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EXHIBIT 10.45
June 20, 2001 (Amended, July 2, 2001)
Xxxxxx Xxxxxxx
0000 Xxxxxxxx Xx.
Xxxxxxxxxx, XX. 00000
Dear Xxxxx,
This letter acknowledges that you and the company have decided to
terminate your employment from NextCard, Inc. (the "Company"), and sets out the
terms of the Termination Agreement, which the Company is prepared to enter into
with you. Together with your Employee Confidential Information and Inventions
Agreement,this letter constitutes the entirety of your agreement with the
Company. Please refer to your Employee Confidential Information and Inventions
Agreement for a statement of your continuing obligations of confidentiality.
1. You hereby resign all offices and positions with NextCard and all
related subsidiaries or affiliates, effective June 11, 2001. Your
employment and all positions you have held with the Company will be
deemed terminated effective that day. You acknowledge receipt of all
wages due, including any accrued Vacation/PTO balance, through June
11, 2001.
2. As of June 11, 2001, pursuant to the 1997 NextCard Stock Plan you
are vested in the following options:
(a) Options to purchase 26,833 `Restricted' shares of NextCard,
Inc. at ten cents ($0.10) per share from your Option Grant
SP-1;
(b) Options to purchase 37,500 shares of NextCard, Inc. at
$15.6875 per share from your Option Grant #737.
Those options are subject to and may be exercised consistent with
the terms of your respective Stock Option Agreements. The exercise
period for these options is within 90 days of your termination date,
June 11, 2001. You acknowledge that you have no other rights to
options, or other securities under the 1997 NextCard Stock Plan, or
under any agreement for stock options, and that any other grants
made to you in such agreements were unvested as of June 11, 2001,
and therefore will not vest and are forfeited and released.
3. In consideration for the agreements set forth herein, the Company
agrees to pay you a separation benefit, to which you are not
otherwise entitled, as follows:
(a) You will receive an amount equal to six (6) months of your
regular gross wages, less taxes and applicable deductions, and
these amounts will be paid in installments over six (6 months)
beginning with the first full payroll cycle after your signed
agreement becomes effective (as provided in Section 1.9.7,
below), with additional payments consistent with the standard
Company payroll process and schedule.
(b) If you elect COBRA coverage under the company's medical and
dental group plans, the company will pay for the cost of such
coverage through January 31, 2002.
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(c) You retain as your personal property, the company issued
laptop computer, an IBM A20.
4. If, during the period ending one year after the Effective Date of
this Agreement, you have not become employed by, rendered services
to, become associated with, created, or invested in (other than
investments in public companies at the level of not more than 1%)
any "Designated Competitive Business", and you have not breached any
other provisions of this Agreement, including those set out below,
under "Terms of the Agreement", then NextCard will issue to you or
your estate immediately exercisable warrants to purchase the
following amounts of Company stock:
(a) to purchase the remaining unvested portions of your Grant
SP-1, which is 42,167 shares of stock in the Company, at $0.10
per share, fully vested, subject to the usual conditions that
such warrants are issued by NextCard. (specifics as to
conditions?)
(b) to purchase the unvested portions of your Grants #1423 and
#1621, which would have otherwise vested on June 22, 2001 (but
for the termination of your employment), and which total
112,500 shares of stock at an average price of $8.4766 per
share, subject to the usual conditions that such warrants are
issued by NextCard.
The exercise period for these warrants will be 90 days from date of
issuance to you. For purposes of this provision a "Designated
Competitive Business" is limited to the following: (i) businesses
whose primary purpose involves the extension or the direct marketing
of consumer credit (but in the case of employment or rendering of
services, only to the extent that your employment or rendering of
services actively involves the consumer credit side of such a
business); (ii) development of internet based payment systems,
including any business which has, as a primary focus of its
business, internet-based person to person payments or electronic
xxxx presentment or payment; (iii) electronic banking; (iv)
electronic wallet companies. At your request, NextCard, in its sole
discretion, may agree in writing that your employment by or
rendering of service to, association with, creation of, or
investment in a particular entity will be excluded from the
definition of "Designated Competitive Business," for purposes of
this Paragraph. To receive warrants pursuant to this provision, you
will be required to certify under oath that you have complied with
the requirements stated above, and in response to requests by
NextCard, to provide information about the identity of your employer
other activities during the one (1) year period adequate to permit
NextCard to verify your compliance.
Payments made pursuant to this Agreement will be delivered to you by
U.S. Mail at your last address of record with the Company,
commencing on the next regular payroll date after the effective date
of this Agreement, as defined below, contingent on your signing of
the agreement. All payments shall be subject to all required or
permitted payroll deductions based upon information on file with the
Company at the time of your separation. Such payments are reportable
to the Internal Revenue Service, and you will be responsible for all
tax consequences to you relating to such payments, and agree to hold
the Company harmless, and indemnify the Company for any liabilities,
costs and attorneys fees associated with any claim against the
company related to your tax liabilities or claimed tax liabilities.
