SEPARATION AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
Exhibit 10.3
SEPARATION AGREEMENT AND
GENERAL RELEASE OF ALL CLAIMS
GENERAL RELEASE OF ALL CLAIMS
This Separation Agreement and Release of all Claims (hereinafter “Agreement”) is entered into
by and between XXX XXXXX (referred to as “Associate”), and Neoware, Inc. on behalf of
itself and each of its present and future related entities, affiliates, subsidiaries and each of
their respective successors and assigns (referred to as “Neoware” or the “Company”).
Neoware and Associate have agreed upon the benefits, terms and conditions of Associate’s
separation from the Company, effective November 17, 2006 (the “Termination Effective Date”), and
such benefits, terms and conditions are set forth herein.
WHEREFORE, the parties,
intending to be legally bound
hereby and for good and
valuable consideration, the
receipt and sufficiency of
which are acknowledged, have
agreed that it is in their
respective best interests to
amicably resolve all matters
relative to Associate’s
employment with and
separation from Neoware
pursuant to the following
terms and conditions:
I.
(a) Associate and the Company acknowledge and agree that Associate’s employment as Executive
Vice President of Sales shall terminate on the Termination Effective Date.
(b) In consideration of Associate’s release of claims and covenants set forth in this
Agreement, including but not limited to, Associate’s release of all claims for compensation,
personal injury, mental and emotional distress and attorneys’ fees, and without creating any
precedent in the administration of its policies and benefits, Neoware
agrees to pay Associate separation pay (the “Separation Pay”) in the gross amount of Two
Hundred Twenty Thousand Three Hundred Twenty Dollars and Ten Cents ($220,320.10), less taxes and
other deductions required by law to be withheld, representing twelve (12) months of separation
pay. The Separation
Pay shall be further reduced by Twenty-Three Thousand, Three Hundred Eighteen
Dollars and Eighty-Three Cents ($23,318.83) in payment for Associate’s purchase of the Neoware
owned automobile (2003 BMW currently in Associate’s possession) that was provided by Neoware for
Associate’s use during the term of his employment.. Upon a fully executed form of the Agreement and
after the revocation period expires as set forth in Section X, Neoware agrees to pay Associate the
Separation Pay in continuous normal payroll periods (the “Separation Pay Period”) commencing on the
first regular payroll cycle following the Termination Effective Date, provided that Associate has
not revoked this Agreement as set forth in Section X.
(c) Neoware will provide Associate with separate notice of Associate’s right to elect
continued benefits coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA) and
the Employee Retirement Income Security Act (ERISA).
(d) Associate will receive his accrued, unused Paid Time Off (“PTO”) accumulated through
Neoware as of the Termination Effective Date less taxes and other withholdings required by law, for
the calendar years 2005 and 2006 as well as for accrued, unused PTO from the Maxspeed PTO rollover
balance in accordance with Neoware’s regular pay schedule.
(e) In further consideration of said release, Neoware will either, at Associate’s option, (i)
pay Associate’s COBRA payment, on behalf of Associate, in order to provide Associate and his family
with continuation of Associate’s then existing Neoware medical, vision and dental benefits for
himself and his family for a period of twelve (12) months, or (ii) pay Associate a lump sum
amount equivalent to the value of twelve (12) months of COBRA payments, less taxes and other
deductions required by law to be withheld, upon receipt of executed agreement provided that
Associate has not revoked this Agreement as set forth in Section X.
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II.
In exchange for the promises set forth in Section I, above, Associate covenants and agrees to:
(a) Fully and forever release, discharge, cancel, waive, and acquit for Associate, his/her
heirs, executors, administrators and assigns, Neoware and any and all of its related entities,
affiliates, subsidiaries, corporate parent, directors, agents, officers, owners, employees,
attorneys, successors and assigns (the “Neoware Released Parties”), of and from any and all rights,
claims, demands, causes of action, obligations, damages, penalties, fees, costs, expenses, and
liability of any nature whatsoever, including personal injury claims, which Associate has, had or
may have had against any of the Neoware Released Parties, arising out of, or by reason of the
termination of Associate’s employment or any cause, matter, or thing whatsoever arising from events
or actions occurring on or before the Termination Effective Date, WHETHER KNOWN TO THE PARTIES AT
THE TIME OF EXECUTION OF THIS AGREEMENT OR NOT.
