EMPLOYMENT SEVERANCE AGREEMENT
Exhibit
10.1
Solar
Power, Inc. (the
"Company") and Xxxxx X.
Xxxxxxxx (the "Employee"), agree as follows, as of the 26 day of
December, 2007:
1. Employment. The
Employee's employment as Chief Financial Officer for the Company and as an
employee of the Company was terminated, effective the end of the workday,
December 31, 2007 (“Termination Date”). The Employee is required to
complete the Company's exit interview within two (2) days after the Termination
Date. The Company and the Employee agree to mutually sever their
employment relationship pursuant to the terms and conditions set forth in
this
Employment Severance Agreement ("Agreement").
2. Position;
Scope of
Employment. The Employee shall cease functioning in the
position of Chief Financial Officer for the Company and shall cease to be
an
employee for the Company in any capacity, effective on the Termination
Date. Employee further resigns as a Director of the Company as of the
Termination Date.
3. Severance
Payments. The Company shall make severance payments to the
Employee as set forth in this Section 3 for the period January 1, 2008 through
March 31, 2008 (the "Severance Period"). The aggregate value of the
severance payments per month shall be $12,500 (Twelve Thousand Five Hundred
Dollars) (“Monthly Severance Payment’). All severance payments of
every description shall be subject to the customary withholding tax and other
employment taxes as required with respect to compensation paid to the
Employee.
3.1. Cash
Payments. During the Severance Period, the Company shall pay
the Employee the Monthly Severance Payment as set forth in Section 3 in equal
semi-monthly installments at the Company’s regular scheduled payroll
intervals.
3.2. Medical
and Health
Benefits. The Employee will also be offered the opportunity
for continued coverage under the Company’s health insurance plans, as required
by COBRA. The Company's insurance agent will send the Employee
information regarding this coverage.
3.3 Stock
Option
Grants. Will terminate in accordance with provisions of the
Solar Power, Inc. 2006 Equity Incentive Plan.
4. Release
of
Liability. The Employee acknowledges that he or she enters
this Agreement freely and voluntarily, and agrees as follows:
4.1. Age
Discrimination in Employment Act
of 1967. The Employee represents that he or she understands
and acknowledges that the Age Discrimination in Employment Act of 1967, as
amended, provides him or her the right to bring a claim against the Company
if
the Employee believes that he or she has been discriminated against on the
basis
of age. The Employee expressly warrants that he or she will not file
any claim or action against the Company or any entity or employee associated
with or employed by the Company based on any alleged violations of the Age
Discrimination in Employment Act of 1967, as amended, arising prior to the
date
of this Agreement. The Employee hereby waives any right to assert a
claim for relief under the Age Discrimination in Employment Act of 1967,
as
amended, including but not limited to, back pay, attorneys' fees, damages,
reinstatement or injunctive relief.
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4.2. OlderWorker’s
Benefit
Protection. Pursuant to the terms of the Older Workers'
Benefit Protection Act (OWBPA), the Employee acknowledges that he or she
has
twenty-one (21) days from the date of presentation of this Agreement to him
or
her, which occurred on December 26, 2007, in which to consult with an attorney
regarding the terms and conditions of this Agreement. The Employee
acknowledges that, by the terms of this Agreement, the Employee has been
advised
in writing that during the aforementioned twenty-one (21) day period, the
Employee should consult with an attorney regarding the terms and conditions
of
this Agreement. The Employee further acknowledges that, by the terms
of this Agreement, he or she has been advised that following execution of
this
Agreement, he or she has seven (7) days in which he or she may revoke this
Agreement
4.3. Title
VII
Claims. The Employee acknowledges that Title VII of the Civil
Rights Act of 1964, as amended, the Civil Rights Act of 1991, the Americans
With
Disabilities Act, the Age Discrimination in Employment Act of 1967, the Vietnam
Era Veterans Readjustments Assistance Act of 1974, the Federal Family and
Medical Leave Act of 1993, the California Family Rights Act of 1991 and the
California Fair Employment and Housing Act, as amended, provide the right
to an
employee to bring charges, claims or complaints against an employer if the
employee believes he or she has been discriminated against on a number of
bases,
including race, ancestry, color, religion, sex, marital status, national
origin,
age, status as a veteran of the Vietnam era, request or need for family or
medical leave, physical or mental disability, medical condition or sexual
preference, or retaliation by Employer for making any such
claims. The Employee, with full understanding of the rights afforded
him or her under these federal and state laws, agrees that he or she will
not
file, or cause to be filed against the Company, any charges, complaints,
or
actions based on any alleged violation of these federal and state laws, or
any
successor or replacement federal or state laws. The Employee hereby
waives any right to assert a claim for relief available under these federal
and
state laws including, but not limited to, back pay, attorneys' fees, damages,
reinstatement, or injunctive relief, which the Employee may otherwise recover
based on any alleged violation of these federal and state laws, or any successor
or replacement federal or state laws.
4.4. General
Release. The Employee hereby agrees that all of his or her or
her rights under section 1542 of the Civil Code of the State of California
are
hereby waived. Section 1542 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 or her or her settlement with
the
debtor."
