1
EXHIBIT 10.40
SEVERANCE AGREEMENT AND RELEASE OF ALL CLAIMS
This Agreement to Change Status and Release all Claims ("Agreement") is
made between First Virtual Holdings Incorporated (EMPLOYER) and Xxxxxxx
Xxxxxxxxx (EMPLOYEE) in the complete, final, and binding settlement of all
claims and potential claims, if any, with respect to their employment
relationship. This agreement shall be effective June 14, 1998 ("Effective
Date").
Whereas, Employer has verbally informed Employee that it desires to terminate
Employee's employment as of the Effective Date, but to ask Employee to consult
thereafter.
Whereas, Employer will provide Employee with:
(i) a payment equal to three (3) months salary;
(ii) accelerated vesting of 100% of the total of options to purchase First
Virtual Common Stock held by Employee, as of the Effective Date; and
(iii) an extension of time to exercise those vested options until June 15,
1999.
The parties have agreed as follows:
All disputes, controversies, and potential disputes or causes of action or
claims arising out of, or in any way connected with, Employee's employment
relationship with Employer, whether known or unknown, suspected or unsuspected,
which the Employee and Employer, its shareholders, officers, assigns, and
agents, has or may have had against each other are settled.
1. Employee resigns as Vice President, Engineering and Operations as of the
Effective Date. The parties acknowledge that Employee is no longer a SEC
Section 16 officer as of the Effective Date.
2. Employee represents and warrants, that to the best of her knowledge and
belief that nothing stated in the Registration Statement on Form S-1 filed with
the Securities and Exchange Commission relating to Employer's initial public
stock offering or the Employer's Form 10K filed for fiscal years 1996 and 1997
or the Employer's Form 10Q filed for first, second, third or fourth quarter of
1997, or the Employer's Form 10Q filed for first quarter of 1998 ("SEC Filings")
was false or inaccurate as of the date of such SEC Filings or failed to state a
fact that when considered in light of all facts and circumstances would be
considered material.
3. Employer will pay to Employee the total amount of $6,470.51 representing
vacation pay earned and unused through June 15, 1998, net of applicable
withholdings, and a refund of moneys paid into the Employee Stock Purchase
Plan, payable on or before June 30, 1998. Employee agrees and understands that
this payment and transfer is a full satisfaction of any wages earned, but
unpaid to date and waives any right under California Labor Code Section 206.5.
4. Employer will also pay Employee an additional amount of $40,000
representing three (3) months salary, net of applicable withholdings, payable
on or before June 30, 1998.
Page 1
2
5. As of the Effective Date, subject to approval by the Company's Board of
Directors, the options to purchase Common Stock held by Employee shall be
exercisable as to the number of shares set forth below for all previously
existing Option Grants. Employer and Employee agree that as of the Effective
Date, the Employee is vested in the following options:
Vesting
Commencement
Date Type Granted Price Vested and Exercisable
--------------------------------------------------------------------------------
4/29/98 ISO $0.9375 45,000
6. The President of the Company Xxxxx X. Xxxxxxxx is the only person
currently employed by Employer authorized to provide a reference concerning
Employee. Employer may at its discretion provide the reference only after
receiving an authorized consent or request signed by Employee identifying the
authorized inquirer.
7. The events leading to this Agreement and Release, the fact of the
Agreement and Release, and the terms and conditions of the Agreement and
Release are and shall be maintained in privacy and confidence. Both parties
agree that this confidentiality is a material term of the Agreement and
Release. Without waiving their agreement concerning confidentiality, the
parties agree that the information regarding the monetary terms of this
settlement may be disclosed to any state or federal taxing authority and in
filing; with the Securities and Exchange Commission as required by law. Such
disclosure shall not be deemed a breach of this Agreement. Nothing in this
paragraph is intended to restrict Employee from communicating with prospective
employers and job referral sources about Employee's job experience at First
Virtual, the nature and extent of job responsibilities, level of performance,
the dates of employment, and the fact that Employee's termination resulted from
a reorganization of Employer and that this termination was not performance
related. Both Employee and Employer agree that they will do nothing to
disparage the other in any communications after the date of this Agreement.
