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EXHIBIT 10.18
Xxxxxxx Xxxxxxxx
President and CEO
iPass Inc.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
October 29, 1999
CONFIDENTIAL
Xxxxxx X. Xxxxxxxxx
c/o iPass Inc.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Dear Xxx:
This letter sets forth the substance of the separation agreement (the
"Agreement") that iPass Inc. (the "Company") is offering to aid you with your
employment transition.
1. SEPARATION. Your last day of employment with the Company will be
February 11, 2000 (the "Separation Date"). On the Separation Date, the Company
will pay you all accrued salary and all accrued and unused vacation earned
through the Separation Date, subject to standard payroll deductions and
withholdings. You are entitled to this payment regardless of whether you sign
this Agreement.
It is important to understand that, effective immediately, you are not
authorized to make any representations or take any actions on behalf of the
Company. Further, effective immediately your position will change to Assistant
to the Vice President and Chief Financial Officer. The roles and
responsibilities of this position will be set forth to you by the Vice President
and Chief Financial Officer.
2. SEVERANCE PAYMENT. Although the Company has no policy or procedure
requiring payment of any severance benefits, on or about February15, 2000, the
Company will pay you a single lump-sum payment equal to 3 month's current base
pay, or $51,250, subject to standard payroll deductions and withholdings.
3. HEALTH INSURANCE. To the extent provided by the federal COBRA law or,
if applicable, state insurance laws, and by the Company's current group health
insurance policies, you will be eligible to continue your group health insurance
benefits at your own expense. Later, you may be able to convert to an individual
policy through the provider of the Company's health insurance, if you wish. If
you elect continuing health care insurance coverage through COBRA, the Company
will make the payments necessary for you to continue your current health
insurance benefits for a period of three (3) months after the Separation Date.
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4. OTHER COMPENSATION OR BENEFITS. You acknowledge that, except as
expressly provided in this Agreement, you will not receive any additional
compensation, severance or benefits from the Company after the Separation Date.
You also understand and agree that the vesting of any incentive stock options
granted to you shall cease on the Separation Date. The Company makes no
representations regarding the tax treatment of your incentive stock options.
Your rights with regard to your incentive stock options will be determined in
accordance with the applicable stock option agreement(s) and related plan
document(s).
5. EXPENSE REIMBURSEMENTS. You agree to submit your final documented
expense reimbursement statement within ten (10) days of the Separation Date,
reflecting any and all business expenses you incurred through the Separation
Date for which you seek reimbursement. The Company will reimburse you for such
expenses pursuant to its regular business practice.
6. RETURN OF COMPANY PROPERTY. By the Separation Date, you agree to
return to the Company all Company documents (and all copies thereof) and other
Company property and materials in your possession or control, including but not
limited to: Company files, notes, memoranda, correspondence, lists, drawings,
records, plans and forecasts, financial information, personnel information,
customer and customer prospect information, sales and marketing information,
product development and pricing information, specifications, computer-recorded
information, tangible property, credit cards, entry cards, identification badges
and keys; and any materials of any kind which contain or embody any proprietary
or confidential information of the Company (and all reproductions thereof). You
agree that, after the Separation Date, you will neither use nor possess Company
property.
7. PROPRIETARY INFORMATION. You acknowledge your continuing obligations
under your Proprietary Information and Inventions Agreement (a copy of which is
attached hereto as Exhibit A), which include, but are not limited to: your
assignment to the Company of all right, title, and interest to any intellectual
property obtained, developed or invented by you related to the business of the
Company during your employment with the Company, and your obligation not to use
or disclose confidential or proprietary information of the Company except as
expressly authorized by the Company.
8. CONFIDENTIALITY. The provisions of this Agreement will be held in
strictest confidence by you and the Company and will not be publicized or
disclosed in any manner whatsoever; provided, however, that: (a) you may
disclose this Agreement to your immediate family; (b) the parties may disclose
this Agreement in confidence to their respective attorneys, accountants,
auditors, tax preparers, and financial advisors; (c) the Company may disclose
this Agreement as necessary to fulfill standard or legally required corporate
reporting or disclosure requirements; and (d) the parties may disclose this
Agreement insofar as such disclosure may be necessary to enforce its terms or as
otherwise required by law. In particular, and without limitation, you agree not
to disclose the terms of this Agreement to any current or former Company
employee or independent contractor.
