Planned Retirement Agreement
Exhibit
10.13
Introduction
This
Planned Retirement Agreement (this
“Agreement”) is made by and between Xxxxxxx X. Xxxxxxx, an individual (the
"Employee"), and LaserCard Corporation, a Delaware corporation (the "Company"),
effective on the date (the “Effective Date”) that this Agreement is signed by
the Employee as indicated under “Authorized Signatures“
below.
Recital
Employee
desires to retire no later than March 31, 2008. Employee has been an
employee of the Company for more than two decades and the Company desires to
provide the Employee with a retirement package but is willing to do so only
if
the Employee provides the Company with a release so that the Company is assured
that the retirement package satisfies the Employee's expectations.
Agreement
Based
upon the information and premises stated in the above Recital and the
statements, promises and agreements contained below, the parties hereby agree
as
follows:
1. Resignation. The
Employee hereby agrees to resign, and does hereby resign, as an employee,
officer, and member of the board of directors of the Company (the “Board”)
effective on the first to occur of (a) the Company recruits and hires a
replacement CEO who determines that s/he has received the full-time transition
assistance from Employee that s/he desires and (b) March 31, 2008 (the
“Retirement Date”).
2. CEO
Role. Employee’s duties as the Company’s CEO shall change
based upon the expanded role of the Chairman of the Board in the intervening
time until the Retirement Date. In these regards, the Employee shall
have the typical duties of a chief executive officer except that the Employee
is
expected to take into account when fulfilling his duties whatever pro-active
advice and counsel the Chairman of the Board provides and that the Chairman
of
the Board, rather than the Employee, would have:
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oversight
and coordination of all US Federal government sales and lobbying
efforts,
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oversight
and execution of the Company’s merger and acquisition
strategy,
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oversight
and execution of the Company's FY2009 business operating plan submission
to the Board,
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oversight
and execution of the Company’s financing activities, including to be the
principal interface to the banking and investment communities,
and
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oversight
and development of the Company’s strategic
plan.
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In
addition, Employee would ready the Company for transition to a new CEO and
once
the new CEO had been identified, would assist with transition of his
duties.
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3. At
Will
Employee. The service of the Employee as an employee remains
at will until the Retirement Date, meaning that either the Employee may resign
or the Company may terminate the employment relationship for any or no
reason. The service of the Employee as an officer remains at the
pleasure of the Board until the Retirement Date. The service of the
Employee as a member of the Board remains at the will of the stockholders until
the Retirement Date.
4. Subsidiary
Roles. Effective on the Retirement Date, or, if earlier, the
date on which Employee ceases to be an employee of the Company, the Employee
hereby agrees to resign, and does hereby resign as an employee, officer and
member of the board of directors of the subsidiaries of the Company, to the
extent applicable.
5. Salary. While
employed through the Retirement Date, or, if earlier, the date on which Employee
ceases to be an employee of the Company, the
Employee is to receive base salary at the per annum rate of three hundred
fifty thousand two dollars ($350,002)
to be paid to the Employee through the Company’s normal
payroll.
6. Separation
Pay. Provided
that Employee has not breached Sections 12, 13, and 15 below, and subject to
compliance
with Section
14 below, Employee shall be entitled to receive base salary continuation for
two
years from the date of termination of Employee’s employment with the Company
(the “Severance Period”) if (a) the Employee remains an employee until the
Retirement Date or (b) Employee’s employment is terminated prior to the
Retirement Date due to Employee’s resignation for “Good Reason” or the Company’s
termination other than for “Cause” as defined in Exhibit A. The
start of the Severance Period (that is, either the Retirement Date or
the
date of any employment
termination
under Section 6(b)) is
referred
to as the “Termination Date”. For each month during the
Severance Period, the Company shall pay the Employee bi-weekly one-twenty-sixth
of the Employee’s per annum base salary on the same date payment would be made
through the Company’s normal payroll; provided, however, that any payment that
would be made in accordance with the Company’s normal payroll after June 15,
2008 and before the date which is the six-month anniversary of the Termination
Date shall
instead be paid, with interest at the rate of five
percent (5%)
per annum from the date such
payment would have been made in
accordance with the Company’s normal payroll, on the first business day of the
seventh month following the Termination Date or, if earlier, the date of
Employee’s death. Base salary does not include, for example, overtime, bonuses,
commissions, shift premiums or differentials, compensation associated with
employee stock options, reimbursements, sales commission awards, employee
benefits, expense allowances, or any other incidental or additional
compensation.
7. Left
Intentionally Blank.
8. Tax
Withholding. All
payments of base salary and severance
pay under Sections 5 and 6
are taxable under the laws of the United
States andCalifornia
and
other payments under this Agreement may be so taxable. All payments
under this Agreement shall be made less any and all applicable deductions and
withholdings required by applicable law and will be subject to all court
ordered wage assignments and/or garnishments.
9. Period
of
Consultancy. Provided that Employee has remained an employee
through the Termination Date, Employee shall be retained as a consultant by
the
Company from the Termination Date through December 31, 2008 (the “Period of
Consultancy”) provided Employee is still entitled to receive separation pay
under Section 6. During the Period of Consultancy, Employee’s
Employee Agreement dated December 28, 1995, a copy of which is attached to
this
Agreement as Exhibit C (the “Employee Agreement”) would remain in full force and
effect with references to “employment” changed to “consultancy” in Sections 1,
2, and 5 (“term of my employment”), and Section 4 (“in connection with my
employment”), and Section 7 (“other than employment”) and all references to
“Chief Executive Officer” or “President” shall be replaced
with “Chairman of the Board”. Employee’s primary duties
would be to assist with transition to the new CEO and to assist with GIG/Prevent
second source program. Employee would be available to render two days
of service per month if and as requested (but may render additional services
as
he and the Company desire relative to the establishment of the GIG/Prevent
second source program). Employee would receive a retainer of $2,000
per month, regardless of the amount of services Employee actually renders and
may receive a bonus under Section 3bii of the Age Discrimination Release
Agreement which the Company and Employee anticipate entering into (the “Age
Discrimination Release Agreement”). Employee would be an independent
contractor with no authority to bind the Company and all expenses would be
subject to the prior written approval of the CEO or Chairman or Vice Chairman
of
the Board.
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10.
