EXHIBIT 10.27
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement ("Agreement") is entered into as of the
Closing Date of the Merger Agreement as defined below, by and between At Home
Corporation ("@Home"), a Delaware corporation, with its principal offices
located at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000, and Xxxxxx Xxxx, a
resident of Menlo Park, California ("Xxxx").
RECITALS
--------
X. Xxxx is and has been the Chief Executive Officer of Excite, Inc.
("Excite") since January 1996.
B. On January 19, 1999, Excite and @Home entered into an Agreement and
Plan of Reorganization (the "Merger Agreement"), pursuant to which
Excite and @Home agreed to merge Excite into @Home, with @Home to
become the parent corporation and Excite to become @Home's wholly-owned
subsidiary.
C. On January 19, 1999, Xxxx entered into a Company Voting Agreement with
@Home, pursuant to which Xxxx agreed to vote his shares of Excite's
common stock in favor of the proposed merger of Excite into @Home.
D. The merger of Excite into @Home is expected to be completed on or
before May 31, 1999.
E. @Home desires to retain the services of Xxxx as the Chief Executive
Officer of Excite after the merger of Excite into @Home and Xxxx
desires to provide such services.
Therefore, in consideration of the promises and the terms and
conditions set forth in this Agreement, the parties agree as follows:
1. Position. Effective on the Closing Date as defined in the Merger
--------
Agreement (the "Effective Date"), during the term of the Agreement, Xxxx will
serve @Home in the initial position of Chief Executive Officer of @Home, and,
subject to the terms and conditions of this Agreement, will report to the Chief
Executive Officer of @Home and will have such positions as may from time to time
be assigned to Xxxx by the Chief Executive Officer of @Home and the Board of
Directors of @Home (the "Board"). On the Effective Date, Xxxx will be appointed
to the Board in the capacity of Director and will serve in that capacity during
the term of this Agreement, subject at all times to the Articles of
Incorporation, then-current Bylaws and policies applicable to all directors of
@Home that may be adopted by the Board from time to time. @Home shall use its
best efforts to have Xxxx nominated and elected and re-elected to the Board at
each Annual Stockholder meeting held during his period of service as Chief
Executive Officer of @Home.
2. Duties. Xxxx will serve @Home in such capacities and with such
------
duties and responsibilities as the Chief Executive Officer of @Home and the
Board may from
time to time determine. Xxxx will comply with and be bound by @Home's operating
policies, procedures and practices from time to time in effect during Xxxx'x
employment. Xxxx hereby represents and warrants that he is free to enter into
and fully perform the Agreement and the agreements referred to herein without
breach of any agreement or contract to which he is a party or by which he is
bound.
3. Exclusive Service. Xxxx will devote his full time and efforts
-----------------
exclusively to his employment and apply all his skill and experience to the
performance of his duties and advancing @Home's interests in accordance with
Xxxx'x experience and skills.
4. Term of Agreement. This Agreement will commence on the Effective
-----------------
Date and will continue until the earlier of four (4) years after the Effective
Date or when terminated pursuant to Section 5 hereof.
5. Termination.
-----------
5.1 Events of Termination. Xxxx'x employment with @Home may be
---------------------
terminated by @Home for any reason at any time with or without "Cause" as
defined under Section 5.2 below. During his employment hereunder, Xxxx shall be
an "at-will employee" of @Home.
5.2 "Cause" Defined. For purposes of this Agreement, "Cause" for Xxxx'x
---------------
termination will exist at any time after the happening of one or more of the
following events:
(a) a willful failure or a refusal to comply in any material
respect with the reasonable policies, standards or regulations
of @Home;
(b) a good faith determination by the Board that Xxxx repeatedly
and willfully has refused to follow the written directions of
the Board of Directors of @Home;
(c) unprofessional, unethical or fraudulent conduct or conduct
that materially discredits Excite or @Home or is materially
detrimental to the reputation, character or standing of Excite
or @Home;
(d) dishonest conduct or a deliberate attempt to do an injury to
Excite or @Home;
(e) Xxxx'x material breach of a term of the Agreement or his
Invention Assignment and Confidentiality Agreement, including,
without limitation, Xxxx'x theft of Excite's or @Home's
proprietary information;
(f) an unlawful or criminal act which would reflect badly on
Excite or @Home in Excite or @Home's reasonable judgment; or
(g) Xxxx'x death or total disability.