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9. NONDISPARAGEMENT. Both you and the Company's officers and directors
agree not to disparage the other party, and the other party's officers,
directors, employees, shareholders and agents, in any manner likely to be
harmful to them or their business, business reputation or personal reputation;
provided that both you and the Company will respond accurately and fully to any
question, inquiry or request for information when required by legal process.
10. NONSOLICITATION. You agree that for one year following the Separation
Date, you will not, directly or indirectly, induce or encourage, or attempt to
induce or encourage, any employee of the Company to terminate his or her
relationship with the Company in order to become an employee, consultant, or
independent contractor to or for any other person or entity.
11. RELEASE. In exchange for the payments and other consideration under
this Agreement to which you would not otherwise be entitled, and except as
otherwise set forth in this Agreement, you release, acquit and forever discharge
the Company, its parents and subsidiaries, and their respective officers,
directors, agents, servants, employees, attorneys, shareholders, predecessors,
successors, assigns and affiliates, of and from any and all claims, liabilities,
demands, causes of action, costs, expenses, attorneys fees, damages, indemnities
and obligations of every kind and nature, in law, equity, or otherwise, known
and unknown, suspected and unsuspected, disclosed and undisclosed, arising out
of or in any way related to agreements, events, acts or conduct at any time
prior to and including the date you sign this Agreement, including but not
limited to: all such claims and demands directly or indirectly arising out of or
in any way connected with your employment with the Company or the termination of
that employment; claims or demands related to salary, bonuses, commissions,
stock, stock options, or any other ownership interests in the Company, vacation
or other time off pay, fringe benefits, expense reimbursements, severance pay,
or any other form of compensation; claims pursuant to any federal, state or
local law, statute, or cause of action including, but not limited to, the
federal Civil Rights Act of 1964, as amended; the federal Americans with
Disabilities Act of 1990; the federal Age Discrimination in Employment Act of
1967, as amended ("ADEA"); the California Fair Employment and Housing Act, as
amended; tort law; contract law; wrongful discharge; discrimination; harassment;
fraud; defamation; emotional distress; and breach of the implied covenant of
good faith and fair dealing.
12. RELEASE OF ADEA CLAIMS. You acknowledge that you are knowingly and
voluntarily waiving and releasing any rights you may have under the ADEA. You
also acknowledge that the consideration given for the waiver and release in the
preceding paragraph hereof is in addition to anything of value to which you are
already entitled. You further acknowledge that you have been hereby advised, as
required by the ADEA, that: (a) your waiver and release do not apply to any
rights or claims that may arise after the execution date of this Agreement; (b)
you should consult with an attorney prior to executing this Agreement; (c) you
have twenty-one (21) days to consider this Agreement (although you may choose to
voluntarily execute this Agreement earlier); (d) you have seven (7) days
following the execution of this Agreement by the parties to revoke the
Agreement; and (e) this Agreement will not be effective until the date upon
which the revocation period has expired, which will be the eighth day after this
Agreement is executed by you ("Effective Date").
13. SECTION 1542 WAIVER. In granting the releases herein, you acknowledge
that you have read and understand California Civil Code section 1542:
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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.
You expressly waive and relinquish all rights and benefits under that section
and any law of any jurisdiction of similar effect with respect to the release of
any unknown or unsuspected claims contained in this Agreement.
14. ADDITIONAL RELEASE. You also agree that you will execute the release
set forth as Exhibit B hereto on or about the Separation Date.
15. ARBITRATION. To provide a mechanism for rapid and economical dispute
resolution, you and the Company agree that any and all disputes, claims, or
causes of action, in law or equity, arising from or relating to this Agreement
or its enforcement, performance, breach, or interpretation, with the sole
exception of disputes that may arise from your Proprietary Information and
Inventions Agreement, will be resolved by final and binding confidential
arbitration held in San Francisco, California and conducted by Judicial
Arbitration & Mediation Services/Endispute ("JAMS"), under its then-existing
rules and procedures. Nothing in this paragraph is intended to prevent either
you or the Company from obtaining injunctive relief in court to prevent
irreparable harm pending the conclusion of any such arbitration.
