March 20, 2007
Exhibit
10.22
March
20,
2007
Xxxxx
Xxxxxx
Dear
Xxx:
This
letter agreement (the “Agreement”) sets forth the terms that ViewSonic
Corporation (the “Company”) is offering to you to aid in your employment
transition.
1. RESIGNATION
AS CHIEF FINANCIAL
OFFICER. On June 8, 2007,
you shall resign from your position as Chief Financial Officer (the “Transition
Date”). This date may be extended by mutual agreement between
you and the Company; if this date is extended, then the Transition Date shall
be
the date after June 8, 2007 that the Company’s new Chief Financial Officer
commences employment. If the Company hires a new Chief Financial
Officer prior to June 8, 2007, and the new Chief Financial Officer does not
want
you to continue in the Chief Financial Officer role until June 8, 2007, then
you
shall resign your position as Chief Financial Officer (and your job title
will
change to Executive Advisor) but you shall remain as an employee pursuant
to the
terms of this Section 1 until June 8, 2007 (and June 8, 2007 shall be deemed
to
be the Transition Date). Until the Transition Date, you shall
continue to use your best efforts to perform your assigned duties and
responsibilities, including, without limitation, the preparation, verification,
and filing of the Company’s required SEC filings. You will continue
to receive your full current salary and benefits until the Transition Date,
and
you will continue to comply with all of the Company’s policies and procedures
during this time. On the Transition Date, the Company will pay you
the gross amount of $5,000.00 for you to select and obtain appropriate
outplacement services.
2. TRANSITION
PERIOD. Provided that you: (i) sign
this Agreement; and (ii) allow the release contained herein to become effective;
and (iii) comply with all of your obligations under this Agreement, then
commencing on the Transition Date and continuing until June 30, 2008 (the
“Termination Date”), the Company shall retain you as an employee of the Company
in the position of Executive Advisor. This period shall be referred
to herein as the “Transition Period.” During the Transition
Period, the following terms will apply:
(a) Duties
and responsibilities. During the Transition Period, you will be
available to provide services to the Company as requested, on a flexible
schedule basis. Your duties will be as assigned by the Company’s CEO
and/or new CFO and will include, among other things, assisting the new CFO
with
his duties and responsibilities and with special projects within the Company’s
Finance organization. You agree to utilize your best efforts in
performing your assigned duties during the Transition Period. The
Company agrees to notify you in writing promptly if at any time during the
Transition Period it believes that you are not in compliance with your
obligations under this Agreement. The Company further agrees to
provide you with twenty (20) days’ notice and opportunity to cure, if curable,
at the time such written notice is provided specifying the issues
involved.
(b) Other
work during the Transition Period. You may engage in
employment, consulting or other work relationships in addition to your work
for
the Company during the Transition Period provided that such employment,
consulting or other work relationship is not with a competitor of the Company
and does not violate your continuing obligations to maintain the confidence
and
confidential information of the Company as set forth in the Employee
Confidentiality and Invention Assignment Agreement executed by you and
incorporated by reference herein and attached hereto as Exhibit A (the
“Confidentiality Agreement”). The Company agrees to make reasonable
arrangements to enable you to perform your work for the Company at such times
and in such a manner so that it does not unreasonably interfere with other
work
activities in which you may engage.
(c) Transition
Period Salary. From the Transition Date until the
Termination Date, the Company will pay you an amount equal to six (6) months
of
your current base salary (the “Transition Period Salary”). The
Transition Period Salary will be paid in equal installment amounts on the
Company’s standard payroll dates during the Transition Period and will be
subject to standard deductions and withholdings.
(d) Transition
Period Benefits. During the Transition Period, you will be
entitled to continue your participation in the following Company benefit
plans
pursuant to the terms of those plans: (i) group health medical
insurance; (ii) group health dental insurance; (iii) company-sponsored life
insurance; (iv) 401(k) plan (including the Company’s matching contribution); and
(v) short term and long term disability insurance. You will not,
however, continue to accrue vacation days, sick days or other paid time off
during the Transition Period, nor will you be entitled to any automobile
allowance during this period.
