EXHIBIT 10.1
EMPLOYMENT TERMINATION AGREEMENT AND GENERAL RELEASE
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THIS EMPLOYMENT TERMINATION AGREEMENT AND GENERAL RELEASE
("Agreement") is made and entered into by and between (1) Xxxxxx X. Xxxxxxxx
("Employee") and (2) View Tech, Inc. and its parent, successor, predecessor,
affiliate and related entities ("Company").
RECITALS:
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A. Employee's employment with the Company ended due to a voluntary
resignation, effective April 17, 1998, and on that date he ceased to be an
employee of the Company.
B. Employee and the Company want to settle fully and finally all
potential differences or differences between them, including all or potential
differences or differences which arise out of or relate to Employee's employment
or separation of employment with the Company.
NOW, THEREFORE, Employee and the Company understand and agree as
follows:
FIRST: Non-Admission of Discrimination or Wrongdoing.
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(a) This Agreement shall not in any way be construed as an admission
that the Company or any individual has any liability to, or acted wrongfully in
any way with respect to, Employee or any other person. The Company specifically
denies that it has any liability to, or that it has done any wrongful or
discriminatory acts against, Employee or any other person on the part of itself,
or its officers, employees and/or agents.
(b) Employee understands and agrees that he has not suffered any
discrimination in terms, conditions or privileges of his employment based on
age, race, gender, religious creed, color, national origin, ancestry, physical
disability, mental disability, medication condition, marital status, sexual
orientation and/or sexual or racial harassment. Employee understands and agrees
that he has no claim for employment discrimination under any legal or factual
theory.
SECOND: Separation of Employment.
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Employee acknowledges that his employment with the Company ended due
to a voluntary resignation on April 17, 1998, and that such employment will not
be resumed again at any time. In addition, Employee will not apply for or
otherwise seek employment with the Company at any time in the future.
THIRD: Company Property.
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(a) Employee represents and agrees that he has turned over to the
Company all files, memoranda, records, and other documents, and any other
physical or personal property which are the property of the Company and which he
had in his possession, custody or control at the time he signed this Agreement.
(b) Xxxxxxxx represents and agrees that he will resume all
responsibilities for all payments on the lease for his company automobile and
will have the lease transferred to his name within thirty (30) days after
executing this Agreement.
FOURTH: No Lawsuits.
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(a) Employee and the Company promise never to file a lawsuit,
administrative complaint, or charge of any kind with any court, governmental or
administrative agency or arbitrator against the other or against the other's
officers, directors, agents or employees, asserting any claims that are released
in this Agreement.
(b) Employee and the Company represent and agree that, prior to
signing this Agreement, each has not filed or pursued any complaints, charges or
lawsuits of any kind with any court, governmental or administrative agency or
arbitrator against the other or against the other's officers, directors, agents
or employees, asserting any claims that are released in this Agreement.
FIFTH: Severance by the Company.
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In exchange for the promises herein, the Company and Employee will do
the following:
(a) Employee will be paid 18 months of severance at the rate of
$20,916.66 per month, payable semi-monthly commencing April 17,
1998.
(b) Employee and the Company will enter into the attached Consulting
Agreement covering the 6-month period commencing on April 17,
1998, pursuant to which Employee will provide consultation,
support and related assistance to the Company as reasonably
requested by the Company, and otherwise will fully and actively
support and assist the Company's Vice President and General
Manager (Xxxxxx X. Xxxxxxx or any successor to him), in
connection with the Company's video business and the marketing,
sale and service of the Company's video products, and pursuant to
which the Company will pay Employee a consulting fee of
$20,916.66 per month on a semi-monthly basis commencing on April
17, 1998.
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(c) Employee will use his best efforts to make himself available for
consulting services as requested by the Company. Likewise, the
Company will use its best efforts to accommodate Employee's
schedule, so that there is no interference with Employee
undertaking full-time employment (or the equivalent) elsewhere.
Any breach of the foregoing by Employee that is not cured after
five business days' notice will result in a discontinuance of the
severance, consulting and any other payments which he is entitled
to receive from the Company.
(d) Employee will not compete with the Company in its business as
conducted on April 17, 1998, and will not disparage the Company,
for the 18-month period commencing on April 17, 1998. Any breach
of the foregoing by Employee after April 17, 1998 that is not
cured after five business days' notice will result in a
discontinuance of the severance, consulting and other payments
which he is entitled to receive from the Company. The Company
similarly will not disparage Employee during such period.
