EXHIBIT 10.8
October 28, 1996
Mr. Xxxxxx Xxxxxx
00 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Re: Separation Agreement
Dear Xxxxxx:
As you are aware, Oryx Technology Corp. ("Oryx" or "the Company")
determined to terminate its employment relationship with you (also referred to
as "Xxxxxx"). This letter agreement ("Agreement") summarizes the understanding
that we have reached regarding your departure as CFO (including all related
positions held by you in various subsidiaries) and the resolution of certain
claims arising out of that decision, which claims the Company expressly denies.
1. Your last day of active employment with the Company was October 14, 1996. You
have been paid for all unused accrued vacation and time worked through that
date. Upon execution of this Agreement and the expiration of the revocation
period set forth in paragraph 11, below, you will receive the following
payments:
Four months severance payments in the amount of your ordinary monthly
salary (less all applicable withholdings) at the same rate as prior to the
termination, payable in the course of the Company's ordinary payroll date(s), to
begin once the Agreement revocation period described below has ended. You will
receive six months of Company medical, dental, and life insurance benefits, paid
by the Company on the same terms, counted from your separation date of October
14, 1996. You acknowledge that these payments in this paragraph 1 are in excess
of any to which you would be entitled under Company policy.
2. You will continue to vest in Oryx stock options previously granted to you by
the Board of Directors until October 14, 1997. All such options will be
considered "statutory" options after the October 14, 1996, employment
termination date. The Company hereby extends the period of time within which the
vested options may be exercised until September 15, 1999.
3. You may continue to keep the computer and cellular telephone you have in your
possession, identified as __________________ and ______________________________,
however you acknowledge that are personally responsible for all bills or charges
incurred with respect to the use of such items. You further acknowledge and
agree to maintain the confidentiality of any Company information contained on
the computer.
4. You will make yourself available to the company for consultation on an
as-needed basis at a rate of $75.00 per hour.
5. (a) In consideration for the promises made by Oryx in this Agreement, you on
behalf of yourself, your agents, assignees, attorneys, heirs, executors, and
administrators, hereby fully and forever release and discharge Oryx and its
respective successors, assigns, parents, subsidiaries, divisions, affiliates,
officers, directors, shareholders, employees, heirs, agents and representatives,
from any and all claims (which term includes demands, actions and causes of
action) of every kind or nature whatsoever, past, present or future, arising out
of or in connection with your employment or termination of such employment with
Oryx. These claims include, but are not limited to, any claims of personal
injury and charges of employment discrimination in violation of state, federal
or local law, including, but not limited to the Americans with Disabilities Act,
Age Discrimination in Employment Act, the Older Workers' Benefit Protection Act,
and Title VII of the Civil Rights Act, and any other claims of wrongful
termination under state or federal law. Notwithstanding the foregoing, nothing
in this paragraph shall preclude you from bringing any claim in the future with
respect to your retirement benefits or for indemnification sought by you as an
officer of the Company for claims brought against you on account of your
position as an officer of Oryx under Delaware law.
(b) In consideration for the promises made by you in this Agreement,
Oryx on behalf of itself, its respective successors, assigns, parents,
subsidiaries, divisions, affiliates, officers, directors, shareholders,
employees, heirs, agents and representatives, hereby fully and forever releases
and discharges you and your agents, assignees, attorneys, heirs, executors, and
administrators from any and all claims (which term includes demands, actions and
causes of action) of every kind or nature whatsoever, past, present or future,
arising out of or in connection with your employment or termination of such
employment with Oryx, excluding those claims for intentional misconduct.
6. Except as qualified above in sub-paragraphs 5 (a) and (b), each party
respectively expressly waives all rights and remedies under Section 1542 of the
Civil Code of the State 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 its favor at the time of
executing the release, which if known by it must have
materially affected its settlement with the debtor.
Each party understands that if the facts with respect to which this Agreement is
executed are found hereafter to be different from the facts which such party now
believes to be true, each party expressly accepts and assumes the risk of such
possible differences in facts and agree that this Agreement shall be and remain
effective notwithstanding such differences in facts.
7. Each party covenants and agrees that it (he) will not ever, either
individually, or with any person or in any way, commence, aid in any way, except
as required by due legal process, prosecute or cause or permit to be commenced
or prosecuted against any of the persons released, any action or other
proceeding based upon any claim which is the subject of the Agreement.
