SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (the "Agreement") is made and entered into this 31st day of December, 2013, with an effective date of December 31, 2013 (the "Effective Date") by and between Xxxxxx X. Xxxxx (the "Executive") and CareView Communications, Inc., a Nevada corporation (the "Company"). The Executive and the Company are sometimes herein referred to collectively as the "Parties" and singularly as the "Party."
WHEREAS, the Executive has provided services to the Company through the Effective Date; and
WHEREAS, the Executive desires to resign due to health reasons and the Company has agreed to accept his resignation; and
WHEREAS, in order to provide a smooth transition, the Parties have agreed that Executive will provide consulting services to the Company as described herein and in the Consulting Agreement attached hereto as Exhibit A; and
WHEREAS, the Parties have agreed to the terms of an amicable separation as outlined herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants set forth herein, the Parties agree as follows:
1. Effect of WHEREAS Clauses: The "WHEREAS" clauses set forth above are expressly incorporated in and form part of the terms of this Agreement.
2. Resignation by Executive: Executive agrees to resign from his positions as Chief Executive Officer and Director of the Company, and from all entities which control, are controlled by, or are under common control of the Company (the "Affiliates"), or any other entity for which he is serving as an officer, director or in a similar position as part of his duties with the Company and Affiliates on the Effective Date (the "Resignation"). The Executive agrees to execute the Resignation attached hereto as Exhibit B.
3. Consulting Agreement: Subject to the terms and conditions herein and in the Consulting Agreement, the Company will pay the Executive the following fees and provide the following benefits beginning the day following the Effective Date and continuing through the Termination Date, as defined below:
A. Duties to be Performed by Executive: The Executive will follow the direction of the Company's management regarding his monthly duties and will submit a weekly report of his activities to management. The Executive is not permitted to have contact with any current or prospective Company customer on behalf of the Company without prior approval and coordination with Company management. The Executive must immediately advise Company management of any such communications with any current or prospective Company customer contemporaneous with such contact.
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B. Remuneration for Executive's Services:
(i) Consulting Fees: The Company will pay the Executive the consulting fees outlined in the Consulting Agreement from the day following the Effective Date through the Termination Date.
(ii) Medical Insurance Coverage: On the day following the Effective Date, the Executive will continue to be covered as an employee under the Company's medical insurance policy and the Company will pay the monthly premiums through the Termination Date. After the Termination Date, the Executive will be permitted to continue the medical insurance coverage pursuant to COBRA at his own expense for as long as the benefits are available thereunder.
(iii) Stock Options Owned by Executive: The Executive's outstanding non-qualified stock options for the purchase of an aggregate of 3,983,745 shares (the "Options") will continue in force and pursuant to the terms of the stock option plans under which the Options were issued, will be available for exercise by the Executive from the date of this Agreement until ninety (90) days after the Termination Date. In the event of the Executive's death prior to the Termination Date, the Executive's survivor or estate will have the choice to (i) keep the Options for the purchase of an aggregate of 3,983,745 shares, which Options will expire one year from the Executive's date of death, or (ii) exchange the Options for common stock purchase warrants ("Warrants") for the purchase of an aggregate of 1,991,872 shares, which Warrants will have the same exercise price as the Options and will contain a cashless exercise provision. A form of Warrant is attached hereto as Exhibit C.
C. Term: The Consulting Agreement, and this Agreement, shall have a Termination Date of December 31, 2014, or any earlier date on which the Consulting Agreement is terminated by the Company for cause (the "Termination Date").
(i) Termination by Company for Cause: At any time after the day following the Effective Date and prior to the Termination Date, the Company may accelerate the Termination Date for cause ("Cause"). Cause shall include, but not be limited to, (i) the failure of the Executive to perform any requirements hereunder and (ii) the failure of the Executive to perform any duties assigned by the Company's management pursuant to the Consulting Agreement.
