EXHIBIT 10.22
July 25, 2000
Xx. Xxxxx X. Xxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Dear Xxxxx:
Pursuant to Paragraph 4(a) of your Employment Agreement (the "Employment
Agreement") with eSoft, Inc, ("the Company") dated and signed on September 10,
1999 attached as Exhibit A and incorporated herein by reference, the Company
has exercised its right to terminate your employment without "Company Cause".
1. TERMINATION. You have been terminated from your position as Vice
President of Strategic Relations and as an officer of the Company
effective August 24, 2000 ("Separation Date"). You agree to resign your
position as member of the Board of Directors of the Company, effective
as of the Separation Date.
2. TRANSITION PERIOD. You agree that prior to your Separation Date (the
"Transition Period"), you will continue to answer questions and assist
the Company via telephone and email in the transition of all work
related issues to the appropriate members of management of the Company.
You shall not be required to be present in the office during the
Transition Period. During the Transition Period you shall remain
obligated to maintain the confidences and confidential information of
the Company as set forth in the Employment Agreement and shall take no
actions that can be construed as contrary to the interests of the
Company.
3. CONSIDERATION. Although the Company has no policy or procedure
requiring payment of any severance benefits, the Company agrees to the
following as part of this Agreement:
(A) CONTINUATION OF INSURANCE. To the extent permitted by the federal
COBRA law, applicable state laws, and the insurance policies and
rules applicable to the Company, you will be eligible to continue
your health insurance benefits and, later, to convert to an
individual policy. You acknowledge that the Company has provided
you with a COBRA notification form setting forth your rights and
responsibilities with regard to COBRA coverage. Pursuant to the
terms of your Employment Agreement, should you timely elect to
continue coverage pursuant to COBRA, the Company agrees to pay the
Company's insurance carrier on a monthly basis for a period
beginning September 1, 2000 and concluding September 1, 2001
("COBRA Payment Period"), for the COBRA premiums to be paid for
you in order to maintain health insurance coverage during the
COBRA Payment Period that is substantially equivalent to that
which you received immediately prior to the Separation Date.
(B) EXTENDED INSURANCE BENEFITS. As further consideration for the
agreements contained herein, the Company agrees to pay the
Company's insurance carrier on a monthly basis for an extended
period beginning September 1, 2001 and concluding March 1, 2002
("Extended COBRA Payment Period"), for the
1.
COBRA premiums to be paid for you in order to maintain health
insurance coverage during the COBRA Payment Period that is
substantially equivalent to that which you received immediately
prior to the Separation Date.
(C) TERMINATION OF INSURANCE BENEFITS. Should you obtain employment
during either the COBRA Payment Period or the Extended COBRA
Payment Period, the Company's obligation under this paragraph
shall forever cease upon the expiration of the waiting period (if
any) for entitlement to insurance coverage through your new
employer. You agree to notify the Company in writing in the event
that you obtain employment. In any event, and notwithstanding any
provision to the contrary on this paragraph, the Company's
obligations under this paragraph shall forever cease no later than
by the end of the Extended COBRA Payment Period.
4. SALARY CONTINUATION; BONUS PAYMENT. Pursuant to the terms and
conditions contained in Paragraph 7 of the Employment Agreement, you
shall be entitled to continue to receive your current salary of
$10,333.34 per month, payable in semi-monthly installments for a period
of twelve (12) months from the Separation Date. You shall also be
entitled to payment of your accrued bonus for calendar year 2000 in the
amount of $4,500.00, which shall be paid upon execution of this
Agreement.
5. CONTINUATION OF BENEFITS. As set forth fully in Section 3, the Company
will maintain insurance coverage (health, dental) for you on a basis
comparable to that available to other officers and executive employees
of the Company. You will be entitled to payment of accrued vacation pay
in the amount of $7,571.15 for calendar year 2000, which shall be due
and payable on the Separation Date. You will also continue to receive
credits for vacation pay as other officers and executives of the
Company for a period of twelve (12) months from the Separation Date,
such that you will be entitled to vacation pay for such twelve (12)
month period in the amount of $9,538.46. Said amount shall be due and
payable twelve (12) months after the Separation Date. You understand
that as of the Separation Date, you will no longer be able to
participate in the Company's 401(k) and other retirement plans.
