Exhibit 10.41
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (the "Agreement") is
entered into by Xxxxx Xxxxx (hereinafter referred to as "Employee") and AVANTGO,
INC. (hereinafter referred to as "Company").
Recitals:
A. Employee has been employed by Company and Employee's employment
relationship with Company terminated effective January 22, 2002.
B. Employee and Company wish to enter into an agreement to clarify
and resolve any disputes that may exist between them arising out of the
employment relationship and its termination, and any continuing obligations of
the parties to one another following the end of the employment relationship.
C. Company has advised Employee of Employee's right to consult an
attorney prior to signing this Agreement. Employee has either consulted an
attorney of Employee's choice or voluntarily elected not to consult legal
counsel, and understands that Employee is waiving all potential claims against
Company.
D. This Agreement is not and should not be construed as an admission
or statement by either party that it or any other party has acted wrongfully or
unlawfully. Both parties expressly deny any wrongful or unlawful action.
Agreements:
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises contained below, it is agreed as follows:
1. Employment Ending Date. Employee's employment with Company
terminated effective January 22, 2002 (the Ending Date). Employee will have no
further employment duties to Company after the Ending Date.
2. Characterization of Termination. Employee and Company agree that
for all future purposes they will characterize Employee's termination of
employment as a voluntary resignation. However, nothing in this Agreement shall
preclude Employee from representing for the sole purpose of seeking unemployment
compensation benefits that Employee resigned "in lieu of termination," a
representation which Company will confirm for this purpose.
3. Severance and Benefits. Company will pay to Employee as severance
four (4) months wages ($56,667). Company will also pay Employee a Q3 2001 bonus
of $14,045 and a Q4 2001 bonus of $11,789. The total severance amount, including
wages and bonuses is $82,501 less deductions and withholdings. The total
severance amount will be paid in one lump sum within 5 days of Company receiving
an executed Severance Agreement.. Company will also provide health benefits
during the four (4) month severance period (through May 22, 2002). Employee
shall also be paid a bonus of $4,705 in connection with the GTSI/Army deal if
the full amount of the outstanding invoice is received by March 31, 2002.
AvantGo will also pay the shipping costs for transportation of Employee's
vehicle from the San Francisco Bay Area to Chicago, such amount not to exceed
$1600 and such payment to be made within 30 days of receipt of invoice from the
transportation service. Employee agrees to maintain the confidentiality of the
fact that he will no longer be in his current position and that he will be
leaving the employment of Company through (a) January 31, 2002, or, (b) until
such time that Company publicly discloses that Employee is no longer an employee
of the Company, which ever occurs first. Employee shall cooperate with respect
to reasonable requests by Company for Employee to execute documents, such as
Securities and Exchange Commission Form 4 and Form 5. Employee will make himself
reasonably available to provide truthful testimony in any pending or future
investigation or litigation involving the Company. Employee will not work for
another company in a capacity where Employee is selling a product that has
functionality similar to that of enterprise products currently offered by
Company.
4. Valid Consideration. Employee and Company agree that payment by
Company to Employee of the amounts described in Section 3 of this Agreement is
not required by Company policies or procedures or by any contractual obligation
of Company, and is offered by Company solely as consideration for this
Agreement.
5. No Repurchase of Exercised Stock Options. AvantGo agrees that it
will not repurchase those shares which Employee has exercised as of the time he
is given this document.
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6. Reaffirmation of Confidential Information and Invention
Assignment Agreement. Employee expressly reaffirms the Confidential Information
and Invention Assignment Agreement that Employee signed as part of Employee's
employment with Company, a copy of which is attached as Exhibit A hereto and
which shall remain in full effect. Employee confirms that Employee will
immediately upon termination turn over to Company all files, memoranda, records,
credit cards, and other documents or physical property which Employee received
from Company or its employees or which Employee generated in the course of
Employee's employment with Company.
7. Confidentiality of Separation Agreement. Employee agrees that
Employee will keep the terms of this Agreement (including but not limited to the
severance amount) completely confidential, and that Employee will not disclose
any information concerning this Agreement or its terms to anyone other than
Employee's immediate family, legal counsel, and/or financial advisors, who will
be informed of and bound by this confidentiality clause. Employee agrees that a
breach of this Section 7 will entitle Company to recovery of all amounts paid
under this Agreement.
