EXHIBIT 10.13
November 18, 1997
Xxxxxx Xxxxxx
Best Internet Communications, Inc.
000 X. Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Re: Leave of Absence
Dear Xxx:
This letter will formalize our agreement for you to take a six-month unpaid
leave of absence ("LOA") commencing Monday, December 8, 1997 through and
including June 5, 1998, the terms of which will include the following:
1. Best Internet Communications, Inc. ("Best") will for the duration of
the LOA, continue to provide full regular employee benefits per your Amended and
Restated Key Employee Agreement with Best.
2. Your Incentive Stock Options on 187,500 shares of Best Common Stock
unvested at the commencement of your LOA will continue to vest during the LOA
pursuant to Paragraph 5 of your Amended and Restated Key Employee Agreement. The
options, if not exercised within 90 days of the commencement of the LOA, will
become Non-statutory Options per the "Leaves of Absence" paragraph of your
Incentive Stock Option Agreement.
3. During the LOA you will make your best efforts successfully to
complete the principal project in which you are currently engaged for Best.
4. Except as modified by this letter agreement, your Amended and
Restated Key Employee Agreement with Best will remain in full force and effect,
including in particular the termination and "At Will" employment provisions of
paragraph 11 thereof, except for the severance provisions thereof which will be
deleted, and neither you nor
Xxxxxx Xxxxxx
November 18, 1997
Page 2
Best will be obligated in any way to recommence your employment with Best
following the conclusion of the LOA.
In consideration of the continuing benefits to you described above, you
agree to the following:
1. Settlement and Release.
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(a) You, for yourself your heirs, executors, administrators,
assigns and successors, fully and forever release and discharge Best (the
"Company"), its predecessors, successors, parents, subsidiaries, and its other
affiliated entities, and all of the current and former officers, directors,
agents, shareholders, employees or assigns of any such entities (referred to
herein collectively as the "Releasees") from any and all liabilities, claims,
demands, contracts, debts, obligations and causes of action of every nature,
kind and description, in law, equity or otherwise, whether known or unknown,
whether liquidated or unliquidated, whether absolute or contingent, which now or
hereafter do or may exist, with respect to any matter arising out of, relating
to or connected with any of the following:
(i) your employment, including employment through the LOA and
any separation from employment which might follow, the
("Separation"), with the Company or with any parent, subsidiary or
affiliate of the Company,
(ii) any termination of your employment or consulting
arrangement, with the Company or with any parent, subsidiary or
affiliate of the Company, and
(iii) any actual or promised compensation or benefit other than
provided herein that may be or that hereafter may become due or owing
to you from the Company or any parent, subsidiary or affiliate of the
Company.
(b) Furthermore, you, for yourself, your heirs, executors,
administrators, assigns and successors, covenant not to sue or otherwise
institute or cause to be instituted or in any way actively participate in or
voluntarily assist in (except at the Company's request) the prosecution of any
legal or administrative proceedings against any of the Releasees with respect to
any matter arising out of or relating to any liabilities, claims, demands,
contracts, debts, obligations and causes of action released under the preceding
sentence.
Xxxxxx Xxxxxx
November 18, 1997
Page 3
(c) You understand and agree that in consideration of the foregoing,
you are waiving any rights you may have had, now have, or in the future may
have, to pursue any and all remedies available to you in any country, state,
province or other jurisdiction in the world under any employment-related causes
of action, including without limitation:
(i) claims of wrongful discharge, defamation, emotional distress,
breach of contract, breach of the covenant of good faith and fair
dealing; and
(ii) claims under the Age Discrimination in Employment Act of
1967, as amended; Title VII of the 1964 Civil Rights Act, as amended,
the Equal Pay Act of 1963, as amended; California Labor Code Section
1197.5, as amended; the Civil Rights Act of 1866, as amended; and any
other laws and regulations relating to employment discrimination.
(d) Notwithstanding any provision herein to the contrary, this
Release shall not extend to any rights, claims or causes of action currently
unknown to you hereafter arising with respect to your rights regarding future
medical benefits arising under the Consolidated Omnibus Budget Reconciliation
Act of 1985 ("COBRA") or to any rights under this Agreement (such fights under
COBRA and this Agreement described above being referred to herein collectively
as the "Excluded Future Claims").
(e) You expressly waive any right to assert hereafter that any claims,
demands, obligations or causes of action have, through ignorance or oversight,
been omitted from the terms of this Agreement. You specifically intend to
release both your known and unknown claims, and therefore expressly waive the
provision of Section 1542 of the Civil Code of California, 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."
or of any other similar statute, law or regulation of any other jurisdiction
that may be applicable hereto.
