May 10, 2005
May
10, 2005
Xxxxxxxxxxx
X. Xxxxxx
Dear
Xxxxxxxxxxx:
On
February 11, I wrote to you and set forth the terms of a separation agreement
that ViewSonic Corporation (the “Company”) was offering to you to aid in your
employment transition. After further discussion, you and the Company have agreed
to enter into a legally binding severance agreement (“Agreement”) on the
following terms:
1. Separation. You were
relieved of all duties and responsibilities as President, ViewSonic Americas on
February 11, 2005. Since that date, the Company has voluntarily continued to pay
your base salary and provide benefits (other than performance and incentive
compensation) while we negotiated the terms of this Agreement. In light of the
twenty-one and seven day periods (described in Section 13 below) afforded you to
consider and revoke your acceptance of this Agreement, your employment with the
Company will terminate on April 30, 2005 (“Termination Date.”) You will continue
to receive your base salary and accrue all benefits (other than performance and
incentive compensation) until the Termination Date.
2. Severance
Pay and Benefits. If you
sign and do not revoke this Agreement within the time afforded you to do so, and
you comply with all of your obligations herein, the Company will provide you
with the following severance pay and benefits:
(a) Lump
Sum Severance Payment: On the
later of your Termination Date or the Effective Date of this Agreement as
defined in Section 13 below, the Company will pay you the gross amount of One
Hundred Ninety Three Thousand Eight Hundred Seventy-Four Dollars and Twelve
Cents ($198,874.12) which after appropriate withholding and payroll deductions
yields a net amount of One Hundred Thirty-Nine Thousand Three Hundred
Twenty-Four Dollars and Fifty-Five Cents ($139,324.55), which is equal to your
current base salary for the period from May 1, 2005, to January 10, 2006.
(b) Performance/Incentive
Bonus. As of February 11, 2005,
you are not eligible to participate in any performance and/or incentive bonus
programs.
(c) Benefits. Your eligibility for all
benefits, including but not limited to PTO, health, life, and disability
insurance, 40lk, and stock option vesting, shall end on your Termination
Date.
(d) Letter
of Recommendation: The
Company will provide you with a letter of recommendation signed by Xxxxx Xxx
describing your continuous years of service.
(e) Income
Tax Matters: You and
the Company will abide by the terms previously agreed upon to resolve all issues
concerning the reporting and payment of income taxes, penalties, interest, and
related liabilities in the United States and United Kingdom. The Company shall
defend, indemnify and hold you harmless in accordance with those terms, provided
you fulfill your obligations including, but not limited to, cooperating in good
faith with the Company and its attorneys and accountants, providing necessary
information, and executing additional documents as necessary or appropriate to
carry out the terms previously agreed upon. The term “previously agreed upon” as
used herein does not require the payment of any monies by you, whether for
taxes, interest, or penalties, to the United States, the United Kingdom, or the
Company.
(f) Outplacement
Assistance: The
Company will provide you with outplacement assistance at the Company’s expense
through its provider Right Management.
3. Accrued
Salary and Paid Time Off. On the
Termination Date, the Company will pay you all accrued salary, and all accrued
and unused Paid Time Off earned through the Termination Date, subject to
standard payroll deductions and withholdings. You are entitled to payment for
accrued and unused PTO regardless of whether you sign this Agreement.
4. Health
Insurance After the Termination Date. To the
extent provided by the federal COBRA law or, if applicable, state insurance
laws, and by the Company’s current group health insurance policies, you will be
eligible to continue your group health insurance benefits at your own expense
after the Termination Date.
5. No
Other Compensation or Benefits Thereafter. You
acknowledge that except as expressly provided in this Agreement, you will not
receive any additional compensation, severance or benefits (including, but not
limited to, long term disability, short term disability or life insurance) after
the Termination Date.
