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EXHIBIT 10.41
AGREEMENT (INCLUDING RELEASE AND WAIVER OF CLAIMS) ASSOCIATED WITH
TERMINATION OF EMPLOYMENT
This Agreement is made effective as of September 1, 2000 (the "Effective Date")
by and between Xxxxxx Xxxxxxxx ("Xxxxxxxx") and NextCard, Inc. ("NextCard"). The
parties agree as follows:
1. Springer has decided voluntarily to terminate his employment with
NextCard. Effective as of September 1, 2000, Springer hereby resigns
all offices and positions with NextCard and all related subsidiaries or
affiliated entities as of such date.
2. Springer acknowledges that he received a payment of $10,474.35 (after
normal withholding) on September 1, 2000, in settlement of accrued but
unpaid wages subject to normal withholding), payment (at normal wage
rates and subject to normal withholding) for all accrued and unused
vacation through September 1, 2000, (it being acknowledged that accrued
and unused vacation of approximately 198.03 hours), reimbursement for
expenses properly incurred on behalf of NextCard, subject to NextCard
policies and limitations with respect to reimbursable expenses, and
reimbursement of $1,479.90 for the refund of Employee Stock Purchase
Plan (ESPP) withholdings.
3. Springer acknowledges each of his obligations under the existing
Confidentiality and Inventions Agreement between Springer and NextCard
(a copy of which is attached hereto), and acknowledges that within 10
days after the Effective Date he will return to NextCard all
confidential or proprietary NextCard materials (including all copies
thereof) in his possession or under his control.
4. Each party agrees to make no public or voluntary statement (whether
orally or in writing) disparaging of, or likely to damage the
reputation of, the other (including, in the case of NextCard, any
affiliate of NextCard, or any officer, director or employee of
NextCard). Nothing in this Section is intended to require Springer or
any officer, director or employee of NextCard to testify other than
truthfully when testifying as required by law. Additionally, NextCard
shall notify relevant employees that all reference requests concerning
Springer's employment at NextCard should be referred to Xxxxxx Xxxx.
5. Springer acknowledges that he received a grant under NextCard Inc.'s
1997 stock plan of 382,500 shares issued at approximately $.06 / share
with a vesting start date of March 6, 1998 (all calculations on a
post-split basis). Springer and NextCard agree to the following
amendments and acknowledgements related to such options and the option
agreement related thereto.
(a) The unvested portion (as defined in the relevant option
agreement), as of the Effective Date, of the 382,500 option grant,
reflecting options to purchase 151,407 shares of Common Stock of
NextCard (hereafter referred to as the "Accelerated Portion"), will
become fully vested and exercisable during the ninety day period
commencing eighteen
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months after the Effective Date (or such earlier date as NextCard in
its sole discretion may determine and notice to Springer so long as it
waives the applicability of the conditions set forth below as to the
period after such earlier date), subject to the satisfaction of each of
the following conditions precedent:
i. Intentionally omitted.
ii. Subsequent Engagement. For a period of eighteen
months after the Effective Date, Springer shall not have become
employed by, render services to, become associated with, create, or
invest in (other than investments in public companies at the level of
not more than 1%) any of the following businesses: (i) businesses that
involve the extension of consumer credit (but in the case of employment
or rendering of services, only to the extent that Springer's employment
or rendering of services actively involves the consumer credit side of
such a business); (ii) development of internet based payment systems,
including any business involved, as a primary focus of its business, in
internet-based person to person payments or electronic xxxx presentment
or payment; (iii) electronic banking; (iv) electronic wallet companies;
or (v) businesses involving the direct marketing of financial services.
NextCard reserves the right to waive this condition in particular
cases.
iii. No Breach, etc. Springer shall not have breached
any contractual obligation to NextCard and, for a period of eighteen
months after the Effective Date, Springer shall not have directly or
through others caused an employee of NextCard to leave the employ of
NextCard, whether or not Springer's pre-existing non-solicitation
clause is breached.
iv. Marketing Partners. For a period of eighteen
months after the Effective Date, Springer shall not have directly or
through others caused, instigated or played a material role in a
NextCard marketing partner terminating its relationship with NextCard.
v. Sale of Shares. Springer shall not have sold (or
effectively sold or limited risk through the use of puts, calls, short
sales, derivatives, etc.) any shares of NextCard stock (other than up
to a total of 90,000 shares prior to December 31, 2000 for the payment
of federal and state income tax liabilities associated with the
exercise of NextCard shares, of which not more than 30,000 shall have
been sold in any week) prior to the earliest to occur of (1) one year
from the Effective Date; or (2) NextCard stock reaching a price (based
on close of market NASDAQ quotations) of at least $20 per share (as
appropriately adjusted from the Effective Date for stock splits,
combinations, etc.) and maintaining that price for at least 30
consecutive trading days. Additionally, Springer shall not have sold
any shares of NextCard stock so long as he is considered an "Insider"
of NextCard for SEC or reporting purposes. Prior to any sale of
NextCard stock, Springer must receive a written affirmation from
NextCard's General Counsel, or his designee, regarding his status.
Springer shall not have violated any applicable securities laws or
Company policies associated with the sale of shares in NextCard. Upon
the request of Springer, NextCard's general counsel (subject to receipt
from Springer of such assurances as such general counsel may request)
shall advise Springer if
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his proposed sale would violate any applicable Company policies and, if
so, which policies would be violated.
