Exhibit 10.12
SEPARATION AGREEMENT AND RELEASE
This Agreement is between TCSI, a Nevada corporation ("Employer" or the
"Company"), and Xxxxxxx Xxxxxxxx ("Employee").
RECITALS
Employee is currently employed by Employer as President and Chief Executive
Officer.
Employer and Employee desire to terminate their employment relationship on
mutually agreeable terms effective as of October 22, 2001 ("Separation Date").
In consideration of the Severance payment and other consideration stated in this
Separation Agreement and Release ("Agreement"), Employee agrees to execute the
release as set forth in this Agreement.
ACCORDINGLY, the parties agree as follows:
1. EMPLOYER OBLIGATIONS.
(a) Severance Pay. Upon satisfaction by Employee of all his obligations
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under this Agreement, Employer shall pay to Employee Two Hundred Fifty Thousand
Dollars ($250,000) ("Severance Pay"). Payment shall be made in accordance with
TCSI's normal payroll practices in twenty-four semi-monthly installments. The
first payment shall be made on the first payroll payment date following the
parties' execution of this Agreement. All payments to Employee shall be less
withholdings required by law.
(b) Acceleration Of Stock Option Vesting. Upon satisfaction by Employee
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of all his obligations under this Agreement, Employer shall accelerate
Employee's vesting in an option to purchase 100,000 shares of TCSI stock granted
to Employee as part of a Non-Qualified Stock Option to purchase 750,000 shares
of TCSI effective August 7, 2000. The accelerated option vesting under this
Agreement shall be governed by the terms and conditions of TCSI Corporation's
1991 Stock Incentive Plan, as amended, and the applicable Notice of Grant of
Stock Option & Option Agreement, effective August 7, 2000, as amended.
2. EMPLOYEE OBLIGATIONS.
(a) Return of Property. Employee shall promptly return to Employer all
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property of Employer, including, without limitation, all equipment, tangible
proprietary information, documents, books, records, reports, contracts, lists,
computer disks (or other computer-generated files or data), or copies thereof,
created on any medium, prepared or obtained by Employee in the course of or
incident to him employment with Employer, except for laptop computer.
(b) Continuing Obligations. Employee specifically acknowledges and
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reaffirms the continuing effect of the obligations contained in the
Non-Disclosure/Assignment Agreement entered into between the parties on August
7, 2000.
(c) Board Resignation. Employee shall resign from his membership on the
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Board of Directors of TCSI.
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3. RELEASE. Employee and his representatives, heirs, successors, and assigns do
hereby completely release and forever discharge Employer, any Affiliate, and its
and their present and former shareholders, officers, directors, agents,
employees, attorneys, successors, and assigns (collectively, "Released Employer
Parties") from all claims, rights, demands, actions, obligations, liabilities,
and causes of action of every kind and character, known or unknown, mature or
unmatured, which Employee may have now or in the future arising from any act or
omission or condition occurring on or prior to the Separation Date (including,
without limitation, the future effects of such acts, omissions, or conditions),
whether based on tort, contract (express or implied), or any federal, state, or
local law, statute, or regulation (collectively, the "Released Employee
Claims"). By way of example and not in limitation of the foregoing, Released
Employee Claims shall include any claims arising under Title VII of the Civil
Rights Act of 1964, the Americans with Disabilities Act, and the California Fair
Employment and Housing Act, the Age Discrimination in Employment Act, as well as
any claims asserting wrongful termination, harassment, breach of contract,
breach of the covenant of good faith and fair dealing, negligent or intentional
infliction of emotional distress, negligent or intentional misrepresentation,
negligent or intentional interference with contract or prospective economic
advantage, defamation, invasion of privacy, and claims related to disability.
Released Employee Claims shall also include, but not be limited to, claims for
wages or other compensation due, severance pay, bonuses, sick leave, vacation
pay, life or health insurance, or any other fringe benefit. Employee likewise
releases the Released Employer Parties from any and all obligations for
attorneys' fees incurred in regard to the above claims or otherwise. Employee
acknowledges that upon payment of the Severance Pay he has, or will have,
received all wages, vacation, bonuses and other compensation earned and due as
of the Separation Date. Notwithstanding the foregoing, Released Employee Claims
shall not include any claims based on obligations created by or reaffirmed in
this Agreement. Furthermore, Released Employee Claims shall not include any
contractual, implied or statutory indemnification rights to which Employee would
be entitled for acts committed within the course and scope of his employment
with Employer.
Employer any Affiliate, and its and their present and former shareholders,
officers, directors, agents, employees, attorneys, successors, and assigns do
hereby completely release and forever discharge Employee and his
representatives, heirs, successors, and assigns (collectively, "Released
Employee Parties") from all claims, rights, demands, actions, obligations,
liabilities, and causes of action of every kind and character, known or unknown,
mature or unmatured, which Employer may have now or in the future arising from
any act or omission or condition occurring within the course and scope of
Employee's employment on or prior to the Separation Date (including, without
limitation, the future effects of such acts, omissions, or conditions), whether
based on tort, contract (express or implied), or any federal, state, or local
law, statute, or regulation (collectively, the "Released Employer Claims").
