EXHIBIT 10.06
CONFIDENTIAL AGREEMENT
AND GENERAL RELEASE OF CLAIMS
THIS CONFIDENTIAL AGREEMENT AND GENERAL RELEASE OF CLAIMS (the
"Agreement") dated April 23, 2001 is between Xxxxxx Xxxx ("Employee") and At
Home Corporation, doing business as Excite@Home (the "Company"), a Delaware
corporation. As used in this Agreement, the Company refers to At Home
Corporation and all parents, subsidiaries, divisions, predecessors, and
successors of At Home Corporation.
WHEREAS, Employee wishes to resign his positions as Chief Executive
Officer and Chairman; and
WHEREAS, Company wishes to retain Employee for transition and
consultation services;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Resignation as an Officer and Board Member of the Company.
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Employee's employment as Chief Executive Officer and Chairman of the Company
will terminate effective as of April 23, 2001 (the "Separation Date") and
Employee will resign from such positions on the Separation Date. On the
Separation Date, Employee will also resign from the Company's Board of
Directors, effective as of the Separation Date. Employee will continue as an
employee for the period from the Separation Date through June 30, 2001 (the
"Interim Employment Period"). During the Interim Employment Period, Employee
will make himself available at mutually convenient times as requested by the
Company's Chief Executive Officer and will be entitled to reimbursement for his
reasonable business expenses on the same basis applicable to management
employees of the Company generally (not to exceed $10,000.00 unless Employee is
specifically requested to perform activities where his expenses would exceed
this amount). Notwithstanding this employment, Employee shall be free to
simultaneously engage in other activities chosen by Employee, including full-
time employment with any other entities, during the Interim Employment Period.
2. Obligations of the Company.
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a. In exchange for the release of claims and other promises set
forth in this Agreement and the attached Addendum A, the Company agrees to
provide Employee with the following benefits:
(1) Employee will receive his current base salary of
$400,000 per year (the "Base Salary") and all other unpaid compensation and
benefits accrued through the Separation Date (less applicable withholding).
(2) The Company will pay Employee an amount equal to
Employee's Base Salary in accordance with the Company's normal payroll practices
during the Interim Employment Period, less applicable withholding. In addition,
if any performance bonus is paid
by the Company to the Company's Section 16 officers for calendar year 2001, at
the time such payment is made to the Company's Section 16 officers, Employee
will be paid fifty percent (50%) of any performance bonus that he would have
received as such a Section 16 officer if his employment as a Section 16 officer
had not been terminated and without regard to Employee's performance, less
applicable withholding.
(3) The Company will provide Employee with all existing
employee benefit plan insurance coverage (other than any new grants of stock
options and Section 401(k) plan eligibility) to the extent permitted by the
Company's employee benefit plans for the Interim Employment Period at the
Company's expense. Thereafter, Employee will be eligible to purchase
independently the identical healthcare insurance coverage programs as required
by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"). The Company will pay Employee's COBRA premiums (on a tax-free basis)
through September 30, 2001.
(4) With respect to any Company stock options held by
Employee as of the Separation Date, such stock options will continue to vest and
remain exercisable during the Interim Employment Period. Thereafter, all such
options to purchase shares of the Company's Common Stock will cease vesting but
will remain exercisable until May 23, 2002. All of your options shall become
nonqualified stock options. Employee will not purchase (other than pursuant to
the exercise of his stock options) or sell Company Common Stock until the
earlier of (a) the opening of the trading window for the Company's Section 16
officers or (b) two days following the release of the Company's Q2 2001
earnings.
(5) Employee's obligation to repay to the Company a loan
from the Company in the amount of $500,000, pursuant to a promissory noted dated
January 30, 2001 (attached hereto as Exhibit A), is extended until December 31,
2001; provided that Employee is in full compliance with his obligations set
forth in Section 3, below; and provided further that any shares of the Company's
Common Stock or other property that secures such loan will remain subject to the
applicable pledge agreement or security agreement until the loan is fully
repaid. On December 31, 2001, the Company will forgive the interest accrued on
this loan pursuant to the terms of the promissory note; provided that Employee
is in full compliance with his obligations set forth in Section 3, below.
