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EXHIBIT 10.02
[Confidential Treatment Requested]
SETTLEMENT, CONSULTING AND RELEASE AGREEMENT
This Settlement, Consulting and Release Agreement (hereafter "Settlement
Agreement") is made as of the date of execution set forth below, by and between
Xxxxxxxxxxx Xxxxxxx ("Xx. Xxxxxxx") and Worldtalk Communications Corporation,
doing business as Worldtalk Corporation ("Worldtalk") (jointly referred to as
the "Parties").
RECITALS
WHEREAS, Xx. Xxxxxxx was employed by Worldtalk since December 27, 1995,
and held the position of Vice President, Sales.
WHEREAS, Xx. Xxxxxxx and Worldtalk have discontinued the employment
relationship between them and wish to set forth the terms of their agreement.
NOW, THEREFORE, for and in consideration of the mutual promises
contained herein, the Parties agree as follows:
1. Xx. Xxxxxxx has submitted his resignation as an employee of Worldtalk
and from all other positions at Worldtalk, and Worldtalk has accepted such
resignation, effective May 15, 1997. Xx. Xxxxxxx affirms and acknowledges
receipt of his regular salary payments through May 15, 1997 on the then-current
payroll schedule, and acknowledges and agrees that he has no unused vacation
balance as of May 15, 1997.
2. As consideration for the promises herein, and for other good and
valuable consideration, receipt of which is hereby acknowledged, Worldtalk
agrees as follows:
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(a) Worldtalk has engaged Xx. Xxxxxxx as a Consultant from May 16,
1997 through [ ** ] (the "Consulting Period") and Xx. Xxxxxxx will receive
[ ** ] payable semi-monthly on the 8th and 22nd of each month through the end of
his Consulting Period. Upon due execution of this Settlement Agreement by Xx.
Xxxxxxx, Worldtalk will promptly pay him the amount of [ ** ] by July 18, 1997,
representing payment for the period May 16, 1997 through July 15, 1997. Xx.
Xxxxxxx will not be obligated to provide consulting services of more than 5
hours in any one calendar week during the Consulting Period . Xx. Xxxxxxx will
be obligated to work only at such times as shall not interfere with his then
current employment, if any, and will perform such consulting services from his
home, or over the telephone.
(b) Xx. Xxxxxxx may terminate his relationship with Worldtalk at any
time by sending written notice of termination to a Worldtalk Officer. Worldtalk
may likewise terminate Xx. Xxxxxxx'x relationship, but only subsequent to a
material breach of this Agreement by Xx. Xxxxxxx that is not cured by Xx.
Xxxxxxx within 30 days after Worldtalk's written notice of such breach is sent
pursuant to Paragraph 14 to Xx. Xxxxxxx. Xx. Xxxxxxx will continue to be paid
per the above during the cure period, subject to Worldtalk's rights to recover
any overpayment or its rights of setoff. Termination by Worldtalk or Xx. Xxxxxxx
will also terminate Xx. Xxxxxxx'x right to receive the compensation provided for
this in this Section 2 for any period after the effective date of notice, May
15, 1997.
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[**Confidential treatment has been requested with respect to certain portions of
this Exhibit. Confidential portions have been omitted from the public filing and
have been filed separately with the Securities and Exchange Commission. ]
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(c) Through Cobra, Worldtalk will continue to pay the cost of
medical, dental and vision benefit premiums through August 31, 1997 or, if Xx.
Xxxxxxx is not employed and offered medical benefits through a future employer,
Worldtalk will extend payment of Cobra coverage until the earlier of his
obtaining a position with a new employer or until November 30, 1997.
(d) Xx. Xxxxxxx acknowledges receipt of $16,562.50, net of
withholding, as full and complete payment of any and all commissions, bonus
payment, or related compensation.
(e) Pursuant to the provisions of Worldtalk's Incentive Stock Option
Plan, Xx. Xxxxxxx acknowledges he had until July 14, 1997, sixty (60) days after
termination of his employment relationship described above) to exercise his
vested stock options. All vesting ceased as of Xx. Xxxxxxx' last date of
employment, May 15, 1997.
(f) Under Section 6 of the Secured Full Recourse Promissory Note
issued on October 24, 1996 to Xx. Xxxxxxx and Xxxxx Xxxxxxx in connection with a
loan of $325,000 from Worldtalk, the principal sum of the Promissory Note,
together with all interest accrued, is due and payable three (3) months
following the date of termination of Xx. Xxxxxxx' employment. Notwithstanding
the provisions of Section 6 of the Promissory Note, Worldtalk and Xx. Xxxxxxx'
agree that the principal amount of the Promissory Note, together with accrued
interest, will be due and payable in full on December 1, 1997. Failure to repay
all amounts owed under the Promissory Note by December 1, 1997 will constitute
an event of default under the Promissory Note.
