RESIGNATION AND RELEASE AGREEMENT
This RESIGNATION AND RELEASE AGREEMENT (the "Agreement") among Xxxxx X.
Xxxxxxxx ("Xxxxxxxx"), Egghead, Inc. and D J & J Software Corporation d/b/a
Egghead (D J & J Software Corporation, collectively with Egghead, Inc.,
"Egghead") is dated as of April 29, 1997. Xxxxxxxx and Egghead wish to
amicably terminate Xxxxxxxx'x employment with Egghead, and the parties wish
to clearly set forth the terms and conditions of Xxxxxxxx'x departure from
his employment. Therefore, in consideration of the mutual promises and
undertakings in this Agreement, Xxxxxxxx and Egghead agree as follows:
1. RESIGNATION. Xxxxxxxx will resign from his employment as the Executive
Vice President of Egghead and from any other designated Egghead responsibilities
no earlier than April 15, 1997 and no later than July 15, 1997. For purposes
of this Agreement, Xxxxxxxx'x actual date of resignation, or termination by
Egghead, as the case may be, shall be the "Date of Resignation."
2. PAY PROTECTION.
(a) GUARANTEED PAYMENT. Commencing the Date of Resignation, Egghead
shall pay Xxxxxxxx his current annual base salary of $250,000 for a period of
nine (9) months (the "Severance Period"), less any lawful withholding. Such
amount shall be paid in bi-weekly installments at normal bi-weekly payroll
intervals or pursuant to a payment schedule that is mutually agreeable to the
parties. Xxxxxxxx shall also be paid in full for any unused vacation pay
accrued as of the Date of Resignation, as reflected in Egghead's records, to
be paid at the end of the payroll period next following the Date of
Resignation, or pursuant to a payment schedule that is mutually agreeable to
the parties. Xxxxxxxx shall not be entitled to vacation pay accrual during
the Severance Period. Xxxxxxxx agrees to be available for consulting, either
in person or via telephonic means, no more than one day per month during the
Severance Period, at the reasonable request of Egghead management.
(b) EXTENSION PAYMENT. Upon termination of the Severance Period, and
provided Xxxxxxxx has failed to commence alternative employment, Egghead shall
continue to pay Xxxxxxxx his current annual base salary, less any lawful
withholding, in bi-weekly installments for a period that will terminate on the
earlier of: (i) twelve (12) months from the ending date of the Severance Period;
or (ii) the date Xxxxxxxx commences
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alternative employment (the "Extension Period"). Such extension payments shall
be paid at normal bi-weekly payroll intervals. Xxxxxxxx shall not be entitled to
vacation pay accrual during the Extension Period. From time to time during the
Extension Period, but in no event more frequently than monthly, Xxxxxxxx will be
available to orally (by telephone) update either the President or Chief
Financial Officer of Egghead, Inc. on the status of his efforts to obtain
alternative employment, and he will notify Egghead in writing within ten (10)
days after accepting alternative employment. Upon accepting new employment,
Xxxxxxxx will not unreasonably delay commencing work for his new employer in
order to continue receiving payments during the Extension Period. For purposes
of this Agreement, "alternative employment" is defined as any business
relationship from which Xxxxxxxx receives gross monthly W-2/1099 wages equal to
fifty percent (50%) or more of his average gross monthly Egghead severance
payment as herein described in Section 2(a).
(c) DEATH OR DISABILITY. In the event of Xxxxxxxx'x death prior to
completion of the Severance Period, Egghead shall be obligated to continue until
the end of the Severance Period the severance payments set forth under Section
2(a) hereof and the COBRA subsidies set forth under Section 3(b), if applicable.
In the event of Xxxxxxxx'x death subsequent to the end of the Severance Period
but prior to completion of the Extension Period, and provided he has not
procured alternative employment as herein defined, Egghead shall be obligated to
continue until the end of the Extension Period Xxxxxxxx'x extension payments set
forth under Section 2(b) hereof and the COBRA subsidies, if applicable.
In the event of death, such payments shall be made to Xxxxxxxx'x spouse, if
then living, and if Xxxxxxxx'x spouse is not then living, said payments shall be
paid to Xxxxxxxx'x estate. Other than the foregoing, Egghead shall have no
further obligation to Xxxxxxxx'x estate under this Agreement in the event of his
death.
