Exhibit 10.32
SEVERANCE AGREEMENT AND RELEASE
This Severance Agreement and Release ("AGREEMENT") is made by and between
XXXXXX XXXXX ("EMPLOYEE") and NETGEAR, Inc., a Delaware corporation ("COMPANY"),
collectively referred to as the "PARTIES".
RECITALS
WHEREAS, Employee was employed by the Company;
WHEREAS, the Company and Employee have entered into an employee invention
and proprietary information agreement (the "CONFIDENTIALITY AGREEMENT");
WHEREAS, the Company has terminated the Employee's employment effective
December 11, 2003;
WHEREAS, the Parties, and each of them, wish to resolve any and all
disputes, claims, complaints, grievances, charges, actions, petitions and
demands that the Employee may have against the Company as defined herein,
including, but not limited to, any and all claims arising or in any way related
to Employee's employment with, or separation from, the Company;
NOW THEREFORE, in consideration of the promises made herein, the Parties
hereby agree as follows:
COVENANTS
1. Consideration.
(a) Severance Payment. The Company agrees to pay Employee a severance
payment equivalent to twenty-six (26) week's base salary ($107,500.00), less
applicable withholding.
(b) Payment. The Company will tender the settlement amount to Employee
by paying employee in thirteen (13) installments in accordance with the
Company's normal payroll procedures.
(c) Housing Differential. The Company agrees to pay Employee the
current housing differential of $3000.00 monthly during the twenty-six week
period. Payments will be made in accordance with the regular schedule.
(d) Vesting of Stock. Employee shall continue to vest under the Stock
Option Agreement executed by the Company and Employee for one year after
Employee's termination date such that at one year after Employee's termination
date, she shall be fully vested in a total of 94,790 options to purchase
Company's common stock. All remaining unvested options are hereby cancelled. As
of one year after Employee's termination date, she shall cease vesting in any
additional shares or options under the Stock Option Agreement executed by
Employee and the
Company. Employee shall have the right to exercise any vested stock options in
accordance with the terms and conditions of the Company's Stock Option Plan and
the Stock Option Agreement between Employee and the Company at any time prior to
the expiration one year (or such other longer period of time as determined by
the Company's Board of Directors, in its discretion) after the Employee's
termination date, but in no event later than the Option Expiration Date (as
provided in the Stock Option Agreement executed by the Company and Employee).
(e) Benefits. Employee shall have the right to convert her health
insurance benefits to individual coverage pursuant to COBRA. Company shall
reimburse Employee for twenty-six (26) weeks' worth of COBRA premiums, provided
Employee remains eligible for COBRA coverage. Company shall pay Employee's COBRA
premiums by the tenth day of each month, provided Employee remains eligible.
2. Confidential Information. Employee shall continue to maintain the
confidentiality of all confidential and proprietary information of the Company
and shall continue to comply with the terms and conditions of the
Confidentiality Agreement between Employee and the Company. Employee shall
return all of the Company's property and confidential and proprietary
information in her possession to the Company on the Effective Date of this
Agreement.
3. Payment of Salary. Employee acknowledges and represents that the Company
has paid all salary, wages, bonuses, accrued vacation, commissions and any and
all other benefits due to Employee once the above noted payments and benefits
are received.
4. Release of Claims. Employee agrees that the foregoing consideration
represents settlement in full of all outstanding obligations owed to Employee by
the Company. Employee, on her own behalf, and on behalf of her respective heirs,
family members, executors, and assigns, hereby fully and forever releases the
Company and its officers, directors, employees, investors, stockholders,
administrators, affiliates, divisions subsidiaries, predecessor and successor
corporations, and assign, from, and agrees not to xxx concerning, any claim,
duty, obligation or cause of action relating to any matters of any kind, whether
presently known or unknown, suspected or unsuspected, that Employee may possess
arising from any omissions, acts or facts that have occurred up until and
including the Effective Date of this Agreement including, without limitation:
(a) any and all claims relating to or arising from Employee's
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from, Employee's
right to purchase, or actual purchase of shares of stock of the Company,
including, without limitation, any claims for fraud, misrepresentation, breach
of fiduciary duty, breach of duty under applicable state corporate law, and
securities fraud under any state or federal law;
(c) any and all claims under the law of any jurisdiction
including, but not limited to, wrongful discharge of employment; constructive
discharge from employment; termination in violation of public policy;
discrimination; breach of contract, both express and implied; breach of a
covenant of good faith and fair dealing, both express and implied; promissory
estoppel; negligent or intentional infliction of emotional distress; negligent
or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic advantage;
unfair business practices; defamation; libel; slander; negligence; personal
injury; assault; battery; invasion of privacy; false imprisonment; and
conversion;
(d) any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment
Act of 1967, the Americans with Disabilities Act of 1990, the Fair Labor
Standards Act, the Employee Retirement Income Security Act of 1974, The Worker
Adjustment and Retraining Notification Act, Older Workers Benefit Protection
Act; the California Fair Employment and Housing Act, and Labor Code section
201, et seq. and section 970, et seq.;
(e) any and all claims for violation of the federal, or any state,
constitution;
(f) any and all claims arising out of an other laws and regulations
relating to employment or employment discrimination;
(g) any claim for loss, cost, damage, or expense arising out of any
dispute over the non-withholding or other tax treatment of any of the proceeds
received by Employee as a result of this Agreement; and
(h) any and all claims for attorney's fees and costs.
