PERSONAL AND CONFIDENTIAL INFORMATION
SEPARATION AGREEMEENT
This Agreement is entered into between Phoenix Technologies Ltd., a Delaware
corporation ("Phoenix") and Xxxxxx Xxxxx ("Employee") to be effective as of
January 31, 1999 (the "Agreement Date"). Employee, based on his own
considerations, including the terms set forth in this Agreement, has decided to
voluntarily enter into this Agreement providing for the separation of his
employment, certain amounts of pay in lieu of notice, certain other rights and
obligations, and the release of all pending legal claims.
In consideration of the mutual agreements and covenants set forth below,
Employee and Phoenix agree as follows:
1. RESIGNATION. Employee hereby submits his resignation effective
on January 31, 1999.
2. COMPENSATION.
a. REGULAR PAY. Employee shall continue to receive his base
salary rate of $145,000 per year in effect on the Agreement
Date until his employment responsibilities terminate on
January 31, 1999 ("Separation Date"). This amount will be paid
according to Phoenix's regular, semi-monthly payroll schedule.
b. CONTINUATION PAY. Employee shall continue to receive his base
salary of $145,000 per year, the rate in effect on the
Separation Date ("Base Salary"), for twelve (12) months beyond
Separation Date. This amount will be paid according to
Phoenix's regular, semi-monthly payroll schedule.
Phoenix will pay for Employee's Health Benefits coverage,
defined below, during the Continuation Period.
c. CONTINGENT PAY. If Employee has not obtained Re-employment by
January 31, 2000, Employee will continue to receive his Base
Salary for up to the earlier of July 31, 2000, or the date on
which Employee obtains Re-employment.
For the purposes of this Agreement, the "Continuation Period"
shall mean any time during which Employee is receiving
Continuation Pay or Contingent Pay. For the purposes of this
Agreement, "Final Date" means July 31, 2000 or the date at
which Contingent Pay ends, whichever is earlier.
d. LOAN FORGIVENESS. Phoenix will forgive the balance remaining
(and gross-up in the same manner as done in previous years) on
the loan made to Employee in connection with his relocation to
California.
e. VACATION PAY. Employee shall receive payment for any remaining
accrued but unused vacation on the Separation Date.
f. STOCK OPTIONS. Phoenix will grant Employee a new option for
10,000 shares effective as of and at the exercise price
applicable on the date such grant is approved by the
Compensation Committee of the Board of Directors. Employee's
new option shall vest according to the standard vesting
schedule, and option vesting will continue for the duration of
Employee participation on the Phoenix Advisory Board ("PAB").
3. DEDUCTIONS. Employee authorizes Phoenix to deduct from sums due
hereunder all applicable and customary amounts, including, without
limitation, taxes, benefits plan payments, advances or other sums
due Phoenix.
4. BENEFITS.
a. CONTINUING HEALTH BENEFIT PLANS. Phoenix will pay for
employee's continued health coverage under the terms of
Phoenix's benefits plans at the same coverage level in effect
on the Agreement Date through the Separation Date. After the
Separation Date, Phoenix will pay the costs of COBRA at the
same coverage level in effect on the Agreement Date through
the Continuation Period. Employee will have the option to
assume the costs of continued coverage under COBRA or decline
continued coverage after the Continuation Period.
b. OTHER BENEFIT PLANS. Employee's current stock options will
continue to vest according to the terms of such options.
Employee will be able to continue to participate in Phoenix's
401(k) plan, including company match, and the Employee Stock
Purchase Plan (ESPP) until the Separation Date. Employee will
continue to accrue vacation and sick leave until the
Separation Date.
