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EXHIBIT 10.13
CONFIDENTIAL RESIGNATION AGREEMENT
AND GENERAL RELEASE OF CLAIMS
1. Xxxxx Xxxxxxx ("Employee") was employed by @xxx.xxx, Inc. (the
"Company") on or about December 21, 1995. Employee has now decided to resign
from his employment with the Company. It is the Company's desire to provide
Employee with certain benefits that he would not otherwise be entitled to
receive upon his resignation and to resolve any claims that Employee has or may
have against the Company. Accordingly, Employee and the Company agree as set
forth below. This Agreement will become effective on the eighth day after it is
signed by Employee (the "Effective Date"), provided that Employee has not
revoked this Agreement (by written notice to Xxxx Xxxxxxxx at the Company) prior
to that date.
2. Employee hereby resigns voluntarily from his employment with the
Company effective as of February 29, 2000 (the "Resignation Date").
3. The Company shall provide Employee with the following benefits when
this Agreement becomes effective:
a. During the period between the Resignation Date and August 31,
2000, (the "Consulting Period"), Employee will be retained by the Company as a
consultant on an independent contractor basis and will perform the services
described in paragraph 4; if Employee has not secured alternative employment by
August 31, 2000, this Consulting Period may be extended to November 30, 2000
(the "Extended Consulting Period") and all terms and conditions of this
Agreement will remain in effect during the Extended Consulting Period.
b. In exchange for Employee's satisfactory performance of his
duties as a consultant, the Company will continue to pay Employee's wages at his
current base pay rate during the Consulting Period (which amount will not be
subject to tax withholding in view of Employee's independent contractor status,
but will be reported to the applicable tax authorities on Form 1099);
c. In the event that Employee elects to obtain continued group
health insurance coverage in accordance with federal law (COBRA) following the
Resignation Date, the Company will reimburse Employee for the premiums for such
coverage through the earlier of August 31, 2000 or the date on which Employee
first obtains other group health insurance coverage; thereafter, Employee may
elect to purchase continued group health insurance coverage at his own expense
in accordance with COBRA; otherwise, Employee will not be entitled to any other
employee benefits, including, but not limited to vacation benefits, bonuses,
life insurance, AD&D and LTD and Employee will not be entitled to contribute
money towards the Company's Section 125 or 401(k) plans. Employee may submit
reimbursement vouchers (with the appropriate receipts and documentation) to the
Company's broker, Xxx Xxxxx Insurance Associates, Inc., for reimbursement of any
money Employee has already contributed to his Section 125 account in accordance
with the Company's Section 125 Plan guidelines. Shortly after Employee's
Resignation Date with the Company, CIGNA, the Company's 401(k) provider, will
send information directly to Employee which describes Employee's options with
regard to money Employee has already contributed to his 401(k) account.
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d. the Company agrees that it will not contest any claim for
unemployment benefits that may be filed by Employee after the Resignation Date;
and
e. the Parties agree that for purposes of determining the number
of shares of the Company's common stock which Employee is entitled to purchase
from the Company, the vesting of stock options will cease on August 31, 2000. In
accordance with the Company's Stock Option Plan, Employee shall have ninety (90)
days from the end of the Consulting Period to exercise his vested stock options
under this paragraph. The Parties agree that 163,000 shares of Common Stock of
the Company, which are subject to repurchase by the Company, shall be released
from the repurchase option of the Company (as described in the Restricted Stock
Purchase Agreement) on the date on which the Employee ceases to provide
consulting services to the Company pursuant to paragraph 3(a), and on the date
herewith the Parties shall execute an Amendment to the Restricted Stock Purchase
Agreement, in the form attached hereto as Exhibit A.
Employee acknowledges that he has been paid all wages and accrued, unused
vacation that Employee earned during his employment with the Company. Employee
understands and acknowledges that he shall not be entitled to any payments or
benefits from the Company other than those expressly set forth in this paragraph
3.
4. During the Consulting Period, Employee will (a) perform such
consulting services as may be assigned to him by Xxxx Xxxxxxxx or Xxxxx Xxxxxxxx
of the Company from time to time; (b) agree to sign Company's Nondisclosure
Agreement applicable to consultants; and (c) not perform any work or services
for, or provide any assistance to (as an employee, consultant, contractor,
partner, director or investor), any entity that is engaged in the sale
manufacture or development of any products or services that compete with any
products or services sold, manufactured or under development by the Company or
its subsidiary, XxxxxxxXxxx.xxx.
