Exhibit 10.21
AGREEMENT AND RELEASE OF CLAIMS
1. I, Xxxx Xxxxx, agree to a mutual separation of my employment as
President and Chief Marketing Officer of Tvia, Inc. I understand that my
employment with Tvia, Inc. (the "Company") ended effective January 31,
2002.
2. I understand and agree that I receive the following separation package:
a. Continuance of share vestiture of all active stock option grants
(see Exhibit "A") for six months, ending July 31, 2002.
b. Regular compensation paid every two weeks, less lawful
deductions and payment for the Promissory Noted, dated April 11,
2001, for the six month period ending July 31, 2002. Payment
details for the referenced note are detailed in Exhibit B. The
Company will continue to make the payroll deductions authorized
by me for my Flexible Spending Account.
c. Continuation of health insurance coverage for me and my
dependents, paid by the Company for the six month period, ending
July 31, 2002. After that period of time, I will be eligible for
continuation of coverage through COBRA provisions. Coverage
includes medical, dental, and vision care.
d. Use of the Sony laptop computer (currently in my possession),
for a period of six months, ending July 31, 2002.
3. I acknowledge that this separation package is given in exchange for my
signing this Agreement and Release of Claims, and that I was not
otherwise entitled to receive this separation from the Company. I
understand this separation package is given in order to avoid costly,
time-consuming proceedings, and is not an admission of any wrongdoing by
the Company.
4. I agree that the above listed separation package is in full satisfaction
of any claims, liabilities, demands or causes of action, known or
unknown, that I ever had, now have or may claim to have had against the
Company or any parents, subsidiaries, directors, officers, employees or
agents of the Company as of the date of this Agreement and Release of
Claims excepting claims for vested benefits based on my employment,
claims for workers' compensation insurance or unemployment insurance
benefit, which the Company will not contest. Any such claims whether for
discrimination, including claims under the Fair Employment an Housing
Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination
in Employment Act, wrongful termination, breach of contract, breach of
public policy, physical or mental harm or distress or any other claims
are hereby released and I agree and promise that I will not file any
lawsuit asserting any such claims.
5. I agree to return all property that belongs to the Company, with the
exception of the item listed in #2 above, which must be returned to the
Company on February 1, 2002.
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6. I hereby expressly waive the provisions of California Civil Code Section
1542, regarding the waiver of unknown claims. California Civil Code
Section 1542 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.
7. As a condition of accepting the separation package set forth in Section
3, I agree to keep confidential the terms of this Agreement and Release
of Claims, and any negotiations or discussions leading thereto, until
such time that these issues become public knowledge. I understand that I
am permitted to disclose these terms to my accountant, attorney and
spouse, if any, or if required by law.
8. If any term of this Agreement and Release of Claims is held to be
invalid, void or unenforceable, the remainder of this Agreement and
Release of Claims shall remain in full force and effect and shall in no
way be affected, and the parties shall use their best efforts to find an
alternative way to achieve the same result.
9. The provisions of this Agreement and Release of Claims sets forth the
entire agreement between me and the Company concerning my separation
package and the separation of my employment, provided, however, that
this Agreement and Release of Claims does not supersede my obligations
to maintain the confidentiality of Company information. Any other
promises, written or oral, are replaced by the provisions of this
Agreement and Release of Claims, and are no longer effective unless they
are contained in this document. This Agreement and Release of Claims can
only be changed in writing, signed by the Chief Executive Officer of the
Company and me.
10. I have been advised and understand that I have twenty-one (21) days to
decide whether or not to sign this Agreement and Release of Claims. This
period is designed to allow me to consult with a financial advisor,
accountant, attorney or anyone else whose advice I choose to seek.
11. I have been advised and understand that after signing this document I
have seven (7) working days to revoke my agreement to the terms of this
document. Any revocation should be in writing and delivered to Xxx
Xxxxx, Chief Executive Officer, Tvia, Inc., 0000 Xxxxxx Xxxxx, Xxxxx
Xxxxx, XX 00000, by close of business at the end of the seventh business
day after signing this document. This Agreement and Release of Claims
will not become effective until the seven (7) day revocation period has
passed.
12. By signing below, I acknowledge that I am entering into this Agreement
and Release of Claims knowingly and voluntarily. In addition, I hereby
acknowledge by my signature that I have carefully read and fully
understand all the provisions of this Agreement and Release of Claims.
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By my signature, I agree to the terms set forth above, and I agree to
this Agreement and Release of Claims.
Date: February 12, 2002
/s/ XXXX XXXXX
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Xxxx Xxxxx
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EXHIBIT A
TVIA, INC. Page 1
PERSONNEL OPTION STATUS ID: 00-0000000 File: Optstmt
0000 Xxxxxx Xxxxx Date: 1/30/02
Xxxxx Xxxxx, XX 00000 Time: 4:08:21PM
AS OF 2/1/02
XXXX XXXXX ID:
0000 XXXXXX XXX.
XXX XXXXX, XX 00000
=============================================================================================================================
OPTION
NUMBER DATE PLAN TYPE GRANTED PRICE EXERCISED VESTED CANCELLED UNVESTED OUTSTANDING EXERCISABLE
-----------------------------------------------------------------------------------------------------------------------------
00000122 6/3/99 1999 ISO 46,653 $0.1200 46,653 46,653 0 0 0 0
00000123 6/3/99 1999 ISO 373,506 $0.1200 373,506 249,004 0 124,502 0 0
00000418 7/25/01 2000 ISO 50,000 $2.1000 0 9,375 0 40,625 50,000 50,000
------- ------- ------- ------- ------- ------- -------
470,159 420,159 305,032 0 165,127 50,000 50,000
=============================================================================================================================
INFORMATION CURRENTLY ON FILE
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TAX RATE % OPTION SDS BROKER REGISTRATION ALTERNATE ADDRESS
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Federal 28.000
Social Security 6.200
Medicare 1.450
CA-State 6.000
