EXHIBIT 10.19
SEPARATION AGREEMENT
SEPARATION AGREEMENT (this "Agreement") made as of the 16th day of
February, 1999 (the "Effective Date") by and between XXXXX X. XXXX, residing at
the address indicated following his signature below (hereinafter referred to as
"Employee") and CS WIRELESS SYSTEMS, INC., a Delaware corporation having its
principal place of business at 0000 Xxxxxxx Xxxxxx, Xxxxx, 00000 (hereinafter
referred to as the "Company").
WHEREAS, Employee and the Company are parties to that certain Employment
Agreement dated as of April 2, 1997, as amended, (the "Employment Agreement")
and the Non-Qualified Stock Option Agreement dated as of January 22, 1997 (the
"Stock Option Agreement"); and
WHEREAS, Employee and the Company have agreed to terminate the Employment
Agreement and the Stock Option Agreement upon the terms and conditions set forth
herein.
NOW THEREFORE, in consideration of their mutual promises, and for other
good and valuable consideration, the parties, intending to be legally bound,
agree as follows:
1. TERMINATION OF EMPLOYMENT. The Employment Agreement is hereby terminated
as of the Effective Date. All payments made, and benefits provided, to Employee
hereunder shall be deemed made in full satisfaction of all Employee's rights
under the Employment Agreement. Employee hereby resigns from any and all
positions or offices held with the Company or any Affiliate (defined herein).
Notwithstanding the foregoing, Employee shall be reasonably available to assist
the Company with respect to such transition matters as the Company reasonably
deems necessary for the continued operation of the Company's business.
2. NON-DISCLOSURE. Notwithstanding the termination of the Employment
Agreement, the non-disclosure covenants contained in the Non-Disclosure
Agreement dated as of April 2, 1997 (the "Non-Disclosure Agreement") between the
parties shall remain in full force and effect.
3. SEVERANCE. Upon the Effective Date, the Company shall pay Employee
severance in an amount (the "Severance Amount") equal to the Base Salary
(defined herein) that would have been payable pursuant to the Employment
Agreement for the balance of the Term. The Severance Amount shall be payable in
one single sum of $308,493.77 and subject to applicable payroll withholding. For
the purposes of this Agreement, the term "Base Salary" shall be defined as, and
deemed to be, the sum of $275,000 payable annually during a calendar year. The
parties acknowledge that the Base Salary represents Employee's annual base
salary as of the Effective Date.
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4. STOCK OPTIONS AND RETENTION BONUS. The parties acknowledge that options
(the "Original Options") to purchase 200,000 shares of the Company's common
stock, par value $.001 ("Common Stock"), were granted to Employee under the 1996
CS Wireless Systems, Inc. Incentive Stock Plan, as amended from time to time
(the "Plan"). The parties further acknowledge that of the Original Options,
options to purchase 100,000 shares of Common Stock at an exercise price of $6.50
per share are fully vested (the "Remaining Options"). The Remaining Options and
the balance of the Original Options, which represent options to purchase 100,000
shares of Common Stock, are hereby surrendered by Employee to the Company.
Additionally, Employee hereby surrenders all claims to the Retention Bonus
authorized by the Compensation Committee of the Board of Directors on November
12, 1998.
5. INSURANCE. To the extent permitted by the Company's insurance carriers and
applicable law, and provided Employee elects to continue such coverage and make
any required contributions, the Company shall provide to Employee medical and
dental benefits comparable to such benefits presently available in the Company's
medical and dental plans through the earlier to occur of (i) the expiration of
twelve (12) months from the Effective Date or (ii) such time as Employee accepts
full time employment and becomes eligible for coverage under the terms of the
applicable medical and dental plan.
6. RELEASE BY EMPLOYEE. (a) Employee hereby releases, remises, and forever
discharges, and by these presents does, for himself, his heirs, executors,
administrators, legal representatives and assigns, release, remise, and
forever discharge the Company, its subsidiaries and Affiliates, its past,
present and future divisions; its past, present and future subsidiary and
parent corporations; its past, present and future Affiliates and related
companies; its successors and assigns; its past, present and future
directors, officers, stockholders, agents and employees both personally and
as directors, officers, stockholders, agents and employees; and the past,
present and future directors, officers, stockholders, agents and employees of
its parents, subsidiaries, divisions, Affiliates, related companies and
successors and assigns (hereinafter collectively referred to as "the Company
and/or its Affiliates"), from any claim, known or unknown, asserted or
unasserted, suspected or unsuspected, arising in any way from any actions
taken by the Company and/or its Affiliates up to and including the date of
the execution of this Agreement, including any claims, demands and causes of
action under federal or state law, regulation or decision including any
rights to bring any demands, complaints, causes of action, claims and charges
under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
section 2000e ET SEQ., the Civil Rights Act of 1991, 42 U.S.C. section 1981a
ET SEQ., the Employee Retirement Income Security Act, 29 U.S.C. section 1001
ET SEQ., the Age Discrimination Employment Act of 1967, as amended, 29
U.S.C. section 601 ET SEQ. the Americans with Disabilities Act of 1990, 42
U.S.C. section 12101 ET SEQ, and any other federal or state law, regulation
or decision, including but not limited to any claims arising out of his
employment or the termination or resignation of his employment, including
claims for wages owed, constructive discharge, wrongful discharge, infliction
of emotional distress, breach of contract, breach of any implied covenant of
good faith and fair dealing, violation of public policy, violation of company
policy or any other common law claims, and any claims, demands or causes of
action for
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injunctive or declaratory relief, reinstatement, compensation for lost wages,
workers' compensation, employee or fringe benefits, compensatory or punitive
damages, and any claims for attorneys' fees, interest and expenses and costs
of litigation, and any other or additional relief.