Stock Options and
Restricted Stock. Employee’s stock options granted under the
2004 Equity Incentive Compensation Plan (the “2004 Plan”) and under the prior
stock option plan shall remain in force and effect according to their terms,
except that vesting of Employee’s options granted under the 2004 Plan will cease
on any Termination Date. This means for example that for Employee’s
options granted under the 2004 Plan, their vesting would cease when
Employee ceases to be an employee of the Company but they would remain
exercisable during any Period of Consultancy and for ninety (90) days thereafter
whereas Employee’s stock options granted under the prior stock option plan would
cease vesting when Employee ceases to be an employee of the Company and would
terminate ninety (90) days thereafter. Notwithstanding the foregoing,
the vesting of Employee’s 18,750 options granted on May 24, 2005, under the 2004
Plan which are scheduled to vest on May 24, 2008, would continue during the
Period of Consultancy and all of Employee’s options shall cease vesting and
terminate immediately upon any breach of Section 12, 13, 14, or 15 during the
Period of Consultancy. The vesting of Employee’s restricted stock
grant shall cease upon his employment termination and the unvested shares shall
be forfeited as provided in the associated Restricted Stock Award Agreement
except that the vesting of the 3,125 shares under Employee’s restricted stock
grant that are scheduled to vest on September 21, 2008, shall continue to be
governed by Employee’s Restricted Stock Award Agreement which means that such
vesting shall cease upon termination of his Period of Consultancy, or if there
is no Period of Consultancy, then upon his employment termination, and the
unvested shares shall be forfeited as provided in the associated Restricted
Stock Award Agreement.
11. Left
Intentionally Blank.
12. Non-Solicitation
of Company
Employees. The Employee agrees not to directly or indirectly
solicit or attempt to solicit any employee or full-time independent contractor
or consultant of the Company to perform services elsewhere during the longer
of
(1) the time Employee remains a Company employee and for one year thereafter
or
(2) the Severance Period.
13. Future
Releases. Employee agrees to execute the releases attached as
Exhibit B on March 31, 2008, and January 1, 2009, and not to rescind same during
the seven-day rescission period.
14. Other
Employment. The Employee’s severance benefits under Section 6
of this Agreement and Sections 2bii, and 4 of the Age Discrimination Release
Agreement shall cease and Employee’s options and the vesting of Employee’s
restricted stock award under Section 10 of this Agreement shall terminate if
Employee becomes an employee of or otherwise renders services to any business
and the Employee agrees to promptly notify the Company when the Employee begins
to so render services. However, if the Board of Directors of the
Company determines that the services that Employee is going to perform for
the
other business do and will not involve the design, development, or manufacture
of plastic cards for secure data storage, whether they utilize contact or
contactless chips, optical or magnetic stripes, holograms, or other means for
data storage (the “Company’s Business”), then the Company agrees to act
affirmatively within one (1) week of a written request from Employee for the
severance benefits under Section 6 of this Agreement and under Sections 2bii,
and 4 of the Age Discrimination Release Agreement to continue and for the
options to continue as provided under Section 10. If a court or
arbitrator, as the case may be, should for some reason require the Company
to
continue Employee’s severance benefits even if the Company’s Board of Directors
determines that Employee’s services involve the Company’s Business, then such
benefits shall continue only to the extent a court or arbitrator finds that
the
Employee has demonstrated by clear and convincing evidence that Employee’s
services have not already and would not in the future utilize the Company’s
confidential information.
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15. Not
Damage the
Business. Prior to the Retirement Date and throughout the
Severance Period, Employee agrees not to act in any manner that might damage
the
business of the Company. Prior to the Retirement Date and throughout
the Severance Period, and for three (3) years thereafter, Employee agrees not
to
counsel or assist any attorneys or their clients in the presentation or
prosecution of any disputes, differences, grievances, claims, charges, or
complaints by any third party against the Company and/or any officer, director,
employee, agent, representative, shareholder or attorney of the Company, unless
under a subpoena or other court order to do so. Prior to the
Retirement Date and throughout the Severance Period, Employee agrees to refrain
from any disparagement, defamation, libel or slander of the Company or
Company-affiliates or tortious interference with the contracts and relationships
of the Company and the Company agrees to instruct its officers and directors
not
to defame, libel, or slander the Employee.
16. Company
Current in
Pay. The Employee acknowledges that the Employee has received
payment of all wages due through the Effective Date and all equity grants and
has received reimbursement of all submitted reimbursable business
expenses.
17. Current
Release.
a. The
Employee releases and forever discharges the Company and each of its employees,
officers, directors, shareholders, agents, predecessors and successors in
interest, parents, subsidiaries, attorneys, and assigns ("Company-Affiliates"),
from any and all claims, demands, obligations and/or liabilities which arise
out
of or relate to any action by the Company or the Company-Affiliates or omission
to act by the Company or the Company-Affiliates occurring on or before the
date
this Agreement is signed by the Employee (the “Release”).
b. There are certain
claims which, under state or federal statutes or regulations, may not be
released or may not be released except with the participation and approval
of a
state or federal agency. For example, claims for earned but unpaid wages and
claims for indemnification under the California Labor Code cannot be waived
or
released and claims related to Workers’ Compensation benefits may not be waived
without the express approval of the agency that oversees administration of
those
laws. The Release is not intended to cover and does not extend to
these claims or other claims that, by law, cannot be released in an agreement
between an employer and an employee.
c. To the
extent permitted by law, the Release includes, but is not limited to, release
of
any and all claims arising out of the Employee's employment with the Company
and
the termination of that employment. This includes a release of any rights or
claims the Employee may have under Title VII of the Civil Rights Act of 1964,
42
U.S.C. §§2000, etseq.,
which prohibits
discrimination in employment based on race, color, national origin, religion,
or
sex, the Equal Pay Act, which prohibits paying men and women unequal pay for
equal work, the Americans with Disabilities Act (42 U.S.C. §§12101, etseq.),
which
prohibits discrimination against the disabled, the Employee Retirement Income
Security Act ("ERISA"), 29 U.S.C. §§1001, etseq.,
the California
Fair Employment and Housing Act ("FEHA"), Government Code §§12940, etseq.,
, or any other
federal, state or local laws or regulations relating to terms and conditions
of
employment. However, notwithstanding any provision of this Agreement
to the contrary, the Release does NOT include a release of any rights
or claims the Employee may have under the Age Discrimination in Employment
in
Employment Act, 29 U.S.C. §§621, etseq.,
(as amended by
the Older Workers' Benefit Protection Act, 29 U.S.C. §626(f)) which prohibits
age discrimination in employment; such claims and rights are the subject matter
of the Age Discrimination Release Agreement which the Company and Employee
are
concurrently entering into. The Release also includes any claims for
wrongful discharge, breach of fiduciary duty, fraud, misrepresentation,
intentional and negligent infliction of emotional distress, harassment, and
any
claims that the Company or any Company-Affiliate has dealt with the Employee
unfairly or in bad faith.
