Separation Agreement and Release - eCollege.com and Rob Helmick
SEPARATION AGREEMENT AND RELEASE
This SEPARATION AGREEMENT AND RELEASE ("Agreement") commencing on July 1,
2000 and terminating on June 30, 2001, is entered into by and between Rob
Helmick ("Employee") and eCollege.com ("Employer" or "Company").
Recitals
A. Employee was employed by Company as Company's President and Chief
Executive Officer from inception through May 30, 2000.
B. The parties wish to resolve any and all outstanding issues between
them and therefore voluntarily enter into this Agreement.
Agreement
In consideration of the promises, rights and benefits set forth herein, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Final Payment. Employer shall: a) pay Employee his base salary (a
total gross amount of $255,000); b) provide Employee with Company's general
benefits for a period of twelve months commencing on July 1, 2000 and
terminating on June 30, 2001; and c) pay Employee a separate payment for accrued
vacation through July 1, 2000 (collectively the "Payment") in full satisfaction
and settlement of all amounts owed to Employee by Company for any reason
whatsoever as of the date of termination of Employee's employment, including
without limitation, salary or wages, vacation pay, bonuses, and severance pay.
Such Payment shall be made by Employer in 24 installments in bi-monthly payments
on the 5th and 20th day of each month, provided that Employee complies with the
terms and conditions set forth in this Agreement. Employer shall have the right
to prepay any or all of the obligations under this Agreement at any time.
Employee acknowledges and agrees that he is not owed any other amounts by
Employer as of the date of this Agreement, and acknowledges that the Payment
includes amounts not otherwise owed to Employee but for his execution of this
Agreement. Employee agrees and acknowledges that the general benefits provided
by the Employer may be changed or amended from time to time, and at any time, at
the sole discretion of the Employer.
2. Taxes. Employer will withhold local, state and federal taxes and other
applicable amounts from the Payment as required by law. The gross amount of the
Payment shall be reflected on the Employee's W-2 form issued by Employer for the
appropriate tax year. Employee shall be solely responsible and liable for
payment of any additional amounts which may be due on or as a result of the
Payment.
3. Full General Release. Employee, individually and on behalf of his
successors, heirs and assigns, hereby releases, waives and discharges Employer
and its parents, subsidiaries, or otherwise affiliated corporations,
partnerships or business enterprises, and each of their respective present and
former officers, directors, shareholders, partners, members, employees, agents,
attorneys, representatives, successors, and assigns, (collectively referred to
as "Released Parties"), from any and all causes of action, claims, charges,
demands, losses, damages, wages, compensation, benefits, costs, attorneys' fees
and liabilities of any kind (collectively referred to as "Claims") that he may
have or claim to have, in any way relating to or arising out of any act or
omission from the beginning of time through the date of the execution of this
Agreement. This Full General Release includes, but is not limited to, claims
under the Age
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Discrimination in Employment Act. It is the intent of the parties that this Full
General Release shall fully resolve all Claims of any nature whatsoever now or
previously existing which Employee may have against the Released Parties,
whether presently known or unknown.
4. No Admission of Liability. The parties each deny that they have taken
any improper actions with respect to the other or in violation of any federal,
state, or local law or regulation. This Agreement shall not be admissible in any
proceeding as evidence of any improper conduct by either party.
5. Confidentiality. Employee acknowledges that this confidentiality
provision is an important term to Employer and that without this provision
Employer would not agree to this Agreement.
a. Employee agrees to keep the fact and terms of this Agreement
strictly confidential, and not to discuss or disclose the fact or terms of this
Agreement to anyone except his spouse, legal counsel, and tax advisor, and/or as
required by law. Prior to disclosure to any such person Employee will inform the
person to whom disclosure will be made of the confidentiality requirements of
this Agreement and obtain that person's agreement to keep the information
received confidential and to abide by the provisions of this paragraph.
b. In the event that Employee or any person identified in the
preceding subparagraph is served with a subpoena or other form of order,
directive or request (hereinafter, "Subpoena") by any person or judicial or
administrative body or agency which seeks to force or require such person to
disclose in any manner the substance of the settlement negotiations with
Employer or the terms of this Agreement, the person subject to such Subpoena
shall immediately inform Employer or its attorneys of such Subpoena prior to
making any disclosures regarding the settlement negotiations or this Agreement
and prior to responding in any manner to the Subpoena.
6. Survival of Terms of Employment Agreement. Employee is a party to an
Employment Agreement with Employer dated October 1, 1999, a copy of which is
attached hereto. The Employment Agreement contains certain provisions which
will continue in effect despite Employee's separation from employment, including
without limitation provisions regarding nonsolicitation, confidentiality, ideas
and inventions, return of documents and computer data, and injunctive relief.
Employee acknowledges that his obligations under this Agreement are in addition
to, and not in place of, those continuing obligations under the Employment
Agreement. The provisions of the Employment Agreement and this Agreement shall
be construed together and supplementary to each other wherever possible. In the
event of any conflict between the two agreements, the provisions of this
Agreement shall control.
