TEMPORARY EMPLOYMENT AGREEMENT,
SETTLEMENT AGREEMENT
AND GENERAL RELEASE
This Temporary Employment Agreement, Settlement Agreement and General
Release ("Agreement") is made by and between lngenuus Corporation, a Delaware
corporation (the "Company"), and Xxxxxx X. Dell'Oca ("Employee").
WHEREAS, Employee is employed by the Company and is an Executive
Officer of the Company;
WHEREAS, the Company and Employee are parties to a Confidential
Information and Invention Assignment Agreement (the "Confidentiality
Agreement");
WHEREAS, the Company and Employee have agreed that Employee will become
a temporary employee effective October 1, 2000 through September 30, 2001;
WHEREAS, the Company and Employee have agreed that his employment with
the Company will be terminated effective September 30, 2001;
WHEREAS, the parties desire to mutually, amicably and finally resolve
and compromise all issues and claims surrounding the employment of the Employee
by the Company and the termination thereof;
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Employee (collectively referred to as "the Parties") hereby agree as
follows:
1. Temporary Employment. Employer and Employee hereby agree that
Employee shall be employed as a temporary employee for the period October 1,
2000 through September 30, 2001 at his same salary and with all his present
benefits including those of a regular employee except that Employee shall not
participate in the Company's MIC Bonus Plan during this period of temporary
employment. Employee's accrued PTO shall be paid out as of October 1, 2000.
2. Resignation. Employee hereby resigns as an employee of the Company
effective September 30, 2001. Employee shall continue to be employed by the
Company as a temporary employee through the Severance Period as defined below,
at which rime his resignation as a temporary employee shall become effective.
3. Severance Period The Company agrees to employ Employee as a
temporary employee for a fixed term of twelve (12) month at the monthly rate of
nineteen thousand four hundred eighty nine dollars ($ 19,489), less applicable
withholding, in
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accordance with the Company's standard payroll practices for the time period of
12 months from October 1, 2001 through September 30, 2002, or until such time
that Employee becomes re-employed as provided for below, whichever occurs first.
This twelve (12) months from October 1, 2001 through September 30, 2002, or
until such time after October 1, 2001 that Employee becomes re-employed,
whichever occurs first, shall be deemed the "Severance Period". All payments
shall cease upon Employee's re-employment by another company or entity in an
executive position (e.g. CEO, COO) with an equivalent or greater salary than
$19,489 per month. Employee shall make reasonable good faith efforts to find
other employment, shall not unreasonably delay his start date with another
employer or accept full time consulting (40 hours per week on a monthly basis)
in lieu of employment and shall notify the Company in writing immediately upon
accepting employment with another employer. During the Severance Period,
Employee will not be entitled to any employee benefits, including, but not
limited to, paid time off (PTO) benefits, commissions or bonuses, except as
specifically provided for herein. The Company will pay Employee all accrued PTO,
if any. Employee will receive insurance benefits as specified in Paragraphs 5
below.
4. Vesting of Stock Options. All of Employee stock options with the
Company shall vest 100% upon the execution of this Agreement and Employee may
exercise such vested stock options during the period through 3 months after the
last day of the Severance Period.
5. Benefits. The Company shall continue to pay all of the insurance
premiums presently paid for Employee including standard Company group medical,
dental, life, and disability insurance coverage through the end of the Severance
Period. At the conclusion of the Severance Period, Employee may elect COBRA
coverage. For purposes of COBRA, Employee's "qualifying event" (as defined in
Section 4980B of the Internal Revenue Code of 1986, as amended) shall be at the
conclusion of the Severance Period.
Employee's desk, bookshelves and cabinet in his office is his property
and shall be retained and removed by him within a reasonable time after the date
of this Agreement. In addition, Employee may retain his Company computer and
printer. The Company agrees to provide Employee with voicemail and Company email
access during the period of temporary employment and the Severance Period.
6. Reimbursement of Expenses. The Company and Employee acknowledge that
Employee may be entitled to reimbursement of certain travel and business
expenses incurred in the ordinary course of business. The Company will
reimburse Employee for any such approved expenses upon receipt of a properly
filled out, documented and approved Ingenuus Travel and Business Expense
Report.
