EXHIBIT 10.2
ADDENDUM TO EMPLOYMENT AGREEMENT
THIS ADDENDUM TO EMPLOYMENT AGREEMENT ("Agreement") is entered into and
made effective as of the 19th day of February, 2002 between Clarus Corporation,
a Delaware corporation ("Company"), and Xxxxxx X. Xxxxxxx, a resident of Georgia
("Employee") (collectively, the "Parties").
WHEREAS, Employee is employed by the Company and the Parties have
previously entered into that certain Employment Agreement between
Employee and the Company dated as of April 1, 2001 (the "Employment
Agreement"), and the parties desire to modify certain agreements
concerning such employment as set forth herein.
NOW THEREFORE, in consideration of the foregoing, the payment set forth
below, the mutual promises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties hereto, intending to be legally bound, agree as follows:
1. Payment to Employee. Subject to the provisions below, the
Parties acknowledge that the Employee's employment with the
Company will continue until the earlier of (i) March 7, 2003, or
(ii) such time as Employee commences new employment (as defined
below). From and after the date hereof and until termination of
Employee's employment with the Company, Employee's full time
duties will include such services as may be requested by the
Chief Executive Officer of the Company from time to time, it
being understood that it is not required that Employee perform
such duties at the offices of the Company. The Company agrees
that in the event that Employee's employment with the Company
terminates prior to March 7, 2003, the Company will continue to
pay to Employee his current base salary as severance until July
7, 2002, and thereafter until the earlier of: (x) March 7, 2003,
or (y) such date on which Employee commences new employment. For
purposes of this Agreement, commencement of new employment shall
mean that Employee has undertaken contract employment or service
as a consultant or independent contractor of greater than 20
hours per week and/or full time employment, but shall
specifically not include volunteer work for no compensation.
Payments made hereunder shall be payable on a semi-monthly basis
in accordance with the Company's regular payroll practices and
subject to any and all withholdings pursuant to applicable law,
and will be mailed to Employee at his most recent home address as
reflected by the Company's personnel/payroll files. Employee will
also be paid a prorata portion of any incentive compensation
earned by Employee for the first quarter 2002, per Employee's
2001 Compensation Plan, prorated through March 8, 2002, but will
not be entitled to any additional incentive compensation after
such date.
2. Stock Options. The parties acknowledge that Employee will
have a period of ninety days following the date of the
termination of his employment to exercise any Company
stock options that are, or become vested prior to the termination
of his employment with the Company.
3. Employee Benefits. The Parties understand and agree that
effective with the termination of Employee's employment with the
Company, all of Employee's benefits with the Company will
terminate, subject only to any notice and continuation
requirements established by applicable law. Notwithstanding the
foregoing, the Parties acknowledge that Employee may elect to
continue under COBRA the medical, dental, and/or other health
insurance coverage(s) in which Employee is enrolled as of the
date hereof, and the Company will continue to pay that portion of
the premiums therefor which is currently paid by the Company
until the earlier of (a) March 7, 2003, or (b) the last day of
the month in which Employee becomes enrolled and insured under
new insurance coverage.
