EXHIBIT 10.24
SEPARATION AGREEMENT
This Separation Agreement (the "AGREEMENT") is entered into effective
as of March 26, 2001 by and between IGO CORPORATION, a Delaware corporation (the
"COMPANY"), and XXX XX XXXX, an individual ("XX. XX XXXX").
WHEREAS, Xx. xx Xxxx has been employed by the Company as an officer;
and
WHEREAS, Xx. xx Xxxx wishes to submit his resignation and in connection
therewith, the Company and Xx. xx Xxxx have mutually agreed to the separation
terms set forth herein;
NOW, THEREFORE, the parties agree as follows:
1. TERMINATION. The Company and Xx. xx Xxxx acknowledge and agree that
Xx. xx Xxxx hereby resigns from his position as an officer of the Company (and
any subsidiaries thereof) effective as of March 26, 2001 (the "LEAVE DATE") and
from his employment with the Company (and any subsidiaries thereof) effective as
of the close of business on January 4, 2002 (the "TERMINATION DATE"). Between
the Leave Date and the Termination Date, Xx. xx Xxxx will be on a leave of
absence from the Company. Xx. xx Xxxx acknowledges and agrees that following the
Leave Date, he has no authority to enter into agreements or make any commitments
on the Company's behalf or to conduct any negotiations or discussions as (or
hold himself out as) an agent or representative of the Company, and hereby
covenants and agrees not to do so.
2. COMPENSATION. The Company will:
(a) continue to pay Xx. xx Xxxx'x base salary (as of the Leave
Date) through the Termination Date in accordance with the Company's normal
payroll practices and subject to applicable withholdings; and
(b) receive from Xx. xx Xxxx an amount equal to $1,457.96,
representing the amount of net overpayment of bonuses and commissions to him
through the Leave Date. The parties agree that this amount will be offset
against the amount payable to Xx. xx Xxxx pursuant to Section 3(b) below and
that Xx. xx Xxxx'x payment pursuant to Section 3(b) will be net of the offset
amount (for a total of $7,932.43, less applicable withholdings). Xx. xx Xxxx
will not be entitled to receive any other bonus or commission payments from the
Company.
3. BENEFITS.
(a) Xx. xx Xxxx shall have the right to continued employee
healthcare insurance benefits through the Termination Date.
(b) The Company shall promptly pay Xx. xx Xxxx for accrued but
unused vacation time (totaling $9,390.39 based on 122.08 hours of accrued
vacation, less the amount offset pursuant to Section 2(b) above and applicable
withholdings) through the Leave Date.
(c) The Company will promptly reimburse Xx. xx Xxxx for any
properly documented iGo business expenses incurred on or before the Leave Date
provided that such documentation has been submitted by Xx. xx Xxxx prior to the
execution of this Agreement.
(d) Xx. xx Xxxx'x existing stock options with the Company will
continue to vest through the Termination Date and shall be exercisable (to the
extent then vested) through the Termination Date and for the period of time
thereafter as may be set forth in the applicable stock option agreements. Xx. xx
Xxxx'x stock options will not be subject to any repricing or other adjustments
that may be conducted by the Company with respect to other stock options on or
prior to the Termination Date. The Company believes that Xx. xx Xxxx'x stock
options will convert from incentive stock options to non-qualified stock options
under applicable federal tax laws after three months from the Leave Date;
however the parties acknowledge that Xx. xx Xxxx shall be responsible for
seeking his own personal legal and tax advice as to the status, timing and
exercise of his Company stock options.
(e) From and after the Leave Date, other than as set forth in
this Agreement, Xx. xx Xxxx will have no further entitlement to any employee
benefits from the Company or its subsidiaries.
4. NO OTHER PAYMENTS DUE. The parties acknowledge and agree that the
consideration set forth in Sections 2 and 3 above shall settle all salary,
bonus, commission, vacation and other financial obligations due from the Company
to Xx. xx Xxxx as of and through the Termination Date.
5. RELEASE OF CLAIMS. In consideration of the Company's covenants and
agreements hereunder, Xx. xx Xxxx, on behalf of himself and his heirs, executors
and assigns, hereby fully and forever releases the Company, its subsidiaries and
their respective officers, directors, employees, investors, stockholders,
predecessor and successor corporations and assigns from any claim, duty,
obligation or cause of action relating to any matters of any kind, whether known
or unknown, that he may possess arising from any omissions, acts or facts that
have occurred up until and including the Leave Date including, without
limitation:
(a) any and all claims relating to or arising from Employee's
employment relationship with the Company and/or its subsidiaries and termination
of that relationship;
(b) any and all claims relating to, or arising from,
Employee's right to purchase, or actual purchase or acquisition of equity
interests in the Company (except to the extent set forth herein); and
(c) any and all claims for wrongful discharge of employment;
breach of contract, both express and implied; breach of a covenant of good faith
and fair dealing, both express and implied; negligent or intentional infliction
of emotional distress; negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic advantage; and
defamation.