8. Each party acknowledges complete satisfaction of, and does hereby forever
release, absolve, and discharge the other including but not limited to its
parent corporation(s), subsidiaries, shareholders, officers, trustees,
employees, past and present, successors, predecessors, assigns, agents,
attorneys, and representatives from any and all causes of action judgments,
liens indebtedness, damages, claims, liabilities, and demands, and causes of
action of whatever kind or nature (except for Employee's right to unemployment
insurance should Employee fail to obtain re-employment after the termination of
this agreement,) whether known or unknown, suspected or unsuspected, which the
parties now have or hold, or at any time has or held against the other its
parent corporation(s), subsidiaries, shareholders, officer, trustees,
employees, past and present, successors, predecessors, assigns and agents
including, but not limited to, any and all claims, under federal, state or
local laws prohibiting discrimination in employment (including but not limited
to the Age Discrimination in Employment Act of 1967), wrongful termination,
breach of contract, breach of public policy, or any other claims. This release
expressly waives any and all claims each party may presently have against the
other regardless of the nature, source, or basis for
Page 2
3
any such claim. Employee agrees and promises not to file any lawsuit or other
action asserting any such claims.
8.1 Without expanding or modifying same, Employee acknowledges its continuing
obligations under its letter provided Employee, dated October 9, 1996 about
certain rights of indemnification.
8.2 Employee represents and warrants that she has either destroyed or
delivered to Employer all documents and information in any media either
provided Employee by Employer or developed by Employee during her employment.
Employee acknowledges and reaffirms her obligations under the Employee
Confidentiality and Invention Assignment Agreement dated June 16, 1997, which
shall be considered a part of this Agreement.
9. The Parties may in the future discover facts different from or in
addition to those which are the subject of this Agreement, and agree that this
Agreement shall remain in effect in all respects, notwithstanding the
discovery or existence of different or additional facts. It is the intent of
the Parties to completely, finally, irrevocably, and forever release, forgive,
remise, acquit, and discharge the matters as provided herein; and in
furtherance of this intention, this Agreement shall remain in effect as a
complete and final release, forgiveness, and discharge of those matters,
notwithstanding the discovery or existence of different or additional facts
relevant to those matters. Therefore, the Parties waive all rights and benefits
which they may now have or in the future may have under and by virtue of the
terms of Section 1542 of the California Civil Code, which reads 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.
10. Employee and Employer each acknowledge that they have carefully read and
understand the contents of this Agreement and that this Agreement constitutes
the entire agreement and understanding of the parties. The parties further
agree that the terms of this Agreement are contractual and that both parties,
their heirs, successors, and assigns are bound by it, and that any dispute as
to its terms or its interpretation is governed by laws of the state of
California excluding its conflict of laws doctrine. Should any court of law
find any term or clause invalid under the prevailing law, then that term or
clause only shall be omitted from enforcement, all other terms and conditions
remaining enforceable.
11. Employee acknowledges complete satisfaction of, and does hereby forever
release, absolve, and discharge Employer, including but not limited to its
parent corporation(s), subsidiaries, shareholders, officers, trustees,
employees, past and present, successors, predecessors, assigns, agents,
attorneys, and representatives from any and all causes of action related to the
Age Discrimination in Employment Act (ADEA). Employee understands:
* That Employee has at least 45 days to review and execute this
release and to review information provided by the Company regarding all
employment terminations occurring on or around the same time as the
termination of Employee's employment; and
* That Employee will have 7 days after executing this release to
revoke the release; and,
Page 3
4
* That Employee is advised to consult with an attorney before executing
this release; and;
* Any revocation shall be in writing and shall be delivered to the
President by the close of business on the seventh (7th) business day from
the date Employee signs this agreement.
12. This is the complete integration of the agreement between the Parties and
supersedes any oral, written, or other representation made prior to or
simultaneous to the execution of this Agreement. If any of the provisions of
this Agreement are found by a court or other authority of competent jurisdiction
to be unenforceable, than that provision(s) shall be stricken from this
Agreement and the remaining provisions will continue in full force and effect.
/s/ XXXXXXX XXXXXXXXX
-----------------------------------
Xxxxxxx Xxxxxxxxx
Date: 6/18/98
First Virtual Holdings Incorporated
/s/ XXXXX X. XXXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxxx
Its President
Date: 6/18/98
Page 4
