Separation Agreement
This Agreement is made as of April 2, 1997 by and among Premenos
Technology Corp., Premenos Corp. (collectively, the "Company") and
Xxxxxxx X. Xxxxxx (the "Executive").
Whereas, the Executive has served as Senior Vice President, Sales
for the Company since July 1996 and served the Company and its
predecessor entities in various capacities for a number of years; and
Whereas, the Executive has decided to resign from the Company;
Now therefore, the parties hereto hereby agree as follows:
1. Resignation
The Executive hereby resigns as Senior Vice President, Sales of the
Company, and from any other office or position he may hold with the
Company or any of its subsidiaries, such resignation to be effective as
of the close of business Friday, April 4, 1997 (the "Resignation Date").
2. Compensation and Benefits
2.1 Compensation
The Company shall pay to the Executive an amount equal to one
hundred twenty-two thousand, two hundred and fifteen dollars and sixty-
three cents ($122,215.63) in two installments as follows:
Amount Date of Payment
---------- ---------------------------------
$61,107.82 Eight days after Resignation Date
$61,107.81 October 4, 1997
The Company shall not be obligated to pay, and the Executive shall
not be entitled to receive, the second installment set forth above if
the Executive is in breach of Section 3.4 on the Date of Payment set
forth above for the second installment.
2.2 Vacation Pay
On the Resignation Date, Company shall pay to the Executive in a
single payment the amount of twenty-five thousand, one hundred and
eighty-one dollars and eighty-three cents ($25,181.83), in respect of
all vacation and personal days accrued through the Resignation Date.
2.3 Benefits
The Company shall make the payments for COBRA on behalf of the
Executive for the medical and dental coverage for the shorter of (a) six
months following the Resignation Date, or (b) until Executive is
eligible to participate in a group health insurance plan by reason of
his employment by a third party.
2.4 Taxes
All amounts payable under this Agreement shall be subject to
applicable federal, state and local tax, FICA, FUTA and similar
withholding requirements. Whether or not subject to withholding, the
Executive acknowledges that the payments and benefits provided hereunder
may be deemed taxable income to the Executive. The Company has not
represented to the Executive, nor has Executive relied on any
representation from the Company, as to the taxability of any payments
made hereunder.
2.5 Certain Company Property
The Executive may, at his option, have use of the Company the
laptop computer and printer issued for his use by the Company for a
period of six months following the Resignation Date, after which
Executive agrees to return the laptop computer and printer to the
Company. The Executive may also retain the cellular phone issued for
his use by the Company. The Executive agrees to surrender to the
Company promptly after the Resignation Date all other Company property
in his possession.
2.6 Full Compensation
Except as expressly set forth in this Agreement, and except with
regard to the Executive's rights under the 401(k) plan of the Company
(which shall survive in accordance with the terms of such plan), and
notwithstanding anything to the contrary contained in any collateral or
verbal agreement or understanding, the Company shall have no obligation
to the Executive with respect to, and the Executive hereby waives, any
compensation, benefits or remuneration of any kind.
2.7 Stock Options
The Company acknowledges that the Executive holds no currently-
exercisable options to acquire the common stock of Premenos Technology
Corp. The Executive releases all rights, if any, to receive or acquire
any other stock, options, warrants or securities of the Company.
2.8 Commissions and Retroactive Salary Increase
In consideration for any and all commissions earned to date during
the calendar year 1997 and for a salary increase effective January 1,
1997, the Company agrees to pay the Executive the amount of fourteen
thousand, nine hundred thirty-seven dollars and forty-five cents
($14,937.45) on the Resignation Date. The Executive hereby waives any
claim he may have to any and all commissions earned by the Executive in
1997 and any and all salary increases.
3. Executive Covenants
3.1 Confidentiality Agreement
The terms of the Confidentiality Agreement dated March 15, 1990 by
and between the Executive and Apparel Computing Systems, Inc., a
predecessor of the Company (the "ACS Agreement"), including, without
limitation, covenants relating to trade secrets, ownership of work
product by the Company, remedies, enforcement and non-exclusivity of
such covenants are hereby expressly affirmed and confirmed by the
Executive and are hereby incorporated herein by reference. In the event
of a conflict between the terms of this Agreement and the ACS Agreement,
the terms of this Agreement shall control.