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d. To the maximum
extent permitted by law, the Release extends to all claims of every nature
and
kind whatsoever, whether known or unknown, suspected or unsuspected. The
Employee expressly waives the provisions of Section 1542 of the Civil Code
which
provides:
A
general
release does not extend to claims which the creditor does not know or suspect
to
exist in his or her favor at the time of executing the release, which if known
by him or her must have materially affected his or her settlement with the
debtor.
e. The Release does
not waive any rights or claims that the Employee might have arising after the
date the Employee signs this Agreement nor does the Release waive any rights
or
claims that the Employee has under this Agreement or the agreements referenced
in Section 24 below. In addition, the Release does not extend to any vested
benefits which would otherwise be available to Employee under any
Company-sponsored ERISA plan.
f. The
Employee promises and states that the Employee has not given or sold any claim
discussed in this Agreement to anyone and that the Employee has not filed a
lawsuit, claim, or charge with any court or government agency asserting any
claims that are released by the Release.
g. This Agreement
recognizes the rights and responsibilities of the Equal Employment Opportunity
Commission (“EEOC”) and the California Department of Fair Employment and Housing
(“DFEH”) to enforce the statutes which come under their
jurisdiction. This Agreement is not intended to prevent Employee from
initiating or participating in any investigation or proceeding conducted by
the
EEOC or the DFEH; provided, however, that nothing in this section limits or
affects the finality or the scope of the Release. The Employee has
waived and released any claim the Employee may have for damages based on any
alleged discrimination and may not recover damages in any proceeding conducted
by the EEOC or the DFEH.
18.
Internal
Revenue Code
Section 409A
a. To the
fullest extent applicable, amounts and other benefits payable under this
Agreement are intended to be exempt from the definition of “nonqualified
deferred compensation” under Section 409A of the Internal Revenue Code of 1986,
as amended (the “Code”) in accordance with one or more of the exemptions
available under the final Treasury regulations promulgated under Code Section
409A. In this regard, each payment under this Agreement that is made
in a series of scheduled installments (within the meaning of Treasury Regulation
Section 1.409A-2(b)(2)(iii)), including without limitation, each salary
continuation payment under Section 6, shall be deemed a separate payment for
purposes of Code Section 409A.
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b. To the extent
that any amounts or benefits payable under this Agreement are or become subject
to Code Section 409A due to a failure to qualify for an exemption from the
definition of nonqualified deferred compensation in accordance with the final
Code Section 409A regulations, this Agreement is intended to comply with the
applicable requirements of Code Section 409A with respect to such amounts or
benefits. This Agreement shall be interpreted and administered to the extent
possible in a manner consistent with the foregoing statement of
intent.
c. In each
case where this Agreement provides for the payment of an amount that constitutes
nonqualified deferred compensation under Code Section 409A to be made to the
Employee within a designated period and such period begins and ends in different
calendar years, the exact payment date within such range shall be determined
by
the Company, in its sole discretion, and the Employee shall have no right to
designate the year in which the payment shall be made.
d.
Notwithstanding anything in this Agreement or elsewhere to the contrary, if
the
Company reasonably determines that any amount or other benefit payable under
this Agreement on account of Employee’s separation from service, within the
meaning of Code Section 409A, constitutes nonqualified deferred compensation
that will subject Employee to “additional tax” under Code Section 409A(a)(1)(B)
(together with any interest or penalties imposed with respect to, or in
connection with, such tax, a “409A Tax”) with respect to the payment of such
amount or the provision of such benefit the Company and Employee shall take
reasonable actions to avoid the imposition of a 409A Tax at such time
and in such manner as permitted under Code Section 409A or other applicable
rules or procedures. In the event that the Code Section 409A requires
a delay of any payment other than the delay specified in Section 6, such payment
shall be accumulated and paid at the earliest time and in such manner that
comply with Code Section 409A without interest.
e. For
purposes of this Section 18, the Employee’s date of termination shall be the
date on which the Employee has incurred a “separation from service” within the
meaning of Treasury Regulation Section 1.409A-1(h), or in subsequent IRS
guidance under Code Section 409A.
19.
Employee
Agreement. The Employee acknowledges and reaffirms in its
entirety the Employee Agreement.
20. Confidentiality. Except
to the extent publicly disclosed by the Company, the Employee and the Company
each promises to hold the provisions of this Agreement in strictest confidence.
The Employee may disclose this Agreement, in confidence, to his/her immediate
family, to his/her attorneys, accountants, auditors, tax preparers and financial
advisors, and as may be necessary to enforce its terms or as otherwise required
by law. Otherwise, the Employee agrees not to publicize or disclose its terms
to
anyone, in any manner. In particular (but without limitation), the Employee
agrees not to discuss the terms of this Agreement with former or current
employees, clients, suppliers, subcontractors or other business contacts of
the
Company.
21. Governing
Law. This Agreement is to be governed by California
law.
22. Severability. If
any portion of this Agreement is found to be unenforceable, then both the
Employee and the Company desire that all other portions that can be separated
from it or appropriately limited in scope shall remain fully valid and
enforceable.
23. Arbitration. Except
as prohibited by law, any legal dispute between the Employee the Company (or
between the Employee and any Company-Affiliates, each of whom is hereby
designated a third party beneficiary of this agreement regarding arbitration)
arising out of the Employee’s employment or termination of employment or this
Agreement (a "Dispute") will be resolved through binding arbitration in San
Jose, California, under the Arbitration Rules set forth in California Code
of
Civil Procedure Section 1280 etseq.,
and pursuant to
California law. Nothing in this arbitration provision is intended to limit
the
Employee's right to file a charge with or obtain relief from the National Labor
Relations Board. THE
PARTIES UNDERSTAND THAT BY AGREEING TO ARBITRATE DISPUTES THEY ARE WAIVING
ANY
RIGHT THEY MIGHT OTHERWISE HAVE TO A JURY TRIAL. This arbitration
provision is not intended to modify or limit substantive rights or the remedies
available to the parties, including the right to seek interim relief, such
as
injunction or attachment, through judicial process, which shall not be deemed
a
waiver of the right to demand and obtain arbitration.
