## **EXHIBIT 10.01**

 

**SETTLEMENT AGREEMENT AND RELEASE**

 

 

This Settlement Agreement and Release (“Agreement”) is entered into as of June 6, 2003, by ZAMBACorporation d/b/a Zamba Solutions (“Zamba”) and Doug Holden (“Holden”).

 

FACTS

 

A.                                   Onor about October 17, 2000, Zamba and Holden entered into an agreementregarding Holden’s entering into employment with Zamba as its President andChief Executive Officer (the “Employment Agreement”), which is attachedhereto as Exhibit A.  On or about thesame day, Zamba and Holden entered into a Zamba Employee Agreement (the “EmployeeAgreement”).

 

B.                                     Onor about June 28, 2002, Holden separated from employment with Zamba, andthe parties wish to settle certain claims arising out of Holden’s separationfrom employment, including but not limited to Holden’s claims for severancearising out of the Employment Agreement.

 

Now, therefore, for good and valuable consideration, the receipt andsufficiency of which is hereby acknowledged, the parties hereto agree asfollows:

 

1.                                       EffectiveDate.  This Agreement shall beeffective upon Zamba’s receipt of Holden’s complete execution of this Agreement(the “Effective Date”).

 

2.                                       Payment.  Within two business days of the EffectiveDate, Zamba shall deliver to Holden the sum of Ten Thousand Dollars ($10,000),and Zamba shall also pay Holden additional payments of Ten Thousand Dollars($10,000) on the twentieth, fiftieth, eightieth, and one hundred tenth daysfollowing the Effective Date, until such time as Holden has received a totalpayment of Fifty Thousand Dollars ($50,000) (each individually a “Payment” and collectively the “Payments”).  Each Payment shall be delivered to Holden inthe form of a check made payable to “Doug Holden” and mailed to the followingaddress: 1196 Eagle Valley Court, San Jose, CA 95120.

 

3.                                       Release.  Subject to Holden’s receipt of all Payments,Holden, for himself and for his partners, family agents, representatives,employees, attorneys, shareholders, successors in interest, personalrepresentatives, heirs, assigns and each of them, absolutely, fully and foreverreleases and discharges Zamba and its officers, directors, shareholders,agents, representatives, employees, servants, attorneys, successors ininterest, assigns and each of them, whether past, present or future, of andfrom any and all claims, demands, liabilities, obligations, losses,controversies, costs, expenses, attorneys’ fees and damages of every kind,nature, character or description whatsoever, whether in law or in equity, andwhether known or unknown, , foreseen or unforeseen, suspected or unsuspected,arising out of, connected with, or in any way related to any claim by Holdenfor severance or any other claim arising out of his employment with Zamba andthe separation of that employment, whether arising out of the EmploymentAgreement, Employee Agreement, any other oral or written agreement, or anyother facts or circumstances, except for potential claims arising out of thefifth and sixth bullets of his Employment Agreement.  Holden represents that he does not have any current claimsarising out of the fifth and sixth bullets of his Employment Agreement.

 

Notwithstandingthe provisions of any federal, state or local statute, regulation, rule ororder, Holden agrees that this Release applies to any and all legal claims ofany kind whatsoever, whether statutory,

 

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common law, constitutional, or otherwise,including but not limited to: all “wrongful discharge” and “constructivedamage” claims; all claims related to any contracts of employment, express orimplied; any claims for defamation, misrepresentation, fraud, or breach of thecovenant of good faith and fair dealing, express or implied; any claim fornegligent or intentional infliction of emotional distress; any claim fornegligence; any claims for attorneys’ fees or costs; any tort claims of anynature; any claims under federal, state, or municipal statute or ordinance; anyother contract, tort, and employment discrimination claims, including those underthe Age Discrimination in Employment Act, the Older Workers’ Benefit ProtectionAct, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991,42 U.S.C. Section 1981, the Americans with Disabilities Act (the “ADA”), theEmployee Retirement Income and Security Act, the Federal Rehabilitation Act of1973, the Federal Family and Medical Leave Act, the Worker Adjustment andRetraining Notification Act, and any and all other age, sex and disabilityclaims recognized under the Minnesota Human Rights Act and all other federal,state, and local laws that arose prior to the date of execution of thisAgreement.

 

Holden also covenants not to sue or start any otherlegal proceedings against any party he released above on any of the releasedclaims.  Holden further covenants not toassist or provide information to any third party regarding any potential claimagainst Zamba or for which Zamba could eventually be liable.  Holden understands that while he is givingup legal claims he may think he has, Zamba would dispute those claims,vigorously defend itself, and not pay Holden any of the benefits of thisAgreement.  Thus, this Agreement willavoid costly and lengthy legal disputes and allow Zamba and Holden to compromiseany differences they may have and buy the peace.

