EXHIBIT 10.19
AMENDED EMPLOYMENT AGREEMENT
This Amended Employment Agreement (the "Agreement") made and entered
into effective as of February 23, 2004, by and between DATAKEY, INC., a
Minnesota corporation (the "Company" or "Datakey"), and XXXX X. XXXXXX
("Xxxxxx").
RECITALS
Xxxxxx joined the Company in June 1992 as Vice President and Chief
Financial Officer (CFO) and has served in this capacity since that time. On
January 1, 1999, the Company and Xxxxxx signed an employment agreement.
Effective as of February 23, 2004, Xxxxxx resigned his position and agreed to
serve as a non-officer employee pursuant to the terms and conditions of this
Agreement.
AGREEMENT
1. Employment.
Xxxxxx agrees that for the term of this Agreement, he will assist Xxx
Xxxxxxx ("Xxxxxxx") in the CFO transition and carry out such other duties as
Xxxxxxx may from time to time reasonably require of him. Xxxxxx shall be
available an average of 20 hours per week to perform these duties unless
otherwise agreed by Xxxxxxx. Xxxxxx will be required to be in the Company's
offices only on an as-needed basis. Xxxxxx will be afforded office space, to the
extent it is available, when he is requested to be at the Company's offices.
Xxxxxx agrees that he will neither discuss with nor respond to any queries from
external parties such as bankers, analysts, customers, investors, etc. relating
in any manner to Datakey business matters.
2. Term of Employment.
Subject to the terms and conditions hereof, Xxxxxx shall be employed
for a term ("Employment Term") commencing effective as of February 23, 2004, and
terminating on August 23, 2004.
3. Compensation.
a. As compensation for his services to Datakey, Xxxxxx shall be paid a
monthly salary of $5.906.25 over the six-month term payable in accordance with
Datakey's periodic payment periods.
b. In addition to his compensation described in 3a above, Xxxxxx will
be paid $11,812.50 per month over the six-month term of this Agreement in lieu
of any future severance payments which may have become due to him under his
employment agreement dated January 1, 1999.
c. All payments made to Xxxxxx under this Section 3 shall be made
subject to normal withholding taxes and health insurance payments required under
Section 7c below.
4. Other Benefits.
a. During the term of this Agreement, Xxxxxx will be eligible to
continue participation in the 401-K plan subject to such changes as Datakey may
adopt from time to time for employees of the Company.
b. The Company will continue to provide medical and health coverage,
under its plans as they currently exist or may hereafter be amended, at the
customary employee subsidized rates during the term of this Agreement and for
six months thereafter. Thereafter, Xxxxxx and his covered dependents will be
entitled to elect to continue coverage under COBRA to the extent it is
available. Whether medical and health coverage for Xxxxxx and his family is
being provided by the Company or COBRA, such coverage will be discontinued at
such time as Xxxxxx obtains new employment which provides medical and health
coverage for himself and his family through his new employer.
EXHIBIT 10.19
c. For the term of this Agreement and for six months thereafter, the
Company will continue and pay for supplemental life insurance in the amount of
$200,000 for Xxxxxx.
d. For the term of this Agreement and for six months thereafter, the
Company will continue and pay 90% of the premium for supplemental long-term
disability insurance paying $4,000 per month.
e. The Company will provide outplacement counseling of Xxxxxx'x choice
at a cost of up to $6,000, any such fee to be paid directly to the outplacement
counselor.