(b) Without in any way limiting the scope and effect of this PARAGRAPH 6,
Employee acknowledges that (i) he would not otherwise be entitled to all of the
consideration described herein, and that the Company is providing such
consideration in return for Employee's agreement to be bound by the terms of
this Agreement; (ii) among the rights he knowingly and voluntarily waives by
executing this Agreement is his right to bring against the Company any demands,
complaints, causes of action, claims and charges under the Age Discrimination in
Employment Act, 29 U.S.C. subsection 621 ET SEQ., or under any other federal or
state law, regulation or decision prohibiting discrimination on the basis of
race, color, religion, sex, age, national origin, sexual orientation or physical
or mental handicap; (iii) he has been advised to consult with an attorney
regarding this Agreement and he has, in fact, consulted with an attorney
regarding this Agreement; and (iv) he has been given a reasonable period of time
within which to consider this Agreement and if he wanted additional time, such
time was available to him, up to and including February 28, 1999 which is more
than twenty-one (21) calendar days from February 1, 1999 the date on which
Employee first was provided with this Agreement and Employee further
acknowledges that he does not want more time to consider this Agreement and that
he has requested that the Agreement be executed on this date. Employee
understands that he may revoke this Agreement during the first seven days after
he signs it by delivering written notice of his revocation to the Company.
Employee understands that if he does not revoke this Agreement within the first
seven days after he signs it, it will become effective on the eighth day after
he signs it.
7. RELEASE BY COMPANY: The Company, its subsidiaries and Affiliates, its past,
present and future divisions; its past, present and future subsidiary and parent
corporations; its past, present and future Affiliates and related companies; its
successors and assigns; its past, present and future directors, officers,
stockholders, agents and employees both personally and as directors, officers,
stockholders, agents and employees; and the past, present and future directors,
officers, stockholders, agents and employees of its parents, subsidiaries,
divisions, Affiliates, related companies and successors and assigns (hereinafter
collectively referred to as "the Company and/or its Affiliates"), hereby
release, remise, and forever discharge, and by these presents does, release,
remise, and forever discharge Employee, his heirs, executors, administrators,
legal representatives and assigns, from any claim, known or unknown, asserted or
unasserted, suspected or unsuspected, arising in any way from any actions taken
by the Employee up to and including the date of the execution of this Agreement.
8. INDEMNIFICATION AGREEMENT. The Company hereby ratifies that certain
Indemnification Agreement between the Company and Employee dated September 4,
1997 (the "Indemnification Agreement"). In the event the Company commences a
proceeding under the applicable bankruptcy laws of the United States, the
Company shall assume the Indemnification Agreement and shall treat its indemnity
obligations to
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Employee under the terms of the Delaware General Corporation Law and the
Company's Certificate of Incorporation and By-laws, each as amended from time
to time, no less favorably than the Company treats its indemnity obligations
to any other person who has served, is serving or may hereafter serve as a
member of the Board of Directors or officer of the Company.
9. NOTICES. Any notice permitted or required hereunder shall be deemed
sufficient when hand-delivered or mailed by certified mail, postage prepaid, and
addressed if to the Company at the address indicated above and if to Employee at
the address indicated below (or to such other address as may be provided by
notice).
10. MISCELLANEOUS. This Agreement (i) together with the Non-Disclosure
Agreement, constitutes the entire agreement between the parties concerning the
subjects hereof and supersedes any and all prior agreements or understandings,
(ii) may not be assigned by Employee without the prior written consent of the
Company and (iii) may be assigned by the Company and shall be binding upon, and
inure to the benefit of, the Company's successors and assigns. Headings herein
are for convenience of reference only and shall not define, limit or interpret
the contents hereof.
11. AMENDMENT. This Agreement may be amended, modified or supplemented by the
mutual consent of the parties in writing, but no oral amendment, modification or
supplement shall be effective.
12. AFFILIATES. As used herein, the term "Affiliate" shall mean any individual
or entity controlling, controlled by or under common control with the Company,
now or in the future, including without limitation, partnerships in which the
Company or any Affiliate may invest as a limited or general partner and limited
liability companies in which the Company or any Affiliate may become a member.
13. SEVERABILITY. The provisions of this Agreement are severable. The
invalidity of any provision shall not affect the validity of any other
provision.
14. GOVERNING LAW. This Agreement shall be construed and regulated in all
respects under the laws of the State of Delaware.
15. PRESS RELEASE. The parties will agree upon the timing and content of any
press release to be issued describing the transactions contemplated by this
Agreement, and will not make any public announcement thereto prior to reaching
such agreement unless required to do so by applicable law or regulation.
IN WITNESS WHEREOF, this Agreement is entered into as of the date and year
first above written.
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CS WIRELESS SYSTEMS, INC.
BY: _______________________________
NAME: XXXXX XXXXXXXXXX
TITLE: CHAIRMAN OF THE BOARD
EMPLOYEE:
_____________________________
NAME: XXXXX X. XXXX
ADDRESS: 0000 XXXXXXXX XXXX
XXXXXX, XXXXX 00000
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