Exhibit 10.10
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is made by
and between ZapMe! Corporation (the "Company"), and Xxxxxx X. Xxxxx
("Employee").
WHEREAS, Employee was employed by the Company;
WHEREAS, the Company and Employee have entered into a Confidential
Information, Invention Assignment and Terms of Employment Agreement (the
"Agreement");
WHEREAS, the Company and Employee have mutually agreed to terminate the
employment relationship and to release each other from any claims arising
from or related to the employment relationship;
NOW THEREFORE, in consideration of the mutual promises made herein, the
Company and Employee (collectively referred to as "the Parties") hereby agree
as follows:
1. TERMINATION. Employee's employment with the Company shall
terminate effective January 31, 1999 ("Termination Date").
2. CONSULTING AGREEMENT. The Company agrees retain Employee as a
consultant (in accordance with and under the terms of the Consulting
Agreement attached hereto as Exhibit A). The Company will file a Form 1099
with the Internal Revenue Service evidencing all payments made to Employee
under the Consulting Agreement.
3. EXPENSE REIMBURSEMENT. The Company will reimburse Employee for any
expenses incurred on behalf of the Company through the Termination Date. The
Company will also reimburse Employee for Employee's out-of-pocket costs to
maintain his existing employer-sponsored insurance benefits under COBRA
through July 3l, 1999.
4. CONFIDENTIAL INFORMATION. Employee shall continue to maintain the
confidentiality of all confidential and proprietary information of the
Company and shall continue to comply with the terms and conditions of the
Agreement between Employee and the Company. Employee shall return all
confidential and proprietary information belonging to the Company that is in
his possession by the Termination Date.
5. PAYMENT OF SALARY; ADDITIONAL BENEFITS. Employee acknowledges and
represents that the Company has paid all salary, wages, accrued vacation,
commissions and any and all other benefits due to Employee through the 31st
of January 1999, except as provided for in Section 7 of this Agreement.
6. STOCK OPTIONS. Employee and the Company agree that all vesting of
Employee's stock options, pursuant to a certain stock option agreement
previously entered into by and between the Company and Employee (the "Stock
Option Agreement") will cease as of January 31, 1999 and that as a result
Employee shall have no right to acquire stock in the Company through the
exercise or stock options pursuant to the Stock Option Agreement. Employee
has
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previously exercised his rights to acquire stock pursuant to the Stock Option
Agreement. Notwithstanding the foregoing, the Company shall permit Employee
to acquire 4,409 shares of the common stock of the Company in accordance with
the provisions of the Stock Option Agreement at a per share exercise price of
$.09 between November 30, 1999 and December 31 1999, provided that Employee
shall have faithfully and satisfactorily provided the Company consulting
services pursuant to the Consulting Agreement through November 30, 1999
(hereinafter, the "Supplemental Stock Option Exercise"). The Supplemental
Stock Option Exercise shall be made pursuant to the Stock Option Agreement
and in accordance with the terms and conditions set forth in the Company's
1997 Stock Option Plan, a copy of which has previously been provided to
Employee. Should a determination be made by a court of competent
jurisdiction, or other tribunal, that the Company has unreasonably withheld
from Employee his rights to the Supplemental Stock Option Exercise, the
Company agrees to reimburse Employee for his costs, including reasonable
attorneys' fees, in prosecuting an action to enforce his rights to the
Supplemental Stock Option Exercise.
7. RELEASE OF CLAIMS. Employee agrees that the foregoing
consideration represents settlement in full of all outstanding obligations
owed to Employee by the Company. Employee and the Company, on behalf of
themselves, and their respective heirs, executors, officers, directors,
employees, investors, shareholders, administrators, predecessor and successor
corporations, and assigns, hereby fully and forever release each other and
their respective heirs, executors, officers, directors, employees, investors,
shareholders, administrators, predecessor and successor corporations, and
assigns, from, and agree not to xxx concerning, any claim, duty, obligation
or cause of action relating to any matters of any kind, whether presently
known or unknown, suspected or unsuspected, that any of them may possess
arising from any omissions, acts or facts that have occurred up until and
including the Effective Date of this Agreement including, without limitation:
(a) any and all claims relating to or arising from Employee's
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from, Employee's
right to purchase, or actual purchase of shares of stock of the Company under
the Stock Option Agreement; (excluding delivery of stock certificate for
57,319 shares common stock per previous exercise)
(c) any and all claims for wrongful discharge of employment;
breach of contract, both express and implied; breach of a covenant of good
faith and fair dealing, both express and implied; negligent or intentional
infliction of emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective economic
advantage; and defamation;
(d) 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, and the California Fair Employment and Housing Act;
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(e) any and all claims arising out of any other laws and regulations
relating to employment or employment discrimination; and
(f) any and all claims for attorneys' fees and costs.
The Company and Employee agree that the release set forth in this section
shall 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 or owed pursuant to this Agreement.
