EXHIBIT 10.19
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (the "Agreement") is
between INPUT/OUTPUT, INC., a Delaware corporation ("Company"), and Xxx Xxxxxx,
a resident of Xxxxxx County, Texas ("Employee"), and is being presented to
Employee on this 10th day of August, 2001.
WHEREAS, Company and Employee desire to resolve any and all potential
disputes, claims or causes of action arising out of Employee's employment with
and separation from Company and its subsidiaries;
Therefore, in consideration of the mutual promises and covenants
contained herein, and effective the beginning of the eighth (8th) day after
Employee's execution of this Agreement (the "Effective Date"), and so long as
Employee does not revoke same during the prior seven (7) day period (the
"Revocation Period"), the parties voluntarily agree as follows:
1. Employee's separation from Company and its subsidiaries effective
August 31, 2001 will be considered a voluntary resignation.
2. a. Company will within 30 days of the Effective Date, pay to
employee a severance payment of $95,376.00 to be paid in one lump sum. Employee
acknowledges and agrees that the payments are in full and complete satisfaction
of any and all liabilities or obligations the Company has or may have to
Employee and that the payments represent something of value beyond anything to
which he is entitled.
b. In the event the Company awards bonuses to its eligible
management participants for the 2001 fiscal year pursuant to the Annual
Incentive Plan, Employee will be eligible to participate in the plan on a
pro-rata basis (8/12's) and receive a bonus payment.
c. The payments in paragraph 2a & b shall be subject to any
and all applicable withholding and other employment taxes.
3. Company will continue through August 31, 2002, subject to the
provisions below, to provide to Employee, on the same basis as it provides to
its existing employees, health, dental and vision insurance coverage. Such
insurance coverage shall terminate upon the occurrence of the earlier of: (i)
August 31, 2002, or (ii) Employee's commencement of employment with and
eligibility for health and dental insurance coverage by another employer which
provides substantially similar coverage to Employee under its health insurance
plan. In the event that Employee is unable to obtain substantially similar
coverage by August 31, 2002, then he shall be allowed to participate in the
Company's COBRA plan pursuant to the requirements under the COBRA plan. Employee
agrees, immediately upon his acceptance of employment, with another employer, to
advise Company in writing of his acceptance of and the anticipated commencement
date of such employment and eligibility for coverage. Any material breach by
Employee of this Agreement will result in the termination of such insurance
coverage effective the end of the month in which such breach occurs. Company
will immediately notify Employee in writing of its intention to terminate such
insurance coverage in the event it reasonably believes there exists such a
material breach by Employee.
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August 10, 2001
4. For purposes of stock option vesting and Employee Stock Purchase
Plan (ESPP), Employee will be considered still employed with the Company as a
Consultant through August 31, 2002. Stock Options will continue to vest up to
August 31, 2002. Employee will have six months from August 31, 2002 to exercise
any options that have vested. Employee will not be eligible to participate in
the ESPP beyond December 31, 2001, the close of the current period.
5. In exchange for the consideration described in paragraphs 2 through
4 above, and as a material inducement to Company to enter into this Agreement,
except for the provisions of paragraph 8 below, Employee forever and
unconditionally releases and discharges Company and any of its parent,
subsidiary or affiliate companies or divisions and each of their owners,
shareholders, directors, officers, employees, assigns, representatives or agents
("Releasees") from any and all claims, complaints or causes of action of any
kind, including but not limited to those relating to or arising out of
Employee's employment with Company and its subsidiaries and membership on or
separation from the Boards of Directors of any subsidiaries of Company, and such
release encompasses, but is not limited to, claims under local, state or federal
law, alleged contract or tort claims or claims or causes of action arising under
any federal, state or local statutes, including, but not limited to, Title VII,
the Civil Rights Act of 1991, Section 1981, the Civil Rights Act of 1871, the
Texas Commission on Human Rights Act and the Age Discrimination in Employment
Act.
6. Employee further agrees that he will not file any complaint,
petition, or lawsuit or charge against Company or any of the Releasees with any
local, state or federal court, except to enforce this Agreement. If Employee or
anyone acting on his behalf files any such complaint, or if any such court
assumes jurisdiction of any complaint against Employee or any of the Releasees
regarding or involving Employee, he will request such court to withdraw from the
matter and dismiss said action and if initiated or pursued by his or with his
approval, will reimburse Company and/or the Releasees for all costs and
attorneys' fees incurred as a result of such lawsuit.
7. Company forever and unconditionally releases and discharges
Employee, his heirs and assigns from any and all claims, complaints or causes of
action they might have relating to or arising out of Employee's employment with
Company, save and except any claims which might result from any gross misconduct
by Employee. Gross misconduct as used herein shall mean conduct such as, but not
limited to, misappropriation of property or dishonesty relating to Company's
business.
8. The Company shall indemnify Employee in any instance in which
Employee is or was a party or is or was threatened to be made a party to any
action, suit, or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he (i) was an officer, employee or
agent of the Company or any of its direct or indirect wholly-owned subsidiaries,
or (ii) while an officer, employee or agent of the Company or any of its direct
or wholly-owned subsidiaries served at the request of the Company or any of its
direct or indirect wholly-owned subsidiaries, as an officer, employee, agent or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, against expenses (including counsel fees),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, to the full
extent permitted by applicable laws, provided that the Company shall not be
obligated to indemnify Employee against any such action, suit or proceeding
which is brought by Employee against the Company or any of its direct or
indirect wholly-owned subsidiaries or the directors of the Company or any of its
direct or indirect wholly-owned subsidiaries, other than an action brought by
Employee to enforce his rights to indemnification hereunder, unless a majority
of the board of directors of the Company shall have previously approved the
bringing of such action, suit or proceeding.
