EXHIBIT 10.31
SEPARATION AGREEMENT AND GENERAL RELEASE
I. PARTIES
This Separation Agreement and General Release (the "Separation
Agreement" or the "Agreement") is entered into between the following parties
(the "Parties"):
A. Xxxxx Xxxxx ("Xxxxx") individually;
B. Digital Theater Systems, Inc. ("DTS" or the "Company"); and
C. Nuoptix, Inc. ("Nuoptix").
II. RECITALS
This Separation Agreement is made with reference to the following
facts:
A. As of the Effective Date, Xxxxx and DTS mutually agree that
Xxxxx shall resign as Chairman of the Board of Directors of DTS, but shall
continue as a Director of DTS.
B. Certain disputes have arisen between Xxxxx, on the one hand,
and DTS, on the other hand, regarding, among other things, the circumstances
under which Xxxxx was employed and the Employment Agreement between Xxxxx and
DTS, dated October 24, 1997 ("Employment Agreement"). The Parties' opposing
views on these and related issues that are in dispute are referred to as the
"Dispute."
X. Xxxxx and DTS each acknowledge that the Dispute consists of
disputed claims and that the Parties have disagreements as to both the facts and
the law relating to the Dispute. The Parties further acknowledge that this
Separation Agreement does not constitute an admission by the Parties as to the
merits of any claim that any Party may have, may have had or may come to have.
Each of the Parties has concluded, however, that litigation of this matter
through arbitration, trial or otherwise would be expensive and protracted and
that it would be much more desirable that the Dispute be settled fully and
finally in the manner and upon the terms and conditions set forth within this
Separation Agreement, solely to avoid the expense of litigation or other dispute
resolution.
D. This Separation Agreement is intended to settle fully and
finally the Dispute and any other matters that in any way are related to or
arise out of Xxxxx'x employment with DTS, the termination of that employment, or
any written, oral or implied contract of any kind whatsoever concerning that
employment in any way. The Parties acknowledge and agree that, after the Parties
have executed the Separation Agreement, neither party shall have any further
obligations or duties of any kind whatsoever to the other as a result of Xxxxx'x
previous employment with DTS, except as provided herein.
E. Nuoptix, Inc. is wholly owned by Xxxxx. This Separation
Agreement is also intended to conclude the relationship between Nuoptix, and
DTS, and DTS agrees that as of the Effective Date Nuoptix shall have no
obligations to perform services or provide goods to DTS except as expressly
provided in Article VII, below.
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F. As a founder of DTS, Xxxxx has certain rights exercisable with
his son Xxxxxxx under the Stockholders Agreement dated as of October 24, 1997,
exercisable solely by the two of them, including to (i) designate two (2)
members of the DTS Board of Directors (Xxxxx is serving as one of the two
Directors so designated) and (ii) to veto any amendment to, or agreement to
terminate the Stockholders Agreement. These rights are confirmed by a Second
Amendment to Stockholders Agreement, the form of which is attached hereto and
incorporated herein by this reference.
III. RELEASES
X. Xxxxx'x Release of DTS.
1. In consideration of the terms and provisions of this
Separation Agreement and in consideration of DTS' payments to Xxxxx and DTS'
agreements and acknowledgments as set forth in Article VII, below, Xxxxx,
hereby, generally and unconditionally, relieves, releases, remises, acquits and
forever discharges DTS and its Related Entities(1), of and from any and all
claims, demands, rights, actions, causes of action, suits, contracts, debts,
controversies, expenses, liabilities, obligations, damages, losses, expenses
(including, without limitation, reasonable attorneys' fees, except as expressly
set forth within this Agreement), penalties, costs and allegations of any kind
and character whatsoever, whether legal, contractual, statutory administrative
or equitable in nature or otherwise, whether known or unknown, suspected or
unsuspected, direct or indirect, absolute, fixed or contingent, that Xxxxx now
owns, holds, has or claims to have, or owned at any time, held, had or claimed
to have had or may come to own, hold, have or claim to have against DTS and its
Related Entities arising out of or in connection with the Dispute or Xxxxx'x
employment with DTS.
