Hand Delivered
October 20, 1998 (Revised)
Xxxxxx Xxxxxxx
00000 X. Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Dear Xxxxxx:
This letter confirms the revised agreement we have reached with you regarding
separation of your employment with Viasoft, Inc. ("Viasoft" or the "Company")
effective November 2, 1998. The Company is offering severance payments to you
and other employees who are departing the Company at the same time as you in the
"October Reduction in Force." You acknowledge receipt of the attached "October
1998 Reduction in Force," which provides additional information about the
reduction in force, including a list of job titles and ages of Company employees
who were and were not selected for termination.
The Company will (1) pay you the amount of $65,000, less applicable withholding
(federal tax, state tax, FICA, etc.) within 5 business days after November 2 and
(2) provide outplacement assistance to help you prepare for other, provided you
have signed this letter and returned it to Human Resources-Phoenix after the
expiration of the seven-day revocation period described below. Your final
payroll will include compensation for any vacation you have accrued and not
used. Any health and dental, life insurance or other benefit plans you currently
participate in will end in accordance with your current policies. Continuation
rights of group health coverages under COBRA regulations will be explained in a
separate letter. Any valid business expenses you may have incurred but have not
yet submitted the request for reimbursement shall be reimbursed provided the
expenses are submitted to the Company within 45 days of your last day of active
employment and are reimbursable according to Company policy.
In exchange for what the Company has agreed to do as identified above, you agree
to (1) return all company materials and equipment, including keys, credit cards,
files, etc. currently in your possession, (2) assist with the orderly transition
of work in progress until November 2, 1998, and (3) waive and release the
Company, its affiliates, divisions, officers, directors, shareholders, agents
and employees from all claims, demands, and liabilities, whether known or
unknown, past or present, suspected or unsuspected, including, without
limitation: (a) all claims that arise out of or that relate to your employment
or the termination of your employment with the Company, (b) all claims that
arise out of or that relate to the statements or actions of the Company or any
contract or agreement with the Company, (c) all claims that arise under the
Civil Rights Act of 1964, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, and the Arizona Civil Rights Act, (d) all
claims for relief or other benefits under any federal, state, or local statute,
ordinance, regulation, or rule of decision, (e) all claims that the Company
engaged in conduct prohibited on any basis under any federal, state, or local
statute, ordinance, regulation, or rule of decision, and (f) all claims for
attorneys' fees, liquidated damages, punitive damages, costs, and disbursements.
You represent that you have not assigned any of these claims to any person or
entity.
You further agree that you will forever keep the terms and conditions of this
separation agreement ("Confidential Information") confidential. You will not
disclose Confidential Information to any person or entity except your attorneys,
Page 2
spouse, accountant, or tax planner, and if you disclose Confidential Information
to these individuals, you must inform them that the information is to be kept in
strict confidence and may not be disclosed to other parties without the written
permission of you and Viasoft. You also may provide truthful testimony regarding
Confidential Information in response to direct questions asked pursuant to an
enforceable court order or subpoena, after you notify Viasoft of the order or
subpoena and cooperate with Viasoft in responding to the order or subpoena.
You also agree not to disparage, defame or besmirch the reputation, character,
image or services of the Company, its affiliates, divisions, directors,
officers, shareholders, employees or agents.
You agree that you will not recommend or suggest to any potential claimants or
plaintiffs or their attorneys or agents that they initiate claims or lawsuits
against Viasoft or any of its affiliates, divisions, directors, officers,
shareholders, employees or agents, successors, or assigns, and you further agree
that you will not voluntarily aid, assist or cooperate with any such claims or
lawsuits. Again, this does not prevent you from giving truthful testimony in
response to direct questions asked pursuant to a lawful subpoena during any
future legal proceedings, after you notify Viasoft of the order or subpoena and
cooperate with Viasoft in responding to the order or subpoena.
You reaffirm your obligations under any confidentiality agreement you signed
during your employment with Viasoft.
The matters discussed in this letter are legally binding and this letter
supersedes all other agreements and understandings between you and the Company
related to your employment, except for any confidentiality agreement you signed
during your employment with Viasoft. The terms of this letter cannot be changed
or amended except in a written document, signed by both you and Viasoft. Nothing
in this letter constitutes an admission that any person or entity violated any
local, state, or federal ordinance, regulation, ruling, statute, rule of
decision, or principal of common law, or that any person or entity engaged in
any improper or unlawful conduct or wrongdoing. Any disputes or controversy
arising from any breach or asserted breach of this Agreement will be governed by
the laws of the State of Arizona, and any lawsuit between you and Viasoft must
be brought only in Maricopa County Superior Court or the United States District
Court for the District of Arizona.
You may take up to 45 (forty-five) calendar days to decide whether to sign this
letter, and you are advised to consult with your own attorney prior to signing
the letter. The Company's offer as outlined in this letter will expire on
December 4, 1998 at 5:00 p.m. MST. If the contents of this letter are agreeable
to you, please sign in the presence of a notary and return this letter to Xxxxx
Xxxxxxx, Viasoft, 0000 X. 00xx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000 by December
4, 1998, thereby noting your knowing and voluntary acceptance of the terms and
conditions in this letter. You will then have 7 (seven) days from the date of
your signature to revoke your acceptance of this letter. If you do not revoke
your acceptance, please send us a letter AFTER this seven-day period has
expired, confirming your decision not to revoke your acceptance of this letter
(see sample enclosed).
Viasoft will then process your severance pay.
Sincerely,
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
President and Chief Operating Officer
Enclosure
Page 3
EMPLOYEE ACKNOWLEDGEMENT AND AGREEMENT
I acknowledge that I have been advised to consult with an attorney prior to
executing this agreement and that I have had a full opportunity to consider this
Agreement and ask any questions concerning this Agreement. I have not relied
upon any statements made by the Company or its attorney other than the
statements in this Agreement. I have read and understand the contents of this
Agreement and execute this Agreement knowingly and voluntarily, of my own free
will and choice.
/s/ Xxxxxx Xxxxxxx Date: 10/21/98
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Xxxxxx Xxxxxxx
The foregoing instrument was acknowledged before me this 21ST day of OCTOBER,
1998, by Xxxxxx Xxxxxxx.
Notary Public Xxxx X. Xxxxxxx
---------------------------
My commission expires March 30, 2000
-------------------
RECEIPT AND ACKNOWLEDGEMENT BY VIASOFT, Inc.
/s/ Xxxxx X. Xxxxxx Date: 10/29/98
---------------------------------- --------------------
Xxxxx X. Xxxxxx
President and Chief Operating Officer
The foregoing instrument was acknowledged before me this 29TH day of OCTOBER,
1998, by Xxxxx X. Xxxxxx.
Notary Public Xxxx X. Xxxxxxx
---------------------------
My commission expires March 30, 2000
-------------------
