EXHIBIT 10.8
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") is entered into by and
between Stentor, Inc. (the "Company") and Xxxxxxx Often (the "Executive"), and
is effective as of February 17, 2004.
1. POSITION, DUTIES AND RESPONSIBILITIES. Effective February 17, 2004,
the Executive has been employed as the Company's Chief Executive Officer. As
Chief Executive Officer, Executive will perform the duties customarily
associated with this position and such other duties assigned by the Company.
Executive will work at the Company's Brisbane, California headquarters. The
Company retains the discretion to modify Executive's position and duties from
time to time without a written modification of this Agreement.
2. COMPENSATION AND EMPLOYEE BENEFITS.
(a) BASE SALARY. Executive's base salary will be Twenty-Five
Thousand Five Hundred Dollars ($25,500) per month which is Three Hundred and Six
Thousand Dollars ($306,000) annualized, less standard payroll deductions and
required withholdings, paid according to the Company's regular payroll schedule
and procedures. Executive will be considered for increases in base salary, as
determined in the sole discretion of the Company.
(b) DUAL RESIDENCE COMPENSATION. Executive acknowledges and agrees
that his base salary includes Three Thousand Dollars ($3,000) per month intended
to help offset the cost to Executive of local housing in the San Francisco Bay
Area; and further agrees that, if Executive establishes a permanent residence in
the San Francisco Bay Area, Executive will no longer be entitled to receive the
$3,000 per month and that Executive's base salary will be reduced accordingly.
Further, in an effort to accommodate the fact that Executive will maintain
residences on the East Coast, by the most affordable direct flight the Company
will reimburse Executive for one round trip flight per month to the East Coast;
provided further that Executive agrees to help minimize the associated cost by
combining the East Coast trips with business travel when it is practical to do
so.
(c) ANNUAL BONUS. Executive will have a bonus target of One Hundred
Twenty Five Thousand Dollars ($125,000) per year based on a combination of
Company and personal deliverables, payable after the fiscal close. Specifically,
for each year 70% of the payout will be based on the then applicable annual
executive bonus plan (to be determined by the Company in its sole discretion),
with the payout to be determined in a manner consistent with such determination
for the Company's other executives, and 30% will be based on mutually agreed
upon personal objectives for Executive for each year, with the determination of
whether such objectives have been achieved and the amount of such payout to be
reasonably determined by the Company. Any bonus payments will be subject to
payroll deductions and required
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withholdings. If Executive is not employed at the time any bonus is to be paid
he will not have earned the bonus, and no partial or pro-rata bonus will be
earned or paid. For 2004 the annual bonus target payout to Executive will
reflect a pro-rata deduction based on his employment start date of February 17,
2004.
(d) STOCK OPTION GRANTS. Pursuant to the Company's 2001 Incentive
Stock Plan 1996 (the "Plan"), on February 17, 2004 the Company granted Executive
(i) an incentive stock option to purchase 147,780 shares of the Company's common
stock and (ii) a nonstatutory stock option to purchase 352,220 shares of the
Company's common stock (collectively the "Options"), at an exercise price of
$2.03 per share. The Options are subject to the terms and conditions of the
Plan, any amendments thereto, and Executive's stock option agreements entered in
connection therewith.
(e) EMPLOYEE BENEFITS. Executive shall remain eligible for the
following standard benefits: medical, dental and vision insurance, flexible
reimbursement accounts, short and long-term disability insurance, life
insurance, and the Company's 401(k) plan. Executive will be eligible for ten
paid Company holidays per year and for 15 PTO days a year in accordance with the
Company's PTO policy. Details about these benefits are set forth in the Company
handbook and summary plan descriptions available for Executive's review. The
Company may, in its discretion, modify Executive's compensation and benefits
from time to time, as it deems necessary, and the Company may, in its
discretion, change the level of benefits it provides to employees from time to
time, as it deems advisable for the workforce.
3. OTHER ACTIVITIES DURING EMPLOYMENT; NON-SOLICITATION.
(a) Except as permitted by Section 3(c) below or with the prior
written consent of the Company, Executive will not during Executive's employment
undertake or engage in any other employment, occupation or business enterprise.