6. STOCK OPTIONS. Pursuant to the terms and conditions contained in
Paragraph 3(d) of the Employment Agreement, you acknowledge that as of
the Separation Date, eleven-thirty-sixths (11/36) of your incentive
stock options granted on or about September 10, 1999 (the "Initial
Grant") have vested, and none of your incentive stock options granted
on or about May 24, 2000 (the "Second Grant") and May 31, 2000 (the
"Third Grant") have vested. Pursuant to paragraph 3(d) of the
Employment Agreement, an additional nine-thirty-sixths (9/36) of the
unvested option granted to you by the Company shall immediately vest.
Thereafter, no additional stock options shall vest. Specifically,
sixteen-thirty-sixths (16/36) of your incentive stock options
(incentive stock options) shall lapse as of the Separation Date.
Accordingly, 38,333 of the incentive stock options of the Initial Grant
and 6,750 incentive stock options of the Second Grant and 2,250
incentive stock options of the Third Grant shall immediately vest. The
vested options shall have an expiration date of 4 years from the date
of grant of the option and are subject to any, and all, restrictions
contained in the eSoft Equity Compensation Plan.
2.
7. OTHER COMPENSATION OR BENEFITS. You acknowledge that, except as
expressly provided in this Agreement, you will not receive any
additional compensation, severance or benefits after the Separation
Date.
8. EXPENSE REIMBURSEMENTS. You agree that, within ten (10) days of the
Separation Date, you will submit your final documented expense
reimbursement statement reflecting all business expenses you incurred
through the Separation Date, if any, for which you seek reimbursement.
The Company will reimburse you for these expenses pursuant to its
regular business practice.
9. RETURN OF COMPANY PROPERTY. By the Separation Date, you agree to return
to the Company all Company documents (and all copies thereof) and other
Company property that you have had in your possession at any time,
including, but not limited to, Company files, notes, drawings, records,
business plans and forecasts, financial information, specifications,
computer-recorded information, tangible property (including, but not
limited to, computers), credit cards, entry cards, identification
badges and keys; and, any materials of any kind that contain or embody
any proprietary or confidential information of the Company (and all
reproductions thereof).
10. PROPRIETARY INFORMATION OBLIGATIONS. Both during and after your
employment you will refrain from any unauthorized use or disclosure of
the Company's proprietary or confidential information or materials
without prior written authorization from a duly authorized
representative of the Company. You further agree to abide by all terms
of your Employment Agreement as they relate or refer to the use of
Confidential Information obtained during the course of your employment
with the Company. Specifically, you hereby acknowledge and agree to
abide by the terms set forth in Paragraphs 8, 9, 10 and 11 of the
Employment Agreement, attached hereto as Exhibit A and incorporated by
reference herein.
11. CONFIDENTIALITY. The provisions of this Agreement will be held in
strictest confidence by you and the Company and will not be publicized
or disclosed in any manner whatsoever; provided, however, that: (a) you
may disclose this Agreement to your immediate family; (b) the parties
may disclose this Agreement in confidence to their respective
attorneys, accountants, auditors, tax preparers, and financial
advisors; (c) the Company may disclose this Agreement as necessary to
fulfill standard or legally required corporate reporting or disclosure
requirements; and (d) the parties may disclose this Agreement insofar
as such disclosure may be necessary to enforce its terms or as
otherwise required by law. In particular, and without limitation, you
agree not to disclose the terms of this Agreement to any current or
former Company employee. The parties acknowledge that the Employment
Agreement has been filed, via XXXXX and is therefore a matter of public
record-
12. NONDISPARAGEMENT. Both you and the Company agree not to disparage the
other party, and the other party's officers, directors, employees,
shareholders and agents, in any manner likely to be harmful to them or
their business, business reputation or personal reputation; provided
that both you and the Company will respond accurately and fully to any
question, inquiry or request for information when required by legal
process.
