Exhibit 10.33
SETTLEMENT AGREEMENT AND RELEASE
This Agreement is between TCSI Corporation, a Nevada corporation,
(hereinafter referred to as "TCSI") and Ram Banin ("BANIN"), collectively
referred to as "the Parties".
WHEREAS, BANIN has resigned his position as President, Chief Executive
Officer and a Director of TCSI as of December 17, 1999; and it is the present
intention of the Parties that BANIN continue to be employed by TCSI as a
business advisor through January 17, 2001 (the "Termination Date").
WHEREAS, the express purpose of this Agreement is to set forth the terms
of BANIN's employment with TCSI during the Employment Continuation Period
(defined below) and to forever release TCSI, as defined above, from any and all
potential liability regarding every claim, cause of action, complaint and
dispute that BANIN has, or may ever have, against TCSI arising out of, or
related to, any and all events, whether currently known or unknown, occurring
prior to the execution of this Agreement.
NOW THEREFORE, in consideration of the mutual promises made herein, TCSI
and BANIN hereby agree as follows:
1. Resignation of Officer Positions. Effective December 17, 1999 (the
"Effective Date") BANIN resigned his position as President, Chief Executive
Officer and Director. BANIN shall continue to be employed by the Company from
the Effective Date in the capacity of business advisor until the close of
business on January 17, 2001 (the "Termination Date"). A form letter of
resignation of BANIN's position as President, Chief Executive Officer and
Director of TCSI is attached hereto as Exhibit A.
2. Severance Payment. TCSI shall pay BANIN a severance payment of
$20,000 per month, less applicable withholding and deductions, through the
Termination Date. Such payments shall be made according to the normal payroll
practices of TCSI. This Severance Payment represents a settlement and compromise
of any potential claims that BANIN may have against TCSI.
3. Compensation. TCSI shall compensate BANIN for his services as a
business advisor at the rate of $1,875 per month, less applicable withholding
and deductions, through the Termination Date (the "Employment Continuation
Period").
4. Stock Options. All stock options of BANIN shall continue to vest and
become exercisable during the Employment Continuation Period. Upon the
Termination Date, such options shall cease to vest and shall be exercisable
according to the terms of the applicable option agreement(s).
5. Benefits. BANIN shall continue to be eligible to participate in the
employee benefit plans of TCSI during the Employment Continuation Period.
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6. Expense Reimbursement. TCSI also agrees to reimburse BANIN up to a
maximum of $3,500 for attorneys' fees and other fees incurred in connection with
this agreement and for outplacement counseling and related services.
7. Office Equipment. BANIN shall retain possession and obtain ownership
rights to the office equipment listed in Exhibit B to this Agreement.
8. Employer's Obligations. TCSI's obligations under this agreement shall
not commence until the eighth day after BANIN has executed this agreement.
9. Employee Obligations.
(a) Return of Property. BANIN shall promptly return to TCSI all
confidential or proprietary documents and records obtained by BANIN in the
course of, or incident to, his employment with TCSI.
(b) Confidential Information. BANIN shall not, for the benefit of any
person or entity other than TCSI, disclose or use any information regarding
TCSI's business operations which BANIN obtained during his employment with
TCSI and which is not in the public domain.
10. Release. BANIN and his representatives, heirs, successors, and
assigns do hereby completely release and forever discharge TCSI, and its and
their present and former shareholders, officers, directors, agents, employees,
attorneys, successors, and assigns, (collectively, "Released Parties") from all
claims, rights, demands, actions, obligations, liabilities, and causes of action
of every kind and character, known or unknown, mature or unmatured, which BANIN
may have now or in the future arising from any act or omission or condition
occurring on or prior to the Effective Date (including, without limitation, the
future effects of such acts, omissions, or conditions), whether based on tort,
contract (express or implied), or any federal, state, or local law, statute, or
regulation, including, but not limited to, the matters that were raised or could
have been raised in the Civil Action (collectively, the "Released Claims"). By
way of example and not in limitation of the foregoing, Released Claims shall
include any claims arising under Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act, the Americans with Disabilities Act, the
California Fair Employment and Housing Act, the California Labor Code as well as
any claims asserting wrongful termination, fraud, harassment, breach of
contract, breach of the covenant of good faith and fair dealing, negligent
infliction of emotional distress, negligent or intentional misrepresentation,
negligent or intentional interference with contract or prospective economic
advantage, defamation, invasion of privacy, and claims related to disability.