2. The release set forth above includes, without
limitation, all claims, demands, causes of action, facts, transactions,
occurrences, circumstances, acts or omissions, or allegations of any kind and
character whatsoever asserted by Xxxxx or which could have been asserted by
Xxxxx in connection with the Dispute or Xxxxx'x employment with DTS, including
any and all facts in any manner arising out of, related or pertaining to or
connected with those claims or with the terms of or value of any consideration
paid to Xxxxx in connection with Xxxxx'x employment, or termination of
employment from, DTS, or any of its Related Entities,
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(1) For purposes of this Settlement Agreement, a Party's "Related
Entities" shall be defined as his or its past, present and future
partners and partners of those partners, successors,
predecessors, assignees, beneficiaries, heirs, legatees,
devisees, executors, administrators, legal representatives,
children, joint venturers, principals, agents, trustees,
attorneys, insurers, officers, directors, employees,
shareholders, affiliates and associates; its parent and
subsidiary corporations, divisions, affiliated companies and the
officers, directors, partnerships, representatives, employees,
shareholders and affiliates of each of them; and any other
representative of the Party, including, without limitation, in
the case of DTS, Xxxx & Xxxxx Professional Corporation and its
officers, directors, shareholders and employees, and in the case
of Xxxxx and Nuoptix, Isen and Grant Incorporated and its
officers, directors, shareholders and employees.
2.
including, without limitation, any claims based on, related to or arising from
federal, state or local laws (including, but not limited to, the Age
Discrimination in Employment Act, the California Labor Code, Title VII of the
Civil Rights Act of 1964, as amended, and the Fair Labor Standards Act) that
prohibit employment discrimination on the basis of race, national origin,
religion, age, gender, marital status, pregnancy, handicap, perceived handicap,
ancestry, sexual orientation, family or personal leave or of any other form of
discrimination, or from laws such as workers' compensation laws, which provide
rights and remedies for injuries sustained in the workplace or from any common
law claims of any kind, including, without limitation, contract, tort or
property rights including, but not limited to, breach of express or implied
contract, breach of the implied covenant of good faith and fair dealing,
tortious interference with contract or current or prospective economic
advantage, fraud, deceit, breach of privacy, misrepresentation, defamation,
wrongful termination, tortious infliction of emotional distress, loss of
consortium, breach of fiduciary duty, violation of public policy and any other
common law claim of any kind whatsoever, any claims for severance pay, sick
leave, family leave, vacation, life insurance, bonuses, health insurance,
disability or medical insurance or any other fringe benefit or compensation, and
all rights or claims arising under the Employment Retirement Income Security Act
of 1974 ("ERISA") or pertaining to ERISA regulated benefits (all collectively
defined as "Xxxxx'x Released Claims").
B. DTS' Release of Xxxxx.
1. In consideration of the terms and provisions of this
Separation Agreement and in consideration of Xxxxx'x agreements and
acknowledgments as set forth in Article VII, below, DTS hereby, generally and
unconditionally, relieves, releases, remises, acquits and forever discharges
Xxxxx and his Related Entities of and from any and all claims, demands, rights,
actions, causes of action, suits, contracts, debts, controversies, expenses,
liabilities, obligations, damages, losses, expenses (including, without
limitation, reasonable attorneys' fees except as expressly set forth within this
Agreement), penalties, costs and allegations of any kind and character
whatsoever, whether legal, contractual, statutory, administrative or equitable
in nature or otherwise, whether known or unknown, suspected or unsuspected,
direct or indirect absolute, fixed or contingent, that DTS now owns, holds, has
or claims to have, or owned at any time, held, had or claimed to have had or may
come to own, hold, have or claim to have against Xxxxx or his Related Entities
arising out of or in connection with the Dispute or Xxxxx'x employment with DTS
and all claims, demands, causes of action, facts, transactions, occurrences,
circumstances, acts or omissions, or allegations of any kind and character
whatsoever asserted by the Parties or which could have been asserted by the
Parties in connection with the Dispute or Xxxxx'x employment with DTS.
2. The release set forth above includes, without
limitation, all claims, demands, causes of action, facts, transactions,
occurrences, circumstances, acts or omissions, or allegations of any kind and
character whatsoever asserted by DTS or which could have been asserted by DTS in
connection with the Dispute or Xxxxx'x employment with DTS, including any and
all facts in any manner arising out of, related or pertaining to or connected
with those claims or with the terms of or value of any consideration paid to
Xxxxx in connection with Xxxxx'x employment, or termination of employment from
DTS, or any of its Related Entities, including but not limited to, breach of the
implied covenant of good faith and fair dealing, tortious interference with
contract or current or prospective economic advantage, fraud, deceit, breach of
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privacy, misrepresentations, defamation, wrongful termination of public policy,
or any other common law claim of any kind whatsoever (all of these claims and
Xxxxx'x Released Claims defined collectively as the "Released Claims").