2. Return of Company Property. You represent and warrant that, to the
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best of your knowledge and belief you have returned to the custody of the
Company all tangible property of the Company. In addition, notwithstanding that
foregoing representation and warranty, if you discover that you have retained
any tangible property of the Company, you shall promptly notify the Company
thereof and take reasonable steps in accordance with the company's instructions
to return such property to the Company.
Xxxxxx Xxxxxx
November 18, 1997
Page 4
3. Nonsolicitation of Best Employee's. You agree that you will not,
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during your LOA, any period of employment with Best and for three (3) years
thereafter, directly or indirectly, solicit or entice any Best employee for
alternative employment of any kind.
4. No Admissions. It is understood and agreed that this Agreement has
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been reached in an effort to prevent future litigation arising from known and
unknown claims and the execution of this Agreement shall not constitute or be
deemed to be an admission that any bona fide claims exist or that any party
hereto has engaged in any wrongdoing whatsoever.
5. Governing Law. This Agreement is entered into in the State of
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California and shall be construed and interpreted in accordance with the laws of
the State of California excluding its choice of law-rules,
6. Confidentiality of this Agreement. You and the Company agree that
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neither of us will, without compulsion of legal process, disclose to others the
terms of this settlement, the amounts referred to in this Agreement, the
circumstances surrounding the LOA and any discontinuance of employment which
might follow or the fact of the payment of benefits, except that you may
disclose them to an attorney, accountants or other professional advisors to whom
the disclosure is necessary to effect the purposes for which you have consulted
such professional advisors and the Company may disclose them to its attorneys,
accountants and other professional advisors and its officers and Board of
Directors.
7. Material Inducements. You understand that the covenants contained in
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this Agreement, including, without limitations, the covenant of nondisclosure,
are material inducements to the Company for the making of this settlement.
8. No Defamation. Both parties agree to refrain from any false defamation
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of the other.
9. Voluntary and Informed Acceptance. You hereby acknowledge that you
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have read and understand the foregoing Agreement and that you affix your
signature hereto voluntarily and without coercion. You further acknowledge that
you were given the opportunity by the Company to consult with an attorney of
your own choosing concerning the terms and conditions contained in this
Agreement, and that the waivers you have made herein are knowing, conscious and
with full appreciation that you are forever foreclosed from pursuing any of the
rights so waived.
10. Entire Agreement. This Agreement constitutes the entire understanding
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of the parties with respect to the subject matter hereto and supersedes any and
all prior, contemporaneous or subsequent statements, representations, agreements
or understandings, whether oral or written, between the parties with respect
hereto. This
Xxxxxx Xxxxxx
November 18, 1997
Page 5
Agreement shall inure to the benefit of the executors, administrators, heirs,
successors and assigns of the parties hereto. The terms of this Agreement may
only be modified by a written instrument signed by you and an authorized officer
of the Company.
11. Severability. If any term, clause or provision of this Agreement is
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construed to be or adjudged invalid, void or unenforceable, such term, clause or
provision will be construed as severed from this Agreement, and the remaining
terms, clauses and provisions will remain in full force and effect.
12. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which when so executed and delivered will be deemed to be
an original and all of which taken together will constitute one and the same
instrument.
13. Legal Fees and Costs. In the event of any dispute concerning the
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terms and conditions of this Agreement which is resolved only by formal dispute
resolution proceedings such as arbitration or litigation, the prevailing party
in such proceeding shall be entitled to the award of reasonable attorney fees
and costs.
14. Acknowledgment of Opportunity to Consider and Consult
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Counsel; Notice of Seven Day Rescission Period.
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(a) You hereby acknowledge that you have read and understand the
foregoing Release and that you affix your signature hereto voluntarily and
without coercion. You further acknowledge that you were given seven (7) days
within which to consider such Release, that you were advised by the Company to
consult with an attorney of your own choosing concerning the waivers continued
in such Release, that you have had the opportunity to do so and that the waivers
you have made herein are knowing, conscious and with full appreciation that you
are forever foreclosed from pursuing any of the rights so waived.
(b) YOU UNDERSTAND THAT FOR A PERIOD OF SEVEN (7) DAYS AFTER SIGNING
THIS AGREEMENT (INCLUDING THE RELEASE AT SECTION 2, ABOVE) YOU HAVE THE RIGHT TO
REVOKE IT AND THAT THIS AGREEMENT (AND SUCH RELEASE) SHALL NOT BECOME EFFECTIVE
OR ENFORCEABLE UNTIL AFTER THOSE SEVEN (7) DAYS.
If you are agreeable to the foregoing, please execute and return the copy
of this letter provided therefor and we will carry out our obligations hereunder
in complete
Xxxxxx Xxxxxx
November 18, 1997
Page 6
satisfaction of all your interest and claims in Best Internet Communications,
Inc., past, present or future.
Sincerely,
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Chairman and CEO
AGREED TO:
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