TO RECEIVE THE BENEFITS STATED ABOVE, YOU AGREE TO THE FOLLOWING:
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TERMS OF THE AGREEMENT
1.1 You accept the payments and benefits provided to you under this
Agreement as a full and complete settlement, payment and
satisfaction of, and you hereby fully and completely release, any
and all claims you may have or assert against the Company and/or its
employees, directors and agents (the "Released Parties"), whether
known or unknown, asserted or unasserted, against any of the
Released Parties arising out of your employment with the Company or
the termination of that employment, or any other matter whatsoever
based on any fact or circumstance existing as of the effective date
of this Agreement, including (without limitation) all claims against
any Released Party under any federal, state, or local discrimination
or employment law (including the National Labor Relations Act, Title
VII, the Age Discrimination in Employment Act, the Older Workers
Benefit Protection Act, Americans with Disabilities Act, the Family
and Medical Leave Act, the California Fair Employment and Housing
Act, the California Family Rights Act, the Fair Labor Standards Act,
the California Labor Code, and all state wage and hour laws), all
claims for vested or unvested securities or options, express or
implied contract, any state or federal Constitutional provision, any
government regulations, any tort, and any statute or the common law
of the United States or any state.
1.2 You agree that other than a claim to the California Employment
Development Department for unemployment benefits, you shall neither
file nor benefit from any legal action, agency charge, suit or claim
against the Company or its employees, directors or agents brought by
any person or persons arising out of your employment with the
Company or the termination of that employment, including any suit or
claim under any federal, state or local discrimination law, and you
waive and release any right to any remedy in any action or agency
proceeding involving any of the claims released in this Agreement,
all of which are deemed fully satisfied and paid. This paragraph is
material and the essence of this Agreement and, if you violate it,
you will forfeit all benefits you receive under this Agreement, and
agree to reimburse the Company for any payments, liabilities or
losses, including attorneys' fees and costs, it may incur because of
your violation.
1.3 You agree that you have read and are familiar with the terms of
Section 1542 of the Civil Code of California, 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 to him must have
materially affected his settlement with the debtor."
You agree that any rights accorded under Section 1542 or any similar
statute or common law of any other state are hereby waived to the
full extent that they may be lawfully waived.
1.4 You represent and agree that you have not assigned, transferred (by
operation of law or
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otherwise) or encumbered any claim herein released to any third
party, and that no third party has any such claim; and that you have
full right and authority, without the consent of any other person or
entity, to enter into and give effect to this Agreement. You agree
to hold harmless and indemnify each of the Released Parties for any
claim based on your assignment, transfer or encumbrance prohibited
by this paragraph.
1.5 You agree not to disclose this Agreement or the existence of this
Agreement or its terms to any person (other than your immediate
family and legal or financial advisors) without prior written
approval from the Company, unless required by law. You acknowledge
that you have been given the opportunity to consult with family and
advisors of your choice regarding this Agreement. Should you elect
to take advantage of this opportunity, you will obtain such
advisors' agreement to keep confidential the existence of this
Agreement and its terms, and any disclosure of facts or information
prohibited by this paragraph by such family and advisors shall be
deemed a disclosure by you. This provision is material to the
Company, a violation of which discharges the Company's payment
obligations, but all release provisions shall survive.
1.6 As noted in the opening paragraph, you have important and continuing
obligations to the Company which you have undertaken in the Employee
Confidential Information and Inventions Agreement ("Agreement"),
executed by you at the outset of your employment with the Company,
as well as similar obligations imposed by law. For example, you
acknowledge that you have had access to certain confidential and
proprietary information concerning the company's customers,
employees, business, and other matters of concern to the Company
that the Company holds in confidence. In order to protect the
Company's important and legitimate interests, you agree that you
will not disclose, use, or allow to be used any such confidential
and proprietary information without the prior written permission of
the Company, and will use your best affirmative efforts to see that
such information is not used or disclosed by other than the Company.
Such information includes, but is not limited to, the Company's
customer lists, customer information and preferences, employee data,
employee and payroll information, business plans, marketing plans,
pricing formulas or methods, cost calculations or estimations,
profit margins, contracts with customers, agents, employees, and
clients, any other contract, trade secrets, methods, processes,
formulas, and the like which may have been designated or maintained
as confidential from time to time by the Company.
1.7 Each party agrees to make no public or voluntary statement (whether
orally or in writing) disparaging of, or likely to damage the
reputation of, the other (including, in the case of NextCard, any
affiliate of NextCard, or any officer, director or employee of
NextCard). Nothing in this Section is intended to require you or any
officer, director or employee of NextCard to testify other than
truthfully when testifying as required by law. Additionally,
NextCard shall notify your manager and the human resources
department that all reference requests concerning your future
employment should be referred to Xxxx Xxxxxxx or to Human Resources.
