Exhibit 10.33
CONFIDENTIAL RESIGNATION AGREEMENT
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AND GENERAL RELEASE OF CLAIMS
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1. Xxxxx X. Xxxxxx ("Employee") was employed by iPrint Technologies, inc.
(the "Company") on or about May 1, 1996. Employee has now decided to resign from
his employment with the Company. It is the Company's desire to provide Employee
with a severance package that he would not otherwise be entitled to receive upon
his resignation and to resolve any claims that Employee has or may have against
the Company. Accordingly, Employee and the Company agree as set forth below
under this Confidential Resignation Agreement and General Release of Claims (the
"Agreement").
2. Employee hereby resigns from the Company effective January 31, 2002
(the "Resignation Date"), on which date he shall cease to be an employee of the
Company for all purposes. Between the date Employee signs the Agreement (the
"Effective Date") and the Resignation Date (the "Transition Period"), Employee
will report to the Company Vice President of Web Operations or such other
executive as designated by the Company's Chief Executive Officer. During the
Transition Period, Employee will receive his existing benefits. During the
Transition Period, Employee also will continue to receive his salary, less
standard payroll deductions and withholdings, at his current rate of $15,000.00
per month.
In addition to continued employment and the specified salary payments during the
Transition Period, the other benefits provided in exchange for this release are
participation in the Company's 401K Plan and group health insurance plans and
continued vesting in stock options granted in paragraph 2(d) of the Employment
Agreement during the Transition Period. On the Resignation Date the Company will
pay Employee all accrued salary, and all accrued and unused Personal Time Off
("PTO") earned through the Resignation Date, subject to standard payroll
deductions and withholdings. As of November 30, 2001, Employee's accrued and
unused PTO was 285 hours. All unused PTO will be paid to Employee by reducing
the outstanding amount of the Secured Demand Promissory Note dated April 16,
2001 (the "Loan") that Employee owes the Company ("Loan Reduction").
In the event the Company terminates Employee's employment during the Transition
Period for cause, the Company's obligation to pay his salary and all benefits
shall cease immediately, and his employment shall end immediately. For purposes
of this paragraph and paragraph 4, "cause" is defined in paragraph 5(a) of
Employee's Employment Agreement (the "Employment Agreement"), effective as of
October 31, 2001, and attached hereto as Exhibit A.
3. During the Transition Period, Employee agrees not to represent or
purport to represent the Company in any manner whatsoever to any third party
unless authorized by the Company, in writing, to do so.
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4. Provided that Employee has not been earlier terminated for cause, on
the eighth day following the Resignation Date, if Employee signs on the
Resignation Date a general release of known and unknown claims in the form
attached hereto as Exhibit B, Employee will receive the following consideration,
which includes applicable benefits in the severance package described in
paragraph 5(c) of the Employment Agreement, specifically:
(a) A lump sum payment equal to six months' pay at Employee's current
rate, less applicable withholding (the "Severance Payment"), which will be paid
to Employee as Loan Reduction. Employee understands and agrees that if he
violates Paragraph 6, 7, or 8 of the Employment Agreement, the Company will have
no obligation to continue the Severance Payment.
(b) A lump sum payment of $50,000 net after applicable withholding in
Loan Reduction.
(c) If Employee elects continuation of coverage under COBRA,
contribution by the Company to the COBRA premium payments for six months from
the Resignation Date. The Company will pay an amount equal to the portion of the
premium the Company would have paid if the Employee had remained employed.
(d) Payment of a bonus calculated on the same percentage of annual base
salary as other executive bonuses for 2001, if any (the "Bonus"). If any Bonus
is payable in cash, the Bonus payment, less applicable withholding, will be paid
to Employee as Loan Reduction. If any Bonus is payable in Company stock (the
"Stock"), the cash equivalent value of the Stock (based on the market price of
the Stock on the date executive Stock Bonuses are paid), less applicable
withholding, will be paid to Employee as Loan Reduction instead of receiving the
Stock. If any Bonus is payable in stock options, then $0.20 for each immediately
vesting option to purchase a share of Stock, less applicable withholding, will
be paid to Employee as Loan Reduction instead of receiving the immediately
vested portion of the stock option. Employee will not receive any payment in
connection with the balance of the stock option granted other executives that
does not vest immediately.