8. Xxxxxx further understands and agrees that during the course of his
employment he executed a confidentiality and trade secret agreement and that he
has had access to proprietary or confidential information belonging to Oryx
including, but not limited to, technical data, research and development, plans
and results, sales and customer data, overall marketing and sales programs, and
financial and planning data. Xxxxxx acknowledges that his obligation to maintain
the confidentiality of such information continues after his employment with Oryx
ends, and that he will not disclose, transfer, publish or otherwise use, either
directly or indirectly, any of such information that is proprietary to Oryx and
maintained by it as confidential, for so long as such information is not in the
public domain. Xxxxxx understands that a breach of his obligations under this
Paragraph could cause the Company irreparable harm for which the Company may
seek injunctive relief. Xxxxxx further understand that if there is a violation
of this Paragraph during the period of salary continuation, all further payments
shall cease and Xxxxxx shall have no further entitlement to such payments.
9. Both Xxxxxx and Oryx agree that neither of them shall disparage the other to
any third party. In the event that the Company receives any inquiries concerning
Xxxxxx'x employment, it shall not release any information other than Xxxxxx'x
dates of employment, job title, last salary. Xxxxxx further agrees that he will
not discuss any of Oryx's personnel or business with any third party or parties
excluding that which is necessary in connection with his job search.
10. This Agreement is entered into by Oryx without any admission of liability,
but solely for the purpose of avoiding uncertainty, controversy and legal
expense.
11. By entering into this Agreement, Xxxxxx understands that he is not waiving
any rights that he may have under either the California Labor and/or
Corporations Codes with respect to indemnification for acts or omissions that
occurred within the course and scope of his employment.
12. If any withholding or income tax liability is imposed upon Xxxxxx based on
the sums provided herein, Xxxxxx understands that Xxxxxx shall be solely
responsible for paying any such determined liability from any government agency
(including any penalties and surcharges assessed against Xxxxxx), other than
those taxes that are ordinarily owed by the employer, such as FICA.
13. Xxxxxx acknowledges that he is aware that under the Older Workers' Benefit
Protection Act, he has twenty-one (21) calendar days to decide whether to enter
into this Agreement, which was originally provided to Xxxxxx on October 25,
1996. Xxxxxx further acknowledges that he is aware that under the Older Workers'
Benefit Protection Act he may revoke this Agreement within seven (7) calendar
days after it is signed. Xxxxxx further agrees that this Agreement shall not be
effective until after this revocation period has expired and that he is aware
that in the event Xxxxxx timely exercises his right of rescission he will have
no rights under this Agreement.
14. This Agreement shall inure to the benefit of and be binding on each of the
parties hereto and on their successors, heirs and assigns.
15. This Agreement shall in all respects be interpreted, enforced and governed
under the laws of the State of California.
16. The parties agree that with respect to any controversy arising out of or
relating to this Agreement, or the subject matter thereof, such controversy
shall be settled before a single arbitrator by final and binding arbitration in
San Francisco, California, in accordance with the then-existing rules (the
"Rules") of the American Arbitration Association ("AAA") and judgment upon the
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof; provided, however, that the law applicable to any
controversy shall be the law of California, regardless of its or any
jurisdiction's choice of law principles. In any such arbitration, no discovery
shall be permitted and the maximum number of hearing days shall be two (2). The
award or decision shall be rendered within fourteen (14) days after the last
hearing date. The arbitrator shall be appointed by the AAA in accordance with
the Rules. Any award made in Xxxxxx'x favor shall be limited to a recovery of
contract damages limited to foreseeable damages which are a direct consequence
of a breach of this Agreement; the arbitrator is not empowered to award
compensatory or punitive damages. The arbitrators are empowered to award to the
prevailing party or parties all expenses of said arbitration, including
reasonable attorneys' fees.
17. If any party hereto shall commence any other legal proceedings against any
other party hereto with respect to any of the terms or conditions of this
Agreement, the non-prevailing party or parties shall pay to the prevailing party
or parties all expenses of said litigation, including reasonable attorneys,
fees.
18. This Agreement contains the entire Agreement and understanding concerning
the subject matter between us and supersedes and replaces all prior
negotiations.
EACH PARTY AGREES THAT IT (HE) HAS HAD THE OPPORTUNITY TO CONSULT WITH THE
ADVISOR(S) OF ITS (HIS) CHOICE AND IS ENTERING INTO THIS AGREEMENT FREELY AND
VOLUNTARILY.
XXXXXX XXXXXX, an individual ORYX TECHNOLOGY CORP.
/s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxx ________________
(Signature)
Dated: 10/31/96 Title: CEO _______________________
Dated: 10/28/96___________________
