Exhibit 10.22
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SEPARATION AND RELEASE AGREEMENT
This SEPARATION AND RELEASE AGREEMENT (the "Agreement") is made and
entered into by and between EVOKE COMMUNICATIONS, INC. ("Evoke" or "the
Company") and Xxx XxXxxx ("Xx. XxXxxx") (collectively "parties") as of the
Execution Date of this Agreement defined in Paragraph 27 below.
I. RECITALS
WHEREAS, effective as of December 31, 2000 Xx. XxXxxx will tender his
voluntary resignation from his position as Chief Operating Officer of Evoke and
any and all other positions he may have held with Evoke including, but not
limited to, his position as a member of the Board of Directors; and
WHEREAS, the parties wish to make the separation amicable but
conclusive on the terms and conditions set forth herein; and
WHEREAS, Xx. XxXxxx accepts the benefits of this Separation and Release
Agreement with the acknowledgment that by its terms he has been fully and
satisfactorily compensated; and
WHEREAS, the parties agree that this Separation and Release Agreement
supercedes, replaces and extinguishes any and all other rights and obligations
between the parties related to Xx. XxXxxx'x employment at Evoke, including but
not limited to, any rights and obligations contained in the Personal Services
Agreement entered into by Xx. XxXxxx with Evoke on November 18, 1999.
II. COVENANTS
THEREFORE, in consideration of the Recitals set forth above which are
incorporated herein by reference and of the mutual promises and covenants
contained in this Separation and Release Agreement, it is hereby agreed by and
between the parties hereto as follows:
1. Resignation. Effective as of December 31, 2000 ("Separation Date"),
Xx. XxXxxx'x employment with Evoke as Chief Operating Officer and any and all
other positions he may have held with Evoke, including but not limited to, his
position as a member of the Board of Directors shall cease.
2. Accrued Compensation. Evoke will compensate Xx. XxXxxx for all
accrued compensation and vacation as of the Separation Date. As of the date
hereof, Xx. XxXxxx has 40 days of accrued and unused vacation; and such amount
shall be adjusted by vacation days used or accrued through the Separation Date.
Xx. XxXxxx is entitled to these payments whether or not he signs this Separation
and Release Agreement.
3. Consideration. Although Evoke has no policy or procedure requiring
payment of any severance benefits in case of voluntary resignation, Evoke agrees
to the following as part of this Separation and Release Agreement.
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(a) Severance Benefits. Evoke will make severance payments to
Xx. XxXxxx in the form of continuation of his Base Salary in effect on the
Separation Date for a period of eighteen (18) months commencing on the first
business day following the Separation Date ("Severance Period"). These payments
will be made on Evoke's ordinary payroll dates, and will be subject to standard
payroll deductions and withholding. All payments made during the Severance
Period are expressly conditioned on Xx. XxXxxx'x compliance with his obligations
under the Separation and Release Agreement, including but not limited to,
Paragraphs 10 and 11 of the Separation and Release Agreement.
(b) Bonus Payment. Evoke shall pay to Xx. XxXxxx the earned
component of his year 2000 bonus. As of the date hereof, the Company represents
that Xx. XxXxxx has earned 90% of his year 2000 bonus (i.e. $193,500) and
acknowledges that Xx. XxXxxx shall retain the opportunity to achieve the
remaining 10% (i.e. $21,500) of his bonus. Payment of both the $193,500 earned
component of the bonus and any amounts that may be awarded for the unearned
component of the bonus, shall be made no earlier than January 1, 2001 and no
later than January 31, 2001. The determination of unearned component of Xx.
Xxxxxx'x 2000 year bonus shall be made at the sole discretion of the
Compensation Committee based on the current Company practice for bonus
determinations.
(c) Health Insurance. To the extent permitted by federal COBRA
law, Xx. XxXxxx will be eligible to continue health insurance benefits and,
later, to convert to an individual policy. Evoke will provide Xx. XxXxxx a COBRA
notification form setting forth his rights and responsibilities with regard to
COBRA coverage. Should Xx. XxXxxx timely elect to continue coverage pursuant to
COBRA, Evoke agrees to pay his COBRA premiums for eighteen (18) months
commencing on the Separation Date in order for Xx. XxXxxx to maintain health
insurance that is substantially equivalent to his coverage immediately prior to
the Separation Date ("COBRA Reimbursement Period"), or at Xx. XxXxxx'x election,
Evoke will directly reimburse Xx. XxXxxx for such premiums. In any event, and
not withstanding any provision to the contrary in this Paragraph, Evoke shall
have no obligation to make any payments for COBRA premiums paid for health
insurance coverage beyond the expiration of the COBRA Reimbursement Period.
