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EXHIBIT 10.39
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is entered
into by and between Visioneer, Inc. ("Visioneer"), Primax V Acquisition
Corp., a California company ("Purchaser"), Primax Electronics, Ltd., a
company organized under the laws of Taiwan ("Purchaser Parent") and Xxxxxxx
X. Xxxx ("Employee").
WHEREAS, Employee has been employed by Visioneer;
WHEREAS, Visioneer, Purchaser and Purchaser Parent have entered into that
certain Asset Purchase Agreement dated December 2, 1998 (the "Purchase
Agreement") pursuant to which Visioneer has agreed to sell and transfer to
Purchaser and Purchaser has agreed to purchase and assume from Visioneer
substantially all of the assets and liabilities associated with Visioneer's
Hardware Business (as defined in the Purchase Agreement);
WHEREAS, Visioneer and Employee have mutually agreed to terminate the
current employment relationship between Employee and Visioneer;
WHEREAS, Purchaser, Purchaser Parent and Employee have mutually agreed not
to enter into any future employment relationship between Employee and either of
Purchaser or Purchaser Parent; and
WHEREAS, Employee on the one hand, and Visioneer, Purchaser and Purchaser
Parent on the other hand, wish to release each other from any claims arising
from or related to any current or anticipated employment relationship;
NOW, THEREFORE, in consideration of the mutual promises made herein,
Visioneer, Purchaser, Purchaser Parent and Employee (collectively referred to as
the "Parties") hereby agree as follows:
1. Termination. The Parties acknowledge and agree that Employee's
employment relationship with Visioneer will terminate effective as of the
Closing Date (as defined in Section 3.1 of the Purchase Agreement) (the
"Termination Date").
2. Consideration. In consideration for the release of claims set forth
below and other obligations under this Agreement, Visioneer, Purchaser and
Purchaser Parent collectively agree to pay Employee a lump sum amount of
$70,000.02, which is equal to six months of Employee's regular base salary (less
applicable tax withholding).
3. Stock Options.
(a) Acceleration of Vesting. Employee acknowledges and agrees that
in accordance with the terms of those certain stock options granted to Employee
under Visioneer's 1993 Incentive Stock Option Plan to purchase a total of
130,715 shares of Visioneer Common
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Stock, as evidenced by Stock Option Agreements issued to Employee, 42,901 shares
will have vested as of the Termination Date and 87,814 shares will remain
unvested (the "Unvested Shares"). In further consideration for the release of
claims set forth below and other obligations under this Agreement, the Parties
agree that fifty percent (50%) of Employee's Unvested Shares shall become
immediately vested and exercisable as of the Termination Date. No additional
option shares shall vest after the Termination Date. In accordance with the
terms of the Option Agreements issued to Employee, vested options will be
exercisable for ninety (90) days following the Termination Date.
(b) Option Buy-Back. The requirement that Employee continue to be
employed by Visioneer as of January 31, 1999 in order to qualify to sell any or
all of his vested, unexercised stock options back to Visioneer at a purchase
price of $0.20 per share is hereby waived, and Employee shall hereafter be
eligible to participate in the proposed Option Buy-Back (pursuant to its
specified terms) at his sole election.
4. Benefits. Employee shall continue to receive Visioneer's standard
medical and dental insurance benefits at Visioneer's expense through the
Termination Date. After such date, Employee shall have the right to continue, at
his own expense, coverage under Visioneer's health insurance as provided by the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA").
5. No Other Payments Due. Employee acknowledges and agrees that he has
received, or will receive as of the Termination Date, all salary, accrued
vacation, commissions, bonuses, compensation, shares of stock options therefore
or other such sums due to Employee other than the amounts to be paid pursuant to
Sections 2 and 3 of this Agreement. In light of all such payments by or on
behalf of Visioneer, Purchaser and/or Purchaser Parent of all wages due, or to
become due to the Employee, the Parties further acknowledge and agree that
California Labor Code Section 206.5 is not applicable to the Parties hereto.
That section provides in pertinent part as follows:
No employer shall require the execution of any release of any
claim or right on account of wages due, or to become due, or
made as an advance on wages to be earned, unless payment of
such wages has been made.