Employer likewise releases the Released Employee Parties from any and all
obligations for attorneys' fees incurred in regard to the above claims or
otherwise. Notwithstanding the foregoing, Released Employer Claims shall not
include any claims based on obligations created by or reaffirmed in this
Agreement. Furthermore, Released Employer Claims shall not include any
contractual, implied or statutory indemnification rights to which Employer may
be entitled for acts committed outside the course and scope of Employee's
employment. Employer likewise releases the Released Employee Parties from any
and all obligations for attorneys' fees incurred in regard to the above claims
or otherwise.
4. SECTION 1542 WAIVER. The parties understand and agree that the Released
Employer Claims and Released Employee Claims include not only claims presently
known to the parties, but also include all unknown or unanticipated claims,
rights, demands, actions, obligations, liabilities, and causes of action of
every kind and character that would otherwise come within the scope of the
Released Employer Claims and Released Employee Claims as described in Section 3.
Employee and Employer understand that they may hereafter discover facts
different from what they now believe to be true, which if known,
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could have materially affected this Agreement, but they nevertheless waive any
claims or rights based on different or additional facts. Employee and Employer
knowingly and voluntarily waive any and all rights or benefits that they may now
have, or in the future may have, under the terms of Section 1542 of the
California Civil Code, which provides as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in him favor at the time of executing the
release, which if known by him must have materially affected him
settlement with the debtor.
5. COVENANT NOT TO XXX. Employee and Employer shall not xxx or initiate against
any Released Party any compliance review, action, or proceeding, or participate
in the same, individually or as a member of a class, under any contract (express
or implied), or any federal, state, or local law, statute, or regulation
pertaining in any manner to the Released Employer Claims and Released Employee
Claims.
6. NOTICES. Any notice or other communication under this Agreement must be in
writing and shall be effective upon delivery by hand or three (3) business days
after deposit in the United States mail, postage prepaid, certified or
registered, and addressed to Employer or to Employee at the corresponding
address below. Employee shall be obligated to notify Employer in writing of any
change in him address. Notice of change of address shall be effective only when
done in accordance with this Section.
Employer's Notice Address: Employee's Notice Address:
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TCSI Yasushi Furakawa
0000 Xxxxxx Xxxxxxx Xxxxxxx 00 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxx, XX 00000
7. INTEGRATION. The parties understand and agree that the preceding Sections
recite the sole consideration for this Agreement; that no representation or
promise has been made by Employee, Employer, or any other Released Party on any
subject covered under this Agreement, except as expressly set forth in this
Agreement; and that all agreements and understandings between the parties on any
subject covered by this Agreement are embodied and expressed in this Agreement.
This Agreement shall supersede all prior or contemporaneous agreements and
understandings among Employee, Employer, and any other Released Party, whether
written or oral, express or implied, with respect to any subject covered by this
Agreement, except to the extent that the provisions of any such agreements and
understandings have been expressly referred to in this Agreement as having
continued effect.
8. AMENDMENTS; WAIVERS. This Agreement may not be amended except by an
instrument in writing, signed by each of the parties. No failure to exercise and
no delay in exercising any right, remedy, or power under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power under this Agreement preclude any other or further
exercise thereof, or the exercise of any other right, remedy, or power provided
herein or by law or in equity.
9. ASSIGNMENT; SUCCESSORS AND ASSIGNS. Employee agrees that he will not assign,
sell, transfer, delegate, or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any rights or obligations under this
Agreement. Any such purported assignment, transfer, or delegation shall be null
and void. Employee represents that he has not previously assigned or transferred
any claims or rights released by him pursuant to this Agreement. Subject to the
foregoing, this Agreement shall be binding upon and shall inure to the benefit
of the parties and their respective heirs, successors, attorneys, and permitted
assigns. This Agreement shall also inure to the benefit of any Released Party.
This Agreement
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shall not benefit any other person or entity except as specifically enumerated
in this Agreement.
10. SEVERABILITY. If any provision of this Agreement, or its application to any
person, place, or circumstance, is held by an arbitrator or a court of competent
jurisdiction to be invalid, unenforceable, or void, such provision shall be
enforced to the greatest extent permitted by law, and the remainder of this
Agreement and such provision as applied to other persons, places, and
circumstances shall remain in full force and effect.
11. ATTORNEYS' FEES. In any legal action, arbitration, or other proceeding
brought to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees and costs.
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the law of the State of California.
13. INTERPRETATION. This Agreement shall be construed as a whole, according to
its fair meaning, and not in favor of or against any party. By way of example
and not in limitation, this Agreement shall not be construed in favor of the
party receiving a benefit nor against the party responsible for any particular
language in this Agreement. Captions are used for reference purposes only and
should be ignored in the interpretation of the Agreement.
14. REPRESENTATION BY COUNSEL. The parties acknowledge that (i) they have had
the opportunity to consult counsel in regard to this Agreement; (ii) they have
read and understand the Agreement and they are fully aware of its legal effect;
and (iii) they are entering into this Agreement freely and voluntarily, and
based on each party's own judgment and not on any representations or promises
made by the other party, other than those contained in this Agreement.
The parties have duly executed this Agreement as of the date first written
above.
"Employer" "Employee"
/S/ XXX XXXXX /S/ XXXXXXX XXXXXXXX
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TCSI Xxxxxxx Xxxxxxxx
By: Xxx Xxxxx
Its: CFO 11/19/01
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