7. Confidential Information. Employee shall continue to maintain the
confidentiality of all confidential and proprietary information of the Company
and shall continue to comply with the terms and conditions of the
Confidentiality Agreement between
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Employee and the Company. Employee represents that he has returned all the
Company property and confidential and proprietary information in his possession
to the Company.
8. Payment of Salary. Except as otherwise provided herein, Employee
acknowledges and represents that the Company has paid all salary, wages,
bonuses, accrued PTO, commissions and any and all other benefits due to
Employee. Unpaid expenses are specifically excluded.
9. Release of Claims. Employee agrees that the foregoing consideration
represents settlement in full of all outstanding obligations owed to Employee by
the Company, Employee on behalf of himself and his heirs, family members,
executors, administrators, affiliates, and assigns, hereby fully and forever
releases the Company and its officers, directors, employees, investors,
shareholders, administrators, affiliates, divisions, subsidiaries, predecessor
and successor corporations, and assigns, from, and agree not to xxx concerning,
any claim, duty, obligation or cause of action relating to any matters of any
kind, whether presently known or unknown, suspected or unsuspected, that any of
them may possess arising from any omissions, acts or facts that have occurred up
until and including the Effective Date of this Agreement including, without
limitation,
(a) any and all claims relating to or arising from Employee's
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from, Employee's
right to purchase, or actual purchase of shares of stock of the Company,
including, without limitation, any claims for fraud, misrepresentation, breach
of fiduciary duty, breach of duty under applicable state corporate law, and
securities fraud under any state or federal law;
(c) any and all claims for wrongful discharge of employment;
termination in violation of public policy; discrimination; breach of contract,
both express and implied; breach of a covenant of good faith and fair dealing,
both express and implied; promissory estoppel; negligent or intentional
infliction of emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel; slander; negligence;
personal injury; assault; battery; invasion of privacy; false imprisonment; and
conversion;
(d) any and all claims for violation of any federal, state or
municipal stature , including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment
Act of 1967, the Family and Medical Leave Act, the Americans with Disabilities
Act of 1990, the Fair Labor Standards Act, the Employee Retirement Income
Security Act of 1974. The Worker Adjustment and Retraining Notification Act,
Older Workers Benefit Protection Act; the California Fair Employment and Housing
Act, and Labor Code section 201, et seq. and section 970, et seq.;
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(e) any and all claims for violation of the federal, or any state,
constitution;
(f) any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination; and
(g) any and all claims for attorneys' fees and costs.
The Employee agrees that the release set forth in this section shall be and
remain in effect in all respects as a complete general release as to the matters
released. This release does not extend to any obligations incurred under this
Agreement nor to any obligation of the Company under the Indemnification
Agreement signed between Employee and the Company.
10. Acknowledgment of Waiver of Claims under ADEA. Employee
acknowledges that he is waiving and releasing any rights he may have under the
Age Discrimination in Employment Act of 1967 ("ADEA") and that this waiver arid
release is knowing and voluntary. Employee and the Company agree that this
waiver and release does not apply to any rights or claims that may arise under
ADEA after the Effective Date of this Agreement. Employee acknowledges that the
consideration given for this waiver and release Agreement is in addition to
anything of value to which Employee was already entitled. Employee further
acknowledges that he has been advised by this writing that (a) he should consult
with an attorney prior to executing this Agreement; (b) he has at least
twenty-one (21) days within which to consider this Agreement; (c) he has at
least seven (7) days following the execution of this Agreement by the parties to
revoke the Agreement; and (d) this Agreement shall not be effective until the
revocation period has expired.
11. Civil Code Section 1542. Employee represents that he is not aware
of any claim by him other than the claims that are released by this Agreement.
Employee acknowledges that he has been advised by legal counsel and is familiar
with the provisions of California Civil Code Section 1542, 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.
Employee, being aware of said code section, agrees to expressly waive
any rights he may have thereunder, as well as under any other statute or common
law principles of similar effect.
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12. No Pending or Future Lawsuits. Each Party represents that it has no
lawsuits, claims, or actions pending in its name, or on behalf of any other
person or entity, against the other Party or any other person or entity referred
to herein. Each Party also represents that it does not intend to bring any
claims on its behalf or on behalf of any other person or entity against the
other Party or any other person or entity referred to herein.
