SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit
99.2
SEPARATION
AGREEMENT AND GENERAL RELEASE
Xxxxx X.
Xxxxxx, for himself and his heirs, successors and assigns (hereinafter
collectively referred to as “Xxxxxx”) and Aspyra, Inc., a
California corporation (the “Company”) on behalf of itself
and for the benefit of its predecessors and successors, including specifically,
but not limited to, Creative Computer Applications, Inc., its subsidiaries and
otherwise related entities, past and present officers, directors, shareholders,
executives, managers, supervisors, employees, successors and agents, hereby
agree to the following:
1. Due to a
management restructuring which resulted in the elimination of the position of
Chief Technology Officer, the Company has laid off Xxxxxx effective April 1,
2009 (the “Separation Date”).
2. On the
Separation Date Xxxxxx will be paid his base salary and all earned but unused
vacation accrued through the Separation Date, regardless of whether he executes
this Separation Agreement. Further Aspyra agrees not to contest
Xxxxxx’x application for unemployment should he elect to apply for
same.
3. Xxxxxx
represents to Aspyra that he is signing this Separation Agreement and General
Release voluntarily and with a full understanding of and agreement with its
terms for the purpose of receiving additional pay, benefits, and consideration
from Aspyra beyond that which is owed to him.
4. In
reliance on Xxxxxx’x promises, representations, and releases in this Agreement,
commencing no sooner than eight days after Aspyra’s receipt of this Separation
Agreement and General Release signed without change by Xxxxxx, and in
consideration therefor, but subject to the consulting obligations of Xxxxxx set
forth in Section 9 below, Aspyra will:
a. Provide
Xxxxxx payment of a sum equal to fifteen (15) months of base salary at the base
salary rate in effect on the Separation Date, to be made in equal monthly
installments on regular monthly payroll dates, commencing on the date closest to
the Separation Date, but no sooner than eight days after Aspyra’s receipt of
this agreement signed by Xxxxxx. Said sum will be paid in equal
installments over a period of twenty-two and one-half (22-1/2) months (48
bi-weekly pay periods) after the Separation Date (i.e. he will be
paid two-thirds (2/3) of his monthly base salary for those 22-1/2 months which
will equal 15 months of base salary). Such payments to Xxxxxx shall
be less legally required withholdings.
b. In the
event that any of the payments reflected in paragraph 4(a) is missed, Xxxxxx
will provide Aspyra with three days written notice to cure. On the
fourth day without payment or cure of said individual installment, the entirety
of the remaining debt will accelerate and become due, and payable immediately,
bearing interest at 10% annually.
c. Upon
Xxxxxx’x timely election of continuation coverage for himself and his spouse
under COBRA, Aspyra will pay the monthly COBRA for Xxxxxx and his spouse (plus
the two percent (2%) COBRA service fee) for an eighteen month period, however,
such payment of COBRA premiums shall cease for Xxxxxx and his spouse upon his
commencement of other employment which makes health insurance coverage available
to him and his spouse. Updated and revised COBRA notice consistent
with the law in effect at the execution of this agreement will be provided to
Xxxxxx under separate cover immediately after the date he signs this
agreement.
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d. The
provisions of 4.a through 4.c shall be binding on any successors in interest of
Aspyra.
e. Aspyra
will accelerate to the Separation Date the vesting of all options unvested as of
that date (i.e. 5,000 shares) under Aspyra’s 2005 Equity Incentive
Plan (the “Equity
Plan”). With such additional vesting, Xxxxxx will have a total
of 10,000 shares vested under the Equity Plan. As per the terms of
the Equity Plan, Xxxxxx will have 90 days following the Resignation Date to
exercise those options and, if he does not do so; they will terminate at that
time.
