Exhibit 4.5
SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement (the "Agreement") is entered into
effective April 30, 2003 by and between PROCERA NETWORKS, INC., a Delaware
corporation, (the "Company") and _______________ ("Employee"). The Parties to
this Agreement are sometimes collectively referred to herein as the "Parties".
RECITALS
A. Employee was hired by the Company on May 1, 2002 and was laid off
by the Company on March 31, 2003.
B. Employee contends he is owed wages for services provided during
his period of employment.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Parties agree as follows:
1. INCORPORATION OF RECITALS. The above Recitals are incorporated herein
by this reference.
2. CONSIDERATION. In consideration for the execution of this Agreement,
the Company shall, on or before May 12, 2003, pay the sum of $___________ in
cash and ___________ shares of the Company's common stock to Employee.
3. RELEASES.
(a) Employee, for himself, his successors, assigns and agents, hereby
acquits and forever releases, waives and discharges any and all claims, causes
of action, defenses or other rights of any kind, whether equitable or legal,
known or unknown, which he may have had, have now, or have in the future against
the Company, its agents, servants, representatives, directors, employees,
officers, shareholders, successors and assigns, arising out of or in connection
with the Released Matters or otherwise.
(b) The Company, for itself, its successors, assigns and agents, hereby
acquits and forever releases, waives and discharges any and all claims, causes
of action, defenses or other rights of any kind, whether equitable or legal,
known or unknown, which it may have had, have now, or have in the future against
Employee, his agents, servants, representatives, successors and assigns, arising
out of or in connection with the Released Matters or otherwise.
(c) Released Matters. The releases contained herein are intended to be
full and complete releases of the Parties from all liability relating to the
employment of Employee with the Company (referred to herein as the "Released
Matters"), including without limitation:
(i) any compensation paid or owed to Employee and all claims
relating to, or arising from, Employee's right to purchase, or actual purchase
of shares of stock of the Company;
(ii) any and all claims for wrongful discharge of employment; breach
of contract, both express and implied; breach of a covenant of good faith and
fair dealing, both express and implied, negligent or intentional infliction of
emotional distress; negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic advantage;
negligence; and defamation;
(iii) 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 1981, the Age Discrimination in Employment
Act of 1967, the Americans with Disabilities Act of 1990, and the California
Fair Employment and Housing Act;
(iv) any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination; and
(v) any and all claims for attorneys' fees and costs.
Employee acknowledges and agrees that the foregoing enumeration of claims
released is illustrative, and the claims hereby released are in no way limited
by the above recitation of specific claims, it being the intent of the parties
to fully and completely release all claims whatsoever. This release does not
extend to any obligations incurred under this Agreement.
4. WAIVER. Each party represents to the other that it understands the
meaning and effect of Section 1542 of the California Civil Code, which provides:
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 EFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
The Parties hereto assume the risk of any and all unknown, unanticipated or
misunderstood claims, causes of action or other rights released by this
Agreement, and they hereby expressly WAIVE and release all rights and benefits
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which they might otherwise have had under the above-quoted provision of the
California Civil Code or any other relevant statutory or common law provision.
5. REPRESENTATIONS AND WARRANTIES OF EMPLOYEE. Employee has full power
and authority to enter into this Agreement and the releases set forth herein.
This Agreement constitutes the valid and binding obligation of Employee,
enforceable in accordance with the terms hereof.
6. MISCELLANEOUS.
(A) WARRANTY OF NON-ASSIGNMENT. Each party hereto represents and
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warrants that he, or it, has not sold, transferred, conveyed, assigned or
hypothecated any of the rights, claims or causes of action released herein.
(B) WARRANTY OF AUTHORIZED SIGNATORIES. Each signatory hereto
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warrants and represents that he, she or it is competent and authorized to enter
into this Agreement on behalf of the party for whom he, she or it purports to
sign, and that the Agreement is executed on behalf of a valid legal entity which
has the full right and authority to undertake or forbear any action contemplated
by this Agreement. Each signatory hereto agrees to indemnify and hold harmless
each other party hereto against any claim, suit or demand, including necessary
expenses of investigation and reasonable attorneys' fees, in which it may be
asserted that he, she or it was not competent and/or so authorized to execute
this Agreement and receive the consideration therefore.
