EXHIBIT 10.27
CONFIDENTIAL RESIGNATION AGREEMENT
AND GENERAL RELEASE OF CLAIMS
This Confidential Resignation Agreement and General Release of Claims (this
"AGREEMENT") is dated as of January 10, 1997 by and between Network General
Corporation, a Delaware corporation, located at 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxx,
XX 00000 (the "COMPANY") and Xxxxxxx X. Xxxxxx, a resident at 0000 Xxxxxx Xxxxx,
Xxxxxxxxx, XX 00000 ("XXXXXX").
WHEREAS, Xxxxxx has expressed an interest in resigning from the Company and
the Company has considered Xxxxxx'x interest; accordingly, since it is in the
best interest of both parties to provide for a smooth transition, the parties
desire to provide for certain terms with respect to such Resignation.
THEREFORE, in consideration of the mutual promises and covenants set forth
below, and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Company and Xxxxxx agree as follows:
1. Xxxxxx hereby resigns and voluntarily terminates his employment with
the Company effective December 31, 1997 (the "Separation Date"). Xxxxxx
hereby resigns voluntarily from his position as Senior Vice President,
Product Development, effective January 31, 1997 (the "Resignation Date")
following his three month paid leave of absence. From the day following the
Resignation Date through December 31, 1997 (the "Severance Period") Xxxxxx
will not be required to provide any work or services to the Company, except
as agreed upon by Xxxxxx and the Company.
2. In exchange for the release of claims set forth below and for the
other promises and obligations set forth herein, the Company agrees to
provide Xxxxxx with the following compensation and benefits subject to
paragraph 3 below:
(a) payment of $10,000 per month as Xxxxxx'x base salary in
accordance with the Company's normal payroll procedures, less applicable
withholding, through December 31, 1997. PTO will be paid to Xxxxxx in his
January 31, 1997 paycheck. Thereafter and through the Severance Period,
Xxxxxx shall accrue no additional PTO. During the Severance Period,
Xxxxxx shall not be entitled to any bonus payments.
(b) continued provision of the Company's group health, life and
disability insurance through January 31, 1997. As of February 1, 1997,
Xxxxxx will not be eligible for group life and disability insurance, but
shall be entitled to elect continued group health insurance coverage in
accordance with applicable provisions of federal law (COBRA) and the
Company shall pay the cost of such COBRA coverage through the Separation
Date. Thereafter, Xxxxxx shall be responsible for such COBRA payments
through the end of the COBRA election period as established under federal
law; and
(c) with respect to any stock options granted to Xxxxxx by the
Company, Xxxxxx shall continue vesting in any unvested shares subject to
those options through the Separation Date; in all other respects,
Xxxxxx'x stock options shall remain subject to the terms and conditions
of any previous stock option plans or agreements between Xxxxxx and the
Company.
3. In the event that Xxxxxx accepts employment with, or provides any
services to (whether as a partner, consultant, joint venturer or otherwise),
any person or entity which offers products or services that are competitive
with any products or services offered by the Company or with any products or
services that Xxxxxx is aware of that the Company intends to offer, Xxxxxx
shall be deemed to have resigned from his employment with the Company
effective immediately upon such acceptance of employment or provision of
services. Upon such resignation, Xxxxxx shall not be entitled to any further
payments or benefits under paragraph 2.
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4. Any payments to be made pursuant to Section 2 above, shall not be
made until this Agreement becomes effective after the seven (7) day period
elapses in accordance with the provisions of Section 11 below. Xxxxxx
understands and acknowledges that he shall not be entitled to any
compensation or benefits from the Company other than those expressly set
forth in this Agreement.
