EXHIBIT 10.8
Xxxxxx Xxxxxxx
00 Xxxxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Dear Xxxxxx:
This letter sets forth the substance of the separation agreement (the
"Agreement") which PERSONIFY, INC. (the "Company") is offering to you to aid in
your employment transition.
1. Separation. Your resignation from the Company has been accepted effective
as of, and your last day of work with the Company shall be January 7, 2000
(the "Separation Date").
2. Accrued Salary and Paid Time Off. 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 these payments regardless of whether or
not you sign this Agreement.
3. Additional Consideration. As consideration for your execution of the
Employee Agreement and Release form attached as Exhibit A and your
agreement to the provisions of this Agreement, the Company agrees as
follows:
(a) Severance Benefits. Although the Company has no policy or procedure
for providing severance benefits, the Company will make severance
payments to you in the form of six months base salary ($14, 583.33
per month) payable according to the Company's standard payroll
schedule. In addition, in the event that you are unable to gain
employment at a position with a compensation rate equal to or greater
than the compensation rate at which you were currently earning with
the Company, the Company will make additional severance payments to
for up to an additional six months in an amount equal to the
difference between your current base salary and the base salary of
any new position, if any. These payments will be made in accordance
with the Company's standard payroll schedule and also be subject to
standard payroll deductions and withholdings.
(b) Additional Stock Option Vesting. You have been granted two options to
purchase common stock of the Company. The first option, granted
December 4, 1997, entitled you to purchase up to 248,920 shares at
$0.05 per share (the "1997 Option"). 171,133 shares under the 1997
Option are vested as of the Separation Date. The second option grant,
effective July 1, 1998, entitled you to purchase up to 390,400 shares
at $0.125 per share (the "1998 Option"). 195,200 shares under
the 1998 Option are vested as of the Separation Date. In addition to
shares of Common Stock vested as described above, the Company has
agreed to accelerate the vesting of 15,558 additional option shares
under the 1997 Option and 97,600 additional option shares under the
1998 Option. Other than the accelerated vesting, all other terms and
conditions of such options remain unchanged. As a result of such
vesting acceleration, you will be vested in 75% of the shares under
each of the 1997 Option and the 1998 Option.
4. Future Employment. In exchange for the payments and other consideration
under this Agreement to which you would not otherwise be entitled, you
agree that, for a reasonable period following the Separation Date, you
will remain reasonably available to the Company for the purposes of
consultation and providing advice with regards to the Company's affairs,
at an hourly consulting fee to be determined later.
5. Other Compensation or Benefits. You acknowledge that, except as expressly
provided in this Agreement, you will not receive any additional
compensation, vesting, severance or benefits after the Separation Date.
6. Expense Reimbursement. You agree that, within ten (10) days of the
Separation Date, you will submit your final documented expense
reimbursement statement reflecting all business expenses you incurred
through the Separation Date, if any, for which you seek reimbursement.
The Company will reimburse you for these expenses pursuant to its regular
business practice.
7. 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 which you have had in your possession at any time,
including, but not limited to, Company files, notes, drawings, records,
business plans and forecasts, financial information, specifications,
computer-recorded information, tangible property (including, but not
limited to, computers), 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).
8. Proprietary Information Obligations. You acknowledge your continuing
obligations under your Proprietary Information and Inventions Agreement
not to use or disclose any confidential or proprietary information of the
Company without prior written authorization from a duly authorized
representative of the Company. A copy of your Proprietary Information and
Inventions Agreement is attached hereto as Exhibit B.
9. Confidentiality. The provisions of this Agreement shall be held in
strictest confidence by you and the Company and shall 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
2
Agreement insofar as such disclosure may be necessary to enforce its
terms or as otherwise required by law.
10. Nondisparagement. Both you and the Company 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 shall respond accurately and fully to any
question, inquiry or request for information when required by legal
process.
11. Non-Solicitation of Company Employees. In exchange for the payments and
other consideration under this Agreement to which you would not otherwise
be entitled, you agree that for a period of two (2) years following the
Separation Date, you shall not, either directly or through others,
solicit or attempt to solicit any employee, independent contractor or
consultant 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. Further, you agree that
during this period, you shall not, either directly or through others,
hire any employee, independent contractor or consultant of the Company as
an employee, independent contractor or consultant of any organization for
which you are associated as an employee, independent contractor or
consultant.
