EXHIBIT 10.15
AGREEMENT
between
ONTRACK Data International, Inc. and Xxxxx X. Xxxxxx
This AGREEMENT, made effective as of September 21, 1998 ("Effective Date"),
between ONTRACK Data International, Inc., a Minnesota corporation (the
"Company"), a corporation having its principal office 0000 Xxxx Xxxxx, Xxxx
Xxxxxxx, XX 00000, and Xxxxx X. Xxxxxx ("Consultant/Officer").
RECITALS
WHEREAS, the Board of Directors of the Company ("Board") created the
combined office of President and Chief Operating Officer on August 27, 1998, and
appointed Xxxxx X. Xxxxxx to said position, effective September 21, 1998; and
WHEREAS, the Company and Consultant/Officer desire to memorialize
certain understandings and agreements between them on the subject of
compensation for said appointment for the period provided in this Agreement, and
Consultant/Officer is willing to accept appointment as the acting President and
Chief Operating Officer Company for such period, upon the terms and conditions
hereinafter set forth; and
WHEREAS, Consultant/Officer has ratified and affirmed his
Confidentiality and Non-Competition obligations by re-executing the Company's
current Confidentiality Agreement and Covenant Not To Compete contemporaneous
with the execution of this Agreement; and
WHEREAS, the execution of this Agreement has been duly authorized by
the Board, and the terms of compensation contained herein have been approved by
the Compensation Committee of the Board (the "Committee").
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants herein contained, the parties hereto agree as follows:
1. Appointment; Term. Consultant/Officer is appointed an officer of the Company,
effective September 21, 1998, with the title of President and Chief Operating
Officer (Acting), reporting to the Chief Executive Officer, on an at-will basis,
terminable by either party at any time. This appointment shall commence upon the
Effective Date and shall continue for a period of six (6) months, through March
21, 1999 (the "Term").
2. No Other Benefits. During the Term of this Agreement, Consultant/Officer
shall not be entitled to receive benefits of employment generally available to
other members of the Company's executive management. Consultant/Officer shall be
not be entitled to vacation. Consultant/Officer will not be eligible for
profit-sharing, or participation in any Executive Compensation Plans generally
available to full time executive officers/employees of the Company.
3. Reimbursement of Expenses. The Company will to pay all reasonable
out-of-pocket expenses related to commuting & all lodging and auto expenses for
time spent in Eden Prairie excluding personal meals, laundry and other personal
expenses (except where such expenses are directly attributable to Company
business matters). Business travel other than that described/covered above will
be reimbursed according to the then-current Company policy.
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4. Stock Options. Consultant/Officer shall be granted non-qualified options to
purchase shares of the Company's Common Stock on the effective date of this
Agreement (the "Grant Date"). The exercise price of the options shall be $7.125
per share, the published closing price of the Company's common stock on
September 21, 1998. Such options will entitle Consultant/Officer to purchase up
to 50,000 shares of the Company's Common Stock, are fully-vested, and are
exercisable at any time from and after the date of this Agreement (subject to
the Company's Xxxxxxx Xxxxxxx and Tipping Policy in effect from time to time),
will have a term of ten (10) years from the Grant Date, and will otherwise be
subject to the Company's current non-qualified stock option grant agreement (a
copy of which has been provided to Consultant/Officer).
5. Fees as a Director Waived. Consultant/Officer agrees to remain as a director
of the Company; provided, however, that during the period which
Consultant/Officer serves as an officer (acting), Consultant/Officer waives
normal outside director fees, but will have the ability to xxxx under this
contract for participation in Board meetings. Upon the termination of his duties
as an officer (acting), Consultant/Officer will be entitled to re-instatement of
all fees and other benefits applicable to outside directors generally so long as
he is a director of the Company.