3.2 No Disparagement
The Company (including, for purposes of this section, each member
of the Board of Directors and each executive officer other than the
Executive) and the Executive agree and acknowledge that neither will
make any disparaging remarks, whether publicly or privately, about the
other, or the business, affairs, practices or performance of the other.
3.3 No Competition
For a period of six months following the Resignation Date, the
Executive agrees not to market or develop, or participate in the
marketing or development, of a software system performing functions
substantially similar to those performed by any Company software system
(whether completed or under development).
3.4 No Recruiting
For a period of six months following the Resignation Date, the
Executive agrees not to solicit, recruit or hire for employment (or have
solicited, recruited or hired on behalf of any enterprise of which he is
a part) any person employed by the Company on the Resignation Date. The
Executive agrees that, if he is in breach of this Section 3.4, he shall
have no right to receive, and the Company shall have no obligation to
pay, the second installment of monies set forth in Section 2.1 hereof.
4. Mutual Releases
The Company (including, for purposes of this section, each member
of its Board of Directors, officer, employee, agent and attorney, other
than the Executive) on the one hand, and the Executive on the other
hand, each hereby release and discharge the other from all actions,
causes of actions, suits, debts, dues, sums of money, accounts,
reckonings, attorneys fees, covenants, contracts, controversies,
agreements, promises, damages, judgments, executions, claims and demands
whatsoever, in law, admiralty or equity, whether or not arising from
fraud, fraudulent inducement or any matter unknown as of the date
hereof, which against the other party such party, their successors and
assigns ever had, now have or hereafter can, shall or may have for, upon or by
reason of or relating to any matter, action, transaction,
omission, practice, conduct, cause or thing whatsoever to the date
hereof, except such rights as arise under or pursuant to this Agreement.
It is the intention of the parties that this Agreement shall be
deemed a full and final accord and satisfaction of all claims of each
party against the other regarding all actions, relationships,
agreements, arrangements or state of facts or circumstances between the
parties occurring prior to the date of this Agreement.
In furtherance of this intention, the parties hereto each
acknowledge that they are familiar with Section 1542 of the California
Civil Code, which provides: "A general release does not extend to
claims which the creditor does not know or suspect to exist in his favor
at the time of executing the release, which, if known by him, must have
materially affected his settlement with the debtor."
With regard to the foregoing provision, it is expressly understood and
acknowledged by the parties hereto that the facts or understandings in
respect of which this Agreement is made, including without limitation
the releases provided above may subsequently turn out to be other than
or different from the facts and circumstances now known or believed to
be true; and that the parties hereto, respectively, expressly assume
such risk and agree that this Agreement, including, without limitation
the releases set forth herein, shall be in all respects effective and
not subject to termination or rescission by virtue of any such
difference in facts or circumstances. Without limiting the generality
of the foregoing, the parties hereto hereby waive and release any right
to any benefit which he or it may now or hereafter may have under
Section 1542 of the California Civil Code to the maximum extent
permitted by law.
5. Independent Representation
The Executive acknowledges that he has been represented by Xxxxxxx
X. Xxxxxxxx, independent legal counsel, in connection with the
negotiation of this Agreement and related matters. The Company hereby
advises the Executive to consult with an attorney prior to executing
this Agreement. The Executive represents and warrants to the Company
(a) that he has sought such legal counsel and advice as he has deemed
appropriate in connection with the execution hereof and the arrangements
contemplated hereby, including consultation with Xx. Xxxxxxxx; (b) that
he has read and understands this Agreement; (c) that he has had a
reasonable amount of time to review and consider this Agreement; (d)
that pursuant to Section 6 hereof he has been afforded at least twenty-
two (22) days to consider this Agreement; and (e) that he has executed
this Agreement voluntarily and without duress, coercion or undue
influence of any kind.