12. No Competition with Company Business. In exchange for the payments and
other consideration under this Agreement to which you would not otherwise
be entitled, you agree that for a period of two (2) years following the
Separation Date, you shall not either directly or indirectly participate
in any business, or provide any service (as an employee, consultant or
otherwise) or support (including financial or investment) to a business,
if such business, participation, service, or support is competitive or
diminishing in any material respect to the Company's Business as defined
below. For the purpose of this Agreement the "Company's Business" shall
mean enabling software and services for web/enterprise data mining,
web/enterprise data warehousing, marketing analytics, campaign
automation, and web personalization.
13. Release. In exchange for the payments, loan and other consideration under
this Agreement to which you would not otherwise be entitled, you agree to
execute the Employee Agreement and Release attached hereto as Exhibit A.
14. Loan. To assist you in your transition, the Company will offer you a
loan in the amount of $46,000. Such loan will bear interest at a rate of
6.2 percent or the minimum applicable federal rate and be in the form
attached hereto as Exhibit C.
15. Miscellaneous. This Agreement, including Exhibits A, B, and C
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
shall bind the heirs, personal representatives, successors and assigns of
both you and the Company, and inure to the
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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 shall
be modified by the court so as to be rendered enforceable. This Agreement
shall be deemed to have been entered into and shall 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.
If this Agreement is acceptable to you, please sign below and on the attached
Employee Agreement and Release, which is part of this Agreement, and return the
originals of both to me.
I wish you luck in your future endeavors.
Sincerely,
PERSONIFY INCORPORATED
By: /s/ XXXXX XXXXXX
------------------------------------------
Xxxxx Xxxxxx
President
Exhibit A - Employee Agreement and Release
Exhibit B - Proprietary Information and Inventions Agreement
AGREED:
/s/ XXXXXX XXXXXXX
----------------------------------------------
Xxxxxx Xxxxxxx
4
EXHIBIT A
EMPLOYMENT AGREEMENT AND RELEASE
Except as otherwise set forth in this Agreement, I hereby release, acquit
and forever discharge the Company, its parents and subsidiaries, and their
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 shall not be effective until the date upon
which the revocation period has expired, which shall 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").
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 claims I may
have against the Company.
By: /s/ XXXXXX XXXXXXX
------------------------------------
Xxxxxx Xxxxxxx
Date: 1/7/2000
----------------------------------
5
EXHIBIT B
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
6
EXHIBIT C
PROMISSORY NOTE
$46,000.00 February 16, 2000
For Value Received, Xxxxxx Xxxxxxx ("Payor") hereby unconditionally
promises to pay to the order of Personify Incorporated, a California corporation
(the "Company"), at 000 Xxxxxxx Xxxxxx, Xxxxx 000X, Xxx Xxxxxxxxx, XX 00000, or
at such other place as the holder hereof may designate in writing, in lawful
money of the United States of America and in immediately available funds, the
principal sum of Forty Six Thousand Dollars ($46,000.00), at the rate of 6.2%
per annum, or the maximum rate permissible by law (which under the laws of the
State of California shall be deemed to be the laws relating to permissible rates
of interest on commercial loans), whichever is less. This Note shall be subject
to the following additional terms and conditions:
1. The outstanding principal amount and all accrued but unpaid interest
hereunder shall be due and payable in full upon the earlier to occur of (i)
February 16, 2003; or (ii) the date of the first sale or exchange of any shares
of stock of the Company obtained by Payor by purchase from the Company.
2. Interest shall be payable annually in arrears and shall be calculated on
the basis of a 360-day year for the actual number of days elapsed.
3. If the undersigned fails to pay any of the principal and accrued interest
when due, the Company, at its sole option, shall have the right to accelerate
this Note, in which event the entire principal balance and all accrued interest
shall become immediately due and payable, and immediately collectible by the
Company pursuant to applicable law.
4. This Note may be prepaid at any time without penalty. All money paid toward
the satisfaction of this Note shall be applied first to the payment of interest
as required hereunder and then to the retirement of the principal.
5. The undersigned hereby represents and agrees that the amounts due under
this Note are not consumer debt, and are not incurred primarily for personal,
family or household purposes, but are for business and commercial purposes only.
6. The undersigned hereby waives presentment, protest and notice of protest,
demand for payment, notice of dishonor and all other notices or demands in
connection with the delivery, acceptance, performance, default or endorsement of
this Note.