6. Cash Compensation. Consultant/Officer's duties as an officer (acting) will be
compensated under his existing Consultation Agreement; provided, however, that
Consultant/Officer agrees to reduce his daily rate from $2,000 to the sum of
$1,200 per day for time spent in Eden Prairie, and to charge $150/hour for time
spent on Company business while on San Xxxx Island. No billing for domestic
travel to and from Eden Prairie and San Xxxx Island. International travel and
domestic business travel other than as described above will be compensable at
the daily/hourly rates, as applicable.
7. Flexible Schedule. The Company and Consultant/Officer agree that his work
schedule as an officer (acting) will be flexible, but will be approximately
every other week in Eden Prairie.
8. Duties. General duties shall include responsibility for all worldwide sales
and operations, subject to the ongoing discretion of the Chief Executive
Officer. During the Term, Consultant/Officer shall devote his best efforts and
all his business time, attention, skill and efforts to the business and affairs
of the Company and its affiliated companies, as such business affairs now exist
and as they may be hereafter changed or added to, under and pursuant to the
general direction of the Chief Executive Officer; provided, however, that
Consultant/Officer may serve, or continue to serve, on the boards of the
directors of and hold any other offices or positions in, companies or
organizations which will not present any conflict of interest with, or impair
Consultant/Officer's fiduciary obligations to, the Company or any of its
subsidiaries or affiliates or divisions, or materially affect the performance of
Consultant/Officer's duties pursuant to this Agreement. The services which are
to be rendered by Consultant/Officer hereunder are to be rendered in the State
of Minnesota, or in such other place or places in the United States or elsewhere
as may be determined from time to time by the CEO, but are to be rendered
primarily at the headquarters of the Company in the State of Minnesota.
9. Obligations of Consultant/Officer Regarding Confidentiality and
Non-Competition During and After Term of this Agreement. Consultant/Officer
affirms his confidentiality and non-competition obligations to the Company by
executing, contemporaneous with the execution of this Agreement, the Company's
current version of said agreement (provided, however, that Consultant/Officer
shall not be deemed an "employee" solely by reason of executing said
Confidentiality and Non-Competition Agreement), a copy of which is attached
hereto as Exhibit A and made a part hereof by reference.
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10. Termination. Either Consultant/Officer or Company may terminate this
Agreement at any time, with or without cause or reason, by providing written
notice of such termination to the other party.
11. Arbitration. Any controversy, dispute or claim between Company and
Consultant/Officer, including, but not limited to claims of race, age, gender,
religious or national origin discrimination under the Title VII of the Civil
Rights Act of 1964, as amended; the Age Discrimination in Employment Act of
1967, as amended; the Americans with Disabilities Act, as amended; any other
federal, state or local laws; and those involving the construction or
application of any of the terms, provisions or conditions of this Agreement or
otherwise arising out of or relating to this Agreement, shall be settled by
arbitration in accordance with the then current employment dispute resolution
rules of the American Arbitration Association, and judgment on the award
rendered by the arbitrator(s) may be rendered by any court having jurisdiction
thereof. The location of the arbitration shall be in Hennepin County, Minnesota.
12. Notice. For purposes of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by United States registered mail,
return receipt requested, postage prepaid, as follows:
If to the Company: ONTRACK Data International, Inc.
0000 Xxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
If to Consultant/Officer: Xxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
or such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
13. Non-Waiver; Complete Agreement; Governing Law. No provisions of this
Agreement may be modified, waived or discharged except in writing signed by both
parties. No waiver by either party at any time of any breach by the other party
of, or compliance with, any condition or provision of this Agreement shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same or
at any prior to subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not set forth expressly in this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Minnesota.
14. Severability. The invalidity or unenforceability of any provisions of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
15. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Consultant/Officer and the Company (pursuant to a resolution
of its Board adopted at a duly constituted meeting) have executed this
Agreement, effective as of the date first above written.
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ONTRACK Data International, Inc.
By:
------------------------------- -----------------------------------
Xxxx X. Xxxxx Consultant/Officer
Its:
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General Counsel/Secretary
Dated: September 21, 1998 Dated: September 21, 1998
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