SEPARATION AGREEMENT AND GENERAL RELEASE
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EXHIBIT
10.3
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This
Separation Agreement and General Release ("Agreement") is between Wireless Ronin
Technologies, Inc. (the "Company") and Xxxxx X. Xxxxxxxx (referred to in this
Agreement as "I" or "me.")
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1.
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Recital. My
employment and all offices and other positions I may have had with the
Company ended April 21, 2009, with my resignation effective that date (the
"Resignation Date"). For purposes of this Agreement, my
termination is characterized as an involuntary termination without “Cause”
as such term is defined in the Executive Employment Agreement effective
December 4, 2006 between the Company and me, as amended effective December
31, 2008 ("Employment Agreement"). For purposes of facilitating
my search for another job, the Company and I agree to characterize my
termination of employment as a resignation pursuant to mutual agreement
with the Company. This Agreement sets forth certain agreements
between the Company and me with respect to my separation from the
Company.
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2.
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The
Company's Payment and Benefits. Notwithstanding
my resignation, pursuant to this Agreement, the Company will provide to
me:
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2.1
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The
Severance Payment that would have been paid to me upon a termination by
the Company without Cause (and not in connection with a Change of Control)
as described in Section 7.01 of the Employment
Agreement. Pursuant to Section 7.01 of the Employment
Agreement, the Company shall pay the Severance Payment in equal
installments over the non-competition period of one year specified in
Section 9.02 of the Employment Agreement on regularly scheduled pay dates
pursuant to the then current payroll practices of the Company starting
June 5, 2009. The Severance Payment is a total of
$143,000.
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2.2
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The
Severance Bonus of $26,250 that would have been paid to me upon a
termination by the Company without Cause (and not in connection with a
Change of Control) as described in Section 7.03 of the Employment
Agreement, subject to all of the terms and limitations set forth in
Section 7.03 of the Agreement; provided, however, that the Company will
make payment of the Severance Bonus on July 1, 2009, or that date 15 days
following my execution of this Agreement, whichever occurs
later.
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2.3
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Payment
of such portion of the premiums for COBRA coverage by the Company as the
Company would have paid upon a termination by the Company without Cause
(and not in connection with a Change of Control) as described in Section
7.04 of the Employment Agreement, subject to all of the terms and
limitations set forth in Section 7.04 of the Agreement. This
“COBRA coverage” includes medical, dental and life insurance coverage
eligible for COBRA extension pursuant to applicable
law.
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2.4
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All
such benefits and payments will remain subject to the provisions of
Sections 7.01, 7.05, 7.06, 7.07, 7.08, 7.09 and Articles 8, 9 and 10 and
of the Employment Agreement.
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2.5
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In
the event of my death prior to receipt of the entire amount of the
Severance Payment and Severance Bonus, the Company shall make the
remainder of such Severance Payment and the Severance Bonus (if not yet
paid to me) to my estate substantially as provided by Section 2.1 of this
Agreement and Sections 7.01 and 7.03 of the Employment
Agreement.
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3.
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My
Release.
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In
exchange for the consideration provided to me in this Agreement, including the
Company's payment of severance benefits to me, willingness to characterize my
termination of employment as a resignation for job search purposes
notwithstanding the involuntary termination without Cause described herein, the
Company's willingness to allow me to resign, and in consideration of the
Company’s willingness to provide me with a mutually agreed letter of reference,
on my own behalf and on behalf of anyone claiming any rights through me, I fully
and finally release, waive, and give up all My Claims (as defined below) against
the Company and all Related Parties (as defined below).
"Related
Parties" means any parent, subsidiary, predecessor, successor, affiliate or
other organization or entity related to the Company, and any of their past or
present officers, directors, shareholders, employees, committees, insurers,
indemnitors, pension or welfare, and other benefit plans, successors, assigns,
committees, administrators, and all persons acting on behalf of, or on
instruction from the Company or any other related organization or
entity.