7. The holder hereof shall be entitled to recover, and the undersigned agrees
to pay when incurred, all costs and expenses of collection of this Note,
including without limitation, reasonable attorneys' fees.
8. This Note shall be governed by, and construed, enforced and interpreted in
accordance with, the laws of the State of California, excluding conflict of laws
principles that would cause the application of laws of any other jurisdiction.
/s/ Xxxxxx Xxxxxxx
------------------------------
Xxxxxx Xxxxxxx
Address: 00 Xxxxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
7
NOTICE OF EXERCISE
Personify Incorporated
000 Xxxxxxx Xxxxxx, Xxxxx 000X
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 Date of Exercise: 1/7/00
------
Ladies and Gentlemen:
This constitutes notice under my stock option that I elect to purchase the
number of shares for the price set forth below.
Type of option (check one): Incentive [X] Nonstatutory [_]
Stock option dated: 7/1/98
--------------
Number of shares as
to which option is
exercised: 292,800
--------------
Certificates to be
issued in name of: Xxxxxx Xxxxxx Xxxxxxx
--------------
Total exercise price: $36,600.00
--------------
Cash payment delivered
herewith: $
--------------
Promissory note delivered
herewith: $
--------------
By this exercise, I agree (i) to provide such additional documents as you
may require pursuant to the terms of the 1998 Equity Incentive Plan, (ii) to
provide for the payment by me to you (in the manner designated by you) of your
withholding obligation, if any, relating to the exercise of this option, and
(iii) if this exercise relates to an incentive stock option, to notify you in
writing within fifteen (15) days after the date of any disposition of any of the
shares of Common Stock issued upon exercise of this option that occurs within
two (2) years after the date of grant of this option or within one (1) year
after such shares of Common Stock are issued upon exercise of this option.
I hereby make the following certifications and representations with respect
to the number of shares of Common Stock of the Company listed above (the
"Shares"), which are being acquired by me for my own account upon exercise of
the Option as set forth above:
I acknowledge that the Shares have not been registered under the Securities
Act of 1933, as amended (the "Securities Act"), and are deemed to constitute
"restricted securities" under
1.
Rule 701 and "control securities" under Rule 144 promulgated under the
Securities Act. I warrant and represent to the Company that I have no present
intention of distributing or selling said Shares, except as permitted under the
Securities Act and any applicable state securities laws.
I further acknowledge that I will not be able to resell the Shares for at
least ninety days (90) after the stock of the Company becomes publicly traded
(i.e., subject to the reporting requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934) under Rule 701 and that more restrictive
conditions apply to affiliates of the Company under Rule 144.
I further acknowledge that all certificates representing any of the Shares
subject to the provisions of the Option shall have endorsed thereon appropriate
legends reflecting the foregoing limitations, as well as any legends reflecting
restrictions pursuant to the Company's Articles of Incorporation, Bylaws and/or
applicable securities laws.
By exercising your option you agree that the Company (or a representative
of the underwriters) may, in connection with The first underwritten registration
of the offering of any securities of the Company under the Securities Act,
require that you not sell, dispose of, transfer, make any short sale of, grant
any option for the purchase of, or enter into any hedging or similar transaction
with the same economic effect as a sale, any shares of Common Stock or other
securities of the Company held by you, for a period of time specified by the
underwriter(s) (not to exceed one hundred eighty (180) days) following the
effective date of the registration statement of the Company filed under the
Securities Act. You further agree to execute and deliver such other agreements
as may be reasonably requested by the Company and/or the underwriter(s) which
are consistent with the foregoing or which are necessary to give further effect
thereto. In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to your Common Stock until the end of
such period.
Very truly yours,
/s/ XXXXXX XXXXXXX
---------------------------------
2.
NOTICE OF EXERCISE
Personify Incorporated
000 Xxxxxxx Xxxxxx, Xxxxx 000X
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 Date of Exercise: 1/7/00
------
Ladies and Gentlemen:
This constitutes notice under my stock option that I elect to purchase the
number of shares for the price set forth below.