Evoke shall make payments pursuant to this section within 15 days of Xx.
XxXxxx'x provision of proper documentation of the expense.
(d) Life Insurance. During the Severance Period, Evoke will
reimburse Xx. XxXxxx for the premium costs associated with obtaining and
maintaining a two million dollar personal life insurance policy for Xx. XxXxxx
which policy names his spouse as beneficiary of the proceeds (or such other
person or persons identified by Xx. XxXxxx in his sole discretion) at a maximum
reimbursement rate of $1,400 per annum. The obligations contained in Paragraph
3(d) shall terminate at the conclusion of the Severance Period. Evoke shall make
payments pursuant to this section within 15 days of Xx. XxXxxx'x provision of
proper documentation of the expense.
(e) Stock Options. On November 18, 1999 Xx. XxXxxx was granted
a non-statutory stock option to purchase 133,333 shares of the Company's Common
Stock (the "1999 Option") pursuant to the Company's 1997 Stock Option/Stock
Issuance Plan ("Plan"). As of the Separation Date, 36,111 shares of the 1999
Option will have vested. In consideration for the covenants, promises and
agreements contained in this Separation and Release Agreement
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including, but not limited to, the covenants contained in Paragraphs 10 and 11,
Evoke shall continue to allow the 1999 Option to vest monthly during the
Severance Period, and the period for exercise of such Option shall be extended
so that it shall remain exercisable for three years from the Separation Date.
On August 17, 2000, Xx. XxXxxx was granted a non-statutory stock option
to purchase 33,333 shares of Company Common Stock (the "2000 Option"). As of the
Separation Date, no shares of the 2000 Option will have vested. As of the
Separation Date, vesting in the 2000 Option shall cease and all unvested shares
shall revert to the Company.
(f) Business Support. For a period of three (3) months from the
Separation Date, Evoke shall, upon presentation of valid receipts, reimburse Xx.
XxXxxx for expenses associated with his procurement and maintenance of office
space for up to a maximum amount of $1,000 per month and, at Xx. XxXxxx'x
election and discretion, either (a) provide administrative support for Xx.
XxXxxx, or (b) upon presentation of valid documentation, reimburse Xx. XxXxxx
for his expenses in procuring administrative support at the current prevailing
wage at Evoke for an administrative assistant. In addition, Evoke will agree to
support and maintain the internet address and Microsoft exchange server Outlook
email support of xxxxxx.xxx during the Severance Period. Evoke shall make
payments pursuant to this section within 15 days of Xx. XxXxxx'x provision of
proper documentation of the expense.
4. Other Compensation. Except as expressly provided herein, including
but not limited to Xx. XxXxxx'x potential receipt of the unearned portion of his
Bonus and his salary through the Separation Date, Xx. XxXxxx acknowledges and
agrees that he will not receive (nor is he entitled to receive) any additional
consideration, payments, reimbursements, stock or benefits of any kind.
5. Business Expense Reimbursement. Evoke agrees to reimburse Xx. XxXxxx
for those reasonable business expenses he necessarily incurred in his capacity
as an Evoke employee as of the Separation Date consistent with Evoke's policies
in this regard. Xx. XxXxxx acknowledges and agrees that unless expressly
referenced herein, Evoke will not reimburse him for any expenses he incurs after
the Separation Date. Xx. XxXxxx must submit the necessary documentation
establishing the amount, date and reason for expenses he incurred and for which
he seeks reimbursement no later than 15 days after the Separation Date. The
Compensation Committee shall review and evaluate any such expense to determine
whether such business expense will be reimbursed.
6. Non-Interference. Xx. XxXxxx agrees that he will not discuss any
confidential aspect of Evoke's business or affairs with any employee,
stockholder, customer, vendor, strategic partner of Evoke or other third party,
except as may be requested by Evoke from time to time, as may be otherwise
agreed to by Evoke, or as he is legally entitled to as a shareholder of Evoke.
7. Nondisparagement. Each of Evoke and Xx. XxXxxx agree to not, at any
time, disparage the other party to third parties in any manner likely to be
harmfulto the other party's business or personal reputation, or the personal or
business reputation of Evoke's directors, shareholders and/or employees.