(e) Accelerated vesting of all of Employee's stock options, except
Option Grant No. 00000055, for 12 months following the Resignation Date, meaning
through January 31, 2003.
(f) A post-termination exercise period for all of Employee's stock
options, except Option Grant No. 00000055, extended from the standard 30 days in
section 7 of the standard form of stock option agreement to 12 months following
the Resignation Date, meaning through January 31, 2003.
The changes to Employee's stock option rights referenced in paragraphs 4(e) and
4(f), as well as how long Employee waits to exercise these options, could affect
the tax treatment of the options. Also, Employee acknowledges that the benefits
in paragraphs 4(e) and 4(f) to accelerate vesting and
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extend the post-termination exercise period could result in undesired tax
liability or tax treatment of the options. Employee acknowledges that he has
obtained competent tax advice and wishes to accept all of the benefits in
paragraphs 4(e) and 4(f), along with any associated tax risks and liabilities.
Except as provided in this Agreement, all other terms of Employee's option
agreements with the Company will not change and will be controlled by the terms
of the Company's stock option plan and related agreements.
Other than any salary and benefits that may become due during the Transition
Period and the severance package described in this paragraph 4, Employee
acknowledges and agrees that he has been paid all wages and accrued, unused
vacation that Employee earned during his employment with the Company. Employee
understands and acknowledges that he shall not be entitled to any payments or
benefits from the Company other than the salary and benefits earned during the
Transition Period and the severance package described in this paragraph 4.
5. Employee will pay the Company on January 31, 2002 an amount equal to
the Loan, less all Loan Reduction and less $20,000.
6. Beginning February 11, 2002, Employee will be retained by the Company
as a consultant on an independent contractor basis, pursuant to an independent
contractor agreement in the form attached hereto as Exhibit C, which the parties
shall execute at the conclusion of the Transition Period. Fees to be paid
pursuant to the independent contractor agreement will be in the form of Loan
Reduction until such time as the Loan is paid in full.
7. Employee will pay the Company the remaining amount of the Loan, if any,
on the earlier of 1) June 30, 2002, or 2) the lawful termination of the
independent contractor agreement entered into by the parties.
8. In exchange for the Company's willingness to provide Employee with
extended employment through the Transition Period and other consideration to
which Employee would not otherwise be entitled, Employee and his successors
release the Company and its shareholders, investors, directors, officers,
parents, subsidiaries, employees, agents, attorneys, insurers, legal successors
and assigns of and from any and all claims, actions and causes of action,
whether now known or unknown, which Employee now has, or at any other time had,
or shall or may have against those released parties based upon or arising from
or related to his employment with the Company and/or the termination of his
employment with the Company, including, but not limited to, any claims of breach
of contract, wrongful termination, infliction of emotional distress or national
origin, race, age, sex, sexual orientation, disability or other discrimination
or harassment under the Civil Rights Act of 1964, the Americans with
Disabilities Act, the California Labor Code, the Fair Employment and Housing Act
or any other applicable law or statute.
In exchange for the consideration described in paragraph 4 to which Employee
would not otherwise be entitled, Employee agrees to execute a second release at
the conclusion of the Transition Period which release is attached hereto as
Exhibit B.
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9. Employee acknowledges that he has read section 1542 of the Civil Code
of the State of California, which states in full:
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.
Employee waives any rights that he has or may have under section 1542 to the
full extent that he may lawfully waive such rights pertaining to this general
release of claims, and affirms that he is releasing all known and unknown claims
that he has or may have against the parties listed above.
10. Employee acknowledges and agrees that he shall continue to be bound by
and comply with the terms of the Employment Agreement except as explicitly
modified herein, and the Employee Innovations and Proprietary Rights Assignment
Agreement between the Company and Employee.
11. Employee agrees that by the Resignation Date he will return to the
Company all Company documents (and all copies thereof) and other Company
property which he has had in his possession at any time, including but not
limited to Company files, notes, drawings, records, business plans and
forecasts, financial information, specifications, computer-recorded information,
tangible property (including but not limited to computers), credit cards, entry
cards, identification badges and keys, and any materials of any kind which
contain or embody any proprietary or confidential information of the Company
(and all reproductions thereof).
