Exhibit 10.1
March 31, 2005
CONFIDENTIAL
Xx. Xxxxxx X. Xxxxxxxxxx
0000 X.X. Canterbury
Topeka, KS 66610
Re: Non-renewal of Employment Agreement
Dear Xxxxxx:
As you and I have discussed, the Company does not intend to renew your
Employment Agreement when it expires on September 30, 2005. This letter will
describe our agreement regarding your continuing terms of employment and your
resignation from the Company, amending your Employment Agreement.
From the date of this letter through the termination of your Employment
Agreement on September 30, 2005 or the effective date of your resignation,
whichever occurs sooner, the Company will employ you in the capacity of
Executive Vice President. The following terms will apply to your employment and
post-employment:
(1) You will be eligible to continue to participate in "Employee
Welfare Plans" as outlined in the Employment Agreement for a period of 18
months from September 30, 2005 or the effective date of your resignation,
whichever occurs sooner. You will be eligible for an additional 18 months
of COBRA coverage at the end of the first 18 months, at your expense. Your
participation in these plans will end earlier, however, when you are
eligible to participate in the health plan of another employer.
(2) You have already received a payment of $22,000 and options to buy
9,000 shares of stock under the Company's Salaried Bonus plan, as set out
in Section 3.1 of the Employment Agreement. You will be eligible to
participate further in the Bonus plan at the "norm" bonus level, with no
individual modifier applied, but only to a maximum potential additional
cash bonus of $30,000;
(3) You will be eligible for continued vesting of restricted shares
and stock options through September 30, 2005.
(4) You will be eligible to exercise any vested stock options through
September 30, 2008.
(5) The duties of your position will include the following: (1)
oversight of the Company's Human Resources function; (2) oversight of the
Information Technology function, specifically strategy development, in
conjunction with Xxxxxx Xxxxxx; and (3) such other job duties as
specifically assigned by Xxxxxx Xxxxxx and/or me.
(6) I will provide reasonable assistance to you in obtaining new
employment.
(7) You will be permitted to conduct your search for new employment
during your regular working hours on an as-needed basis. Starting July 1,
2005, you will be released from your duties under (5), above, in order to
allow you to spend your full time in search of new employment. You will
continue to be paid as required under your Employment Agreement through
September 30, 2005, unless you resign earlier. During this period you may
maintain your office at AIPC, including utilization of your company
provided computer and cell phone. You will also be provided outplacement
support with Right Management Consultants, not to exceed $7,500 during this
period.
(8) You will be covered by the Officer Indemnification Agreement as
approved by the Board of Directors at its February 2, 2005 meeting.
You agree to items (1) - (8), above, and that the terms and conditions set
out in this letter are not and will not be considered a material diminution in
your position, authority, duties or responsibilities, a failure to pay
compensation due, or a material failure or refusal to comply with your
Employment Agreement under Section 7.4 of your Employment Agreement.
You further agree that in exchange for the post-separation consideration
set out in this Agreement, upon separation from employment with the Company on
or before September 30, 2005, you will fully release and forever discharge
Company by executing a separate agreement containing a release similar to that
set forth below in the form proposed by the Company:
To the maximum extent permitted by law and without exception, Employee
releases and waives any and all claims, demands, or causes of action
(collectively "claims") known or unknown, suspected or unsuspected, that
Employee has or could have against the Company and/or any or all of its
current and/or former parent corporations, current and/or former subsidiary
corporations, current and/or former directors, current and/or former
officers, current and/or former fiduciaries, current and/or former
employees, current and/or former agents, current and/or former successors,
current and/or former assigns, and/or other entities currently and/or
formerly affiliated with or related to the Company (collectively
hereinafter "the Company Affiliates"), which claims include, but are not
limited to, claims under any federal and/or state Constitution; claims
under any federal, state, and/or local common law, including claims
sounding in tort and/or contract; claims under any federal, state, and/or
local public policy; claims under the Employee Retirement Income Security
Act; claims under the Family and Medical Leave Act; claims under the Equal
Pay Act; claims for workers' compensation retaliation and/or
discrimination; claims under the Fair Labor Standards Act and/or any other
federal, state, and/or local wage payment law; claims for discrimination
(including harassment) and/or retaliation under any federal, state, and/or
local law, including but not limited to 42 U.S.C. ss. 1981, Title VII of
the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans
with Disabilities Act, the Age Discrimination in Employment Act, and/or any
other federal, state, and/or local law, statute, ordinance, and/or
regulation; claims under any and all other federal, state, and/or local
laws, statutes, ordinances, regulations, and/or common law; and claims
under any
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practice and/or policy of the Company, including but not limited to any
benefit plan of the Company and/or any of the Company Affiliates.
You expressly agree that the circumstances and/or the discussions leading
to this letter are confidential and, as such you will not communicate the
circumstances or the discussions leading to this letter ("Confidential
Information") other than to your immediate family members, to your attorney, to
your accountant, to governmental taxing authorities, or if compelled by a court
of competent jurisdiction or otherwise required by law. The Company may file a
copy of this letter with the SEC, as required by law.
You agree to extend the expiration date of your non-competition agreement,
as set out in Section 4 (4.1 - 4.5 inclusive) of your Employment Agreement, to
September 30, 2009. You agree that the term of the restriction on competition is
necessary for the protection of the Company's protectable interests, reasonable
in duration and scope, may be enforced through injunction, and, if found for any
reason not to be enforceable as written, are to be reformed only so far as is
necessary to be enforceable and not declared generally unenforceable based on
such overbreadth.
This letter and your Employment Agreement contain the entire agreement
between you and the Company with respect to your employment and/or September 30,
2005, or earlier, separation from employment, and no modification or waiver of
any provision of this letter will be valid unless in writing and signed by you
and the Company.
Please review the provisions of this letter and sign it below indicating
your agreement and acceptance of its terms.
Sincerely,
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
THE PARTIES ARE CAUTIONED THAT, BY COMPLETING AND EXECUTING THIS LETTER
AGREEMENT, LEGAL RIGHTS AND DUTIES ARE CREATED. THEY ARE ADVISED TO CONSULT
INDEPENDENT LEGAL COUNSEL AS TO ALL MATTERS CONTAINED IN THIS DOCUMENT.
The terms of the letter have been reviewed by me and I agree with and
accept them.
/s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx
Date: March 31, 2005
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