4. Confidential and Proprietary Information; Preservation of Trade Secrets:
A. Definition: As used herein, "Confidential and Proprietary Information" means any and all information, regardless of when received, concerning the Company and Affiliates, including but not limited to, the whole or any portion or phase of any development, engineering and manufacturing activity, scientific or technical information, design, process, procedure, formula, pattern, specification, drawing, compilation, program, device, method, technique, improvement, manufacturing standard, computer
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programs, data stored on computers, disks or other media, files, general business information, plans, consultants’ reports, financial information, listing of names, addresses, or telephone numbers, customer lists and other customer-related information, sales and marketing strategies, business relationships with the clients and customers of Company and Affiliates, and all other information and all forms of communications, whether or not marked or designated as "Confidential," "Proprietary" or the like, in any form, including but not limited to, verbal, written, optical, electronic, physical demonstrations, in person and/or telephone conversations, e-mail and other means of information transfer such as facility tours, regardless of whether such information is protected by applicable trade secrets or similar laws. The term "Confidential and Proprietary Information" shall not include information which: (a) is or becomes generally available to the public other than as a result of the disclosure by Executive; or (b) becomes available to Executive from a source other than the Company or any of its directors, officers, executives, agents, affiliates, representatives, or advisors, provided that to the best of the Executive’s knowledge after inquiry, such source is not bound by a confidentiality agreement with, or other legal, fiduciary or other obligation of secrecy or confidentiality to the Company or Affiliates with respect to such information.
B. Preservation of Confidential and Proprietary Information: Executive acknowledges and agrees that any Confidential and Proprietary Information is the sole and exclusive property of the Company. Executive shall preserve the secrecy and confidentiality of any Confidential and Proprietary Information that Executive acquired in the course and within the scope of Executive’s employment with the Company.
C. Misappropriation or Improper Disclosure: Without the Company's prior written consent, Executive shall not use, exploit, copy, misappropriate, improperly disclose, duplicate, or furnish any Confidential and Proprietary Information to any person or entity not privileged to have it.
D. Disclosure Pursuant to Legal Process: If the Executive shall be required by subpoena or similar government order or other legal process ("Legal Process") to disclose any Confidential and Proprietary Information, then the Executive shall provide the Company with prompt written notice of such requirement and, upon request, cooperate with the Company in efforts to resist disclosure or to obtain a protective order or similar remedy. Subject to the foregoing, if any Confidential and Proprietary Information is required by Legal Process to be disclosed, then the Executive may disclose such Confidential Information, but shall not disclose any Confidential and Proprietary Information for a reasonable period of time, unless compelled under imminent threat of penalty, sanction, contempt citation or other violation of law, in order to allow the Company time to resist disclosure or to obtain a protective order or similar remedy.
E. Reporting of Misappropriation. The Executive has reported and will report to the Company any and all known or suspected misappropriations, or improper uses or disclosures of Confidential and Proprietary Information by Executive or any other known individual or entity.
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F. Return of Confidential and Proprietary Information: Executive shall not remove from the Company any original or copy of any document, record, disk, tape, paper, drawing, photograph, or file, which contains or refers to any Confidential and Proprietary Information, or any other property belonging to the Company. In accordance with Section 5 below, Executive represents and warrants to the Company that as of the Effective Date, Executive does not directly possess, or indirectly possess via the Executive’s family member or otherwise, any Confidential or Proprietary Information in tangible form (including electronic computer files). Executive represents and warrants to the Company that as of the Effective Date, Executive did not destroy or delete Company data, except in the ordinary course of business and in accordance with the Company's document retention policy. Executive shall be entitled to a copy of his contact and telephone lists and his Outlook contacts file.
G. Developments and Inventions. Executive agrees that all ideas, inventions, discoveries, improvements, designs, methods, processes, and all other work product (collectively hereinafter referred to as "Work Product") which Executive conceived or developed during the course and within the scope of Executive’s employment with the Company, shall be and remain the sole and exclusive property of the Company, whether or not patent applications or copyrights were filed thereon. Executive hereby assigns to the Company all rights, title, and interest in and to any and all such Work Product. On or before the Effective Day, Executive shall promptly disclose all such Work Product to the Company. Executive shall assist the Company at the Company’s expense, to the extent reasonably necessary, in protecting, securing and perfecting the Company’s ownership interest in any Work Product. Executive acknowledges and agrees that: (i) the financial compensation paid to Executive under this Agreement is full consideration for any Work Product, (ii) the Work Product shall not be subject to any further royalty or payment obligation by the Company, and (iii) all Work Product was work made for hire.
H. Survival. The provisions contained in this Section 4 shall survive this Agreement
5. Return of Company Property. The Executive shall return to the Company all property of the Company, including, but not limited to: a) property that contains or refers to Confidential and Proprietary Information property, and all such copies that are in Executive’s direct or indirect possession as of the Effective Date, b) other equipment provided to the Executive by the Company, and c) other property owned by the Company, including but not limited to, computer passwords and other information technology data.
