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EXHIBIT 10.24
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and general Release (the "Agreement") is entered into
this 1st day of July, 1998, between Geoworks Corporation, a Delaware corporation
("Company") and Jordan X. Xxxxxxx ("Employee").
WHEREAS, Company and Employee desire to resolve any and all claims, demands,
rights or actions, arising out of or in connection with Employee's employment or
separation from employment with Company, whether legal, equitable, contractual,
statutory (federal, state, or local) or otherwise without litigation.
IN CONSIDERATION OF THE MUTUAL AGREEMENTS AND COVENANTS SET FORTH HEREIN, THE
PARTIES AGREE AS FOLLOWS:
1. Employee shall resign from the office of Vice President, General Counsel,
which resignation shall be deemed effective as of July 24, 1998 ("Resignation
Date"). Employee will continue as an employee of the Company through September
30, 1998 ("Termination Date"). No further Paid Time Off will be accrued during
the period between Resignation Date and Termination Date.
2. Employee shall be paid the value of any unused PTO as of July 24, 1998 on
August 31, 1998 and will receive semi-monthly paychecks calculated as the
pro-rata amount of a monthly payment of $13,666.67 from the Resignation Date to
the Termination Date ("Settlement Sum"). All payments shall be less withholdings
required by law. Federal and state withholding taxes on income, state disability
insurance, FUTA and FICA contributions will continue to be withheld on the same
basis currently in effect, subject to any changes in governmental regulations or
general company policy which may require adjustment to the current amounts.
Payment of the Settlement Sum shall be subject to and on condition that, as of
the date of each payment, Employee is in compliance with all material terms of
this agreement.
3. The Company reaffirms its obligation under Employee's June 20, 1997
engagement letter (the "Engagement Letter"), to provide tax return preparation
and income tax equalization. Income tax equalization shall be administered
pursuant to the Geoworks U.S. Tax Equalization Policy.
4. The Company reaffirms its obligation under the Engagement Letter to provide
reimbursement for reasonable expenses related to Employee's relocation from The
Netherlands to the San Francisco Bay Area. Additionally, the Company agrees to
cover any ongoing costs, such as rental and realtor commission, that may remain
in the Netherlands.
5. Employee reaffirms his obligation to repay the outstanding balance of an
automobile loan in the sum of three thousand five hundred forty-three dollars
and forty-one cents ($3,543.41) (the principal balance owed as of July 31,
1998). The Company may deduct said sum from the final payment to be made to
Employee under paragraph 2, above.
6. For the period from July 7, 1998 through July 24, 1998, Employee agrees to
cooperate with Company as necessary, to provide information known to Employee
(both written and electronic) concerning the operations of Company and Company's
customers, and to provide an orderly transition with respect to Employee's work
in progress. Employee further agrees to be reasonably available for brief
telephone consultation with the executive staff and legal department of Company
concerning transition matters during the period from August 1 through September
30, 1998.
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7. Employee's stock options shall continue to vest up to and including August
24, 1998, in accordance with the terms of the Stock Option Agreement between
Company and Employee. Said options may be exercised by Employee within ninety
(90) days of Termination Date.
8. Employee and Company agree that the terms of this Agreement will be held in
confidence by both parties except to the extent that disclosures may be required
by government regulations or judicial process. Company will refrain from making
disparaging statements regarding Employee. Employee agrees that he shall refrain
from making disparaging statements regarding Company, its products, personnel or
operations and that he shall characterize the reason for his departure as
"resignation". Likewise, management and the Board of Directors shall
characterize Employee's departure as a voluntary resignation when addressing
Company employees, industry participants and others.
9. Employee agrees that, during the course of his employment, he has had access
to certain trade secrets and confidential and proprietary information of
Company. Employee agrees that he shall neither use nor disclose, either for his
own benefit or the benefit of any other person or entity other than Company, any
information which can be properly characterized as a trade secret or
confidential and proprietary information of Company including, without
limitation, customer lists, knowledge of the status of certain transactions,
development plans or schedules and any information concerning the financial
status of Company. Employee acknowledges his continuing obligations under the
terms of Employee's Invention Assignment, Proprietary Information and
Nondisclosure Agreement.
10. Employee shall return to Company all property of Company including, but not
limited to, all equipment, tangible proprietary information, documents, books,
records, reports, contracts, lists, computer disks or any other computer
generated files or data, or copies thereof, created on any medium, prepared or
obtained by Employee in the course of, or incident to, his employment with
Company no later than thirty (30) working days after the Resignation Date.
Employee may purchase from Company the following equipment currently in
Employee's use: desktop computer, laptop computer and fax machine, for $1500
U.S.
11. During the period between Resignation Date and Termination Date, Employee
and his eligible dependents will continue to receive medical, dental, and vision
benefits as provided previously. Employee will also continue to have short-term
disability, long-term disability, life insurance, accidental death insurance,
and he will be eligible to participate in the 401(k) and Employee Stock Purchase
Plan. Employee may continue to use his voice mail box and e-mail account through
the Termination Date. The Company reaffirms its obligations under the Engagement
Letter to reimburse Employee for any uninsured medical expenses incurred during
Employee's European assignment that would have been insured if employee were a
U.S. resident employee.