8. General Release of Claims. Employee expressly waives any claims
against Company and releases Company (including its officers, directors,
stockholders, managers, agents, and representatives) from any claims that
Employee may have in any way connected with Employee's employment with Company
and the termination thereof, whether or not such claims are presently known or
unknown to Employee. It is understood that this release includes, but is not
limited to, any claims for wages, bonuses, employment benefits, or damages of
any kind whatsoever, arising out of any contracts, express or implied, any
covenant of good faith and fair dealing, express or implied, any theory of
unlawful discharge, any legal restriction and Company's right to terminate
employees, or any federal, state or other governmental statute or ordinance,
including, without limitation, Title VII of the Civil Rights Act of 1964, the
federal Age Discrimination in Employment Act of 1967 (29 U.S. C. ss. 21, et
seq.), the Family and Medical Leave Act, the California Family Rights Act, the
California Fair Employment and Housing Act, any other laws concerning
discrimination or harassment, or any other legal limitation on the employment
relationship.
Employee represents that Employee has not filed any complaints,
charges or lawsuits against Company with any governmental agency or any court,
and agrees that Employee will not initiate, assist or encourage any such
actions.
9. Release of Unknown Claims. It is the intention of Employee and
Company that this Agreement is a General Release which shall be effective as a
bar to each and every claim, demand, or cause of action it releases. Employee
recognizes that Employee may have some claim, demand, or cause of action against
Company of which Employee is totally unaware and unsuspecting which Employee is
giving up by execution of the General Release. It is the intention of Employee
in executing this Agreement that it will deprive Employee of each such claim,
demand or cause of action and prevent Employee from asserting it against
Company. In furtherance of this intention, Employee expressly waives any rights
or benefits conferred by the provisions of Section 1542 of the Civil Code of the
State of California, 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."
The parties agree that the terms in this section 9, or any other provision of
this Agreement, in which employee waives all rights of existing or future claims
against employer shall not apply to any claim or cause of action which employee
may have relative to employer's breach of this agreement or any claim of
defamation, slander, or libel.
10. Severability. The provisions of this Agreement are severable,
and if any part of it is found to be unlawful or unenforceable, the other
provisions of this Agreement shall remain fully valid and enforceable to the
maximum extent consistent with applicable law.
11. Knowing and Voluntary Agreement. Employee represents and agrees
that Employee has read this Agreement, understands its terms and the fact that
it releases any claim Employee might have against Company and its agents,
understands that Employee has the right to consult counsel of choice and has
either done so knowingly waived the right to do so, and enters into this
Agreement without duress or coercion from any source.
12. Non-disparagement. Employee agrees to not make any incorrect or
disparaging comments whatsoever about Company, its products or services, or any
of its employees. If contacted by prospective employers, Company agrees only to
provide last date of employment and job title.
13. Older Workers Benefit Protection Act. The following is required
by the Older Workers Benefit Protection Act:
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Employee has up to twenty-one (21) days from January 16,2002 (the
date Employee receiver's this Separation Agreement) to accept the terms of this
Separation Agreement, although Employee may accept it at any time within those
twenty-one (21) days. Employee is advised to consult an attorney about the
Agreement.
To accept the Agreement, please sign and date below and return it to
Xxxxxxx Xxxx. Once signed, Employee will still have an additional seven (7) days
in which to revoke acceptance. To revoke, Employee must send Xxxxxxx Xxxx a
written statement of revocation. If Employee does not revoke, the eighth day
after the date of acceptance will be the "effective date" of this Severance
Agreement.
14. Entire Agreement. Excepting only the Company's 1997 Stock Option
Plan and the Confidential Information and Invention Assignment Agreement
attached as Exhibit A, this Agreement sets forth the entire understanding
between Employee and Company and supersedes any prior agreements or
understandings, express or implied, pertaining to the terms Employee's
employment with Company and the termination of the employment relationship.
Employee acknowledges that in executing this Agreement, Employee does not rely
upon any representation or statement by any representative of Company concerning
the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the dates indicated below.
"Company" AVANTGO, INC.
By /s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
Its Chief Executive Officer
Dated: January 22, 2002
"Employee"
/s/ Xxxxx Xxxxx
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XXXXX XXXXX
Dated: January 22, 2002
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EXHIBIT A
CONFIDENTIALITY INFORMATION AND
INVENTION ASSIGNMENT AGREEMENT
[ORIGINAL SIGNED BY EMPLOYEE WHEN THEY ACCEPTED OFFER]
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