EXHIBIT 10.17
FINAL TERMS OF EMPLOYMENT AND MUTUAL RELEASE
AMENDMENT #1
This Amended Settlement Agreement and Mutual Release ("Agreement") is
made by and between ZapMe! Corporation (the "Company") and Xxxxx X. Xxxxx
("Individual") and supercedes and replaces in its entirety the prior agreement
dated October 10, 2000.
WHEREAS, Individual is employed by the Company;
WHEREAS, the Company and Individual have entered into an Employment,
Confidential Information, Invention Assignment and Arbitration Agreement (the
"Confidentiality Agreement");
WHEREAS, the Company and Individual have agreed to terminate the
employment relationship and to release each other from any claims arising from
or related to the employment relationship;
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Individual (collectively referred to as "the Parties") hereby agree
as follows:
1. TERMINATION. Individual's employment with the Company will terminate
effective October 10, 2000.
2. CONSIDERATION.
(a) The Company agrees to pay Individual beginning October 12, 2000
for a period of nine months ("Consulting Period"), at the rate of $8,333.33 on
the 5th and 20th day of each month, during the term of this Agreement for the
services rendered as specified in Exhibit A to the Consulting Agreement between
the parties dated October 20, 2000. Individual will receive payment in
accordance with Section 8 below.
(b) The Company agrees that Individual will continue to vest in
shares of the Company's Common Stock according to Individual's Stock Option
Agreements through the Consulting Period. Individual agrees that he shall have
no right to vest in any other shares under this or any other agreement with the
Company.
(c) The Company agrees to maintain Individual's health and related
benefits through COBRA until the earlier of (i) the expiration of the Consulting
Period, or (ii) the date on which Individual obtains comparable coverage through
another employer.
(d) Individual shall have the right to use the laptop computer he
currently uses for work during the Consulting Period. At the conclusion of the
Consulting Period, the Company shall grant Individual ownership of that laptop
at no charge.
3. CONFIDENTIAL INFORMATION. Individual shall continue to maintain the
confidentiality of all confidential and proprietary information of the Company
and shall continue to comply with the terms and conditions of the
Confidentiality Agreement between Individual and the Company.
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Individual shall return all the Company property and confidential and
proprietary information in his possession to the Company on the Effective Date
of this Agreement.
4. RELEASE OF CLAIMS. Individual agrees that the foregoing
consideration represents settlement in full of all outstanding obligations owed
to Individual by the Company, except for work-related expenses reasonably
incurred by Individual and not yet reimbursed by the Company. Individual and the
Company, on behalf of themselves, and their respective heirs, family members,
executors, officers, directors, employees, investors, shareholders,
administrators, affiliates, divisions, subsidiaries, predecessor and successor
corporations, and assigns, hereby fully and forever releases each other their
respective heirs, family members, executors, officers, directors, employees,
investors, shareholders, administrators, affiliates, divisions, subsidiaries,
predecessor and successor corporations, and assigns, from, and agree not to xxx
concerning, any claim, duty, obligation or cause of action relating to any
matters of any kind, whether presently known or unknown, suspected or
unsuspected, that any of them may possess arising from any omissions, acts or
facts that have occurred up until and including the Effective Date of this
Agreement including, without limitation,
(a) any and all claims relating to or arising from Individual's
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from, Individual's
right to purchase, or actual purchase of shares of stock of the Company,
including, without limitation, any claims for fraud, misrepresentation, breach
of fiduciary duty, breach of duty under applicable state corporate law, and
securities fraud under any state or federal law;
(c) any and all claims for wrongful discharge of employment;
termination in violation of public policy; discrimination; breach of contract,
both express and implied; breach of a covenant of good faith and fair dealing,
both express and implied; promissory estoppel; negligent or intentional
infliction of emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel; slander; negligence;
personal injury; assault; battery; invasion of privacy; false imprisonment; and
conversion;
(d) any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment
Act of 1967, the Americans with Disabilities Act of 1990, the Fair Labor
Standards Act, the Employee Retirement Income Security Act of 1974, The Worker
Adjustment and Retraining Notification Act, Older Workers Benefit Protection
Act; the California Fair Employment and Housing Act, and Labor Code section 201,
ET SEQ. and section 970, ET SEQ.;
(e) any and all claims for violation of the federal, or any state,
constitution;
(f) any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination; and
(g) any and all claims for attorneys' fees and costs.
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The Company and Individual agree that the release set forth in this section
shall be and remain in effect in all respects as a complete general release as
to the matters released. This release does not extend to any obligations
incurred under this Agreement.
5. ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA. Individual
acknowledges that he is waiving and releasing any rights he may have under the
Age Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Individual and the Company agree that this
waiver and release does not apply to any rights or claims that may arise under
ADEA after the Effective Date of this Agreement. Individual acknowledges that
the consideration given for this waiver and release Agreement is in addition to
anything of value to which Individual was already entitled. Individual further
acknowledges that he has been advised by this writing that (a) he should consult
with an attorney PRIOR to executing this Agreement; (b) he has at least
twenty-one (21) days within which to consider this Agreement; (c) he has at
least seven (7) days following the execution of this Agreement by the parties to
revoke this Section 5 of the Agreement; and (d) this Section 5 of the Agreement
shall not be effective until the revocation period has expired.
