AGREEMENT AND RELEASE
This Agreement and Release ("Agreement") is entered into this 14th day
of December, 1999 ("Execution Date") by and between XxXxx.xxx, Inc., a Delaware
corporation with principal offices located at 0000 Xxxxxx Xxxxx, Xxxxxx Xxxxx 0,
Xxx Xxxxx, XX 00000 ("Company") and Xxxx X. Xxxxxx, an individual residing at
0000 Xxxx Xxxxxx Xxxxx, Xxxxxxxx, XX 00000 ("Executive").
RECITALS:
WHEREAS, Company has employed Executive since October 13, 1998 in the
position of Chairman and Chief Executive Officer pursuant to a written
employment agreement effective as of that date and as amended ("Employment
Agreement"); and
WHEREAS, Executive now wishes to retire and Company and Executive
("Parties") wish to terminate the Employment Agreement and Executive's
employment in a mutually acceptable manner, without dispute and pursuant to the
following terms and conditions.
NOW, THEREFORE, in consideration of the mutual promises and
undertakings herein, it is mutually agreed as follows:
AGREEMENTS
1. TERMINATION OF AGREEMENT AND EMPLOYMENT.
Executive hereby resigns his employment pursuant to retirement, and
Company accepts his resignation on that basis, effective January 15, 2000
("Retirement Date"). As of that date, Executive's employment and all positions
and assignments to and/or with the Company as well as all duties,
responsibilities and authorities with the Company, will terminate. The Parties
further mutually agree that as of the Execution Date, Executive is not expected
nor authorized to take any action on behalf of or otherwise to obligate the
Company in any manner, and that as of the Retirement Date, the Employment
Agreement is terminated and of no further force and effect, except for
provisions which by their meaning continue thereafter by their terms and/or
pursuant to the terms of this Agreement.
2. PAYMENTS.
(a) On or before the Retirement Date, the Company will
pay to Executive all accrued but unpaid salary, bonus, commissions, compensation
time, vacation, and unreimbursed business expenses through the Retirement Date.
(b) Effective upon the later of the Retirement Date and
the expiration of the Revocation Period as provided below ("Effective Date"),
the Company will pay to Executive, pursuant to its regularly scheduled payroll
periods for Executives in effect at the time, separation payments consisting of
the equivalent of six (6) months of his current base salary deemed to be
the gross amount of $31,250 per month less necessary withholdings and
deductions ("Separation Payment"). The longer of the period of payments or
six months is deemed to be the severance period ("Severance Period"). All
portions of the Separation Payment will be made by Company check, mailed to
the address listed for Executive above, unless the Company is otherwise
instructed by Executive in writing. Executive specifically agrees and
acknowledges that the payments and other benefits provided for in this
Agreement exceed any amounts to which he is otherwise entitled pursuant to
the Employment Agreement, Company's policies, plans or procedures.
(c) Executive is eligible to continue his current health
coverage under the Company's group health plan, as it may be modified from time
to time, pursuant to the provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1986, as amended ("COBRA"). Executive has indicated his
intention to continue such coverage and to pay the premiums required to maintain
such coverage. Company agrees to pay these premiums to maintain coverage for the
Executive for the Severance Period as is currently provided under its group
health insurance plan in effect at the time.
(d) During the Severance Period, all options previously
awarded to Executive will continue to vest as if he had remained employed during
this Period, and further, will remain exercisable for up to 90 days following
the expiration of the Severance Period. Company acknowledges that the 135,000
shares of Company common stock owned by Executive and the shares of Company
common stock issuable by Company upon exercise of stock options held by
Executive have been registered for sale pursuant to the Securities Act of 1933.
Company further acknowledges that following the Retirement Date Executive will
not be subject to the Company's Xxxxxxx Xxxxxxx Policy.
(e) The Parties agree that Executive will not remain
eligible to receive the Profit Bonus and FY 2000 Revenue Increase Bonus, as set
forth in the Employment Agreement, on a pro-rated or any other basis. The
Parties further agree that Executive is not eligible for payment of a FY Equity
Bonus, nor to receive any additional "True-Up" options to be calculated on the
basis of the sale of additional equity on or after the Retirement Date.
(f) In addition to any and all other acknowledgments
contained herein, Executive specifically acknowledges that, as of the Retirement
Date, and except as otherwise provided herein, he has received all salary,
bonus, vacation, commissions, compensation time, options, warrants, stock
grants, and/or other payments to which he is or may be entitled pursuant to law,
the Employment Agreement, or any other prior agreement or any of the Company's
policies or programs, and that he accrues no other benefits or entitlements on
or after the Retirement Date, including but not limited to vacation, except as
provided in this Agreement.