In the event Xxxxxxxx becomes totally disabled (as herein defined) prior to
the end of the Severance Period, then the severance payments set forth under
Section 2(a) otherwise payable to Xxxxxxxx shall be continued for the entire
Severance Period. If Xxxxxxxx is receiving extension payments under Section
2(b) and Xxxxxxxx becomes totally disabled prior to the end of the Extension
Period, and provided he has not procured alternative employment as herein
defined, then the extension payments set forth under Section 2(b) shall be
continued for the entire Extension Period. Notwithstanding the foregoing,
Egghead shall have no obligation to make any payments pursuant to either of the
preceding two sentences unless Egghead has received proof to its satisfaction
that Xxxxxxxx has suffered a total disability. For purposes of this Agreement,
total disability shall mean
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an illness or physical or mental incapacity that prevents Xxxxxxxx from seeking
or procuring alternative employment. Proof of such disability shall be supplied
by Xxxxxxxx in the form of a written letter of Xxxxxxxx'x physician stating that
in the physician's opinion Xxxxxxxx is physically or mentally incapable of
seeking or procuring alternative employment. Egghead shall have the right to
have Xxxxxxxx examined by a physician of Egghead's choice, solely at Egghead's
expense, to render an opinion as to whether or not Xxxxxxxx is physically or
mentally incapable of seeking or procuring alternative employment. In the event
the physician selected by Xxxxxxxx and the physician selected by Egghead render
contrary opinions, the issue of whether Xxxxxxxx is physically or mentally
incapable of seeking or procuring alternative employment may be submitted by
Egghead to arbitration under Washington law, and the decision of such
arbitration shall be final and binding on all parties. So long as any payments
are made to Xxxxxxxx, Egghead will also continue to make COBRA (defined below)
subsidies as herein described, if applicable. Other than the foregoing, Egghead
shall have no further obligation to Xxxxxxxx under this Agreement in the event
of his total disability.
3. EMPLOYEE BENEFIT PROGRAMS.
(a) STOCK OPTIONS. Egghead agrees to provide Xxxxxxxx a period of
twenty-one months from the Date of Resignation to exercise the unexercised
options to purchase common stock of Egghead, Inc. that have been issued to
Xxxxxxxx pursuant to Egghead Inc.'s 1993 Stock Option Plan, provided that after
the Date of Resignation Xxxxxxxx may only exercise the portion of such options
that was vested as of the Date of Resignation. The exercise price of each such
option shall be as set forth in the option letter agreement relating to such
option. Xxxxxxxx and Egghead, Inc. expressly agree that there shall be no
further vesting of any options held by Xxxxxxxx after the Date of Resignation.
Subject to the foregoing, Xxxxxxxx'x exercise shall be in conformance with the
provisions of Egghead, Inc.'s 1993 Stock Option Plan and with the provisions of
Section 16 of the Securities Exchange Act of 1934, as amended. Any change to
Egghead Inc.'s 1993 Stock Option Plan shall not adversely affect Xxxxxxxx'x
rights under this Section 3(a).
(b) COBRA. Except as expressly provided in this Agreement, all benefits
and perquisites, original, remaining or otherwise, to which Xxxxxxxx may have
had an entitlement as of immediately prior to the Date of Resignation shall
cease effective the Date of Resignation. At his election, Xxxxxxxx and his
family may continue to participate in Egghead's medical and dental benefit plans
governed by the Comprehensive Omnibus Budget Reconciliation Act ("COBRA") for
the time period provided in COBRA. Egghead will subsidize the cost of such
coverage at the level in effect for Xxxxxxxx and his family as of the Date of
Resignation through the earlier of
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(i) the end of the eighteenth month after the Date of Resignation or (ii) the
date Xxxxxxxx commences alternative employment; or (iii) the end of the
Extension Period. Xxxxxxxx will pay the balance of such cost, if any.
