EXHIBIT 10.1
GENERAL RELEASE OF ALL CLAIMS
In consideration of the payments and benefits to be received by me, I,
Xxxx Xxxxxxx, on behalf of heirs executors administrators successors, assigns,
and myself hereby make the following agreements and acknowledgements:
I. TERMS OF THE AGREEMENT
A. My employment with Covad will end effective November 10, 2004 (the
"Termination Date"). I will have no right to employment with the Company after
the Termination Date and the Company will have no obligation to employ me after
that date. Covad will provide one lump sum payment of $137,800 less applicable
taxes and withholdings that represents six (6) months of salary.
B. From November 11, 2004 through May 11, 2005, I will be available for
consultation as needed.
C. Covad will pay for temporary continuation coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA") for
me and, if applicable, my eligible dependents (such payments shall not include
COBRA coverage with respect to the Company's Section 125 health care
reimbursement plan) for up to six (6) months, provided that I and/or my eligible
dependents, as applicable, am/are eligible for and elect such continuation
coverage.
II. RELEASE AND WAIVER OF ALL CLAIMS
A. I hereby agree that I fully and forever discharge, waive and release
any and all claims and causes of action of any kind that I may have had or now
have against Covad Communications Company, and any of its affiliates,
predecessors, successors, parents, subsidiaries or assigns and any of their
respective officers, directors, agents, employees, and representatives
(collectively, the "COMPANY" or "COVAD") arising out of or relating in any way
to (1) my employment with the Company and the termination thereof, including but
not limited to claims of wrongful discharge, breach of contract, breach of the
covenant of good faith and fair dealing, violation of public policy, defamation,
personal injury, infliction of emotional distress, claims under Title VII of the
1964 Civil Rights Act, as amended, the California Fair Employment and Housing
Act, the Equal Pay Act of 1963, the California Labor Code including Section
1197.5 thereof, the Age Discrimination in Employment Act of 1967, as amended,
the Americans with Disabilities Act, the Civil Rights Act of 1866, the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), WARN, and any
other local, state and federal laws and regulations relating to employment,
except any claims I may have for unemployment and workers' compensation
insurance.
B. I hereby agree that I fully and forever waive any and all rights and
benefits conferred upon me by the provisions of Section 1542 of the Civil Code
of the State of California, or analogous law of any other state, which states as
follows:
A general release does not extend to claims which the creditor [i.e., employee]
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 [i.e., the Company].
C. I understand that various lawsuits have been brought against the
Company alleging fraud and/or other legal violations relating to transactions in
the Company's securities, and that some of those cases have been brought as
purported class actions on behalf of various classes of persons who acquired
such securities. I have made my own determination as to whether I wish to
consult with the law firms purporting to represent such classes, and as to
whether I am eligible to and wish to participate in such cases. I understand
that by signing this Agreement I will be precluded from such participation, and
will be waiving any rights I might otherwise have had as a result of such
lawsuits.
I agree and understand that if, hereafter, I discover facts
different from or in addition to those which I now know or believe to be true,
that the waivers of this General Release of All Claims ("GENERAL RELEASE") shall
be and remain effective in all respects notwithstanding such different or
additional facts or the discovery thereof.
III. CONFIDENTIAL INFORMATION & COMPANY EMPLOYEES
I hereby agree and understand that:
A. I am required to return to the Company immediately upon my termination
of employment all Company Information, including but not limited to notebooks,
notes, manuals, memoranda, records, diagrams, blueprints, bulletins, formulas,
reports, computer programs, or other data or memorializations of any kind, as
well as any Company property or equipment, that I have in my possession or under
my control. I further agree and understand that I am not entitled or authorized
to keep any portions, summaries or copies of Company Information, and that I am
under a continuing obligation to keep all Company Information confidential and
not to disclose it to any third party in the future. I understand that the term
"COMPANY INFORMATION" includes, but is not limited to, the following:
- Trade secret, information, matter or thing of a confidential,
private or secret nature, connected with the actual or anticipated
products, research, development or business of the Company or its
customers, including information received from third parties under
confidential conditions; and
- Other technical, scientific, marketing, business, product
development or financial information, the use or disclosure of which might
reasonably be determined to be contrary to the interests of the Company.
B. I am prohibited for a period of one (1) year after the termination of
my employment, from soliciting for employment, whether as an employee,
independent contractor, or agent, any Company employee; and for that same time
period I am prohibited from encouraging or otherwise enticing any Company
employee to terminate his or her employment with the Company.
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IV. NON DISPARAGEMENT
A. I warrant that I have not and agree that I shall not, directly or
indirectly, engage in any conduct that involves the making or publishing of
written or oral statements or remarks (including, without limitation, the
repetition or distribution of derogatory rumors, allegations, or remarks
regarding the events underlying my employment, or negative reports or comments)
which are disparaging, deleterious or damaging to the integrity, reputation or
goodwill of the Company, its employees, officers, vendors, customers, agents,
and attorneys.
B. The promises and agreements of this Section III and IV are a material
inducement to the Company to provide me with the payments and benefits, for the
breach thereof, the Company will be entitled to pursue its legal and equitable
remedies against me, including, without limitation, the right to immediately
cease payments made pursuant to the General Release and/or seek injunctive
relief; provided, however, this General Release will remain in full force and
effect. The damages from a breach of section III or IV are difficult to
ascertain and the company may seek liquidated damages in lieu of proving actual
damages in the amount of one fourth of the severance amount.