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The Company and Xx. xx Xxxx agree that the release set forth in this
section shall be and remain in effect in all respects as a complete general
release as to the matters released. NOTWITHSTANDING THE FOREGOING, THIS RELEASE
DOES NOT EXTEND TO ANY OBLIGATIONS INCURRED UNDER, OR BREACHES OF, THIS
AGREEMENT THAT MAY ARISE AFTER THE LEAVE DATE. FURTHERMORE, NOTHING HEREIN SHALL
OPERATE AS A RELEASE OF ANY OBLIGATION OF THE COMPANY PURSUANT TO THE
INDEMNIFICATION AGREEMENT DATED AUGUST 31, 1999 BETWEEN XX. XX XXXX AND THE
COMPANY (THE "INDEMNIFICATION AGREEMENT").
Xx. xx Xxxx represents that he not aware of any claim by him other than
the claims that are released by or set forth in this Agreement. Notwithstanding
the governance of this Agreement by Nevada law, Xx. xx Xxxx and the Company
acknowledge that they are familiar with the provisions of California Civil Code
Section 1542, which provides as follows:
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.
Xx. xx Xxxx and the Company, being aware of such code section, agree to waive
any rights they may have thereunder, as well as under any other statute or
common law principles of similar effect, whether of Nevada, California or
otherwise.
6. NON-SOLICITATION. Xx. xx Xxxx agrees that until one year after the
Termination Date, he will not directly or indirectly solicit or attempt to
solicit any person employed by the Company to terminate or otherwise cease his
or his employment with the Company or interfere in any manner with the
contractual or employment relationship between the Company and any customer,
vendor or employee of the Company.
7. NONDISCLOSURE OF CONFIDENTIAL AND PROPRIETARY INFORMATION. Xx. xx
Xxxx shall continue to maintain the confidentiality of all confidential and
proprietary information of the Company as provided by the separate
Confidentiality and Assignment of Inventions Agreement previously entered into
between the Company and Xx. xx Xxxx dated January 4, 2001 (the "EMPLOYEE
CONFIDENTIALITY AGREEMENT"), which will survive the termination of Xx. xx Xxxx'x
employment. Xx. xx Xxxx agrees that he will immediately return to the Company
all Company property and confidential and proprietary information in his
possession.
8. BREACH OF THIS AGREEMENT. The Company and Xx. xx Xxxx acknowledge
that upon breach of the non-solicitation and confidential and proprietary
information provisions contained in Sections 6 and 7 of this Agreement, or the
Non-Disparagement provisions set forth in Section 9 of this Agreement, the
Company or Xx. xx Xxxx would sustain irreparable harm from such breach, and,
therefore, the Company and Xx. xx Xxxx agree that in addition to any other
remedies which the Company and Xx. xx Xxxx may have under this Agreement or
otherwise, the Company or Xx. xx Xxxx shall be entitled to obtain equitable
relief, including specific performance and injunctions, restraining the Company
or Xx. xx Xxxx from committing or continuing any such violation of this
Agreement.
9. NON-DISPARAGEMENT. Each party agrees to refrain from any
disparagement, defamation or slander of the other (or the other's officers,
directors or employees, if applicable), or tortious interference with the
contracts and relationships of the other. Nothing in this paragraph shall
prohibit either party from responding truthfully to any inquiry from any court,
governmental agency or similar authority.
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10. AMENDMENT OF NON-COMPETITION AGREEMENT. The parties agree that the
Non-Competition Agreement effective as of January 4, 2000, among the Company, a
subsidiary of the Company and Xx. xx Xxxx (the "NON-COMPETITION AGREEMENT")
shall be hereby amended as follows:
(a) Section 1(b)(ii) of the Non-Competition Agreement shall be
amended to read in full as follows:
"The "COMPETING BUSINESS" shall mean any business activity that
involves the manufacture, marketing, sale or distribution of cellular
telephone or paging products or any accessories or services for
cellular telephone or paging products."
(b) Section 2 of the Non-Competition Agreement shall be
amended to read in full as follows:
"DURATION. The covenants set forth in Section 1 shall be effective
commencing as of the Effective Date and shall continue until January 4,
2002, regardless of any change in the employment status of the
Shareholder with CAW or iGo during such period."
