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EXHIBIT 10.2
SEVERANCE AGREEMENT
This SEVERANCE AGREEMENT (`Agreement") between Micrografx, Inc., a
Texas corporation and Micrografx B.V., a Dutch corporation, (collectively
referred to herein as the "Company"), and Xxxxxx XxXxxxx ("Employee"), is
entered into and effective as of the 1st day of February, 1997, and sets forth
the terms and conditions concerning Employee's separation from employment with
the Company.
WHEREAS, the parties have agreed on the terms and conditions of the
termination of employment of Employee from the Company;
NOW, THEREFORE, in consideration of the agreement of such terms and
conditions as contained herein, the parties agree as follows:
1. Effective Date of Termination of Employment. The Company and
Employee agree that the effective date of Employee's termination of employment
is the close of business on February 1, 1997, (the "Effective Date").
2. Severance Compensation. The Company agrees to pay Employee
severance compensation and as compensation for the non-competition and duties
set forth in paragraph 8, and in the aggregate amount of Six Hundred and Sixty
Thousand (660,000) Dutch guilders in one single lump sum payment upon the
execution of this Agreement by all parties. THE SEVERANCE PAYMENT IS MADE FOR
THE LOSS OF THE INCOME IN FUTURE YEARS AT THE TERMINATION OF THE LABOR CONTRACT
WITH MICROGRAFX, B.V. Such payment shall be subject to appropriate withholding
and deductions consistent with the Company's normal payroll policies. Employee
acknowledges that payment of the severance compensation described herein is
made by the Company in consideration of the agreements, releases and
undertakings of Employee made herein, and is also in full and complete
satisfaction of all of the Company's obligations to Employee, including,
without limitation, the Company's obligations pursuant to the (i) offer letter
of October 30, 1991, (ii) Executive Severance Policy (non-change in control)
dated March 24,1994, (iii) Executive Severance Agreement dated March 24, 1994,
(iv) the Employee Non-disclosure Agreement dated March 24, 1994, and (v) any
document relating to tax equalization of compensation existing by virtue of the
January 29, 1993 or April 18, 1996 letters from Xxxxxx Xxxxxxxx or the May 29,
1996 Email from Xxxx Xxxxxx, all of which agreements and any other agreements
respecting employment, compensation or benefits shall hereby terminate and be
of no further force or effect upon the execution of this Agreement by all
parties and the payment of the sums required hereunder.
Employee represents and warrants to the Company that no other sums are
now or will be in the future due and payable to Employee by the Company other
than those amounts specified in this section 2, the receipt of which is hereby
acknowledged.
3. Promissory Note. Employee acknowledges and hereby reaffirms and
agrees to abide by the terms of that certain Promissory Note made by Employee
and payable to the Company in the principal amount of $20,000, dated November,
1992, and agree to pay within ten (10) days of execution of this Agreement the
principal amount outstanding and accrued and unpaid interest pursuant to the
Promissory Note, in accordance with the terms therein. Employee agrees that the
amount of such payment may be offset from other amounts to be paid hereunder.
If at any time hereafter the parties discover that the Promissory Note has been
satisfied and heretofore paid by Employee, Company agrees to immediately pay to
Employee such amount of the Promissory Note or as set forth in any related
agreement.
4. Options and Stock. The Company and Employee acknowledge and agree
that as of the Effective Date, all stock options previously granted to Employee
pursuant to the company's Incentive and Nonstatutory Stock Option Plans, not
otherwise vested, have been terminated and are of no further force or effect.
Employee represents and warrants to the Company that he has neither purchased
nor sold any shares of the common stock of the Company during the period
beginning 6 months prior to January 31, 1997 and through and including the date
of execution hereof not otherwise reported.
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5. Restricted Stock. Company acknowledges Employee's entitlement to
have issued 600 shares (2,400 * 25% = 600) of restricted stock which are and
vested pursuant to the Company's 1993 Restricted Stock Plan. Employee agrees
with such number of shares to be those to which he is entitled.