12. Employee agrees that he shall not directly or indirectly disclose 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. Employee further
agrees that he will not, at any time in the future, make any critical or
disparaging statements about the Company, its products or its employees, unless
such statements are made truthfully in response to a subpoena or other legal
process.
13. This Agreement, including Exhibits A, B and C, constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior negotiations and agreements, whether written or oral, with
the exception of any agreements described in paragraph 8. This Agreement may not
be modified or amended except by a document signed by an authorized officer of
the Company and Employee. If any provision of this Agreement is determined to be
invalid or unenforceable, in whole or in part, this determination will not
affect any other provision of this Agreement and the provision in question shall
be modified by the court or arbitrator so as to be rendered enforceable. This
Agreement shall be deemed to have been entered into and shall be construed and
enforced in accordance with the laws of the State of California as applied to
contracts made and to be performed entirely within California.
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EMPLOYEE UNDERSTANDS THAT HE MAY CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS
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AGREEMENT AND THAT HE IS GIVING UP ANY LEGAL CLAIMS HE HAS AGAINST THE PARTIES
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RELEASED ABOVE BY SIGNING THIS AGREEMENT. EMPLOYEE ACKNOWLEDGES THAT HE IS
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SIGNING THIS AGREEMENT KNOWINGLY, WILLINGLY AND VOLUNTARILY IN EXCHANGE FOR THE
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PAYMENTS AND BENEFITS DESCRIBED IN PARAGRAPH 2.
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Dated: January 15 , 2002 /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Dated: January 15 , 2002 iPrint Technologies, inc.
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By: /s/ Xxxxx Xxxx
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Its:
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Exhibit A
EMPLOYMENT AGREEMENT
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Exhibit B
GENERAL RELEASE
Employee and his successors release the Company and its shareholders, investors,
directors, officers, employees, agents, attorneys, insurers, legal successors
and assigns of and from any and all claims, actions and causes of action,
whether now known or unknown, which Employee now has, or at any other time had,
or shall or may have against those released parties based upon or arising from
or related to his employment with the Company and/or the termination of his
employment with the Company, including, but not limited to, any claims of breach
of contract, wrongful termination, retaliation, fraud, defamation, infliction of
emotional distress or national origin, race, age, sex, sexual orientation,
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
law or statute.
Employee acknowledges that he has read section 1542 of the Civil Code of the
State of California, which states in full:
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.
Employee waives any rights that he has or may have under section 1542, or any
similar provision of the laws of any other applicable jurisdiction, to the full
extent that he may lawfully waive such rights pertaining to this general release
of claims, and affirms that he is releasing all known and unknown claims that he
has or may have against the parties listed above.
This release does not extend to: 1) any right or claim that Employee may
have arising from acts or omissions to act after the date of this Release; 2)
any claim by the Employee to vested benefits which would otherwise be available
under any Company sponsored employee benefit plan including, without limitation,
any 401k plan, any employee stock ownership plan, any incentive or other stock
option plan or any insurance plan; 3) any right the Employee would otherwise
have to defense or indemnification in the event of a claim against the Employee
by a third party arising out of acts or omissions within the course and scope of
his employment; or 4) any claims arising out of or related to transactions or
agreements between Employee and the parties released other than the employment
relationship or the termination of that relationship.
EMPLOYEE UNDERSTANDS THAT HE SHOULD CONSULT WITH AN ATTORNEY PRIOR TO SIGNING
THIS RELEASE AND THAT HE IS GIVING UP ANY LEGAL CLAIMS HE HAS AGAINST THE
PARTIES RELEASED ABOVE WHICH ARE BASED UPON OR ARISE FROM OR ARE RELATED TO HIS
EMPLOYMENT WITH THE COMPANY AND/OR THE TERMINATION OF HIS EMPLOYMENT WITH THE
COMPANY BY SIGNING THIS RELEASE. EMPLOYEE ACKNOWLEDGES THAT HE IS SIGNING THIS
RELEASE KNOWINGLY,WILLINGLY AND VOLUNTARILY IN
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EXCHANGE FOR THE COMPENSATION AND BENEFITS DESCRIBED IN PARAGRAPH 5(c) OF THE
EMPLOYMENT AGREEMENT AND PARAGRAPH 4 OF THIS AGREEMENT.
Dated: January 15, 2002 /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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