-2-
For purposes of this Section 5.2, Xxxx will be deemed totally disabled if in the
good faith determination of the Board, based on sound medical advice, Xxxx has
become physically or mentally incapable of performing his duties for a
continuous period of 120 days, or for a total of 120 days in any consecutive
twelve (12) month period.
5.3 "Constructive Termination" Defined. For the purposes of this
----------------------------------
Agreement, any of the following events or conditions which occur and are not
cured by @Home within thirty (30) days after @Home's receipt of Xxxx'x written
notice (the "Notice") of their occurrence will be considered to constitute
"Constructive Termination" of Xxxx and will be deemed to terminate the Agreement
on the date which is thirty (30) days after @Home's receipt of such Notice:
(a) a change in Xxxx'x status, title, position or
responsibilities (including reporting responsibilities) that,
in Xxxx'x reasonable judgment, represents a substantial
reduction of status, title, position or responsibilities as in
effect immediately prior thereto; the assignment to Xxxx of
any duties or responsibilities that, in Xxxx'x reasonable
judgment, are materially inconsistent with such status, title,
position or responsibilities; or any removal of Xxxx from or
failure to reappoint or reelect Xxxx to any such status,
title, position or responsibilities, except in connection with
the termination of Xxxx'x employment for Cause, for Xxxx'x
disability or death or on account of Xxxx'x voluntary
resignation of his status, title, position, responsibilities
or employment; provided that for purposes of all of the
foregoing, any change in status, title, position or
responsibilities as in effect prior to the Effective Date
shall not be considered to be Constructive Termination;
(b) a reduction in Xxxx'x Base Salary without Xxxx'x consent;
(c) requiring Xxxx (without Xxxx'x consent) to be based at
any place outside a thirty-five (35) mile radius of his place
of employment as of the Effective Date, except for reasonably
required travel related to his employment;
(d) @Home's failure to continue in effect any material
compensation or benefit plan, program or practice (or the
substantial equivalent thereof) in which Xxxx was
participating as of the Effective Date; or
(e) @Home's failure to continue in effect any material
compensation or benefit plan, program or practice (or the
substantial equivalent thereof) in which Xxxx will participate
after the Effective Date.
5.4 Effect of Termination for Cause. In the event of any termination of
-------------------------------
this Agreement for Cause ("TERMINATION FOR Cause"), @Home shall pay Xxxx the
compensation and benefits otherwise payable to Xxxx under Section 6 of this
Agreement through the date of termination set forth in a termination notice.
Xxxx'x rights under
-3-
@Home's benefit plans of general application shall be determined under the
provisions of those plans.
5.5 Effect of Termination Without Cause or Constructive Termination. In
---------------------------------------------------------------
the event of any termination of the Agreement upon a termination without Cause
("Termination without Cause") or a Constructive Termination, @Home shall:
(a) pay Xxxx the compensation and benefits otherwise payable
to Xxxx under Section 6 through such Termination without Cause
or Constructive Termination;
(b) pay Xxxx an amount equal to one (1) year of Base Salary
plus one (1) year of any incentive-based bonus in effect at
the target amount at the date of such Termination without
Cause or Constructive Termination;
(c) continue or accelerate the vesting of one (1) year of all
outstanding option grants which have been issued to Xxxx as of
the date of such Termination without Cause or Constructive
Termination, determined by whether continuation or
acceleration minimizes, if possible, the associated expense
charge to @Home; and
(d) continue for one (1) year Xxxx'x participation in @Home's
benefit plans of general application under the provisions of
those plans at @Home's expense and thereafter provide Xxxx
with health coverage under the provisions of the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended;
provided that such paid coverage shall terminate upon Xxxx
becoming covered under a similar plan of another employer.
5.6 Tax Defense and Indemnity. It is the intent of the parties that any
-------------------------
payment of compensation to Xxxx pursuant to Section 5.5 or pursuant to the
Merger Agreement, not expose Xxxx to any tax liabilities above and beyond those
liabilities associated with the payment of employment compensation generally.