Released Claims shall also include, but not be limited to, claims for severance
pay, bonuses, sick leave, vacation pay, life or health insurance, or any other
fringe benefit. Notwithstanding the foregoing, Released Claims shall not include
(i) any claims based on obligations or rights created by or reaffirmed in this
Agreement; (ii) any vested pension rights or any workers' compensation claims
(the settlement of which would require approval by the California Workers'
Compensation Appeals Board); and (iii) any and all rights of indemnity as a
former employee of TCSI which BANIN may have under statute or otherwise.
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11. Section 1542 Waiver. The parties understand and agree that the
Released Claims include not only claims presently known to BANIN, but also
include all unknown or unanticipated claims, rights, demands, actions,
obligations, liabilities, and causes of action of every kind and character that
would otherwise come within the scope of the Released Claims as described in
Section 3. BANIN understands that he may hereafter discover facts different from
what he now believes to be true, which if known, could have materially affected
this Agreement, but he nevertheless waives any claims or rights based on
different or additional facts. BANIN knowingly and voluntarily waives any and
all rights or benefits that he may now have, or in the future may have, under
the terms of Section 1542 of the California Civil Code, 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.
12. Age Discrimination Claims. BANIN understands and agrees that, by
entering into this Agreement, (i) he is waiving any rights or claims he might
have under the Age Discrimination in Employment Act, as amended by the Older
Workers Benefit Protection Act; (ii) he has received consideration for this
release; (iii) he has been advised to consult with an attorney before signing
this Agreement; and (iv) he has been offered the opportunity to evaluate the
terms of this Agreement for not less than twenty-one (21) days prior to his
execution of the Agreement. BANIN may revoke this Agreement (by written notice
to TCSI) for a period of seven (7) days after his execution of the Agreement,
and it shall become enforceable only upon the expiration of this revocation
period without prior revocation by BANIN.
13. Covenant Not to Xxx. Except as provided in Section 9, BANIN shall
not xxx or initiate against any Released Party any compliance review,
administrative action, lawsuit or other proceeding, or participate in the same,
individually or as a member of a class, under any contract (express or implied),
or any federal, state, or local law, statute, or regulation pertaining in any
manner to the Released Claims.
14. Confidentiality. The parties understand and agree that this
Agreement and each of its terms, and the negotiations surrounding it, are
confidential and shall not be disclosed by either party to any entity or person,
for any reason, at any time, without the prior written consent of the other
party, except to BANIN's spouse and unless required by law or necessary to
obtain advice of an attorney or an accountant or to enforce this Agreement.
15. Nonadmission. The parties understand and agree that this is a
compromise settlement of potential claims and that the furnishing of the
consideration for this Agreement shall not be deemed or construed at any time or
for any purpose as an admission of liability by TCSI. The liability for any and
all claims is expressly denied by TCSI.
16. Arbitration. All claims that BANIN may have against TCSI or any
other Released Party, or which TCSI may have against BANIN, in any way related
to the subject matter, interpretation, enforcement, application, or alleged
breach of this Agreement ("Arbitrable Claims") shall be resolved by arbitration.
Arbitration of Arbitrable Claims shall be in
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accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association, as amended, and as augmented by this
Agreement. Arbitration shall be final and binding upon the parties and shall be
the exclusive remedy for all Arbitrable Claims. Either party may bring an action
in court to compel arbitration under this Agreement and to enforce an
arbitration award. Otherwise, neither party shall initiate or prosecute any
lawsuit or administrative action in any way related to any Arbitrable Claim.
