Exhibit 10.4
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (the "Agreement") is made and entered into to be
effective as of January 8, 2001, by and between ANTs software inc., a Delaware
corporation (the "Company"), and Xxxxxxx X. Xxxxxxx (the "Executive").
WHEREAS the parties entered into a letter agreement dated January 4, 2001
pursuant to which Executive is employed by the Company as Chief Executive
Officer, President and Chairman for a term of two (2) years (the "Letter
Agreement").
NOW, THEREFORE, in consideration of the agreements of the parties
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Termination of Employment by the Executive.
(a) For Good Cause. The Executive may terminate his employment at any time
for Good Cause. For purposes of this Agreement, Good Cause shall be defined as
(i) a decrease in Executive's compensation of greater than twenty-five percent
(25%) of his compensation (x) immediately prior to such decrease or (y) in the
aggregate over a period not exceeding two years (not including any decrease in
compensation that is applied to each of the Company's executive officers
equally), (ii) a material change in Executive's corporate position, title or
responsibilities, or (iii) the relocation of the principal offices of the
Company more than 80 miles from their present location without the Executive's
consent. If the employment of the Executive is terminated by the Executive for
Good Cause, the Company shall have no obligation to the Executive except to pay
the Executive his salary until that date six (6) months following the effective
date of the termination.
(b) Not For Good Cause. The Executive may terminate his employment at any
time for any reason not involving Good Cause, by giving written notice to the
Company at least two (2) months prior to the effective date of the termination.
Upon such termination, the Company shall be under no obligation to the
Executive, except to pay his accrued and unpaid salary and accrued unused paid
time off up to the effective date of the termination.
2. Termination of Employment by the Company.
(a) For Cause. Notwithstanding anything to the contrary in the
Letter Agreement or in this Agreement, the Company may terminate the Executive's
employment hereunder for Cause at any time. Termination of the Executive's
employment shall be deemed to be "for Cause" in the event that the Executive (i)
violates any material provisions of the Letter Agreement, this Agreement or the
Proprietary Information and Inventions Agreement of substantially even date
hereto, (ii) is charged with or indicted for a felony, or (iii) commits any act
of willful misconduct, gross negligence, or dereliction of his duties hereunder.
Upon such termination, the Company shall be under no obligation to the
Executive, except to pay his
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accrued and unpaid salary and accrued unused paid time off up to the effective
date of the termination.
(b) Without Cause. Notwithstanding anything to the contrary in the Letter
Agreement or in this Agreement, the Company may terminate Executive's employment
at any time without Cause; provided, however, that in such event the Company
shall provide the Executive with written notice of such termination at least two
(2) months prior to the effective date of the termination. If the employment of
the Executive is terminated pursuant to this Section 2(b), the Company shall
have no obligation to the Executive except to pay the Executive his salary until
that date six (6) months following the effective date of the termination.
3. Upon Death of Executive. The Executive's employment hereunder shall be
deemed terminated automatically in the event of the death of the Executive. Upon
the death of the Executive, the Company shall be under no obligation to the
Executive or his estate, except to pay his accrued and unpaid salary and accrued
unused paid time off up to the effective date of the termination.
4. Corporate Transaction In the event of one or more of the following
transactions (a "Corporate Transaction"):
(a) a merger or acquisition in which the Company is not the
surviving entity, except for a transaction the principal purpose of which is to
change the state of the Company's incorporation,
(b) the sale, transfer, or other disposition of all or substantially
all of the assets of the Company, or
(c) any reverse merger in which the Company remains the surviving
entity following its acquisition by another enterprise,
where the consideration received by the Company is less than five dollars
($5.00) per share on a full dilution and full conversion basis and where the
successor company does not offer Executive a position of similar title, office
and responsibilities and equal salary, to the position held and salary received
by the Executive with and from the Company immediately prior to such Corporate
Transaction, then the Company and its successor shall continue to pay Executive
his salary for a period of twenty-four (24) months starting from the effective
date of such Corporate Transaction.
5. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by, and
construed, interpreted and enforced in accordance with, the internal laws of the
State of California without reference to principles of conflict of laws.
(b) Captions. The Section headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
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(c) Entire Agreement. This Agreement sets forth the entire agreement
and understanding of the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements, including the Letter Agreement,
arrangements and understandings, written or oral, between the parties hereto
with respect to the subject matter hereof.
(d) Further Assurances. Each party hereto shall furnish to the other
party hereto such instruments and other documents as the other party may
reasonably request for the purpose of carrying out or evidencing the
transactions contemplated by this Agreement.
(e) Attorneys' Fees. If any lawsuit or other action or proceeding
relating to this Agreement is brought by either party hereto against the other
party hereto, the prevailing party shall be entitled to recover reasonable
attorneys' fees, costs and disbursements (in addition to any other relief to
which the prevailing party may be entitled).
(f) Notices. Any notice, request, consent or approval required or
permitted to be given under this Agreement or pursuant to law shall be deemed
effective upon the actual receipt by the Executive or the agent for service of
process for the Company, as applicable.
(g) Amendments; Waivers. This Agreement may be amended, modified,
superseded, canceled, renewed or extended and the terms or covenants hereof may
be waived, but only by a written instrument executed by the Executive and the
Company. The failure of either party at any time or times to require performance
of any provision hereof shall in no manner affect such party's right at a later
time to enforce the same. No waiver by either party of the breach of any term or
covenant contained in this Agreement, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be, or construed as, a further or
continuing waiver of any such breach, or a waiver of the breach of any other
term or covenant contained in this Agreement.
(h) Severability. Any term or provision of this Agreement which is
prohibited, invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent (but only to the extent) of such
prohibition, invalidity or unenforceability without invalidating or affecting
any other term or provision hereof, any such prohibition, invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such term or provision in any other jurisdiction.
(i) Counterparts. This Agreement may be executed in one or two
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(j) Successors and Assigns. The terms and provisions of this
Agreement shall inure to the benefit of, and shall be binding upon, the
successors and assigns of the Company, including, without limitation, any
corporation or corporations acquiring directly or indirectly all or
substantially all of the assets of the Company whether by merger, consolidation,
sale or otherwise (and such successor shall thereafter be deemed the "Company"
for purposes of this Agreement). In view of the personal nature of the
provisions of this Agreement to be performed by the Executive, the Executive
shall not have the right to assign or transfer any of the
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obligations or rights and benefits hereunder, nor shall said rights and benefits
be otherwise subject to voluntary or involuntary alienation except as provided
herein.
(k) No Rules of Construction. No rules of construction are intended
by the parties hereto and none shall be employed or used in the interpretation
of this Agreement. For all purposes, both parties hereto shall be deemed joint
authors hereof.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
ANTS SOFTWARE INC.,
a Delaware Corporation
By: ____________________________________
Xxxx Xxxxxxxxx Xxxxxx, Executive
Vice President and Managing Director
of Human Resources
Address: 000 Xxxxxx Xxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
____________________________________
Xxxxxxx X. Xxxxxxx
Address: 000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
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