Notwithstanding the prohibition in the preceding sentence, each
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party shall respond accurately and fully to any question, inquiry, or request
for information when required by legal process. Each party acknowledges and
agrees that this paragraph 7 is a material consideration to the other party's
entering into this Separation and Release Agreement and that breach of this
paragraph 7 constitutes a material breach of the Separation and Release
Agreement.
8. Cooperation In Pending Work. For two (2) months after the
Separation Date, Xx. XxXxxx agrees to fully cooperate with Evoke in all matters
relating to the winding up of pending work on behalf of Evoke and the orderly
transfer of work to other employees of Evoke following Xx. XxXxxx'x resignation.
During the Severance Period, Xx. XxXxxx shall also cooperate in the resolution
of any dispute, including litigation of any action, involving Evoke that relates
in any way to Xx. XxXxxx'x activities while employed by Evoke. Evoke shall pay
Xx. XxXxxx'x reasonable out-of-pocket expenses incurred in connection with his
services in this regard. In the event, Xx. XxXxxx'x services provided to the
Company under this Section 8 exceed forty (40) hours, the Company shall pay Xx.
XxXxxx for his services at a rate equivalent to his hourly base salary rate.
9. Evoke Property. Except as expressly identified herein as items to
be retained by Xx. XxXxxx ("Retained Property"), Xx. XxXxxx agrees to return to
Evoke all Evoke documents (and all copies thereof) and any and all other Evoke
property in Xx. XxXxxx'x possession, custody or control, including, but not
limited to, financial information, customer information, customer lists,
employee lists, Evoke files, notes, cellular telephones, personal computers,
contracts, drawings, records, business plans and forecasts, financial
information, specifications, computer-recorded information, software, tangible
property, credit cards, entry cards, identification badges and keys, and any
materials of any kind which contain or embody any proprietary or confidential
material of Evoke (and all reproductions thereof) (the "Evoke Property"). For
purposes of this Separation and Release Agreement, the Retained Property is
identified as the following items: Xx. XxXxxx'x IBM ThinkPad laptop computers
Tag #00683 and Tag #00355; current Dell Precision desktop computer Tag # 02173;
current NEC Multisync flat panel monitor Tag # 01957; HP LaserJet 4000 printer
Tag #00435; all PDA's and other computer enhancements such as JBL Media 3
speakers; Polycom speakerphone Tag #00680; his office chair and standing table,
home office printer Tag #02263 and LAN equipment and Microsoft Office Software
License(s) associated with the computers referenced above (but only to the
extent legally transferable by the Company to an individual not affiliated with
the Company) and the bookshelves and printer stand currently in Xx. XxXxxx'x.
Xx. XxXxxx acknowledges and agrees that Evoke shall have the right and
opportunity to sterilize the Retained Property of any such Evoke Property prior
to the Separation Date, and Xx. XxXxxx shall cooperate and permit Evoke to
accomplish these efforts. Evoke may cause to be issued to Xx. XxXxxx an IRS Form
1099 reflecting the depreciated book value of the Retained Property.
10. Non-Competition. Xx. XxXxxx acknowledges and agrees that during his
employment with Evoke, he had access to confidential and proprietary business
and technological information belonging to Evoke. As a condition to receiving
the severance payments contained in this Separation and Release Agreement, and
in order to protect the confidential information and customer relationships to
which Xx. XxXxxx had access, and to
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protect the good will and other business interests of Evoke, Xx. XxXxxx agrees
to the following provisions:
(a) Xx. XxXxxx covenants and agrees with Evoke that for a period
of eighteen (18) months from the Separation Date, Xx. XxXxxx will not engage or
participate, directly or indirectly, as principal, agent, employee, employer,
consultant, advisor, sole proprietor, stockholder, partner, independent
contractor, trustee, joint venturer or in any other individual or representative
capacity whatever, in the conduct or management of, or own any stock or other
proprietary interest in, or debt of, any business organization, person, firm,
partnership, association, corporation, enterprise or other entity that shall be
engaged in any business (whether in operation or in the planning, research or
development stage) that is a Competitive Business anywhere in the Restricted
Territory, unless Xx. XxXxxx shall obtain the prior written consent of the
Board, given in its sole discretion, which consent shall make express reference
to this Separation and Release Agreement. Notwithstanding the foregoing, Xx.