5. Termination.
a. Notwithstanding Section 2 above, the Employment Term shall terminate
upon the happening of any of the following events:
(i) Mutual written agreement between the Board of Directors of
Datakey and Xxxxxx to terminate his employment;
(ii) Xxxxxx'x death;
(iii) Xxxxxx'x disability, defined as physically or mentally
unable to perform his duties as an employee of the Company for
a period of three consecutive months;
(iv) For cause (as defined below) upon written notice from the
Board of Directors specifying the nature of the cause;
(v) Termination by the Company or voluntary resignation by the
Xxxxxx for any reason; or
(vi) Employment by another company. The parties agree that
acceptance of employment that is part-time or temporary in
nature and does not interfere with Xxxxxx'x agreement to be
available 20 hours per week to perform duties assigned by
Xxxxxxx will not be deemed to be cause for termination or a
voluntary resignation.
b. For purposes of this Agreement, "cause" shall include the commission
of any felony, any act of fraud or dishonesty in connection with the affairs of
Datakey, failure to reasonably perform a task assigned by Xx. Xxxxxxx, or having
unauthorized contacts relating to Datakey business with parties who are not
employees, directors or consultants of Datakey. Cause shall not include failure
to perform a task if such a task could not reasonably have been performed by an
employee working half time. Furthermore, in order for the Company to terminate
Xxxxxx for cause because of unauthorized contacts, the Company will have to show
that such contacts were made intentionally and with knowledge that they were in
violation of this Section 5b.
6. Payment Upon Termination of Employment for Cause or Voluntary
Resignation.
If Xxxxxx is terminated for cause, Xxxxxx shall not be eligible to
receive any additional compensation or other benefits except as set forth in
this Section 6. The date of termination under this Section 6 shall be on the day
the notice of termination for cause is given or the day the notice of
resignation is given. Notwithstanding any termination under this Section 6,
Xxxxxx shall be entitled to the balance of any payments in lieu of severance due
to him under Section 3b above payable over the balance of the term of this
Agreement. In any termination under this Section 6, the benefits under Section 4
above will cease.
7. Payment Upon Termination of Employment Without Cause.
a. If during the term of this Agreement Xxxxxx is terminated without
cause, and without cause shall only include death or mutual agreement, Xxxxxx or
his estate shall be entitled to receive his agreed compensation and payments in
lieu of severance benefits as provided in Sections 3a and 3b and other benefits
under Section 4 for the balance of the term of this Agreement. In addition, the
benefits under Section 4, except for 401(k) benefits under Section 4a, will
continue to accrue for six months after termination under this Section 7.
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EXHIBIT 10.19
b. The payments provided for under this Section 7 shall, in the event
of Xxxxxx'x death, be payable to his wife if she survives or, if not, to his
estate.
8. Nondisclosure.
Except by written permission from Datakey, Xxxxxx shall never disclose
or use any trade secrets, sales projections, formulations, customer lists or
information, product specifications or information, credit information,
production know-how, research and development plans or other information not
generally known to the public ("Confidential Information") acquired or learned
by Xxxxxx during the course, and on account, of his employment, whether or not
developed by Xxxxxx, except as such disclosure or use may be required by his
duties to Datakey, and then only in strict accordance with his obligations of
service and loyalty thereto. Upon termination of employment, Xxxxxx agrees to
deliver to Datakey all Confidential Information in his possession or under his
control.
9. Inventions.
Any invention, discovery, improvement, or idea, whether patentable or
copyrightable or not, and whether or not shown or described in writing or
reduced to practice ("Invention") shall be promptly and fully disclosed by
Xxxxxx to the Company, and the Company will hold in trust for its sole right and
benefit, any Invention that Xxxxxx, during the period of employment, and for one
year thereafter, make, conceive, or reduce to practice or cause to be made,
conceived, or reduced to practice, either alone or in conjunction with others,
that:
a. Relates to any subject matter pertaining to Xxxxxx'x employment with
the Company;
b. Relates to or is directly or indirectly connected with the Company's
business, products, projects, or Confidential Information; or
c. Involves the use of any time, material, or facility of the
Company's.
Xxxxxx hereby assigns to the Company all of his right, title, and
interest in and to all such Inventions and, upon the Company's request, shall
execute, verify, and deliver to the Company such documents including, without
limitation, assignments and applications for Letters Patent, and shall perform
such other acts, including, without limitation, appearing as a witness in any
action brought in connection with this Employment Agreement that is necessary to
enable the Company to obtain the sole right, title, and benefit to all such
Inventions.
