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EXHIBIT 10.37
AGREEMENT TO CHANGE STATUS AND RELEASE OF ALL CLAIMS
This Agreement to Change Status and Release all Claims ("Agreement") is
made between First Virtual Holdings Incorporated (EMPLOYER) and Xxxxxx X. Xxxx
(EMPLOYEE) in the complete, final, and binding settlement of all claims and
potential claims, if any, with respect to their employment relationship as of
January 13, 1998 ("Effective Date") and reflects a change in status.
Whereas, Employer has verbally informed Employee that it desires to change his
status from one of a full time Employee as of the Effective Date to part time
Consultant; and
Whereas, Employer is willing to honor Employee's Amended Employment Agreement
as a part of this change in status such that Employer will provide Employee
with:
(i) a lump sum payment equal to four (4) months salary and will continue to
provide medical benefits for four (4) months; and,
(ii) accelerated vesting of 25% of all previously unvested options as of the
Effective Date.
In consideration of the obligations identified below assumed by each of
the parties, it is hereby agreed by and between the parties that all disputes,
controversies, and potential disputes or causes of action or claims arising out
of, or in any way connected with, Employee's employment relationship with
Employer, whether known or unknown, suspected or unsuspected, which the Employee
and Employer, including but not limited to its parent corporation(s),
subsidiaries, Directors, shareholders, officers, trustees, employees, past and
present, successors, predecessors, assigns, and agents, has or may have had
against each other are settled on the following material terms:
1. Employee hereby resigns as General Counsel and Secretary as of the
Effective Date.
2. Employee represents and warrants, that to the best of his knowledge and
belief that nothing stated in the Registration Statement on Form S-1 filed with
the Securities and Exchange Commission relating to Employer's initial public
stock offering or the Employer's Form 10K filed for fiscal year 1996 or the
Employer's Form 10Q filed for first quarter, second quarter or third quarter
1997 ("SEC Filings") was false or inaccurate as of the date of such SEC Filings
or failed to state a fact that when considered in light of all facts and
circumstances would be considered material.
3. Employer has paid to Employee the total amount of $12,851.79 representing
salary earned and unpaid through 1/5/98, vacation pay earned and unused through
1/5/98, net applicable withholdings, and a refund of moneys paid into the
Employee Stock Purchase Plan. Employee agrees and understands that this payment
and transfer is a full satisfaction of any wages earned, but unpaid to date and
waives any right under California Labor Code Section 206.5.
4. Employer will pay Employee an additional amount of $53,333.36
representing four (4) months salary, net applicable withholdings.
5. Employer will provide Employee with health insurance coverage for the
period covering 1/2/98 through 5/2/98, representing Employer's obligation under
Employee's Amended Employment Agreement. This amount will be paid directly by
Employer. Employer hereby forgives the second
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installment of a loan due Employer from Employee in accordance with his Amended
Employment Agreement as of the Effective Date.
6. Employer and Employee agree that as of the Effective Date, the options to
purchase Common Stock held by Employee shall be exercisable as to the number of
shares set forth in the far right hand column below, for so long as such
options remain exercisable in accordance with their terms:
Option Date Type Granted Price Vested and Exercisable
4/29/96 ISO 15,000 $1 8437.50
7/18/96 ISO 20,000 $9 10,312.25
11/20/96 ISO 1666 $10.50 1666
11/20/96 NSO 23,334 $10.50 23,334
8/15/97 NSO 5000 $1 1250
8/15/97 NSO 45,000 $3.94 11,250
7. Employer agrees that the CEO and Chairman, Xxx X. Xxxxx or CFO, Xxxx
Xxxxxxxxxx are the only authorized persons currently employed by Employer
to provide a reference concerning Employee. Employer shall provide the
reference only after receiving written authorized consent or request
signed by Employee identifying the authorized inquirer.
8. Employee and Employer agree that the events leading to this Agreement and
Release, the fact of the Agreement and Release, and the terms and
conditions of the Agreement and Release are and shall be maintained in
privacy and confidence. Both parties agree that this confidentiality is a
material term of the Agreement and Release. Without waiving their
agreement concerning confidentiality, the parties agree that the
information regarding the monetary terms of this settlement may be
disclosed to any state or federal taxing authority as required by law.
Such disclosure shall not be deemed a breach of this Agreement. Nothing in
this paragraph is intended to restrict Employee from communicating with
prospective employers and job referral sources about Employee's job
experience at First Virtual, the nature and extent of job
responsibilities, level of performance, the dates of employment, and the
fact that Employee's status change resulted from a reorganization of
Employer and that this change in status was not performance related. Both
Employee and Employer agree that they will do nothing to disparage the
other in any communications after the date of this Agreement.
