EXHIBIT 10.5
SEPARATION AGREEMENT
THIS AGREEMENT is made this 30th day of April, 2000, by and between FOCUS
Enhancements, Inc., A Delaware Corporation, hereinafter referred to as the
"Company", and Xxxx X. Xxxxxx, hereinafter referred to as "Employee".
RECITALS:
WHEREAS, on or about May 4, 1998, Company and Employee entered into an
employment agreement, which was subsequently amended on March 1, 1999
(collectively, the "Employment Contract"); and
WHEREAS, Employee and Company have mutually agreed to sever the employment
relationship; and
WHEREAS, Employee and Company now desire to avoid any disputes or
differences regarding any prospective claims which may be asserted by Employee
regarding any entitlement to continuation of his employment with the Company;
NOW, THEREFORE, in consideration of the above recitals, which are
incorporated herein by this reference, and in further consideration of the
covenants, promises and conditions hereinafter set forth, Employee and Company
agree as follows:
1. Employee's employment with the Company shall be considered as and was
terminated effective April 30, 2000 ("Termination Date"). As of the
Termination Date, the Employment Contract shall be considered terminated by
Employee. Notwithstanding anything to the contrary herein, any of
Employee's obligations which by their nature extend beyond termination
shall survive termination and remain fully effective.
2. On the Termination Date, Company delivered to Employee all of the
remuneration, including salary earned and owed to Employee, less
appropriate withholdings, through such date. As further consideration,
Company agrees to continue to pay Employee eight thousand three hundred
thirty three dollars thirty three cents ($8,333.33) per month payable no
later than the fifteenth day of each calendar month beginning May 1, 2000
and ending on December 31, 2000. If payment is not transmitted to Employee
within fifteen (15) days following the fifteenth day of the calendar month
for which the compensation is owed, Company agrees to accelerate all
remaining payments to Employee in lump sum.
3. The Company agrees to reimburse Employee for COBRA expenses until the
earlier of (i) Employee accepts employment with, or retained as a
consultant by, another company, or (ii) December 31, 2000.
4. All currently unvested options of Employee, totaling 69,999 options, shall
immediately vested and become exercisable.
5. Employee acknowledges his continuing duties to maintain Company's
confidential information pursuant to an Employment Agreement executed
between the parties as well as those obligations conferred by the Employee
Manuals in effect during Employees employment, and further expressly agrees
that he/she will keep in confidence and trust any
proprietary information of the Company, which includes, but is not limited
to, trade secrets, copyrights, ideas, techniques, know-how, inventions
(whether patentable or not), and/or any other information of any type
relating to designs, configurations, toolings, documentation, recorded
data, schematics, source code, object code, masterworks, master data bases,
algorithms, flowcharts, formulae, circuits, works of authorship,
mechanisms, research, manufacture, improvements, assembly, installation,
marketing, forecasts, pricing, customers, the salaries, duties,
qualifications, performance levels and terms of compensation of other
employees, and/or costs or other financial data concerning any of the
foregoing or the Company and its operations, generally. Employee further
agrees not to use or disclose to any third party any such information
without the prior written consent of the President of the Company. Employee
agrees that the herein covenant of confidentiality is a material part of
this Agreement.
6. Except with respect to issues related to pending class action litigation in
which Employee is a named defendant and except as expressly provided herein
to the contrary, each party hereto, on behalf of itself and its respective
servants, agents, representatives, attorneys, insurers, predecessors,
successors, administrators, trustees, affiliated and related entities,
assignors and assignees, officers, directors, shareholders and employees,
and each of them, releases the other party hereto and its respective
servants, agents, representatives, attorneys, insurers, predecessors,
successors, administrators, trustees, affiliated and related entities,
assignors and assignees, officers, directors, shareholders and employees,
and each of them, from any and all claims, demands, expenses, losses,
causes of action, liabilities, obligations, damages, liens and/or
liabilities of any kind or nature whatsoever, arising out of or related to
Employee's employment with the Company, the negotiations preceding such
employment, and any and all facts, events or circumstances related thereto.
In addition, Employee agrees not to instigate, participate in, or otherwise
cause a negative action to exist against Company, it officers or directors,
including, but not limited to, judicial actions, administrative actions, or
message boards relating to Company.
7. From the date he receives this Agreement, Employee has twenty-two (22) days
to consider it. Should he decide to sign the Agreement, he has seven (7)
days following the signing to revoke the Agreement, and the Agreement will
not become effective and enforceable until that seven (7) day revocation
period has expired. Should Employee either decide not to sign this
Agreement or should he sign it and elect to revoke it during the seven (7)
day period, then this Agreement shall be null and void.
8. Employee further states that all property supplied by Company or otherwise
the property of Company including, but not limited to, notes, books,
engineering records, sales records, correspondence, drawings, models,
samples, tools, machinery, equipment (including computers), and any other
written, graphical or electromagnetic records in the possession or under
the control of Employee relating to the business, products or projects of
Company and/or to any inventions or other confidential information and/or
property of Company have been delivered to Company without retaining any
copies.