4. Release and Waiver. As of the date hereof and as of the date of
termination of Employee's employment with the Company (which
shall be affirmed at such time by Employee's acceptance of any
severance payment hereunder), Employee hereby irrevocably and
unconditionally releases and forever discharges the Company and
each of its employees, agents, directors, officers, shareholders,
partners, trustees, predecessors or successors in interest,
assigns, attorneys, representatives, and those companies
affiliated with or related to the Company or such aforementioned
individuals of the Company (and all persons acting by, through,
under, or in concert with any of them) from any and all claims,
complaints, demands, rights, actions, causes of action of any and
every kind, damages, losses, liabilities, obligations, and
costs/expenses of any and every kind, whether known or unknown,
foreseen or unforeseen, direct or indirect, fixed or contingent,
suspected or unsuspected, and whether or not liquidated, that may
have existed or accrued or which is based on any action, fact,
occurrence or omission at any time on or before the execution of
this Agreement. Specifically, Employee acknowledges that such
claims or potential claims include (but are not limited to) those
that may have arisen from or were related to:
(a) his employment with the Company;
(b) the cessation of his employment with the Company;
(c) salary, pay, compensation, commissions/incentive
compensation, bonuses of any kind, severance pay, insurance,
stock awards and options, employee benefits and/or plans,
relocation and other business expenses;
(d) any contract, tort, wrongful or constructive discharge or
workers' compensation theory;
(e) relating to any alleged violation of or alleged harassment
or discrimination on the basis of sex (gender), race, age,
color, religion, disability/handicap, national origin, or
"protected activity" under the National Labor Relations Act,
as amended, Title VII of the Civil Rights Act of 1964 as
amended, 42 U.S.C. ss. 2000(e) et seq., the Civil Rights Act
of 1991, Section 1981 of the Civil Rights Act of 1866, as
amended, the Americans with Disabilities Act,
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the Rehabilitation Act of 1973, the Age Discrimination in
Employment Act, the Equal Pay Act, the Family and Medical
Leave Act (FMLA), 29 U.S.C. ss. 2611 et seq., Executive
Order 11246, the Employee Retirement Income Security Act of
1974 (ERISA), the Veterans' Reemployment Rights Act, 38
U.S.C. xx.xx. 22021-26, the Fair Labor Standards Act, or the
Occupational Safety and Health Act, including any amendments
and/or revisions to those laws, and any other similar
federal, state, or local anti-discrimination laws;
(f) any other terms and conditions of employment, any employment
practices related thereto, or any contract with or
contractual obligation of the Company.
The Employee hereby covenants not to xxx the Company (or any
other person or entity listed above) on account of any claim
released hereby, excluding any claim that may arise out of
compliance with or enforcement of this Agreement.
5. Confidentiality. Employee acknowledges and agrees to keep the
existence and terms of this Agreement strictly confidential.
Employee further agrees not in any way to reference, use,
publish, distribute, or disclose any information or document
regarding this Agreement or any of its contents or terms to any
entity or person whatsoever (including any current or former
employees of the Company), unless compelled by a court of
competent jurisdiction.
6. No Admission of Liability. No part of this Agreement or any
action on the part of either Party in resolving the matters set
forth herein Party shall be considered or shall constitute an
admission by said Party of any wrongful conduct or violation of
any law or that said Party was at any time entitled to relief for
any action or conduct of the other Party (or any agent or
employee thereof). The Parties further agree that they continue
by this Agreement to maintain and affirm that their respective
conduct (and that of any agent or employee) has not been in any
way wrongful or in violation of any law. The Parties also agree
that the actions agreed to be undertaken in this Agreement, as
well as the fact of resolution itself, shall not have any
precedential effect whatsoever.
7. Non-Disparagement. Employee agrees that he shall not undertake
any disparaging or harassing conduct directed at the Company
and/or its directors, managers, supervisors, employees, agents,
predecessors/successors/assigns, or their respective
products/services and that he shall refrain from making any
disparaging or harassing statements concerning such entities,
individuals, or products/services to any third party. Company
agrees that it will not undertake any disparaging or harassing
conduct directed at Employee and that it shall provide positive
reference information as reasonably requested by Employee.
8. Affirmation of Protective Covenants. Employee affirms that he
remains bound by and agrees that he shall fully comply with all
post-termination covenants and obligations contained in the
Employment Agreement including, specifically those covenants
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contained in Paragraphs 5(a), (b), (c) and (d) of said Employment
Agreement, which Employee acknowledges, by the terms thereof,
will survive the cessation and termination of Employee's
employment with the Company. All such obligations and covenants
contained in said Employment Agreement are hereby incorporated by
express reference as if fully set forth herein.
Employee further acknowledges that by virtue of his position with
the Company, Employee has been given an opportunity to
participate in strategic planning with respect to competitors of
the Company and has been made privy to the Company's marketing
strategy, product development, pricing, timing and other matters
specifically designed to address market competition. Employee
further acknowledges that the use and/or disclosure by him of
such secret information and knowledge would be inevitable in the
event Employee were to become engaged by such a competitor of the
Company in a capacity similar to the capacity in which Employee
is employed by the Company. Employee therefore specifically
hereby affirms the post-termination restrictive covenants set
forth in Section 5(a) of the Employment Agreement and agrees to
fully comply with the terms thereof.
