GENERAL RELEASE
EXHIBIT
10.2
GENERAL
RELEASE, made as of this 13th
day of
June, 2006, by Xxxxxxxx X. Xxxxxxx (“Xxxxxxx”), an individual residing in
California, to and in favor of Spatialight, Inc., a New York corporation (the
“Company”).
NOW,
THEREFORE, in consideration of good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties hereto hereby covenant
and agree as follows:
THIS
IS A CONTRACT. XXXXXXX SHOULD READ IT CAREFULLY BEFORE HE SIGNS IT. THE COMPANY
ENCOURAGES XXXXXXX TO CONSULT WITH AN ATTORNEY BEFORE HE SIGNS THIS AGREEMENT.
XXXXXXX’X SIGNATURE ON THE BOTTOM OF THIS AGREEMENT CONSTITUTES AN ENFORCEABLE
AGREEMENT BETWEEN HIM AND THE COMPANY.
Recitals
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X.
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Xxxxxxx
has been employed by the Company as its Executive Vice President
of
Strategic Planning pursuant to an Employment Agreement, dated as
of July
7, 2003, as amended from time to time (the “Employment
Agreement”).
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X.
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Xxxxxxx
has resigned his employment with the Company, effective June 13,
2006 (the
“Termination Date”), at which time his performance of duties for the
Company as an EVP have ceased in their
entirety.
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X.
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Xxxxxxx
has accrued fifteen (15) days of vacation time that he has yet to
use as
of the Termination Date.
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X.
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Xxxxxxx
and the Company wish to resolve forever any potential dispute or
disagreement that may exist between them arising out of, or related
in any
way to, his employment with the Company, or its
termination.
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Agreements
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1.
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(a) Xxxxxxx
hereby releases and forever discharges the Company from any and all claims,
demands or causes of action heretofore or hereafter arising out of, in
connection with or incidental to the relationship between the parties prior
to
the date hereof, including, without limitation, any and all claims, demands
and
causes of action which Xxxxxxx might otherwise have the right to assert against
the Company arising out of his employment relationship with the Company, or
the
termination of this employment relationship, and otherwise (the “General
Release”).
(b)
Xxxxxxx
hereby unconditionally, irrevocably and specifically waives the benefit of
the
provisions of Section 1542 of the Civil Code of the State of California, which
provides as follows:
“A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his or her favor at the time of executing the release,
which
if known by him or her must have materially affected his or her settlement
with
the debtor.”
(c)
The
General Release herein extended by Xxxxxxx to and in favor of the Company shall
include, and be deemed to include the Company, SpatiaLight Technologies, Inc.,
and all other subsidiaries and affiliates of the Company, and any and all of
the
Company’s and its subsidiaries’ and affiliates’ officers, directors, employees,
agents and representatives and their respective affiliates.
(d) The
claims released under the General Release include, but are not limited to any
claims that Xxxxxxx may have: arising
out of any alleged violations of any contract or covenant, any tort (including
without limitation any claim for slander, libel or violation of public policy),
any restriction on the right of the Company to terminate or take adverse
employment action against any of its employees, and any federal state or other
governmental statute or regulation, including, without limitation: (1) Title
VII
of the Civil Rights Act of 1964 (race, color, religion, sex and national origin
discrimination); (2) the Americans with Disabilities Act (discrimination against
individuals with disabilities); (3) the California Fair Employment and Housing
Act (discrimination, including race, religious creed, color, national origin,
ancestry, physical disability, mental disability, sexual orientation, medical
condition, marital status, sex or age); (4) the California Family Rights Act
(CFRA); (5) the Age Discrimination in Employment Act of 1967; (6) the federal
Fair Labor Standards Act; and (7) the California Labor Code. Xxxxxxx is not
aware of any claim or right he may have under the Workers’ Compensation Act, or
the Family and Medical Leave Act, nor of any action taken by the Company to
deny
Xxxxxxx the right to take any leave of absence or in retaliation for Xxxxxxx
requesting or taking any leave of absence or for filing any claim for workers’
compensation.
(e)
Xxxxxxx
promises that he has not filed and will not file any charge, complaint,
grievance or other proceeding with any federal, state or local agency, court
or
other tribunal asserting any claim that is released in this Section, and
warrants he has not assigned to any other person or entity the right to file
any
claims that are released in this Section.
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2.
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Termination
of Employment Duties/Return of Property.
Your duties with the Company will have terminated as of the close
of
business on June __, 2006. Xxxxxxx
represents and warrants that he has returned, and not retained, any
and
all Company property, including all documents, files, records, keys,
access cards, disks, software, cellular telephones, automobiles,
equipment
or other property of the Company provided to Xxxxxxx or others by
the
Company during Xxxxxxx’x employment with the Company. Xxxxxxx agrees that,
to the extent that he ever later learns that he has not returned
all such
property, he will immediately return all such property, including
any and
all confidential and proprietary property of the Company’s clients,
customers, employees, vendors, suppliers, lenders or other entities
with
which Xxxxxxx had dealings during Xxxxxxx’x employment with the
Company.
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3.
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Compensation.
In consideration for Xxxxxxx entering into this General Release,
the
Company shall continue to pay Xxxxxxx’x current salary through September
9, 2006 (based upon annual salary of $360,000), and Xxxxxxx will
cease to
receive any further compensation from and after that date (except
for
vacation pay accrued through that date) and/or any and all other
benefits
heretofore granted or made available to you by the
Company.