7. Noncompetition. During the term of this Agreement, and for a period of
twelve (12) months after the termination of this Agreement, Employee shall not,
within the United States, directly or indirectly, (1) own (as a proprietor,
partner, stockholder, or otherwise) an interest in, or (2) participate (as an
officer, director, or in any other capacity) in the management, operation, or
control of, or (3) perform services as or act in the capacity of an employee,
independent contractor, consultant, or agent of any enterprise engaged, directly
or indirectly, in the online education and online training business or in
competition with any other business conducted by the Company except with the
prior written consent of the CEO of the Company; or, (4) directly or indirectly,
contact, solicit or direct any person, firm, or corporation to contact or
solicit, any of the Company's customers, prospective customers, or business
brokers for the purpose of selling or attempting to sell, any products and/or
services that are the same as or
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similar to the products and services provided by the Company to its customers
during the term hereof. In addition, the Employee will not disclose the identity
of any such business brokers, customers, or prospective customers, or any part
thereof, to any person, firm, corporation, association, or other entity for any
reason or purpose whatsoever; and solicit or accept if offered to him, with or
without solicitation, on his own behalf or on behalf of any other person, the
services of any person who is an employee of the Company, nor solicit any of the
Company's employees to terminate employment with the Company, nor agree to hire
any employee of the Company into employment with himself or any company,
individual or other entity. Employee agrees and acknowledges that the
Noncompetition clause in this Agreement is extended by an additional six months
from the term of the Noncompetition in Employee's Employment Agreement.
8. Nondisparagement. Employee covenants and agrees not to make or publish
any disparaging, derogatory, critical, unflattering, or otherwise negative
comments about Employer whether true or untrue, to any person or entity, or to
make any statements from which a disparaging, derogatory, critical,
unflattering, or otherwise negative meaning could reasonably be inferred;
provided, however, that if Employee is required by law to testify, provide
information or give a statement under oath nothing in this provision is intended
to prevent or discourage Employee from doing so truthfully.
9. Board of Directors. Employee shall continue in his capacity as
Co-Chairman of the Board of Company at the discretion of the Board. Employee
shall receive the same benefits extended to all other directors of Company, so
long as Employee is a director.
10. Legal Counsel. Employee has consulted or has had the opportunity to
consult with an attorney regarding his separation from employment and this
Agreement.
11. Voluntariness of Agreement. Employee has had sufficient time to
consider the terms of this Agreement, understands this Agreement, and chooses
voluntarily to enter into this Agreement.
12. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the enforcement, interpretation, or breach hereof, shall be
settled by binding arbitration in accordance with the Colorado Uniform
Arbitration Act, administered in Denver, Colorado. Judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The fees of the arbitrator shall be divided and paid equally by the
parties to the arbitration.
13. Return of Employer's Property. Employee hereby warrants and represents
that he has returned all property belonging to Employer in his possession or
control, including without limitation keys, access cards, equipment, tools,
documents and files; provided however, that Employee shall be entitled to keep
his Company computer and Blackberry.
14. Voice Mail. Company shall continue to provide Employee with a voice
mailbox on the Company voice mail system until June 30, 2001. In addition,
Company will forward Employee's email to an email address provided by Employee.
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15. Miscellaneous.
a. Complete and Final Agreement. Except as otherwise expressly
provided herein, this Agreement constitutes the entire agreement between the
parties on the subject matter hereof, and supersedes and replaces any and all
prior understandings, obligations, representation, and agreements between the
parties, whether written or oral, express or implied, or based on statute,
common law, or contract.
b. Amendments. Any amendment, modification or waiver of any
provision of this Agreement must be in writing and signed by all parties to be
effective.
c. Binding Effect. This Agreement shall bind and inure to the
benefit of the agents, heirs, executors, representatives, administrators,
successors, assigns, and affiliates of the parties.
d. Governing Law. The interpretation and enforcement of this
Agreement and the parties' rights hereunder shall be construed in accordance
with and governed by Colorado law.
e. Counterparts. This Agreement may be executed in counterparts,
which together shall constitute one document.
f. Headings. The headings used in this Agreement are for convenient
reference only, and do not alter or limit the terms of each paragraph.
g. Severability. In the event that all or any portion of one or more
of the provisions of this Agreement shall be found to be invalid, illegal or
unenforceable in any respect, that provision or portion shall be severed from
this Agreement and the validity, legality and enforceability of the remaining
portion of the provision and all other provisions contained herein shall not in
any way be affected or impaired thereby.
h. Notices. Any notices required by or relating to this Agreement
shall be sent by certified mail, hand delivery, messenger service, or confirmed
facsimile transmission. Such notices shall be sent to the parties at the
addresses set forth below, which may be changed upon notice to the other party
in accordance with this paragraph.
THIS DOCUMENT CONTAINS A RELEASE OF CLAIMS.
READ CAREFULLY BEFORE SIGNING.
Rob Helmick eCollege.com
_____________________________ By:_____________________________
Rob Helmick Oakleigh Thorne, CEO
Address:_____________________ 10200 A East Girard Avenue
_____________________ Denver, CO 80231
Date: _____________________ Date:___________________
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