EXHIBIT 10.43
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (the "Agreement") is entered into
by XXXX XXXXXXXX (hereinafter referred to as "Employee") and AVANTGO, INC.
(hereinafter referred to as "Company").
Recitals:
A. Employee has been employed by Company and Employee's employment
relationship with Company terminated effective 07/31/2002.
B. Employee and Company wish to enter into an agreement to clarify
and resolve any disputes that may exist between them arising out of the
employment relationship and its termination, and any continuing obligations of
the parties to one another following the end of the employment relationship.
C. Company has advised Employee of Employee's right to consult an
attorney prior to signing this Agreement. Employee has either consulted an
attorney of Employee's choice or voluntarily elected not to consult legal
counsel, and understands that Employee is waiving all potential claims against
Company.
D. This Agreement is not and should not be construed as an admission
or statement by either party that it or any other party has acted wrongfully or
unlawfully. Both parties expressly deny any wrongful or unlawful action.
Agreements:
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises contained below, it is agreed as follows:
1. Employment Ending Date. Employee's employment with Company
terminated effective 07/31/2002 (the Ending Date). Employee will have no further
employment duties to Company after the Ending Date.
2. Severance and Benefits. Company will pay to Employee as severance
his/her monthly salary through April 30, 2003 for a total salary severance
amount of $138,749.99 plus a bonus of $45,117.90 which AvantGo will apply
against Employee's interest obligation under his personal loan with Company,
less deductions and withholding. Company will also pay Employee's COBRA premiums
for health insurance benefit continuation through April 30, 2003. All other
benefits shall cease on the Ending Date, except Employee shall have the right to
self-pay health insurance benefits under COBRA from the time Company is no
longer obligated to pay such premiums.
3. Stock Options. For stock options granted under the 1997 Stock
Option Plan, pursuant to your Notice of Stock Option Grant you have forty-five
(45) days from the termination date listed above to exercise vested stock
options. In addition, AvantGo has sixty (60) days from the termination date
listed above to repurchase exercised, unvested options. For stock options
granted under the 2000 and 2001 Stock Option Plans, the Stock Option Agreements
provide that you have ninety (90) days from the termination date listed above to
exercise vested stock options. For stock options granted under the 2000 and 2001
Stock Option Plans, the Stock Option Agreements provide that you have ninety
(90) days from the termination date listed above to exercise vested stock
options.
Also, please note that should you desire to sell any AvantGo stock
you own, under federal securities laws, and as an officer of the company, you
are characterized as a section 16 individual for reporting purposes. This means
under federal securities law you may be subject to certain filing requirements
for a period of six (6) months following your termination date. Please have your
broker contact AvantGo Legal department with any questions.
4. Valid Consideration. Employee and Company agree that payment by
Company to Employee of the amounts described in Section 2 of this Agreement and
the continued vesting described in Section 3 of this Agreement is not required
by Company policies or procedures or by any contractual obligation of Company,
and is offered by Company solely as consideration for this Agreement.
5. Reaffirmation of Confidential Information and Invention
Assignment Agreement. Employee expressly reaffirms the Confidential Information
and Invention Assignment Agreement that Employee signed as part of Employee's
employment with Company, a copy of which is attached as Exhibit A hereto and
which shall remain in full effect. Employee confirms that Employee will
immediately upon termination turn over to Company all files, memoranda, records,
credit cards, and other documents or physical property which Employee received
from Company or its employees or which Employee generated in the course of
Employee's employment with Company.
6. Confidentiality of Separation Agreement. Employee agrees that
Employee will keep the terms of this Agreement (including but not limited to the
severance amount) completely confidential, and that Employee will not disclose
any information concerning this Agreement or its terms to anyone other than
Employee's immediate family, legal counsel, and/or financial advisors, who will
be informed of and bound by this confidentiality clause. Employee agrees that a
breach of this Section 6 will entitle Company to recovery of all amounts paid
under this Agreement.