C. DTS' Release of Nuoptix. In consideration of the terms and
provisions of this Separation Agreement and in consideration of the agreements
of and acknowledgments of Nuoptix as set forth in Article VII, below, DTS
hereby, generally and unconditionally, relieves, releases, remises, acquits and
forever discharges Nuoptix and its Related Entities of and from any and all
claims, demands, rights, actions, causes of action, suits, contracts, debts,
controversies, expenses, liabilities, obligations, damages, losses, expenses
(including, without limitation, reasonable attorneys' fees except as expressly
set forth within this Agreement), penalties, costs and allegations of any kind
and character whatsoever, whether legal, contractual, statutory, administrative
or equitable in nature or otherwise, whether known or unknown, suspected or
unsuspected, direct or indirect, absolute, fixed or contingent, that DTS now
owns, holds, has or claims to have, or owned at any time, held, had or claimed
to have had or may come to own, hold, have or claim to have against Nuoptix or
its Related Entities arising out of or in connection with any written or oral
agreement of Nuoptix to provide any goods and/or services to DTS, and/or any
goods and/or services, provided by Nuoptix, to DTS to the Effective Date of this
Agreement, and all claims, demands, causes of action, facts, transactions,
occurrences, circumstances, acts or omissions, or allegations of any kind and
character whatsoever asserted by DTS or which could have been asserted by DTS in
connection therewith (all of these claims, Xxxxx'x Released Claims and DTS
Released Claims provided in Paragraph B above, defined collectively as the
"Released Claims").
D. Nuoptix's Release of DTS. In consideration of the terms and
provisions of this Separation Agreement and in consideration of the agreements
of and acknowledgments of DTS as set forth in Article VII, below, Nuoptix
hereby, generally and unconditionally, relieves, releases, remises, acquits and
forever discharges DTS and its Related Entities of and from any and all claims,
demands, rights, actions, causes of action, suits, contracts, debts,
controversies, expenses, liabilities, obligations, damages, losses, expenses
(including, without limitation, reasonable attorneys' fees except as expressly
set forth within this Agreement), penalties, costs and allegations of any kind
and character whatsoever, whether legal, contractual, statutory, administrative
or equitable in nature or otherwise, whether known or unknown, suspected or
unsuspected, direct or indirect, absolute, fixed or contingent, that Nuoptix now
owns, holds, has or claims to have, or owned at any time, held, had or claimed
to have had or may come to own, hold, have or claim to have against DTS or its
Related Entities arising out of or in connection with any written or oral
agreement by DTS to pay for any goods and/or services provided by Nuoptix to DTS
to the Effective Date of this Agreement, and all claims, demands, causes of
action, facts, transactions, occurrences, circumstances, acts or omissions, or
allegations of any kind and character whatsoever asserted by Nuoptix or which
could have been asserted by Nuoptix in connection therewith (all of these
claims, the DTS Released Claims provided in Paragraph B above, and the DTS
Released Claims provided in Paragraph C above, defined collectively as the
"Released Claims").
E. Unknown Claims and Risks Released by the Parties. The Parties,
and each of them, hereby knowingly, voluntarily and expressly waive and
relinquish any and all rights and benefits that they may have under Section 1542
of the California Civil Code, or under any
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similar provision of law of any state or territory of the United States or any
other jurisdiction and under any similar or analogous principle of common law.
The Parties, and each of them, expressly understand that Section 1542 of the
California Civil Code 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."
The Parties, and each of them, agree and acknowledge that they are
familiar with Section 1542 of the California Civil Code. The Parties, and each
of them, further agree and acknowledge that their respective waivers of all
rights or any similar benefits under that Section and under any similar statutes
of any other jurisdiction (to the full extent that the Parties lawfully may
waive all such rights and benefits with respect to the subject matter of this
Separation Agreement) are essential terms of this Separation Agreement, without
which the consideration given pursuant to this Separation Agreement would not
have been given by the Parties, and each of them.