(C) COMPROMISE. The Agreement is the result of a compromise of
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disputed claims between the Parties and shall never at any time for any purpose
be considered an admission of liability or responsibility on the part of the
Parties herein released, nor shall the payment of any sum of money or other form
of consideration for the execution of this Agreement constitute or be construed
as an admission of any liability whatsoever by any of the Parties herein
released who continue to deny such liability and to disclaim such
responsibility.
(D) ATTORNEYS' FEES. The Parties hereto acknowledge and agree that
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each of them is to bear his, or its own costs, expenses and attorneys' fees
arising out of or connected with the negotiation, drafting and execution of this
Agreement, and all other matters arising out of or connected therewith, except
in the event any action is brought by any party hereto to enforce the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorneys'
fees and costs.
(E) GOVERNING LAW. This Agreement shall be interpreted in accordance
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with and governed in all respects by California law. Any dispute arising from
this Agreement shall be resolved by and through the American Arbitration
Association, located in the county of Santa Clara, California.
(F) SEVERABILITY. If any provision, or any part of any provision of
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this Agreement shall for any reason be held to be invalid, unenforceable or
contrary to public policy or any law, then the remainder of this Agreement shall
not be affected thereby.
(G) COUNTERPARTS. This Agreement may be executed in any number of
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counterparts and signature pages and by different Parties on separate
counterparts or signature pages each of which, when so executed and delivered
shall be an original, and all such counterparts shall together constitute one
and the same instrument. It is the intention of the Parties hereto that this
Agreement shall have absolutely no force or effect until all counterparts are
duly executed and the effective date of this Agreement shall be the date upon
which the last counterpart is executed.
(H) ENTIRE AGREEMENT. This Agreement contains the entire
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understanding between and among the Parties with regard to the matters herein
set forth, and its terms are contractual and not merely recital. There are no
representations, warranties, agreements, arrangements, undertakings, oral or
written, between or among the Parties hereto relating to the subject matter of
this Agreement which are not fully expressed herein.
(I) MODIFICATION. This Agreement may not be altered, amended,
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modified, extended or otherwise changed in any respect or particular, except by
a writing executed by all of the Parties affected. Any such modification of any
one provision shall not constitute a modification of any other provision not
expressly modified.
7. CALIFORNIA EVIDENCE CODE SECTION 1152. This Agreement and the terms
of any settlement offer made by the Company is governed by California Evidence
Code Section 1152, and therefore are confidential and inadmissible in any legal
proceeding, other than a matter arising out of a dispute concerning this
Agreement.
IN WITNESS WHEREOF, the undersigned have executed this release agreement as
of the date set forth above.
THE COMPANY: PROCERA NETWORKS, INC.
By:____________________________
Xxxxxxx X. Xxxxxx
Title: CEO
[See Schedule 1]
EMPLOYEE: -------------------------------
Address: ____________________________
____________________________
SCHEDULE 1
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SIGNATORIES TO SETTLEMENT AND RELEASE AGREEMENT
SIGNATORY DATE
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Xxxxxxx X. Xxxxxx 4/30/03
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Xxx X. Xxxxxxx 4/30/03
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Xxxxxxxxxxx Xxxxxxxxx 4/30/03
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Xxxxxx Xxxxxx 4/30/03
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Xxxx XxXxxxx 4/30/03
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Xxxxxxx Xxxxxx 4/30/03
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Xxxxxxxx Xxxxx 4/30/03
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Xxxx X'Xxxxxxxxxxx 4/30/03
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Xxxxxx Xxxxxx 4/30/03
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Xxxxxxx Le 4/30/03
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Xxxxx Xxxxxxx 4/30/03
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Xxxx Xxxxxx 4/30/03
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Xxxxxx Xxxxx 4/30/03
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William Ge 4/30/03
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Xxx Xxxxxx 4/30/03
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Xxxx Xxx 4/30/03
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Xxxxxx Xxxxxxx 4/30/03
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Xxxxx Xxxxx 4/30/03
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Xxxxx Xxxx 4/30/03
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Xxxxx Xxxx 4/30/03
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Nai-Xxxxx Xxxx 4/30/03
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Xxxxx Xxxx 4/30/03
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