3. COMPANY PROPERTY.
On or before the Execution Date, Executive agrees to return all items
of Company property he had or over which he had control, including but not
limited to any equipment belonging to the Company, all code and computer
programs and information of whatever nature, as well as any other materials,
documents or information, including but not limited to confidential information
in his possession or control, and that he will retain no copies thereof,
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except as may be required and as mutually agreed in order for Executive to
provide the services as set forth in Section 4 below.
4. ACKNOWLEDGEMENT AND RELEASE.
(a) In consideration of the promises and undertakings
contained herein, Executive, on behalf of himself, his marital community, heirs,
executors, administrators and assigns (herein collectively "Executive") on the
one hand and the Company (including any and all of its related and affiliated
entities, Executives, agents, attorneys, shareholders, affiliates, officers
and/or directors of any of them (herein collectively called "Associated
Persons") on the other hereby releases in full and discharges and acquits the
other from any and all claims, causes of action, liabilities, demands, damages,
penalties, debts, obligations, actions and causes of action ("Claims") whether
now known or unknown, arising on or before the date hereof and arising out of or
relating to Executive's employment with the Company or retirement or other
termination therefrom, EXCEPT that: (i) Executive shall retain all benefits, if
any, which shall have vested as of the Retirement Date under the Company's
401(k) Plan and he shall be entitled to receive such vested benefits under the
terms of the Plan; and further that (ii) Executive is not releasing, discharging
or acquitting the Company from any Claims arising under the express terms of
this Agreement. This release of claims specifically refers to and includes
rights or claims arising under the federal Age Discrimination in Employment Act
and any applicable provision of state law.
(b) Without limiting the generality of the foregoing, the
Claims released herein include any Claims arising out of, based upon or in any
way related to (i) the Employment Agreement, the negotiation of this Agreement,
and/or any other prior employment agreements, incentive agreements or benefits
or retirement plans; (ii) any property, contract or tort claims, including
wrongful discharge, breach of employment contract, breach of the covenant of
good faith and fair dealing, retaliation, intentional or negligent infliction of
emotional distress, tortious interference with existing or prospective economic
advantage, negligence, misrepresentation, breach of privacy, defamation, loss of
consortium, breach of fiduciary duty, violation of public policy or any other
common law claim of any kind; (iii) any violation or alleged violation of Title
VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in
Employment Act, as amended, the Older Workers Benefit Protection Act of 1990,
the Equal Pay Act, as amended, the Fair Labor Standards Act, the Employee
Retirement Income Security Act, the Americans With Disabilities Act, the Civil
Rights Act of 1866, the Consolidated Omnibus Budget Reconciliation Act, the
California Fair Employment and Housing Act, the California Family Rights Act,
the California Labor Code, the California Unemployment Insurance Code, or the
California Workers' Compensation Act; (iv) any claims for severance pay, bonus,
sick leave, vacation or holiday pay, life insurance, health, disability or
medical insurance or any other fringe benefit; and (v) any claim relating to or
arising under any other local, state or federal statute or regulation or
principle of common law (whether in contract or in tort) governing the
employment of individuals, discrimination in employment and/or the payment of
wages or benefits.
Executive understands that if any fact with respect to any matter
covered by this Agreement is found to be other than, or different from the facts
now believed by him to be true, he expressly accepts and assumes the risk of
such possible difference in facts and agree that this Agreement shall be, and
remain, in full force and effect notwithstanding such difference in fact.
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Executive acknowledges and warrants that there are no claims or actions
currently filed or pending relating to the subject matter of this Agreement.
5. CONSULTATION.
Executive has twenty-one (21) days to consider whether to sign this
Agreement. If he signs this Agreement, he has the right to revoke the waiver and
release of claims under the Age Discrimination in Employment Act ("ADEA") within
seven (7) days of signing this Agreement, and the ADEA waiver and release will
not become effective or enforceable until that revocation period has expired.
Further, by signing this Agreement, Executive acknowledges that in exchange for
the release of claims, including the release under the ADEA, he will receive
benefits and money he would not otherwise be entitled to receive. Executive is
advised to consult an attorney before signing this Agreement. Should he exercise
his right to revoke the ADEA waiver within the seven-day period following his
signing this Agreement, he will not receive the payments described above in
Section 2.
6. GENERAL RELEASE.
The release set forth above is a general release and, except as
expressly provided herein, is intended to encompass all known and unknown,
foreseen and unforeseen claims which either party may have against the other,
including all Associated Persons up to and including the date of this Agreement.