6. Non-Disparagement: Executive represents that he has not and agrees that he will not in any way disparage the Company or Affiliates, or the Company's and Affiliates' products, services and business practices, current or former owners, directors, officers, executives, or agents, nor assist any other person, firm, or company in doing so, or make or solicit any comments, statements, or the like to the media or to others that may be considered derogatory or detrimental to the good name or business reputation of any of the aforementioned individuals or entities. Nothing in this paragraph shall be construed to limit in any way Executive's right and duty to make good faith disclosures as may be required by law and any governmental agency or other governmental institution.
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7. Release.
A. The Executive, for himself his personal representatives, forever releases, discharges, holds harmless, and covenants not to xxx or bring any claim against the Company or Affiliates or any current or former officers, directors, shareholders, owners, other executives, employees or agents of the Company or Affiliates in their capacity as such (collectively, the "Released Parties" each of whom is individually intended to be a third party beneficiary under this Agreement), from any and all actions, causes of action, suits, debts, accounts, bonds, bills, covenants, contracts, agreements, promises, damages, judgments, executions, claims, demands, obligations and liabilities of any kind or nature whatsoever, in law or equity, whether known or unknown, liquidated or un-liquidated, including claims for attorneys fees or costs, which the Executive or his heirs or personal representatives ever had, now have or hereafter may have against any of the Released Parties, for, upon, or by any reason of any act, omission, occurrence, cause or thing whatsoever occurring prior to or on the Effective Date.
B. Specifically, but without limitation, the Executive releases the Released Parties from, and agrees that he will not bring any action or other claim (except for the benefits specifically set forth in this Agreement) based on his employment or separation from employment with the Company against any of the Release Parties based on any statute, regulation, rule, or governing employment practices, including, but not limited to The Age Discrimination in Employment Act, the Older Workers’ Benefit Protection Act of 1990, The Fair Labor Standards Act, Title VII and all other provisions of The Civil Rights Act of 1964, The Americans with Disabilities Act, The Equal Pay Act, The Employee Retirement Income Security Act of 1974 (except for any vested retirement benefit) The Family and Medical Leave Act, The Fair Credit Reporting Act, The Occupational Safety and Health Act, The Xxxxxxxx-Xxxxx Act of 2002, The National Labor Relations Act as amended, The Labor Management Relations Act, or under any other federal, state or local employment, civil rights or human rights law, rule or regulations, in each case as amended.
C. Further, without limitation, the Executive agrees that he will not bring any action or other claim against any Released Party based on any theory of wrongful termination, intentional or negligent infliction of mental or emotional distress, or other tort, breach of express or implied contract, promissory estoppels, or any other statutory, regulatory or common law action or claim. Further, also without limitation and except as provided in this Agreement, the Executive expressively waives any rights under any Company Severance Plan, Annual Incentive Bonus Program, Incentive Stock Plan, or any Company Benefit Plan or Program, including for vacation pay, except as otherwise set forth in this Agreement. Any rights that the Executive is entitled to by reason of Executive’s employment with the Company or the termination of such employment that are not specifically enumerated in this Agreement are hereby released, terminated, and cancelled as of the Effective Date.
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D. Notwithstanding the foregoing, the Executive shall retain the following rights:
(i) Rights to indemnification as an executive officer and director pursuant to the Company's Articles of Incorporation or Bylaws for lawful actions conducted in the proper scope and course of his employment through the Effective Date;
(ii) Protections of any insurance policies for the benefit of its directors and officers, which are in effect on the Effective Date, pursuant to the terms of said policies.
E. The Company, for itself, its Affiliates, and its current and former officers, directors, shareholders, owners, other executives, employees or agents holds harmless and covenants not to xxx or bring any claim against Executive from any and all actions, causes of action, suits, debts, accounts, bonds, bills, covenants, contracts, agreements, promises, damages, judgments, executions, claims, demands, obligations and liabilities of any kind or nature whatsoever, in law or equity, whether known or unknown, liquidated or unliquidated, including claims for attorneys fees or costs which the Company has ever had, now has, or hereafter may have against Executive for, upon, or by reason of any act, omission, occurrences, cause or thing whatsoever occurring prior to or on the Effective Date.
8. Cooperation: At the Company’s request, the Executive agrees to cooperate with the Company in any investigations or lawsuits relating to the Company’s business, whether existing as of the Effective Date or which may arise thereafter, until said investigations or lawsuits are completed. The Company will pay the Executive reasonable out-of-pocket expenses incurred by the Executive in connection with his cooperation. This paragraph shall not obligate Executive to agree to a joint defense agreement with the Company.
