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EXHIBIT 10.36
SEPARATION AGREEMENT
This Agreement is made as of the last date set forth opposite any
signature hereto between Patrick T. Bergamasco ("Employee") and ARI Network
Services, Inc. (the "Company").
BACKGROUND OF THIS AGREEMENT
The Employee and the Company have terminated their employment
relationship, effective August 1, 1996. In view of this, they desire to resolve
all aspects of the employment relationship between them, provide for certain
severance arrangements, and reduce their agreement to writing.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth, the sufficiency of which is hereby acknowledged, the parties agree to as
follows:
AGREEMENT
1. Unconditional Benefits to the Employee. Whether or not
Employee chooses to execute this Agreement or exercise his revocation rights
(as explained
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below), the Company will pay Employee all wages due through the last day worked
and for all accrued and unused vacation.
2. Conditional Benefits to the Employee. Subject to and
conditional upon the Employee executing this Agreement within the time frame
specified hereunder and the Employee not exercising his revocation rights
hereunder, the Company agrees to provide the following benefits:
A. The Company will continue to pay Employee's base salary
for the work days within a 120 calendar day period; provided, however,
that if Employee begins employment with another employer, the remaining
payments will be reduced to the amount by which, if any, the Employee's
weekly base salary at the Company exceeds the weekly base salary earned
from the new employer. This benefit shall be in addition to all regular
wages due the employee from the Company and shall be paid beginning on
the first regular pay date following the third business day following
the complete execution of this agreement and continuing for each regular
pay period thereafter until the final payment on regular pay date
following the 120th calendar day after the effective date. It is
understood that this period of salary continuation does not extend to
any benefit provided by the Company and it is expressly understood that
all Company subsidies respecting benefits to which Employee was
entitled
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prior to the termination of his employment with the Company will cease
effective the end of the month following separation. Further Employee's
right, if any, to his and/or his spouse's or his dependents' medical
insurance continuation rights as provided under the Consolidated Omnibus
Budget Reconciliation Act of 1985 ("COBRA") shall commence as provided
by law on December 1, 1996.
B. The Company agrees that it will not contest Employee's
entitlement to unemployment compensation benefits. Employee acknowledges
that he is not entitled to any of the benefits described in this
paragraph absent his participation in this Agreement.
3. Benefits to the Company. In exchange for the consideration
provided in Paragraph 2, above, Employee agrees as follows:
A. That, by signing this Agreement and accepting its
terms, he will provide the release and covenant not to sue in
Paragraph 5.
B. That, during the severance period, Employee will be
available, upon reasonable notice and without further compensation by
the Company, to answer questions posed by the Company. In furtherance of
this commitment, Employee agrees to keep the Company informed as to his
whereabouts if he leaves town for a period of more
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then three business days, so that the Company may contact him if
necessary.
C. That Employee will work with the Company to formulate a
plan for transition of his department to Brian Dearing.
4. Payments Under This Agreement. The Company shall deduct from
payments made under this Agreement any federal, state or local withholding or
other taxes or charges which the Company is from time to time required to
deduct under applicable law and all amounts payable to Employee under this
Agreement are stated herein before any such deduction(s). The Company shall
have the right to rely upon an opinion of its regular accountants or other tax
advisors if any questions should arise as to any such deduction(s). All
payments under this Agreement shall be made in accordance with the Company's
regular payroll practices.
5. Release of Claims.
A. Employee Release. In exchange for the benefits and
payments to him described in this Agreement (which he acknowledges to be
greater, in their totality, than any benefits due him absent this
Agreement), the Employee hereby irrevocably and unconditionally
releases, waives, and fully and forever discharges ARI Network Services,
Inc., its related corporations and other businesses and their past and
current agents, servants, officers, directors, stockholders, attorneys,
and employees and their respective successors and
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assigns (the "Released Parties") from and against any and all claims,
liabilities, obligations, covenants, rights, demands and damages of any
nature whatsoever, whether known or unknown, anticipated or
unanticipated, relating to or arising out of any agreement, act,
omission, occurrence, transaction or matter up to and including the date
of this Agreement, including, without limitation, any and all claims
relating to or arising out of his employment by the Company or the
termination thereof. This Release of Claims includes, but is not limited
to, any claims or remedies arising under or affected by Title VII of the
Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, the
Equal Pay Act, as amended, the Employee Retirement Income Security Act,
as amended, the Americans With Disabilities Act, the Fair Labor
Standards Act, as amended, the Family and Medical Leave Act of 1993, the
Wisconsin Fair Employment Act, as amended, the Wisconsin Family and
Medical Leave Act, or any other local, state or federal laws, whether
statutorily codified or not, or any claim arising in contract or in
tort.