6. Review
The Executive shall have until the close of business on the twenty-
first calendar day following the initial presentation of this Agreement
to accept the terms of this Agreement, including the releases contained
herein. The Company and the Executive acknowledge that the Executive
may use as much of this twenty-one day period as the Executive wishes.
7. Right to Revoke
The Executive may revoke this Agreement within seven days after the
Executive's signing it. Revocation may be made by the Executive by
delivering a written notice of revocation to the notice addresses
provided herein. In order for the revocation to be effective, written
notice must be received by the Company no later than the seventh
calendar day after execution of this Agreement. In the event that the
Executive revokes this Agreement as provided herein, this Agreement
shall be absolutely void, invalid and unenforceable ab initio, no aspect
of this Agreement shall be given effect, and neither the Executive nor
the Company shall be bound in any respect by this Agreement.
8. Certain Statutes
The Executive acknowledges and agrees that he is fully aware that
there are various federal, state and municipal laws which prohibit
employment discrimination based on, without limitation, the following:
race; age; sex; marital status; sexual orientation; citizenship;
religion; creed; national origin; military or national guard service;
illiteracy; mental, psychological or physical disability; jury duty;
refusal to work excess hours; status as a volunteer fireman;
garnishments; arrest record or previous convictions; or attainment of
pension or employee benefits including retirement, pension and severance
(collectively, the "Statutes"). The Executive also acknowledges and
agrees that he fully understands and is aware that there are federal,
state and municipal agencies which enforce and administer these laws and
ensure the enforcement of the Statutes. The Executive hereby represents
and warrants to the Company that he has not filed any claims, charges,
complaints or causes of action of any kind against the Company with any
federal, state or local agency, administrative body, court or tribunal
with respect to any matter, including the Statutes; and that he has no
knowledge or reason to believe that anyone else has filed any such
claim, charge, complaint or cause of action on his behalf or arising in
connection with his relationship with the Company, and that he shall not
voluntarily participate in any such proceedings.
9. General Provisions
9.1 Notices
Any and all notices given hereunder by any party shall be in
writing and shall be validly given or made to another party if delivered
either personally, by telefacsimile, nationally-recognized overnight
courier, or, if deposited in the United States Mail, certified or
registered, prepaid, return receipt requested. If notice is served
personally, it shall be deemed effective upon receipt. If notice is
served by telefacsimile, it shall be deemed effective upon transmission,
provided that such notice is confirmed in writing by sender within one
day after transmission. If notice is served by overnight courier, it
shall be deemed effective the day after it is sent. If notice is served
by United States Mail, if shall be deemed effective five days after it
is sent. Notice should be sent to the parties are the following
address:
If to the Company:
Premenos Technology Corp.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telefacsimile: (000) 000-0000
Attention: General Counsel
If to the Executive:
Xxxxxxx X. Xxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
9.2 Modification
No amendment, change or modification of this Agreement shall be
valid unless in writing and signed by all of the parties hereto.
9.3 Waiver
No reliance upon a waiver of one or more provisions of this
Agreement shall constitute a waiver of any other provisions hereof.
9.4 Successors and Assigns
All of the terms and provisions contained herein shall inure to the
benefit of and shall be binding upon the parties hereto and their
respective heirs, personal representatives, successors and assigns.
However, no party shall voluntarily assign any rights hereunder, or
delegate any duties hereunder, except upon the prior written consent of
the other.
9.5 Counterparts
This Agreement may be executed in one or more separate
counterparts, any of which may be executed and delivered by
telefacsimile, each of which when so executed shall be deemed to be an
original. Such counterparts shall, together, constitute and shall be
one and the same instrument.
9.6 Entire Agreement
This Agreement constitutes the entire understanding and agreement
of the parties with respect to the subject matter of this Agreement, and
any and all prior agreements, understandings or representations with
respect to the subject matter hereof are hereby terminated and canceled
in their entirety.
In witness whereof, the parties hereto have caused this Agreement
to be duly executed as of the date first above written.
XXXXXXX X. XXXXXX PREMENOS TECHNOLOGY CORP.
and PREMENOS CORP.
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------- By:-------------------------------
Xxxxxxx X. Xxxxxxxxx, President