1.8 In addition, if you have not already done so, you agree to
immediately return all property belonging to the Company including,
but not limited to, company records, passwords, access codes,
documents or other information, along with all copies, pagers,
cellular phones, personal
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computer equipment and software, automobiles, company credit cards
and any other equipment or documents, including all copies thereof,
belonging to the Company.
1.9 You acknowledge that you have entered into this Agreement
voluntarily and with full knowledge of its final and binding effect,
and you specifically represent and acknowledge the following:
1.9.1 You would not have been entitled to receive the separation
benefits set forth above had you rejected this Agreement;
1.9.2 You have carefully read this entire Agreement and understand
all the terms of this Agreement, particularly the Release
provisions;
1.9.3 You have freely, voluntarily, and knowingly entered into this
Agreement;
1.9.4 You may take up to twenty-one (21) days from the date of the
Agreement to consider this Agreement;
1.9.5 You may revoke or cancel this Agreement within seven (7) days
of signing it by delivering written notification to the
Company's California Human Resources Department of a decision
to revoke this Agreement;
1.9.6 You understand that the written revocation notice referred to
in paragraph 1.10.5 above must be sent to Xxxxxx Xxxxxxxxxxx,
NextCard, Inc, 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx,
XX 00000 and must be received by 5:00 p.m. at that address
before the end of the seventh day after you sign this
Agreement;
1.9.7 Except for effective date of the termination of employment
referenced in Paragraph 1, this Agreement shall only become
effective after the seven-(7) day revocation period has
expired. Notwithstanding anything else in this Agreement, if
you deliver a proper notice of revocation after signing this
Agreement, you agree to return to the Company any
consideration received pursuant to this Agreement during the
seven (7) day revocation period; except for effective date of
the termination of employment referenced in Paragraph 1, this
Agreement shall only become effective once it has been
executed by all parties;
1.9.8 You understand that this Agreement does not waive any rights
or claims that may arise after the effective date of this
Agreement; and
1.9.9 You have not relied on any oral or written statements that are
not set forth in this Agreement in determining whether to
enter into this Agreement.
Although your employment with NextCard will be deemed terminated as of the
date indicated in Paragraph 1, above, the offer of the additional terms of this
Agreement will remain open until July 12, 2001. If you have not signed and
returned the document by that date, this offer will be deemed
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revoked and withdrawn. The written notification must be returned to Xxxxxx
Xxxxxxxxxxx, NextCard, Inc., 000 Xxxxxx Xx., Xxxxx 0000, Xxx Xxxxxxxxx, XX.
00000. Neither this Agreement nor the offer of this Agreement shall be
considered any indication or admission of wrongdoing by the Company; it is
offered in accordance with the policies underlying Federal Rules of Evidence,
Rule 408, and California Evidence Code Section 1152 and shall not be admissible
in any proceeding except a proceeding to enforce its terms.
Except for the Employee Confidential Information and Inventions Agreement
or any prior written agreement between the parties that is independent of your
employment with the Company, this Agreement constitutes the complete
understanding between you and the Company and supersedes any and all prior
agreements or understandings, no matter their form, concerning your employment
with the Company or the subject matter of this Agreement. No promises or
agreements made by you and Company after this Agreement becomes effective shall
be binding unless in writing and signed by you and an authorized Company
officer. If any provision of this Agreement is ruled invalid or unenforceable,
that provision shall be deemed excised and the remainder of the Agreement shall
remain valid and enforceable, except that all of the Company's obligations under
this Agreement are conditioned on the effectiveness of the releases set forth
herein. This Agreement shall in all respects be governed, enforced and
interpreted under the laws of the State of California as governs transactions
occurring entirely in California between California residents, and any action
related to your employment or this Agreement shall be conducted in the state or
federal courts of San Francisco County, California, without objection based on
personal jurisdiction, venue or convenience.
In closing, we again wish to remind you of the important and continuing
obligations to the Company which you have undertaken in the Employee
Confidential Information and Inventions Agreement, executed by you at the outset
of your employment with the Company, as well as similar obligations imposed by
law. Because its proprietary information and trade secrets are of utmost
importance to the Company, we will act vigorously to enforce those rights,
should it ever become necessary.
If this letter accurately sets forth our understanding, please date, sign
and return this letter to Xxxxxx Xxxxxxxxxxx in Human Resources by end of
business (PDT) July 12, 2001.
Best Regards,
NextCard, Inc. ACCEPTED:
By: Xxxx Xxxxxxx, Chief Executive Officer
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Printed Name/Title Printed Name
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Signature Signature
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