5. Employee and his successors release the Company and its subsidiary
company, XxxxxxxXxxx.xxx, and their respective shareholders, investors,
subsidiaries, affiliates, directors, officers, employees, agents, attorneys,
insurers, legal successors and assigns of and from any and all claims, actions
and causes of action, whether now known or unknown, which Employee now has, or
at any other time had, or shall or may have against the released parties based
upon or arising out of any matter, cause, fact, thing, act or omission
whatsoever occurring or existing at any time up to and including the date on
which this Agreement becomes effective, including, but not limited to, any
claims of breach of contract, wrongful termination, retaliation, fraud,
defamation, infliction of emotional distress or national origin, race, age, sex,
sexual orientation, disability or other discrimination or harassment under the
Civil Rights Act of 1964, the Age Discrimination In Employment Act of 1967, the
Americans with Disabilities Act, the Fair Employment and Housing Act or any
other applicable law.
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6. Employee acknowledges that he has read section 1542 of the Civil Code
of the State of California, which states in full:
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.
Employee waives any rights that he has or may have under section 1542 to the
full extent that he may lawfully waive such rights pertaining to this general
release of claims, and affirms that he is releasing all known and unknown claims
that he has or may have against the parties listed above.
7. Employee acknowledges and agrees that he shall continue to be bound
by and comply with the terms of any proprietary rights or confidentiality
agreements between the Company and Employee.
8. Employee agrees that he shall not directly or indirectly disclose any
of the terms of this Agreement to anyone other than his immediate family or
counsel, except as such disclosure may be required for accounting or tax
reporting purposes or as otherwise may be required by law. Employee further
agrees that he will not, at any time in the future, make any critical,
disparaging, defamatory or slanderous statements about the Company, its products
or its employees, unless such statements are made truthfully in response to a
subpoena or other legal process.
9. Employee further agrees that he will refrain from any tortious
interference with the contracts and relationships of the Company.
10. Employee agrees that in the event of his breach of paragraph 8, it
will be impractical and extremely difficult to determine the actual damages
suffered by the Company as a result of that breach. Accordingly, Employee agrees
that if he breaches paragraph 8, he shall pay the Company the sum of $25,000 as
liquidated damages.
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11. Employee agrees that for a period of two (2) years following the
Resignation Date, he will not, on behalf of himself or any other person or
entity, directly or indirectly solicit any employee of the Company or its
subsidiary, XxxxxxxXxxx.xxx, to terminate his/ her employment with the Company
or XxxxxxxXxxx.xxx.
12. In order to further protect the Company's and its subsidiary's
valuable proprietary information, Employee agrees that during the Consulting
Period and for a period of two (2) years following the Resignation Date, he will
not, as a compensated or uncompensated officer, director, consultant, advisor,
partner, joint venturer, investor, independent contractor, employee or
otherwise, provide any labor, services, advice or assistance to any direct
competitors of the Company or its subsidiary. Employee acknowledges and agrees
that the restrictions contained in the preceding sentence are reasonable and
necessary, as there is a significant risk that his provision of labor, services,
advice or assistance to any of those competitors could result in the inevitable
disclosure of the Company's or its subsidiary's proprietary information.
Employee further acknowledges and agrees that the restrictions contained in this
paragraph will not preclude him from engaging in any trade, business or
profession that he is qualified to engage in which are not in competition with
the Company or its subsidiary.
13. If any provision of this Agreement is deemed invalid, illegal or
unenforceable, such provision shall be modified so as to make it valid, legal
and enforceable, and the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected.
14. In the event of any legal action relating to or arising out of this
Agreement, the prevailing party shall be entitled to recover from the losing
party its attorneys' fees and costs incurred in that action.
15. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior negotiations,
representations and agreements, whether written or oral, with the exception of
any agreements described in paragraph 7. This Agreement may not be modified or
amended except by a document signed by an authorized officer of the Company and
Employee. This Agreement shall be governed by the laws of the State of
California.
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EMPLOYEE UNDERSTANDS THAT HE SHOULD CONSULT WITH AN ATTORNEY PRIOR TO SIGNING
THIS AGREEMENT AND THAT HE IS GIVING UP ANY LEGAL CLAIMS HE HAS AGAINST THE
PARTIES RELEASED ABOVE BY SIGNING THIS AGREEMENT. EMPLOYEE FURTHER UNDERSTANDS
THAT HE MAY HAVE UP TO 21 DAYS TO CONSIDER THIS AGREEMENT, THAT HE MAY REVOKE IT
AT ANY TIME DURING THE 7 DAYS AFTER HE SIGNS IT, AND THAT IT SHALL NOT BECOME
EFFECTIVE UNTIL THAT 7 DAY PERIOD HAS PASSED. EMPLOYEE ACKNOWLEDGES THAT HE IS
SIGNING THIS AGREEMENT KNOWINGLY, WILLINGLY AND VOLUNTARILY IN EXCHANGE FOR THE
COMPENSATION AND BENEFITS DESCRIBED IN PARAGRAPH 3.
Dated: , 2000
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Xxxxx Xxxxxxx
Dated: , 2000 By:
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@xxx.xxx, Inc.
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