This FULL WAIVER OF ALL CLAIMS includes, without limitation, attorneys’ fees, costs, any
claims, demands, or causes of action arising out of, or relating in any manner whatsoever to, the
employment and/or cessation of that employment, such as, BUT NOT LIMITED TO, any charge, claim,
lawsuit or other proceeding arising under the Older Worker’s Benefit Protection Act (OWBPA), the
Age Discrimination in Employment Act (ADEA), the Civil Rights Act of 1866 (Section 1981), Title VII
as amended by the Civil Rights Act of 1991, the Americans with Disabilities Act (ADA), the Labor
Management Relations Act (LMRA), the National Labor Relations Act (NLRA), ERISA, COBRA, the Fair
Labor Standards Act (FLSA), the California
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Fair Employment and Housing Act, the Family and Medical
Leave Act of 1993 (FMLA), all as amended, as well as any claims arising under any other federal,
state, or local statutes and common law claims for wrongful termination, discrimination, breach of
contract or misrepresentation. Nothing contained in this Agreement, however, shall constitute a release by
Associate of any vested benefit or stock option benefits to which Associate may otherwise be
entitled and/or any claims for workers’ compensation.
In giving the above release, which includes claims which may be unknown to Associate at
present, Associate acknowledges that Associate has read and understands Section 1542 of the
California Civil Code, to the extent that it is determined that said provision applies herein,
which reads 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.” Associate expressly waives and
relinquishes all rights and benefits under that section and any law of any jurisdiction of similar
effect with respect to Associate’s release of any unknown or unsuspected claims that Associate may
have against Neoware.
Associate further agrees that, while the release above may not prevent Associate from filing a
charge with the Equal Employment Opportunity Commission (“EEOC”) and/or participating in any such
proceedings to challenge the knowing and voluntary nature of this Agreement under the ADEA,
Associate acknowledges that he has not filed any such claims or commenced any action with an
administrative agency or court regarding any claims released in this Agreement;
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(b) Waive all right, title and interest in any benefit plan of Neoware and waive and release
all claims based on or related to such benefit plans or programs other than for which Associate is
vested as of the Termination Effective Date; and
(c) Refrain from activity harmful to or make any disparaging statements concerning Neoware,
its affiliates, corporate parent, subsidiaries, officers, directors, attorneys, agents, employees,
successors or assigns, either publicly or privately.
III.
(a) As a material inducement to Neoware to enter into this Agreement, Associate agrees to hold
in the strictest confidence the terms and conditions of this Agreement. Associate covenants and
agrees that Associate will not, either directly or through any other person, agent or
representative, discuss or disclose either publicly or privately, the existence or content of this
Agreement, except to accountants, attorneys, any state tax department or the Internal Revenue
Service, or any other state or federal official in response to legitimate inquiry. Should Associate
be required by law to disclose any information made confidential by this Agreement, Associate shall
first provide at least ten (10) business days’ written notice to Xxxxx Xxxxx, at the address of
Neoware, Inc, 0000 Xxxxxxx Xxxxx, Xxxx xx Xxxxxxx, XX, 00000, of Associate’s requirement to do so
such that the Company may take any steps it deems necessary to protect the confidentiality of this
information.
(b) Associate acknowledges that all documents and electronic information related to the
business of the Company that Associate acquired or generated during the period of Associate’s
employment with the Company, and all copies thereof, including but not limited to, handwritten
notes, memoranda, computer programs, software, and electronic information, are and shall be the
property of the Company, and that all such property of the Company shall be returned to the
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Company
upon execution of this Agreement. By execution of this Agreement, Associate certifies that all
copies thereof have been returned or destroyed. Associate shall delete all computer programs, software and
electronic information of the Company to the extent that it may have been retained on any personal
computer system, hard drives or computer disks. All Company-owned property including laptop
computers, cabinet keys, passwords, license keys, back-up tapes, peripheral and other software and
hardware, security and/or entry cards, credit cards and any other property shall be returned to the
Company immediately upon separation.
(c)
Associate agrees that,
during the term of his
employment, he has been
provided access to
Confidential Information and
Trade Secrets of the Company.
Associate agrees that he
will keep in the strictest of
confidence and shall not
disclose or divulge to any
third party, any Confidential
Information and Trade Secrets
of the Company learned by
Associate and shall not use
them for his own benefit or
disclose them to anyone
outside of the Company,
except at the Company’s
express prior written
consent. For purposes of
this Agreement “Confidential
Information” shall mean
information disclosed to
Associate or learned or made
known to Associate as a
consequence of or through his
employment by the Company
and, not generally known in
the industry in which the
Company is engaged, about the
Company’s clients, customers,
products, processes, including,
but not limited to, information
relating to research,
development, source codes, object
codes or other technology-based
information or products,
inventions, manufacturing,
purchasing, accounting,
engineering, marketing,
merchandising and selling, as
well as lists of actual or
prospective customers, customer
contacts, pricing strategy,
sources of suppliers and
materials, accounting records,
operating and cost data or other
Company financial information,
compilations of information,
drawings, proposals, job notes,
reports, records and
specifications, inventions,
technology, patent applications
and/or any other proprietary
information as may exist
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or be
developed from time to time by
the Company or its affiliates.