Therefore, in the event that such intended tax treatment is challenged by the
Internal Revenue Service (the "IRS"), @Home will defend Xxxx from any and all
claims, liability, damages and/or costs (including, but not limited to,
attorneys fees) arising from any such challenge by the IRS. Xxxx will promptly
notify @Home of any and all such claims and will reasonably cooperate with @Home
with the defense and/or settlement thereof; provided that, if any settlement
requires an affirmative obligation of, results in any ongoing liability to or
prejudices or detrimentally impacts Xxxx in any way and such obligation,
liability, prejudice or impact can reasonably be expected to be material, then
such settlement shall require Xxxx'x written consent (not to be unreasonably
withheld or delayed) and Xxxx may have his own counsel in attendance at all
proceedings and substantive negotiations relating to such claim.
5.7 Restrictions on Competition after Termination. In the event of (i)
---------------------------------------------
a Termination without Cause or Constructive Termination and @Home's performance
of the obligations described in Section 5.5 of this Agreement or (ii) a
Termination for Cause pursuant to Section 5.2 of this Agreement and @Home's
performance of the
-4-
obligations described in Section 5.4 of this Agreement, Xxxx agrees that, for a
one (1) year period Xxxx shall not directly or indirectly, either for himself or
for any other person or business entity, participate as a manager, partner,
agent, active investor, consultant, director officer or employee in any business
entity or activity which is directly competitive with the business conducted by
Excite or @Home. This section shall not prohibit an investment by Xxxx in not
more than three percent (3%) of the securities of any corporation listed on the
New York or American Stock Exchanges or the securities of which are quoted on
the Automatic Quotation System on the National Association of Securities
Dealers, Inc.
6. Compensation and Benefits.
-------------------------
6.1 Compensation. @Home and Xxxx hereby agree that, commencing on the
------------
Effective Date, @Home will pay Xxxx the base salary of $210,000 ("Base Salary")
in accordance with @Home's normal payroll procedures.
6.2 Additional Benefits. Xxxx will be eligible to participate in
-------------------
@Home's employee benefit plans of general application, including without
limitation those plans covering pension and profit sharing, executive bonuses,
stock purchases, stock options, and those plans covering life, health, and
dental insurance in accordance with the rules established for individual
participation in any such plan and applicable law. Xxxx will receive such other
benefits, including vacation, holidays and sick leave, as @Home generally
provides to its employees. Xxxx'x target bonus shall be $150,000 and tied to
goals agreed to by the Board and Xxxx. As has been the case for the preceding
three years, Xxxx shall receive an advance of the $150,000 for 1999 in four
equal installments, repayable after March 2000 if such goals are not obtained.
6.3 Expenses. @Home will reimburse Xxxx for all reasonable and
--------
necessary expenses incurred by Xxxx in connection with @Home's business,
provided that such expenses are incurred in accordance with @Home's applicable
policy and are properly documented and accounted for in accordance with the
requirements of the Internal Revenue Service.
7. Proprietary Rights. Xxxx hereby agrees to execute an Employee
------------------
Invention Assignment and Confidentiality Agreement with @Home in substantially
the form attached hereto as Exhibit A.
---------
8. Employee Solicitation. So long as Xxxx is an employee of @Home and
---------------------
for one (1) year thereafter, Xxxx shall not, directly or indirectly, either for
himself or for any other person or entity, directly or indirectly, solicit,
induce or attempt to induce any employee of Excite or @Home and/or their
subsidiaries to terminate his or her employment with Excite or @Home and/or
their subsidiaries.
9. Miscellaneous.
-------------
9.1 Arbitration
(a) Arbitrable Claims. All disputes between Xxxx (and his
-----------------
attorneys, successors, and assigns) and Excite or @Home (and its affiliates,
shareholders,
-5-
directors, officers, employees, agents, successors, attorneys, and assigns)
relating in any manner whatsoever to the employment or termination of Xxxx,
including without limitation, all disputes arising under this Agreement,
("Arbitrable Claims") shall be resolved by binding arbitration. All persons and
entities specified in the preceding sentence (other than @Home and Xxxx) shall
be considered third-party beneficiaries of the rights and obligations created by
this Section 9.1. Arbitrable Claims shall include, but are not limited to,
contract (express or implied) and tort claims of all kinds, as well as all
claims based on any federal, state, or local law, statute, or regulation.