3. SEVERANCE
HEALTH BENEFITS. To the extent provided by the
federal COBRA law and the state Cal-COBRA law, and by the Company’s current
group health insurance policies, you will be eligible to continue your current
group health insurance benefits for a period of thirty-six (36) months after
the
Termination Date. If you: (i) timely elect continued
health insurance coverage under COBRA and Cal-COBRA; and (ii) sign the
Termination Date Release attached hereto as Exhibit B on or within 21 days
after
the Termination Date; and (iii) allow this Termination Date Release to become
effective; then the Company will pay the cost of continuing your health
insurance benefits for a period of three (3) months after the Termination
Date.
4. TERMINATION
DATE PAYMENT. As of the Termination
Date, you will cease to be employed by the Company in any
capacity. On the Termination Date, the Company will pay you all
accrued salary earned through the Termination Date, subject to standard payroll
deductions and withholdings. However, the Company will pay you for
all accrued and unused Paid Time Off (“PTO”) on the Transition
Date. You are entitled to payment for all accrued salary, and all
accrued and unused PTO, regardless of whether you sign this
Agreement.
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2 of 11
5. STOCK
OPTIONS. During your employment with the
Company, you were granted options to purchase shares of the Company’s common
stock (the “Options”) under the Company’s 1999 Stock Option Plan (the
“Plan”). All of the Options currently are vested. Pursuant
to the terms of the Plan, you shall have the right to exercise your Options
up
to the date that is three (3) months after the Termination Date (the
“Post-Termination Date Exercise Period”); provided, however, that if you are
unable to exercise your vested Options and sell the shares acquired upon
such
exercise during the Post-Termination Date Exercise Period due to a lock-up
agreement entered into in connection with the Company’s initial public offering,
then the Board will extend your Post-Termination Date Exercise Period for
an
additional thirty (30) days for each full thirty (30) day period during the
Post-Termination Date Exercise Period during which the shares acquired upon
exercise of your Options are subject to lock-up; provided, however, that
in no
event shall the Post-Termination Exercise Date be extended to a date that
is
after December 31, 2008. Except as modified herein, the Options shall
continue to be governed by the terms of the Plan and the applicable grant
notices.
6. LONG
TERM INCENTIVE PLAN. You will continue to participate
in the Company’s Long Term Incentive Program (the “Incentive Program”) pursuant
to the terms of that Program; provided, however, that you shall be eligible
to
receive vesting of one-third (1/3) of your Target Award (as defined in the
Incentive Program) if the Company meets or exceeds both its Revenue Target
and
Income Target for the first two quarters of the fiscal year ending December
31,
2007. For purposes of this Section 6 only, the Performance Targets
set forth on Exhibit B to the Incentive Program shall be prorated based upon
the
first two quarters of fiscal year 2007. Notwithstanding
the terms of the Program, the Determination Date (as defined in the Incentive
Program) for you shall occur within thirty (30) days following the date the
Company files its Quarterly Report on Form 10-Q with the SEC for the second
quarter of fiscal year 2007. You also hereby waive and release any
eligibility or entitlement you may have to any further compensation or benefits
under the Incentive Program except as set forth herein. Except as
expressly modified in this Section 6, any compensation or benefits under
the
Incentive Program shall be governed by the terms of the Incentive
Program.
7. INDEMNIFICATION. Nothing
in this Agreement shall affect any rights you may have to indemnification
from
the Company or its insurance carriers pursuant to agreement, statute, insurance
policy, or otherwise. The Indemnity Agreement between you and the
Company shall remain in full force and effect.
8. NO
OTHER COMPENSATION OR BENEFITS
THEREAFTER. You acknowledge and
agree that except as expressly provided in this Agreement, you will not receive
any additional compensation, severance or benefits (including, but not limited
to, long term disability, short term disability or life insurance) after
the
Termination Date.