5. Xxxxxx
and Aspyra agree to waive and release all claims, known and unknown, which
either may have against the other, including specifically but not limited to on
behalf of and against Creative Computer Applications, Inc., its subsidiaries and
related entities, the past and present officers, directors, shareholders,
executives, managers, supervisors, employees, consultants, auditors, attorneys,
insurers, indemnitees, successors and agents, of Aspyra and the other
aforementioned entities (hereinafter collectively referred to as the “Aspyra Released Parties”),
arising prior to the date the parties execute this Agreement. This
release includes, without limitation, all claims relating in any way to any
aspect of Xxxxxx’x employment or job performance, compensation, or the cessation
of his employment with Aspyra, the Age Discrimination in Employment Act of 1967,
the Americans with Disabilities Act of 1990, Title VII of the Civil Rights Act
of 1964, 42 U.S.C. Section 1981, the California Fair Employment and Housing Act,
California Government Code Section 12900, et seq., the Xxxxx Civil
Rights Act, California Civil Code Section 51, all provisions of the California
Labor Code; the Employee Retirement Income Security Act, 29 U.S.C. Section 1001,
et seq., all as amended;
any other federal, state or local law, regulation or ordinance or public policy,
contract, tort or property law theory, or any other cause of action or claim
whatsoever that arose on or before the date the parties execute this
Agreement.
6. It is
further understood and agreed that as a condition of this Agreement, all rights
under Section 1542 of the Civil Code of the State of California are expressly
waived by the parties against each other. Such Section reads as
follows:
“A
general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which
if known by him or her must have materially affected his or her settlement with
the debtor.”
Notwithstanding
Section 1542, and for the purpose of implementing a full and complete release
and discharge of the Parties, each expressly acknowledges that this Separation
Agreement and General Release is intended to include and does include in its
effect, without limitation, all claims which either party does not know
or suspect to exist in his or its favor against the other at the time of
execution hereof, and that this Agreement expressly contemplates the
extinguishment of all such claims.
7. Specifically
excluded from the waiver and release by Xxxxxx are his rights under his
Indemnification Agreement effective January 30, 2006, and his statutory rights
under California Labor Code 2802. The terms of the Indemnification
Agreement will continue in full force and effect according to its terms for
claims against Xxxxxx arising out of his employment by Aspyra, its predecessors
or successors, and the parties agree that said terms are incorporated by
reference into this Agreement as if set forth in full herein.
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8. The
release in this Agreement includes, but is not limited to, claims arising under
federal, state or local law for age, race, sex or other forms of employment
discrimination and retaliation. In accordance with the Older Workers
Benefit Protection Act, Xxxxxx hereby knowingly and voluntarily waives and
releases all rights and claims, known or unknown, arising under the Age
Discrimination in Employment Act of 1967, as amended, which he might otherwise
have had against Aspyra Released Parties which have accrued up to the date of
execution hereof. Xxxxxx acknowledges that nothing herein is intended
to waive any claim based on events or actions occurring after this Agreement is
entered. Xxxxxx is hereby advised that he should consult with an
attorney before signing this Agreement, that nothing in this Agreement is
intended to waive any claim based on events or actions occurring after this
Agreement is entered, and that he has 21 days in which to consider and accept
this Agreement by signing and returning this Agreement to Aspyra’s Chief
Financial Officer. In addition, Xxxxxx has a period of seven days
following his execution of this Agreement in which he may revoke the
Agreement. If Xxxxxx does not advise Aspyra by a writing received by
the Chief Financial Officer within such seven day period of Xxxxxx’x intent to
revoke the Agreement, the Agreement will become effective and enforceable upon
the expiration of the seven days.
9. Effective
upon the Separation Date and continuing until terminated pursuant to subsection
9e (the “Consulting
Period”), the Company agrees to engage Xxxxxx as a consultant to the
Company and Xxxxxx accepts such engagement.
a. During
the Consulting Period, Xxxxxx shall provide such consulting services to the
Company as may be reasonably requested from time to time by the Company’s Chief
Executive Officer (the “Consulting
Services”). Xxxxxx shall use his best efforts, knowledge, and
experience in performing the Consulting Services.
b. In
consideration for the payments to Xxxxxx set forth in Section 4(a) hereof,
Xxxxxx shall provide an aggregate of 90 Business Days (which may or may not be
cumulative) of Consulting Services, as requested by the Company, without further
compensation plus reasonable expenses preapproved by CEO. A “Business
Day” shall be considered 8 hours or less of work performance on any single work
week day during the time period from 9AM - 5PM. No consulting
services will be expected of Xxxxxx on weekend days or outside of said business
hours.