Executive may engage in civic and not-for-profit activities so long as such
activities do not materially interfere with the performance of Executive's job
duties. The Company hereby gives its consent for Executive to continue as
Chairman of Ardais Corporation, provided the time commitment is no more than one
day per quarter. To the extent inconsistent with this Section 3, the first
sentence of section 4 ("Additional Activities") of that certain Employee
Proprietary Information and Inventions Agreement ("Proprietary Information
Agreement") between Executive and the Company, signed by Executive on February
17, 2004, is hereby superseded.
(b) Except as permitted by Section 3(c) below, during Executive's
employment, Executive agrees not to acquire, assume or participate in, directly
or indirectly, any position, investment or interest known by Executive to be
adverse or antagonistic to the Company, or its business or prospects, financial
or otherwise.
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(c) During the term of Executive's employment by the Company, except
on behalf of the Company, Executive will not directly or indirectly, whether as
an officer, director, employee, stockholder, partner, proprietor, associate,
representative, consultant, or in any capacity whatsoever engage in, become
financially interested in, be employed by or have any business connection with
any other person, corporation, firm, partnership, or other entity which
develops, licenses, distributes and/or markets software and/or systems for the
management of digital medical images, which could be either stand-alone systems
or integrated into broader systems, including, but not limited to, Picture
Archiving and Communications Systems, image display systems, image distribution
systems and/or image archiving systems, anywhere in the world, provided,
however, that anything above to the contrary notwithstanding, Executive may own,
as a passive investor, securities of any entity, so long as Executive's direct
holdings in any one such corporation do not in the aggregate constitute more
than one percent (1%) of the voting stock of such corporation.
(d) Executive acknowledges that, because of Executive's position in
the Company, Executive will have access to material intellectual property and
confidential information. During the term of Executive's employment by the
Company and for one (1) year thereafter, in addition to Executive's other
obligations hereunder or under the Proprietary Information Agreement (as defined
below), Executive shall not, for Executive's self or any third party, directly
or indirectly:
(i) divert or attempt to divert from the Company any business
of any kind, including without limitation the solicitation of or interference
with any of its customers, clients, members, business partners or suppliers, or
(ii) solicit or otherwise induce any person employed by the
Company to terminate his or her employment.
4. COMPANY POLICIES; PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT.
AS a Company employee, Executive will be expected to abide by Company rules and
policies. As a further condition of Executive's continued employment, Executive
agrees to continue to abide by Executive's obligations under his Proprietary
Information Agreement.
5. INDEMNIFICATION AGREEMENT. Executive's Indemnification Agreement
with the Company dated______, 2004 is unaffected by this Agreement.
6. AT-WILL EMPLOYMENT RELATIONSHIP; OTHER TERMINATIONS.
(a) AT-WILL EMPLOYMENT. Executive's employment with the Company
shall be "at will" at all times. Either Executive or the Company may terminate
the employment relationship at any time, with or without Cause (as defined
below) or advance notice. Upon and after such termination, all obligations of
the Company under this Agreement shall cease, unless the Company terminates
Executive without Cause (as defined below) or the Executive resigns
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with Good Reason (as defined below), in which case the Company will provide
Executive with the Severance Benefits as described in Section 7.
(b) DEATH. Executive's employment shall terminate automatically upon
Executive's death. The Company shall pay to Executive's beneficiaries or estate,
as appropriate, any compensation then due and owing. Thereafter all obligations
of the Company under this Agreement shall cease. Nothing in this Section shall
affect any entitlement of Executive's heirs or devisees to the benefits of any
life insurance plan or other applicable benefits.
(c) DISABILITY. If Executive becomes eligible for the Company's long
term disability benefits or if, in the sole opinion of the Company, Executive is
unable to carry out the responsibilities and functions of the position held by
Executive by reason of any physical or mental impairment for more than ninety
(90) consecutive days or more than one hundred and twenty days in any
twelve-month period, then, to the extent permitted by law, the Company may
terminate Executive's employment. The Company shall pay to Executive all
compensation to which Executive is entitled up through the date of termination,
and thereafter all obligations of the Company under this Agreement shall cease.
Nothing in this Section shall affect Executive's rights under any disability
plan in which Executive is a participant.