Springer acknowledges and agrees that the Accelerated Portion will be
disqualified from treatment, under the United States Internal Revenue
Code, as an Incentive Stock Option, and that such portion instead will
be treated as a non-qualified stock option for tax purposes. Springer
and NextCard acknowledge and agree that the foregoing conditions are
not covenants of Springer. For example, the foregoing is not a
"non-compete" agreement; Springer is free to compete with NextCard,
absent any breach of trade secret and/or other continuing obligations
to NextCard, but any competition that violates the foregoing conditions
will result in the loss of the accelerated vesting rights described
above, to which he is not otherwise entitled.
It is NextCard's intent to notify Springer promptly if, during the
18-month period following the Effective Date, NextCard's Chief
Executive Officer comes to the conclusion that Springer has failed to
satisfy any of the conditions set forth in this Section 5(a). For a
period of seven days thereafter, Springer will have the right to cure
such failure if and to the extent same is curable without damage to
NextCard. However, NextCard shall not be obligated to take any
affirmative steps to monitor Springer's activities, and any failure to
so notify will not affect the provisions hereof.
(b) The unvested portions of any other stock option grants
will expire as of the Effective Date and will not at any time be or
become exercisable.
6. GENERAL RELEASE AND WAIVER OF CLAIMS:
x. Xxxxxxxx Releases Claims Against NextCard, Inc. Springer, on behalf
of himself, his heirs and successors in interest, fully releases and
discharges NextCard and its officers, directors, employees, attorneys,
subsidiaries, affiliated companies and successors in interest from any
and all claims, lawsuits, charges and liabilities of every kind which
may exist against NextCard and such persons and entities as of the
Effective Date arising out of or based on his employment relationship
with NextCard or the termination of that relationship.
b. Intentionally omitted.
c. Release Includes Employment-Related Claims. This release and waiver
is intended to cover any and all claims which Springer may have against
NextCard or the released persons arising out of or based upon his
employment with NextCard or the termination of that employment,
including any employment-related claims such as racial discrimination,
sex discrimination, disability discrimination, claims under Civil
Rights Act of 1964 (Title VII), claims under the Americans with
Disabilities Act, claims under the California Fair Employment and
Housing Act, the California Labor Code, and any other federal or state
states barring discrimination in employment of any kind, and any claims
in tort or contract related to Springer's employment; claims associated
with any compensation paid or alleged to be due to Springer for
services rendered to or for NextCard and its affiliates, whether in
cash or stock or pursuant to any equity-based program of which Springer
was
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a participant or to which he may have been eligible; and any claims
associated with any acts or omissions of NextCard or any of the
released persons arising out of or based upon Springer's employment and
the termination of that employment. This release does not extend to
claims to enforce this Agreement, claims by Springer under rights to
indemnification contained in the Certificate of Incorporation or Bylaws
of NextCard or under applicable law (which rights NextCard hereby
acknowledges), or claims arising out of future actions, omissions or
events unrelated to past actions, omissions or events.
d. Release Includes Claims, Whether Known Or Unknown, Existing Prior to
Signing of Agreement. This general release and waiver extends to all
claims which existed before the Effective Date, and Springer expressly
waives all rights under Section 1542 of the California Civil Code. That
Section reads as follows:
"1542. 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 to him must have materially affected his
settlement with the debtor."
x. Xxxxxxxx Releases Any and All Rights to Participation in Any and All
Bonuses. Springer, on behalf of himself, his heirs and successors in
interest, fully releases and discharges any and all rights to
participation in any and all bonuses offered by NextCard to its
employees in exchange for the payment to Springer, contemporaneously
herewith, of the cash sum of $25,000 (subject to applicable
withholding).
7. Springer acknowledges that in connection with Springer's termination of
employment that NextCard has acted properly and not unlawfully in any
respect. Springer and NextCard agree not to not make any public
statement about the termination of employment except as approved in
advance by the other party or as required by applicable law. NextCard
acknowledges that it knows of no claims that it has against Springer
that Springer has acted improperly or unlawfully in any respect in
connection with his relationship with NextCard.
8. By executing this Agreement, Springer expressly agrees that this
Agreement shall be a bar to all claims of Springer released herein.
Springer further agrees and represents that he has not transferred or
assigned any such claims claimed or suspected by him. This Agreement
constitutes the entire agreement between Springer and NextCard with
respect to the subject matter hereof and supersedes all prior or
contemporaneous agreements, representations or understandings. Springer
and NextCard are executing this Agreement voluntarily and with a full
understanding of its terms. This document may not be changed orally and
shall be construed under and governed by the laws of the State of
California, without regard for its conflict of law provisions. The
parties acknowledge and agree that each has the opportunity to consult
with counsel of its or his own choosing, and that no provision hereof
is to be construed against any party as the draftsperson of this
Agreement, it being acknowledged that each party has had an opportunity
to participate in its creation.
9. All payments, distributions and disbursements due to Springer from all
NextCard qualified employee benefit plans of which Springer was a
participant on the date of his
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termination, if any, shall be made to Springer in accordance with the
respective provisions of those plans. Nothing herein will affect
Springer's eligibility for temporary continuation, at Springer's
expense, of health insurance benefits under COBRA.
10. This Agreement and the respective rights and obligations of the parties
shall inure to the benefit of and be binding on their respective
successors, assigns and legal representatives, including Springer's
estate, executors, administrators, heirs, legatees or devisees.
11. This Agreement has been duly authorized, executed and delivered by the
parties hereto and constitutes the valid and binding obligation of the
parties, enforceable against the parties in accordance with its terms.
This Agreement shall be construed, interpreted and enforced in
accordance with the laws of the State of California without reference
to any conflict of law provisions.
ACKNOWLEDGED AND AGREED TO:
______________________ NextCard, Inc.
Xxxxxx Xxxxxxxx
By:______________________
Its:______________________
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[CONFIDENTIALITY AGREEMENT TO BE ATTACHED HERE]
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