March 30, 2023
Xxxxxxx Xxxx
March 30, 2023
Re: Terms of Separation
Dear Xxxxxxx:
This letter confirms the agreement (“Agreement”) between you and Immersion Corporation (the “Company”) concerning the terms of your separation and offers you the separation compensation we discussed in exchange for a general release of claims and covenant not to sue.
1.Separation Date: Your employment is ending effective March 31, 2023 (the “Separation Date”). You agree to resign from all officer or director positions you have with the Company, its subsidiaries, affiliates and/or investments. You further agree that you shall promptly execute such additional documents as are reasonably requested by the Company to evidence and effectuate this Section 1.
2.Acknowledgment of Payment of Wages: By your signature below, you acknowledge that on March 31, 2023 we provided you with a final paycheck in the gross amount of $10,399.76 representing all wages, salary, paid time off, and any similar payments due you from the Company as of the Separation Date. By signing below, you acknowledge that the Company does not owe you any other amounts and that you have been reimbursed for all reimbursable business-related expenses.
a.Separation Compensation: In exchange for your agreement to the general release and waiver of claims and covenant not to sue set forth below and your other promises herein, the Company agrees to pay you, within ten (10) business days following the Effective Date (as defined below) of this Agreement, the following: (i) a lump sum payment in the gross amount of $75,000.00, less applicable state and federal payroll deductions. By signing below, you acknowledge that you are receiving the separation compensation outlined in this section in consideration for waiving your rights to claims referred to in this Agreement and that you would not otherwise be entitled to the separation compensation.
3.Return of Company Property: You hereby warrant to the Company that you have returned to the Company all property or data of the Company of any type whatsoever that has been in your possession or control.
4.Proprietary Information: You hereby acknowledge that you are bound by the attached Proprietary Information and Inventions Agreement (Exhibit A hereto) and that as a result of your employment with the Company you have had access to the Company’s Proprietary Information (as defined in the agreement), that you will hold all Proprietary Information in strictest confidence and that you will not make use of such Proprietary Information on behalf of anyone. You further confirm that you have delivered to the Company all documents and data of any nature containing or pertaining to such Proprietary Information and that you have not taken with you any such documents or data or any reproduction thereof.
Xxxxxxx Xxxx
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5.Stock Options and Restricted Stock Units: Attached as Exhibit B is your Closing Statement setting forth the status of your option(s), if any, to purchase shares of the Company’s common stock, including how many shares are exercisable and the last date to exercise your option(s). Your rights concerning the option(s) will continue to be governed by the applicable stock option plan and stock options agreement(s), if any, between you and the Company. Also, on Exhibit B is the status of your restricted stock units, including the number of shares that are released as of the Separation Date.
6.General Release and Waiver of Claims:
a.The payments and promises set forth in this Agreement are in full satisfaction of all accrued salary, vacation pay, bonus and commission pay, profit‑sharing, stock, stock options or other ownership interest in the Company, termination benefits or other compensation to which you may be entitled by virtue of your employment with the Company or your separation from the Company, including but not limited to any right to severance pay to which you may at any time be entitled to receive from the Company. To the fullest extent permitted by law, you hereby release and waive any other claims you may have against the Company and its owners, agents, officers, shareholders, employees, directors, attorneys, subscribers, subsidiaries, affiliates, successors and assigns (collectively “Releasees”), whether known or not known, including, without limitation, from any and all claims, demands, obligations and/or liabilities which arise out of or relate to any action by the Company or the Releasees or omission to act by the Company or the Releasees occurring on or before the date this Agreement is signed by the Employee (the “Release”). The Release includes, but is not limited to, a release of any and all claims arising out of your employment with the Company or the termination of that employment. This release includes a release of any employment laws, including, but not limited to, claims of unlawful discharge, breach of contract, breach of the covenant of good faith and fair dealing, fraud, violation of public policy, defamation, physical injury, emotional distress, claims for additional compensation or benefits arising out of your employment or your separation of employment, claims under Title VII of the 1964 Civil Rights Act, as amended, the California Fair Employment and Housing Act and any other laws and/or regulations relating to employment or employment discrimination, including, without limitation, claims based on age or under the Age Discrimination in Employment Act or Older Workers Benefit Protection Act, and/or claims based on disability or under the Americans with Disabilities Act.
b.By signing below, you expressly waive any benefits of Section 1542 of the Civil Code of the State of California, which provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
Xxxxxxx Xxxx
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c. You and the Company do not intend to release claims that you may not release as a matter of law, including but not limited to claims for indemnity under California Labor Code Section 2802, claims for unemployment or workers’ compensation benefits or any claims for enforcement of this Agreement. You also do not waive your right to indemnification as set forth in your Indemnity Agreement, dated January 24, 2023. To the fullest extent permitted by law, any dispute regarding the scope of this general release shall be determined by an arbitrator under the procedures set forth in the arbitration clause below.