Arbitration shall be final and binding upon the parties and shall be the
exclusive remedy for all Arbitrable Claims.
Claims under applicable workers' compensation law and
unemployment insurance claims are not covered by the Agreement. Similarly,
claims for provisional relief, such as temporary restraining orders, preliminary
injunctions, attachments and the like, are not covered by this Agreement. Such
claims may include, but are not limited to, unfair competition and/or the use
and/or unauthorized disclosure of trade secrets or confidential information.
Xxxx understands and agrees that either party may seek and obtain relief for
such claims from a court with jurisdiction over the matter.
THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO
TRIAL BY JURY WITH REGARD TO ARBITRABLE CLAIMS.
(b) Procedure. The arbitration will be held under the auspices
---------
of either the American Arbitration Association ("AAA") or Judicial Arbitration &
Mediation Services, Inc. ("JAMS"), with the designation of the sponsoring
organization to be made by the party who did not initiate the claim.
Except as provided in the Agreement, the arbitration
shall be in accordance with the then-current Model Employment Arbitration
Procedures of AAA (if AAA is designated), or the then-current JAMS Employment
Arbitration Rules (if JAMS is designated). The arbitrator shall be either a
retired judge or an attorney licensed to practice law in the state in which the
arbitration is convened (the "Arbitrator"). The arbitration shall take place in
or near the city in which Xxxx is or was last employed by Excite.
The Arbitrator shall be selected as follows. The
sponsoring organization shall give each party a list of eleven (11) arbitrators
drawn from its panel of employment dispute arbitrators. Each side may strike all
names on the list it deems unacceptable. If only one (1) common name remains on
the lists of all parties, that individual shall be designated as the Arbitrator.
If more than one (1) common name remains on the lists of all parties, the
parties shall strike names alternately from the list of common names until only
one remains.
In any arbitration, the burden of proof shall be
allocated as provided by applicable law. Either party 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 or
administrative action in any way
-6-
related to any Arbitrable Claim. The Federal Arbitration Act shall govern the
interpretation and enforcement of this Section 9.1. The fees of the arbitrator
shall be split between both parties equally.
(c) Confidentiality. All proceedings and all documents
---------------
prepared in connection with any Arbitrable Claim shall be confidential and,
unless otherwise required by law, the subject matter thereof shall not be
disclosed to any person other than the parties to the proceedings, their
counsel, witnesses and experts, the arbitrator, and, if involved, the court and
court staff.
(d) Continuing Obligations. The rights and obligations of
----------------------
Xxxx and @Home set forth in this Section 9.1 shall survive the termination of
Xxxx'x employment and the expiration of the Agreement.
9.2 Release Prior to Receipt of Termination Benefits. If, pursuant to
------------------------------------------------
Sections 5.5 of this Agreement, Xxxx'x employment with @Home terminates, then
prior to, and as a condition of the receipt of any benefits under this Agreement
on account of such termination, Xxxx shall, as of the date of such termination,
execute an employee agreement and release in the form attached hereto as Exhibit
-------
B (the "Employee Agreement and Release"). Such Employee Agreement and Release
-
shall specifically relate to all of Xxxx'x rights and claims in existence at the
time of such execution and shall confirm Xxxx'x obligations under @Home's
standard form of Employee Invention Assignment and Confidentiality Agreement.
Xxxx has twenty-one (21) days to consider whether to execute such Employee
Agreement and Release and Xxxx may revoke such Employee Agreement and Release
within seven (7) days after execution of such Employee Agreement and Release. In
the event Xxxx does not execute such Employee Agreement and Release within the
twenty-one (21) days specified above, or if Xxxx revokes such Employee Agreement
and Release within the seven (7) day period specified above, no benefits shall
be payable to Xxxx on account of his termination under Section 5.5 of this
Agreement.