(c) A new Section 18 shall be added to the Non-Competition
Agreement shall read in full as follows:
18. PRIOR Notification. The Shareholder may, at his option, notify iGo
in writing (including by facsimile or electronic mail) in advance of
any proposed business activity to be conducted by the Shareholder,
specifying the organization with which he proposes to carry on a
business activity, and providing information regarding the nature of
such activity and the organization's business sufficient to allow iGo
to determine if such relationship would conflict with the provisions of
Section 1 hereof. If iGo fails to inform the Shareholder of such
determination (including by facsimile or electronic mail) within 10
calendar days following iGo's receipt of proper notice from the
Shareholder, then iGo and CAW shall be deemed to have consented to the
activity.
(d) The parties' respective contact information set forth in
Section 11 of the Non-Competition Agreement is hereby amended and updated to
read as follows:
iGo or CAW iGo Corporation
0000 Xxxxxxx Xxxxx
Xxxx, XX 00000
Attn: President
Fax: 775/000-0000
Email: xxxxx@xxx.xxx
with a copy to: Xxxx Xxxx Peek Xxxxxxxx Xxxxxx and Xxxxxxxx
000 X. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Fax: 775/000-0000
Email: xxxxxxx@xxxxxxxx.xxx
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The Shareholder Xxx xx Xxxx
0000 Xxxxxxxxxx Xxxxx
Xxxx, XX 00000
Fax:
Email: xxxxxxx.xxxxxx@xxxxxxxx.xxx.xxx
with a copy to: Xxxxxxx Xxxxxx Xxxxxxx & Xxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Fax: 650/000-0000
Email: xxxxxxxx@xxxxxxx.xxx
No other provisions of the Non-Competition Agreement shall be amended hereby and
the Non-Competition Agreement, as amended hereby, shall remain in full force and
effect following the execution of this Agreement.
11. REFERENCES. Consistent with its practices with respect to all
departed executives, the Company will not provide a letter of recommendation to
Xx. xx Xxxx as a matter of policy and at Xx. xx Xxxx'x request will indicate as
much to any prospective employer of Xx. xx Xxxx.
12. NO RELIANCE. Each party represents that it 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
that are not specifically set forth in this Agreement or the exhibits hereto.
13. COSTS. The Parties shall each bear their own costs, attorneys' fees
and other fees incurred in connection with this Agreement, except that the
Company shall pay or reimburse up to $3,000 of Xx. xx Xxxx'x properly
documented, reasonable legal fees incurred in connection with the negotiation
and execution of this Agreement.
14. SEVERABILITY. In the event any provision of this Agreement is found
to be invalid, illegal or unenforceable, the validity, legality and
enforceability of any of the remaining provisions shall not in any way be
affected or impaired thereby, and that provision shall be reformed, construed
and enforced to the maximum extent permissible, provided that this Agreement
shall not then substantially deprive either party of the initially bargained-for
performance of the other party. Any such invalidity, illegality or
unenforceability in any jurisdiction shall not invalidate or render illegal or
unenforceable such provision in any other jurisdiction.
15. ENTIRE AGREEMENT. This Agreement represents the entire agreement
and understanding between the Company and Xx. xx Xxxx concerning Xx. xx Xxxx'x
separation from the Company and supersedes and replaces any and all prior
agreements and understandings concerning Xx. xx Xxxx'x employment relationship
with the Company and his compensation by the Company, including his Employment
Agreement dated January 4, 2001, except that nothing herein shall supercede the
terms of the Indemnification Agreement or the Employee Confidentiality
Agreement. In addition, the Agreement and Plan of Reorganization dated January
4, 2000, by and among the Company, a subsidiary of the Company, CAW Products,
Inc. and the shareholders thereof (including Xx. xx Xxxx), and the
Non-Competition Agreement (as amended hereby) shall survive the execution of
this Agreement.
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16. NO ORAL MODIFICATION. This Agreement may only be amended in writing
signed by Xx. xx Xxxx and the President of the Company.
17. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Nevada.
18. SUBSIDIARIES. Xx. xx Xxxx agrees that his covenants and agreements
contained in Sections 4 through 9 shall apply equally to any subsidiary of the
Company as they do to the Company itself.
19. COUNTERPARTS AND FACSIMILE SIGNATURE(S). This Agreement may be
executed simultaneously in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. This Agreement may be executed and delivered originally by
facsimile, with an original to follow.
20. VOLUNTARY EXECUTION OF AGREEMENT. This Agreement is executed
voluntarily 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 Agreement;
(b) They have been represented in the preparation, negotiation
and execution of this Agreement by legal counsel of their own choice;
(c) They understand the terms and consequences of this
Agreement and of the releases it contains; and
(d) They are fully aware of the legal and binding effect of
this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Separation Agreement
on the respective dates set forth below.
iGo CORPORATION XXX xx XXXX
/s/ Xxxxxxx X. Xxxxx /s/ Xxx xx Xxxx
By: Xxxxxxx X. Xxxxx By: Xxx xx Xxxx
Title: CEO Dated: 4/23/01
Dated: 4/23/01
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