B. Agreement Not To Sue. To the fullest extent permitted
by law, the Employee covenants and agrees not to bring any claim,
action, suit or proceeding against any of the Released Parties, directly
or indirectly, regarding or related in any manner to the matters
released hereby and further covenants
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and agrees that this Agreement is a bar to any such claim, action, suit
or proceeding.
C. Scope of Release. Nothing in the waivers or releases
set forth in this Agreement shall be construed to constitute any release
or waiver by the Employee of any rights or claims against the Company
arising under this Agreement or after the date of this Agreement. This
Release will not apply to any accrued, vested benefits that the Employee
may have as of the date of the termination of his employment with the
Company in any benefit plan maintained by the Company or respecting any
claims under the Wisconsin Workers' Compensation Act.
D. Waiver of Reinstatement. The Employee waives any and
all rights to reinstatement to employment, and hereby agrees not to
reapply for employment with the Company, its successors or related
and/or affiliated companies.
6. Stock Options. Employee understands and acknowledges and
agrees that all unexercised stock options in the Company expired at the close
of business on August 5, 1996.
7. Non-Admission. Neither the negotiations concerning this
Agreement, nor the actual provision of consideration set forth in this
document, nor the Company's drafting or execution of this document shall be
construed as an acknowledgement or
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admission by the Company of any liability to the Employee or any other
individual or entity or of any wrongdoing under federal, state or local law.
8. Confidentiality. The Employee agrees that the terms of this
Agreement with the exception of Paragraph 12, and the discussions leading to
its execution are confidential. He will not disclose any information concerning
them or concerning Employee's termination of employment to anyone at any time
unless compelled to do so under subpoena or other judicial process; fact or
terms of this Agreement as required to administer this Agreement and Employee
may make such disclosures to his spouse, if applicable, (who shall be informed
of these requirements and shall be bound by them). Further, the employee may
disclose such information to his attorneys and tax advisors.
9. Non-Disparagement. Following the termination of Employee's
employment on August 1, 1996, including the period of salary continuation, the
Employee will conduct himself in a professional manner and will make no
disparaging or negative comments regarding the Company, its employees, or its
management.
10. No Hiring, Recruiting of Company Employees. During the
eighteen (18) months following his last day of employment with the Company,
Employee agrees not to recruit or hire any individuals employed at the Company
as of the last day of his employment at the Company for any position or
employment other than at the Company. This prohibition is intended to prohibit
Employee from directly participating
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in such activity, or encouraging any such Company employee to accept employment
elsewhere or aiding or assisting another in the recruitment of such Company
employee during such period. Nothing herein shall prevent Employee from
providing personal references on behalf of ARI employees who are seeking
employment outside of ARI.
11. Entire Agreement. This Agreement constitutes the complete
understanding between the parties concerning all matters affecting the
Employee's employment with the Company and the termination thereof and
supersedes all prior agreements, understandings and practices concerning such
matters, including, without limitation, any prior employment agreement the
Employee may have had with the Company, the provisions of any Company personnel
documents, handbooks or policies and any prior customs or practices of the
Company with respect to bonuses, severance pay, fringe benefits or otherwise.
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12. Additional Confidentiality Obligations
A. Definition of Inventions. For purposes of this
Paragraph 12, the term "Inventions" will mean all inventions, discoveries
and/or product designs, improvements or copyrightable works conceived,
authored or developed by Employee, either individually or jointly with others,
at any time during the term of his employment by ARI or during the one year
period thereafter which relate to ARI's business and were developed by Employee
at the request of ARI or are based upon knowledge Employee gained as a result
of his employment with ARI regarding ARI's business, products, services or
marketing strategies.
B. Title to Inventions. All Inventions shall be and
remain the sole and exclusive property of ARI. Employee shall promptly and
freely disclose any Inventions to ARI management personnel and, if requested to
do so, provide ARI a written description thereof. Employee shall make and
maintain adequate current written records of all Inventions in the form of
notebook records, sketches, drawings or reports, which records shall be and
remain the property of and available to ARI at all times.
C. Other Work Product. All other work product produced
within the scope of Employee's employment with ARI including, but not limited
to, trade
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secrets, trade names, trademarks, or any other Proprietary Information
(as defined below), shall belong exclusively to ARI.
D. Proprietary Information. Employee shall carefully
guard the proprietary, confidential, private or non-published
information relating to the business, operation or financial affairs of
ARI or similar information owned by others which ARI is obligated by
contract to keep confidential learned by Employee during his employment
by ARI ("Proprietary Information"). Employee will not, at anytime during
the term of his employment with ARI or thereafter, disclose to anyone,
directly or indirectly, nor use for the benefit of Employee or third
parties, any such Proprietary Information without the prior written
consent of ARI. In the case of Proprietary Information which does not
constitute a "trade secret" (as defined below) the confidentiality
provisions of this paragraph will apply only during the two years after
the date hereof. For purposes hereof, the term "trade secret" shall be
defined as provided by State and Federal law.