12. Release. The Parties and their representatives, heirs, successors and
assigns do hereby irrevocably and unconditionally release and forever discharge
each other and each and all of their affiliates, and their present and former
shareholders, officers, directors, agents, employees, attorneys, successors and
assigns (collectively, "Released Parties") from all claims, rights, demands,
actions, obligations and causes of action of every kind and character, known and
unknown, mature or unmatured, which Employee and Company may now have or has
ever had, whether based on tort, contract (express or implied), or any federal,
state, or local law, statute or regulation (collectively, "Release Claims"). By
way of example and not in limitation of the foregoing, Released Claims shall
include any claims arising under Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act, the Americans with Disabilities Act and
the California Fair Employment and Housing Act, as well as any claim asserting
wrongful termination, breach of contract, breach of covenant of good faith and
fair dealing, negligent or intentional infliction of emotional distress,
negligent or intentional misrepresentation, negligent or intentional
interference with contract or prospective economic advantage, defamation,
invasion of privacy and claims related to disability. Released Claims shall also
include, but not be limited to, claims for severance pay, bonuses, sick leave,
vacation pay, life or health insurance or any other benefit. The Parties
likewise
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release Released Parties from any and all obligations for attorneys' fees
incurred in regard to the above claims or otherwise to the extent provided by
law.
13. Section 1542 Waiver. The parties understand and agree that Released Claims
include not only claims presently known to them, but also include all unknown or
unanticipated claims, rights, demands, actions, obligations, liabilities and
causes of action of every kind and character that would otherwise come within
the scope of Released Claims as described in paragraph 12. The Parties further
understand that they may hereafter discover facts different from what they now
believe to be true, which if known, could have materially affected this
Agreement, but they nevertheless waive any claims or rights based on different
or additional facts. The parties knowingly and voluntarily waive any and all
rights or benefits that they may now have, or in the future may have, under the
terms of Section 1542 of the California Civil Code, 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.
14. Nonadmission. The parties understand and agree that this is a compromise
settlement of disputed claims and that the furnishing of the consideration for
this Agreement shall not be deemed or construed at any time or for any purpose
as an admission of liability by Company or Employee. The liability for any and
all claims is expressly denied by both parties.
15. Age Discrimination Claims. Employee understands and agrees that, by entering
into this Agreement, (i) he is waiving any rights or claims he might have under
Age Discrimination in Employment Act; (ii) he has received consideration beyond
that to which he was previously entitled; (iii) he has been advised to consult
with an attorney before signing this Agreement; and (iv) he has been offered the
opportunity to evaluate the terms of this Agreement for not less than twenty-one
(21) days prior to the execution of the Agreement. Employee may revoke this
Agreement (by written notice to Company) for a period of seven (7) days after
his execution of the Agreement, and it shall become enforceable upon the
expiration of this revocation period without prior revocation by Employee.
16. Arbitration. All claims that Employee may have against Company or any other
Released Party, or that Company may have against Employee, in any way related to
the interpretation or enforcement of this Agreement ("Arbitrable Claims") shall
be resolved by arbitration to the extent permitted by law. Arbitration shall be
in accordance with the National Rules for the Resolution of Employment Disputes
of the American Arbitration Association, as amended, and as augmented by this
Agreement. Either party may bring an action in court to compel arbitration under
this Agreement and to enforce an arbitration award. THE PARTIES HEREBY WAIVE ANY
RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRABLE CLAIMS.
17. Notices. Any notice under this Agreement must be in writing and shall be
effective upon delivery by hand, upon facsimile transmission, two (2) days after
deposit with a nationally recognized overnight courier service, or three (3)
business days after deposit in the United States mail, postage prepaid,
certified, or registered and addressed to Company or Employee at the
corresponding address or fax number (if any) below. Employee shall be obligated
to notify Company in writing of any change of his address. Notice of change of
address shall be effective only when done in accordance with this Section.
Company's Notice Address:
Geoworks
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax number: 000-000-0000
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Employee's Notice Address:
Xxxxxx Xxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
18. Integration. The parties understand and agree that the preceding Sections
recite the sole consideration for this Agreement; that no representation or
promise has been made by Employee, Company or other Released Party on any
subject whatsoever, except as expressly set forth in this Agreement, the
provisions of the Engagement Letter referred to herein, and the Geoworks U.S.
Tax Equalization Policy (which collectively constitute the "Separation
Agreement"); and that all agreements and understandings between the parties on
any subject whatsoever are embodied and expressed in the Separation Agreement.
The Separation Agreement shall supersede all prior or contemporaneous agreements
and understandings among Employee, Company and any other Released Party, whether
written or oral, express or implied, with respect to any subject whatsoever,
including without limitation any employment-related agreement or benefit plan,
except to the extent that the provisions of any such agreement or plan have been
expressly referred to in this Agreement as having continued effect.
19. Amendments; Waivers. This Agreement may not be amended except by an
instrument in writing, signed by each of the parties.
20. Assignments: Successors and Assigns. Employee agrees that he will not
assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any rights or obligations under this
Agreement. Any such purported assignment, transfer or delegation shall be null
and void. Employee represents that he has not previously assigned or transferred
any claims or rights released by him pursuant to this Agreement.
21. Severability. If any provision of this Agreement, or its application to any
person, place or circumstance, is held by an arbitrator or a court of competent
jurisdiction to be invalid, unenforceable or void, such provision shall be
enforced to the greatest extent permitted by law, and the remainder of this
Agreement and such provision as applied to other persons, places and
circumstances shall remain in full force and effect.
22. Governing Law. This Agreement shall be governed and construed in accordance
with the law of the State of California.
23. Representation by Counsel. The parties acknowledge that (i) they have had
the opportunity to consult counsel in regard to this Agreement; (ii) they have
read and understand the Agreement and they are fully aware of its legal effect;
and (iii) they are entering into this Agreement freely and voluntarily, and
based on each party's own judgment and not on any representations or promises
made by the other party, other than those contained in this Agreement.
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The parties have duly executed this Agreement as of the date first written
above.
GEOWORKS: EMPLOYEE:
By /s/ Xxxxx X. Xxxxxxxx By /s/ Jordan X. Xxxxxxx
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Title President and CEO Date July 9, 1998
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Date July 9, 1998
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