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(g) Worldtalk hereby reaffirms any indemnity obligation it may owe
Xx. Xxxxxxx by virtue of his having been an officer of Worldtalk.
3. Xx. Xxxxxxx acknowledges and agrees that the payments set forth in
the preceding paragraphs and any other consideration provided to him in
accordance with this Settlement Agreement shall constitute a retainer for Xx.
Xxxxxxx' consulting services to be rendered to Worldtalk as needed through and
until [ ** ] ("the Consulting Period"). Xx. Xxxxxxx agrees that during the
Consulting Period, he shall not become employed by or render consulting services
to any entity or individual in competition with Worldtalk in any respect. Xx.
Xxxxxxx and Worldtalk agree that Xx. Xxxxxxx may, during the Consultation
Period, seek employment in competition with Worldtalk to the extent the
employment would commence after the termination of the Consulting Period and be
consistent with Xx. Xxxxxxx' duties of confidentiality to Worldtalk.
4. Release: Xx. Xxxxxxx, on behalf of himself, his representatives,
heirs, executors, attorneys, agents, and each of the foregoing, hereby forever
releases and discharges Worldtalk and its representatives, attorneys, agents,
partners, officers, shareholders, directors, employees, parents, subsidiaries,
affiliates, divisions, successors and assigns, and each of the foregoing, of and
from any and all manner of action, claim or cause of action, in law or in
equity, suits, debts, liens, contracts, agreements, promises, liabilities,
demands, losses, damages, costs or expenses, including without limitation court
costs and attorneys' fees, which Xx. Xxxxxxx may have against them at the time
of the
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[**Confidential treatment has been requested with respect to certain portions of
this Exhibit. Confidential portions have been omitted from the public filing and
have been filed separately with the Securities and Exchange Commission. ]
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execution of this Settlement Agreement, arising out of, or in connection with,
or relating directly or indirectly to Xx. Xxxxxxx' employment with Worldtalk
and/or the termination of Xx. Xxxxxxx' employment with Worldtalk, with the
exception of any obligations created by this Settlement Agreement ("Xxxxxxx
Released Matters").
5. Release: Worldtalk, on behalf of itself, hereby forever releases and
discharges Xx. Xxxxxxx and his representatives, attorneys, agents, partners,
successors and assigns, and each of the foregoing, of and from any and all
manner of action, claim or cause of action, in law or in equity, suits, debts,
liens, contracts, agreements, promises, liabilities, demands, losses, damages,
costs or expenses, including without limitation court costs and attorneys' fees,
which Worldtalk may have against them at the time of the execution of this
Settlement Agreement, arising out of, or in connection with, or relating
directly or indirectly to Xx. Xxxxxxx' employment with Worldtalk and/or the
termination of Xx. Xxxxxxx' employment with Worldtalk, with the exception of any
obligations created by this Settlement Agreement and any obligations of
confidentiality ("Worldtalk Released Matters").
6. Return of Property: Xx. Xxxxxxx understands and agrees that he will
identify to Worldtalk and turn over to Worldtalk no later than five (5) days
after his execution of this Settlement Agreement any and all files, memoranda,
records, credit cards, and other documents and physical or personal property
which Xx. Xxxxxxx received from Worldtalk and which are the property of
Worldtalk, along with any and all copies thereof in any medium or form, to the
extent the property has not already been
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turned over. This property includes but is not limited to the following; one (1)
HP Omnibook 500C 5/90 VL 8/810, one (1) EtherlinkIII Lan & Modem 28.8/V.34M,
three (3) HP Omnibook Rechargeable Batteries, and one (1) Fax Machine. If Xx.
Xxxxxxx would like to purchase the HP Omnibook, the net book value amount of
$2,866.15 should be submitted to Worldtalk no later than July 30, 1997 should he
decide to make this purchase.
7. Worldtalk will also provide a voice mail box for Xx. Xxxxxxx for
three (3) months following his termination date which will enable him to receive
forwarded messages from internal personnel at Worldtalk. This voice mail box
number will be 6194 and the password will also be 6194.