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24. Other
Agreements. The Employee Agreement, the Employee’s stock
option agreements and restricted stock award agreement, and the Employee’s
Indemnification Agreement all remain in full force and effect, subject to the
modifications provided for in Sections 9 and 10 above.
25. Entire
Agreement. This Agreement, together with the Age
Discrimination Release Agreement which the Company and Employee anticipate
entering into, are intended by the parties to be their entire agreement and
understanding concerning its subject matter and supersede any prior agreements
and understandings, whether written or oral, concerning its subject
matter. The statements, promises and agreements in this Agreement may
not be contradicted by any prior understandings, agreements, promises or
statements. The Employee states and promises that in signing this
Agreement he/she has not relied on any statements or promises made by the
Company, other than the promises contained in this Agreement. Any
changes to this Agreement must be in writing and signed by both
parties.
26. Attorneys
Fees. If either party files any arbitration, lawsuit, claim,
or charge based on, or in any way related to, the Employee’s employment with the
Company or the cessation of such employment, any claim that the Employee has
released in the Release or the promises and agreements contained in this
Agreement, the party that wins the lawsuit or arbitration or prevails on the
claim or charge will be entitled to recover from the other party all costs
it
incurs in connection with the dispute, including reasonable attorneys'
fees.
[Remainder
of Page Left Intentionally Blank]
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27. Successors
and
Assigns. This Agreement shall be binding upon the Employee’s
heirs, administrators, executors, personal representatives and assigns and
upon
the Company’s successors and assigns.
The
Employee is advised to consult
with an attorney before signing this Agreement.
Authorized
Signatures
In
order
to bind the parties to this Planned Retirement Agreement, the parties, or their
duly authorized representatives have signed their names below on the dates
indicated.
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Company
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Employee
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By
/s/ Xxxxxx
Xxxxxxx
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/s/ Xxxxxxx X. Xxxxxxx | ||
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Xxxxxx
Xxxxxxx, Vice Chairman
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Printed
Name and Title of Signatory
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November
28, 2007
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November
28, 2007
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Date
Executed on Behalf of Company
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Date
Signed By Employee
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8
Exhibit
A
Definitions
GOOD
REASON shall mean: (i) a material breach of the Agreement by the Company,
(ii) a material reduction of the Employee’s base salary, except that neither a
reduction proportionate to reductions imposed on all other members of
the Company’s executive management as part of a cost reduction effort nor a
reduction of the Employee’s base salary due to a change of duties as a result of
disability will be a Good Reason for termination, or (iii) the Employee’s duties
with the Company are materially reduced other than as provided in the
Agreement. The Employee shall give notice to the Company that the
Employee intends to resign for one of the Good Reasons listed above, detailing
such Good Reason with specificity. If the Employee gives notice to
the Company, no later than ninety (90) days after the initial existence of
one
or more of the conditions constituting Good Reason listed above arising without
his consent, that the Employee intends to resign for one of the Good Reasons
listed above, detailing such Good Reason with specificity, and if the Company
does not remedy the situation so as to eliminate the Good Reason within two
(2)
weeks of receiving such notice, then any resignation by the Employee from the
Company within the one (1) month period beginning with the delivery of the
notice shall be deemed a Resignation for Good Reason.
CAUSE
is defined to mean a good faith determination by the Company that the Employee
has engaged in any of the following: 1) theft, misappropriation or embezzlement
of Company property, property of an officer, shareholder, director or employee,
or property of any customer or supplier of the Company; 2) any conduct which
constitutes unfair competition with the Company; 3) any breach of a contractual
or fiduciary duty to the Company or a material breach of a material Company
policy not cured within five days of the Company giving the Employee notice
of
the breach; 4) material dishonesty in the performance of the Employee’s duties
for the Company or fraud against the Company; 5) materially exceeding
the scope of the Employee's authority as delegated or limited from time to
time
by the Company; 6) inducement of any customer, consultant, employee or supplier
of the Company to breach any contract with the Company or cease its business
relationship with the Company; 7) refusal to substantially follow the
lawful instructions of the board of directors; 8) failure to devote full-time
effort to serving the Company which is not cured within sixty (60) days of
notice; 9) conviction
of a crime punishable as a felony;
or 10) death or disability of the Employee. The
Company’s
good faith determination, based on reasonable evaluation that “Cause” exists for
termination of the employment relationship under this provision shall be
conclusive for the purposes of this section. Neither the later
discovery of additional or different facts tending to negate the Company’s
determination of “Cause” nor any subsequent finding by any other fact finder
that the employee did not in fact engage in conduct identified in this
definition of “Cause” shall alter the finality of the Company’s determination
for the purposes of this section. The Company’s determination that Cause exists
shall be made by a committee of the independent members of the Board of
Directors.
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Exhibit
B
Release
Agreement
Introduction
This
Release Agreement (this “Agreement”) is made by and between Xxxxxxx X. Xxxxxxx,
an individual (the "Employee") and LaserCard Corporation, a Delaware corporation
(the "Company"), effective seven calendar days after the date this Agreement
is
signed by the Employee.
Recitals
A. The
Employee has entered into the Planned Retirement Agreement (the “Retirement
Agreement”) to which this Agreement comprises Exhibit B and shortly thereafter
an Age Discrimination Release Agreement (the “Age Discrimination Release
Agreement”).
B. It
is either on or shortly after March 31, 2008, or otherwise the start of the
“Severance Period”, as defined in the Retirement Agreement, or else it is on or
shortly after the end of the “Period of Consultancy” as defined in the
Retirement Agreement, which is anticipated to be December 31, 2008.
C. If
it is on or shortly after March 31, 2008, then Employee’s resignation as an
employee of the Company has just become effective and Employee’s bonus under
Section 2a of the Age Discrimination Release Agreement has been
determined. If it is otherwise the start of the Severance Period,
then Employee has either resigned for “Good Reason” or his employment has been
terminated by the Company other than for “Cause”, as defined in the Retirement
Agreement. If it is on or shortly after the end of the Period of
Consultancy, then Employee’s consulting services to the Company have just ended
and Employee’s bonus, if any, under Section 2b of the Age Discrimination Release
Agreement has been determined.