9.3 Severability. If any provision of the Agreement shall be found by
------------
any arbitrator or court of competent jurisdiction to be invalid or
unenforceable, then the parties hereby waive such provision to the extent that
it is found to be invalid or unenforceable and to the extent that to do so would
not deprive one of the parties of the substantial benefit of its bargain. Such
provision shall, to the extent allowable by law and the preceding sentence, be
modified by such arbitrator or court so that it becomes enforceable and, as
modified, shall be enforced as any other provision hereof, all the other
provisions continuing in full force and effect.
9.4 Remedies. @Home and Xxxx acknowledge that the service to be
--------
provided by Xxxx is of a special, unique, unusual, extraordinary and
intellectual character, which gives it peculiar value, the loss of which cannot
be reasonably or adequately compensated in damages in an action at law.
Accordingly, Xxxx hereby consents and agrees that for any breach or violation by
Xxxx of any of the provisions of the Agreement (including, without limitation,
Sections 3, 5.7, 7 and 8), a restraining order and/or injunction may be issued
against Xxxx, in addition to any other rights and
-7-
remedies @Home or its subsidiaries may have, at law or equity, including without
limitation the recovery of money damages.
9.5 No Waiver. The failure by either party at any time to require
---------
performance or compliance by the other of any of its obligations or agreements
shall in no way affect the right to require such performance or compliance at
any time thereafter. The waiver by either party of a breach of any provision
hereof shall not be taken or held to be a waiver of any preceding or succeeding
breach of such provision or as a waiver of the provision itself. No waiver of
any kind shall be effective or binding, unless it is in writing and is signed by
the party against whom such waiver is sought to be enforced.
9.6 Assignment. This Agreement and all rights hereunder are personal to
----------
Xxxx and may not be transferred or assigned by Xxxx at any time. Any attempt by
Xxxx to do so will be void and of no effect. @Home may assign its rights,
together with its obligations hereunder, to any parent, affiliate or successor,
or in connection with any sale, transfer or other disposition of all or
substantially all of its business and assets, provided, however, that any such
-------- -------
assignee assumes @Home's obligations hereunder.
9.7 Withholding. All sums payable to Xxxx hereunder shall be reduced by
-----------
all federal, state, local and other withholding and similar taxes and payments
required by applicable law.
9.8 Entire agreement. The Agreement constitutes the entire and only
----------------
agreement between the parties relating to employment of Xxxx with @Home and the
nonsolicitation obligations of the Xxxx and the Agreement supersedes and cancels
any and all previous contracts, arrangements or understandings with respect
thereto.
9.9 Amendment. The Agreement may be amended, modified, superseded,
---------
canceled, renewed or extended only by an agreement in writing executed by
@Home and Xxxx.
9.10 Notices. All notices and other communications required or
-------
permitted under this Agreement shall be in writing and hand delivered, sent by
confirmed facsimile, sent by registered mail, postage pre-paid, or sent by
nationally recognized express courier service. Such notices and other
communications shall be effective upon receipt if hand delivered or sent by
confirmed facsimile, five (5) days after mailing if sent by mail, and one (l)
day after dispatch if sent by express courier, to the following addresses, or
such other addresses as any party shall notify the other parties:
If to @Home: @Home, Inc.
000 Xxxxxxxx
Xxxxxxx Xxxx, XX 00000
Fax No.: 000-000-0000
Attention: General Counsel
-8-
If to Xxxx: Xxxxxx Xxxx
000 Xxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Fax No.: 000-000-0000
9.11 Binding Nature. The Agreement shall be binding upon, and inure to
--------------
the benefit of, the successors and personal representatives of the
respective parties hereto.
9.12 Headings. The headings contained in the Agreement are for
--------
reference purposes only and shall in no way affect the meaning or interpretation
of the Agreement. In the Agreement, the singular includes the plural, the plural
includes the singular, the masculine gender includes both male and female
referents, and the word "or" is used in the inclusive sense.
9.13 Counterparts. The Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original but all of which,
taken together, constitute one and the same agreement.
9.14 Governing Law. The Agreement and the rights and obligations of the
-------------
parties hereto shall be construed in accordance with the laws of California,
without giving effect to the principles of conflict of laws.