The Company and Employee agree that the release set forth in this section
shall be and remain in effect in all respects as a complete general release as
to the matters released. This release does not extend to any obligations
incurred under this Agreement.
5. Acknowledgement of Waiver of Claims Under ADEA. Employee acknowledges
that she is waiving and releasing any rights she may have under the Age
Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Employee and the Company agree that this
waiver and release does not apply to any rights or claims that may arise under
ADEA after the Effective Date of this Agreement. Employee acknowledges that the
consideration given for this Agreement is in addition to anything of value of
which Employee was already entitled. Employee further acknowledges that she has
been advised by this writing that:
(a) she should consult with an attorney prior to executing this
Agreement;
(b) she has up to twenty-one (21) days within which to consider this
Agreement;
(c) she has seven (7) days following her execution of this Agreement
to revoke the Agreement;
(d) this Agreement shall not be effective until the revocation period
has expired;
(e) nothing in this Agreement prevents or precludes Employee from
challenging or seeking a determination in good faith of the validity of this
waiver under the ADEA, nor does it
impose any condition precedent, penalties or costs for doing so, unless
specifically authorized by federal law.
6. Civil Code Section 1542. The Parties represent that they are not aware
of any claim by either of them other than the claims that are released by this
Agreement. Employee and the Company acknowledge that they have been advised by
legal counsel and are familiar with the provisions of California Civil Code
Section 1542, 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.
Employee and the Company, being aware of said code section, agree to
expressly waive any rights they may have thereunder, as well as under any other
statute or common law principles of similar effect.
7. No Pending or Future Lawsuits. Employee represents that she has no
lawsuits, claims or actions pending in her name, or on behalf of any other
person or entity, against the Company or any other person or entity referred to
herein. Employee also represents that she does not intend to bring any claims on
her own behalf or on behalf of any other person or entity against the Company or
any other person or entity referred to herein.
8. Confidentiality. The Parties acknowledge that Employee's agreement to
keep the terms and conditions of this Agreement confidential was a material
factor on which all parties relied in entering into this Agreement. Employee
hereto agrees to use her best efforts to maintain in confidence the existence of
this Agreement, the contents and terms of this Agreement, the consideration for
this Agreement, and any allegations relating to the Company or her employment
with the Company except as otherwise provided for in this Agreement (hereinafter
collectively referred to as "SEVERANCE INFORMATION"). Employee agrees to take
every reasonable precaution to prevent disclosure of any Severance Information
to third parties, and agrees that there will be no publicity, directly or
indirectly, concerning any Settlement Information. Employee agrees to take every
precaution to disclose Severance Information only to those attorneys,
accountants, governmental entities, and family members who have a reasonable
need to know of such Severance Information.
9. No Cooperation. Employee agrees she will not act in any manner that
might damage the business of the Company. Employee agrees that she will not
counsel or assist any attorneys or their clients in the presentation or
prosecution of any disputes, differences, grievances, claims, charges, or
complaints by any third party against the Company and/or any officer, director,
employee, agent, representative, shareholder or attorney of the Company, unless
under a subpoena or other court order to do so. Employee further agrees both to
immediately notify the Company upon receipt of any court order, subpoena, or any
legal discovery device that seeks or might require the disclosure or
production of the existence or terms of this Agreement, and to furnish, within
three (3) business days of its receipt, a copy of such subpoena or legal
discovery device to the Company.
10. Non-Disparagement. Employee agrees to refrain from any defamation,
libel or slander of the Company or tortious interference with the contracts and
relationships of the Company.
11. Non-Solicitation. Employee agrees that for a period of twelve (12)
months immediately following the Effective Date of this Agreement, Employee
shall not either directly or indirectly solicit, induce, recruit or encourage
any of the Company's employees to leave their employment, or take away such
employees, or attempt to solicit, induce, recruit, encourage, take away or hire
employees of the Company, either for herself or any other person or entity.