7. SEVERANCE BENEFITS FOR TERMINATION WITHOUT CAUSE OR RESIGNATION FOR
GOOD REASON. If the Company terminates Executive's employment without Cause (as
defined below), as determined in good faith by the Board, or Executive resigns
from his employment with Good Reason (as defined below), provided that Executive
executes and delivers the Release Agreement, attached hereto as Exhibit A (the
"Release Agreement") in accordance with Section 7(e) and such Release Agreement
is not revoked, Executive will receive the following as Executive's sole
severance benefits (collectively, the "Severance Benefits"):
(a) SALARY CONTINUATION. Executive will continue to receive
Executive's base salary at the same rate in effect as of the
termination/resignation effective date, paid on the Company's standard payroll
dates for the Severance Period (as defined below), subject to standard payroll
deductions and required withholdings.
(b)COBRA PREMIUMS. If Executive timely elects to continue
Executive's Company-provided group health insurance coverage pursuant to the
federal COBRA law, the Company will reimburse Executive for the cost of such
COBRA premiums so that Executive may continue health insurance coverage, at the
same level Executive maintains as of the employment termination/resignation
date, through the end of the Severance Period, or until such time as Executive
qualifies for health insurance benefits through a new employer, whichever occurs
first. The reimbursement shall be for 100% of Executive's COBRA premiums, as
well as for Executive's eligible dependents' COBRA premiums, and the coverage to
be provided on this basis shall be health and dental coverage.
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(c) ACCELERATION OF STOCK OPTIONS WITHOUT CHANGE IN CONTROL. As of
the termination/resignation date Executive will receive accelerated vesting of
the Options equal to the amount of shares that would have vested in the
Severance Period, defined below, had Executive remained employed during that
time.
(d) ACCELERATION OF STOCK OPTIONS WITH CHANGE IN CONTROL.
Notwithstanding Section 7(c), if the termination/resignation occurs within six
(6) months after there has been a Change in Control, defined below, then fifty
percent (50%) of the then remaining unvested shares of the Options will
accelerate as of the termination or resignation date (beginning with the
earliest of such shares that would have vested with future service). If this
Section 7(d) applies, it will substitute for, and not be in addition to, the
acceleration described in Section 7(c).
(e) RELEASE AGREEMENT. As a condition of and prior to the Company's
provision of any of the Severance Benefits set forth in Sections 7(a) through
(d), Executive must execute, deliver and make effective the Release Agreement
(attached as Exhibit A) on or after the employment termination/resignation date.
In the event Executive revokes any part of the Release Agreement, the Company
will not provide any of the Severance Benefits to Executive.
(f) DEFINITION OF CAUSE. For purposes of this Agreement, "Cause"
means the occurrence of any one or more of the following: (i) Executive's
conviction of, or plea of guilty or no contest with respect to, any felony or
crime involving fraud, dishonesty or moral turpitude; (ii) Executive's
participation in a fraud or act of dishonesty against the Company that results
in material harm to the business of the Company; (iii) Executive's intentional,
material breach of any contract or agreement between Executive and the Company,
including but not limited to this Agreement and Executive's Proprietary
Information Agreement, or Executive's breach of any statutory duty that
Executive owes to the Company, but only if Executive does not correct such
breach (if curable) within thirty (30) days after written notice thereof has
been provided to Executive; (iv) Executive's commission of an act of unlawful
harassment or discrimination; (v) Executive's willful refusal to implement or
follow a lawful policy or directive of the Company or the Board, but only if
Executive does not correct such action within thirty (30) days after written
notice thereof has been provided to Executive, or (vi) a demonstrated and
continued pattern of Executive's substantial nonperformance of employment (other
than due to Executive's illness or because the requested conduct would subject
Executive to criminal penalties or would violate applicable federal, state or
local law, ordinance or regulation), as determined by the Board in good faith,
but only if Executive does not correct such nonperformance within thirty (30)
days after a written notice has been provided to Executive that identifies
Executive's acts of substantial nonperformance of Executive's duties.
