Exhibit 10.13
SEPARATION AGREEMENT AND RELEASE
This Agreement, dated as of October 2, 2001 ("Effective Date"), is
between TCSI, a Nevada corporation ("Employer" or the "Company"), and Xxx
Xxxxxxxxx ("Employee").
RECITALS
Employee is currently employed by Employer.
Employer and Employee desire to terminate their employment relationship on
mutually agreeable terms effective as of the Effective Date ("Termination
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. SEVERANCE PAY. Employer shall pay Employee twenty (20) weeks of Employee's
current base salary ("Severance Pay") and $2,000 within ten (10) business days
of TCSI receiving an executed copy of this Agreement. All payments to Employee
shall be less withholdings required by law.
2. EMPLOYER OBLIGATIONS.
(a) Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA").
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As of the Effective Date, Employer shall provide Employee COBRA benefits as
required by law, with the Company to pay COBRA premiums on Employee's behalf
through March 31, 2002. Thereafter, Employee will be responsible for payment of
COBRA premiums.
(b) Payment of Severance Pay. Employer shall pay the Severance Pay as
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set forth in Section 1. Employer shall also pay $68,000 in consideration for
past sales results.
3. EMPLOYEE OBLIGATIONS.
(a) Notice. So long as Employer is providing benefits, Employee shall
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provide Employer advance written notice of (i) the effective date of any
subsequent employment, and (ii) the effective date of coverage under any
applicable benefit plan with such employer.
(b) Return of Property. Employee has returned to Employer all property
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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 his
employment with Employer through October 2, 2001.
(c) Continuing Obligations. Employee specifically acknowledges and
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reaffirms the continuing effect of the obligations contained in the Proprietary
Information, Non-Disclosure, and Non-Solicitation Agreement executed by
Employee. Employee agrees to provide 30 hours of senior sales and professional
services consulting to TCSI each month through March 31, 2002 for no additional
payment by TCSI.
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4. 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 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 Effective 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 Claims"). Employee
acknowledges that upon payment of the Severance Pay he has, or will have,
received all wages, vacation, and other compensation earned and due as of the
Termination Date. Notwithstanding the foregoing, Released Claims shall not
include any claims based on obligations created by or reaffirmed in this
Agreement or any of Employee's existing rights under the Company's bylaws and
articles of incorporation to be indemnified and held harmless to the fullest
extent allowed by law or contract (the "Indemnified Claims).
5. SECTION 1542 WAIVER. The parties understand and agree that the Released
Claims include not only claims presently known to Employee, 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 Claims as described in Section
4. Employee understands that he may hereafter discover facts different from what
he now believes to be true, which if known, could have materially affected this
Agreement, but he nevertheless waives any claims or rights based on different or
additional facts. Employee knowingly and voluntarily waives any and all rights
or benefits that he 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 his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
6. COVENANT NOT TO XXX. Employee 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 Claims.
7. 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 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 his
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 Corporation Xxx Xxxxxxxxx
0000 Xxxxxx Xxxxxxx Xxxxxxx 0000 Xxxx 00xx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxxxx, XX, Xxxxxx X0X 0X0
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10. 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 whatsoever, except as expressly set forth in this Agreement; and that
all agreements and understandings between the parties on any subject whatsoever
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 whatsoever, including without limitation, any
employment-related agreement or benefit plan, except to the extent that the
provisions of any such agreement or plan have been expressly referred to in this
Agreement as having continued effect.
11. 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.
12. 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 shall not benefit any other person or entity except as
specifically enumerated in this Agreement.
13. 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.
14. 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.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the law of the State of California.
16. 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.
17. 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.
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The parties have duly executed this Agreement as of the date first written
above.
"Employer" "Employee"
/S/ XXXXXXX X. XXXXX /S/ XXX XXXXXXXXX
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TCSI Corporation Xxx Xxxxxxxxx
By: Xxxxxxx X. Xxxxx
Its: CFO
Date 10/2/01 Date Oct 2nd/2001
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