5. OTHER OBLIGATIONS AFTER AGREEMENT DATE.
a. CONSULTING ARRANGEMENT. Employee will serve as a member of the
PAB through July 31, 2000. The parties have entered into the
Consulting Agreement shown in Exhibit A, which will provide
for the payment of consulting fees where Employee participates
in pre-authorized activities. Employee will not receive
additional compensation for PAB meetings occurring less than
250 miles from his home. When PAB meetings are over 250 miles
from his home, Employee will receive consulting fees in the
amount of $1,200 per diem. Employee will also be reimbursed
for travel costs and related expenses for such activities and
PAB meetings under the terms of Phoenix's standard
reimbursement policy. Phoenix will have sole discretion
whether to request Employee's participation in activities and
PAB meetings.
b. CERTAIN OFFICE EQUIPMENT. Employee will have the full use,
along with the technical support and maintenance Phoenix
normally provides its employees for such equipment, of the
Fujitsu notebook PC and related accessories, HP5P Printer, Zip
Drive, tape recorder and pager he is currently using through
the Final Date, at no cost to Employee. Employee will also
have the option to purchase such equipment at Phoenix's
then-current book value for those items upon the Final Date.
c. ACCESS TO ELECTRONIC COMMUNICATION. Phoenix will give Employee
access to voicemail and electronic mail at Employee's current
phone number and email address until the Final Date.
d. TRANSITION ASSISTANCE. From the Separation Date through March
31, 1999, Employee shall make himself available to Phoenix to
assist in reasonable requests relating to the transition of
Employee's work responsibilities at Phoenix to other
employees, to answer questions regarding matters assigned to
him prior to the Separation Date and to otherwise assist
Phoenix in transferring his responsibilities to others within
Phoenix. Employee will receive additional compensation for
such assistance, as described in Exhibit A.
e. OUTPLACEMENT ASSISTANCE. Phoenix will pay for professional
outplacement service assistance in resume preparation,
interview skills, and search techniques valued at an amount
not to exceed $7,500. Phoenix will reimburse Employee for
reasonable telephone expenses for search related activities
until the Final Date.
f. EXIT INTERVIEW. If requested, Employee agrees to participate
in Phoenix's exit interview process. At the exit
interview, Employee will complete applicable paperwork,
and return Phoenix property, except as shown in section
5b above, including without limitation and if applicable
his keys, credit and telephone calling cards.
g. EXPENSE REPORTS. Employee will submit, within 30 days after
Separation Date, all expense reports for travel or other
expenses applicable through Separation Date. On approval by
Employee's manager, Phoenix will reimburse the Employee for
such expenses in accordance with Phoenix's policy on
reimbursement for such expenses.
h. COVENANT NOT TO SOLICIT. Upon the termination of the
Employee's employment with the Company pursuant to Section 1
and until the Final Date, Employee agrees that he shall not
either directly or indirectly solicit, induce, attempt to
hire, recruit, encourage, take away, hire any employee of the
Company or cause any employee of the Company to leave his or
her employment either for Employee or for any other entity or
person.
6. CONFIDENTIALITY.
a. EMPLOYEE OBLIGATIONS REGARDING THIS AGREEMENT. Employee agrees
that he will not disclose, for any purpose, at any time,
except as required by a valid court order, any specific terms
of this Agreement to any person except his immediate family,
and personal legal and tax advisors.
b. EMPLOYEE OBLIGATIONS REGARDING PHOENIX CONFIDENTIAL
INFORMATION. Employee agrees that he will not disclose, for
any purpose, at any time, except as required by a valid court
order, any Confidential Information he knows of the Company.
Such "Confidential Information" includes trade secrets,
know-how, inventions, computer programs, source code,
marketing information, and any other information designated
"Phoenix Confidential" and which is not generally available to
the public. The provisions of this paragraph shall apply until
the Final Date.
c. PHOENIX OBLIGATIONS. Phoenix agrees that it will not disclose,
for any purpose, at any time, except as required by a valid
court order, any specific terms of this Agreement to any
person except those inside Phoenix who have a need to know,
and legal and tax advisors. Phoenix will have all reference
inquiries regarding Employee directed to either the Vice
President of Human Resources or the Chief Executive Officer.
d. NON-DISPARAGEMENT. Subject to the parties' confidentiality
obligations, Employee and Phoenix agree that they will not
disparage one another. Any reference checks on Employee will
be referred to Human Resources, who will confirm factual data,
including employment dates and titles. Salary and any other
information will not be disclosed without Employee's prior
written consent.