6. Stock Purchase Plan. The Company and Employee acknowledge and agree
that pursuant to the terms of the Micrografx, Inc. Employee Stock Purchase Plan
("ESPP"), his eligibility to participate in the ESPP ceased as of the Effective
Date, and all moneys for ESPP previously withheld by payroll deduction during
the Purchase Period in effect on the Effective Date which remain unused, have
been or will be refunded to Employee by the Company. The parties acknowledge
and agree that the sum of $12,464.90 will be refunded to Employee in connection
therewith.
7. Insurance Plans. The Company and Employee acknowledge and agree
that as of the Effective Date, Employee has no further rights to participate in
any of the Company's group or other insurance (medical, dental, life,
retirement, or other insurance or group benefit programs) plans, except as may
be provided under the Consolidated Omnibus Budget Reconciliation Act of 1985
(i.e., COBRA), at Employee's expense.
8. Duties of Employee
a. Termination as Officer and Director. The Company and
Employee hereby acknowledge that all directorships, offices and other positions
held by Employee with the Company and all of its subsidiaries and affiliates
shall be terminated with all deliberate speed by the parties. The Company
agrees to remove Employee from such positions on a timely basis, and Employee
agrees to cooperate with Company in such actions.
b. Non-disclosure and Non-competition. Employee acknowledges
that he is subject to, and Employee hereby reaffirms and agrees to abide by,
the terms and conditions of that certain Employee Non-Disclosure Agreement
dated March 24, 1994, and further acknowledges and agrees that the provisions
of such Employee Non-disclosure Agreement shall apply without limitation to
Employee. The non-competitive provisions of such agreement shall hereby be
amended to be as follows:
Because Employee has had access to proprietary
information and intellectual property and has received
specialized training from the employer, Employee
acknowledges that such information and training would
provide an unfair advantage if used in unlimited
competition with the employer. In order to avoid this,
Employee agrees that with termination of the employment
he shall not directly or indirectly, either as an
individual as or a partner or joint-venturer, or as an
employee or agent for any person, or as an officer,
director or shareholder associate with, or enter into
agreement written or oral, in any of the capacities
aforementioned with any entity that develops, markets or
distributes software products that directly compete with
the following products of Micrografx:
1. ABC Flow Charter Suite, including ABC Flow
Charter, ABC Toolkit, ABC SnapGrafx.
2. The Designer Power Pack Suite, including Picture
Publisher Designer, Clip Art, Photos and images,
third party graphics program.
3. ABC Graphic Suite, including Micrografx Designer,
Picture Publisher, ABC Flow Charter, Instant
3-D, ABC Media Manager
4. Windows Draw
5. Crayola Art Studio
6. Hallmark Connections Card Studio
7. American Greetings Creatacard
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Competitors in this connection are those companies which
market or sell products directly competitive to those of
MGX, and includes, but is not limited to, the following
companies: Adobe, Corel, Visio and Macromedia. This
restrictive covenant will be applicable for a period of
one (1) year after termination of Employee's employment
with the employer. There will be no compensation for this
restrictive covenant other than the severance payment
mentioned above.
c. Non-solicitation. For a period of one (1) year immediately
following the termination of Employee's employment with the Company, Employee
shall not either directly or indirectly make known to any person, firm, or
corporation the names and addresses of any of the customers of the Company or
any other information pertaining to the customers or call on, solicit, or take
away, or attempt to call on, solicit, or take away, any of the customers of the
Company on whom Employee called or with whom he became acquainted during the
term of employment with the Company under this Agreement, either for himself or
for any other person, firm, or corporation.
d. Non-hire. For a period of one (1) year immediately
following the termination of Employee's employment with the Company, Employee
shall not employ, offer to employ, solicit or hire as an employee, agent or
contractor or in any other capacity, any current employee or contractor of the
Company.
e. Comments About the Company. Employee agrees that he will
not say, publish or do any act or thing that disparages or casts the Company,
its officers, directors, employees, agents and/or representatives in an
unfavorable light, or which could result in injury to any such person's
reputation. Employee shall make no public statements or announcements regarding
his past employment by the Company or any of the matters set forth herein
without first consulting with the Company and obtaining its prior written
approval as to the timing and content of the proposed statements and/or
announcements, except that Employee may disclose his dates of employment,
title, job description and final base annual salary with the Company. The
Company agrees that it shall make no public announcement regarding Employee`s
past employment with the Company which disparages or casts Employee in a false
light. The parties agree that neither shall make any press release or other
public announcement concerning this Agreement except to the extent required by
applicable law.