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Notwithstanding
the provisions of section 1542, the Employee hereby irrevocably and
unconditionally releases and forever discharges the Company and all of its
officers, agents, directors, supervisors, employees, representatives and
their
successors and assigns and all persons acting by, through, under or in concert
with any of them from any and all charges, complaints, grievances, claims,
actions, and liabilities of any kind (including attorneys' fees, interest,
expenses and costs actually incurred) of any nature whatsoever, known or
unknown, suspected or unsuspected (hereinafter referred to as "Claims"),
which
the Employee has or may have in the future, arising out of the Employee's
employment with the Company. All such Claims are forever barred by
this Agreement and without regard to whether these Claims are based on any
alleged breach of duty arising in contract or tort, any alleged employment
discrimination or other unlawful discriminatory act, or any claim or cause
of
action regardless of the forum in which it may be brought, including without
limitation, claims under the National Labor Relations Act, Title VII of the
Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act of 1964, as amended, the Americans With
Disability Act, the California Family Rights Act of 1991, the Federal Family
and
Medical Leave Act of 1993, the Vietnam Era Veterans Readjustment Assistance
Act
of 1974, the California Fair Employment and Housing Act, California Labor
Code
section 132a, any allegation of wrongful termination and any claim arising
out
of Article 1, section 8 of the Constitution of the State of California.
5. Vacation
and Sick
Leave. Vacation and sick leave ceased accruing on the
Termination Date. The Employee acknowledges that he or she has been
paid for all accrued, but unused vacation pay or does not have any vacation
pay
owed to him or her.
6. Business
Expenses. The Employee has been reimbursed for all business
expenses, in accordance with the Company's reimbursement policy.
7. Confidential
Information. The Employee acknowledges that during the course
of his or her duties with the Company, he or she handled confidential
information of the Company and its affiliates. The Employee agrees he
or she will retain in the strictest confidence all confidential matters which
relate to the Company or its affiliates, including, without limitation, pricing
lists, business plans, financial projections and reports, business strategies,
internal operating procedures and other confidential business information
from
which the Company derives an economic or competitive advantage or from which
the
Company might derive such advantage in its business, whether or not labeled
"secret" or "confidential," and not to disclose directly or indirectly or
use by
him or her in any way, either during the term of this Agreement or at any
time
thereafter except as permitted by law.
8. Trade
Secrets. The
Employee shall not disclose to any others or take or use for the Employee's
own
purposes or purposes of any others at any time, any of the Company's trade
secrets, including without limitation, confidential information; customer
lists;
information concerning current or any future and proposed work, services
or
products; the fact that any such work, services or products are planned,
under
consideration, or in production, as well as any description thereof, computer
programs or computer software. The Employee agrees that these
restrictions shall also apply to (i) trade secrets belonging to third parties
in
the Company's possession and (ii) trade secrets conceived, originated,
discovered or developed by the Employee during the term of his or her
employment.
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9. Inventions;
Ownership
Rights. The Employee agrees that all ideas, techniques,
inventions, systems, formulas, discoveries, technical information, programs,
prototypes and similar developments ("Developments") developed, created,
discovered, made, written or obtained by him or her in the course of or as
a
result, directly or indirectly, of performance of his or her duties to the
Company, and all related industrial property, copyrights, patent rights,
trade
secrets and other forms of protection thereof, shall be and remain the property
of the Company. The Employee agrees to execute or cause to be
executed such assignments and applications, registrations and other documents
and to take such other action as may be requested by the Company to enable
the
Company to protect its rights to any such Developments.
10. No
Disparagement of the
Company. The Employee
agrees that he
or she will not make any statements, which may appear derogatory about or
disparaging to the Company or any of its agents, officers, directors or other
employees, except as may be required by court order.
11. Non-Interference;
No
Solicitation. The Employee agrees not to interfere with any of
the Company's contractual obligations with others. Furthermore, the
Employee agrees during a period of two years after the date of this Agreement,
the Employee agrees to not, without the Company's express written consent,
on
his or her behalf or on behalf of another: (i) contact or solicit the business
of any client, customer, creditor or licensee of the Company, (ii) hire
employees of the Company, other than clerical employees, (iii) solicit the
business of any client, customer or licensee of the Company. The
Employee acknowledges that this section 11 is a reasonable and necessary
measure
deigned to protect the proprietary information of the Company.
12. Return
Company
Property. The Employee agrees that he or she will promptly,
within two (2) business days, return to the Company, all the Company's or
its
affiliates' memoranda, notes, records, reports, manuals, drawings, designs,
computer files in any media and other documents (including extracts and copies
thereof) relating to the Company or its affiliates, and all other property
of
the Company.
13. Actions
Contrary to
Law. Nothing contained in this Agreement shall be construed to
require the commission of any act contrary to law, and whenever there is
any
conflict between any provision of this Agreement and any statute, law,
ordinance, or regulation, contrary to which the parties have no legal right
to
contract, then the latter shall prevail; but in such event, the provisions
of
this Agreement so affected shall be curtailed and limited only to the extent
necessary to bring it within legal requirements.
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14.
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Miscellaneous.
