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Exhibit 10.42
SEPARATION AGREEMENT AND RELEASE OF ALL CLAIMS
Xxx Xxxxx ("Employee") was employed by Cidco, Inc. ("Company") on or about June
28, 1996. The Company intends to sell the TelCo part of its business to CDCO
Communications, LLC headed by Xx. Xxxxx X. Xxx. Employee has been offered
employment with Cidco Communications, LLC. The transaction is scheduled to Close
on December 11, 2000. Therefore, the Company and Employee agree that Employee's
employment with the Company will terminate on December 11, 2000. In
consideration of the benefits offered to Employee as set forth and described in
Attachment A, Employee agrees on behalf of himself, heirs, executors,
administrators, successors, and assigns, fully and forever does RELEASE and
DISCHARGE the Company, its officers, directors, agents, employees, affiliates,
representatives, successors and assigns from any and all claims and causes of
action arising out of or relating in any way to the Employee's employment with
the Company, including, but not limited to, the offer and termination of
employment. The benefits described in Attachment A are a complete ad final list
of Employee's benefits.
1. Employee understands and agrees that this RELEASE is a full and complete
waiver of all claims, including but not limited to, claims of wrongful
discharge, breach of contract, breach of the covenant of good faith and
fair dealing, violation of public policy, defamation, personal injury,
emotional distress, claims under Title VII of the 1964 Civil Rights Act,
as amended, the California Fair Employment and Housing Act, the Equal
Pay Act of 1963, California Labor Code Section 1197.5, the Age
Discrimination in Employment Act of 1967, the Americans with
Disabilities Act, the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), and under any other comparable state or federal
laws and regulations relating to employment or employment
discrimination. The only exceptions are claims Employee may have for
unemployment compensation and workers' compensation.
2. Employee understands and agrees that he will receive, regardless of the
execution of this RELEASE, all salary owed together with any accrued but
unused vacation pay, less deductions, in the final paycheck earned
through termination date.
3. In addition, and in further consideration of the foregoing, Employee
acknowledges that in the future he may discover facts different from or
in addition to those which he now knows or believes to be true and that
this RELEASE shall be and remain effective in all respects
notwithstanding such different or additional facts or the discovery of
such facts. Furthermore, in consideration of the foregoing, Employee
hereby expressly waives any and all rights and benefits conferred upon
him by the provisions of Section 1542 of the Civil Code of the State of
California and/or any analogous law of any other state, which states as
follows:
A general release does not extend to claims which the creditor
[employee] 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 [Company].
4. Assuming they are not part of the transferred assets under the sale of
the TelCo business, as part of the existing and continuing obligation to
the Company, Employee will return within seven (7) days of termination
all Company Information, including files, records, computer access codes
and instructions manuals, as well as any Company assets or equipment
that he has in my possession or under control. Employee further agree
not to keep any copies of Company Information. Employee affirms the
obligation to keep all Company Information confidential and not to use
or disclose it to any person, company or other third party in the
future. Employee understands that the term "Company Information"
includes, but is not limited to, the following:
(a) Confidential business or technical information of the
Company, including information received from third
parties under confidential conditions; and
(b) All other trade secret and proprietary information of
the Company including technical, scientific, marketing,
business, personnel, product development, know-how or
financial information, and any other
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information, the use or disclosure of which might
reasonably be determined to be contrary to the interests
of the Company.
The Company's Proprietary Information Agreement is incorporated herein
by this reference.
5. Employee agrees for a period of one (1) year he will not solicit,
encourage, or cause others to solicit or encourage any employees,
contractors or customers of the Company and/or any of its affiliates,
subsidiaries or parent companies to terminate their employment or
business relationship with the Company.
6. Employee agrees to keep this RELEASE confidential and not to reveal its
contents to anyone except my lawyer, my spouse and/or my financial
consultant.
7. All disputes under this RELEASE will be settled by arbitration in the
County of Santa Xxxxx, in accordance with the rules of the American
Arbitration Association, or its successor, and judgment upon the award
rendered may be entered in any court with jurisdiction. If there is a
dispute with respect to this RELEASE, each party will be responsibly for
its own attorney fees and other costs and expenses incurred in resolving
the dispute.
8. This RELEASE contains the entire agreement between the Company and
Employee with respect to any matters referred to in the RELEASE and
supersedes any previous oral or written agreements.
9. If any one or more of the previsions contained in this RELEASE is, for
any reason, held to be unenforceable, that holding will not affect any
other provision of this RELEASE, but, with respect only to that
jurisdiction holding the provision to be unenforceable, this Release
shall then be construed as if such unenforceable provision or provisions
had never been contained therein.
10. Before executing this RELEASE, Employee agrees he has obtained
sufficient information to intelligently exercise his own judgment about
the terms of the RELEASE. Employee understand that he may discuss this
RELEASE with an attorney of his own choosing before signing this
RELEASE.
11. Employee understands for a period of seven (7) days after signing this
RELEASE, Employee may revoke this RELEASE and that the RELEASE will not
become effective until seven (7) days after Employee signs it, and only
then if Employee does not revoke it. In order to revoke this RELEASE,
Employee must deliver to the Company's Vice President of Human
Resources, by no later than seven (7) days after Employee executes this
RELEASE, a letter stating that Employee is revoking it.
12. This agreement will be governed by California law.
EMPLOYEE'S ACCEPTANCE OF RELEASE
BEFORE SIGNING MY NAME TO THIS RELEASE, I STATE THAT: I HAVE READ IT; I
UNDERSTAND IT AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS; I AM AWARE OF MY
RIGHT TO CONSULT WITH AN ATTORNEY BEFORE SIGNING IT; AND I HAVE SIGNED IT
KNOWINGLY AND VOLUNTARILY.
Date delivered to employee:
Executed this day of:
Employee's Signature:
Printed Name: Xxx Xxxxx
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Cidco, Inc.
By:
Date:
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Attachment A
Company shall pay Employee one hundred thousand dollars ($100,000) on or before
January 11, 2000.
Company shall pay Employee one hundred thousand dollars if Employee is
involuntarily terminated by Cidco Communications (Xxxxx Xxx) prior to June 11,
2001.
The Company agrees to honor the treatment of the Employee's stock options as set
forth in Section 5 of the Employment Agreement between Employee and the Company
executed June 4, 1998. Payments and benefits provide by Section 4 (and/or other
Sections) of the Employment Agreement do not survive and are not part of
benefits offered to the Employee under this Agreement.
Acknowledged:
Xxx Xxxxx:
Cidco, Inc.