"My
Claims" as used in this Agreement means, all claims, actions, causes of action,
demands, and rights I have or may have against the Company or any Related
Parties, arising out of any acts, facts, or events which occurred in whole or in
part before I signed this Agreement whether or not I now know about or suspect
them and whether past or present. "My Claims" includes but is not
limited to, all such claims for damages, compensation, expenses (including
attorneys' fees) and any other form of relief, regardless of the law or legal
theory on which such claim is based and includes but is not limited to all
claims under the federal Age Discrimination in Employment Act ("ADEA"), the
Older Worker's Benefit Protection Act, Title VII of the Civil Rights Act, the
Civil Rights Act of 1991, the American with Disabilities Act, the Employee
Retirement Income Security Act, the Family and Medical Leave Act, the Minnesota
Human Rights Act, as each may have been amended, and all claims of any nature
under any other federal, state, or local statute, ordinance or other law or
legal theory, including any based on wrongful discharge, breach of any contract,
promissory estoppel, emotional distress, defamation, negligence, invasion of
privacy, or any other theory, and including all claims related to my employment
or separation from employment with the Company.
I
understand that I am giving up all of My Claims as described above. I
will not bring any lawsuits against the Company or any Related Party relating to
any of My Claims; provided, however, that I have the right to take action to
enforce my rights pursuant to this Agreement.
1
This
release does not bar those few claims that cannot legally be waived under
applicable law, including my right to challenge whether this Agreement
constitutes a knowing and voluntary waiver of my claims within the meaning of
the Older Workers' Benefit Protection Act. This release also does not
bar me from filing a claim with the EEOC (Equal Employment Opportunity
Commission) or participating in an EEOC proceeding, but if any administrative or
other claims are pursued on my behalf, I understand that this Agreement will act
as a bar to any individual damages or other relief for me. This
release does not waive my rights with respect to any vested benefits under any
retirement plans. This release does not affect my rights, if any,
under the Company’s directors and officers liability insurance
policy. This release does not affect the Company’s obligations to
indemnify me to the fullest extent allowed under Minnesota law and pursuant to
Minnesota Statutes Section 302A.521 for claims, actions or damages made, brought
or assessed against me based upon my employment by the Company. This
release also does not affect my rights to indemnification and defense as more
fully set forth in the Company’s bylaws. The Company will not oppose
or object to my receipt of unemployment insurance benefits pursuant to
applicable law. Except to the extent stated herein, to the fullest
extent allowed by applicable law, it is my intent to waive all of My Claims and
rights and to have this be interpreted as a full and general
release.
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4.
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Additional Agreements
and Understandings.
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4.1
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Final
Payments. I acknowledge and
agree that, upon my receipt of
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·
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Base
Salary payable through the Resignation Date pursuant to Section 4.01 of
the Employment Agreement, which was received on April 25,
2009,
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Base
Salary constituting the Severance Payment through June 5, 2009, on or
about June 5, 2009, as provided in Section 7.01 of the Employment
Agreement
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·
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accrued
but unused paid time off (“PTO”) as of the Resignation Date, which was
received on April 25, 2009,
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·
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each
of which above amounts were or shall be subject to applicable
withholding,
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·
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reimbursement
of any reasonable business expenses incurred by me in carrying out my
duties, properly documented and submitted to the Company but unpaid as of
the Resignation Date, of which there were
none,
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·
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receipt
of the Severance Bonus amount of $26,250 payable pursuant to terms and
conditions described above, and
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receipt
of a mutually agreed letter of reference from the
Company,
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I will
have been paid all wages, salary, other compensation, and benefits due me as an
employee of the Company through June 5, 2009. The Company acknowledges its
obligation to pay the amounts stated in this Section 4.1 subject to my
compliance with terms of this Agreement. I
understand that any interest in any 401K, stock purchase plan or other
similar employee benefit plan, or in any option agreements that I may have as a
former employee of the Company will be governed by the terms the relevant
plan(s) and/or agreement.
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4.2
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Continuing
Obligations. I acknowledge and
agree that the provisions of Sections 6.05, and 6.06, and Articles 8, 9
and 10 of the Employment Agreement remain in full force and effect and
that I remain bound by and obligated under all such provisions in
accordance with their terms. I agree that, after I have
terminated employment, I will not access the Company’s computer systems
for any reason without express prior permission from the Company and will
not in any way harm the Company’s computer systems or
software.
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4.3
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Sufficient
Consideration. I agree that the payments and benefits
described in this Agreement are full and sufficient consideration for my
promises in this Agreement, including but not limited to my
Release.