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14.1. Notices. All
notices to be given by either party to the other shall be in writing and
may be
transmitted by personal delivery, facsimile transmission, overnight courier
or
mail, registered or certified, postage prepaid with return receipt requested;
provided, however,
that notices
of change of address or facsimile number shall be effective only upon actual
receipt by the other party. Notices shall be delivered at the
following addresses, unless changed as provided for herein:
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To
the Employee:
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Xxxxx
X.
Xxxxxxxx
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000
Xxxxxxx
Xxxxxx
Xxxxxx,
XX 00000
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To
the Company:
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Xxxx
X. Xxxxx, Vice President
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0000
Xxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000-0000
14.2. Entire
Agreement. This Agreement supersedes any and all agreements,
either oral or written, between the parties hereto with respect to its subject
matter. Each party to this Agreement acknowledges that no
representation, inducements, promises, or agreements, orally or otherwise,
have
been made by any party or anyone acting on behalf of any party, which are
not
embodied herein, and that no other agreement, statement, or promise not
contained in this Agreement shall be valid or binding. Any
modification of this Agreement will be effective only if it is in writing
and
signed by both parties.
14.3. Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws
of the
State of California.
14.4. Jurisdiction
and
Venue. The parties hereby consent to the exclusive
jurisdiction of the state and federal courts sitting in California in the
venue
of Sacramento County in any action on a claim arising out of, under or in
connection with this Agreement or the transactions contemplated by this
Agreement, provided such claim is not required to be arbitrated pursuant
to
Section 14.5. The parties further agree that personal jurisdiction
over them may be effected by notice as provided in Section 14.1, and that
when
so made shall be as if served upon them personally within the State of
California.
14.5 Arbitration. Any
controversy, dispute or claim arising out of or relating to this Agreement,
performance hereunder or breach thereof, which cannot be amicably settled,
shall
be settled by arbitration conducted in Santa Xxxxx County or such other mutually
agreed upon location. Said arbitration shall be conducted in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association at a time and place within the above-referenced location as selected
by the arbitrator(s).
a. Initiation
of
Arbitration. After seven (7) days prior written notice to the
other, either party hereto may formally initiate arbitration under this
Agreement by filing a written request therefore, and paying the appropriate
filing fees, if any.
b. Hearing
and Determination
Dates. The hearing before the arbitrator shall occur within
thirty (30) days from the date the matter is submitted to
arbitration. Further, a determination by the arbitrator shall be made
within forty-five (45) days from the date the matter is submitted to
arbitration. Thereafter, the arbitrator shall have fifteen (15) days
to provide the parties with his or her decision in writing. However,
any failure to meet the deadlines in this paragraph will not affect the validity
of any decision or award.
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c. Binding
Nature of
Decision. The decision of the arbitrator shall be binding on
the parties. Judgment thereon shall be entered in a court of
competent jurisdiction.
d. Injunctive
Actions. Nothing herein contained shall bar the right of
either party to seek to obtain injunctive relief or other provisional remedies
against threatened or actual conduct that will cause loss or damages under
the
usual equity rules including the applicable rules for obtaining preliminary
injunctions and other provisional remedies.
e. Fees
and Costs. The
cost of arbitration, including the fees of the arbitrator, shall initially
be
borne by the Company; provided, the prevailing party (as determined by the
arbitrator) shall be entitled to recover all such costs allowed by law, in
addition to attorneys’ fees and other costs, in accordance with Section 14.6 of
this Agreement.
14.6. Attorneys'
Fees. In the event
of any
litigation, arbitration, or other proceeding arising out of this Agreement,
or
the parties’ performance as outlined herein, the prevailing party shall be
entitled to an award of costs, including an award of reasonable attorneys’
fees. Any judgment, order, or award entered in any such proceeding
shall designate a specific sum as such an award of attorneys’ fees and costs
incurred. This attorneys’ fee provision is intended to be severable
from the other provisions of this Agreement, shall survive any judgment or
order
entered in any proceeding and shall not be deemed merged into any such judgment
or order, so that such further fees and costs as may be incurred in the
enforcement of an award or judgment or in defending it on appeal shall likewise
be recoverable by further order of a court or panel or in a separate action
as
may be appropriate.
14.7. Amendment,
Waiver. No amendment or variation of the terms of this
Agreement shall be valid unless made in writing and signed by the Employee
and
the Company. A waiver of any term or condition of this Agreement
shall not be construed as a general waiver by the Company. Failure of
either the Employee or the Company to enforce any provision or provisions
of
this Agreement shall not waive any enforcement of any continuing breach of
the
same provision or provisions or any breach of any provision or provisions
of
this Agreement.
14.8. Ambiguities. This
Agreement shall not be subject to the rule that any ambiguities in the contract
are to be interpreted against the drafter of the Agreement.
14.9. Counterparts.
This Agreement may be
signed in one or more counterparts (by facsimile or otherwise), all of which
shall be treated as one and the same instrument.
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first hereinabove written.
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THE
EMPLOYEE
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Date: _____
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__________________________________
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Name: Xxxxx
X
Xxxxxxxx
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THE
COMPANY
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Date: _____
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By: ______________________________
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