EXHIBIT 10.26
CONFIDENTIAL RETIREMENT AGREEMENT
AND GENERAL RELEASE OF CLAIMS
This Confidential Retirement Agreement and General Release of Claims (this
"AGREEMENT") is dated as of December 10, 1996 by and between Network General
Corporation, a Delaware corporation, located at 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxx,
XX 00000 (the "COMPANY") and Xxxxxxx X. Xxxxx, a resident at 0000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxx, XX 00000 ("XXXXX").
WHEREAS, Xxxxx has expressed an interest in retiring from the Company and
the Company has considered Xxxxx' interest; accordingly, since it is in the best
interest of both parties to provide for a smooth transition, the parties desire
to provide for certain terms with respect to such Retirement.
THEREFORE, in consideration of the mutual promises and covenants set forth
below, and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Company and Xxxxx agree as follows:
1. Xxxxx hereby retires and voluntarily terminates his employment with
the Company effective December 31, 1997 (the "Separation Date"). Xxxxx
hereby retires voluntarily from his position as Senior Vice President,
Worldwide Field Operations, effective January 6, 1997 (the "Retirement
Date"). From the day following the Retirement Date through May 31, 1997 (the
"Initial Period"), Xxxxx shall provide transitional support, services and
guidance as may be requested by Xxx Xxxxxx, President and CEO of the
Company, in the capacity of Consulting Senior Vice President. During the
period from June 1, 1997 through the Separation Date (the "Severance
Period"), Xxxxx shall continue in the capacity of Consulting Vice President
to finalize all transitional issues subject to paragraph 3 below.
2. In exchange for the release of claims set forth below and for the
other promises and obligations set forth herein, the Company agrees to
provide Xxxxx with the following compensation and benefits subject to
paragraph 3 below:
(a) (i) continued payment of Xxxxx' current base salary ($14,166.67
per month) in accordance with the Company's normal payroll procedures,
less applicable withholding, through March 31, 1997. Through this date,
Xxxxx will be eligible for commission payments for the fiscal year ending
March 31, 1997 in accordance with Xxxxx' FY97 Compensation Plan.
(ii) continued payment of Xxxxx' current base salary ($14,166.67
per month) in accordance with the Company's normal payroll
procedures, less applicable withholding, through the remainder of the
Initial Period. During the remainder of the Initial Period, Xxxxx
shall not be entitled to any commissions. In April 1997, Xxxxx shall
receive an executive bonus calculated and paid in accordance with the
Company's then standard executive bonus practice. Such bonus shall be
for the period of October 1, 1996 through March 31, 1997. In
addition, Xxxxx will continue to accrue personal time off (PTO)
through the Initial Period. Any accrued by unused PTO will be paid to
Xxxxx in his May 31, 1997 paycheck. Thereafter and through the
Severance Period, Xxxxx shall accrue no additional PTO.
(iii) during the Severance Period, the Company will make payments
to Xxxxx of $5,000 per month in accordance with the Company's normal
payroll procedures, less applicable withholding. During the Severance
Period, Xxxxx shall not be entitled to any commissions or bonus
payments.
(b) continued provision of the Company's group health, life and
disability insurance through January 31, 1997. As of June 1, 1997, Xxxxx
will not be eligible for group life and disability insurance, but shall
be entitled to elect continued group health insurance coverage in
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accordance with applicable provisions of federal law (COBRA) and the
Company shall pay the cost of such COBRA coverage through the Separation
Date. Thereafter, Xxxxx shall be responsible for such COBRA payments
through the end of the COBRA election period as established under federal
law.
(c) with respect to any stock options granted to Xxxxx by the
Company, Xxxxx shall continue vesting in any unvested shares subject to
those options through the Separation Date; in all other respects, Xxxxx'
stock options shall remain subject to the terms and conditions of any
previous stock option plans or agreements between Xxxxx and the Company.
(d) Xxxxx shall be able to continue the use of his voice mail and
electronic mail box through the Separation Date; and
(e) the Company hereby grants Xxxxx all right, title and interest in
that certain laptop computer purchased by the Company, which computer is
currently in Xxxxx' possession. Xxxxx acknowledges and agrees to allow an
authorized Company representative to inspect such computer for the
purpose of locating and deleting any Company information contained on
such computer. Xxxxx agrees to assist the Company in retrieval and
deletion of all Company information and files and further agrees that he
shall not make copies of any such materials or information for his own
use or for any other purpose.