D. Employee
desires to receive or to continue to receive the separation pay and other
benefits provided in the Retirement Agreement and is willing to grant the
Company a complete release of claims supplemental the complete releases granted
under the Retirement Agreement and Age Discrimination Release
Agreement.
Agreement
Based
upon the information and premises stated in the above Recitals and the
statements, promises and agreements contained below, the parties hereby agree
as
follows:
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1.
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The
Company promises to continue to provide the benefits under the
Retirement
Agreement.
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2.
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The
Employee releases and forever discharges the Company and each of
its
employees, officers, directors, shareholders, agents, predecessors
and
successors in interest, parents, subsidiaries, attorneys, and assigns
("Company-Affiliates"), from any and all claims, demands, obligations
and/or liabilities which arise out of or relate to any action by
the
Company or the Company-Affiliates or omission to act by the Company
or the
Company-Affiliates occurring on or before the date this Agreement
is
signed by the Employee (the “Release”).
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3.
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There
are certain claims which, under state or federal statutes or regulations,
may not be released or may not be released except with the participation
and approval of a state or federal agency. For example,
claims for earned but unpaid wages and claims for indemnification
under
the California Labor Code cannot be waived or released and claims
related
to Workers’ Compensation benefits may not be waived without the express
approval of the agency that oversees administration of those
laws. The Release is not intended to cover and does not extend
to these claims or other claims that, by law, cannot be released
in an
agreement between an employer and an
employee.
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4.
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To
the extent permitted by law, the Release includes, but is not limited
to,
release of any and all claims arising out of the Employee's employment
with the Company and the termination of that employment. This
includes a release of any rights or claims the Employee may have
under the
Age Discrimination in Employment in Employment Act, 29 U.S.C. §§621, etseq.,
(as amended by the Older Workers'
Benefit Protection Act, 29 U.S.C. §626(f)) which prohibits age
discrimination in employment, Title VII of the Civil Rights Act
of 1964,
42 U.S.C. §§2000, etseq.,
which prohibits discrimination in
employment based on race, color, national origin, religion, or
sex, the
Equal Pay Act, which prohibits paying men and women unequal pay
for equal
work, the Americans with Disabilities Act (42 U.S.C. §§12101, etseq.),
which prohibits discrimination
against the disabled, the Employee Retirement Income Security Act
("ERISA"), 29 U.S.C. §§1001, etseq.,
the California Fair Employment and
Housing Act ("FEHA"), Government Code §§12940, etseq.,
, or any other federal, state or
local laws or regulations relating to terms and conditions of
employment. The Release also includes any claims for wrongful
discharge, breach of fiduciary duty, fraud, misrepresentation,
intentional
and negligent infliction of emotional distress, harassment, and
any claims
that the Company or any Company-Affiliate has dealt with the Employee
unfairly or in bad faith.
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5.
|
To
the maximum extent permitted by law, the Release extends to all
claims of
every nature and kind whatsoever, whether known or unknown, suspected
or
unsuspected. The Employee expressly waives the provisions of
Section 1542 of the Civil Code which provides:
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|
|
A
general release does not extend to claims which the creditor does
not know
or suspect to exist in his or her favor at the time of executing
the
release, which if known by him or her must have materially affected
his or
her settlement with the debtor.
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||
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6.
|
The
Release does not waive any rights or claims that the Employee might
have
arising after the date the Employee signs this Agreement nor does
the
Release waive any rights or claims that the Employee has under
this
Agreement, the Retirement Agreement, or the agreements referenced
in
Section 24 of the Retirement Agreement. In addition the Release
does not extend to any vested benefits which would otherwise be
available
to Employee under any Company-sponsored ERISA plan.
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7.
|
The
Employee acknowledges that his employment (and if the Effective
Date is on
or shortly after the end of the Period of Consultany, his consultancy)
with the Company ceased on or before the date this Agreement is
signed by
Employee.
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8.
|
The
Employee promises and states that the Employee has not given or
sold any
claim discussed in this Agreement to anyone and that the Employee
has not
filed a lawsuit, claim, or charge with any court or government
agency
asserting any claims that are released by the Release.
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9.
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The
Employee promises and states that he has to his knowledge return
to the
Company all property belonging to the Company or authored by or
concerning
Company (other than the Employee’s personal copies of his/her payroll and
benefits records), including, but not limited to, keys and passes,
credit
cards, computer hardware and software, papers, manuals, records,
drawings,
and documents. Should the Employee subsequently discover
Company property, he will either return it to the Company or if
it is
immaterial he will destroy it. Notwithstanding the foregoing,
during the Period of Consultancy, the Employee may retain materials
related the Prevent agreement and materials provided by the Company
to the
Employee after the Termination
Date.
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11
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10.
|
This
Agreement recognizes the rights and responsibilities of the Equal
Employment Opportunity Commission (“EEOC”) and the California Department
of Fair Employment and Housing (“DFEH”) to enforce the statutes which come
under their jurisdiction. This Agreement is not intended to
prevent Employee from initiating or participating in any investigation
or
proceeding conducted by the EEOC or the DFEH; provided, however,
that
nothing in this section limits or affects the finality or the scope
of the
Release. The Employee has waived and released any claim the
Employee may have for damages based on any alleged discrimination
and may
not recover damages in any proceeding conducted by the EEOC or
the
DFEH.
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11.
|
This
Agreement is to be governed by California law.
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12.
|
If
any portion of this Agreement is found to be unenforceable, then
both the
Employee and the Company desire that all other portions that can
be
separated from it or appropriately limited in scope shall remain
fully
valid and enforceable.
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13.
|
Except
as prohibited by law, any legal dispute between the Employee the
Company
(or between the Employee and any Company-Affiliates, each of whom
is
hereby designated a third party beneficiary of this agreement regarding
arbitration) arising out of the Employee’s employment or termination of
employment or this Agreement (a "Dispute") will be resolved through
binding arbitration in San Jose, California, under the Arbitration
Rules
set forth in California Code of Civil Procedure Section 1280 etseq.,
and pursuant to California law.
Nothing in this arbitration provision is intended to limit the
Employee's
right to file a charge with or obtain relief from the National
Labor
Relations Board. THE PARTIES
UNDERSTAND THAT BY AGREEING TO ARBITRATE DISPUTES THEY ARE WAIVING
ANY
RIGHT THEY MIGHT OTHERWISE HAVE TO A JURY TRIAL. This
arbitration provision is not intended to modify or limit substantive
rights or the remedies available to the parties, including the
right to
seek interim relief, such as injunction or attachment, through
judicial
process, which shall not be deemed a waiver of the right to demand
and
obtain arbitration.