8. Trade Secrets: Xx. Xxxxxxx understands and agrees that in the course
of his employment with Worldtalk, he acquired confidential or proprietary
information and trade secrets concerning Worldtalk's operations, its future
plans and its methods of doing business, including by way of example, but by no
means limited to, information about Worldtalk's customers, product development,
research, technology, financial, marketing, pricing, costs, compensation and
other matters (hereinafter collectively "Trade Secrets"), all of which
information Xx. Xxxxxxx understands and agrees would be extremely damaging to
Worldtalk if disclosed to a competitor or made available to any other person or
corporation. As used herein, the term "Competitor" includes but is not limited
to any corporation, firm or business engaged in a business similar to that of
Worldtalk or its subsidiary companies. Xx. Xxxxxxx understands and agrees that
Trade Secrets have been divulged to Xx. Xxxxxxx in confidence, and Xx. Xxxxxxx
understands and agrees that he
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will keep such information secret and confidential. Xx. Xxxxxxx further
understands and agrees that, at all times, he will not disclose or communicate
Trade Secrets to either a Competitor or any other person or in any way make such
information available to others, or make use of such information on Xx. Xxxxxxx'
own behalf, or on behalf of any Competitor. In view of the nature of Xx.
Xxxxxxx' employment and the Trade Secrets which Xx. Xxxxxxx has received during
the course of his employment, Xx. Xxxxxxx likewise agrees that Worldtalk would
be irreparably harmed by any violation or threatened violation of this Paragraph
and that, therefore, Worldtalk shall be entitled to an injunction prohibiting
Xx. Xxxxxxx from any violation or threatened violation of this Paragraph. The
undertakings set forth in this paragraph shall survive the termination of other
arrangements contained in this Settlement Agreement and is in addition to the
terms and conditions of any Proprietary Rights and Confidentiality Agreement Xx.
Xxxxxxx may have entered into with Worldtalk, which Agreement shall also survive
such termination.
Xx. Xxxxxxx further represents that he has not shown, transferred or
disclosed without authorization the contents of any Worldtalk documents to any
individual or entity. Xx. Xxxxxxx further represents that he has not disclosed
and will not disclose any of Worldtalk's Trade Secrets to any individual or
entity nor has he used or will he use such information for his or any other
individual's or entity's benefit.
9. Waiver: Xx. Xxxxxxx understands that various federal, state and local
laws prohibit age, sex, race, disability, benefits, pension, health and other
forms of discrimination and that these laws can be enforced
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through the U.S. Equal Employment Opportunity Commission, California state and
local human rights agencies and federal and state courts. Xx. Xxxxxxx
understands that if he believes his treatment by Worldtalk was discriminatory,
he has the right to consult with these agencies and to file a charge with them
or file a lawsuit. After consultation with counsel of his choosing, Xx. Xxxxxxx
has decided voluntarily to enter into this Settlement Agreement, and hereby
expressly waives the right to recover any amounts to which he may have been
entitled under such laws, including, but not limited to: the California Fair
Employment and Housing Act, California Government Code ss.12900 et seq.; the Age
Discrimination in Employment Act, 42 U.S.C. ss.621-634; the Employee Retirement
Income Security Act (ERISA), 29 U.S.C. ss.1001 et seq.; Title VII of the Civil
Rights Act of 1964, 42 U.S.C. ss.2000e et seq.; and 42 U.S.C. ss.1981.
10. Successors and Assigns: The provisions of this Settlement Agreement
and the release contained herein shall extend and inure to the benefit of and be
binding upon, in addition to the Parties hereto, just as if they had executed
this Settlement Agreement, the respective legal heirs and assigns of each of the
Parties hereto and their spouses, descendants, ancestors, dependents, heirs,
executors, administrators, directors, officer, partners, attorneys, agents,
servants, employees, representative, affiliates, parents, subsidiaries,
shareholders, predecessors, successors and assigns, and each of the foregoing.
11. Representations as to Authority: Each of the Parties hereto
represents and warrants that he or it has the sole right and exclusive authority
to execute this Settlement Agreement and that he or it has not
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sold, assigned, transferred, conveyed, or otherwise disposed of any claim or
demand, or any portion of or interest in any claim or demand, relating to any
matter covered by this Settlement Agreement.
12. Entire Agreement: This Settlement Agreement constitutes the entire
agreement among the Parties hereto with respect to the subject matter hereof and
supersedes all prior negotiations and agreements, whether written or oral,
relating to such subject matter. Each of the Parties acknowledges to the other
that neither one, nor his or its agent or attorney, has made any promise,
representation or warranty whatsoever, either express or implied, written or
oral, which is not contained in this Settlement Agreement for the purpose of
inducing that Party to execute the Settlement Agreement, and each of the Parties
acknowledges that he or it has executed this Settlement Agreement in reliance
only upon such promises, representations and warranties as are contained herein.
13. Modification: It is expressly agreed that this Settlement Agreement
may not be altered, amended, modified, or otherwise changed in any respect
except by another written agreement that specifically refers to this Settlement
Agreement, duly executed by authorized representatives of each of the Parties
hereto.