E. Return of Materials. Upon leaving the employ of ARI,
Employee will not take with him, without the prior written consent of
ARI, any software source or object code, engineering or manufacturing
drawings, blueprints, letters, ledgers, customer or supplier information
or lists, marketing materials, bills of material, or copies thereof, or
any computer tapes, diskettes,
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papers or records containing Proprietary Information or Inventions and
Employee will return to ARI any of the same previously taken.
F. Patent and Copyright Registrations. Employee will
furnish such information and assistance as may be required by ARI, at
its expense, to obtain, perfect, assign and/or maintain domestic and
foreign patents or copyright registrations for any patentable inventions
or copyrightable works conceived by Employee during the term of his
employment by ARI. Employee also will, during and after his employment
by ARI, without charge, review and execute any application or documents
necessary to obtain such patents or copyright registrations and vest
title thereto in ARI.
G. Injunctions. Employee recognizes that irreparable and
incalculable injury will result to ARI, its business and property, in
the event of a breach by Employee of the restrictions imposed by this
Paragraph 12. Employee therefore agrees that in the event of any such
breach, ARI will be entitled, in addition to any other remedies and
damages, to an injunction restraining further violation of such
restrictions by Employee and by any other person for whom Employee may
be acting or who is acting for, or in concert with, Employee. If ARI is
awarded an injunction or other remedy in connection with the enforcement
of such restrictions, Employee will pay all costs and expenses
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(including attorneys' fees) reasonably incurred by ARI in such
enforcement effort.
H. Restrictions Reasonable. Employee acknowledges that:
(i) Employee is familiar with the nature of ARI's business; (ii)
Employee has read and understands the nature and scope of the
restrictions set forth in this Agreement; and (iii) that ARI has
invested and will continue to invest substantial effort and sums of
money to develop and promote ARI products, services and goodwill
together with Proprietary Information. Employee therefore acknowledges
and represents that such restrictions are appropriate, necessary and
reasonable for the protection of the business, goodwill and property
rights of ARI and will not prevent employee from earning a living after
the termination of his employment with ARI.
I. Future Employers. For the period of two years
immediately following the end of Employee's employment by ARI, Employee
will inform each new employer, prior to accepting employment, of the
existence of this Paragraph 12 and provide that employer with a copy of
this Paragraph 12. ARI may, if it so desires, send a copy of this
Paragraph 12 to, or otherwise make the provisions hereof known to, any
such employer.
13. No Prevailing Party Designation. The parties agree that this
Agreement shall not be construed to render Employee a "prevailing party" within
the
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meaning of any law, statute or ordinance allowing attorneys' fees and/or costs
to a party who "prevails" in any manner or sense, nor shall this Agreement be
deemed to constitute a factor supporting an award of attorneys' fees and/or
costs under any law, statute or ordinance.
14. Interpretation. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Employee and such officer as may be
specifically designated by the Company.
15. Governing Law, Successors and Assigns. This Agreement
shall be governed and construed in accordance with the laws of Wisconsin and
shall be binding upon the parties hereto and their respective successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have executed this
Separation Agreement on the last day, month and year below written.
ARI NETWORK SERVICES, INC.
8/8/96 By: /s/ Brian E. Dearing
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Date Brian E. Dearing, President & CEO
8/8/96 /s/ Patrick T. Bergamasco
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Date Patrick T. Bergamasco
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ADDENDUM
Acknowledgement of additional items as part of agreement:
- -- Company will provide, at no expense to employee, the use of an office
and administrative/secretarial support for a period of (4) months from
the effective date of this agreement. Company will also provide
continual use of the Company's telephone credit card for the four month
period or until employee is successful in finding other employment
whichever comes first. Use of the telephone credit card is to be for
job-search purposes only.
- -- Company will reimburse employee for up to $1,500 in expenses incurred
with professional outplacement and or consulting services. Employee
will submit an expense account for reimbursement of such fees.
- -- At the conclusion of this agreement, 120 days from the effective date,
and in the event that the employee has not secured acceptable employment
employee may request an additional (2) months of severance, use of
office and secretarial assistance. The employee understands that
Company is under no obligation to grant such extension in whole or in
part.
ARI NETWORK SERVICES, INC.
8/8/96 By: /s/ Brian E. Dearing
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Date Brian E. Dearing, President & CEO
8/8/96 /s/ Patrick T. Bergamasco
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Date Patrick T. Bergamasco
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