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Xxxxxxx
further acknowledges that he has been paid all wages, salary, bonuses or other
form of compensation owing to him through the Termination Date.
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Furthermore,
Xxxxxxx currently holds 265,000 options to purchase the Company’s common
shares that are currently vested and exercisable at exercise prices
of
$5.00 with respect to 175,000 options and $12.50 with respect to
the
remaining 90,000 options (collectively, the “Vested Options”) as of this
date. Xxxxxxx may exercise only those Vested Options by no later
than
September 9, 2006, at which time any such Vested Options that Xxxxxxx
has
not exercised shall be canceled and terminated in their entirety
and be of
no further force or effect and Xxxxxxx shall have no further rights
thereto or thereunder or under his Time Accelerated Restricted Stock
Award
Plan (“TARSAP”) made as of July 7, 2003, as amended. Furthermore,
effective as of this date, any and all outstanding options to purchase
the
Company’s common shares that Xxxxxxx holds, which are not vested and
exercisable by Xxxxxxx as of this date, are hereby canceled and terminated
in their entirety and be of no further force or effect and Xxxxxxx
shall
have no further rights thereto or thereunder or under his TARSAP
and such
TARSAP is hereby terminated.
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4.
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Non-Disparagement.
Xxxxxxx agrees that he will not directly or indirectly, publish or
disseminate to the media or any individual (other than members of
Xxxxxxx’x immediate family and professional representatives, who shall be
informed of and bound by Xxxxxxx’x obligations of confidentiality in
contained in Section 7 below) or entity information that is critical,
derogatory or otherwise intended to disparage Company or Company’s
business, management, or physicians, whether such information is
acquired
during or after Xxxxxxx’x employment with the
Company.
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5.
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Confidentiality/Restrictive
Covenant Obligations Do Not Terminate.
Xxxxxxx understands that after the Termination Date, Xxxxxxx remains
bound
to comply with Sections 8, 9 and 10 of the Employment Agreement executed
by Xxxxxxx during his employment, a copy of which attached to this
Agreement as Exhibit 1 and the terms of which are incorporated by
this
reference.
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6.
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Non-Admissions.
It is understood that by offering or entering into this Agreement,
neither
Xxxxxxx nor the Company has admitted any liability or wrongdoing
whatsoever.
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7.
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Confidentiality
of Severance Offer and Payment.
Except to the extent required by law (e.g., to submit a tax return
or
compliance with a lawful subpoena),Xxxxxxx warrants that he has not
disclosed, and promises that he will not disclose, the offer or payment
of
the severance payment for any reason to any person other than members
of
Xxxxxxx’x immediate family and professional representatives, who shall be
informed of and bound by the same promise of
confidentiality.
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8.
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Modification.
This General Release may only be rescinded, modified or amended by
a
written instrument executed by Xxxxxxx and by the
Company.
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9.
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Governing
Law.
This General Release has been executed and delivered in, shall be
construed and interpreted in accordance with the laws of the State
of
California applicable to agreements to be performed entirely within
the
State of California.
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10.
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Binding
Agreement.
This General Release shall be binding upon Xxxxxxx and his heirs,
executors, administrators, personal representatives, successors and
assigns.
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11.
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Advice
to Consult With an Attorney.
Xxxxxxx hereby acknowledges that the Company has advised him to consult
with an attorney regarding the matters addressed and contained in
this
Agreement prior to signing this
Agreement.
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12.
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Consideration
Period.
In compliance with the Older Workers’ Benefit Protection Act (P.L.
101-433), Xxxxxxx is entitled to take up to twenty-one (21) calendar
days
from the date he receives this Agreement in which to consider whether
or
not to accept this Agreement and the waiver and release of claims
contained in this Agreement. There is, of course, no requirement
that
Xxxxxxx utilizes all twenty-one (21) days if he chooses to accept
or
reject this Agreement sooner.
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13.
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Revocation
Rights.
Under the law, once Xxxxxxx accepts this Agreement and the waiver
and
release of claims contained in this Agreement by signing this Agreement
in
the space provided below, Xxxxxxx is entitled to up to seven (7)
days in
which to cancel or revoke this Agreement by notifying Xxxxx Xxxxxxxx
(Assistant Corporate Secretary, SpatiaLight, Inc., Xxxx Xxxxxxxx
Xxxxxxx,
Xxxxxx, XX 00000, Fax: (000) 000-0000) of his desire to revoke the
Agreement. For the revocation to be effective, written notice must
be
received by Xx. Xxxxxxxx no later than the close of business (5:30
p.m.)
on the seventh (7th) calendar day after Xxxxxxx signs this Agreement.
If
Xxxxxxx revokes this Agreement, it will not be effective. After the
expiration of the seven (7) day revocation period, this Agreement
and
release of claims will become final if Xxxxxxx has not exercised
his right
to revoke the Agreement as noted
above.
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14.
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Counterparts.
This General Release may be executed in one or more counterparts,
all of
which taken together shall constitute one and the same General
Release.
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XXXXXXX
ACKNOWLEDGES THAT XXXXXXX HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND IS
ENTERING INTO IT VOLUNTARILY ON THE DATE SHOWN BELOW XXXXXXX’X
NAME.
IN
WITNESS WHEREOF, the parties have executed this General Release as of the date
and year first written above.
/s/
Xxxxxxxx X. Xxxxxxx
Xxxxxxxx
X. Xxxxxxx
ACKNOWLEDGED
AND ACCEPTED:
SPATIALIGHT,
INC.
By:
/s/
Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Chief Executive Officer
