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EXHIBIT 10.21
CONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE
FutureLink Corp. (the "Company") and Xxxxxxx X. Xxxxxx, Xx., an
individual employed by the Company (the "Employee") pursuant to an Employment
Agreement dated as of August 1, 1999, as amended, both hereby agree to terminate
the employment relationship on the following basis:
1. The Employee hereby submits his voluntary resignation from the
Company effective July 31, 2000. He will receive full payment for the 43.29
hours of vacation he has accrued through that date. In addition, the Employee
agrees to return to the Company all files, records, credit cards, keys,
equipment, and any other Company property or documents maintained by him for the
Company's use or benefit by August 15, 2000.
2. The Employee represents that he is resigning voluntarily and is
signing this Agreement voluntarily and with a full understanding of and
agreement with its terms, for the purpose of receiving additional pay from the
Company beyond that provided by normal Company policy.
3. In reliance on the Employee's voluntary resignation and
representations and releases in this Agreement, the Company will provide him
with a lump sum payment of Thirty Thousand Dollars ($30,000), less legally
required deductions, payable within 30 days of July 31, 2000. The Employee
agrees that he is not entitled to receive, and will not claim, any right,
benefit, or compensation other than what is expressly set forth in this
paragraph, and hereby expressly waives on behalf of himself, his heirs,
successors and assigns any claim to any compensation, benefit, or payment which
is not expressly referenced in this paragraph.
4. In addition to the cash consideration payable to the Employee in
accordance with paragraph 3 hereof, the Employee shall be entitled to retain in
his possession his laptop computer and the Employee hereby acknowledges that he
is in possession of a Toshiba 7020ct/6.4 Laptop Computer, serial number
69022914-3 which currently belongs to the Company. The Employee shall retain the
above referenced laptop computer plus all accessories for same in his possession
and the Company hereby appoints the Employee its irrevocable attorney to effect
the transfer of all its right, title and interest to the said laptop computer
and accessories into the name of the Employee. The Employee hereby acknowledges
that the transfer of the said laptop computer involves the receipt of equipment
with a current fair market value of $1,200.00 and that he shall be responsible
for any and all state and federal taxes applicable to such transfer. The
Employee undertakes to transfer all files regarding the Company and its business
to the Company and to delete such files from the hard drive of the said laptop
computer no later than August 15, 2000.
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5. Furthermore, as a condition to receipt of the benefits provided in
paragraphs 3 and 4 hereof, the Employee promises (a) to keep this Agreement and
its contents in complete confidence and not to disclose the fact or terms of
this Agreement or the fact or amount of these additional payments to any person,
including any past, present, or prospective employee of the Company, except as
is necessary to obtain tax and legal advice; and (b) not to disparage the
Company in any manner.
6. The Company hereby agrees to use its reasonable best efforts to
provide a final W2 statement of earnings to the Employee as soon as possible
following the execution of this Agreement and in any event no later than
September 15, 2000. The Company also agrees to cooperate fully with the Employee
and his representatives in connection with any actual or proposed sale of
restricted shares of the Company's common stock currently held by the Employee
once such shares are eligible for resale in accordance with applicable
securities laws and the Company agrees to bear the expense of any legal opinion
which may be required to effect such resale.
7. The Confidentiality and Non-Competition Agreement dated as of August
1, 1999 between the Employee and the Company, which was executed when the
Consultant agreed to serve as an employee of the Company, shall remain in full
force and effect notwithstanding any other provision of this Agreement, with
July 31, 2000 being deemed the Employee's "Termination Date" for the purposes of
that agreement. Notwithstanding any provision of the Confidentiality and
Non-Competition Agreement or the Employment Agreement between the Employee and
the Company, including, but not limited to, section 12(1) of the said
Confidentiality and Non-Competition Agreement, the Company hereby specifically
agrees that with respect to the following companies:
(a) NobelStar, Inc.;
(b) WPSH Media, Inc., its predecessors, successors, subsidiaries,
parents and related corporations companies and divisions
(including Sevenspace, Inc.); and
(c) Xxxxxxxxx Technologies,
the Employee is released from the provisions of the said Confidentiality and
Non-Competition Agreement and Employment Agreement and the Company agrees not to
take action against the Employee or the above companies in the event that the
Employee seeks or secures employment or consulting arrangements with the above
companies. This limited release and covenant by the Company not to bring legal
action shall be for the benefit of the Employee and any of the above-listed
companies.