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14.
|
This
Agreement is intended by the parties to be their entire agreement
and
understanding concerning its subject matter and supersedes any
prior
agreements and understandings, whether written or oral, concerning
its
subject matter. The statements, promises and agreements in this
Agreement may not be contradicted by any prior understandings,
agreements,
promises or statements. The Employee states and promises that
in signing this Agreement he/she has not relied on any statements
or
promises made by the Company, other than the promises contained
in this
Agreement and the Retirement Agreement. Any changes to this
Agreement must be in writing and signed by both
parties.
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15.
|
If
the Employee breaks any of the promises or agreements made in this
Agreement, or if any of the representations or statements made
by the
Employee in this Agreement are discovered to be untrue, the Company
may
stop providing the severance benefits described in the Retirement
Agreement. All of the other terms of this Agreement will remain
in full
force and effect.
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16.
|
If
either party files any arbitration, lawsuit, claim, or charge based
on, or
in any way related to, the Employee’s employment with the Company, any
claim that the Employee has released in the Release or the promises
and
agreements contained in this Agreement, the party that wins the
lawsuit or
arbitration or prevails on the claim or charge will be entitled
to recover
from the other party all costs it incurs in connection with the
dispute,
including reasonable attorneys'
fees.
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12
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17.
|
Paragraph
16 shall not apply if the Employee asserts a claim under the Age
Discrimination in Employment in Employment Act, 29 U.S.C. §§621, etseq.,
(as amended by the Older Workers'
Benefit Protection Act, 29 U.S.C. §626(f)), even though such claim is not
covered by the Release given by the Employee in this
Agreement. This Paragraph does not limit the completeness or
finality of Release. It only limits the Company’s remedies in the event
that the Employee asserts certain claims not covered by the
Release.
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18.
|
This
Agreement shall be binding upon the Employee’s heirs, administrators,
executors, personal representatives and assigns and upon the Company’s
successors and assigns.
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[Remainder
of Page Left Intentionally Blank]
13
|
19.
|
The
Employee is advised to consult with an attorney before signing this
Agreement. The Employee understands that the choice of
whether or not to sign this Agreement is the Employee's
decision. The Employee acknowledges that the Employee
has
been given at least 21 days to consider this Agreement before signing
it,
having been provided this Agreement in connection with this
Agreement.
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20.
|
The
Employee may revoke this Agreement within seven (7) days of signing
it. Revocation can be made by sending a written notice
of revocation to the Company. For such revocation to be
effective, notice must be received no later than 5:00 p.m. on the
seventh calendar day after the Employee signs this
Agreement. If the Employee revokes this Agreement, it shall not
become effective or enforceable and the Employee will not receive
the
severance package described in this
Agreement.
|
Authorized
Signatures
In
order
to bind the parties to this Release Agreement, the parties, or their duly
authorized representatives have signed their names below on the dates
indicated.
|
Company
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Employee
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|
By___________________________
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____________________________
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______________________________
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|
Printed
Name and Title of Signatory
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|
|
_______________________________
|
_____________________________
|
|
Date
Executed on Behalf of Company
|
Date
Signed By Employee
|
14
Exhibit
C
Employee
Agreement
XXXXXXX
TECHNOLOGY CORPORATION
EMPLOYEE
AGREEMENT
XXXXXXX
TECHNOLOGY CORPORATION is
dedicated to a policy of exerting a significant influence in its chosen fields
through technical innovation and creative administration and
marketing. The competitive success of this policy depends to a large
extent on the Company's ability to capitalize on the creative talents of
its
employees, and to maintain a free flow of pertinent information among its
employees.
For
this reason, all employees are
requested to sign the attached AGREEMENT under which:
|
|
1.
|
requirements
for avoiding conflicting outside activities are specified,
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2.
|
the
Company is assured of exclusive rights to ideas, works, and inventions
which relate to Company business, and
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3.
|
the
Company is protected against unauthorized disclosure of proprietary
information.
|
15
AGREEMENT
In
part consideration of my employment
now being or to be given by XXXXXXX TECHNOLOGY CORPORATION (hereinafter referred
to as the "Company"), a corporation of the State of Delaware, or by any
subsidiary or other affiliate of said Company, and effective as of the date
that
said employment first commenced, I agree that:
1.
During the term of my employment, I will not without the prior written consent
of the Company (a) engage in any other professional employment or consulting,
or
(b) directly or indirectly participate in or assist any business which is
a
current or potential supplier, customer, or competitor of the Company, except
that I may invest to an extent not exceeding one percent of the total
outstanding shares in each of one or more companies whose shares are listed
on a
national securities exchange or quoted daily by The Nasdaq Stock
Market.
2.
I will disclose promptly to the Company any ideas, inventions, works of
authorship (including but not limited to computer programs, software and
documentation), improvements or discoveries, patentable or unpatentable,
copyrightable or uncopyrightable, which during the term of my employment
I may
conceive, make, develop or work on, in whole or in part, solely or jointly
with
others, whether or not reduced to drawings, written description, documentation,
models or other tangible form, and which relate either to product, service,
research or development fields in which the Company or any of its affiliates
is,
at the time, actively engaged, or to my employment activities; and all such
ideas, inventions, works, improvements and discoveries shall forthwith and
without further consideration become and be the exclusive property of said
Company, its successors and assigns. The Company hereby notifies you that
the
foregoing does not apply to any invention which qualifies fully for exemption
under Section 2870 of the California Labor Code.
3.
I will assist the Company in every proper way, including the signing of any
and
all papers, authorization, applications and assignments, and making and keeping
of proper records, and the giving of evidence and testimony (all entirely
at the
Company's expense), to obtain and to maintain for the use and benefit of
the
Company or its nominees patents, copyrights or other protection for any and
all
such ideas, inventions, works, improvements and discoveries in all
countries.
4.
I understand and agree that all data and records coming into my possession
or
kept by me in connection with my employment, including notebooks, drawings,
blueprints, computer programs, software and documentation, bulletins, parts
lists, reports, customer lists, and production, cost, purchasing, and marketing
information, and employment data, including policies and salary information,
are
the exclusive property of the Company. I agree to return to the Company all
copies of such data and records upon termination of my employment unless
specific written consent is obtained from the President of the Company to
retain
any such data or records.
