SEPARATION AGREEMENT AND RELEASE
EXHIBIT 10.37
This Agreement is between TCSI Corporation, a Nevada corporation, ("TCSI")
and Xxxxxx X. Xxxxxx ("XXXXXX").
RECITALS: XXXXXX has resigned from his position as Chief Financial
Officer, as of October 6, 2000 (the "Effective Date"). It is the present
intention of the parties that XXXXXX will continue as an employee of TCSI for a
period of five and one-half (5 1/2) months following the Effective Date, which
period will be considered a leave of absence. To resolve and compromise any
claims XXXXXX may have against TSCI, the parties agree as follows:
1. LEAVE OF ABSENCE. Effective October 6, 2000 (the "Effective Date"),
XXXXXX resigns from his position as Chief Financial Officer, Vice President,
Secretary and Treasurer
2. XXXXXX shall continue to be employed by TCSI from the Effective Date,
but will be on a leave of absence, until the close of business on March 20, 2001
("Leave of Absence"). During the Leave of Absence, XXXXXX shall not conduct any
business on behalf of TCSI without the express written permission of TCSI's
Chief Executive Officer.
3. SALARY AND BENEFITS CONTINUATION. During the Leave of Absence, Xxxxxx
shall receive the salary and benefits set forth in this section. Except as set
forth herein, Xxxxxx shall not be entitled to any other salary payments or
benefits during the Leave of Absence.
(A) SEVERANCE PAYMENT. TCSI shall continue XXXXXX'x salary during
the Leave of Absence ("Severance Payment"). Payments shall be regular
salary payments (based on an annual rate of $173,250 per year), less any
withholdings required by law. This Severance Payment represents a
settlement and compromise of any potential claims that XXXXXX may have
against TCSI.
(B) STOCK OPTIONS. XXXXXX'x stock options shall continue to vest and
be exercisable during his Leave of Absence pursuant to the terms of TCSI's
1991 Stock Incentive Plan.
(C) MEDICAL AND DENTAL BENEFITS. XXXXXX'x medical and dental
coverage shall be continued during the Leave of Absence. Medical and
dental coverage during this period shall be the same as that provided to
XXXXXX as of the Effective Date. XXXXXX will continue to be responsible
for any payments he would otherwise be required to make under the TCSI
medical and dental benefit plans of which XXXXXX is a participant at the
time of the Effective Date. After March 20, 2001, TCSI shall provide
XXXXXX with COBRA benefits as required by law, with XXXXXX to pay the
COBRA premiums.
3. OFFICE EQUIPMENT. XXXXXX shall retain possession and ownership rights
to the office equipment listed in Exhibit A to this Agreement.
4. EMPLOYER'S OBLIGATIONS. TCSI's obligations under this Agreement shall
not commence until the eighth day after XXXXXX has executed this Agreement.
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5. EMPLOYEE OBLIGATIONS.
(A) RETURN OF PROPERTY. XXXXXX shall promptly return to TCSI all
documents and records obtained by XXXXXX in the course of, or
incident to, his employment with TCSI.
(B) CONFIDENTIAL INFORMATION. XXXXXX shall not, for the benefit of
any person or entity other than TCSI, disclose or use any
proprietary and/or trade secret information regarding TCSI's
business operations which XXXXXX obtained during his
employment with TCSI and which is not in the public domain.
(C) NON-SOLICITATION OF EMPLOYEES. XXXXXX specifically agrees that
during the term of this Agreement and for a period of one (1)
year thereafter, XXXXXX shall not, directly or indirectly,
either for himself or for any other person, firm, corporation
or other legal entity, solicit then employee of TCSI to leave
the employment of TCSI.