4. ANNOUNCEMENT AND COMMUNICATION.
(a) INTERNAL ANNOUNCEMENT. Xxxxxxxx may communicate notice of his
resignation to his direct reports and staff thirty (30) days prior to his Date
of Resignation as hereinabove defined. Egghead shall communicate notice of
Xxxxxxxx'x resignation to all Egghead employees on or after the date Xxxxxxxx
communicates his resignation to his direct reports. Such communication by each
party as it relates to the parties' relationship shall be limited to
substantially the following information: "Xxxxx X. Xxxxxxxx has resigned as
Executive Vice President of Egghead to pursue other opportunities."
(b) EXTERNAL COMMUNICATION. Egghead will communicate notice of
Xxxxxxxx'x resignation to third parties by press release and date determined
in Egghead's sole discretion. Such notice will be in form and substance
substantially similar to that communicated to all Egghead employees as
provided in Section 4(a) hereof, or, if Egghead so elects, in such other form
and substance as the parties hereto may mutually agree in writing.
5. REFERENCES. Upon request, Egghead will provide a letter of
recommendation for Xxxxxxxx containing his dates of employment and pay and title
confirmation only. Unless authorized by Xxxxxxxx in writing, Egghead's response
to any inquiry from third parties regarding Xxxxxxxx'x employment with Egghead
shall be limited to this same information.
6. RELOCATION EXPENSES. Egghead shall reimburse Xxxxxxxx for the cost of
relocating Xxxxxxxx'x residence to any place outside Spokane County, Washington,
up to a total amount not to exceed $40,000 promptly after receipt of valid
receipts submitted by Xxxxxxxx for the cost of moving household goods and for
costs related to the sale of his Spokane residence. No other relocation
expenses shall be reimbursed. Egghead has no obligation to reimburse or pay
Xxxxxxxx any amount with respect to any decrease in the value of Xxxxxxxx'x
residential property from the amount paid by Xxxxxxxx to purchase such
residential property. No reimbursement under this Section 6 will be made after
sixty (60) days from the date of Xxxxxxxx'x final severance or extension
payment, as the case may be, received in accordance with the provisions of
Section 2 hereof.
7. NON-DISPARAGEMENT. Xxxxxxxx agrees not to make any disparaging or
derogatory remarks, comments or statements about Egghead
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and its officers, directors, and employees, or any of them, at any time.
Egghead agrees not to, and will instruct its current officers, directors and
senior management not to, make any disparaging or derogatory remarks, comments
or statements about Xxxxxxxx at any time.
8. CONFIDENTIALITY, NON-SOLICITATION, AND NON-COMPETITION.
(a) NON-DISCLOSURE. Except as required by applicable law or regulation
and except as may be required to insure compliance with the terms of this
Agreement, Egghead and Xxxxxxxx agree to keep the terms of this Agreement
confidential; provided, that Xxxxxxxx may share its provisions with his spouse,
attorneys, and professional advisors, who will be informed of and bound by this
confidentiality obligation, and Egghead may share its provisions with its senior
management, attorneys, and professional advisors, who will be informed of and
bound by this confidentiality obligation. Xxxxxxxx agrees not to use or
disclose any confidential information. As used herein, "confidential
information" means all trade secrets, non-public information, methods,
strategies, practices, computer programs and systems, research and related
documentation, customer lists and other data, marketing plans, financial
information, and all other compilations of information that relate in any manner
to the business of Egghead, any of the direct or indirect subsidiaries of
Egghead, Inc., or Egghead SSI, LLC d/b/a Egghead Computer Surplus (such
subsidiaries, together with Egghead SSI, LLC d/b/a Egghead Computer Surplus, the
"Affiliate Entities") or any of them. Xxxxxxxx acknowledges that all
confidential information is the proprietary and confidential property of Egghead
or the Affiliate Entities. Xxxxxxxx further agrees to return all tangible items
containing such confidential information, wherever located and in whatever form,
in addition to all other property belonging to Egghead or the Affiliate
Entities, on or before the Date of Resignation.
(b) NON-SOLICITATION. Xxxxxxxx agrees that during the Severance Period
he will not individually, or in conjunction with any other person,
corporation or other entity, in any capacity, directly or indirectly (i)
knowingly solicit or recruit any employee of or consultant to Egghead or any
of the Affiliate Entities or (ii) knowingly cause or seek to cause (A) any
employee of or consultant to Egghead or any of the Affiliate Entities to
terminate his or her employment or consulting relationship with Egghead or
any of the Affiliate Entities or (B) any customer, client or vendor of
Egghead or any of the Affiliate Entities to alter or terminate any business
relationship with Egghead or any of the Affiliate Entities.