9. EXPENSE
REIMBURSEMENTS. You agree that
within thirty (30) days after the Termination Date, you will submit your
request
for reimbursement of any business expenses incurred during your employment
which
have not previously been reimbursed. The Company will reimburse you
for these expenses pursuant to its standard business practice.
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3 of 11
10. RETURN
OF COMPANY PROPERTY. You agree that on or before the
Termination Date, you will make a diligent search and return to the Company
all
Company documents (in electronic, paper or any other form as well as all
copies
thereof) and other Company property that you have had in your possession
at any
time, including, but not limited to, Company files, notes, drawings, records,
business plans and forecasts, financial information, specifications,
computer-recorded information, tangible property including, but not limited
to,
computers, credit cards, entry cards, identification badges and keys; and
any
materials of any kind that contain or embody any proprietary or confidential
information of the Company (and all reproductions thereof). You agree
to make a diligent search for all such Company property. If you have
used any personal computer, server, or e-mail system to receive, store, review,
prepare or transmit any Company confidential or proprietary data, materials
or
information, you agree to provide the Company with a computer-useable copy
of
such information and then permanently delete and expunge such Company
confidential or proprietary information from those systems; and you agree
to
provide the Company access to your system as requested to verify that the
necessary copying and/or deletion is done. You agree that, after the
Termination Date, you will neither use nor possess Company
property.
11. PROPRIETARY
INFORMATION OBLIGATIONS. You acknowledge your
continuing obligations under your Confidentiality Agreement, which you entered
into when you began your employment with ViewSonic.
12. NONDISPARAGEMENT. You
agree not to disparage the Company, and its officers, directors, employees,
shareholders and agents, in any manner likely to be harmful to it or them,
or to
its or their business, business reputation or personal reputation; provided
that
you shall respond accurately and fully to any question, inquiry or request
for
information when required by legal process. You further agree that
any material breach of this provision on your part shall be considered a
material breach of this Agreement. The Company likewise agrees that its
management shall not disparage you in any manner likely to be harmful to
your
future employment, business reputation, or personal reputation, provided
that
you refer all inquiries about you to the attention of Xxx Xxxxxxxx and the
Company shall respond accurately and fully to any question, inquiry, or request
for information when required by legal process. The Company agrees
that any material breach of this provision on its part shall be considered
a
material breach of this Agreement; provided, however, that even in the event
of
a material breach of this Section 12 by the Company, your Releases set forth
in
Sections 14, 15, and 16, and Exhibit B, herein shall remain in full force
and
effect. Both you and the Company agree to provide each other with
immediate written notice of a claimed breach of this provision and to meet
and
confer in good faith over any alleged breach prior to ceasing performance
or
filing a demand for arbitration hereunder.
13. NO
WORKERS’ COMPENSATION OR LEAVE CLAIMS. You
acknowledge and agree that you have not filed any claims for workers’
compensation, short-term disability, or long-term disability nor are you
aware
of any medical condition that could give rise to such a
claim. You also agree that you have received any leave benefits
to which you are entitled pursuant to the federal Family and Medical Leave
Act
and similar state statutes.
Page
4 of 11
14. RELEASE
BY YOU. In exchange for the benefits
to be provided under this Agreement (including the Transition Period
compensation and benefits and Severance Health Benefits), and other
consideration under this Agreement to which you would not otherwise be entitled,
you hereby generally and completely release the Company and its directors,
officers, employees, shareholders, partners, agents, attorneys, predecessors,
successors, parent or subsidiary entities, insurers, affiliates and assigns
from
any and all claims, liabilities and obligations, both known and unknown,
that
arise out of or are in any way related to events, acts, conduct, or omissions
prior to or on the date you sign this Agreement. This general release
includes, but is not limited to: (1) all claims arising out of or in any
way
related to your employment with the Company or the termination of that
employment; (2) all claims related to your compensation or benefits from
the
Company, including salary, bonuses, commissions, vacation pay, expense
reimbursements, severance pay, fringe benefits, stock, stock options or any
other ownership interests in the Company; (3) all claims for breach of contract,
wrongful termination or breach of the implied covenant of good faith and
fair
dealing; (4) all tort claims, including claims for fraud, defamation, emotional
distress and discharge in violation of public policy; and (5) all federal,
state, and local statutory claims, including claims for discrimination,
harassment, retaliation, attorneys’ fees, or other claims arising under the
federal Civil Rights Act of 1964 (as amended), the federal Americans with
Disabilities Act of 1990, the federal Age Discrimination in Employment Act
of
1967 (as amended) (the “ADEA”), or the California Fair Employment and Housing
Act (as amended) (“FEHA”). Notwithstanding anything in this
paragraph, you are not hereby releasing the Company from any obligation it
may
otherwise have to indemnify you for your acts within the course and scope
of
your employment with the Company, nor from any obligations undertaken by
the
Company in this Agreement.