It is further understood and agreed that Executive expressly waives all rights
under Section 1542 of the Civil Code of the State of California and any similar
law of any state or territory of the United States. Said section 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."
Notwithstanding the foregoing, the above release shall not apply to any
contractual, statutory or common law indemnification rights possessed by
Executive as an office or director or former officer or director of Company.
7. CONFIDENTIALITY AND PROPRIETARY INFORMATION.
(a) Confidentiality of Agreement. The Parties,
specifically including all Associated Persons, specifically agree to keep the
fact and terms of this Agreement confidential. Executive agrees to discuss it
only with his attorney, advisors, accountant and immediate family. Company
agrees to discuss it only with officers, directors, or agents with a specific
need to know, and to specifically instruct such persons regarding the
obligations of this Agreement, including but not limited to the confidentiality
and non-disparagement provisions.
(b) Confidential and Proprietary Information. Executive
reiterates the confidentiality provisions of the Employment Agreement, and
agrees to forever hold in strictest confidence and trust all trade secrets and
confidential or proprietary information of any nature and in any form which is
treated as confidential by Company and which is not generally known to the
public, and will not disclose it except for legitimate Company purposes and with
the Company's express written consent. For these purposes, confidential
information means all
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business information of whatever nature regarding the Company, its
Executives, directors, customers and suppliers; its procedures, business
methods, financial, personnel and salary information; and identities and all
other information regarding or otherwise related to its customers and
suppliers of goods and services, any or all of which information is not
otherwise generally known to the public at large.
(c) The Parties agree that the remedy at law for any
breach of the foregoing will be inadequate, and that either Party shall be
entitled to seek appropriate injunctive relief in addition to any remedy at law
in case of any breach of these provisions of this Section.
8. AGREEMENT NOT TO MALIGN.
(a) The Parties agree that neither they, nor any
authorized representative or agent, will make or publish, either verbally or in
writing, any statement or comment which could be reasonably interpreted to be
derogatory or injurious to either party or any Associated Person. The foregoing
notwithstanding, the Parties shall not be precluded from providing information
or making statements or comments to or before any regulatory or administrative
agency, governmental body or court of law when called upon to do so, which they
believe in good faith to be true and which might otherwise be deemed to violate
this section.
(b) The Parties agree to issue a press release promptly
following execution of this Agreement, or otherwise as mutually agreed,
materially similar to the language set forth in Attachment A. The Parties
specifically acknowledge that Attachment A has been negotiated between them and
is mutually acceptable and further, that any inquiries regarding Executive from
members of the press or from prospective employers will be referred exclusive to
Xxxx X. Xxxxxx or Xxxxxxx Xxxxx, who will respond in a manner consistent with
the provisions of Attachment A.
9. AUTHORITY.
Both Parties warrant and represent that each has the sole right and
exclusive authority to execute this Agreement and Release, and that neither is
restricted in so doing.
10. REMEDIES.
(a) Any dispute or difference between the Parties in
connection with this Agreement shall be referred to non-binding mediation
pursuant to an established mediation service to be selected by agreement between
the Parties within ten (10) business days. The mediation shall be scheduled and
conducted as promptly as practicable, and the costs of mediation shall be borne
equally by the Parties. If the Parties cannot themselves agree on a mediator,
they shall each designate one person and those two designees in turn shall
select a mediator.
(b) If mediation does not resolve the matter, or if the
designees are unable to agree on a mediator, then either party shall submit the
controversy or claim, within 90 days, to final and binding arbitration in
accordance with the Federal Arbitration Act and the rules of the American
Arbitration Association ("AAA") then in effect, such arbitration to be conducted
in the
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City and County of San Francisco, California. Attorney's fees and costs shall
be allocated by agreement in mediation or by the arbitrator in arbitration.
11. COMPLETE AGREEMENT.
This Agreement expresses the full and complete agreement between the
Parties regarding the subject matter hereof, and any modification of this
Agreement shall not be effective unless it is in a writing signed by all Parties
to this Agreement. No party has been or is being influenced to any extent or is
relying upon any representation, covenant or statement by any other person
unless set forth in this Agreement.
12. NO LIABILITY.
The Parties agree and understand that the payment of monies and giving
of other consideration, and the execution of this release and the agreements
contained herein do not constitute nor shall be construed as an admission of any
liability whatsoever by the Company, or the admission of the validity of any
claim made by or against either party.
13. GOVERNING LAW.
This Agreement shall be governed by the law of the State of California
applicable to contracts executed and wholly performed therein.
XXXXX.XXX, INC.
By:
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Its:
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Date:
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EXECUTIVE
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XXXX X. XXXXXX
APPROVED AS TO FORM:
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Attorney for Executive
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