Exhibit 10.1
SEVERANCE AGREEMENT AND GENERAL
RELEASE
This Severance Agreement and General
Release (this “Agreement”) is entered into by and
between Christopher Min (“Min”) and eLoyalty
Corporation, a Delaware corporation (“eLoyalty” or the
“Company”), effective on February 27,
2009.
Min’s employment with the
Company was terminated effective February 13, 2009
(“Termination Date”).
If Min accepts this Agreement, Min
will receive additional compensation and benefits as described in
Section 4 hereto (the “Termination Payments”),
less any deductions as may be applicable, subject to the terms and
conditions set forth in this Agreement.
In addition to the Termination
Payments, and in consideration of the mutual covenants and
agreements hereinafter set forth, and intending to be legally
bound, eLoyalty and Min agree as follows:
1. Min specifically acknowledges and
agrees that he is not otherwise entitled to the additional payments
and benefits set forth in Paragraph 4 below, that the Company is
providing such payments and benefits in exchange for the mutual
covenants and agreements set forth herein, and that such payments
and benefits under Paragraph 4 below are greater than the payments
and benefits Min would have been entitled to receive upon
termination in the absence of this Agreement. Further, Min
specifically acknowledges and agrees that (i) the payments and
benefits described in this Agreement are in full and final
settlement of any and all amounts that may be claimed to be payable
to Min by the Company for any period or portion thereof ending on
or prior to the date hereof, and (ii) Min is not entitled to
any other payments whatsoever, including, without limitation, any
amounts in the nature of base or incentive (bonus) compensation,
commissions, or other compensatory payments or
reimbursements.
2. Min represents and warrants that
Min has no interest or obligation that is inconsistent with or in
conflict with this Agreement or that would prevent, limit, or
impair Min’s performance of any part of this
Agreement.
3. In exchange for the valuable
consideration set forth in Paragraph 4 below and the mutual
covenants contained herein:
a. Min agrees to release and forever
discharge the Company and its past and present officers, directors,
employees, agents, subsidiaries, divisions, affiliates,
stockholders, predecessors, successors, and assigns (collectively
“Releasees”) from any and all claims and/or causes of
action, known or unknown, arising (i) from or during
Min’s employment or (ii) as a result of the termination
of that employment, whether currently known or unknown, and agrees
that he will not assert any such claims and/or causes of action
against any Releasees. This release includes, but is not limited
to, claims and/or causes of action arising under (or alleged to
have arisen under) (i) Title VII of the Civil Rights Act of
1964, as amended, (ii) The Americans
with Disabilities Act of 1990, as
amended; (iii) the Age Discrimination in Employment Act of
1967, as amended by the Older Workers Benefit Protection Act,
(iv) The Civil Rights Act of 1991; (v) Section 1981
through 1988 of Title 42 of the United States Code, as amended;
(vi) the Employee Retirement Income Security Act of 1974, as
amended; (vii) the Immigration Reform Control Act, as amended;
(viii) the National Labor Relations Act, as amended;
(ix) the Fair Labor Standards Act, as amended; (x) the
Equal Pay Act; (xi) the Occupational Safety and Health Act, as
amended; (xii) The Family and Medical Leave Act of 1993;
(xiii) the Worker Adjustment and Retraining Notification Act;
(xiv) the Sarbanes-Oxley Act of 2002; (xv) any state
antidiscrimination or human rights law; (xvi) any state wage
and hour law; (xvii) any other local, state, and federal law,
regulation, or ordinance; (xviii) any alleged legal
restrictions on eLoyalty’s right to terminate its employees,
including breach of contract, express or implied, discharge in
violation of public policy, wrongful or retaliatory termination, or
promissory estoppel; (xix) any public policy, contract, tort,
or common law, including infliction of emotional distress,
defamation, libel, or slander; or (xx) any allegation for
costs, fees, or other expenses including attorneys’ fees
incurred in these matters. This release specifically excludes the
following: (A) any right Min has to seek or obtain
indemnification from the Company or relating to his service with
the Company, whether by contract, insurance policy, statute, law,
or otherwise; (B) any right or claims relating to facts or
circumstances arising after this Agreement is executed;
(C) any expense reimbursement that has been validated and
approved through the Company’s normal processes; and/or
(D) any right provided for or any action necessary to enforce
any right or obligation provided in this Agreement.
b. Min agrees not to disparage,
defame, libel, slander, place in a negative light, or otherwise
harm the reputation, business, or goodwill of the Company,
including any statements in any format regarding the
Company’s employment practices, business, services, products,
conduct, or policies, or its employees, directors, officers, or
agents.
c. Min agrees to return all property
in good working condition (including computer equipment, any and
all files and documents, whether in written or electronic form or
in any other form or media whatsoever, and including all copies,
excerpts, and derivatives) of the Releasees in his possession. Min
specifically understands and agrees that no payments or obligations
set forth in Paragraph 4 below shall arise until Min returns all
such property to the Company pursuant to this Paragraph.
d. Min agrees that the terms of this
Agreement are confidential and that Min will treat them as
confidential and will not disclose them to any person, except as
may be required by law or legal process, other than Min’s
attorneys, accountants, tax, or financial advisors, or spouse or
domestic partner (who must be informed of and agree to be bound by
the terms of this Paragraph). Notwithstanding the foregoing, Min
will notify any person, firm, corporation or other entity with
which Min becomes employed of Min’s undertakings in Paragraph
6 and 7 hereof.
4. In exchange for Min’s
covenants contained herein, the Company agrees:
a. To pay Min the gross amount of
$250,000 (the “Severance Pay”), from which all
applicable taxes, payroll deductions, and other withholdings will
be deducted. The net
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amount will be paid in a single,
lump sum installment on the first business day following the date
after which this Agreement may no longer be revoked by Min as
provided in Section 16 hereto.
b. To pay the full cost of
continuing Min’s existing medical and dental/vision coverage,
and any applicable health care and/or dependent care spending
account benefits, for up to twelve (12) months after the
Termination Date, or until such time as Min qualifies for health
insurance benefits through a new employer, whichever occurs first
(