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(c) NON-COMPETITION. Xxxxxxxx agrees that he will not, directly or
indirectly, during his employment and for a period of twenty-one months from the
Date of Resignation, be employed by, own, manage, operate, join, control or
participate in the ownership, management, operation or control of or "be
connected with" (as that phrase is interpreted below), any person or entity
engaged in any operations in competition with Egghead or any of the Affiliate
Entities in the retail sale of computer software or computer hardware, or both,
through stores, mail order, telephonic means or electronic commerce, including,
without limitation, through the Internet; provided, however, that for purposes
of this Section 8(c) the following shall be deemed to be persons or entities not
engaged in operations in competition with Egghead or any of its Affiliate
Entities: (i) any person or entity if its sales of computer software and
computer hardware constitute less than ten (10) percent of its total annual
revenue and of the total annual revenue of the division, if any, of that person
or entity the primary purpose of which is the sale of computer software or
computer hardware, or both; (ii) any person or entity that is a software
publisher or hardware manufacturer provided that it sells only products that it
develops or manufacturers; and (iii) any person or entity that is an importer
of computer hardware provided that it sells only computer hardware. The Board
of Directors of Egghead, Inc. may, in its sole discretion, release Xxxxxxxx from
any or all of his obligations pursuant to this Section 8(c), provided that such
release shall not be effective unless in writing. Xxxxxxxx shall be deemed to
"be connected with" such business if such business is carried on by a
partnership, corporation or association of which he is an officer, director,
employee, partner, member, consultant or agent; provided, however, that nothing
herein shall prevent the purchase or ownership by Xxxxxxxx of shares which
constitute less than 2% of the outstanding equity securities of a publicly or
privately held corporation.
(d) VIOLATION. Xxxxxxxx acknowledges that his confidentiality,
non-solicitation and non-competition obligations under this Section 8 are
material inducements to Egghead in entering into this Agreement, that his
violation thereof shall constitute a material breach of this Agreement and that
any disclosure or action by Xxxxxxxx in violation of this Section 8 may cause
serious and irreparable injury to Egghead for which there may be no adequate
remedy at law. Consequently, in any action specifically to enforce any
provision of this Section 8, Xxxxxxxx hereby waives any claim or defense therein
that an adequate remedy at law or in damages exists. Xxxxxxxx further agrees
that Egghead shall be entitled to injunctive relief, specific performance or
other equitable relief to prevent violation of this Section 8. If, upon
investigation, Egghead in its discretion determines in good faith that Xxxxxxxx
has materially violated or is in material violation of this Section 8, then
Egghead will give Xxxxxxxx written notice of the violation, and if Xxxxxxxx
shall not have cured such violation within six business days of such notice, as
determined in the sole discretion of Egghead, then Egghead
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may retain as liquidated damages the balance of the payments coming due Xxxxxxxx
under Section 2 hereof, if any. Notwithstanding Section 17 hereof, Egghead may
exercise the remedy set forth in the preceding sentence without regard to
whether its claim for violation of Section 8 has been submitted to arbitration;
PROVIDED, HOWEVER, that if Egghead has exercised such remedy and Xxxxxxxx
disputes whether Egghead's determination that Xxxxxxxx has materially violated
this Section 8 or has failed to timely cure such violation was made in good
faith, then the matter may be submitted to arbitration in accordance with
Section 17 hereof. The rights and remedies set forth in this Section 8 are in
addition to all other legal, equitable and contractual rights and remedies
available to Egghead, including, but not limited to, the reimbursement of
reasonable attorneys' fees and costs associated with any such actions.
9. REPRESENTATIONS AND WARRANTIES.
(a) BY XXXXXXXX. Xxxxxxxx hereby represents and warrants as follows:
(i) That, to the best of his knowledge, as of the date hereof, there
is no litigation or claim of any kind pending or contemplated in any court
or before any governmental authority or regulatory body or arbitrator,
pertaining to acts or omissions that occurred within the scope of his
employment as an officer of Egghead, and that he knows of no facts or
circumstances that would give rise to such litigation or claim.