5. In exchange for the benefits described in Section 2 above, Xxxxxx,
on behalf of himself and his successors and assigns, releases and absolutely
releases and discharges the Company and its shareholders, directors,
officers, employees, agents, attorneys, legal successors and assigns
(collectively, "Agents") of and from any and all claims, actions and causes
of action, whether now known or unknown, which Xxxxxx now has, or at an
other time had, or shall or may have against the Company or its Agents based
upon or arising out of any matter, cause, fact, thing, act or omission
whatsoever occurring or existing at any time to and including the date
hereof, including, but not limited to, any claims of wrongful discharge,
breach of contract, fraud, defamation, infliction of emotional distress or
national origin, race, age, sex, disability or other discrimination or
harassment under the Civil Rights Act of 1964, the Age Discrimination in
Employment Act of 1967, the Americans with Disabilities Act, the Fair
Employment and Housing Act or any other applicable state or federal law save
and except for applicable rights pursuant to the Workers Compensation laws
of the state of California. As used herein, the "Company" includes any and
all parents, divisions, subsidiaries or affiliated entities of Network
General Corporation and Network General Technology Corporation.
6. Xxxxxx acknowledges that he has read section 1542 of the Civil Code
of the State of California which states:
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.
Xxxxxx hereby waives any right or benefit which he has or may have under
section 1542 of the Civil Code of the State of California to the full extent
that he may lawfully waive such rights and benefits pertaining to the subject
matter of this general release of claims.
7. Xxxxxx acknowledges and agrees that he shall continue to be bound by
and comply with the terms of any proprietary rights or confidentiality
agreements between the Company and Xxxxxx.
8. As further consideration for the benefits described in Section 2
above, Xxxxxx agrees that for a period of one year after the Separation
Date, he shall not, either directly or indirectly, solicit any employee of
the Company, its parent corporation, subsidiaries or other affiliated
entities to terminate his/her employment with such entity.
9. Xxxxxx agrees that he shall not directly or indirectly disclose
either the existence of this Agreement or any of the terms of this Agreement
to anyone other than his immediate family or counsel, except as such
disclosure may be required for accounting or tax reporting purposes or as
otherwise may be required by law. Xxxxxx further agrees that he shall not at
any time in the future, make any critical or disparaging statements
regarding the company, its employees or products, unless such statements are
made truthfully in response to a subpoena or other legal process.
10. This Agreement, or any of the rights hereunder, may not be assigned
or otherwise transferred by Xxxxxx.
11. This Agreement represents the complete understanding of the parties
with respect to its subject matter and supersedes all prior negotiations and
agreements including but not limited to that certain Employment Agreement
dated August 19, 1995 between Xxxxxx and the Company, whether written or
oral, except for any agreements regarding confidentiality or assignment of
inventions previously entered into by the Company (or any of its affiliated
entities) and Xxxxxx, which shall survive in accordance with their terms.
This Agreement will be construed and enforced in accordance
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with the laws of the State of California. The Parties agree that any dispute
arising under this Agreement will be resolved exclusively in the state or
federal courts within the Northern District of California and each Party
expressly consents to jurisdiction therein. This Agreement may not be
altered or amended except by a written document signed by the Company and
Xxxxxx.
12. XXXXXX UNDERSTANDS THAT HE SHOULD CONSULT WITH AN ATTORNEY PRIOR TO
SIGNING THIS AGREEMENT AND THAT HE IS GIVING UP ANY LEGAL CLAIMS HE MAY HAVE
AGAINST THE COMPANY BY SIGNING THIS AGREEMENT. XXXXXX FURTHER UNDERSTANDS
THAT HE MAY HAVE TWENTY-ONE (21) CALENDAR DAYS TO CONSIDER THIS AGREEMENT,
THAT HE MAY REVOKE IT AT ANY TIME DURING THE SEVEN (7) CALENDAR DAYS AFTER
HE SIGNS IT, AND THAT IT SHALL NOT BECOME EFFECTIVE UNTIL THAT SEVEN (7)-DAY
PERIOD HAS PASSED (THE "EFFECTIVE DATE") . XXXXXX FURTHER ACKNOWLEDGES THAT
HE IS SIGNING THIS AGREEMENT KNOWINGLY, WILLINGLY AND VOLUNTARILY IN
EXCHANGE FOR THE BENEFITS IN SECTION 2.
Dated: 1/22, 1997 /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Dated: 1/13, 1997 NETWORK GENERAL CORPORATION
By: /s/ XXXXXX X. XXXXXX
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Its: President
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