For purposes of this Agreement,
“Trade Secret” means the whole or
any portion or phase of any
scientific or technical
information, design, process,
formula, or improvement which is
secret and is not generally
available to the public, and
which gives one who uses it an
advantage over competitors who do
not know of or use it.
(d)
Associate further agrees
that all such
Confidential Information and
Trade Secrets are the sole and
exclusive property of the Company
and that protection of this
Confidential Information and
Trade Secrets are essential to
the protection of the Company’s
goodwill and competitive
position. Associate agrees that
all Confidential Information and
Trade Secrets in any form, shall
be returned to the Company upon
execution of this Severance
Agreement and further represents
that all additional copies
thereof have been destroyed.
Associate shall also delete all
computer programs, software and
electronic information of the
Company to the extent that it may
have been retained on any
personal computer systems, hard
drives or computer disks.
(e)
Associate acknowledges that,
effective the Termination
Date, he no longer has the
authority to and shall not
access or attempt to access
any Neoware system including,
but not limited to, dial-up
connections, email or network
servers or systems, and/or
any third-party hosted
services. Associate further
agrees that he shall not,
using any form of Neoware
authentication, contact or
attempt to contact, himself
or on any other parties’
behalf, any Neoware vendor
including, but not limited
to, Citrix and Microsoft, by
telephone, website or by any
other means.
IV.
Associate agrees that the breach or threatened breach of Section III of this Agreement shall
cause the Company to suffer irreparable harm. In addition to all other remedies that the Company
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may have at law or in equity for breach of this Agreement, the Company shall therefore have the
right to injunctive relief. The Company shall further have the right to rescind this Agreement,
including the right to recover all monies paid to Associate pursuant to the terms set forth in
Section I of this Agreement, including but not limited to, that paid for damages and/or separation.
V.
Associate covenants and agrees to constructively and actively assist Neoware in any
governmental or similar investigation and to promptly notify Neoware of any such investigation of
which Associate may become aware. This provision shall survive the termination of this Agreement.
VI.
By execution of this Agreement, Associate avows that the following statements are true:
(a) Associate has been given the opportunity to and has, in fact, read this entire Agreement,
and has had all questions regarding its meaning answered to Associate’s satisfaction;
(b) Associate has been advised to seek and has been given the full opportunity to seek
independent advice and/or counsel;
(c) The payments and benefits that the Company has agreed to provide in Section I of this
Agreement are, in whole or in part, payments and benefits to which Associate would not be otherwise
entitled in the absence of this Agreement;
(d) The content of this Agreement is written in plain language, are fully understood, and it
is also understood that it is a FULL WAIVER OF ALL CLAIMS;
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(e) This FULL WAIVER OF ALL CLAIMS is given in return for valuable consideration as provided
under the terms of this Agreement including but not limited to the payments set forth in Section I
above;
(f) This Agreement is knowingly and voluntarily entered into and no representations have been
made to induce or influence Associate’s execution of this Agreement other than those contained
herein;
(g) Associate acknowledges having been given at least twenty-one (21) days to consider this
Agreement before signing and acknowledges that he has seven (7) days following his execution of
this Agreement to revoke his agreement to this Agreement.
(h) Associate has not heretofore assigned or transferred or purported to assign or transfer to
any person or entity any claim or portion thereof or interest therein which is released, acquitted
or discharged in this Agreement;
(i) Neoware is not obligated to provide and Associate shall not receive any money or
consideration from Neoware other than the money and consideration promised in Section I of this
Agreement for settlement of the claims released in this Agreement;
(j) Associate acknowledges that, as of the execution of this Agreement, Associate has already
received all earned wages due Associate upon termination;
(k) This Agreement shall be binding upon and inure to the benefit of Neoware’s successors and
assigns. This Agreement shall not be assignable by Associate;
(l) Associate has not relied upon any advice whatsoever from Neoware or its attorneys as to
the taxability, whether pursuant to federal, state or local tax statutes, regulations or otherwise
of the payments or considerations promised hereunder and Associate is solely responsible and liable
for any amount of tax obligations arising from the payment of the sums specified in Section I
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and
all tax obligations, if any, will be paid in full by Associate. Associate agrees to indemnify and
hold Neoware harmless from and against any and all liabilities arising out of Associate’s failure
to comply with this paragraph;
(m) Associate acknowledges that, effective on the Termination Effective Date, Associate will
not be entitled to further participate in any benefits made available to employees of the Company;
and
(n) Associate has no pending Workers Compensation claim(s) against Neoware and knows of no
situations that might give rise to any such claim.
