Exhibit 10.9
SEPARATION AGREEMENT AND RELEASE
This Severance Agreement and Release ("Agreement") is entered into on March
5, 2001, between Xxxxxxx Xxxxxxx ("Employee") and eBenX ("Employer").
WHEREAS, Employee is currently employed by the Employer as a Senior Vice
President, Business Development; and,
WHEREAS, Employer and Employee agree that Employee's employment will end as
provided herein; and
WHEREAS, Employee and the Employer now wish to resolve by agreement all
outstanding issues, disputes, and claims among themselves,
WHEREAS, the Employer wishes to provide payments to assist Employee in
finding new employment and Employee wishes to release Employer from any claims
he may have against it;
NOW, THEREFORE, in consideration of the mutual covenants set forth below,
it is agreed as follows:
1. Employer and Employee agree that Employee's employment will end on
03/05/01.
2. Employer shall pay to Employee severance pay in the amount of
$21,538.40 gross, subject to all legally applicable deductions and withholdings,
representing Employee's salary over an eight week period. Payment of the
severance shall begin within twenty days of Employer's receipt of a copy of this
Agreement executed by Employee and will be paid in accordance with Employer's
normal payroll cycle.
3. In exchange for the payments described in Paragraph 2 above and for
other good and valuable consideration described in this Agreement, Employee, for
himself, his heirs, successors and assigns, hereby fully and completely releases
and waives any and all claims, complaints, rights, causes of action or demands
of whatever kind, whether known or unknown, which he has or may have against
Employer and its predecessors, successors, assigns, subsidiaries and affiliates
and all officers, employees, and agents of those companies, (hereinafter
collectively called "the Released Parties") arising out of any actions, conduct,
promises, decisions, statements, behavior or events occurring at any time prior
to or on the date of this Settlement Agreement. Employee understands that this
Release specifically covers, but is not limited to, any and all claims,
complaints, causes of action or demands which he has or may have against the
Released Parties relating in any way to the terms, conditions or circumstances
of his employment and his separation from employment with them, whether based on
statutory or common law claims for employment discrimination (including age,
sex, sexual orientation, religion, race, national origin, disability or other
discrimination arising under the Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act, the Minnesota Human Rights Act and any other
federal, state or local statute, Executive Order or ordinance prohibiting
employment discrimination, wrongful discharge, breach of contract, breach of any
express or implied promise, misrepresentation, fraud, retaliation, breach of
public policy, infliction of emotional distress, defamation, promissory
estoppel, invasion of privacy, tortious interference with contract, or any other
theory, whether legal or equitable. This Release does not impair or apply to
any existing vested rights Employee might have under the terms of any presently
existing employee benefit plans of the Employer applicable to him, under
Workers' Compensation laws, or by reason of this Settlement Agreement and
Release itself. Employee further agrees that he will not institute any legal
proceedings against the Released Parties as a result of any claims of any kind
or character which Employee might have against the Released Parties relating in
any way to the terms, conditions or circumstances of his employment and his
separation from employment with them, or any other fact or matter occurring
prior to the execution of this agreement by Employee, nor will Employee
authorize any other party, whether governmental or otherwise, to seek individual
remedies on his behalf with respect to any such claims. Employee further
acknowledges that he has been provided a full opportunity to review and reflect
on the terms of this Severance Agreement and Release and has had the opportunity
to consult with and obtained the advice of legal counsel of his choice.
Employee has been advised of his right to rescind this Settlement Agreement and
Release within fifteen (15) calendar days after the date of his signature below.
The rescission must be in writing and delivered to Employer either by hand or
mail within the fifteen (15) days. If delivered by mail, the rescission must be
postmarked within the fifteen (15) day period, properly addressed to Employer
at: Xxxxxxx X. Xxxxxx, eBenX, 000 Xxxxx Xxxxxxx 000, Xxxxx XX, Xxxxxxxxxxx, XX
00000-0000, and sent by certified mail return receipt requested. If Employee
rescinds this Release in accordance with the above provisions, then this entire
Agreement is null and void; provided, however, that any such rescission will not
affect the termination of his employment with the Employer, which stands in all
events.
4. In exchange for the payments and services described in Paragraph above
and for other good and valuable consideration described in this Agreement, the
sufficiency of which is hereby acknowledged, Employee also agrees to the
following terms:
(a) Employee agrees that he will sell no more than 60,000 shares
of eBenX stock during the period between 3/5/01 and 3/14/01.
(b) Employee also agrees that no shares of eBenX stock will be sold
by employee during the period between 3/14/01 and 6/6/01.
(c) Acknowledgment. Employee agrees that the restrictions and
--------------
agreements contained in this Paragraph 4 are reasonable and necessary to protect
the legitimate interests of the Employer, and that any violation of this Section
will cause substantial and irreparable harm to the Employer that would not be
quantifiable and for which no adequate remedy would exist at law. Employee
further acknowledges that Employee has requested, or has had the opportunity to
request, that legal counsel review this Agreement, and having exhausted such
right, agrees to the terms herein without reservation. Accordingly, Employee
authorizes the issuance of injunctive relief by any court of appropriate
jurisdiction, without the requirement of posting bond, for any violation of this
Paragraph.
5. Employee agrees that he shall not make any disparaging statements
regarding Employer, and Employer agrees that its officers, directors, and
managers shall not make any disparaging statements regarding Employee.
6. Employee and the Employer represent that they will keep the terms of
this Agreement strictly confidential except that Employee may tell his immediate
family, and Employee and Employer may disclose this information to their
respective legal counsel, and any financial or tax advisor and any other agent
or employee who needs this information in order to fulfill their regular
employment responsibilities. Those to whom such disclosure is made shall be
advised to hold the information in the strictest confidence.
7. This Agreement, consisting of six (6) pages, is full and complete, and
represents the entire understanding and agreement between these parties with
regard to all matters contained herein. There are no other agreements,
conditions, or representations, oral or written, express or implied, between
these parties with regard to the subject matter herein. This Agreement can be
amended only in writing, signed by both parties hereto.
8. The parties have read, considered, and fully understand this
Agreement, have had sufficient time to consider its terms, and execute it
knowingly, freely, and voluntarily. Both parties have had opportunity to
consult with their own independent attorneys or other advisors of their choice.
This Agreement does not constitute, nor shall it be construed as, an admission
of any obligation, wrongdoing, liability or fault of any kind on the part of
either party hereto nor on the part of any of the entities referenced herein.
9. The undersigned have each read this Agreement and understand all the
terms fully and enter their signatures in order to signify their understanding
and voluntary agreement with all the terms and conditions set forth herein.
Dated: March 7, 2001 EMPLOYER
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Its VP, Human Rsources
---------------------------------------
Dated: March 5, 2001 /s/ Xxxxxxx Xxxxxxx
------------------------------------------
Xxxxxxx Xxxxxxx
-2-
