EXHIBIT 10.13
SEVERANCE AGREEMENT AND RELEASE
This Severance Agreement And Release ("Agreement") is entered into as of
--------, 2000, hereinafter "execution date," by and between Xxxxxx XxXxxxx
(hereinafter "Xx. XxXxxxx"), and Xxxxxxxxxx.xxx, Inc., its successors and
assigns (hereinafter the "Company"). Xx. XxXxxxx and the Company are sometimes
referred to collectively herein as the "Parties."
1. Xx. XxXxxxx executed an Employment Agreement ("Employment Agreement")
with the Company on --------. The Company is giving notice of its decision to
terminate Xx. XxXxxxx'x employment without cause pursuant to Section 9A(4) of
the Employment Agreement. The Company is electing to pay Xx. XxXxxxx his salary
and benefits in lieu of him working the 30-day notice period under the
Employment Agreement. Xx. XxXxxxx'x employment terminates effectively May 18,
2000 ("Termination Date"), but his last day actually working will be --------,
2000. This Agreement is to effectuate the intent of Section 9F of the Employment
Agreement, wherein the Parties agreed that upon a termination without cause, Xx.
XxXxxxx would receive certain severance benefits and execute a general release
of claims. The Parties have agreed to avoid and resolve any alleged existing or
potential disagreements between them arising out of or connected with Xx.
XxXxxxx'x employment with the Company or the termination thereof. The Company
expressly disclaims any wrongdoing or any liability to Xx. XxXxxxx.
2. The Company agrees that, in addition to paying Xx. XxXxxxx'x salary,
bonuses, and benefits as if he remained a regular employee until May 18, 2000,
it will provide Xx. XxXxxxx the following severance benefits, within no less
than five calendar days after the expiration of the seven day revocation period
described in Paragraph 8 below (said revocation period hereinafter "effective
date"), provided Xx. XxXxxxx has not revoked this Agreement as described in that
Paragraph:
(a) the Company shall continue to pay Xx.XxXxxxx'x base salary, bonuses,
and health insurance benefits from May 18, 2000 until August 18, 2000, less
standard employee withholding taxes and any amounts owed by Xx. XxXxxxx to
the Company, in accordance with the Company's regular payroll practices.
Xx. XxXxxxx agrees that said payments will be mailed to his home on regular
payroll dates;
(b) Pursuant to Section 4F(9) of the Employment Agreement concerning
vesting of stock options in the event of termination without cause, and
pursuant to the Company's stock option plan, one-third (1/3) of Xx.
XxXxxxx'x 391,280 total options to purchase common shares of the Company,
which equals 130,427, will vest on May 18, 2000. These stock options expire
on September 18, 2002. The remainder of Xx. XxXxxxx'x stock options under
the Employment Agreement will not vest.
Xx. XxXxxxx specifically acknowledges and agrees that these payments exceed
the amount he would otherwise be entitled to receive upon termination of his
employment, and that these payments and other benefits are in exchange for
entering into this Agreement.
3. Xx. XxXxxxx represents that he has not filed, and will not file, any
complaints, lawsuits, administrative complaints or charges arising from or
relating to his employment with, or termination from, the Company. Xx. XxXxxxx
agrees, notwithstanding California Civil Code section 1542, to release the
Company, its Board of Directors, officers, employees, agents and assigns, from
any and all claims, charges, complaints, causes of action or demands of whatever
kind or nature that Xx. XxXxxxx now has or has ever had against the Company,
whether known or unknown, arising from or relating to Xx. XxXxxxx'x employment
with or discharge from the Company, including but not limited to: wrongful or
tortious termination, specifically including actual or constructive termination
in violation of public policy; implied or express employment contracts and/or
estoppel; discrimination and/or retaliation under any federal, state or local
statute or regulation, specifically including any claims Xx. XxXxxxx may have
under the Fair Labor Standards Act, Age Discrimination in Employment Act, the
Older Workers Benefit Protection Act, the Americans with Disabilities Act, Title
VII of the Civil Rights Act of 1964 as amended, and the Family and Medical Leave
Act; the California Family Rights Act or the California Fair Employment and
Housing Act; any claims brought under any federal or state statute or regulation
for non-payment of wages or other compensation; and libel, slander, or breach of
contract other than the breach of this Agreement. This release specifically
excludes claims, charges, complaints, causes of action or demands of whatever
kind or nature that post-date the termination date or the effective date,
whichever is later, and that are based on factual allegations that do not arise
from or relate to Xx. XxXxxxx'x present employment with or discharge from the
Company.