15. ADEA
WAIVER. You hereby acknowledge that you
are knowingly and voluntarily waiving and releasing any rights and claims
concerning age discrimination you may have under the ADEA and FEHA, and that
the
consideration given for the foregoing waiver is in addition to anything of
value
to which you were already entitled. You have been advised by this
writing, as required by the ADEA, that: (a) your waiver and release do not
apply
to any claims that may arise after the Effective Date of this Agreement;
(b) you
should consult with an attorney prior to executing this release; (c) you
have
twenty-one (21) days from receipt of this letter within which to consider
this
release (although you may choose to voluntarily execute this release earlier);
(d) you have seven (7) days following the execution of this release to revoke
the Agreement by notifying the Company in writing; and (e) this Agreement
will
not be effective until the eighth day after this Agreement has been signed
both
by you and by the Company and not revoked by you (“Effective
Date”).
16. SECTION
1542 WAIVER. In granting the
releases herein, which may include claims that are unknown at present, the
parties acknowledge that they have read and understand Section 1542 of the
California Civil Code: “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.” Except as provided in Section
15 herein, the parties hereby expressly waive and relinquish all rights and
benefits under that section and any law of any jurisdiction of similar effect
with respect to the release of any unknown or unsuspected claims
herein.
17. PARTIAL
RELEASE BY COMPANY. In consideration for
your fulfilling your obligations under this Agreement, the Company hereby
releases you from any and all claims, liabilities and obligations, both known
and unknown, that arise out of or are in any way related to events, acts,
conduct, or omissions prior to or on the date you sign this Agreement, except
that this release shall not extend to: (1) claims based on willful or fraudulent
acts or omissions by you; (2) claims that may arise after this Agreement
is
executed; and (3) claims arising at any time out of your obligations to protect
the Company’s proprietary information. You represent that you have
disclosed to the Company all the facts and circumstances surrounding any
claims
of which you have actual or constructive knowledge that any third party may
assert against the Company based on your acts or omissions.
Page
5 of 11
18. NO
VOLUNTARY ADVERSE ACTION. You agree
that you will not voluntarily (except in response to legal compulsion) assist
any third party in bringing or pursuing any proposed or pending litigation,
arbitration, administrative claim or other formal proceeding against the
Company, its parent or subsidiary entities, affiliates, officers, directors,
employees or agents.
19. COOPERATION. You
agree to cooperate fully with the Company in connection with its actual or
contemplated defense, prosecution, or investigation of any claims or demands
by
or against third parties, or other matters arising from events, acts, or
failures to act that occurred during the period of your employment by the
Company. Such cooperation includes, without limitation, making
yourself available to the Company upon reasonable notice, without subpoena,
to
provide complete, truthful and accurate information in witness interviews,
depositions and trial testimony. The Company will reimburse you for
reasonable out-of-pocket expenses you incur in connection with any such
cooperation (excluding forgone wages, salary, or other compensation) and
will
make reasonable efforts to accommodate your scheduling needs. In
addition, you agree to execute all documents (if any) necessary to carry
out the
terms of this Agreement.
20. NO
ADMISSIONS. Nothing contained in
this Agreement shall be construed as an admission by you or the Company of
any
liability, obligation, wrongdoing or violation of law.
