SEPARATION AGREEMENT AND MUTUAL RELEASE
This
SEPARATION AGREEMENT AND MUTUAL RELEASE (hereinafter referred to as the
“Agreement” and/or “Separation Agreement and Mutual Release”) is made and
entered into by and between Xxxxxxx Xxxxx (hereinafter referred to as "Xx.
Xxxxx") and Wherify Wireless, Inc. (hereinafter referred to as "WHERIFY") on
the
date appearing next to Xx. Xxxxx’x name on the final page hereof (the “Effective
Date”). (Xx. Xxxxx and WHERIFY are hereinafter collectively referred to as the
“Parties.”)
RECITALS
A.
Xx.
Xxxxx, who is employed by WHERIFY, and WHERIFY have mutually decided not to
enter into an employment contract extension and he is therefore
resigning.
B.
In
order to smooth Xx. Xxxxx’x transition and in order to provide closure for the
Parties, WHERIFY desires to provide Xx. Xxxxx with certain benefits and Xx.
Xxxxx desires to accept such benefits, all on the terms and conditions set
forth
below.
NOW,
THEREFORE, in consideration of the premises and promises herein contained,
the
adequacy and receipt of which are hereby acknowledged by both Parties, the
Parties agree as follows:
AGREEMENTS
1. Resignation
:
Xx.
Xxxxx hereby resigns his employment as of the Effective Date and thereafter
shall cease to hold any office or title at WHERIFY. In addition, he hereby
acknowledges that the agreement covers all compensation, including vacation,
earned by him during his employment with WHERIFY. Xx. Xxxxx also acknowledges
that he remains subject to all SEC laws and regulations, including but not
limited to section 144, regarding his ownership in WHERIFY.
2.
Monetary
Separation Benefits From WHERIFY:
In
consideration for Xx. Xxxxx’x signing and complying with this Agreement, WHERIFY
shall:
(a)
Pay to
Xx. Xxxxx continuation pay in the amount of $282,000 (“the Amount”) through
normal payroll processing such that the Amount shall be paid in twenty-six
(26)
payments in the gross amount of $10,846, payable every two weeks beginning
November 23, 2007 and ending November 14, 2008, subject to regular payroll
deductions and withholding; provided,
however,
that if
WHERIFY has more than $2,500,000 cash in company bank accounts , Xx. Xxxxx
will
receive any then-remaining payments on an accelerated basis.
(b)
Reimburse
Xx. Xxxxx, to the same extent as for employees, for any premiums paid by him
through December 31, 2008, to continue his WHERIFY employee medical benefits
pursuant to the laws known as COBRA and/or Cal-COBRA.
(c) Xx.
Xxxxx
may retain the personal computer provided to him by WHERIFY.
d)
Notwithstanding
the terms of any award or granting agreement or instrument, Xx. Xxxxx shall
have
ninety (90) days from the date of the last payment of this agreement to
exercise any and all Vested Options.
Xx.
Xxxxx
acknowledges that it is his intent and understanding that he is entitled to
no
additional severance or separation benefits other than as expressly provided
for
in this Agreement.
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3.
Taxes:
Xx.
Xxxxx acknowledges and agrees that WHERIFY has made no representations to him
regarding the tax consequences of any amounts or benefits received by his
pursuant to this Agreement. Xx. Xxxxx also acknowledges that he is solely
responsible for payment of all taxes, state, federal and/or local, if any,
for
which he may be liable on the amounts or benefits he receives pursuant to this
Agreement. He also agrees to indemnify and hold harmless WHERIFY, and all of
its
employees, principals and agents, from and against any and all loss, cost,
damage, or expense, including, but not limited to, attorney’s fees incurred by
any of them, arising out of his failure to pay the taxes, if any, for which
he
is liable.
4. Mutual
Release Of Claims:
(a) As
a
material inducement to Xx. Xxxxx to enter into this Agreement, WHERIFY (on
behalf of itself, its successors, and assigns) hereby releases and forever
discharges Xx. Xxxxx and his heirs, assigns, representatives, attorneys,
insurers, and all persons or entities acting by, through, under or in concert
with any of them, of and from any and all liabilities, claims, obligations,
promises, agreements, demands, damages, actions, charges, complaints, costs,
losses, debts and expenses (including attorney’s fees and costs actually
incurred), and causes of action of every kind, known or unknown, disclosed
or
undisclosed, matured or unmatured, which WHERIFY may have now or in the future
arising from any act or omission or condition arising prior to its signing
this
Agreement, including, but not limited to, all claims under state, federal,
or
common law, whether based in contract, tort, statute or otherwise, and
including, but not limited to, claims in any way related to Xx. Xxxxx'x
employment by WHERIFY or the termination of such employment; provided, however,
that this Separation Agreement and Mutual Release does not release any claims
that cannot lawfully be released by this Agreement, and does not impact any
right that it may have pursuant to any WHERIFY benefit plan, including any
stock
option plan.