6. RELEASE. XXXXXX and his representatives, heirs, successors, and assigns
do hereby completely release and forever discharge TCSI, and its and their
present and former shareholders, officers, directors, agents, employees,
attorneys, successors, assigns, and affiliates (collectively, "Released
Parties") from all claims, rights, demands, actions, obligations, liabilities,
and causes of action of every kind and character, known or unknown, mature or
unmatured, which XXXXXX may have now or in the future arising from any act or
omission or condition occurring on or prior to the Effective Date (including,
without limitation, the future effects of such acts, omissions, or conditions),
whether based on tort, contract (express or implied), or any federal, state, or
local law, statute, or regulation. By way of example and not in limitation of
the foregoing, Released Claims shall include any claims arising under Title VII
of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the California Fair Employment and Housing Act,
the California Labor Code as well as any claims asserting wrongful termination,
fraud, harassment, breach of contract, breach of the covenant of good faith and
fair dealing, negligent or intentional infliction of emotional distress,
negligent or intentional misrepresentation, negligent or intentional
interference with contract or prospective economic advantage, defamation,
invasion of privacy, and claims related to disability. Released Claims shall
also include, but not be limited to, claims for severance pay, bonuses, sick
leave, vacation pay, life or health insurance, or any other fringe benefit.
Notwithstanding the foregoing, Released Claims shall not include (i) any claims
based on obligations created by or reaffirmed in this Agreement; (ii) any vested
pension rights or any workers' compensation claims (the settlement of which
would require approval by the California Workers' Compensation Appeals Board);
and (iii) any claims for short- or long-term disability insurance benefits.
7. SECTION 1542 WAIVER. The parties understand and agree that the Released
Claims include not only claims presently known to XXXXXX, but also include all
unknown or unanticipated claims, rights, demands, actions, obligations,
liabilities, and causes of action of every kind and character that would
otherwise come within the scope of the Released Claims as described in Section
6. XXXXXX understands that he may hereafter discover facts different from
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what he now believes to be true, which if known, could have materially affected
this Agreement, but he nevertheless waives any claims or rights based on
different or additional facts. XXXXXX knowingly and voluntarily waives any and
all rights or benefits that he may now have, or in the future may have, under
the terms of Section 1542 of the California Civil Code, 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.
8. AGE DISCRIMINATION CLAIMS. XXXXXX understands and agrees that, by
entering into this Agreement, (i) he is waiving any rights or claims he might
have under the Age Discrimination in Employment Act, as amended by the Older
Workers Benefit Protection Act; (ii) he has received consideration for this
release; (iii) he has been advised to consult with an attorney before signing
this Agreement; and (iv) he has been offered the opportunity to evaluate the
terms of this Agreement for not less than twenty-one (21) days prior to his
execution of the Agreement. XXXXXX may revoke this Agreement (by written notice
to TCSI) for a period of seven (7) days after his execution of the Agreement,
and it shall become enforceable only upon the expiration of this revocation
period without prior revocation by XXXXXX.
9. COVENANT NOT TO XXX. XXXXXX shall not xxx or initiate against any
Released Party any compliance review, administrative action, lawsuit or other
proceeding, or participate in the same, individually or as a member of a class,
under any contract (express or implied), or any federal, state, or local law,
statute, or regulation pertaining in any manner to the Released Claims.
10. CONFIDENTIALITY. The parties understand and agree that this Agreement
and each of its terms, and the negotiations surrounding it, are confidential and
shall not be disclosed by either party to any entity or person, for any reason,
at any time, without the prior written consent of the other party, unless
required by law or necessary to obtain advice of an attorney or an accountant.
11. NONADMISSION. The parties understand and agree that this is a
compromise settlement of potential claims and that the furnishing of the
consideration for this Agreement shall not be deemed or construed at any time or
for any purpose as an admission of liability by TCSI. The liability for any and
all claims is expressly denied by TCSI.
