Exhibit 10.35
INTEGRATED INFORMATION SYSTEMS, INC.
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (this "Agreement") is
between Xxxxx Xxxxxxxx ("Employee") and INTEGRATED INFORMATION SYSTEMS, INC.
("IIS"), and is dated as of the date set forth next to Employee's signature.
RECITALS:
1. Employee was employed by IIS under an Employment Agreement dated
September 29, 1997.
2. Employee was granted 75,000 options by IIS pursuant to an initial
Stock Option Agreement dated September 29, 1997.
3. Employee and Employer mutually terminated their employment
relationship and their Employment Agreement effective September 28, 2001 upon
the terms and conditions set forth below.
TERMS AND CONDITIONS:
Section 1. Termination of Employment. Upon the mutual agreement of IIS
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and Employee, the employment of Employee with IIS was
terminated without cause effective September 28, 2001.
Employee intentionally and knowingly waived any notice
provisions, including any set forth in the Employment
Agreement.
Section 2. Lapse of Options. Notwithstanding paragraph 7(a) of the
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Stock Option Agreement dated September 29, 1997, all options
shall lapse three (3) months after the date of termination or
December 28, 2001.
Section 3. Consideration. In consideration of (a) the covenants of
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Employee set forth in this Agreement, (b) Employee's agreement
to accelerate the lapsing of stock
options as described in Section 2, and (c) Employee's release
of all claims, disputes and causes of action which Employee.
Employee's heirs, attorneys, executors, administrators or
assigns have or may have against IIS, its predecessors, or any
other related entity, IIS agrees to pay to Employee on the
eighth day following Employee's execution of this Agreement,
provided Employee has not revoked this Agreement pursuant to
Section 8, an amount equal to six months of his current salary
subject to appropriate payroll tax and benefits withholdings.
Section 4. Restrictive Covenants. The parties agree that the Employment
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Agreement is terminated as of September 28, 2001, but that all
post-termination provisions of the Employment Agreement,
including but not limited to those set forth in Sections 7 and
8 of the Employment Agreement, shall remain in effect and are
binding upon Employee as defined in the Employment Agreement.
Employee further agrees that he will not initiate any public
statement concerning or relating to the business affairs of
IIS.
Section 5. Mutual Release. Each party, on behalf of himself or itself
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and his or its heirs, attorneys, executors, successors,
administrators and assigns, does hereby release, acquit and
forever discharge the other party and his or its respective
successors, assigns, subsidiaries, divisions, affiliated
companies and benefit plans and its respective present and
former affiliates, directors, officers, fiduciaries,
employees, agents, successors and assigns, from any and all
liabilities, damages, causes of action and claims of any
nature, kind or description whatsoever, whether accrued or to
accrue, which wither party ever had, now has or hereafter may
have against any of them, know or unknown, that are based on
facts occurring the day of or prior to the day the parties
execute this Agreement, including, but not limited to, any
claims
under any state or federal law or statute, including, but not
limited to, the Age Discrimination in Employment Act of 1967,
the Americans with Disabilities Act of 1990, the Civil Rights
Acts of 1964 and 199l, and Family and Medical Leave Act, any
applicable workers' compensation law, and any claim (state
tort, contract or otherwise), matter or action related to
Employee's employment and/or affiliation with, or termination
and separation from, IIS and its affiliates.
Section 6. No Release of Vested Benefits. Notwithstanding anything in
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Section 5 above, Employee does not by this Agreement waive any
rights Employee may have to vested benefits or account
balances in any retirement plan which vested benefits or
account balances, as the case may be, shall be paid over to
Employee in accordance with the provisions of the respective
plans.
Section 7. Confidentiality. As a material inducement to enter into
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this Agreement, each party represents and agrees that he or it
will keep all terms of this Agreement completely confidential,
and that he or it will not disclose any information concerning
this Agreement to any person, including, but not limited to,
any past, present or prospective employee of IIS. Each party
further agrees that disclosure by Employee of the terms and
conditions of this Agreement in violation of this Section
constitutes a material breach of this Agreement.
Section 8. Acknowledgments. Employee acknowledges, represents and agrees,
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in compliance with the Older Workers Benefit Protection Act:
(i) that Employee has been fully informed and is fully
aware of Employee's right to discuss any and all
aspects of this matter with an attorney of Employee's
choice;
(ii) that Employee has carefully read and fully understands
all of the provisions of this Agreement;
(iii) that Employee has had up to and including a full
twenty-one (21) days within which to consider this
Agreement before executing it;
(iv) that Employee has a full seven (7) days following the
execution of this Agreement to revoke this Agreement
and had been and hereby is advised in writing that
this Agreement shall not become effective or
enforceable until the revocation period has expired;
(v) that Employee has had adequate time to consider this
Agreement before executing it; and
(vi) that Employee accepts the terms of this Agreement as
fair and equitable under all the circumstances and
voluntarily executes this Agreement.
Section 9. Non-Disparagement. Neither party shall disparage the other.
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Employee shall refrain from making any statement that is
critical or derogatory of any IIS operation or about any
employee of IIS. Neither party shall disclose to any third
party the conditions of Employee's employment with IIS except
(i) pursuant to applicable laws or regulations, including the
rules and regulations of the SEC, (ii) to effectuate the
provisions of employee plans or programs or insurance
policies, (iii) with the specific written consent of the
other; or (iv) as may be otherwise contemplated by this
Agreement. This restriction shall apply to any such statement,
written or oral, direct or indirect, voluntarily made.
Section 10. Governing Law and Jurisdiction. This Agreement shall be
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governed by and construed in accordance with the laws of the
State of Arizona. Both parties hereby irrevocably submit to
the exclusive jurisdiction of any federal or
state court in Maricopa County, State of Arizona, for any
lawsuit, action or proceeding arising out of or relating to
this Agreement, and the parties irrevocably agree that all
claims in respect of such lawsuit, action or proceeding may be
heard and determined in such court.
Section 11. Saving Clause. If any provision of this Agreement is invalid
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under applicable law, such provision shall be deemed to
be not a part of this Agreement, but shall not invalidate any
other provision.
"EMPLOYEE" "IIS"
Xxxxx Xxxxxxxx INTEGRATED INFORMATION SYSTEMS,
INC., a Delaware corporation
/s/ Xxxxx Xxxxxxxx By /s/ Xxxx Xxxxx
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Date: 10-11-01 Title: Director, HR
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Final Date for revocation: 10-18-01
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(7 days after date of Agreement) Date: 10-11-01
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NON-REVOCATION
AS OF THE DATE SHOWN ON THIS FORM
By signing below, I hereby verify that I have chosen not to revoke my
agreement to and execution of the Separation and General Release Agreement. My
signature confirms my renewed agreement to the terms of that Agreement,
including the release and waiver of any and all claims relating to my employment
with the Employer and/or the termination of that employment.
XXXXX XXXXXXXX ("EMPLOYEE")
/s/ Xxxxx Xxxxxxxx 10-18-01
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Employee Signature* Date*
* Do not sign, date or return this document until seven (7) days after you sign
the Separation Agreement and Release General Release.