12. No Admission of Liability. The Parties understand and acknowledge that
this Agreement constitutes a compromise and settlement of disputed claims. No
action taken by the Parties hereto, or either of them, either previously or in
connection with this Agreement shall be deemed or construed to be:
(a) an admission of the truth or falsity of any claims heretofore
made or
(b) an acknowledgement or admission by either party of any fault
or liability whatsoever to the other party or to any third party.
13. Costs. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
14. Indemnification. Employee agreed to indemnify and hold harmless the
Company from and against any and all loss costs, damages or expenses,
including, without limitation, attorneys' fees or expenses incurred by the
Company arising out of the breach of this Agreement by Employee, or from any
false representation made herein by Employee, or from any action or proceeding
which may be commenced, prosecuted or threatened by Employee or for Employee's
benefit, upon Employee's initiative, or with Employee's aid or approval,
contrary to the provisions of this Agreement. Employee further agrees that in
any such action or proceeding, this Agreement may be pled by the Company as a
complete defense, or may be asserted by way of counterclaim or cross-claim.
15. Arbitration. The Parties agree that any and all disputes arising out of
the terms of this Agreement, their interpretation, and any of the matters herein
released, shall be subject to binding arbitration in San Francisco, California
before the American Arbitration Association under its Employment Dispute
Resolution Rules, or by a judge to be mutually agreed upon. The Parties agree
that the prevailing party in any arbitration shall be entitled to injunctive
relief in any court of competent jurisdiction to enforce the arbitration award.
The Parties agree that the prevailing party in any arbitration shall be awarded
its reasonable attorneys' fees and costs. THE PARTIES HEREBY AGREE TO WAIVE
THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A
JUDGE OR JURY.
16. Authority. The Company represents and warrants that the undersigned
has the authority to act on behalf of the Company and to bind the Company and
all who may claim through it to the terms and conditions of this Agreement.
Employee represents and warrants that she has the capacity to act on her own
behalf and on behalf of all who might claim through her to bind them to the
terms and conditions of this Agreement. Each party warrants and represents that
there are no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action released herein.
17. No Representations. Each party represents that it has the opportunity
to consult with an attorney, and has carefully read and understands the scope
and effect of the provisions of this Agreement. Neither party has relied upon
any representations or statements made by the other party hereto which are not
specifically set forth in this Agreement.
18. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision so long as the remaining provisions remain intelligible and continue
to reflect the original intent of the Parties.
19. Entire Agreement. This Agreement, the Confidentiality Agreement, and
the Stock Option Agreement as modified by paragraph 1(c) of this Agreement,
constitute the entire agreement and understanding between the Parties
concerning the subject matter of this Agreement and all prior representations,
understandings, and agreements concerning the subject matter of this Agreement
have been merged into this Agreement.
20. No Waiver. The failure of any party to insist upon the performance of
any of the terms and conditions in this Agreement, or the failure to prosecute
any breach of any of the terms and conditions of this Agreement, shall not be
construed thereafter as a waiver of any such terms or conditions. This entire
Agreement shall remain in full force and effect as if no such forbearance or
failure of performance had occurred.
21. No Oral Modification. Any modification or amendment of this Agreement,
or additional obligation assumed by either party in connection with this
Agreement, shall be effective only if placed in writing and signed by both
Parties or by authorized representatives of each party. No provision of this
Agreement can be changed, altered, modified, or waived except by an executed
writing by the Parties.
22. Governing Law. This Agreement shall be deemed to have been executed
and delivered within the State of California, and it shall be construed,
interpreted, governed, and enforced in accordance with the laws of the State of
California, without regard to conflict of law principles.
23. Attorneys' Fees. In the event that either Party brings an action to
enforce or effect its rights under this Agreement, the prevailing party shall
be entitled to recover its reasonable attorneys' fees and costs incurred in
connection with such and action.
24. Effective Date. This Agreement is effective on the 8th day after it
has been executed by both Parties, unless revoked by Employee in writing within
7 days of the date Employee executed it.
25. Counterparts. This Agreement may be executed in counterparts, and each
counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
26. Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or that they
have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this Agreement and
of the releases it contains; and
(d) They are fully aware of the legal and binding effect of this
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
NETGEAR, Inc.
Dated: 12/11/03 By: /s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx
President
Xxxxxx Xxxxx, an individual
Dated: 12/14/03 /s/ Xxxxxx Xxxxx
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