6. Release of Claims. Employee agrees that the foregoing consideration
represents settlement in full of all outstanding obligations owed to Employee by
any of Visioneer, Purchaser and/or Purchaser Parent. Employee further agrees
that with respect to (i) any payment(s) made to Employee hereunder or (ii)
benefit(s) conferred upon Employee hereunder by either Visioneer, Purchaser or
Purchaser Parent, that the other two parties hereto (i.e., either (i) Visioneer
and Purchaser, or (ii) Purchaser and Purchaser Parent, or (iii) Visioneer and
Purchaser Parent) shall be deemed to be third-party beneficiaries of such
actions. Employee, on the one hand, and Visioneer, Purchaser and Purchaser
Parent, on the other hand, on behalf of themselves, and each of their respective
heirs, executors, officers, directors, employees, investors, shareholders,
administrators, predecessor and successor corporations and assigns,
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hereby fully and forever release each other and their respective heirs,
executors, officers, directors, employees, investors, shareholders,
administrators, predecessor and successor corporations and assigns from any
claim duty, obligation or cause of action relating to any matters of any kind,
whether known or unknown, suspected or unsuspected, that either of them 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 Visioneer and termination of that relationship as
of the Termination Date, and any anticipated future employment relationship
between Employee and either of Purchaser or Purchaser Parent;
(b) any and all claims relating to, or arising from, Employee's
right to purchase, or actual purchase of shares of stock of Visioneer (other
than as specifically set forth in Section 3 herein above);
(c) any and all claims for wrongful discharge of employment; breach
of contract, both express and implied; breach of a covenant of good faith and
fair dealing, both express and implied; negligent or intentional infliction of
emotional distress; negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic advantage; and
defamation;
(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 Age Discrimination in Employment Act of 1967, and the
California Fair Employment and Housing Act;
(e) any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination; and
(f) any and all claims for attorney's fees and costs.
The Parties agree that the release set forth in this section shall be and remain
in effect in all respects as a complete and general release as to the matters
released. This release does not extend to any obligations incurred under this
Agreement.
7. 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, on the one hand, and Visioneer, Purchaser and Purchaser
Parent, on the other hand, acknowledge that they 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,
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WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT
WITH THE DEBTOR.
The Parties being aware of such code section, agree respectively to waive
any rights they may have thereunder, as well as under any other stature or
common law principles of similar effect.
8. Acknowledgment of Waiver of Claims under ADEA. Employee acknowledges
that he is waiving and releasing any rights he may have under the Age
Discrimination in Employment Act of 1967 ("ADEA") and that the waiver and
release is knowing and voluntary. The Parties agree that the waiver and release
does not apply to any rights or claims that may arise under ADEA after the
Effective Date (as defined below) of this Agreement. Employee acknowledges that
the consideration given for this waiver and release Agreement is in addition to
anything of value to which Employee was already entitled. Employee further
acknowledges that he has been advised by the writing that (a) he should consult
with an attorney prior to executing this Agreement; (b) he has at least
twenty-one (21) days within which to consider this Agreement; (c) he has at
least seven (7) days following the execution of this Agreement by the Parties to
revoke this Agreement (the "Revocation Period"); and (d) this Agreement shall
not be effective until the Revocation Period has expired.
9. Confidentiality. The Parties hereto each agree to use their best
efforts to maintain in confidence the existence of this Agreement, the contents
and terms of this Agreement, and the consideration for this Agreement
(hereinafter collectively referred to as "Settlement Information"). Each Party
hereto agrees to take every reasonable precaution to prevent disclosure of any
Settlement Information to third parties, and each agrees that there will be no
publicity, directly or indirectly, concerning any Settlement Information. The
Parties hereto agree to take every precaution to disclose Settlement Information
only to those employees, officers, directors, attorneys, accountants,
governmental entities, and family members who have a reasonable need to know of
such Settlement Information.