16
5.
I will regard and preserve as confidential and will not divulge to unauthorized
persons, or use for any unauthorized purposes, either during or after the
term
of my employment, any information, matter, or thing of secret, confidential
or
private nature, connected with the business of the Company or any of its
suppliers, customers or affiliates without the written consent of the President
of the Company until such time as such information otherwise becomes public
knowledge. Included within the meaning of the foregoing are matters of a
technical nature, such as know-how, formulae, computer programs, software
and
documentation, secret processes or machines, inventions, and research projects,
and matters of a business nature, such as information about costs, profits,
markets, sales, lists of customers and business data regarding customers,
salaries, and other personnel data of the Company's employees, and any other
information of a similar nature to the extent not available to the public,
and
plans for further development.
6.
As a matter of record, the following Schedule A contains a list of all ideas,
inventions, works, improvements and discoveries, patented and unpatented,
copyrighted and not copyrighted, and completed prior to my employment, which
I
desire to have specifically excluded from the operation of this
Agreement.
7.
I agree that I will not disclose to the Company or use for the benefit of
the
Company any confidential information derived from sources other than employment
with the Company. I further agree that if I am in doubt as to the confidential
status of any information, or if any information is alleged to be proprietary,
I
will refer to the President of the Company the question of whether such
information is available for disclosure and use for the benefit of the
Company.
8.
I understand that employment at the Company is employment at-will. Employment
at-will may be terminated with or without cause and with or without notice
at
any time by the employee or the Company. Nothing in this Agreement or in
any
document or statement shall limit the right to terminate employment at-will.
No
manager, supervisor or employee of the Company has any authority to enter
into
any agreement for employment for any specified period of time or to make
any
agreement for employment other than at-will. Only the President of the Company
has the authority to make any such agreement and then only in
writing.
9.
This Agreement shall not be terminated or altered by changes in duties,
compensation or other terms of my employment.
Employee:
/s/ Xxxxxxx
X.
Xxxxxxx
December
28,
1995
(Signature)
(Date)
17
SCHEDULE
A
List
of
all ideas, inventions, works, improvements and discoveries, patented and
unpatented, copyrighted and not copyrighted, and completed, if any, prior
to my
employment:
(Leave
blank if not applicable)
/s/ Xxxxxxx
X.
Xxxxxxx
December
28,
1995
(Signature)
(Date)
18
Age
Discrimination Release Agreement
Introduction
This
Age
Discrimination Release Agreement (this “Agreement”) is made by and between
Xxxxxxx X. Xxxxxxx, an individual (the "Employee"), and LaserCard Corporation,
a
Delaware corporation (the "Company"), effective on the date (the “Effective
Date”) that this Agreement is signed by the Employee as indicated under “Authorized
Signatures“ below.
Recital
Employee
and the Company have recently entered into a Planned Retirement Agreement (the
“Planned Retirement Agreement”) which does not cover a release of age
discrimination claims. The Employee and the Company desire to enter
into this Agreement to expressly provide for such a release.
Agreement
Based
upon the information and premises stated in the above Recital and the
statements, promises and agreements contained below, the parties hereby agree
as
follows:
1. Definitions. All
capitalized terms not defined in this Agreement are as defined in the Planned
Retirement Agreement.
2. Bonuses.
a. The
Employee is a
participant in the Management Bonus Plan. In lieu of receiving
bonuses thereunder based on revenue, profit, MBO, and board discretion, Employee
will instead receive a discretionary bonus of up to $50,000 as determined by
the
independent members of the Board based upon the recommendation of the Chairman
and Vice Chairman of the Board taking into account their evaluation of the
Employee’s performance between the Effective Date and the Retirement Date, to be
paid as soon as administratively feasible after the determination to award
such
a bonus is made, but in no event later than June 15, 2008. In these
regards, upon monthly request by Employee, the Chairman and/or Vice Chairman
of
the Board shall provide feedback to Employee on his performance by phone or
in
person, as applicable.
b.
The
Company plans to
implement a bonus plan for the GIG/Prevent second source
program.
i.
In
these regards, in recognition of his role in obtaining the original GIG
agreements in 2004 and in managing the relationship to date and its transition
to Prevent, Employee would receive $50,000 payable during January, 2008,
provided that Employee then remains a Company
employee.
ii.
In
addition, should the current arrangements be restructured and implemented
successfully during the period from the Effective Date through the Retirement
Date and thereafter through Employee’s Period of Consultancy so that by the end
of the Period of Consultancy the Company has a clear path which the Board
believes is very likely to lead to the establishment of a second source, then
Employee will receive a bonus at the discretion of the independent directors
payable in cash or equity as they determine based upon their evaluation of
the
likelihood of successful and timely establishment of a second source and
Employee’s contribution to such restructuring and implementation to be paid as
soon as administratively feasible after such determination is made, but in
no
event later than two and one-half (2 ½ ) months after such determination is
made.
19
3. Tax
Withholding. All
payments of bonus under Section 2 are taxable under the laws of the United
States and California
and
other payments under this Agreement may be so taxable. All payments
under this Agreement shall be made less any and all applicable deductions and
withholdings required by applicable law and will be subject to all court
ordered wage assignments and/or garnishments.
4. COBRA. If
the Employee elects to continue health insurance coverage under COBRA, then
so
long as the Employee is receiving severance payments under Section 6 of the
Planned Retirement Agreement (and therefore subject to compliance with Section
14 of the Planned Retirement Agreement), and is paying COBRA premiums, the
Company will pay the Employee a monthly payment equal to the amount that was
paid by the Company for health insurance coverage prior the termination of
employment for up to a maximum of 18 months. The Employee will not be reimbursed
for the portion of the premium which had been paid by the Employee prior to
the
termination of employment or for any administrative fees or increases in
premiums. The Employee is solely responsible for filing any necessary
paperwork for COBRA coverage and payment of all premiums. The Company’s duty to
make these payments will cease if Employee loses eligibility for COBRA
continuation coverage because Employee becomes eligible for group coverage
from
another employer. The Employee (and/or Employee’s eligible
dependent(s)), shall have an obligation to inform the Company if the Employee
or
such dependants are no longer eligible for COBRA continuation coverage, as
is
generally the case when the Employee receives group coverage from another
employer while receiving COBRA continuation coverage. The period of
such Company-reimbursed COBRA continuation coverage shall be considered part
of
Employee’s (and Employee’s eligible dependents’) COBRA coverage entitlement
period.