F. MATTERS NOT INCLUDED AS A RELEASED CLAIM
The parties agree that the agreements and acknowledgments set forth in
Article VII below are not subject to any of the foregoing releases.
IV. ASSUMPTION OF RISK REGARDING RELEASED CLAIMS
A. The Parties acknowledge that there is a risk that, after
execution of this Separation Agreement, they may discover, incur or suffer
claims that were unknown or unanticipated at the time of this Separation
Agreement, including, but not limited to, unknown or unanticipated claims that
arise from, are based upon or are related to any facts underlying the Released
Claims, which had they been known or more fully understood, may have affected
the Parties' decisions to execute the Separation Agreement as it currently is
written. Each Party knowingly and expressly assumes the risk of these unknown
and unanticipated claims and agrees that this Separation Agreement and the
general releases set forth within it apply to all such unknown, unanticipated or
potential claims.
B. Furthermore, it is the intention of the Parties, by entering
into this Separation Agreement, to settle and release fully, finally and forever
all Released Claims and any and all claims that now exist, or may have at any
time existed or shall come to exist in connection with the Dispute or Xxxxx'x
employment and relationship with DTS. In furtherance of the Parties' intention,
the releases given within this Separation Agreement (including, without
limitation, the waivers set forth in Article III, paragraph C, above) shall be
and remain in effect as full and complete releases and discharges of the
Released Claims and of any related matters notwithstanding the discovery by any
Party of the existence of any additional or different claims or the facts
relative to any such claims.
V. COVENANT NOT TO XXX
X. Subject to the excepted matters set forth in Article VI., each
Party to this Separation Agreement agrees that he or it will forever refrain and
forbear from commencing,
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instituting or prosecuting any lawsuit, action or other proceeding, in law,
equity or otherwise, against any other Party or against any Party's Related
Entities, in any way arising out of or relating to the Employment Agreement,
Dispute and/or the Released Claims.
B. The Parties acknowledge and agree that monetary damages alone
are inadequate to compensate any Party or any Party's Related Entities for
injury caused or threatened by a breach of this Covenant Not to Xxx and that
preliminary and permanent injunctive relief restraining and prohibiting the
prosecution of any action or proceeding brought or instituted in violation of
this Covenant Not to Xxx is a necessary and appropriate remedy in the event of
such a breach. Nothing contained in this Article, however, shall be interpreted
or construed to prohibit or in any way to limit the right of a non-breaching
Party or of any of its Related Entities to obtain, in addition to injunctive
relief, an award of monetary damages against any person or entity breaching this
Covenant Not to Xxx and Separation Agreement.
VI. EXCEPTED MATTERS
Notwithstanding the foregoing, any action or proceeding brought for
breach of or to interpret or enforce the terms of this Separation Agreement is
excepted from the Covenant Not to Xxx set forth in Article V.
VII. ADDITIONAL AGREEMENTS BY THE PARTIES AND ACTS TO BE TAKEN BY THE
PARTIES
As additional consideration the Parties agree as follows:
A. Compensation. DTS will pay Xxxxx all deferred and past due
compensation owed ($314,986.26), plus interest of $18,472.45 to February 29,
2000 (total $333,458.71), less usual withholding, concurrently with the
execution of this Agreement by Xxxxx and Nuoptix.
B. Payment to Nuoptix. DTS has paid to Nuoptix all amounts due to
Nuoptix for all goods and/or services supplied by Nuoptix to DTS to the
Effective Date.
C. DTS and Nuoptix maintain a theater at the Premises, located at
31336 xxx Xxxxxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, Xxxxxxxxxx ("Leased Premises")
that are accessed through the offices of Nuoptix. Title to all the equipment at
the Leased Premises that is not now owned by Nuoptix shall be deemed transferred
by DTS to Nuoptix on the Effective Date by this Agreement, except for two film
projectors and a DTS 6AD Audio Processor. Nuoptix agrees to cooperate with DTS
to enable DTS to use the theater in accordance with past practices until
September 30, 2000 (so long as Nuoptix is able to obtain possession through that
date of the Leased Premises under a direct lease on terms acceptable to
Nuoptix). DTS may remove either or both projectors and the DTS 6AD Audio Process
from the theater at any time until September 30, 2000. Thereafter any DTS
property remaining at the Leased Premises shall be deemed to have been sold by
DTS to Nuoptix, and shall thereafter be the sole property of Nuoptix, in
consideration for its execution of this Separation Agreement. Nuoptix shall have
no responsibility for loss or damage to the projectors or the 6AD Audio
Processor, unless caused by its negligent or intentional act. DTS agrees to
cooperate with Nuoptix to enable Nuoptix to enter into a direct lease, as
lessee, of the Leased Premises beginning July 1, 2000.