21. MISCELLANEOUS. This
Agreement constitutes the complete, final and exclusive embodiment of the
entire
agreement between you and the Company with regard to this subject
matter. It is entered into without reliance on any promise or
representation, written or oral, other than those expressly contained herein,
and it supersedes any other such promises, warranties, representations or
prior
agreements with the Company. This Agreement may not be modified or
amended except in a writing signed by both you and a duly authorized officer
of
the Company. This Agreement will bind the heirs, personal
representatives, successors and assigns of both you and the Company, and
inure
to the benefit of both you and the Company, their heirs, successors and
assigns. If any provision of this Agreement is determined to be
invalid or unenforceable, in whole or in part, this determination will not
affect any other provision of this Agreement and the provision in question
will
be modified by the court so as to be rendered enforceable. This
Agreement will be deemed to have been entered into and will be construed
and
enforced in accordance with the laws of the State of California as applied
to
contracts made and to be performed entirely within California.
22. APPLICATION
OF INTERNAL REVENUE CODE SECTION
409A. If the Company determines that
any amounts payable under this Agreement fail to satisfy the distribution
requirement of Section 409A(a)(2)(A) of the Internal Revenue Code as a result
of
Section 409A(a)(2)(B)(i) of the Internal Revenue Code, the payment of such
benefit shall be accelerated to the minimum extent necessary so that the
benefit
is not subject to the provisions of Section 409A(a)(1) of the Internal Revenue
Code. (It is the intention of the preceding sentence to apply the
short-term deferral provisions of Section 409A of the Internal Revenue Code
to
such payments, and the payment schedule as revised after the application
of the
preceding sentence shall be referred to as the “Revised Payment
Schedule.”) However, if there is no Revised Payment Schedule that
would avoid the application of Section 409A(a)(1) of the Internal Revenue
Code,
the payment of such benefits shall not be paid pursuant to a Revised Payment
Schedule and instead shall be delayed to the minimum extent necessary so
that
such benefits are not subject to the provisions of Section 409A(a)(1) of
the
Internal Revenue Code. The Company may attach conditions to or adjust
the amounts paid pursuant to this Agreement to preserve, as closely as possible,
the economic consequences that would have applied in the absence of this
Section
20; provided, however, that no such condition or adjustment shall
result in the payments being subject to Section 409A(a)(1) of the Internal
Revenue Code. The Company shall provide you with appropriate written
notice and an opportunity to respond if there is a need to modify in any
way the
payment of any benefits under this Agreement pursuant to this
paragraph.
Page
6 of 11
23. DISPUTE
RESOLUTION. Any action to interpret
or enforce this Agreement will be subject to final and binding arbitration
in
Orange County, California, before Judicial Arbitration and Mediation Services
(“JAMS”) pursuant to JAMS then-current rules for the resolution of employment
disputes. The prevailing party in any such arbitration will be
entitled to recover his or its reasonable attorneys’ fees and costs in
connection with the arbitration.
If
this
Agreement is acceptable to you, please sign below and return the original
to
me.
I
wish
you good luck in your future endeavors.
Sincerely,
VIEWSONIC
CORPORATION
By:
|
/s/
Xxx Xxxxxxxx
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|
|
Xxx
Xxxxxxxx, Vice President Corporate HR
|
|
ACCEPTED
AND AGREED:
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||
/s/
Xxxxx Xxxxxx
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||
Xxxxx
Xxxxxx
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Date:
March 21, 2007
Page
7 of 11
EXHIBIT
A
CONFIDENTIALITY
AGREEMENT
VIEWSONIIC
CORPORATION
Employee
Confidentiality and
Invention
Assignment Agreement
I
hereby
acknowledge and agree as follows with VIEWSONIC CORPORATION (the “Company”) in
connection with my employment or the continuance of my employment (as the
case
may be) with the Company.
I.
|
No
Term ofEmployment. I acknowledge and agree that my employment
with the Company is not for any fixed term, and that my employment
will
continue only at the will of both the Company and me. I agree
that this
means my employment may be terminated at any time for any reason
or for no
reason, either with or without cause, either by me or the
Company.