9. Employer further agrees that it will transfer by this Agreement certain
books as identified in Attachment A.
9.1 Each party acknowledges, complete satisfaction of, and does hereby forever
release, absolve, and discharge the other including but not limited to its
parent corporation(s), subsidiaries, Directors, shareholders, officers,
trustees, employees, past and present, successors, predecessors, assigns,
agents, attorneys, and representatives from any and all causes of action
judgments, liens indebtedness, damages, claims, liabilities, and demands,
and causes of action of whatever kind or nature (except for Employee's
right to unemployment insurance should Employee fail to obtain
re-employment after the termination of this agreement,) whether known or
unknown, suspected or unsuspected, which the parties now have or hold, or
at any time has or held against the other its parent corporation(s),
subsidiaries, shareholders, officer, trustees, employees, past and
present, successors, predecessors, assigns and agents. This release
expressly waives any and all claims each party may presently have against
the other regardless of the nature, source, or basis for any such claim.
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9.2 Without expanding or modifying same, the Company acknowledges its
continuing obligations under its letter provided Employee, dated
October 9, 1996 about certain rights of indemnification.
9.3 Employee represents and warrants that he has either destroyed or delivered
to Employer all documents and information in any media either provided
Employee by Company or developed by Employee during his employment.
Employee acknowledges and reaffirms his obligations under the Employee
Confidentiality and Invention Assignment Agreement dated April 29, 1996.
10. In executing this Agreement, the Parties acknowledge that they may in the
future discover facts different from or in addition to those which are the
subject of this Agreement, and agree that this Agreement shall remain in
effect in all respects, notwithstanding the discovery or existence of
different or additional facts. It is the intent of the Parties to
completely, finally, irrevocably, and forever release, forgive, remise,
acquit, and discharge the matters as provided herein; and in furtherance
of this intention, this Agreement shall remain in effect as a complete and
final release, forgiveness, and discharge of those matters, notwithstanding
the discovery or existence of different or additional facts relevant to
those matters. Therefore, the Parties waive all rights and benefits which
they may now have or in the future may have under and by virtue of the
terms of 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."
11. Employee and Employer each acknowledge that they have carefully read and
understand the contents of this Agreement and that this Agreement
constitutes the entire agreement and understanding of the parties. The
parties further agree that the terms of this Agreement are contractual and
that both parties, their heirs, successors, and assigns are bound by it,
and that any disputes as to its terms or its interpretation is governed by
laws of the state of California. Should any court of law find any term or
clause invalid under the prevailing law, then that term or clause only
shall be omitted from enforcement, all other terms and conditions
remaining enforceable.
12. Employee acknowledges complete satisfaction of, and does hereby forever
release, absolve, and discharge Employer, including but not limited to its
parent corporation(s), subsidiaries, shareholders, officers, trustees,
employees, past and present, successors, predecessors, assigns, agents,
attorneys, and representatives from any and all causes of action related
to the Age Discrimination in Employment Act (ADEA). Employee understands:
o That Employee has at least 45 days to review and execute this
release and to review information provided by the Company regarding all
employment terminations occurring on or around the same time as the termination
of Employee's employment; and,
o That Employee will have 7 days after executing this release to
revoke the release; and,
o That Employee is advised to consult with an attorney before
executing this release.
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Any revocation shall be in writing and shall be delivered to the Chief
Executive Officer by the close of business on the seventh business day from the
date Employee signs this agreement.
13. Employer agrees that Employee's phone number and voice mail shall remain
unchanged through January 31, 1997. Employee shall be allowed to dictate a
message that "for First Virtual matters, please call Xxxx Xxxxxxxx at 350-3507
and if you want to leave a message for Xxxxxx Xxxx, please do so and he will
return your call." Employee's password and access to voice mail shall be valid
through January 31, 1998.
14. Parties acknowledge that they both voluntarily and knowingly entered into
this Agreement, having full knowledge and understanding of its contents, its
effect, and of the rights that they may be waiving.
/s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
Date: 1/13/98
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First Virtual Holdings Incorporated
/s/ XXX X. XXXXX
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Xxx X. Xxxxx
Its Chairman and Chief Executive Officer
Date: 1/13/98
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ATTACHMENT A
TITLE PUBLISHER
1. Trade Secret Protection Xxxxxxx Legal Works
2. Computer Software Agreements WG&L
3. The Publishing Law Handbook Aspen
4. Corporate Partnering Aspen
5. Communications and Technology Alliances WG&L
6. The Law of Computer Technology WG&L
7. The Law Of Electronic Commerce Little, Xxxxx & Co.
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