9. No Admission of Liability. Neither this Agreement, nor anything contained herein, shall be construed as an admission by the Company that it has in any respect violated or abridged any federal, state or local law or any right or obligation that it may owe or may have owed to Executive. Neither this Agreement, nor anything contained herein, shall be construed as an admission by Executive that he has in any respect violated or abridged any federal, state or local law of any right or obligation that he may owe or may have owed to the Company.
10. Set-off Rights of the Company: Executive represents that there are no actions or claims pending with any local, state, or federal agency or court, nor any charges, lawsuits, grievances, arbitrations or requests for investigation seeking damages on his own behalf against the Company or any other Released Party. Executive understands that if he were to bring an action or other claim against the Company or any other Released Party in violation of Section 7 above, or otherwise materially breach this Agreement, then the Company shall have the right to set-off any and all damages to which any Released Party may be entitled against payments or other benefits to the Executive under this Agreement. In the event that the Company determines that the Executive may have materially breached this Agreement, the Company shall be entitled to withhold any or all payments and benefits to the Executive set forth above until such time as
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the Executive’s breach of this Agreement and any damages relating thereto has been finally adjudicated to judgment no longer subject to appeal.
11. Enforcement and Damages.
A.
In the event of any material breach of this Agreement by Executive, Executive agrees that damages may be inadequate and difficult,
if not impossible, to ascertain and that the Company may enforce this Agreement by specific performance or injunction, as may
be issued by a court of competent jurisdiction as defined in Paragraph 17(E) herein, without the necessity of posting bond or
other security, which requirement Executive hereby expressly waives. Furthermore, without waiving any rights and notwithstanding
Section 10 above, the Company may additionally or alternatively seek monetary damages or any other legal or equitable relief or
remedy to which the Company may be legally entitled to receive. Executive agrees that in
the event he materially breaches any provision of this Agreement, Executive will
pay as liquidated damages to the Company a sum equal to the gross sum of money
and other compensation and/or the monetary equivalent of the benefits provided by
the Company in Section 3 of this Agreement.
B. In the event that Executive breaches Section 4 above with respect to any Confidential and Proprietary Information for which the prohibited use, misappropriation, or disclosure of such information could reasonably be expected to have a material adverse effect on the business or prospects of the Company or Affiliates, then in addition to any injunctive relief to which the Company may be entitled, the Company may seek monetary or other damages in a court of competent jurisdiction as defined in Paragraph 17 of this Agreement.
12. Exception for Challenge Under the Older Workers’ Benefits Protection Act: The provisions of Sections 11, 12, and 17(G) are not intended to and shall not affect the right of Executive to file a lawsuit, complaint or charge that challenges the validity of this Agreement under the Older Workers Benefit Protection Act, 29 U.S.C.§ 626(f), with respect to claims under the ADEA. This section is not intended to and shall not limit the right of a court to determine, in its discretion, that the Company is entitled to restitution, recoupment or set-off of any monies paid should the release of ADEA claims in this Agreement be found to be invalid. Neither does this Section affect the Company’s right to recover attorney’s fees or costs to the extent authorized under federal law. The provisions of Section 7, 11, 13 and 17(G) shall apply with full force and effect with respect to any other legal proceeding.
13. No Raid: Executive agrees that he will not, for a period of twelve (12) months following the Termination Date, for any reason whatsoever, do any of the following:
A. Hire or otherwise engage the services of any officer or employee of the Company or Affiliates; or
B. Solicit, entice, persuade, encourage or otherwise induce any employees of the Company or Affiliates to terminate such employment or to become employed by any person or entity other than the Company.