9. Return of Company Property. Employee acknowledges that he has
returned to the Company all Company property that he has received
in the course of his employment, including but not limited to all
confidential information and materials, computer or
computer-related equipment and software, office equipment and
supplies, files and records, credit cards, keys, and any other
computer property in his possession; provided that Employee shall
be entitled to retain his laptop computer.
10. Legality and Severability. The Parties covenant and agree that
the provisions contained herein are reasonable and are not known
or believed to be in violation of any federal, state, or local
law, rule or regulation. In the event a court of competent
jurisdiction finds any provision herein (or subpart thereof) to
be illegal or unenforceable, the Parties agree that the court
shall modify said provision(s) (or subpart(s) thereof) to make
said provision(s) (or subpart(s) thereof) and this Agreement
valid and enforceable. Any illegal or unenforceable provision (or
subpart thereof), or any modification by any court, shall not
affect the remainder of this Agreement, which shall continue at
all times to be valid and enforceable.
11. Entire Agreement; Modification; Governing Law. This Agreement
(including the continuing and surviving covenants or obligations
contained in the Employment Agreement that have been incorporated
by express reference as if fully set forth herein pursuant to
Paragraph 7 above) constitutes the entire understanding between
the Parties regarding the subject matters addressed herein and
supersedes any prior oral or written agreements between the
Parties. To the extent of any conflict between the provision of
Sections 2 and 3 of this Agreement and the terms of the
Employment Agreement, the parties agree that this Agreement shall
control. This Agreement can only be modified by
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a writing signed by both Parties, and shall be interpreted in
accordance with and governed by the laws of the State of Georgia
without regard to the choice of law provisions thereof.
Notwithstanding the foregoing, said continuing and surviving
covenants and obligations contained in Paragraph 7 hereof and
contained in Paragraph 5 of the Employment Agreement shall be
governed and enforced in accordance with the laws of the state in
which enforcement of such provisions is sought.
12. Negotiated Agreement. Employee and the Company agree that this
Agreement shall be construed as drafted by both of them, as
parties of equivalent bargaining power, and not for or against
either of them as drafter.
13. Review and Voluntariness of Agreement. Employee acknowledges
Employee has had an opportunity to read, review, and consider the
provisions of this Agreement, that Employee has in fact read and
does understand such provisions, and that Employee has
voluntarily entered into this Agreement.
14. Attorneys' Fees; Repayment. In the event that either Party
breaches this Agreement and the other Party successfully prevails
in a claim or action against said Party regarding such breach,
the non-prevailing Party in any such claim or action shall pay,
in addition to such sums as may be due or such other relief
(including any appropriate injunctive relief) to which the
prevailing Party may be entitled, reasonable attorneys' fees and
related costs of the prevailing Party as to such claim or action.
Furthermore, and without limiting any right or remedy available
to the Company, Employee agrees that should he breach this
Agreement, the Company shall be relieved of any obligation to
provide the aforementioned consideration/compensation and shall
be entitled to recovery thereof to the extent such has already
been provided.
15. Preamble Incorporation. All of the warranties and representations
in the preamble of this Agreement are hereby incorporated into
and made a material part of this Agreement.
16. Non-Waiver. The failure of the Company or Employee to insist upon
or enforce strict performance of any provision of this Agreement
or to exercise any rights or remedies thereunder will not be
construed as a waiver by the Company or Employee to assert or
rely upon any such provision, right or remedy in that or any
other instance.
17. Forum; Enforcement. In the event of litigation arising from this
Agreement, Employee hereby expressly consents to jurisdiction and
venue in any State or Federal Court sitting in Xxxxxx County,
State of Georgia, and waives any objections to such jurisdiction
and venue. Employee further agrees that if Employee were to
breach the provisions of Paragraph 7 hereof or Paragraphs 5 of
said Employment Agreement, the Company would be irreparably
harmed and therefore, in addition to any other remedies available
at law, the Company shall be entitled to equitable relief,
including without limitation, specific
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performance and temporary, preliminary, and/or permanent
injunctive relief, against any breach or threatened breach
thereof, without having to post bond.
IN WITNESS WHEREOF, the Parties have read, understand, and do
voluntarily execute this Addendum to Employment Agreement.
EMPLOYEE
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Date: 2/19/02
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COMPANY
Clarus Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Date: 2/20/02
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