EXHIBIT 10.15
RETIREMENT AGREEMENT AND MUTUAL RELEASE
OF ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
This Retirement Agreement and Mutual Release is made and entered into by and
between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (hereinafter referred to as "Employee") and MICROTEST,
INC. (hereinafter referred to collectively with all of its subsidiaries (where
appropriate) as the "Company").
In consideration of the acts, payments, covenants and mutual agreements herein
described and agreed to be performed, Employee and the Company agree as follows:
1. Retirement of Employment - Employee retires his position as Chairman and
CEO of the Company and all subsidiaries, effective January 18, 1999. He
will remain an outside director until the annual meeting of stockholders of
the Company held in 1999, his resignation as a director to be effective at
such time.
2. Consulting Services - Upon reasonable request of the Board or CEO, employee
agrees to render consulting services to the Company for the period from
January 18, 1999 through January 1, 2001. However, after April 30, 1999 the
Employee shall not have to consult for more than 5 days a month or 16 days
a quarter, and consulting services shall be rendered at reasonable,
mutually agreed upon times. In the event additional time is required after
April 30, 1999 the Company shall pay the Employee $1,000 per diem.
Among other things, Employee may be asked to assist in the potential sale
of the Company's connectivity product line. In the event of such a sale,
Employee would not be entitled to any fee or payment (additional to the
payments described herein) for such assistance.
3. Payments - The Company shall pay to Employee $100,000 per annum as a
consulting fee through January 1, 2001, payable in bi-weekly installments.
Employee shall be responsible for all income taxes, self-employment taxes
and similar obligations with respect to any payments made hereunder, and
shall defend, indemnify and hold harmless the Company and the affiliated
persons enumerated in Paragraph 5 below against any tax liabilities,
payments, interest and penalties and related attorneys' fees and costs that
may arise therefrom.
4. Benefits and Options -
a. Effective January 18, 1999, Employee shall be entitled to medical
insurance benefits to the extent provided to executive staff. The
Company shall pay for these benefits through February 2001.
b. The Company has granted to Employee options to acquire shares of
Common Stock. The Company agrees that the options will continue to
vest through January 27, 1999 and each party agrees that as of such
date Employee will have 190,164 shares of common stock purchasable
pursuant to vested options. The Company further agrees to extend the
exercise period for vested options through February 28, 2001. All
other options shall terminate.
c. The Company will provide to the Employee the current laptop he is
using as well as his cell phone and reimburse him for business-related
charges through January 1, 2001.
5. Release and Covenant Not to ▇▇▇ - Employee hereby forever releases,
discharges, cancels, waives, and acquits for himself, his spouse and his
heirs, executors, administrators and assigns, the Company and any and all
of its affiliates, subsidiaries, corporate parents, agents, directors,
officers, owners, employees, attorneys, successors and assigns, of and from
any and all rights, claims, demands, causes of action, obligations damages,
penalties, fees, costs, expenses, and liability of any nature whatsoever,
whether in law or equity, which Employee has, had or may hereafter have
against them, or any of them arising out of, or by reason of, any cause,
matter, or thing whatsoever existing as of the date of execution of the
Agreement, WHETHER KNOWN TO THE PARTIES AS THE TIME OF EXECUTION OF THIS
AGREEMENT OR NOT, other than for breach of this Agreement.
This FULL WAIVER OF ALL CLAIMS includes, without limitation, attorney's
fees, any claims, demands, or causes of action arising out of, or relating
in any manner whatsoever to the employment and/or retirement of Employee by
the Company, such as, BUT NOT LIMITED TO, any charge, claim, lawsuit or
other proceeding arising under the Civil Rights Act of 1866, 1964, 1991,
Title VII as amended by the Civil Rights Acts of 1991, the Americans with
Disabilities Act, the Age Discrimination in Employment Act (ADEA), the
Labor Management Relations Act (LMRA), the Employee Retirement Income
Security Act (ERISA), the Consolidated Omnibus Budget Reconciliation Act,
the Fair Labor Standards Act (FLSA), the Equal Pay Act, the Rehabilitation
Act of 1973, the Arizona Civil Rights Act, the Family and Medical Leave Act
of 1993, Worker's Compensation Claims, or any other federal, state, or
local statute, or any contract, agreement, plan or policy. Employee further
covenants and agrees not to institute, nor cause to be instituted, any
legal proceeding, including filing any claim or complaint with any
government agency alleging any violation of law or public policy or seeking
worker's compensation, against the Company and/or any and all of its
affiliates, subsidiaries, corporate parents, directors, agents, officers,
owners, employees, successors and assignees premised upon any legal theory
or claim whatsoever, including without limitation, contract, tort, wrongful
discharge, personal injury, interference with contract, breach of contract,
defamation, negligence, infliction of emotional distress, fraud, or deceit,
except to enforce the terms of this Agreement.
Employee acknowledges that the considerations afforded him under this
Agreement, including the payments and considerations described in
Paragraphs 3 and 4 above, are in full and complete satisfaction of any
claims Employee may have, or may have had relating to the Company,
including any arising out of his employment with the Company (or any
subsidiary) or the retirement therefrom.
Company hereby forever releases, discharges, cancels, waives, and acquits
Employee of and from any and all rights, claims, demands, causes of action,
obligations, damages, penalties, fees, costs, expenses, and liability of
any nature whatsoever, whether in law or equity, which Company has had or
may hereafter have against him from the date of this Agreement, WHETHER
KNOWN OR UNKNOWN TO THE PARTIES AT THE TIME OF EXECUTION OF THIS AGREEMENT,
other than for breach of this Agreement, and except for any action or
omission as to which the Employee is not entitled to mandatory
indemnification under section 145 of the Delaware Corporate Code, or as to
any matter set forth in section 102(b)(7)(i) to (iv) thereof (as if
Employee were a director).