3. In the event that Xxxxx accepts employment with, or provides any
services to (whether as a partner, consultant, joint venturer or otherwise),
any person or entity which offers products or services that are competitive
with any products or services offered by the Company or with any products or
services that Xxxxx is aware of that the Company intends to offer, Xxxxx
shall be deemed to have resigned from his employment with the Company
effective immediately upon such acceptance of employment or provision of
services. Upon such retirement, Xxxxx shall not be entitled to any further
payments or benefits under paragraph 2.
4. Any payments to be made pursuant to Section 2 above, shall not be
made until this Agreement becomes effective after the seven (7) day period
elapses in accordance with the provisions of Section 11 below. Xxxxx
understands and acknowledges that he shall not be entitled to any benefits
from the Company other than those expressly set forth in this Agreement.
5. In exchange for the benefits described in Section 2 above, Xxxxx, on
behalf of himself and his successors and assigns, releases and absolutely
releases and discharges the Company and its parent corporation,
shareholders, directors, officers, employees, agents, attorneys, legal
successors and assigns (collectively, "Agents") of and from any and all
claims, actions and causes of action, whether now known or unknown, which
Xxxxx now has, or at an other time had, or shall or may have against the
Company or its Agents based upon or arising out of any matter, cause, fact,
thing, act or omission whatsoever occurring or existing at any time to and
including the date hereof, including, but not limited to, any claims of
wrongful discharge, breach of contract or national origin, race, age, sex or
other discrimination 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 state or
federal law save and except for applicable rights pursuant to the Workers
Compensation laws of the state of California. As used herein, the "Company"
includes any and all parents, divisions, subsidiaries or affiliated entities
of Network General Technology Corporation.
6. Xxxxx acknowledges that he has read section 1542 of the Civil Code
of the State of California which states:
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.
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Xxxxx hereby waives any right or benefit which he has or may have under
section 1542 of the Civil Code of the State of California as well as under
any similar provision under Georgia law to the full extent that he may
lawfully waive such rights and benefits pertaining to the subject matter of
this general release of claims.
7. Xxxxx acknowledges and agrees that he shall continue to be bound by
and comply with the terms of any proprietary rights or confidentiality
agreements between the Company and Xxxxx.
8. As further consideration for the benefits described in Section 2
above, Xxxxx agrees that for a period of one year after the Separation Date,
he shall not, either directly or indirectly, solicit the services, or
attempt to solicit the services of, nor hire any employee of the Company,
its parent corporation, subsidiaries or other affiliated entities to any
other person or entity.
9. Xxxxx agrees that he shall not directly or indirectly disclose
either the existence of this Agreement or 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.
10. This Agreement, or any of the rights hereunder, may not be assigned
or otherwise transferred by Xxxxx.
11. This Agreement represents the complete understanding of the parties
with respect to its subject matter hereof and supersedes all prior
negotiations and agreements including but not limited to that certain
Employment Agreement dated April 6, 1994 between Xxxxx and the Company,
whether written or oral, except for any agreements of confidentiality or
assignment previously entered into by the Company (or any of its affiliated
entities) and Xxxxx, which shall survive in accordance with their terms.
This Agreement will be construed and enforced in accordance with the laws of
the State of California and applicable federal laws as interpreted therein.
The Parties agree that any dispute arising under this Agreement will be
resolved in the state or federal courts within the Northern District of
California and each Party expressly consents to jurisdiction therein. This
Agreement may not be altered or amended except by a written document signed
by the Company and Xxxxx.
12. XXXXX UNDERSTANDS THAT HE SHOULD CONSULT WITH AN ATTORNEY PRIOR TO
SIGNING THIS AGREEMENT AND THAT HE IS GIVING UP ANY LEGAL CLAIMS HE MAY HAVE
AGAINST THE COMPANY BY SIGNING THIS AGREEMENT. XXXXX FURTHER UNDERSTANDS
THAT HE MAY HAVE TWENTY-ONE (21) CALENDAR DAYS TO CONSIDER THIS AGREEMENT,
THAT HE MAY REVOKE IT AT ANY TIME DURING THE SEVEN (7) CALENDAR DAYS AFTER
HE SIGNS IT, AND THAT IT SHALL NOT BECOME EFFECTIVE UNTIL THAT SEVEN (7)-DAY
PERIOD HAS PASSED (THE "EFFECTIVE DATE") . XXXXX FURTHER ACKNOWLEDGES THAT
HE IS SIGNING THIS AGREEMENT KNOWINGLY, WILLINGLY AND VOLUNTARILY IN
EXCHANGE FOR THE BENEFITS IN SECTION 2.
Dated: 12/30, 1996 By: /s/ XXXXXXX X. XXXXX
--------------------------------------
Xxxxxxx X. Xxxxx
Dated: 12/10, 1996 NETWORK GENERAL CORPORATION
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Xxxxxx X. Xxxxxx
Its: President
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