7. RELEASE. The parties hereby forever waive for themselves, their
attorneys, heirs, executors, administrators, successors and assigns
any claim against the other party, including such party's insurers
and the Company's affiliates, shareholders, officers, directors and
employees (the "Parties Released"), for any action, loss, expense
or any damages arising from any occurrence from the beginning of
time until the date of the signing of this Agreement and arising or
in any way resulting from Employee's employment with Phoenix or his
resignation thereof. The only exceptions to the above waiver are
claims by Employee under any worker's compensation or unemployment
statutes and any Company or Employee obligation or right arising
under this Agreement. The parties represent that they have no
current intention to assert any claim on any basis against the
Parties Released.
8. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the
entire agreement between the parties with respect to Employee's
separation from Phoenix and any obligations owed by either party to
the other. The terms of this Agreement shall not be amended or
modified and supersede all previous or contemporaneous written,
oral or electronic communications.
9. EMPLOYEE REPRESENTATIONS. EMPLOYEE STATES THAT HE HAS CAREFULLY
READ THIS SEPARATION AGREEMENT, THAT HE KNOWS, UNDERSTANDS AND
ACCEPTS THE TERMS AND CONDITIONS OF THIS DOCUMENT, AND THAT HE
EXECUTED THIS DOCUMENT OF HIS OWN FREE WILL. EMPLOYEE FURTHER
REPRESENTS AND AGREES THAT HE HAS BEEN ADVISED BY PHOENIX TO
CONSULT AN ATTORNEY PRIOR TO EXECUTING THIS SEPARATION AGREEMENT.
EMPLOYEE UNDERSTANDS AND ACCEPTS THAT THE TERMS CONTAINED IN THIS
AGREEMENT ARE TO BE A FULL AND FINAL RELEASE OF ALL CLAIMS WITH
FINAL AND BINDING EFFECT.
10. CONDITION.
a. EMPLOYEE ACKNOWLEDGES THAT HE HAS BEEN GIVEN A PERIOD OF AT LEAST
TWENTY-ONE (21) DAYS WITHIN WHICH TO CONSIDER THIS AGREEMENT
BEFORE SIGNING IT. THE PARTIES AGREE THAT EMPLOYEE SHALL HAVE
THE RIGHT TO REVOKE THIS AGREEMENT BY WRITTEN NOTICE TO
PHOENIX WITHIN THE SEVEN-DAY PERIOD FOLLOWING ITS EXECUTION,
AND THAT THIS AGREEMENT SHALL NOT BECOME EFFECTIVE AND BINDING
UNTIL SUCH PERIOD HAS EXPIRED. IN THE EVENT THIS AGREEMENT IS
REVOKED BY EMPLOYEE, EMPLOYEE SHALL RETURN ALL CONSIDERATION
AND BENEFITS PROVIDED TO EMPLOYEE PURSUANT TO THIS AGREEMENT.
b. This Agreement will not become effective until Employee signs
this Agreement after due consideration, in light of the time
periods specified in Paragraph 10.a., above. When this Agreement
has been executed by both parties, it will become effective as of
the Agreement Date.
11. GOVERNING LAWS. It is the intention of the parties hereto that the
internal laws of the state of California, U.S.A. (irrespective of
its choice of law principles) shall govern the validity of this
Agreement, the construction of its terms, and the interpretation
and enforcement of the rights and duties of the parties hereto. The
parties hereby agree that any suit to enforce any provision of this
Agreement or arising out of or based upon this Agreement or the
business relationship between any of the parties hereto shall be
brought in the United States District Court for the Northern
District of California or the Superior or Municipal Court
jurisdiction in and for the County of Santa Clara, California,
U.S.A. Each party hereby agrees that such courts shall have
exclusive IN PERSONAM jurisdiction and venue with respect to such
party, and each party hereby submits to the exclusive IN PERSONAM
jurisdiction and venue of such courts.