(ii) That he has reviewed this Agreement with independent legal
counsel, that the terms of this Agreement have been negotiated in good
faith at arms' length, that he has read and understands the terms of this
Agreement and the consequences thereof, and that he enters into this
Agreement as his free, voluntary and independent act.
(b) BY EGGHEAD. Egghead represents and warrants as follows:
(i) That, to the best of its knowledge, as of the date hereof, there
is no litigation or claim of any kind pending or contemplated in any court
or before any governmental authority or regulatory body or arbitrator,
pertaining to acts or omissions that occurred within the scope of
Xxxxxxxx'x employment as an officer of Egghead, and that it knows of no
facts or circumstances that would give rise to such litigation or claim;
(ii) That it is a Washington corporation duly authorized and validly
existing under the laws of the State of Washington;
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(iii) That this Agreement and the obligations and undertakings arising
hereunder constitute the valid, binding and enforceable obligations of
Egghead; and
(iv) That it will promptly inform its officers, director and senior
managers of its obligations under the relevant sections of this Agreement.
10. MUTUAL RELEASE. In consideration of the benefits and payments provided
to Xxxxxxxx in this Agreement, and as a material inducement to Egghead to enter
into this Agreement, Xxxxxxxx, individually and for his marital community,
heirs, personal representatives, successors and assigns (collectively "Xxxxxxxx
Releasees"), releases and forever discharges Egghead and the Affiliate Entities,
including any and all of Egghead's and each Affiliate Entity's affiliates,
shareholders, officers, directors, representatives, agents, and employees, each
of their successors and assigns, and each of them (collectively "Egghead
Releasees"), from any and all Claims (as defined below) that Xxxxxxxx may have
against any of the Egghead Releasees as of the Date of Resignation The Egghead
Releasees release and forever discharge the Xxxxxxxx Releasees from any and all
Claims (as defined below) that any of the Egghead Releasees may have against any
of the Xxxxxxxx Releasees as of the Date of Resignation. "Claims" as used in
this Section 10 is defined to mean any and all claims, demands, charges,
liability, causes of action, and damages, including without limitation,
attorneys' fees and costs actually incurred, known or unknown, including without
limitation, any and all claims, rights, demands, and causes of action for breach
of any employment contract or agreement (whether express or implied, written or
oral), wrongful discharge, intentional and/or negligent infliction of emotional
distress, defamation, invasion of privacy, tort claims, discrimination on the
basis of marital status, race, sex, national origin, color, religion, handicap
or disability, retaliation, violation of public policy, and violation of any and
all federal, state and/or local statutes, laws, rules, regulations and/or
ordinances, including, but not limited to, Title VII of the Civil Rights Act of
1964, as amended, Sections 1981 through 1988 of Title 42 of the United States
Code, as amended, The National Labor Relations Act, as amended, The Americans
with Disabilities Act of 1990, as amended, The Family and Medical Leave Act of
1993, The Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, The
Washington State Wage and Hour Laws, and The Washington Law Against
Discrimination, Ch. 49.60 RCW, as amended; except that the term "Claims" does
not include: (i) any claims for indemnification pursuant to Article IX of the
Bylaws of Egghead, Inc. that Xxxxxxxx may have as a former officer of Egghead or
pursuant to policies of insurance held by Egghead, if any, that provide coverage
for liability of former officers and directors of Egghead; (ii) any claims based
on rights created by this
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Agreement; and (iii) any claims where the events in dispute first arise after
the Date of Resignation. Egghead will not contest any claim for unemployment
compensation filed by Xxxxxxxx, but Egghead may report the severance payments
paid to Xxxxxxxx hereunder as appropriate.
11. TAX LIABILITY. Some or all of the payments and benefits which Xxxxxxxx
may receive hereunder may be deemed income and taxable to Xxxxxxxx under
relevant provisions of the Internal Revenue Code of 1986, as amended, and
other federal, state, and local statutes and regulations (collectively
"Codes"). Xxxxxxxx is advised that Egghead does not "gross up" benefits paid
to or on behalf of its employees. Xxxxxxxx shall have sole responsibility to
determine and, to the extent any withholdings made by Egghead hereunder are
insufficient, to pay, and shall indemnify and hold Egghead harmless from, all
income taxes coming due under such Codes. This hold harmless and indemnity
obligation covers only those taxes which, in the ordinary course, would
normally be obligations of or paid by Xxxxxxxx.