6.
D. DTS acknowledges that Xxxxx has no "Confidential Information"
within the meaning of Paragraph 8 of the Employment Agreement.
E. DTS acknowledges that Xxxxx has no "invention or other
property" as described in Paragraph 11 of the Employment Agreement, that is the
property of DTS. The preceding sentence is not applicable to any patented
inventions of Xxxxx previously assigned to DTS by an instrument in writing.
F. DTS and Xxxxx agree that the Indemnification Agreement between
them dated as of December 18, 1998, will be effective as if executed on that
date, regardless of the actual date of execution, and that both the
Indemnification Agreement and the Stockholders Agreement dated as of October 24,
1997, as amended by a First Amendment thereto dated as of October 13, 1999, will
continue in fall force and effect.
G. Issuance of Press Release. DTS and Xxxxx agree to issue the
following press release regarding Xxxxx'x separation and consultancy with DTS:
Xxxxx Xxxxx, founder and chairman of DTS, has resigned
as Chairman in order to pursue new entrepreneurial
opportunities. Xx. Xxxxx remains a major shareholder
and Director in the company.
VIII. REPRESENTATIONS AND WARRANTIES
A. Independent Legal Advice. Each of the Parties represents,
warrants and agrees that he or it has received independent legal advice from his
or its attorneys with respect to the advisability of executing this Separation
Agreement.
B. No Other Representation. Each of the Parties represents,
warrants and agrees that, in executing this Separation Agreement, he or it has
relied solely on the statements expressly set forth within this Agreement. Each
of the Parties further represents, warrants and agrees that, in executing this
Separation Agreement, he or it has placed no reliance whatsoever on any
statement, representation or promise of any other Party, or any other person or
entity, that is not expressly set forth within this Agreement, or upon the
failure of any other Party, or any other person or entity, to make any
statement, representation or disclosure of anything whatsoever. The Parties have
included this clause: (1) to preclude any claim that any Party was without the
advice of counsel; and (2) to preclude the introduction of parol evidence to
vary, interpret, supplement or contradict the terms of this Agreement.
C. Factual Investigation. Each of the Parties represents,
warrants and agrees that he or it has made a sufficient investigation of the
facts pertaining to the Dispute and of all matters pertaining to the Dispute or
contained in or related to this Agreement as he or it deems necessary or
desirable.
D. Authority. Each of the Parties represents, warrants and agrees
that he or it has the full right, power and authority to execute this Separation
Agreement and that the person executing this Agreement on his or its behalf has
the full right, power and authority to commit and to bind that Party fully to
the terms of this Agreement. The Parties expressly covenant and
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warrant to each other and their Related Entities that they have the right,
power, and authority to bind each and all of their Related Entities with respect
to each and every provision of this Agreement which affects, or purports to
affect, any or all of said Related Entities. In the event that any Related
Entity makes any assertion that conflicts with the intent of the prior sentence,
the Party making the representation shall fully indemnify, hold harmless and
defend the affected Party and his or its Related Entities for the consequences
of such assertion.
E. No Assignment. Each of the Parties represents, warrants and
agrees that there has been no assignment or transfer, including, without
limitation, by way of subrogation or operation of law or otherwise, to any
person or entity whatsoever of claims released by that Party or of any other
claim, right, demand, action or cause of action that the Parties may have had,
have or might have arising out of the Dispute. Each Party, to the extent that
Party breaches this representation or warranty, agrees to defend, to indemnify
and to hold harmless any non-breaching Party to this Agreement from and against
any and all claims, allegations, demands, liabilities, losses, obligations,
promises, damages, costs, expenses (including, without limitation, attorneys'
fees and costs of investigation), lawsuits, actions (in law, equity or
otherwise), causes of action, rights and privileges actually incurred as a
result of that breach.