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August 10, 2001
9. This Agreement shall not in any way be construed as an admission by
Company or the Releasees of any acts of illegal discrimination or violation of
any statute, law or right whatsoever against Employee or any other person, but
instead is entered into to ensure that the separation of employment is amicable.
10. Employee agrees to return all company property which he received
during his tenure of employment and which is within his possession, custody and
control no later than the close of business on August 31, 2001. The term
"company property" as referred to in this paragraph 10 shall include but is not
limited to cellular phones, all keys, credit cards, security cards, personal
computers, any and all files, and all mechanical or office equipment. Upon
approval of Company, Employee shall have the right to purchase his laptop
computer. Employee acknowledges and agrees that failure to return the company
property as identified in this paragraph 10 shall constitute a material breach
of this Agreement which shall entitle the Company to withhold all benefits and
other consideration specified herein until Employee complies with this paragraph
10.
11. All parties agree that they will keep the terms, amount and fact of
this Agreement completely confidential, and that they will not make any public
disparaging statements about the other, including any directors or employees of
the Releasees.
12. Employee acknowledges that the Company's employees are valuable to
the Company's business and that information regarding the Company's employees,
including without limitation information as to their background, training and
compensation, is Confidential Information. Employee agrees that for a period not
to exceed twenty-four (24) months from the Effective Date of this Agreement, he
will not knowingly directly or indirectly solicit or otherwise induce or
encourage any person in the employment of the Company or any consultant to the
Company to terminate such employment or consulting arrangement or to accept
employment or enter into any consulting agreement with anyone other than the
Company.
13. Further, Employee reaffirms the promises that he made to the
Company in the Employee Patent and Confidential Information Agreement that he
signed on July 1, 1998. Employee particularly acknowledges the binding effect of
the nondisclosure and confidentiality provisions of such agreement, with regard
to all confidential information which he received between July 1, 1998 and the
Effective Date of this Agreement, and that such provisions continue to apply at
all times after the Effective Date of this Agreement.
14. Employee acknowledges, understands and agrees that Company will
suffer immediate and irreparable harm if he fails to comply with any of his
obligations under paragraphs 11, 12 and 13 of this Agreement, and that monetary
damages will be inadequate to compensate Company for such breach. Accordingly,
Employee agrees that Company shall, in addition to any other remedies available
to them at law or in equity, be entitled to temporary, preliminary, and
permanent injunctive relief to enforce the terms of paragraphs 11, 12 and 13
without the necessity of proving inadequacy of legal remedies or irreparable
harm.
15. As a further material inducement to enter into this Agreement, any
party who breaches this Agreement must reimburse the non-breaching party for any
and all loss, cost, damage or expense, including without limitation, attorneys'
fees, arising out of any breach of this Agreement. In addition, any
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August 10, 2001
breach of this Agreement will entitle the non-breaching party to seek injunctive
relief and to recover any actual damages incurred as a result of said breach.
16. Employee represents and acknowledges that in executing this
Agreement he does not rely and has not relied upon any prior representation made
by Company or its agents, representatives or attorneys with regard to the
subject matter of this Agreement.
17. This Agreement shall be binding upon Employee and upon his heirs,
administrators, representatives, executors, successors and assigns.
18. This Agreement shall in all respects be interpreted, enforced and
governed under the laws of the State of Texas and shall in all cases be
construed as a whole (according to its fair meaning, and not strictly for or
against any of the parties). Venue for any cause of action necessitated by
either party's material breach of the obligations hereunder shall be in Xxxxxx
County, Texas.
19. Should any provision of this Agreement be declared or be determined
illegal and invalid, the validity of the remaining parts will not be affected.
20. This Agreement, contains the entire agreement and supersedes any
and all prior agreements and understandings, oral or written, between the
parties hereto with respect to the subject matter hereof and the employment of
Employee by the Company, and, except as otherwise expressly set forth herein,
any such prior agreements or understandings are hereby terminated. This
Agreement may not be changed orally, but only by an amendment in writing signed
by both parties.
21. The parties agree that Employee may revoke this Agreement within
seven (7) days from execution of this Agreement. Failure of Employee to revoke
this Agreement during said seven (7) day Revocation Period shall mean it becomes
binding on all parties at 12:01 a.m. of the eighth day after Employee executes
same. Should Employee opt to revoke this Agreement during the said seven (7) day
Revocation Period, none of the obligations of Company set forth in this
Agreement shall become binding and shall be null and void. Employee shall give
his notice of revocation to Company, in writing before 12:01 a.m. on the eighth
day after Employee executes this Agreement. Written notice of revocation shall
be delivered to Company at:
Input/Output, Inc.
00000 Xxxxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Director of Human Resources
22. By Employee's signature below, he represents and confirms that he:
(a) has read this Agreement carefully and completely, (b) has been given a
period of at least twenty-one (21) days to consider and review this Agreement,
(c) has been informed of his right to consult with legal counsel and has had
ample opportunity to do so, (d) understands all provisions contained in this
Agreement, and (e) enters into the Agreement freely and voluntarily.
23. This Agreement may be executed in any number of counterparts with
the same effect as if all the parties had signed the same document. All
counterparts shall be construed together and shall constitute one and the same
instrument.
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August 10, 2001
PLEASE READ CAREFULLY. THIS RELEASE AGREEMENT INCLUDES THE RELEASE OF
ALL KNOWN AND UNKNOWN CLAIMS.
* * * *
EXECUTED on this _____ day of August, 2001 to be effective, if not revoked, on
August 31, 2001.
COMPANY:
INPUT/OUTPUT, INC.
By: /s/ XXX XXXXXXX
Name: Xxx Xxxxxxx
Title: President & Chief Executive Officer
EMPLOYEE:
/s/ XXX XXXXXX
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Xxx Xxxxxx
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August 10, 2001