6. CIVIL CODE SECTION 1542. The parties represent that they are not
aware of any claim by either of them against the other other than the claims
that are released by this Agreement. Individual and the Company acknowledge that
they have been advised by legal counsel and are familiar with the provisions of
California Civil Code Section 1542, which 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.
Individual and the Company, being aware of said code section, agree to
expressly waive any rights they may have thereunder, as well as under any other
statute or common law principles of similar effect.
7. NO PENDING OR FUTURE LAWSUITS. Individual represents that he has no
lawsuits, claims, or actions pending in his name, or on behalf of any other
person or entity, against the Company or any other person or entity referred to
herein. Individual also represents that he does not intend to bring any claims
on his own behalf or on behalf of any other person or entity against the Company
or any other person or entity referred to herein.
8. TAX CONSEQUENCES. The Company makes no representations or warranties
with respect to the tax consequences of the payment of any sums under the terms
of this Agreement. Individual agrees and understands that he is responsible for
payment, if any, of local, state and/or federal taxes on the sums paid hereunder
by the Company and any penalties or assessments thereon, including any penalties
or assessments resulting from the allocation of the sums paid hereunder.
Individual further agrees to indemnify and hold the Company harmless from any
claims, demands, deficiencies, penalties, assessments, executions, judgments, or
recoveries by any government agency against the Company for any amounts claimed
due on account of Individual's failure to pay, or
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delayed payment of, federal or state taxes or damages sustained by the Company
by reason of any such claims, including reasonable attorneys' fees.
9. NO COOPERATION. Individual agrees that he will not counsel or assist
any attorneys or their clients in the presentation or prosecution of any
disputes, differences, grievances, claims, charges, or complaints by any third
party against the Company and/or any officer, director, employee, agent,
representative, shareholder or attorney of the Company, unless under a subpoena
or other court order to do so.
10. NON-DISPARAGEMENT AND NON-DISRUPTION. Each party agrees to refrain
from any disparagement, defamation, libel, slander, disruption or any other
actions adverse to the interests of the other and its respective officers,
directors, employees, investors, shareholders, administrators, affiliates,
divisions, subsidiaries, predecessor and successor corporations, and assigns or
tortious interference with the contracts and relationships of the other and its
respective officers, directors, employees, investors, shareholders,
administrators, affiliates, divisions, subsidiaries, predecessor and successor
corporations, and assigns.
11. NO ADMISSION OF LIABILITY. The Parties understand and acknowledge
that this Agreement constitutes a compromise and settlement of disputed claims.
No action taken by the Parties hereto, or either of them, either previously or
in connection with this Agreement shall be deemed or construed to be (a) an
admission of the truth or falsity of any claims heretofore made or (b) an
acknowledgment or admission by either party of any fault or liability whatsoever
to the other party or to any third party.
12. COSTS. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
13. ARBITRATION. The Parties agree that any and all disputes arising
out of the terms of this Agreement, their interpretation, and any of the matters
herein released, including any potential claims of harassment, discrimination or
wrongful termination shall be subject to binding arbitration held in Santa Xxxxx
County, California, under the Arbitration Rules set forth in California Code of
Civil Procedure Section 1280, ET SEQ., including section 1283.05, (the "Rules")
and pursuant to California law. The Parties agree that the prevailing party in
any arbitration shall be entitled to injunctive relief in any court of competent
jurisdiction to enforce the arbitration award.
14. AUTHORITY. The Company represents and warrants that the undersigned
has the authority to act on behalf of the Company and to bind the Company and
all who may claim through it to the terms and conditions of this Agreement.
Individual represents and warrants that he has the capacity to act on his own
behalf and on behalf of all who might claim through him to bind them to the
terms and conditions of this Agreement. Individual warrants and represents that
there are no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action released herein.
15. NO REPRESENTATIONS. Each party represents that it has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement.
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16. SEVERABILITY. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
17. ENTIRE AGREEMENT. This Agreement and the Consulting Agreement dated
October 10, 2000, represent the entire agreement and understanding between the
Company and Individual concerning Individual's separation from the Company, and
supersede and replace any and all prior agreements and understandings concerning
Individual's relationship with the Company and his compensation by the Company.
18. NO ORAL MODIFICATION. This Agreement may only be amended in writing
signed by Individual and the President of the Company.
19. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California.
20. EFFECTIVE DATE. With the exception of Section 5, which shall be
effective seven days after it has been signed by both Parties, this Agreement
shall be effective immediately after it is signed by both Parties.
21. COUNTERPARTS. This Agreement may be executed in counterparts, and
each counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
22. VOLUNTARY EXECUTION OF AGREEMENT. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or that they
have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this Agreement and
of the releases it contains;
(d) They are fully aware of the legal and binding effect of this
Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below. This Agreement shall be effective as of
October 10, 2000.
ZAPME! CORPORATION
Dated: , 2000 By
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Xxxxx Xxxxxxxxx
Chief Executive Officer
Xxxxx X. Xxxxx, an individual
Dated: , 2000
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