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EXHIBIT 10.41
AGREEMENT BETWEEN TRITEAL CORPORATION AND XXXX XXXXXXXX
REGARDING CONTINUED EMPLOYMENT
TriTeal Corporation ("TriTeal") and Xxxx Xxxxxxxx ("Xxxxxxxx") agree as
follows:
1. Xxxxxxxx agrees to continue his employment with TriTeal until
12/31/97, performing responsibilities as assigned at the direction of the Vice
President of Business Development. From the date of the execution of this
agreement until 12/31/97, TriTeal may only terminate Xxxxxxxx'x employment for
Good Cause. "Good Cause" means dishonesty or gross misconduct in the performance
of his job duties, material violation of company policy, or the failure to
perform significant job duties after notice and a reasonable opportunity to
improve. Xxxxxxxx and TriTeal agree that Xxxxxxxx'x employment with TriTeal will
terminate on 12/31/97.
2. Provided that as of 12/31/97 Xxxxxxxx has neither voluntarily
resigned, nor been terminated for Good Cause:
a) From the time this agreement is signed until 12/31/97, Xxxxxxxx
shall continue to be compensated at a biweekly rate of $5,769.23. Xxxxxxxx will
remain eligible for the Executive Performance Incentive Plan and will continue
to receive his current benefits package until December 31, 1997.
b) All eligibility for bonus plans and any entitlement to benefits
will terminate on December 31, 1997. Any rights to stock options which have not
previously vested will also terminate on December 31, 1997. Furthermore,
Xxxxxxxx agrees to reimburse TriTeal for any outstanding travel advances which
have been made to Xxxxxxxx on or before 12/31/97. All accrued and unused Paid
Time Off will be paid to Xxxxxxxx on 12/31/97.
c) Although his employment with TriTeal will terminate on December
31, 1997, Xxxxxxxx shall receive compensation at his regular base rate of pay
through July 31, 1998. This sum will be paid in three equal installments of
$29,166.67. These payments will be made on January 1, 1998, April 1, 1998 and
July 1, 1998. In consideration for this payment, Xxxxxxxx will not directly or
indirectly own, manage, operate, control or work for any competitor of TriTeal
through July 31, 1998. If Xxxxxxxx begins work for any competitor prior to July
31, 1998, payment of any and all remaining compensation will cease immediately .
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d) Nothing in this agreement is intended to, nor does relieve
Xxxxxxxx from any xxxxxxx xxxxxxx restrictions to which he may be subject under
applicable state and/or federal law, with respect to information he may have
obtained as an officer or employee of this company.
3. Xxxxxxxx acknowledges that during the course of his employment with
TriTeal he has had access to confidential information with regard to the
business of TriTeal, including, but not limited to, trade secrets, customer
lists, details of client or consultant contracts, pricing policies, operational
methods, marketing plans and strategies, product development techniques and
plans, business acquisitions plans, ideas, discoveries, designs, computer
programs, processes, procedures, formulas, improvements or other proprietary or
intellectual property of TriTeal. Xxxxxxxx acknowledges that disclosure or
improper use of such Trade Secrets could cause serious and irreparable injury to
TriTeal. Accordingly, Xxxxxxxx agrees not to disclose such Trade Secrets to any
party without TriTeal's prior written consent, or to use such information in
competition with TriTeal.
4. In exchange for TriTeal's promises as contained in this agreement
Xxxxxxxx agrees to irrevocably release and discharge TriTeal, its officers,
directors, employees and agents from any and all claims, causes of action or
liabilities of any kind relating to or arising from any transactions between
them or any other occurrences from the beginning of their relationship until the
date this agreement is executed. This release is a general release of all claims
and is intended to include claims covered by California Civil Code section 1542,
which provides that "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 GENERAL RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
Xxxxxxxx acknowledges that he may discover facts in addition to
those now known or believed with respect to the claims he is releasing, but
nonetheless agrees that this release will remain in effect.
5. This Agreement is intended to release and discharge any and all claims
Xxxxxxxx may have against TriTeal as set forth in paragraph 4, including but not
limited to any claims arising under the Age Discrimination in Employment Act, 29
U.S.C. Section 621 et seq. It is the intent of Xxxxxxxx and TriTeal that this
Agreement satisfy the requirements of the Older Workers Benefit Protection Act,
Public Law 101- 433, codified at 29 U.S.C. Section 626(f). The following general
provisions, along with the other provisions of this Agreement, are agreed to for
this purpose:
x. Xxxxxxxx acknowledges and agrees that he has read and understands the
terms of this Agreement.
x. Xxxxxxxx acknowledges that he has been given a full opportunity to
consult with his own lawyer with respect to the matters referenced in this
Agreement, and that he
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has obtained and considered such legal counsel as he deems necessary, such that
he is entering into this Agreement freely, knowingly, and voluntarily.
x. Xxxxxxxx acknowledges that he has been given at least twenty-one days
in which to consider whether or not to enter this Agreement.
d. This Agreement shall not become effective or enforceable until seven
days after Xxxxxxxx signs this Agreement.
6. All disputes of any kind and nature arising under, or by virtue of this
Agreement, shall be resolved by submission to final and binding arbitration
before the American Arbitration Association located in San Diego, California.
The rules of the American Arbitration Association shall govern the arbitration
process. However, nothing in this paragraph is intended to apply to actions
solely for temporary restraining orders, preliminary injunctions and permanent
injunctions. The parties agree that arbitration must be initiated within one
year after any claimed breach has occurred and that the failure to initiate the
arbitration within the one-year period constitutes an absolute bar to the
institution of new proceedings, unless the breach was concealed by the party
against which the breach is claimed, in which case the one-year period shall
commence upon reasonable discovery of the breach.
7. This agreement contains the entire agreement between Xxxxxxxx and
TriTeal with respect to the subjects it addresses. All prior or contemporaneous
agreements on these subjects are merged in this document. This agreement can
only be modified by a writing signed by Xxxxxxxx and an officer of TriTeal.
Dated: August 7, 1997 /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Dated: August 7, 1997 /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
President and COO
TriTeal Corporation
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