f. Assistance. Employee agrees to provide reasonable
assistance to management of the Company in connection with the general
operations of the business, including but not limited to, assistance in
strategic business issues, operations, sales, joint venturers, personal
matters, or litigation assistance. These activities shall not exceed eighteen
(18) days of time, over a six (6) month period. Time increments of less than
one hour shall not be counted toward this total.
g. Return of Company Property. Employee agrees to return all
Company property in his possession concurrently with the execution of this
Agreement on both parties, including, without limitation, all computers,
printers, software, hardware, communications equipment, credit cards, Airpass
cards, business records and any other related items, except when the parties
agree in writing to assign such item to Employee.
h. Referral. The Company and Employee acknowledge and agree
that Employee shall direct all inquiries concerning Employee from a prospective
employer of to Xxxx Xxxxxxx, or his successor, and Xx. Xxxxxxx shall provide
such prospective employer only with the dates of Employee`s employment with the
Company, title and final base salary, or a letter or statement which the
parties may agree.
i. Company Car Lease Contract. Company and Employee
acknowledge and agree that Employee takes over the lease contract (AVIS
Contract No. 5088541) for the company Car, a Mercedes E 320, from June 1, 1997.
Until this date Company will bear all the monthly costs and expenses related to
the Company car. From June 1, 1997 Employee will bear all these costs and
expenses.
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9. Releases
a. In consideration of the premises and mutual promises,
agreements, and covenants contained herein, including the payment to Employee
in which the spouse of Employee has a community property interest, and for
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, Employee and his spouse hereby fully, finally, completely
and generally release the Company, its subsidiaries and/or affiliates and their
respective officers, directors, employees, shareholders, attorneys, agents and
representatives from any and all claims, actions, demands, losses, liabilities,
expenses, obligations and/or causes of action, of whatever kind or character
(collectively the "Claims"), arising out of occurrences prior to the date of
execution of this Agreement, whether known or unknown, arising from, relating
to, or in any way connected with Employee's employment with the Company or to
any Claim or defense that Employee or his spouse may have with respect to the
Promissory Note or the Loan Documents, the termination of Employee's employment
with the Company, his service as an officer of the Company and any of its
subsidiaries and/or affiliates, and from any and all Claims arising under the
Civil Rights Act of 1964, Americans with Disabilities Act of 1990, Texas
Commission on Human Rights Act, Texas Handicap Discrimination Act, and any and
all other Claims arising under any statute, common law or contract (whether
oral or written), and Employee and his spouse further agree not to take any
legal action or file any suit, action, or proceeding against the Company, its
subsidiaries and/or affiliates and their respective officers, directors,
employees, shareholders, attorneys, agents or representatives related thereto,
or aid, assist or abet any party pursuing a suit, action or proceeding against
the Company with respect to the Claims. This release shall not affect the
rights of Employee or the Company created or continued under this Severance
Agreement.
b. In consideration of the premises and mutual promises,
agreements, and covenants contained herein, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
Company (by and through its directors and officers) and those directors of the
company listed under the acknowledgment below, hereby fully, finally,
completely and generally release Employee from any and all claims, actions,
demands, losses, liabilities, expenses and/or causes of action of whatever kind
and character, arising out of occurrences prior to the date of execution of
this Agreement, whether known or unknown, arising from, relating to, or in any
way connected with Employee's employment with the Company and the termination
of his employment with the Company, and his service as an officer of the
Company and any of its affiliates and/or subsidiaries, arising under any
statute, common law or contract (whether oral or written), but excluding the
Loan Documents, provided, however, that this release is based upon Employee's
representation that he has not taken any action that would make the Company,
its subsidiaries and/or affiliates, or their respective officers, directors,
employees, shareholders and/or agents liable for any illegal activities, and
that Employee agrees to indemnify and hold the Company, its affiliates and
their respective officers, directors, employees, shareholders and/or agents
harmless from any and all losses, liabilities, claims, causes of actions and
expenses (including attorney's fees) resulting from or arising out of any of
this actions for which such parties may be held liable. This release pursuant
to this subparagraph 9(b) shall in no way affect the rights of the Company or
Company's and Employee's continuing obligations under this Agreement and/or
pursuant to the Loan Documents or any related documentation.
c. Each party understands and agrees that this Agreement
constitutes a valid and enforceable waiver and release, and creates enforceable
rights as described herein, and acknowledges that this waiver and release is
made knowingly and voluntarily.
d. Employee and Company agree to fully and immediately
dismiss any pending administrative or judicial action that has been filed
against the other.