(e) The Company will cause Employee to be released from all personal
guarantees and similar arrangements to which he is party and
which are maintained for the benefit of the Company.
(f) The Company will pay attorney's fees incurred by Employee in
connection with the negotiation and drafting of this Employment
Termination Agreement, up to a maximum of $2,500.00.
(g) The Company will pay Employee all accrued benefits from January
1, 1998 through April 17, 1998. Such benefits include vacation
in the amount of 8 days.
(h) The Company will provide Employee with the insurance coverage he
has been receiving for the 18-month period commencing on April
17, 1998.
(i) All outstanding vested and unvested options to purchase common
stock of the Company granted to Employee will be modified to
provide for continued vesting and exercisability for 18-months,
commencing on April 17, 1998.
(j) The Company will provide Employee with a lump sum of $3,000.00 to
be used toward an appropriate office, business equipment,
expenses and secretarial support to assist Employee in locating
other employment.
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(k) The Company shall continue to pay and provide Employee the
compensation and benefits he was receiving prior to the date of
this Agreement until the Agreement is executed by all parties.
These compensation payments shall be subtracted from the other
amounts paid to Employee for consulting services as described in
this Agreement.
(l) This Agreement shall not eliminate any existing benefits to which
Employee already is entitled either by statute or existing
Company policy, including reimbursement of unpaid business
expenses (provided they are adequately documented and reasonable)
and indemnification for conduct within the course and scope of
his employment.
(m) Employee acknowledges that the certain payments and promises
herein are not required under the Company's certain normal
policies and constitute new consideration for this Agreement.
SIXTH: Complete Mutual Release.
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(a) In exchange for the payments provided herein, Employee and the
Company knowingly and voluntarily waive and release all rights and claims, known
and unknown, which Employee and the Company may have against the other, and or
any of the other's related or affiliated entities or successors, or any of their
current or former officers, directors, managers, employees or representatives,
including any and all charges, complaints, claims, liabilities, obligations,
promises, agreements, contracts, controversies, damages, actions, causes of
action, suits, rights, demands, costs, losses, debts and expenses of any kind.
(b) This includes, but is not limited to, claims for employment
discrimination, wrongful termination, constructive termination, violation of
public policy, breach of any express or implied contract, breach of any implied
covenant, fraud, intentional or negligent misrepresentation, emotional distress,
or any other claims relating to Employee's relationship with the Company.
(c) This also includes a release of any claims under any federal,
state or local laws or regulations, including, but not limited to: (1) Title VII
of the Civil Rights Act of 1964, 42 U.S.C. (S)(S) 2000(e) et. seq. (race,
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color, religion, sex, and national origin discrimination; (2) the Age
Discrimination in Employment Act, 29 U.S.C. (S)(S) 621 et. seq. (age
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discrimination); (3) Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. (S)
1981 (race discrimination);
(4) the Equal Pay Act of 1963, 29 U.S.C. (S) 206 (equal pay) ; (5) the
California Fair Employment and Housing Act, Cal. Gov't. Code (S)(S) 12900, et.
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seq. (discrimination, including race, color, national origin, ancestry,
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disability, medical condition, marital status, sex, sexual or racial harassment
and age); (6) the California Labor Code (S)(S) 200, et. seq. (salary,
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commission, compensation, benefits and other matters); (7) the Fair Labor
Standards Act, 29 U.S.C. (S)(S) 201,
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et. seq. (wage and hour matters, including overtime pay); (8) the Consolidated
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Omnibus Budget Reconciliation Act of 1985 (COBRA), 42 U.S.C. S 1395(c)
(insurance matters); (9) Executive Order 11141 (age discrimination); (10)
Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. (S)(S) 701, et. seq.
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(disability discrimination); (11) the Employee Retirement Income Security Act of
1974, 29 U.S.C. (S) 1001, et. seq. (employee benefits); (12) Title I of the
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Americans with Disabilities Act (disability discrimination); California Labor
Code Section 132(a) (discrimination based on filing a workers' compensation
claim); and (13) any applicable California Industrial Welfare Commission Order
(wage matters).
SEVENTH: Unknown Claims.
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Employee and the Company acknowledge and agree that, as a condition of
this Agreement, each expressly releases all rights and claims that each knows
about as well as those each may not know about. Employee and the Company
expressly waive all rights under Section 1542 of the Civil Code of the State of
California, 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."
Notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release, Employee and the Company expressly
acknowledge that this Agreement is intended to include and does include in its
effect, without limitation, all claims which each does not know or suspect to
exist in their favor against the Company or others.