12. BINDING UPON SUCCESSORS AND ASSIGNS. Subject to, and unless
otherwise provided in this Agreement, each and all of the
covenants, terms, and provisions and agreements contained herein
shall be binding upon, and inure to the benefit of, the permitted
successors, executors, heirs, representatives, administrators and
assigns of the parties hereto.
13. ATTORNEYS' FEES. Should suit be brought or an arbitration action
commenced to enforce or interpret any part of this Agreement, the
prevailing party shall be entitled to recover, as an element of the
costs of suit and not as damages, reasonable attorneys' fees to be
fixed by the court or
arbitrator (including without limitation, costs, expenses and fees
of any appeal). The prevailing party shall be the party entitled to
recover its costs of suit, regardless of whether such suit proceeds
to final judgment. A party not entitled to recover its costs shall
not be entitled to recover attorneys' fees. No sum for attorneys'
fees shall be counted in calculating the amount of a judgment for
purposes of determining if a party is entitled to recover costs or
attorneys' fees.
The undersigned hereby agree to the terms of this Agreement.
PHOENIX TECHNOLOGIES LTD. EMPLOYEE
By: /s/ Xxxx Xxx /s/ Xxxxxx Xxxxx
------------------------ --------------------------
Xxxx Xxx Xxxxxx Xxxxx
President and CEO
APPROVED BY
LEGAL DEPT. /s/ sa
AGREEMENT FOR CONSULTING SERVICES
Phoenix Technologies Ltd. of 000 X. Xxxxxxxx Xxxxx, Xxx Xxxx, XX 00000
("Phoenix") does hereby retain Xxxxxx Xxxxx residing at 000 Xxxxxxxx Xxxxx,
Xxx Xxxxx, XX 00000 ("Consultant") upon the following terms and conditions:
1. TERM AND TERMINATION
This Agreement shall be effective as of February 1, 1999 and shall
continue in effect on a month-to-month basis unless terminated by
Consultant or Phoenix by written notice.
The period from February 1, 1999 through March 31, 1999 shall include 16
days of Transition Assistance and 11 days of Other Activities
(applicable rates depend on type of activity and location where services
are performed - see Table 1 below).
At the beginning of each month, Consultant and Phoenix will set the
number of days of service to be performed the following month.
Consultant or Phoenix may terminate this Agreement with 30 days written
notice for any reason, to be effective on or after April 1, 1999.
2. SERVICES PROVIDED BY CONSULTANT
Consultant shall perform the following services:
Through March 31, 1999, Transition Assistance, as defined in
Section 5.d. of the Separation Agreement between Consultant and
Phoenix.
Other Activities:
Developing potential strategic business relationships with one or
more of the following companies: America On-Line, BackWeb, Cisco
Systems, Lucent Technologies, Network Associates, and Sun
Microsystems.
Identifying new potential business and investment opportunities
for Phoenix for follow up by Consultant or Phoenix employees.
Reviewing and providing feedback on Phoenix strategic plans and
proposals.
Additional services as mutually agreed between Consultant and
Phoenix.
3. COMPENSATION
In consideration of Consultant's performing the services described
above, Phoenix shall pay to Consultant the amounts shown in Table 1,
below.
TABLE 1: COMPENSATION RATES
------------------------------------ ------------------------ ------------------------------ ------------------------
Type of Activity => Phoenix Advisory Board Transition Assistance Other Activities
Meetings through 3/31/99
Location where service is
performed
------------------------------------ ------------------------ ------------------------------ ------------------------
Less than 250 miles from $0.00 per day $600 per day $1,200 per day
Consultant's home
------------------------------------ ------------------------ ------------------------------ ------------------------
More than 250 miles from $1,200 per day $900 per day $1,200 per day
Consultant's home
------------------------------------ ------------------------ ------------------------------ ------------------------
a. Any expenses incurred by Consultant shall not be reimbursed to
consultant without Phoenix's prior written consent. Any and all
taxes incurred by Consultant under this agreement shall be born by
Consultant.
b. All records necessary to support approved payments or expenses
pursuant to this Agreement shall be maintained by Consultant on a
current basis, continuing for one year after the completion of
Service. Upon reasonable notice, these records shall be made
available to Phoenix or its agents.
c. Consultant shall submit invoices for services rendered on the 15th
and last day of each month. Phoenix shall pay such valid invoices
within 10 days of receipt.