(b) As
a
material inducement to WHERIFY to enter into this Agreement, Xx. Xxxxx (on
behalf of himself, his heirs, and assigns) hereby releases and forever
discharges WHERIFY and its former, current, and future owners, officers,
directors, trustees, employees, agents, assigns, representatives, attorneys,
insurers, and all persons or entities acting by, through, under or in concert
with any of them (collectively “Releases”), of and from any and all liabilities,
claims, obligations, promises, agreements, demands, damages, actions, charges,
complaints, costs, losses, debts and expenses (including attorney’s fees and
costs actually incurred), and causes of action of every kind, known or unknown,
disclosed or undisclosed, matured or unmatured, which Xx. Xxxxx may have now
or
in the future arising from any act or omission or condition arising prior to
his
signing this Agreement, including, but not limited to, all claims under state,
federal, or common law, whether based in contract, tort, statute or otherwise,
and including, but not limited to, claims of discrimination and claims in any
way related to Xx. Xxxxx'x employment by WHERIFY or the termination of such
employment. Notwithstanding the foregoing, this Separation Agreement and Mutual
Release does not release any claims that cannot lawfully be released by this
Agreement, and does not impact any vested right that Xx. Xxxxx may have pursuant
to any WHERIFY benefit plan; this Separation Agreement and Mutual Release does
not impact any future shareholder rights that would be in force should Xx.
Xxxxx
exercise his stock options, for example, and this Separation Agreement and
Mutual Release does not release WHERIFY of its obligation to fully indemnify
and
defend Xx. Xxxxx against any future claims or lawsuits in which he is named
as a
result of his actions on behalf of WHERIFY in the course and scope of his
responsibilities while employed by WHERIFY or acting as a director of WHERIFY.
(c) All
items
hereby released are hereinafter collectively referred to as the
“Claims.”
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5.
Covenant
Not To Pursue Complaints:
Xx.
Xxxxx represents that he has not filed any complaints, charges, claims, or
actions against any Releasees with any state, federal, or local agency or court
or any other forum.
6.
Waiver
Of Unknown Claims:
The
Parties understand and agree that the released Claims include not only Claims
presently known to the Parties but also include all unknown or unanticipated
Claims. 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 or his favor at the time of executing the release,
which
if known by his or his must have materially affected his or his settlement
with
the debtor.
7.
Confidential/Proprietary
Information, Etc.:
(a) At
all
times, Xx. Xxxxx will hold in strictest confidence and will not disclose, use,
lecture upon or publish any of WHERIFY's Proprietary Information (defined
below), unless an officer of WHERIFY expressly authorizes such in writing,
provided, however, that
this
restriction shall not apply to any Proprietary Information that (a) becomes
known generally to the public through no fault of Xx. Xxxxx; (b) is required
by
applicable law, legal process, or any order or mandate of a court or other
governmental authority to be disclosed; or (c) is reasonably believed by Xx.
Xxxxx, based upon the advice of legal counsel, to be required to be disclosed
in
defense of a lawsuit or other legal or administrative action brought against
Xx.
Xxxxx; provided,
that in
the case of clauses (b) or (c) above, Xx. Xxxxx shall give the Board of
Directors of WHERIFY reasonable advance written notice of the Proprietary
Information intended to be disclosed and the reasons and circumstances
surrounding such disclosure, in order to permit WHERIFY to seek a protective
order or other appropriate request for confidential treatment of the applicable
Proprietary Information.
He will
obtain WHERIFY's written approval before publishing or submitting for
publication any material (written, oral, or otherwise) that relates to his
work
at WHERIFY and/or incorporates any Proprietary Information. He hereby assigns
to
WHERIFY any rights he may have or acquire in such Proprietary Information and
recognize that all Proprietary Information shall be the sole property of WHERIFY
and its assigns.
(b) The
term
"Proprietary Information" shall mean any and all confidential and/or proprietary
works of authorship, knowledge, data, designs or information of WHERIFY. By
way
of illustration but not limitation, "Proprietary Information" includes (i)
patents, trademarks, trade secrets, inventions, copyrights, mask works,
processes, formulas, source and object codes, data, programs, other works of
authorship, know-how, improvements, discoveries, developments, designs, artwork,
techniques, and any other intellectual property that is protectable under United
States or foreign laws (hereinafter collectively referred to as "Inventions");
and (ii) research, development, new products, marketing and selling, business
plans, budgets and unpublished financial statements, licenses, prices and costs,
suppliers and customers; and (iii) information regarding the skills and
compensation of employees and contractors of WHERIFY. Notwithstanding the
foregoing, it is understood that, at all times, Xxxxx is free to use information
which is generally known in the trade or industry, which is not gained as result
of a breach of this Agreement, and his own, skill, knowledge, know-how and
experience to whatever extent and in whichever way he wishes.