3.
13. RELEASE. In exchange for the payments and other consideration under
this Agreement to which you would not otherwise be entitled, you agree
to execute the Employee Agreement and Release attached hereto as
Exhibit B.
14. MISCELLANEOUS. This Agreement, including Exhibit A and Exhibit B,
constitutes the complete, final and exclusive embodiment of the entire
agreement between you and the Company with regard to this subject
matter. It is entered into without reliance on any promise or
representation, written or oral, other than those expressly contained
herein, and it supersedes any other such promises, warranties or
representations. This Agreement may not be modified or amended except
in a writing signed by both you and a duly authorized officer of the
Company. This Agreement will bind the heirs, personal representatives,
successors and assigns of both you and the Company, and inure to the
benefit of both you and the Company, their heirs, successors and
assigns. If any provision of this Agreement is determined to be invalid
or unenforceable, in whole or in part, this determination will not
affect any other provision of this Agreement and the provision in
question will be modified by the court so as to be rendered
enforceable. This Agreement will be deemed to have been entered into
and will be construed and enforced in accordance with the laws of the
State of Colorado as applied to contracts made and to be performed
entirely within Colorado.
If this Agreement is acceptable to you, please sign below and on the attached
Employee Agreement and Release, which is part of this Agreement, and return the
originals of both to me.
I wish you good luck in your future endeavors.
Sincerely,
ESOFT, INC.
By: /s/ Xxxxxx X. Xxxxxx 8-1-00
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Exhibit A - Employment Agreement dated October 10, 1999
Exhibit B - Employee Agreement and Release
Exhibit C - Release and Indemnification Agreement
AGREED:
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
4.
Exhibit B
EMPLOYMENT AGREEMENT AND RELEASE
I agree to the terms in the foregoing letter Agreement.
Except as otherwise set forth in this Agreement, I hereby release,
acquit and forever discharge eSoft, Inc., its officers, directors, agents,
servants, employees, attorneys, shareholders, successors, assigns and affiliates
(the "Company"), of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys fees, damages, indemnities and obligations of
every kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising out of or in any
way related to agreements, events, acts or conduct at any time prior to and
including the execution date of this Agreement, including but not limited to:
all such claims and demands directly or indirectly arising out of or in any way
connected with my employment with the Company or the termination of that
employment; claims or demands related to salary, bonuses, commissions, stock,
stock options, or any other ownership interests in the Company, vacation pay,
fringe benefits, expense reimbursement, severance pay, or any other form of
compensation; claims pursuant to any federal, state or local law, statute, or
cause of action including, but not limited to, the federal Civil Rights Act of
1964, as amended; the federal Americans with Disabilities Act of 1990; the
Federal Age Discrimination in Employment Act of 1967, as amended ("ADEA"); the
Colorado Discrimination and Unfair Employment Act, as amended; tort law;
contract law; wrongful discharge; discrimination; harassment; fraud; defamation;
emotional distress; and breach of the implied covenant of good faith and fair
dealing.
I acknowledge that I am knowingly and voluntarily waiving and releasing
any rights I may have under the ADEA, as amended. I also acknowledge that the
consideration given for the waiver and release in the preceding paragraph hereof
is in addition to anything of value to which I was already entitled. I further
acknowledge that I have been advised by this writing, as required by the ADEA,
that: (a) my waiver and release do not apply to any rights or claims that may
arise after the execution date of this Agreement; (b) I have been advised hereby
that I have the right to consult with an attorney prior to executing this
Agreement; (c) I have twenty-one (21) days to consider this Agreement (although
I may choose to voluntarily execute this Agreement earlier); (d) I have seven
(7) days following the execution of this Agreement by the parties to revoke the
Agreement; and (e) this Agreement will not be effective until the date upon
which the revocation period has expired, which will be the eighth day after this
Agreement is executed by me, provided that the Company has also executed this
Agreement by that date ("Effective Date").
By: /s/ Xxxxx X. Xxxxx
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Date: August 2, 2000
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5.