10. Binding Nature. EMPLOYEE, HIS SPOUSE AND THE COMPANY ACKNOWLEDGE
THAT EACH HAS CAREFULLY READ THIS AGREEMENT, THAT EACH FULLY UNDERSTANDS ITS
PROVISIONS AND ITS FINAL AND BINDING
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EFFECT, AND THAT EACH IS SIGNING THIS AGREEMENT VOLUNTARILY. EMPLOYEE, HIS
SPOUSE AND THE COMPANY FURTHER ACKNOWLEDGE THAT EACH HAS BEEN AFFORDED THE
OPPORTUNITY TO CONSULT WITH AN ATTORNEY OF THEIR CHOICE PRIOR TO EXECUTING THIS
AGREEMENT. THIS AGREEMENT AND ALL OF THE RIGHTS OF THE COMPANY UNDER THIS
AGREEMENT WILL INURE TO THE BENEFIT OF AND WILL BE ENFORCEABLE BY THE COMPANY'S
SUCCESSORS AND ASSIGNS. THIS AGREEMENT AND ALL OF THE RIGHTS OF EMPLOYEE UNDER
THIS AGREEMENT WILL INURE TO THE BENEFIT OF AND WILL BE ENFORCEABLE BY HIS
PERSONAL OR LEGAL REPRESENTATIVES, EXECUTORS, ADMINISTRATORS, SUCCESSORS,
HEIRS, DISTRIBUTEES, DEVISEES AND LEGATEES. EMPLOYEE AND COMPANY REPRESENT THAT
EACH OF THEM HAS THE REQUISITE AUTHORITY AND COMPETENCY TO EXECUTE THIS
AGREEMENT, AND THE COMPANY REPRESENTS THAT THE UNDERSIGNED OFFICER HAS THE
REQUISITE AUTHORITY AND COMPETENCY TO EXECUTE THIS AGREEMENT ON BEHALF OF THE
COMPANY.
11. Severability. If any provision of this Agreement is declared or
found to be illegal, unenforceable or void, in whole or in part, then both
parties will be relieved of all obligations arising under such provision, but
only to the extent it is illegal, unenforceable or void. The intent and
agreement of the parties to this Agreement is that this Agreement will be
deemed amended by modifying any such illegal, unenforceable or void provision
to the extent necessary to make it legal and enforceable while preserving its
intent, or if such is not possible, by substituting therefor another provision
that is legal and enforceable and achieves the same objectives. Notwithstanding
the foregoing, if the remainder of this Agreement will not be affected by such
declaration or finding and is capable of substantial performance, then each
provision not so affected will be enforced to the extent permitted by law.
12. Waiver. No delay or omission by either party to this Agreement to
exercise any right or power under this Agreement will impair such right or
power or be construed as a waiver thereof. A waiver by either of the parties to
this Agreement of any of the covenants to be performed by the other or any
breach thereof will not be construed to be a waiver of any succeeding breach
thereof or of any other covenant contained in this Agreement. All remedies
provided for in this Agreement will be cumulative and in addition to and not in
lieu of any other remedies available to either party at law, in equity, or
otherwise.