9.15 Attorney's Fees. In any legal action, arbitration, or other
---------------
proceeding brought to enforce or interpret the terms of the Agreement, the
prevailing party shall be entitled to recover reasonable attorneys' fees and
costs.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
-9-
IN WITNESS WHEREOF, @Home and Xxxx have executed the Agreement as of the date
first above written.
"XXXX"
/s/ Xxxxxx Xxxx
-------------------------------
Sign Name
Xxxxxx Xxxx
"@HOME"
At Home Corporation
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Its:
---------------------------
[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]
-10-
EXHIBIT A
EMPLOYEE INVENTION ASSIGNMENT AND CONFIDENTIALITY AGREEMENT
EXHIBIT B
EMPLOYEE AGREEMENT AND RELEASE
THIS EMPLOYEE AGREEMENT AND RELEASE ("Release") is between Xxxxxx Xxxx
("Employee") and At Home Corporation ("@Home"), a Delaware corporation, in
accordance with Section 9.2 of the Employment Agreement entered into by the
parties as of the Closing Date (the "Agreement"). Unless otherwise defined
herein, the terms defined in the Agreement shall have the same defined meanings
in this Release.
1. Payment of Salary. The parties acknowledge and agree that as of the
-----------------
Termination Date, all salary, and accrued Flexible Time Off, and any and all
other benefits, commissions or other such sums due Employee were paid to
Employee. In light of the payment by @Home of all wages due, or to become due to
Employee, California Labor Code Section 206.5 is not applicable to the parties
hereto. Said section provides in pertinent part:
No employer will require the execution of any release of any claim or
right on account of wages due, or to become due, or made as an advance
on wages to be earned, unless payment of such wages has been made.
2. Release. Employee and @Home, on behalf of themselves and their
-------
respective heirs, family members, executors, investors, employees, officers,
directors, agents, attorneys, legal successors and assigns, hereby fully and
forever release each other and their respective heirs, family members,
executors, investors, employees, officers, directors, agents, attorneys legal
successors and assigns, from and agree not to xxx concerning, any and all
claims, actions, obligations, duties, causes of action, whether now known or
unknown, suspected or unsuspected, that either of them may possess based upon or
arising out of any matter, cause, fact, thing, act, or omission whatsoever
occurring or existing at any time to and including the Effective Date
(collectively, the "Released Matters"), including without limitation,
(1) any and all claims, other than
breaches in Section 5.7 and Section 7 of the Employment Agreement, relating to
or arising from Employee's employment relationship with @Home and the
termination of that relationship;
(2) any and all claims relating to, or
arising from, Employee's right to purchase, or actual purchase of, shares of
stock of @Home, including, without limitation, any claims of fraud,
misrepresentation, breach of fiduciary duty, breach of duty under applicable
state corporate law, and securities fraud under any state or federal law;
(3) any and all claims for wrongful
discharge of employment; termination in violation of public policy;
discrimination; breach of contract, both express and implied; breach of a
covenant of good faith and fair dealing, both
express and implied; promissory estoppel; negligent or intentional infliction of
emotional distress; negligent or intentional misrepresentation; negligent or
intentional interference with contract or prospective economic advantage; unfair
business practices; defamation; libel; slander; negligence; personal injury;
assault; battery; invasion of privacy; false imprisonment; and conversion.
(4) any and all claims for violation of
any federal, state or municipal statute, including, but not limited to, Title
VII of the Civil Rights Act of 1964, the Civil rights Act of 1991, the Age
Discrimination in Employment Act of 1967, the Americans with Disabilities Act of
1990, the Fair Labor Standards Act, the Employee Retirement Income Security Act
of 1974, the Worker Adjustment and Retraining Notification Act, Older Workers
Benefit Protection Act, and the California Fair Employment and Housing Act, and
Labor Code section 201, et. seq.;
(5) any and all claims for violation of
the federal, or any state, constitution;
(6) any and all claims arising out of
any other laws and regulations relating to employment or employment
discrimination;
(7) any and all claims for attorneys'
fees and costs; and
(8) any and all claims either @Home or
Employee may have against the other for any acts by either occurring at any time
prior to the execution of this Release.