4. OWNERSHIP
Consultant acknowledges and agrees that all works of authorship created
within the scope of this Agreement, including but not limited to computer
programs and documentation, constitute works made for hire and that all
copyrights, trademarks and any other intellectual property rights in
those works belong exclusively to Phoenix. To the extent that any such
works may not be considered works made for hire, Consultant hereby
assigns and relinquishes all of its right, title and interest therein to
Phoenix. There shall be no obligation of Phoenix or any of its direct or
indirect licensees to designate Consultant as author of any such works
when distributed publicly or otherwise, nor to make any distribution
thereof. Consultant hereby waives and releases any rights, including
moral rights, which it may have in those works. Consultant agrees to
execute any papers and to assist Phoenix in any manner deemed necessary
by Phoenix to enable Phoenix to register and enforce any intellectual
property rights in those works.
5. INDEPENDENT CONTRACTOR STATUS
It is expressly agreed and understood that Consultant is performing
services under this Agreement as an independent contractor, and that
Consultant is not an employee or agent of Phoenix. Phoenix's liability
hereunder shall be limited to payment of the fees provided in Section 3
above for work actually performed.
6. CONFIDENTIALITY
In the performance of services under this Agreement with Phoenix,
Consultant may learn, receive or have access to materials and information
of Phoenix deemed to be confidential and proprietary information of
Phoenix, Consultant agrees to maintain all such information in strict
confidence, not to disclose any such information to any third party
whatsoever without Phoenix's express written permission, and not to use
or copy such information except as Phoenix may authorize or direct. This
section shall apply regardless of whether Phoenix's confidential
information is created or produced by Consultant or not. Furthermore
Consultant agrees to be bound by the terms and conditions of the
Non-Disclosure Agreement attached hereto as Exhibit A.
7. TAXES
Consultant shall assume any and all liability for any applicable taxes
that may arise as a result of this Agreement, including but not limited
to social security, income tax, and other payroll tax requirements.
Consultant shall pay estimated taxes on a quarterly basis.
8. CONDUCT
Consultant agrees to abide by all specified Phoenix rules and
regulations. Consultant will perform only the Services identified in
section 2 and will work only in the geographic areas and building
locations designated for such services. Consultant also agrees to abide
by all Federal, State and Local Laws, ordinances and regulations.
Consultant shall indemnify and hold Phoenix harmless from all claims
arising out of any noncompliance with this section 8.
9. COMPETITORS
a. During the past two (2) years, Consultant has, or will during the
term of this agreement render consulting services to the following
competitor of Phoenix (include nature for service): None
b. If, during consultant's Service, Consultant becomes aware of any
such services to Phoenix's competitor, consultant shall provide
written notice of Consultant's service to Phoenix pursuant to this
Agreement.
10. INDEMNIFICATION/WAIVER OF RIGHTS
Consultant agrees to indemnify and hold Phoenix harmless from all claims
for bodily injury or property damage that may arise from Consultant's
Service. Consultant waivers all rights against Phoenix for damages
covered by Consultant's insurance. Consultant shall require all
subcontractors retained under this Agreement to execute similar waivers.
Waiver of any breach of this Agreement shall not be implied as a waiver
of any other breach of this Agreement.
11. GENERAL
This Agreement may be amended only in writing by both parties. Neither
party may assign, without the other party's prior written consent, this
Agreement or any right or obligation hereunder, and any assignment
without such prior written consent shall be null and void. This Agreement
represents the entire understanding of the parties with respect to the
subject matter hereof, and supersedes all prior written or oral
agreements with respect to such subject matter. This Agreement shall be
governed by the laws of the State of California.