6. Expense
Reimbursements. Prior to
your signing this Agreement, the Company will have paid you the sum of Fourteen
Thousand Five Hundred Forty Two Dollars and Thirty One Cents ($14,542.31) as the
final payment toward your relocation expenses. You acknowledge that the Company
has fully reimbursed you for all business expenses for which are entitled to
reimbursement under Company policy or by agreement including, but not limited
to, relocation and temporary housing expenses, and that, except as otherwise
expressly provided herein, the Company shall have no further obligation to pay
or reimburse you for any other expenses in connection with your employment.
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7. Return
of Company Property. You
represent that you have made a diligent search and have already returned to the
Company all Company documents (in electronic, paper or any other form as well as
all copies thereof) and other Company property that you have had in your
possession at any time, including, but not limited to, Company files, notes,
drawings, records, business plans and forecasts, financial information,
specifications, computer-recorded information, tangible property including, but
not limited to, computers, credit cards, entry cards, identification badges and
keys; and any materials of any kind that contain or embody any proprietary or
confidential information of the Company (and all reproductions thereof). You
agree to make a diligent search for all such Company property. If you have used
any personal computer, server, or e-mail system to receive, store, review,
prepare or transmit any Company confidential or proprietary data, materials or
information, you agree to provide the Company with a computer-useable copy of
such information and then permanently delete and expunge such Company
confidential or proprietary information from those systems; and you agree to
provide the Company access to your system as requested to verify that the
necessary copying and/or deletion is done. You agree that, after the Termination
Date, you will neither use nor possess Company property.
8. Proprietary
Information Obligations. You
acknowledge your continuing obligations under your Employee Confidentiality and
Invention Assignment Agreement, which you entered into when you began your
employment with ViewSonic.
9. Confidentiality. The
provisions of this Agreement will be held in strictest confidence by you and the
Company and will not be publicized or disclosed in any manner whatsoever;
provided,
however, that:
(a) you may disclose this Agreement to your immediate family; (b) the parties
may disclose this Agreement in confidence to their respective attorneys,
accountants, auditors, tax preparers, and financial advisors; (c) the Company
may disclose this Agreement as necessary to fulfill standard or legally required
corporate reporting or disclosure requirements; and (d) the parties may disclose
this Agreement insofar as such disclosure may be necessary to enforce its terms
or as otherwise required by law. In particular, and without limitation, you
agree not to disclose or discuss the terms of this Agreement to any current or
former Company employee. Moreover, you agree that all negotiations and
discussions regarding this Agreement are confidential settlement discussions and
shall be treated as such for evidentiary purposes.
10. Nondisparagement. You agree
not to disparage the Company, and its officers, directors, employees,
shareholders and agents, in any manner likely to be harmful to it or them, or to
its or their business, business reputation or personal reputation; provided that
you shall respond accurately and fully to any question, inquiry or request for
information when required by legal process. You further agree that any breach of
this provision on your part shall be considered a material breach of this
Agreement and therefore shall excuse ViewSonic’s further performance under this
Agreement in addition to any other remedies that may be available to Viewsonic.
You agree that this liquidated damages provision is reasonable under the
circumstances existing at the time this Agreement is made. The Company likewise
agrees that its management shall not disparage you in any manner likely to be
harmful to your future employment, business reputation, or personal reputation,
provided you refer all inquiries about you to the attention of Xxx Xxxxxxxx and
respond accurately and fully to any question, inquiry, or request for
information when required by legal process.
11. No
Workers’ Compensation Claims. You
acknowledge and agree that you have not filed any claims for workers’
compensation, short-term disability, or long-term disability nor are you aware
of any medical condition that could give rise to such a claim.
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12. Release
by You. In
exchange for the severance pay and benefits to be provided under this Agreement.
