Exhibit 10.38
CONFIDENTAL SEPARATION AGREEMENT
AND GENERAL RELEASE OF CLAIMS
1. Ho Xxxxx Xxxxxx ("Employee") was employed by CIDCO Incorporated
(the "Company') on or about July 7, 1997. Employee and the Company entered into
an Executive Employment Agreement (the "Employment Agreement") dated June, 1998.
2. Due to business conditions, the Company is required to reduce its
workforce. Such action is subject to the Worker Adjustment and Retraining
Notification Act (WARN) which requires the Company to provide 60 days notice to
employees affected by this action. As a result, the Company has decided to
terminate Employee's employment pursuant to the terms of the Employment
Agreement. It is the desire of the Company and Employee that Employee receive
those certain benefits that are described in the Employment Agreement and that
he would not otherwise be entitled to receive upon his termination and to
resolve any claims that Employee has or may have against the Company.
Accordingly, Employee and the Company agree as set forth below.
3. The Company and Employee agree that Employee's employment with the
Company will terminate on November 20, 1998 (the "Termination Date") the last
day of the 60 day notice period described above
4. The Company shall provide Employee with the following benefits when
this Agreement becomes effective:
(a) Twelve (12) months of employee's annual base salary as in
effect as of the date of such termination, less applicable withholding, paid in
a lump sum.
(b) Company paid cost of COBRA coverage for twelve(12) months,
paid in a lump sum together with payment in subsection 4(a).
Employee acknowledges and agrees that he has been paid all wages and accrued,
unused vacation that he earned during his employment with the Company. Employee
understands and acknowledges that he shall not be entitled to any payments or
benefits from the Company other than those expressly set forth in this paragraph
3.
5. Employee and his successors release the Company and its
shareholders, investors, directors, officers, employees, agents, attorneys,
legal successors and assigns of and from any and all claims, actions and causes
of action, whether now known or unknown, which Employee now has, or at any other
time had, or shall or may have against the released parties based upon or
arising out of any matter, cause, fact, thing, act or omission whatsoever
occurring or existing at any time up to and including the date on which this
Agreement becomes effective, including, but not limited to, any and all claims
of breach of contract, wrongful termination, fraud, defamation, infliction of
emotional distress or national origin, race, age, sex, sexual orientation,
disability or other discrimination or harassment under the Civil Rights Act of
1964, the Age Discrimination In Employment Act of 1967, the Americans With
Disabilities Act, the Fair Employment and Housing
Act or any other applicable law. This Release of Claims shall not impair
Employee's right to be indemnified by the Company to the fullest extent allowed
by law or the Company's by-laws for any claims against Employee arising out of
any acts or omissions by Employee during the course of his employment with the
Company.
6. Employee acknowledges that he has read section 1542 of the Civil
Code of the State of California, which states in full:
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.
Employee waives any rights that he has or may have under section 1542 and/or any
similar law of any other state to the full extent that he may lawfully waive
such rights pertaining to this general release of claims, and affirms that he is
releasing all known and unknown claims that he has or may have against the
parties listed above.
7. Employee agrees that he will not apply for nor otherwise seek
employment with the Company at any time following the Termination Date. Employee
acknowledges and agrees that he shall continue to be bound by and comply with
the terms of any confidentiality or assignment of invention agreements between
the Company and Employee.
8. Employee agrees that he shall not directly or indirectly disclose
any of the terms of this Agreement to anyone other than his immediate family or
counsel, except as such disclosure may be required for accounting or tax
reporting purposes or as otherwise may be required by law. Employee further
agrees that he will not, at any time in the future, make any critical or
disparaging statements about the Company, its products or its Employees, unless
such statements are made truthfully in response to a subpoena or other legal
process.
9. Employee agrees that for a period of one year following the
Termination Date:
(a) he will not, on behalf of himself or any other person or
entity, directly or indirectly solicit any employee of the Company to terminate
his or her employment with the Company; and
(b) he will not, on behalf of himself or any other person or
entity, directly or indirectly request or cause any customer or vendor of the
Company to cancel or terminate any business relationship with the Company.
10. In the event of any legal action relating to or arising out of
this Agreement, the prevailing party shall be entitled to recover from the
losing party its reasonable and customary attorneys' fees and costs incurred in
that action. Provided that, for clarity, the parties acknowledge that neither
party will be required hereunder to advance any such fees and costs
11. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
negotiations and agreements, whether written or oral, with the exception of any
agreements described in paragraph 6 as well as the Employment Agreement
described in paragraph 1. This Agreement may not be modified or amended except
by a document signed by an authorized officer of the Company and Employee.
EMPLOYEE UNDERSTANDS THAT HE SHOULD CONSULT WITH AN ATTORNEY PRIOR TO SIGNING
THIS AGREEMENT AND THAT HE IS GIVING UP ANY LEGAL CLAIMS HE HAS AGAINST THE
PARTIES RELEASED ABOVE BY SIGNING THIS AGREEMENT. EMPLOYEE FURTHER UNDERSTANDS
THAT HE MAY HAVE UP TO 45 DAYS TO CONSIDER THIS AGREEMENT, THAT HE MAY REVOKE IT
AT ANY TIME DURING THE 7 DAYS AFTER HE SIGNS IT. AND THAT IT SHALL NOT BECOME
EFFECTIVE UNTIL THAT 7-DAY PERIOD HAS PASSED. EMPLOYEE ACKNOWLEDGES THAT HE IS
SIGNING THIS AGREEMENT KNOWINGLY. WILLINGLY AND VOLUNTARILY INEXCHANGE FOR THE
BENEFITS DESCRIBED IN PARAGRAPH 3