 

4.                                       Waiver of Rights Under Section 1542.  Theparties hereby agree that all rights under section 1542 of the CivilCode of the State of California are hereby waived.  Section 1542 provides as follows:

 

A generalrelease does not extend to claims which the creditor does not know or suspectto exist in his favor at the time of executing the release, which if known byhim must have materially affected his settlement with the debtor.

 

Holdenacknowledges that Section 1542 gives him the right not to release existingclaims of which he is not now aware, unless he voluntarily chooses to waivethis right.  Having been so apprised, henevertheless hereby voluntarily waives the rights described in Section 1542, andelects to assume all risks for claims that now exist in his favor, known orunknown, arising from the subject matter of this Agreement, except for thoseclaims that may arise out of the fifth and sixth bullets of his EmploymentAgreement.

 

5.                                       RescissionNotice.  Within fifteen calendardays after signing this Agreement, Holden has the right to rescind only thatprovision of this paragraph releasing Zamba from liability for charges oractions brought pursuant to the ADEA, Title VII, ADA and the Minnesota HumanRights Act.  To be effective, the rescissionmust be in writing and delivered to Zamba, at 3033 Excelsior Blvd., Suite 200,Minneapolis, MN 55416.  If delivered bymail, the rescission must be:

 

A.  Postmarked within the 15-dayperiod;

B.  Properly addressed to Zamba;and

C.  Sent by certified mail,return receipt requested.

 

In the event Holden rescinds this Agreement, Zamba has no obligationsto him under this Agreement and Holden agrees to repay Zamba any funds alreadypaid to him under this Agreement.

 

6.                                       NoAdmission of Liability.  ThisAgreement and compliance with this Agreement shall not be construed as anadmission by Zamba of any liability to Holden, whatsoever.  Zamba specifically disclaims 

 

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any liability to Holden for any matter arising from or in any wayconnected with Holden’s employment with Zamba and the separation of thatemployment.

 

7.                                       VoluntaryAgreement.  Both Zamba and Holdenenter into this Agreement voluntarily, after having had the opportunity toreview it and consult with advisors, including legal counsel, of theirchoice.  Holden also acknowledges thathe was given a reasonable period of time to consider whether or not to signthis Agreement.  This Agreement setsforth the entire agreement between the parties regarding the subject matterherein, superseding all other agreements, understandings, memoranda, orproposals, either written or oral, regarding the same subject matter.  This Agreement may only be modified oramended by a writing signed by all parties.

 

8.                                       GoverningLaw.  This Agreement shall begoverned in all respects, including validity, interpretation and effect, by thelaws of the State of Minnesota, except for its choice of laws principles.  Any action regarding or relating to thisAgreement shall be venued in a state or federal court located in HennepinCounty in the State of Minnesota.

 

9.                                       NoAssignment of Claims. The parties hereto represent and warrant that theyhave not transferred or otherwise assigned, either by contract or operation oflaw, any of the claims released under this Agreement.

 

10.                                 NoReliance on Representations.  Eachparty to this Agreement represents and acknowledges that in executing thisAgreement that party does not rely and has not relied upon any representationor statement made by the other party or by any of such other party’s agents,attorneys, or representatives with regard to the subject matter, basis oreffect of this Agreement or otherwise, other than those representations andstatements specifically stated in this written Agreement.

 

11.                                 Counterpartsand Facsimiles. This Agreement may be executed in one or more counterparts,which shall be deemed effective upon full execution of this Agreement by allparties.  Each counterpart shall bedeemed an original, but all of which together shall constitute one and the sameinstrument and agreement.  In addition,a copy of this Agreement executed by a party hereto and telecopied to the otherparty shall be deemed to constitute delivery of an originally executed copy ofthis Agreement to the other party.  Afacsimile signature shall be enforceable to the same extent as an originalsignature.

 

12.                                 Authority.  The parties executing this Agreementrepresent that they each have authority to enter into this Agreement, and thatthis Agreement is binding on such party and enforceable in accordance with itsterms.  The persons executing thisAgreement on behalf of the parties to this Agreement represent and warrant thatthey individually have authority to enter into this Agreement on behalf of suchparties.

 

IN WITNESS WHEREOF, the parties hereby execute this Agreement.

 
| Doug Holden         |            | ZAMBA Corporation |
|---------------------|-----------------|-------------------|
|                |            |              |
| By:                 | /s/ Doug Holden |              | By: | /s/ Michael H. Carrel |
|                |            |              |
| Name:               | Doug Holden     |              | Name: | Michael Carrel |
|                |            |              |
| Title:              |            |              | Title: | CFO |
|                |            |              |
| Date:               | 6/6/03          |              | Date: | 6/6/03 |
|                |            |              |   |
|                |            |              |   |
| /s/ DH  Holden |            |              |   |
|                |            |              |   |
| /s/ MC  Zamba  |            |              |   |
|                     |                 |                   |  |  |  |  |  |  |

 

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