(6) Employee will continue to have access to the services
of an executive assistant located in Boston, Massachusetts during the Interim
Employment Period at the Company's expense. The Company will pay the COBRA
premiums (on a tax-free basis) for Employee's executive assistant through
September 30, 2001.
b. Employee understands and acknowledges that Employee will not
be entitled to any benefits or payments from the Company other than those
expressly set forth in this Section 2. Employee acknowledges and agrees that
this Agreement supersedes the terms set forth in his Employment Agreement
effective May 28, 1999 (attached hereto as Exhibit B) and the Employee's and the
Company's obligations under such Employment Agreement are hereby terminated in
their entirety, effective as of the Separation Date.
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3. Obligations of Employee. In exchange for the benefits described above
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in Section 2, Employee agrees to the following:
a. Employee agrees to promptly provide the Company with any
available information relating to work previously performed by Employee for the
Company upon reasonable notice and request from the Company for a period of up
to one year from the end of the Interim Employment Period.
b. Employee will be bound by and comply with the terms of the
Employee Invention Assignment and Confidentiality Agreement (a copy of which is
attached to this Agreement as Exhibit C). Employee will return all Company
property (unless otherwise agreed in writing) and all confidential and
proprietary information in Employee's possession to the Company within five
business days from the end of the Interim Employment Period. Notwithstanding the
foregoing, the Company-owned computers, monitors and related equipment presently
used by Employee and Xxxxx Xxxxxxxx will become the property of Employee and
Xxxxx Xxxxxxxx, respectively, subject to the Company's right to purge such
equipment of all confidential information relating to the Company in accordance
with the Company's normal procedures provided the resale value of such equipment
shall not exceed $6,000.00. Employee will deliver a list of such equipment to
the Company within 10 days of the Effective Date.
c. Employee will not solicit, or initiate any solicitation of any
Company employee to leave his/her employment with the Company (excluding
Employee's executive assistant) to commence a relationship with Employee or any
other employer for a period ending one (1) year following the end of the Interim
Employment Period.
4. Release. In exchange for the benefits described in Section 2, Employee
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agrees to execute the release (the "Release") attached to this Agreement as
"Addendum A" on or promptly following the Separation Date and to execute a
substantially identical Release (appropriately modified by the Company to
reflect the new date of execution) at the end of the Interim Employment Period
subject, in each case, to the Company also executing such Release.
5. Arbitration. Any claim, dispute, or controversy arising out of or in
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any way relating to this Agreement or the alleged breach of this Agreement will
be submitted by the parties to binding arbitration in Santa Xxxxx County,
California by JAMS or by a judge to be mutually agreed upon. This Section 5 will
not prevent either party from seeking injunctive relief (or any other
provisional remedy) from any court having jurisdiction over the parties and the
subject matter of their dispute relating to Employee's obligations under
Employee's Confidentiality Agreement and Employee's obligations under Section 3
hereof.
6. Attorneys' Fees. The prevailing party will be entitled to recover
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from the losing party its attorneys' fees and costs (including expert witness
fees) incurred in any arbitration, lawsuit or other proceeding brought to
enforce any right arising out of this Agreement.
7. Confidentiality. Each party acknowledges that such party has not
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disclosed any of the terms of this Agreement to anyone other than such party's
counsel and/or Employee's spouse/domestic partner. Each party agrees, on behalf
of itself and its agents, to the extent permitted by law, not to disclose, or to
take every reasonable precaution to prevent disclosure of,
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any of the terms of this Agreement or consideration for this Agreement (the
"Settlement Information") to third parties, and agrees that there will be no
publicity, directly or indirectly, concerning any Settlement Information. Each
party agrees to take every reasonable precaution to disclose Settlement
Information only to such party's attorney, accountant, tax authorities, and
Employee's spouse/domestic partner, if and only if these individuals have a
reasonable and justifiable need to know of such Settlement Information,
provided, however, that any person or entity to whom such disclosure is made
will, prior to disclosure and to the extent permitted by law, acknowledge the
confidentiality of such information and agree to keep such information
confidential. Each party acknowledges that the confidentiality of the terms of
this Agreement is a material inducement to such party in entering into it. Any
dispute concerning this confidentiality provision will be resolved through
arbitration before JAMS in Santa Xxxxx County, California (the "Arbitrator")
pursuant to Section 5.