IX. GENERAL
A. Full Integration. Except for the Indemnification Agreement and
the Stockholders Agreement referred to above, and the Incentive and Nonqualified
Stock Option Agreements to which DTS and Xxxxx are parties, all of which shall
remain in effect, this Separation Agreement is the final written expression and
the complete and exclusive statement of all of the agreements, conditions,
promises, representations and covenants between the Parties with respect to the
subject matter of this Agreement, and replaces and supersedes all prior, former
or contemporaneous agreements (including, but not limited to, the Employment
Agreement, negotiations, understandings, representations, discussions or
warranties between the Parties, their respective representatives, and any other
person or entity, with respect to the subject matter of this Agreement. Any
modification, alteration or amendment of this Agreement shall be non-binding,
ineffective or invalid unless it is in writing, specifically refers to this
Agreement and is signed by the Party to be charged with the modification,
alteration or amendment or by a duly authorized representative of that Party.
B. No Admissions. Each of the Parties expressly acknowledges and
agrees that this Agreement represents a settlement of disputed claims and is
not, in any respect, nor for any purpose, to be deemed or construed to be an
admission or concession of any liability or wrongdoing by any Party whatsoever
or of the existence of any claim. Furthermore, this Separation Agreement shall
not be deemed to be for the benefit of, or to confer any rights of any kind or
nature whatsoever upon, any third party (whether a person or entity) other than
the Related Entities.
C. Waiver And Severability. No waiver of any term, covenant or
condition of this Separation Agreement shall be construed as a waiver of any
other term, covenant or condition, nor shall any waiver of any default under
this Separation Agreement be construed as a continuing waiver of any, term,
condition or covenant or as a waiver of any other default. Furthermore, in the
event any portion of this Agreement is found, judicially or otherwise, to be
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unlawful, void or, for any other reason, unenforceable, that provision shall be
deemed severable from this Agreement and the invalidity or lack of
enforceability shall not affect the validity and enforceability of the remaining
portions of this Agreement.
D. California Law Governs. This Separation Agreement shall be
construed and enforced in accordance with, and governed by, the internal,
substantive laws of the State of California. Any lawsuits filed to enforce any
provision of this Agreement by any party hereto shall be filed in the Superior
Court for the State of California, County of Los Angeles.
E. Attorneys' Fees. Each of the Parties shall bear its own legal
expenses and attorneys' fees. In the event any legal or governmental action or
proceeding is commenced under or pursuant to any other terms and conditions of
this Agreement, or to interpret or enforce the terms of or obligations arising
out of this Agreement, or to recover damages for the breach of this Agreement,
the Party prevailing in any such action or proceeding shall be entitled, in
addition to any other relief awarded by the Court or other tribunal to recover
from the other Party all reasonable attorneys' fees, costs and expenses incurred
by the prevailing Party. In addition, the prevailing Party shall be entitled to
recover from the non-prevailing Party post-judgment/award/order attorneys, fees
incurred by the prevailing Party in enforcing a judgment, order or award against
the non-prevailing Party. Notwithstanding anything in this Agreement to the
contrary, the provisions of the preceding sentence are intended to be severable
from the balance of the Agreement, shall survive any judgment rendered in
connection with the aforesaid legal action, and shall not be merged into any
such judgment, order or award.
F. Counterparts, Copies, Faxed Signatures. This Separation
Agreement may be executed in any number of counterparts by the Parties, and,
when each Party has signed and delivered at least one counterpart to the other
Parties, each counterpart shall be deemed an original and, taken together, shall
constitute and be deemed to be one and the same Agreement, and shall be binding
and effective as to all Parties. In addition, true and correct copies may be
used in lieu of the original Agreement for any purpose whatsoever. Finally,
faxed copies of the Agreement and faxed signature pages shall be binding and
effective as to all Parties and may be used in lieu of the original Agreement,
and, in particular, in lieu of original signatures, for any purpose whatsoever.
G. Headings. The headings to the articles and paragraphs of this
Agreement are inserted for convenience only and will not be deemed a part of
this Agreement, nor will the headings affect the construction or interpretation
of the provisions contained within this Agreement.
H. Survival Of Warranties. All representations and warranties
contained within this Agreement shall survive its execution, effectiveness and
delivery. It is expressly understood and agreed by the Parties that none of the
releases or covenants set forth within this Agreement are intended to or do
release or affect any claims or rights specifically arising out of this
Agreement or the breach of it.