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(c) The
term
"Proprietary Rights" shall mean all copyright, trade secret, patent, mask work
and other intellectual property rights throughout the world.
(d) Xx.
Xxxxx
hereby assigns to WHERIFY all his right, title and interest in and to any and
all Inventions (and all Proprietary Rights with respect thereto) whether or
not
patentable or registrable under copyright or similar statutes, made or conceived
or reduced to practice or learned by him, either alone or jointly with others,
relating to the business of WHERIFY. Inventions assigned to WHERIFY, or to
a
third party as directed by WHERIFY, are hereinafter referred to as "Company
Inventions."
(e) Xx.
Xxxxx
also agrees to assign all his right, title and interest in and to any particular
Company Invention to a third party, including without limitation the United
States, as directed by WHERIFY.
(f) Xx.
Xxxxx
acknowledges that all original works of authorship made by him (solely or
jointly with others) within the scope of his employment and which are
protectable by copyright are "works made for hire," pursuant to United States
Copyright Act (17 U.S.C., Section 101).(g) As
of the
Effective Date, Xx. Xxxxx shall have returned to WHERIFY all keys, computers,
and credit cards belonging to WHERIFY and any other property belonging to
WHERIFY, including
intellectual property and other Proprietary Information.
Such
property includes, but is not limited to, all
computer files,
documents, letters, notes, programs, software, media, photographs, lists,
manuals, records, notebooks, and similar repositories containing Proprietary
Information, including all copies thereof, whether prepared by Xx. Xxxxx or
others.
(h) Xx.
Xxxxx
acknowledges that he remains bound by any proprietary and/or confidential
information agreement signed by him in conjunction with his employment or other
affiliation with WHERIFY except to the extent, if any, that such agreement
conflicts herewith, in which case this Agreement shall control.
8.
Non-Disparagement:
Xx.
Xxxxx agrees that he will not disparage WHERIFY or any of the other Releasees;
WHERIFY agrees that its executive officers and members of its Board of Directors
will not disparage Xx. Xxxxx.
9.
No
Future Employment:
Xx.
Xxxxx hereby waives any right he may have to reinstatement or future employment
by WHERIFY, and Xx. Xxxxx agrees not to seek such employment and not to perform
any work for WHERIFY unless such restrictions are cancelled or modified by
mutual consent.
11.
No
Reliance On Other Representations:
Xx.
Xxxxx represents and acknowledges that in executing this Agreement, he does
not
rely and has not relied upon any representation or statements made by any of
the
Releasees with regard to the subject matter, basis, or effect of this Agreement
or otherwise beyond those expressly contained herein. Xx. Xxxxx represents
that
he has carefully read and fully understands all provisions of this Agreement,
and that he is voluntarily entering into this Agreement after adequate time
to
consider its terms.
12.
Miscellaneous:
In
further consideration of this Agreement, Xx. Xxxxx and WHERIFY agree as
follows:
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(a)
The
terms mentioned in the preceding paragraphs of this Agreement are the entire
and
only consideration for it, and each of the Parties shall be responsible for
payment of his or its own attorney’s fees, costs, and legal expenses, if
any;
(b)
The
language of all parts of this Agreement shall in all cases be construed as
a
whole, according to its fair meaning, and not strictly for or against any of
the
Parties;
(c)
This
Agreement is entered into in the State of California and shall be construed
and
interpreted in accordance with its law;
(d)
The
various provisions of this Agreement are severable and if any is unenforceable,
at law or in equity, that provision may be severed, leaving the others remaining
in full force and effect;
(e)
Headings
contained in this Agreement are for convenience only and shall not be considered
for any purpose in construing the Agreement;
(f)
This
Agreement may only be modified by a written agreement identified as an
amendment/modification to this Agreement and signed by the Parties hereto;
and
(g)
This
Agreement contains the entire agreement between the Parties to it with regard
to
the matters set forth in it and shall be binding upon and inure to the benefit
of the executors, administrators, personal representatives, heirs, successors
and assigns of each. This Agreement fully supersedes any and all negotiations,
and all prior written, oral, or implied agreements or understandings between
the
Parties pertaining to the subject matters hereof.
[Remainder
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PLEASE
READ CAREFULLY. THIS SEPARATION
AGREEMENT
AND MUTUAL RELEASE INCLUDES
A RELEASE
OF ALL KNOWN AND UNKNOWN CLAIMS.
DATED:
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Xxxxxxx
Xxxxx
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DATED:
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WHERIFY
WIRELESS, INC.
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By:
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Xxxxxxx
Xxxxxxx
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Chief
Executive Officer
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