VII.
This Agreement shall be governed in all respects, whether as to validity, construction,
capacity, performance, or otherwise, by the laws of the Commonwealth of Pennsylvania, and no action
involving this Agreement may be brought except in either
the Court of Common Pleas of Xxxxxxxxxx County or the District Court for the Eastern District
of Pennsylvania.
If any provision of this Separation Agreement and Release, or the application thereof, is held
to be invalid, void or unenforceable for whatever reason, the remaining provisions not so declared
shall nevertheless continue in full force and effect without being impaired in any manner
whatsoever.
VIII.
This Agreement shall be deemed drafted by the parties hereto. The language of all parts of
this Agreement shall be construed as a whole, according to their fair meaning and any presumption
or other principles that language herein is to be construed against any party shall not apply.
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IX.
This Agreement constitutes the sole and entire Agreement between the parties hereto, and
supersedes any and all understandings and agreements made prior hereto except any such agreements
concerning confidentiality and/or non-competition and non-solicitation, the obligations of which
are expressly confirmed by Associate. There are no collateral understandings, representations or
agreements other than those contained herein. It is understood and agreed that the execution of
this Agreement by Neoware is not an admission of liability on its part to Associate, and execution
of this Agreement by Associate is not an admission of liability on Associate’s part to Neoware, but
is a settlement agreement to put to rest any claim of any kind whatsoever relating to the
employment of Associate by Neoware and/or the cessation of that employment.
X.
Associate understands and acknowledges that Associate has twenty-one (21) days
from the date hereof to consider this Agreement. Associate also understands and acknowledges that
Associate has seven (7) days after signing this Agreement to revoke Associate’s consent (the
“Revocation Period”). Associate further acknowledges that except for the recital identifying the
Termination Effective Date and Section VI (g) hereof, which are effective immediately, this
Agreement is not effective until after the Revocation Period has passed. If Associate elects to
revoke this Agreement, Associate must send Associate’s written notice of revocation to Xxxxx Xxxxx,
Neoware, Inc., 0000 Xxxxxxx Xxxxx, Xxxx xx Xxxxxxx, XX 00000 by overnight mail from a recognized
courier therefore.
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IN WITNESS WHEREOF, the undersigned parties have signed this Agreement on the date indicated
herein.
| NEOWARE, INC. | ||||
By:
|
/S/ XXXXXXXX X. XXXXXX | |||
Title:
|
VICE PRESIDENT, HUMAN RESOURCES | |||
Date:
|
NOVEMBER 8, 2006 | |||
I declare that the terms of this Agreement/Release have been completely read, that I had the
opportunity to consult with an attorney and was advised to do so, that the terms of the legal
release are fully understood and are voluntarily accepted knowing that I am waiving legal rights.
By:
|
/S/ XXX XXXXX | |||
| XXX XXXXX | ||||
Date:
|
NOVEMBER 6, 2006 | |||
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I, XXX XXXXX, acknowledge that I have read and understand the attached Separation
Agreement and General Release of All Claims (“Agreement”). I further understand that the Agreement
is revocable by me for a period of seven (7) days following execution thereof, and that except for
the recital identifying the Termination Effective Date and Section VI(k) thereof, which are
effective immediately, the Agreement shall not become effective or enforceable until this seven-day
revocation period has ended.
I further acknowledge that, while the Agreement may not prevent me from filing a charge
with the Equal Employment Opportunity Commission (“EEOC”) to challenge the knowing and voluntary
nature of this Agreement, I have not filed any such claims or commenced any action with an
administrative agency or court regarding any claims released in this Agreement.
I acknowledge that I have been encouraged to discuss the release language in the
Agreement with an attorney prior to executing the Agreement and that I have thoroughly reviewed and
understand the effect of the release. I further acknowledge that I have been given twenty-one (21)
days in which to consider the Agreement and that, if I sign the Agreement before the end of the
twenty-one (21) day period, I am doing so freely, voluntarily and after having had full and fair
opportunity to consult with my retained counsel.
/S/ XXX XXXXX
|
Date: | NOVEMBER 6, 2006 | ||
XXX XXXXX |
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