Exhibit 10.9
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release ("Agreement") is entered into on
January 8, 2002 between Tom Kelly ("Employee") and eBenX ("Employer").
WHEREAS, Employee is currently employed by Employer as the Chief
Financial Officer pursuant to an Executive Employment Agreement dated February
23, 2001 (the "Employment Agreement"); and,
WHEREAS, Employee has tendered his resignation and Employer and
Employee have agreed to the terms and conditions on which Employee's employment
with Employer will end and the Employment Agreement will terminate, as provided
herein; and
WHEREAS, Employee and Employer now wish to resolve by agreement all
outstanding issues, disputes, and claims between them;
NOW, THEREFORE, in consideration of the mutual covenants set forth
below, it is agreed as follows:
1. (a) Employer and Employee agree that Employee's resignation from
employment by Employer will be effective February 8, 2002 and that the
Employment Agreement will terminate on that date. Notwithstanding the foregoing,
Articles 5.0 through 8.0 of the Employment Agreement shall remain in effect
until such time as they terminate in accordance with their respective terms.
(b) Commencing the date hereof, and through February 8, 2002, Employee
shall provide only those services included in his duties which are specifically
requested by Employer's President.
2. (a) Employer shall pay to Employee the amount of $95,000 gross,
subject to all legally applicable deductions and withholdings, representing
Employee's salary over a 6-month period, payable in accordance with Employer's
normal payroll schedule beginning within twenty days following Employer's
receipt of a copy of this Agreement executed by Employee. Employer shall
continue to pay or reimburse Employee's premiums for current levels of health
insurance coverage during the six (6) month period of salary continuation.
(b) In addition, Employee will vest in 50% of all unvested stock option
shares. Unexercised stock option shares will terminate within 90 days of your
termination.
(c) All compensation under this Section 2 shall be deemed severance
compensation and shall be in lieu of any compensation and other benefits
otherwise due or payable upon termination of Employee's employment by Employer
under the Employment Agreement or otherwise.
3. Release. As essential inducement to Employer to enter into this
Agreement, and as consideration for the foregoing promises of Employer, Employee
agrees as follows:
(a) Employee, on behalf of himself and his heirs, agents, successors
and assigns, hereby fully and completely releases and forever discharges
Employer, its predecessors, successors, assigns, subsidiaries, parent companies
and affiliates and all officers, employees, and agents of those persons and
companies from any and all claims demands, actions, liability, damages or rights
of any kind, whether known or unknown, arising out of or resulting from any
matter, fact or thing occurring prior to the date of this Agreement, relating to
Employer's hiring of Employee, Employee's employment with Employer, the
Employment Agreement and/or the
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cessation of Employee's employment with Employer, including, without limitation,
claims arising under or based upon Minnesota Human Rights Law; Title VII of the
Civil Rights Act, 42 U.S.C.ss.2000e, et seq.; the Americans with Disabilities
Act, 42 U.S.C.ss.12101 et seq.; the Age Discrimination in Employment Act, 29
U.S.C.ss.621, et seq.; the Older Workers' Benefit Protection Act, 29
U.S.C.ss.626(f); the Employee Retirement and Income Security Act, 29
U.S.C.ss.1001 et seq.; or any other federal, state, or local laws, or any
contract or tort claim whether legal or equitable, whether statutory or common
law, arising from or relating to Employer's hiring of Employee, Employee's
employment with Employer, the Employment Agreement and/or the cessation of
Employee's employment with Employer.
(b) Employee further agrees that Employee will not institute
nor authorize any other party, either governmental or otherwise, to institute
any administrative or legal proceedings against Employer, its predecessors,
successors, assigns, subsidiaries, parent companies and affiliates and all
officers, employees and agents of those persons and companies as a result of any
claims or any kind or character which Employee might have against them arising
from or related to any matter, fact or thing occurring prior to the date of this
Agreement including, without limitation, Employee's employment with Employer,
the Employment Agreement and/or the cessation of Employee's employment with
Employer. However, nothing contained herein shall be construed to interfere with
Employee's rights to file a charge with the Equal Employment Opportunity
Commission, but this Agreement includes a release of Employee's right to file a
court action or to seek individual remedies or damages in any Equal Employment
Opportunity
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Commission-filed court action, and Employee's release of these rights shall
apply with full force and effect to any proceeding arising from or relating to
such a charge.
4. Rescission and Acceptance.
(a) Employee has been informed of Employee's right to rescind this
Agreement as far as it extends to potential claims under the Age Discrimination
in Employment Act, 29 U.S.C.ss. 621 et seq., by informing Employer of Employee's
intent to revoke this Agreement within seven (7) calendar days following
Employee's execution of this Agreement. If a notice of rescission is delivered
by mail, it must be: 1) postmarked within the 15-day period; 2) properly
addressed to: Richard J. Hughes, eBenX, 605 North Highway 169, Suite LL,
Minneapolis, MN 55441-6465; and 3) sent by certified mail return receipt
requested. This Agreement shall not become effective or enforceable until this
seven (7) day period has expired. No payments or benefits will be provided
pursuant to this Agreement until at least eight (8) days after Employee has
executed this Agreement.
(b) Employee also have been informed that the terms of this Agreement
shall be open for acceptance and execution by Employee for a period of
twenty-one (21) days during which time Employee may consider whether to accept
this Agreement. Employee agrees that changes to this Agreement, whether material
or immaterial, will not restart this acceptance period.
(c) It is understood that, in the event a notice of rescission by
Employee is timely delivered, pursuant to the terms of this Section, Employer
may, at its discretion, either enforce the remaining provisions of this
Agreement, or void the entire Agreement and require
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any payments made as of that date to Employee be immediately repaid by Employee
to Employer.
5. 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. Employer may
disclose the terms of this Agreement and/or file a copy of this Agreement with
governmental authorities if and to the extent advised to do so by legal counsel.
6. This Agreement 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.
7. 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.
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8. 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: EMPLOYER
EBENX, INC.
By:
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Its:
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Dated:
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Employee
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