(g) DEFINITION OF GOOD REASON. "Good Reason" for Executive's
resignation shall mean resignation by Executive of his employment within 30 days
of any of the following actions being taken by the Company: (i) the Company
requiring that Executive relocate to a
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worksite that is more than 50 miles from the Company's current office, unless
such relocation is in, or within 50 miles from, the city limits of Boston,
Massachusetts or Executive accepts such a relocation opportunity; (ii) the
Company significantly and materially reducing Executive's position, duties or
responsibilities without Executive's approval, provided that Executive must give
the Company reasonable notice in writing of such circumstances and an
opportunity to cure same and, provided further, that in the event of a Change in
Control it shall not be Good Reason if, following the effective date of the
Change in Control, either (a) the Company is retained as a separate legal entity
or business unit and Executive holds the same position, duties and
responsibilities in such legal entity or business unit as Executive held before
such effective date or (b) Executive holds a position with duties and
responsibilities comparable (though not necessarily identical, in view of the
relative sizes of the Company and the entity involved in the Change in Control)
to the position, duties and responsibilities of Executive prior to the effective
date of the Change in Control; or (iii) the Company materially reducing
Executive's compensation or benefits, measured against such compensation or
benefits as of the date Executive started his employment with the Company,
unless such reduction is made pursuant to an across the board reduction
applicable to senior executives of the Company.
(h) DEFINITION OF CHANGE IN CONTROL. A sale, lease, exclusive
license or other disposition of all or substantially all of the assets of the
Company; or any consolidation or merger of the Company with or into any other
corporation or other entity or person, or any other corporate reorganization, in
which holders of the capital stock of the Company immediately prior to such
consolidation, merger or reorganization, hold securities representing less than
50% of the voting power of the surviving entity (or, if the surviving entity is
a wholly owned subsidiary, its parent) immediately after such consolidation,
merger or reorganization; or any transaction or series of related transactions
involving the transfer of the Company's voting securities (other than to an
underwriter of the Company's securities) pursuant to which a person or group of
affiliated persons would, immediately following the closing of such
transaction(s), hold 50% or more of the outstanding voting power of the Company
(any such transaction, a "Change in Control"), provided that a Change in Control
shall not include (i) any consolidation or merger effected exclusively to change
the domicile of the Company, or (ii) any transaction or series of transactions
principally for bona fide equity financing purposes in which cash is received by
the Company or any successor or indebtedness of the Company is cancelled or
converted or a combination thereof.
(i) DEFINITION OF SEVERANCE PERIOD. For purposes of this Agreement,
the "Severance Period" is defined as a six (6) month period if Executive's
employment is terminated or he resigns prior to February 17, 2005; assuming
Executive's employment continues thereafter, the Severance Period shall increase
by one month on each annual anniversary of Executive's employment, provided that
the Severance Period shall not be greater than a total of twelve (12) months.
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8. TERMINATION OF SEVERANCE BENEFITS. The Company's obligations, and
Executive's rights to continued Severance Benefits pursuant to Sections 7(a)
through (c) shall cease immediately in the event that during the Severance
Period Executive:
(a) breaches Executive's obligations under Executive's Proprietary
Information Agreement or this Agreement, including without limitation the
obligations set forth in Section 3; or
(b) directly or indirectly, whether as an officer, director,
employee, stockholder, partner, proprietor, associate, representative,
consultant, or in any capacity whatsoever engages in, becomes financially
interested in, is employed by or has any business connection with any
stand-alone business, or any business residing within a corporation or any other
entity, which develops, licenses, distributes and/or markets software and/or
systems for the management of digital medical images, which could be either
stand-alone systems or integrated into broader systems, including, but not
limited to, Picture Archiving and Communications Systems, image display systems,
image distribution systems and/or image archiving systems, anywhere in the
world; provided, however, that anything above to the contrary notwithstanding,
Executive may (x) own, as a passive investor, securities of any entity, so long
as Executive's direct holdings in any one such corporation do not in the
aggregate constitute more than one percent (1%) of the voting stock of such
corporation, and (y) work for an entity that engages in the prohibited activity
set forth above if: (1) Executive works in a separate and distinct business
department, division or unit that does not directly or indirectly engage in such
prohibited activity; (2) Executive does not provide services for the benefit of
or support the business department, division or unit that engages in such
prohibited activity; and (3) Executive does not directly or indirectly provide
information on the Company's business to the business department, division or
unit that engages in such prohibited activity.
9. TERMINATION OBLIGATIONS.
(a) COOPERATION. Upon termination of Executive's employment,
Executive shall, effective immediately, automatically and without further action
be deemed to no longer hold any offices or directorships with the Company.
