SEPARATION AGREEMENT AND GENERAL RELEASE
SEPARATION
AGREEMENT AND GENERAL RELEASE
Xxxxx
(Skip) Xxxxx, for himself and his heirs, successors and assigns (hereinafter
collectively referred to as “Xxxxx”) 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
Vice President Strategic Analysis, the Company has laid off Xxxxx effective
November 13, 2009 (the “Separation Date”).
2. On the
Separation Date Xxxxx 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 Xxxxx
application for unemployment should he elect to apply for same.
3. Xxxxx
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 Xxxxx 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 Xxxxx, and in
consideration therefor, but subject to the consulting obligations of Xxxxx set
forth in Section 9 below, Aspyra will:
a. Provide
Xxxxx payment of a sum equal to twelve (12) 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 Xxxxx. Said sum will be paid in equal
installments over a period of eighteen (18) months (36 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 18 months which will equal 12 months of base
salary). Such payments to Xxxxx shall be less legally required
withholdings.
b. In the
event that any of the payments reflected in paragraph 4(a) is missed, Xxxxx 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
Xxxxx timely election of continuation coverage for himself and his spouse under
COBRA, Aspyra will pay the monthly COBRA for Xxxxx 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 Xxxxx 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
Xxxxx 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. 10,000 shares) under Aspyra’s 2005 Equity Incentive
Plan (the “Equity
Plan”). With such additional vesting, Xxxxx will have a total
of 10,000 shares vested under the Equity Plan. As per the terms of
the Equity Plan, Xxxxx 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. Xxxxx 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 Xxxxx 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.
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7. Specifically
excluded from the waiver and release by Xxxxx 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 Xxxxx 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.
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, Xxxxx 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. Xxxxx acknowledges that nothing herein is intended
to waive any claim based on events or actions occurring after this Agreement is
entered. Xxxxx 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, Xxxxx has a period of seven days
following his execution of this Agreement in which he may revoke the
Agreement. If Xxxxx does not advise Aspyra by a writing received by
the Chief Financial Officer within such seven day period of Xxxxx intent to
revoke the Agreement, the Agreement will become effective and enforceable upon
the expiration of the seven days.
9. Unless
otherwise required by law, Xxxxx 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. Xxxxx 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 Xxxxx. Xxxxxx
Xxxxxx agrees he will not disparage or talk negatively about Xxxxx to anyone,
including specifically past business associates of Xxxxx or future
employers. The parties will cooperate in the formulation of a
mutually acceptable press release announcing Xxxxx departure from
Aspyra. All statements in any public filing shall be consistent with
said press release.
10. The
terms of the Confidentiality and Invention Assignment Agreement and Business
Associate Employee Confidentiality Agreement Xxxxx executed in favor of Creative
Computer Applications, Inc. in 7/8/96 and 3/23/03, respectively, will continue
in full force and effect according to their terms. Xxxxx 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. Xxxxx further agrees to
sign and return to Aspyra the Termination Certificate attached as Exhibit B to
the Confidentiality and Invention Assignment Agreement.
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11. 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 Xxxxx, and Aspyra specifically disclaims any liability to or
wrongful acts against Xxxxx on the part of itself and Released
Parties.
12. 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.
13. This
Agreement may be modified only by written agreement signed by both
parties.
14. In
the event any provision of this Agreement is void or unenforceable, the
remaining provisions shall continue in full force and effect.
15. 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.
16. 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.
17. 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 Xxxxx
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By:
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/s/
Xxxxxx Xxxxxx
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Xxxxx
(Skip) Xxxxx
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Xxxxxx
Xxxxxx
President
& Chief Executive Officer
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Dated:
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October
27, 2009
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Dated:
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October
27, 2009
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