10. Use and Purchase of Laptop Computer.
During the term of this Agreement, Xxxxxx will have the right to use
the laptop computer he is currently using at the office or away from the office.
At the end of his employment term, Xxxxxx may purchase the laptop computer at
its then current book value. This payment will be deducted from Xxxxxx'x last
payroll check. Xxxxxx agrees that any Datakey Confidential Information contained
in the laptop computer programs, files and records is subject to the disclosure
prohibitions of Section 8 above.
11. Specific Performance.
Xxxxxx acknowledges that a breach of this Employment Agreement would
cause Datakey irreparable injury and damage which could not be remedied or
adequately compensated by damages at law; therefore, Xxxxxx expressly agrees
that Datakey shall be entitled, in addition to any other remedies legally
available, to injunctive and/or other equitable relief to prevent a breach of
this Employment Agreement.
12. Noncompetition.
a. For a period of one year after termination of this Agreement for any
reason, Xxxxxx will not, directly or indirectly, alone or in any capacity with
another legal entity, (i) engage in any activity that competes in any respect
with Datakey, (ii) contact or in any way interfere or attempt to interfere with
the relationship of Datakey with any current or potential customers of Datakey,
or (iii) employ or attempt to employ any employee of Datakey (other than a
former employee thereof after such employee has terminated employment with the
Datakey).
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EXHIBIT 10.19
x. Xxxxxx acknowledges that Datakey markets products throughout the
United States and that Datakey would be harmed if Xxxxxx conducted any of the
activities described in this Section 12 anywhere in the United States.
Therefore, Xxxxxx agrees that the covenants contained in this Section 12 shall
apply to all portions of, and throughout, the United States.
x. Xxxxxx acknowledges that if he fails to fulfill his obligations
under this Section 12, the damages to Datakey would be very difficult to
determine. Therefore, in addition to any other rights or remedies available to
Datakey at law, in equity, or by statute, Xxxxxx hereby consents to the specific
enforcement of the provisions of this Section 12 by Datakey through an
injunction or restraining order issued by the appropriate court.
d. To the extent any provision of this Section 12 shall be invalid or
unenforceable, it shall be considered deleted herefrom and the remainder of such
provision and this Section 12 shall be unaffected and shall continue in full
force and effect. In furtherance to and not in limitation of the foregoing,
should the duration or geographical extent of, or business activities covered
by, any provision of this Section 12 be in excess of that which is valid and
enforceable under applicable law, then such provision shall be construed to
cover only that duration, extent or activities which are validly and enforceably
covered. Xxxxxx acknowledges the uncertainty of the law in this respect and
expressly stipulates that this Section 12 be given the construction which
renders its provisions valid and enforceable to the maximum extent (not
exceeding its expressed terms) possible under applicable laws.
13. Release of Claims.
a. In consideration of the new Employment Agreement entered into with
Xxxxxx, and the compensation and benefits provided therein, by signing this
Agreement, Xxxxxx releases and forever discharges Datakey from any and all
manner of claims, demands, actions, liability, damages Xxxxxx may have against
Datakey or any affiliates of Datakey, whether known or unknown in connection
with law or equity, contract, or tort, arising out of or in connection with
Xxxxxx'x employment through February 23, 2003, and his Employment Agreement
dated January 1, 1999, including specifically Xxxxxx'x resignation as Chief
Financial Officer of Datakey.
b. This release includes, without limiting the generality of the
foregoing, any claims you may have for wages, bonuses, commissions, penalties,
deferred compensation, vacation pay, separation benefits, defamation, invasion
of privacy, negligence, improper discharge (based on contract, common law, or
statute, including any federal, state or local statute or ordinance prohibiting
discrimination or retaliation in employment), alleged violation of the United
States Constitution, the Minnesota Constitution, the Age Discrimination in
Employment Act, 29 U.S.C. Section 621 et seq., the Minnesota Human Rights Act,
Minn. Stat. Section 363.01 et seq., Title VII of the Civil Rights Act, 42 U.S.C.