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14. Agreement not to Compete:
A. The Executive agrees that he will not, for a period of twelve (12) months following the Termination Date, for any reason whatsoever, do any of the following:
(i);Solicit, entice, persuade, encourage or otherwise induce any individual or entity (including any subsidiary or affiliate of such individual or entity and any officer, stockholder, partner, employee or other representative of such individual or entity) that was a customer of the Company or Affiliates (whether or not the Executive provided services for such customer) at any time Executive was an employee of the Company (a) to refrain from purchasing products manufactured by the Company or Affiliates or using the services of the Company or Affiliates, or (b) to purchase products and services available from the Company or Affiliates from any person or entity other than the Company or Affiliates;
(ii) Own, manage, control or participate in the ownership, management, or control, or be employed or engaged by or otherwise affiliated or associated as an employee, consultant, independent contractor, director, agent or otherwise with any other corporation, partnership, proprietorship, firm, association or other business entity in the world ("Competitive Companies") that manufactures or sells any product that competes with or is a substitute for the products sold by the Company; provided, however, that the Executive may own up to five percent (5%) of any class of publicly-traded securities of any such entity;
B. Executive has carefully considered the nature and extent of the restrictions upon him under this Section 14 and hereby acknowledges and agrees that the same are reasonable in time and territory, are designed to eliminate competition which otherwise would be unfair to the Company and Affiliates, subsidiaries, successors and assigns, do not stifle the inherent skill and experience of Executive, would not operate as a bar to Executive’s means of support, are fully required to protect the legitimate interest of the Company, and do not confer a benefit upon the Company disproportionate to the detriment of the Executive. Executive further acknowledges that this Section 14 was negotiated with the Company and is a material provision of this Agreement.
15 Period for Review and Consideration of Release. Executive understands and acknowledges that he has been given an opportunity for the period of time he deems necessary to review and consider this Agreement before signing it.
16 Encouragement to Consult with Attorney. Executive acknowledges he was advised by the Company to consult with an attorney before signing this Agreement.
17. Miscellaneous.
A. Entire Agreement. This Agreement contains the entire and exclusive understanding and agreement of the terms and conditions between the Executive and the Company with respect to its subject matter, and supersedes any and all prior agreements
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or understandings, written or oral, between Executive and the Company with respect to its subject matter with the exception of the Indemnification Agreement between the Executive and the Company dated June 1, 2010 (attached as Exhibit D). This Agreement may only be modified, amended or terminated by written agreement between the Executive and the Company.
B. Counterparts. This Agreement may be executed in two counterparts, which together shall be considered an original. A signature provided by facsimile shall be deemed to be a valid execution of this Agreement.
C. Non-Waiver. The failure of a Party to insist upon strict adherence to any obligation of this Agreement shall not be considered a waiver or deprive that Party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. Any waiver of any provision of this Agreement must be in a written instrument signed and delivered by the Party waiving the provision.
D. Further Action. The Parties shall execute and deliver all documents, provide all information, and take or forebear from all such action as may be necessary or appropriate to achieve the purposes of this Agreement.
E. Governing Law, Jurisdiction, and Venue. This Agreement and any and all actions arising out of or in any way related to this Agreement, shall be governed, construed, and enforced in accordance with the laws of the State of Texas, without regard to the conflicts of law principles. The Executive and the Company hereby submit to the exclusive jurisdiction of federal court in the Northern District of Texas or state trial courts in Xxxxxx County, Texas (and any appellate courts with jurisdiction over such trial courts) for any claim by either party arising out of or related to this Agreement, and agree that any such claim shall be heard and determined by a federal court in the Northern District of Texas or state court located in Xxxxxx County, Texas. The Executive and the Company waive any and all rights to raise a defense of forum non-conveniens in any such action.
F. Interpretation. Neither Party shall be deemed the drafter of this Agreement nor shall it be construed or interpreted in favor of or against either Party. Prior drafts of this Agreement shall not be used to interpret any language herein or the intent of the Parties.
G. Savings Clause. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, void or unenforceable, such provision shall have no effect; however, the remaining provisions shall be enforced to the maximum extent possible. Further, if a court should determine that any portion of this Agreement is overbroad or unreasonable, such provision shall be given effect to the maximum extent possible by narrowing or enforcing in part that aspect of the provision found overbroad or unreasonable.
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H. Titles and Captions. All section headings or captions contained in this Agreement are for convenience only and shall neither be deemed a part of the context nor effect the interpretation of this Agreement.
I. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of each Party.
IN WITNESS WHEREOF, the Parties hereto have duly and voluntarily executed this Agreement as of the date first written above.
XXXXXX X. XXXXX
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CAREVIEW COMMUNICATIONS, INC. | |||
/s/ Xxxxxx X. Xxxxx |
By: | /s/ Xxxxx Xxxxxxx | ||
| Xxxxxx X. Xxxxx, an individual | Xxxxx Xxxxxxx, President | |||
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EXHIBIT A
CONSULTING AGREEMENT
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EXHIBIT B
LETTER OF RESIGNATION
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EXHIBIT C
WARRANT, FORM OF
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EXHIBIT D
INDEMNIFICATION AGREEMENT
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