EIGHTH: Non-Release of Future Claims.
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This Agreement does not waive or release any rights or claims that
Employee or the Company may have which arise after the date Employee and the
Company sign this Agreement.
NINTH: Ownership of Claims.
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Employee and the Company represent and agree that each has not
assigned or transferred, or attempted to assign or transfer, to any person or
entity, any of the claims each is releasing in this Agreement.
TENTH: No Representations.
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Employee represents and agrees that no promises, statements or
inducements have
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been made to him which caused him to sign this Agreement other than those
expressly stated in this Agreement.
ELEVENTH: Confidentiality of this Agreement.
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(a) Employee agrees to keep the fact, terms and amount of this
Agreement completely confidential, and not to disclose such information to
anyone other than his spouse, attorneys and licensed tax and/or professional
investment advisor (hereafter referred to as "Employee's Confidants"), all of
whom will be informed of and be bound by this confidentiality provision. Neither
Employee nor Employee's Confidants shall disclose the fact, amount or terms of
this Agreement to anyone including, but not limited to, any representative of
any print, radio or television media, to any past, present or prospective
employee of or applicant for employment with the Company, executive recruiter or
"headhunter," to any counsel for any current or former employee of the Company,
to any other counsel or third party, or to the public at large.
(b) Any alleged violation of this confidentiality provision shall be
resolved in accordance with the arbitration provisions herein. If any proceeding
is brought concerning an alleged violation of this confidentiality provision,
the prevailing party shall recover from the losing party all reasonable
attorneys' fees and costs incurred in connection with such proceeding. The
Company shall have the burden of proving such violation by a preponderance of
the evidence. The parties understand and agree that only the Company would be
damaged by a violation of this confidentiality provision and for that reason the
arbitrator shall have no authority to award any damages, but only attorneys'
fees and costs, against the Company if it does not prevail.
TWELFTH: Trade Secrets.
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(a) Employee and the Company each desire to protect the trade secrets
of the Company that were available to Employee prior to the termination of his
employment. Employee and the Company understand and agree that this Agreement
is not intended to provide any additional rights to Employee and the Company
regarding protection of trade secrets other than those rights provided under
California law. Employee's breach of this Paragraph Twelfth shall not
constitute a breach of this Agreement or give the Company any other rights
except those already afforded to it by applicable laws. However, the Company
shall be able to enforce this section under the arbitration provisions of this
Agreement if Employee engages in conduct in violation of this Paragraph Twelfth.
(b) As provided by law, information may warrant protection as a "trade
secret" if (1) the information has independent economic value from not being
generally known to the public or to other persons who can obtain economic value
from its disclosure or use, and (2) steps that are reasonable under the
circumstances have been taken to maintain the secrecy of that information. Cal.
Civ. Code (S)3426.1(d)(1) and (2).
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(c) Employee understands and agrees that in the course of employment
with the Company he has developed or acquired certain information, some of which
may be treated as trade secrets under applicable law, concerning the Company's
past, present or future clients, operations, plans, methods of doing business,
projected and historical revenues, marketing, costs, production, growth and
distribution, and confidential business strategies. Employee understands and
agrees that it would be extremely damaging to the Company if any of its trade
secrets were disclosed to a competitor or made available to any other person,
corporation or other entity. Employee understands and agrees that, to the
extent any such information qualifies for treatment as trade secrets, he will
keep such trade secrets confidential to the extent required by applicable law
and he will not in any way use, distribute or disclose such trade secrets to the
extent required by applicable law.
(d) Employee further agrees that, to the extent prohibited by
applicable law, he will not use any trade secrets obtained during Employee's
employment at Company to solicit or participate in or assist in the solicitation
of any employees or present clients of the Company. In view of the nature of
Employee's employment and the trade secrets which Employee may have received
during the course of his employment, Employee also agrees that the Company may
be irreparably harmed by any violation or threatened violation of this Agreement
and that, therefore, the Company shall be entitled to seek an injunction
prohibiting Employee from any violation or threatened violation of this
Agreement, in addition to any other relief, including monetary damages, and the
right to arbitration, to which the Company may be entitled. The obligations
described in this paragraph shall continue in effect after the payment of the
sums described herein.
(e) In order to avoid violation of any trade secret obligations
available under California law, Employee shall have the option of contacting the
Company in writing to obtain approval or clearance to use or distribute
information which might be considered a trade secret. Within 48 hours of
receiving such a written request from Employee, the Company shall provide a
written response as to whether it considers such information to be a trade
secret as provided by California law.