Notwithstanding the foregoing, either party may, at its option, seek injunctive
relief pursuant to section 1281.8 of the California Code of Civil Procedure. The
Federal Arbitration Act shall govern the interpretation and enforcement of this
Section 9. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN
REGARD TO ARBITRABLE CLAIMS, INCLUDING WITHOUT LIMITATION ANY RIGHT TO TRIAL BY
JURY AS TO THE MAKING, EXISTENCE, VALIDITY, OR ENFORCEABILITY OF THE AGREEMENT
TO ARBITRATE.
17. Integration. The parties understand and agree that the preceding
Sections recite the sole consideration for this Agreement; that no
representation or promise has been made by BANIN, Employer, or any other
Released Party concerning the subject matter of this Agreement, except as
expressly set forth in this Agreement; and that all agreements and
understandings between the parties concerning the subject matter of this
Agreement are embodied and expressed in this Agreement. This Agreement shall
supersede all prior or contemporaneous agreements and understandings among
BANIN, TCSI, and any other Released Party, whether written or oral, express or
implied, with respect to the employment, termination, and benefits of BANIN,
including without limitation, any employment-related agreement or benefit plan,
except to the extent that the provisions of any such agreement or plan have been
expressly referred to in this Agreement as having continued effect.
18. Amendments; Waivers. This Agreement may not be amended except by an
instrument in writing, signed by each of the parties. No failure to exercise and
no delay in exercising any right, remedy, or power under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power under this Agreement preclude any other or further
exercise thereof, or the exercise of any other right, remedy, or power provided
herein or by law or in equity.
19. Assignment; Successors and Assigns. BANIN agrees that he will not
assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily
or involuntarily, or by operation of law, any of his obligations under this
Agreement. Any such purported assignment, transfer, or delegation shall be null
and void. BANIN represents that he has not previously assigned or transferred
any claims or rights released by him pursuant to this Agreement. Subject to the
foregoing, this Agreement shall be binding upon and shall inure to the benefit
of the parties and their respective heirs, successors, attorneys, and permitted
assigns. This Agreement shall also inure to the benefit of any Released Party.
This Agreement shall not benefit any other person or entity except as
specifically enumerated in this Agreement.
20. Severability. If any provision of this Agreement, or its application
to any person, place, or circumstance, is held by an arbitrator or a court of
competent jurisdiction to be invalid, unenforceable, or void, such provision
shall be enforced to the greatest extent permitted by law,
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and the remainder of this Agreement and such provision as applied to other
persons, places, and circumstances shall remain in full force and effect.
21. Attorneys' Fees. In any legal action, arbitration, or other
proceeding brought to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys' fees and
costs.
22. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
23. Interpretation. This Agreement shall be construed as a whole,
according to its fair meaning, and not in favor of or against any party. By way
of example and not in limitation, this Agreement shall not be construed in favor
of the party receiving a benefit nor against the party responsible for any
particular language in this Agreement. Captions are used for reference purposes
only and should be ignored in the interpretation of the Agreement.
24. Authority. TCSI represents that the person signing this Agreement on
its behalf has the full power and authority to do so and to bind TCSI thereby.
I understand and agree to the terms and conditions of this Agreement.
/s/ Ram Banin January 21, 2000
_____________________________________ Dated:________________________________
Ram BANIN
I understand and agree to the terms and conditions of this Agreement.
TCSI Corporation
/s/ Art Xxxxxx January 21, 2000
_____________________________________ Dated:________________________________
By: Art Xxxxxx
Its: Chief Financial Officer
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Exhibit A
December 17, 1999
To the Board of Directors of TCSI Corporation:
I hereby resign my position as President, Chief Executive Officer and a Director
of TCSI Corporation effective today, December 17, 1999.
Further, I accept the Company's offer of subsequent employment as business
advisor, subject to the terms and conditions set forth in the attached
Settlement Agreement and Release.
Very truly yours,
/s/ Ram Banin
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Ram Banin
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Exhibit B
Sony Vaio Laptop, Model PCG505G Serial Number: 4-639-304-02
(includes docking station and 3.5" ext drive)
Brother fax machine, Model MFC4550 Serial Number: N634-79-241
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