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2.
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No
Conflicts with PriorEmployment. I represent that my employment
with the Company will not conflict with any obligations which
I have to
former employers or any other persons. I specifically represent
that I
have not brought to the Company (and will not bring to the Company)
any
materials or documents of a former employer, or any confidential
information or property of a former
employer.
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3.
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PriorInventions.
As a matter of record, and in order to assist the Company in
determining
its rights to any discoveries and inventions in connection with
my
employment, I have listed (at the end of the Agreement) all inventions,
copyrighted material, patents and patent applications which I
own or have
any interest in and which were conceived of, or first reduced
to practice,
prior to my employment with the Company, all of which shall remain
my
property. If nothing is listed below, I agree that the Company
may
conclusively assume that I claim no interest in any inventions,
copyrighted material, patents or patent
application.
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4.
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Confidential
Information. I understand that as part of my employment with the
Company I am expected to make new contributions of value to the
Company. I
also acknowledge that, during my employment, I will learn information
relating to the Company (and its business and products) which
has
commercial value to the Company and which the Company desires
to keep
confidential. This confidential information will include such
things as
trade secrets, techniques, know-how, discoveries, inventions,
marketing
information, business strategies, information regarding customers
and
suppliers, and any other information (whether or not necessarily
in
writing) which may be useful to the Company and which is not
generally
available to the public (all of this information is referred
to in this
Agreement as “Confidential Information”). I agree that all such
Confidential Information will be the sole property of the Company,
and I
agree that I will not disclose any Confidential Information to
any other
person (except solely in performing my duties as an employee
of the
Company), and that I will otherwise keep all Confidential Information
in
strictest confidence and not use it for any purpose adverse to
the
Company.
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Page
8 of 11
5.
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Inventions
During Employment. I agree that all discoveries and inventions which
relate in any manner to the business or the future business of
the
Company, and which are conceived, authored or made by me (either
alone or
with others) during my employment with the Company, will constitute
“work
for hire” and will be the sole property of the Company. I will promptly
disclose these discoveries and inventions to the Company in writing,
and I
will not disclose these discoveries and inventions to any other
persons. I
hereby assign to the Company all my right to such discoveries
and
inventions, and I will sign such additional documents, as the
Company from
time to time considers advisable in order to complete this assignment
and
to apply for patent or copyright protection in the name of the
Company. I
agree that, for purposes of this Agreement, the term “discoveries and
inventions” shall have the broadest meanings, including new products,
machines, methods, processes, software programs, improvements,
compositions of matter, and designs or
configurations.
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I
understand that the Company is hereby advising me that any provision in
this
Agreement requiring me to assign my rights in any invention does not apply
to an
invention which qualifies fully under the provisions of Section 2870 of
the
California Labor Code. That section provides that the requirement to assign
inventions “shall not apply to an invention that the employee developed entirely
on his or her own time without using the employer’s equipment, supplies,
facilities, or trade secret information except for those inventions that
either:
(1) relate at the time of conception or deduction to practice of the invention
to the employer’s business, or actual or demonstrably anticipated research or
development of the employer; (2) result from any work performed by the
employee
for the employer.” By signing this Agreement, I acknowledge that this paragraph
shall constitute written notice of those provisions of Section
2870.
6.
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Certain
FurtherAgreements. I agree that, since my employment with the
Company will involve a relationship of confidence and trust,
during my
employment I will not engage in any other employment or business
activities which are competitive with or otherwise conflict with
the
interests of the Company, and I will not plan or organize any
such
competing business activity.
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7.
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Certain
Obligations UponTerminationofEmployment. In the
event of the termination of my employment by me or by the Company
for any
reason, I will promptly deliver to the Company all documents
and other
materials of any nature pertaining to my work with the Company
which
contain any Confidential Information or any discoveries and inventions,
I
will not take with me any such documents or materials (or any
copies of
them), and I will continue to keep all Confidential Information
in
strictest confidence as required by paragraph 4 above. I also
agree that,
in recognition of my position of confidence and trust with the
Company
during my employment, for a period of one-year following such
termination
I will not solicit any of the Company’s employees to work for a
competitive company.