9. Employee understands and expressly agrees that this Agreement extends to
all claims of every nature and kind whatsoever, known or unknown, suspected
or unsuspected, past or present, which existed before the execution of this
Agreement, including, but not limited to, any claims in tort or contract
related to Employee's employment or to any acts or omissions of the Company
involving Employee.
10. The parties agree that the terms and provisions of this agreement shall
remain confidential, and each party hereto shall use their best efforts to
preserve such confidentiality.
11. The parties hereby agree that in any legal action or proceeding instituted
to enforce the terms of this Agreement, to seek a declaration of rights in
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conjunction herewith, or otherwise relating to or arising out of this
Agreement, whether in tort or in contract, the prevailing or successful
party shall be entitled to recovery of its reasonable attorneys' fees,
costs, and other expenses, notwithstanding whether the action or proceeding
proceeds to trial or hearing.
12. Each party acknowledges and assumes the risk that damages presently known
may become progressive, greater or more serious than is now known, expected
or anticipated. It is the intent of the parties to fully, finally and
forever settle and release all matters referenced in the Agreement, which
they have against the other.
13. This Agreement represents and contains the entire agreement and
understanding among parties hereto with respect to the subject matter of
this Agreement, and supersedes any and all prior oral and written
agreements and understandings. The foregoing notwithstanding, the
obligations that Employee undertook in his Employment Agreement shall
survive this Agreement. This Agreement may not be amended or modified
except by an agreement in writing signed by the party against whom the
enforcement of any modification or amendment is sought. No representation,
warranty, condition, understanding or agreement of any kind with respect to
the subject matter hereof shall be relied upon by the parties unless
incorporated herein.
Each party to the Agreement represents that it has executed this Agreement
voluntarily and declares, warrants and represents that no promises,
inducements, or other agreements not expressly contained and set forth in
this Agreement have been made, and further, that the terms of this
Agreement are contractual and not merely a recital, and shall be construed
and enforced as such.
14. Each party hereto has been specifically advised of its right to counsel in
conjunction with the negotiation and formulation of this Agreement, and,
accordingly, this Agreement shall be construed as if negotiated and drafted
jointly by each of the parties hereto, and shall be interpreted and
construed accordingly.
Each of the parties to this Agreement, and/or their attorneys and
representatives, agree to execute any and all documents necessary to
effectuate the terms, conditions and purposes of this Agreement.
15. In the event that one or more of the provisions, or portions thereof, of
this Agreement is determined to be illegal or unenforceable, the remainder
of this Agreement shall not be affected thereby and each remaining
provision or portion thereof shall continue to be valid and effective and
shall be enforceable to the fullest extent permitted by law.
16. This Agreement shall bind and inure to the benefit of each party and each
party's agents, representatives, successors, heirs and assigns.
17. This Agreement may be executed in any number or counterparts, each of which
shall be deemed to be an original, and all of which together shall be
deemed one and the same instrument.
18. This Agreement is the result of a compromise and settlement of claims
presently asserted or potentially assertable by Employee and Company, and
the consideration paid and received therefore is not to be construed as an
admission of any obligation or liability by any party hereto or by persons
not a part of this Agreement.
19. Notwithstanding any other provision of this Agreement, each party hereto,
as a part of the consideration for this Agreement, agrees that any
controversy or claim arising out of this agreement or a breach thereof
shall, on written request or either party served on the other, be submitted
to binding arbitration. Judgment on the award rendered by the arbitrators
may be entered in any court having jurisdiction. The parties shall each
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appoint one person to hear and determine the dispute, and if they shall be
unable to agree, then the two persons so chosen shall select a third
impartial arbitrator whose decision shall be final and conclusive upon both
parties. The cost of such arbitration shall be borne by the losing party,
or in such proportions as the arbitrators shall decide. Arbitration shall
take place in Boston, Massachusetts and shall be conducted in accordance
with the Rules of the American Arbitration Association.
20. Employee has been advised to seek independent legal review and advice
concerning this Agreement, and to the extent he/she deems necessary or
advisable, has done so.
Each party warrants and represents that this Agreement is executed by
individuals or entities on its behalf by a duly authorized partner, officer or
representative.
"Company" "Employee"
FOCUS Enhancements, Inc. Xxxx X. Xxxxxx
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxx
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Printed: Xxxxxxx X. Xxxxxxxx Printed: Xxxx X. Xxxxxx
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Vice Chairman of the Board
Date: April ____, 2000 Date: 5-1-00
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CONSENT OF SPOUSE
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I acknowledge that I have read the foregoing Separation Agreement and that I
know its contents. I am aware that by its provisions my spouse has released all
claims against Focus Enhancements, Inc., including any community interest
therein. I hereby consent to such release, approve of the provisions of the
Agreement, and agree that I will not act in contravention of any of the terms
therein.
By: /s/ Xxxxxxx Xxxxxx Dated: 5-1-00
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