XxXxxx may make passive investments in any company whose stock is listed on a
national securities exchange or traded in the over-the-counter market so long as
he does not come to own, directly or indirectly, more than five percent (5%) of
the equity securities of such company. For purposes of this Separation and
Release Agreement, a business shall be considered a "Competitive Business" if it
involves or relates to (i) any business in which Evoke is actively engaged on
the date of termination or any business in which during the twelve (12) months
immediately preceding the date of termination Evoke actively contemplated
engaging (as evidenced by inclusion in a written business plan or proposal) or
(ii) any business in which an Affiliate is actively engaged on the date of
termination or any business in which during the twelve (12) months immediately
preceding the date of termination an Affiliate actively contemplated engaging
(as evidenced by inclusion in a written business plan or proposal). The term
"Restricted Territory" shall mean each and every county, province, state, city
or other political subdivision of the United States.
(b) During the period of eighteen (18) months from the Separation
Date, Xx. XxXxxx shall not engage in any of the following conduct:
(i) Hire, attempt to hire or assist any other person or
entity in hiring or attempting to hire any current employee of
Evoke or any person who was a Evoke employee within the three (3)
month period prior to the termination of Xx. XxXxxx'x employment;
provided, however that this prohibition on solicitation of Evoke's
employees shall not apply to the person acting as Xx. XxXxxx'x
current executive assistant, Xxxxx Wypyzyk, as of the date of
termination of Xx. XxXxxx'x employment;
(ii) Solicit, divert, or take away, in competition with
Evoke, the business or patronage of any current Evoke customer.
Notwithstanding the foregoing, this restriction shall not apply to
any person or entity who is no longer a customer at the time of any
such solicitation by Xx. XxXxxx.
(c) Xx. XxXxxx agrees that if he acts in violation of Paragraph
10 or Paragraph 11 of this Separation and Release Agreement, the number of days
that such violation exists will be added to any period of limitations on the
specific activities.
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(d) The covenants contained in Paragraph 10(a) shall be construed
as a series of separate covenants, one for each county, province, state, city or
other political subdivision of the Restricted Territory. Except for geographic
coverage, each such separate covenant shall be deemed identical in terms to the
covenant contained in Paragraph 10(a). If, in any judicial proceeding, a court
refuses to enforce any of such separate covenants (or any part thereof), then
such unenforceable covenant (or such part) shall be eliminated from this
Separation and Release Agreement to the extent necessary to permit the remaining
separate covenants (or portions thereof) to be enforced. In the event that the
provisions of this Paragraph 10 are deemed to exceed the time, geographic or
scope limitations permitted by applicable law, then such provisions shall be
reformed to the maximum time, geographic or scope limitations, as the case may
be, permitted by applicable laws.
(e) Without limitation of any of the provisions of this Paragraph
10, any payments to be made to Xx. XxXxxx during the Severance Period shall be
deemed to secure his agreements set forth in this Paragraph 10 and such payments
may be terminated by the Evoke if Xx. XxXxxx fails to observe the agreements set
forth in this Paragraph 10 and fails to cure such failure within ten (10) days
of receipt of written notice of such failure.
(f) Xx. XxXxxx (i) acknowledges that his skills and experience
are such that he can anticipate finding employment at a senior level in his
profession, and (ii) represents and agrees that the restrictions imposed by this
Paragraph 10 on engaging in competitive business activities are necessary for
the protection of the legitimate interests and competitive position of Evoke and
do not impose undue hardships on him.
11. Confidentiality.
(a) Confidential Information. Xx. XxXxxx acknowledges that he has
had access to certain information related to the business, operations, future
plans and customers of Evoke, the disclosure or use of which could cause Evoke
substantial losses and damages. Accordingly, Xx. XxXxxx covenants that he will
keep confidential all information and documents furnished to him by or on behalf
of Evoke and not use the same to his advantage, except to the extent such
information or documents are lawfully obtained from other sources on a non-
confidential (as to Evoke) basis or are in public domain through no fault on his
part or is consented to in writing by Evoke.
(b) Innovations, Patents, and Copyrights. Xx. XxXxxx agrees to
promptly disclose, in writing, all Innovations to Evoke. Xx. XxXxxx further
agrees to provide all assistance requested by Evoke, at its expense, in the
preservation of its interests in any Innovations, and hereby assigns and agrees
to assign to Evoke all rights, title and interest in and to all worldwide
patents, patent applications, copyrights, trade secrets and other intellectual
property rights or "Moral Rights" in any Innovation.