10. Nondisclosure of Confidential and Proprietary Information. Employee
understands and agrees that his obligations to Visioneer under the Confidential
Information and Assignment of Inventions Agreement previously executed by
Employee and Visioneer shall survive termination of Employee's relationship with
Visioneer under this Agreement and that Employee shall continue to maintain the
confidentiality of all confidential and propriety information of Visioneer,
Purchaser and Purchaser Parent to which he has had access. Employee agrees that
at all times hereafter, Employee shall not intentionally divulge, furnish or
make available to any party any of the trade secrets, patents, patent
applications, price decisions or determinations, inventions, customers,
proprietary information or other intellectual property rights of Visioneer,
Purchaser or Purchaser Parent, until after such time as such information has
become publicly known otherwise than by an act of collusion of Employee.
Employee further agrees that he will return all property and confidential and
proprietary information of Visioneer, Purchaser and Purchaser Parent in his
possession to such Party within five business days after the Termination Date.
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11. Breach of this Agreement. Employee acknowledges that upon breach of
the confidential and proprietary information provision contained in Section 10
of this Agreement, Visioneer, Purchaser and/or Purchaser Parent would sustain
irreparable harm from such breach, and, therefore, Employee agrees that in
addition to any other remedies which Visioneer, Purchaser and/or Purchaser
Parent may have for any breach of this Agreement or otherwise, including
termination of such Parties' respective obligations to provide benefits to
Employee as described in Sections 2, 3 and 4 of this Agreement, Visioneer,
Purchaser and Purchaser Parent shall be entitled to obtain equitable relief,
including specific performance and injunctions, restraining Employee from
committing or continuing any such violation of this Agreement.
12. Non-Disparagement. Each Party agrees to refrain from any
disparagement, criticism, defamation, slander of the others, or tortious
interference with the contracts and relationships of the others.
13.. 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
acknowledgment or admission by either party of any fault or liability whatsoever
to the other party or to any third party.
14. Authority. Each of Visioneer, Purchaser and Purchaser Parent
represents and warrants that the undersigned have the authority to act on behalf
of Visioneer, Purchaser and Purchaser Parent, respectively, and to bind
Visioneer, Purchaser and Purchaser Parent, respectively, and all who may claim
through any of them to the terms and conditions of this Agreement. Employee
represents and warrants that he has the capacity to act on his own behalf and on
behalf of all who might claim through him 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.
15. No Representations. Each Party represents that it has carefully read
and understands the scope and effect of the provisions of this Agreement. No
Party has relied upon any representations or statements made by the other
Parties which are not specifically set forth in this Agreement.
16. Costs. The Parties shall each bear their own costs, attorneys' fees
and other fees incurred in connection with this Agreement.
17. 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.
18. Entire Agreement. This Agreement represents the entire agreement and
understanding between the Parties concerning Employee's separation from
Visioneer and
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supersedes and replaces any and all prior agreements and understandings
concerning Employee's relationship with any of Visioneer, Purchaser and/or
Purchaser Parent and his compensation by any of them other than any option
agreement as described in Section 3 and other than the Confidential Information
and Assignment of Inventions Agreement as described in Section 10.
19. No Oral Modification. This Agreement may only be amended in writing
signed by each of the Parties.
20. Governing Law. This Agreement shall be governed by the laws of the
State of California.
21. Effective Date. This Agreement shall be effective upon the expiration
of the Revocation Period described in Section 8 and such date is referred to
herein as the "Effective Date".
22. 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.
23. Assignment. This Agreement may not be assigned by any Party without
the prior written consent of each of the other Parties. Notwithstanding the
foregoing, this Agreement may be assigned by either Visioneer, Purchaser or
Purchaser Parent to a corporation controlling, controlled by or under common
control with such entity without the consent of Employee.
24. 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.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
respective dates set forth below.
VISIONEER, INC.
By: /s/ J. XXXXX XXXXX
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Title: President, Chief Executive
Officer
Dated: January 8, 1999
PRIMAX V ACQUISITION CORP.
By: /s/ J. XXXXX XXXXX
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Title:
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Dated: January 8, 1999
PRIMAX ELECTRONICS, LIMITED
By:
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Title:
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Dated: January __, 1999
XXXXXXX X. XXXX:
/s/ XXXXXXX X. XXXX
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Xxxxxxx X. Xxxx
Dated: January 8, 1999