5. Age
Discrimination
Release.
a. The
Employee releases and forever discharges the Company and each of its employees,
officers, directors, shareholders, agents, predecessors and successors in
interest, parents, subsidiaries, attorneys, and assigns ("Company-Affiliates"),
from any and all claims, demands, obligations and/or liabilities which arise
out
of or relate to any action by the Company or the Company-Affiliates or omission
to act by the Company or the Company-Affiliates occurring on or before the
date
this Agreement is signed by the Employee (the “Release”) to the extent such
claims, demands, obligations and/or liabilities arise out of or relate any
rights or claims the Employee may have under the Age Discrimination in
Employment in Employment Act, 29 U.S.C. §§621, et seq., (as amended by the Older
Workers' Benefit Protection Act, 29 U.S.C. §626(f)) which prohibits age
discrimination in employment.
b. To the
maximum extent permitted by law, the Release extends to all claims of every
nature and kind whatsoever, whether known or unknown, suspected or unsuspected
involving age discrimination. The Employee expressly waives the provisions
of
Section 1542 of the Civil Code which provides:
A
general
release does not extend to claims which the creditor does not know or suspect
to
exist in his or her favor at the time of executing the release, which if known
by him or her must have materially affected his or her settlement with the
debtor.
c. The Release
does not waive any rights or claims that the Employee might have arising after
the date the Employee signs this Agreement.
d. The
Employee promises and states that the Employee has not given or sold any claim
discussed in this Agreement to anyone and that the Employee has not filed a
lawsuit, claim, or charge with any court or government agency asserting any
claims that are released by the Release.
20
e. This
Agreement recognizes the rights and responsibilities of the Equal Employment
Opportunity Commission (“EEOC”) and the California Department of Fair Employment
and Housing (“DFEH”) to enforce the statutes which come under their
jurisdiction. This Agreement is not intended to prevent Employee from
initiating or participating in any investigation or proceeding conducted by
the
EEOC or the DFEH; provided, however, that nothing in this section limits or
affects the finality or scope of the Release. The Employee has waived
and released any claim the Employee may have for damages based on any alleged
age discrimination and may not recover damages in any proceeding conducted
by
the EEOC or the DFEH.
6. Confidentiality. Except
to the extent publicly disclosed by the Company, the Employee and the Company
each promises to hold the provisions of this Agreement in strictest confidence.
The Employee may disclose this Agreement, in confidence, to his/her immediate
family, to his/her attorneys, accountants, auditors, tax preparers and financial
advisors, and as may be necessary to enforce its terms or as otherwise required
by law. Otherwise, the Employee agrees not to publicize or disclose its terms
to
anyone, in any manner. In particular (but without limitation), the Employee
agrees not to discuss the terms of this Agreement with former or current
employees, clients, suppliers, subcontractors or other business contacts of
the
Company.
7. Governing
Law. This Agreement is to be governed by California
law.
8. Severability. If
any portion of this Agreement is found to be unenforceable, then both the
Employee and the Company desire that all other portions that can be separated
from it or appropriately limited in scope shall remain fully valid and
enforceable.
9. Arbitration. Except
as prohibited by law, any legal dispute between the Employee the Company (or
between the Employee and any Company-Affiliates, each of whom is hereby
designated a third party beneficiary of this agreement regarding arbitration)
arising out of the Employee’s employment or termination of employment or this
Agreement (a "Dispute") will be resolved through binding arbitration in San
Jose, California, under the Arbitration Rules set forth in California Code
of
Civil Procedure Section 1280 etseq.,
and pursuant to
California law. Nothing in this arbitration provision is intended to limit
the
Employee's right to file a charge with or obtain relief from the National Labor
Relations Board. THE
PARTIES UNDERSTAND THAT BY AGREEING TO ARBITRATE DISPUTES THEY ARE WAIVING
ANY
RIGHT THEY MIGHT OTHERWISE HAVE TO A JURY TRIAL. This arbitration
provision is not intended to modify or limit substantive rights or the remedies
available to the parties, including the right to seek interim relief, such
as
injunction or attachment, through judicial process, which shall not be deemed
a
waiver of the right to demand and obtain arbitration.
10. Entire
Agreement. This Agreement, together with the Planned
Retirement Agreement which the Company and Employee are concurrently
entering into, are intended by the parties to be their entire agreement and
understanding concerning its subject matter and supersede any prior agreements
and understandings, whether written or oral, concerning its subject
matter. The statements, promises and agreements in this Agreement may
not be contradicted by any prior understandings, agreements, promises or
statements. The Employee states and promises that in signing this
Agreement he/she has not relied on any statements or promises made by the
Company, other than the promises contained in this Agreement. Any
changes to this Agreement must be in writing and signed by both
parties.
[Remainder
of Page Left Intentionally Blank]
21
12. Successors
and
Assigns. This Agreement shall be binding upon the Employee’s
heirs, administrators, executors, personal representatives and assigns and
upon
the Company’s successors and assigns.
The
Employee is advised to consult
with an attorney before signing this Agreement. The Employee
understands that the choice of whether or not to sign this Agreement is the
Employee's decision. The Employee acknowledges that the Employee has
been given at least 21 days, until December 19, 2007, to consider this Agreement
before signing it.
The
Employee may revoke this
Agreement within seven (7) days of signing it. Revocation can
be made by sending a written notice of revocation to the Company. For
such revocation to be effective, notice must be received no later than
5:00 p.m. on the seventh calendar day after the Employee signs this
Agreement. If the Employee revokes this Agreement, it shall not
become effective or enforceable and the Employee will not receive the retirement
package described in this Agreement should Employee’s employment with the
Company be terminated.
Authorized
Signatures
In
order
to bind the parties to this Age Discrimination Release Agreement, the parties,
or their duly authorized representatives have signed their names below on the
dates indicated.
|
Company
|
Employee
|
|
|
|
By
/s/ Xxxxxx
Xxxxxxx
|
/s/ Xxxxxxx X. Xxxxxxx | ||
| Xxxxxxx X. Xxxxxxx | |||
|
Xxxxxx
Xxxxxxx, Vice Chairman
|
|||
|
Printed
Name and Title of Signatory
|
|||
|
November
28, 2007
|
November
28, 2007
|
|
|
|
Date
Executed on Behalf of Company
|
Date
Signed By Employee
|
22