16. MISCELLANEOUS. This Agreement, including exhibits, constitutes the
complete, final and exclusive embodiment of the entire agreement between you and
the Company with regard to this subject matter. It is entered into without
reliance on any promise or representation, written or oral, other than those
expressly contained herein, and it supersedes any other such promises,
warranties or representations. This Agreement may not be modified or amended
except in a writing signed by both you and a duly authorized officer of the
Company. This Agreement will bind the heirs, personal representatives,
successors and assigns of both you and the Company, and inure to the benefit of
both you and the Company, their heirs, successors and assigns. If any provision
of this Agreement is determined to be invalid or unenforceable, in whole or in
part, this determination will not affect any other provision of this Agreement
and the provision in question will be modified by the trier of fact so as to be
rendered enforceable insofar as possible consistent with the intent of the
parties. This Agreement will be construed and enforced in accordance with the
laws of the State of California as applied to contracts made and to be performed
entirely within California.
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If this Agreement is acceptable to you, please sign below and return the
signed original to me.
I wish you success in your future endeavors.
Sincerely,
IPASS INCORPORATED
By: /s/ XXXXXXX XXXXXXXX
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Xxxxxxx Xxxxxxxx, President & CEO
UNDERSTOOD AND AGREED:
/s/ XXXXXX X. XXXXXXXXX
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XXXXXX X. XXXXXXXXX
DATE: 1/24/2000
Exhibit A - Proprietary Information and Inventions Agreement
Exhibit B - Employment Release
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EXHIBIT A
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
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EXHIBIT B
EMPLOYMENT RELEASE
I hereby release, acquit and forever discharge the Company, its parents and
subsidiaries, and its officers, directors, agents, servants, employees,
attorneys, shareholders, successors, assigns and affiliates, of and from any and
all claims, liabilities, demands, causes of action, costs, expenses, attorneys
fees, damages, indemnities and obligations of every kind and nature, in law,
equity, or otherwise, known and unknown, suspected and unsuspected, disclosed
and undisclosed, arising out of or in any way related to agreements, events,
acts or conduct at any time prior to and including the execution date of this
Agreement, including but not limited to: all such claims and demands directly or
indirectly arising out of or in any way connected with my employment with the
Company or the termination of that employment; claims or demands related to
salary, bonuses, commissions, stock, stock options, or any other ownership
interests in the Company, vacation pay, fringe benefits, expense reimbursements,
severance pay, or any other form of compensation; claims pursuant to any
federal, state or local law, statute, or cause of action including, but not
limited to, the federal Civil Rights Act of 1964, as amended; the federal
Americans with Disabilities Act of 1990; the federal Age Discrimination in
Employment Act of 1967, as amended ("ADEA"); the California Fair Employment and
Housing Act, as amended; tort law; contract law; wrongful discharge;
discrimination; harassment; fraud; defamation; emotional distress; and breach of
the implied covenant of good faith and fair dealing.
I acknowledge that I am knowingly and voluntarily waiving and releasing any
rights I may have under the ADEA, as amended. I also acknowledge that the
consideration given for the waiver and release in the preceding paragraph hereof
is in addition to anything of value to which I was already entitled. I further
acknowledge that I have been advised by this writing, as required by the ADEA,
that: (a) my waiver and release do not apply to any rights or claims that may
arise after the execution date of this Agreement; (b) I have been advised hereby
that I have the right to consult with an attorney prior to executing this
Agreement; (c) I have twenty-one (21) days to consider this Agreement (although
I may choose to voluntarily execute this Agreement earlier); (d) I have seven
(7) days following the execution of this Agreement by the parties to revoke the
Agreement; and (e) this Agreement will not be effective until the date upon
which the revocation period has expired, which will be the eighth day after this
Agreement is executed by me, provided that the Company has also executed this
Agreement by that date ("Effective Date").
I UNDERSTAND THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS. In giving this release, which includes claims which may be
unknown to me at present, I acknowledge that I have read and understand 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." I hereby expressly
waive and relinquish all rights and benefits under that section and any law of
any jurisdiction of similar effect with respect to my release of any unknown or
unsuspected claims I may have against the Company.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Date:
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