8. CIVIL CODE SECTION 1542. The Parties represent that they are not
aware of any claim by either of them other than the claims that are released
by this Agreement. Employee and the Company acknowledge that they have been
advised by legal counsel and are familiar with the provisions of California
Civil Code Section Section 1542, which provides 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.
Employee and the Company, being aware of said code section, agree to
expressly waive any rights they may have thereunder, as well as under any
other statute or common law principles of similar effect.
9. CONFIDENTIALITY. The Parties hereto each agree to use their best
efforts to maintain in confidence the existence of this Agreement, the
contents and terms of this Agreement, and the consideration for this
Agreement (hereinafter collectively referred to as "Settlement Information").
Each Party hereto agrees to take every reasonable precaution to prevent
disclosure of any Settlement Information to third parties, and each agrees
that they will not cause there to be publicity, directly or indirectly,
concerning any Settlement Information. The Parties hereto agree to take every
precaution to disclose Settlement Information only to those employees,
officers, directors, attorneys, accountants, governmental entities, and
family members who have a reasonable need to know of such Settlement
Information.
10. DISPARAGEMENT. Each party agrees to refrain from any
disparagement, criticism, defamation, slander of the other, or tortious
interference with the contracts and relationships of the other,
11. TAX CONSEQUENCES. The Company makes no representations or
warranties with respect to the tax consequences of the payment of any sums to
Employee under the terms of this Agreement. Employee agrees and understands
that he is responsible for payment, if any, of local, state and/or federal
taxes on the sums paid hereunder by the Company and any penalties or
assessments thereon. Employee further agrees to indemnify and hold the
Company harmless from any claims, demands, deficiencies, penalties,
assessments, executions, judgments, or recoveries by any government agency
against the Company for any amounts claimed due on account of Employee's
failure to pay federal or state taxes or damages sustained by the Company by
reason of any such claims, including reasonable attorneys' fees.
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12. RETURN OF EQUIPMENT. Employee shall return to the Company all
Company property and equipment not later than five days from the Termination
Date. The Company shall permit Employee to use the Dell laptop computer
currently being used by Employee during the term of the Consulting Agreement.
13. COSTS. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees, if any, incurred in connection with this
Agreement.
14. AUTHORITY. The Company represents and warrants that the
undersigned has the authority to act on behalf of the Company and to bind the
Company and all who may claim through it to the terms and conditions of this
Agreement. Employee represents and warrants that he has the capacity to act
on his own behalf and on behalf of all who might claim through him to bind
them to the terms and conditions of this Agreement. Each Party warrants and
represents that there are no liens or claims of lien or assignments in law or
equity or otherwise of or against any of the claims or causes of action
released herein.
15. NO REPRESENTATIONS. Each party represents that it has had the
opportunity to consult with an attorney, and has carefully read and
understands the scope and effect of the provisions of this Agreement, Neither
party has relied upon any representations or statements made by the other
party hereto which are not specifically set forth in this Agreement.
16. SEVERABILITY. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
17. ENTIRE AGREEMENT. This Agreement represents the entire agreement
and understanding between the Company and Employee concerning Employee's
separation from the Company, and supersedes and replaces any and all prior
agreements and understandings concerning Employee's relationship with the
Company and his compensation by the Company.
18. NO ORAL MODIFICATION. This Agreement may only be amended in
writing signed by Employee and the Chief Executive Officer of the Company or
any individual substituting for the Chief Executive Officer of the Company
who has authority to bind the Company.
19. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California.
20. EFFECTIVE DATE. This Agreement is effective after it has been
signed by both Parties.
21. COUNTERPART. This Agreement may be executed in counterparts, and
each counterpart shall have the same force and effect as an original and
shall constitute an effective, binding agreement on the part of each of the
undersigned.
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22. VOLUNTARY EXECUTION OF AGREEMENT. This Agreement 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 Agreement;
(b) They have been represented in the preparation, negotiation,
and execution of this Agreement 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 Agreement
and of the releases it contains;
(d) They are fully aware of the legal and binding effect of this
Agreement.
23. ARBITRATION. The Company and Employee agree that any dispute or
controversy arising out of or relating to any interpretation, construction,
performance or breach of this Agreement, shall be settled by arbitration to
be held in Contra Costa County, California, in accordance with the rules then
in effect of the American Arbitration Association. The arbitrator may grant
injunctions or other relief in such dispute or controversy. The decision of
the arbitrator shall be final, conclusive and binding on the parties to the
arbitration. Judgment may be entered on the arbitrator's decision in any
court of competent jurisdiction. The Company and Consultant shall each pay
one-half of the costs and expenses of such arbitration, and each shall
separately pay its respective counsel fees and expenses.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
ZAPME! CORPORATION
Dated: January 29, 1999 BY: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
General Counsel
EMPLOYEE
Dated: January 29, 1999 BY: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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