7.Covenant Not to Sue:
a.To the fullest extent permitted by law, at no time subsequent to the execution of this Agreement will you pursue, or cause or knowingly permit the prosecution of, in any state, federal or foreign court, or before any local, state, federal or foreign administrative agency, or any other tribunal, of any charge, claim or action of any kind, nature and character whatsoever, known or unknown, which you may now have, have ever had, or may in the future have against Releasees, which is based in whole or in part on any matter released by this Agreement.
b.Nothing in this section shall prohibit or impair you or the Company from complying with all applicable laws, nor shall this Agreement be construed to obligate either party to commit (or aid or abet in the commission of) any unlawful act.
8.Protected Rights: You understand that nothing in the General Release and Waiver of Claims and Covenant Not to Sue sections above, or otherwise in this Agreement, limits your ability to file a charge or complaint with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other federal, state or local government agency or commission (“Government Agencies”). You further understand that this Agreement does not limit your ability to communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company. To the maximum extent permitted by law, you waive your right to receive any individual monetary relief from such Government Agencies if the relief is related to the claims released in this Agreement; however, this Agreement does not limit your right to receive an award for information provided to any Government Agencies.
9.Non-disparagement: You agree that you will not disparage Releasees or their products, services, agents, representatives, directors, officers, shareholders, attorneys, employees, vendors, affiliates, successors or assigns, or any person acting by, through, under or in concert with any of them, with any written or oral statement. Nothing in this section shall prohibit you from providing truthful information in response to a subpoena or other legal process. Nothing in this Agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.
Xxxxxxx Xxxx
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10.Arbitration: Except for any claim for injunctive relief arising out of a breach of a party’s obligations to protect the other’s proprietary information, the parties agree to arbitrate, in Santa Clara, California through JAMS, any and all disputes or claims arising out of or related to the validity, enforceability, interpretation, performance or breach of this Agreement, whether sounding in tort, contract, statutory violation or otherwise, or involving the construction or application or any of the terms, provisions, or conditions of this Agreement. Any arbitration may be initiated by a written demand to the other party. The arbitrator’s decision shall be final, binding, and conclusive. Judgment upon the award rendered by the arbitrator in such proceeding may be entered in any court having jurisdiction thereof, provided, however, that the law applicable to any issues regarding the scope, effectiveness or interpretation of this arbitration provision shall be the Federal Arbitration Act. The parties further agree that this Agreement is intended to be strictly construed to provide for arbitration as the sole and exclusive means for resolution of all disputes hereunder to the fullest extent permitted by law. The parties expressly waive any entitlement to have such controversies decided by a court or a jury.
11.Attorneys’ Fees: If any action is brought to enforce the terms of this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and expenses from the other party, in addition to any other relief to which the prevailing party may be entitled.
12.Confidentiality: The contents, terms and conditions of this Agreement must be kept confidential by you and may not be disclosed except to your immediate family, accountant or attorneys or pursuant to subpoena or court order. You agree that if you are asked for information concerning this Agreement, you will state only that you and the Company reached an amicable resolution of any disputes concerning your separation from the Company. Any breach of this confidentiality provision shall be deemed a material breach of this Agreement.
13.No Admission of Liability: This Agreement is not and shall not be construed or contended by you to be an admission or evidence of any wrongdoing or liability on the part of Releasees, their representatives, heirs, executors, attorneys, agents, partners, officers, shareholders, directors, employees, subsidiaries, affiliates, divisions, successors or assigns. This Agreement shall be afforded the maximum protection allowable under California Evidence Code Section 1152 and/or any other state or federal provisions of similar effect.