V. ENTIRE AGREEMENT
I agree and understand that this General Release contains the entire
agreement between the Company and me with respect to any matters referred to in
the General Release, and supersedes any and all previous oral or written
agreements.
VI. NO ADMISSION
I agree and understand that neither the fact nor any aspect of this
General Release is intended, should be deemed, or should be construed at any
time to be an admission of liability or wrongdoing by either myself or the
Company.
VII. SEVERABILITY
I agree and understand that if any provision, or portion of a
provision, of this General Release is, for any reason, held to be unenforceable,
that such unenforceability will not affect any other provision, or portion of a
provision, of this General Release and this General Release shall be construed
as if such unenforceable provision or portion had never been contained herein.
VIII. DISPUTE RESOLUTION
I hereby agree and understand that any and all disputes regarding
any alleged breach of this General Release shall be settled by final and binding
arbitration in the County of Santa Clara, California, or at my option, in the
County where I reside at the time the dispute arises, at my option, in
accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association, or its successor, and judgment upon the
award rendered may be entered in any court with jurisdiction. I understand that
this arbitration clause applies to all claims, including claims under federal or
state employment or civil rights laws
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(other than claims for workers' compensation or unemployment insurance
benefits). Unless another limitations period is expressly mandated by statute,
to be timely, any dispute must be referred to arbitration within twelve (12)
months of the incident or complaint giving rise to the dispute. Disputes not
referred to arbitration within such twelve (12) month period shall be deemed
waived, and the arbitrator shall deny any untimely claims. In reaching a
decision, the arbitrator shall adhere to relevant law and applicable precedent,
and shall have no power to vary therefrom. The arbitrator shall issue a written
decision making specific findings of fact and stating conclusions of law. I
understand that each party retains the right to file, in a court of competent
jurisdiction, an application for provisional injunctive and/or equitable relief
in connection with a claim relating to this General Release, and shall not be
required to post a bond or other security in seeking such relief unless
specifically required by law. Although a court may grant provisional remedies,
the arbitrator shall at all times retain the power to grant permanent injunctive
relief, or any other final remedy. I understand that the Company will pay the
costs of arbitration in excess of the costs I would incur to bring such claim in
a civil court.
IX. WAIVER
By signing this Agreement, I acknowledge that:
A. I have carefully read, and understand, this Agreement;
B. I have been given twenty-one (21) days to consider my rights and
obligations under this Agreement and to consult with an attorney;
C. The Company advised me to consult with an attorney and/or any other
advisors of my choice before signing this Agreement;
D. I understand that this Agreement is legally binding and by signing it I
give up certain rights;
E. I have voluntarily chosen to enter into this Agreement and have not
been forced or pressured in any way to sign it;
X. X knowingly and voluntarily release Company, including its affiliates,
predecessors, successors, parents, subsidiaries or assigns and any of
their respective officers, directors, agents, employees, and
representatives from any and all claims I may have, known or unknown,
in exchange for the payments I have obtained by signing this Agreement,
and that these payments are in addition to any payments I would have
otherwise received if I did not sign this Agreement;
G. The General Release in this Agreement includes a waiver and release of
all claims I may have under the Age Discrimination in Employment Act of
1967 (29 U.S.C. Section 621 et seq.); and
H. This Agreement does not waive any rights or claims that may arise after
this Agreement is signed and becomes effective, which is eight (8) days
after I sign it.
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V. OPPORTUNITY TO REVOKE AND EFFECTIVE DATE
I understand that this General Release will not become effective
until expiration of the seventh (7) day after I sign it; provided that I do not
revoke it during those seven (7) days, and that for a period of seven (7) days
after I sign this General Release, I may revoke it. I agree and understand that
if I decide to revoke this General Release after I sign it, I can do so only by
delivering a written notification of my revocation, no later than the seventh
day after I sign this General Release, to:
Xxxxxxx Xxxxxx
Covad Communications Company
000 Xxx Xxxxxx
Xxx Xxxx, XX 00000
VI. MISCELLANEOUS ACKNOWLEDGEMENTS
X. X hereby acknowledge that I understand that, but for my signing of this
General Release and failure to revoke it during seven (7) days thereafter, I
would not be entitled to nor would I be provided with any of the payments and
benefits under the General Release. I understand that no payments and benefits
will be provided to me until this General Release becomes effective. I
understand further that, even if I did not sign this General Release or if I
sign and then revoke it within seven (7) days thereafter, I would still be
entitled to:
1. All wages, including any paid vacation, less applicable
deductions, earned by me through my termination date; and
2. The opportunity, if I am eligible, to elect to continue to
participate in (and, if applicable, my dependents are eligible to elect to
continue their participation in) the group health insurance plans provided by
the Company pursuant to the terms and conditions of the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended ("COBRA").
B. I hereby acknowledge that any agreement that I signed in connection
with my employment with the Company regarding employee inventions, authorship,
proprietary and confidential information shall remain in full force and effect
following the termination of my employment.
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EMPLOYEE'S ACCEPTANCE OF GENERAL RELEASE
BEFORE SIGNING MY NAME TO THIS GENERAL RELEASE, I STATE THAT: I HAVE READ IT; I
UNDERSTAND IT AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS; I AM AWARE OF MY
RIGHT TO CONSULT WITH AN ATTORNEY BEFORE SIGNING IT; AND I HAVE SIGNED IT
KNOWINGLY AND VOLUNTARILY.
Date delivered to employee ____________________, 2004
Signed this 18th day of November, 2004
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
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