"Innovations" shall mean all developments, improvements, designs,
original works of authorship, formulas, processes, software programs, databases,
and trade secrets, whether or not patentable, copyrightable or protectable as
trade secrets, that Xx. XxXxxx by himself or jointly with others, created,
modified, developed, or implemented during the period of
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Xx. XxXxxx'x employment which relate in any way to Evoke's business. The term
Innovations shall not include Innovations developed entirely on Xx. XxXxxx'x own
time without using Evoke's equipment, supplies, facilities or Confidential
Information, and which neither relate to Evoke's business, nor result from any
work performed by or for Evoke.
12. Right to Injunctive Relief. Xx. XxXxxx agrees and acknowledges that
a violation of the covenants contained in Paragraphs 10 and 11 of this
Separation and Release Agreement will cause irreparable damage to Evoke, and
that it is and may be impossible to estimate or determine the damage that will
be suffered by Evoke in the event of a breach by Xx. XxXxxx of any such
covenant. Therefore, Xx. XxXxxx further agrees that in the event of any
violation or threatened violation of such covenants, Evoke shall be entitled as
a matter of course to an injunction out of any court of competent jurisdiction
restraining such violation or threatened violation by Xx. XxXxxx. Such right to
an injunction to be cumulative and in addition to whatever other remedies Evoke
may have.
13. Lock-Up Agreement. Without the prior written consent of Evoke, Xx.
XxXxxx, until the shares are released from the restrictions and rights in
clauses (i) and (ii) as set forth below:
(i) agrees not to (x) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or
indirectly, any shares of common stock of the Company (the "Common
Stock") or any securities convertible into or exercisable or
exchangeable for Common Stock (including, without limitation,
shares of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock which may be deemed to
be beneficially owned by Xx. XxXxxx in accordance with the rules
and regulations of the Securities and Exchange Commission)
(collectively, "Company Securities") or (y) enter into any swap or
other arrangement that transfers all or a portion of the economic
consequences associated with the ownership of any Company
Securities (regardless of whether any of the transactions described
in clause (x) or (y) is to be settled by the delivery of Company
Securities, in cash or otherwise); and
(ii) authorizes the Company to cause the transfer agent to
decline to transfer and/or to note stop transfer restrictions on
the transfer books and records of the Company with respect to any
Company Securities for which Xx. XxXxxx is the record holder and,
in the case of any such shares or securities for which Xx. XxXxxx
is the beneficial but not the record holder, agrees to cause the
record holder to cause the transfer agent to decline to transfer
and/or to note stop transfer restrictions on such books and records
with respect to such shares or securities;
provided further, that the restrictions and rights in clause (i) and (ii) above
shall cease to apply to one ninth (1/9th) of the Company Securities beneficially
owned by Xx. XxXxxx on January 22, 2001 and, thereafter, one ninth (1/9th) of
the Company Securities shall be released from the restrictions in clause (i) on
a monthly basis measured from January 22, 2001, until all of the Company
Securities are released from the restrictions set forth herein.
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Notwithstanding the foregoing, Xx. XxXxxx may transfer shares of Company
Securities (A) as a bona fide gift or gifts or by will or intestacy, provided
that the transferee thereof agree to be bound by the restrictions set forth
herein or (B) to any trust for the direct or indirect benefit of Xx. XxXxxx or
the immediate family of Xx. XxXxxx, provided that the trustee of the trust
agrees to be bound by the restrictions set forth herein, and provided further
that any such transfer shall not involve a disposition for value. For purposes
of this Separation and Release Agreement, "immediate family" shall mean any
relationship by blood, marriage or adoption, not more remote than first cousin.
14. Denial of Liability. The parties acknowledge that any payment by
Evoke and any release by Xx. XxXxxx pursuant to this Separation and Release
Agreement are made in compromise of disputed claims, that in making any such
payment or release, Evoke and Xx. XxXxxx in no way admit any liability to each
other, and that the parties expressly deny any such liability.