14.Complete and Voluntary Agreement: This Agreement, together with Exhibits A and B hereto and the Stock Option Agreements, constitute the entire agreement between you and Releasees with respect to the subject matter hereof and supersedes all prior negotiations and agreements, whether written or oral, relating to such subject matter, including but not limited to the Change of Control and Severance Agreement entered into by the Parties effective May 26, 2022. You acknowledge that neither Releasees nor their agents or attorneys have made any promise, representation or warranty whatsoever, either express or implied, written or oral, which is not contained in this Agreement for the purpose of inducing you to execute the Agreement, and you acknowledge that you have executed this Agreement in reliance only upon such promises, representations and warranties as are contained herein, and that you are executing this Agreement voluntarily, free of any duress or coercion.
Xxxxxxx Xxxx
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15.Severability: The provisions of this Agreement are severable, and if any part of it is found to be invalid or unenforceable, the other parts shall remain fully valid and enforceable. Specifically, should a court, arbitrator, or government agency conclude that a particular claim may not be released as a matter of law, it is the intention of the parties that the general release, the waiver of unknown claims and the covenant not to sue above shall otherwise remain effective to release any and all other claims.
16.Modification; Counterparts; Facsimile/PDF Signatures: It is expressly agreed that this Agreement may not be altered, amended, modified, or otherwise changed in any respect except by another written agreement that specifically refers to this Agreement, executed by authorized representatives of each of the parties to this Agreement. This Agreement may be executed in any number of counterparts, each of which shall constitute an original and all of which together shall constitute one and the same instrument. Execution of a facsimile or PDF copy shall have the same force and effect as execution of an original, and a copy of a signature will be equally admissible in any legal proceeding as if it was an original.
17.Review of Separation Agreement: You understand that you may take up to twenty-one (21) days to consider this Agreement (the “Consideration Period”), and, by signing below, affirm that you were advised to consult with an attorney prior to signing this Agreement. Mutually agreed upon changes to this Agreement, whether material or immaterial, do not restart the 21-day period You also understand you may revoke this Agreement within seven (7) days of signing this document by notifying the Chief Executive Officer at his corporate email address and that the separation compensation to be provided to you pursuant to Section 3 will be provided only after the expiration of that seven (7) day revocation period without revocation by you. You agree and acknowledge that you are aware of the email address of the Chief Executive Officer of the Company.
18.Acceptance; Expiration: You may accept this offer of Separation Compensation in exchange for a release of claims by signing and returning the executed Agreement to the Chief Executive Officer of the Company prior to the conclusion of the Consideration Period. You agree and acknowledge that you are aware of the email address of the Chief Executive Officer of the Company, which is where you may send your executed Separation Agreement. This offer will automatically expire if not accepted by you within the Consideration Period.
19.Effective Date: This Agreement is effective on the eighth (8th) day after you sign it and without revocation by you (the “Effective Date”).
20.Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of California.
21.You represent and warrant that 1) you have had the opportunity to discuss this Agreement with counsel; 2) you sign this Agreement of your own volition, without outside inducement or coercion, fully intending to be bound by its terms, including the Release and covenants contained herein; and 3) you are signing this Agreement, including the Release, in exchange for good and valuable consideration in addition to anything of value the Executive is otherwise entitled to receive.
Xxxxxxx Xxxx
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If you agree to abide by the terms outlined in this Agreement, please sign and return it to me. I wish you the best in your future endeavors.