and other consideration under this Agreement to which you would not otherwise be
entitled, you hereby generally and completely release the Company and its
directors, officers, employees, shareholders, partners, agents, attorneys,
predecessors, successors, parent or subsidiary entities, insurers, affiliates
and assigns from any and all claims, liabilities and obligations, both known and
unknown, that arise out of or are in any way related to events, acts, conduct,
or omissions prior to or on the date you sign this Agreement. This general
release includes, but is not limited to: (1) all claims arising out of or in any
way related to your employment with the Company or the termination of that
employment; (2) all claims related to your compensation or benefits from the
Company, including salary, bonuses, commissions, vacation pay, expense
reimbursements, severance pay, fringe benefits, stock, stock options or any
other ownership interests in the Company; (3) all claims for breach of contract,
wrongful termination or breach of the implied covenant of good faith and fair
dealing; (4) all tort claims, including claims for fraud, defamation, emotional
distress and discharge in violation of public policy; and (5) all federal,
state, and local statutory claims, including claims for discrimination,
harassment, retaliation, attorneys’ fees, or other claims arising under the
federal Civil Rights Act of 1964 (as amended), the federal Americans with
Disabilities Act of 1990, the federal Age Discrimination in Employment Act of
1967 (as amended) (the “ADEA”), or the California Fair Employment and Housing
Act (as amended)(“FEHA”).
13. ADEA
Waiver. You
hereby acknowledge that you are knowingly and voluntarily waiving and releasing
any rights and claims concerning age discrimination you may have under the ADEA
and FEHA, and that the consideration given for the foregoing waiver is in
addition to anything of value to which you were already entitled. You have been
advised by this writing, as required by the ADEA, that: (a) your waiver and
release do not apply to any claims that may arise after the Effective Date of
this Agreement; (b) you should consult with an attorney prior to executing this
release; (c) you have twenty-one (21) days from receipt of this letter within
which to consider this release (although you may choose to voluntarily execute
this release earlier); (d) you have seven (7) days following the execution of
this release to revoke the Agreement by notifying the Company in writing; and
(e) this Agreement will not be effective until the eighth day after this
Agreement has been signed both by you and by the Company and not revoked by you
(“Effective Date”).
14. Section
1542 Waiver. In
granting the release herein, which may include claims that are unknown at
present, the parties acknowledge that they have read and understand Section 1542
of the California Civil Code: “A
general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the debtor.”
The
parties hereby expressly waive and relinquish all rights and benefits under that
section and any law of any jurisdiction of similar effect with respect to the
release of any unknown or unsuspected claims herein.
15. Partial
Release By Company. In
consideration for your fulfilling your obligations under this Agreement, the
Company hereby releases you from any and all claims, liabilities and
obligations, both known and unknown, that arise out of or are in any way related
to events, acts, conduct, or omissions prior to or on the date you sign this
Agreement, except that this release shall not extend to: (1) claims based on
willful or fraudulent acts or omissions by you; (2) claims that may arise after
this Agreement is executed; and (3) claims arising at any time out of your
obligations to protect the Company’s proprietary information. You represent that
you have disclosed to the Company all the facts and circumstances surrounding
any claims of which you have actual or constructive knowledge that any third
party may assert against the Company based on your acts or
omissions.
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16 Miscellaneous. This
Agreement constitutes the complete, final and exclusive embodiment of the entire
agreement between you and the Company with regard to this subject matter. It is
entered into without reliance on any promise or representation, written or oral,
other than those expressly contained herein, and it supersedes any other such
promises, warranties, representations or prior agreements with the Company. This
Agreement may not be modified or amended except in a writing signed by both you
and a duly authorized officer of the Company. This Agreement will bind the
heirs, personal representatives, successors and assigns of both you and the
Company, and inure to the benefit of both you and the Company, their heirs,
successors and assigns. If any provision of this Agreement is determined to be
invalid or unenforceable, in whole or in part, this determination will not
affect any other provision of this Agreement and the provision in question will
be modified by the court so as to be rendered enforceable. This Agreement will
be deemed to have been entered into and will be construed and enforced in
accordance with the laws of the State of California as applied to contracts made
and to be performed entirely within California.
If this
Agreement is acceptable to you, please sign below and return the original to
me.
I wish
you good luck in your future endeavors.
Sincerely,
ViewSonic
Corporation
By:
/s/
Xxx
Xxxxxxxx
Xxx Xxxxxxxx, Vice
President Corporate HR
Accepted
and Agreed:
/s/
Xxxxxxxxxxx X.
Xxxxxx
Xxxxxxxxxxx
X. Xxxxxx
Date:
May
2,
2005
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