Type of option (check one): Incentive [X] Nonstatutory [_]
Stock option dated: 12/4/97
--------------
Number of shares as
to which option is
exercised: 186,891
--------------
Certificates to be
issued in name of: Xxxxxx Xxxxxx Xxxxxxx
--------------
Total exercise price: $9,344.55
--------------
Cash payment delivered
herewith: $
--------------
Promissory note delivered
herewith: $
--------------
By this exercise, I agree (i) to provide such additional documents as you
may require pursuant to the terms of the 1998 Equity Incentive Plan, (ii) to
provide for the payment by me to you (in the manner designated by you) of your
withholding obligation, if any, relating to the exercise of this option, and
(iii) if this exercise relates to an incentive stock option, to notify you in
writing within fifteen (15) days after the date of any disposition of any of the
shares of Common Stock issued upon exercise of this option that occurs within
two (2) years after the date of grant of this option or within one (1) year
after such shares of Common Stock are issued upon exercise of this option.
I hereby make the following certifications and representations with respect
to the number of shares of Common Stock of the Company listed above (the
"Shares"), which are being acquired by me for my own account upon exercise of
the Option as set forth above:
I acknowledge that the Shares have not been registered under the Securities
Act of 1933, as amended (the "Securities Act"), and are deemed to constitute
"restricted securities" under
1.
Rule 701 and "control securities" under Rule 144 promulgated under the
Securities Act, I warrant and represent to the Company that I have no present
intention of distributing or selling said Shares, except as permitted under the
Securities Act and any applicable state securities laws.
I further acknowledge that I will not be able to resell the Shares for at
least ninety days (90) after the stock of the Company becomes publicly traded
(i.e., subject to the reporting requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934) under Rule 701 and that more restrictive
conditions apply to affiliates of the Company under Rule 144.
I further acknowledge that all certificates representing any of the Shares
subject to the provisions of the Option shall have endorsed thereon appropriate
legends reflecting the foregoing limitations, as well as any legends reflecting
restrictions pursuant to the Company's Articles of Incorporation, Bylaws and/or
applicable securities laws.
By exercising your option you agree that the Company (or a representative
of the underwriters) may, in connection with the first underwritten registration
of the offering of any securities of the Company under the Securities Act,
require that you not sell, dispose of, transfer, make any short sale of, grant
any option for the purchase of, or enter into any hedging or similar transaction
with the same economic effect as a sale, any shares of Common Stock or other
securities of the Company held by you, for a period of time specified by the
underwriter(s) (not to exceed one hundred eighty (180) days) following the
effective date of the registration statement of the Company filed under the
Securities Act. You further agree to execute and deliver such other agreements
as may be reasonably requested by the Company and/or the underwriter(s) which
are consistent with the foregoing or which are necessary to give further effect
thereto. In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to your Common Stock until the end of
such period.
Very truly yours,
/s/ XXXXXX XXXXXXX
---------------------------------
2.
May 10, 2000
Xxxxxx Xxxxxxx
00 Xxxxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Re: Letter of Agreement to amend Separation Agreement
Dear Xx. Xxxxxxx:
This Letter of Agreement will confirm our mutual understanding and desire to
amend the Separation Agreement of January 7, 2000, (the "Separation Agreement"),
between Xxxxxx Xxxxxxx and Personify, Inc., (the "Parties"). The Parties agree
as follows:
1. The purpose of this letter of Agreement is to clarify the intent of
the Parties at the time of execution of the Separation Agreement,
including all exhibits and attachments.
2. The Parties entered into the Separation Agreement on January 7, 2000.
Section 14 of the Separation Agreement stated that a loan in the
amount of $46,000.00, in the form of a Promissory Note, would be
offered to Xxxxxx Xxxxxxx by Personify.
3. At the time the Parties entered into and executed the Separation
Agreement and the Promissory Note, it was the intent of the Parties
that the holder of the Promissory Note should have full recourse
against Xxxxxx Xxxxxxx with respect to 100% of the principal amount
stated in the Promissory Note.
4. The Parties agree that the holder of the Promissory Note shall have
full recourse against Xxxxxx Xxxxxxx with respect to 100% of the
principal amount stated in the Promissory Note.
5. This Letter of Agreement is hereby incorporated into the Separation
Agreement. The general terms and conditions of the Separation
Agreement shall govern this Letter of Agreement.
Acknowledged and accepted by:
Xxxxxx Xxxxxxx Personify, Inc.
/s/ Xxxxxx Xxxxxxx By ________________________
---------------------- Name ______________________
Date 10 MAY 2000 Date ______________________
-----------------