I. Further Instruments. The Parties shall execute and deliver
further instruments, documents or papers and shall perform all acts necessary or
proper to carry out and effectuate the
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terms of this Agreement as may be required by the terms of the Agreement or as
may be reasonably requested by any Party to this Agreement.
J. No Presumption From Drafting. This Agreement has been
negotiated at arm's length between persons knowledgeable in the matters set
forth within this Agreement. Accordingly, given that all Parties have had the
opportunity to draft, review and/or edit the language of this Agreement, no
presumption for or against any Party arising out of drafting all or any part of
this Agreement will be applied in any action relating to, connected with or
involving this Agreement. In particular, any rule of law, including, but not
limited to, Section 1654 of the California Civil Code, or any other statutes,
legal decisions, or common law principles of similar effect, that would require
interpretation of any ambiguities in this Agreement against the party that has
drafted it, is of no application and is hereby expressly waived. The provisions
of this Agreement shall be interpreted in a reasonable manner to effect the
intentions of the Parties.
K. Benefits Successors. Except as limited by the terms of this
Agreement, this Separation Agreement shall be binding upon and shall inure to
the benefit of each of the Parties to the Agreement and to their respective
heirs, executors, administrators, assigns, successors-in-interest,
representatives, trustees, beneficiaries and Related Entities.
L. All Terms Are Contractual. Each term of this Separation
Agreement is contractual and not merely a recital.
M. Voluntary Execution of Agreement. Xxxxx represents that he has
carefully read this entire Separation Agreement and that he knows and
understands its contents. Xxxxx has had the opportunity to receive independent
legal advice from attorneys of his choice with respect to the preparation,
review and advisability of executing this Separation Agreement. Xxxxx further
represents and acknowledges that he has freely and voluntarily executed this
Separation Agreement after independent investigation and without fraud, duress,
or undue influence, with the full understanding of the legal and binding effect
of this Separation Agreement. Xxxxx thereby knowingly waives the twenty-one (21)
day period under the Older Workers Benefits Protection Act to review this
Separation Agreement with his attorney prior to signing.
N. Right of Revocation. With respect only to claims arising under
the Age Discrimination in Employment Act ("ADEA"), Xxxxx has the right to revoke
this Separation Agreement for any reason within seven (7) days after he signs
it. To be effective, Xxxxx'x notice of revocation must be in writing and must be
hand delivered or mailed to Xxx Xxxxxxx, or his successor, Digital Theater
Systems, Inc. 0000 Xxxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx 00000, within the
seven (7) day period. If mailed, the revocation must be postmarked within the
seven (7) day period, properly addressed and sent by certified mail, return
receipt requested. If hand-delivered, it must be given to Xxx Xxxxxxx, or his
successor, within the seven (7) day period.
O. The "Effective Date" of this Agreement shall be the date on
which it is unanimously approved by the DTS Board of Directors, other than
Xxxxx, and Xxxxx agrees to sign the consent related thereto, and the execution
of the Second Amendment to Stockholders Agreement by all parties necessary to
make said Second Amendment effective. Both Xxxxx and DTS agree to execute the
said Second Amendment concurrently with the execution of this
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Agreement. This Separation Agreement shall have no force or effect it if is not
approved by the DTS Board of Directors on or prior to May 15, 2000, and if the
Second Amendment to the Stockholders Agreement is not executed by all parties
necessary to make it effective by June 1, 2000. DTS agrees to provide Xxxxx with
a copy of the DTS Board of Director's Resolutions approving this Separation
Agreement, certified by the DTS Secretary to be true and correct, no later than
May 15, 2000, and a copy of the Second Amendment to Stockholders Agreement
showing said necessary signatures by June 1, 2000.
IN WITNESS WHEREOF, the Parties to this Agreement have approved and
executed this Separation Agreement on the dates set forth opposite their
respective signatures.
DATE: April 4, 2000 XXXXX XXXXX
/s/ Xxxxx Xxxxx
-----------------------------------------
Xxxxx Xxxxx
DATE: May 4th, 2000 DIGITAL THEATER SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx
Its: Vice Chairman and
Chief Executive Officer
DATE: April 4, 2000 NUOPTIX, INC.
By: /s/ Xxxxx Xxxxx
-------------------------------------
Xxxxx Xxxxx, President
11.
