EXHIBIT 10.10
GENERAL RELEASE OF ALL CLAIMS,
COVENANT NOT TO SUE
AND CONFIDENTIALITY AGREEMENT
I, Xxxxxx Xxxxxxx, on behalf of myself, my representatives, heirs, executors,
administrators, successors, and assigns, (hereinafter collectively referred to
as "I/me"), and NETWORK EQUIPMENT TECHNOLOGIES, INC., its affiliated and
subsidiary entities, and the officers, directors, agents, employees, attorneys,
successors, and assigns of all of them (hereinafter collectively referred to as
"N.E.T."), agree as follows:
1. I am currently employed by N.E.T. as Sr. Vice President, Marketing in its
Fremont office.
2. The parties wish to preserve the good will that exists between them while
settling all disputes that may exist between them and avoiding further
controversies.
3. Continuation of my employment with N.E.T. is not in the best interest of
either party, and N.E.T. and I mutually agree to sever our employer/employee
relationship effective April 1, 1999 ("termination date").
4. N.E.T. will pay to me the sum of $17,500 per month commencing on the
termination date, and ending on March 31, 2000 ("ending date"). Installments
will be paid bi-weekly, less all applicable deductions. N.E.T. shall continue to
provide the following benefits: medical, dental, disability, and life insurances
until the ending date to the same extent as made available to regular employees
of N.E.T. Any accrued vacation as of the termination date will be paid out to me
by the termination date.
I shall be eligible to receive a Variable Compensation Payment for fiscal year
1999, if any Variable Compensation is granted to other eligible N.E.T. officers
and one year of Officer's Variable Compensation, if any is granted to other
eligible N.E.T. officers for fiscal year 2000 (computed using the mid-point of
the applicable range and the company "meets plan"). The Variable Compensation
payment to me, if any, shall be calculated in a manner that is consistent with
payments made to other N.E.T. officers, and such payment, if any, shall be made
to me at the same time that similar payments are made to the other N.E.T.
officers.
Immediate payment on the termination date of deferred, Long Term Variable
Compensation bonus from fiscal years 1997 ($33,750), and 1998 ($30,000), for a
gross total of $63,750.00, plus any Long Term Variable Compensation bonus to
which I would be entitled during fiscal year 1999. The deferred Long Term
Variable Compensation payment to me, if any, shall be calculated in a manner
that is consistent with any deferred Long Term Variable Compensation bonus
awarded to other N.E.T. officers.
My stock options and restricted stock will continue to vest through the ending
date. Any options vested by such date may be exercised up to three months after
the ending date, subject to the N.E.T. Stock Option Agreement concerning such
options.
N.E.T. Confidential
Should I secure employment or enter full-time consulting or similar
relationships with one or more entities or persons (collectively "other
employment") during the period set forth above in the first paragraph of this
Section 4, I shall immediately inform the Sr. Vice President of Corporate
Services of N.E.T. and my entitlement to continuation of benefits and payments
provided under this Release shall terminate on the earlier of thirty (30) days
after commencement of such other employment or the above ending date.
5. For and in consideration of the obligations of N.E.T. incurred in Section 4
of this General Release Of All Claims, Covenant Not To Sue And Confidentiality
Agreement (hereinafter "Release"), I hereby completely release and forever
discharge N.E.T. from all claims, rights, demands, actions, obligations,
liabilities, debts and causes of action of any and every kind, nature and
character whatsoever, known or unknown, which I may now have or have ever had
against N.E.T. (hereinafter, "all claims"), including without limitation all
claims arising from or in any way connected with my employment by N.E.T. or the
termination of that employment, whether based in tort or contract (express or
implied), or on any federal, state, or local law, statute, or regulation, and
all claims I may have filed or caused to be filed in any court of law or before
any state or federal administrative agency before the execution of this Release.
6. I understand and agree that in consideration of the foregoing I am waiving
any rights I may have had, now have, or in the future may have to pursue any and
all remedies available to me under any employment-related cause of action
against N.E.T., including without limitation, claims of wrongful discharge,
emotional distress, defamation, breach of contract, breach of the covenant of
good faith and fair dealing, vacation pay after the resignation date, violation
of the provisions of the California Labor Code, the California Fair Employment
and Housing Act, and any claims under federal or California statutory or
decisional law pertaining to wrongful discharge, discrimination, retaliation, or
breach of public policy, any claims arising under Title VII of the Civil Rights
Act of 1964, as amended, the California Constitution, the Equal Pay Act of 1963,
the Age Discrimination in Employment Act of 1967 as amended ("ADEA"), the Civil
Rights Act of 1866, the Employee Retirement Income Security Act, and any other
laws and regulations relating to employment. In order to assure that this waiver
of rights under the ADEA is effective, I hereby acknowledge and agree that I may
have, and have had, at least 21 days after receipt of this Release within which
to review, consider and discuss this Release with an attorney of my choosing and
to decide whether or not to execute this Release. I understand that I have seven
(7) days after execution of this Release within which to revoke this Release by
providing to the Sr. Vice President of Corporate Services of N.E.T. a signed,
written statement revoking this Release. Finally, I understand and agree that
this Release shall not become effective and that I shall not be entitled to any
consideration hereunder (even if already received) until such seven (7) day
period has expired without any revocation.
7. I understand and agree that this is a full and final release covering all
known, unknown and unanticipated injuries, debts, claims, or damages to me which
have arisen or may have arisen in connection with my employment with N.E.T., as
well as those injuries, debts, claims or damages not now known or disclosed
which may arise from my employment, as specifically described above. I
understand that Section 1542 of the California Civil Code, 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.