Section 2000e et seq., the Americans with Disabilities Act, 42 U.S.C. Section
12101 et seq., the Employment Retirement Income Security Act of 1976, 29 U.S.C.
Section 1001 et seq., the Family and Medical Leave Act, 29 U.S.C. Section 2601
et seq., any claim arising under Minn. Stat. Chapters 177 and 181, any claim for
retaliation arising under Minn. Stat. Chapter 176, and any claim for
discrimination or retaliation based on sex, race, color, creed, religion, age,
national origin, marital status, sexual orientation, disability, status with
regard to public assistance, sexual harassment, or any other protected class
status.
14. Notice of Right to Consult Attorney and Twenty-One (21) Day
Consideration Period. By signing this Agreement, you acknowledge and agree that
Datakey has informed you by this Agreement that (1) you have the right to
consult with an attorney of your choice prior to signing this Agreement, and (2)
you are entitled to twenty-one (21) days from the receipt of this Agreement to
consider whether the terms are acceptable to you. Datakey encourages you to use
the full 21-day period to consider this Agreement but you have the right, if you
choose, to sign this Agreement prior to the expiration of the twenty-one (21)
day period.
15. Notification of Rights under the Minnesota Human Rights Act (Minn.
Stat. Chapter 363) and the Federal Age Discrimination in Employment Act (29
U.S.C. Section 621 et seq.). You are hereby notified of your right to rescind
the release of claims contained in Section 6 with regard to claims arising under
the Minnesota Human Rights Act, Minnesota Statutes Chapter 363, within fifteen
(15) calendar days of your signing this Agreement, and with regard to your
rights arising under the federal Age Discrimination in Employment Act, 29 U.S.C.
Section 621 et seq., within seven (7) calendar days of your signing this
Agreement. The two rescission periods shall run concurrently. In order to be
effective, the rescission must
a. Be in writing; and
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EXHIBIT 10.19
b. Delivered to Xxxxxxx Xxxxxxx at Datakey, Inc., 000 Xxxx
Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000-0000.
c. If delivered by mail, the rescission must be postmarked
within the required period, properly addressed to Xxxxxxx Xxxxxxx, as set forth
above, and sent by certified mail, return receipt requested.
This Agreement will be effective upon the expiration of the 15-day period
without rescission. You understand that if you rescind this Agreement in
accordance with this Section 15 you will not receive the severance payments
described in Section 3 and you will be obligated to return any such payments if
already received.
16. Certification of 2003 Financial Statements. Since Xxxxxx was the
Company's Chief Financial Officer in 2003, he agrees to certify the Company's
2003 financial statements. Such certification will be an internal certification
and will be used by the current Chief Financial Officer and Chief Executive
Officer as a basis for their public certifications of the 2003 financial
statements.
17. Miscellaneous.
a. Waiver by Datakey of a breach of any provision of this Agreement by
Xxxxxx shall not operate or be construed as a waiver of any subsequent breach by
Xxxxxx.
b. This Agreement shall be binding upon and inure to the benefit of
Datakey, its successors and assigns, and as to Xxxxxx, his heirs, personal
representatives, estate, legatees, and assigns.
c. This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements, and specifically the Employment Agreement dated January 1, 1999,
whether written or oral relating hereto.
d. This Agreement shall be governed by and construed under the laws of
the State of Minnesota.
IN WITNESS WHEREOF, the parties have hereto executed this Employment
Agreement effective as of the day and year first above written.
DATAKEY, INC.
/s/Xxxxxxx Xxxxxxx
-----------------------------------
By: Xxxxxxx Xxxxxxx, Chief Executive
Officer
/s/Xxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxxx
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