12. ARBITRATION. To the fullest extent permitted by law, all claims that
XXXXXX may have against TCSI or any other Released Party, or which TCSI may have
against XXXXXX, in any way related to the subject matter, interpretation,
application, or alleged breach of this Agreement ("Arbitrable Claims") shall be
resolved by arbitration. Arbitration of Arbitrable Claims shall be in accordance
with the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association, as amended, and as augmented by this
Agreement. Arbitration shall be final and binding upon the parties and shall be
the exclusive remedy for all Arbitrable Claims. Either party may bring an action
in court to compel arbitration under this Agreement and to enforce an
arbitration award. Otherwise, neither party shall initiate
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or prosecute any lawsuit or administrative action in any way related to any
Arbitrable Claim. Notwithstanding the foregoing, either party may, at its
option, seek injunctive relief pursuant to section 1281.8 of the California Code
of Civil Procedure. The California Arbitration Act shall govern the
interpretation and enforcement of this Section 13. THE PARTIES HEREBY WAIVE ANY
RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRABLE CLAIMS, INCLUDING
WITHOUT LIMITATION ANY RIGHT TO TRIAL BY JURY AS TO THE MAKING, EXISTENCE,
VALIDITY, OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE.
13. INTEGRATION. The parties understand and agree that the preceding
Sections recite the sole consideration for this Agreement; that no
representation or promise has been made by XXXXXX, TCSI, or any other Released
Party concerning the subject matter of this Agreement, except as expressly set
forth in this Agreement; and that all agreements and understandings between the
parties concerning the subject matter of this Agreement are embodied and
expressed in this Agreement. This Agreement shall supersede all prior or
contemporaneous agreements and understandings among XXXXXX, TCSI, and any other
Released Party, whether written or oral, express or implied, with respect to the
employment, termination, and benefits of XXXXXX, including without limitation,
any employment-related agreement or benefit plan, except to the extent that the
provisions of any such agreement or plan have been expressly referred to in this
Agreement as having continued effect.
14. AMENDMENTS; WAIVERS. This Agreement may not be amended except by an
instrument in writing, signed by each of the parties. No failure to exercise and
no delay in exercising any right, remedy, or power under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power under this Agreement preclude any other or further
exercise thereof, or the exercise of any other right, remedy, or power provided
herein or by law or in equity.
15. ASSIGNMENT; SUCCESSORS AND ASSIGNS. XXXXXX agrees that he will not
assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily
or involuntarily, or by operation of law, any rights or obligations under this
Agreement. Any such purported assignment, transfer, or delegation shall be null
and void. XXXXXX represents that he has not previously assigned or transferred
any claims or rights released by her pursuant to this Agreement. Subject to the
foregoing, this Agreement shall be binding upon and shall inure to the benefit
of the parties and their respective heirs, successors, attorneys, and permitted
assigns. This Agreement shall also inure to the benefit of any Released Party.
This Agreement shall not benefit any other person or entity except as
specifically enumerated in this Agreement.
16. SEVERABILITY. If any provision of this Agreement, or its application
to any person, place, or circumstance, is held by an arbitrator or a court of
competent jurisdiction to be invalid, unenforceable, or void, such provision
shall be enforced to the greatest extent permitted by law, and the remainder of
this Agreement and such provision as applied to other persons, places, and
circumstances shall remain in full force and effect.
17. ATTORNEYS' FEES. In any legal action, arbitration, or other proceeding
brought to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees and costs.
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18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
19. INTERPRETATION. This Agreement shall be construed as a whole,
according to its fair meaning, and not in favor of or against any party. By way
of example and not in limitation, this Agreement shall not be construed in favor
of the party receiving a benefit nor against the party responsible for any
particular language in this Agreement. Captions are used for reference purposes
only and should be ignored in the interpretation of the Agreement.
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I understand and agree to the terms and conditions of this Agreement.
/s/ Xxxxxx X. Xxxxxx Dated: October 25, 2000
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XXXXXX X. XXXXXX
I understand and agree to the terms and conditions of this Agreement.
TCSI Corporation
/s/ Xxxxxxx Xxxxxxxx Dated: October 25, 2000
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By: Xxxxxxx Xxxxxxxx
Its: President and CEO
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EXHIBIT A
Laptop Computer Serial # 28982230-3110732 TCSI Xxxxx # 00000
3.5" Floppy Disk Drive Serial # 195946021-1012002
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