Sincerely,
Immersion Corporation
| By: | /s/ Xxxx Xxxxxx | ||||
| Xxxx Xxxxxx | |||||
| President and Chief Executive Officer | |||||
READ, UNDERSTOOD AND AGREED
/s/ Xxxxxxx Xxxx Date: March 29, 2023
Xxxxxxx Xxxx
Xxxxxxx Xxxx
Xxxxxxx Xxxx
Page 7
EXHIBIT A
Proprietary Information and Inventions Agreement
Xxxxxxx Xxxx
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EXHIBIT B
Stock Closing Statement
______________________________________________________________________________________________________________________________________________ IMMERSION ID: 00-0000000 2999 N. E. 000xx Xxxxxx Xxxxx 000 Xxxxxxxx, XX 00000 Closing Statement As Of = Termination Date Termination Date: 31-March-2023 Statement Effective Date : 31-March-2023 _____________________________________________________________________________________________________________________ Xxxxxxx Xxxx ID: 10364 00 Xxxxxx Xx. Xxx #000 Xxx Xxxx, XX Xxxxxx Xxxxxx 95134 2 __________________________________________________________________________________________________________________________ Exercisable Options Grant Plan/ Shares Shares Shares Shares Vesting Total Last Date Number Date Type Price ($) Granted Exercised Exercisable Cancelled Stop Date Price ($) To Exercise _________ ________ _________ ___________ ______________ ______________ ______________ ____________ ___________ ___________ ___________ 002764 13-Mar-09 IP08/NQ 3.1800 9,000.00 9,000.00 0.00 0.00 31-Mar-23 0.00 ______________ ______________ ______________ ___________ ___________ TOTALS 9,000.00 9,000.00 0.00 0.00 0.00 __________________________________________________________________________________________________________________________ Releasable Restricted Stock Awards Grant Plan/ Shares Shares Shares Shares Number Date Type Price ($) Granted Released Releasable Cancelled _________ ________ _________ ___________ ______________ ______________ ______________ ____________ 002898 01-Apr-10 EP07/RSU 0.0000 6,000.00 6,000.00 0.00 0.00 002947 14-Mar-11 EP07/RSU 0.0000 8,500.00 8,500.00 0.00 0.00 003072 05-Mar-12 EP11/RSU 0.0000 4,600.00 4,600.00 0.00 0.00 003073 05-Mar-12 EP11/RSU 0.0000 4,500.00 4,500.00 0.00 0.00 ________________________________________________________________________________________ Date: 03/27/2023 Time: 05:42:09PM Page: 1 Exhibit B
______________________________________________________________________________________________________________________________________________ IMMERSION ID: 00-0000000 2999 N. E. 000xx Xxxxxx Xxxxx 000 Xxxxxxxx, XX 00000 Closing Statement As Of = Termination Date Termination Date: 31-March-2023 Statement Effective Date : 31-March-2023 _____________________________________________________________________________________________________________________ Xxxxxxx Xxxx ID: 10364 00 Xxxxxx Xx. Xxx #000 Xxx Xxxx, XX Xxxxxx Xxxxxx 00000 2 003161 14-Dec-12 EP11/RSU 0.0000 3,000.00 3,000.00 0.00 0.00 003190 04-Mar-13 EP11/RSU 0.0000 7,000.00 7,000.00 0.00 0.00 003191 04-Mar-13 EP11/RSU 0.0000 6,275.00 6,275.00 0.00 0.00 003353 24-Feb-14 EP11/RSU 0.0000 3,900.00 3,900.00 0.00 0.00 003354 24-Feb-14 EP11/RSU 0.0000 2,500.00 2,500.00 0.00 0.00 003507 03-Mar-15 EP11/RSU 0.0000 5,550.00 5,550.00 0.00 0.00 003508 03-Mar-15 EP11/RSU 0.0000 4,000.00 4,000.00 0.00 0.00 003790 01-Mar-16 EP11/RSU 0.0000 4,000.00 4,000.00 0.00 0.00 003791 01-Mar-16 EP11/RSU 0.0000 4,000.00 4,000.00 0.00 0.00 003967 07-Mar-17 EP11/RSU 0.0000 3,300.00 3,300.00 0.00 0.00 003968 07-Mar-17 EP11/RSU 0.0000 3,300.00 3,300.00 0.00 0.00 004101 26-Feb-18 EP11/RSU 0.0000 15,050.00 15,050.00 0.00 0.00 004150 26-Feb-18 EP11/RSU 0.0000 18,706.00 18,706.00 0.00 0.00 004217 28-Feb-19 EP11/RSU 0.0000 10,400.00 10,400.00 0.00 0.00 004218 28-Feb-19 EP11/RSU 0.0000 5,000.00 5,000.00 0.00 0.00 004279 14-Jun-19 EP11/RSU 0.0000 30,000.00 30,000.00 0.00 0.00 004339 09-Mar-20 EP11/RSU 0.0000 10,450.00 10,450.00 0.00 0.00 002851 01-Apr-10 EP07/RSU 0.0000 6,634.00 6,634.00 0.00 0.00 ______________ ______________ ______________ ___________ TOTALS 166,665.00 166,665.00 0.00 0.00 ________________________________________________________________________________________ Date: 03/27/2023 Time: 05:42:09PM Page: 2