PHOENIX TECHNOLOGIES LTD. CONSULTANT
By: /s/ Xxxx Xxx By: /s/ Xxxxxx Xxxxx
----------------------------- ---------------------------
Name: Xxxx Xxx Name: Xxxxxx Xxxxx
----------------------------- ---------------------------
Title: CEO Title: --
----------------------------- ---------------------------
Date: 2/5/99 Date: 2/5/99
----------------------------- ---------------------------
APPROVED BY
LEGAL DEPT. /s/ sa
EXHIBIT A
TO
AGREEMENT FOR CONSULTING SERVICES
NON-DISCLOSURE AGREEMENT
------------------------
This Non-Disclosure Agreement (this "Agreement") is made as of February 1, 1999
by and between Phoenix Technologies Ltd., having a principal place of business
at 000 X. Xxxxxxxx Xxxxx, Xxx Xxxx, XX 00000 ("Phoenix") and Xxxxxx Xxxxx
residing at 000 Xxxxxxxx Xxxxx, Xxx Xxxxx, XX 00000 ("Consultant").
In the course of dealings between Phoenix and Consultant, Consultant may learn
or receive from Phoenix "Confidential Information", as that term is later
defined in this Agreement. Consultant and Phoenix desire to establish and set
forth Consultant's obligations with respect to Phoenix's Confidential
Information. In consideration of the foregoing, Consultant and Phoenix agree as
follows:
1. The term "Confidential Information" shall mean any and all products,
information, data, know-how and documentation which Consultant learns or
receives from Phoenix, including but not limited to information regarding
Phoenix's products and potential strategic business relationships, as
described in the Agreement For Consulting Services between the parties,
except that which Consultant can establish by written evidence: (1) was,
on the date of this Agreement, generally known to the public; or (2)
became generally known to the public after the date of this Agreement
other than as a result of the act or omission of Consultant; or (3) was
contained in documents rightfully known to Consultant prior to Consultant
learning or receiving same from Phoenix; or (4) is or was disclosed by
Phoenix to third parties generally without restrictions on use and
disclosure; or (5) Consultant lawfully received from a third party without
that third party's breach of agreement or obligation of trust.
2. Phoenix considers all of its Confidential Information to be confidential
and proprietary. All Confidential Information shall at all times, and
throughout the world, remain the property of the Phoenix, exclusively, and
all applicable rights in patents, copyrights, and trade secrets shall
remain in Phoenix, exclusively. Consultant shall not permit any person to
reproduce or copy any portion of the Confidential Information.
3. Consultant shall not directly or indirectly use any of the Confidential
Information for any purpose, except to the extent necessary for Consultant
to perform Consultant's contractual obligations to Phoenix.
4. Consultant shall not disclose, or permit access to, any portion of the
Confidential Information to any person except if such person is legally
bound by a written contract to comply with the provisions of this
Agreement.
5. Consultant shall indemnify Phoenix against all losses and expenses
incurred by Phoenix, (including but not limited to reasonable counsel
fees) which result from the breach of any portion of this Agreement by
Consultant.
6. This Agreement shall be effective as of the date first written above and
shall continue in effect at least for five years, and thereafter until
ninety days after either party receives from the other party written
notice of termination; however, this Agreement shall remain in effect in
perpetuity with respect to Confidential Information which Consultant
learned or received from Phoenix prior to the date of termination.
Immediately after termination of this Agreement Consultant shall return
all Confidential Information in tangible form to Phoenix. Consultant shall
return all Confidential Information and all copies thereof to Phoenix at
any time promptly upon written request by Phoenix.
7. This Agreement is the complete and exclusive statement of the agreement
between the parties and supersedes all prior written and oral
communications and agreements relating to the subject matter hereof; No
modification, termination, extension, renewal or waiver of any provision
of this Agreement shall be effective unless in writing and signed by an
authorized representative of each party.
AGREED TO AND ACCEPTED BY:
PHOENIX TECHNOLOGIES LTD. CONSULTANT
By: /s/ Xxxx Xxx By: /s/ Xxxxxx Xxxxx
----------------------------- ---------------------------
Title: CEO Xxxxxx Xxxxx
-----------------------------
Date: 2/5/99 Date: 2/5/99
----------------------------- ---------------------------
APPROVED BY
LEGAL DEPT. /s/ sa