N.E.T. Confidential -2-
The provisions of Section 1542 of the California Civil Code and any analogous
state or federal law, if in any way applicable, are hereby waived by me. I
specifically affirm my intention to release not only those claims I know about
but also those claims against N.E.T. that I may not know about.
8. I agree that I will not initiate or cause to be initiated against N.E.T. any
compliance review, suit, action, investigation, or proceeding of any kind, or
participate in same, individually or as a representative or member of a class,
whether under any contract (express or implied) or otherwise, or under any law
or regulation, whether federal, state, or local, pertaining in any way to any
matter herein released, unless I am required to do so by law. I further agree
that I have no right to future employment with N.E.T. and that N.E.T. will have
no obligation to re-employ me at any time in the future.
9. I will maintain both the fact and terms of this Release and any consideration
that I receive in strict confidence, and will not disclose the fact of this
Release or any of its terms, including the fact or amount of any payment to any
other person or entity (other than my spouse, my attorney and accountant in this
matter solely for use in providing counsel and advice to me in this matter) for
any reason, at any time, without the prior written consent of N.E.T., unless
required by law. N.E.T. agrees to maintain the fact and terms of this Release,
and payments under this Release in confidence, except for those agents,
employees and representatives of N.E.T. with a need to know. I understand and
agree that this confidentiality provision is an essential and material term of
this Release and I agree that if I violate this provision, N.E.T. will be
relieved of any obligation to make future payments to me under this agreement;
that I will refund one-half of all sums previously paid to me hereunder and that
N.E.T. will be entitled, without limitation, to pursue legal and equitable
remedies for such violation.
10. I represent and warrant that I do not have in my possession, and that I have
not failed to return to N.E.T. (a) any records, documents, data, specifications,
drawings, blueprints, reproductions, sketches, notes, reports, proposals, or
copies of the foregoing, or other documents or material, or (b) any equipment or
other property belonging to N.E.T. or any of its subsidiaries or employees
except the following:
________________________________________________________________________________
___________________________________________________(write "None" if appropriate)
I will provide make, model, serial number and N.E.T. asset tag number for any
equipment described above within two (2) weeks of execution of this Release. The
above identified items shall be returned as follows:
________________________________________________________________________________
________________________________________________________________________________
11. I represent and warrant that I have complied with and will continue to
comply with all terms of the N.E.T. Employee Proprietary or Confidential
Information and Inventions Agreement signed by me, including, without
limitation, refraining from soliciting N.E.T. employees; reporting to N.E.T. any
inventions (as defined therein) conceived or made by me; and preserving as
confidential all trade secrets, confidential information, knowledge, data or
other confidential information relating to products, processes, know-how,
designs, formulas, test data, customer lists, customer information, employees,
the abilities of employees or other confidential subject matter pertaining to
any business of N.E.T. or any of its clients, customers, licensees or
affiliates.
N.E.T. Confidential -3-
12. I understand and agree that the furnishing of the consideration for this
Release will not be deemed or construed at any time or for any purpose as an
admission of liability or wrongdoing by N.E.T. Liability for any and all claims
is expressly denied by N.E.T. I further understand and agree that the each of
the releases, waivers and other provisions of Sections 5 through 11 and the
covenants contained in Section 15 are material inducements to N.E.T. for
entering into this Release and that, for the breach of any of them N.E.T. will
be entitled to pursue legal and equitable remedies, including, without
limitation, the right to seek restitution and injunctive relief.
13. This Release shall be deemed to have been entered into in the State of
California by residents of that state and shall be construed and enforced in
accordance with and governed by the laws of that state.
14. Should any part, term, or provision of this Release be declared or
determined by any court to be illegal or invalid, the validity of the remaining
parts, terms, or provisions will not be affected thereby and said illegal or
invalid part, term, or provision will be deemed not to be a part of this
Release.
15. N.E.T. and I will fully cooperate in any internal N.E.T. or external
investigations or litigation concerning or relating to N.E.T. and any of
N.E.T.'s or my activities during the time that I was employed by or serving as a
consultant to N.E.T. N.E.T. and I will promptly advise the other of any formal
or informal requests for information or cooperation that may concern or relate
to the interests of the other in connection with any such investigation or
litigation. Without the written consent of N.E.T., prior to the ending date I
will not become employed by nor be a consultant to any person or company that I
know or reasonably should have known at the time of commencing such relationship
competes directly with products or services marketed by N.E.T.
16. I acknowledge that I have been given at least 21 days to review the
foregoing Release and to consult counsel of my own choice concerning the
waivers, releases and other provisions before signing this Release, that I am
fully aware of the contents of this Release and of its legal effect, that the
preceding paragraphs recite the sole consideration for this Release, that all
agreements and understandings between N.E.T. and me are embodied and expressed
herein, and that I enter into this Release freely, without coercion, and based
on my own judgment and not in reliance upon any representations or promises made
by N.E.T. or anyone, other than those contained herein. Except as expressly
provided herein, this Release shall supersede and render null and void any and
all prior agreements between the parties. This Release may not be modified
except in a writing signed by me and the Sr. Vice President of Corporate
Services of N.E.T.
17. Should I at any time contest the validity or enforceability of this Release,
I agree to immediately repay to N.E.T. any and all monies and other
consideration that have been provided to me by N.E.T. pursuant to this Release.
Date: February 10, 1999 /s/ Xxxxxx Xxxxxxx
---------------------------
Xxxxxx Xxxxxxx
Network Equipment Technologies, Inc.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Its: Sr. VP Corporation Services
Date: February 10, 1999
N.E.T. Confidential -4-