7. General Release of Claims. Employee expressly waives any claims
against Company and releases Company (including its officers, directors,
stockholders, managers, agents, and representatives) from any claims that
Employee may have in any way connected with Employee's employment with Company
and the termination thereof, whether or not such claims are presently known or
unknown to Employee. It is understood that this release includes, but is not
limited to, any claims for wages, bonuses, employment benefits, or damages of
any kind whatsoever, arising out of any contracts, express or implied, any
covenant of good faith and fair dealing, express or implied, any theory of
unlawful discharge, any legal restriction and Company's right to terminate
employees, or any federal, state or other governmental statute or ordinance,
including, without limitation, Title VII of the Civil Rights Act of 1964, the
federal Age Discrimination in Employment Act of 1967 (29 U.S. C. ss. 21, et
seq.), the Family and Medical Leave Act, the California Family Rights Act, the
California Fair Employment and Housing Act, any other laws concerning
discrimination or harassment, or any other legal limitation on the employment
relationship.
Employee represents that Employee has not filed any complaints,
charges or lawsuits against Company with any governmental agency or any court,
and agrees that Employee will not initiate, assist or encourage any such
actions.
8. Release of Unknown Claims. It is the intention of Employee and
Company that this Agreement is a General Release which shall be effective as a
bar to each and every claim, demand, or cause of action it releases. Employee
recognizes that Employee may have some claim, demand, or cause of action against
Company of which Employee is totally unaware and unsuspecting which Employee is
giving up by execution of the General Release. It is the intention of Employee
in executing this Agreement that it will deprive Employee of each such claim,
demand or cause of action and prevent Employee from asserting it against
Company. In furtherance of this intention, Employee expressly waives any rights
or benefits conferred by the provisions of Section 1542 of the Civil Code of the
State of California, which provides as follows:
"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."
9. Severability. The provisions of this Agreement are severable, and
if any part of it is found to be unlawful or unenforceable, the other provisions
of this Agreement shall remain fully valid and enforceable to the maximum extent
consistent with applicable law.
10. Knowing and Voluntary Agreement. Employee represents and agrees
that Employee has read this Agreement, understands its terms and the fact that
it releases any claim Employee might have against Company and its agents,
understands that Employee has the right to consult counsel of choice and has
either done so knowingly waived the right to do so, and enters into this
Agreement without duress or coercion from any source.
11. Non-disparagement. Employee agrees to not make any disparaging
comments whatsoever about Company, its products or services, or any of its
employees. If contacted by prospective employers, Company agrees only to provide
last date of employment and job title.
12. Older Workers Benefit Protection Act. The following is required
by the Older Workers Benefit Protection Act:
Employee has up to twenty-one (21) days from August 21, 2002 (the
date Employee receives this Separation Agreement) to accept the terms of this
Separation Agreement, although Employee may accept it at any time within those
twenty-one (21) days. Employee is advised to consult an attorney about the
Agreement.
To accept the Agreement, please sign and date below and return it to
Xxxx Xxxxxxx. Once signed, Employee will still have an additional seven (7) days
in which to revoke acceptance. To revoke, Employee must send Xxxxxxx Xxxx a
written statement of revocation. If Employee does not revoke, the eighth day
after the date of acceptance will be the "effective date" of this Severance
Agreement.
13. Entire Agreement. Excepting only the Company's 1997 Stock Option
Plan and the Confidential Information and Invention Assignment Agreement
attached as Exhibit A, this Agreement sets forth the entire understanding
between Employee and Company and supersedes any prior agreements or
understandings, express or implied, pertaining to the terms Employee's
employment with Company and the termination of the employment relationship.
Employee acknowledges that in executing this Agreement, Employee does not rely
upon any representation or statement by any representative of Company concerning
the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the dates indicated below.
"Company" (AVANTGO, INC.)
By /s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
CEO
Dated: September 1, 2002
"Employee"
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Dated: September 4, 2002
EXHIBIT A
CONFIDENTIALITY INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
[ORIGINAL SIGNED BY EMPLOYEE WHEN THEY ACCEPTED OFFER]