8. Non-Disparagement; Press Release. Employee agrees to refrain from
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disparagement, criticism, defamation or slander of the Company or any of its
employees, officers, directors, agents, products or services to anyone,
including but not limited to other employees and any past, present or
prospective customers. The Company agrees to maintain its neutral reference
policy in regard to Employee and refrain from disparagement, criticism,
defamation and slander of Employee.
9. No Admission of Liability. The Company and Employee understand and
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acknowledge that this Agreement constitutes a compromise and settlement. No
action taken by the parties hereto, or either of them, either previously or in
connection with this Agreement will be deemed or construed to be (a) an
admission of the truth or falsity of any claims or (b) an acknowledgment or
admission by a party of any fault or liability whatsoever to the other party or
to any third party.
10. No Knowledge of Wrongdoing. Employee has no knowledge of any
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wrongdoing involving improper or false claims against a federal or state
governmental or regulatory agency, including listing agencies or exchange or
other wrongdoing, that involves Employee or other present or former Company
employees.
11. Successors. The provisions of this Agreement will extend and inure
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to the benefit of, and be binding upon the respective legal successors and
assigns of the Company and Employee in addition to the Company and Employee.
12. Integration. This Agreement constitutes the entire Agreement between
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the parties with respect to the subject matter of this Agreement and supersedes
all prior negotiations and Agreements, whether written or oral with the
exception of Employee's obligations under the Confidentiality Agreement and/or
any surviving stock option agreements with respect to such subject matter.
13. No Oral Modification. This Agreement may not be altered or amended
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except by a written document executed by Employee and the Company.
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14. Governing Law. This Agreement will in all respects be governed by the
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laws of the State of California as applied to agreements entered into and to be
performed entirely within California between California residents.
15. Effective Date. This Agreement is effective as of April 23, 2001,
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provided that the Release, and the Company's obligations pursuant to Section 2
above, shall become effective on the eighth day after the Release has been
signed by both parties (the "Effective Date"), unless sooner revoked by
Employee. If Employee desires to revoke the Release, Employee must deliver or
cause to be delivered a written statement of revocation from Employee prior to
the Effective Date to Xxxxxxx Xxxxxx at the Company.
16. No Representations. Each party represents that it has had the
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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.
17. Counterparts. This Agreement may be executed in counterparts, and each
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counterpart will have the same force and effect as an original and will
constitute an effective, binding agreement on the part of each of the
undersigned.
18. Severability. In the event that any one or more of the provisions
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contained herein will for any reason be held to be unenforceable in any respect
under any statute, rule or law of any state or of the United States of America,
such unenforceability will not affect any other provision of this Agreement,
but, with respect only to the jurisdiction holding the provision to be
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unenforceable, this Agreement will then be construed as if such unenforceable
provision or provisions had never been contained herein.
EMPLOYEE: EXCITE@HOME:
Xxxxxx Xxxx ___________________________
By:
Title:
__________________________
Signature
Date: ____________________ Date: _____________________
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ADDENDUM A
THIS GENERAL RELEASE OF CLAIMS ("Release") is between Xxxxxx Xxxx
("Employee") and At Home Corporation, doing business as Excite@Home
("Excite@Home" ), a Delaware corporation.
1. Payment of Separation Benefits. Excite@Home has agreed that if
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Employee signs this Release and signs an additional release on or after his last
day of employment, it will provide Employee the benefits (the "Separation
Benefits") set forth in Employee's Confidential Agreement and General Release of
Claims dated April 23, 2001 (the "Separation Agreement"). Employee understands
that he is not entitled to these Separation Benefits unless he signs this
Release. Employee understands that in addition to the Separation Benefits the
Company will pay him all of his accrued salary and vacation, to which Employee
is entitled by law.