8. The Employee does hereby, for himself and his heirs, successors and
assigns, release, acquit and forever discharge the Company, and its officers,
directors, managers, employees, representatives, related entities, successors,
and assigns (the "Released Parties"), of and from any and all claims, actions,
charges, complaints, causes of action, rights, demands, debts, damages, or
accountings of whatever nature, known or unknown, which he or his heirs may have
against such persons or entities based on any actions or events which occurred
prior to the effective date of this Agreement, including but not limited to
those related to, or arising from, the Employee's employment with the Company or
his termination thereof.
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In exchange for material portions of the additional pay provided in
paragraph 3 and in accordance with the Older Workers Benefit Protection Act, the
Employee hereby knowingly and voluntarily waives and releases all rights and
claims, known and unknown, arising under the Age Discrimination In Employment
Act of 1967, as amended, which he might otherwise have had against the Released
Parties regarding any act or omission which occurred on or before the effective
date of this Agreement.
The Company does hereby, for itself and any related entities and
successors or assigns, release and acquit and forever discharge the Employee and
his heirs from any and all claims, actions, charges, complaints, causes of
action, rights, demands, debts, damages or accountings of whatever nature, known
or unknown, which are based on conduct by the Employee which fell within the
course and scope of his employment with the Company.
The Company is unaware of any conduct of the Employee which might give
rise to liability of the Employee to the Company. Company further agrees to
indemnify and hold the Employee harmless from any claims made against the
Employee arising out of or related to the Employee's employment with the
Company.
9. It is further understood and agreed that as a condition of this
Settlement, all rights under Section 1542 of the Civil Code of the State of
California are expressly waived by the Employee. Such Section reads as follows:
"A General Release does not extend to claims which a 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."
10. This Agreement contains all of the terms, promises, representations,
and understandings made between the parties with respect to the resignation of
the Employee as set forth herein. Unless expressly set forth herein, this
Agreement shall not alter the terms of any prior agreements entered into between
the Employee and the Company, including, without limitation, the Loan Agreement
dated August 1, 1999 between the Employee and the Company, as amended, and the
Loan Termination Agreement between the parties dated June 30, 2000.
11. The Employee understands that he is waiving significant legal rights
by signing this Agreement, and has consulted with an attorney and/or other
persons to the full extent he wanted to do so before signing this Agreement.
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The Employee is hereby advised (a) to consult with an attorney prior to
signing this Agreement and (b) that he has 21 days in which to consider and
accept this Agreement by signing this Agreement, which should then be promptly
returned to Xxxxxxx X. Xxxxx, the Company's Senior Vice-President,
Administration. In addition, the Employee has a period of 7 days following his
signing of this Agreement in which he may revoke the Agreement. If the Employee
does not advise the Company (by a writing received by Xx. Xxxxx within such 7
day period) of his intent to revoke the Agreement, the Agreement will become
effective and enforceable upon the expiration of the 7 days.
12. In any action, litigation or proceeding between the parties arising
out of or related to this Agreement, the prevailing party shall be awarded, in
addition to any damages, injunctions or other relief, and without regard to
whether or not such matter is prosecuted to final judgment, such party's costs
and expenses, including reasonable attorneys' fees.
13. This Agreement shall be construed and enforced in accordance with
the laws in effect in the State of California and each of the parties hereto
hereby irrevocably attorns to the jurisdiction of the federal and state courts
located in Orange County, California.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the 31st day of July, 2000.
FUTURELINK CORP.
Per: /s/ X. Xxxxx
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Xxxxxxx X. Xxxxx
Snr Vice President, Administration
Per: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Ass't General Counsel and Secretary
SIGNED, SEALED AND DELIVERED
in the presence of:
/s/ X.X. Xxxx /s/ Xxxxxxx X. Xxxxxx
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Witness XXXXXXX X. XXXXXX, XX.
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