Following any termination or resignation of employment, Executive shall
cooperate with the Company in the winding up of pending work on behalf of the
Company and the orderly transfer of work to other employees. Executive shall
also cooperate with the Company in making himself available to the Company or
its counsel in connection with the defense of any action brought by any third
party against the Company that relates to Executive's employment by the Company.
(b) CONTINUING OBLIGATIONS. Executive acknowledges, understands and
agrees that Executive's obligations under Section 3(d) (Non-Solicitation),
Section 8 (Termination of Severance Benefits), Section 9 (Termination
Obligations) and Section 10
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(Arbitration) shall survive the termination of Executive's employment for any
reason and the termination of this Agreement.
10. ARBITRATION. Executive and the Company hereby agree that, to the
fullest extent permitted by law, any and all claims or controversies between
them (or between Executive and any present or former officer, director, agent,
or employee of the Company or any parent, subsidiary, or other entity affiliated
with the Company) relating in any manner to the employment or the termination of
employment of Executive shall be resolved by final and binding arbitration.
Except as specifically provided herein, any arbitration proceeding shall be
conducted in accordance with the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association (the "AAA Rules").
Claims subject to arbitration shall include, without limitation: contract
claims, tort claims, claims relating to compensation and stock options, as well
as claims based on any federal, state, or local law, statute, or regulation,
including but not limited to any claims arising under Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with
Disabilities Act, and the California Fair Employment and Housing Act. However,
claims for unemployment benefits, workers' compensation claims, and claims under
the National Labor Relations Act shall not be subject to arbitration.
A neutral and impartial arbitrator shall be chosen by mutual agreement of
the parties; however, if the parties are unable to agree upon an arbitrator
within a reasonable period of time, then a neutral and impartial arbitrator
shall be appointed in accordance with the arbitrator nomination and selection
procedure set forth in the AAA Rules. The arbitrator shall prepare a written
decision containing the essential findings and conclusions on which the award is
based so as to ensure meaningful judicial review of the decision. The arbitrator
shall apply the same substantive law, with the same statutes of limitations and
same remedies, that would apply if the claims were brought in a court of law.
The arbitrator shall have the authority to rule on a motion to dismiss and/or
summary judgment by either party, and the arbitrator shall apply the standards
governing such motions under the California Code of Civil Procedure.
Either the Company or Executive may bring an action in court to compel
arbitration under this Agreement and to enforce an arbitration award. Otherwise,
neither party shall initiate or prosecute any lawsuit of claim in any way
related to any arbitrable claim, including without limitation any claim as to
the making, existence, validity, or enforceability of the agreement to
arbitrate. Nothing in this Agreement, however, precludes a party from filing an
administrative charge before an agency that has jurisdiction over an arbitrable
claim. Moreover, either party may seek provisional relief pursuant to Section
1281.8 of the California Code of Civil Procedure in a court of competent
jurisdiction for any claim or controversy arising out of or related to the
unauthorized use, disclosure, or misappropriation of the confidential and/or
proprietary information of either party.
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All arbitration hearings under this Agreement shall be conducted in San
Francisco, California, unless otherwise agreed by the parties. The arbitration
provisions of this Arbitration Agreement shall be governed by the Federal
Arbitration Act. In all other respects, this Arbitration Agreement shall be
construed in accordance with the laws of the State of California, without
reference to conflicts of law principles.
Each party shall pay its own costs and attorney's fees, unless a party
prevails on a statutory claim, and the statute provides that the prevailing
party is entitled to payment of its attorneys' fees. In that case, the
arbitrator may award reasonable attorneys' fees and costs to the prevailing
party as provided by law. The costs and fees of the arbitrator shall be paid by
the Company.
If any provision of this Agreement shall be held by a court or the
arbitrator to be invalid, unenforceable, or void, such provision shall be
enforced to the fullest extent permitted by law, and the remainder of this
Agreement shall remain in full force and effect. The parties' obligations under
this Agreement shall survive the termination of Executive's employment with the
Company and the expiration of this Agreement.