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8.
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Entire
Agreement. This Agreement is the entire agreement between the Company
and me regarding the above matters, and I represent that I am
not relaying
upon any contrary statements or understandings between me and
the Company
with regard to these matters.
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Dated:
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June
21, 2000
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EMPLOYEE
|
||
Xxxxx
X. Xxxxxx.
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||
(printed
name of employee)
|
||
/s/
Xxxxx X. Xxxxxx.
|
||
(signature
of employee)
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||
VIEWSONIC
CORPOARTION
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|||
By:
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/s/
Xxxxxx Xxxxxxx
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||
Its:
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HR
Manager
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Prior
Inventions (if any) —
see paragraph 3 above:
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(attach
additional pages if necessary)
Page
9 of 11
Exhibit
B
TERMINATION
DATE RELEASE
(To
be
signed on or within 21 days after the Termination Date)
In
exchange for the consideration under the Agreement between ViewSonic Corporation
(the “Company”) and me dated March 21, 2007, I hereby generally and completely
release the Company and its directors, officers, employees, shareholders,
partners, agents, attorneys, predecessors, successors, parent or subsidiary
entities, insurers, affiliates and assigns from any and all claims, liabilities
and obligations, both known and unknown, that arise out of or are in any
way
related to events, acts, conduct, or omissions prior to or on the date I
sign
this Agreement. This general release includes, but is not limited to:
(1) all claims arising out of or in any way related to my employment with
the
Company or the termination of that employment; (2) all claims related to
my
compensation or benefits from the Company, including salary, bonuses,
commissions, vacation pay, expense reimbursements, severance pay, fringe
benefits, stock, stock options or any other ownership interests in the Company;
(3) all claims for breach of contract, wrongful termination or breach of
the
implied covenant of good faith and fair dealing; (4) all tort claims, including
claims for fraud, defamation, emotional distress and discharge in violation
of
public policy; and (5) all federal, state, and local statutory claims, including
claims for discrimination, harassment, retaliation, attorneys’ fees, or other
claims arising under the federal Civil Rights Act of 1964 (as amended), the
federal Americans with Disabilities Act of 1990, the federal Age Discrimination
in Employment Act of 1967 (as amended) (the “ADEA”), or the California Fair
Employment and Housing Act (as amended)(“FEHA”). Notwithstanding
anything in this paragraph, I understand that I am not hereby releasing the
Company from any obligation it may otherwise have to indemnify me for acts
within the course and scope of my employment with the Company, nor from any
obligations undertaken by the Company in this Agreement.
ADEA
Waiver and Release. I acknowledge that I am knowingly and
voluntarily waiving and releasing any rights I may have concerning age
discrimination under the ADEA and FEHA, as amended. I also
acknowledge that the consideration given for the waiver and release in the
preceding paragraph hereof is in addition to anything of value to which I
was
already entitled. I further acknowledge that I have been advised by
this writing, as required by the ADEA, that: (a) my waiver and
release does not apply to any rights or claims that may arise after the
execution date of this Agreement; (b) I have been advised that I have the
right
to consult with an attorney prior to executing this Agreement; (c) I have
been
given twenty-one (21) days to consider this Agreement; (d) I have seven (7)
days
following the execution of this Agreement by the parties to revoke the
Agreement; and (e) this Agreement will not be effective until the date upon
which the revocation period has expired, which will be the eighth day after
this
Agreement is executed by you, provided that the Company has also executed
this
Agreement by that date (“Effective Date”).
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SECTION
1542 WAIVER. In granting the
releases herein, which may include claims that are unknown at present, I
acknowledge that I have read and understand Section 1542 of the California
Civil
Code: “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.” I hereby expressly waive and relinquish all rights
and benefits under that section and any law of any jurisdiction of similar
effect with respect to the release of any unknown or unsuspected claims
herein.
ACCEPTED
AND AGREED:
Xxxxx Xxxxxx
Date:______________________________________
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