personal representatives, marital
communities, related entities, shareholders, officers, directors, employees,
agents, attorneys, successors and assigns, except that Xxxxx may not assign any
of his rights or delegate any of his duties hereunder without the prior written
consent of Egghead.
18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington without application of the
principles of conflicts of laws, and venue for any proceeding hereunder shall be
in Spokane County, Washington.
19. COUNTERPARTS. This Agreement may be executed on separate counterparts, any
one of which need not contain signatures of more than one
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party, but all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
EGGHEAD, INC.
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx
------------------------- ------------------------------------
Xxxxxxx X. Xxxxx By: Xxxxxx X. Xxxxx, Chairman of
the Board of Directors
D J & J SOFTWARE CORPORATION
/s/ Xxxxxx X. Xxxxx
---------------------------------------
By: Xxxxxx X. Xxxxx
-----------------------------------
Its: Chairman of the Board of Directors
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EXHIBIT "A"
TO
RESIGNATION AND RELEASE AGREEMENT
of
Xxxxxxx X. Xxxxx
EGGHEAD PROPERTY TO BE RETAINED BY XXXXXXX X. XXXXX:
DESCRIPTION OF EQUIPMENT SERIAL OR OTHER I.D. NUMBER
Hewlett Packard Office Jet FAX Egghead #21759
Hewlett Packard Laser Jet 4 Printer Egghead #15156
Toshiba Laptop Computer T2155CDS Egghead #91664
Samsung Computer Monitor H3NF 400003
Toshiba Port Replicator Y2100 02516473
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