13. Mutual Release of Claims. The Company and Employee agree that at
the conclusion of the Severance Period they will execute a mutual release of
claims which shall cover substantially the same matters as Sections 9, 10, 11
and 12 hereof
14. Application for Employment. Employee understands and agrees that,
as a condition of this Agreement, he shall not be entitled to any employment
with the Company and its subsidiaries, and he hereby waives any right, or
alleged right, of employment or re-employment with the Company
15. Confidentiality. The Parties hereto each agree to use their best
efforts to maintain in confidence the existence of this Agreement, the contents
and terms of this Agreement, and the consideration for this Agreement
(hereinafter collectively referred to as "Settlement Information"). Each Party
hereto agrees to take every reasonable precaution to prevent disclosure of any
Settlement Information to third parties, and each agrees that there will be no
publicity, directly or indirectly, concerning any Settlement Information. The
Parties hereto agree to take every precaution to disclose Settlement Information
only to those employees, officers, directors, attorneys, accountants,
governmental entities, and family members who have a reasonable need to know of
such Settlement Information.
16. No Cooperation. Employee agrees that he will not 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.
17. Non-Disparagement. Each party agrees to refrain from any
defamation, libel or slander of the other, or tortuous interference with the
contracts and relationships of the other. All inquiries by potential future
employers of Employee will be directed to the Company's Chief Executive Officer.
18. Tax Consequences. The Company makes no representations or
warranties with respect to the tax consequences of the payment of any sums to
Employee under the terms of this Agreement. Employee agrees and understands that
he is responsible for payment, if any, of local, state and/or federal taxes on
the sums paid hereunder by the Company and any penalties or assessments thereon.
19. No Admission of Liability. The Parties understand and acknowledge
that this Agreement constitutes a compromise and settlement of disputed claims.
No action taken by the Parties hereto, or either of them, either previously or
in connection with this
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Agreement shall be deemed or construed to be (a) an admission of the truth or
falsity of any claims heretofore made or (b) an acknowledgment or admission by
either party of any fault or liability whatsoever to the other party or to any
third party.
20. Costs. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
21. Arbitration. The Parties agree that any and all disputes arising
out of the terms of this Agreement, their interpretation and any of the matters
herein released, shall be subject to binding arbitration in Santa Xxxxx County
before the American Arbitration Association under its California Employment
Dispute Resolution Rules, or by a judge to be mutually agreed upon. The Parties
agree that the prevailing party in any arbitration shall be entitled to
injunctive relief in any court of competent jurisdiction to enforce the
arbitration award. The Parties agree that the prevailing party in any
arbitration shall be awarded its reasonable attorney's fees and costs.
22. Authority. The Company represents and warrants that the undersigned
has the authority to act on behalf of the Company and to bind the Company and
all who may claim through it to the terms and conditions of this Agreement.
Employee represents and warrants that he has the capacity to act on his own
behalf and on behalf or all who might claim through him to bind them to the
terms and conditions of this Agreement. Each Party warrants and represents that
there are no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action released herein.
23. No Representations. Each party represents that it has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement.
24. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
25. Entire Agreement. This Agreement represents the entire agreement
and understanding between the Company and Employee concerning Employee's
separation from the Company, and supersedes and replaces any and all prior
agreements and understandings concerning Employee's relationship with the
Company and his compensation by the Company.
26. No Oral Modification. This Agreement may only be amended in writing
signed by Employee and the Chief Executive Officer of the Company.
27. Governing Law. This Agreement shall be governed by the laws of the
State of California.
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28. Effective Date. This Agreement is effective seven days after it has
been signed by both Parties.
29. Counterparts. This Agreement may be executed in counterparts, and
each counterpart shall have the same force and effect as an original and shall
constitute an effective binding agreement on the part of each of the
undersigned.
30. Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or under influence on the part or behalf of
the Parties hereto with the full intent of releasing all claims. The Parties
acknowledge that:
(a) They have read this Agreement;
(b) They have been represented in the preparation negotiation
and execution of this Agreement by legal counsel of their own choice or that
they have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this Agreement
and of the releases it contains;
(d) They are fully aware of the legal and binding effect of this
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
Xxxxxx X. Dell'Oca, an individual
/s/ Xxxxxx X. Dell'Oca
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Xxxxxx X. Dell'Oca
Dated:____________2000
Ingenuus Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
President and chief Executive Officer
Dated: 12-21-2000
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