13. Full Payment. The payments and obligations of the Company
described herein satisfy all of Employee's and his spouse's Claims against the
Company. Employee further agrees that he will be solely responsible for and
will indemnify and hold the Company harmless from, any federal or state income
tax, FICA, or other tax liability, if any, resulting from the payments made to
Employee pursuant to this Agreement, or other sums previously paid to Employee
during his employment by the Company, except as may have been withheld by the
Company in accordance herewith. Employee and his spouse recognize that if
either of them breaches their respective agreements contained herein, that they
shall be jointly and severally liable to the Company as a result thereof for
all payments made hereunder by the Company to Employee in reliance upon and in
consideration for their respective agreements herein contained. Provided,
however, notwithstanding any liability Employee or his spouse may have to the
Company as a result of any breach of this Agreement, the releases, waivers and
other agreements contained herein shall not be affected and shall continue in
full force and effect.
14. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE COUNTRY OF THE
NETHERLANDS WITHOUT GIVING EFFECT TO ANY PRINCIPLE OF CONFLICT-OF-LAWS THAT
WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE PARTIES
HERETO SUBMIT THEMSELVES TO THE JURISDICTION OF THE TRIBUNALS OF THE STATE OF
TEXAS, INCLUDING WITHOUT LIMITATION, THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS, AND THE COURTS OF THE NETHERLANDS WHICH MAY SO HAVE
JURISDICTION, EXPRESSLY WAIVING ANY VENUE TO WHICH THEY MAY BE ENTITLED BY
THEIR PRESENT OR FUTURE DOMICILES.
15. Notices. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or on the
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expiration of three (3) days after being mailed by United States registered
mail, return receipt requested, postage prepaid, or immediately by facsimile,
addressed as follows:
If to Employee: Xxxxxx XxXxxxx
00 Xxxxxx Xx Xxxxx
0000 Xxxxxxx
Xxxxxxxxxxx
If to the Company: President
Micrografx, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000
cc: Legal Department
Or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of change
of address shall be effective only upon receipt.
16. Arbitration. Employee, his spouse and the Company agree that any
dispute arising under this Agreement, shall be submitted to arbitration in
Dallas, Texas in accordance with the rules of the American Arbitration
Association. The decision of the arbitrator(s) will be binding, conclusive and
nonappealable, and that costs of such arbitration shall be paid by the party
charged by the arbitrator(s) in rendering its (their) decision. Employee and
his spouse agree that, notwithstanding this provision, (i) the Company may use
any judicial or non-judicial remedy to enforce any obligation of Employee
and/or his spouse arising under the Promissory Note or the Loan Documents, and
(ii) the Company may obtain any injunctive, equitable or common law relief
necessary to enforce Employee's obligations arising under sections 8(b) and
8(d) of this Agreement.
17. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
18. Equitable Remedies. Employee and the Company acknowledge that
neither he nor the Company would enter into this Agreement but for the
agreements of the other contained herein and that the other would be
irreparably injured by a violation of the provisions of this Agreement and that
neither would have adequate remedy at law in the event of such violation.
Therefore, Employee and the Company acknowledge that injunctive relief,
specific performance or any other appropriate equitable remedy (without bond or
other security being required) are appropriate remedies to enforce compliance
by the other of its obligations hereunder.
19. Entire Agreement. This Agreement constitutes the entire agreement
between the parties to this Agreement with respect to the subject matter of
this Agreement and there are no understandings or agreements relative to this
Agreement which are not fully expressed in this Agreement, except for that
certain Employee Non-disclosure Agreement dated March 24, 1994, between
Employee and the Company and the Loan Documents. All prior agreements between
the parties with respect to the subject matter of this Agreement, whether oral
or written, are expressly superseded by this Agreement. No change, waiver or
discharge of this Agreement will be valid unless in writing and signed by the
party against which such change, waiver or discharge is to be enforced.
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This Agreement is executed on this 6th day of February, 1997, to be
effective as of the Effective Date.
MICROGRAFX, INC. Employee
By: /s/ XXXXXXX XXXXXXX /s/ XXXXXX XXXXXXX
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Title: President
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MICROGRAFX B.V.
By: /s/ R. XXXXX XXXXXX
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Title: Managing Director
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ACKNOWLEDGMENT AND FURTHER AGREEMENT
I, Xxx. XxXxxxx, for the consideration to my spouse Xxxxxx XxXxxxx in
which I have a community property interest, and for other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, do
hereby acknowledge and agree to abide by the terms and conditions of this
Agreement.
Spouse
/s/ XXX. XXXXXXX
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