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EXHIBIT 10.23
AGREEMENT
This Agreement dated as of March 27, 2001 (this "Agreement"), is by and
between X. Xxxx Xxxx ("Xx. Xxxx"), Xxxx X. Xxxx, The Xxxx Xxxx Trust for Xxxx
Xxxx (the "Trust"), AVIDYN Holdings, Inc., a Delaware corporation (the
"Company") and AVIDYN, Inc., a Delaware corporation ("AVIDYN").
WHEREAS, the Company recently sold its TPA and PPO subsidiaries and Xx.
Xxxx was instrumental in such transactions; and
WHEREAS, on or about October 2, 1994, AVIDYN loaned Xx. Xxxx $300,000
pursuant to the terms of a promissory note (the "Note"), which was later
transferred to the Company; and
WHEREAS, on or about June 27, 1994, AVIDYN entered into a Deferred
Compensation Agreement (the "Deferred Compensation Agreement") with Xx. Xxxx and
AVIDYN began paying and the Company currently pays the insurance premiums for a
split dollar life insurance policy with am initial face amount of $1,500,000
(the "Policy") to fund such deferred compensation;
WHEREAS, on or about June 27, 1994, AVIDYN entered into an Amended and
Restated Collateral Assignment Split-Dollar Life Insurance Agreement with the
Trust ("Collateral Agreement");
NOW, THEREFORE, in consideration of the premises and the mutual
promises and covenants herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Bonus. The Company hereby grants Xx. Xxxx a bonus in the amount of
$900,000.00 subject to all applicable or appropriate withholdings and payable
March 30, 2001, subject to the obligations set forth herein and as consideration
of the releases set forth herein.
2. Note. Xx. Xxxx hereby agrees to pay the Company $486,136.55 on March
30, 2001, in payment in full of the Note and all accrued interest.
3. Deferred Compensation Agreement. The Trust hereby elects to pay any
and all remaining premiums on the Policy. Xx. Xxxx hereby agrees to pay the
Company, on behalf of the Trust, $150,000, which the parties have agreed will
reimburse the Company and AVIDYN in full for all premiums paid on the Policy.
Xx. Xxxx agrees to make such payment on March 30, 2001. Conditioned upon the
payment of the $150,000, the Deferred Compensation Agreement and the Collateral
Agreement (including, without limitation, the Trust's obligation to reimburse
AVIDYN or the Company for any or all premiums) are hereby terminated in all
respects and all parties' obligations under the Deferred Compensation Agreement
and the Collateral Agreement are hereby terminated.
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4. Full Release by All Parties. Each party hereto, on behalf of
herself, himself or itself and her, his and its agents, assigns,
attorneys-in-fact, and beneficiaries, does hereby release, discharge, and
covenant not to xxx or file any charges or claims against the other parties
hereto, and her his or its directors, officers, agents, employees, accountants,
attorneys, parent corporations, affiliated corporations, or predecessor
corporations (the "Released Parties"), under any local, state, or federal law,
common or statutory, for any type of claim, demand, or action whatsoever,
whether seeking legal or equitable relief including without limitation any
claim, demand or action, in any way arising out of or associated with the
Deferred Compensation Agreement, any deferred compensation benefit, the
Collateral Agreement and all matters related to such matters (collectively, the
"Released Matters"). The parties hereto further agree that they or it will not
encourage any other person to file any type of claim against the Released
Parties, or any one of them, under any local, state, or federal law, common or
statutory, for any type of claim, demand, or action whatsoever, whether seeking
legal or equitable relief, in connection with the Released Matters.
5. Entire Agreement. This Agreement sets forth the entire agreement
between the parties and fully supersedes any and all earlier agreements or
understandings between the parties pertaining to the subject matter of this
Agreement.
6. Enforcement of Agreement. In the event that legal action is ever
necessary to enforce any provision of this Agreement, the prevailing party shall
be entitled to payment of its attorneys' fees and court costs incurred in
instituting and sustaining legal action.
7. Representations. By signing below, the parties certify and represent
that they have carefully read and considered this Agreement, consulted with
their attorneys, and fully understand the extent and impact of its provisions,
and have executed this Agreement voluntarily and without coercion, undue
influence, threats, or intimidations of any kind or type whatsoever and that no
other promises have been made for the purposes of signing this Agreement.
8. Modification. No change or modification of this Agreement shall be
valid or binding upon the parties hereto, nor shall any waiver of any term or
condition in the future be so binding, unless such change or modification or
waiver shall be in writing and signed by the parties hereto.
9. Governing Law; Venue. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Texas, without regard to
its conflict of law principles. If any action is brought to enforce or interpret
this Agreement, venue for such action shall be in Dallas County, Texas.
10. Counterparts. This Agreement may be executed in counterparts, each
of which shall constitute an original, but all of which shall constitute one
document.
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11. Assignment. No party may assign this Agreement without the express
written consent of the other parties hereto.
12. Binding Effect. This Agreement shall be binding upon the parties
hereto, together with their respective executors, administrators, successors,
personal representatives, heirs and assigns.
IN WITNESS WHEREOF, the undersigned have executed this Agreement to be
effective as of the date first above written.
AVIDYN, Inc.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxxx, President
AVIDYN Holdings, Inc.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxxx, President
/s/ X. Xxxx Xxxx
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X. Xxxx Xxxx
/s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
Spouse of X. Xxxx Xxxx
The Xxxx Xxxx Trust for Xxxx Xxxx
By: /s/ Xxxx X. Xxxx
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Xxxx Xxxx, Co-trustee
By: /s/ Hilre Xxxxxxx Xxxx
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Hilre Xxxxxxx Xxxx, Co-trustee
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