2. Release.
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(a) Employee and Excite@Home, on behalf of themselves and their
respective heirs, executors, successors and assigns, hereby fully and forever
release each other and their respective heirs, executors, successors, agents,
officers and directors, from and agree not to xxx concerning, any and all
claims, actions, obligations, duties, causes of action, whether now known or
unknown, suspected or unsuspected, that either of them may possess based upon or
arising out of any matter, cause, fact, thing, act, or omission whatsoever
occurring or existing at any time prior to and including the date hereof
(collectively, the "Released Matters"), including without limitation,
(1) any and all claims relating to or arising from
Employee's employment or consulting relationship with Excite@Home and the
termination of either such relationship;
(2) any and all claims relating to, or arising from,
Employee's right to purchase, or actual purchase of, shares of stock of
Excite@Home, including, without limitation, any claims of fraud,
misrepresentation, breach of fiduciary duty, breach of duty under applicable
state corporate law, and securities fraud under any state or federal law;
(3) 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;
(4) any and all claims for violation of any federal, state
or municipal statute, 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 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 the California Labor Code section 201, et. seq.;
(5) any and all claims for violation of the federal, or any
state, constitution;
(6) any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination;
(7) any and all claims for attorneys' fees and costs; and
(8) any and all claims either Excite@Home or Employee may
have against the other for any acts by either occurring at any time prior to the
execution of this Release.
Each of the parties agrees that the foregoing enumeration of claims released is
illustrative, and the claims hereby released are in no way limited by the above
recitation of specific claims, it being the intent of the parties to fully and
completely release all claims whatsoever in any way relating to the Employee'
employment with Excite@Home and to the termination of such employment. This
release does not extend to any obligations incurred under the Separation
Agreement, the promissory note attached thereto or the stock options referred to
therein.
(b) Employee represents that Employee has no lawsuits, claims or
actions pending in Employee's name, or on behalf of any other person or entity,
against Excite@Home or any other person or entity referred to herein. Employee
also represents that Employee does not intend to bring any claims on Employee's
own behalf against Excite@Home or any other person or entity referred to herein.
(c) Employee and Excite@Home acknowledge that they have been
advised by legal counsel and are familiar with Section 1542 of the Civil Code of
the State of California, which states:
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.
Excite@Home and Employee each expressly waives any right or benefit which they
have or may have under Section 1542 of the California Civil Code or any similar
provision of the statutory or non-statutory law of any other jurisdiction,
including Delaware. The parties acknowledge that in the future they may discover
claims or facts in addition to or different from those that they now know or
believe to exist with respect to the subject matter of this Release, and that
each of Employee and Excite@Home intends to fully, finally, and forever settle
all of the Released matters in exchange for the Separation Benefits. This
release will remain in effect as a full and complete release notwithstanding the
discovery or existence of any additional claims or facts.
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3. Acknowledgment of Waiver of Claims under ADEA. Employee acknowledges
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that Employee is waiving and releasing any rights Employee may have under the
Age Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Employee and Excite@Home 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 Release, Employee acknowledges that the
consideration given for this Release in addition to anything of value to which
Employee was already entitled. Employee further acknowledges that Employee has
been advised by this writing that:
(a) Employee should consult with an attorney prior to executing this
Release;
(b) Employee has had at least twenty-one (21) days within which to
consider this Release, although Employee may accept the terms of this Release at
any time within those 21 days;
(c) Employee has seven (7) days following the execution of this
Release by the parties to revoke this Release; and
(d) This Release will not be effective until the revocation period
has expired.
4. Voluntary Execution of Release. This Release is executed voluntarily
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and without any duress or undue 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 Release;
(b) they have been represented in the preparation, negotiation, and
execution of this Release 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 Release and of
the releases it contains;
(d) they are fully aware of the legal and binding effect of this
Release.
EMPLOYEE HAS CONSULTED WITH AN ATTORNEY BEFORE SIGNING THIS RELEASE AND
UNDERSTANDS THAT, BY SIGNING THIS RELEASE, EMPLOYEE IS GIVING UP ANY LEGAL
CLAIMS EMPLOYEE HAS AGAINST EXCITE@HOME. EMPLOYEE FURTHER ACKNOWLEDGES THAT
EMPLOYEE DOES SO KNOWINGLY, WILLINGLY, AND VOLUNTARILY IN EXCHANGE FOR THE
BENEFITS DESCRIBED IN THE SEPARATION AGREEMENT.
EMPLOYEE EXCITE@HOME
_____________________________ By: ______________________________
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Signature
Title: ____________________________
Date:_________________________
Date: _____________________________
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