c. For any
Consulting Services requested by the Company and performed by Xxxxxx in excess
of 90 Business Days, the Company shall pay Xxxxxx a consulting fee of $150.00
per hour, plus reasonable expenses preapproved by CEO, payable in the manner the
Company pays its other consultants. Payment of such fee shall be
conditioned upon the Company’s receipt from Xxxxxx of a written invoice, setting
forth in detail reasonably acceptable to the Company, the specific Consulting
Services provided and the number of hours performed in connection therewith by
Xxxxxx during the applicable invoice period.
x. Xxxxxx
shall have no authority to assume or to create any debt, obligation or liability
in the name or on behalf of the Company, nor shall he as a consultant make any
representations or warranties of any kind or nature with respect to the Company,
except as such debts, obligations, liabilities, representations or warranties as
may be authorized in writing in advance by the Company.
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e. The
initial 90 Business Days of Consulting Services may be terminated by mutual
agreement of the parties upon 5 days prior written notice during the period of
22-1/2 months. After the initial 90 Business Days of Consulting
Services has been met, Consulting Services may be terminated by either party
upon 5 days prior written notice.
10. Unless
otherwise required by law, Xxxxxx agrees that he will keep this Agreement
completely confidential and will not disclose to any person other than his
spouse, his tax advisors and his counsel, that (a) this Agreement exists, (b)
the amount of pay, benefits or other consideration he will receive from Aspyra
pursuant to this Agreement, or (c) any term or condition of this
Agreement. Xxxxxx further agrees that he will not disparage or talk
negatively about Aspyra, its directors, or employees to anyone, including
specifically to any of Aspyra’s former, existing, or prospective employees,
clients/customers or competitors who are known to Xxxxxx. Xxxxxx
Xxxxxx agrees he will not disparage or talk negatively about Xxxxx Xxxxxx to
anyone, including specifically past business associates of Xxxxxx’x or future
employers. The parties will cooperate in the formulation of a
mutually acceptable press release announcing Xxxxxx’x departure from
Aspyra. All statements in any public filing shall be consistent with
said press release.
11. The terms
of the Confidentiality and Invention Assignment Agreement and Business Associate
Employee Confidentiality Agreement Xxxxxx executed in favor of Creative Computer
Applications, Inc. in 1996 and 2003, respectively, will continue in full force
and effect according to their terms. Xxxxxx also agrees that those
Agreements will be equally binding on him as to Aspyra, and further to that
intention agrees that they are ‘incorporated by reference into this Agreement as
if set forth in full herein. Xxxxxx further agrees to sign and return
to Aspyra the Termination Certificate attached as Exhibit B to the
Confidentiality and Invention Assignment Agreement.
12. This
Separation Agreement and General Release shall not be construed as an admission
by Aspyra of any improper, wrongful, or unlawful actions, or any other
wrongdoing against Xxxxxx, and Aspyra specifically disclaims any liability to or
wrongful acts against Xxxxxx on the part of itself and Released
Parties.
13. No
provision of this Agreement shall be construed against any party or his/its
counsel because that party or his/its counsel drafted the provision in
question. This Agreement will be interpreted in accordance with the
laws of the State of California.
14. This
Agreement may be modified only by written agreement signed by both
parties.
15. In the
event any provision of this Agreement is void or unenforceable, the remaining
provisions shall continue in full force and effect.
16. This
Separation Agreement and General Release contains the entire agreement between
the parties regarding the subject matter hereof, and supersedes any and all
prior and contemporaneous oral and written agreements.
17. Any
controversy or claim arising out of or relating to this Agreement shall be
settled by arbitration in Los Angeles County, California in accordance with the
Rules of the American Arbitration Association, .and judgment upon the award
rendered by a single arbitrator may be entered in any court having
jurisdiction. The costs of said arbitration exclusive of the parties’
attorneys’ fees, will be borne by Aspyra.
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18. In the
event of any action for the breach of or to enforce the provisions of this
Agreement, the prevailing party shall be entitled to recover from the
unsuccessful party reasonable attorney’s fees, costs, disbursements and other
expenses in such amounts as may be awarded by a court of competent
jurisdiction.
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Aspyra,
Inc.
a
California corporation
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/s/
Xxxxx
X. Xxxxxx
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/s/
Xxxxxx Xxxxxx
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Xxxxx
X. Xxxxxx
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Xxxxxx
Xxxxxx
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President
& Chief Executive Officer
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April
1, 2009
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April 1, 2009 |
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