THIRTEENTH: Successors.
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This Agreement shall be binding upon Employee and upon his heirs,
administrators, representatives, executors, successors and assigns, and shall
inure to the benefit of the Company and to its heirs, administrators,
representatives, executors, successors and assigns.
FOURTEENTH: Arbitration.
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(a) Any dispute regarding any aspect of this Agreement or any act
which would violate any provision in this Agreement (hereafter referred to as
"arbitrable dispute") shall be resolved by an experienced employment law
arbitrator licensed to practice law in the State of California and selected in
accordance with the rules of the American Arbitration Association, as the
exclusive remedy for such dispute. Judgment on any award rendered by such
arbitrator may be entered in any court having proper jurisdiction.
Should Employee or the Company institute any legal action or
administrative proceeding with respect to any claim waived by this Agreement or
pursue any dispute or matter covered by this paragraph by any method other than
said arbitration, the responding party shall be entitled to recover from the
other party all damages, costs, expenses and attorneys' fees incurred as a
result of such action.
FIFTEENTH: Tender of Severance Payment as a
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Condition to Challenge this Agreement.
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Should Employee attempt to challenge the enforceability of this
Agreement, as a further limitation on any right to make such a challenge,
Employee shall initially submit to the Company the total proceeds to him in
connection with this Agreement plus interest at the standard statutory rate, and
invite the Company to retain such monies and agree with Employee to cancel this
Agreement. In the event the Company accepts this offer, the Company shall
retain such monies and this Agreement shall be canceled. In the event the
Company does not accept such offer, the Company shall so notify Employee and
shall place such monies into an interest-bearing escrow account pending
resolution of the dispute between Employee and the Company as to whether or not
this Agreement shall be set aside and/or otherwise rendered unenforceable.
SIXTEENTH: Consultation With Counsel;
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Reasonable Time to
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Consider Agreement;
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Voluntary
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Participation in this
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Agreement; Right to
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Revoke.
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Employee acknowledges that he has been advised of the opportunity to
review this Agreement with an attorney, that he has had the opportunity to
thoroughly discuss all aspects of his rights and this Agreement with an attorney
to the extent Employee elected to do so, that he has carefully read and fully
understands all of the provisions of this Agreement, that he has been given a
reasonable period of up to twenty-one (21) days to consider signing this
Agreement, and that he is voluntarily signing this Agreement.
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Employee further understands that he has the right to revoke this
Agreement for a period of seven days after the date of execution, with such
revocation limited to claims under the federal Age Discrimination in Employment
Act. If employee revokes the release as to Age Discrimination in Employment Act
claims, he understands and agrees that the release remains valid as to all other
claims released herein.
SEVENTEENTH: Severability and Governing Law.
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(a) Should any of the provisions in this Agreement be declared or be
determined to be illegal or invalid, all remaining parts, terms or provisions
shall be valid, and the illegal or invalid part, term or provision shall be
deemed not to be a part of this Agreement.
(b) This Agreement is made and entered into in the State of California
and shall in all respects be interpreted, enforced and governed under the laws
of California.
EIGHTEENTH: Proper Construction.
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(a) The language of all parts of this Agreement shall in all cases be
construed as a whole according to its fair meaning, and not strictly for or
against any of the parties.
(b) As used in this Agreement, the term "or" shall be deemed to
include the term "and/or" and the singular or plural number shall be deemed to
include the other whenever the context so indicates or requires.
(c) The paragraph headings used in this Agreement are intended solely
for convenience of reference and shall not in any manner amplify, limit, modify
or otherwise be used in the interpretation of any of the provisions hereof.
NINETEENTH: Entire Agreement.
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This Agreement is the entire agreement between Employee and the
Company and fully supersedes any and all prior agreements or understandings
between the parties pertaining to its subject matter.
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PLEASE READ CAREFULLY. THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
Executed at _______________, California, this ___ day of ____________, 1998.
_______________________ (EMPLOYEE)
Xxxxxx X. Xxxxxxxx
(Payment to be made after seven (7) days, on
_______________________,
1998.)
Voluntary signature of
Xxxxxx X. Xxxxxxxx
Witnessed by:
________________________
Address: _______________
________________________
Dated: _________________
Executed at _______________, California, this ___ day of __________, 1998.
View Tech, Inc. (COMPANY)
By: ____________________
Name: _________________
Title: __________________
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