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4.4
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Cooperation. I agree to
be reasonably available for consultation with and assistance to the
Company with respect to matters and issues within my former job
responsibilities for a period of 60 days after my
termination. I acknowledge and agree that such cooperation with
the Company is necessary for a proper and orderly transition and that the
consideration set forth herein fully compensates me for this reasonable
cooperation.
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4.5
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Return
of Property. On the Resignation
Date and in a meeting with Xxxxx Xxxx shortly after my Resignation Date, I
collected and returned all property of the Company in my possession or
control to the Company. Property of the Company includes but is
not limited to all equipment, communication devices (e.g. cell phones,
laptops, pagers, etc), all information stored in any tangible form,
including electronic (e.g. on disks, hard drives audio or visual tapes,
etc.) and paper forms, and all other property of any nature. To
the extent that I have any information of the Company stored on any
personal or other non-Company equipment or devices, or discover any
additional Company property in my possession, I will deliver such
information and/or Company property to the Company and remove it from all
such personal equipment in a manner and form agreed upon by the
Company.
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4.6
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Letter
of Reference. The Company will sign a mutually
acceptable letter of reference that I may use to seek a new
job. I will consult with Xxxxx Xxxx at the Company regarding
such letter of reference.
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4.7
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Severability/Modification. If any one or more
of the provisions of this Agreement are determined to be invalid, that
provision will be severed and shall not affect the validity of any other
provisions of this Agreement. This Agreement can only be
modified by a subsequent written
agreement.
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2
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5.
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Rights to Consider and
Revoke; Knowing and Voluntary
Waiver.
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5.1
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I understand that by
way of this paragraph, the Company is specifically advising me to consult
an attorney prior to signing this
Agreement.
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5.2
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I
understand that I have forty five (45) days after I receive this Agreement
to consider this Agreement in accordance with the Older Workers Benefit
Protection Act. I understand that changes in this Agreement
will not restart the 45-day period whether or not those changes are
material. If
I sign this Agreement, I understand that I am then entitled to revoke my
signature within fifteen (15) days after I sign it. To be
effective, the rescission or revocation must be in writing and (a)
properly addressed to Xxxxx Xxxx at Wireless Ronin Technologies, Inc,
Xxxxx Technology Plaza, 0000 Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
and mailed Certified Mail, Return Receipt Requested, with a postmark
within the 15-day period, or (b) hand delivered to Xxxxx Xxxx at the same
address within the 15-day period. This revocation period
includes, and is not in addition to, the seven (7) day revocation period
under the Age Discrimination in Employment Act. I understand
that if I revoke this Agreement, all of the Company's obligations under
this Agreement will immediately cease, and will be of no force and
effect. (For avoidance of doubt, the Company and I agree that I
received this Agreement on April 21, 2009, and have considered the
Agreement since that time with the advice of competent legal
counsel. My receipt of the Agreement incorporating changes on
June 3, 2009, does not re-start the 45-day period to consider the
Agreement.)
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I have
read this Agreement carefully and understand all of its terms. I am
entering into this Agreement knowingly and voluntarily after considering all of
its terms. I
have had the opportunity to discuss this Agreement with my own attorney prior to
signing it. By way
of this paragraph, the Company is advising me to consult with an attorney prior
to executing this Agreement. By signing this Agreement, I
understand that I am specifically waiving any rights or claims under the Age
Discrimination in Employment Act. Pursuant to the Older Workers
Benefit Protection Act, I acknowledge receipt of information on an Exhibit A to
this Agreement or agree that the Company may provide that Exhibit A as soon as
reasonably possible to do so. In agreeing to sign this Agreement, I
have not relied on any statements or explanations made by the Company, its
agents or its attorneys, other than those contained in this
Agreement.
| Dated: | June 8, 2009 | /s/ Xxxxx X. Xxxxxxxx | |
| Xxxxx X. Xxxxxxxx | |||
| Wireless Ronin Technologies, Inc. | |||
| Dated: | June 3, 2009 | By: | /s/ Xxxxx X. XxXxxxxxx |
| Xxxxx X. XxXxxxxxx | |||
| Its: | Vice President and Chief Financial Officer | ||
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