Each of the parties agrees that the foregoing enumeration of claims released is
illustrative, and the claims hereby released are in no way limited by the above
recitation of specific claims, it being the intent of the parties to fully and
completely release all claims whatsoever in any way relating to the Employee's
employment with @Home and to the termination of such employment. Each of the
parties agrees that the release set forth in this section will be and remain in
effect in all respects as a complete general release as to the matters released.
This release does not extend to any obligations incurred under the Agreement.
a. Employee represents that Employee's has no lawsuits,
claims or actions pending in Employee's name, or on behalf of any other person
or entity, against @Home or any other person or entity referred to herein.
Employee also represents that Employee does not intend to bring any claims on
Employee's own behalf against @Home or any other person or entity referred to
herein.
b. Employee represents that Employee is not aware of
any claim by Employee other than the claims that are released by this Release.
Employee acknowledges that Employee has been advised by legal counsel and is
familiar with Section 1542 of the Civil Code of the State of California, which
states:
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.
Employee expressly waives any right or benefit which Employee has or may have
under Section 1542 of the California Civil Code or any similar provision of the
statutory or non-statutory law of any other jurisdiction, including Delaware, to
the full extent that Employee may lawfully waive those rights and benefits
pertaining to the subject matter of this Release. The parties acknowledge that
in the future they may discover claims or facts in addition to or different from
those that they now know or believe to exist with respect to the subject matter
of this Release, and that each of Employee and @Home intend to fully, finally,
and forever settle all of the Released matters in exchange for the benefits set
forth in this Release and in the Agreement. This release will remain in effect
as a full and complete release notwithstanding the discovery or existence of any
additional claims or facts.
3. Indemnification. This Release shall not apply with respect to any
---------------
claims arising under Employee's existing rights to indemnification and defense
pursuant to the articles and bylaws of @Home for acts as a director and/or
officer or to Employee's rights of insurance under any director and officer
liability policy in effect covering @Home's directors and officers. @Home agrees
to maintain any such director and officer liability policy in effect with
respect to Employee's for services performed by him as an officer to the same
extent as other @Home officers.
4. Acknowledgment of Waiver of Claims under ADEA. Employee acknowledges
---------------------------------------------
that Employee is waiving and releasing any rights Employee's may have under the
Age Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Employee and @Home agree that this waiver and
release does not apply to any rights or claims that may arise under ADEA after
the Effective Date of this Release, Employee acknowledges that the consideration
given for this waiver and release agreement in addition to anything of value to
which Employee was already entitled. Employee further acknowledges that Employee
has been advised by this writing that:
a. Employee should consult with an attorney prior to
executing this Release;
b. Employee has at least twenty-one (21) days within
which to consider this Release, although Employee may accept the terms of this
Release at any time within those 21 days;
c. Employee has at least seven (7) days following the
execution of this Release by the parties to revoke this Release; and
d. This Release will not be effective until the
revocation period has expired.
5. Voluntary Execution of Agreement. This Release is executed
--------------------------------
voluntarily and without any duress or undue influence on the part or behalf of
the parties hereto, with the full intent of releasing all claims. The parties
acknowledge that:
a. they have read this Release;
b. they have been represented in the preparation,
negotiation, and execution of this Release by legal counsel of their own choice
or that they have voluntarily declined to seek such counsel;
c. they understand the terms and consequences of this
Release and of the releases it contains;
d. they are fully aware of the legal and binding effect
of this Release.
EMPLOYEE UNDERSTANDS THAT EMPLOYEE MAY CONSULT WITH
AN ATTORNEY BEFORE SIGNING THIS RELEASE AND
UNDERSTANDS THAT EMPLOYEE IS GIVING UP ANY LEGAL
CLAIMS EMPLOYEE HAS AGAINST @HOME BY SIGNING THIS
RELEASE. EMPLOYEE FURTHER ACKNOWLEDGES THAT EMPLOYEE
DOES SO KNOWINGLY, WILLINGLY, AND VOLUNTARILY IN
EXCHANGE FOR THE BENEFITS DESCRIBED IN SECTION 3 OF
THE AGREEMENT.
EMPLOYEE: AT HOME CORPORATION
Xxxxxx Xxxx ------------------------------
By:
Title:
------------------------------
Signature
Date: Date:
------------------------- -------------------------