The Company and Executive understand and agree that this Agreement
contains a full and complete statement of any agreements and understandings
regarding resolution of disputes between the parties, and the parties agree that
this Agreement supersedes all previous agreements, whether written or oral,
express or implied, relating to the subjects covered in this agreement. The
parties also agree that the terms of this Agreement cannot be revoked or
modified except in a written document signed by both Executive and an officer of
the Company.
THE PARTIES ALSO UNDERSTAND AND AGREE THAT THIS AGREEMENT CONSTITUTES A
WAIVER OF THEIR RIGHT TO A TRIAL BY JURY OF ANY CLAIMS OR CONTROVERSIES COVERED
BY THIS AGREEMENT. THE PARTIES AGREE THAT NONE OF THOSE CLAIMS OR CONTROVERSIES
SHALL BE RESOLVED BY A JURY TRIAL.
11. ASSIGNMENT; BINDING EFFECT.
(a) ASSIGNMENT. Executive's performance hereunder is personal, and
Executive agree that Executive shall have no right to assign and shall not
assign or purport to assign any rights or obligations under this Agreement. This
Agreement may be assigned or transferred by the Company; and nothing in this
Agreement shall prevent the consolidation, merger or sale of the Company or a
sale of any or all or substantially all of its assets.
(b) BINDING EFFECT. Subject to the foregoing restriction on
assignment by Executive, this Agreement shall inure to the benefit of and be
binding upon each of the parties; the affiliates, officers, directors, agents,
successors and assigns of the Company; and Executive's heirs, devisees, spouse,
legal representatives and successors.
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12. NOTICES. All notices or other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given
if delivered: (a) by hand; (b) by a nationally recognized overnight courier
service; or (c) by United States first class registered or certified mail,
return receipt requested, to the principal address of the other party, as set
forth below. The date of notice shall be deemed to be the earlier of (i) actual
receipt of notice by any permitted means, or (ii) five business days following
dispatch by overnight delivery service or the United States Mail. Executive
shall be obligated to notify the Company in writing of any change in Executive's
address. Notice of change of address shall be effective only when done in
accordance with this paragraph.
Company's notice address:
Stentor, Inc.
000 Xxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Executive's notice address:
Xxxxxxx Xxxxx
X.X. Xxx XX0-Xxx 0000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
(for United States mail)
00 Xxxx Xxxx Xxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
(for overnight courier service)
13. COMPLETE AGREEMENT. This Agreement, including its exhibits and
Executive's Proprietary Information Agreement, constitute the complete, final
and exclusive embodiment of Executive's employment agreement with the Company.
In entering into this Agreement, neither party is relying upon any promise or
representation, written or oral, on any subject concerning the Company or
concerning Executive's employment with the Company other than those expressly
contained or referenced as applicable herein. This Agreement supersedes that
certain offer letter agreement between Executive and the Company dated January
8, 2004 and, except as stated herein, any other agreements or promises made to
Executive by anyone, whether oral or written. This Agreement may not be amended
or modified except by a written instrument signed by Executive and a duly
authorized officer of the Company. This Agreement will be construed and
interpreted in accordance with the laws of the State of California. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement.
Any invalid or unenforceable provision shall be modified so as to render valid
and enforceable in a manner consistent with the intent of the parties insofar as
possible. This Agreement may be delivered by telefacsimile and may be
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executed in any number of counterparts, each of which shall be deemed an
original of this Agreement, but all of which together shall constitute one and
the same agreement.
14. ACKNOWLEDGEMENT. EXECUTIVE ACKNOWLEDGES THAT EXECUTIVE HAS HAD THE
OPPORTUNITY TO CONSULT LEGAL COUNSEL CONCERNING THIS AGREEMENT, THAT EXECUTIVE
HAS READ AND UNDERSTANDS THIS AGREEMENT, THAT EXECUTIVE IS FULLY AWARE OF ITS
LEGAL EFFECT, AND THAT EXECUTIVE HAS ENTERED INTO IT FREELY BASED ON EXECUTIVE'S
OWN JUDGMENT AND NOT ON ANY REPRESENTATIONS OR PROMISES OTHER THAN THOSE
CONTAINED IN THIS AGREEMENT.