6. Time Period of Considering or Canceling This Agreement - Employee
acknowledges that he has been offered a period of time of at least
twenty-one (21) days to consider whether to sign this Agreement, which he
hereby waives, and the Company agrees that Employee may cancel this
Agreement at any time during the seven (7) days following the date on which
this Agreement has been signed by all parties to this Agreement. In order
to cancel or revoke this Agreement, Employee must deliver to the ▇▇▇▇▇▇
▇▇▇▇▇▇ at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ written notice
stating that Employee is canceling or revoking this Agreement. If this
Agreement is timely canceled or revoked, none of the provisions of this
Agreement shall be effective or enforceable and the Company shall not be
obligated to make the payments to Employee or to provide Employee with the
other benefits described in this Agreement.
7. Confidentiality - Employee and the Company agree to maintain in confidence
the terms and existence of this Agreement and the discussions that led to
its creation and execution, with the exception that the Company may
disclose this Agreement and its terms to the extent required or appropriate
under applicable securities exchange or other laws or regulations and the
Employee may disclose such matters to any attorney who is providing advice
to Employee, to any accountant or federal or state tax agency for purposes
of complying with any tax laws, or as otherwise required by law. These
obligations, as well as the duties imposed upon Employee by law or the
confidentiality agreement that the Employee has entered into with the
Company attached as Exhibit "A", shall continue during and survive the
termination of Employee's employment (including as a director and
consultant).
8. Non-Competition - Employee covenants and agrees that he will not, during
his employment as a consultant and service as a director of the Company and
for one (1) year after termination of both capacities, within any
jurisdiction in which the Company does business:
(i) Directly or indirectly participate in or assist in the ownership,
management, operation or control of any business similar to or
competitive with the Company; PROVIDED, HOWEVER, that Employee may
own, directly or indirectly, solely as an investment, securities of
any person which are traded on any national securities exchange or
in the over the counter market if Employee (x) is not a controlling
person of, or a member of a group which controls, such person or (y)
does not, directly or indirectly, own 1% or more of any class of
securities of such person; or
(ii) Directly or indirectly solicit for employment any person who is, or
within the six month period preceding the date of such solicitation
was, an employee of the Company; or
(iii) Call on or directly or indirectly solicit or divert or take away
from the Company any person, firm, corporation, or other entity who
is a customer or supplier of the Company.
9. Reasonableness of Scope; Remedies -
a. Employee acknowledges and agrees that a breach by Employee of the
provisions of Sections 7 and 8 of this Agreement will cause the
Company irreparable injury and damage that cannot be reasonably or
adequately compensated by damages at law. Employee further
acknowledges and agrees that he has such skills and abilities that the
provisions of this Sections 7 and 8 will not prevent him from earning
a living. Employee expressly agrees that the Company shall be entitled
to injunctive or other equitable relief to prevent a threatened
breach, breach or continued breach of Sections 7 and 8 hereof in
addition to any other remedies legally available to it. Employee
further agrees that the time periods described in Sections 7 and 8
shall be extended for a period equal to the duration of any breach of
this Agreement by Employee.
b. Employee agrees that upon the commencement by him of employment with
any third party during the period in which the terms of Sections 7 or
8 hereof are in effect, Employee shall promptly disclose to each such
new employer the terms of Sections 7 and 8. Employee further agrees
and authorizes the Company to notify others, including customers of
the Company and any such future employers of Employee, of the terms of
this Agreement and of Employee's obligations hereunder.
10. Reliance - Employee warrants and represents that: (i) he has relied on his
own judgment regarding the consideration for and language of this
Agreement; (ii) he has been given a reasonable period of time to consider
this Agreement, has been advised to consult with counsel of his own
choosing before signing this Agreement, and has consulted with counsel or
voluntarily elected not to consult with independent counsel; (iii) the
Company has not in any way coerced or unduly influenced him to execute this
Agreement; and (iv) this Agreement is written in a manner that is
understandable to him and he has read and understood all paragraphs of this
Agreement.
11. Nature of the Agreement - This Agreement and all provisions thereof,
including all representations and promises contained herein, are
contractual and not a mere recital and shall continue in permanent force
and effect. Except as provided in paragraph 7, above, this Agreement
constitutes the sole and entire agreement of the parties with respect to
the subject matter hereof, superseding all prior agreements and
understandings between the parties, and there are no agreements of any
nature whatsoever between the parties hereto except as expressly stated
herein. This Agreement may not be modified or changed unless done so in
writing, signed by both parties. In the event that any portion of this
Agreement is found to be unenforceable for any reason whatsoever, the
unenforceable provision shall be considered to severable, and the remainder
of the Agreement shall continue to be in full force and effect. This
Agreement shall be governed by and construed in accordance with the laws of
the State of Arizona without regard to choice of law principles.
12. No Admission of Liability - Nothing contained in this Agreement shall be
construed in any manner as an admission by any party that they have
violated any statue, law or regulation, or breached any contract or
agreement.
13. No Disparagement - Employee and the Company agree that as part of the
consideration for this Agreement, neither party will make disparaging or
derogatory remarks, whether oral or written, about the other party or its
subsidiaries, affiliates, officers, directors, employees or agents.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ MICROTEST, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its:
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Dated: Dated:
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