4. Xx. XxXxxxx acknowledges and affirms that the Employment Agreement
provisions concerning Confidential Information, Noncompetition, and Patents and
Related Matters survive his employment with the Company, and are not affected by
this Agreement. If any dispute arises concerning the Parties' obligations under
this Agreement, it will be resolved through the Arbitration provisions set forth
in Section 10 of the Employment Agreement. Xx. XxXxxxx represents that he has
returned all property belonging to the Company. Xx. XxXxxxx agrees that he will
not be reemployed by the Company, and that he will neither seek nor accept
employment with the Company at any time.
5. Xx. XxXxxxx warrants that no promise or inducement has been offered for
this Agreement other than as set forth herein and that this Agreement is
executed without reliance upon any other promises or representations, oral or
written. Any modification of this Agreement must be made in writing and be
signed by Xx. XxXxxxx and the Company.
6. The provisions of this Agreement are severable. If any part of the
Agreement is found to be unenforceable, the other provisions shall remain fully
valid and enforceable. A Court or arbitrator construing this Agreement may
utilize the Blue Pencil Doctrine in enforcing this Agreement. This Agreement is
governed by the laws of the State of California.
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7. Xx. XxXxxxx agrees that he will indemnify and hold the Company harmless
from any breach of this Agreement by Xx. XxXxxxx. Xx. XxXxxxx further agrees
that in the event of any breach of this Agreement by Xx. XxXxxxx, he will return
all monies paid to his by the Company pursuant to this Agreement.
8. Xx. XxXxxxx specifically agrees and acknowledges: (A) that his waiver of
rights under this Agreement is knowing and voluntary as required under the Older
Workers Benefit Protection Act; (B) that he understands the terms of this
Agreement; (C) that he has been advised in writing by the Company to consult
with an attorney prior to executing this Agreement; (D) that the Company has
given him a period of up to twenty-one (21) days within which to consider this
Agreement; and (E) that, following his execution of this Agreement he has seven
(7) days in which to revoke his agreement to this Agreement and that, if he
chooses not to so revoke, the Agreement shall then become effective and
enforceable and the payment and extension of benefits listed below shall then be
made to him in accordance with the terms of this Agreement. To cancel this
Agreement, Xx. XxXxxxx understands that he must give a written revocation to
Company headquarters either by hand delivery or certified mail within the
seven-day period. If he rescinds the Agreement, it will not become effective or
enforceable and he will not be entitled to any of the benefits set forth above.
9. Xx. XxXxxxx further specifically agrees that modifications to this
Agreement, whether material or immaterial, do not restart the running of the
twenty-one day period referenced in Paragraph 8.
10. XX. XXXXXXX ACKNOWLEDGES AND AGREES THAT HE HAS CAREFULLY READ AND
VOLUNTARILY SIGNED THIS AGREEMENT, THAT HE HAS HAD AN OPPORTUNITY TO CONSULT
WITH AN ATTORNEY OF HIS CHOICE, AND THAT HE SIGNS THIS AGREEMENT WITH THE INTENT
OF RELEASING THE COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM
ANY AND ALL CLAIMS.
ACCEPTED AND AGREED TO:
/s/ Xxxx XxXxxxx /s/ Xxxxxx XxXxxxx
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Xxxxxxxxxx.xxx, Inc. Xxxxxx XxXxxxx
Dated: -------------------------- Dated: -----------------------------
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