STENTOR, INC. EXECUTIVE
By: /s/ Xxxxxx Xxxx /s/ Xxxxxxx Xxxxx
----------------------------- ----------------------------------
XXXXXX XXXX XXXXXXX XXXXX
CHAIR, BOARD OF DIRECTORS
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EXHIBIT A
RELEASE AGREEMENT
(TO BE SIGNED ON OR AFTER EXECUTIVE'S EMPLOYMENT TERMINATION DATE)
I, Xxxxxxx Xxxxx, understand that my employment with Stentor, Inc. (the
"Company") terminated effective ______________________________, 200___ (the
"Separation Date"). The Company has agreed that if I choose to sign, and do not
revoke any part of, this Release Agreement ("Release"), upon the Effective Date
of this Release, the Company will pay me certain severance benefits (the
"Severance Benefits") pursuant to Section 7 of the Executive Employment
Agreement, dated February 17, 2004, between myself and the Company (the
"Agreement") to which this Release is attached. I understand that I am not
entitled to such benefits unless I sign this Release and return it to the
Company and do not revoke this Release on or prior to the Effective Date (as
defined below). I understand that, regardless of whether I sign this Release,
the Company will pay me all of my accrued salary and paid time off through the
Separation Date, to which I am entitled by law.
In consideration for the Severance Benefits I am receiving under the Agreement,
as described therein, except for any rights I have under the Agreement to obtain
the Severance Benefits, I hereby generally and completely release the Company
and its parents, subsidiaries, successors, predecessors and affiliates, and its
and their directors, officers, employees, shareholders, agents, attorneys,
predecessors, insurers, affiliates and assigns, from any and all claims,
liabilities and obligations, both known and unknown, that arise out of or are in
any way related to events, acts, conduct, or omissions occurring at any time
prior to and including the date I sign this Release. This general release
includes, but is not limited to: (a) all claims arising out of or in any way
related to my employment with the Company or the termination of that employment;
(b) all claims related to my compensation or benefits, including salary,
bonuses, commissions, vacation pay, expense reimbursements, severance pay,
fringe benefits, stock, stock options, or any other ownership interests in the
Company; (c) all claims for breach of contract, wrongful termination, and breach
of the implied covenant of good faith and fair dealing; (d) all tort claims,
including claims for fraud, defamation, emotional distress, and discharge in
violation of public policy; and (e) all federal, state, and local statutory
claims, including claims for discrimination, harassment, retaliation, attorneys'
fees, or other claims arising under the federal Civil Rights Act of 1964 (as
amended), the federal Americans with Disabilities Act of 1990 (as amended), the
California Family Rights Act, and the California Fair Employment and Housing Act
(as amended). Notwithstanding the release in the preceding sentence, I shall not
hereby surrender any right I may have to indemnification by the Company pursuant
to the bylaws of the Company or applicable law.
In releasing claims unknown to me at present, I am waiving all rights and
benefits under Section 1542 of the California Civil Code, and any law or legal
principle of similar effect in any jurisdiction:
"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."
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If I am age forty (40) or older on the Separation Date, I further acknowledge
that I am knowingly and voluntarily waiving and releasing any rights I may have
under the federal Age Discrimination in Employment Act (as amended) ("ADEA") and
that the consideration given for the waiver and release in the preceding
paragraphs 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 date I sign this Release; (b) I have been
advised hereby that I have the right to consult with an attorney prior to
signing this Release; (c) I have twenty-one (21) days to consider this Release
(although I may choose to voluntarily sign it before the end of the
consideration period); (d) I have seven (7) days after I sign this Release to
revoke it; and (e) this Release will not be effective until the date upon which
the revocation period has expired, which will be the eighth day after I sign
this Release, provided that I have returned this Release to the Company by that
time (the "Effective Date ").
If I am under the age of forty (40) on the Separation Date, I acknowledge that
this Release shall become effective on the date that the signed release is
received by the Company (the "Effective Date").
I accept and agree to the terms and conditions of this Release as stated above:
____________________________________ _________________________________________
Xxxxxxx Xxxxx Date
Accepted by:
STENTOR, INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN GIVEN THE OPPORTUNITY TO
DISCUSS THIS AGREEMENT WITH THEIR LEGAL COUNSEL AND HAVE AVAILED THEMSELVES OF
THAT OPPORTUNITY TO THE EXTENT THEY WISH TO DO SO.
3