15. Non-Disclosure of Agreement. Xx. XxXxxx acknowledges that
confidentiality and nondisclosure are material considerations for Evoke entering
into this Separation and Release Agreement. As such, the provisions of this
Separation and Release Agreement shall be held in strictest confidence and shall
not be publicized or disclosed in any manner whatsoever, including but not
limited to, the print or broadcast media, any public network such as the
Internet, any other outbound data program such as computer generated mail,
reports or faxes, or any source likely to result in publication or computerized
access. Notwithstanding the prohibition in the preceding sentence: (a) the
parties may disclose this Separation and Release Agreement in confidence to
their respective attorneys, accountants, auditors, tax preparers, and financial
advisors; (b) Evoke may disclose this Separation and Release Agreement as
necessary to fulfill standard or legally required corporate or public reporting
or disclosure requirements; (c) Evoke may disclose this Separation and Release
Agreement upon request from any government entity; and (d) the parties may
disclose this Separation and Release Agreement insofar as such disclosure may be
necessary to enforce its terms or as otherwise required by law. In the event
that Evoke makes a public disclosure of this document pursuant to the exceptions
set forth above, Xx. XxXxxx will be released from the obligations set forth in
this paragraph.
16. Releases.
a. Release of Claims by Xx. XxXxxx. In consideration for the
consideration set forth in this Separation and Release Agreement and the mutual
covenants of Evoke and Xx. XxXxxx, Xx. XxXxxx hereby releases, acquits and
forever discharges Evoke, its affiliated corporations and entities, its and
their officers, directors, agents, representatives, servants, attorneys,
employees, shareholders, successors and assigns 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 or unknown, suspected and unsuspected, disclosed and
undisclosed, liquidated or contingent, arising out of or in any way related to
agreements, events, acts or conduct at any time prior to and including the
Execution Date, including but not limited to: any and all such claims and
demands directly or indirectly
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arising out of or in any way connected with Xx. XxXxxx'x employment with Evoke
or the conclusion of that employment; claims or demands related to salary,
bonuses, commissions, stock, stock options, or any ownership interests in Evoke,
vacation pay, personal time off, fringe benefits, expense reimbursements,
sabbatical benefits, severance benefits, or any other form of compensation;
claims pursuant to any federal, any state or any local law, statute, common law
or cause of action including, but not limited to, the federal Civil Rights Act
of 1964, as amended; attorney's fees, costs, and other expenses under Title VII
of the federal Civil Rights Act of 1964, or any other statute, agreement or
source of law; the federal Americans with Disabilities Act of 1990; the Family
and Medical Leave Act; Colorado Fair Employment Act; tort law; contract law;
wrongful discharge; discrimination; harassment; fraud; defamation; libel;
emotional distress; and breach of the implied covenant of good faith and fair
dealing. Xx. XxXxxx agrees that in the event he brings a claim covered by this
release in which he seeks damages against Evoke or in the event he seeks to
recover against Evoke in any claim brought by a governmental agency on his
behalf, this Separation and Release Agreement shall serve as a complete defense
to such claims. Notwithstanding the foregoing, nothing in this paragraph shall
release the Company's obligation to indemnify Xx. XxXxxx in accordance with the
indemnification obligations set forth in the Company's Certificate of
Incorporation, Bylaws, the Indemnity Agreement between the Company and Xx.
XxXxxx and under any applicable law. Notwithstanding anything to the contrary
herein, this release shall not extend to liabilities or claims resulting from
criminal conduct as determined by a criminal court of law.
b. Release of Claims by the Evoke. In consideration for the
consideration set forth in this Separation and Release Agreement and the mutual
covenants of Evoke and Xx. XxXxxx, Evoke hereby releases, acquits and forever
discharges Xx. XxXxxx, his affiliated corporations and entities, its and their
officers, directors, agents, representatives, servants, attorneys, employees,
shareholders, successors and assigns 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 or unknown, suspected and unsuspected, disclosed and
undisclosed, liquidated or contingent, arising out of or in any way related to
agreements, events, acts or conduct at any time prior to and including the
Execution Date, including but not limited to: any and all such claims and
demands directly or indirectly arising out of or in any way connected with Xx.
XxXxxx'x employment with Evoke or the conclusion of that employment; claims or
demands related to pursuant to any federal, any state or any local law, statute,
common law or cause of action or any other statute, agreement or source of law;
tort law; contract law; discrimination; harassment; fraud; defamation; libel;
emotional distress; and breach of the implied covenant of good faith and fair
dealing. Evoke agrees that in the event it brings a claim covered by this
release in which it seeks damages against Evoke or in the event it seeks to
recover against Evoke in any claim brought by a governmental agency on his
behalf, this Separation and Release Agreement shall serve as a complete defense
to such claims. Notwithstanding anything to the contrary herein, this release
shall not extend to liabilities or claims resulting from criminal conduct as
determined by a criminal court of law.