14. Notices: Any notices required or permitted hereunder shall be in
writing and will be effective when personally delivered or when deposited in the
U.S. mails, certified mail return receipt requested, postage prepaid, to the
address specified for the receiving party on the signature page hereto, or to
such other address as may be noted to the sending party hereafter.
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15. No Evidence of Liability: This Settlement Agreement is not intended
to be and should not be construed as an admission of liability on the part of
the Parties, or any of them. This Settlement Agreement shall be afforded the
maximum protection allowable under California Evidence Code Section 1152 and/or
any other state or federal provisions of similar effect.
16. Representation by Counsel: Each of the Parties hereto acknowledges
that he or it has been represented by counsel or has had the opportunity to
consult with counsel throughout all negotiations which preceded the execution of
this Settlement Agreement. Each Party further acknowledges that he or it and/or
counsel have had adequate opportunity to make whatever investigation or inquiry
deemed necessary or desirable in connection with the subject matter of this
Settlement Agreement prior to the execution hereof and the acceptance of the
consideration specified herein.
17. Interpretation: This Settlement Agreement shall be enforced,
interpreted and construed in accordance with California law. Counsel for the
Parties have negotiated, read and approved the language of this Settlement
Agreement, which language shall be construed in its entirety according to its
fair meaning and not strictly for or against either of the Parties.
18. Confidentiality: The contents, terms and conditions of this
Settlement Agreement shall be kept confidential by the Parties and shall not be
disclosed by the Parties except pursuant to subpoena or court order or to their
respective tax or financial advisors or spouse for the sole purpose of
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preparing tax returns. However, Worldtalk reserves the right to disclose the
contents of this Settlement Agreement to potential investors or buyers of
Worldtalk or to any person or entity when necessary to comply with federal
securities laws. In addition, liquidated damages in the amount of $2,500 will be
assessed for each violation of this provision upon an adequate showing of proof
to an arbitration judge. This provision shall be enforced by binding arbitration
by a judge appointed by JAMS/Endispute, or any successor body. The arbitration
Judge shall have the authority to award liquidated damages as set forth above
and, in the arbitration judge's discretion, to provide injunctive relief to
prevent further breach. A decision by the arbitration judge awarding either
liquidated damages or injunctive relief or both may be enforced as a judgment in
any court of competent jurisdiction.
19. Non-disparagement: The Parties each agree not to engage in conduct
or undertake speech derogatory about or detrimental to the other.
20. Counterparts: This Settlement Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute one and the same document. A photocopy of the Settlement Agreement
may be used in lieu of an original in any proceeding or action brought to
enforce or construe this Settlement Agreement.
21. Attorney's Fees: If any action at law or in equity is brought to
enforce the terms of this Settlement Agreement, the prevailing party shall be
entitled to recover its reasonable attorneys' fees, costs and expenses from the
other party, in addition to any other relief to which such prevailing party may
be entitled.
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22. Expenses: Worldtalk will reimburse Xx. Xxxxxxx for reasonable
business expenses incurred during business activities through May 15, 1997. Xx.
Xxxxxxx agrees to submit all receipts for such expenses upon execution of this
Agreement. Worldtalk agrees to reimburse Xx. Xxxxxxx for these expenses within
ten (10) business days of receipt by Worldtalk.
23. Xx. Xxxxxxx understands that he has been given twenty one (21) days
to review and consider this Agreement before signing it. Xx. Xxxxxxx further
understands that he may use as much of this 21-day period as he wishes prior to
signing it. Xx. Xxxxxxx acknowledges that he has consulted as attorney before
signing this Agreement.
24. Xx. Xxxxxxx acknowledges that he may revoke this Agreement within
seven (7) days of signing it. Revocation can be made by delivering a written
notice of revocation to Xxxxxxx Xxxxxxx. For this revocation to be effective,
written notice must be received by Xxxxxxx Xxxxxxx no later than the close of
business on the seventh day after Xx. Xxxxxxx signs the Agreement. If Xx.
Xxxxxxx revokes this Agreement, it shall not be effective or enforceable, Xx.
Xxxxxxx will not receive the benefits described herein, and will be obligated to
return any payments previously made pursuant to this Settlement Agreement.
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IN WITNESS WHEREOF, each of the Parties hereto has duly executed this
Settlement Agreement as of the date and year set forth below.
Executed at Santa Clara, California, this 15th day of July, 1997.
By: /s/ Xxxxxxxxxxx Xxxxxxx
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Xxxxxxxxxxx Xxxxxxx
Address: 00000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
Executed at Santa Clara, California, this 15th day of July, 1997.
By: /s/ Xxxxxxx Xxxxxxxxxxxx
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Worldtalk Corporation
Address: 0000 Xxx Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
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