12. NONADMISSION CLAUSE. This Agreement shall not be construed as an
admission by either party of any liability to the other party, breach of any
agreement between the parties, or violation by either party of any statute, law,
rule or regulation.
13. CONSIDERATION/REVOCATION PERIOD. Xxxxxxxx acknowledges that he has been
informed of his right to fully consider the terms of this Agreement for a period
not to exceed twenty-one (21) days pursuant to applicable provisions of the
ADEA. If Xxxxxxxx chooses to execute this Agreement, he shall have an
additional seven (7) days after signing this Agreement to revoke it by providing
written notice thereof to Egghead.
14. SEVERABILITY. If any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions shall nevertheless continue to be valid
and enforceable to the maximum extent consistent with applicable law.
15. COMPLETE AGREEMENT. This Agreement contains the entire understanding
and agreement between the parties in connection with its subject matter and
supersedes any and all other prior and contemporaneous oral or written
agreements, understandings, or representations between the parties pertaining
to same. This Agreement cannot be altered except in a writing signed by
Xxxxxxxx and an authorized representative of Egghead.
16. FURTHER ASSURANCES. The parties agree to execute any further documents
and instruments as may be reasonably necessary to fully carry out the terms
and conditions of this Agreement.
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17. ARBITRATION. Except as set forth under Section 2(c) and Section 8(d)
hereof, and except for any claim for injunctive or other equitable relief (which
the party bringing such claim may elect either to bring in any court of
competent jurisdiction or to submit for arbitration), any controversy or claim
arising out of this Agreement shall be resolved by arbitration pursuant to this
paragraph and the then current rules and supervision of the American Arbitration
Association ("AAA"). The arbitration shall be held in Spokane before a single
arbitrator either mutually agreed upon by the parties or selected in accordance
with AAA Rules. The arbitrator shall have no authority to add to, subtract
from, or modify any of the terms of this Agreement. The arbitrator's decision
shall be final and binding upon the parties hereto and may be entered in any
court having jurisdiction.
18. NOTICES. All notices, requests, payments and other communications required
or permitted to be given hereunder shall be in writing and shall be delivered by
overnight courier or sent postage prepaid by the United States certified mail,
return receipt requested, to the addressee's mailing address as hereafter set
forth:
If to Egghead: Egghead, Inc.
00000 Xxxx Xxxxxxx
Xxxxxxx xxxx, XX 00000
Attention: Legal Department
If to Xxxxxxxx: Xxxxx X. Xxxxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Any party hereto may, by proper notice to the other parties, designate such
other address for the giving of notice as required hereunder. Any notice shall
be deemed given on the first day following the date such notice is sent by
overnight courier or on the third day following the date such notice is mailed
in accordance with this Agreement.
19. BINDING AGREEMENT. This Agreement shall bind and inure to the benefit of
the parties and their respective heirs, personal representatives, marital
communities, related entities, shareholders, officers, directors, employees,
agents, attorneys, successors and assigns, except that Xxxxxxxx may not assign
any of his rights or delegate any of his duties hereunder without the prior
written consent of Egghead.
20. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington without application of the
principles of conflicts of laws, and venue for any proceeding hereunder shall be
in Spokane County, Washington.
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21. COUNTERPARTS. This Agreement may be executed on separate counterparts,
any one of which need not contain signatures of more than one party, but all
of which taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties execute this Agreement as of the date first
above written.
EGGHEAD, INC.
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxx
--------------------------- ---------------------------------------
Xxxxx X. Xxxxxxxx By: Xxxxxx X. Xxxxx, Chairman of the
Board of Directors
D J & J SOFTWARE CORPORATION
d/b/a EGGHEAD
/s/ Xxxxxx X. Xxxxx
---------------------------------------
By: Xxxxxx X. Xxxxx
----------------------------------
Its Chairman of the Board of Directors
-----------------------------------
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