17. Tax Consequences. Xx. XxXxxx agrees to indemnify Evoke and hold
Evoke harmless from any and all claims or penalties asserted against Evoke for
any failure to pay taxes due on any consideration provided by Evoke pursuant to
this Separation and Release Agreement. Xx. XxXxxx expressly acknowledges that
Evoke has not made, nor herein makes, any
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representation about the tax consequences of any consideration provided by Evoke
to Xx. XxXxxx pursuant to this Separation and Release Agreement.
18. No Third-Party Rights. The parties agree that by making this
Separation and Release Agreement they do not intend to confer any benefits,
privileges, or rights to others. The Separation and Release Agreement is
strictly between the parties hereto, subject to the terms of paragraph 18 below,
and it shall not be construed to vest in any other the status of third-party
beneficiary.
19. Voluntary and Knowingly. Xx. XxXxxx acknowledges that in executing
this Separation and Release Agreement, he has reviewed it and understands its
terms and had an opportunity and was advised to seek guidance from counsel of
his own choosing, and was fully advised of his rights under law, and acted
knowingly and voluntarily
20. Duty to Effectuate. The parties agree to perform any lawful
additional acts, including the execution of additional agreements, as are
reasonably necessary to effectuate the purpose of this Separation and Release
Agreement.
21. Entire Agreement. This Separation and Release Agreement constitutes
the complete, final, and exclusive embodiment of the entire agreement between
Xx. XxXxxx and Evoke with regard to the subject matter hereof. This Separation
and Release Agreement is entered into without reliance on any promise or
representation, written or oral, other than those expressly contained herein. It
may not be modified except in a writing that refers to this Separation and
Release Agreement signed by Xx. XxXxxx and a duly authorized officer of Evoke.
22. Successors and Assigns. This Separation and Release Agreement shall
bind the heirs, personal representatives, successors, assigns, executors and
administrators of each party, and inure to the benefit of each party, its heirs,
successors and assigns. In furtherance and not limitation of the foregoing, any
payments or consideration due Xx. XxXxxx under the terms of this agreement shall
inure to the benefit of his surviving spouse.
23. Applicable Law. This Separation and Release Agreement was entered
into in the State of Colorado, and the parties agree and intend that it be
construed and enforced in accordance with the laws of the State of Colorado.
24. Forum. Any controversy arising out of or relating to this
Separation and Release Agreement or the breach thereof, or any claim or action
to enforce this Separation and Release Agreement or portion thereof, or any
controversy or claim requiring interpretation of this Separation and Release
Agreement must be brought in a forum located within the State of Colorado. No
such action may be brought in any forum outside the State of Colorado. Any
action brought in contravention of this Paragraph 24 by one party is subject to
dismissal at any time and at any stage of the proceedings by the other, and no
action taken by the other in defending, counterclaiming or appealing shall be
construed as a waiver of this right to immediate dismissal. A party bringing an
action in contravention of this Paragraph 24 shall be liable to the other party
for the costs, expenses and attorney's fees incurred in successfully dismissing
the action or successfully transferring the action to a forum located within the
State of Colorado.
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25. Severable. If any provision of this Separation and Release
Agreement is determined to be invalid, void or unenforceable, in whole or in
part, this determination will not affect any other provision of this Separation
and Release Agreement, and the provision in question shall be modified so as to
be rendered enforceable.
26. Enforce According To Terms. The parties intend this Separation and
Release Agreement to be enforced according to their terms.
27. Execution Date. This Separation and Release Agreement is effective
on the later of the dates that each party signed this Separation and Release
Agreement ("Execution Date").
28. Section Headings. The section and paragraph headings contained in
this Separation and Release Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Separation and
Release Agreement.
29. Attorney's Fees. If any legal proceeding relating to any of this
Agreement is brought against any party to this Agreement, the prevailing party
shall be entitled to recover reasonable attorneys' fees, costs and disbursements
(in addition to any other relief to which the prevailing party may be entitled).
IN WITNESS WHEREOF, the parties have duly authorized and caused this
Separation and Release Agreement to be executed as follows:
XXX XXXXXX, an individual EVOKE COMMUNICATIONS, INC.
/s/ Xxx XxXxxx By: /s/ Xxxx Xxxxxxxxx
------------------------------- -------------------------------
Xxx XxXxxx
Its: Chairman and CEO
------------------------------
Date: 14 November, 2000 Date: 14 November, 2000
-------------------------- -----------------------------
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